Opinion
Civil Action No. 18040
May 4, 2001
Richard D. Abrams, Esquire, Heckler Frabizzio.
Richard L. Abbott, Esquire, Patricia L. Enerio, Esquire, The Bayard Firm.
Collins J. Seitz, Jr., Esquire, Samuel D. Brickley II, Esquire, Connolly Bove Lodge Hutz.
Dear Counsel:
Defendant Odd Job Acquisition Corporation ("Odd Job") has filed a motion for partial summary judgment on a cross claim for costs and attorneys' fees against defendant Chestnut Hill Plaza Holdings Corporation ("Chestnut Hill"). Both Odd Job and Chestnut Hill are defendants in a suit brought by Wakefern Food Corporation ("Wakefern") and ShopRite of Newark Delaware, Inc. (individually and collectively with Wakefern, "ShopRite"), for breach of, and tortious interference with, ShopRite's lease in the Chestnut Hill Plaza Shopping Center (the "Shopping Center"). The suit was brought after ShopRite learned that the Odd Job store in the Shopping Center was selling certain food and cleaning items that ShopRite considers to be groceries. According to ShopRite, its lease prohibits Chestnut Hill from permitting any other tenant to sell groceries in the Shopping Center.
Section 25.1 of the lease between Odd Job and Chestnut Hill states that if Odd Job is brought into litigation because of the claimed acts or omissions of Chestnut Hill, then Chestnut Hill shall pay the costs and attorneys' fees of Odd Job. Odd Job asserts that § 25.1 binds Chestnut Hill to indemnify Odd Job's litigation costs for this action. Odd Job argues that the only reason it has been dragged into this suit is because Chestnut Hill leased to Odd Job without informing Odd Job of restrictions in its lease with ShopRite (the "ShopRite Lease") that arguably limit any other tenant's right to sell grocery items. This argument entitles Odd Job to summary judgment if it is indisputably clear that Odd Job is operating within the confines of its own lease. If so, it is solely Chestnut Hill's claimed acts or omission — its alleged breach of ShopRite's allegedly exclusive right to sell groceries — that is the legally proximate causes for Odd Job's defendant status in this suit, because Chestnut Hill leased to Odd Job knowing of its lease with ShopRite and did not provide that lease to Odd Job. Because Odd Job's sale of certain grocery items does not violate its lease, I therefore grant its motion for summary judgment.
I. Facts
Wakefern and ShopRite sued Chestnut Hill and Odd Job for alleged violations of ShopRite's assertedly exclusive right to sell certain items in the Shopping Center. Wakefern is a retailer-owned supermarket cooperative, the stockholders of which own and operate ShopRite supermarkets. Chestnut Hill is the landlord of the Shopping Center in Newark, Delaware. Odd Job is a retail store chain that sells closeout and other merchandise, including some food products.
On December 28, 1971, ShopRite entered into the ShopRite Lease with Chestnut Hill for ShopRite's store at the Shopping Center. The ShopRite Lease is for a term of 25 years with four successive options to renew for renewal periods of five years each. The ShopRite Lease contains an exclusive use provision, which states that:
Lessors shall not, during the term hereof and any extension of such term, operate a store or department of a store or permit another to operate a store or a department of a store at the shopping center or at any property owned or controlled, directly or indirectly, by Lessors . . . within a radius of one (1) mile of the shopping center, as a supermarket, for the sale of groceries, for the sale of meat, or for the sale of produce or dairy products.
ShopRite Lease ¶ B4.
In early 1999, Odd Job began negotiating with Chestnut Hill over whether to lease a site at the Shopping Center for the operation of a store. During the course of negotiations, Odd Job asked for an identification of existing uses within the Shopping Center that would conflict with its intended operations.
In a faxed letter of May 4, 1999, Chestnut Hill responded to Odd Job's request for the restrictions imposed by the leases of other tenants in the Shopping Center and provided Odd Job with a laundry list of excluded and restricted activities. But Chestnut Hill did not provide any description of the restrictions contained in the ShopRite Lease. The letter states as follows:
As per your request, below you will find a list of " EXCLUSIONS", " PROHIBITED USE" AND " RESTRICTED USES" in place with the leases for Chestnut Hill Plaza Holdings Corp.
