Rosenberg v. Village Shopping Center, Inc.
| Decision Date | 18 July 1968 |
| Docket Number | No. 31085,31085 |
| Citation | 238 N.E.2d 642,251 Ind. 1 |
| Parties | Sol P. ROSENBERG, Evelyn Hecht Rosenberg and Marshall's Inc., Appellants, v. VILLAGE SHOPPING CENTER, INC., Pennsylvania Real Estate Investment Trust, L. I. Combs, Jr., and Hudson's Inc., Appellees. |
| Court | Indiana Supreme Court |
Arch N. Bobbitt, Indianapolis, Harry A. Psimos, Gary, for appellants; Ruckelshaus, Bobbitt & O'Connor, Indianapolis, of counsel.
Gavit & Gavit, Gary, for appellee, Hudson's in the Village, Inc.
Sackett, Pyatt & Waitkus, Gary, for remaining appellees.
The action below was instituted by appellants as plaintiffs seeking a temporary injunction against the appellees as defendants. Plaintiffs predicated their action on the alleged violation of one of the provisions of a written lease held by them, the terms of which they claimed were breached by the landlord by the denial of an alleged first right in the appellants to the space now occupied by appellee, Hudson's In The Village, Inc., (hereinafter called Hudson's).
The question below was whether or not a temporary injunction should issue.
After the hearing on appellants' complaint, the trial court made and entered its findings of facts and conclusions of law, thereafter it entered an interlocutory order denying the temporary injunction.
Appellants contend the issues before this Court in this appeal are:
'Whether the decision of the trial court is contrary to law. Whether the finding of trial court is supported by sufficient evidence.
Whether the trial court failed to make a finding of an ultimate fact based on uncontroverted evidence as to the waiver of the restriction of assignment of the lease without the consent of the landlord.
Whether the court erred in refusing and denying a temporary injunction to the appellants contrary to law.'
In order that the issues presented below may be clearly delineated we are setting out portions of appellants' complaint and the pertinent portion of the lease on which appellants predicate their right of action.
The pertinent paragraphs of the complaint are numbered and read as follows
'1. That the plaintiffs are engaged in a business of women's apparel and accessories in a price line sold by the defendant Hudson's Inc. at retail in Calumet Township, Lake County, Indiana.
2. That the defendant, Hudson's Inc., is engaged in the sale of women's apparel and accessories at a price line specialized in by the plaintiff and is a rival and competitor in the sale of women's apparel and accessories.
3. That the defendant, Village Shopping Center in Calumet Township, Lake County, Indiana, and has since the execution of the lease hereinafter mentioned conveyed said shopping center to the defendant, Pennsylvania Real Estate Investment Trust of Philadelphia, Pennsylvania, and that L. I. Combs, Jr., and/or Village Shopping Center Inc. is the duly authorized agent, operating an office for said defendants in the Village Shopping Center in Calumet Township, Lake County, Indiana.
4. That on or before the 1st day of November, 1955, the plaintiffs and the defendant, Village Shopping Center, Inc., an Indiana corporation, entered into a written lease, the original of which is in the possession of the defendants, Village Shopping Center, Inc. and/or Pennsylvania Real Estate Investment Trust, and has never been delivered to plaintiffs, whereby among other things, the defendant, Village Shopping Center, Inc., agreed to lease to the plaintiffs a certain storeroom in said shopping center more particularly described in said lease for a period of ten (10) years commencing on November 1, 1955, at an annual rental of minimum SEVEN THOUSAND FIVE HUNDRED and no/100 ($7,500.00) DOLLARS and as additional rental an amount equal to six (6%) per cent of gross sales from ONE HUNDRED TWENTY-FIVE THOUSAND and no/100 ($125,000.00) DOLLARS to TWO HUNDRED THOUSAND ($200,000.00) DOLLARS and five (5%) per cent of all gross sales in excess of TWO HUNDRED THOUSAND ($200,000.00) DOLLARS.
5. The said lease further provides as more particularly appears in the agreement entered into between the plaintiffs and the Village Shopping Center Inc. that in the event the landlord or its assigns should elect to expand the center, the tenant shall be granted the right of first refusal of a women's apparel store in the price line specialized in by the tenant. This right shall be granted to the tenant for a period of three (3) weeks.
6. That pursuant to the terms of said lease the plaintiffs exercised their election to exercise the option contained in said lease and said lease was renewed for an additional five (5) year period from November 1, 1965.
