ECKERD CORPORATION v. Corners Group, Inc.ECKERD CORPORATION v. Corners Group, Inc.
ECKERD CORPORATION, Appellant,
v.
CORNERS GROUP, INC., etc., et al., Appellees.
District Court of Appeal of Florida, Fifth District.
*589 Shawn G. Rader, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant.
Michael L. Gore, of Shutts & Bowen LLP, Orlando, for Appellees.
ORFINGER, M., Senior Judge.
Eckerd Corporation (Eckerd) appeals the denial of its request for injunctive relief. At issue is the enforceability of a restrictive covenant placed on a parcel of land by Eckerd, which Eckerd contends would be violated by appellees' plans to construct a competing Walgreens' Pharmacy. Because we agree that the trial court erred in its interpretation of the restrictive covenant, we reverse.
In February 1997,[1] Eckerd purchased a parcel of property at the northwest corner of SR 436 and Howell Branch Road in Seminole County (the "Corners Group Property" or the "restricted parcel"). It was Eckerd's intention to acquire additional adjacent property so as to have sufficiеnt land for a prototype pharmacy and for the required parking, but it was unable to do so. In February 1998, Eckerd sold the restricted parcel to S. Clark Butler, Trustee, after first having duly recorded the following restrictive covenant in the public records of Seminole County.
No part of the property shall be used as a pharmacy or drug store or for the sale or offеr for sale of any pharmaceutical *590 products requiring the services of a registered pharmacist, for a period fifty (50) years from April 7, 1997, and this restriction shall run with the land.
The deed to Butler contained the same restriction. Eckerd then built its prototype store diagonally across from the Corners Group Property.
In December 1998, appellees Corners Group, Inс. (Corners Group) purchased the restricted parcel from Butler, and on the same day, Butler sold adjacent (and unrestricted) property to appellees HB Plaza, Inc. (HBP). The officers, directors and shareholders of Corners Group and of HBP are the same, and are sophisticated real estate developers and investors. Appellees were aware of the restrictions when they purchased the Corners Group Property, and they knew of the location of the Eckerd store across the street when they purchased the property and when they proposed the site to Walgreens. At the December 1998 closing, Corners Group and HBP entered into a reciprocal agreement which essentially tiеd the Corners Group property and the HBP property for development purposes, granting cross-easements for ingress and egress, drainage, signage, parking and the like.
Corners Group then submitted a single development plan for a Walgreen's Pharmacy to Seminole County for approval. As presented to Seminole County by Corners Group, the Walgreens store building would be built on the H.B. Plaza Property and no part of the actual building would be constructed on the Corners Group Property. The Corners Group Property, however, which is encumbered by the restriction, would serve as parking for the store, would contain signage for the development, and would provide one method of ingress and egress to the store. The Walgreens store would contain a pharmacy offering the sale of pharmaceutical products requiring the services of a registered pharmacist.
Eckerd moved for a temporary injunction to stop Walgreens from building its pharmacy across the street. At the evidentiary hearing on the injunction, the Principal Planner for Seminole County testified that because of zoning requirements the parking spaces proposed for the Corners Group Property (the restricted parcel) were absolutely essential to the proposed site plan, and without them the project would not be approved. Following the hearing, the trial court granted Eckerd's request for a temporary injunction. However, on final hearing, after the partiеs stipulated that no additional issues of fact were present and that the court could render a decision as a matter of law, the court denied Eckerd's motion for entry of final judgment, ruled in favor of appellees and dissolved the temporary injunction.
Eckerd contends that the trial court erred when it held that the restrictive covenant does not prohibit the сonstruction of parking spaces, landscape islands or signage in the restricted parcel by its clear and unambiguous terms. Corners Group contends, that because the pharmacy is to be located on unrestricted property, and no part of the structure is actually located on the restricted parcel, merely using the restricted parcel for adjacent parking does not violate the covenant.
Neither the parties nor this court has been able to find a Florida case squarely addressing the issue before us. The general rule of covenant interpretation has been expressed, however, in a long series of cases. While covenants that run with the land must be strictly construed in favor of the free and unrestricted use of real property, a restriction which sufficiently evidences the intent of the parties and which is unambiguous will be enforced *591 according to its terms. Mizell v. Deal,
Appellees point to the case of Siciliano v. Misler,
`No part of the premises hereinafter described shall at any time hereafter be used for the operation of, оccupied by, or have constructed thereon a store or market of the kind character usually and customarily maintained and designated as a super market for the sale, at retail to the public, of raw or processed food products which are not consumed on the premises, or the parking of motor vehicles for the convenience оf the patrons of such a store or market; * * *.'
Appellant built a supermarket on the unrestricted parcel and built the parking lot for the market on the restricted parcel. In reversing a temporary injunction granted by the lower court, the Pennsylvania Supreme Court, relying on the strict construction policy, held that the words "such a" referred only to a store on the restricted parcel, so that both the store and the parking had to be on the restricted parcel in order for the restriction to apply. We find this logic flawed for the reason that it makes the phrase "or the parking of motor vehicles for the convenience of the patrons of such a store or market ..." superfluous. If both the store and the parking are on the restricted parcel there is no need to refer to the parking separately, because the store alone violates the restriction. Clearly, the obvious purpose of the reference to parking was to restrict parking service to a market wherever located, in order to give meaning to those words.
The case of H.E. Butt Grocery Co. v. Justice,
For benefit of HEB, its successors and assigns, Coleridge hereby places the following restrictions on * * * against the use of any portion thereof for the purpose of conducting thereon a foodstore or food department for the storage or sale of off-premises consumption of groceries, meats, produce, dairy products, frozen foods, baking products * * *....
