Quincy Mall, Inc. v. Kerasotes Showplace Theatres, LLC.

903 N.E.2d 887, 388 Ill. App. 3d 820
CourtAppellate Court of Illinois
DecidedFebruary 27, 2009
Docket4-08-0409
StatusPublished
Cited by6 cases

This text of 903 N.E.2d 887 (Quincy Mall, Inc. v. Kerasotes Showplace Theatres, LLC.) 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
Quincy Mall, Inc. v. Kerasotes Showplace Theatres, LLC., 903 N.E.2d 887, 388 Ill. App. 3d 820 (Ill. Ct. App. 2009).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

In December 2005, plaintiff, Quincy Mall, Inc. (hereinafter the Mall), sued defendant, Kerasotes Showplace Theatres, LLC (hereinafter Showplace), to recover unpaid rent due under the parties’ commercial lease. In May 2008, the trial court granted summary judgment in favor of Showplace.

The Mall appeals, arguing that by granting Showplace’s motion for summary judgment, the trial court erroneously (1) imposed on the Mall, as a commercial landlord, a duty to replace its tenant’s roof and (2) allowed Showplace to set off rental payments after Showplace replaced the roof. Because we conclude that the trial court did not err in either regard, we affirm.

I. BACKGROUND

In November 1978, the Mall entered into a 30-year commercial lease with Dickinson, Inc. (hereinafter Dickinson) — a movie theater business — under which Dickinson would occupy the Mali’s theater in exchange for a rent of $5,000 per annum plus a percentage of Dickinson’s net sales to be paid monthly. In July 1979, Dickinson constructed an additional theater. The Mall and Dickinson later entered into a supplemental agreement in which the parties agreed, in pertinent part, to incorporate the newly constructed theater. In June 1994, Dickinson assigned its interest in the lease to Kerasotes Theatres, Inc. (hereinafter Kerasotes).

In May 2003, Kerasotes had the theater’s roof inspected because it had been leaking. Approximately one month later, Kerasotes assigned its interest in the lease to Showplace, a separate corporation. In July 2003, Showplace sent the Mall a letter asking it to replace the roof. The Mall did not respond.

In January 2004, Showplace’s attorney sent the Mall another letter, which included documentation of the cost of the roof replacement and which stated as follows:

“As it is the [Mall’s] responsibility to replace the roof, [Showplace], by this letter, is making demand upon the [Mall] for reimbursement of the replacement cost. [Showplace] is willing to advance the cost of the replacement to be set off against future rents. If [the Mall] prefer[s], [it] may reimburse [Showplace] directly. The replacement will occur as soon as weather permits. Upon completion of and payment for the replacement, [Showplace] will initiate the set off unless you wish to reimburse [Showplace] in a lump sum or pay the contractor directly.”

The Mall responded by letter later that month, asserting that the roof replacement was Showplace’s responsibility. The Mall cited the following section of the parties’ lease agreement in support of its assertion:

“Tenant agrees during the term hereof to keep and maintain in good condition and repair, the demised premises and every part thereof, including without limitation the foundations, exterior walls, roof, exterior and interior portions of all doors, windows, plate glass, etc.”

On February 12, 2004, Showplace responded by letter to the Mall’s claim that the roof replacement was Showplace’s responsibility, asserting, in pertinent part, as follows:

“It would appear from your correspondence *** that there is no dispute as to the inability to make meaningful repairs upon the roof and the resultant necessity to replace it. Obviously, [Showplace] differs with regard to [the Mall’s] interpretation of the lease and the distinction between providing a new roof as opposed to making ordinary repairs.
Since [the Mall’s] letter does not challenge the necessity of replacement nor the estimated cost thereof, [Showplace] is proceeding with the roof replacement, which [its] contractors advise may begin as early as Monday, February 16, 2004, weather permitting. In doing so, [Showplace] does not waive any right it has to reimbursement and/or damages relative to the [Mall’s] responsibility.”

The Mall did not respond to this letter.

Later in February 2004, Showplace (1) entered into a contract to have the roof replaced and (2) sent the Mall a letter informing the Mall that it (a) had entered into a contract to have the roof replaced and (b) would be setting off the entire cost of the roof replacement from its rent obligation.

In February and March 2004, Showplace replaced the roof at a cost of $79,298. Between June and December 2005, Showplace set off $79,298 from the rent due under its lease agreement with the Mall.

In December 2005, the Mall sued Showplace to recover unpaid rent due under the parties’ lease. In January 2006, Showplace (1) answered the Mali’s complaint, denying it owed the Mall rent, and (2) counterclaimed, (a) requesting that the trial court declare that Showplace had satisfied all of its contractual obligations to pay rent when it replaced the Mali’s roof and (b) arguing that the Mall was in breach of contract. Each party thereafter filed motions for summary judgment.

In August 2007, the trial court (1) granted partial summary judgment in Showplace’s favor, finding that, as a matter of law, the parties’ lease charged the Mall with the duty to replace the roof once the roof was beyond practical repair; (2) denied the Mall’s motion for summary judgment, finding that Showplace had the right to set off the expense of replacing the roof; and (3) setting the case for trial on certain factual issues regarding whether the roof required replacement. In May 2008, the court granted Showplace’s second motion for summary judgment, finding that no question of fact existed as to the necessity for replacing the roof. (On appeal, the Mall is not contesting the trial court’s conclusion from the second summary judgment order that the roof needed to be replaced.)

This appeal followed.

II. ANALYSIS

The Mall argues that by granting Showplace’s motion for summary judgment, the trial court erroneously (1) imposed on the Mall, as a commercial landlord, a duty to replace its tenant’s roof and (2) allowed Showplace to set off payments after Showplace replaced the roof. We address the Mali’s contentions in turn.

A. The Standard of Review

A trial court should grant summary judgment only when no genuine issue of material fact exists. Hernandez v. Alexian Brothers Health System, 384 Ill. App. 3d 510, 518, 893 N.E.2d 934, 940 (2008). “Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305, 837 N.E.2d 99, 106 (2005). We review de novo a trial court’s decision to grant or deny a motion for summary judgment. Coole v. Central Area Recycling, 384 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
903 N.E.2d 887, 388 Ill. App. 3d 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quincy-mall-inc-v-kerasotes-showplace-theatres-llc-illappct-2009.