Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 72--574
| Decision Date | 06 March 1973 |
| Docket Number | No. 72--574,72--574 |
| Citation | 274 So.2d 13 |
| Parties | BAL HARBOUR SHOPS, INC., a Florida corporation, Appellant, v. GREENLEAF & CROSBY CO., INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Copeland, Therrel, Baisden & Peterson and Howard A. Setlin, Miami Beach, for appellant.
Nicholson, Howard, Brawner & Lovett and Robert A. Freyer, Miami, for appellee.
Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.
Plaintiff-appellant seeks review of an adverse final judgment in a non-jury trial construing a certain provision of a lease in which appellant was lessor.
Appellant shopping center sought out the appellee, a high quality jewelry store located on Lincoln Road Mall in Miami Beach, as a tenant. Before signing the proposed lease, appellee objected to Section 3.2, which provided that appellee keep open during all business hours as designated by landlord, and had the lessor-appellant amend it as follows:
'SECTION 3.2 Continuity of Conducting Business.
(Emphasis Supplied)
The rent was computed with a minimum guarantee plus a percentage of the gross sales. At the time of the execution of the lease the hours of the center were from 10:00 am to 5:30 pm, Monday through Saturday.
After four years, the hours of the center were changed to include night hours due to the presence of Neiman-Marcus, a new department store in the center. Appellee experimented with night hours for one month, found it economically unsound, and resumed the previous daytime hours. Appellant brought suit to terminate the lease for violation of Section 3.2 in that appellee refused to maintain night hours. Appellee counterclaimed for a clarification of his rights under the lease.
At the trial, appellant presented the testimony of an Atlanta shopping center vice president who testified to the trends of shopping centers to keep open at night during recent years. Appellee presented testimony to the effect that, like other high quality jewelry stores, its custom was not to keep night hours. The trial judge found that the intent of the language encompassed the hours customarily observed by the appellee, that...
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