Liza Danielle, Inc. v. Jamko, Inc.

• Decision Date: 12 January 1982
• Docket Number: Nos. 80-2115,80-2125,No. 5000018,5000018,s. 80-2115
• Citation: 408 So.2d 735
• Parties: LIZA DANIELLE, INC., a Florida corp., d/b/a Shoes R US and Joseph Moriber, as Agent and Attorney-in-Fact for all the Beneficial Owners of Land Trustwherein City National Bank of Miami is Trustee, Appellants, v. JAMKO, INC., a Florida corp., d/b/a Shoe Bazaar, Appellee.
• Court: Florida District Court of Appeals

Page 735

408 So.2d 735

LIZA DANIELLE, INC., a Florida corp., d/b/a Shoes R US and Joseph Moriber, as Agent and Attorney-in-Fact for all the Beneficial Owners of Land Trust No. 5000018 wherein City National Bank of Miami is Trustee, Appellants, v. JAMKO, INC., a Florida corp., d/b/a Shoe Bazaar, Appellee.

Nos. 80-2115, 80-2125.

District Court of Appeal of Florida, Third District.

Jan. 12, 1982.

Rehearing Denied Feb. 9, 1982.

Abramson, Sazant, Diamond & Schwartz and Paula L. Schwartz, North Miami Beach, Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash, Miami Beach, Julio C. Alonso, Miami, and Frederick J. Damski, Miami Beach, for appellants.

Howard W. Mazloff, Coral Gables, for appellee.

Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

By these consolidated appeals we are asked to review a final judgment of permanent injunction entered against appellants in the circuit court. Because the facts of this case fail to satisfy the rather strict legal requirements necessary to obtain a remedy other than that available in an action at law, we hold that the injunction was improvidently entered against appellants, and reverse.

Plaintiff-appellee Jamko, Inc., d/b/a Shoe Bazaar ("Jamko"), entered into a lease with appellant Joseph Moriber ¹ for space in a warehouse merchandise mart. ² The lease provided that lessee, Jamko, would use the premises solely for operation of a retail shoe store and contained the following "exclusivity" clause which is at the heart of this legal controversy: "Lessor shall not lease any other space in the warehouse to a retail shoe store." Subsequent to Jamko's entering into possession of the leased premises, a second warehouse building was constructed on the property, and one and a half years after Jamko executed its lease, appellant Liza Danielle, Inc., d/b/a Shoes R Us ("Danielle"), signed a lease for space in the second building and, some four months later, commenced operation therein as a retail shoe store. Jamko brought suit ³ seeking equitable relief and damages for injuries which it alleged were "immediate, continuing and irreparable," resulting from the lease to Danielle in contravention of Jamko's exclusive rights under its lease.

A non-jury trial was had at which the proofs centered around the issue of whether the exclusive provision was intended to apply to the second building, and the related inquiries as to what damages Jamko had suffered and what were its appropriate remedies. The court entered its final judgment of permanent injunction which provided, in summary, that: (1) Moriber be permanently enjoined from leasing any portion of the "Lakes Merchandise Mart located on N.W. 19th Street and East of State Road No. 7 (U.S. # 441)" as a retail shoe store; (2) Danielle be similarly enjoined from operating a retail shoe store; (3) City National Bank of Miami's motion for involuntary dismissal be granted; (4) plaintiff failed to prove its claim for damages; and (5) plaintiff recover its costs from defendants in the amount of $337.75.

The court's conclusions as to the legal issues underlying the injunctive order are set forth in the following excerpt from the trial transcript:

"I want to tell you what my ruling is and how I reached the conclusion. As to the question of damages, I don't think they have been established with sufficient particularity. It's difficult. They don't have to be proven with exactness, but they do have to be established with some degree of certainty. I don't think it's possible for this Plaintiff to have accomplished it because, as has been pointed out by (counsel for Moriber) there are lots of factors that go into shopping center businesses, and those factors are just difficult, if not impossible, to correlate to the point where you can develop loss of business in a shopping center with that degree of certainty.

I think the law requires-I don't think your remedy at law is adequate, and I think you're entitled to one.

I think this clause that gives them the exclusive right to sell shoes applies to Warehouse West and Warehouse East.

Now, it's difficult for me to reconcile the fact that the two leases-that both say Warehouse Lease. The lease to the Plaintiff and the lease to Liza Danielle are both headed Warehouse Lease.

Now, it would seem consistent in the first lease, if there was no contemplation of the construction of Warehouse East, to have simply said in the attached addendum, Warehouse. It's a warehouse lease with a warehouse diagram; why Warehouse West, if it wasn't within somebody's contemplation at that time that there would be a Warehouse East?

