Ingles Markets Incorporated et al v. Maria LLC et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW It is ORDERED that Judgment enter in favor of Plaintiffs on its causes of action for injunctive relief and that Defendant is permanently enjoined from erecting any building or buildings on Parcels 2 and 3, except as in strict compliance with the contents of the REA, including Exhibit E. Signed by Honorable Mary Geiger Lewis on 10/18/2016. (abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ingles Markets, Incorporated, and
Sky King, Inc.,
Civil Action No. 7:14-4828-MGL
FINDINGS OF FACT
CONCLUSIONS OF LAW
Plaintiffs Ingles Markets, Incorporated, and Sky King, Inc., (collectively, “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 Ingles and owned by Sky King. (ECF
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).
After discovery was completed, Defendant filed a Motion for Partial Summary Judgment,
(ECF No. 55), and Plaintiffs filed a Motion for Summary Judgment. (ECF No. 56). After
briefing and oral argument, the Court issued an Order, (ECF No. 80), granting in part and
denying in part Plaintiffs’ Motion for Summary Judgment and denying Defendant’s Motion for
Partial Summary Judgment. The Court granted that portion of Plaintiffs’ Motion for Summary
Judgment that sought dismissal of Defendant’s counterclaims for tortious interference, unfair
trade practices, and abuse of process, leaving the question of whether or not an injunction should
Additionally, both Plaintiffs and Defendant brought competing claims of trespass, which were subsequently
dismissed with prejudice by stipulation of the parties. (ECF No. 76).
issue as the central issue left for decision. An action to enforce restrictive covenants by an
injunction sounds in equity.
South Carolina Dept. of Natural Resources v. Town of
McClellanville, 345 S.C. 617, 550 S.E.2d 299 (2001). Accordingly, the decision as to whether
an injunction should issue is for this Court alone.
In its prior Order, the Court found that a material issue of fact existed as to whether the
Exhibit E proffered by Plaintiffs was, in fact, the Exhibit E referenced in the Declaration of
Reciprocal Easements, (“REA”), that was agreed to by shopping center developer and declarant
of the REA, Jaylin Spartanburg South, LLC, (“Jaylin”), and intended to be filed along with the
rest of the REA. (ECF No. 80). As such, on August 17, 2016, the matter came again before the
Court for a bench trial focusing on this set of issues. (ECF No. 85). Counsel for Plaintiffs and
Defendant were present and participated. Plaintiffs’ arguments were based on the testimony of
Ephraim Spielman, Esq., Plaintiff Ingles’ legal counsel and Assistant Secretary, as well as
documents admitted into evidence during the trial. Defendant’s arguments were based upon
counsel’s cross-examination of Spielman, documents admitted into evidence during the trial, and
evidence already before the Court, including all exhibits and other materials submitted in
connection with the parties’ cross motions for summary judgment previously ruled on by the
Court. At the behest of Defendant, the bench trial resumed for an additional day of testimony on
September 27, 2016, (ECF No. 91), during which time Defendant offered the testimony of
witnesses William Sims, a real estate broker who represented Jaylin in the sale to Bill and
Miriam Akkary, (“the Akkarys”), of the property that is the subject of this litigation, and Steven
Querin, an attorney who represented the Akkarys in their purchase of the property. The record is
Having reviewed the entire record in this case, including the materials submitted in
connection with the parties’ cross motions for summary judgment, and the additional live
testimony and exhibits introduced in connection with the bench trial of August 17, 2016 and
September 27, 2016, the Court sets forth the following Findings of Fact and Conclusions of Law,
which resolve this matter in its entirety.
FACTUAL FINDINGS OF THE COURT
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, South
Carolina. Originally owned by developer Jaylin, the shopping center is now owned by Plaintiff
Sky King. 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 for the Ingles store, as between Sky King,
successor in interest to Jaylin, and Ingles, 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). Those same
restrictions are contained in 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 0.91-acres, or “subject property.” On the site plan and as described in the REA, the
subject property appears as two separately designated outparcels. (ECF No. 1-3 at p. 3).
The REA is included in the subject property’s chain of title. The REA imposes certain
restrictions on the future development of the shopping center. Although the REA refers to and
incorporates by reference an “Exhibit E” in four separate places, this exhibit was not attached to
the recorded instrument. The key provision of the REA that is at issue in this litigation, directly
references 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 Exhibit E appear in the sections of the REA which define the two outparcels
that comprise the subject property. These parcels 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 REA sets
forth each parcel separately by metes and bounds.
