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Mutual of Omaha Life Ins. v. Executive Plaza





APPEAL from the Circuit Court of Winnebago County; the Hon. PHILIP G. REINHARD, Judge, presiding.


Rehearing denied September 16, 1981.

Mutual of Omaha Life Insurance Co. and United Benefit Life Insurance Co. (Tenants), sued the defendants, Executive Plaza, Inc., the managing company for a commercial office building in Rockford, and the owner, Amalgamated Bank & Trust Co., as trustee of Trust No. 2436 (Lessor) for breach of a lease agreement. They sought to enjoin the continued operation of a restricted parking area in the lot adjacent to the leased premises and other relief. The trial judge ruled that the lease had been breached, finding that the Tenants enjoyed a right to use the parking area provided by the Lessor in common with other lessees, but concluding that the removal of the restricted area would not solve the problem of inconvenience, the harm claimed; that no direct economic or monetary loss to the tenants had been proved; and that injunctive relief was not appropriate under these circumstances. The Tenants appeal.

Plaintiffs leased a portion of the office building from the Landlord on April 1, 1975, and, by amendment, extended their lease term until March 31, 1985. The lease form was prepared and supplied by defendants' agent. Plaintiffs have not breached any of the terms of the lease.

The pertinent provision in the lease states:


That Lessor shall, subject to any governmental use limitation, furnish heat, air conditioning, water (hot and cold), elevator and janitor service for said leased premises at such times and in such manner as will keep said leased premises in a clean, healthy and proper condition and so as to render the same tenantable at all times during the term hereof. Electricity for office use and replacement light bulbs or tubes shall be at the expense of Lessee. Lessee and its employees and others having business with Lessee shall have the right in common with others occupying space in subject premises to use the parking area provided by Lessor. Lessor shall maintain said parking area in a neat and clean manner including snow removal."

At the time of the execution of the lease a parking lot was provided adjacent to the office building consisting of approximately 148 spaces for the use of the tenants of the building and their respective clients; with five points of ingress and egress, two on North Court Street (a two-way street), and one each on Park Street, Locust Street (both two-way streets), and North Church Street (a one-way street). Off-street parking is available to the general public on three of the aforementioned streets.

In May 1980, the Lessor entered into a lease with a new tenant, Coopers and Lybrand (hereinafter C & L). According to its lease, C & L leased approximately 27 percent of the total rentable area of the building; and, in addition, C & L employees were given exclusive access to and use of 32 parking spaces in the previously existent common parking lot plus an additional 18 spaces in a newly constructed parking lot on Locust Street across from the premises. Access to the 32 parking spaces in the common lot and to the Locust Street lot is controlled by plastic cards which are inserted into a gate mechanism to raise and lower the gate. The restricted area is cordoned off with the use of chains. The controlled access gate to the main lot is one of the two situated on North Court Street.

At trial, a managing partner of C & L testified that 32 to 38 employees are in the office on a normal workday and that each employee drives his or her car to work daily. C & L has three to seven clients and three to seven vendors visiting its office on a normal workday. The exclusive parking arrangement had been a requirement of C & L during the negotiations for the lease.

Plaintiffs have 8 employees who work in its offices on a normal workday, each of whom also drives his own car, and approximately 2 to 12 clients who visit the offices on a normal workday. A witness for the plaintiffs testified that he habitually parked in the exclusive area prior to the erection of the gates and that he has been inconvenienced by not finding parking in the lot.

Plaintiffs also called a representative from each of the other 16 tenants of the office building as witnesses during the trial proceedings. The witnesses testified, in essence, that on a normal workday more employees drive a car to work than there are places in the parking lot. Although some witnesses had experienced virtually no problems finding parking since the creation of the exclusive area, most of the witnesses testified to greater difficulty in finding a parking space, with some having to park further away from the building than they did previously and some being unable to find a spot in the lot on a few occasions. The testimony of the witnesses established that none of the tenants in the office building are engaged in retail operations, and most have fewer than 10 clients visit their office on a normal working day.

According to a survey done by a secretary of the plaintiffs, there were only seven times during the period between April 28, 1980, and October 6, 1980, when there were no spaces available in the common lot. A survey for defendant, done by the owner of an independent janitorial service employed by defendant, was conducted from May 28, 1980, until October 7, 1980. He never encountered a situation in which there were no parking spaces available.

The only testimony of plaintiffs' personal damages was that of Lee Weckerly, who testified that he and most of his agents habitually parked in the exclusive area prior to the erection of the gates, that the erection of the gates caused the plaintiff the loss of 20 percent of the ingress and egress from the common parking lot, that approximately 22 percent of the parking lot was no longer available, that he had been inconvenienced and that he had seen his agents and customers inconvenienced by the loss of parking space. He testified that he knew ...

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