EXISTING TENANT: Exclusive right in the Shopping Center to sell, rent, and/or distribute pre recorded video cassettes, tapes, and disks, video software video merchandise, including the sale and/or rental of any substitutes for, or items which are a technological evaluation of any of the foregoing items. Nothing contained herein shall limit or restrict any tenant, existing or future, from selling blank or unrecorded video cassettes or selling instructional promotional video cassettes or from selling video hardware including VCR video cameras.
EXISTING TENANT: Chestnut Hill Plaza Holdings Corp. agreed not to lease any other space in the Shopping Center for use principally for sale of tires or automobile service or to any tenant whose main principal business is the sale of automobile accessories.
EXISTING TENANT: Exclusive Use; No part of the Center nor any property with in [sic] one mile of the Center owned by Landlord or entity under common control with Landlord shall be used for the sale or leasing of office furniture or office supplies or the provision of copying or printing services then provided by tenant. Prohibited Uses; Except with the prior consent of Tenant, which may be withheld in Tenant's sole but reasonable business judgment, no part of the Center shall be used for any of the following health, exercise or racquet club or spa (except that the same may be located on the Theatre Site or on the Pad Sites, as designated), gymnasium, bowling alley, skating rink or other sports or recreational facility; school, library, reading room, or house of worship; movie theater, gallery (excepting a retail sales gallery), auditorium, meeting hall, hotel or motor inn; massage parlor, adult bookstore, a so called head shop, off-track betting or check cashing facility, car wash, automobile repair work or automotive service, automobile body shop (except that one may be located on the "Goodyear Pad" as designated), automobile, boat, trailer or truck leasing or sales, amusement park, carnival, banquet facility, dance hall, disco, nightclub, or other entertainment facility including video game room, pool hall, arcade, indoor children's recreational facility or other amusement center, any manufacturing, warehouse or office use (except incidental or a retail operation), funeral parlor, animal raising or storage, pawn shop, flea market or swap meet, junk yard, drilling for and/or removal of subsurface substances, dumping, disposal, incineration or reduction of garbage or refuse, other than in enclosed receptacles intended for such purposes, or any use which constitutes a public or private nuisance or produces objectionable noise or vibration.
Restricted Uses: No part of the Center within 300 feet of the Premises shall be used for a restaurant, tanning facility, Laundromat, tavern, bar or any other use which would place an undue burden on parking.
Supp. to Ans. Br. Ex. 5 (letter from Christina Prata to Warren Grad).
On August 13, 1999, Odd Job entered into a lease with Chestnut Hill (the "Odd Job Lease") for Odd Job's store at the Shopping Center. That lease permits Odd Job to operate a store for the sale of "general merchandise and closcouts." The Odd Job Lease — like the letter quoted above — contains an enormous number of restrictions. But the Odd Job Lease nowhere expressly prevents Odd Job from selling grocery items.
Odd Job Lease at 3.
Sometime after Odd Job opened for business in December 1999, ShopRite became aware that Odd Job was selling certain items that allegedly fell within the category of groceries. In a letter of December 29, 1999, Wakefern wrote Chestnut Hill that Odd Job was in violation of the ShopRite Lease for "selling an extensive amount of grocery items, including but not limited to candy, cookies, soup, snacks, cereal, household paper products and cleaners." The letter went on to state that Chestnut Hill's decision to permit Odd Job to sell "grocery, meat, produce or dairy products" violated Paragraph B4 of the ShopRite Lease.
Supp. to Ans. Br. Ex. 4 (letter from Ann Marie Burke to Lauren DeMichiel).
Id.
ShopRite thereafter commenced an action in this court on May 8, 2000 against Odd Job and Chestnut Hill for breach of the ShopRite Lease.