The contract governing the 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, along with
other documents related to the subject property, Jaylin never produced Exhibit E or any other
document setting out additional restrictions or limitations on use and development.
Neither the Akkarys nor their representative recall making any specific inquiry regarding
the missing Exhibit E. There is no evidence in the record that they asked Mr. William Sims, the
broker involved in the sale of the property, to provide a copy. Nor is there any record evidence
that they asked a direct representative of Jaylin, such as Mr. Charles Chudakoff, for a copy. Nor
did they contact any representative of Ingles (whose consent was required under Section 6.9 of
the REA for amendment to the REA) for information concerning the missing Exhibit E.
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
construction 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.
Plaintiffs learned about the contemplated construction in or about November 2014, when
Ingles was contacted by a representative of Maria regarding the removal of certain light poles in
the parking lot of the shopping center. As a result of this contact, Ingles’ counsel provided
Maria’s counsel with notice of Ingles’ rights with respect to construction on the outparcels and a
copy of the missing Exhibit E. Shortly thereafter, Plaintiffs filed this action, alleging that
Defendant’s proposed structure violated the 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,” as well as the additional building size
and configuration limitations set out in Exhibit E.
Based on the testimony, exhibits and argument presented during the August 17, 2016,
hearing, the Court finds as follows in regards to the legal status of the proffered Exhibit E.
1. Plaintiffs relied primarily on the testimony of Ephraim Spielman, Esq., an Atlantabased attorney specializing in commercial real estate. Spielman has represented
Ingles since 1985. He was the primary attorney representing Ingles in connection
with negotiations with Jaylin regarding the shopping center. (ECF No. 94 at pp. 4-7).
2. Spielman and his office drafted the original lease between Ingles and Jaylin, which
was dated December 15, 1999. This lease contained a site plan, noted as Exhibit A to
the lease, which was prepared by Siteworks, Jaylin’s engineers, but which was
approved by Ingles. (ECF No. 94 at pp. 9, 13, 29).
3. Examples of protections that Ingles required to be included in the lease appear in
paragraphs 2.7 and 6.1. These sections indicate that Ingles must provide prior written
consent to any substantial alterations to the shopping center layout and design, as set
forth in the site plan.
4. Subsequent to the execution of the original lease, Jaylin approached Ingles and
requested that it approve a revised site plan, which included construction on Parcels 2
and 3. Jaylin presented Ingles with several different site plan proposals, including the
eventual new site plan, which Ingles approved and which was attached to the
amended lease agreement. Ingles approved the shapes, sizes, and locations of the
specific structures permitted on Parcels 2 and 3 because they would only minimally
obstruct the view of the Ingles store from adjoining roads. (ECF No. 94 at pp. 27-28).
5. This new site plan is the genesis of the proffered Exhibit E of the REA, insofar as it is
a blow-up of the portion of the new site plan showing Parcels 2 and 3. It was
prepared by Jaylin’s engineers, and the impetus for preparing it (and for amending the
lease to include it) came not from Ingles but from Jaylin. (ECF No. 94 at p. 39).
6. Based upon Spielman’s testimony and the other record evidence, the Court concludes
that, although not attached to the REA, the proffered Exhibit E, which was prepared
by Jaylin largely for the benefit of Jaylin, was in fact agreed to by Jaylin and was
intended to be included as an exhibit to the REA.
Based on the testimony, exhibits and argument presented during the September 27, 2016,
hearing, the Court finds as follows in regards to the testimony of William Sims and Steven
William Sims is a real estate broker who represented Jaylin and its managing member,
Charles Chudakoff, in the sale of the subject property. (ECF No. 95 at pp. 12-13). Sims testified
that, as a broker, he would expect to receive from the developer anything in the developer’s file
relating to the property, including surveys, easements, covenants, and restrictions. (ECF No. 95
at p. 13). He acknowledged that the subject property consisted of two separate lots or tracts that
were comprised of .91 acres total, id. at pp. 16 and 43-44, and that based on his conversations
with Chudakoff, he believed that Jaylin was a “highly motivated” seller. Id. at pp. 28-29.
