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Great Atl. & Pac. Tea Co. v. La Salle Nat'l Bk.

OPINION FILED OCTOBER 11, 1979.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., PLAINTIFF-APPELLANT,

v.

LA SALLE NATIONAL BANK, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, The Great Atlantic & Pacific Tea Co., Inc. (A&P), filed an action in the circuit court of Cook County to enjoin construction of a drive-in bank facility in the parking lot of a shopping center in which plaintiff maintains a store. Defendants, La Salle National Bank (La Salle), as trustee under a land trust, and Northbrook Trust & Savings Bank (Northbrook), are, respectively, the owner and lessee of the property on which the proposed drive-in facility is to be constructed. *fn1 The trial court granted defendants' motion to dismiss the complaint with prejudice, finding that A&P had no leasehold or other possessory interest in the proposed site of the drive-in bank facility, and A&P appeals.

We reverse the dismissal of the complaint and remand the cause for further proceedings.

The property in question is part of the White Plaines Shopping Center in Northbrook, Illinois. (See attached map.) The original owner of the entire shopping center, Chicago Title & Trust Company, entered into a lease with National Tea Company for the store premises now occupied by A&P. A&P is National Tea's assignee under that original lease, dated July 20, 1967, including subsequent amendments to the lease agreement. Defendant La Salle acquired legal title to the property on which the drive-in facility is to be built through a series of mesne conveyances from the original owner. Defendant La Salle does not own the store property occupied by A&P.

On April 17, 1978, La Salle entered into a lease agreement for the subject property with Northbrook. Subsequently, Northbrook prepared to construct a drive-in facility upon its leasehold interest.

A&P objected to the construction of the facility and on February 16, 1979, it filed a two-count complaint for injunctive and other relief to prevent the construction of the drive-in bank. Count I of the complaint sought to enjoin the construction as a continuing interference with A&P's leasehold interest. Count II sought to enjoin the construction as a nuisance. Defendants moved to dismiss the complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 45 and 48), on the ground that A&P's lease did not convey a leasehold interest in the subject property. The affidavit attached to the motion merely indicated that La Salle does not own the property on which the A&P store is located. After hearing argument on February 23, 1979, the trial court dismissed A&P's complaint with prejudice and A&P appealed.

The lease agreement under which A&P claims its interest in the subject property describes the leased premises as follows:

"The North 520 feet of Lot `A' in White Plaines Unit Seven, being a Subdivision in Section 8, Township 42 North, Range 12, East of the Third Principal Meridian, in Cook County, Illinois. (Specifically the store premises to be located within the above legal description, as more particularly indicated on Plot Plan `A'.)

The premises under this lease include the free use of properly paved, lighted, drained, striped parking lot of approximately 84,000 square feet allowing for the parking of approximately 230 automobiles by lessee, its customers, agents and employees. See approved plot plan `A' showing building and parking lot areas which is attached hereto and made a part hereof. Said parking lot to be used in conjunction with other customers of lessee in this development, if any, and lessor agrees to maintain, light and remove snow from all parking area."

Plot plan A depicts the store area of approximately 28,000 square feet occupied by A&P and a parking lot bearing the legend "Parking for National Tea Co. 230 cars — 84,000 sq. ft. To be a part of Common Area Parking." Also shown on the plot plan are areas designated "Future Stores", "Contemplated Future Use", and "Contemplated Future Parking." The subject property, now owned by defendant La Salle, lies within an area marked on plot plan A as contemplated future parking — not within the area designated National Tea Co. (or A&P as assignee) Parking. It appears from the plot plan that the store premises and adjacent parking for 230 cars were the first phase of the shopping center project.

The lease agreement further provides that "Plot Plan `A', a copy of which is attached hereto and made a part hereof, is hereby approved by both parties," and that no changes may be made therein without the lessee's written approval.

Another provision of the lease designated "Common Area Maintenance Charges" requires that the lessee pay a prorated share of the costs of maintaining "parking areas, service areas and drives, and sidewalks. Said parking lot and common area shall include costs shall include [sic] repairs, restriping the parking lot, lighting, resurfacing, cleaning, snow removal and liability insurance." The terms of the lease are expressly made binding on the heirs, executors, administrators, successors and assigns of the original parties to the lease.

OPINI ...


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