Jacobs Pharmacy Co. v. Richard & Associates, Inc.
| Decision Date | 03 May 1972 |
| Docket Number | No. 27144,27144 |
| Citation | 189 S.E.2d 853,229 Ga. 156 |
| Parties | JACOBS PHARMACY COMPANY, Inc. v. RICHARD & ASSOCIATES, INC., et al. * |
| Court | Georgia Supreme Court |
Syllabus by the Court
Where the lessor in the lease of a store building agrees not to lease any other building or store for a business competitive with the lessee in the shopping center in which the leased premises are located, and the lease contract is unambiguous as to the limits of the shopping center referred to in the lease, the restrictive covenant in the lease does not apply to property later acquired by the lessor, which was not included within the shopping center described.
Glover & Davis, Welborn D. Davis, Jr., Newnan, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, George B. Haley, Jr., Rosemary Kittrell, Atlanta, for appellant.
Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, E. Ray Lanier, Atlanta, Sanders, Mottola, Haugen, Wood & Goodson, Byron H. Mathews, Jr., Charles Van S. Mottola, Newnan, for appellees.
This appeal is from the denial of an interlocutory injunction.
Jacobs Pharmacy Company, Inc., brought an action against Gibson Products Co. of Newnan, Georgia, Inc., and Richards & Associates, Inc. It was alleged: Jacobs leased a store building from Richards in a retail shopping center known as the Greenville Street Shopping Center. The original lease was executed in 1956, and amendments thereto were executed in 1966. Paragraph 20 of the lease provides that Richards will not rent any other building or store in the shopping center to be used as a drug store. After the execution of the original lease, Richards acquired additional land immediately adjoining the tract of land composing the shopping center. In the summer of 1970, Richards entered into a lease agreement with Gibson leasing to it a store building to be constructed on this later acquired tract. This tract is an integral part of the shopping center in which the building leased to Jacobs is located. Gibson opened its business the latter part of 1970, and at that time did not maintain a drug department, but it is beginning the construction of a department for that purpose. The operation of a competitive drug store in the shopping center would materially damage Jacobs' business, and the harm would be of a continuing nature, and irreparable. Jacobs prayed for temporary restraining order and permanent injunction to prevent the construction or operation of a drug store by Gibson.
1. The appellant Jacobs enumerates as error the denial of an interlocutory injunction because it was not based upon any findings of fact or conclusions of law by the trial judge. The order denying the interlocutory injunction was entered January 27, 1972. On March 14, 1972, the trial judge entered his findings of fact and conclusions of law, as shown by certification of the clerk of the trial court, on request of this court to send up additional record.
Code Ann. § 81A-152(a) (Ga.L.1969, pp. 645, 646; Ga.L.1970, pp. 170, 171) requires that a trial judge in granting or refusing interlocutory injunction 'set forth the findings of fact and conclusions of law which constitute the grounds of its action.' Clearly, it was the legislative intent that these findings be made prior to the rendition of the judgment, and not after the expiration of the time for appeal.
The absence of findings would not require a reversal of the judgment, but only a remand of the case for such findings, as was done by the Court of Appeals in Spivey v. Mayson, 124 Ga.App. 775, 186 S.E.2d 154. Since the trial judge made findings on March 14, 1972, we will consider these findings, rather than to remand the case, in order to avoid delay in a decision of the case.
2. The courts of this State will enforce by injunction a restrictive covenant in a lease contract wherein a lessor agrees that he will not lease other property owned by the lessor for the purpose of conducting therein a business competitive with the business of the lessee. Rosen v. Wolff, 152 Ga. 578, 110 S.E. 877.
The appellant relies on paragraph 20 of its lease with Richards for its right to enjoin the operation of a drug department in Gibson's store located on property owned by Richards. This paragraph provides in part: 'Lessor agrees that during the term of...
To continue reading
Request your trial
-
Speer v. Gemco Elevator Co., Inc.
...209 S.E.2d 131; Bituminous Casualty Corp. v. J. B. Forrest & Sons, 132 Ga.App. 714, 209 S.E.2d 6. In Jacobs Pharmacy Co. v. Richards & Associates, 229 Ga. 156, 157, 189 S.E.2d 853, 854, the Supreme Court stated that 'The absence of findings would not require a reversal of the judgment, but ......
-
Northside Realty Associates, Inc. v. Peachtree Mortgage Corporation.
...and conclusions of law made subsequently to the order appealed from and transmitted to this court. Jacobs Pharmacy Co. v. Richards etc., Inc., 229 Ga. 156, 157(1), 189 S.E.2d 853 (1972); Atlanta Country Club v. Sanders, 230 Ga. 146, 148(1), 195 S.E.2d 893 (1973); Warren v. Walton, 231 Ga. 4......
-
Chambless Ford Tractor, Inc. v. McGlaun Farms, Inc.
...the action to the trial court for the preparation of appropriate findings. Kennedy v. Brown, supra; Jacobs Pharmacy Co. v. Richards & Assocs., 229 Ga. 156, 189 S.E.2d 853 (1972); Hickok v. Starka Indus., 151 Ga.App. 668, 261 S.E.2d 418 (1979); Spivey v. Mayson, Georgia courts have recently ......
-
W.T.A. Associates, Inc. v. Beamon
...of fact and conclusions of law may be amended or added if not made originally, to meet objections (Jacobs Pharmacy Co. v. Richards, etc., Inc., 229 Ga. 156, 157(1), 189 S.E.2d 853; Warren v. Walton, 231 Ga. 495, 500(2), 202 S.E.2d 405; Atlanta Country Club v. Sanders, 230 Ga. 146, 148(1), 1......