Opinion
Sept. 12, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 148
Fleming, Pattridge, Hacking & Gardner, Conrad E. Gardner, Golden, for plaintiffs-appellees.
Alperstein & Plaut, P.C., Susan G. Barnes, Lakewood, for defendant-appellant.
SMITH, Judge.
Donald A. Bullock and Betty Darlene Bullock owned a building and land in Bergen Park Village, Colorado. The Bullocks operated a package liquor store at that location under the terms of a retail package liquor license held in the name of Betty Darlene Bullock. The Bullocks, in writing, leased the premises to Walter P. Cayot for the period from August 1, 1967, until December 31, 1968, with an option to renew for an additional year.
The lease provided that the premises were to be used as a food store, gift store, package liquor store, and living quarters, subject to approval of a transfer of the package liquor license from Betty Darlene Bullock to Walter P. Cayot by the Jefferson County Commissioners. An additional provision of the lease stated:
'The liquor license must remain on the aforesaid premises.' With the execution of the lease, the Bullocks executed a bill of sale to Cayot for merchandise, liquor inventory, and equipment in the liquor store. The bill of sale provides,
Inter alia:
'It is agreed that in this bill of sale for the merchandise of Bergen Park Liquor Store that the package liquor license will remain in the premises for the entire term of the lease, namely, August 1, 1967 to December 31, 1968, and then subject to option for new lease from January 1, 1969 to December 31, 1969.'
On August 8, 1967, Cayot's application for change of ownership of the liquor license was granted by the Jefferson County Commissioners. Cayot took possession of the premises and began operation of the business.
Cayot subsequently exercised his option to renew the lease for the period of January 1, 1969, to December 31, 1969. At the expiration of that term, the Bullocks orally agreed to allow Cayot to remain in possession of the premises for six months, with an option for six additional months subject to the same terms and conditions as contained in the original written lease. Cayot thereafter applied to the Jefferson County Commissioners to change the location of the license after the oral lease term had expired. At a public hearing concerning Cayot's application, the Bullocks protested that Cayot was breaking the lease agreement with them. On December 14, 1970, the County Commissioners determined that the provision of the lease was irrelevant to their decision and granted Cayot's application.
The Bullocks sued Cayot on the basis of his alleged violation of the lease and asked that the court enter a permanent injunction requiring Cayot to surrender his license or transfer it back to plaintiff and for other appropriate equitable relief. The court found that it was the intention of the parties that the defendant not be permitted to remove the liquor license to a new location after the termination of the lease and that the liquor license was to remain with the premises. The court issued an injunction against the defendant which prohibited him from conducting a retail package liquor business within a competitive area of the plaintiffs. Defendant appeals. We reverse on the sole ground that the injunction goes beyond the scope of the agreements between the parties.
In essence, defendant contends that in his purchase of the liquor inventory and equipment, he also purchased the liquor license and that, upon expiration of the lease, defendant, as owner of the license, was free to transfer that license to another location. Contrary to defendant's position, the trial court found that the lease of the premises and use of the liquor license were the consideration received by defendant for the rental amount he paid and found that the intent of the parties was that the license remain with the premises after termination of the lease. In order to carry out this intent, the licensee had to be either plaintiffs or their lessee.
Considering the wording of the lease, the wording of the bill of sale, and the relevant circumstances surrounding their execution, we conclude that the evidence supports the trial court's construction of these agreements and supports its findings based on that construction. If their is doubt about the proper construction of a given clause, the clause will be construed in favor of the party for whose protection it was inserted. East Tincup, Inc. v. Asphalt Paving Co., 28 Colo.App. 6, 470 P.2d 58. Accordingly, the trial court's findings in this regard are affirmed.
Defendant also contends that since plaintiffs did not establish that they would suffer irreparable harm if the injunction were not granted, the court erroneously issued the permanent injunction. Defendant contends that an adequate remedy at law, money damages, was available to plaintiffs.
A liquor license, however, is a valuable and personal right. See A. D. Jones & Co. v. Parsons, 136 Colo. 434, 319 P.2d 480. There is no adequate and just way to compensate plaintiffs for the loss of a liquor license because of the difficulty in ascertaining damages concerning lost income and depreciation of property value. Therefore, it was proper for the court to have granted equitable relief.
The permanent injunction of the court reads as follows:
'It is therefore ordered, adjudged and decreed that judgment enter in favor of the plaintiffs on their complaint and against the defendant and that the injunction against the defendant be granted enjoining the defendant from conducting a retail package liquor business within the Bergen Park area or within a reasonable distance thereof so as to be a competitive liquor license with one that the plaintiffs might have if they were able to obtain one.'
In prohibiting defendant from competing with plaintiffs in the retail liquor business, the court committed error by going beyond the scope of the issues presented in this action.
It would, however, be proper for the court to prohibit defendant from operating under the subject license, or from resisting if plaintiffs seek to have the license transferred to their name on their premises, but nowhere in the bill of sale or the lease is there a covenant not to compete. Injunctive relief based on a contract must be coextensive and consistent with the terms of the contract. Fulton Irrigation Ditch Co. v. Twombly, 6 Colo.App. 554, 42 P. 253.
We therefore reverse and remand with direction to the trial court to issue mandatory injunctive orders not inconsistent herewith.
COYTE and PIERCE, JJ., concur.