Towne Realty, Inc. v. Shaffer

• Decision Date: 25 June 2002
• Docket Number: No. 4-01-0591.,4-01-0591.
• Parties: TOWNE REALTY, INC., and Zilber, Ltd., Plaintiffs-Appellants, v. John C. SHAFFER, an Individual, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

773 N.E.2d 47

331 Ill. App.3d 531

265 Ill.Dec. 685

TOWNE REALTY, INC., and Zilber, Ltd., Plaintiffs-Appellants, v. John C. SHAFFER, an Individual, Defendant-Appellee.

No. 4-01-0591.

Appellate Court of Illinois, Fourth District.

June 25, 2002.

Edward M. Kay, Richard W. Strawbridge, Paula M. Carstensen (argued), Clausen Miller P.C., Chicago, for Towne Realty, Inc.

Kirk W. Laudeman (argued), Drake, Narup & Mead, P.C., Springfield, for John C. Shaffer.

Justice STEIGMANN delivered the opinion of the court:

In September 2000, plaintiffs, Towne Realty, Inc., and Zilber, Ltd. (collectively Towne and Zilber), filed an amended complaint against defendant, John C. Shaffer, seeking to recover for property damage caused by a fire in an apartment Shaffer rented from Towne and Zilber. In October 2000, Shaffer filed a motion to dismiss the amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2000)), arguing that the language of his lease agreement with Towne and Zilber precluded them from suing him for property damage caused by fire. Following a June 2000 hearing, the trial court granted Shaffer's motion to dismiss.

Towne and Zilber appeal the trial court's dismissal of their amended complaint, and we affirm.

I. BACKGROUND

In January 1998, Shaffer entered into an agreement with Towne and Zilber to lease an apartment in the Lincoln Tower building in Springfield for a three-month period (from February 1, 1998, through April 30, 1998). The form lease agreement, which was drafted by Towne and Zilber, provided, in pertinent part, as follows. Under paragraph two, the "yield-back" clause, Shaffer agreed to

"keep the [apartment], * * * in good order and repair and be responsible for any damage to the premises, appliances, furniture, furnishings[,] and equipment, except such as is caused by normal wear and tear."

That paragraph also provided that "[a]t the expiration or termination of this lease, [Shaffer] will yield up the demised premises in good condition and repair, ordinary wear and tear excepted."

Under paragraph three of the lease, Shaffer agreed

"not to use or keep in or about the premises anything which will affect the validity of or increase the premiums on [Towne and Zilber's] property damage and liability insurance policies on the subject premises."

Paragraph four provided, in pertinent part, as follows:

"[Shaffer] shall hold [Towne and Zilber] harmless for any loss or damage which [Shaffer] may sustain:

* * *

(c) From fire, water, rain, frost, ice, snow, gas, odors[,] or fumes from any source whatsoever and from injury or damage caused by the bursting or leaking of pipes or the failure or backing up of sewer drains and pipes.

(d) From any injury to any person or damage to any property."

Under paragraph six of the lease, Shaffer agreed to

"keep the premises in good order and repair and be responsible for any damage to the premises, appliances[,] and equipment thereon, except such as is caused by normal wear and tear."

Paragraph 14 of the lease provided as follows:

"If during the term of this lease the building is so damaged by fire or other casualty, not occurring through [Shaffer's] negligence, that the demised premises is rendered wholly unfit for occupancy and the demised premises cannot be repaired within thirty (30) days from the happening of said casualty, then this lease shall cease and terminate from the date of such casualty."

Paragraph 23 of the lease provides as follows:

"[Shaffer] hereby expressly waives and releases any cause of action or right of recovery which [Shaffer] may have hereafter against [Towne and Zilber] for any loss or damage to the leased premises or to the contents thereof belonging to [Shaffer], caused by fire, explosion, or any other risk covered by [Shaffer's] insurance."

Paragraph 11 of the "Rules and Regulations" portion of the lease provided that "[i]t is the responsibility of [Shaffer] to provide insurance coverage for his personal property."

At some point before Towne and Zilber and Shaffer entered into the lease, Travelers Indemnity Company issued an insurance policy to Towne and Zilber (hereinafter the Travelers policy), which covered damage to property caused by fire, among other things.