Sims testified that among the documents that he received from Jaylin were: a plat
identifying the two lots as separate parcels, (the so-called “Northpoint Plat”), and a copy of the
REA. Id. at pp. 43-44. Specifically, as to Exhibit E, Sims: (1) confirmed that it was not
attached to the REA: (2) acknowledged that he had no recollection of ever specifically asking
Chudakoff to furnish him a copy; and (3) admitted that Exhibit E would be an important, even
“critical,” document to someone concerned with what could be built on the subject property. Id.
at pp. 48-50.
Steven Querin is a South Carolina attorney whose practice focuses upon commercial real
estate and who represented the Akkarys in the purchase of the subject property. Id. at 58-59. As
to the REA, Querin acknowledged its importance as a document in the transaction and testified
that he obtained and reviewed a copy before closing. Id. at pp. 62-63 and 87. Like Mr. Sims, he
testified that he does not recall making any specific inquiry regarding the missing Exhibit E, id.
at pp. 89-92, even though he acknowledged that under the terms of the REA any changes with
regard to Parcels 1, 2 and 3 had to be in strict compliance with the REA and in conformance with
Exhibit E. Id. at 88-89.
DISCUSSION AND CONCLUSIONS OF LAW
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.
In order to prevail on an action for a permanent injunction, a plaintiff must demonstrate:
(1) it has suffered irreparable injury; (2) there is no adequate remedy at law to compensate for
that injury; (3) considering the balance of equities between the parties, the remedy of injunction
is warranted; and (4) the public interest would not be disserved by a permanent injunction. True
Fishing, Inc. v. Redwing Tackle, Ltd., 888 F.Supp.2d 726, 737 (D.S.C. 2012)(citing eBay, Inc. v.
MercExchange, LLC, 547 U.S. 388 (2006)). In analyzing these factors, “inadequacy of damages
and irreparability of harm are often treated interchangeably.”
Foundation v. Smith, 642 F.Supp.2d 518, 531 (D.S.C. 2009). The standard for a permanent
injunction is essentially the same as for a preliminary injunction, with the exception that the
plaintiff must show success on the merits. Smith v. South Carolina State Election Com’n, 901
F.Supp.2d 639 (D.S.C. 2012). After reviewing the evidence, as well as the written and live
presentations of the parties, and after balancing the equities, the Court concludes that Plaintiffs
are entitled to a permanent injunction.
PLAINTIFFS ARE ENTITLED TO HAVE THE RESTRICTIVE
Plaintiffs are entitled to have the restrictive covenants set out in the REA enforced.
Under South Carolina law, “[a]s voluntary contracts, restrictive covenants [should] be enforced
unless they are indefinite or contravene public policy.” Seabrook Island Property Owners Ass’n
v. Marshland Trust, Inc., 358 S.C. 655, 661, 596 S.E.2d 380, 383 (2004) (quoting Houck v.
Rivers, 316 S.C. 414, 416, 450 S.E.2d 106, 108 (Ct. App. 1994)). Here, the provisions of the
REA are neither indefinite nor in violation of public policy.
The REA was filed with the Spartanburg County Register of Deeds in 2002. Therefore,
well prior to their purchasing the property, the Akkarys were on actual notice that they could not
construct one building spanning Parcels 2 and 3, as they wish to do. The REA provides as
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.
The REA expressly limits any construction on Parcels 1, 2, or 3 to one building per parcel.
Maria argues that this restriction contemplates the existence of one building spanning more than
However, such an argument is inapposite.
Such a construction would make
development of Parcel 1, which is not contiguous with Parcels 2 and 3, impossible. Moreover,
reference to Exhibit E confirms that the REA limits development of Parcels 2 and 3 to one
building per parcel, as it sets forth the specific locations of each potential building on Parcels 2
and 3.2 Although Exhibit E was inadvertently not attached to the REA, the Court finds that
Maria had constructive notice of Exhibit E and its contents.
“Constructive notice is a legal inference which substitutes for actual notice.” Crop
Production Services v. SCBT, N.A., 2014 WL 1796345 at *6 (D.S.C. 2014) (internal citation
omitted). “It is notice imputed to a person whose knowledge of facts is sufficient to put him on
inquiry; if these facts were pursued with due diligence, they would lead to other undisclosed
facts.” Id. In the context of a real estate transaction, constructive or inquiry notice arises when a
party becomes aware or should have become aware of certain facts, which, if investigated, would
reveal the claim of another. A party will be charged by operation of law with all knowledge that
an investigation by a reasonably cautious and prudent purchaser would have revealed. Spence v.
