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11/22/96 UNIT ONE CORPORATION AND BOEHM v. BRADLEY

November 22, 1996

UNIT ONE CORPORATION AND BOEHM, PEARLSTEIN & BRIGHT, LTD., PLAINTIFFS-APPELLANTS,
v.
BRADLEY MICKELSON AND MICKELSON ENTERPRISES, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 90 L 17776. Honorable Irwin J. Solganick, Judge Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published January 15, 1997. As Modified May 29, 1997.

Burke, J., with DiVITO, P.j., and Cerda, J.,* concurring.

MODIFIED ORDER

Plaintiff Unit One Corporation (Unit One) and Boehm, Pearlstein & Bright, Ltd., plaintiff's attorneys, appeal from two circuit court orders granting defendant Bradley Mickelson and Mickelson Enterprises, Inc.'s (Mickelson) motion for summary judgment pursuant to section 2--1005(b) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2--1005(b) (West 1992)) and motion for sanctions and attorney fees pursuant to Illinois Supreme Court Rule 137 (155 Ill. 2d R. 137). On appeal, Unit One and its attorneys argue that genuine issues of material fact existed, and issues of law were incorrectly ruled on regarding Mickelson's alleged breach of his lease contract with Unit One because Mickelson declined temporary air-conditioning services in order to perpetuate an interruption in services, an issue of fact existed as to whether air-conditioning services were only required during business hours, Mickelson's termination of the lease and refusal of temporary air-conditioning services was done in bad faith, the court erred in striking its cross-motion for summary judgment, sanctions were not warranted or supported by the record and, alternatively, the amount of attorney fees awarded was unreasonable. For the reasons set forth below, we affirm.

On July 14, 1988, Unit One and Mickelson entered into a store lease for rental of space for a hair salon in a building located at 3200 North Lake Shore Drive in Chicago, Illinois. The terms of the lease provided that it would terminate on July 31, 1993, and indicated a graduated rental increase each year. The lease and the attached rider also included the following provisions regarding Unit One's responsibilities for furnishing air-conditioning and heating:

[Lease provisions]

"7. Lessee after reasonable prior notice, will allow Lessor or any person authorized by Lessor free access to the Premises for the purpose of examining or exhibiting the same, or to make any repairs or alterations thereof which Lessor may see fit to make ***.

***

10. Where building is equipped for the purpose, Lessor at Lessor's expense, shall furnish to Lessee a reasonable amount of heat and air-conditioning necessary for comfortable use of the Premises, during customary Lessee's business hours, but not earlier than 8 a.m. nor later than 10 p.m. unless specifically stated herein. Lessor does not warrant that heating service will be free from interruptions caused by strike, accident or other cause beyond the reasonable control of Lessor, or by renewal or repair of the heating or air-conditioning apparatus in the building. Any such interruption shall not be deemed an eviction or disturbance of Lessee's use and possession of Premises, nor render Lessor liable to Lessee in damages. All claims against Lessor for injury or damage arising from failure to furnish heat or air-conditioning are hereby expressly waived by Lessee.

***

[Rider provisions]

23. Rider Supersedes. To the extent that the terms and conditions of this Rider may be inconsistent or in conflict with any of the terms and conditions of the foregoing printed and typed Lease, this Rider shall control and supersede the Lease. Unless the context requires otherwise, the 'Lease' shall refer to the foregoing printed and typed Lease and this Rider.

***

45. Interruption of Services.

(a) Notwithstanding anything contained in paragraphs 10 and 11 of the Lease to the contrary, if:

(i) the heating or air-conditioning services are interrupted or discontinued; or

(ii) the Premises, or any portion thereof, are rendered unusable for the operation of Lessee's business by reason ...


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