Emmett S. Hickman Co. v. Emilio Capaldi Developer, Inc.

• Decision Date: 04 March 1969
• Parties: EMMETT S. HICKMAN CO., a Delaware corporation, Plaintiff, v. EMILIO CAPALDI DEVELOPER, INC., a Delaware corporation, and Independence Mall, Inc., a Delaware corporation, Defendants.
• Court: Delaware Superior Court

Page 571

251 A.2d 571

EMMETT S. HICKMAN CO., a Delaware corporation, Plaintiff, v. EMILIO CAPALDI DEVELOPER, INC., a Delaware corporation, and Independence Mall, Inc., a Delaware corporation, Defendants.

Superior Court of Delaware, New Castle County.

March 4, 1969.

Frank J. Miller, Walker, Miller & Wakefield, Wilmington, for plaintiff.

Aubrey B. Lank of Theisen & Lank, Wilmington, for defendants.

OPINION

MESSICK, Judge.

This is an action for loss of profits occasioned by defendant's alleged wrongful termination of a shopping center management agreement prior to its stipulated expiration date. On April 15, 1963, the parties entered into a ten year written management agreement whereby plaintiff was employed '* * * exclusively to rent, lease, operate and manage * * *' certain property upon which defendant was constructing a shopping center. Under the terms of the agreement plaintiff was to receive six percent of gross store rentals in return for its use of due diligence in managing the premises and furnishing its services for the renting, leasing, and operating of said premises as well as rendering monthly statements of receipts, expenses, and charges, and remitting to defendant receipts less disbursements. As a part of the agreement, defendant gave plaintiff authority to advertise, collect rent, including the use of legal procedures therefor, make repairs, hire employees and enter into service contracts.

Pursuant to the agreement, plaintiff initially prepared and distributed a brochure concerning the proposed center, as well as advertising the center in the newspapers and conducting personal solicitation of prospective tenants. The first lease was signed in July of 1963. Thereafter, and until defendant terminated the agreement on November 15, 1965, tenants were procured as units of the center were completed. The first rental statement was issued in mid 1964, and although there were some misunderstandings as to the meaning and accuracy of the statements, rental statements were issued continuously by plaintiff until November 1965. Plaintiff's agent, Tingle, spent many hours reviewing plans with prospective tenants as well as defendant's agents. Although plaintiff, through its agent, Tingle, was available to provide the service, the majority of alterations, repairs, maintenance, heat, and rubbish removal were either handled directly by defendant or contracted for by defendant with plaintiff's assistance. Tenant complaints made to defendant were never referred to plaintiff, and those made to plaintiff were referred to defendant as per defendant's direction.

In July of 1964 Concord Realty Co., which had opened an office in the center, was hired by defendant to act as an additional rental agent. From this time until November 15, 1965, Concord and plaintiff cooperated in a joint effort to procure tenants for the center; Concord being paid for its services by defendant. The majority of leases procured from July 1964 until November 1965 were procured by Concord. Concord also assisted plaintiff in other duties under the agreement, although there is no evidence to reveal that defendant's employment of Concord was due to any dissatisfaction with plaintiff's performance prior to that date, and plaintiff continued to be paid by defendant under the terms of the agreement.

Plaintiff seeks $28,858.00 for lost profits between November 1965 and April 1973, computing these profits by using the actual gross rents received from the center in 1965, 1966, and 1967, and plaintiff's own expenses in 1965, and projecting future gross income and expenses...