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Everyone Wants A Pizza The Action
by Ron Davis

The noncompete protection that a Florida shopping center owner granted to a tenant has resulted in a legal quagmire for all parties involved.

The shopping center, located in Hollywood, leases space to the tenant to operate a pizza restaurant. And blame for the legal complications lies squarely on the shoulders of the tenant.

The tenant made sure that his lease with the shopping center contained a clause that prohibited other tenants from selling pizza. After taking that precaution, however, he failed to properly enforce that clause.

His difficulties began when the shopping center leased space to a second restaurant. That lease stated in part that "under no circumstances shall the lessee make or sell...pizza." Nevertheless, that tenant soon added pizza to his menu. And the response by the first tenant to enforce his noncompete agreement seemed to want to carry justice too far. Thatís because the first tenant named the second tenant as well as the shopping center owner of violating his noncompete agreement.

The second tenant disputed his responsibility to the first tenant. He pointed out that the two parties had no agreement of any type.

A Florida judge agreed, not only dismissing the claim against the second tenant, but also awarding the shopping center owner $11,075 in court costs. The first tenant appealed.

A Florida appellate court reversed the ruling favoring the shopping center. Explained the judges, "Because the shopping center owner knew that the second tenant was selling pizza on the same premises as the first tenantís restaurant, we hold that the shopping center owner breached the restrictive covenant by not ordering the second tenant to discontinue selling pizza or face eviction." (Tusa v. Roffe, 791 So.2d 512 {Fla.App.4 Dist. 2001])

Decision: September 2001
Published: January 2002



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