Spence, 368 S.C. 106, 120, 628 S.E.2d 869, 876 (2006). Here, the REA was a matter of public
record, correctly indexed. It specified restrictions as to construction on Parcels 1, 2, and 3 and
referenced a specific “Exhibit E,” as setting forth further details concerning where structures
were required to be located. These details included the location, orientation and square footage
of permitted structures. Although missing from the recorded REA, a prudent purchaser would
have made some further inquiry regarding Exhibit E. See South Carolina Tax Commission v.
Belk, 266 S.C. 539, 544, 225 S.E.2d 177, 180 (1976) (“[a] purchaser cannot carelessly disregard
record notice of potential encumbrances, even when the adequacy of notice is questionable)
(collecting cases involving subsequent purchasers where record notice was in various ways
imperfect or incomplete).
Defendant also maintains that the .91 acres consisted of one legal parcel, not two. In support, it points to a
Spartanburg County Tax Map reflecting one parcel and argues that Jaylin, as the REA’s Declarant, had the authority
to combine Parcels 2 and 3 into a single parcel. However, Defendant’s argument here fails to persuade the Court.
As an initial matter, the REA itself describes the two parcels separately, by separate metes and bounds. Moreover,
the so-called Northpoint Plat given by Jaylin’s representative to Mr. Sims and then to Mr. Querin specifies two
separate parcels. In view of all of the following, the Court does not find that a contrary tax map is a valid,
controlling legal description.
Exhibit E is, in fact, a depiction of Parcels 1, 2, and 3, and is taken directly from a site
plan presented to Ingles by Jaylin and thereafter approved by Ingles and attached to the
amendment to the lease. It clearly shows that a building spanning more than one lot is not
allowed. It also sets forth the maximum allowable square footage of each building and requires
each building be in a specific location with a specific orientation. The Akkarys are charged with
This matter is reasonably similar to RL REGI Financial, LLC v. DDB of Spartanburg,
LLC, 2012 WL 602886 (D.C.S. 2012). There, Regions Bank (“Regions”) commissioned and
received an appraisal on certain property prior to taking a mortgage on the property to secure a
loan. The letter forwarding the appraisal, addressed to a Regions employee, indicated that there
was “leased billboard space” on the property and described the property as a “leased fee estate.”
Id. at *3. In addition, the appraisal referenced the leased billboard space several times within the
document. The leasehold interest was held by MCC Outdoor, LLC (“MCC”), and the question
arose as to whether MCC’s leasehold interest had priority over Regions’ mortgage interest, as
MCC contended Regions had notice of its leasehold interest. Interpreting and applying South
Carolina, the Court concluded that Regions had constructive knowledge of the existence of the
leasehold interest. Id. at *3. The Court found that the letter and appraisal were sufficient to
inform Regions of facts which, had Regions made even the most cursory of inquiries, would
have revealed MCC’s leasehold interest. Id. A similar logic applies here.
Defendant argues that because Exhibit E was not attached to the recorded REA and
because the Akkarys, through representatives, requested from Jaylin, broadly, the types of
documents that would include Exhibit E, Defendants were not required to have investigated any
further, upon failing to actually receive Exhibit E. However, as Exhibit E was specifically
referenced in the REA as the document setting forth the allowed locations of buildings and
parking on the property being purchased, prudence dictated, at least, that the Akkarys make some
targeted, specific inquiry concerning Exhibit E.
In South Carolina Tax Commission v. Belk, the South Carolina Supreme Court noted that
the innocent purchase for value doctrine is not available “when sufficient record notice is
available to charge the purchaser with a duty to inquire which, if pursued with due diligence
would have supplied him with knowledge of the rights of other parties.” 225 S.E.2d 177, 179
(1976). The Supreme Court went on to note that “when the exercise of prudence would have
avoided the difficulty,” one who fails to inquire does so at his own peril. Id. The Court surveyed
a number of cases on the issue, noting that “a purchaser cannot carelessly disregard record notice
of potential encumbrances, even when the adequacy of notice is questionable.” Id. Rather, a
purchaser has a duty to make “an independent investigation.” Id.
