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08/19/88 Ralph Korte Et Al., D/B/A v. National Super Markets

August 19, 1988

RALPH KORTE ET AL., D/B/A CAHOKIA PARTNERSHIP, PLAINTIFF-APPELLEE

v.

NATIONAL SUPER MARKETS, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

528 N.E.2d 10, 173 Ill. App. 3d 1066, 123 Ill. Dec. 626 1988.IL.1283

Appeal from the Circuit Court of St. Clair County; the Hon. Earl McCaskill, Judge, presiding.

Rehearing Denied September 23, 1988.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Plaintiff, Cahokia Partnership, leased certain premises in the Cahokia Village Shopping Center to defendant National Super Markets, Inc. (National). On September 21, 1986, Cahokia Partnership served a notice of forfeiture on National, alleging numerous violations of the lease and demanding immediate possession of the leased premises. National responded by letter to plaintiff denying certain of the violations and attempting to cure others.

In October of 1986, Cahokia Partnership filed a forcible entry and detainer suit against National and on January 12, 1987, served a notice to quit on National, demanding possession of the premises in 15 days. A bench trial was held in the circuit court of St. Clair County in January 1987. The court found that National had been guilty of material breaches of the lease agreement from January 7, 1986, through the date of trial and that the notice to quit was in conformity with the requirements of the lease and properly terminated it. Finally, the court concluded that National had failed to pay the stipulated rent since September 1986. The court ordered that Cahokia Partnership receive possession of the premises and recover rent at the rate of $2,200 per month. National appeals.

In 1976, National entered into a lease agreement with Joseph Rosin, Cahokia's predecessor in interest, for lease of a building and parking lot in the Cahokia Village Shopping Center. National agreed to pay a base rent of $112,000 per year plus 1.25% of gross sales if annual gross sales exceeded $2 million. The lease permitted National to use the premises for any service or retail merchandising purpose and to sublet the premises with or without the lessor's consent, depending upon the nature of the subtenant's business. National agreed to keep the premises "in good repair and in a clean and wholesome condition" and to perform repairs and maintenance to all interior non-structural parts of the building as well as to the access roadway.

In 1977, National and Rosin negotiated a modification of the lease whereby National would close its supermarket operated on the subject property and move to a new location which was also owned by Rosin. National's rent on the subject property was reduced to $26,000 per year and the lease term extended to 1997. No percentage-of-sales rental was paid thereafter and Rosin accepted the base monthly rental payment of $2,200 without protest.

In 1982, National sublet the premises to Vernon Dulaney for use as a skating rink. This required substantial modification to the building, to which Mr. Rosin agreed. In 1985, Mr. Dulaney assigned his sublease to Bruce Kelly, who continued to operate the skating rink. At no time were the gross receipts of either subtenant sufficient to trigger the percentage rental provision.

Cahokia Partnership purchased the shopping center, excluding the subject property, in 1985. During 1985, Cahokia Partnership wrote two letters to Rosin complaining about the condition of the property. On January 2, 1986, Cahokia Partnership purchased the property subject to National's leasehold interest. On January 29, 1986, another letter was sent to National complaining about weeds and debris around the building, potholes in the parking lot, and a leaning light standard. National responded by obtaining assurance from its subtenant that the repairs would be made. Cahokia Partnership again wrote National on May 16, 1986, complaining of the condition of the parking lot, weeds and debris around the building, the condition of the downspouts and gutters, and several leaning light standards. National responded by employing a contractor to clear the weeds and debris and to repair the parking lot. National also inspected the light standards and determined that, although leaning slightly, they were securely anchored. National also declined to take any action to replace the missing downspouts, but did repair an outside fixture conduit and light canopy lens.

In February of 1986, the subtenant closed its business. The subtenant subsequently approached National regarding the possibility of reopening and selling toys on the premises. National sought Cahokia Partnership's permission, but the request was refused.

On September 21, 1986, Cahokia Partnership served a notice of forfeiture on National declaring the lease terminated and demanding immediate possession of the premises. The notice alleged that National breached the lease by failing to tender a percentage rental, failing to submit a written statement of gross sales, leasing the premises to the skating rink, failing to keep the premises in good repair, and failing to provide certificates ...


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