govinfo:USCOURTS-ohsd-2_22-cv-01938-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
TRUSTEES MAIN/270 LLC, :    
 : 
Plaintiff, : Case No. 2:22-cv-1938 
 :   
 v.      : Chief Judge Algenon L. Marbley 
 :        
APPLIANCESMART, INC., et al.,   : Magistrate Judge Deavers 
 :  
                       Defendants. : 
 : 
 
OPINION & ORDER 
This matter comes before the Court on Defendants’ Motion for Partial Summary 
Judgment (ECF No. 51). For the follo wing reasons, Defendants’ Motion is GRANTED in 
part and DENIED in part.  
I.  BACKGROUND 
This case arises from a lease agreement (hereinafter  the “Agreement”) between 
Plaintiff Trustees Main/270 LLC (“Truste es Main” or “Plaintiff”) and Defendants 
ApplianceSmart, Inc., et al., (“ApplianceSmart” or “Defendant ”). Plaintiff is an Ohio LLC. 
(ECF No. 1). Defendant is a Minnesota corporation. ( Id.). On June 3, 2008, Trustees Main’s 
predecessor in interest, Schottenstein Trustees, an Ohio general partnership, entered into a 
lease agreement with Defendant’s predecessor in interest, ApplianceRecyling Centers of 
America, now known as co-Defendant JANONE, Inc., at a location within a commercial 
shopping center at 6080 East Main Street, Columbus, Ohio (the “Premises”). (Id.).  
On April 25, 2017, the parties entered in to a Lease Extension and Modification 
Agreement extending the term of  the lease to June 30, 2025. ( Id.). In addition to the 
extension, JANONE signed a guar anty of lease, in which it guaranteed that certain 
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obligations of Defendant Applic anceSmart would be met in the event of a default under the 
lease. (Id.).  
On September 27, 2019, Trustees Main, A pplianceSmart, and JANONE executed a 
Second Lease Modification Agreement and Ratification of Guaranty by Converted 
Corporation. (ECF No. 51 at 3).  This Agreement resolved delinquent rent and tenant charges 
of $141,048.18, accounted for the conversion of th e guarantor Appliance Recycling Centers 
of America, Inc. from a Minnesota Corporation to a Nevada Corporation known as JANONE, 
Inc., and ratified JANONE’s obligation as guarantor, notwithstanding the conversion. ( Id.). 
Then, on December 14, 2021, the parties entered in to a Third Lease Modification Agreement 
and Ratification of Guaranty. ( Id.). This third Agreement again resolved delinquent rent and 
tenant charges of $185,323.75 and ratified and affi rmed JANONE’s obligations as guarantor 
of the lease. ( Id.). The First Amendment to Lease Ag reement, the Lease Extension and 
Modification Agreement, the Second Lease Mo dification Agreement, and the Third Lease 
Modification Agreement, are referred to jointly as the “Agreement.” 
In the Agreement, ApplianceSmart agreed to pay Plaintiff fixed rent installments from 
2017 to 2025. (Id.). At the beginning of February 2022, however, ApplianceSmart abandoned 
the Premises and ceased paying rent. ( Id.). On February 10, 2022, Trus tees Main served a 
Notice of Default to both App lianceSmart and JANONE informing them of their obligations 
under the Agreement. (ECF No. 51). ApplianceSmart and JANONE exceeded the cure period 
and Trustees Main initiated this action on April 11, 2022. (Id.).  
On July 17, 2023, Defendants filed a Motion for Partial Judgment on the Pleadings. 
(ECF No. 39). Defendants asserted that the contractual provision reli ed on by Plaintiff is 
inapplicable, and as a result, Plaintiff fails to state a claim. Plaintiff responded by articulating 
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that even if the provision is inapplicable, its Complaint meets the pleading requirements set 
forth in Rule 8 of the Federal Rules of Civ il Procedure. This Court found that Plaintiff 
sufficiently alleged the requisite elements of a breach of contract a nd adequately pleaded a 
cause of action. (ECF No. 59 at 6). Accordingly, this Court denied Defendants’ Motion under 
Rules 8(a) and 12(c) of the Federal Rules of Civil Procedure. (Id.).  
Plaintiff now brings the present Motion for Partial Summary Judgment. (ECF No. 51). 
ApplianceSmart has properly responded (ECF N o. 54) and Plaintiff has replied (ECF No. 
57). The matter is now ripe for review. 
