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The Fair v. Evergreen Park Shopping Plaza

DECEMBER 13, 1954.

THE FAIR, A CORPORATION, AND LYTTON'S, HENRY C. LYTTON AND COMPANY, A CORPORATION, APPELLEES,

v.

THE EVERGREEN PARK SHOPPING PLAZA OF DELAWARE, INC. ET AL., APPELLANTS.



Appeal from the Superior Court of Cook county; the Hon. FRANK M. PADDEN, Judge, presiding. Affirmed.

MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 4, 1955.

All defendants appeal from a decree directing that a mandatory injunction issue ordering defendants The Evergreen Park Shopping Plaza of Delaware, Inc. (hereinafter called Evergreen) and Carson Pirie Scott & Company, a corporation (hereinafter called Carson) "to remove that part of the existing store front of Carson which is an obtrusion on the mall north of Building B in Evergreen Park Shopping Plaza and directing said defendants to replace the pavement and wall of said building so that the north line of Building B is a straight line without any obtrusion thereon," and taxing all costs of the litigation against defendants.

Evergreen is the owner of Evergreen Park Shopping Plaza, a shopping center in Evergreen Park at the southwest corner of 95th street and Western avenue, the dividing line between Chicago and the suburb. Carson and the plaintiffs, The Fair and Lytton's, Henry C. Lytton & Company, a corporation, hereinafter called Lytton, are tenants operating department stores in the Plaza. They are competitors. Evergreen was promoted by defendant Arthur Rubloff, who is its president and chairman of defendant Arthur Rubloff & Company, its corporate manager. In the beginning Rubloff and his associates operated as an unincorporated association. The leases to plaintiffs were negotiated by Rubloff and signed by Arthur Rubloff & Company as agent for the association. By mesne conveyances Evergreen became the owner of the Plaza property, subject to leases to plaintiffs.

The Plaza covers 20 to 25 acres. We are concerned only with that part which extends south from 95th street to 97th street and west from Western avenue about 500 feet. Streets and alleys formerly in the area have been vacated. In the northeast corner on the main or upper level is a large rectangular parking area accommodating 550 cars. Building A extends south from 95th street about 600 feet. It is west of the parking area and parallel to Western avenue. Its east or front building line is straight, except for Walgreen's store at the northern end which is set forward 44 feet east of the other stores in the building. At the opposite or southern end is the department store of The Fair.

The Fair store is the largest and most prominent store in the Plaza. Its main entrance faces east toward Western avenue, along the mall or sidewalk immediately north of Building B. This building extends east to west parallel to 95th street, from Western avenue to the mall in front of The Fair store. It is 346 feet in length. Kroger's Super Market occupies the easterly 116 feet, Carson has 130 feet immediately west, and Lytton 100 feet at the western end. There is a mall between Lytton's and The Fair store. Building C is 24 feet north of the north building line of Building B as it existed before Carson erected a bay, described in the decree as the "obtrusion on the mall," extending 5 feet north of the original building line. Building C is parallel to building B and is 180 feet or more long. It is opposite the entire front of the Carson store and part of the Lytton and Kroger stores. It is occupied by smaller stores. South of Building B is a lower-level parking area extending to 97th street. There is an escalator in the Lytton and Carson stores to carry people from the lower level to the main level of the respective stores.

The Fair was the first tenant of Evergreen. The lease, dated September 22, 1950, is for a term of 25 years with an option for an additional 15 years. It was not to become effective until certain plans, drawings and specifications had been furnished to The Fair and approved by it. By amendment dated April 16, 1951 a site plan, revised January 12, 1951, was incorporated in the lease by reference. This site plan showed a straight front building line for Buildings A, B and C, except for the projection of the Walgreen store in Building A. It also appeared from the plan that the locations of the pickup stations for Kroger, and for Jewel, a tenant in Building A, shown thereon, were not final. The Kroger pickup station was 24 feet north of the Kroger store and near Western avenue. It was finally located 19 feet 2 inches north of Building B. The Jewel pickup station was near 95th street and has no bearing on the issues in this case.

The Lytton lease, dated December 30, 1950, is for a term of 10 years with an option to renew for an additional 15 years. Attached to and made a part of the lease was a site plan, as revised December 20, 1950, which was in all material matters the same as the plan incorporated in The Fair lease. It showed that the parking area north of Building C was to be revised. This revision was either made or abandoned before February 16, 1951, the date of the site plan in The Fair lease. The notation is not on that plan.

