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Ebert v. Dr. Scholl's Foot Comfort Shops

OPINION FILED OCTOBER 18, 1985.

ALBERT C. EBERT, PLAINTIFF-APPELLANT,

v.

DR. SCHOLL'S FOOT COMFORT SHOPS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

The present action arose following the termination of commercial lease negotiations between plaintiff, Albert C. Ebert (plaintiff), as lessor and defendant, Dr. Scholl's Foot Comfort Shops, Inc. (defendant), as lessee. Plaintiff now appeals from the trial court's entry of summary judgment orders in favor of defendant. Plaintiff contends that (1) the summary judgments were improper since material issues of fact were in dispute, (2) the trial court erred in failing to find that a contract existed between the parties, and (3) the trial court erred in finding a holdover tenancy under the terms and conditions of the prior lease. We affirm.

Defendant leased and occupied the property known as 19-21 North Wabash Avenue for approximately 30 years. The initial lease for the property was executed on November 15, 1950, between defendant and George S. Lurie, Joseph M. Reich, and Sidney J. Wolf as successor trustees under a trust agreement dated December 29, 1920, and known as Shops Realty Trust. Successive agreements amended and extended the lease and, on July 25, 1969, the final lease, extending the term to April 30, 1981, was executed by the original parties.

In 1979, the Cosmopolitan National Bank of Chicago, under trust No. 23668, dated September 15, 1977, acquired legal title to the property commonly known as 17-25 North Wabash Avenue, Chicago, Illinois. The original beneficial owner of trust No. 23668 was Walter Canton. Prior to April 22, 1980, Canton conveyed his beneficial interest to plaintiff.

On April 22, 1980, defendant wrote to plaintiff's agent, acknowledging the April 30, 1981, lease expiration date, and requesting a lease renewal meeting. The parties, however, were unable to meet until March 9, 1981. At the meeting, plaintiff informed defendant's agent, Herbert Kotkin, that he intended to remodel the 19-21 North Wabash Avenue property. Plaintiff explained that he intended to divide the space then leased by defendant into two rental spaces. This division would reduce defendant's 40 foot frontage at 19-21 North Wabash Avenue to a 20 foot frontage at 21 North Wabash Avenue. Kotkin did not object to the space reduction. He did, however, express concern that defendant's business would be impeded during the construction period. Prospective rental fees were not determined at this time.

Negotiations between the parties and/or their agents continued throughout April of 1981. On May 5, 1981, plaintiff's agent sent defendant a standard form lease, requesting that it be signed and returned to plaintiff within 10 days. Paragraph 17(g) of the form lease provided as follows:

"Submission of this instrument for examination does not constitute a reservation or an option for the premises. The instrument becomes effective as a lease upon the execution and delivery both by Lessor and Lessee."

Defendant made changes and deletions in the form lease before signing and returning it to plaintiff on May 14, 1981. Paragraph 17(g), however, was left intact. On the same day, Kotkin sent plaintiff the following letter.

"Dear Mr. Ebert:

As you know, we have been working diligently with Ann Annovitz and our attorneys on the correction and execution of our final lease draft. Meanwhile, we realize that our existing lease expired April 30, 1981, and we wish to acknowledge, by this letter, that we have agreed to the new rate that is effective May 1, 1981, so that our accounting department can proceed to reimburse you at the correct rental. This rate for May 1, 1981, through April 30, 1982, is $9,583.30 a month. This totals to $115,000 for this coming twelve months.

If you have not cashed our original rent payment for 19 North Wabash Avenue, then I suggest you return it to my attention. I am having our accounting department forward to you a check for the May rent at the new rate.

Within the next few weeks we will finalize, between the two of us, the final lease document and we will be on our way to a profitable ten-year association.

If you have any further questions, please feel free to contact me by telephone, and I am sure we can iron out any problem.

Thank you.

Best wishes.

Herbert Kotkin."

Plaintiff rejected the May 14 lease and, on May 20, 1981, sent defendant a new lease which differed from the May 14 lease.

On June 15, 1981, defendant advised plaintiff that the May 20 lease was unacceptable, and that it no longer wished to enter into a long-term lease agreement for the 21 North Wabash Avenue property. Defendant then offered to continue to lease the property as a month-to-month tenant at the $9,503.33 per month ...


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