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Ingles Markets Inc. v. Maria, LLC

United States District Court, D. South Carolina, Spartanburg Division

June 21, 2016

Ingles Markets, Incorporated, and Sky King, Inc., Plaintiffs,
Maria, LLC, Defendant.


          Mary Geiger Lewis United States District Judge

         Plaintiffs Ingles Markets, Incorporated, and Sky King, Inc., (“Plaintiffs”), brought this civil action for specific performance and declaratory and injunctive relief against Defendant Maria, LLC, (“Defendant”), seeking to prevent Defendant from proceeding with construction on property adjacent to property leased by and owned by Plaintiffs. (ECF No. 1). Defendant answered and plead its own claim for declaratory relief, as well as counterclaims of tortious interference with contract, unfair trade practices, and abuse of process.[1] (ECF No. 22). The matter is presently before the Court on Plaintiffs’ Motion for Summary Judgment, (ECF No. 56), and Defendant’s Motion for Partial Summary Judgment. (ECF No. 55). Also pending is Defendant’s Motion in Limine to Exclude Expert Testimony. (ECF No. 61). After full briefing by the parties on these motions, the Court held a hearing, heard argument and took all matters under advisement. (ECF No. 75). The Court has subsequently reexamined the briefs and exhibits of the parties and reviewed the hearing transcript, and these matters are now ripe for decision.


         Plaintiff Ingles is the anchor tenant of a commercial retail space, or “shopping center, ” located near the intersection of U.S. Highway 176 and Springfield Road in Spartanburg, SC. Originally owned by developer Jaylin Spartanburg South, LLC, (“Jaylin”), the shopping center is now owned by Plaintiff Sky King. Bill and Miriam Akkary (“the Akkarys”), who are the controlling owners of Defendant Maria, have operated two businesses within the same shopping center since approximately 2001, when they first entered into leases with then-owner Jaylin.

         Pursuant to the terms of the lease agreement, all owners and tenants in the shopping center are subject to certain use and development restrictions. (ECF Nos. 1-1 and 1-2). For example, owners and tenants may not erect additional buildings in the shopping center that do not appear on the site plan, which is attached to the amended lease agreement. (ECF No. 1-2). At least some of these restrictions are contained in a document referred to in this litigation as the Declaration of Reciprocal Easements or “REA, ” (ECF No. 1-3), which was filed with the Spartanburg County Register of Deeds on June 10, 2002.

         On or about January 7, 2011, the Akkarys entered into a contract with Jaylin for the purchase of a 0.91 acre outparcel, or “subject property.” On the site plan, the subject property appears as two separately designated, adjoining outparcels. (ECF No. 1-3 at p. 3).

         At the time of closing, the REA was included in the subject property’s chain of title and imposed certain restrictions on its future development. Although there is mention in four places in the REA of an “Exhibit E, ” this exhibit was not attached to the recorded instrument. The key provision of the REA that is at issue in this litigation, referred to as Article 5.3, directly references the unattached Exhibit E and reads as follows:

5.3 Restrictions Relating to Development. Development and use restrictions shall limit the construction to be performed on Parcels 1, 2, and 3 to the construction of one building of one story and no more than twenty-four (24) feet in height in the locations and with the requisite parking spaces, shown on Exhibit “E” attached hereto. (ECF No. 1-3 at p. 7).

         Other references to the unattached Exhibit E appear in the sections of the REA which define the two outparcels that together comprise the subject property. These are referred to in the REA and its attached exhibits as “Parcel 2” and “Parcel 3, ” respectively. (ECF No. 1-3 at pp. 13-14).

         The contract governing purchase and sale of the subject property required seller Jaylin to provide to the Akkarys copies of the following documents pertaining to the property: existing surveys, title insurance policies, condemnation information, environmental reports, copies of leases and amendments, and any other information pertaining to the ownership or operation of the property which the buyer reasonably requests. Although Jaylin produced a copy of the REA and other plats, sketches and drawings of the subject property, Jaylin never produced an Exhibit E or any other document setting out additional restrictions or limitations on use and development.

         After owning the subject property for several years, the Akkarys, now operating through Defendant Maria, closed on a construction loan and entered into an agreement with a company for development of the subject property. The contemplated new construction would consist of a single building of approximately 8, 800 square feet, resting across the .91 acres purchased from Jaylin and spanning portions of both “Parcel 2” and “Parcel 3, ” as designated in the REA.

         As construction was about commence, Plaintiffs filed this action, alleging that Defendant’s proposed structure was in violation of restrictions contained in the REA, including both the language of the above cited Article 5.3 which limits “construction to be performed on Parcels 1, 2, and 3 to the construction of one building of one story” and additional building size and configuration limitations set out in a document which Plaintiffs proffer as the unattached, un-filed “Exhibit E.” (ECF No. 1-4).[2] Plaintiffs maintain that the contemplated construction will result in irreparable harm to their property interests, primarily because the proposed building will permanently obstruct the visibility of the Ingles store (or any future replacement tenant) from the adjacent roadways, resulting in loss of customer goodwill and, ultimately, business revenue. Defendant counters that its proposed construction is not in violation of any restriction contained in the REA of which it had notice or of which it is chargeable with having notice.


         Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if the pleadings, responses to discovery, and the record reveal that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This requires the movant to identify those portions of the "pleadings, depositions, answers to interrogatories, and ...

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