II.  STANDARD OF REVIEW 
Federal Rule of Civil Pro cedure 56(a) provides, in re levant part, that summary 
judgment is appropriate “if the movant shows that there is no genuine issue as to any material 
fact and the movant is entitled to judgment as a matter of law. ”  In evaluating such a motion, 
the evidence must be viewed in the light mo st favorable to the non- moving party, and all 
reasonable inferences must be draw n in the non-moving party’s favor. U.S. Sec. & Exch. 
Comm’n v. Sierra Brokerage Servs., Inc. , 712 F.3d 321, 327 (6th Cir. 2013). This Court then 
asks “whether ‘the evidence presents a sufficient disagreement to require submission to a jury 
or whether it is so one-sided that one pa rty must prevail as a matter of law.’” Patton 
v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson v. Liberty Lobby , 477 U.S. 
242, 251–52 (1986)). “[S]ummary judgment will not lie if the dispute is about a material fact 
that is ‘genuine,’ that is, if the evidence is su ch that a reasonable jury could return a verdict 
for the non-moving party.” Anderson, 477 U.S. at 248. Evidence that is “merely colorable” or 
“not significantly probativ e,” however, is not enough to defeat summary judgment. Id. at 
249–50.    
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On a motion for summary judgment, the initial burden rests upon the movant to 
present the Court with law and ar gument in support of its moti on, as well as to identify the 
relevant portions of “‘the pleadings, depositi ons, answers to interroga tories, and admissions 
on file, together with the affidavits, if any,’ which it believes demons trate the absence of a 
genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quoting 
Fed. R. Civ. P. 56). If this initial  burden is satisfied, the burden then shifts to the non-moving 
party to set forth specific fa cts showing that there remain s a genuine issue for trial. See Fed. 
R. Civ. P. 56(e); see also Cox v. Ky. Dep’t of Transp. , 53 F.3d 146, 150 (6th Cir. 1995) 
(finding that after the burden sh ifts, the non-movant must “produ ce evidence that results in a 
conflict of material fact to be  resolved by a jury”). In consid ering the factual allegations and 
evidence presented in a motion for summary judgm ent, the Court “views factual evidence in 
the light most favorable to th e non-moving party and draws all r easonable inferences in that 
party’s favor.” Barrett v. Whirlpool Corp. , 556 F.3d 502, 511 (6th Cir. 2009). Self-serving 
affidavits alone, however, are not enough to creat e an issue of fact sufficient to survive 
summary judgment. Johnson v. Wash. Cnty. Career Ctr. , 982 F. Supp. 2d 779, 788 (S.D. 
Ohio 2013). “The mere existence of a scint illa of evidence to s upport [the non-moving 
party’s] position [is] insufficient; there must be  evidence on which th e jury could reasonably 
find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). 
III.  LAW & ANALYSIS 
A. There is No Dispute Regarding Breach of Lease and Breach of Guaranty 
Under Ohio law, “a breach of contract cl aim requires a plaintiff to show: (1) the 
existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) 
damage or loss to the plaintiff.” DN Reynoldsburg v. Shoe Show, Inc. , No. 2:18-CV-1190, 
2020 WL 5797828, at *2 (S.D. Ohio 2020). When a contract contains  a provision for a 
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guarantor, the liability of a guarantor exis ts after default by the primary debtor. New Mkt. 
Acquisitions, Ltd. v. Powerhouse Gym , 154 F. Supp. 2d 1213, 1224 (S.D. Ohio 2001). Here, 
the Parties do not dispute that Defendants failed  to pay rent, tenant ch arges, and late charges 
beginning from February 1, 2022 to March 26 , 2023. (ECF No. 57 at 2). ApplianceSmart 
further admits that  it owed rent and tenant charges of  $155,267.15 to Plaintiff as of June 1, 
2022. (Id.). The Third Lease Modification Agreement a nd Ratification of Guaranty states in 
part that JANONE “agrees to i ndemnify and hold Landlord harm less from any loss, liability, 
damage or expense (including reasonable attorney's fees) arising from the failure of Tenant to 
perform any of the Tenant Obligations and/or the enforcement of the Guaranty.” (ECF No. 51 
at 6). Rule 56(a) turns on whether there is a genuine issue of material fact present in a given 
matter. Because the facts here  are undisputed, no such genuine  issue exists. As a result, 
Defendants’ Motion for Partial Su mmary Judgment (ECF No. 51) is GRANTED in part as 
to the unpaid rent and tenant charges of $155,267.15.  
