3600 Michigan Co Ltd v. Infra-Metals Co
Filing
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OPINION AND ORDER granting in part and denying in part 107 Motion for Partial Summary Judgment. Signed by Chief Judge Philip P Simon on 4/13/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
3600 MICHIGAN CO., LTD.,
Plaintiff,
v.
INFRA-METALS, CO. f/k/a PREUSSAG
INTERNATIONAL STEEL
CORPORATION,
Defendant.
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2:07-CV-367-PPS-APR
OPINION AND ORDER
This matter is before the Court on defendant Infra-Metals’ motion for partial summary
judgment on the issue of the ownership of three cranes that are currently located on the industrial
property that is the subject of a lease dispute between the parties [DE 107].1 Infra-Metals argues
that it owns the Cranes pursuant to a lease agreement between the parties. Plaintiff 3600
Michigan disputes this, and asserts an ownership interest in the cranes based in part on InfraMetals’ alleged abandonment of the cranes when it vacated the industrial property it was leasing
from 3600 Michigan. Along with its request for a finding that it owns the cranes, Infra-Metals
asks the Court to bar 3600 Michigan from introducing any evidence at trial concerning the
ownership of the cranes or damages resulting from repairs or upgrades to them, and to find that
Infra-Metals is entitled to possession of the cranes or damages for their fair market value. For
the reasons discussed below Infra-Metals’ motion is GRANTED in part and DENIED in part.
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Unless otherwise indicated, citations to the docket refer to the docket in Case No. 2:07CV-367.
BACKGROUND
The dispute in this case concerns an industrial property in Northwest Indiana, located at
3600 Michigan Road, East Chicago, Indiana, where the parties and their respective predecessors
jointly operated a steel processing facility from 1992 to 1997. In 1994, 3600 Michigan’s
predecessors, James Buckmaster and James Buckmaster, Inc. entered into a sales and marketing
agreement with Infra-Metals’ predecessor, Preussag, whereby Buckmaster bought steel products
that Preussag manufactured. In 1995, Buckmaster formed 3600 Michigan, and bought the
property from Preussag, which continued to operate out of the property pursuant to the parties’
sales and marketing agreement. On August 1, 1997, Infra-Metals agreed to terminate the sales
and marketing agreement with 3600 Michigan, and enter into a lease agreement whereby InfraMetals would lease the property from 3600 Michigan for a ten-year period, from 1997 to 2007.
The termination agreement was entered into by Preussag, on the one hand, and Buckmaster and
3600 Michigan, on the other [DE 109-1]. The contemporaneous lease agreement was entered
into by Preussag and 3600 Michigan, and is expressly incorporated by the Termination
Agreement, and attached to it as Exhibit A [DE 109-1, ¶ 1(a) & at 9].
Six years into the Lease, in May 2003, Infra-Metals notified 3600 Michigan of its
decision to vacate the property and cease making further rental payments. The parties eventually
negotiated a 2003 amendment to the lease (“Amendment”), which progressively reduced InfraMetals’ rent over the four years remaining in the lease period, and required the parties to
cooperate and use reasonable efforts to locate a new tenant for the property during this time.
Unfortunately for Infra-Metals, no new tenant was found during this period. So Infra-Metals
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continued to pay rent on the property it did not even occupy, albeit at the lower rate negotiated in
the amendment.
Shortly after the July 2007 termination of the lease, 3600 Michigan sued Infra-Metals for
breach of the Lease and the Amendment, including for Infra-Metals’ alleged failure to fulfill
certain obligations under those agreements (the “First-Filed Suit”) [DE 1]. Infra-Metals
counterclaimed, alleging that 3600 Michigan had breached its duty under the Amendment to use
reasonable efforts to locate a new tenant [DE 2-2].
On October 17, 2008, more than five years after Infra-Metals vacated the property, InfraMetals sought leave to amend its counterclaim to add claims for conversion and statutory
replevin, relating to three industrial cranes located on the property which Infra-Metals contends
it owns under the Lease [DE 21]. Magistrate Judge Rodovich denied that motion [DE 26]. But
instead of appealing the denial to this Court, Infra-Metals filed its proposed conversion and
statutory replevin claims in a new state court lawsuit, which was later removed to this District on
June 18, 2009 (the “Crane Lawsuit”) before Judge Miller [DE 2 in 2:09-CV-170]. 3600
Michigan answered the conversion and statutory replevin claims in the Crane Lawsuit, and
asserted a number of affirmative defenses, including that Infra-Metals waived its right to, and is
estopped from asserting, an ownership interest in the Cranes because it abandoned them, and that
Infra-Metals’ claims are barred by laches and the statute of limitations [DE 35, ¶¶ 2-3 & 5-6 in
2:09-CV-170].
