Unless a District Court judge agrees to a request to stay his order pending appeal, the Kmart store in Sunshine Mall must close its doors by the end of September for violating its lease.
On Aug. 1, District Court Judge Raymond Finch ruled that Kmart violated its lease with the owners of Sunshine Mall by selling grocery items. Finch ruled that Kmart must vacate the mall by Sept. 29 and must pay $325,000 in damages. He denied the argument of the mall owners that Kmart should turn over profits made from selling the food items.
Kmart, based in Troy, Mich., is represented by the St. Croix law firm of Bryant, Barnes and Simpson. Neither a Kmart corporate spokesperson nor attorneys at the firm could be reached for comment on Saturday. However, the company has filed a motion to stay Finch’s eviction order pending an appeal.
Sunshine Mall owner Hatim Yusuf declined to comment on the matter. His attorney, Joel Holt, said he would let Finch’s decision speak for itself. In that decision, Finch said that by selling grocery items, Kmart demonstrated "a lack of candor in addressing its leasehold obligations."
Kmart’s conduct "in intentionally violating the lease with the hope that it would not be penalized for such conduct does not entitle Kmart to a finding that it has acted in good faith and has ‘clean hand,’" Finch wrote. "Therefore, the court finds that the shopping center is entitled to an order of eviction against Kmart."
Finch said the lease between the two parties "clearly defines" remedies if the contract is violated. "Specifically, the lease limits the shopping center’s remedies to eviction, the legal remedy of damages and the equitable remedy of injunction," he wrote.
Meanwhile, Pueblo International, owner of Pueblo Supermarkets, has several lawsuits pending against landlords of shopping centers where the company and Kmart both have stores, including the Sunny Isle Shopping Center on St. Croix.
The lawsuits contend that the leases between Pueblo and landlords don’t allow other retailers in the same shopping center to sell grocery items.
The Big Kmart in Sunny Isle has a pantry section similar to that in the Kmart store in Sunshine Mall. Mario De Chabert, owner of Sunny Isle Shopping Center, couldn’t be reached for comment Saturday.