7. That subsequent to the execution of the lease and the election to exercise the option, the said Village Shopping Center Inc. sold and conveyed said shopping center to the defendant, Pennsylvania Real Estate Investment Trust, and assigned thereto the lease referred to in this complaint and that at all times hereinafter mentioned, the defendant, Pennsylvania Real Estate Investment Trust, had full knowledge and notice of all of the terms and conditions of the above and foregoing lease and particularly of the provision set forth in rhetorical paragraph 5.
9. That said agreement, by the terms thereof, as the defendant well knew at the time it was entered into, was for the purpose of securing to the plaintiffs the exclusive advantage which was obtained for the sale of women's apparel and accessories and to prevent the lessor or its assigns from leasing any premises in the Village Shopping Center without first giving the plaintiffs the right to lease said premises in the event the lessor was to lease said premises to a tenant specializing in women's apparel and accessories in the price line specialized in by the plaintiffs and to obtain for the plaintiffs the prestige and renown that would accrue from the exclusive sale of women's apparel and accessorise in a price line specialized in by the plaintiffs in said premises situated in said Village Shopping Center.
10. That plaintiffs have at all times been ready and willing to comply with all of the terms and conditions and covenants in this agreement entered into by the plaintiffs.
11. That the plaintiffs now occupy the said premises leased to them under said agreement and has fitted out the same for the purpose of selling women's apparel and accessories at a cost and upwards of ONE HUNDRED FIFTY THOUSAND ($150,000.00) DOLLARS.
12. That since the execution of the lease as aforementioned there has been an expansion of business traffic in said shopping center; there has been an expansion of the market for the sale of women's apparel and accessories in the price line specialized in by the plaintiffs in said shopping center and the purpose and intention of the said lease was to prevent the defendant lessors from leasing any storeroom in said shopping center to any person specializing in a women's apparel and accessories price line specialized in by the plaintiffs and in the event of any of the above and foregoing expansion factors, the plaintiffs would be given the first right to lease a storeroom in said shopping center which the defendants failed to do.
13. That said lessor and/or its assignee are planning to or has entered into an agreement with the defendant, Hudson's Inc., to lease or has leased to it an adjoining store in said Village Shopping Center near the premises occupied by the plaintiffs and that prior to the execution of the lease to the defendant, Hudson's Inc., said defendant, Pennsylvania Real Estate Investment Trust, was informed of the lease of the plaintiffs and all of its covenants and conditions.
14. That the said defendant, Hudson's Inc., is planning to open a store in said shopping center and is planning to sell women's apparel and accessories in a price line specialized in by the plaintiffs in the premises leased to it by the said lessor and lessor has failed to comply with the covenants and agreements of the said lease in that it has not notified the plaintiffs of its intention to lease the premises to the defendant, Hudson's Inc., and to give the plaintiffs the right of first refusal of a women's apparel and accessories store in a price line specialized in by the plaintiffs.
15. That the defendant, Hudson's Inc., knew of plaintiffs' lease and that the defendant, Pennsylvania Real Estate Investment Trust, leased the said storeroom in said shopping center well knowing the terms of the said agreement.
17. That plaintiffs will be put under irreparable loss and injury if the lessor's assignee, Pennsylvania Real Estate Investment Trust, be suffered to break its agreement with the plaintiffs and that plaintiffs will be damaged in business if the defendant, Hudson's Inc., sells women's apparel and accessories in a price line specialized in by the plaintiffs in said shopping center, thus depriving the plaintiffs of the prestige and renown which it has acquired by the sale of women's apparel and accessories in said shopping center and plaintiffs will be damaged in the loss of receipts will be sale of women's apparel and accessories by reason of the sale of said merchandise in the store to be occupied or occupied by the said defendant, Hudson's Inc., in said shopping center in a manner altogether impossible to be compensated for in an action for any damages and can in no other place obtain the same advantages for the sale of women's apparel and accessories in the store occupied by it in said shopping center.
19. That plaintiffs have never been notified of the execution of any lease with the defendant, Hudson's Inc., and plaintiffs were informed that the defendant, Pennsylvania Real Estate Investment Trust, intends to and if not restrained therefrom will go forward with the intended lease or tenancy agreement with the said Hudson's Inc.
20. That an emergency exists in that the defendant, Hudson's Inc., is planning a grand opening in the premises above described...
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