New Park Forest Associates II v. Rogers Enterprises, Inc.

552 N.E.2d 1215, 195 Ill. App. 3d 757, 142 Ill. Dec. 474, 1990 Ill. App. LEXIS 351
CourtAppellate Court of Illinois
DecidedMarch 23, 1990
Docket1-89-0976
StatusPublished
Cited by19 cases

This text of 552 N.E.2d 1215 (New Park Forest Associates II v. Rogers Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Park Forest Associates II v. Rogers Enterprises, Inc., 552 N.E.2d 1215, 195 Ill. App. 3d 757, 142 Ill. Dec. 474, 1990 Ill. App. LEXIS 351 (Ill. Ct. App. 1990).

Opinion

JUSTICE RAKOWSKI

delivered the opinion of the court:

New Park Forest Associates II (New Park Forest), a shopping center, brought action against defendant Rogers Enterprises (Rogers), its tenant, requesting the court to enjoin that tenant from vacating its store in The Center at Park Forest (the Center) during the lease term. The trial court denied plaintiff’s motion for a temporary restraining order. The court also granted defendant’s section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) and dismissed that portion of the complaint seeking injunctive relief and specific performance. Plaintiff appeals.

The issues are: (1) whether plaintiff’s law remedy was inadequate and, if so, (2) whether the lease should be specifically enforced.

The undisputed facts are that New Park Forest’s predecessor in interest and Rogers entered a lease which provided for Rogers’ rental of space in the Center until approximately December 31, 1997. In article 5, section 5.1, the lease contained the following continuous occupancy clause:

“Tenant shall occupy the Premises upon commencement of the Main term and thereafter shall continuously and uninterruptedly operate from and use the Premises for the permitted use as set forth in clause (n) of the Fundamental Lease Provisions (Permitted Use) and for no other purpose whatsoever without the prior written consent of Landlord, which can be withheld for any reason whatsoever. Tenant shall not vacate or abandon the Premises at any time during the Term.”

The lease defined Rogers’ permitted use as the operation of a store for the “sale and repair of better quality jewelry.”

On October 1, 1987, Rogers opened its store at the Center and thereafter operated continuously for 15 months. On December 27, 1988, Rogers informed New Park Forest that it was removing inventory and vacating the store on that date.

New Park Forest immediately filed suit and stated in its amended complaint that Rogers’ lease violation would cause irreparable injury because defendant’s closing would diminish traffic at the Center, thereby decreasing the value of the Center to the landlord and existing and potential tenants. Plaintiff alleged that “damages cannot be ascertained, and a damage remedy would be impractical and inadequate.” Plaintiff further alleged that Rogers’ sales report showed annualized sales of $250 per square foot, about average for shopping centers, and therefore Rogers would not suffer severe harm if forced to continue operations at the Center.

New Park Forest concluded with a prayer for relief in the form of: (1) a temporary injunction to prevent Rogers from vacating its premises at the Center; (2) an order for specific performance on Rogers’ obligation to operate and use the leased premises for maximum business; (3) a permanent injunction to prevent Rogers from violating the lease; and (4) “other relief as is just and appropriate.”

On December 28, 1988, the court denied the plaintiff’s motion for a temporary restraining order and continued the matter to January 11, 1989, for status. Rogers did not file an answer, but instead, on January 9, 1989, filed a motion to dismiss the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615).

The motion argued that New Park Forest had failed to state a claim for specific performance because the lease agreement was in the nature of a personal service contract and that plaintiff had an adequate remedy at law. The motion further stated that the claim for injunctive relief should fail because plaintiff had not alleged irreparable injury and that plaintiff had an adequate remedy at law.

In a supporting memo, Rogers argued that if specific performance were granted, the court would be placed in the untenable situation of a long-term supervisor and may be required to enforce lease terms for occupancy and use, operating hours, signs, painting, displays, common areas, and other operational requirements.

The trial court heard Rogers’ motion and held that: “Plaintiff here, in essence, *** is alleging a breach of contract, and money damages are ascertainable by a trier of fact. They may be difficult. Again triers of fact hear all sorts of difficult items.” In that order, the court ruled “there is no basis for equitable jurisdiction alleged in the amended complaint” and accordingly dismissed all prayers for equitable relief. The court then transferred the remaining money action to the law division.

Before the substantive issues may be addressed, we must consider a jurisdictional issue not addressed by the parties.

The trial court denied plaintiff’s motion for a temporary restraining order on December 28, 1988, and continued the matter to January 11, 1989, for status. While an order denying injunctive relief is interlocutory, it is appealable pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307). On January 9, defendant filed a motion to dismiss the complaint pursuant to section 2 — 615. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) That motion was granted at the hearing on March 14, 1989, as to the equitable counts only. Although this order is final in that it involves a final determination as to the rights of the parties that is sufficiently distinct from any matter left pending, it is not appealable absent an express written finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). No such finding is contained in the record sub judice. Therefore, although we may review the dismissal of plaintiff’s request for injunctive relief, we may not directly review the dismissal of its request for specific performance. This issue becomes moot, however, for reasons set forth later in this opinion.

A party who seeks a preliminary injunction must plead that: (1) he possesses a clearly ascertainable right or interest which needs protection; (2) he will suffer irreparable injury without protection; (3) there is no adequate remedy at law; (4) there is likelihood of success on the merits; and (5) he will suffer more harm without the injunction than the defendant will suffer with it. (Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291, 492 N.E.2d 969, 974.) Thus, a complaint for preliminary injunction must plead facts which clearly show a right to injunctive relief. (Lake in the Hills, 143 Ill. App. 3d at 291, 492 N.E.2d at 974.) In addition, a party seeking a mandatory injunction for specific performance must show such “extreme urgency or ‘great necessity’ ” that “the need for such relief [is] *** clearly established and free from doubt.” Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 105, 192 N.E. 572, 575.

If the well-pleaded facts in the complaint are taken as true, as is the standard pursuant to section 2 — 615, then New Park Forest has set forth a right entitled to protection. Further, New Park Forest cites studies on the fact that a tenant’s defection from a shopping center can cause irreparable injury because each tenant contributes uniquely to the total tenant mix. (See, e.g., 2 R.

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Bluebook (online)
552 N.E.2d 1215, 195 Ill. App. 3d 757, 142 Ill. Dec. 474, 1990 Ill. App. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-park-forest-associates-ii-v-rogers-enterprises-inc-illappct-1990.