3600 Michigan then moved for summary judgment in the Crane Lawsuit, arguing that
Infra-Metals’ claims were compulsory counterclaims in the First-Filed Suit, and thus barred in
the Crane Lawsuit under principles of res judicata [DE 24-25 in 2:09-CV-170]. Judge Miller
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denied that motion as premature, on the ground that no final judgment had been entered in the
First-Filed Suit [DE 40 in 2:09-CV-170]. I later consolidated the Crane Lawsuit with the FirstFiled Suit [DE 105], which put Infra-Metals’ conversion and statutory replevin claims, and 3600
Michigan’s defenses, before me to decide. Accordingly, I must consider those claims and
defenses in evaluating Infra-Metals’ pending request for a finding that it owns the Cranes.
DISCUSSION
I.
Interpretation of the Lease
Infra-Metals says it owns the Cranes because the Lease unambiguously says so. This
argument requires that I construe the Lease. The Lease contains a contractual choice of law
clause that provides that it shall be governed by Indiana law [DE 109-1 at 23, Art. 34], and
Indiana law respects the parties’ choice of law clause. See Allen v. Great Am. Reserve Ins. Co.,
766 N.E.2d 1157, 1162 (Ind. 2002); Travelers Indemnity Company v. Summit Corp. of America,
715 N.E.2d 926, 931 (Ind. Ct. App. 1999). In any event, neither party has raised a choice-of-law
issue. And where the parties do not identify a conflict between the bodies of state law that might
apply to their dispute, courts apply the law of the forum state. See Gonzalez v. Volvo of Am.
Corp., 752 F.2d 295, 299 (7th Cir. 1985) (“Where parties fail to raise a possible conflict of law,
the better rule . . . is that the substantive law of the forum controls.”); see also Gould v. Artisoft,
Inc., 1 F.3d 544, 549 n.7 (7th Cir. 1993) (same). Accordingly, I will apply Indiana substantive
law to the dispute over the Lease.
Infra-Metals’ contends that the Lease unambiguously provides that Infra-Metals owns the
Cranes. Under Indiana law, the goal of contract interpretation is to ascertain the intent of the
parties. MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901,
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906 (Ind. 2004). In the case of a written contract such as the Lease, the parties’ intent is
determined by looking first to the plain and ordinary meaning of the contract language. USA
Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997); see also T-3 Martinsville, LLC v.
US Holding, LLC, 911 N.E.2d 100, 111 (Ind. Ct. App. 2009) (“A lease is construed in the same
manner as any other contract.”).
“Whether a contract is ambiguous is a question of law for the court.” Bernstein v.
Glavin, 725 N.E.2d 455, 459 (Ind. Ct. App. 2000) (citing Western Ohio Pizza, Inc. v. Clark Oil
& Refining, 704 N.E.2d 1086, 1091 (Ind. Ct. App. 1999)). If the language of a contract is “clear
and unambiguous,” the court shall give that language “its plain and ordinary meaning.” Barclay
v. State Auto Ins. Cos., 816 N.E.2d 973, 975 (Ind. Ct. App. 2004); see also Ecorp, Inc. v.
Rooksby, 746 N.E.2d 128, 131 (Ind. Ct. App. 2001). Ambiguity does not exist simply because
the parties dispute the meaning of the contract’s terms. Ecorp, 746 N.E.2d at 131. Rather, an
agreement contains ambiguities only if “reasonable people could come to different conclusions
about the contract’s meaning.” Id.; Chicago Southshore & South Bend R.R. v. Itel Rail Corp.,
658 N.E.2d 624, 633 (Ind. Ct. App. 1995); see also Ind. Mills & Mfg., Inc. v. Evenflo Co., Inc.,
No. 1:04-cv-540, 2005 WL 3150164, at *5-6 (S.D. Ind. Nov. 22, 2005).
