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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA retail chain that closed an underperforming store in a Hendricks County shopping center had a contractual right to do so under its lease, the Indiana Court of Appeals held in reversing a judgment in favor of the plaza owner.
In Claire's Boutiques, Inc. v. Brownsburg Station Partners LLC, 32A01-1209-CC-438, the Court of Appeals reversed a ruling in favor of shopping center Brownsburg Station and remanded with an order that the trial court grant summary judgment in favor of Claire’s Boutiques Inc.
At issue is a co-tenancy provision of a contract that allowed Claire’s to terminate the lease if occupancy levels at the shopping center fell below 70 percent. The trial court ruled that Claire’s violated that clause because the total amount of comparable space occupied did not fall below 70 percent.
“We hold as a matter of law that the operating co-tenancy provision in the Lease unambiguously states that Claire’s could terminate the Lease in the event the occupancy level fell below seventy percent of the non-department retail store tenants in Buildings A1 and A3, not seventy percent of the gross leasable area in those buildings, for a period of one year or more,” Judge Edward Najam wrote for the panel.
Najam wrote that Brownsburg Station was inviting the court to rewrite the contract, which it may not do. “As such, we conclude that Claire’s exercised its option under the operating co-tenancy provision to terminate the Lease when it vacated the premises.
“Therefore, the trial court erred as a matter of law when it denied Claire’s motion for summary judgment as to liability under the lease. We vacate the Judgment and remand for the trial court to enter summary judgment in favor of Claire’s.” Panelists Mark Bailey and Michael Barnes concurred.
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