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This section contains the nature of the case and procedural background.

Newberry (P) executed a 25-year lease in 1953 on a parcel of real estate and improvements that allowed P to operate a variety store. The lease required fixed payments and a percentage of the annual income. In 1971 a fire destroyed the building and improvements. Under a fire clause, the lessor was required to reconstruct the building if damaged or destroyed by fire. The lessor failed to perform under that clause and P was unable to operate its retail business. P filed a complaint against the lessor for specific performance or in the alternative, lost profits. P was awarded $116,910.33 as damages. On June 16, 1976, the City of East Chicago (D) exercised its power of eminent domain and condemned the property. This decision was made with full knowledge of the litigation instituted by P. The condemnation action awarded P $760.00 plus interest and P appealed.

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