Petition for Writ of Certiorari — Al-Par, Inc. v. Baird & Warner, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

AL-PAR, INC.,

\ Pr fatione #7

BAIRD & WARNER, INC.,

Re sponde nt

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ILLINOIS

GARY A. WEINTRAUB

614 West Monroe Street

Chicago, Illinois 60606

(312) 902-3900

Counsel of Record for Petitioner

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

ai a —_— ea

i

QUESTIONS PRESENTED

1. Whether, where there has been a waiver by the land-

lord of a use restriction in a lease for nearly five years,

the landlord may undo or rescind such waiver?

2. Whether, as a matter of common law contract law,

a waiver, once it occurs, is final?

3. Whether the forfeiture of a leasehold interest should

be permitted as a result of the tenant’s use of the prem-

ises where there exist alternative remedies (in the nature

of declaratory judgment and injunctive relief) which the

landlord has failed to utilize or pursue?

“4. Whether the mechanism approved by the Illinois courts

for undoing or overcoming waivers comports with proce-

dural due process?

il

PARTIES TO THE PROCEEDING

The respondent, Baird & Warner, Inc., is the landlord

of the premises located at 5301 S. Hyde Park Blvd., Chi-

cago, Illinois. The defendant, Al-Par Inc., rents a store

in the building from Baird & Warner, Inc.

The landlord brought this action seeking possession of

the premises occupied by Al-Par, Inc., alleging, inter alia,

breach of the use clause of the parties’ lease.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

PARTIES TO THE PROCEEDINGS .........

TABLE OF AUTHORITIES .................

EE eee ee

ech en ie 0sb ss kh seseccescccess

STATUTORY PROVISIONS INVOLVED ....

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING

cis k bp t se kkn sch eens ceasecs

Neer h Gna 6 esse cede eees cress

APPENDICES

A—Order of Illinois Supreme Court of October 5,

1989, Denying Leave To Appeal ...........

B—Opinion of Illinois Appellate Court cf March 16,

PAULA RL GREE Ga 6Cabeevasneenssseces

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ee

D1

El

iv

TABLE OF AUTHORITIES

Cases

In re Boogaart of Florida, Inc., 17 B.R. 480 (S.D.

Pelr GE eae acent os cokes cake eee

In reC & C TV & Appliance, Inc., 97 B.R. 782

Gt FP Pas 6 cance enscvitenbesantace

In re Ferris, 415 F.Supp. 33 (W.D. Okla. 1976) ..

In the Matter of Northwood Industries, Inc., 25

Se: Fe Ae Se eee

Okey, Inc. v. American National Bank and Trust

Company, 96 Ill.App.3d 987, 422 N.E.2d 221,

52 Iil.Dec. 540 (ist Dist. 1961) ............

In re Oyster Club of Greenwich Limited Partner-

ship, 98 B.R. 654 (D. Conn. 1989) .........

Perry v. Waddelow, 145 F.Supp. 349 (E.D. IIL.

WD oss séxacasiasacsate ee

Steven W. Barrick & Assoc. v. Witz, 147 Ill.App.3d

615, 498 N.E.2d 738, 101 Ill.Dec. 414 (2nd Dist.

BOD kei akedeuscincivieeeeeleaesaawennases

202 Market Place v. Evans Products Co., 824 F.2d

Re Sn SG ED cn bd dcikecdsccuaescansees

Waukegan Times Theatre Corporation v. Conrad,

324 Ill.App. 622, 59 N.E.2d 308 (2nd Dist.

BD vc busuncvceyeansecvenunmeses eieerecan

Statutes and State

Constitutional Provisions

Sections 9-101 and 9-102 of the Illinois Code of Civil

Procedure (Ch. 110, §§9-101, 9-102, Ill.Rev.

RS o vnk dec cised sats seteuen nee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

AL-PAR, INC.,

Petitioner.

Vv.

BAIRD & WARNER, INC.,

Responde nt.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ILLINOIS

Petitioner, Al-Par, Inc., petitions for a writ of certiorari

to review the judgment of the Illinois Supreme Court,

the highest court of the state of Illinois, in this case.

