UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ANTHONY E. ELLO and EVELYN ELLO, 

 Plaintiffs, 

v. CAUSE NO.: 2:14-CV-299-TLS 

SEVEN PEAKS MARKETING CHICAGO, LLC, 

 Defendant. 

_________________________________________ 

SEVEN PEAKS MARKETING CHICAGO, LLC, 

 Counter-Claimant, 

 v. 

ANTHONY E. ELLO and EVELYN ELLO, 

 Counter-Defendants. 

OPINION AND ORDER 

This matter is before the Court on Defendant’s Renewed Motion for Judgment as a 

Matter of Law, which was orally made on September 23, 2019. For the reasons stated below, this 

Motion is DENIED. 

BACKGROUND 

This case involves a contractual dispute over a bowling alley. The Plaintiffs, Anthony E. 

Ello and Evelyn Ello, were the owners of the bowling alley. The Defendant, Seven Peaks 

Marketing Chicago, LLC, leased the bowling alley from the Plaintiffs and ran the bowling alley 

as a business. The Plaintiffs’ theory of the case was that the Defendant breached the lease by 

vacating the bowling alley. The Defendant’s theory of the case was that no valid contract was 
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formed, or, in the alternative, the Plaintiffs breached the lease by locking the Defendant out of 

the bowling alley. 

At the end of Plaintiffs’ case-in-chief, the Defendant moved for judgment as a matter of 

law. See Fed. R. Civ. P. 50(a). The Defendant argued as follows: (1) the Plaintiffs lack standing 

because they no longer own the bowling alley; (2) there was no valid contract because the 

Plaintiffs fraudulently induced the Defendant to enter into the contract; (3) there was no valid 

contract because the contract was not supported by consideration; (4) the Defendant did not 

breach any contract which may have existed; (5) the Plaintiffs suffered no damages; and (6) the 

Plaintiffs’ damages, if any, were speculative. The Court ruled that it was “going to take under 

advisement the Defendant’s Rule 50 Motion for Judgment as a Matter of Law and allow the case 

to go forward into the Defendant’s case in chief.” 

The Defendant renewed its Motion at the end of its case-in-chief. The Court took the 

renewed Motion under advisement. Ultimately, the Jury found that (1) a contract existed between 

the parties and (2) the Defendant breached the contract. The Jury awarded damages in the 

amount of $454,250 in favor of the Plaintiffs. 

 

ANALYSIS 

In the renewed motion brought pursuant to Rule 50(b), the Defendant argues that it is 

entitled to judgment as a matter of law because (1) the Plaintiffs lack standing because they no 

longer own the bowling alley; (2) there was no valid contract because the Plaintiffs fraudulently 

induced the Defendant to enter into the contract; (3) there was no valid contract because the 

contract was not supported by consideration; (4) the Defendant did not breach any contract 
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which may have existed; (5) the Plaintiffs suffered no damages; and (6) the Plaintiffs’ damages, 

if any, were speculative. The Court addresses these issues in turn. 

A. The Jurisdictional Argument 

The Defendant argues that the Plaintiffs lack standing because they no longer own the 

bowling alley. More specifically, the Defendant argues that “after the Plaintiffs lost any property 

interest in the bowling alley, after they gave it back to Horizon Bank under the deed in lieu of 

foreclosure, they had no additional interest. They had no Article III standing. They are not 

harmed Plaintiffs.” The Court disagrees. 

 “Subject-matter jurisdiction cannot be forfeited or waived and should be considered when 

fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). “Article III limits the jurisdiction of 

federal courts to ‘Cases’ and ‘Controversies.’” Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 

2017) (quoting U.S. Const. art. III, § 2. cl. 1). “To have the requisite constitutional standing to 

bring suit in federal court, a plaintiff must have ‘(1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.’” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). 

“If standing is lacking, the case must be dismissed for lack of subject-matter jurisdiction.” 

Chatman v. Weltman, 325 F. Supp. 3d 875, 880 (N.D. Ill. 2018) (citing Taylor, 875 F.3d at 853). 

