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Mcgann v. Murry

OPINION FILED AUGUST 23, 1979.

PAUL E. MCGANN, DEFENDANT-APPELLANT,

v.

JAMES E. MURRY, JR., PLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. WENDELL THOMPSON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the Circuit Court of La Salle County which after bench trial awarded the plaintiff, James E. Murry, Jr., a judgment in the sum of $2,546.24 for the failure of the defendant, Paul E. McGann, to properly maintain a leasehold.

In January 1970, the defendant leased from the plaintiff certain commercial property, being a drive-in restaurant operation located in the city of Ottawa, Illinois. The restaurant building was surrounded by front and rear blacktop parking lots. The front lot was laid or blacktopped in 1955; the rear lot was laid in 1966. The lease entered into by the parties contained several provisions which are pertinent to this appeal and which are as follows:

Article V(5), section F, provided that the lessee covenanted and agreed on his part:

"To maintain and keep said premises, at their own expense, both the interior and exterior, in good condition and repair as the same shall be upon taking possession thereof, natural wear, injury by fire or other unavoidable accidents excepted." (Emphasis supplied.)

Article III states that the lessee:

"* * * agrees to deliver to the [Lessor] physical possession of the demised premises upon the termination of the term thereof or any extension thereof, in good condition, wear and tear, damage by fire or damage from any other cause not directly attributable to the negligence of the Lessee excepted."

Article VI(6), section B, of the lease provides:

"Lessors agree to re-surface the parking lot in the Spring of 1970 with a sealcoat and the Lessee shall maintain said parking lot in good condition thereafter and during the term hereof." (Emphasis supplied.)

The plaintiff abided by his obligation under article VI(6), section B, of the lease in that he resurfaced the parking lot. The record discloses that no work or maintenance was performed by the defendant-lessee or under his direction during his entire tenancy on the rear parking lot. The defendant during the course of the trial explicitly testified that neither he nor anyone under his direction had done any work on the rear or back lot during his tenancy. Similar testimony was received from employees of the defendant.

The defendant in his brief states that the rear parking lot was in good condition at the commencement of his tenancy. It was admitted by the defendant during the trial that for a period of five years he permitted a business known as Ryg Farm Equipment to park various makes and models of trucks on the rear lot. This area was also used for customer and employee parking.

The defendant's tenancy was terminated in January of 1978. On February 7, 1978, the plaintiff filed suit against the defendant in which he sought damages for the defendant's alleged failure to repair and maintain the leasehold as was required by the terms of the lease. In the complaint the defendant made general allegations of failure to maintain and repair. During the trial of the cause in addition to testimony concerning defendant's failure to repair or maintain the parking area, an effort was made to prove that the defendant left the premises in a dirty condition, failed to repair an air conditioner, steps, fence, a floor, lavatory and plumbing fixtures and equipment. The trial court ruled in favor of the plaintiff only as to the rear or back parking lot and awarded damages in the sum of $2,546.24 for defendant's failure to maintain this area. This appeal is from this award only, and hence this court is not asked to nor will it consider the court's ruling as to other allegations of leasehold violations by the plaintiff.

It should be noted that Robert Newell, referred to by both parties as an expert witness, gave crucial testimony as to the condition of the back or rear parking lot near the time when defendant's tenancy was terminated. Newell was an engineer for Wetherby Construction Company of Ottawa, Illinois. During his 26 years as an employee of Wetherby he had made hundreds of examinations and estimates for the sealing and patching of asphalt parking lots. It was Newell's testimony that on November 21, 1977, at the plaintiff's request he examined both the front and rear parking lots at the drive-in and made a written report and estimate regarding his observations. This written report was admitted into evidence. The written estimate stated that "the rear lot needs patching and sealing." The estimated cost was $2,546.24. The testimony of Newell during the trial was to the same effect with the further observation that proper maintenance requires a lot to be sealed and patched every two or three years.

The trial court at the time of announcing its decision submitted a somewhat lengthy and well-considered memorandum opinion in which was set forth the court's findings as to the various claims made by the plaintiff. We deem it advisable to set forth ...


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