OPINIONS BELOW

The original opinion of the Circuit Court of Cook County

(App., infra, C1-C2, D1) is unreported. The opinion of the

Illinois Appellate Court (App., infra, B1-B9) is reported

at 183 Ill.App.3d 467, 539 N.E.2d 192, 131 Ill.Dec. 839

(1st Dist. 1989). The Order of the Illinois Supreme Court

denying leave to appeal (App., infra, Al) is reported (with-

out opinion) at ___ Il. App.3d __, 545 N.E.2d 104, 136

Tll.Dec. 580 (1989).

ee |

—

JURISDICTION

The order of the Illinois Supreme Court was entered

on October 5, 1989 (App., infra, Al). The jurisdiction of

this Court is invoked under 28 U.S.C. 1257(8).

STATUTORY PROVISIONS INVOLVED

Sections 9-101 and 9-102 of the Illinois Code of Civil Pro-

cedure (Ch. 110, §§9-101, 9-102, Ill.Rev.Stat.) are reprinted

at App., infra, E1.

STATEMENT OF THE CASE

This is a landlord-tenant dispute relating to a commer-

cial premises. Nearly five years into the lease term, and

after the tenant had exercised its option to renew for a

second five-year term [R. 118-119; Def. Exh. #12], the

landlord brought this action under the Illinois Forcible En-

try and Detainer Act (Ch. 110, §9-101, et seq., Tl.Rev.

Stat.), seeking possession of the premises.

The landlord claimed that the tenant was in breach of

the lease in that the tenant had used the premises for

a purpose other than that specified in the parties’ lease

(i.e., other than as a “health and beauty aide store’’).

~

Following a bench trial,

[t]he trial court found that although there appeared

to be tacit waiver, for almost five years, of the use

provision, plaintiff's letter demanding strict compli-

ance negated the waiver. -

See, 589 N.E.2d at 194, 131 Ill.Dec. at 841 (App.,

infra, B5) (emphasis added).

Nevertheless and notwithstanding its finding that the

term “health and beauty aide store’’ was ambiguous [R.

112], the trial court entered judgment for possession in

favor of the landlord. [R. 246.]

On review, the Illinois Appellate Court indicated that:

The sole issue presented for review is whether the

trial court erred in finding that plaintiff's letter de-

manding strict compliance with the parties’ lease cured

any prior waivers with respect to use of the premises.

539 N.E.2d at 193; 131 Ill.Dec. at 840 (App.,

infra, B2) (emphasis added).

With regard to such waiver(s), the occurrence of which

is undisputed, the record reflects that:

1. The tenant remodelled the premises from a bicy

cle shop and took possession on gr about February

1, 1983. [R. 48, 72.] The tenant spent ‘‘somewhere

around $70,000 with all the refrigeration, installation,

fixtures, and the sign and remodelling .. . .”’ [R. 107

(testimony of Albert Parnes, the tenant’s president). |

2. Before entering into the lease, Albert Parnes dis.

cussed the proposed use of the premises with George

Yonan of Baird & Warner. [R. 110 (testimony of Al

bert Parnes).] According to Mr. Parnes, he described

the proposed use to Mr. Yonan “as a discount store

similar to [Al-Par’s}] other stores ... .”’ [/bid.} He

mar a

also indicated that Mr. Yonan accompanied him in

Visits to several of Al-Par’s other stores. [R.110-111.]

3. The tenant has operated a discount store continu-

ously for five years. [See, R. 95-97 (testimony of Em-

manuel Tsikalakis), 107-109 (testimony of Albert

Parnes).] The exterior sign which has been present

for five years identifies the tenant’s business as a

“discount store.’ [Def. Exh. #7, #8; R. 95, 116.]

4. The nature of the tenant’s use has not changed

over the course of its five-year tenancy. [R. 96 (testi-

mony of Emmanuel Tsikalakis), 109 (testimony of Al-

bert Parnes).}] Even the landlord’s own witness con-

firmed this. [R. 38 (testimony of John Beal, Executive

Director of the Southeast Chicago Commission).]

5. The landlord maintains an office in the building

[R.16, 18, 68, 71, 109], and its agents have made pur-

chases from the tenant’s store regularly and frequent-

ly. [R. 71-72 (testimony of Russell Fleagle, property

manager for Baird & Warner), 109 (testimony of Al-

bert Parnes).] Mr. Fleagle, the landlord’s property

manager for the building at 5301 S. Hyde Park Blvd.

from June 1, 1981, through July 1, 1984, testified that

he never instructed the tenant to stop selling any

items. [R. 77.]

6. After the tenant exercised its option to renew for

a second five-year term [R.118-119; Def. Exh. #12],

the landlord (on September 30, 1987) sent a letter de-

manding ‘“‘full[ ] and strict{ ] compl[iance}’ with cer-

tain terms of the lease. [Plitff. Exh. #2.] The tenant,

through one of its attorneys, responded on Octo-

ber 14, 1987, asserting that the right to enforce the

lease provisions specified by the landlord had been

waived. [Plitff. Exh. #3.]

