Under Indiana law, a landlord does not assume the risk of a tenant's poor business decisions. Madison Plaza, Inc. v. Shapira Corp., 387 N.E.2d 483, 485 (Ind.App. 1979). ADG presented evidence that Scottsdale Mall's design and present tenant mix may be responsible for the mall's troubles, with a one-story anchor (Target) located at one end of the mall and an assertedly confusing co-existence of an "upscale" department store (Ayres) and a discount store (Target) as anchors.
The third element, inadequacy of plaintiff's legal remedy, is not as clear. On this issue New Park Forest cites one Canadian case and five from other jurisdictions in the United States for the proposition that a tenant's breach of a continuous use clause creates irreparable injury for which money damages are inadequate. (See Lonoke Nursing Home, Inc. v. Wayne Neil Bennett Family Partnership (1984), 12 Ark. App. 282, 676 S.W.2d 461; Lincoln Tower Corp. v. Richter's Jewelry Co. (Fla. 1943), 12 So.2d 452; Madison Plaza, Inc. v. Shapira Corp. (Ind. Ct. App. 1979), 387 N.E.2d 483; Dover Shopping Center, Inc. v. Cushman's Sons, Inc. (1960), 63 N.J. Super. 384, 164 A.2d 785; Slater v. Pearle Vision Center, Inc. (Pa. Super. 1988), 546 A.2d 676.) New Park Forest claims further that no amount of money can compensate for Rogers' unique contribution to a tenant mix and that only specific performance will maintain that mix. The trial court ruled that money damages are ascertainable by a trier of fact even if arriving at the proper figure for these damages might be difficult.
Id. at 46-47. An examination of some state cases shows a tendency to deny relief in cases such as this. Madison Plaza, Inc. v. Shapira Corp., 180 Ind. App. 141, 387 N.E.2d 483 (1979), is similar to this case. The tenant occupied a fifth of the plaintiff's shopping center's space, and gave notice of its intent to break a ten year lease after losing money for five years.
Other courts have declined to issue injunctive relief on the basis that the injunction would require continuing court supervision of an ongoing retail business. See, Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975); Madison Plaza, Inc. v. Shapira Corp., 180 Ind. App. 141, 387 N.E.2d 483 (1979); Price v. Herman, 81 N.Y.S.2d 361 (1948), aff'd, 275 A.D. 675, 87 N.Y.S.2d 221 (1949); Grossman v. Wegman's Food Markets, Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973); Security Builders, Inc. v. Southwest Drug Co. Inc., 244 Miss. 877, 147 So.2d 635 (1962); Sizeler Property Investors, Inc. v. Gordon Jewelry, 544 So.2d 53 (La.App. 1989). These courts have held that "[s]pecial knowledge, skill and judgment is necessarily involved in selecting and investing in inventory, selecting, training and compensating adequate personnel and innumerable other day-to-day business decisions."
Specific performance is appropriate when the contract can be completed by simultaneous acts in a single transaction that will require no further court supervision. See Gabriel, 843 N.E.2d at 48; Madison Plaza v. Shapira Corp., 387 N.E.2d 483, 486 (Ind.Ct.App. 1979); see also Risk v. Thompson, 147 N.E.2d 540, 545 (Ind. 1958).
See, e.g., The Western Southern Life Ins. Co. v. Crown Am. Corp. 877 F. Supp. 1041, 1044 (E.D.Ky. 1993); CBL Assoc., Inc. v. McCrory Corp., 761 F. Supp. 807, 809-10 (M.D.Ga. 1991); 8600 Associates Ltd. v. Wearguard Corp., 737 F. Supp. 44, 46 (E.D.Mich. 1990); M. Leo Storch Ltd. Partnership v. Erol's, Inc., 95 Md.App. 253, 620 A.2d 408, 412 (1993); Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872, 876 (1975); Madison Plaza Inc. v. Shapira Corp., 180 Ind. App. 141, 387 N.E.2d 483, 486-87 (1979). The theory behind this hard and fast rule is that courts should refuse to order specific performance of contracts where such an order would require continuing court supervision.
New Park Forest Assocs. II v. Rogers Enters., Inc., 552 N.E.2d 1215, 1219-20 (Ill. App. 1 Dist. 1990); 8600 Assocs. v. Wearguard Corp., 737 F. Supp. 44 (E.D. Mich. 1990); Sizeler Property Investors, Inc. v. Gordon Jewelry, Corp., 544 So.2d 53 (La. App. 4 Cir. 1989); Madison Plaza, Inc. v. Shapira Corp., 180 Ind. App. 141, 387 N.E.2d 483 (1979); Lorch, Inc. v. Bessemer Mall Shopping Ctr., Inc., 294 Ala. 17, 310 So.2d 872, 876 (1975); Grossman v. Wegman's Food Mkts., Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973); Ambassador Foods Corp. v. Montgomery Ward Co., 43 Ill. App.2d 100, 192 N.E.2d 572 (1963); Security Builders, Inc. v. Southwest Drug Co. Inc., 244 Miss. 877, 147 So.2d 635 (1962); Price v. Herman, 81 N.Y.S.2d 361 (1948), aff'd, 275 A.D. 675, 87 N.Y.S.2d 221 (1949); Laker v. Soverinsky, 318 Mich. 100, 27 N.W.2d 600 (1947); Green v. Bay City Port Huron R.R., 158 Mich. 436, 123 N.W. 4 (1909); Grape Creek Coal. Co. v. Spellman, 39 Ill. App. 630 (1891). Most of the cases reason that the injunction would involve the court in having to supervise the future performance, thus putting the court "in the business of managing a shopping center."
8600 Assocs., Ltd. v. Wearguard Corp., 737 F. Supp. 44, 46 (E.D.Mich. 1990); see also CBL Assocs., Inc., 761 F. Supp. at 812; Lorch, Inc., 310 So.2d at 876; Madison Plaza, Inc. v. Shapira Corp., 180 Ind. App. 141, 387 N.E.2d 483, 487 (1979). An interlocutory injunction that requires Erol's to reopen its Hilltop store would be of the "mandatory" variety — Erol's would have to interview, hire, train, and oversee management and employees. Handy's testimony makes clear that the day-to-day operations of the store would necessarily include varied and continuous acts that require the exercise of special skill, taste, and judgment.
Our standard of review is to determine whether the trial court abused its discretion by failing to grant injunctive relief. Madison Plaza, Inc. v. Shapira Corp., (1979) Ind. App., 387 N.E.2d 483, 487; Indiana Alcoholic Bev. Comm'n v. State ex rel. Harmon, (1976) Ind. App., 355 N.E.2d 450, 453; Clark Realty, Inc. v. Clarke, (1976) Ind. App., 354 N.E.2d 779, 781. An abuse of discretion is present only if the trial court's decision is clearly against logic.
The defendant relies on a line of cases from other jurisdictions denying injunctions to compel the continued operation or reopening of businesses in shopping centers. E. g. CBL Associates, Inc., v. McCrory Corp., 761 F. Supp. 807 (M.D. Ga. 1991); 8600 Associates Ltd. V. Wearguard Corp., 737 F. Supp. 44 (E.D. Mich. 1990); New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill. App.3d 757 (1990); Madison Park Inc. v. Shapira Corp., 180 Ind. App. 141 (1979). These cases, in general, acknowledge the interdependence of stores in a shopping center, and the consequent difficulty of ascertaining damages from the closure of a single store, but nevertheless deny injunctive relief on the grounds that monetary damages are available, and that the issuance of an injunction would impose on the court an undue burden of long-term, continuous supervision of the operation of a business.