Eichengreen v. Rollins, Inc.

• Decision Date: 21 September 2001
• Docket Number: No. 1-00-2579.,1-00-2579.
• Citation: 757 N.E.2d 952,325 Ill. App.3d 517,259 Ill.Dec. 89
• Court: United States Appellate Court of Illinois
• Parties: Myron EICHENGREEN, Plaintiff-Appellant, v. ROLLINS, INC., f/k/a Apollo Central Protection, Inc., Defendant-Appellee.

757 N.E.2d 952

325 Ill. App.3d 517

259 Ill.Dec. 89

Myron EICHENGREEN, Plaintiff-Appellant, v. ROLLINS, INC., f/k/a Apollo Central Protection, Inc., Defendant-Appellee.

No. 1-00-2579.

Appellate Court of Illinois, First District, Sixth Division.

September 21, 2001.

Andre & Diokno, Itasca (Nichole A. Andre, Jose Miguel Diokno, of counsel), for Appellant.

Clausen Miller, P.C., Chicago (James T. Ferrini, Brian J. Riordan, Ann C. Chalstrom, of counsel), for Appellee.

Presiding Justice GALLAGHER delivered the opinion of the court:

Plaintiff, Myron Eichengreen, brought an action alleging breach of contract and negligence against defendant, Rollins, Inc., f/k/a Apollo Central Protection, Inc., resulting from a fire at his residence. The trial court granted defendant's motion for summary judgment on both counts of the complaint. Plaintiff now appeals. We affirm.

In 1983, plaintiff purchased a residence at 100 Maple Hill Road in Glencoe, Illinois. At that time, the house included a security system that had been installed in 1980 by defendant Apollo. In 1985, plaintiff constructed a bath house at his property that could not be accessed through the residence, but did share one common wall with the house. The bath house contained a natural gas fueled water heater and a natural gas fueled barbeque grill affixed to an exterior wall. From the time of plaintiffs purchase of the residence until August 1988, defendant maintained the security system that was in place. In August 1988, the parties entered into a contract, which is now the subject of this lawsuit. Specifically, on August 16, 1988, defendant Apollo submitted a letter, for plaintiff's approval, containing an estimate of work to be done. The original letter listed the following items: one digital dialer transmitter; one smoke detector; five heat detectors-replace; one temperature switch—45°; one heat detector—electrical room; one fire horn; one fire signal; and one building temperature signal. The letter also listed a price of $675 as the amount for the items as installed and additionally provided that the terms were one-half down, balance upon completion. It is undisputed that this letter became the final written contract between the parties. Plaintiff did not sign the letter, but it is further undisputed that plaintiff made the several handwritten modifications and additions contained in the letter changing the original terms proposed by defendant. Plaintiff crossed out the "temperature switch" and "fire horn" items. Plaintiff changed the "installed" price from $675 to $575 and added the notation "battery incl." Plaintiff also added the term "$287.50 plus 100 for # 2414 battery 8/22/88." In addition, plaintiff inserted the following provision: "system to be in good working order and guaranteed for at least 12 months." The system was installed sometime shortly after the letter was exchanged.

On September 13, 1995, a fire occurred at plaintiffs home. The fire originated in the bath house in the area of the grill. The fire activated the burglar alarm at plaintiffs residence. When police officers responded to the alarm, they noticed the southeast wall of the home engulfed in flames. The police then summoned the fire department. By the time the fire department arrived, plaintiff and his wife had already exited the residence.

On December 5, 1997, plaintiff filed a two-count verified complaint against defendant. Count I alleged breach of contract. Count II alleged negligence. On March 25, 1999, defendant filed a motion for summary judgment. After full briefing and two hearings, the trial court granted defendant's motion for summary judgment in its entirety. Plaintiff appeals the trial court's grant of summary judgment.

In appeals from summary judgment, this court conducts a de novo review. Boub v. Township of Wayne, 183 Ill.2d 520, 524, 234 Ill.Dec. 195, 702 N.E.2d 535, 537 (1998). Summary judgment is properly granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204, 1209 (1992). We may affirm summary judgment based on any grounds supported by the record. City of Chicago v. Michigan Beach Housing Cooperative, 297 Ill.App.3d 317, 327, 231 Ill.Dec. 508, 696 N.E.2d 804, 812 (1998).

