*1 FIOCCHI, Defendant-Appellant. INC., SANNI, Plaintiff-Appellee, v. OLGA No. 82 — 49 Second District 25, 1983. January 21, 1982. Rehearing denied Opinion filed December UNVERZAGT, J., dissenting. appellant. Waukegan, for
Wasneski, Flanigan, of Kuseski & Forest, appellee. Lombardi, of Lake & Semmelman court: the opinion LINDBERG delivered JUSTICE circuit court Fiocchi from Olga This appeal lease executed of a on the construction focuses County Lake not be she should contends 1976. Defendant in August restrictive cov- certain of a the provisions under liable held her denying court erred the trial lease and in said contained enant involuntary light motion for dismissal in failure to com- requirements with the of the lease renewal ply clause. 19, 1976, are substantially dispute. August facts On Sanni, Inc., defendant, into a lease with
plaintiff, entered Fiocchi, Frank Olga for the pur- executrix of the estate of owned pose operating beauty a small center shop shopping *2 Frank the Elm Shops.” estate of Fiocchi and known as the “Old The 1981, lease August 31, subject option terminated on to a renewal ex- 31, lease tending August the until 1986.
The the followingpertinent lease contained paragraphs: (c) covenants, All promises, representations agree-
“21. and herein and binding ments contained shall be inure upon, apply heirs, to the benefit of lessor le- respective and lessee their gal representatives, assigns.” successors and “27. Lessee shall have in option discretion, the its it provided expresses option (or its notice the by assigns) lessor its in writing on or ninety (90) days before to the prior of expiration the year term, first five (5) to renew the lease for additional (5) years five at term or for the of sum Four Hundred ($400.00) Dollars with all per month other terms and of conditions the lease the remaining same.” particular importance
Of provides: Clause which
“28. Lessor agrees not lease other stores in Old Elm Shops Shopping Center for the of a purpose beauty salon.” In 1978, the ElmOld were Shops distributed to the heirs of Frank Fiocchi in accordance with provisions the will. The his subject leased premises and three other stores were Nancy distributed to Ma- jzel, daughter the of Frank the remaining three stores defendant, Olga were distributed to Fiocchi. defendant,
On or about June the acting through son, her Favella, Leonard a entered into month-to-month oral .with lease cer- for tain the salon purpose operating in one of the beauty three stores owned Thereafter, the Old Elm Shops. plaintiff the filed instant action which it sought enjoin opera- the tion of a at competing beauty salon center in shopping accordance with the restrictive in Clause 28 of the provisions subject contained
In response complaint, defendant filed a motion for involun- dismissal, tary alleging that failed to with the notifi- plaintiff comply cation provisions of Clause provided plaintiff 27. Said clause might for renew an additional term upon written notification lessor or assigns days its on or before 90 prior asserted that lease would of the term. Defendant expiration failure to pro- virtue of August extend beyond of renewal vide formal notification resulting competing beauty from damage
suffer two months of shop. provi- motion that the notification alleged answer to the
Plaintiff’s lessor, the current Ma- Nancy 27 had waived sions of Clause been included complaint filed an amended which jzel. Additionally, plaintiff 29, 1981, in Lease,” entitled “Extension of dated July document to renew Nancy Majzel formally accepted plaintiff’s request which Following Clause 27. provisions lease and waived the notification counsel, the motion was denied. arguments the close of to trial on 1982. After proceeded January case counsel, the entered judgment court arguments the evidence and enjoined The court’s order plaintiff. relief in favor of injunctive from store defendant, leasing any her successors and purpose Elm Shops” known as “Old property commonly 31, 1986. Defendant August salon until beauty therein a operating terminate the month-to-month directed to was further ordered and in June 1981. lease which she had executed orally the re- that she is not bound Defendant contends contained in Clause 28 of the virtue strictions *3 wit, as in a representative capacity, fact that she executed responds Fiocchi. Plaintiff executrix of the estate of Frank agreement, to execute said lease authority no granted defendant was and, or order of court through either Frank Fiocchi’s will contained on the covenants personally defendant must held liable in said lease. contract executory in Illinois that an
The law is well settled
administrator,
independent
if
a new and
made on
of an executor or
is
representative,
and the
promisee
moving
consideration
between
liable, and
personally
which he becomes
upon
his
contract
personal
475; In re
187 Ill.
Long (1900),
v.
