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Madigan Bros, Inc. v. Melrose Shop. Cen.





Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.


This appeal arises from the entry of a permanent injunction against the lessor-defendants, Winston Plaza Associates, David Golstein, T.D.P. Corporation and La Salle National Bank as trustee under Trust No. 103971, on motion by the lessee-plaintiff, Madigan Brothers, Inc., for summary judgment. Defendants were enjoined, during the term of plaintiff's store lease in the Winston Park Plaza Shopping Center in Melrose Park, from constructing a restaurant or other building in the shopping center's parking area, without the prior written consent of the plaintiff.

Defendants Winston Plaza Associates and La Salle National Bank are lessors of premises in Winston Park Plaza Shopping Center in Melrose Park, Illinois. In June 1981, Winston acquired all of the rights and interest formerly held by the Chicago Melrose Park Association and the Melrose Shopping Center Company with respect to the shopping center.

Sometime prior to March 1983, defendants Walgreen Company and Wag's Restaurants of Illinois, Inc., entered into negotiations with Winston to build and operate a Wag's Restaurant in the parking area of the shopping center. The plans called for the restaurant to be located approximately 500 feet from the front of plaintiff's store.

Plaintiff Madigan Brothers, Inc., has, since 1960, leased a store in the shopping center. On March 4, 1960, when the shopping center was still being developed, plaintiff entered into a lease for 50,453 square feet of ground floor shopping space. The lease stated that the construction of the shopping center was substantially completed, but provided for the construction of an addition to plaintiff's building which, along with two other stores in that building, would constitute plaintiff's leased space. Pursuant to the lease, the construction of the addition was completed and plaintiff's store was opened in March of 1961.

Article I-B of the lease is entitled "Parking Areas and Common Areas." Section 1 of Article I-B states that, in addition to the store premises leased to plaintiff, "this lease includes the non-exclusive right to Tenant and its agents, servants, successors, assigns, licensees, invitees, customers, suppliers and patrons to use and enjoy throughout the term of this lease the `common areas' of the Shopping Center, to-wit, the driveways, entrances, exits, roadways, parking areas, sidewalks, malls and other features and facilities provided for the general uses and purposes of the Shopping Center."

Section 2 of Article I-B sets forth in detail the landlord's duties and obligations with respect to the common areas. It provides, in part:

"The location and arrangement of said parking areas, sidewalks, pedestrian malls, entrances and exits and roadways will substantially conform with the plat attached hereto and shall be kept open at all times.

The Landlord further agrees that, at its sole cost and expense, subject to the provisions of Section 2 of Article III, it will provide, operate, manage and maintain during the term of this lease, and any extensions thereof, all of the parking areas * * * together with any enlargement or rearrangement thereof required by enlarging the Shopping Center of the gross building area of the buildings thereon * * *. The Landlord, at its sole cost and expense, shall place and maintain markings on the surface of the parking area and driveways in such a manner as to provide for the orderly parking of automobiles and shall provide adequate exits and entrances with signs directing traffic in and out of said parking areas * * *."

Article XVI of the lease provides that plaintiff shall "have, hold and enjoy the demised premises and the entire Madigan building together with all other improvements and all easements, rights and appurtenances which are part of the demised premises during the full term of the lease and any extensions thereof, without hindrance or ejection by any persons lawfully claiming under Landlord."

Attached to the original lease agreement, and described in Article I-A of the lease, were exhibit A, a plot plan of the shopping center showing the leased space; exhibit B, a metes and bounds description of the shopping center; and exhibit B-1, showing "the number and area of existing and proposed automobile parking spaces in the Shopping Center together with existing and proposed driveways, entrances, exits and roadways."

Page 13 of the original lease inaccurately described the store space to be leased to plaintiff, and exhibit B-1 to the original lease inaccurately showed the plot plan of the shopping center. Six days after the original lease was signed, the parties amended the lease by executing a "Memorandum of Agreement made as of March 4, 1960, but actually made the 10th day of March, 1960." The memorandum corrected page 13 of the original lease and substituted a "corrected Exhibit B-1" in place of the original exhibit B-1. Corrected exhibit B-1 showed not only the exact location of the parking area, but also indicated the specific number of parking spaces being provided in the shopping center.

In addition to the corrective modification executed on March 10, 1960, the original lease has been modified on three other occasions. Two of these modifications leased additional space to plaintiff in the building. The third modification, dated July 11, 1977, gave permission to Melrose Shopping Center Company, which was then the owner of the shopping center, to construct a bank building in the parking area of the shopping center. In exchange for permission to build the bank, the landlord gave plaintiff the right, previously denied by Article XIX of the lease, to open a new store within four miles of the shopping center.

On July 23, 1980, prior to Winston's acquisition of its interest in the shopping center, plaintiff filed a one-count complaint for mandatory injunction and other relief against Winston's predecessors in interest in the shopping center, alleging violations of certain terms of plaintiff's lease. After learning of Winston's negotiations with Walgreen, plaintiff filed its third amended complaint, joining Winston and Walgreen as defendants and adding count VI. Plaintiff alleged in count VI that certain provisions of its lease gave it a nonexclusive easement in and to the shopping center parking areas. Plaintiff further alleged that Walgreen had entered into an agreement with one or more of the defendants whereby Walgreen and Wag's would be permitted to build a Wag's Restaurant in a portion of the parking area currently used by plaintiff's customers. Plaintiff contended that construction of the proposed Wag's Restaurant would constitute an interference with plaintiff's easement because it would, among other things, eliminate ...

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