premises in "clean and wholesome condition" and in compliance with all health and police regulations. Plitt also was obligated to keep the sidewalk and other areas surrounding the building "safe, secure, and conformable to the lawful or valid requirements of the City of Hammond and all other public authorities." Clearly, the dilapidated condition of the Paramount at the time Plitt entered into the agreement with Premier was violative of these provisions in the lease. Secondly, although Plitt entered into the agreement with Premier on November 6, 1987, Plitt failed to notify the Trust of the purported assignment until April 18, 1988. This failure to comply with the 30-day notification requirement in Article Fifteenth of the lease also made the attempted assignment invalid.
Plitt admits that it failed to comply with the maintenance covenants in the lease and that it failed to notify the Trust of the assignment within thirty days as required under the lease. Nevertheless, Plitt maintains that it is no longer liable under the lease because the Trust waived its right to contest the assignment. Plitt argues that since the Trust had been fully aware of the dilapidated condition of the Paramount for several years, the Trust waived its right to object to the assignment based on Plitt's breach of the maintenance covenants in the lease. Plitt further argues that the Trust, by changing its ledger to list Premier as tenant of the Paramount, by referring to Premier as the "new lessee" in internal memoranda, and by requesting rent payment from Premier instead of objecting to the assignment, waived its right to contest to the assignment on the basis of Plitt's failure to comply with the thirty-day notice provision.
Plitt has offered virtually no case law to support its waiver argument. Plitt cites only two cases regarding waiver: Miller v. Ready, 59 Ind.App. 195, 108 N.E. 605 (1915), and Page Two, Inc. v. P.C. Management, Inc., 517 N.E.2d 103 (1987). These cases are wholly inapposite to the instant case. Miller simply recognized that restrictive covenants in a lease may be voluntarily waived. The court found that assuming the lease at issue contained a restrictive covenant, the lessor voluntarily waived his right to enforce the covenant; the lessor did so because waiver of the covenant benefited him. 108 N.E. at 608-09. Miller says nothing about the circumstances under which there can be an involuntary waiver, which Plitt argues took place in this case.
In Page Two, the landlord, which had leased one floor of a building to the tenant, sought to terminate the lease when the tenant failed to comply with a lease provision requiring the tenant to pay a certain percentage of the building's utilities. The court held that since the landlord accepted rent payments after the tenant had protested the amount of its utilities charge, the landlord waived its right to terminate the lease based on the tenant's failure to pay for utilities. 517 N.E.2d at 105-06. In the instant case, the Trust never accepted rent payments from Premier after Plitt's breach of the assignment clause, which represents a critical difference from the circumstances in Page Two. Moreover, even if the Trust had accepted rent from Premier, this action would not necessarily have amounted to waiver of its right to contest the assignment. See National Distillers & Chemical Corp. v. First National Bank of Highland Park, 804 F.2d 978, 982-83 (7th Cir. 1986) (landlord's acceptance of two rent checks from purported assignee does not constitute waiver of right to object to assignment).
The biggest obstacle to Plitt's waiver argument lies in the express language of the lease. Article Twenty-First of the lease states: "No delay or omission of [the Trust] to exercise any right or power arising from any default shall impair any such right or power, or shall be construed to be a waiver of any such default, or an acquiescence therein." This provision clearly forecloses Plitt's argument that the Trust waived its right to contest the assignment by failing to object to the deteriorated condition of the theatre prior to the assignment. Furthermore, the court finds that it would be unreasonable to hold that the Trust waived its right to contest the assignment merely because some of its internal documents listed Premier as lessee and because it mailed one rent notice to Premier. Such actions are simply not sufficient to find that the Trust intentionally relinquished its right to hold Plitt bound to the lease. See Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208 (7th Cir. 1979) ("waiver occurs when an obligor manifests an intent not to require an obligee to strictly comply with a contractual duty"); see also National Distillers, 804 F.2d at 982-83. Accordingly, plaintiffs are entitled to judgment as a matter of law.
For the foregoing reasons, plaintiffs' motion for summary judgment is granted. Plaintiff is granted the following relief:
(1) A declaration finding that Plitt's attempted assignment to Premier is null and void, and that after the purported assignment Plitt remains responsible for all of the obligations and duties set forth in the lease;
(2) A judgment in the amount of $ 28,000 (representing past due rent for the period from June 1988 through January 1990), plus 7% pre-judgment interest (pursuant to Article Fourteenth of the lease), plus reasonable attorneys' fees and costs associated with this action (pursuant to Article Eleventh of the lease).
IT IS SO ORDERED.
Dated: January 30, 1990