Trial over disputed lease agreement reset

By David Yates | Jul 2, 2013

Although the case was set to go to trial this summer, litigation brought by the owners of Lucky Bounce Zone, who allege Kimco Dowlen Town Center is overcharging them and failing to repair their leaky roof, has been reset for trial February 2014.

As previously reported, Dan D. Soto, Erin R. Soto and Lucky Bounce Zone filed a lawsuit April 12, 2012, in Jefferson County District Court against Kimco Dowlen Town Center-II LP.

Court records show on Oct. 24 a discovery control plan order was entered in the case, slating the litigation for a June 2013 trial.

However, on March 27 an agreed amended discovery control plan order was entered, pushing trial back to the court’s February 2014 docket.

The plaintiffs allege they began leasing property from Kimco on June 11, 2008. In an amendment to the lease entered into on Aug. 19, 2009, Kimco agreed to provide roofing repair work on the premises, according to the complaint.

Although the roofing repair work was completed, the roof continues to leak, the suit states.

“Despite repeated requests that Defendant fix the leaking roof and defendant bills Plaintiff for repair costs as part of the Common Area Maintenance fees,” the complaint says.

Since the leaking roof issues, the plaintiffs claim their Common Area Maintenance fees have substantially increased and are currently “set at an unconscionable level,” the suit states.

Because of the roof leak, the premises Lucky Bounce Zone is occupying is now dangerous and is not conducive for business, its owners claim.

In addition, instead of paying a portion of property taxes for the space it is occupying, Lucky Bounce is being billed for all property taxes in its Common Area Maintenance fee, according to the complaint.

The plaintiffs allege breach of contract. They also seek a declaratory judgment that allows them to terminate their lease contract or, in the alternative, a temporary restraining order that will prohibit Kimco from locking them out of their premises if they refuse to pay their Common Area Maintenance fees.

Barrett P. Lindsay of Lindsay, Lindsay and Parsons in Beaumont represents them.

Judge Bob Wortham, 58th District Court, is assigned to the case.

Case No. A192-295

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