B. Defendants Have Fulfilled the Pleading Requirements 
Defendants argue that Plaint iff has not fulfilled its pleading requirement alleging 
breach of contract in Counts I and II of its Co mplaint because Plaintiff relies on § 23(a)(i) of 
the Agreement. (ECF No. 54 at 2). Defendants clai m that § 23(a)(i) is inapplicable because it 
only applies in the event of ter mination by Plaintiff, and Plaintif f did not terminate the lease. 
(Id.). This Court previously disposed of this  issue in its March 29, 2024 Opinion & Order 
(ECF No. 59) denying Defendants’ Motion for Pa rtial Judgment on the Pleadings. (ECF No. 
39). This Court found that Plaint iff met the pleading requirements set forth in Rule 8 of the 
Federal Rules of Civil Procedure and alleged sufficient facts to plead the existence of a cause 
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of action. (ECF No. 59 at 6). Accordingly, this Court will not re -examine Defendants’ 
argument on this point. 
C. Mitigation 
The remaining dispute at this stage concer ns the issue of mitigation. Under Ohio 
common law, when a tenant defaults, a landl ord has a duty to mi tigate its damages by 
attempting to relet the premises. See Dennis v. Morgan , 732 N.E. 2d 391, 394 (2000). The 
landlord is also generall y entitled to recover reasonable ex penses incurred in mitigating its 
damages. See F. Enterprises, Inc. v. Kentucky Fried Chicken Corp. , 351 N.E. 2d 121, 124-27 
(1976); Hines v. Riley, 717 N.E. 2d 1133, 1135-36 (Ohio App. 4th Dist. 1998).  
Defendants here assert a fail ure to mitigate as an affirm ative defense to Plaintiff’s 
Complaint. (ECF No. 8 at 3) . Plaintiff responds by first arguing that the Lease Agreement 
defines its obligation to mitigate, and that ther e is no genuine issue of  material fact that 
Plaintiff met that obligation. (ECF No. 51 at 10). The Lease Agreement states: 
Mitigation of Damages. If Landlord terminates this Lease or Tenant’s right to 
possession, Landlord shall have the oblig ation to mitigate damages to the 
extent required by applicable law. If La ndlord is required by applicable law to 
mitigate damages under this Lease: (1) Landlord shall be required only to use 
commercially reasonable efforts to mitig ate, which shall not exceed such 
efforts as Landlord generally uses to lease other premises  in the Shopping 
Center, (2) Landlord will no t be deemed to have fa iled to mitigate and such 
mitigation shall be deemed complete if Landlord leases all portions of the 
Premises. 
 
(ECF No. 1-4 at 16). Plaintiff ma intains that it used commercial ly reasonable efforts to relet 
the premises and that it therefore met its  obligation to mitigate its damages. ( Id.). Defendants 
disagree, however, arguing that  both JANONE and Live Ventur es, Inc. (“Live Ventures,” 
ApplianceSmart’s parent company), made multiple attempts to find a replacement tenant, but 
that Defendants frustrated all of these effort s. (ECF No. 54 at 4- 5). Specifically, JANONE 
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offered ARCA Recycling, Inc. as a potential tenant, while Live Ventures offered both 
Flooring Liquidators and Vintage Stock. ( Id. at 5). The reasonableness of a landlord’s efforts 
to mitigate its damages is determined by the trial court. Frenchtown Square P’ship 
v. Lemstone, Inc ., 99 Ohio St. 3d 254, 255. Accordingly, this Court will examine each 
potential tenant in turn. 
JANONE first offered to ha ve its wholly-owned subsid iary, ARCA Recycling, Inc., 
occupy the Premises under the same terms and c onditions as the existing Lease, either as a 
new tenant or as a sublessee. (ECF No. 54 at 5). Defendants aver that ARCA is an established 
recycling business with eighteen locations throughout the United States and that it could have 
operated under the ApplianceSmart brand so that  none of the signage would have needed to 
be changed. ( Id.). Defendants further argue that Plai ntiff attempted to impose unreasonable 
terms on ARCA, requiring it to “make an Early Termination Deposit of six months [sic] rent, 
which the new tenant would forfeit if Landlord decided to terminate the lease early.” (ECF 
No. 57 at 10). Plaintiff admits that it imposed  the Early Termination Deposit and argues that 
the terms were the result of lessons learned from previous dealings with JANONE, who 
repeatedly failed to pay rent on behalf of ApplianceSmart in 2019, 2021, and 2022. (Id.).  
