Preview
Filed: 7/11/2022 9:09 AM
Clerk
Allen County, Indiana
TG
STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT
)SS:
COUNTY OF ALLEN ) CAUSE NO. 02D02-2112-PL-509
1407 LLC, )
)
Plaintiff/Counterclaim )
Defendant, )
)
vs. )
)
VICTORIA L. MCCUISTON, ERIKA T., )
MCCUISTON, MICHELLE BENNETT & )
DREAMER’S HOOKAH LOUNGE, LLC, )
)
Defendants/Counterclaim )
Plaintiffs. )
DEFENDANTS’ STATEMENT OF CONTENTIONS AND PRELIMINARY LIST OF
WITNESSES AND EXHIBITS
COME NOW, Defendants/Counterclaim Plaintiffs, Victoria L. McCuiston, Erika T.
McCuiston, Michelle Bennett, and Dreamers Hookah Lounge, LLC (collectively, “Defendants”),
through undersigned counsel, and respectfully submit the following for their Statement of
Contentions and Preliminary List of Witnesses and Exhibits:
I. STATEMENT OF CONTENTIONS
1. On or about September 6, 2019, Plaintiff and Defendants executed a commercial
real estate lease (“Lease”) for 1407 S. Calhoun Street, Fort Wayne, IN 46802.
2. The parties also executed a Management Agreement (“Agreement”) regarding the
operation of Defendants’ business on the premises, that being a hookah lounge, bar, restaurant,
and barber shop.
3. Defendants’ use of Plaintiff’s liquor license was an essential term of the Lease and
Agreement.
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4. Per the Lease, Plaintiff was only permitted to enter the premises upon advanced
written approval. Otherwise, Defendants were entitled to peaceably enjoy the premises without
interference from Plaintiff.
5. Despite the foregoing, Plaintiff’s owners/managers, officers, and representatives
Dino Zurzolo and Santino Zurzolo (“Zurzolos”), repeatedly violated the terms of the Lease and
interfered with Defendants’ ability to operate their business and use the premises.
6. Zurzolos routinely trespassed and entered the premises without giving proper
advanced prior notice.
7. When Plaintiff appeared unannounced onto the business premises, Zurzolos
repeatedly verbally and physically assaulted Defendants McCuiston and Bennett by aggressively
screaming, cursing, and wildly gesturing in Defendants McCuiston’s and Bennett’s respective
faces, placing them in fear for their safety.
8. Zurzolos acted with the intent to place Defendants McCuiston and Bennett in fear
and distress of immediate harmful contact.
9. Because of Zurzolos’ actions, Defendants McCuiston and Bennett suffered severe
emotional trauma, became terrified of Zurzolos, and were afraid to interact with Zurzolos in their
individual capacities without another person present.
10. Zurzolos unlawful actions constitute civil assault under Indiana law.
11. Moreover, Zurzolos entered the business premises during work hours and refused
to pay the coverage charge to enter or pay their tabs, which caused financial damages to
Defendants.
12. Zurzolos knew that use of Plaintiff’s liquor license was the primary reason
Defendants entered the Lease and Agreement with Plaintiff and that Defendants’ business
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depended upon its sale of liquor. In fact, Defendants specifically discussed this with Zurzolos prior
to entering the Lease, yet nonetheless, Plaintiff repeatedly threatened to evict Defendants and
withdraw their use of the liquor license to force them to undertake unreasonable, additional
obligations.
13. Specifically, Defendants were told that unless they performed certain tasks and
accepted obligations not contemplated by the Lease, such as limiting operating hours, installing
security cameras, hiring security, constructing an outside patio, and amplifying lighting both in
and outside of the business premises, Plaintiff would withhold and/or withdraw Defendants’ use
of the liquor license.
14. Even though there was no contractual obligation to do so, Defendants were forced
to accept Plaintiff’s demands at their own expense.
