Mall, Ross lawsuit ongoing; judge says questions for jury
Lawyers for GK Holiday Village and Ross Dress for Less asked a district court judge to issue summary judgment in their civil case related to a proposed Texas Roadhouse on the mall property.
Judge Elizabeth Best issued an order in March denying the parties’ cross motions for summary judgment.
“Although most of the facts recited above are not genuinely disputed, the question of whether Ross unreasonably withheld, delayed, or conditioned consent is a jury question. Likewise, the question of whether Ross breached the lease by unreasonably withholding, delaying, or conditioning consent is a fact issue for the jury,” Best wrote in her order.
On April 29, a spokesperson for Texas Roadhouse told The Electric, “we do not have any plans in Great Falls at this time.”
Best did issue partial summary judgement that GK Holiday Village does not waive its right to pursue substantive legal claims by collecting rent due from Ross, which has continued to occupy its space in the mall after GK terminated their lease in November 2022.
According to court documents, the lease required Ross to pay $26,250 monthly in rent, plus charges for the common area of the mall, real estate taxes, utilities and insurance.
Ross has been sending those payment’s to GK’s bank lockbox rather than to GK directly.
GK can’t stop those checks being sent and has been monthly returning issuing checks in the same amount back to Ross, which hasn’t deposited or cashed, so GK has been holding those funds in a separate account and has not used any of Ross’ rent payments since Nov. 8, 2022.
As of a February 2024 hearing, GK was holding more than $553,000 in payments from Ross that it wasn’t using until the court decided that accepting those payments wouldn’t waive their right to continue pursuing legal action against Ross.
“Allowing GK to accept payments under the lease currently and those that become payable during this case ensures that GK is compensated for Ross’s continued use of the premises, and it allows GK to mitigate damages,” Best wrote in her order on lease payments.
Mall owner sues Ross over Texas Roadhouse proposal [2023]
GK Holiday Village is a subsidiary of GK Real Estate, a national real estate investment firm, and has owned the mall since 2006.
Ross has leased their current space since 2005, through a lease with GK’s predecessor, according to the lawsuit filed in District Court in May 2023.
According to the lawsuit, “Ross has chosen to stifle the success and momentum plaintiff has created at Holiday Village in its attempts to unreasonably withhold its consent for a Texas Roadhouse restaurant to open in a free-standing location, replacing an existing restaurant.”
Construction, restaurant roundup [2023]
The proposed site is at the far northwest corner of the mall complex, outside the main mall structure and about 530 feet from Ross, at the corner of 10th Avenue South and 13th Street, where Mi Rancho was previously. The restaurant was the AppleMill Grill when the original lease was executed in 2005, according to the lawsuit.
Lawyers for the mall allege that Ross has breached its lease.
In June 2022, the mall negotiated a ground lease agreement with Texas Roadhouse, which include a provision requiring the mall to obtain all necessary third-party approvals for its entry into the shopping center, including from Ross, according to the lawsuit.
On June 22, 2022, the mall sent a letter to Ross notifying the company of the lease with Texas Roadhouse and requesting consent and approval of the new restaurant. The letter included copies of the AppleMill Grill building structure and height elevations, the proposed Texas Roadhouse building structure and elevations, and the Texas Roadhouse site plan overlayed on the existing site plan, according to court documents.
Ross did not respond, according to the lawsuit, so the mall sent a follow-up letter on July 26, 2022.
Ross responded on Aug. 3, 2022 saying it wasn’t in a position to consent and requesting the site plan and elevation of the proposed Texas Roadhouse building.
The next day, the mall followed up with the same information it had previously sent, and the companies communicated throughout August and September regarding the project.
“During those communications, Ross unreasonably attempted to delay and leverage the situation to its own advantage by requesting that [the mall] replace the functioning HVAC system servicing the store as a condition,” of consenting to the restaurant, according to the lawsuit.
The mall agreed to repair and replace the HVAC when necessary, in accordance with their lease, and asked Ross to notify the mall of any other needed repairs beyond routine maintenance.
Ross indicated it would consent to Texas Roadhouse, but on Sept. 27, 2022 asked for eight new conditions it had on the project, according to the lawsuit.
On Oct. 6, 2022, the mall sent Ross a notice of default for “unreasonably withholding, delaying and conditioning its consent” in violation of its lease, according to the lawsuit, giving Ross 30 days to cure the default and consent.
Ross did not respond and the mall issued a notice of lease termination on Nov. 8, 2022.
The lease requires mediation of disputes prior to the mall filing to evict Ross or terminate the lease and the mall sent a mediation notice on Dec. 1, 2022. The companies agreed on and scheduled two mediations, both of which Ross canceled, according to the lawsuit, and on Dec. 22, sent a letter indicating it would consent to Texas Roadhouse with conditions.
On March 10, 2023, the companies met for mediation that did not produce a settlement agreement Ross continues to occupy the space.
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