II. The Subject of The Present Motion
The subject of this opinion is the controversy over whether Chestnut Hill is liable for Odd Job's costs and attorneys' fees in the suit brought by ShopRite. Section 25.1 of the Odd Job Lease contains an attorneys' fees provision which provides:
If either party hereto be made or becomes a party to any litigation commenced by or against the other party involving the enforcement of any of the rights and remedies of such party, or arising on account of the default of the other party in the performance of such party's obligations hereunder, or if either party shall be made or become a party to any litigation as a result of the act or omission (or claimed act or omission) of the other party, then the prevailing party or the party in any such litigation, or the party becoming involved in such litigation because of a claim against such other party, as the case may be, shall receive from the other party all costs and reasonable attorney's fees incurred by such party in such litigation.
Odd Job Lease § 25.1 (emphasis added).
Odd Job claims, and Chestnut Hill admits, that Odd Job asked for copies of the leases of the other tenants in the Shopping Center that would restrict or limit Odd Job's operations. Chestnut Hill identified the restrictive uses of several other tenants but remained silent about ShopRite. Thus, Odd Job had no knowledge of the restrictions in Paragraph B4 of the ShopRite Lease. Odd Job then signed a lease that, in its view, permits it to sell the products that ShopRite now contests. From Odd Job's view, it was dragged into this suit because Chestnut Hill as a landlord failed to: (1) provide Odd Job with the relevant sections of the ShopRite Lease; (2) agreed to the Odd Job Lease with full knowledge of the ShopRite Lease; and (3) failed to restrict Odd Job from selling items restricted by the ShopRite Lease.
Op. Br. at 3; Supp. to Ans. Br. Ex. 5 (letter from Christina Prata to warren Grad).
Chestnut Hill's counter-arguments are somewhat contradictory. As an initial matter, Chestnut Hill says that Odd Job's sales of food items do not violate the ShopRite Lease. Because of its view that the ShopRite Lease only restricts Chestnut Hill from leasing to another supermarket, Chestnut Hill allegedly did not give the ShopRite Lease to Odd Job because Odd Job's activities would not violate the ShopRite Lease. As a result, Chestnut Hill contends that no claimed act or omission of its own led to ShopRite's suit against Odd Job. Rather, Chestnut Hill says that it innocently finds itself in the same pickle as Odd Job and should not have to bear Odd Job's fees.
In the alternative, Chestnut Hill makes three other arguments. First, it claims that it was Odd Job employees who alerted ShopRite to Odd Job's sale of groceries. Chestnut Hill argues that this tip-off of ShopRite is the motivating force for ShopRite's suit and not any claimed act or omission of Chestnut Hill.
Second, Chestnut Hill contends that it could not have caused ShopRite to sue Odd Job for tortious interference with the ShopRite Lease. Despite the fact that Chestnut Hill admits it did not give Odd Job the ShopRite Lease before Odd Job signed its lease, Chestnut Hill says that the fact that the plaintiffs pled that Odd Job had knowledge of the ShopRite Lease is dispositive and demonstrates that it was Odd Job's own acts that caused it to be sued.
Finally, after briefing was completed on this motion, a Chestnut Hill employee surfaced a remarkable memory and recalled, nearly nine months into this litigation, that Odd Job's lease does not permit it to sell groceries after all. The term "general merchandise" in the Odd Job Lease is, Chestnut Hill says now, a term of art that excludes soup, pasta, and certain other controversial items that Odd Job sells. Absent the sale of these items, Chestnut Hill says, ShopRite would not have sued and thus it is Odd Job's non-lease-compliant sales that are the alleged acts or omissions giving rise to this suit.
I address these arguments in turn, applying the well-settled standard under Court of Chancery Rule 56.
Williams v. Gejer, Del. Supr., 671 A.2d 1368, 1375 (1996).
If, in the end, Chestnut Hill is proved to be correct, it asserts that it should not have to bear Odd Job's fees in this litigation. In that case, Chestnut Hill and Odd Job would both be innocents who have suffered the costs of litigation that often accompany participation in the modern commercial world. Each will have to lick its own wounds, and go on.
This argument, however, is persuasively countered by Odd Job. The Odd Job Lease provision at issue is one that allocates economic risk. As Odd Job argues, it was Chestnut Hill that was in the best position to protect against a suit like this. Indeed, Chestnut Hill assumed for itself the singular role of determining whether the Odd Job Lease permitted uses in conflict with the ShopRite Lease. After all, it was Chestnut Hill that owed a duty to ShopRite not to provide other tenants with lease rights that conflicted with ShopRite's exclusivity rights under Paragraph B4 of the ShopRite Lease.
