Texas Roadhouse files plans for new restaurant in Great Falls
Updated Dec. 20 with information from an attorney for Ross
Texas Roadhouse has submitted a permit application to the city planning office for a new restaurant in Great Falls.
The permit, submitted Dec. 4, is for a full demolition of the existing restaurant at 1220 10th Ave. S., in front of the Holiday Village Mall, where Fiesta En Jalisco and Mi Rancho were previously located.
According to documents submitted to the city planning office, Texas Roadhouse is planning to construct a new restaurant on the property.
City staff are currently reviewing the permit application, according to Lonnie Hill, deputy planning director.
The Electric asked Texas Roadhouse and representatives for the mall for additional information on the specifics that allowed the construction to move forward and a timeline for construction, but has not yet received a response.
Katherine Huso, a lawyer representing Ross in the case, responded to The Electric on Dec. 18.
“Ross has never created an obstacle to GK leasing the former AppleMill Grill site to Texas Roadhouse,” she said in an email.
She said that in December 2022, Ross provided GK with an unconditional waiver of its rights under the lease to allow the proposed Texas Roadhouse construction, but while Texas Roadhouse was conducting its due diligence, discovered that the soil and groundwater on the AppleMill site was contaminated with benzine, a chemical present in gasoline.
Huso said that Texas Roadhouse canceled its lease with GK in August 2023 due to the increased costs, but has since “apparently negotiated a new lease to address these costs. Even though Ross has nothing to do with the benzene contamination or these cost overruns, Ross facilitated GK’s ability to lease the property to Texas Roadhouse by waiving its rights, and Ross pays GK its rent on time and in full every month. GK claims Ross interfered with its lease to Texas Roadhouse, and is trying to shut down the Ross store, which has operated in Great Falls since March, 2007.”
There is a Texas Roadhouse in Billings.
Mall lawsuit over Texas Roadhouse set for 2026
The development has been in the works for years, with Texas Roadhouse and GK Holiday Village having negotiated a ground lease in June 2022. The agreement included a provision requiring the mall to obtain all necessary third-party approvals for its entry into the shopping center, including from Ross Dress for Less.
The project ended up in a civil lawsuit in District Court over various lease provisions between GK Holiday Village and Ross, a current occupant of mall property.
The litigation is ongoing and a jury trial remains set for for Dec. 1, 2026.
GK filed filed the lawsuit in the 8th Judicial District in Cascade County in May of 2023, alleging that Ross has breached its lease.
Mall, Ross lawsuit ongoing; judge says questions for jury
In November 2024, Ross filed a counterclaim against GK over a different provision of their lease agreement.
Ross has leased their current space since 2005, through a lease with GK’s predecessor, according to court documents.
“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,” GK argued in their initial complaint.
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.
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.
Mall owner sues Ross over Texas Roadhouse proposal [2023]
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.
Earlier this year, the parties asked District Court Judge Elizabeth Best to issue summary judgement and in March 2024, she issued an order denying those requests.
“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 June 11 a spokesperson for Texas Roadhouse told The Electric, “we do not have any plans in Great Falls at this time.”
Best issued 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 was 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.
GK Holiday Village is a subsidiary of GK Real Estate, a national real estate investment firm, and has owned the mall since 2006.
Bed Bath and Beyond closed in 2023. Big Lots closed this year.
Fit Republic closed their location in the mall at the end of 2022. Joann fabric store opened in that location in November.
In responding to GK’s complaint, Ross stated in court documents that it “admits solely and specifically that [GK Holiday Village] sent Ross a notice of lease termination, but further affirmatively alleges that what [GK] has styled a notice of lease termination was in excess of [GK’s] rights, was of no force or effect, and violated Ross’ rights of peaceful possession of the demised premises.”
Lawyers for Ross also wrote that Ross offered a waiver of lease prohibitions to enable GK to proceed with the Texas Roadhouse construction, that Ross states the mall refused.
Ross filed a counterclaim against GK Holiday Village, arguing that their lease provides, in part, that GK “shall not permit any increase in height of the building located on the outparcel occupied by AppleMill Grill as of the effective date of this lease.”
Ross’ attorneys argue that GK breached or anticipatorily breached their lease agreement by entering into an agreement with Texas Roadhouse for the construction or a new restaurant building that it proposed to replace and be taller than the former AppleMill Grill building and by demanding that Ross consent to the building, which is not permitted under its lease.
Ross’ attorneys argue that since GK breached its lease, the mall cannot assert that Ross breached its lease.
In its counterclaim, Ross argues that GK has overcharged rent under another lease provision for reduced occupancy periods, when less than 70 percent of the floor area designated in its lease is occupied, during which Ross’ obligation for minimum rent would be replaced by substitute rent, which is defined in the lease as lesser of minimum rent or two percent of Ross’ gross sales during the preceding month.
Ross argues that reduced occupancy periods have occured in the eight years preceding the lawsuit in Holiday Village Mall, therefore the mall has breached the lease by charging full rent instead of the substitute rent during those periods, according to court documents.
Ross’ attorneys argue that Ross is entitled to offset the difference between the rent is paid during those periods and the substitute rent against any damages potentially awarded to the mall due to the lawsuit.
In a Dec. 9 response to Ross’ counterclaim, lawyers for GK argued that if it were to go to trial, the counterclaim should be tried separately from GK’s original claims, which are distinct.
GK argues that because Ross’ lease was terminated on Nov. 8, 2023, Ross has no rights under the lease to enforce its provisions and is not entitled to recover damages “to the extent they were caused or contributed to by Ross’s own conduct,” according to court documents, and that Ross’ counterclaim “may be barred by the doctrine of unclean hands, including by Ross’s breaches of the covenant of good faith and fair dealing and tortious interference.”
*Photo by Texas Roadhouse
Pingback: Business Bites: Job Service, Epiphany Dermatology moving; student art exhibition; local yarn shop day; fundraising to save historic barn; block party; cold weather services; Give Great Falls, and more - The Electric
Pingback: Business Bites: “Does anybody know what’s being built…” - The Electric
Pingback: Business Bites: Pomodoro opening date set; Benefis Med Spa, Herman’s Flowers closing; city aquatic center open house; Boot Barn planned for mall; Calumet public safety donation; entrepreneur celebration; and more - The Electric