Here, the Lease clearly and unambiguously provides that Infra-Metals owns the Cranes.
Preussag, Infra-Metals’ predecessor, is defined under the Lease as the “Tenant” [DE 109-2 at 1].
And Article 1 of the Lease [Id.] provides that the Cranes are defined on Exhibit A, which in turn
provides that “[n]otwithstanding anything in the Lease to the contrary, the cranes described on
Exhibit A-3 attached hereto and incorporated herein by this reference are and shall remain the
personal property of Tenant” (the “Cranes”) [DE 109-2 at 19, Ex. A; second emphasis added].
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And then Exhibit A-3 goes on to describe the three industrial cranes that are in dispute here: a
25-ton Whiting Crane, a 10-ton Whiting Crane, and a 10-ton Engineered Crane [DE 109-2 at 23,
Ex. A-3].
The language quoted in the preceding paragraph could not be any clearer; Infra-Metals
owns the Cranes according to the Lease. And if that were not clear enough, the Lease
underscores Infra-Metals’ ownership of the Cranes in two additional provisions. First, Article 9,
Fixtures and Personal Property, provides that “[a]ny trade fixtures, business equipment,
inventory, trademarked items, signs and other removable property installed in or on [the
property] by Tenant (including, without limitation, the Cranes) shall remain the property of
Tenant” [DE 109-2 at 7; emphasis added]. Second, Article 19, which pertains to the Tenant’s
obligations when it surrenders the property to 3600 Michigan, “expressly exclud[es] all trade
fixtures, signs and other personal property (including, without limitation, the Cranes) which
remain the property of Tenant as provided in Article 9" [DE 109-2 at 11; emphasis added].
3600 Michigan does not dispute that the Lease, standing on its own, unambiguously
provides that the Cranes belong to Infra-Metals. Instead, it argues that two ambiguities
nonetheless exist, which prevent Infra-Metals from being entitled to summary judgment. First,
3600 Michigan contends that “it is ambiguous whether the parties intended for the Termination
Agreement and the Lease to be read together” [DE 109 at 6]. Second, 3600 Michigan contends
that construing those documents together, as 3600 Michigan suggests the Court should, reveals
an ambiguity as to the ownership of the Cranes [Id.].
As an initial matter, unlike the Lease, the Termination Agreement provides that it shall
be governed by Georgia law [DE 109-1 at 5, § 4.7]. Indiana law (which governs the Lease) and
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Georgia law (which governs the Termination Agreement) both provide that contemporaneous
contracts relating to the same subject matter must be construed together in determining the
parties’ intent. Compare Estate of Penzenik v. Penz Products, Inc., 800 N.E.2d 1007, 1010 (Ind.
Ct. App. 2003) (“in the absence of anything to indicate a contrary intention, writings executed at
the same time and relating to the same transaction or subject matter will, as a general
proposition, be construed together”) (quoting Peoples Bank & Trust, Co. v. Price, 714 N.E.2d
712, 716-17 (Ind. Ct. App. 1999); and Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1138
(Ind. Ct. App. 2002) (same) with Moran v. NAV Servs., 377 S.E.2d 909, 910 (Ga. Ct. App.
1989).
Here, the Termination Agreement expressly incorporates the Lease, which is attached to
the Termination Agreement as an exhibit [DE 109-1 at 1, ¶ 1(a) & at 9]. This, alone, indicates
that these documents must be read together. See Zemco Mfg., Inc. v. Navistar Intern. Transp.
Corp., 270 F.3d 1117, 1123 (7th Cir. 2001) (“the court cannot read portions of an agreement. . . .
Rather, the document must be read as a whole when attempting to determine the parties’
intentions”); accord Megel v. Donaldson, 654 S.E.2d 656, 660 (Ga. Ct. App. 2007). Moreover,
the Lease and the Termination Agreement were both entered into on the same date by
substantially the same parties and their privies, and both writings relate to the disposition of the
property in light of the termination of the parties’ sales and marketing agreement. This, too,
shows that these documents must be construed together in determining the intention of the
parties. See Estate of Penzenik, 800 N.E.2d at 1010; accord Moran, 377 S.E.2d at 910.