Count I: Breach of Contract

On appeal, plaintiff argues that the trial court erred in granting summary judgment on plaintiff's breach of contract claim because an issue of material fact existed regarding the "intent" of the parties. Plaintiff contends that the "intent" of the parties was for the installation of a new security system that would provide protection for plaintiffs entire premises. Plaintiff does not rely on the terms of the written agreement in support of his assertion of the parties' intent. Instead, plaintiff contends that "[h]e informed [defendant] that he wanted the security of having the entire home protected." Thus, plaintiff asks this court to consider extrinsic evidence of the parties' prior negotiations in determining the intent of the parties. He further relies on extrinsic evidence as support for the reasonableness of his subjective belief that the parties intended to enter into a contract for protection of the entire premises.

Defendant counters that the August 16, 1988 letter stands unchallenged as the only and entire agreement between the parties. As such, defendant asserts, the terms of that letter, alone, represent the intentions of the parties.

A proper analysis of this case begins with a review of the established guidelines of contract interpretation under Illinois law. It is well settled that a court, when construing a contract, should ascertain the intent of the parties and give effect to that intent. In re Marriage of Olsen, 124 Ill.2d 19, 25-26, 123 Ill.Dec. 980, 528 N.E.2d 684, 687 (1988). As the Illinois Supreme Court has further explained:

"Traditional contract interpretation principles in Illinois require that: `[a]n agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence.' [Citation.]" Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457, 462, 236 Ill. Dec. 8, 706 N.E.2d 882, 884 (1999).

The Air Safety court noted that this approach has been referred to as the "four corners" rule. Air Safety, 185 Ill.2d at 462, 236 Ill.Dec. 8, 706 N.E.2d at 884. The "four corners" rule has been described as related, although not identical to the parol evidence rule. Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993). The parol evidence rule has been explained as follows: "[The parol evidence] rule generally precludes evidence of understandings, not reflected in a writing, reached before or at the time of its execution which would vary or modify its terms." J & B Steel Contractors, Inc. v. C. Iber & Sons, Inc., 162 Ill.2d 265, 270, 205 Ill.Dec. 98, 642 N.E.2d 1215, 1217 (1994). "Under the parol evidence rule, extrinsic or parol evidence concerning a prior or contemporaneous agreement is not admissible to vary or contradict a fully integrated writing." (Emphasis added.) Geoquest Productions, Ltd. v. Embassy Home Entertainment, 229 Ill.App.3d 41, 44, 170 Ill.Dec. 838, 593 N.E.2d 727, 730 (1992). A party may not introduce parol or extrinsic evidence to show additional consistent terms of a contract unless the writing is incomplete or ambiguous. Geoquest Productions, 229 Ill.App.3d at 44-45, 170 Ill.Dec. 838, 593 N.E.2d at 730.

In Air Safety, the court considered the applicability of what has been referred to as the provisional admission approach. Under the provisional admission approach, in contrast to the four corners rule or the parol evidence rule, "although the language of a contract is facially unambiguous, a party may still proffer parol evidence to the trial judge for the purpose of showing that an ambiguity exists which can be found only by looking beyond the clear language of the contract." Air Safety, 185 Ill.2d at 463,236 Ill.Dec. 8,706 N.E.2d at 885. Based upon the facts of the case before it, the court expressly declined to formally adopt the provisional admission approach. Air Safety, 185 Ill.2d at 464,236 Ill.Dec. 8,706 N.E.2d at 885 ("This court, however, has never formally adopted the provisional admission approach, and we decline to do so today because the contract in the case before us contains an explicit integration clause."). In a footnote, however, the court stated as follows: "We expressly decline to rule on whether the provisional admission approach may be applied to interpret a contract which does not contain an integration clause until such a case is squarely before the court." Air Safety, 185 Ill.2d at 464 n. 1,236 Ill.Dec. 8,706 N.E.2d at 886 n. 1. Thus, the Air Safety court confirmed the continued viability of the four corners rule in cases where a contract is facially unambiguous and contains an express integration clause. Air Safety, 185 Ill.2d 457,236 Ill.Dec. 8,706 N.E.2d 882 (1999).

The contract at issue here does not contain an integration clause. Nevertheless, citing Air Safety, defendant contends that this court should apply the four corners rule and decide that the terms of the August 16, 1988 letter alone represent the intentions of the party. Defendant further asserts that the letter constitutes the entire contract between the parties. Plaintiff has not directly challenged defendant's contention that the contract is a final and complete expression of the parties' intent. Instead, in arguing that a genuine issue of material fact exists regarding the parties' intent, plaintiff does not address the contract principles we have outlined but, rather, presupposes that extrinsic evidence may be considered. Plaintiff...