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09/08/89 Douglas Theater v. Gold Standard Enterprises

September 8, 1989

DOUGLAS THEATER CORPORATION, D/B/A IVANHOE THEATER, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

GOLD STANDARD ENTERPRISES, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

544 N.E.2d 1053, 188 Ill. App. 3d 573, 136 Ill. Dec. 278 1989.IL.1404

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

This case involves a dispute between two businesses that shared a parking lot. The plaintiff, Douglas Theater Corporation (Douglas), which operates the Ivanhoe Theater in Chicago, filed a complaint for injunction against the defendant, Gold Standard Enterprises, Inc. (Gold Standard), which operates a liquor store. Gold Standard filed a counterclaim for injunction against Douglas. After a bench trial, the Judge denied any relief sought by Douglas and granted some of the relief sought by Gold Standard. Both appeal.

At the outset we address two motions of the defendant, contained in its brief, one to strike the statement of facts of the plaintiff and the other to strike a sketch which is included as an exhibit in the plaintiff's brief. The plaintiff did not file a reply brief or respond to the motions which, we observe, did not comply with Supreme Court Rule 361 (107 Ill. 2d R. 361) in that they were made in the body of the brief. While we do not mean to express satisfaction with the statement of facts submitted by the plaintiff, we deny the motion to strike, since some parts of the statement of facts are accurate and the inaccuracies and incompleteness of the other parts have been called to our attention by the defendant. Consequently, our ability to review the case has not been hindered. See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531.

The sketch to which the defendant objects is copied, with some additions, from plaintiff's exhibit 3, a plat of survey (which is virtually identical to defendant's exhibit 8). The plaintiff has added lines purporting to illustrate the location of parking spaces and has also added typewritten descriptions of various aspects of the exhibit. For example, some of the typewritten additions purport to show points of exit and entrance to the parking lot, the "Ivanhoe encroachment on alley," the "vacated alley" and the number of parking spaces as established by the testimony. The defendant does not contend that the exhibit is inaccurate. We are frank to say that we find the exhibit helpful in understanding the case. Therefore, since the sketch is based on exhibits in evidence, there is no claim that it is inaccurate and it does assist the court, we deny the motion to strike.

The parties were tenants of a common landlord which also owned the parking lot. The Gold Standard lease was dated May 22, 1978, and ran to September 30, 2003; the Douglas lease was dated March 15, 1982, and ran to June 30, 1987.

In 1982, Harold Binstein, the sole owner of Gold Standard, purchased the property including the parking lot, subject to the leases. The Douglas lease contained a purchase option which included an extension of the lease rights to the parking lot. The option was exercised, and Douglas received title to the underlying theater property. On June 30, 1987, Douglas and Binstein entered a separate parking lot lease which ran to September 30, 2003, containing the same provisions as the original lease. Both the Douglas lease and Gold Standard lease contained detailed parking provisions. Each lessee promised to operate the lot in compliance with all Federal, State and local laws; and both leases give Gold Standard "primary responsibility for the supervision, maintenance and operation" of the parking lot during the hours that Gold Standard is open. Both leases also provide that each lessee's use shall be in common with the other on a "first-come-first-serve basis." Both lessees pay the same amount of rent.

The lot has approximately 115 feet of frontage on Clark Street with two driveways. The main entrance to the Ivanhoe Theater is on the north side of Wellington and the theater is immediately to the west of Gold Standard. The lot in question is to the north of the Ivanhoe and Gold Standard. Between the Ivanhoe, Gold Standard and the parking lot is a public alley 14 feet wide which runs from Clark Street on the east to Halsted Street on the west. The alley was vacated a few months before the trial began. The main entrance of Gold Standard is on the southeast corner of the juncture of the alley and Clark Street. Entry to the Ivanhoe may also be made directly from the parking lot. The focal point of this case is an area of 10 feet from the wall of Gold Standard to 66 feet west of the sidewalk on Clark Street and includes a 30-foot by 7-foot section just outside the entrance to Gold Standard. The rest of the area includes, in part, the Gold Standard loading dock.

At the time Douglas began its operation in 1982, Douglas was able to direct most of its patrons to a parking lot on the east side of Clark Street. In April 1985 that lot became unavailable when a shopping mall was built on it. From that time, Douglas began to put in the parking lot as many of its patrons that would fit the approximately 60 spaces.

Gold Standard is open year round from 10 a.m. to 10 p.m. on weekdays and Saturday and noon to 6 p.m. on Sundays. The Ivanhoe was in use about 40 weeks each year. A typical week ran from Tuesday through Sunday for a total of about eight shows. The weekday evening performance ran from 8 p.m. until after the 10 p.m. closing of Gold Standard; the Saturday shows began about 6 p.m. and 9 p.m., while the Sunday shows began at 3 p.m. and 7 p.m. Beginning in 1985, Douglas instructed its employees to fill first the parking spaces farthest from Gold Standard. When the lot was filled, the employees were instructed to park next to the north wall of the Gold Standard store. The area would hold seven to nine cars parked at right angles to the store. There was testimony that these cars would block the loading zone and the fire exits. There was also evidence that the parking lot was inadequate for both businesses and that Gold Standard customers were often unable to park in the lot. Some of Gold Standard's suppliers had to unload on Clark Street.

Gold Standard employed a security guard to direct parking only three or four times each year, when business at the liquor store was especially heavy. During performances Douglas charged $3 to park in the lot and employed a security guard whose duty it was to collect the fee and direct the cars into the lot. Before April 1985, the guard worked at the lot across Clark Street and would use the subject lot only for overflow. The guard was instructed to ask each ...


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