Abelmann et al v. SmartLease USA, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Dan Abelmann and the Estate of Leanne 	)
Abelmann, as successor-in-interest to 	)
Leanne Abelmann, deceased 	)
)
Plaintiffs and Counterclaim 	)
Defendants, 	) 	ORDER GRANTING IN PART
) 	AND DENYING IN PART
vs. 	) 	PLAINTIFFS’ MOTION FOR
) 	SUMMARY JUDGMENT
SmartLease USA, LLC, 	)
)
Defendant, Counterclaimant, and 	)
Third-Party Plaintiff 	)
) 	Case No. 4:14-cv-040
vs. 	)
)
Executive Housing Solutions, LLC; Ray 	)
Wurth, Don Gibson, and Richard Church 	)
a/k/a Chad Church, d/b/a Executive 	)
Housing Solutions, LLC; Ray Wurth, Don 	)
Gibson, Richard Church a/k/a Chad Church, 	)
)
Third-Party Defendants 	)
Before the court is plaintiffs’ motion for partial summary judgment and the court-permitted
supplement. Plaintiffs seek an order that would do the following:
1. 	declare that defendant SmartLease materially breached and failed to perform its
obligations under its lease with plaintiffs;
2. 	declare that plaintiffs properly terminated the lease;
3. 	evict SmartLease and its subtenant, third-party defendant Executive Housing
Solutions, LLC; and
4. 	dismiss each count of SmartLease’s counterclaim.
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Case 4:14-cv-00040-CSM Document 162 Filed 12/04/19 Page 1 of 3

The court has carefully reviewed the pleadings, briefs, and record currently before it. With
respect to plaintiffs’ claims for relief, there appears to be material facts in dispute that preclude the
court from granting summary judgment with respect to any of the claims, particularly when
considering SmartLease’s affirmative defenses.
As for SmartLease’s counterclaim, the court reaches the same conclusion except for Count
Four. SmartLease has now conceded it has no claim for tortious interference with its contract with
DG Development since the contract was mutually rescinded. And, since that contract appears to be
the only subject of Count Four, plaintiffs are entitled to a dismissal of that claim.
Defendant also argues that plaintiffs’ concession with respect to Count Four also requires
a dismissal of Count Five. The court disagrees. While the court is skeptical about any claim of
tortious interference with SmartLease’s business relationship with the Hegg Companies, it is not
prepared based on the record currently before it to dismiss Count Five as it applies to that purported
business relationship. Further, while perhaps not a model of pleading, it does appear that the Count
Five claim of tortious interference with business relationship goes beyond whatever relationship
SmartLease had with the Hegg Companies.
In reaching the foregoing conclusions, the court is expressing no opinion with respect to the
relative merits any of the claims and defenses of any of the parties. As the court expressed during
the last telephone conference, none of the parties should feel confident with respect to their
positions. Further, given the complexity of the case and the convoluted dealings of the parties, the
risk of court error is not insubstantial, with possible result being that any final resolution of this case
could be years down the road following an appeal, a possible retrial, and subsequent appeal. The
parties would be well advised to try settle this matter.
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Based on the foregoing, plaintiffs’ motion for summary judgment (Doc. No. 135 as
supplemented by Doc. No. 158) is GRANTED IN PART and DENIED IN PART as follows:
1. 	Count Four of defendant SmartLease’s counterclaim is DISMISSED.
2. 	The remainder of plaintiffs’ motion is DENIED.
IT IS SO ORDERED.
Dated this 4th day of December, 2019.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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