Opinion
Sept. 30, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 119
Grant, Shafroth, Toll & McHendrie, P.C., John H. Dahle, Denver, for plaintiff-appellee.
Conover, McClearn, Burkhardt & Heppenstall, P.C., Rick G. Davis, Richard R. Helmick, Denver, for defendants-appellants.
PIERCE, Judge.
Defendant Villa Italia, Ltd. (Villa) appeals from an order enjoining the construction of a Safeway store within the premises of the Villa Italia Shopping Center. We affirm.
A permanent injunction was sought by the Joslin Dry Goods Company (Joslins), a store within the shopping center, based on a clause within the lease agreement with Villa. That clause provided that no structure could be erected within a designated common area of the center without Joslins' prior written approval. Beginning in August 1971, representatives of Villa attempted to obtain the written consent of Joslins to the construction of a Safeway store within the common area. The parties held several meetings, but Villa was never successful in obtaining Joslins' written consent to the proposed construction. Despite this failure, construction of the supermarket was begun in late May of 1973. This lawsuit was then brought to enjoin this construction and to require Villa to restore the common area to its previous condition.
Villa's first contention on appeal is that the trial court erred in failing to find that Joslins was estopped to assert or had waived any right which may have existed to object to the construction of the Safeway store. In this regard, Villa contends that the findings of fact and conclusions of law entered by the trial court are unsupported by the evidence insofar as it found that estoppel or waiver were both precluded by the absence of justifiable reliance on the part of Villa. We disagree.
In order to establish estoppel by conduct, the evidence must show that there was a representation of material fact by a party with knowledge of the facts or chargeable therewith, communicated to one ignorant of the truth of the matter who was thereby induced to act upon it to his detriment. Griffith v. Wright, 6 Colo. 248. To support the allegation of waiver, Villa must establish that Joslins intentionally relinquished the right to veto expansion into the common area; waiver is always a matter of intention. French v. Patriotic Insurance Co., 107 Colo. 275, 111 P.2d 893.
Defendant points to statements attributed to one Sharkey, a representative of Joslins, in support of both estoppel and waiver. The precise content of such statements was a matter of some dispute. The trial court found: that the statements of Sharkey, most of which he denied, were, at best, conditional and merely indicated the possibility of future consent to the erection of the proposed supermarket; that any impression of present consent implied by the statements was negated by the receipt of express written denials of consent received from counsel for Joslins; and that the eventual construction of the supermarket had been commenced in a manner which differed materially from that discussed by the parties.
The findings of the trial court are supported by the evidence and we will not disturb them. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336. The testimony as to the statements of Sharkey was conflicting and inconclusive. In addition, letters written by representatives of Villa and Safeway before and after the purported statements of Sharkey also support the trial court's resolution of this controversy in that these letters imply that Villa acted in disregard of those statements, rather than in reliance thereon. There can be no estoppel where the asserted reliance was unjustified, Farmers' Life Insurance Co. v. Hetherington, 85 Colo. 255, 274 P. 926, or where the subject acts were not actually induced by the alleged representations. See Jacobs v. Perry, 135 Colo. 550, 313 P.2d 1008.
Villa further contends that the trial court erred in concluding that Joslins was entitled to equitable relief. The contention here is that Joslins was attempting to use the covenant as a negotiating tool in order to extract concessions from Villa in connection with a proposed expansion of Joslins' Villa Italia store rather than for the purposes for which the covenant was originally intended. Villa also asserts that the trial court failed to compare the damages suffered by Joslins with losses to be incurred by Safeway and Villa in the event that an injunction were granted. We disagree.
The record reveals that the trial court did in fact consider the purposes for which Joslins was attempting to enforce the covenant. The trial court specifically found that the construction of the Safeway store at the chosen site would present an obstruction of the view of Joslins from Alameda Avenue, that the construction would result in reduction of available parking, and that the location of the proposed supermarket would cause traffic congestion at the north entrance to Joslins' Villa Italia store. It is conceded by the parties that the clause was intended to protect and promote Joslins' present and future business. Since the trial court found that the proposed construction would result in damages to Joslins in connection with its business, contrary to the original intention of the parties, the sole fact that Joslins indicated a willingness to negotiate the terms under which written consent to the construction could be given does not compel the conclusion that its refusal to consent in the absence of negotiation was attributable to some improper motive.
Nor is Villa correct in its contention that the trial court erred in failing to compare the disadvantages suffered by Joslins with the losses to be suffered by Villa and Safeway upon the entering of an injunction. The record reveals that the trial court considered the relative hardships. The evidence admitted by the court and the findings based on that evidence demonstrate that the expense of restoration and other losses which were foreseeably to be suffered by Villa and Safeway upon the granting of the injunction were considered in light of the damages to be suffered by Joslins in the absence of such injunction. The trial court's determination that the equities were with Joslins is supported by the evidence.
Judgment affirmed.
SMITH and KELLY, JJ., concur.