The Early Termination Deposit was designe d to protect the Trustees Main in 
two scenarios. The first, statistically likely, scenario is that the tenant and 
guarantor would default in the payment of rent and charges for the fourth time. 
The defaults in 2019 and 2021 were not cured until the amounts owed reached 
$141,048.18 and $185,323.75. The requested depos it of six months’ rent, 
would be approximately $177,455.04 based on the average monthly charges of 
$29,575.84 … Thus, the proposed deposit wa s sought to provide security 
roughly in the amount of the prior defaul ts if the tenant and guarantor again 
elected to stop paying rent owed under the lease.  
 
The second scenario … arises from th e crucial context that the defendants’ 
own proposed lease term for ARCA wa s limited to: “ARCA Recycling would 
stay as long as necessary to mitigate the overall claim of guaranty the landlord 
has against JanOne Inc. My folks w ould cooperate with the potential re-
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leasing efforts and would continue to pay at the current rent until the landlord 
could secure another tenant.” See Hubbard Declaration at ¶3.  
 
(ECF No. 57 at 10-11). Plainti ff alleges that in response to its proposed Early Termination 
Deposit, Defendants rejected the proposal and did not make any count erproposal to address 
their concerns. (Id. at 12-13). Plaintiff argues that Defendants failed to negotiate, and that this 
failure destroys Defendants’ stance that Plain tiff failed to mitigate.  Defendants, however, 
argue that they did indeed offer to comply with the Early Termination Deposit conditions and 
pay all back rent due from ApplianceSmart, an d that Plaintiff instead elected to wait for a 
larger, more national retailer to make an offer for the Premises. (ECF No. 54 at 6). 
Next, Live Ventures offere d to have one of its portf olio companies, Flooring 
Liquidators, occupy the Premises under the same term s and conditions as the existing Lease, 
again either as a new tenant or as a suble ssee. (ECF No. 54 at 5) . Defendants claim that 
Flooring Liquidators is an estab lished flooring retailer that operates in twenty-two retail 
locations in multiple states. ( Id.). Plaintiff points out that Defe ndants fail to include the fact 
Live Ventures was at the time, and remains, a defendant in Securities and Exchange 
Commission v. Live Ventures Incorporated et al ., Case No. 2:21-cv-1433, United States 
District Court, District of Nevada (Las Vegas). (ECF No. 57 at  13). Live Ventures is charged 
with “multiple financial, disclosure, and reporti ng violations related to inflated income and 
earnings per share, stock pr omotion and secret trading,  and undisclosed executive 
compensation,” including misrepresenting the date on which it had acquired a new subsidiary 
from ARCA, the very tenant that JANONE first proposed. ( Id.). Despite this, Plaintiff 
investigated the feasibility of Flooring Liquidators as a tenant. Plaintiff asked questions 
regarding the square footage of the average Flooring Liquidators lo cation, the type of 
business it is, the ownership structure, proj ected revenue, sales records for comparable 
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locations, and other si milar information. ( Id. at 14). Yet Defendants were unable to provide 
the requested information, nor did they contact Plaintiff to schedule a call with relevant 
personnel. ( Id. at 15). Plaintiff argues that this fa ilure to participate again defeats any 
assertion that Plaintiff failed to mitigate. 
Live Ventures then offered to have anothe r one of its portfolio companies, Vintage 
Stock, occupy the Premises under the same term s and conditions as the existing Lease, once 
again either as a new tenant or as a suble ssee. (ECF No. 54 at 5) . Defendants claim that 
Vintage Stock is an established entertainment re tailer with seventy locations, some of which 
occupy spaces in excess of 50,000 square feet, maki ng it a particularly suitable tenant for the 
space at issue here. ( Id.). Plaintiff, however, alleges that  its personnel have no “recollection 
of such a proposal, nor is there any indication of such a proposal in any of the emails or 
documents associated with the defenda nts’ breach or this litigation.” ( Id. at 16). Plaintiff 
further asserts that if “Vintage Stock – as a Li ve Ventures company and thus also subject to 
the SEC lawsuit – had been put forward, the very same questions presented to Flooring 
Liquidators that went unansw ered would have been presented to Vintage Stock.” ( Id.). As a 
result, Plaintiff argues that it cannot be held to have failed to mitigate its damages with regard 
to these tenants. 
