West Town Plaza Associates, Ltd. v. Wal-Mart Stores, Inc.

• Decision Date: 15 January 1993
• Docket Number: WAL-MART
• Parties: WEST TOWN PLAZA ASSOCIATES, LTD., et al. v.STORES, INC. 1910508.
• Court: Alabama Supreme Court

Page 1290

619 So.2d 1290

WEST TOWN PLAZA ASSOCIATES, LTD., et al. v. WAL-MART STORES, INC.

1910508.

Supreme Court of Alabama.

Jan. 15, 1993.

Rehearing Denied April 9, 1993.

Appeal from Jefferson Circuit Court, Bessemer Division; Roger Halcomb, Judge.

Jesse P. Evans III and Rachel J. Moore of Najjar Denaburg, P.C., Birmingham, for appellants.

Steven A. Benefield and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellee.

ALMON, Justice.

This is an appeal from injunctive relief granted to Wal-Mart Stores, Inc., requiring West Town Plaza Associates, Ltd., ¹ to remove a building constructed in the parking lot of the West Town Plaza Shopping Center. West Town Plaza raises three issues: (1) Whether Wal-Mart, as sublessee, has standing to enforce against the assignee of the lessor an easement granted under the original lease and subsequently incorporated by reference into the sublease agreement; (2) Whether the trial court erred when it construed the lease and sublease agreements to grant Wal-Mart an easement for automobile parking in the parking lot, rather than a right to a minimum number of parking spaces; and (3) Whether the trial court plainly and palpably erred in ordering the removal of a structure located in a parking lot over which Wal-Mart held an easement.

West Town Plaza Associates is the owner of a shopping center in which Wal-Mart, as a sublessee, is a tenant. The original owner and builder of the shopping center executed a lease to F.W. Woolworth Company for space to operate a retail department store (the "Overlease"). Woolworth later subleased the building to Wal-Mart (by a document we will call the "Sublease"). The original owners of the shopping center then transferred their reversionary interest to West Town Plaza, and Woolworth assigned its interest as sublessor to Pine Properties, Inc.

The Overlease between the original owners and Woolworth granted to the lessee Woolworth an easement for automobile parking in the parking lot of the shopping center. Article 2 of the Overlease defined the leased premises as follows:

"Art. 2. The Landlord does demise and let unto the Tenant, and the Tenant does lease and take from the Landlord, for the term and upon the terms and conditions set forth in this lease, the premises now known as West Town Plaza,

"[Address] On U. S. Highway 11, Bessemer, Alabama

"and more particularly described in Schedule 'A' and drawing attached hereto and made a part hereof, together with alley rights, if any, easements, rights and appurtenances in connection therewith or thereunto belonging."

Articles 27 and 28 of the Overlease contain the language whose meaning the litigants now dispute. In Article 27 the original landlord agreed to complete construction of, among other things, "Common Facilities":

"Conditions of Delivery

"Art. 27. (Section I--Construction). The Landlord agrees at the Landlord's expense, to commence, within 180 days after delivery by the Tenant to the Landlord of an executed copy of this lease, and thereafter to complete the construction of such of the following as are not already in existence: (a) retail store building or buildings upon land described as Entire Premises in Schedule 'A' attached thereto, said building or buildings to have not less than 620 lineal feet of frontage and 118,161 square feet of ground floor space (including the demised premises) and to be situated within the area shown as Building Area on the drawing attached to said Schedule 'A'; (b) building and appurtenances on the demised premises in the location referred to in Schedule 'A' hereof, in accordance with plans and specifications prepared by the Landlord and bearing the written approval of the Tenant's Division Construction Director; and (c) certain Common Facilities in accordance with plans and specifications prepared by the Landlord and bearing the written approval of the Tenant's aforesaid Construction Director, consisting of (i) adequate sidewalks, including a sidewalk not less than 13 feet wide abutting each of the pedestrian entrances of the demised premises, (ii) a Service Drive not less than 20 feet wide connecting the Tenant's freight receiving facilities with a public street or highway, (iii) Parking Area or Areas to accommodate not less than 900 automobiles and to be located generally between the Building Area and U.S. Highway 11 and (iv) entrances and exits from and to public streets or highways as shown on said drawing."

(Emphasis added.)