(Bauerle
does not bind the estate.
459;
Steiniger (1922),
Marsh v.
242 Ill.
Way (1926),
App.
Estate of
539;
(1921),
App.
v.
114;
Monaghan
Ill. App.
Coutsogeorge
663, 323 N.E.2d
3d
(1975),
App.
Thomas v.
see
Gouwens
also
incurred was
though
rule
even
debt
829.)
applicable
This
is
in the
himself
described
representative
of the estate and
benefit
Long;
(Bauerle v.
or an “administrator.”
contract as an “executor”
lia
of personal
will
be absolved
Steiniger.)
v.
An executor
Marsh
contract
order
to execute said
authority
he is
bility
granted
where
In re Estate
Long;
Bauerle v.
or
the will of the decedent.
court
2;
Annot.,
1101/2,
Stat.
ch.
see also
Way;
par.
Rev.
20 —
(1964).
A.L.R.2d 258
There is no evidence
the record which
indicate whether
or not a court order was issued which authorized the lease or whether
decedent’s
to execute
will authorized defendant
the lease. This court
Lynn
cannot consider facts which are not in the record
v.
(Collosseo
577),
App.
410 N.E.2d
although
appellee
may defend a
on
judgment
by raising
review
an issue not previously
court,
ruled
the trial
upon
necessary
factual
for the de
basis
termination
such
point
(Kravis
must be contained
the record.
v.
Marine,
Smith
Inc.
141.)
60 Ill. 2d
Consequently,
general
rule
and we
applies,
conclude defendant was
bound
by the
during
restrictive covenant
the term of the lease. In reaching this
conclusion, we note that both
parties agree
Majzel, the
Nancy
specific
devisee
property leased to
assented
plaintiff,
terms
Likewise,
of the lease.
Olga
we find
although sign
ing
executrix,
the lease as
must be held to have
assented to—
thus, had notice of—the
terms
restrictive covenant insofar as it
related to the property of which she was the
devisee. See
residuary
Warner,
generally Baird &
Stuparits
Inc. v.
(1977), 53 Ill.
338, 342,
748;
Stores,
368 N.E.2d
Farm Food
Inc. v. Gianeschi
582, 586-87,
320 Ill. App.
Empire
Proofing
Fire
Co. Comstock
Further, plaintiff’s Warner, citation of Baird Stuparits & Inc. v. (1977), 388, Ill. 3d App. 748, 368 N.E.2d is not of particular assist ance. In Baird decedent’s will granted the author explicitly executors ity to enter into the contract at issue. No facts have been established here. authority
which would indicate the existence of such held under Defendant also contends that she cannot be liable the estate restrictive covenant as a successor in interest to She that since the covenant encom of her deceased husband. asserts under the terms passed other than that which was demised property lease, it to the estate and did not run with personal was grantee land so as to bind her as the of the lessor. if are they
Restrictive covenants are valid Illinois reasonable. Vision, 32; v. 37 Ill. 2d Broth (House Hiyane (1967), Inc. Goldblatt ers, Meadows, 8 Ill. 3d (1972), App. Inc. v. Addison Green Inc. Commercial, Union-Hall, 715; (1968), v. Inc. 290 N.E.2d Crest Inc. 652.) 104 Ill. 243 N.E.2d restrictive cove App. Additionally, nants in leases which encumber land other than that demised have Stores, v. Gianeschi (Farm Food Inc. upheld. also been 792; App. Meyer 51 N.E.2d Skelers v. App. Theater Co. 18; Meridian Amusement Co. Home v. First National Bank 479; Drug see also De Koven Co. App. Further, such covenants have 327 N.E.2d the lessor of or successors in interest who held to bind lessees been contained in taken notice of a restrictive covenant property have with also their land. Farm for which encumbers adjoining property a lease Stores, Gianeschi; Amusement Co. v. Home Inc. v. Meridian Food Theater Co. (1919), 215 Ill. Amusement Co. v. Home Theater Co.