7. On November 6, 1987, the landlord served a “No

» . 2

tice to Quit’”’ on the tenant. [Pitff. Exh. #4; R. 13.|

8. On November 18, 1987, the landlord filed a com

plaint for possession. [R. C4.] The tenant answered

and raised affirmative defenses, including w aiveyli,

C129-133.] *

A bench trial was held on February 3, 1988. On March

25, 1988, the trial court entered judgment for possession

in favor of the landlord. [R. C246 (see, App., infra, D1).|

On July 12, 1988, the trial court issued its ““Memorandum

of Findings of Fact,’’ nunc pro tunc, March 25, 1988. [R

C269-272 (see, App., infra, C1-C2).|

The Illinois Appellate Court affirmed, by writte.: opin

ion dated March 16, 1989. (See, App., infra, B1-B9.| A

petition for rehearing was denied by the Illinois Appellat«

Court on June 19, 1989. A “Petition for Leave to Appeal”

was filed in the Illinois Supreme Court. The Illinois Su

preme Court declined, without written opinion, to accept

the case for review on October 5, 1989. [See, App., vefra,

D-1.}

REASONS FOR GRANTING =

THE PETITION

1. A tenant is entitled to procedural due process in con

nection with the termination of its leasehold interest. See,

e.g., In re Oyster Club of Greenwich Limitea Partnership,

98 B.R. 654 (D. Conn. 1989); In re C & C TV & Ap

pliance, Inc., 97 B.R. 782 (E.D. Pa. 1989). For the reasons

stated hereafter, the mechanism approved by the Illinois

courts, which allows a landlord to revive a provision of

a lease which has been waived (with no time frames or

penne ERE er eee

—6—

contest procedures specified), does not comport with or

satisfy procedural due process requirements.

2. The decision of the Illinois courts conflicts with common

law principles of contract law, as applied and enforced by

the federal courts:

The general rule applied to contracts is that any

ground for forfeiture once waived cannot later be re-

vived as a ground for forfeiture. Garbaczewski v.

Vanucci, 342 Ill.App. 367, 369, 96 N.E.2d 653 [1950));

Elmore Real Estate Imp. Co. v. Olson, 332 Ill.App.

475, 76 N.E.2d 204. A lease is a contract between

the landlord and the tenant. Union Guardian Trust

Co. v. Colwood Co., 6 Cir. 111 F.2d 671.

Since a lease is a contract, the same principle of

law is applicable. The waiver of the right to declare

a forfeiture of a lease by a breach is irrevocable and

cannot be revived.

Perry v. Waddelow, 145 F.Supp. 349, 350 (E.D.

Ill. 1956) (emphasis added).

A landlord’s right to terminate a lease for breach

of covenant is waived if the lessor does not avail him-

self of the right or if there is an unreasonable delay

in enforcement thereof. Any act of the lessor, done

with knowledge of the violation of a covenant by the

lessee, affirming the existence of the lease and recog-

nizing the lessee as his tenant, or otherwise incon-

sistent with the intention to declare a forfeiture is

a waiver of such forfeiture unless rebutting circum-

stances are shown. Inasmuch as terminations are not

favored, slight acts will be construed as waivers of

terminations. 51C C.J.S. Landlord and Tenant § 117(3).

In re Ferris, 415 F.Supp. 33, 38 (W.D. Okla.

1976) (emphasis added).

A lessor’s failure to enforce the provisions of a

lease prevents the lessor from subsequently enforcing

those provisions. Thus, a waived lease provision is for

all intents and purposes stricken from the lease. 17A

= =

C.J.S. “Contracts” § 493. For example, if a lessor

consents to an assignment of the lease, it forever

waives its right to enforce an anti-assignment provi-

sion to prevent a subsequent assignment. 49 Am.Jur.

2d “Landlord and Tenant” §422.

In re Boogaart of Florida, Inc., 17 B.R. 480, 485

(S.D. Fla. 1981) (emphasis added).

3. The decision of the Illinois courts conflicts with com-

mon law principles of contract law recognized by the Illi-

nois courts themselves:

... the general rule is that any ground of forfeiture,

once waived, cannot later be revived as a cause for

forfeiture.