Each lease provided for the construction and maintenance of areas for parking and malls, to be used by the tenants in common with the landlord and all other tenants. In The Fair lease the lessor agreed to construct and maintain "an area for parking and mall to connect with the demised premises (all hereinafter called `parking area')," to be located in accordance with the upper-level site plan as revised February 16, 1951, incorporated by reference in the lease as amended, and the lessor leased and demised to the tenant the parking area therein described and such parking areas as might be added thereto from time to time thereafter for the term of the lease and any renewal, for use by tenant, its employees, agents, customers and invitees in common with use by the landlord and all tenants, their employees, agents, customers and invitees. The Lytton lease was not as explicit. By it the lessor agreed to construct a parking area and mall approximately as shown by the site plan as revised December 20, 1950, to be available to all tenants, their employees, agents, customers and invitees. In each lease the respective tenant bound itself to pay its proportionate share of the cost to the landlord of operating, lighting, cleaning, removing snow, policing and otherwise properly maintaining the parking areas, malls and other areas common to all tenants, but not more than the sum stated in the lease.

The buildings in the Plaza were not ready for occupancy by plaintiffs until the latter half of 1952. The Fair store opened for business in August, and Lytton in the following month. In June 1952 Rubloff began negotiations to obtain Carson as a tenant. July 24, 1952 Carson submitted to Rubloff a letter outlining the conditions under which it was prepared to lease the space in Building B between Lytton and Kroger. One of the conditions was that "the upper level entrance to extend opposite electric stairway landing for 5 feet north of the present building line, and for approximately 50 feet east and west on this line, such entrance to be designed for glass construction." Carson expressly stated that "This proposal assumes a final lease satisfactory to both parties." Rubloff immediately endorsed his acceptance on the letter. A lease was prepared providing for the extension of the front 5 feet north of the "present building line," and signed by Rubloff on behalf of lessor September 20, 1952. Two days later the construction of the bay began.

The manager of Lytton's store notified Cole, president of the company, and a protest was made September 22, 1952 to Rubloff. On the same day Rubloff notified Carson of Lytton's protest. He immediately conferred with Cole and Suyker, president of the Fair, who insisted that the proposed erection of the bay would be a violation of their rights under their respective leases and that work on it should stop. These conversations were immediately reported to Carson. On October 2, 1952 Carson signed the lease. Attached to this lease are two site plans. The first, revised as of May 10, 1952, shows a straight north building line for Building B; the second, revised for Carson September 16, 1952, shows the Carson bay extending north of the building line. A week later, October 9, 1952, a complaint for injunction was filed. In addition to the defendants hereinabove named, the architectural firm which supervised the construction of the Plaza and of its constituent stores, the general building contractor for the Plaza and its stores and the corporation which provided financing to Evergreen were made defendants. During the pendency of the suit Evergreen and Carson completed the bay.

The Carson bay projects five feet from the building line of Building B into the mall shown on the plans incorporated in plaintiffs' lease and as originally constructed by Evergreen. It is about 48 feet long. At each end is a diagonal entrance to the store 15 feet or more in length. At the top of each entrance is Carson's name, visible from either end of the mall. The western entrance is adjacent to the Lytton store. The bay and the entrances are glass. The entire bay is a show window, displaying Carson merchandise.

The presidents of the respective plaintiffs testified that permitting a store to extend beyond other stores violates a fundamental law of retail merchandising. Cole testified further that he did not know an instance where in the same building one front protruded beyond the other fronts; that it gives the protruding store an advantage over its neighbor in the advertising that is presented in its windows, and the prominence of the entrances, making it easier for a person to go into one store than the one next door. Defendants called experts who testified that the projecting bay and show window gave no retail merchandising advantage to Carson. There is evidence intended to show that the extension of Carson's store front into the mall was in part, at least, a public safety measure. Representatives of Carson testified that the space between the escalator and the original north wall was not adequate to permit the circulation of customer traffic. Rubloff testified that an official of Carson told him that Carson had determined that the escalator was so far forward that if they were to merchandise the space properly the rush of traffic would be such that it would create a hazard to public life and limb. This testimony is destroyed by a Carson exhibit showing a sales counter for handbags and gloves directly in front of the escalator exit. This counter is 36 feet long and is placed 4 1/2 feet south of the original north wall of the store. There is no evidence of probative value as to the cost of moving the escalator. There is testimony that in a conference following plaintiffs' protest against the bay, representatives of Evergreen said it would cost $50,000 to relocate the escalator, and that Suyker said the work could be done for $5,000 and he would take a contract to do it for $10,000.

There is testimony to the effect that the bay interferes with persons entering the Plaza from Western avenue or going from plaintiffs' stores to Western avenue, particularly during the busy or peak hours. This is disputed by defendants' experts. It is also suggested that the bay lessens the shelter afforded pedestrians in hot or inclement weather by the canopy roof which extends 12 feet into ...


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