In Meridian Meridian, a known as the building subleased plaintiff, Company purpose Theater from the Barhydt-Hoeffler Fischer a cove The Meridian lease contained restrictive showing movies. building, utilizing nearby from Barhydt nant which prohibited movies. Both Theater, showing purpose Lyric known as Barhydt leased to originally theaters had been Lyric the Fischer and Company. Danville Theater by the bought out the stock of 11 investors group
Subsequently, the Home known as corporation then formed a new They Barhydt. from Dan- assign its leases Barhydt and caused Company Theater Thereafter, Home Theater. Meridian to Home and the lease to ville Theater in violation Lyric at the showing movies began Theater Meridian’s from con- Home Theater restraining injunction upholding
In
not take
that Home could
movies,
concluded
said
the court
ducting
Merid-
restrictive covenants
with the
the leases unencumbered
notice of the
had
clearly
Theater Company
The Home
agreement.
ian
v. Par-
Frye
also
it. See
would be bound
covenant
*5
tridge
Similarly, in Farm Inc. Gianeschi 320 Ill. 792, 582, the upheld N.E.2d court restrictive covenant in a lease, nearby to a lessee of said relating property, against nearby that The court concluded where a lessee of a property. subsequent has of in common lessor notice a restrictive clause a lease of lessor’s the nearby lessee will be bound said covenant even property, no though privity there was between the parties.
In of the defendant here on foregoing, may view held liable the covenant virtue the that she restrictive of fact took the demised with the premises notice of restrictive covenant contained in the lease of an Her contention that the adjoining premises. absence of fixed in duration the covenant itself links the implicitly covenant’s duration to the of the “longevity” proceedings estate is unavailing. As a mat- construction, ter of the clause must be held to applicable through- out the entire duration of the lease explicit absent to language the Moreover, of contrary. 21(c) Clause the lease extends all covenants in heirs, the lease to the assigns successors and of the lessor. Defendant’s citation of Telegraph-Cable Postal Co. v. Western Un 335, ion Telegraph Co. not Postal, of assistance. In the court strict merely mandated construction of a restrictive cove nant which prohibited the lessor/owner from leasing premises the Since, fact, use as a office. telegraph of the point successor in terest to the lessor/owner utilized use, for this property the re case, strictive covenant was not violated. In the instant defendant’s actions clearly violate the terms of the restrictive covenant.
Defendant filed a motion for involuntary dismissal in which al- she leged plaintiff that had failed to exercise its option lease, to renew the 27, accordance with the provisions paragraph lessor providing or its with written notice said on or days renewal before 90 to the prior expiration of date. Defendant predicated this as- sertion on the fact plaintiff’s suit, which was on filed June only days to prior expiration term, of the lease merely alleged that light “intends” renew the In of plain- tiff’s failure to with the comply provision, renewal notice asserted that the lease expire within filing two months would, suit and plaintiff damages. suffer minimal consequently,
Plaintiff responded filing complaint amended with an at- tached document entitled of lease.” signed “extension Said document Majzel, lessor, Nancy present and dated a date July subsequent motion, filing expressly accepted plaintiff’s request to renew the lease provisions and waived notification arguments of all evidence and 27. After
paragraph presentation counsel the motion was denied. Majzel could waive dispute Nancy
Defendant does
in the
for her
Such is the
inserted
benefit.
provision
written
v. Peterson
court in Fuchs
holding
supreme
However,
subject option
she contends that the
renew
The lease the estate between at the end of the years to extend the lease for five option had the to the lease five additional That the extend years. option first five significant. not in the lessor is in the exclusively plaintiff is years 3d 419 N.E.2d Sandberg (1981), App. Co. v. In J.B. Stein & in the in a similar to the one determined that clause this court rather than as an extension of a lease case should construed stant be a letting. new in a lease for a provision a distinction is made between
Generally, term at the the extension of the therein for provision a renewal and a latter, the exercise lessee, treating upon the courts the of the option it may the full term to which demise for present as a privilege, privilege with a period for the shorter extended and not a demise 50 Am. Jur. 2d generally term. See for a lease for the extended new (1970). Tenant sec. 1156 Landlord and of para- notice provision the in the language Defendant relies on “*** to given to be notice of renewal requiring 27 of the lease
graph assignee she, as theory for her (or assigns)” Lessor the in- the extension. We to notice of estate, was entitled burdened of the ex- it was the intention to be that position defendant’s terpret executrix, lessor, the original that if the the lease drawing ecutrix to renewal, notice of intention the time for not in existence at was of course would the estate. This the given assigns extend must be of the estate. include defendant as a devisee re “(or assigns)” the alternative The use of the parenthetical has the named lessor the to whom given party notice quires the contract language the gives This premises. the leased conveyed Savage (1979), In re Estate meaning. ordinary its plain 263. 656, 392 N.E.2d App. 3d at of the lessor is for the benefit provision
This of notice type former lessor exercised, for a is to extend option the time the interest in the The lessee must property. simply who no has an longer then lessor. Co. v. (American is the Oil notice whomever provide 37, 46, 486, 490.) Defendant’s 203 Tenn. 308 S.W.2d Rasar require notice provide construction their interest estate, slight the no matter how numerous or how extending as a the lease term. There is property, precondition needlessly no reason to that the intended bur- believe such densome notice requirement. however,
Assuming,
expression
capable
that the
is
both con
ambiguous,
structions and is
the burden of the
must fall
ambiguity
author,
its
upon
(Wachta
Savings
here
defendant.