Okey, Inc. v. American National Bank and

Trust Company, 96 Ill.App.3d 987, 422 N.E.2d

221, 225-26, 52 Ill.Dec. 540, 544-45 (1st Dist.

1981).

[t]his court has held that a lessor may not revive

grounds for forfeiture which he previously waived in

order to prevent lessee’s exercise of an option to pur-

chase. (Okey, Inc. v. American National Bank &

Trust Co., (1981), 96 Ill.App.3d 987, 52 Ill.Dec. 540,

422 N.E.2d 221; see also Perry v. Waddelow, 145

F.Supp. 349 (E.D.IIl. 1956) (dealing with option to

renew a lease).)

Steven W. Barrick & Assoc. v. Witz, 147 Ill.

App.3d 615, 498 N.E.2d 738, 101 Ill.Dec. 414 (2nd

Dist. 1986) (emphasis added).

4. The result approved by the Illinois courts has the ef-

fect of turning a long-term commercial tenancy into a

tenancy at will from its outset, notwithstanding the ten-

ant’s substantial investment. [See, R. 107.) The decision of

the Illinois courts will set a harmful precedent. Because

the Illinois courts incorrectly concluded that a waiver

could be undone, the decision below will encourage land-

lords to claim variance from the use description contained

~~

in the lease whenever they seek to terminate a tenancy

(even though the tenant may be otherwise fully in com-

pliance with the lease and may have used the premises

for exactly the same purpose for years). That result is

harmful to tenants and to commercial stability.

This is particularly true where there are alternative

remedies available to a landlord (other than forfeiture).

A landlord can bring an action for declaratory judgment

as to what uses are permitted under the terms of a lease

or for a determination as to what items may or may not

be sold. And a landlord can bring an action for injunc-

tive relief seeking an order barring the sale of items

which it believes are beyond the scope of a use clause.

See, e.g., 202 Market Place v. Evans Products Co., 824

F.2d 1363, 1367 (8rd Cir. 1987):

“Forfeitures are odious in law, and are enforced

only when there is the clearest evidence that that

was what was meant by the stipulations of the par-

ties.”’ Cleveland v. Salwen, 292 Pa. at 4383, 141 A.

at 157. If the tenant was making unauthorized use

of the common area, the landlord’s remedy was to

sue for trespass damages or injunctive relief.

5. The policy of law favors the findings of waivers of

forfeitures:

. -we must_take notice of the long-established prin-

ciple of law that forfeitures are not favored by the

courts and they will readily adopt any circumstances

that indicate an intent to waive a forfeiture.

Waukegan Times Theatre Corporation v. Con-

rad, 324 Ill.App. 622, 59 N.E.2d 308, 312 (2nd

Dist. 19465).

. . . courts must carefully scrutinize the lessor’s

motives in forfeiture actions. Humphrey v. Hum-

phrey, 254 Ala. 395, 48 So.2d 424 (1950), American

LL oo@<«e

=

Dairy Queen Corp. v. Brown-Port Company, 621

F.2d 255 (7th Cir.1980).

In the Matter of Northwood Industres, Inc., 25

B.R. 210, 214 (W.D. Wisc. 1982).

This is particularly true where, as here, the forfeiture

is based on a use by the tenant which has existed (i) from

the outset of the lease, (ii) continuously for nearly five

years, (iii) where the tenant made a substantial initial in-

vestment in order to undertake such use (including the

installation of refrigeration equipment, which, in the land-

lord’s view could never be consistent with a “health and

beauty aide store”), (iv) where the landlord had full knowl-

edge of the tenant’s actual use throughout such five-year

period, and (v) where the landlord’s forfeiture action did

not come until after the tenant had exercised its option

to renew the lease for a second five-year term. Under

these circumstances, permitting a forfeiture is fundamen-

tally unfair and inconsistent with our system of substan-

tial justice. Due process requires that state procedures

not be utilized to add (or add back) provisions to a lease

or contract between the parties.

CONCLUSION

For all of the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

GARY A. WEINTRAUB

614 West Monroe Street

Chicago, Illinois 60606

(312) 902-3900

Counsel of Record for Petitioner

eI EEO

APPENDICES

Al

APPENDIX A

(Letterhead Of)

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 5, 1989

Mr. Gary A. Weintraub

Attorney at Law

614 West Monroe Street

Chicago, IL 60606

No. 68938—Baird & Warner, Inc., respondent, v. Al-Par,

Inc., petitioner. Leave to appeal, Appellate

Court, First District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 27, 1989.

