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Justine Realty Co. v. American Can Co.

OPINION FILED NOVEMBER 14, 1983.

JUSTINE REALTY COMPANY, PLAINTIFF-APPELLANT,

v.

AMERICAN CAN COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Kenneth C. Prince, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Justine Realty (plaintiff) brought this forcible entry and detainer action based upon alleged breaches of a lease by the defendants. Defendants are American Can Company, the current tenant (lessee), and several subtenants: P.M. Foods and Central National Bank, as trustee, subtenants of American Can; General Warehouse and Transportation Company, subtenant of Central National Bank; and Good Humor Corporation, subtenant of P.M. Foods. P.M. Foods was also a subtenant of General Warehouse. At the close of plaintiff's case, in a bench trial, the trial court entered judgment for defendants. Ill. Rev. Stat. 1981, ch. 110, par. 2-1110.

A lease between corporate predecessors of plaintiff and American Can was entered into in 1960. By assignment, American Can became lessee of the entire premises in 1967. The premises consist of a one-story, 270,000 square foot commercial and industrial building.

A defendant may move for a finding or judgment in his favor at the close of plaintiff's case-in-chief. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1110.) In ruling upon this motion, the trial court must consider all of the evidence presented, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154, 407 N.E.2d 43.

On appeal, the decision of the trial judge should not be reversed unless it is contrary to the manifest weight of the evidence. 81 Ill.2d 151, 154; Stender v. National Boulevard Bank (1983), 114 Ill. App.3d 1041, 1046, 449 N.E.2d 873.

Proceeding with these rules in mind, we will address the two separate factual and legal problems here. First is the matter of alleged structural changes in the premises. Second is the issue of various allegedly unauthorized subleases.

I

As regards the matter of alleged structural alterations, during American Can's tenancy, certain physical changes were made on the premises. A 200-foot interior wall was constructed to subdivide the space in the east half of the building. This was not a load-bearing wall.

In addition to four truck docks in the south wall, the premises originally had six truck docks at the north end of the east wall. With the installation of the interior dividing wall, it became necessary to install five truck docks in the east wall just south of the dividing wall. Two more truck docks were later installed in the west half of the south wall. The trial court found and concluded that the changes were not "structural alterations" requiring prior written consent of the lessor.

Plaintiff's argument is based upon the assumption that the above physical changes of the premises constituted "structural alterations." Yet, plaintiff cites no Illinois case which has squarely addressed the issue of what constitutes a "structural alteration" in the instant context. Plaintiff relies upon cases which establish that a general covenant in a lease requiring the tenant to keep the premises in repair binds him only to make those ordinary repairs reasonably required to keep the premises in proper condition but does not require him to make repairs involving structural changes. See, e.g., Hardy v. Montgomery Ward & Co. (1971), 131 Ill. App.2d 1038, 267 N.E.2d 748.

However, the question of responsibility to pay for repairs is not at issue in the case at bar. The lease expressly provides that "[l]essee shall * * * at its sole cost and expense, make all necessary repairs and alterations, whether structural or otherwise * * *." The issue here is whether the installations of the non-load-bearing, interior dividing wall and the additional truck docks were alterations so major as to be deemed "structural."

A "structural alteration" has been defined to be "[o]ne that affects a vital and substantial portion of a thing; that changes its characteristic appearance, the fundamental purpose of its erection, and the uses contemplated [and] * * * is extraordinary in scope and effect, or unusual in expenditure." (Black's Law Dictionary 1276 (5th ed. 1979).) The trial court used this definition in analyzing the physical changes alleged to be "structural alterations" made without prior written consent.

Our supreme court has implicitly approved the use of such a definition of the term "structural alteration." In Klumpp v. Rhoads (1936), 362 Ill. 412, 415, 200 N.E. 153, changes including the installation of a cement floor and the alteration of windows and doors were held to be "minor changes * * * not contemplated by the legal definition of structural alterations." Although the opinion did not set out the legal definition referred to, it cited Plaza Amusement Co. v. Rothenberg (1930), 159 Miss. 800, 838, 131 So. 350, 357, which sets out a definition of the term "structural alteration" which is substantially the same as the dictionary definition quoted above.

The trial court in the instant case found that the purpose of the dividing wall and the additional truck docks was to make the building more useful to the occupants throughout the 20-year term of the lease, and that the premises could be restored so as to comply with the lease provision requiring return of the premises in substantially the same condition as leased. The dividing wall was non-load-bearing, and the additional truck docks were similar to the original truck docks. The trial court thus concluded that the changes did not ...


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