Cedar Hills Properties Corp. v. Eastern Federal Corp.

575 So. 2d 673, 1991 WL 7096
CourtDistrict Court of Appeal of Florida
DecidedMarch 11, 1991
Docket90-776
StatusPublished
Cited by42 cases

This text of 575 So. 2d 673 (Cedar Hills Properties Corp. v. Eastern Federal Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cedar Hills Properties Corp. v. Eastern Federal Corp., 575 So. 2d 673, 1991 WL 7096 (Fla. Ct. App. 1991).

Opinion

575 So.2d 673 (1991)

CEDAR HILLS PROPERTIES CORPORATION and Loeb Partners Corporation, Appellants/Cross-Appellees,
v.
EASTERN FEDERAL CORPORATION, Appellee/Cross-Appellant.

No. 90-776.

District Court of Appeal of Florida, First District.

January 25, 1991.
Opinion Amended on Motion for Rehearing March 11, 1991.

*674 Cindy A. Laquidara-Kennedy and Tracy S. Carlin of Commander, Legler, Werber, Dawes, Sadler & Howell, Jacksonville, for appellants/cross-appellees.

William H. Maness, Jacksonville, for appellee/cross-appellant.

WOLF, Judge.

Cedar Hills Properties Corporation (Cedar Hills) and Loeb Partners Realty and Development Corporation (Loeb Partners) appeal from a final judgment entered against them awarding damages and other relief to Eastern Federal Corporation (EFC). EFC cross-appeals the dismissal of its complaint against an individual corporate officer of Cedar Hills as well as the denial of its request for mandatory injunctive relief. We find merit in appellants' position and reverse portions of the final judgment for the reasons enumerated herein. We find no merit in the cross appeal and affirm as to those issues without further discussion.

On August 14, 1980, EFC leased space for the operation of a movie theater at the Cedar Hills Shopping Center which is presently owned by the appellant Cedar Hills.[1] Loeb Partners acted as Cedar Hills' leasing agent and managed the shopping center. As part of its operation, EFC maintained a pole sign near Blanding Boulevard which informed drivers of the movies that were being shown at the theater.

During 1987, Cedar Hills entered into a lease which allowed for the construction of a drive-through restaurant (Rally's) in the common area of the shopping center near EFC's theater. As a result of the construction of Rally's, the pole sign utilized by EFC was removed, and 40 parking spaces in the vicinity of the theater were removed.

EFC alleged that the above actions caused it to incur damages and brought tort and contract actions against Cedar Hills, Loeb Partners and various other parties.[2] The complaint contained counts for conspiracy, tortious interference with a contractual relationship, and breach of contract, and sought a mandatory injunction and damages.

The pertinent portions of the lease contained the following provisions:

Sec. 2.4 Reservation of Rights by Landlord
*675 Landlord reserves the right to change the number and location of buildings... . Such changes will not materially affect the visibility of the tenant's marquee from Blanding Boulevard nor adversely and materially affect access of tenant's customers to convenient parking.
Sec. 5.1 Common Areas and Facilities
Landlord ... may from time to time change the size, location and nature of any common areas and facilities and may make installations therein and move and remove such installations; provided however, notwithstanding anything to the contrary in this paragraph, landlord shall not interfere with or interrupt the convenient use of tenant's facilities by tenant's customers.

In support of its claim for damages at trial, EFC called Mr. Ira Meiselman, president of Eastern Federal Corporation. During Mr. Meiselman's testimony, EFC introduced documents entitled Cedar Hills Theater Damage Estimates and Cedar Hills Theater Statements of Income and Loss. The damage estimates were for an 18-month period from October 1, 1987 to March 31, 1989, and reflected a loss of $111,507.81.[3] He further stated that the analysis utilized for past damages would be valid to determine predicted losses until the end of the present option period, December 31, 1990. His testimony was that any prediction of lost profits after that date would be speculative. Mr. Meiselman further testified that the revenue loss was a result of both lost parking and the removal of the marquee pole sign, and that the two causes were so intertwined he could not determine the sole cause. Mr. Meiselman stated:

The marquee is important; the parking's important. If you tell me, you know, win or lose this case, tell me which one it is that's caused this drop I can't do it. It's the two of them.

Mr. Meiselman testified that EFC had recently spent a large amount of money on improvements to the theater in anticipation of continuing their lease options.

After a nonjury trial, the judge entered a final judgment against Cedar Hills and Loeb Partners which is quoted below in pertinent part:

The consequences inflicted on Plaintiff by the removal of its marquee/sign, with no notice until it was down, and the loss of convenient use of its Theatre by its customers, were disastrous. The loss of approximately 40 parking spaces nearest the theatre was not, per se, a violation of the lease because Cedar Hills reserved the right to alter and modify the buildings and common areas. The removal of the marquee/sign, which was much more essential to its operation, was the direct cause of a decline in its customer admissions of 34.5% in the first twelve months after said marquee/sign was removed. The crucial importance of a marquee/sign to a theatre located in a shopping center was confirmed by expert witnesses. The absence of it caused extreme inconvenience to potential customers who wished to know what movies were being shown.
In reaching the foregoing conclusions, the Court is not overlooking Sections 2.4 and 5.1 of the Cedar Hills Shopping Center store lease dated August 14, 1980, under which Cedar Hills reserved certain rights which, at least arguably, would include the leasing of space for the Rallys Restaurant, but it also required the landlord, in exercising any such rights, not to
"... materially affect the visibility of tenant's marquee from Blanding Boulevard ..." (2.4) and not to "... interfere with or interrupt the convenient use of tenant's facilities by tenant's customers." (5.1)
The removal of Plaintiff's marquee/sign did both, i.e., took away the visibility of the marquee and interfered with or interrupted the convenience use of tenant's facilities by tenant's customers.

*676 As a result of its findings, the court awarded joint and several relief against Cedar Hills and Loeb Partners which included the following:

1. Damages for profits lost from October 15, 1987 projected to and through December 31, 1990, in the sum of $195,960.00;
2. The unamortized cost of remodeling expended in 1980;
3. The replacement value of the marquee sign of $9,890.00;
4. An abatement and reduction of 34.5 percent of its annual cost of occupying the leased premises including rent, real estate taxes, common area maintenance and insurance until the marquee sign could be replaced by a substantially similar sign.

It is not clear from the final judgment whether the trial judge based the relief upon a finding that the defendants committed a tort or whether the judgment was based upon a breach of contract.

The appellant essentially argues on appeal that the judgment must be reversed because:

1. A principal corporation cannot be held liable for conspiring with its own agent;
2.

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Cite This Page — Counsel Stack

Bluebook (online)
575 So. 2d 673, 1991 WL 7096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cedar-hills-properties-corp-v-eastern-federal-corp-fladistctapp-1991.