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04/15/88 Robert W. Sheridan, D/B/A v. Comp-U-Motive

April 15, 1988

ROBERT W. SHERIDAN, D/B/A ROBERT W. SHERIDAN MANAGEMENT, PLAINTIFF-APPELLANT

v.

COMP-U-MOTIVE, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 800, 168 Ill. App. 3d 451, 119 Ill. Dec. 138 1988.IL.546

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. WOODWARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Robert Sheridan, doing business as Robert W. Sheridan Management, appeals from a judgment of the circuit court of Lake County dismissing its complaint pursuant to a motion under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Sheridan contends that the trial court erred in finding that the "yield back" clause in the lease absolved defendants from liability and argues that defendants should not be permitted to take advantage of a contract provision when defendants breached a separate provision.

Plaintiff leased a building at 2110 Grand Avenue in Waukegan, Illinois, to defendants, Comp-U-Motive, Inc., and Neal Stenlund, on January 9, 1986. Paragraph No. 4 of the lease stated:

"4. . . . Lessee will not keep or use or permit to be kept or used in or on the premises or any place contiguous thereto any flammable fluids or explosives, without the written permission of Lessor first had and obtained." (Emphasis added.)

Paragraph No. 6 provided:

"6. Lessee . . . shall yield the [premises] back to lessor upon the termination of this lease, whether such termination shall occur by expiration of the term, or in any other manner whatsoever, in the same condition of cleanliness, repair and sightliness as at the date of the execution hereof, loss by fire and reasonable wear and tear excluded." (Emphasis added.)

On July 4, 1986, a fire occurred in the building the defendants leased. The defendants notified plaintiff on August 2 that they would vacate the premises 72 hours after their insurance company advised them that they could remove their damaged property from the building. Defendants also informed plaintiff that they would not compensate the plaintiff for damages or loss of rentals caused by the fire.

Plaintiff filed a complaint in the circuit court of Lake County alleging that defendants breached the lease by keeping an open container of gasoline on the premises. Plaintiff also alleged that the gasoline was the cause of the fire and that he suffered $20,953 in damages. Defendants admitted in their answer that gasoline was on the premises the day the fire occurred but denied that the gasoline caused the fire.

Defendants then filed a motion to dismiss under section 2-619 (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) alleging that plaintiff's claim was barred by affirmative matter, specifically, the exception to the "yield back" provision. The plaintiff moved to strike the motion on the grounds that it was not timely and that defendants did not withdraw their answer. This motion was denied, and defendants were permitted to withdraw their answer and pursue the motion to dismiss. After both parties filed briefs, the trial court dismissed the complaint, finding that the "yield back" clause absolved the defendants from any liability. This appeal ensued.

Plaintiff contends that: (1) defendants' motion to dismiss admits all well-pleaded facts in plaintiff's complaint; (2) plaintiff pleaded the fact that defendants kept flammable fluid on the premises without the written permission of plaintiff; (3) therefore, defendants breached the lease by violating paragraph No. 4 in that they kept flammable fluids on the premises; (4) the "yield-back" or "yield-up" provisions of paragraph No. 6 are ineffective because of defendants' breach of the lease; and (5) the trial court erred ...


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