15. On or about September 23, 2021, Plaintiff threatened to revoke Defendants’ use of
the liquor license unless Defendants carried their own insurance to protect the loss of the liquor
license; obtained their own liquor license for the property; paid a $100,000.00 deposit; obtained a
beer and wine permit; set forth collateral with a clear total value of at least $100,00.00; and/or
purchased the property with the liquor license.
16. Plaintiff made the foregoing demand despite knowing liquor licenses were
unavailable, beer/wine permits were unavailable, and insurance specific to liquor licenses is
nonexistent.
17. Throughout October 2021, Plaintiff demanded Defendants sign a supplemental
agreement with the foregoing terms and threatened to evict Defendants and revoke Defendants’
use of the liquor license unless the supplemental agreement was executed.
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18. Because of Plaintiff’s strong-arm tactics and threats, Defendants were unable to
operate the business as intended and specifically expressed under the Lease and were
constructively evicted from the premises.
19. Further, Defendants repeatedly were forced to pay county taxes/fees/costs not
contemplated in the Lease due to Plaintiff’s failure to properly maintain the premises and timely
pay the taxes/fees/costs.
20. Plaintiff’s actions constitute a breach of the Lease and Management Agreement.
21. Defendants suffered damages as a result of Zurzolos’ breaches, in an amount to be
determined at trial, but at least, the costs and expenses of performing the foregoing extraneous
improvements and obligations and the profits Defendants would have earned if not for Plaintiff’s
breaches.
II. LIST OF WITNESSES
Defendants’ Witness List may include the following:
22. Representative of 1407 LLC, Dino Zurzolo;
23. Representative of 1407 LLC, Santino Zurzolo;
24. Defendant Victoria L. McCuiston;
25. Defendant Erika T. McCuiston;
26. Defendant Michelle Bennett;
27. Any witness listed by Plaintiff in its witness list;
28. Any fact witnesses necessary for impeachment, rebuttal, and/or authentication of
any exhibits;
29. Any witnesses necessary to authenticate any records of Defendants;
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30. Defendants shall reasonably update/supplement this list as witnesses are discovered
to be salient and necessary.
III. LIST OF EXHIBITS
Defendants’ Exhibit List may include the following:
31. The Lease Agreement (“Lease”) for the commercial real estate lease known as1407
S. Calhoun Street, Fort Wayne, IN 46802, executed a Plaintiffs and Defendants on September 6,
2019, and all subsequent amendments.
32. The Management Agreement (“Agreement”) regarding the operation of
Defendants’ business on the premises, that being a hookah lounge, bar, restaurant, and barber shop,
executed by Plaintiffs and Defendants, and all subsequent amendments.
33. Plaintiff’s Complaint for Damages and any documents, items, or any other tangible
things referenced therein;
34. Defendants’ Counterclaim and any documents, items, or any other tangible things
referenced therein;
35. Any pleadings filed herein;
36. Any exhibits identified in discovery exchanged by and between Plaintiff and
Defendants;
37. Any and all documents produced during the course of discovery exchanged by and
between Plaintiff and Defendants;
38. Any and all discovery responses to discovery exchanged by and between Plaintiff
and Defendants;
39. Correspondence between Plaintiff (through its representatives) and Defendants;
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40. Any exhibits necessary for impeachment, rebuttal, and/or authentication of any
documents and/or exhibits;
41. Defendants shall reasonably update/supplement this list as witnesses are discovered
to be salient and necessary.
