Boost Mobile kiosk vendor booted from grocer boosted on appeal

An appellate panel has reversed for a cellphone kiosk owner subleasing space in an East Chicago supermarket after finding a Lake County judge erred in granting a motion for immediate possession by a new sublessor.

Bassam Abdulla entered into a sublease with SVT, LLC in November 2015 to operate a Boost Mobile kiosk inside SVT’s supermarket. The sublease provided that the initial term would be from Jan. 1, 2016, through Dec. 31, 2017; the first extended term would be from Jan. 1, 2018, through Dec. 31, 2019 and the second extended term would be from Jan. 1, 2020, through Dec. 31, 2021.

In August 2017, SVT assigned the sublease to Indiana Grocery Group, which filed a complaint for ejectment against Abdulla in March 2020, based on Abdulla’s alleged failure to exercise his option to extend the sublease.

IGG filed a motion for immediate possession and a show-cause hearing was granted by the Lake Superior Court. Abdulla filed a response to IGG’s motion, and less than an hour before the hearing, IGG filed a reply to Abdulla’s response in which it submitted new evidence, made new arguments, and asserted a new claim.

The day after the hearing, Abdulla filed a motion for leave to file a surreply. But without ruling on Abdulla’s motion, the trial court issued an order granting IGG’s motion for immediate possession. It further granted IGG’s motion to strike Abdulla’s motion for leave to file a surreply and ordered Abdulla to pay IGG $750 in attorney’s fees.

The Indiana Court of Appeals reversed in I-65 Plaza, LLC, and Bassam A. Abdulla, v.Indiana Grocery Group, LLC, 20A-CC-1537, first finding the trial court erred in granting IGG’s motion for immediate possession.

The appellate court reversed and remanded on the procedural basis that IGG did not file the written undertaking required by Indiana Code Section 32-30-3-6, pointing out that a plaintiff must file a written undertaking before a court may issue an order of preliminary possession.

It likewise agreed with Abdulla’s assertion that the one-year overlap between the initial Term and the first Extended Term in the amended sublease was an obvious ambiguity that must be resolved “by consideration of extrinsic evidence to determine with reasonable probability which party is entitled to possession of the leased premises pursuant to Indiana Code Section 32-30-3-5.”

Next, the appellate court similarly found the trial court erred in its grant of IGG’s motion to strike Abdulla’s motion for leave to file a surreply and in awarding IGG attorney’s fees.

“Contrary to IGG’s assertion in its motion to strike, Abdulla’s surreply is not simply a ‘rehashing’ of arguments already made to the trial court; it is a detailed response, supported with relevant case citations and the November 2017 letter from IGG, to new evidence and arguments that IGG submitted mere minutes before the show-cause hearing,” Judge Terry Crone wrote for the appellate court.

“As for IGG’s contention that a surreply is not permitted by the Indiana

Trial Rules or the Lake County Local Rules, we note that those rules do not prohibit a surreply to be filed with leave of court; in any event, Trial Rule 81(H) allows a court to ‘suspend or modify compliance’ with any local rule ‘if the interests of justice so require.’ We believe that the interests of justice were not served by the trial court’s granting of IGG’s motion to strike (and corresponding request for fees) in this case. In other words, the trial court abused its discretion, and therefore we reverse,” it wrote.

Lastly, the appellate court noted that IGG cited no authority for its fee request in its motion, and the trial court cited none for its fee award in its order. As such, it also reversed the fee award.

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