Pacemaker Food Stores, Inc. v. Seventh Mont Corp., s. 82-921
| Decision Date | 22 August 1983 |
| Docket Number | 82-922 and 82-960,Nos. 82-921,s. 82-921 |
| Citation | 453 N.E.2d 806,117 Ill.App.3d 636,72 Ill.Dec. 931 |
| Court | United States Appellate Court of Illinois |
| Parties | , 72 Ill.Dec. 931 PACEMAKER FOOD STORES, INC., an Illinois Corporation, Plaintiff-Appellee, v. SEVENTH MONT CORPORATION, a Delaware Corporation; Montgomery Ward Development Corporation, a Delaware Corporation; Montgomery Ward & Co., an Illinois Corp.; McDonald's Corporation, a Delaware Corporation; Mulford Village Development Co., an Illinois Corporation, Defendants-Appellants, and Brookwood Energy & Properties, Inc., a Delaware Corporation; Self Service Oil Company, an Illinois Corporation; Peter Schwabe, Inc., a Wisconsin Corporation; Carter Corporation, an Illinois Corporation; and City of Rockford, Illinois, an Illinois Municipal Corporation, Defendants. |
Reno, Zahm, Folgate, Lindberg & Powell, Robert A. Fredrickson and Jan H. Ohlander, Rockford, for Mulford Village Dev.
Paddock, McGreevy & Johnson, Edward M. Maher, Rockford, for defendants-appellants.
John Rosenbloom, Rockford, for Self Service Oil Co.
Street & Larson, Thomas Street, Harold L. Turner, Rockford, for Pacemaker Food Stores, Inc.
Defendants Seventh Mont Corporation, Montgomery Ward Development Corporation, Montgomery Ward & Co., McDonald's Corporation, and Mulford Village Development Co. appeal an order granting injunctive relief to the plaintiff, Pacemaker Food Stores, Inc. The injunction, entered following a bench trial, prohibited the use of an easement across a shopping center parking lot connecting a four-lane street to a service road. The following issues are presented for review:
1. Whether, pursuant to its unrecorded lease and the plot plan attached thereto, the plaintiff secured an easement for parking that included the northeast corner of the shopping center's boundaries.
2. Whether the trial court's finding that Mulford Village and McDonald's had notice of the plaintiff's purported easement was contrary to the manifest weight of the evidence.
3. Whether there was a proper basis for the equitable relief granted by the trial court.
4. Whether the trial court erred in refusing to require testimony from the president of the plaintiff corporation, who had negotiated the lease upon which the equitable relief was based.
5. Whether the trial court erred in denying a motion to dismiss Montgomery Ward & Co. as a party defendant.
At issue are two allegedly conflicting easements located in the corner of a shopping center parking lot. The 20-acre shopping center is located in Rockford, Illinois, on the northwest corner of the intersection of East State Street, which runs east-west, and Mulford Road, which runs north-south. Both are four-lane roads. There are two entrances to the shopping center from State Street, one cut into the shopping center and one adjoining the shopping center on the west, over which the shopping center has an easement. There are also two entrances on Mulford Road, both belonging to the shopping center, and one of which is at the extreme northeast corner of the shopping center and is controlled by a traffic signal. The southern Mulford Road entrance has a curb cut; the other three entrances have a curb and median cut. Directly north of the shopping center and adjoining Mulford Road are three platted lots of Mulford Village Annex. The lot nearest the shopping center is undeveloped, the middle lot is the site of McDonald's restaurant, and the northern lot has a gas station on it. There is an access road to the three lots that runs parallel to Mulford Road. The northern end of the access road opens onto Mulford Road without traffic controls, and the southern end is connected to the shopping center's northeast entrance. The easement in question in this case is a 74' by 74' square in the northeast corner of the shopping center's parking lot that permits this access. The shopping area is in a rectangular building located near the northern boundary of
[72 Ill.Dec. 934] the 20 acres and running east and west. The plaintiff's store is located in the southwest corner of the building. A diagram showing the layout of the area follows.
This lawsuit was instituted in March 1981, when a retaining wall on the northern boundary of the shopping center within the purported easement area was broken for purposes of building an access road from the north connecting the service road and the northeast entrance to the shopping center. Pacemaker filed an equitable action seeking to enjoin interference with egress and ingress to the shopping center. Following amendments, the plaintiff's complaint was dismissed with prejudice by the trial court on the ground it failed to state a cause of action. We reversed that judgment in a Rule 23 order (102 Ill.App.3d 1203, 61 Ill.Dec. 607, 434 N.E.2d 1204 (1982)), directing the trial court to permit plaintiff to file its second amended complaint. It did so. A bench trial followed at which this evidence was adduced.
