Search Tips

Boutrous, et al. v. Transform Operating Stores, et al.

Docket No. 20220090
Oral Argument: Monday, September 26, 2022 2:45 PM

Docket Info

Title
Ted J. Boutrous, L.L.C. and The Boutrous
Group, LLP, Plaintiffs and Appellees
v.
Transform Operating Stores, LLC d/b/a
Transformco Operating Stores LLC; Transform
SR Brands LLC d/b/a Transformco d/b/a Kmart;
and Transform KM LLC, Defendants and Appellants
Case Type
CIVIL APPEAL : LANDLORD/TENANT
Appeal From
Case No. 2021-CV-00240
South Central Judicial District, Burleigh County
Bobbi Brown Weiler
Oral Argument 9/26/2022

Parties' Statement of Issues

  • Appellant

    1. Did the district court err in exercising jurisdiction as a summary eviction action?
    2. Did the district court err in bifurcating the eviction action?
    3. Did the district court err in finding a material breach of the written lease agreement?
    4. Did the district court err in awarding sanctions for the turnover of the property?
    5. Did the district court err in ordering Transform to turn over the property to Boutrous before the conclusion of the entire eviction proceeding?

  • Appellee 1

    1. Was this case properly brought and heard as a summary eviction action?
    2. Was it proper for the District Court to bifurcate the eviction and damages actions?
    3. Did the District Court properly find a material breach of the lease agreement?
    4. Was it proper for the District Court to award sanctions?
    5. Was eviction proper prior to conclusion of the damages action?


Summary

Transform Operating Stores, LLC d/b/a Transformco Operating Stores LLC; Transform SR Brands LLC d/b/a Transformco d/b/a Kmart; and Transform KM LLC (“Transform”) appeals after the district court granted Ted J. Boutrous, L.L.C. and The Boutrous Group, LLP (“Boutrous”) an amended judgment of eviction and awarded damages.

In February 2021 Boutrous initiated this summary eviction action against Transform, which had assumed a long-term lease, to evict Transform from the Bismarck Kmart building and parking lot, and to recover damages. Transform moved to dismiss for lack of subject matter jurisdiction. The district court denied the motion and ordered an eviction hearing to go forward. After the hearing, the court held Boutrous was entitled to possession of the property, ordered Transform to vacate, and reserved the issue of damages for a later hearing. Transform moved for reconsideration, which the court denied. Transform appealed. The appeal was dismissed because none of the orders or judgments appealed from were final. Ted J. Boutrous, L.L.C. v. Transform Operating Stores, LLC, 2021 ND 100, 960 N.W.2d 801. In November 2021 the district court held a hearing on damages. In January 2022 the court issued an order awarding damages, and an amended judgment for eviction was subsequently entered.

On appeal, Transform argues the district court erred in exercising jurisdiction as a summary eviction, erred in bifurcating the eviction action, and erred in finding a material breach of the written lease agreement. Transform further contends the court erred in awarding sanctions for the turnover of the property and erred in ordering it to turn over the property to Boutrous before the conclusion of the entire eviction proceeding.


Briefs

Filing Date Description
07/05/2022 APPELLANT BRIEF View
08/04/2022 APPELLEE BRIEF View
08/18/2022 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Ryan Christopher McCamy - 06420
APPELLEE PRIVATE PRACTICE Tory Lee Jackson - 06517

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 03/18/2022 NOTICE OF APPEAL : 03/18/2022
2 03/18/2022 ORDER FOR TRANSCRIPT : 03/24/2022
3 03/24/2022 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
4 03/24/2022 Notice served on Ryan C. McCamy, Shaun D. McNamara & Tory J. Jackson
5 04/13/2022 ELEC. RECORD ON APPEAL DATED APRIL 12, 2022 (ENTRY NOS.1-46, 48-53, 56-74, 76-92, 94-115, 117-166,
6 04/13/2022 168-176, 178-208, 210-244-352)(NOT REC'D. #47, 54, 55, 75, 93, 116, 167, 177, 209, 245)
7 04/21/2022 Rec'd Via U.S. Mail Entry No.47(Exhibit 40-42), Entry No.75(Exhibit 49), Entry No. 93(Exhibit 53)
8 04/21/2022 Entry No. 116(Exhibit 58), Entry No. 167(Exhibit 66), Entry No. 177(Exhibit 71),
9 04/21/2022 Entry No. 177(Exhibit 71), Entry No. 209(Exhibit B), Entry No. 245(Exhibit 76)(Not Rec'd 54-55)
10 04/29/2022 Rec'd Via U.S. Mail Entry No.54-55 (Exhibit 40-41) Disk
11 05/03/2022 AMENDED ELEC. RECORD ON APPEAL DATED MAY 2, 2022 (ENTRY NOS. 1-46, 48-53, 56-74, 76-92, 94-115,
12 05/03/2022 117-166, 168-176, 178-208, 210-244-352)(SENT BY U.S. MAIL #47, 54, 55, 75, 93,
13 05/03/2022 116, 167, 177, 209, 245)
14 05/23/2022 1ST SUPPLEMENTAL ELEC. RECORD ON APPEAL DATED MAY 20, 2022(ENTRY NOS. 353-364)
15 05/23/2022 All Transcripts Filed in Record
16 07/05/2022 APPELLANT BRIEF View
17 07/05/2022 Oral Argument Request by Appellant
18 07/06/2022 MOTION FOR MOTION FOR ADDITIONAL PAGES BY APPELLANT
19 07/06/2022 ACTION BY CHIEF DEPUTY CLERK (granted 1 page) - Granted
20 07/06/2022 Rec'd corrections to ATB
21 07/08/2022 Rec'd 3 copies of ATB back from CD.
22 08/04/2022 APPELLEE BRIEF View
23 08/08/2022 Rec'd 3 copies of AEB from CSD
24 08/18/2022 NOTICE OF ORAL ARGUMENT SENT
25 08/18/2022 REPLY BRIEF View
26 08/19/2022 Intent to Particpate in Oral Argument by Appellee
27 08/19/2022 Rec'd 3 copies of RYB from CSD
28 09/26/2022 APPEARANCES: Ryan C. McCamy; Tory J. Jackson
29 09/26/2022 ARGUED: Ryan C. McCamy; Tory J. Jackson
30 09/26/2022 ORAL ARGUMENT WEBCAST