Moreover, Odd Job requested other tenants' leases. Chestnut Hill exercised its own judgment and determined not to provide the ShopRite Lease to Odd Job, thus depriving Odd Job of the opportunity to assess this commercial risk for itself.
Given these undisputed facts, it is clear that the Odd Job Lease shifts Odd Job's costs for this suit to Chestnut Hill so long as Odd Job is operating in conformity with the Odd Job Lease. That is, if Odd Job's sales of grocery items are permitted by the Odd Job Lease, then it has been sued by ShopRite solely because of a "claimed act or omission" of Chestnut Hill. Chestnut Hill's arrangements with its other tenants are a matter of its own responsibility. Whether Chestnut Hill's view of the ShopRite Lease is correct or not, it was Chestnut Hill that proceeded to enter into the Odd Job Lease with full knowledge of the ShopRite Lease. Put simply, if Odd Job's grocery sales are authorized by its lease, Odd Job has —. as a legally relevant matter — been dragged into this suit solely because of Chestnut Hill's claimed act or omission — that is, Chestnut Hill's alleged breach of Paragraph B4 of the ShopRite Lease. To hold otherwise would deprive Odd Job of the full benefit of its lease and to impose an economic risk on Odd Job that Chestnut Hill assumed.
B. The "Taunting" Incident
Chestnut Hill alleges that Odd Job employees went into the ShopRite store at the Shopping Center and bragged to ShopRite employees about how Odd Job was going to sell certain food items — such as cream of mushroom soup — at cheaper prices. Even if this rather comical incident occurred, it is legally irrelevant in determining whose claimed act or omission, under the Odd Job Lease, caused the lawsuit. The fact that Odd Job employees may have given ShopRite notice of Chestnut Hill's alleged breach of the ShopRite Lease is irrelevant. The pertinent question is: whose legally cognizable act or omission is the basis upon which ShopRite may obtain relief and is therefore the proximate cause of the suit? If Odd Job was complying with its lease, but thereby unwittingly interfered with the ShopRite Lease that Chestnut Hill did not inform Odd Job of, then Odd Job's status as a defendant still results from Chestnut Hill's alleged breach of Paragraph B4 of the ShopRite Lease.
C. Tortious Interference
Odd Job cannot be deemed to have been sued by ShopRite solely for an act or omission by Chestnut Hill, Chestnut Hill claims, because Odd Job is being sued on a count of tortious interference with the ShopRite Lease, independently of the breach of contract count against Chestnut Hill. But the separate count of tortious interference against Odd Job does not provide a safe harbor for Chestnut Hill.
Ans. Br. at 10.
The elements of a tortious interference with contract are: "(1) a contract, (2) defendant's knowledge of the contract, (3) an intentional act that is a significant factor in causing the breach of the contract, (4) lack of justification and (5) injury." Chestnut Hill has admitted that it did not provide Odd Job with the ShopRite Lease, and there is no record evidence that Odd Job otherwise was aware of its contents. Therefore, if Odd Job's lease-compliant sales arguably violated the ShopRite Lease, then the only reason Odd Job has been sued for tortious interference is because of Chestnut Hill's alleged violation of Paragraph B4 of the ShopRite Lease. Because Chestnut Hill did not provide the ShopRite Lease to Odd Job, Odd Job had every reason to believe it could permissibly sell .any products permitted by its lease without injuring ShopRite.
Cantor Fitzgerald v. Cantor, Del. Ch., 724 A.2d 571, 584 (1998).
D. Odd Job's Alleged Breach of The Odd Job Lease
Chestnut Hill contends that the Odd Job Lease prohibits Odd Job from selling the grocery items that ShopRite contends are its exclusive right to sell in the Shopping Center. As a theoretical matter, this is the one good defense that Chestnut Hill has. If it is true that Odd Job is in violation of its own lease in selling the items in question, then it could be Odd Job's breach of the Odd Job Lease, and not Chestnut Hill's alleged act or omission, that is the cause of Odd Job's status as a defendant in this action.
