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Braeside Realty Trust v. Cimino

OPINION FILED MAY 30, 1985.

BRAESIDE REALTY TRUST, PLAINTIFF-APPELLANT,

v.

STEVE CIMINO, D/B/A SPECTRUM MOBILE CATERING, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Eugene Ward, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Braeside Realty Trust, appeals from a judgment of the circuit court of Cook County holding that defendant need not fulfill his obligations under a written lease agreement. Plaintiff presents the following issues for review: (1) whether the trier of fact properly ascertained the intentions of the parties as expressed in the lease, and (2) whether there was sufficient evidence to support the judgment of the court.

We affirm in part and reverse in part and remand.

Plaintiff owned an industrial building at 2010 Touhy Avenue, Elk Grove. The building consisted of multiple units that plaintiff rented out in either single or double combinations. Defendant, Steve Cimino, doing business as Spectrum Mobile Catering, began negotiating with plaintiff for the rental of a double unit in April 1981.

Defendant received from plaintiff the keys to the units in April with immediate possession; they agreed that defendant would begin to pay rent on August 1, 1981. They executed a written lease for a two-year term, where defendant agreed to pay plaintiff $1,050 per month in rent during the first year and $1,100 per month during the second year. The lease provided, in part, as follows:

"Lessee [defendant] agrees to occupy and operate the entire premises for the purposes hereinabove set forth at all times during the term of this Lease unless prevented from doing so by causes beyond Lessee's control * * *."

The lease further provided as follows:

"Nothing in this article shall be construed to require Lessee to comply with any laws, ordinances, regulations or requirements referred to herein which may require structural alterations, structural changes, structural repairs or structural additions unless made necessary by any act or conduct of Lessee or work performed by Lessee in which event Lessee shall comply at its sole cost and expense."

Defendant deposited $1,050 with plaintiff as a security for performance of the terms of the lease.

On June 19, 1981, defendant notified plaintiff that he would not perform under the lease, citing, inter alia, "various business changes." Plaintiff advertised the units and rented them to a new tenant beginning December 1981.

Plaintiff filed suit on March 14, 1983, seeking rent for the months of August, September, October, and November 1981, in addition to late charges, advertising costs of $701.71, and cleaning costs of $50 due to defendant's occupancy. Setting off the security deposit, plaintiff sought a total of $4,301.71.

The trial court entered judgment against defendant on March 18, 1983, based on a confession of judgment clause in the lease agreement. On October 18, 1983, the trial court opened the judgment by confession, allowed the judgment to stand as security, and allowed defendant to file an answer. Defendant filed an answer and a counterclaim for the amount of his security deposit.

At a hearing on the merits, defendant testified that when he went to the Elk Grove village hall to obtain an occupancy permit, the village building commissioner told him that he could not occupy the premises for the purpose that he intended, mainly the storage of catering trucks. Defendant further testified that he did not apply for the permit because of the inspector's discouraging remarks. At the end of the hearing, the trial ...


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