                           UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 13-1766


REDNER’S MARKETS, INC.,

               Plaintiff - Appellee,

          v.

JOPPATOWNE G.P. LIMITED PARTNERSHIP,

               Defendant - Appellant.



                           No. 13-1974


REDNER’S MARKETS, INC.,

               Plaintiff - Appellee,

          v.

JOPPATOWNE G.P. LIMITED PARTNERSHIP,

               Defendant - Appellant.



                           No. 13-2279


REDNER’S MARKETS, INC.,

               Plaintiff - Appellant,

          v.
JOPPATOWNE G.P. LIMITED PARTNERSHIP,

                Defendant - Appellee.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cv-01864-RDB)


Argued:   October 28, 2014              Decided:   December 17, 2014


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles Milton Kerr, KERR MCDONALD, LLP, Baltimore,
Maryland, for Appellant/Cross-Appellee.    John J. Miravich, FOX
ROTHSCHILD   LLP,   Exton,  Pennsylvania,   for    Appellee/Cross-
Appellant. ON BRIEF: Kathleen M. McDonald, KERR MCDONALD, LLP,
Baltimore, Maryland, for Appellant/Cross-Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     On May 10, 2011, Redner’s Markets, Inc. (Redner’s) filed

this diversity action for breach of contract under Maryland law

against     its      landlord,          Joppatowne         G.P.       Limited        Partnership

(Joppatowne), seeking monetary relief and permanent injunctive

relief    for       numerous      alleged       violations           of   a   restrictive-use

covenant     in       a     twenty-year         commercial           lease     (the        Lease).

Redner’s     also         sought        declaratory        relief         pursuant        to   the

Declaratory Judgment Act.                  See 28 U.S.C. § 2201.                    Following a

bench trial, the district court entered judgment in favor of

Redner’s    in      part    and    in     favor      of   Joppatowne          in    part.      The

district    court         also    denied    a    post     trial       motion       by    Redner’s.

Both sides have appealed.



                                                I.

     The relevant facts on appeal are as follows.                               Redner’s is a

Pennsylvania corporation with its principal place of business in

Reading,     Pennsylvania.                Joppatowne           is     a   Maryland        limited

partnership with its principal place of business in Baltimore,

Maryland.           On     November       23,    2005,      Redner’s          and       Joppatowne

executed        a        commercial         lease         whereby         Redner’s          leased

approximately            54,000    square       feet      of        retail    space       in   the

Joppatowne          Plaza        Shopping        Center        (Shopping            Center)     in

Joppatowne,         Maryland       in    order       to   operate         a   warehouse-style

                                             - 3 -
grocery store.    Joppatowne owns and manages the Shopping Center.

     Of    relevance     on     appeal,     the    Lease      contains     a

restrictive-use covenant (the Restrictive-Use Covenant) whereby

Joppatowne covenanted that, during the term of the Lease, “it

shall not lease to, use, or permit to be used or otherwise allow

any portion of the Shopping Center . . . to be used as a food

supermarket, butcher shop, seafood shop, or ‘grocery store.’”

(J.A.   2494).    The   Lease   specifically   defines     both   the   terms

“food supermarket” and “grocery store,” inter alia, as:

     any retail operator in the Shopping Center whose Gross
     Floor Area is 15,000 square feet or less and whose
     in-store   sales    areas   offering   canned   foods,
     fresh-baked bakery items; baking ingredients; fresh or
     frozen meats and deli items; fresh uncooked fruits and
     vegetables; ice cream, frozen vegetables and frozen
     prepared foods; milk and milk products, butter, eggs
     and cheese; and pet foods that exceed, in the
     aggregate, twenty-five percent (25%) of such retail
     operator’s Gross Floor Area . . . .

(J.A.   2494).    The   Lease   also   contains    an   exception   to   the

Restrictive-Use    Covenant     providing   that    the    Restrictive-Use

Covenant applies only so long as Redner’s was not in default

under the terms of the Lease as the Lease defines an event of

default by Redner’s.      Also of relevance on appeal, on November,

20, 2006, Redner’s and Joppatowne executed an amendment to the

Lease authorizing Redner’s to build and operate a gas station in

the Shopping Center’s parking lot.




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        The trouble in this case can be traced back to when, on

October 21, 2009, Joppatowne entered into a 10–year lease with

JTF, LLC (JTF), a Maryland limited liability corporation. *                             All

told,       JTF    leases     approximately        108,000    square      feet    in    the

Shopping Center, divided between a flea market of roughly 96,000

square feet and an Amish farmer’s market (the Amish Farmer’s

Market)      of     roughly    12,000      square   feet.      A    fence    physically

separates the two areas.