The reason for this conclusion is that Chestnut Hill could have acted to protect ShopRite and thereby itself by restricting Odd Job to the sale of items that would not violate ShopRite's exclusive rights. If it were the case that ShopRite sued only because Odd Job was selling products that Odd Job was not authorized by its lease to sell, then Odd Job's status as a defendant could not be laid solely at Chestnut Hill's door. Rather, Odd Job's failure to abide by its own lease would be the act or omission giving rise to this suit — as between itself and Chestnut Hill.
In a pure case, where only non-lease-compliant sales motivated ShopRite's suit, Odd Job could theoretically owe Chestnut Hill indemnification. In a mixed case where lease-compliant and non-lease-compliant sales motivated this suit, it may be that Odd Job and Chestnut Hill each has to bear its own costs.
Chestnut Hill's argument that Odd Job is violating its lease came as a surprise. It was not advanced until December 12, 2000 after briefing on this motion was completed. Even more curious is the argument's grounding in a recollection of a Chestnut Hill executive that arose on February 7, 2001, after her deposition.
Crossclaim Against Odd Job ¶¶ 2, 5.
Chestnut Hill bases its new argument on the Odd Job Lease's Intended Use section. That section states that "[t]he premises may be used and occupied for the sale of general merchandise and closeouts, subject to the restrictions listed below, which [Odd Job] shall not violate." The restrictions in that section are numerous but in no way relate to groceries or ShopRite's line of business. Nonetheless, without citation to legal authority or trade usage, Chestnut Hill now claims that the term "general merchandise" in the Odd Job Lease is too constrictive to encompass food items such as pasta, sauces, soups, and canned vegetables, although it admits that the term would cover food items such as snack foods and candy, as well as core grocery items such as condiments, sugar, flour, and spices. Although they do not take on the closeout issue directly, one infers that Chestnut Hill is implicitly claiming that the pasta, sauces, soups and canned vegetables Odd Job sells are not closeouts. Chestnut Hill also ignores ShopRite's complaints about sales of non-food items, such as cleaning items, which are not edible.
Odd Job Lease at 3.
Id. at 3-4.
DeMichiel Aff. ¶ 5.
Id. ¶ 3.
DeMichiel Dep. at 49.
Chestnut Hill buttresses its linguistic argument with an affidavit from the Chestnut Hill employee who negotiated the Odd Job Lease, which is designed to support the proposition that Chestnut Hill's supposedly narrower conception of "general merchandise" was that contractually agreed upon by Odd Job and Chestnut Hill. The dubious timing of the affidavit has been explained as follows: Chestnut Hill claims to have "discovered" Odd Job's breach only after a deposition triggered the recollection of Lauren DeMichiel, Vice President of Chestnut Hill, who negotiated the Odd Job Lease.
The affidavit setting forth Ms. DeMichiel's recently recalled memory states as follows:
3. . . . Odd Job was represented by its employee, Timothy E. Keeley ("Keeley") [in its negotiations with Chestnut Hill over the Odd Job Lease]. . . . I asked Keeley what types of products Odd Job would sell. . . . Specifically, I informed Keeley that I wanted to know what types of food products Odd Job would be selling so that Chestnut Hill would not have any problems or complaints from the ShopRite supermarket. Keeley was very vague in his response, but . . . did indicate that Odd Job would only be selling snack foods and candy and that there would not be any problem with ShopRite.
4. I relied upon Keeley's representations regarding the limited types of food products that Odd Job would be selling in deciding to negotiate and ultimately execute a lease with Odd Job.
5. If Keeley had informed me that Odd Job would be selling items such as pasta, sauces, soups, and canned vegetables, I would have insisted upon provisions in the Odd Job Lease which would have prohibited the sale of such items in order to avoid any potential conflict with the ShopRite supermarket.
DeMichiel Aff.
While the foregoing paragraphs of DeMichiel's affidavit imply why she now alleges that Odd Job is in breach of its lease, subsequent testimony in her affidavit casts doubt on her assertion. These paragraphs acknowledge that Chestnut Hill has leased to other tenants that sell food items such as soups and pastas without restriction by Chestnut Hill or complaints by ShopRite.
