E.P. Dobson, Inc. v. Perritt

• Decision Date: 22 August 1990
• Docket Number: No. 21,854-CW,21,854-CW
• Citation: 566 So.2d 657
• Parties: E.P. DOBSON, INC., Plaintiff/Applicant, v. Wade H. PERRITT, et al., Defendant/Respondent. 566 So.2d 657
• Court: Court of Appeal of Louisiana — District of US

Page 657

566 So.2d 657

E.P. DOBSON, INC., Plaintiff/Applicant, v. Wade H. PERRITT, et al., Defendant/Respondent.

No. 21,854-CW.

566 So.2d 657

Court of Appeal of Louisiana Second Circuit.

Aug. 22, 1990.

Thomas, Dunahoe & Thomas by Robert C. Thomas, Natchitoches, for plaintiff/applicant.

Hatch & Smith by James R. Hatch, Homer, for defendant/respondent, Wade H. Perritt, et ux.

Stewart & Stewart by Jonathan M. Stewart, Arcadia, for defendant/respondent, Alton Bell Ford, et ux.

Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.

HALL, Judge:

Plaintiff, E.P. Dobson, Inc., filed an application for a supervisory writ after the trial court denied its exceptions of no cause and no right of action to the reconventional demand filed by defendants, Wade and Judith Perritt, and denied its motion for summary judgment. We granted the writ and, finding merit to the plaintiff's application, now sustain the exceptions and render judgment in plaintiff's favor.

In June of 1986, Alton and Vernelle Ford, as lessor, and Wade and Judith Perritt, as lessee, executed a lease with option to purchase of a lot in Bienville Parish for a term of 30 years, which lease was recorded in the public records of Bienville Parish. The lease contains the following provision:

"ARTICLE XIII

"AGREEMENT NOT TO COMPETE: Lessor understands that it is the intention of Lessee to construct a self service gas and convenience store on the property leased herein and Lessor hereby agrees (as part of the consideration of Lessee entering into this lease) not to construct or operate a self service gas and convenience store or sell or lease property for the construction of a self service gas or convenience store on property now owned or hereinafter acquired by Lessor in Section 7 or 8, Township 18 North, Range 5 West, of Bienville Parish, Louisiana.

"Lessee understands that Lessor holds a mortgage on Nob Hill Inn and Restaurant pursuant to Credit Sale Deed recorded June 3, 1985, in Mortgage Book 173, Registry No. AC-2943, of the records of Bienville Parish, Louisiana, which is located immediately North on Louisiana Highway No. 151 of the property leased herein and hereby agrees (as part of the consideration of Lessor entering into this lease) not to construct or operate a Motel and/or Restaurant or sell or lease the property leased herein for the operation of a motel and/or restaurant."

In 1988, plaintiff purchased property located within the described area from the Fords. The act of sale did not mention the "non-competition" agreement or restrict the use of the property.

Plaintiff sought by declaratory judgment to have the non-competition provision of the lease declared invalid or inapplicable as to it. The Fords and the Perritts were named as defendants. The Perritts reconvened against the plaintiff seeking an injunction preventing E.P. Dobson, Inc. from operating a self-service gas or convenience store. By cross-claim, the Perritts pursued a breach of contract claim against the Fords which is not before us in this writ application. Plaintiff filed exceptions of no cause and no right of action to the Perritts' reconventional demand and filed a motion for summary judgment on its main demand. The trial court denied the exceptions and motion for summary judgment. Plaintiff applied to this court for supervisory writs, which were granted.

Plaintiff contends that the lease provision is personal to the parties to the lease, that the Perritts cannot assert the provision in the lease agreement against it, and that it is entitled to judgment as a matter of law, relying primarily on Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964). Defendant contends that the lease provision created a real right and correlative obligation, either a servitude or a building restriction, that the Leonard case is not applicable to this case because the lease here also granted an option to purchase, and that issues of fact remain in dispute precluding summary judgment.

The primary issue for resolution in this case is whether the lease provision is personal to the parties to the lease or a real obligation. Only if the provision is a real obligation affecting the property purchased by it can E.P. Dobson, Inc. be bound by the non-competition agreement contained in the lease of other property by the Fords to the Perritts.

In Leonard, the plaintiff sought to enjoin Lavigne from constructing, operating or maintaining a filling station. Leonard had leased property from Lavigne's vendor and the lease contained a non-competition agreement. Leonard's lessor agreed "not to sell or lease all or any part of the adjoining" property owned by them to anyone who would engage in a competitive business during the period of the lease. Finding that the obligation in the lease was personal to the parties to the lease rather than a real obligation running with the property, the court sustained the exceptions of no cause and no right of action. The court held:

"While the law favors the free and unrestrained use of immovable property, and any doubt in the interpretation of documents dealing therewith are resolved in favor of the landowner, the real obligation must be clearly apparent from the title documents themselves. The stipulation in the contract of lease does not create a real obligation upon the land itself, but is clearly an obligation the lessors placed upon themselves. Consequently, whatever right the plaintiff has for the breach of this obligation must be exercised against his lessors."

Similarly, in Wolfe v. North Shreveport Development Company, 228 So.2d 148 (La.App. 2d Cir.1969), this court affirmed the trial court's granting of exceptions of no cause and no right of action. Plaintiffs operated a shoe store in leased premises in the Southside Village Shopping Center. They sought to enjoin defendant, another lessee, from selling shoes from another location in the shopping center, relying on a non-competition agreement in their lease. Citing Leonard as authority, we maintained the exceptions of no right and no cause of action...