FAB'RIK BOUTIQUE, INC.
SHOPS AROUND LENOX, INC
Cert. applied for.
Lease; restrictive covenant. Fulton Superior Court. Before Judge Brasher.
Littler Mendelson, Jerry C. Newsome, for appellant.
Arnall Golden Gregory, James A. Gober, Rebecca I. Lunceford, for appellee.
Andrews, P. J.,
concurs. Ray, J., concurs in the judgment only.
Fab'rik Boutique, Inc. (" Fab'rik" ) sought a declaratory judgment that a restrictive covenant in its lease with its landlord, Shops Around Lenox, Inc. (" Shops" ), is unenforceable because it is overly broad. Both parties moved for summary judgment, and the trial court denied Fab'rik's motion and granted summary judgment to Shops. We find the restrictive covenant ambiguous, but that ambiguity can be resolved by application of the general rules of contract construction. So construed, the restrictive covenant is not overly broad. Accordingly, we affirm.
To prevail on a motion for summary judgment,
the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
Atlantic Ins. Brokers v. Slade Hancock Agency, 287 Ga.App. 677 (652 S.E.2d 577) (2007) (citation omitted). " [C]ontract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court." Waste Mgmt. of Metro Atlanta v. Appalachian Waste Systems, 286 Ga.App. 476 (649 S.E.2d 578) (2007) (citation omitted).
The relevant evidence is not in dispute. On November 10, 2009, the parties entered into a three-year commercial lease. The lease required Fab'rik to operate the leased premises under the trade name " Fab'rik" as a " [w]omen's clothing and accessories boutique similar to other Fab'rik boutiques." The lease contained a " radius restriction" under which Fab'rik agreed
not to open or operate another store (other than a store owned by [Fab'rik] as of the [date of the execution of the lease]) within five miles of the [leased p]remises without [Shops'] prior written consent which may be withheld by [329 Ga.App. 22] [Shops] in [Shops'] sole, absolute, and unfettered discretion, and in the event [Fab'rik] ...