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Wil-shore Mot. Sales v. Cont. Ill. Bank

OPINION FILED DECEMBER 24, 1984.

WIL-SHORE MOTOR SALES, INC., PLAINTIFF-APPELLEE,

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



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

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 21, 1985.

Defendants, Dorothy V. Waxler and Sidney Markovitz, appeal from an entry of summary judgment in favor of plaintiff, Wil-Shore Motor Sales, Inc., and from the trial court's order granting plaintiff specific performance of an option to purchase certain real property leased by plaintiff. On appeal, defendants contend: (1) that the trial court erred in granting plaintiff's motion for summary judgment; (2) that the court erred in denying defendants' motion for summary judgment; and (3) that the court erred in denying defendant Waxler's motion to dismiss her from the lawsuit.

Initially we note that the plaintiff was granted leave to file an amended complaint naming as party defendants Continental Illinois National Bank and Trust Company of Chicago, a national banking corporation, as trustee under trust No. 52375; Dorothy V. Waxler; John C. Waxler (jointly Waxler defendants); Central National Bank of Chicago, a corporation, as trustee under trust No. 24439 (Central); Sidney Markovitz; Marion Markovitz; Lezli Elizabeth Markovitz; Michael Jay Markovitz; and Rhoda Elvove Markovitz (jointly Markovitz defendants), and other unknown beneficiaries of trust No. 24439. The trial court granted the motion to dismiss John C. Waxler with prejudice, and he is not a party to this appeal. For simplicity, this opinion will refer only to the principal defendants, Dorothy J. Waxler and Sidney Markovitz.

The record discloses that Waxler is the beneficial owner of property located at 611 Greenbay Road in Wilmette. Plaintiff, an Illinois corporation, is engaged in the business of the retail sale of automobiles and leases the above-mentioned premises from Waxler for the operation of its business under two separate 10-year leases beginning in 1961. The second lease, for the period between February 1, 1971, and January 31, 1981, contains a rider with several provisions. One provision requires Waxler to give plaintiff five days prior written notice to correct any defaults before plaintiff will be deemed in default of the lease and Waxler can re-enter the premises. The rider also creates a right for plaintiff to "meet or refuse" any bona fide offer of purchase made to Waxler with regard to the premises. This covenant provides as follows:

"In the event the Lessor shall during the term hereof be desirous of selling said demised premises, the Lessor shall first communicate in writing any bona fide offer of purchase to Lessee who shall have the prior right to meet or refuse the terms of said bona fide offer on or before ten (10) days from the date of such written communication provided, always, however, that said prior right to acceptance or refusal is expressly conditioned upon the faithful performance and observance by the Lessee of all the covenants, agreements, and conditions on its part herein contained and the payment to the Lessor of the rent hereby reserved up to the date of the completion of such purchase."

The rider to the lease further provides, in paragraph 4 thereof:

"That no default may be declared by the Lessor or other remedy used, as provided in paragraph 14 of this lease unless and until Lessor shall give Lessee a notice in writing notifying Lessee of any alleged default or violation of this lease and Lessee fails to correct or remedy such default or violation within five (5) days after receipt of such written notice."

Additionally, the rider requires plaintiff to carry insurance covering both plaintiff and Waxler in case of loss or damage to the premises. Plaintiff is also permitted to provide a blacktop surface over the vacant parking area on the premises, but plaintiff will be required to seal and reseal the blacktop surface each year or as necessary to keep the surface in good condition.

The record further discloses that on October 12, 1979, Waxler met with James Price Roberts, plaintiff's president and director, and his son, Donald Roberts, vice-president of plaintiff corporation, to discuss a new lease between Waxler and plaintiff. During the meeting Waxler informed James and Donald that she would be willing to sell the leased premises for five or six hundred thousand dollars, but James rejected that price. During 1979 and 1980, Waxler and Donald discussed the possible purchase of the premises by Sidney Markovitz. Markovitz, who was in the business of automobile leasing, testified that he had several private conversations with Donald regarding the possible purchase of the premises leased by plaintiff. Markovitz told Donald that he would be willing to purchase the premises for $250,000, and Markovitz received Donald's assurance that the offer had been conveyed to Waxler. Waxler testified that she telephoned Donald on March 24, 1980, to inform him that she would accept Markovitz' offer to purchase the premises for $250,000.

In July or August, 1980, Markovitz contacted Waxler and after some negotiation, Waxler agreed to sell Markovitz the premises. Waxler and Markovitz agreed to meet on August 12, 1980, to discuss the transaction. According to Waxler, she contacted Donald on August 11, 1980, to inform him that she would be meeting with Markovitz the next day to sell him the premises. Waxler and Markovitz met as planned, and Markovitz presented Waxler with the contract of sale, an escrow agreement and a check for $20,000. The parties agreed that Waxler would arrange for the closing of the deal. On August 25, 1980, Waxler claims that she informed James that she had sold the premises. On September 2, 1980, Markovitz met with Donald to inform him that he had bought the premises for $250,000. The sale was closed on September 12, 1980.

On September 10, 1980, Waxler wrote Donald that the premises had been sold and that rent checks should be made payable to Markovitz beginning on October 1, 1980. The letter was opened by plaintiff's business manager, Isabel Gordon, in mid-September, and she complied with the instructions by sending the October 1, 1980, rent payment to Markovitz.

On September 8, 1980, Donald objected to a request by plaintiff's insurance broker to add Markovitz, the new owner of the property, as an additional insured on the existing policy. Also in September, Donald met with Markovitz to negotiate a new lease of the premises to begin on February 1, 1981. Waxler sent Donald a letter on October 11, 1980, stating:

"This is to confirm our telephone conversation. I called and told you I was selling the building and also you were informed of the sale price; ...


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