Iggy's Doughboys, Inc. v. Giroux, No. 98-420-Appeal.

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: PER CURIAM.
• Citation: 729 A.2d 701
• Parties: IGGY'S DOUGHBOYS, INC. et al. v. Gina GIROUX et al.
• Decision Date: 25 May 1999
• Docket Number: No. 98-420-Appeal.

729 A.2d 701

IGGY'S DOUGHBOYS, INC. et al.
v.
Gina GIROUX et al

No. 98-420-Appeal.

Supreme Court of Rhode Island.

May 25, 1999.

729 A.2d 703

John J. DeSimone, for Plaintiffs

Douglas R. DeSimone, Providence, for Defendants.

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

PER CURIAM.

This case concerns the interpretation and scope of a commercial-lease provision specifying that "[n]o take-out window service shall be permitted" at an Oakland Beach restaurant located on the leased premises. The lessee-defendant, Mako's Beach, Inc. (Mako's), appeals from a Superior Court order granting a preliminary injunction enjoining the use of any take-out service at the Rocky Point Chowder House (RPCH) located on the leased premises. Mako's contends that the lease provision in question only prohibits takeout-window service and does not extend to take-out business in general, provided that the restaurant does not utilize a take-out window to deliver this service. Following a prebriefing conference, we ordered the parties to show cause why we should not decide this appeal summarily. No such cause having been shown, we proceed to do so at this time.

Facts and Travel

The plaintiff, Iggy's Doughboys, Inc. (Iggy's), has operated a take-out restaurant located at 889 Oakland Beach Avenue in Warwick since 1989. Thereafter, in 1992, Makos leased the premises next door to Iggy's at 885 Oakland Beach Avenue from defendants Gina Giroux and Judith Floodman (landlords), who were also Iggy's landlords. Mako's lease states that "[n]o take-out window service shall be permitted" on the premises. In 1997, after a representative of the landlords assured Iggy's owners that the landlords would not permit a take-out service on the adjacent premises leased by Mako's, Iggy's entered into a twenty-four-year-and-nine-month lease¹ with the landlords. The 1997 lease between Iggy's and the landlords specifies that the "Lessor agrees that, in the event its lease with Mako's Beach, Inc. is terminated prior to February 28, 2004, Lessor

729 A.2d 704

will require any new lessee of the Lessor's restaurant at 885 Oakland Beach Avenue to agree that `no takeout window service or drive thru service will be permitted.' In the event the Lessor operates said restaurant prior to February 28, 2004 Lessor shall not operate any `takeout window or drive thru service."

In December 1997 or January 1998, Mako's allowed a sub-lessee, defendant RPCH, Inc., to operate RPCH on the leased premises. Pursuant to this arrangement, RPCH, Inc. made extensive renovations to the RPCH restaurant and caused the installation of two garage doors, together with an interior window accessible through the garage-doors area. RPCH, Inc. intended to service take-out orders from this window and from a counter inside the restaurant. However, prior to the 1998 Memorial Day opening of RPCH, Iggy's and the other plaintiff, S.G. Associates, Inc., commenced this Superior Court action and obtained a temporary restraining order preventing defendants from permitting take-out food orders from the restaurant. Thereafter, a Superior Court justice granted plaintiffs' request for a preliminary injunction. She found that the meaning of the lease term "take-out window service" was clear and unambiguous: "What is prohibited is the essential nature of the take out service. The use of the term, `window,' the Court finds, is descriptive but not restrictive in the manner that the defendant would have it applied. The plain, reasonable and simple construction is that it is the type of service that is prohibited. To read into this language that the same type of service is permitted just as long as it is handed through, or just as long as the food is handed through an interior window, wall opening, doorway or over a counter would render the prohibition meaningless. The Court finds that a take out food service as contemplated by the defendant is prohibited under the defendant's lease. The Court finds that the plaintiff has an interest as a third party beneficiary in that lease."

The hearing justice further found that plaintiffs would suffer immediate and irreparable harm in the absence of temporary injunctive relief because it would be nearly impossible for them to calculate Iggy's loss of business and future growth opportunities as a consequence of its having to compete with a new take-out-service restaurant operating next door. The hearing justice also found that the equities weighed in favor of issuing the temporary injunctive relief requested by plaintiffs, and that Mako's and RPCH, Inc. were well aware of the lease restriction on take-out-window service before they commenced the renovation work. In issuing the preliminary injunction, however, the court left it to Mako's discretion as to how best to eliminate the proscribed...