Article 28 specifically grants to the tenant a common or non-exclusive easement to use all "aforementioned Common Facilities including but not limiting the same to ... the use for automobile parking, of the areas designated as Parking Area":

"Use of Common Facilities

"Art. 28. The Landlord hereby grants to the Tenant, its customers, employees and visitors an easement throughout the term hereof to use, in common with others entitled to similar use, all of the aforementioned Common Facilities and in addition thereto any similar future facilities, including but not limiting the same to the use of all the Streets, Service Drives and Sidewalks for ingress and egress to and from the demised premises and the public streets or highways shown on the aforesaid drawing, and the use for automobile parking, of the areas designated as Parking Area; all of said Common Facilities being situated upon land described as Entire Premises in the aforementioned Schedule 'A' and drawing."

Each of these provisions and various others in the Overlease refer to the "Schedule 'A' " drawing to define terms. This drawing describes, by metes and bounds, the locations of the "Building Area," the demised premises under the Overlease, and the sites of various future buildings. The drawing also describes the general location of the shopping center's parking lot, which is designated as "Parking Area min. 950 spaces."

The sublease executed by Woolworth and Wal-Mart incorporated by reference Article 28 of the lease, but excluded, inter alia, Article 27.

In July 1991, West Town Plaza, the assignee of the original lessor, notified Wal-Mart, the sublessee, that it planned to construct a Blockbuster video store near one of the two entrances to the shopping center's parking lot. While the record suggests some communication between the parties regarding construction of the Blockbuster building, West Town Plaza did not seek Wal-Mart's consent. As part of its proposed site plan for the Blockbuster building, West Town Plaza promised to increase the number of parking spaces from 774 to 900 by restriping them. On July 19, 1991, the City of Bessemer issued West Town Plaza a building permit. On July 22, 1991, Wal-Mart appealed to the City of Bessemer Board of Adjustment from the issuance of building permit. On August 2, 1991, pending Wal-Mart's appeal, West Town Plaza began excavation of the site. In response, Wal-Mart applied for a preliminary injunction on August 6, 1991, alleging that West Town Plaza's construction of the building in the parking lot obstructed its easement under the lease agreements. Wal-Mart sought to enjoin construction of the building and to order West Town Plaza to restore the area of the parking lot to its original condition. It was estimated that the Blockbuster building occupied between 30 and 34 parking spaces. The parties stipulated that the building was being constructed in an area of the shopping center's parking lot that had been used for automobile parking. It is undisputed that the building under construction was situated in the area labelled "Parking Area" on the Schedule A diagram. From the record and briefs on appeal, it also appears that by the time the trial court entered its judgment on October 16, 1991, West Town Plaza had substantially completed construction of the Blockbuster building.

After conducting an expedited hearing to consider both preliminary and permanent injunctive relief pursuant to Rule 65(a)(2), Ala.R.Civ.P., the trial judge issued an opinion and entered a judgment for Wal-Mart, holding that West Town Plaza's construction of the building obstructed Wal-Mart's nonexclusive easement over the parking area. The trial court construed the Overlease and the Sublease to grant Wal-Mart an easement over a certain area of property, rather than a right to use a stipulated number of parking spaces, as West Town Plaza had argued. Relying on this Court's opinion in Magna, Inc. v. Catranis, 512 So.2d 912 (Ala.1987), the trial court rejected West Town Plaza's offer to restripe the parking lot as a remedial alternative to removal of the Blockbuster building:

"[West Town Plaza has] presented evidence through experts that by restriping the parking area of Shopping Center they can increase the number of parking spaces provided to a number greater than the number striped before the Blockbuster Building was constructed.... Because Wal-Mart has an easement in the parking area of the Shopping Center for the exclusive purpose of automobile parking, it is entitled to use every square foot of the parking area for that purpose in common with other tenants and their customers and employees. Simply because the Blockbuster Building would not reduce the number of parking spaces if some changes were made to the striping of the parking lot does not reduce or diminish Wal-Mart's right to use the ground on which the building rests for automobile parking."

The trial court permanently enjoined West Town Plaza from obstructing Wal-Mart's easement in the "Parking Area" for automobile parking and ordered West Town Plaza to remove the completed Blockbuster building.

West Town Plaza's first argument is that, as a sublessee, Wal-Mart has no standing to enforce against it any provision of the lease or sublease because, it says, no privity of contract or estate exists between the two parties. In the absence of such privity, West Town Plaza contends, Wal-Mart has a right of action under the sublease only against Pine Properties, Inc., the...