I think that the testimony, credible testimony, the believable testimony, the testimony that is most consistent establishes that when this lease was prepared, it was contemplated that this Plaintiff have the exclusive right to sell shoes in this shopping center, which consists of Warehouse West and Warehouse East.

The problem that exists with Liza Danielle is an unfortunate one that I think can be resolved with an adequate remedy at law.

I'm going to enjoin the further sale of shoes in this particular shopping center by anyone other than Plaintiff."

Appellant Moriber raises two issues for our consideration: (1) the record does not support the trial court's finding that the exclusive clause of plaintiff's lease was intended by the parties to the lease to grant an exclusive as to both buildings, and (2) the court abused its discretion in granting an injunction where plaintiff had an adequate remedy at law which it failed to prove and where there was no showing of irreparable harm. Appellant Danielle's arguments are in line with Moriber's latter point. It contends that: (1) the trial court erred in ruling Jamko was without an adequate remedy at law and thus entitled to injunctive relief, and (2) it was error to grant Jamko injunctive relief against Danielle.

With regard to Moriber's first point, we have reviewed the record and found it to contain sufficient evidence to support the holding of the trial court upon this issue. It is well settled law that the trial judge's interpretation of a contract will not be disturbed on appeal unless it is clearly incorrect and unsupported by the evidence in the cause, Safeco Insurance Co. v. Rochow, 384 So.2d 163 (Fla. 5th DCA 1980); General Insurance Co. of America v. Sentry Indemnity Co., 384 So.2d 1305 (Fla. 5th DCA), pet. for rev. dism., 389 So.2d 1110 (Fla.1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979), or unless no valid legal basis exists for the conclusion reached as to the meaning of the ambiguous provision, Spurrier v. United Bank, 359 So.2d 908 (Fla. 1st DCA 1978); Posner v. Flink, 167 So.2d 259 (Fla. 3d DCA 1964). Sub judice, there was testimony, albeit contradicted, which supports the court's finding that the parties intended the exclusive to apply to whatever buildings were constructed on the property which now contains both warehouses. ⁴ The lease, by a fair reading of its various provisions, also supports this interpretation. We therefore affirm the correctness of the court's interpretation of the lease and the exclusive covenant in question.

We are further unpersuaded by Moriber's contention, raised ancillary to his first point, that the court erred in failing to apply the proper legal standard of construction to the exclusive covenant. The rule of construction urged is that an ambiguous provision in a contract or, more particularly, in an exclusive clause in a commercial lease, is to be strictly construed against its drafter or the party for whose benefit it is inserted in the contract. ⁵ , ⁶ While we are unable to determine from the record whether or not this standard was applied, in our view it is uncertain whether application of the standard would lead to the conclusion suggested by appellant, i.e., that the exclusive clause applied only to the one warehouse in which Jamko's store was located, and since the construction reached was, as previously stated, supported by the terms of the lease as well as by competent testimony (that which the court considered to be credible), we discern no error in this finding.

Having determined that no error has been shown in the court's finding that Jamko's exclusive covered both warehouse buildings, which finding is essential to plaintiff's cause of action under either an equitable or an at-law theory, we nonetheless conclude that the pleadings and proofs fail to present a proper case for redress by the extraordinary equitable remedy of injunction and that plaintiff should have been restricted to a purely legal remedy.

We are in agreement with the second point raised by appellant Moriber that the plaintiff failed to prove two interrelated requirements necessary to establish its right to injunctive relief: (1) that it was without an adequate remedy at law, or (2) that it would suffer irreparable harm if the injunction were denied.

Lack of an adequate remedy at law is a prerequisite for equitable relief, and furthermore, "an injunction will not lie where there is a choice between the ordinary processes of law and the injunction, the former being sufficient to furnish the full relief to which the complaining party is entitled." 29 Fla.Jur.2d, Injunctions § 17. On the other hand, however, it has been said that "in order to preclude pursuit of equitable remedies an available legal remedy must be plain, certain, prompt, speedy, sufficient, complete, practical, and efficient in attaining the ends of justice." 29 Fla.Jur.2d, Injunctions § 18. The second of these requirements, that of irreparable injury, has been defined as follows:

Irreparable injury is an injury of such a nature that it cannot be redressed in a court of law, or, as the rule has been otherwise stated, the injury must be of a peculiar nature, so that compensation in money cannot atone for it.

29 Fla.Jur.2d, Injunctions § 22 at 674-75.

We recognize that impossibility of ascertaining the amount of...