In one case highlighted by the Supreme Court in Belk, a recorded mortgage referred to a
prior but unrecorded timber deed. See National Bank of Newberry v. Livingston, 155 S.C. 264,
152 S.E. 410 (1930). The Court found that a subsequent purchaser’s interest was subservient to
the unrecorded deed, as the purchaser was on notice of the unrecorded deed because it was
mentioned in the recorded mortgage. The recital in a document of record, in other words,
constituted constructive notice to the purchaser of the unrecorded document.
A similar principle is properly applied here. There is no issue that the REA was correctly
recorded, and that it was in fact reviewed by the Akkarys and their representative. Nor is there
any question that the REA made four specific references to the unrecorded Exhibit E, as an
attachment defining what could be built on Parcels 1, 2, and 3. Defendant was therefore on
constructive notice of the existence of Exhibit E prior to purchasing the property and is properly
bound by its restrictions.
APPLICATION OF FOUR FACTOR STANDARD FOR INJUNCTIVE
RELIEF: IRREPARABLE HARM, NO ADEQUATE LEGAL REMEDY,
BALANCE OF EQUITIES, PUBLIC INTEREST NOT DISSERVED
As to the four specific showings that plaintiffs seeking permanent injunctive relief must
demonstrate and that reviewing Courts must find, the Court finds, firstly, that Plaintiffs will
suffer irreparable harm in the event that Defendant is permitted to construct its building in
violation of the REA, including in violation of the restrictions set forth in Exhibit E. As
presently designed, the proposed building will permanently obstruct the visibility of the Ingles
store from adjacent roads, and, in particular, will obstruct the center view corridor. These
obstructions will irreparably damage Ingles by interfering with the visibility of its store, which is
of paramount importance to Ingles when deciding to locate and site a grocery store.
James Lanning, president of Ingles, offered deposition testimony regarding the
importance of the line of site of Ingles stores, and the restrictions Ingles takes pain to put in place
to maintain the line of site, all of which relate to Ingles customer experience. (ECF No. 56-9 at
pp. 3-4). He also testified that the loss of line of site would, in his opinion, result in a reduction
in sales of approximately ten percent. Id. at pp. 7-8. Lanning noted that the rear of the proposed
building would face the front of the Ingles store, thereby decreasing the attractiveness of the
store to its customers. Moreover, pursuant to the terms of the lease, the development of Parcels 2
and 3 in a manner inconsistent with the REA could result in a default by Plaintiff Sky King and
materially affect its rights with regard to the future development or sale of the shopping center.
(ECF No. 56-13 at p. 2 and No. 56-14 at p. 2).
Interests in real property, including leasehold interests, are unique and their deprivation
may therefore commonly result in irreparable harm. Recently, the South Carolina Court of
Appeals cited to a discussion of the irreparable harm suffered by a lessee in a decision of the
Federal Court of Appeals for the First Circuit:
Real estate has long been thought unique, and thus, injuries to real estate
interests frequently come within the ken of the chancellor. Then, too,
harm to goodwill, like harm to reputation, is the type of harm not readily
measurable or fully compensable in damages – and for that reason, more
likely to be found “irreparable.” … Beyond goodwill, the loss of revenues,
resulting from consideration such as diminished visibility, restricted
access, less commodious parking, and the like or sufficiently problematic
as to defy precise dollar quantification.
Kmart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (cited in H.H. Hunt
Corp. v. Town of Lexington, 389 S.C. 623, 699 S.E.2d 699 (Ct. App. 2010)) (finding that a
restriction on the use of a party’s property makes it unlikely that money damages will provide an
In Kmart Corp., a case sharing factual similarities to the instant one, Kmart was a lessee
in a shopping center. The lease agreement in place provided that the layout of the common
areas, as depicted on an attached exhibit, could not be changed without Kmart’s consent, and that
no buildings or other structures could be erected, except as shown on that same exhibit. When
the landlord moved to develop certain space in contravention of the provisions of the lease and
against Kmart’s wishes, Kmart sought a preliminary injunction.
Ultimately, the district court issued both preliminary and permanent injunctions,
concluding that “Kmart [could not] recoup, even thru legal damages, the injury to its goodwill
caused by the visual obstruction of its store.” Kmart Corp. v. Oriental Plaza, Inc., 694 F.Supp.