6. . . . Gaylord's lease specifically indicated that it was a store for the sale of "general merchandise". Gaylord's sold many of the same snack food and candy items that Keeley had represented Odd Job would be selling.
7. . . . Ames took over the Gaylord's lease and continued selling general merchandise . . . including snack foods similar to those Keeley indicated would be sold by Odd Job.
8. . . . The Eckerd lease provides that it may only sell those items typically sold by a drug store at the time that the lease was executed — 1971. At that time, the Eckerd store in the shopping center did not sell many of the food and snack items that are currently sold by it. Over the years, the Eckerd store in the Shopping Center has added food products such as canned soups, milk, and other food items which do not fall into the general category of snack foods or candy.
9. The ShopRite supermarket . . . has never complained of any of the items sold by Eckerd over the years, and has never taken any legal action to prohibit the Eckerd drug store from selling such items.
10. The Odd Job store . . . sells only a few types of items beyond those sold for decades by Gaylord's, Ames and Eckerd. These items include canned soups, sauces and vegetables.
11. The Odd Job store . . . is not a supermarket, nor does it have a department that operates as a supermarket.
Id.
The revelations set forth in the DeMichiel affidavit are intriguing in light of the evidence in the record that precedes it. Indeed, this evidence casts doubt on whether Chestnut Hill's claim that Odd Job is in breach of its own lease is made in good faith. The record evidence suggests that this claim is a recently-invented contrivance for the following reasons:
• In her deposition, Ms. DeMichiel of Chestnut Hill admits that she knew Odd Job would be selling certain types of food: When asked, "So you weren't aware that they were going to be selling pasta sauces and condiments and other types of food?", DeMichiel responded, "I thought they might sell condiments, sugar, flower [sic], spices. I've seen that in that type of store."
• DeMichiel also stated that she did not know if other foods would be sold and did not ask: When asked "Did you request a list of the items from Mr. Keeley that were sold in Odd Job stores?", she answered, "No, I didn't." This is contrary to her affidavit in which she stated "I asked Keeley what types of products Odd Job would sell at its proposed store."
• When asked at her deposition if she thought Odd Job would sell food products such as the soups and pastas they are selling today, DeMichiel responded, "Well, it changes everyday,. . . ."
• The Odd Job Lease contains numerous restrictions, but none relate to groceries.
• In a letter to Wakefern, Chestnut Hill's own attorney stated that Odd Job's sales of grocery items were not restricted by the Odd Job Lease.
• Chestnut Hill knew Odd Job was selling these grocery items for at least seven months (counting from when ShopRite filed suit on May 8, 2000 to Chestnut Hill's Crossclaim on December 12, 2000) before claiming breach of the Odd Job Lease.
• Chestnut Hill has not asserted that the food items in question sold by Odd Job are not "closeouts," which are clearly permitted by the Odd Job Lease.
• Chestnut Hill admits it has two other tenants, Eckerd's and Ames that currently sell food products, yet ShopRite never alleged that their sales breached its exclusive rights. These asserted facts comport with the lack of concern over food sales reflected in DeMichiel's deposition testimony about the lease negotiations with Odd Job.
Although the transcript of the deposition reads "flower", the court assumes, given the nature of other items DeMichiel lists and her use of the singular form, that "flour", the baking ingredient, was intended.
DeMichiel Dep. at 49.
Id. at 187.
DeMichiel Aff. ¶ 3. This contradiction is highly problematic for Chestnut Hill because "[a] party cannot raise a genuine issue of material fact by submitting affidavits that directly contradict . . . earlier testimony." Continental Insurance Company v. Rutledge Company, Inc., Del. Ch., 750 A.2d 1219, 1232 (2000) (holding that the court must not consider affidavit testimony that contradicts earlier depositions).
DeMichiel Dep. at 49.
Ans. Br. Ex. 4 (letter from Brent C. Shaffer to Anne Marie Burke).