Bl

APPENDIX B

183 Ill.App.3d 467

539 N.E.2d 192

BAIRD & WARNER, INC.,

Plaintiff-Appellee,

v.

AL-PAR, INC., Defendant-Appellant.

No. 88-1107.

Appellate Court of Illinois,

First District, Fourth Division.

March 16, 1989.

Rehearing Denied June 19, 1989.

Landlord filed complaint for possession of premises, al-

leging that tenant was in breach of lease. The Circuit

Court, Cook County, George W. Rothschild, J., entered

order of possession, and tenant appealed. The Appellate

Court, Johnson, J., held that: (1) court’s determination that

tenant failed to comply with lease requirement that prem-

ises be maintained in clean, sightly and healthy condition

was not against manifest weight of evidence; (2) trial court

did not give unreasonable interpretation to lease by find-

ing that items sold by tenant went beyond restriction in

lease limiting use to health and beauty aide store; and

(3) landlord’s letter demanding strict compliance with lease

cured any prior waivers with respect to use of premises.

Affirmed.

B2

Justice JOHNSON delivered the opinion of the court:

This is an appeal by defendant, Al-Par, Inc., from an

order of possession entered by the circuit court of Cook

County in favor of plaintiff, Baird & Warner, Inc., for the

premises located at 5301 South Hyde Park Boulevard in

Chicago, Illinois. The sole issue presented for review is

whether the trial court erred in finding that plaintiffs let-

ter demanding strict compliance with the parties’ lease

cured any prior waivers with respect to use of the prem-

ises.

We affirm.

On November 16, 1982, defendant executed a 5-year

lease with plaintiff for the premises located at 5301 South

Hyde Park Boulevard. Defendant was to use the premises

as a “Health and Beauty Aide store.” The lease provided,

in pertinent part, the following:

“1. Lessee shall pay Lessor or Lessor’s agent as

rent for the Premises the sum stated above, monthly

in advance, until termination of this lease, at Lessor’s

address stated above or such other address as Lessor

may designate in writing.

* * * * i*

4. * * * Lessee will not allow the Premises to be

used for * * * any purpose other than that herein-

before specified.

*x* * * * i* *

6. Lessee shall keep the Premises and appurtenances

thereto in a clean, sightly and healthy condition, and

in good repair, all according to the statutes and or-

dinances in such cases made and provided, and the

directions of public officers thereunto duly authorized,

all at his own expense * * *.

* * * * i* *

B3

9. Lessee shall not attach, affix or exhibit or per-

mit to be attached, affixed or exhibited, except by

Lessor or his agent, any articles of permanent char-

acter or any sign, attached or detached, with any

writing or printing thereon, to any window, floor, ceil-

ing, door or wall in any place in or about the Prem-

ises, or upon any of the appurtenances thereto, with-

out in each case the written consent of Lessor first

had and obtained * * *.

~ ~*~ ~ - * ~

13. * * * The acceptance of rent, whether in a single

instance or repeatedly, after it falls due, or after

knowledge of any breach hereof by lessee, or the giv-

ing or making of any demand, whether according to

any statutory provision or not, of any act or series

of acts except an express written waiver, shall not

be construed as a waiver of Lessor’s right to act

without notice or demand or of any other right here-

by given Lessor, or as an election not to proceed

under the provisions of this lease.

~ . * ~ * *~

19. * * * The Lessor may collect and receive any

rent due from Lessee, and payment or receipt thereof

shall not waive or affect any such notice, demand,

suit or judgment, or in any manner whatsoever waive,

affect, change, modify or alter any rights or remedies

which Lessor may have by virtue hereof.

. &¢ 8 & © &

21. * * * (d) The rights and remedies hereby created

are cumulative and the use of one remedy shall not be

taken to exclude or waive the right to use another.”

Plaintiff alleges that over the course of almost 5 years

defendant breached the lease by failing to send rent in

advance to a specified address in violation of paragraph

1; using the store to sell a myriad of items outside of

health and beauty aide products in violation of the use

B4

provision in paragraph 4; allowing the premises to deterio-

rate to the extent that members of the community com-

plained about its unsightly appearance in violation of para-

graph 6; and displaying various signs without the prior

written consent of plaintiff in violation of paragraph 9.

Gregory McGovern, plaintiffs property manager, sent

a letter to defendant on September 30, 1987, demanding

strict compliance with the lease, specifically paragraphs

1, 4, 6, and 9, by November 1, 1987.

