WAUKESHA — A judge this week
heard arguments in the Marcus Corp.’s lawsuit against the Town of
Brookfield and The Corners, with a decision expected later this
The Milwaukee-based Marcus Corporation filed a lawsuit in Waukesha
County Circuit Court against the Town of Brookfield and Brookfield
Corners LLC just over a year ago, alleging the addition of a
nine-screen movie theater by competitor Silverspot Cinemas breaches
the terms of a developer’s agreement. Marcus, owner of the
town-based Majestic Cinema a mile away from Silverspot’s proposed
site, has a 10 percent ownership stake as a minority partner in the
Brookfield Corners LLC.
In briefs arguing their positions, the Town and Brookfield Corners
argued for the suit to be dismissed, with Marcus arguing that its
suit has merit and should continue.
Marcus is arguing that it has the power to veto any Town Board
decision related to the development, and any action to approve the
proposed theater is a breach of the developer’s agreement.
“Marcus Corporation entered into the Development Agreement agreeing
to the development of The Corners without a theatre,” Marcus
attorney John Kirtley wrote in a brief. “The Corners is now being
developed with a theatre — an amendment that requires the
Marcus Corporation’s written consent, which it has not given. ...
(Brookfield Corners) is adding a new building, not part of the
original Development Agreement, not agreed to by the Marcus
Corporation, and that structural addition (irrespective of use)
violates Marcus’ veto rights.”
In its brief arguing for a judgment on the pleadings already in the
case, the Town of Brookfield argued that it enjoys immunity under
the law for acts done in legislative or judicial functions
synonymous with discretionary acts. But Marcus replied legislative
immunity does not apply to contractual obligations.
The Town also argued it cannot delegate its zoning authority to any
private entity, therefore, any provision granting it “veto power”
over zoning decisions is void and illegal. Also, the Town Board’s
decision to add the Silverspot theater was subject to judicial
review as a certiorari action, which Marcus did not seek, the town
Brookfield Corners LLC also filed a motion to discharge the legal
action, referred to as a “lis pendens,” saying the development of
the theater does not affect the interests of the Marcus Corporation.
“The title and possession to the Corners will not and cannot be
changed as a result of this lawsuit. Marcus’s affiliate’s membership
percentage in the LLC will not change. As Marcus would have it,
Marcus will either stop the theater (already nearing completion) or
Marcus will win a damages award from one or both of the defendants.
In either case, no ‘interest’ in the Corners will have changed,” the
Brookfield Corners also argued Marcus has no claim that the
defendants breached a duty to act in good faith, with attorney John
Franke saying that Marcus believes it “had every reason to believe a
theater could never be built at The Corners, but points to no reason
for such a belief.” He added Marcus never argued for a non-compete
clause in The Corners, and one can’t be put together without
contradicting the Development Agreement provisions that approve any
use authorized by the town’s zoning laws.
“Putting a theater in the Corners is not a breach of good faith any
more than if Marcus invested in a department store at Brookfield
Square that competes with Von Maur,” Franke wrote.
Judge Michael O. Bohren is expected to render a decision Dec. 26.