Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC

• Citation: 811 So.2d 719
• Decision Date: 20 February 2002
• Docket Number: No. 3D01-1643.,3D01-1643.
• Parties: WINN-DIXIE STORES, INC., a Florida Corporation, Appellant, v. 99 CENT STUFF—TRAIL PLAZA, LLC, etc., and Metropolitan Life Insurance Company, a foreign corporation, Appellees.
• Court: Court of Appeal of Florida (US)

811 So.2d 719

WINN-DIXIE STORES, INC., a Florida Corporation, Appellant, v. 99 CENT STUFF—TRAIL PLAZA, LLC, etc., and Metropolitan Life Insurance Company, a foreign corporation, Appellees.

No. 3D01-1643.

District Court of Appeal of Florida, Third District.

February 20, 2002.

Clarification and Rehearing Denied March 27, 2002.

Kaufman, Dickstein & Grunspan and Alan M. Grunspan, Miami, for appellant.

Broad and Cassel and Ronald M. Gache, West Palm Beach; Roth & Scholl and Jeff Roth, for appellee.

Before FLETCHER and SORONDO, JJ., and NESBITT, Senior Judge.

NESBITT, Senior Judge.

Winn-Dixie Stores, Inc., appeals an order granting its Motion for Temporary Injunctive Relief, claiming the relief granted was insufficient.

Winn-Dixie operated a supermarket in the Trail Plaza Shopping Center. Winn-Dixie's lease granted an exclusivity provision, restricting its landlord from permitting other tenants from selling certain products sold by Winn-Dixie. That lease provides in pertinent part:

Landlord covenants and agrees that the Tenant shall have the exclusive right to operate a supermarket in the shopping center * * * Landlord further covenants and agrees that it will not directly or indirectly lease or rent any property located within the shopping center * * * for occupancy as a supermarket, grocery store, meat, fish or vegetable market[;] * * * and Landlord further covenants and agrees not to permit or suffer any property located within the shopping center to be used for or occupied by any business dealing in or which shall keep in stock or sell for off-premises consumption any staple or fancy groceries, meats, fish, vegetables, fruits, bakery goods, dairy products or frozen foods without written permission of the Tenant; except the sale of such items is not to exceed the lesser of 500 square feet of sales area or 10% of the square foot area of any storeroom within the shopping center, as an incidental only to the conduct of another business[.] (Emphasis added.)

In 1999, Winn-Dixie's landlord leased approximately 22,000 square feet of space in Trail Plaza to 99 Cent Stuff for the operation of a "megastore." The 99 Cent Stuff lease listed several prohibited uses for the leased premises, including a provision that mirrored the Winn-Dixie exclusive:

Tenant shall not operate its premises in a manner which violates any exclusive rights of any other tenant in the Shopping Center..... In addition to the foregoing, the premises shall not be used for any of the purposes or uses listed in Exhibit C.

* *

EXHIBIT C

PROHIBITED USES

The Premises shall not be used for any of the following purposes or uses:

7. The operation of a supermarket, grocery store, meat, fish or vegetable market, or a business dealing in or which shall keep in stock or sell for off-premises consumption any staple or fancy groceries, meats, fish, vegetables, fruits, bakery goods, dairy products or frozen foods, except the sale of such items is not to exceed the lesser of 500 square feet or [sic] sales area of [sic] ten percent (10%) of the square foot area of any storeroom within the shopping center, as an incidental only to the conduct of another business, and except the sale by a restaurant operation of prepared, ready-to-eat food items, either for consumption on or off the premises. (Emphasis added.)

Shortly after 99 Cent Stuff opened, it began selling products which, according to Winn-Dixie, violated the above stated lease provisions. The supermarket complained to its landlord who then sent an agent to inspect. The agent concluded that 99 Cent Stuff was violating its lease. When notified, 99 Cent Stuff's Chief Executive Officer, John Isaac, responded that he would re-merchandise the store. By February 15, 2000, Isaac asserted that the problem had been corrected.

The landlord's agent reinspected, determined a lease violation continued, and issued a second notice.¹ Isaac contacted the agent, arguing that his store was in compliance with its lease. Attempting to comply with the limitation on the sale of "staple or fancy groceries," while at the same time, no doubt, defining the terms at issue in a manner which would least fetter his store's permissible product base, in a feat of entrepreneurial jujitsu, Isaac had gone to the Florida Administrative Code, and from there, he had found a definition of general grocery items in a Tax Information Publication. Isaac concluded that nothing in the store's price...