Você está na página 1de 10
 
 
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
 _________________________________  NORTHGLENN GUNTHER TOODY’S, LLC, a Colorado Limited Liability Company, Plaintiff - Appellant, v. HQ8-10410-10450 MELODY LANE LLC, a Delaware limited liability company registered to do business in Colorado, Defendant - Appellee.  No. 16-1468 (D.C. No. 1:16-CV-02427-WJM-KLM) (D. Colo.)  _________________________________
ORDER AND JUDGMENT
*
  _________________________________ Before
MATHESON
,
PHILLIPS
, and
McHUGH
, Circuit Judges.  _________________________________  Northglenn Gunther Toody’s, LLC (NGT) appeals from the district court’s denial of its motion for a preliminary injunction. NGT sought to prevent its landlord, HQ8-10410-10450 Melody Lane LLC (Melody Lane), from leasing the building next to NGT’s diner-style restaurant to an International House of Pancakes (IHOP) franchisee. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.
*
 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal.
See
 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding  precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED United States Court of AppealsTenth Circuit
July 24, 2017
 Elisabeth A. Shumaker Clerk of Court
 
 
 2
BACKGROUND
 Melody Lane operates the Northglenn Marketplace shopping center in  Northglenn, Colorado. One of its tenants is NGT, the owner of Gunther Toody’s, a diner-style restaurant themed to evoke the 1950s. NGT has possession of the  premises under a lease dated August 19, 1998, as amended and modified (the Lease). The Lease includes a limited exclusivity clause, stating that so long as NGT is not in default, Melody Lane “shall not permit any other portions of the Shopping Center to  be leased or sold for usage as a diner similar in concept to the operation conducted from the Leased Premises by [NGT]”—that is, “a diner similar in concept to” Gunther Toody’s. Aplt. App., Vol. I at 161. In 2016, a Marketplace restaurant space next to Gunther Toody’s became vacant. In June 2016, Melody Lane leased that space to an IHOP franchisee for use as an IHOP restaurant. For purposes of this appeal, IHOP qualifies as a “diner.” IHOP serves breakfast foods 24 hours a day, but it also offers hamburgers, fries, and similar American foods. Soon after executing the IHOP lease, Melody Lane executed an estoppel certificate and agreement (the Estoppel Agreement) for NGT. The Estoppel Agreement warranted that to Melody Lane’s knowledge, neither Melody Lane nor  NGT was in default under the Lease, “nor has there occurred any event or circumstance which, with notice or the passage of time, or both, would constitute a default under the Lease[.]”
 Id.
 at 172.
 
 3 When NGT became aware of the planned IHOP restaurant, it notified Melody Lane that allowing an IHOP breached the Lease’s exclusivity clause. Melody Lane denied that the IHOP was a “diner similar in concept to” Gunther Toody’s and refused to rescind the IHOP lease. NGT then brought this diversity-jurisdiction suit for breach of contract, breach of the implied duty of good faith and fair dealing, and  breach of warranty. Concurrently with filing its complaint, NGT moved for a temporary restraining order (TRO) and a preliminary injunction. The district court denied a TRO and ordered Melody Lane to respond regarding a preliminary injunction. Both parties submitted extrinsic evidence, including opinions by expert witnesses. The overarching issue was whether IHOP is “similar in concept” to Gunther Toody’s. After receiving NGT’s reply, the district court decided the motion on the written materials, without holding an evidentiary hearing or allowing oral argument.  NGT argued that both restaurants “offer[] relatively inexpensive food with an emphasis on breakfast items such as pancakes, omelets, waffles, and French toast, which are served throughout the day. . . . Both serve traditional American dishes such as cheeseburgers, fries, salads, steak and mashed potatoes, club sandwiches, BLTs, ice cream sundaes and other simple fare.” Aplt. App., Vol. I at 119-20.
1
 The district court concluded, however, that “Gunther Toody’s arguments make clear . . . that it interprets ‘diner similar in concept to the operation conducted from the Leased
1
 Contrary to NGT’s assertion that Gunther Toody’s serves breakfast throughout the day, Gunther Toody’s menu indicates that it serves breakfast only during morning hours.

Recompense a sua curiosidade

Tudo o que você quer ler.
A qualquer hora. Em qualquer lugar. Em qualquer dispositivo.
Sem compromisso. Cancele quando quiser.
576648e32a3d8b82ca71961b7a986505