PARK AVE. BBQ v. Coaches Corner, Inc.
| Decision Date | 21 July 1999 |
| Docket Number | No. 97-3496.,97-3496. |
| Parties | PARK AVENUE BBQ & GRILLE OF WELLINGTON, INC., Appellant, v. COACHES CORNER, INC., Appellee. |
| Court | Florida District Court of Appeals |
Mark F. Bideau of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., West Palm Beach, and Michael R. Bakst of Ackerman, Bakst, Cloyd & Bakst, P.A., West Palm Beach, for appellant.
William G. Shofstall, Jr., West Palm Beach, for appellee.
Market Wellington, Inc., Park Avenue BBQ & Grille, Regency Realty Group, RRC Fl. Six, Inc. and Wellington Marketplace Associates, LTD. (here collectively referred to as "Park Avenue" and "Wellington Marketplace") appeal from the final decision of the trial court enjoining Park Avenue from showing televised sporting events to patrons of its restaurant and enjoining Wellington Marketplace from allowing Park Avenue to show televised sporting events. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).
Coaches Corner is a sports bar/sports restaurant in Wellington at the Wellington Marketplace Shopping Center. Coaches Corner and Wellington Marketplace entered into a lease agreement which contained a limited exclusivity provision. Section 5.01(a) of the Addendum to the Lease provided that the landlord would not lease space in the shopping center to a restaurant or bar whose primary use was that of a sports bar/sports restaurant. Sports bar/sports restaurant is defined in section 5.01(a) as any establishment that "devotes more than ten percent of its space to use as a sports bar/sports restaurant or for the viewing of sporting events." Thereafter Park Avenue BBQ Restaurant opened for business in the Marketplace. Park Avenue is primarily a barbecue rib restaurant. Park Avenue has two television sets above its bar for those patrons either waiting in line for a table or for those customers who are sitting at the bar. Coaches Corner alleged that Park Avenue's use of the two TV sets violated its exclusive right to be the only sports bar/sports restaurant in the shopping center.
Coaches Corner filed for declaratory and injunctive relief and after a hearing the trial court entered a final judgment enjoining Park Avenue, the landlord (RRC), and the landlord's management company (Regency) from showing televised sporting events to patrons occupying more than 10% of its space in the shopping center. Park Avenue and the other defendants appeal.
Plaintiff/Appellee, Coaches Corner, Inc. and Defendants/Appellants Market Wellington, Inc., Regency Realty Group, Inc., RRC Fl. Six, Inc., and Wellington Marketplace Associates, LTD., have been able to resolve their differences pursuant to the "Stipulation for Non-Enforcement of Injunction and Dismissal of Litigation." However, Park Avenue BBQ & Grille of Wellington, Inc., continues to proceed with the appeal.
Park Avenue argues that even if Coaches Corner established the elements for injunctive relief, it should be barred from getting an injunction because of the doctrine of laches. Rather than pursuing its claim for injunctive relief right away, Coaches Corner waited until Park Avenue opened for business in January 1996 before filing for the injunction. Two of the four elements necessary for the application of the doctrine of laches are not present here. See Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956)
. Coaches Corner acted promptly when it learned of Park Avenue's intention of televising sporting events. The owner's attorney wrote a letter to the landlord in August 1995 to remind the landlord that Coaches Corner had the exclusive right to sporting events on TV. The lawsuit was filed on August 25, 1995, less than one month after Park Avenue signed its lease and before it opened for business.
Park Avenue next contends that Coaches Corner has no legal right to enjoin Park Avenue because they were not in contractual privity. Park Avenue asserts that in order for one party not in privity with another party to seek a civil remedy against another there has to be a legal duty between them, citing Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980). However, that case merely holds that absence of contractual privity is no bar to a tort claim provided the plaintiff can establish the existence of a duty between the parties independent of the contract.
Coaches Corner responds that the covenant in the lease was negotiated between Coaches Corner and the original landlord, Wellington Marketplace. The restriction was incorporated when the property was conveyed to...
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