 In this case, the Plaintiffs allege that the Defendant vacated the property. The Plaintiffs 

also allege that the Defendant failed to pay the security bond which was required under the lease. 

Further, the Plaintiffs allege that they incurred professional fees as a result of the Defendant’s 

breach. Based upon this, the Court concludes that the Plaintiffs have standing to sue and that this 

Court has subject matter jurisdiction. Furthermore, in ruling on the Defendant’s Motion for 
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Summary Judgment in this case, the Honorable Rudy Lozano previously concluded that “the 

evidence that [the Defendant] did not secure the Bond and vacated the Bowling Alley prior to the 

expiration of the Lease, coupled with the Lease Agreement’s remedy provisions, provide 

sufficient evidence of damages to satisfy the injury in fact requirement for standing.” Ello v. 

Brinton, No. 2:14-CV-299, 2018 WL 1523209, *8 (N.D. Ind. Mar. 28, 2018); Op. & Order, ECF 

No. 147. The Court reaffirms that the Plaintiffs have standing and continues to concur with 

Judge Lozano’s well reasoned opinion which has previously addressed this issue. 

 Trying to avoid this result, the Defendant cites Apex Digital, Inc. v. Sears, Roebuck & 

Co., 572 F.3d 440, 444–46 (7th Cir. 2009) (finding that the plaintiff did not have standing when 

it had assigned all of its rights under a debt to a third party); Home Abstract and Title Co. v. Orr 

Enterprises, Inc., 2008 UT App 394, 2008 WL 4748197, at *1 (Utah Ct. App. Oct. 30, 2008) 

(finding that the plaintiff did not have standing to file an action to quiet title when it had no 

lawful interest in the property); and Kelly v. Hard Money Funding, Inc., 87 P.3d 734, 740 (Utah 

Ct. App. 2004) (the plaintiff did not have standing to file an action to quiet title after a lawful 

foreclosure sale). However, the Defendant does not argue that the Plaintiffs sold or otherwise 

assigned their rights under the lease to a third party. Likewise, the Plaintiffs are suing for 

damages which arose from the breach of the lease; they are not suing to quiet title against the 

new owner of the bowling alley. Thus, the cases upon which the Defendant relies are 

distinguishable. Accordingly, the Defendant’s jurisdictional argument fails. 

B. The Defendant’s Other Arguments 

The Defendant next argues that (1) there was no valid contract because the Plaintiffs 

fraudulently induced the Defendant to enter into the contract; (2) there was no valid contract 
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because the contract was not supported by consideration; (3) the Defendant did not breach any 

contract which may have existed; (4) the Plaintiffs suffered no damages; and (5) the Plaintiffs’ 

damages, if any, were speculative. For the purposes of this Motion, the Court disagrees. 

 “Rule 50(a) of the Federal Rules of Civil Procedure allows a district court to enter 

judgment against a party who has been fully heard on an issue during a jury trial if ‘a reasonable 

jury would not have a legally sufficient evidentiary basis to find for the party on that issue.’” 

Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 375 (7th Cir. 2011) (quoting Fed. R. 

Civ. P. 50(a)). “If the court does not grant a motion for judgment as a matter of law under Rule 

50(a), the court is considered to have submitted the action to the jury subject to the court’s later 

deciding the legal questions raised by the motion.” Fed. R. Civ. P. 50(b). “In ruling on the 

renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; 

(2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Id. 

“In deciding a Rule 50 motion, the court construes the evidence strictly in favor of the 

party who prevailed before the jury and examines the evidence only to determine whether the 

jury’s verdict could reasonably be based on that evidence.” Passananti v. Cook County, 689 F.3d 

655, 659 (7th Cir. 2012). The Court does not make credibility determinations, nor will it reweigh 

the evidence. Schandelmeier-Bartels, 634 F.3d at 375. The Court does not ask “whether the jury 

believed the right people, but only whether it was presented with a legally sufficient amount of 

evidence from which it could reasonably derive its verdict.” Massey v. Blue Cross-Blue Shield of 

Ill., 226 F.3d 922, 924 (7th Cir. 2000). The Court will overturn a jury’s verdict only if no rational 

jury could have found for the prevailing party. Tate v. Exec. Mgmt. Servs. Inc., 546 F.3d 528, 

532 (7th Cir. 2008). 
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 First, the Defendant argues that there is no contract based on fraudulent inducement. 

