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Walgreen Co. v. Amer. Nat. Bk. & Trust Co.

MARCH 8, 1972.

WALGREEN CO., PLAINTIFF-APPELLEE,

v.

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, AS TRUSTEE, DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Walgreen Co., (hereinafter referred to as "Walgreen") is the lessee of a store in the Village Green Shopping Center which is owned by the American National Bank & Trust Company of Chicago, as Trustee under Trust No. 26920 (hereinafter referred to as "Village Green"). Walgreen filed this action on October 21, 1969, against Village Green and the Fotomat Corporation (hereinafter referred to as "Fotomat"), to enjoin the defendants from permitting or causing the construction of a structure of any kind on the parking area in the Village Green Shopping Center in Park Ridge, Illinois. More particularly Walgreen sought to enjoin the erection in the parking lot of a kiosk within an area of approximately 40 square feet which was to have been operated by Fotomat for the sale of photographic equipment and supplies and for the receipt of film for processing.

On the same day on which the action was filed, a temporary restraining order was entered enjoining further work on the kiosk which at that time was under construction. A default order was entered against Village Green for failure to file an answer. After a trial on the merits a decree was entered on June 17, 1970, compelling the removal of the partially completed kiosk and enjoining the defendants "from permitting or causing the construction of a building or structure or from permitting to operate or operating any business on any portion of the parking area, service areas, pedestrian malls, sidewalks, and roadways, or other areas not specifically reserved by [Village Green]." A motion by Village Green to open the default order was denied on July 15, 1970. Village Green and Fotomat appeal from the decree of June 17, 1970, and Village Green also appeals from the order denying its motion to open the default order.

The principal issue raised on appeal is whether Village Green breached its lease with Walgreen by leasing an area in the parking lot of the Village Green Shopping center to Fotomat for the construction of a kiosk.

On June 12, 1958, Walgreen entered into a lease with the Park Ridge Shopping Center, Inc. for space in a building which was to be erected and completed as a part of the Village Green Shopping Center. The lease was to run for a term of 25 years, but it was terminable at Walgreen's option at the end of the 10th, 15th, or 20th years.

Article 7(a) of the lease provides in part, as follows:

"It is an express condition of this lease that at all times during the continuance of this lease, Landlord shall provide, maintain, repair, adequately light when necessary during Tenant's business hours, clean, supervise and keep available the Parking Areas as shown on said attached plan (which Parking Areas shall contain at least 150,000 square feet and shall provide for the parking of at least 400 automobiles), and also adequate service areas, pedestrian malls, sidewalks, curbs, roadways and other facilities appurtenant thereto. Said Parking Areas shall be for the free and exclusive use of customers, invitees and employees of Tenant and of other occupants of said Shopping Center, shall have suitable automobile entrances and exits from and to adjacent streets and roads, shall be level and shall be suitably paved and pitched to streets for surface water run off."

Under Article 7(b) Walgreen became obligated to pay a proportionate share of the cost for operating and maintaining the parking facilities in an amount based upon the area of its store in relation to the total area of the retail facilities in the shopping center.

In Article 8(a) rental of space in the shopping center by three specified proposed tenants is made an express condition of the lease and in the event that any of the proposed tenants failed to execute a lease, Walgreen was given an option to cancel and terminate its lease. In Article 8(b)(iii) Walgreen was relieved of the obligation of opening its store and paying rent prior to the time when "All the parking and other facilities described in Article 7 have been completed, paved and lighted and are available for use."

Article 26 of the lease reads in part as follows:

"This instrument shall also bind and benefit, as the case may require, the heirs, legal representatives, assigns and successors of the respective parties, and all covenants, conditions and agreements herein contained shall be construed as covenants running with the land."

A plot plan of the proposed layout of the shopping center was attached to the lease. This plan depicted markings for 463 parking spaces, and it bore a separate legend, "PARKING FOR 400 CARS."

In July 1968, legal ownership of the shopping center was assigned to the American National Bank and Trust Company of Chicago as trustee. In September, 1968, the trustee (Village Green) and Fotomat entered into a lease under which Fotomat rented space in the parking area of the shopping center for the construction and maintenance of a kiosk. Paragraph 29 of this lease provides:

"Co-Tenant Indemnification. In the event that within a period of ninety (90) days from the date of completion of the Fotomat Island, any co-tenant occupying a portion of the entire premises comprising the shopping center institutes legal action against Lessor by reason of a valid and enforceable provision or provisions in the lease between Lessor and said co-tenant and such action is a direct result of the lease between Lessor and Lessee, Lessor shall have the right to cancel and terminate this lease and Lessee shall remove ...


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