Belk, Inc. v. Warner Robins Zamias Ltd. Partnership
Belk, Inc. v. Warner Robins Zamias Ltd. Partnership
Opinion of the Court
This case involves the construction of a contract between a mall owner and one of its anchor tenants. The contract requires the mall owner to obtain the consent of the anchor tenant before constructing any building not shown on the site plan, which plan is attached to and incorporated into the contract. The question is whether language in the site plan authorizing a variance in a future store’s size and configuration permits the mall owner to construct a store substantially larger than the 70,000-square-foot square depicted and described in the site plan for the future store. We hold the language permits the larger store and thus affirm the court’s granting of summary judgment in favor of the mall owner.
As this is the appeal of a grant of summary judgment, we consider the case de novo and construe the facts in favor of the nonmovant.
Some years later Zamias struck a deal with Dillard’s (another department store) to have Dillard’s construct a 101,298-square-foot store on pad no. 5. Sufficient additional parking was provided to maintain the ratio. Belk objected, arguing that the 70,000-square-foot figure represented a maximum and that the proposed store exceeded this limit. Zamias announced that it intended to go forward with the deal, arguing that the lease and site plan allowed the size to increase. Belk brought the present suit against Zamias to enjoin the construction of the store. After the court denied Belk’s motion for an interlocutory injunction, both parties moved for summary judgment, resulting in the grant of Zamias’s motion and the denial of Belk’s. Belk appeals.
The issue on appeal is whether the language of the contract allows Belk to veto the construction of the proposed 101,298-square-foot Dillard’s on pad no. 5. “[T]he construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract. . . .”
The parties both argue that the contract is unambiguous; they simply disagree on the meaning of that contract language. We agree that the lease is unambiguous.
Paragraph 9 (j) allows Belk to veto any buildings or structures at the mall if they are not “shown on the Site Plan or otherwise permitted by this Lease.” The amended site plan, which is attached to and
Since the site plan expressly provides that the actual size and configuration of the future store may vary, and places no limit on that variance, we will not insert words to limit the permitted variance.
Other provisions in the lease support this interpretation. In the text of the lease is language expressly prohibiting the construction of freestanding buildings that “exceed 10,000 square feet of Floor Area” and expressly requiring certain stores to have no less than specified square-footage minimums. Thus, when the parties intended to limit the maximum or minimum size of a proposed store, they used clear language to do so.
Belk raises two counterarguments. First, Belk claims that the variance and'parking ratio language refers not to size of the future store, but to a temporary grass area that overlies the pad pending the construction of a store. This argument fails for at least two reasons: (1) this same language is found within the dotted lines of the other two future store pads shown on the site plan, but is not found in another “Temporary Grass Area” that does not overlie a store pad, thus showing the language is referring to the size of the future store, not to the size of the overlying grassy area; and (2) all “Temporary Grass Area” language on the site plan is in boldface type whereas the variance and parking ratio language is in the same regular typeface that describes the projected size of the future stores.
Second, Belk contends that paragraph 1 (k) of the lease imposes a maximum limit on this store insofar as it defines “Future Department Stores” as department store buildings “constructed within the
Moreover, even if paragraph 1 (k) applied, it does not expressly limit the size of the store as was done elsewhere in the lease with regard to freestanding buildings. Since we are instructed to strictly construe restrictive covenants so as to minimize their impact on the right of landowners to use their property for any lawful purpose,
Since the lease does not limit the maximum size of the proposed store on pad no. 5, the trial court correctly granted summary judgment to Zamias and denied summary judgment to Belk.
Judgment affirmed.
Bryant v. PMC Capital, 244 Ga. App. 313 (535 SE2d 319) (2000).
Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000); see OCGA §§ 13-2-1; 13-2-3.
Deep Six, supra, 246 Ga. App. at 73 (2), quoting Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).
See Wilbanks v. Mai, 232 Ga. App. 198, 199 (501 SE2d 513) (1998) (plain and obvious words must be given their literal meaning and no new terms can be inserted).
See Deep Six, supra, 246 Ga. App. at 74 (2) (“[W]e look at the whole contract in arriving at the construction of any part.”) (footnote omitted).
Belk effectively concedes this point in its brief when it argues that “the approved Current Site Plan no longer has a Future Department Store area designated, and thus there is no Permissible Building Area provided for a Future Department Store of any size.”
Douglas v. Wages, 271 Ga. 616, 617 (1) (523 SE2d 330) (1999).
See Deep Six, supra, 246 Ga. App. at 74 (2) (“We should avoid any construction that renders portions of the contract language meaningless”) (footnote omitted).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.