Mall issues resolved with dismissal of one case, affirmation of another

May 26—INDIANAPOLIS — One case involving the now-closed Mounds Theater has been dismissed and another has been affirmed by the Indiana Court of Appeals.

An 11-page May 7 memorandum decision authored by Judge Ezra H. Friedlander on issues of liability and possession involving Holliday LLC from Anderson Mounds Theater was dismissed without prejudice, allowing for a refilling at a later date. That case, in which Holliday was the appellant, originated in the court of Madison Circuit Court 6 Judge Mark K. Dudley.

The second case, in which Holliday was the appellee, was affirmed May 17 in a 13-page opinion authored by Judge Robert R. Altice Jr. That case originated with decisions handed down by Madison County Circuit Court 4 Judge David Happe and Kevin M. Eads.

"Because the trial court's order is not a final appealable order or an appealable interlocutory order, Holliday's attempt to appeal the non-final order is ... taken prematurely," Friedlander wrote of the May 7 decision.

According to his opinion, the previous owners of the mall and owners of the Mounds 10 Theater operated under an agreement that all furniture, fixtures and equipment were the property of the theater.

In April 2019, Holliday purchased the mall in a tax sale and was given the tax deed in October of that year. Taking possession of the mall about that time, Holliday changed the locks without notifying the theater's operators.

Holliday officials refused to allow the theater operators to remove their property, including projectors, popcorn poppers and other concession equipment, and speakers, seats and screens. Theater operators were allowed to remove cash, computers and small items of personal property.

In November 2019, the theater operators filed a complaint in Dudley's court, seeking return of the property, damages, costs, pre-judgment interest and attorney's fees. Holliday filed a counterclaim alleging criminal conversion.

In January 2013, the court set forth provisions for the security and preservation of the property, which remained in Holliday's temporary possession while the lawsuit was resolved.

In a bench trial started Aug. 31, 2020, owner Mark S. Squillante, a non-attorney, represented Holliday and sought a continuance.

"The trial court denied his motion and explained that he was protecting Squillante from the unauthorized practice of law by prohibiting him from acting as (the corporation's) counsel," the opinion said.

In September 2020, the trial court ordered Holliday to allow access for 30 days to the disputed property by the theater operators. It is unclear whether the theater operators have removed the property or are waiting for the case to be settled at appeal.

In the case settled on May 17, Elda Corp., which owns the land on which Mounds Mall stands, and Anderson Mounds Theater LLC appealed a partial summary judgment granted in favor of Holliday. Holliday, according to that ruling, is entitled to use improvements on a parcel of the land without paying rent to Elda and the theater operators.

"From the outset, the Improvements Parcel was severed and identified separately from the Land by its own property tax parcel number," the appeals court's opinion said. "The parcels have been historically taxed separately as real property, and the Improvements Parcel has always been assessed to the ground lease tenant with a note stating, 'Improvements on Leased Ground.'"

According to the opinion, Elda never challenged the tax sale in which Holliday acquired the mall.

In November 2019, Elda served Holliday with a notice to quit, notice of default and notice of termination and demand.

"The notices demanded that Holliday either agree to the terms of the previous ground lease or 'vacate the premises," the opinion said. "Elda claimed that Holliday was in unlawful possession of its land, beginning October 2019."

Holliday filed suit March 25, 2020 to determine whether Elda had a right to collect rent or eject Holliday from the land. Asserting the ground lease remained valid, Elda filed a counterclaim to remove Holliday and request damages for the "wrongful occupation of the land," though Holliday insisted it was not bound by the previously recorded ground lease.

Elda and Holliday each filed motions for summary judgment. The trial court granted partial summary judgment to Holliday in November 2020 that the grounds had been severed and taxed separately and that Holliday was the owner because Elda did not challenge the tax sale or pursue redemption rights.

Follow Rebecca R. Bibbs on Twitter at @RebeccaB_THB, or call 765-640-4883.