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RESTAURANT ASSOCS. INDUS. v. ANHEUSER-BUSCH

July 9, 1975

RESTAURANT ASSOCIATES INDUSTRIES, INC., Plaintiff,
v.
ANHEUSER-BUSCH, INC., Defendant



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 DECISION OF THE COURT

 THE COURT: The plaintiff sues to enjoin the attempted termination as of June 30, 1975 by defendant of an allegedly subsisting contract to operate and manage the food and beverage facilities of the Old Swiss House located in Busch Gardens, Tampa, Florida owned by the defendant and claimed to be a unique tourist attraction. The restraint sought is for the duration of such agreement and from carrying out an agreement which defendant entered into with plaintiff's general manager for replacing plaintiff in the operation and management of the restaurant. Substantial damages as well as declaratory relief are claimed.

 Jurisdiction herein rests on diversity and the requisite amount in controversy.

 This suit was commenced on June 20, 1975, and on application for a preliminary injunction a temporary restraining order was granted and a hearing was set by consent for July 8, 1975. The parties have presented their proofs at the evidentiary hearing held.

 Plaintiff Restaurant Associates Industries, Inc. (Associates hereafter), is and was at all relevant times a corporation organized and existing under the laws of the State of Delaware, having its principal place of business in the City, County and State of New York.

 Defendant Anheuser-Busch, Inc. (Busch hereafter), is and was at all relevant times a corporation organized and existing under the laws of the State of Missouri, having its principal place of business in St. Louis, Missouri and is licensed to do business in the State of New York.

 Busch is and was at all relevant times the owner of certain premises known as Busch Gardens located in Tampa, Florida. Busch Gardens is a unique tourist facility on more than 250 acres of landscaped grounds containing gardens, lagoons and arbors. Busch Gardens contains and includes numerous tourist exhibits such as Wild Animal Kingdom, an aviary, family oriented amusement and entertainment facilities, boutiques and gift shops and related facilities.

 Included among the facilities at Busch Gardens are food and beverage service areas consisting of a firstclass restaurant known as The Old Swiss House, hereinafter referred to as Swiss House, and a number of snack bars, juice bars, fruit stands and food carts. Swiss House is an enlarged replica of a restaurant of the same name in Lucerne, Switzerland built in the early 18th century and owned by relatives of the wife of August Busch, Jr., a past president of Busch.

 In order to view the issues on this application in proper focus it is necessary to understand the background of events from which this controversy arises. There are the following:

 Busch was dissatisfied with the operation by an independent food service company of the food and beverage facilities located in Busch Gardens. In 1969 Busch requested Associates, a public company whose principal business is managing restaurant and beverage service areas and offering consultation services with respect thereto, to assume, under the direction and control of Busch, responsibility for the operation of both Swiss House and the so-called fast food facilities consisting of snack bars, food stands and food carts, all located in Busch Gardens.

 On or about October 22, 1969 Associates and Busch entered into an agreement providing for the management by Associates on behalf of Busch of all of the restaurant, snack bar, food and beverage facilities, including Swiss House at Busch Gardens. The term of that agreement was two years commencing as of December 4, 1969, which term was extended by agreement of the parties until December 25, 1971.

 Prior to the expiration of the October 22, 1969 agreement the parties apparently agreed to the extension referred to and to structure a new agreement to take effect on December 26, 1971, which they did. The new agreement made was for a term of two years commencing as of December 26, 1971 and contained an automatic renewal clause for one year periods beginning with the end of the first two-year period. The renewals were to be on the same terms and conditions and to take effect annually unless as stated in paragraph 4(b) thereof, either party gives written notice to the other not less than 90 days prior to the expiration of the initial term or additional term that the agreement shall terminate at the end of the term. This agreement was dated December 8, 1972 but actually was not signed until many months thereafter and made effective as stated, as of a year prior to its date, that is, as of December 26, 1971 and for two years thereafter. This was the last written agreement made by the parties, although, as we shall see, negotiations to reach a revised agreement were undertaken spasmodically without resulting in a meeting of the minds.

 During the early part of 1973 attempts to agree on the desired revisions were made. Finally on September 24, 1973, 91 days before the expiration of the December 26, 1972 contract, the defendant notified the plaintiff that it was giving notice "in compliance with the requirements of Paragraph 4(b) of the management agreement," (the cancellation clause) that the defendant decided to ...


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