Evaluating 3600 Michigan’s argument—that reading the Lease and Termination
Agreement together produces an ambiguity—raises the question whether these documents,
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construed together as a whole, should be construed in accordance with Georgia or Indiana law.
Fortunately, I need not resolve this question here because Georgia law is no different from
Indiana law with respect to the few fundamental interpretive principles that come into play here,
including that the goal of contract interpretation is to ascertain the intent of the parties, Irvin v.
Laxmi, Inc., 266 Ga. 204, 205, 467 S.E.2d 510 (Ga. 1996), that the parties’ intent is determined
by looking first to the plain and ordinary meaning of the contract language, Park ‘N Go of Ga. v.
U.S. Fidelity G. Guar. Co., 266 Ga. 787, 791, 471 S.E.2d 500 (Ga. 1996), and that an agreement
is ambiguous only if it is reasonably susceptible to more than one interpretation, Municipal Elec.
Authority of Georgia v. Gold-Arrow Farms, Inc., 625 S.E.2d 57, 61 (Ga. Ct. App. 2005).
With that clarification, I turn now to the three lines of support 3600 Michigan offers for
its argument that the Termination Agreement and the Lease, construed together, produces an
ambiguity as to Crane ownership. In each instance, 3600 Michigan argues that the Termination
Agreement shows that 3600 Michigan is in fact the owner of the Cranes, which 3600 Michigan
says creates an ambiguity as to ownership given that the Lease provides that Infra-Metals owns
them. None of these arguments, however, is persuasive.
First, 3600 Michigan argues that it owns the Cranes under the Termination Agreement
because Paragraph (e), Personal Property, does not include the Cranes among the personal
property that Infra-Metals purchased from 3600 Michigan under that agreement [DE 109 at 6].
Paragraph (e) provides that Infra-Metals shall pay a sum certain to Buckmaster for the items of
personal property listed on Exhibit E to the Termination Agreement [DE 109-1 at 2, ¶ 1(e)].
And 3600 Michigan is correct to point out that the Cranes are not listed on Exhibit E [DE 109-1
at 58, Ex. E]. So, what? Paragraph (e) simply references a list of Buckmaster’s personal
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property that Infra-Metals agrees to purchase. For this provision to raise the suggestion that
3600 Michigan owns the Cranes, the Termination Agreement also would have to provide that the
Cranes were among Buckmaster’s personal property, which it does not. And even then, the
absence of the Cranes on the Exhibit E list of property would contradict the Lease on the issue of
Crane ownership only if Paragraph (e) also provided that all personal property not listed in
Exhibit E remains Buckmaster’s property, which it does not. Nowhere in the Termination
Agreement or Lease are the Cranes defined as Buckmaster’s personal property. Quite the
contrary, the Lease provides that the Cranes “are and shall remain the personal property of”
Infra-Metals [DE 109-2 at 19, Ex. A]. And this explains why the Cranes are not listed among the
property that Infra-Metals agrees to purchase from Buckmaster under Paragraph (e)—because, as
the Lease explains, the Cranes were not Buckmaster’s property, but belonged instead to InfraMetals, and remained so under the Termination Agreement. Thus, Paragraph (e) fails to
contradict the Lease on the issue of Crane ownership.
Second, 3600 Michigan argues that, unlike the Lease, the Termination Agreement
“explicitly and clearly states that the cranes are part of the premises leased under the Lease” [DE
109 at 7]. In support of this assertion, 3600 Michigan points to Paragraph 1(c) of the
Termination Agreement, Reimbursement of Venture Expenses, which provides, in pertinent part,
that
[Infra-Metals] is entitled to a credit of $450,0000 for structural and crane repairs and/or
replacements to the East Chicago, Indiana facilities (which facilities were utilized by the
[parties’ marketing and sales agreement] and constitute a portion of the premises leased
pursuant to the Lease Agreement)
[DE 109-1 at 1, ¶ 1(c)]. This language, however, provides no evidence that 3600 Michigan owns
the Cranes. 3600 Michigan’s argument appears to be that Paragraph 1(c) provides that (1) the
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Cranes are part of the “facilities” for which the $450,000 credit is designated; (2) the facilities
are part of the premises that 3600 Michigan owns and leases to Infra-Metals; so (3) the Cranes
are part of the leased premises, and thus owned by 3600 Michigan.