1010, 1016 (D.P.R. 1988). The Kmart Court went so far as to order the landlord to raze one of
the structures and enjoined further construction except in compliance with the lease. Upon
review, the First Circuit affirmed, finding that the harm to Kmart “did not consist merely of lost
sales (in themselves difficult to calculate and monetize), but also involved a detriment in
‘presentation of the store to the public’.” Kmart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915
(reviewing and citing district court opinion).
Here, the Court likewise finds a remedy of monetary damages to be impractical. First,
Defendant is a small business not able to respond in damages. Second, while Plaintiff Ingles
tentatively calculates damages in sales at approximately $73,000.00 a year, the Court concludes
that it is impossible to calculate the damage done to the shopping center should Ingles decide to
vacate due to the loss of visibility, loss of brand, etc. As a result, any monetary remedy cannot
adequately remedy the harm to Plaintiffs, and thus there is no adequate legal remedy. Capital
One Bank (USA, N.A.) v. Carefree Debt, Inc., 2010 WL 2228418 (D.S.C. 2010).
On the question of the overall balance of the equities, the Court next concludes that
although Defendant will undoubtedly suffer some harm as a result of the Court’s grant of the
injunction sought by Plaintiffs, the Court nonetheless finds that said harm is not so substantial as
to render the remedy of injunction unwarranted on these facts. To be sure, the injunction will
make illegal Defendant’s contemplated construction, as it violates both the one structure per
parcel limitation set forth in Section 5.3 of the REA, as well as certain additional limitations set
forth in Exhibit E. However, the injunction will not result in the total loss of use of the property,
as these restrictions do not prohibit all construction. Defendant will remain free to construct
buildings on the parcels, which the Akkarys purchased for $75,000.00, (ECF No. 56-8 at p. 3), so
long as they do not run afoul of the restrictions contained in the REA.
The fact that the Akkarys have drawn down a portion of a construction loan does not
meaningfully inform the Court’s sense of the equities here, as they were on notice of the
restrictions in the REA before purchasing the property. Any monies expended were done so at
their own risk. See Buffington v. T.O.E. Enterprises, 383 S.C. 388, 680 S.E.2d 289, 291-92
(2009). Additionally, the Court notes that the Akkarys continue as tenants in the shopping
center, where they have operated businesses, uninterrupted, since 2001, and this injunction will
not affect their rights with respect to the leases for their businesses in the center.
Finally, on the question of impact on the public interest, the Court concludes that the
public interest will not be disserved by the grant of an injunction on these facts. Restrictive
covenants are contracts, which courts are obliged to enforce. Here, Plaintiff Ingles took pains to
bargain for long-range, contractual provisions that would assure that the sightlines to its grocery
store would be protected, along with other interests in the lease and the shopping center. It will
certainly not disserve the public interest for the Court to protect these bargained-for property
interests, as recognized by South Carolina law.
A decision whether to grant or deny an injunction sounds in equity and is addressed to the
sound discretion of the Court. For all of the reasons set forth above, the Court finds that
Plaintiffs have demonstrated by clear and convincing evidence that the Akkarys, and thus
Defendant Maria, had actual notice of the contents of the REA. Moreover, Defendant had
constructive notice of Exhibit E, which Plaintiffs have proven was intended to be attached to the
REA. As such, Exhibit E is part and parcel of the REA, which sets forth restrictive covenants
which run with the land. Additionally, Plaintiffs have proven by clear and convincing evidence
that failure to enforce these restrictive covenants will result in irreparable harm to them. Finally,
in balancing the equities, the Court finds that the harm to the Plaintiffs outweighs any harm to
Defendant, and that the public interest and the decisional law of South Carolina favor the
granting of an injunction.
Accordingly, it is hereby ORDERED that Judgment enter in favor of Plaintiffs on its
causes of action for injunctive relief and that Defendant is permanently enjoined from erecting
any building or buildings on Parcels 2 and 3, except as in strict compliance with the contents of
the REA, including Exhibit E.
IT IS SO ORDERED.
s/Mary G. Lewis
Mary Geiger Lewis
United States District Judge
District of South Carolina
Columbia, South Carolina
October 18, 2016
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