Lessee is leasing the leased building for use as a supermarket and other parts of the leased property for parking and other uses incident to a supermarket business, but LESSEE'S use of the leased building and the leased property shall not be limited nor restricted to such purposes, and said building and property may be used for any other lawful business, without the consent of LESSOR.Īlthough the language of this lease with regard to appellant's obligation to continue business operations in the leased premises during the term of the lease is not as clear as the language in non-abandonment clauses such as those quoted in Kroger Co. In addition to the facts set out in the majority opinion, it should be noted that the complete text of the lease provision on which appellees rely reads as follows: BOSWELL, J., concur.īecause I disagree with the majority's assertion that the language of the lease expressly negates a requirement of continuous operation, and because I would hold that the Court of Appeals was correct in holding that there was in this case both an express covenant and an implied covenant of continuous operation, I must respectfully dissent to the majority's reversal of the judgment of the Court of Appeals. SMITH, P.J., WELTNER and FLETCHER, JJ., and Judge STEPHEN E. The parties did not agree to nor bargain for appellant's continuous operation of the premises, and we are not authorized to rewrite the contract to create such a provision. 1113 et seq., Construction and Application of Provision in Lease Under Which Landlord is to Receive Percentage of Lessee's Profits or Receipts. Likewise, the existence of a substantial minimum base rent, in addition to the provision for percentage rental payments, suggests the absence of an implied covenant of continuous operation.
PIGGLY WIGGLY MACON GA FOR FREE
The agreement's provision for free assignability by the tenant, without consent of the lessor, weighs strongly against a construction of the contract which would require the tenant to continue its business throughout the term *480 of the lease. Rather, the contract, read as a whole, indicates otherwise.
Nor does the lease agreement contain any provision which would create an implied covenant of continuous operation. LESSEE'S use of the leased building and the leased property shall not be limited nor restricted to such purposes, and said building and property may be used for any other lawful business, without the consent of LESSOR (emphasis supplied). The language of the agreement expressly negates a requirement of continuous operation: Financial Properties Developers, Inc., 175 Ga.
PIGGLY WIGGLY MACON GA TRIAL
Rather, the language of the agreement is plainly to the contrary, and, therefore, the trial court, the Court of Appeals, and this court are not authorized to construe it otherwise. We agree with appellant that the lease agreement between the parties does not contain an express covenant of continuous operation. Appellees filed suit seeking damages for appellant's alleged breach of the lease. While appellant continued to pay the annual base rent to appellees, it refused to sublease the vacant store, despite the interest of other supermarkets in the abandoned space. Appellant exercised both renewal options and, after it was acquired by a new corporation, one month into the second 3-year term, closed its store, vacated the premises, and moved its grocery store operation to a nearby shopping center belonging to its new owner. The lease was renewed on the same terms for an additional seven years in 1979, with options to renew for two additional 3-year terms. Appellant drafted the lease, which began in 1964 for a term of 15 years, and called for an annual base rent of $29,053.60 as well as a percentage rent of annual gross sales exceeding $2,000,000.
In 1963, the parties executed a lease in which appellees' predecessor agreed to construct a supermarket for appellant according to plans prepared by appellant. We granted the writ of certiorari to determine whether the Court of Appeals was correct in its construction of the parties' lease, and reverse. Both the trial court and the Court of Appeals held the lease contained an express continued use covenant as well as an implied covenant of continued operation. This case involves the construction of a shopping center store lease. Garland, Hall, Bloch, Garland & Meyer, J. Edwards, Martin, Snow, Grant & Napier, Macon, for Piggly Wiggly Southern, Inc.īenjamin M.
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