Later, Coleridge sold adjacent land to Justice, a portion of which was subject to the restriction. Justice intended to construct a grocery store on the unrestricted portion, and use the rеstricted parcel for parking, and sought a declaratory judgment that such use would not violate the restrictive covenant. The evidence reflected that, because of the zoning requirements for parking, the proposed foodstore could not be constructed without the use of parking facilities on the restricted tract. The trial court approvеd the use of the restricted tract for parking, but the appellate court reversed, holding:
In construing the restriction we must give effect to that which is expressly set out, together with that which is necessarily implied, to ascertain the intention of the parties. Any doubt or ambiguity *592 will be resolved against the restriction....
The restriction is `against the use of any portion thereof for the purpose of conducting thereon a foodstore'. Manifestly the purpose of such restriction was to prohibit the restricted tract from being used as any necessary part of a competing supermarket with HEB.
The proposed foodstore cannot be conducted without the use of the restricted area. Parking, ingress, egress, delivery of groceries to customers cars, are all under the rеcord essential to conducting the proposed foodstore, and all would take place on the restricted tract. And the Waco City Ordinance requires the proposed foodstore to have 250 to 275 parking spaces in order to operate. This makes the use of the restricted tract an indispensable and mandatory part of conducting the рroposed foodstore. And parking is essential to the use of a building, or to the conduct of a business therein....
The parking lot is thus an integral part of the proposed operation. The foodstore cannot be conducted without it. And the fact others may share in its use does not change this situation.
Parking, ingress, and egress are all necessary and integral parts of the conducting of the proposed foodstore, and are prohibited on the restricted tract by the plain language of the restrictions. Thus any use of the restricted tract for parking, ingress, and egress in connection with the proposed foodstore to be located on adjacent unrestricted premises, is violative of the restrictions .... (citations omitted).
Id. at 630-31. See also Sawdey v. Kopas Corp.,
Finally, although in a different context, we have the recognition by our supreme court that parking for a business enterprise is an integral part of the enterprise. In Homer v. Dadeland Shopping Center, Inc.,
A shopping center planned and developed as a unit may embrace a diversity of stores so as to enable a shopper to fulfill his needs at one stop, but the success of the shopping center depends primarily upon sufficient parking arеa so as to alleviate the ever-increasing traffic problems. So it is that the land used for the parking area is an integral part of the shopping center and just as important to its development as the land upon which the buildings are erected. *593 The tax assessor was justified in placing the same value on the land used for the parking area as the land upon whiсh the improvements were erected. (emphasis added).
Id. at 837.
Here, the manifest purpose of the restriction was to prohibit the restricted parcel from being used as any necessary part of a competing pharmacy. The proposed pharmacy cannot be built without the use of the restricted area, thus making the restricted parcel an integrаl part of the proposed pharmacy. We cannot separate the whole from the sum of its parts.
The order appealed from is reversed, and the cause remanded with instructions to grant appellant's motion for entry of a permanent injunction.
REVERSED and REMANDED.
THOMPSON, J. concurs.
GRIFFIN, J. dissents, with opinion.
GRIFFIN, J., dissenting.
I respectfully dissent.
In Florida, restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property. Lathan v. Hanover Woods Homeowners Ass'n,
I have two problems with the majority decision. First of all, given the principles of construction applicable to this covenant, there is no justification for liberally construing the restrictive covenant and implying a scope of meaning that is obviously beyond its express terms. The words chosen by Eckerd are important: "No part of the property shall be used as a pharmacy or drug store ...." In most of the cases cited by the majority[1], an exрansive reading of the restrictive covenant was supported by the use of very broad language in the covenant itself, such as: "The said premises shall and will not be used or be permitted to be used directly or indirectly in any restaurant operation ...." Sawdey v. Kopas Corp.,
In Siciliano v. Mister,
We think it unnecessary to stray beyond the confinеs of the restrictions to find its meaning. The analysis of the language set out above satisfies us that the appellant's view of the words themselves is clear, and that the appellees' is not, unless the words ["wherever located"] are added to ["the restriction"].
All of these cases except Butt turn on the language actually used.
The language in this case is very precise and extremely narrow. There are no words of expansion at аll. Certainly, based on its intimate familiarity with the property, if Eckerd had intended to bar all use of property auxiliary to a drug store, it would have and should have said so. Given the very limited existing case law on the status of adjacent parking lots and given the principles of construction applicable to restrictive covenants in Florida, it simply makes no sense for this cоurt to attempt to do for Eckerd what Eckerd did not do for itself. Plainly, a parking lot is not a drug store. Presumably, Eckerd's response to this would be that "everybody knows" that a parking lot is part of a pharmacy, but that is not necessarily so. It may be that these stand-alone drug stores that are springing up in and around strip malls across Central Florida often have their own parking lot, but there is nothing in the record to suggest they have to have their own parking lot. Parking can be leased from the mall owner or adjacent property owners. Indeed, in this case, the restricted parcel (parking lot) and the unrestricted parcel (drug store) have separate, if related, corporate owners. Under the majority's reasoning, if the restricted proрerty had been paved and leased to a shopping center for general parking, the restrictive covenant would be violated because a drug store is among the fifty stores in the mall whose patrons park there.
Also, there is sense to the notion that a restrictive covenant should not control the use of property beyond its own boundaries. The restrictive covenant in this case, for example, in no way restricts the use of this property as a parking lot. Any sort of parking lot could be put on this property and it could serve any sort of business imaginable, except, according to the majority, a drug store. Given that a parking lot is permitted on this property, except in connection with a use being made of unrestricted property, I do not see the sense of an expansive interpretation that prevents the owner of this property from using it for parking by persons who wish to patronize the adjacent drug store.
NOTES
[1] The factual recitation is from the joint stipulation of facts entered into between the parties hereto.
Notes
[1] The other case comes from Texas. H.E. Butt Grocery Co. v. Justice,