Respectfully submitted,
P O D L A S K I
ATTORNEYS
/s/Christopher R. Moon
Kevin P. Podlaski, #25168-02
Christopher R. Moon, #36524-45
803 S. Calhoun Street, Suite 110
Fort Wayne, IN 46802
(260) 782-1712
kevin@podlaskilegal.com
chris@podlaskilegal.com
Attorney for Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 11th day of July 2022, a true and accurate
copy of the above and foregoing was filed using IEFS and served upon all counsel of record:
/s/Christopher R. Moon
Christopher R. Moon
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Preview
Filed: 7/11/2022 9:09 AM Clerk Allen County, Indiana TG STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT )SS: COUNTY OF ALLEN ) CAUSE NO. 02D02-2112-PL-509 1407 LLC, ) ) Plaintiff/Counterclaim ) Defendant, ) ) vs. ) ) VICTORIA L. MCCUISTON, ERIKA T., ) MCCUISTON, MICHELLE BENNETT & ) DREAMER’S HOOKAH LOUNGE, LLC, ) ) Defendants/Counterclaim ) Plaintiffs. ) DEFENDANTS’ STATEMENT OF CONTENTIONS AND PRELIMINARY LIST OF WITNESSES AND EXHIBITS COME NOW, Defendants/Counterclaim Plaintiffs, Victoria L. McCuiston, Erika T. McCuiston, Michelle Bennett, and Dreamers Hookah Lounge, LLC (collectively, “Defendants”), through undersigned counsel, and respectfully submit the following for their Statement of Contentions and Preliminary List of Witnesses and Exhibits: I. STATEMENT OF CONTENTIONS 1. On or about September 6, 2019, Plaintiff and Defendants executed a commercial real estate lease (“Lease”) for 1407 S. Calhoun Street, Fort Wayne, IN 46802. 2. The parties also executed a Management Agreement (“Agreement”) regarding the operation of Defendants’ business on the premises, that being a hookah lounge, bar, restaurant, and barber shop. 3. Defendants’ use of Plaintiff’s liquor license was an essential term of the Lease and Agreement. 1 4. Per the Lease, Plaintiff was only permitted to enter the premises upon advanced written approval. Otherwise, Defendants were entitled to peaceably enjoy the premises without interference from Plaintiff. 5. Despite the foregoing, Plaintiff’s owners/managers, officers, and representatives Dino Zurzolo and Santino Zurzolo (“Zurzolos”), repeatedly violated the terms of the Lease and interfered with Defendants’ ability to operate their business and use the premises. 6. Zurzolos routinely trespassed and entered the premises without giving proper advanced prior notice. 7. When Plaintiff appeared unannounced onto the business premises, Zurzolos repeatedly verbally and physically assaulted Defendants McCuiston and Bennett by aggressively screaming, cursing, and wildly gesturing in Defendants McCuiston’s and Bennett’s respective faces, placing them in fear for their safety. 8. Zurzolos acted with the intent to place Defendants McCuiston and Bennett in fear and distress of immediate harmful contact. 9. Because of Zurzolos’ actions, Defendants McCuiston and Bennett suffered severe emotional trauma, became terrified of Zurzolos, and were afraid to interact with Zurzolos in their individual capacities without another person present. 10. Zurzolos unlawful actions constitute civil assault under Indiana law. 11. Moreover, Zurzolos entered the business premises during work hours and refused to pay the coverage charge to enter or pay their tabs, which caused financial damages to Defendants. 12. Zurzolos knew that use of Plaintiff’s liquor license was the primary reason Defendants entered the Lease and Agreement with Plaintiff and that Defendants’ business 2 depended upon its sale of liquor. In fact, Defendants specifically discussed this with Zurzolos prior to entering the Lease, yet nonetheless, Plaintiff repeatedly threatened to evict Defendants and withdraw their use of the liquor license to force them to undertake unreasonable, additional obligations. 13. Specifically, Defendants were told that unless they performed certain tasks and accepted obligations not contemplated by the Lease, such as limiting operating hours, installing security cameras, hiring security, constructing an outside patio, and amplifying lighting both in and outside of the business premises, Plaintiff would withhold and/or withdraw Defendants’ use of the liquor license. 