WINTER PARK APPLIANCE CENTER, INC., A FLORIDA CORPORATION, APPELLANT,
v.
WALLING CRATE COMPANY, A FLORIDA CORPORATION, APPELLEE,
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Winter Park Appliance Center leased space in a shopping center and obtained an exclusive clause prohibiting other appliance stores from operating there. When the lessor allowed other tenants (including a music store selling electronics and a department store selling major appliances) to operate, the lessee sought a declaratory judgment and damages. The court affirmed the summary judgment dismissing the lessee's claim, finding that the other businesses were not 'appliance stores' despite selling some appliance items.
The exclusivity clause was not violated because the other businesses in the shopping center were not 'appliance stores,' even though they sold some appliance items. Sales of appliances by these stores were only a minor purpose or department of their operations, not their primary business.
“While a covenant or agreement by lessor not to lease the retained property for the purpose of conducting a business in competition is legal and valid, such a covenant must be positively expressed, and being in the restraint of trade, must be strictly construed.”
Establishes that exclusive covenants are enforceable but must be clearly stated and strictly interpreted, especially as restraints on trade.
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Join FLexlaw to unlock all legal intelligenceWinter Park Appliance Center entered into a lease for space in Palm Plaza Shopping Center designated as 'A appliance store' and including an exclusivi…
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An action brought by Appellant for a declaratory decree adjudicating the respective rights of the parties under a certain lease agreement, seeking relief for the breach thereof and for damages. Summary final decree was entered by the trial court *199in favor of the Defendant and the Plaintiff appealed.
.The lease in question provided for the use of the leased premises as “A appliance store, and for no other purpose or purposes whatsoever”; and, at the insistence of Plaintiff, was amended, prior to execution to include a provision that: “It is agreed and understood by.and between the parties hereto that the lessee herein shall be the only appliance store of any type in the said Palm Plaza Shopping Center to the exclusion of all others in similar types of business.”
At the time of the execution of the lease, space in the shopping center was already under lease to and operated by Liggett’s Drug Store, McCrory’s Ten Cent Store, Grant’s Department Store, Publix Super Market and Center Hardware Store; after the execution of the lease, other space was leased to the owners of the Music Center. None of these leases contained any prohibition against the sale of appliances. The Music Center, while primarily musical instruments, records, etc., also sold radios, portable phonographs, stereos, televisions and tape recorders, contended by Plaintiff to be appliances. The drug and hardware stores sold small electrical devices, such as hot-plates, mixers and the like, also contended by Plaintiff to constitute appliances. Grant’s had a department in which were sold ranges, refrigerators and freezers characterized by Plaintiff as white goods — appliances, and was engaged in the sale of such, at the time of the execution of Plaintiff’s lease and thereafter increased the volume of such sales.
From the testimony of Plaintiff’s president, he did not consider that those stores, which were at the time of the execution of the lease, selling radios, TV’s and phonographs were appliance stores, but were “an outlet for appliance sales”; nor did he consider the drug store nor hardware store to be appliance stores. Plaintiff’s complaint against the music store is the sale of radios, phonographs, stereos and televisions as appliances.
While a covenant .or agreement by lessor not to lease the retained property for the purpose of conducting a business in competition is legal and valid, such a covenant must be positively expressed, and being in the restraint of trade, must be strictly construed. Norwood Shopping Center, Inc. v. MKR Corporation, 135 So.2d 448, 97 A.L.R.2d 1 (Fla.App.)
It affirmatively appears that the designation of all of these instruments as appliances is based upon the Plaintiff’s statement as to what the trade considers. There is no evidence of usage or custom to su.ch extent or that the Defendants knew of such custom and contracted with reference thereto. “The word ‘appliance’ includes everything applied or used as a means to an end.” (Agnesia v. State, 45 So.2d 712.) (Ala. App.) “It is common knowledge that refrigerators, ranges, washers, a dryer and freezer are ‘appliances’ ”. See in Re A.A. Appliance and TV Center, Inc., District Court of Washington, 170 F.Supp. 103, 107. They are generally considered as any household or office utensil, apparatus, instrument, or machine that utilizes a power supply, especially electric current, as a vacuum cleaner, a refrigerator, a toaster, an air-conditioner. See Webster’s Third New International Dictionary.
It is obvious from the admitted facts that none of the other businesses in the shopping center were appliance stores as such, in that sale of household appliances therein was only a minor purpose of the business or a department thereof. In this day of the super market and the shopping center, it is common knowledge that drugstores prepare and serve food, sell hardware, electrical supplies and almost every other type of merchandise, and the grocery stores sell shaving implements, material, magazines, kitchen equipment and various other types of articles, including household *200utensils and devices, but they are not primarily appliance stores.
We find that the Chancellor was amply justified in granting the summary decree appealed from.
His decision is affirmed.
ALLEN, C. J., and PIERCE, J., concur.
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Liza Danielle, Inc. v. Jamko, Inc., 408 So. 2d 735 (Fla. 3d DCA 1982)…purpose of conducting business in competition with lessee must be strictly construed, since it is in restraint of trade). Accord: Reed v. O.A. & E., Inc., 390 So. 2d 487 (Fla. 4th DCA 1980); Winter Park Appliance Center, Inc., v. Walling Crate Co., 196 So. 2d 198 (Fla. 2d DCA 1967). . Conner v. Atlas Aircraft Corp., 310 So. 2d 352, 354 (Fla. 3d DCA 1975), sets forth the applicable standard of proof for establishing lost profits as an element of plaintiffs legal damages, as follows: Such damages are recover…
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Reed v. O.A. & E., Inc., 390 So. 2d 487 (Fla. 4th DCA 1980)…to consider any point other than the content of the lease. A covenant restricting a landlord’s right to lease property retained by him must be positively expressed and strictly construed. Winter Park Appliance Center, Inc. v. Walling Crate Company, 196 So. 2d 198 (Fla. 2d DCA 1967); Norwood Shopping Center, Inc. v. MKR Corporation, 135 So. 2d 448 (Fla. 3d DCA 1961). While Paragraph 22 clearly gave O.A. & E. the privilege to sell beer and wine in Sections A & B during Papa Nick’s Sub Shop’s occupancy, it did…
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Eckerd Drugs OF Fla., Inc. v. Levin, 685 So. 2d 843 (Fla. 2d DCA 1995)…ven that exclusivity provisions in leases are in the nature of restrictive covenants, they must be evidenced by clearly and positively-expressed language in the lease and must be strictly construed. Winter Park Appliance Center v. Walling Crate Co., 196 So. 2d 198 (Fla. 2d DCA 1967); Reed v. O.A. & E., Inc., 390 So. 2d 487 (Fla. 4th DCA 1980); Norwood Shopping Center, Inc. v. MKR Corp., 135 So. 2d 448 (Fla. 3d DCA 1961); Fontainebleau Hotel Corp. v. Kaplan, 108 So. 2d 503 (Fla. 3d DCA 1959). We have some doub…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norwood Shopping Ctr., Inc. v. MKR Corp., 135 So. 2d 448 (Fla. 3d DCA 1961)