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Enerson v. Commonwealth Edison Co.

OPINION FILED JULY 9, 1985.

FRED E. ENERSON, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Will County; the Hon. Charles P. Connor, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

Plaintiff brings this appeal challenging the lower court's grant of summary judgment in favor of both defendants. We affirm.

Plaintiff (Enerson) was lessee of the premises owned by the defendant Commonwealth Edison Company (Com. Ed.). The lease was made through the defendant First National Bank of Morris (the bank) as the agent of Com. Ed. In November 1981, Enerson suffered injuries when the heater on the premises exploded. He brought this suit, alleging that the defendants breached their duty to keep the furnace in good repair.

The lease into which the parties entered contained the following clause:

"MAINTENANCE OF PREMISES: TENANT shall, at their [sic] sole cost and expense, decorate the interior of the residence, maintain the water system, storm, sanitary, or septic system, electrical wiring together with the heating plant and all controls and make all minor repairs to the interior and exterior of the buildings and shall not commit nor permit waste to the buildings. In the event a major maintenance problem arises on the LEASED PREMISES costing in excess of $100.00, TENANT will notify LANDLORD of such problem. TENANT hereby agrees to pay for any and all utilities and fuel for heating used and consumed on the LEASED PREMISES during the term hereof."

Defendants, in their motions for summary judgment, included the affidavit of Thomas Tesdal, a vice president of the bank, who signed the lease on behalf of Com. Ed. Tesdal stated that he never represented to Enerson that the bank would repair any fixtures on the premises.

Enerson, in response, attached Tesdal's deposition in which he stated that the bank had previously paid for the cleaning of the septic system and installation of a new water pump. Each of these repairs cost in excess of $100. Tesdal further stated that the procedure was for the tenant to obtain a price for the repair, notify the bank if the cost was to be greater than $100, and the bank was to determine whether to pay for it.

The trial court granted the bank's second motion for summary judgment. The primary assertion in the motion for summary judgment is that the defendants had no duty to repair imposed on them by the lease. Enerson claims that the lease provision is ambiguous, and that this ambiguity created a duty on behalf of defendants. It is true that any ambiguity in a lease should be construed most strongly against the lessor and in favor of the lessee. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App.2d 5, 253 N.E.2d 126.) While inartfully drafted, there is no ambiguity as suggested by Enerson. The provision is clear in defining the intent of the parties. The duty to maintain and repair was clearly placed on Enerson and he had the duty to inform the lessor regarding repairs costing in excess of $100. Enerson admitted that he only informed the bank that there was a problem. There is nothing to suggest that he informed the bank as to its cost. Appellee's argument that the notice provision in the lease was to protect the property from mechanic's lien claims neither enlarges nor reduces lessor's responsibility. All maintenance and repair was plaintiff's obligation.

Due to the plenary nature of summary judgment, it should only be granted when there is no doubt that the movant is entitled to it. (Dragovan v. City of Crest Hill (1983), 115 Ill. App.3d 999, 451 N.E.2d 22.) "[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. [citations.]" Fooden v. Board of Governors (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497.

We find that summary judgment was proper in this case. Plaintiff did not show nor create any duty at law on the defendants' part. In light of our finding above, there is no necessity to consider the question of whether or not there was a genuine issue of material fact raised by Enerson's evidence as to the explosion.

Therefore, the orders of the circuit court of Will County granting summary judgment in favor of defendants Commonwealth Edison Company and First National Bank of Morris will be affirmed.

Affirmed.

HEIPLE, P.J., concurs.

JUSTICE STOUDER, ...


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