Failure to mitigate is an af firmative defense. As such, the defendant typically bears 
the burden in proving that a landlord failed to mitigate its damages. Shonac Corp. v. Maersk, 
Inc., 159 F. Supp. 2d 1020 (S.D. Ohio 2001). Here , however, the Lease Agreement provides 
that damages for breach are to be offset by su ms received under a new lease (ECF No. 51 at 
2). In these situations, the plaintiff may in stead bear the burden in  proving its mitigation 
efforts. Chuang Dev. LLC v. Raina, 2017-Ohio-3000, ¶¶ 64-67 (Ct. App.); see also Jayashree 
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Rests., LLC v. DDR PTC Outparcel LLC , 2016-Ohio-5498, ¶¶ 21-22 (Ct. App.) (finding that 
“no court can be reasonably certain what the damages are” without evidence of the plaintiff’s 
mitigation efforts).  
The duty of a landlord to mitigate its damages by attempting to relet the premises in 
the event of default by the tenant is well-established. See Dennis v. Morgan, 732 N.E. 2d 391, 
394 (2000). This duty remains present even if the damages are “caused by a lessee’s breach 
of a commercial lease if the le ssee abandons the leasehold. Th e lessor’s efforts to mitigate 
must be reasonable, and the reasonableness should be determined by the trial court.” 
Frenchtown Square P’ship v. Lemstone, Inc ., 99 Ohio St. 3d 254, 255. Here, Plaintiff had a 
duty to mitigate its damages und er contract law. Defendants ar gue that Plaintiff failed to 
mitigate its damages by rejecting all three  of the alternative tena nts and imposing “unusual 
and unreasonable” conditi ons on the replacement tenant s in the form of the Early 
Termination Deposit. (ECF No. 54 at 6). The qu estion of the reasonableness of Plaintiff’s 
alleged efforts is to be determined by this Court. 
Plaintiff in this case was pr esented with three separate opportunities to re-let the 
Premises. In the first, Plaint iff attempted to place an undue burden on ARCA in the form of 
an Early Termination Deposit for back rent. This  Court finds it unreasonable to place such a 
condition on a new tenant, in spite of JANONE’s past behavior. In Cobblestone Square II Co. 
v. L&B Food Servs., the Ohio Court of Appeals ruled th at where a commercial landlord “was 
unwilling to lease out the premises without bei ng paid for the two months of outstanding 
rent,” that landlord failed to mitigate it s damages. 2011-Ohio-4817, ¶ 37 (Ct. App.). The 
Court went on to conclude: 
If his testimony is believed, [the landlord ] improperly hindered the leasing of 
the space by requiring the other company to  pay the back rent owed by [the 
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tenant] … The nonbreaching party does not have a right to be made whole as 
a condition precedent to its efforts in mitigating damages. To hold otherwise 
would defeat the concept of mitigation altogether.  
 
Id. at 141. Here, as in Cobblestone Square II Co. , the landlord sought to improperly hinder 
the leasing of the space by requiring ARCA to pay not two – but six – months’ worth of back 
rent owed by ApplianceSmart in addition to all legal fees and related charges. (ECF No. 51-
1 at 3). Further, the Early Termination Deposit stipulated that ARCA would forfeit its deposit 
if Plaintiff terminated the Lease. Put simply, the tenant could be  deprived of its $177,455.04 
deposit if the landlord decided for any reason to terminate the Lease. As set forth by the Ohio 
Court of Appeal, this C ourt finds that Plaintiff Trustees Main does not  have a right to be 
made whole before it mitigates its damages.  
Further still, Defendants argue that in a showing of good faith, JANONE and Live 
Ventures still offered to comply with the Early Termination Deposit conditions and pay all 
back rent due from ApplianceSmart. (ECF No. 54 at 6). Plaintiff, however, elected to wait for 
a larger, more national retailer to make an offer for the Premises. ( Id.). While not 
authoritative in this District, the Supreme Court of Vermont in O’Brien v. Black  ruled that 
waiting for a more attractive na tional tenant was an insufficient defense for a landlord 
arguing that it mitigated its damages: 
When tenant abandoned the leased premis es, landlord refused to entertain an 
offer from a prospective tenant. Inst ead, landlord decided to wait for a 
national chain store tenant – a tenant that could pay higher rent than the 
breaching tenant … The issue is whether,  having made the decision to refuse 
to entertain a prospective tenant and to  pursue a national tenant, the landlord 
can charge the abandoning tenant with th e risk and cost of its decision. We 
agree with the trial court’s conclusion that landlord cannot impose the cost of 
its decision on the breaching tenant and recover rent for the waiting period 
from tenant. 
