TIPPECANOE ASSOCIATES II, LLC V. KIMCO LAFAYETTE 671, INC. 811 N.E.2d 438 (2004) CASE BRIEF

TIPPECANOE ASSOCIATES II, LLC V. KIMCO LAFAYETTE 671, INC.

811 N.E.2d 438 (2004)

NATURE OF THE CASE: Tippecanoe (D), lessee of shopping center space, appealed from a judgment in favor of Kimco (P), lessor, in P's action seeking to have a restrictive covenant declared unenforceable.

FACTS: SES Development Company (SES) owned the Sagamore Shopping Center. In April 27, 1973, Kroger leased one of the stores in the shopping center for a term of twenty years, with an option to extend the lease by four successive terms of five years each. The lease contained a restrictive covenant: not to lease, rent, occupy, or suffer or permit to be occupied, any part of the Shopping Center premises or any other premises owned or controlled directly or indirectly within 2 miles of the Shopping Center premises for the purpose of conducting therein or for the use as a food store or a food department. On March 25, 1983, Kroger assigned its rights to Pay Less Super Markets, Inc., effective April 1, 1983. On June 1, 1984, Pay Less Super Markets sub-leased the space to H.H. Gregg Appliances, Inc., who remains the tenant to this day. On January 15, 1997, P purchased the shopping center. At that time, 79,020 square feet of the 183,440 square feet in the shopping center were occupied by Target. The only prospective tenant P located is Schnucks, a Missouri corporation that operates grocery stores. P filed a complaint asking the trial court to declare unenforceable the restrictive covenant in D's lease that prohibits P from renting space in the shopping center to a grocery store. The trial court ruled for P and declared the restrictive covenant unenforceable. D appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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