The problem with this argument is that the language of Paragraph 1(c) does not support
premise (1). All that Paragraph 1(c) provides is that the $450,0000 credit is provided for
“structural and crane repairs” and/or replacements to the “facilities.” Far from including the
Cranes as part of the facilities, this provision expressly distinguishes between the Cranes and the
facilities. And the parenthetical in the above-quoted provision says only that the facilities are
part of the leased premises, not that the Cranes are also part of those premises. So nothing about
this provision contradicts the Lease on the issue of Crane ownership.
Third, 3600 Michigan argues that the credit provided to Infra-Metals by Paragraph 1(c)
above, which is partly for repairs to the Cranes, would make “no economic sense” were InfraMetals the owner of the Cranes [DE 109 at 7]. Specifically, 3600 Michigan argues that it would
be “economically absurd” for it to agree to subsidize Infra-Metals’ repairs to its own property.
However, I fail to see any economic absurdity in this aspect of the parties’ agreement.
3600 Michigan is correct that courts interpret contracts to avoid absurd results. Courts
“apply this rule to reject one party’s strained, literal reading of contract language in favor of the
other party’s reasonable commonsense reading.” BKCAP, LLC v. CAPTEC Franchise Trust
2000-1, 572 F.3d 353, 360 (7th Cir. 2009). But there is nothing strained about the literal reading
of the Lease, according to which Infra-Metals is unambiguously designated as the owner of the
Cranes. Moreover, no absurdity follows from the fact that the Termination Agreement provides
an incentive to Infra-Metals to enter the Lease in the form of a credit for, among other things,
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repairs to the Cranes. As Paragraph 1(c) goes on to say, this credit is in the form of a reduction
in rent spread out over the term of the Lease.2 Far from an absurdity, it reasonably would have
been in Infra-Metals’ economic interest to insist that 3600 Michigan help pay for Crane repairs
as an incentive to agree to the Lease. And 3600 Michigan reasonably would have agreed to this,
particularly given the (again, reasonable) expectation that Infra-Metals would use the credit not
just for Crane repairs, but also for the structural repairs and replacements to the facilities, which
Paragraph 1(c) authorizes. In any event, nothing about this trade-off warrants the application of
the rule of interpreting contracts to avoid absurd results. Cf. Dispatch Automation, Inc. v.
Richards, 280 F.3d 1116, 1118-19 (7th Cir. 2002) (“It would have been cockeyed . . . for the
parties to have agreed that [defendant] would own successive versions provided they made only
incremental improvements over their predecessors but that he would have no rights to a
successive version that made a real breakthrough.”); Merheb v. Ill. State Toll Highway Auth.,
267 F.3d 710, 713 (7th Cir. 2001) (rejecting employee’s literal, “insane” reading of a workplace
discipline manual).
In sum, construing the Lease together with the Termination Agreement, as I must, I still
find that the Lease unambiguously provides that Infra-Metals owns the Cranes. This, however,
does not fully resolve the issue of the ownership of the Cranes, which depends on whether InfraMetals’ actions in vacating the property, and not asserting its ownership rights till years later,
had any effect on the ownership rights stated in the Lease. That is the issue I take up next.
II.
3600 Michigan’s Abandonment Defense
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“Such credit shall be taken against rent otherwise due under the Lease Agreement in an
amount not to exceed the sum of $90,000.00 per year during the first five (5) years of the lease”
[DE 109-1 at 2, ¶ 1(c)].
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As I noted, currently pending in the Crane Case are Infra-Metals’ conversion and
statutory replevin claims, both of which are based on Infra-Metals’ allegation that it owns the
Cranes [DE 1 in 2:09-cv-170]. 3600 Michigan has asserted a number of affirmative defenses to
those claims, including that Infra-Metals abandoned the Cranes from May 2003, when it vacated
the property, to October 2008, when Infra-Metals sought leave to add its replevin and conversion
claims as counterclaims [DE 35 in 2:09-cv-170].