 
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162 Vt. 448, 455 (1994). This Court agrees. Viewing the evidence in the light most favorable 
to Defendants as this Court must at this stage, it  is clear that a genuine issue of material fact 
is present as to Plaintiff’s decision to wait for a national retailer. Sierra Brokerage Servs., 
Inc., 712 F.3d at 327. If Plaintif f did indeed attempt to pl ace improper conditions on the 
tenant it was offered and to cherry-pick its replacement tenants, it will have failed to mitigate.  
Regarding Live Ventures, genuine issues of material fact exist as to Flooring 
Liquidators and Vintage Stock. Wi th respect to Flooring Liquida tors, Plaintiffs argue that 
Defendants did not provide the re quested business information or contact Pl aintiff to discuss 
the proposal for Flooring Liquidators to take ov er the tenancy. (ECF No. 57 at 15). Plaintiff 
argues that this failure to participate again defeats any assertion that Plaintiff failed to 
mitigate. Plaintiff, however, be ars the burden of prov ing its mitigation e fforts in this case 
because the Lease Agreement provides that da mages for breach are to be offset by sums 
received under a new lease. Raina, 2017-Ohio-3000, ¶¶ 64-67. Plaintiff fails to meet this 
burden; Plaintiff presents no evidence of its ef forts to contact Defend ants to pursue or 
otherwise advance the deal. The reasonableness of Plaintiff’s e fforts is for this Court to 
determine, and there is no evidence before this Court of so much as a follow-up on Plaintiff’s 
part. Frenchtown Square P’ship , 99 Ohio St. 3d at 255. The ev idence also displays tension 
regarding negotiations that t ook place concerning Vintage Stoc k. Defendants claim to have 
submitted a proposal to Plaint iff for Vintage Stock to occ upy the Premises, but Plaintiff 
alleges that its personnel have no “recollection of such a proposal, nor is there any indication 
of such a proposal in an y of the emails or docum ents associated with the defendants’ breach 
or this litigation.” (ECF No. 54 at 5). To be sure, there can be no failure to mitigate if a 
landlord was not presented with the opportunity to  mitigate in the first place. Plaintiff alleges 
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in essence that Live Ventures never offered Vintag e Stock as a tenant. If this is true, Plaintiff 
did not fail to mitigate regarding Vintage Stock. 
This Court need not reach th e issue of Live Ventures’ st atus as a defendant in an 
ongoing District of Nevada proceeding at th is stage. The Parties make no argument 
concerning the matter. Indeed, Plaintiff firmly  indicated its intention to proceed in its 
investigation of the feas ibility of Flooring Liquidators desp ite this information. (ECF No. 57 
at 14). Further, “summary judgm ent in favor of the party with the burden  of persuasion is 
inappropriate when the evidence is susceptible to different interpretations or inferences by the 
trier of fact.” Rheinfrank v. Abbott Lab’ys, Inc. , 119 F. Supp. 3d 749, 786 (S.D. Ohio 2015), 
aff’d, 680 F. App’x 369 (6th Cir. 2017). Here, th e evidence presented is susceptible to 
different interpretations by a trier of fact: either Plaintiff’s negotiation with Flooring 
Liquidators was reasonable, or it was not; either Defendants put  Vintage Stock forward as a 
proposed tenant, or they did not. Such tens ion in the evidence demands that summary 
judgment be denied and that the factfinder must “resolve the parties’ differing versions of the 
truth at trial.” Gibson v. Foltz, 963 F. 2d 851, 853 (6th Cir. 1992). 
Considering the evidence submitted before it, this Court finds that genuine disputes of 
material fact exist as to the three tenants proposed by Defendants. The issues of the Early 
Termination Deposit, the decision to wait for a national retailer, the ne gotiations concerning 
Flooring Liquidators, and the alleged proposal concerning Vintage Stock all contain disputed 
facts that would be improper to  dispose of at this stage. As such, summary judgment is 
inappropriate.  
IV .  CONCLUSION 
For the reasons set forth above, Defendants’  Motion for Partial Summary Judgment is 
GRANTED in part and DENIED in part. (ECF No. 51). The Motion is GRANTED in part as 
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to the unpaid rent and tenant charges of $155,267.15 and the Motion is DENIED in part as to 
the issue of whether Plaintiff failed to mitigate. 
 IT IS SO ORDERED. 
                                                                                  
     ALGENON L. MARBLEY 
     CHIEF UNITED STATES DISTRICT JUDGE 
DATED:  August 27, 2024 
 
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