In March 2000, Towne and Zilber filed a complaint against Shaffer, alleging that on March 9, 1998, a lit candle or oil lamp in Shaffer's apartment caused a fire in the Lincoln Tower building. In September 2000, Towne and Zilber filed an amended complaint, alleging that Shaffer acted negligently when he (1) placed a lit candle or oil lamp near combustible material in such a way that it created a fire risk to his apartment and the Lincoln Tower building and (2) failed to extinguish the lit candle or oil lamp prior to leaving it unattended. Towne and Zilber sought $671,463.95 for damage to its property, all but $10,000 of which was covered by the Travelers policy.

In October 2000, Shaffer filed a motion to dismiss the amended complaint under sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2000)), arguing that (1) "[f]or all practical purposes, this is a case brought in the name of the insureds, Towne Realty and Zilber, Ltd., for the use and benefit of Travelers Indemnity Company"; and (2) when Towne and Zilber and Shaffer entered into the lease agreement, they contemplated that Towne and Zilber and its insurer would bear the risk of loss due to fire.

Towne and Zilber later filed a response to the motion to dismiss, arguing that the lease imposed liability on Shaffer for negligently caused fires. Following a June 2000 hearing on Shaffer's motion to dismiss, the trial court took the matter under advisement. The court subsequently granted the motion to dismiss, upon finding that (1) "the lease provides [Towne and Zilber] would maintain fire insurance on the premises"; and (2) Shaffer was a coinsured under Towne and Zilber's insurance policy.

This appeal followed.

II. ANALYSIS

A. Standard of Review

1. Section 2-619 Motions To Dismiss

Section 2-619 motions to dismiss provide a means for disposing of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 115, 189 Ill.Dec. 31, 619 N.E.2d 732, 735 (1993). In the present case, the ground advanced for dismissing the complaint is that the claims asserted therein are barred by a defense that completely negates the asserted causes of action. See Payne v. Lake Forest Community High School District 115, 268 Ill. App.3d 783, 784-85, 206 Ill.Dec. 67, 644 N.E.2d 835, 836 (1994); 735 ILCS 5/2-619(a)(9) (West 1998). The trial court should grant the motion and dismiss the complaint if, after construing the allegations in the light most favorable to the plaintiff, no set of facts can be proved that would entitle the plaintiff to recover. We review de novo the trial court's granting of a defendant's section 2-619 motion. Henrich v. Libertyville High School, 186 Ill.2d 381, 386, 238 Ill.Dec. 576, 712 N.E.2d 298, 301 (1998).

2. Section 2-615 Motions To Dismiss

In Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172, 1175 (1997), the supreme court addressed the standard of review for cases dismissed pursuant to section 2-615 of the Code and wrote the following:

"The question presented by a section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. [Citations.] A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. [Citation.]

* * * Since ruling on a motion to dismiss does not require a court to weigh facts or determine credibility, we review the complaint de novo."

B. Shaffer's Motion To Dismiss

Towne and Zilber argue that the trial court erred by granting Shaffer's motion to dismiss the amended complaint. We disagree.

Under Illinois law, a lease is an agreement subject to the law of contracts. American Apartment Management Co. v. Phillips, 274 Ill.App.3d 556, 559, 210 Ill. Dec. 639, 653 N.E.2d 834, 836 (1995). Leases should be construed as a whole to ascertain the parties' intent (see Dix Mutual Insurance Co. v. LaFramboise, 149 Ill.2d 314, 320, 173 Ill.Dec. 648, 597 N.E.2d 622, 625 (1992) ("courts must look to the lease `as a whole' and the spirit of the agreement between the parties")), and the words used should be given their plain and generally accepted meaning (Book Production Industries, Inc. v. Blue Star Auto Stores, Inc., 33 Ill.App.2d 22, 31, 178 N.E.2d 881, 885 (1961)). In instances where the terms of a lease are unambiguous, they must be enforced as written, and no court can rewrite a lease to provide a better bargain to suit one of the parties. Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 349, 249 Ill.Dec. 303, 736 N.E.2d 145, 154 (2000). If uncertainties exist regarding the meaning of the language of the lease, courts construe the language against the lessor and in the lessee's favor. American National Bank & Trust Co. v. Lembessis, 116 Ill.App.2d 5, 11, 253 N.E.2d 126, 128 (1969); see also Restatement (Second) of Contracts § 206, Comment a, at 105 (1981) ("Where one party chooses the terms of a contract, he is * * * more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party. The rule is often invoked in cases of standardized contracts and in cases where the drafting party has the stronger bargaining position").

Our supreme court has previously considered whether a tenant can be held liable for negligently causing fire damage...