Given this abandonment defense, and other affirmative defenses that 3600 Michigan has
asserted, I cannot finally resolve the issue of the ownership of the Cranes based solely on the
four corners of the Lease.3 Under Indiana law, abandonment is “the relinquishment of property
to which a person is entitled, with no purpose of again claiming it, and without concern as to
who may subsequently take possession . . . .” Right Reason Publications v. Silva, 691 N.E.2d
1347, 1351 (Ind. Ct. App. 1998) (quoting Schaffner v. Benson, 166 N.E. 881, 883 (Ind. 1929)).
“To constitute an abandonment of property, there must be a concurrence of the intention to
abandon and an actual relinquishment.” Id. (quoting Schaffner, 166 N.E. at 883). Moreover,
“[a]n intention to abandon property . . . may be inferred as a fact from the surrounding
circumstances, and it can be shown by acts and conduct clearly inconsistent with any intention to
retain and continue the use or ownership of the property . . . .” Id. (quotation marks and citation
omitted). “Abandonment of property divests the owner of his ownership, so as to bar him from
further claim to it. Except that he, like anyone else, may appropriate it once it is abandoned if it
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3600 Michigan has asserted a number of other affirmative defenses, such as laches,
waiver and the statute of limitations, that are also based on the theory that Infra-Metals has
waited too long to assert an ownership interest in the Cranes. But for purposes of resolving this
motion, I need only address the abandonment defense, since doing so suffices to explain why I
cannot resolve the ownership issue at summary judgment.
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has not already been appropriated by someone else.” Long v. Dilling Mechanical Contractors,
Inc., 705 N.E.2d 1022, 1025 (Ind. Ct. App. 1999) (quoting Schuler v. Langdon, 433 N.E.2d 841,
842 n. 1 (Ind. Ct. App. 1982)).
Under a theory of abandonment, if Infra-Metals relinquished possession of the Cranes, as
3600 Michigan contends it has, then that could have divested Infra-Metals of the ownership
rights accorded to it under the Lease. Accordingly, the ownership of the Cranes cannot be
resolved independently of the resolution of this affirmative defense.
There are fact issues that prevent the Court from resolving the abandonment issue at
summary judgment, including and especially whether Infra-Metals’ conduct is “clearly
inconsistent with any intention to retain and continue the use or ownership of” the Cranes. For
example, 3600 Michigan has attached an affidavit from Jim Buckmaster, who testifies that, after
Infra-Metals vacated the premises, Infra-Metals made no effort to obtain possession of the
Cranes from 2003 through 2007 [DE 109-3]. This conduct certainly appears inconsistent with an
intention to retain ownership of the Cranes. But on the other hand Infra-Metals points out that it
“paid personal property taxes due to the State of Indiana for the Cranes for a period of
approximately ten years while the Lease was in effect” [DE 110 at 7], which points in the
opposite direction. This conflicting evidence, alone, is enough to create a fact issue as to the
abandonment defense, and thus to prevent the Court from resolving that defense at summary
judgment. And because the validity of the abandonment defense affects Infra-Metals’ ownership
rights in the Cranes, the Court also cannot resolve the Crane ownership issue at the summary
judgment stage. Cf. U.S. v. Armstrong, No. 1:06-cv-884, 2008 WL 5531398, at *10 (S.D. Ind.
Jun. 11, 2008) (unable to resolve issue of ownership of personal property at summary judgment
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due to fact questions as to whether property had been abandoned).
CONCLUSION
For the foregoing reasons, Infra-Metals’ motion for partial summary judgment [DE 107]
is GRANTED in part and DENIED in part. Specifically, the Court finds that the Lease and
Termination Agreement unambiguously provide that Infra-Metals owns the Cranes. The Court
therefore will not receive any evidence at trial on the parties’ intent as to the original ownership
of the Cranes at the time the Lease was executed because it is unambiguous. However, given
3600 Michigan’s pending defense of abandonment and other affirmative defenses and the
questions of fact that persist on those issues, I cannot at this time make an ultimate determination
of the ownership of the Cranes at this time. These issues must be resolved at trial. Infra-Metals
is therefore not, at this time, entitled to possession of the Cranes or damages for their fair market
value. Moreover, 3600 Michigan may present evidence at trial concerning the ownership of the
Cranes, based on their affirmative defenses, and evidence concerning 3600 Michigan’s alleged
damages resulting from repairs and upgrades to the Cranes.
SO ORDERED.
ENTERED: April 13, 2011
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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