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09/06/95 MBD ENTERPRISES v. AMERICAN NATIONAL BANK

September 6, 1995

MBD ENTERPRISES, INC., D/B/A LOVE THAT YOGURT, AND DONALD MOUST, PLAINTIFFS-APPELLANTS,
v.
AMERICAN NATIONAL BANK OF CHICAGO, AS THE TRUSTEE UNDER TRUST AGREEMENT 66662, P & D, LTD. NO. 101, AN ILLINOIS LIMITED PARTNERSHIP, AND DEMETRIOS DELLAPORTAS, GENERAL PARTNER OF P & D, LTD. NO. 101, AND FIRST NATIONAL REALTY AND DEVELOPMENT COMPANY, INC., AND FROSTY PUTTER, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR DUNNE, JUDGE PRESIDING.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiffs, MBD Enterprises, Inc. d/b/a Love That Yogurt and Donald Moust, filed an action for breach of contract and seeking injunctions and specific performance against defendants, American National Bank of Chicago, as the Trustee under Trust Agreement 66662, P & D, Ltd. No.101, an Illinois Limited Partnership and Demetrios Dellaportas, General Partner of P & D, Ltd. No.101, and First National Realty and Development Company, Inc., and Frosty Putter, Inc., an Illinois corporation. The trial court granted summary judgment in favor of the defendants, and plaintiffs have appealed. We affirm with a proviso.

Plaintiff Donald Moust is president of plaintiff MBD Enterprises, Inc., which does business as Love That Yogurt. Defendant American National Bank of Chicago holds legal title in a land trust to property located at the corner of 159th Street and Harlem Avenue in TinleyPark, Illinois. The beneficiaries of the land trust are defendants P & D, Ltd. No. 101, an Illinois Limited Partnership and Demetrios Dellaportas, General Partner of P & D, Ltd. No.101. A shopping center known as the Park Center Shopping Center was built on the premises. Defendant First National Realty and Development Company, Inc. manages and operates the Park Center Shopping Center.

Hereafter, plaintiffs shall be referred to jointly as the plaintiff. Defendants American National Bank, of Chicago, as the Trustee under Trust Agreement 66662, P & D, Ltd. No.101, an Illinois Limited Partnership and Demetrios Dellaportas, General Partner of P & D, Ltd. No.101, and First National Realty Company, Inc., shall be referred to in the aggregate as American National. Defendant Frosty Putter, Inc., an Illinois corporation shall be referred to as Frosty Putter. The Park Center Shopping Center shall be referred to as the Shopping Center.

On September 29, 1987, plaintiff entered into a 10-year lease with American National for retail space in a store located in a building known as Building M in the Shopping Center. Plaintiff leased the premises for the purpose of selling yogurt and ice cream. Article VI Section 6.05 of the lease (6.05) provides:

So long as Tenant is continuously operating its business for the sale of yogurt and ice cream products, and is not otherwise in default of this lease, Owner shall not lease other space in the shopping center to a use whose principal business is the sale of yogurt or ice cream products such as Bressler's, Baskin & Robbins, T.C.B.Y. or similar operations.

On November 24, 1987, American National entered into a lease with Frosty Putter for retail space in a building known as Building P in the Shopping Center. Pursuant to its lease, Frosty Putter operates a business which features indoor miniature golf and a full service restaurant that includes the sale of ice cream, yogurt, chicken, shrimp, lasagna, hamburgers, hot dogs, Italian sausage, bratwurst, marinated chicken, seafood submarine sandwiches, B-B-Q pork, salads, soups and chili.

The Frosty Putter lease contains a handwritten part known as Rider 3, which provides:

No business whose primary business is the sale of ice cream shall be allowed in any location other than Building P and no business whose business is the sale of frozen yogurt shall be allowed in any location other than Building M as set forth on the site plan.

There is no claim that all the other leases for the Shopping Center contain a similar provision as the handwritten provision that is contained in the Frosty Putter lease.

Plaintiff's suit is founded upon two theories. The first theory is that 6.05 of its lease granted it an exclusive right to sell yogurt and ice cream at the Shopping Center and that American National breached the lease by virtue of allowing Frosty Putter to operate at the Shopping Center. According to the wording of 6.05, however, there would be no violation unless Frosty Putter's principal business is the sale of yogurt or ice cream in a manner similar to Bressler's, Baskin & Robbins, or T.C.B.Y. The record sufficiently establishes that Bressler's, Baskin & Robbins and T.C.B.Y. are businesses that sell yogurt or ice cream almost exclusively.

In reading 6.05, the term principal business must be given its ordinary and commonly accepted meaning and it cannot be construed in a manner that is contrary to the plain meaning of the words used. See Tate v. Wabash Datatech, Inc. (1986), 147 Ill. App. 3d 230, 236, 497 N.E.2d 1342, 1345, 101 Ill. Dec. 29. Principal means: "Chief; ...


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