v. First Federal
Loan
&
Association
N.E.2d
terms,
Vague
will be con
susceptible
differing interpretations,
strued
against
Boultinghouse
drafter. Bank
Silvis
Auction
Co.
In sum, we hold that defendant was liable on the lease she as was neither given to lease under the will nor power court. Nancy Majzel could and giving did waive of notice of timely intention to extend the lessee. Defendant was not enti- tled to notice of the extension because she was neither the lessor un- assign der lease or an of the lessor term was through- used out judgment of the circuit court of Lake affirmed. County
Affirmed.
SEIDENFELD, P.J., concurring. *7 UNVERZAGT,
JUSTICE dissenting: I agree the defendant was bound by restrictive cov- enant, but I would not affirm the relief injunctive afforded the trial court’s I judgment case, because find under the facts of this the plain- tiff failed properly option exercise its I believe, renew thus defendant only was bound covenant until the end the origi- is, nal five-year period; 31,1981. that until August The at “lessor” the time the lease was was Olga entered into Fiocchi as executrix estate Frank Fiocchi. the terms of By clause notice of the intent to its option lessee’s exercise renew was required to be given (or writing to “Lessor its in on assigns) or before (90) prior ninety days (5) of the first five expiration year term ***.” (Emphasis true, it is as added.) Although plaintiff argues, a written contract may performance waive condi- in tion a-contract that was (Fuchs inserted for their v. benefit Peter- son Ill. 374-76), pro the fact remains that the notice well, Olga vision was inserted for the benefit of Fiocchi as and she did requirement. not waive the notice The “lessor” no original longer was existence, having the estate been closed. notice was to Accordingly, The given writing assigns.” to “its of the lessor were and definition; Fiocchi in Nancy Majzel Olga assign to-wit: an cludes all those who take either or from an immediately remotely as descent or act of law. Sauls v. signor devise, by conveyance, whether Cox 88-89. Stauffer,
Plaintiff’s president, Susan testified that in March of 1981, she heard rumors that a second salon was to be beauty open center. She then shopping Olga called who advised her “ that the rumor was true. Stauffer testified she Fiocchi: questioned lease, ‘But what about it reads that there cannot my be another said, get salon.’ And she ‘You better a hold of beauty your lawyer.’ testified she of the conversation.” Stauffer also And that was end Ma- to renew her lease with going not Fiocchi that she was notify did at term; the “Extension of Lease” five-year for another jzel five-year executed Majzel and was month rental between per $400 Fiocchi, the effect of the 29, 1981. notice to Majzel July on Without to mean in the lease must be construed covenant clause restrictive lease, would not lessor under the second Majzel, as Elm center of her other Shops shopping stores in the Old beauty of a salon. purpose remedy is an which injunction exceptional It is established that an course, caution and great only matter of but with granted is not as a (Board clearly to such relief is established. right when plaintiff’s 1127, 1130.) grant Education Eckmann powers is within the injunction discretionary or denial of an unless an reversed court, on the matter will and its decision Ferrell Corp. v. (Plasti-Drum of discretion is shown. abuse intent notice of its give failed to Plaintiff here who, one of the les Fiocchi Olga to exercise its to renew option terms of the under the to such notice entitled assigns, sor’s two was the terms was bound Accordingly, date of the expiration until covenant clause the restrictive re injunction the trial court’s lease, 31, 1981, original August 1986, was, August until the property defendant’s use of straining Therefore, the judgment of its discretion. believe, I an abuse the in be reversed should entering injunction trial court in order vacated. junction *8 majority opinion. dissent from the
I therefore