      The         operative    complaint      in    this     case    is   the     amended

complaint filed by Redner’s against Joppatowne on September 15,

2011, in which Redner’s contends that by permitting a group of

ten stalls to operate in the Shopping Center, Joppatowne was in

breach of the Restrictive-Use Covenant in the Lease.                             Seven of

the ten stalls at issue are located within the Amish Farmer’s

Market——Beiler’s            BBQ,   Beiler’s    Baked       Goods,    Dutch      Delights,

Dutch Pantry Fudge, King’s Cheese & Deli, Kreative Kitchen, and

Lapp’s Fresh Meats.            The other three stalls are located outside

the   enclosure        of    the   Amish    Farmer’s    Market      but   still    within

space JTF leased from Joppatowne——All Fresh Seafood & Produce

(All Fresh) and two with names unidentified in the record.                             Each

stall is separately owned and operated.


        *
       Although the JTF lease was signed on October 21, 2009, the
lease term did not begin until March 1, 2010.



                                           - 5 -
       In late 2011, a bench trial on the issues of liability and

traditional damage theories commenced.                         United States District

Judge       Benson       Legg        conducted    the     bench      trial     over     seven

nonconsecutive days, from December 5, 2011 to August 14, 2012.

On January 24, 2013, Judge Legg issued a memorandum opinion in

which he found that Joppatowne’s allowance of Lapp’s Fresh Meats

and All Fresh to operate in the Shopping Center infringed the

Restrictive-Use Covenant, while its allowance of Dutch Delights,

Dutch Pantry Fudge, and Kreative Kitchen to do the same did not.

Judge Legg reserved the issues of whether Joppatowne’s allowance

of    the     remaining     stalls——Beiler’s            BBQ,   Beiler’s      Baked      Goods,

King’s Cheese & Deli, and the two other stalls unidentified by

name in the record——to operate in the Shopping Center infringed

the Restrictive-Use Covenant, as well as the issue of Redner’s

damages,       for   a    report       and   recommendation       by    a    United    States

magistrate judge.               The district court also entered an order on

January       24,    2013       in    conformity      with     its     January    24,    2013

memorandum opinion.

        Upon Judge Legg’s retirement, the case was reassigned to

United States District Judge Richard Bennett.                           After Joppatowne

objected to Judge Legg’s order of reference to a United States

magistrate       judge,     Judge       Bennett      vacated    it.      Based    on    Judge

Legg’s findings of liability with respect to Lapp’s Fresh Meats

and     All    Fresh,       Redner’s         filed    a   motion       for    a   permanent

                                              - 6 -
injunction,         seeking       an    order      permanently             enjoining      Joppatowne

from continuing to allow Lapp’s Fresh Meats and All Fresh to

operate    in        the    Shopping         Center.            In     a    memorandum       opinion

applying Maryland law filed June 13, 2013, the district court

decided that a permanent injunction was warranted with respect

to    Lapp’s    Fresh       Meats       and       All   Fresh        because       Joppatowne       had

violated the Restrictive-Use Covenant in their regard and the

equities favored Redner’s.                    The district court filed an order to

this effect on June 13, 2013 as well (the Permanent Injunction).

The    next     day,       Joppatowne          noted      a     timely          appeal     from   this

memorandum opinion and the Permanent Injunction, which appeal is

docketed as Appeal Number 13-1766.

       Joppatowne moved below to stay enforcement of the Permanent

Injunction.          The district court denied the motion.                               Thereafter,

Joppatowne       moved       in    our       court      to      stay       enforcement       of     the

Permanent Injunction pending appeal.                             We denied the motion on

June 21, 2013.

       The district court then scheduled a second stage of the

bench trial for July 1 and 2, 2013, with the following issues

remaining       to    be    tried:       (1)       whether       Joppatowne          breached       the

Restrictive-Use            Covenant          by    allowing       Beiler’s          BBQ,    Beiler’s

Baked Goods, King’s Cheese & Deli, and the two unnamed stalls to

operate    in       the    Shopping      Center,          and    (2)       whether       Redner’s    is

entitled       to     damages          for    lost        profits          in    connection       with

                                                  - 7 -
Joppatowne’s allowance of any infringing stalls.                      However, on

the first morning of trial, Redner’s abandoned its breach of

contract claim relating to all but Beiler’s Baked Goods.                           And

with respect to that stall, Redner’s indicated that it would

pursue only injunctive relief.               Accordingly, the issue of lost

profits damages pertained only to the two stalls for which Judge

Legg had already found liability——Lapp’s Fresh Meats and All

Fresh.

