Sears, Roebuck and Co. v. Franchise Finance Corp. of America, 97-02790
| Decision Date | 24 April 1998 |
| Docket Number | No. 97-02790,97-02790 |
| Parties | 23 Fla. L. Weekly D1065 SEARS, ROEBUCK AND CO., a New York corporation, Appellant, v. FRANCHISE FINANCE CORPORATION OF AMERICA, a Delaware corporation, as successor by merger to FFCA/IIP 1986 Property Company, Appellee. |
| Court | Florida District Court of Appeals |
Ronald S. Holliday and Mercedes G. Hale of Rudnick & Wolfe, Tampa, for Appellant.
James V. Lau of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellee.
Appellant, Sears, Roebuck and Company (Sears), challenges a final summary judgment that declared a condition in a nonexclusive easement unenforceable and void. We reverse.
Sears owns real property (Sears Parcel) in Manatee County on which it operates a retail store. Bradenton Mall Associates (Developer) owns a retail shopping center (Developer Parcel) adjacent to the Sears Parcel. Sears and the Developer, because their parcels were adjacent and their parking areas were accessible each to the other, operated their respective parcels under a joint Operating Agreement. Southern Homes Park, Inc. (Southern), a corporate affiliate of the Developer, owned an "outparcel" adjacent to the Sears and Developer Parcels but not commercially accessible except through the Sears Parcel parking area.
In 1987, Southern contracted to sell the "outparcel" to Suncoast Rax, Inc. (Suncoast), which proposed to build and operate a fast food restaurant on the property. The Southern/Suncoast sale and purchase was conditioned upon Southern acquiring an ingress and egress easement to the "outparcel" over a portion of the Sears Parcel parking area. Simultaneously with the Southern/Suncoast contract, Suncoast contracted to sell the "outparcel," including any easement acquired, to appellee, Franchise Finance Corporation of America (F.F.C.A.), and F.F.C.A. agreed to lease back to Suncoast, pursuant to a long-term lease, the "outparcel" and easement. Developer, then, on behalf of Southern, its corporate affiliate, contacted Sears in an effort to negotiate the easement necessary to effectuate the Southern/Suncoast sale. In order to provide for the easement and in further facilitation of their existing joint Operating Agreement, Developer and Sears further agreed that Sears would, among other things, grant the proposed easement to Suncoast, and the Developer would, in consideration of Sears' undertakings, in addition to "sweeping" the Developer's Parcel parking area also "sweep" the entire Sears Parcel parking area, including the easement parcel. On August 7, 1987, the various negotiations and the conditions precedent to the performance of the various contracts having been successfully concluded, Southern conveyed the "outparcel" to Suncoast and Sears granted a nonexclusive easement over and across a portion of the Sears Parcel parking area to Suncoast and its successors. The easement contained the following provisions:
The rights granted herein shall be perpetual, but shall expire in the event that:
....
(iii) Developer, as defined in that instrument recorded in O.R. Book 556, Page 315, of Manatee County Official Records, as the same may have been or may be amended from time to time, its successors or assigns, shall fail to sweep that portion of Grantor's parcel devoted to customer parking and which includes the Easement Parcel ("Parking Parcel") as shown in yellow on Exhibit C hereto. Grantor, its employees, agents or contractors shall upon written notice to both Developer and Grantee, have the right, at its cost and expense, to sweep the Parking Parcel. In the event that after notice Developer and/or Grantee fails to or refuses to cure, Grantor shall have the right to terminate the easements granted herein by filing a Notice of Termination of Easement in the Public Records of Manatee County, Florida, thirty (30) days, after written notice to both Grantee and Bradenton.
....
Grantee joins in the execution of this easement for the sole purpose of evidencing its obligations under those covenants stated herein.
Subsequently, on April 6, 1988, Suncoast conveyed the "outparcel" together with the nonexclusive easement to F.F.C.A. F.F.C.A. then leased the "outparcel" and easement back to Suncoast. In 1990, as a result of Suncoast going out of business and abandoning the property, F.F.C.A. terminated the lease.
On November 18, 1992, Developer sent F.F.C.A. an invoice for $6,500 representing the charge to cover the annual cost of "sweeping" the Sears Parcel parking area. Developer represented to F.F.C.A. that if this invoice was not paid, Developer would no longer "sweep" the Sears Parcel parking area. F.F.C.A. declined to pay the invoice. Someone other than F.F.C.A. has continued to "sweep" the Sears Parcel parking area. Sears has not attempted to terminate the easement.
Apparently fearing that Sears might seek to terminate the easement upon the nonperformance of the "sweeping" condition, F.F.C.A. brought its declaratory action below seeking to have the "sweeping" condition of the easement declared void and unenforceable.
The trial judge declared the provision of the easement in question a "forfeiture provision" and unenforceable under section 689.18, Florida Statutes (1987). The pertinent portions of section 689.18 provides as follows:
689.18 Reverter or forfeiture provisions, limitations; exceptions.--
(1) It is hereby declared by the Legislature of the state that reverter or forfeiture provisions of unlimited duration in the conveyance of...
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