Iggy's Doughboys, Inc. v. Giroux

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

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.

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 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 take-out-window service at RPCH with the least disruption of the status quo.² Makos appealed from the order granting this preliminary injunction, and thereafter, the hearing justice denied Mako's motion to modify or suspend the preliminary injunction.

Mako's argues on appeal that the hearing justice erred in allowing the admission of parol evidence during the hearing, claiming that such evidence is inadmissible when a lease is unambiguous. Here, the hearing justice specifically found that the lease provision regarding take-out-window service was clear and unambiguous. Therefore, Mako's contends, the hearing justice erred in permitting an owner of Iggy's, David M. Gravino, to testify that the landlords' representative, Southern Giroux, had assured plaintiffs that the landlords would not allow take-out service at the restaurant next door to Iggy's. Mako's further argues that even if the court could have construed the lease provision as ambiguous, the evidence at the hearing indicated that the provision only prohibited window take-out orders and not all take-out service. Moreover, Makos avers that plaintiffs had filled take-out orders when they previously operated a business on the premises now occupied by RPCH. The plaintiffs counter that the hearing justice did not abuse her discretion in granting the preliminary injunction. The plaintiffs note that the court addressed all the necessary factors in granting the injunction and adopted a reasonable construction of the lease provision at issue.

Analysis

Under G.L.1956 § 9-24-7, the issuance of a preliminary injunction is an appealable order. See Paramount Office Supply Co. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 n. 1 (R.I.1987). However, the decision to grant a preliminary injunction rests within the sound discretion of the hearing justice. See The Fund For Community Progress v. United Way of Southeastern New England, 695 A.2d 517, 521 (RI.1997). We therefore limit our review to a determination of whether the hearing justice abused this discretion. See id. Furthermore, we will not find such an abuse if the party requesting the preliminary injunction at least has made out a prima facie case. See DiLibero v. Swenson, 593 A.2d 42, 44 (R.I.1991). Under such a limited scope of review, this Court need not reach nor resolve the underlying substantive issues as it would after the imposition of a permanent injunction. See J.B. Prata, Ltd. v. Bichay, 468 A.2d 266,...