     Following trial, the district court made findings of fact

and conclusions of law pursuant to Rule 52(a) of the Federal

Rules of Civil Procedure.          The district court set forth such

findings of fact and conclusions of law in a memorandum opinion

filed July 11, 2013.          The district court first concluded that

Joppatowne had not breached the Lease by permitting Beiler’s

Baked Goods to operate in the Shopping Center.                        Second, the

district court held that Redner’s failed to carry its burden of

proving lost profits damages with reasonable certainty as to

Lapp’s Fresh Meats and All Fresh.

     Of    relevance    on   appeal,    on     July   11,   2013,    the     district

court filed an order and judgment:              (1) in favor of Redner’s for

breach    of   the   Restrictive-Use     Covenant      in   the     Lease,    to   the

extent that Joppatowne allowed Lapp’s Fresh Meats and All Fresh

to operate in the Shopping Center, and incorporating the June

13, 2013 Permanent Injunction by reference, but not awarding

                                       - 8 -
Redner’s any amount for lost profits damages with respect to

Lapp’s Fresh Meats and All Fresh; and (2) in favor of Joppatowne

with respect to Redner’s claims pertaining to the operation in

the Shopping Mall of Beiler’s BBQ, Beiler’s Baked Goods, Dutch

Delights, Dutch Pantry Fudge, King’s Cheese & Deli, Kreative

Kitchen, and the two unnamed vendor stalls.

     Redner’s subsequently moved to amend the district court’s

findings of fact and conclusions of law and for a new trial

pursuant to Federal Rules of Civil Procedure 52 and 59.               In a

document entitled “MEMORANDUM ORDER,” filed September 17, 2013,

the district court denied this motion in all respects except

that it granted the motion to the extent Redner’s was entitled

to nominal damages of $2.00.

     Joppatowne noted a timely appeal of the district court’s

July 11, 2013 order and judgment, which appeal is docketed as

Appeal Number 13-1974.      Redner’s subsequently noted a timely

cross-appeal of “the orders and judgment entered in this case on

January 24, 2013, July 11, 2013, and September 17, 2013,” which

we docketed as Appeal Number 13-2279.      (J.A. 3307).

     Ultimately,   we   consolidated    Appeal   Numbers   13-1766,    13-

1974, and 13-2279 into the present appeal.




                                - 9 -
                                             II.

       Joppatowne      raises        numerous        assignments      of     error      with

respect to the Permanent Injunction and the district court’s

July    11,   2013    order     and    judgment,       which      Joppatowne     contends

should be resolved in its favor.                    Having carefully reviewed the

briefs, the record, and the relevant law, and having had the

benefit of oral argument, we conclude that each assignment of

error    is   without        merit    and    affirm    on    the     reasoning    of    the

district      court    as     stated    in     its    June     13,    2013     memorandum

opinion, Redner’s Mkts., Inc. v. Joppatowne G.P. Ltd. P’ship,

No. RDB–11–1864, 2013 WL 2903285 (D.Md. June 13, 2013), and its

July    11,    2013    memorandum       opinion,       Redner’s       Mkts.,     Inc.    v.

Joppatowne G.P. Ltd. P’ship, No. RDB–11–1864, 2013 WL 3678248

(D.Md. July 11, 2013).



                                             III.

       In its cross-appeal, Redner’s raises numerous assignments

of error with respect to the district court’s January 24, 2013

order, the district court’s July 11, 2013 order and judgment,

and the district court’s September 17, 2013 memorandum order.

Having    carefully      reviewed       the     briefs,      the     record,     and    the

relevant law, and having had the benefit of oral argument, we

conclude      that    each    assignment       of    error   is    without     merit    and

affirm on the reasoning of the district court as stated in its

                                            - 10 -
January 24, 2013 memorandum opinion, Redner’s Mkts., Inc. v.

Joppatowne G.P. Ltd. P’ship, 918 F. Supp. 2d 428 (D.Md. January

24, 2013), its July 11, 2013 memorandum opinion, Redner’s Mkts.,

Inc. v. Joppatowne G.P. Ltd. P’ship, No. RDB–11–1864, 2013 WL

3678248    (D.Md.   July    11,   2013),    and   its   September   17,     2013

memorandum order, Redner’s Mkts., Inc. v. Joppatowne G.P. Ltd.

P’ship, No. RDB–11–1864, 2013 WL 5274356 (D.Md. Sept. 17, 2013).



                                      IV.

     For    the   reasons   stated    herein,     the   judgments   below   are

affirmed.

                                                                     AFFIRMED




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