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12/22/88 Handy Andy Home v. American National Bank and

December 22, 1988

HANDY ANDY HOME IMPROVEMENT CENTERS, INC., PLAINTIFF-APPELLANT

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES. -- FRANK

SAJTAR ET AL., PLAINTIFFS-APPELLEES

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Nos. 2-88-0257, 2-88-0258 cons.

532 N.E.2d 537, 177 Ill. App. 3d 647, 126 Ill. Dec. 852 1988.IL.1864

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Handy Andy Home Improvement Centers, Inc. (Handy Andy), in cause No. 88 -- CH -- 47 filed a one-count complaint in the circuit court of McHenry County seeking a preliminary injunction against defendants, American National Bank and Trust Company of Chicago, as trustee , legal title owner of a shopping center where Handy Andy was a tenant, and First National Realty and Development Company, Inc. (First National), developer and leasing representative for the shopping center, to prevent them from interfering with its exclusive right to sell home improvement items in the shopping center pursuant to a written lease agreement between the parties executed on September 10, 1986. On March 17, 1988, the circuit court denied Handy Andy's request for a preliminary injunction.

In a separate action, cause No. 88 -- CH -- 28, plaintiffs, Frank Sajtar and Cabinet Wholesalers, Inc., filed a six-count complaint in the circuit court of McHenry County seeking, inter alia, a preliminary injunction against the same defendants as in cause No. 88 -- CH -- 47, ANB and First National, to prevent them from interfering with development, opening, and operation of a franchise in the same shopping center as Handy Andy pursuant to a written lease agreement between the parties executed on December 13, 1987. The circuit court, on March 8, 1988, granted the preliminary injunction against ANB and First National. Handy Andy, in cause No. 88 -- CH -- 47, and ANB and First National, in cause No. 88 -- CH -- 28, bring these interlocutory appeals pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307(a)(1)). This court, upon motion of ANB and First National, consolidated both cases for purposes of appeal.

The two issues raised in these appeals are whether the trial court abused its discretion in granting Sajtar and Cabinet Wholesalers' motion for preliminary injunction and whether the trial court abused its discretion in denying Handy Andy's request for a preliminary injunction.

The following undisputed facts appear in the record. On September 10, 1986, Handy Andy and ANB entered into a written lease agreement for the 30-year lease of space located at the Commons Shopping Center (Commons) in Crystal Lake, Illinois. The lease provides, in pertinent part:

"9. Tenant's Exclusive Right.

So long as Tenant (or its sublessees or assigns as permitted herein) is operating a home improvement center at the Shopping Center, Tenant shall have the exclusive right, and Landlord shall not allow any other party (except for Venture or its successors and assigns), during the Lease Term, to operate a home improvement center at the Shopping Center (except as provided below with regard to the Jewel space as identified on Exhibit B (the 'Jewel Space')) . . ., Landlord further covenants that no other tenant in or occupant of the Shopping Center shall be permitted to have 10 percent (10%) or more of its shelf or other display space devoted to any one of the following (the 'Designated Uses'): (i) lumber and building materials, (ii) home (including, without limitation, kitchen and bath) decorating or improvement materials, (iii) energy saving, plumbing and electrical supplies, (iv) hardware, (v) paint and decorating supplies, (vi) wall, floor and ceiling coverings, and (vii) seasonal products such as lawn and garden and Christmas 'trim-a-tree' products (as those terms are commonly used in the retail trade)." (Emphasis added.)

Handy Andy sells a variety of home improvement products, including kitchen cabinets. After entering into the lease with ANB, it expended approximately $600,000 to $700,000 in preparation for opening its store in the Commons. The Handy Andy store eventually opened on March 17, 1988.

On January 28, 1988, Handy Andy became aware that Cabinet Wholesalers was planning to open a franchise store in the Commons. Handy Andy, on January 29, 1988, through its general counsel, contacted First National, the developer of the Commons, both by telephone ...


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