This is evidence of "course of performance" that bears on the meaning of the contract. "Where there are repeated occasions for performance by one party and the other has knowledge of the nature of the performance and an opportunity to object, a course of performance may be relevant to show the meaning of the modified contracts." Lowe v. Bennett, Del. Super., C.A. 94A-05-001, 1994 WL 750378, at *3, Graves, J (Dec. 29, 1994) ( citing Canada v. Allstate Ins. Co., 411 F.2d 517, 519 (5th Cir. 1969); Universal Builders v. Moon Motor Lodge, 244 A.2d 10, 16 (Pa.Super. 1968)).
For these factual reasons, the court grants partial summary judgment for Odd Job on its claim for costs and reasonable attorneys' fees. Chestnut Hill has done little to show what it subjectively intended by the seemingly capacious term "general merchandise," has no evidence that it expressed that subjective intent to Odd Job, or that it intended to restrict the particular food items about which ShopRite claims from being sold by Odd Job. If Chestnut Hill wanted to restrict Odd Job from selling groceries, its clear chance to do so was during these negotiations. DeMichiel was on clear notice that Odd Job would sell the most basic of groceries — flour, sugar, and spices. If Chestnut Hill did not object to the sale of basic groceries, which DeMichiel said she had seen in other similar stores, it is implausible for her to claim now that Chestnut Hill did not contemplate the sale of groceries by Odd Job.
In fact, "general merchandise" has been used to include items such as those in question here. In Parker v. Levin, 188 N.E. 502 (Mass. 1934), a lease between a landlord and the Great Atlantic and Pacific Tea Company was "for the purpose of a general merchandise business, including fresh meats, fish, fruits, vegetables, delicatessen, pastry items." Id. at 503 (emphasis added). In Parker, because the plaintiff tenant's lease and Great Atlantic's lease both listed "delicatessen" as a purpose, the judge found that the landlord's covenant not to locate another delicatessen on the premises was broken. Id. No such clear violation exists here. Berkeley Development Co. v. Great Atlantic Pacific Tea Company, 518 A.2d 790 (N.J.Super. 1986) posed the question. "does a tenant-assignee, a modern chain drug store, selling general merchandise including food, have the right to enforce a covenant against competition contained in an original lease between the landlord, a shopping center owner, and the original tenant-assignor, a supermarket, where the tenant-assignor has ceased operations within the shopping center?" Id. at 792 (emphasis added). The court answered the question in the negative. Id.
DeMichiel's position regarding the meaning of general merchandise is incoherent and implausible. Apparently, general merchandise includes core groceries such as sugar, flour, and spices, as well as snack foods. But it implicitly excludes pasta (which I note can be made from flour and is often flavored by sauces containing spices) and canned soup. Given the numerous explicit restrictions in the Odd Job Lease, involving diverse activities such as the sale of adult books and the provision of tanning services, why would such narrow exclusions for specific food products be left implicit? In short, Chestnut Hill's argument that the term general merchandise excludes soup and pasta is too weak to create a triable issue. Chestnut Hill's prior acts concerning Eckerd's, Gaylord's, and Ames, its course of performance under the Odd Job Lease, and DeMichiel's deposition testimony buttress this conclusion.
IV. Conclusion
For the foregoing reasons, Odd Job's motion for summary judgment is hereby GRANTED.
As a final matter, I note that Chestnut Hill contends that Odd Job's motion is premature. Because § 25.1 of the Odd Job Lease provides for the recovery of " all costs and reasonable attorneys' fees incurred," Chestnut Hill claims that the provision contemplates that payments will not flow until the underlying litigation has been completed. That contention is at best one reasonable reading of the provision. Section 25.1 may also reasonably be read as simply requiring that Odd Job "incur" the expense in the first instance and then seek reimbursement from Chestnut Hill. Therefore, the court grants summary judgment to Odd Job as to liability but defers entering an order requiring payment. Once Odd Job knows its total costs for the litigation, it can submit those to Chestnut Hill for payment. If Chestnut Hill refuses to pay on the grounds that the costs are unreasonable, the court can hear that dispute then as to the entirety of the litigation, rather than in piecemeal fashion. In order to ensure that Odd Job is made whole, however, this approach will necessarily require that Chestnut Hill pay an appropriate amount of pre-judgment interest to Odd Job on its reasonable litigation fees and costs. With this guidance in mind, the parties shall collaborate on an implementing order and present it to me within ten days.