On August 11, 1970, Monwar Property Corporation entered into a lease with Pacemaker Food Stores, Inc., for the rental of a section of the shopping center. The lease was extended the following year by Montgomery Ward Development Corporation, which was formerly known as Monwar Property Corporation. In November 1972, Seventh Mont Corporation, as the then fee owner, entered into a lease with Montgomery Ward & Co. for the rental of the remaining portion of the shopping center. In August 1976, Brookville Energy Properties, Inc. (now Brookwood Energy & Properties, Inc.), as the then fee owner, extended the lease with Pacemaker Food Stores, Inc., with the concurrence of Montgomery Ward & Co. and Montgomery Ward Development Corporation. The plaintiff's lease with options has over 20 years remaining.
Montgomery Ward & Co. opened a retail shopping outlet to the public in November 1970. The plaintiff opened a retail grocery outlet in the shopping center in February 1971, and the store was run under the name of Logli Supermarkets. The plaintiff and Montgomery Ward & Co. have remained the only tenants in the shopping center.
The plaintiff's lease agreement provided for entrances and parking as follows:
Exhibit A, attached to the lease agreement, was a plot plan of the 20-acre shopping center, showing the location of a single building and showing perpendicular and diagonal hash marks that appear to represent parking stalls. The defendants challenged whether the perpendicular hash marks, located along the entire edge of the northern boundary, indeed represented parking areas. The trial court found the lease agreement to be ambiguous as to the delineation of the parking spaces and allowed parol evidence to be presented to ascertain the intent of the parties.
The plaintiff's vice-president, who was present during some lease negotiations, stated that there was a representation that parking would be provided based on a ratio to the square footage of the shopping area, but there was no representation made as to an actual number of parking spaces. He also testified that representations were made that there would be parking along the northern border. His understanding was that, where possible, parking was to be as shown on the architect's drawing.
There was testimony by an architect and surveyor that the perpendicular hash marks shown on Exhibit A along the northern boundary of the shopping center represented parking stalls. It was also shown that the parking lot as actually painted varied from the diagram on Exhibit A. The parking lines were painted on the lot either before the stores opened or shortly afterward. No lines were painted on the northern boundary at that time. There was testimony that the parking stripes appear today as they did when the lot was first laid out and that, after the two times the parking lot was resealed, the lot was restriped the same as it had been. Aerial photographs indicated that the northern boundary was not striped for parking in 1972 or in 1978. One witness testified that the original striping of the parking lot included spaces drawn on the northern lot line, but that was west of the 74' easement area. One witness testified that, while the northern lot line was never striped as depicted on the "As Built Site Plan", 23 lines were drawn on part of the northern boundary in 1978 or 1979 for use by employees. There was no testimony whatever that the northeast corner of the shopping center was ever actually painted for parking.
Exhibit A to the plaintiff's lease called for 1,336 parking spaces. Those actually painted totaled 1,161. No complaints were made by the plaintiff concerning the lack of delineated parking on the northern edge of the lot.
The plaintiff's complaint alleged that the 74' easement encroached on 12 of the alleged parking spaces located in the northeast corner of the lot. There was testimony that the northern edge of the 74' easement lay over an area that contained eight of the alleged spaces that were represented on Exhibit A but never striped. There was conflicting testimony by different witnesses as to whether the southern...
To continue reading
Request your trial
-
In re Mark W.
... ... Owens-Corning Fiberglas Corp., 265 Ill.App.3d 806, 816, 203 Ill.Dec. 1, 638 .E.2d 1127 (1994), citing Pacemaker Food Stores, Inc. v. Seventh Mont Corp., 117 ... ...
-
Pickering v. Owens-Corning Fiberglas Corp., OWENS-CORNING
...that a party may not be subject to harassment, oppression, or hardship. Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill.App.3d 636, 648, 72 Ill.Dec. 931, 940, 453 N.E.2d 806, 815. In Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill.App.3d 194, 19 ......
-
In re Bruder
... ... In re Rivinius, Inc., 977 F.2d 1171, 1175 (7th Cir. 1992); In re ... Power, Case Note, Killam v. Texas Oil & Gas Corp.: A Portrait of Uncertainty for Title Examiners ... Id.; Pacemaker Food Stores, Inc. v. Seventh Mont Corp., 117 ... ...
-
West Town Plaza Associates, Ltd. v. Wal-Mart Stores, Inc.
... ... See Pacemaker Food Stores, Inc. v. Seventh Mont Corp., 117 ... ...