Under Utah law, to prevail on a claim of fraudulent inducement, a party must present clear and 

convincing evidence to establish that (1) a false representation concerning a material fact was 

made, (2) the representator either knew the representation was false or acted recklessly in 

making the representation, (3) the representation was made for the purpose of inducing the other 

party, and (4) the other party acted reasonably and relied upon the representation to his 

detriment. Robinson v. Robinson, 368 P.3d 105, 115 (Utah Ct. App. 2016). In this case, the 

parties entered into a commercial lease of a bowling alley. A rational jury could find that the 

Plaintiffs did not make a false representation regarding their ownership interests. Armed Forces 

Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah Ct. App. 2003) (fraudulent inducement requires a 

false statement). Alternatively, assuming that the Plaintiffs made a false statement, a rational jury 

could find that the Plaintiffs did not make that statement with the requisite mental state. Id. 

(fraudulent inducement requires a false statement which was made knowingly or recklessly). 

Further, due to the sophistication of the Defendant and its opportunity to examine the Plaintiffs’ 

business, a rational jury could find that the Defendant’s reliance, if any, was not reasonable. Id. 

(reasonable reliance is required for fraudulent inducement). Thus, a reasonable jury could find 

that there was no fraudulent inducement. 

 A reasonable jury could also find that there was a valid contract supported by 

consideration. Notwithstanding the balloon payment and the mortgage, the Plaintiffs owned a 

bowling alley which they leased to the Defendant in exchange for rent payments. Res. Mgmt. Co. 

v. Weston Ranch and Livestock Co., Inc., 706 P.2d 1028, 1036 (Utah 1985) (“Consideration is an 

act or promise, bargained for and given in exchange for a promise.”). Based upon this, a rational 

jury could find that there was consideration. Id. 
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 Likewise, a reasonable jury could find that Defendant breached the contract. 

Fundamentally, this case was a contest of two narratives: either the Plaintiffs evicted the 

Defendant through self-help methods, or the Defendant vacated the property on its own accord. 

A reasonable jury could find that the Defendant vacated the property because the bowling alley 

was unprofitable. Furthermore, a reasonable jury could find that the Plaintiffs would not have 

evicted the Defendant because they relied upon Defendant’s rent payments to pay the mortgage 

on the bowling alley. In fact, after the Defendant vacated the property, the bowling alley was 

subsequently foreclosed upon by the bank. Testimony at trial indicated that the bank would have 

renegotiated the mortgage in the normal course of business had the Defendant remained a tenant. 

Thus, this argument is without merit. 

 Finally, turning to damages, the Court concludes that a reasonable jury could find that the 

Plaintiffs suffered damages. See Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986) 

(“The fact of damages must be proven with reasonable certainty and the amount by a reasonable 

though not necessarily precise estimate.”). Evidence was introduced at trial indicating that the 

Defendant did not pay the required security bond. Further, the Plaintiffs incurred professional 

fees as a result of the Defendant’s breach of the lease. Likewise, a reasonable jury could find that 

the Plaintiffs lost income and suffered other losses as a result of the Defendant’s breach of 

contract. Accordingly, when viewed in the light most favorable to the prevailing party, the 

Plaintiffs suffered actual damages that are not speculative in nature. 
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CONCLUSION 

Based on the reasons above, the Court DENIES the Defendant’s Renewed Motion for 

Judgment as a Matter of Law. The Clerk is ORDERED to now enter Judgment on the Verdict of 

the Jury. 

SO ORDERED on October 16, 2019. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT