First Nat. Bank of Evanston v. Sousanes

• Decision Date: 29 May 1981
• Docket Number: P,No. 1903,No. 80-1435,1903,80-1435
• Citation: 52 Ill.Dec. 507,96 Ill.App.3d 1047,422 N.E.2d 188
• Parties: , 52 Ill.Dec. 507 FIRST NATIONAL BANK OF EVANSTON, as Trustee under Trustlaintiff- Appellee, v. Anna Mae SOUSANES and Michael F. Harvey, Executor of the Estate of Nicholas Gregan, Deceased, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 188

422 N.E.2d 188

96 Ill.App.3d 1047, 52 Ill.Dec. 507

FIRST NATIONAL BANK OF EVANSTON, as Trustee under Trust No 1903, Plaintiff- Appellee, v. Anna Mae SOUSANES and Michael F. Harvey, Executor of the Estate of Nicholas Gregan, Deceased, Defendants-Appellants.

No. 80-1435.

Appellate Court of Illinois, First District, Fifth Division.

May 29, 1981.

[52 Ill.Dec. 508] Michael F. Harvey, Wheaton, for defendants-appellants.

Michael J. Smith, Patricia Quinn Ford and Tenney & Bentley, Chicago, for plaintiff-appellee.

MEJDA, Justice:

This action was brought under the forcible entry and detainer statute (Ill.Rev.Stat. 1977, ch. 57, par. 1 et seq.) to recover possession of certain commercially leased premises and to recover damages caused by defendants' failure to make rent payments. At the close of the evidence, the court directed a verdict in favor of defendant Harvey as executor of the estate of Nicholas Grevan. The jury returned a verdict against Anna Mae Sousanes (defendant Sousanes) and for plaintiff in the amount of $9500. Thereafter, the court granted plaintiff's post-trial motion for a new trial as to defendant Harvey as executor of the estate of Nicholas Grevan.

Both defendants appeal. The issues presented are whether the court erred: (1) in allowing certain instructions to be read to the jury; (2) in refusing to allow the jury to receive the opinion of an expert witness and (3) in granting plaintiff a new trial as to defendant Harvey as executor of the estate of Nicholas Grevan.

On January 24, 1973, National Boulevard Bank of Chicago (National Boulevard), as trustee under a trust agreement, entered into a commercial leasing agreement with defendants Anna Mae Sousanes and Nicholas Grevan, a partnership doing business as Elegance Boutique. The agreement provided that defendants would rent a store in the Indian Trails shopping center from June 1, 1973 to May 31, 1983. Rent was to be paid monthly and on a graduated scale. In September, 1973, the same parties executed an amendment to the lease reflecting defendants' relocation to a larger store space at an increased rental.

On February 8, 1977, National Boulevard filed a forcible detainer action against Sousanes and Grevan seeking rent payments due from October 15, 1976 to February 1, 1977. Later, the complaint was amended and sought rent payments from October 15, 1976 to April 1, 1977, and attorney's fees and costs.

In June, 1977, the court granted plaintiff's motion to be substituted as a party plaintiff in lieu of National Boulevard. Thereafter, the court granted defendants' motion to dismiss plaintiff's cause of action on the basis that the transfer of title from National Boulevard to plaintiff had occurred prior to the filing of the original complaint and that, therefore, the substitution of party plaintiffs was improper. The trial court's order dismissing the action was reversed on appeal and remanded for trial. (First National Bank & Trust Co. of Evanston v. Sousanes (1978), 66 Ill.App.3d 394, 23 Ill.Dec. 394, 384 N.E.2d 30.) On August 10, 1979, defendants' attorney, Michael Harvey, as executor of the estate of Nicholas Grevan, deceased, was substituted as party-defendant in place of Nicholas Grevan, deceased. The action proceeded to trial.

William Greer, an employee of Quinlan & Tyson, Inc., testified that he was a property manager and leasing agent directly responsible for overseeing shopping center operations, the leasing of space, and the recording of rent payments. As managing agent for plaintiff, he dealt with defendants. He testified that defendants failed to pay rent from October 15, 1976 to May 1, 1977, which amounted to $6745 and that defendants vacated the premises on February 1, 1977, and that defendants also owed an additional $1900 for expenses incurred in reletting the premises vacated by defendants. He never told defendants that the landlord could not fulfill its obligations or responsibilities under the lease. He also stated that the first phase of the shopping center consisting of ten stores was completed when defendants entered in the leasing agreement and that the second phase was completed in 1977 after defendants vacated the premises. Sousanes asked Greer on several occasions when phase two would be completed. He responded that phase two would be completed and that plaintiff was working on it. He denied ever stating that it would be completed soon. He further testified that he did not discuss the terms and conditions of the lease with Sousanes.

Austin Wyman testified that his law firm represented plaintiff and that the legal fees incurred by plaintiff in this matter amounted to $1718.75 in 1977, $4712.50 in 1978 and $3582.50 through October of 1979. He stated that amounts for 1977 and 1978 were billed and paid but that the amounts for 1979 have not been billed to date. Mr. Wyman also stated that in 1978, the firm spent $100 to $200 correcting a mistake made by one of its former attorneys but this amount was neither billed to its client nor included in the 1978 figure.

Chris Sousanes, husband of defendant Sousanes, testified. He, his wife (defendant Sousanes) and her father (Nicholas Grevan), together with Bill Shosky of Quinlan & Tyson, Inc. were present during the signing of the lease. Although Chris Sousanes glanced at the lease, he was not a party to it nor did he read it. He testified that Shosky told them 20 or more stores would be in the shopping center and that they should do anywhere from $150,000 a year, progressing with the center.

Marge Fry, a saleswoman at defendants' store from 1973 to 1976, testified that she had spoken with Mr. Greer about the completion of the shopping center when he came to collect the rents. Each time he promised to add to the shopping center immediately.

Defendant Sousanes admitted that she signed the lease on January 24, 1973, in the presence of her husband, father, and Mr. Shosky. She also admitted signing the subsequent amendment to the lease. She further testified that Shosky showed her blueprints and an architectural drawing of the center which was supposed to include 30 or 33 stores. At the time she signed the lease, the construction of the center had been started but no part had been completed. Shosky also told her that her store should do anywhere from $150,000 worth of business. She stated a billboard put up on the property indicated that there would be 20 to 25 stores in the plaza. At the signing of the lease Mr. Shosky told her that phase two would be started in June. But in July phase two had not been started. She further testified that Elegance Boutique was a partnership between herself and her father, Nicholas Grevan, now deceased. She admitted that she did not pay rent from October 15, 1976 to May 1, 1977 and that they abandoned the premises in February of 1977.

Richard Walsh, a real estate broker, called as an expert witness by defendant, testified that the uniqueness of a shopping center is that it is an association or joining together of merchants in one large, well-maintained site so that customers could shop at one central location rather than numerous separate locations. He stated the larger the mix the better the shopping center for both tenants and customers. He stated that a business leasing space in a shopping center rents a part of a whole shopping center. Walsh was not permitted to express his opinion to a hypothetical question regarding constructive eviction posed by defendants' counsel.

At the close of all the evidence, the court allowed the motion of the estate of Nicholas Grevan for a directed verdict. Thereafter, the jury returned a verdict for plaintiff against defendant Sousanes in the amount of $9500. Plaintiff's motion for a new trial as to the estate of Nicholas Grevan was granted.

OPINION

I.

Defendant Sousanes first contends that the court erred in instructing the jury as to the law of constructive eviction.

Constructive eviction is defined as something of a serious and substantial character done by the landlord with the intention of depriving the tenant of the beneficial enjoyment of the premises in accordance with the terms of the lease. Unless the premises are vacated, there is no constructive eviction. (City of Chicago v. American National Bank (1980), 86 Ill.App.3d 960, 42 Ill.Dec. 1, 408 N.E.2d 379; American National Bank & Trust Company of Chicago v. Sound City, U.S.A., Inc. (1979), 67 Ill.App.3d 599, 24 Ill.Dec. 377, 385 N.E.2d 144; John Munic Meat Co., Inc. v. H. Gartenberg & Co. (1977), 51 Ill.App.3d 413, 9 Ill.Dec. 360, 366 N.E.2d 617; see also Automobile Supply Co. v. Scene-in-Action Corp. (1930), 340 Ill. 196, 172 N.E. 35; Gibbons v. Hoefeld (1921), 299 Ill. 455, 132 N.E. 425.

Instruction No. 10 which was given provided, in pertinent part:

"In this case, defendants have asserted the affirmative defense that plaintiff had a duty under the lease to build additional stores at the Indian Trail Shopping Center; that plaintiff breached this duty; that plaintiff's breach of this duty is a serious and substantive conduct on the part of plaintiff and was done by plaintiff with the intention of depriving defendant of her leasehold interest; and finally, that defendant gave up possession of the leased premises within a reasonable time after plaintiff breached its duty." (Emphasis added.)

Relying on Gibbons v. Hoefeld, defendant Sousanes maintains that the court erroneously included the requirement that the landlord must intend to deprive the tenant of his enjoyment of the demised premises. Unlike defendant suggests, Gibbons did not eliminate "intention" as a necessary element of constructive eviction. That court merely held that whether a landlord intended a specific result was not a determinative factor if it could be shown that the landlord wilfully refused to perform or so negligently performed his promise that what he did was of no benefit in protecting the tenant in the enjoyment of the demised premises. 299 Ill....