14. Even though there was no contractual obligation to do so, Defendants were forced to accept Plaintiff’s demands at their own expense. 15. On or about September 23, 2021, Plaintiff threatened to revoke Defendants’ use of the liquor license unless Defendants carried their own insurance to protect the loss of the liquor license; obtained their own liquor license for the property; paid a $100,000.00 deposit; obtained a beer and wine permit; set forth collateral with a clear total value of at least $100,00.00; and/or purchased the property with the liquor license. 16. Plaintiff made the foregoing demand despite knowing liquor licenses were unavailable, beer/wine permits were unavailable, and insurance specific to liquor licenses is nonexistent. 17. Throughout October 2021, Plaintiff demanded Defendants sign a supplemental agreement with the foregoing terms and threatened to evict Defendants and revoke Defendants’ use of the liquor license unless the supplemental agreement was executed. 3 18. Because of Plaintiff’s strong-arm tactics and threats, Defendants were unable to operate the business as intended and specifically expressed under the Lease and were constructively evicted from the premises. 19. Further, Defendants repeatedly were forced to pay county taxes/fees/costs not contemplated in the Lease due to Plaintiff’s failure to properly maintain the premises and timely pay the taxes/fees/costs. 20. Plaintiff’s actions constitute a breach of the Lease and Management Agreement. 21. Defendants suffered damages as a result of Zurzolos’ breaches, in an amount to be determined at trial, but at least, the costs and expenses of performing the foregoing extraneous improvements and obligations and the profits Defendants would have earned if not for Plaintiff’s breaches. II. LIST OF WITNESSES Defendants’ Witness List may include the following: 22. Representative of 1407 LLC, Dino Zurzolo; 23. Representative of 1407 LLC, Santino Zurzolo; 24. Defendant Victoria L. McCuiston; 25. Defendant Erika T. McCuiston; 26. Defendant Michelle Bennett; 27. Any witness listed by Plaintiff in its witness list; 28. Any fact witnesses necessary for impeachment, rebuttal, and/or authentication of any exhibits; 29. Any witnesses necessary to authenticate any records of Defendants; 4 30. Defendants shall reasonably update/supplement this list as witnesses are discovered to be salient and necessary. III. LIST OF EXHIBITS Defendants’ Exhibit List may include the following: 31. The Lease Agreement (“Lease”) for the commercial real estate lease known as1407 S. Calhoun Street, Fort Wayne, IN 46802, executed a Plaintiffs and Defendants on September 6, 2019, and all subsequent amendments. 32. The Management Agreement (“Agreement”) regarding the operation of Defendants’ business on the premises, that being a hookah lounge, bar, restaurant, and barber shop, executed by Plaintiffs and Defendants, and all subsequent amendments. 33. Plaintiff’s Complaint for Damages and any documents, items, or any other tangible things referenced therein; 34. Defendants’ Counterclaim and any documents, items, or any other tangible things referenced therein; 35. Any pleadings filed herein; 36. Any exhibits identified in discovery exchanged by and between Plaintiff and Defendants; 37. Any and all documents produced during the course of discovery exchanged by and between Plaintiff and Defendants; 38. Any and all discovery responses to discovery exchanged by and between Plaintiff and Defendants; 39. Correspondence between Plaintiff (through its representatives) and Defendants; 5 40. Any exhibits necessary for impeachment, rebuttal, and/or authentication of any documents and/or exhibits; 41. Defendants shall reasonably update/supplement this list as witnesses are discovered to be salient and necessary. Respectfully submitted, P O D L A S K I ATTORNEYS /s/Christopher R. Moon Kevin P. Podlaski, #25168-02 Christopher R. Moon, #36524-45 803 S. Calhoun Street, Suite 110 Fort Wayne, IN 46802 (260) 782-1712 kevin@podlaskilegal.com chris@podlaskilegal.com Attorney for Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 11th day of July 2022, a true and accurate copy of the above and foregoing was filed using IEFS and served upon all counsel of record: /s/Christopher R. Moon Christopher R. Moon 6