Appeal from the Circuit Court of Lake County; the Hon. Harry
D. Strouse, Jr., Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 25, 1983.
This appeal by defendant Olga Fiocchi from the circuit court of Lake County focuses on the construction of a lease executed by the parties in August 1976. Defendant contends that she should not be held personally liable under the provisions of a certain restrictive covenant contained in said lease and the trial court erred in denying her motion for involuntary dismissal in light of plaintiff's failure to comply with the requirements of the lease renewal clause.
The facts are not substantially in dispute. On August 19, 1976, plaintiff, Sanni, Inc., entered into a five-year lease with defendant, Olga Fiocchi, as executrix of the estate of Frank Fiocchi, for the purpose of operating a beauty shop in a small shopping center owned by the estate of Frank Fiocchi and known as the "Old Elm Shops." The lease terminated on August 31, 1981, subject to a renewal option extending the lease until August 31, 1986.
The lease contained the following pertinent paragraphs:
"21. (c) All covenants, promises, representations and agreements herein contained shall be binding upon, apply and inure to the benefit of lessor and lessee and their respective heirs, legal representatives, successors and assigns."
"27. Lessee shall have the option in its discretion, provided it expresses its option by notice to the lessor (or its assigns) in writing on or before ninety (90) days prior to the expiration of the first five (5) year term, to renew the lease for additional five (5) years term at or for the sum of Four Hundred ($400.00) Dollars per month with all other terms and conditions of the lease remaining the same."
Of particular importance is Clause 28, which provides:
"28. Lessor agrees not to lease any other stores in Old Elm Shops Shopping Center for the purpose of a beauty salon."
In 1978, the Old Elm Shops were distributed to the heirs of Frank Fiocchi in accordance with the provisions of his will. The subject leased premises and three other stores were distributed to Nancy Majzel, the daughter of Frank Fiocchi, and the remaining three stores were distributed to defendant, Olga Fiocchi.
On or about June 1981, the defendant, acting through her son, Leonard Favella, entered into a month-to-month oral lease with certain parties for the purpose of operating a beauty salon in one of the three stores owned by defendant in the Old Elm Shops. Thereafter, plaintiff filed the instant action in which it sought to enjoin the operation of a competing beauty salon at the shopping center in accordance with the restrictive provisions contained in Clause 28 of the subject lease.
In response to the complaint, defendant filed a motion for involuntary dismissal, alleging that plaintiff failed to comply with the notification provisions of Clause 27. Said clause provided that plaintiff might renew the lease for an additional five-year term upon written notification to lessor or its assigns on or before 90 days prior to the expiration of the term. Defendant asserted that the lease would not extend beyond August 31, 1981, by virtue of plaintiff's failure to provide formal notification of renewal and, as such, plaintiff would only suffer two months of damage resulting from the competing beauty shop.
Plaintiff's answer to the motion alleged that the notification provisions of Clause 27 had been waived by the current lessor, Nancy Majzel. Additionally, plaintiff filed an amended complaint which included a document entitled "Extension of Lease," dated July 29, 1981, in which Nancy Majzel formally accepted plaintiff's request to renew the lease and waived the notification provisions of Clause 27. Following arguments of counsel, the motion was denied.
The case proceeded to trial on January 5, 1982. After the close of the evidence and arguments of counsel, the court entered judgment for injunctive relief in favor of plaintiff. The court's order enjoined defendant, her successors and assigns from leasing any store in the property commonly known as the "Old Elm Shops" for the purpose of operating therein a beauty salon until August 31, 1986. Defendant was ...