GEORGE PAINE, Chief Judge, Bankruptcy
This contested matter is before this Court on the Expedited Motion Requesting Abstention from Adjudication or, In the Alternative, Scheduling Matter for Hearing (the "Motion") filed by RC Properties, II ("RC"). On August 22, 2003, this Court entered an order setting an expedited hearing on the Motion, and after the hearing the Court entered an order on August 28, 2003, declining to abstain from hearing this matter.
On September 29, 2003, the Court conducted a pre-trial conference on the Motion, and at that conference instructed the parties to submit an agreed order setting an evidentiary hearing for October 29, 2003, setting out pretrial procedures, and setting out contested legal issues.
IT IS THEREFORE ORDERED THAT:
1. An evidentiary hearing shall be held on this matter on October 29, 2003, beginning at 9:00 a.m. CST.
2. By 5:00 p.m. on October 27, 2003, the parties shall: (i) prepare stipulations of fact; (ii) prepare a list and copies of all exhibits that are to be admitted without objection; and (iii) provide each other with witness lists and copies of any exhibits to be submitted in addition to those agreed to be submitted without objection. The stipulations and the agreed to exhibits shall be submitted to the Court by the close of business on Monday, October 27, 2003. Any party wishing to file a pretrial brief shall do so by the close of business on Monday, October 27, 2003.
3. The legal issues are as follows:
(1) Whether RC is entitled to terminate the lease (the "Lease") assigned by Service Merchandise Company, Inc. to SM Newco Lexington, LLC ("Newco") based on the alleged failure of Newco to cause the property to be in retail use by June 30, 2003 as set forth in the Stipulation dated March 16, 2002 (the "Stipulation").
(2) Whether RC is entitled to terminate the Lease based on Newco's alleged subleasing of that portion of the property not occupied by TJX or its affiliates without court approval, which RC alleges is in violation of the Stipulation.
(3) Whether RC is entitled to terminate the Lease based on the fact that the current user of the non-TJX portion of the property does not have the ability and intention to do retail operation in the space for one year from the date of occupancy.
(4) Whether RC is entitled terminate the Lease based on the alleged failure by Newco to comply with the signage requirements of the Lease.
(5) Whether RC is barred from obtaining the relief sought pursuant to the doctrines of waiver and/or estoppel.
4. The only legal issue contained in the Motion is item (1) in paragraph 3 above. The legal issues in (2), (3) and (4) of paragraph 3 above are new legal issues raised by counsel for RC after the filing of the Motion. The legal issue in (5) of paragraph 3 is raised as a defense to the legal issues asserted by RC. All legal issues in paragraph 3 above will be addressed at the hearing. The Respondents reserve all rights and defenses as to all legal issues presented by RC and reserve the right to supplement their defenses as part of the pretrial brief. RC has filed a cure claim in this matter (the "Cure Claim"). Any issues pertaining to the Cure Claim will not be adjudicated at this hearing, and the parties reserve their respective rights with respect to the Cure Claim.