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Mall sale dispute: petitioners say demolition agreement assignment is ambiguous, respondents say it's clear
Summary
Petitioners challenged a circuit court's partial summary judgment that found a demolition agreement assigned as part of a mall sale; petitioners argued the assignment language was ambiguous and extrinsic evidence should go to a jury, while respondents said the assignment unambiguously covered contracts "related to upkeep, repair, maintenance, or operation of the mall."
Robert Stonestreet, representing Hall Property Group and petitioners, told the court the trial judge first found a question of fact about whether a demolition agreement was intended to transfer with the mall and later granted summary judgment after considering disputed extrinsic evidence. "If the language was ambiguous as found in December, it's up to the jury to consider this extrinsic evidence," Stonestreet said, urging a remand for trial.
Isaac Foreman, counsel for respondent Courier Street LLC, replied that the standalone assignment-and-assumption agreement is unambiguous and expressly includes contracts "related to the upkeep, repair, maintenance, or operation of the mall," language he said properly encompasses the demolition agreement despite its location on the courier parcel. Foreman added that the demolition agreement itself states consideration was exchanged and that the assignment's "includes but is not limited to" language supports inclusion.
The bench questioned whether the purchase-and-sale agreement should inform the assignment's meaning and whether the ICA has jurisdiction to decide related cross-assignments of error. Counsel debated whether the trial court improperly resolved factual disputes by construing contested testimony instead of submitting them to a jury. The case was submitted after final argument.
