Focus Entertainment International, Inc., M&S Zbosnik, Inc., Paul Fuller, Eric Clabaugh, and Peachtree Visuals, LLC d/b/a Inserection appeal from the grant of an interlocutory injunction granted to Partridge Greene, Inc., grantor of an outparcel at Gwinnett Place Mall, to enforce a recorded restrictive covenant in the warranty deed prohibiting the sale or display of pornographic materials; operation of any pornographic business, including massage parlors; adult theatres displaying pornographic pictures or films; and adult book stores dealing in pornographic materials. The Supreme Court of Georgia in its transfer order stated that this case did not implicate freedom of speech under either the State or federal constitutions but involved the construction of a contract restrictive covenant and transferred this case back to this Court for determination. The grant or denial of an interlocutory injunction based on issues of fact rests in the sound discretion of the trial court; therefore, the trial court is affirmed.
On June 24, 1986, PGI and Martin and Sheila Zbosnik entered into a specific restrictive covenant as part of the recorded general warranty deed regarding the purchase of 3522 Satellite Boulevard, Duluth, Gwinnett County, Georgia. Such restrictive covenant was part of the common scheme used in the development of Gwinnett Place Mall and all surrounding outparcels to protect the property retained by PGI and other owners of property conveyed by it and lease holders from PGI. The restrictive covenant stated that the property was prohibited from being “used for the sale or display of pornographic material nor for the operation of any pornographic business including massage parlors, adult theatres displaying pornographic pictures or films, adult book stores dealing in pornographic materials,” and it empowered PGI to enforce the covenants through an action in law or equity to restrain or enjoin such violation. For 15 years, the Zbosnicks operated a business on two floor levels of the store, Home Video. PGI was never aware that any pornographic materials were either sold or displayed on the premises on the lower level.