On October 14, 1987, in response to McGovern’s letter,

defendant’s attorneys sent a letter stating that it would

send rent payments to the specified address and that the

window signs would be removed. Defendant also stated

that it was understood that ancillary items could be sold.

Defendant denied that the premises were unsightly. De-

fendant also refused to remove the exterior window signs,

claiming that prior approval had been given. Defendant

further asserted that plaintiff waived any objections by

virtue of the length of time that it had engaged in the

complained of activities without notice of disapproval from

plaintiff. —

Defendant had not complied with plaintiff's demands by

November 1. Although late and not sent to the specified

address in the letter of compliance, McGovern received a

check on November 4. On November 6, McGovern visited

the premises to determine whether the violations set forth

in the compliance letter had been remedied. After finding

that defendant had not taken any steps toward compli-

ance, the November rent check was returned and a 10-day

Notice to Quit was served on defendant.

On November 17, McGovern reported that defendant

had not vacated the premises. At that time, a video tape

was taken of the exterior of the store which showed that

B5

some of the signs were still in place. Further, various

items of merchandise were visible in the store’s window.

giving it a cluttered appearance.

McGovern further reported that both the interior and

exterior of the premises remained in the same unsightly

condition. Items, he noted, that were not health and beau

ty aide related e.g., motor oil, lottery tickets, charcoal,

groceries, household cleaners, electronic equipment, were

still being sold.

Plaintiff filed a complaint for possession of the premises

om November 18, alleging that defendant was in breach

of paragraph 1, 4, 6, and 9 of the lease.

Trial was held on February 3, 1988. On February 9,

final arguments were heard. The trial court found for

defendant with respect to violation of the rent provision

in paragraph 1. On March 25, the trial court entered an

order in favor of plaintiff for possession of the premises.

On July 12, the trial court issued a memorandum of find-

ings nunc pro tunc. There were no written findings with

respect to the unapproved signs.

The trial court found that although there appeared to

be tacit waiver, for almost five years, of the use provi-

sion, plaintiff's letter demanding strict compliance negated

the waiver. The court noted that there was no real at-

tempt at compliance with the use provision. The court

pointed out that paragraphs 13, 19, and 21(d) in the lease

provided that waivers by the lessor were not continuous

and may be negated by a demand for strict compliance,

such as the letter plaintiff sent defendant.

Based on videotapes and witness testimony presented

by both parties, the trial court also found that defendant

failed to comply with the lease requirement that the prem.

NE EEE re

B6

ises be maintained in a clean, sightly and healthy condi-

tion. There was no compliance even after the demand for

strict compliance had been made. This factual issue was,

therefore, resolved in plaintiffs favor.

An appellate court takes a deferential approach to find-

ings made in the trial court on disputed factual issues,

but the scope of review on questions of law is indepen-

dent, not deferential. (Havens v. Miller (1981), 102

Ill.App.3d 558, 567, 57 Ill.Dec. 929, 429 N.E.Zd 1292.) The

trial court is in a better position to determine the credibil-

ity of witnesses. (Nemeth v. Banhalmi (1984), 125 Ill. App.

3d 938, 962, 81 Ill.Dec. 175, 466 N.E.2d 977.) The review-

ing court will not substitute its judgment for that of the

trial court unless an opposite conclusion is against the

manifest weight of evidence. S & D Service, Inc. v. Schu-

bert Condominium (1985), 132 Ill.App.3a i019, 1021, 88

Il].Dec. 163, 478 N.E.2d 478.

We do not find that the court’s decision was against

the manifest weight of evidence. The trial court looked at

each party’s videotapes and heard testimony of witnesses

presented by both parties. We find that there was suffi-

cient evidence to support the trial court’s decision with

respect to the cleanliness issue.

The question of law presented for review by this court

is whether the trial court erred in finding that plaintiff's

letter demanding strict compliance with the lease cured

any prior waivers with respect to use of the premises.

The purpose of the lease was limited to a health and

beauty aide store. Paragraph 4 provides that the lessee

will not allow the premises to be used for any other pur-

pose. Defendant contends that there was no breach since

health and beauty aide stores would sell the various mis-

cellaneous items sold on its premises. Defendant asserts

B7

that, from the outset of the lease, these various and sun-

dry items have been sold.

The evidence reveals that defendant sold such items as

radios, motor oil, circuit testers, paint brushes, cigarette

papers, magazines, lottery tickets, pliers, frozen and canned

foods, and radial tire repair kits.

The issue for a reviewing court to decide is not what

is the common definition of a health and beauty aide store

but whether the trial court’s construction of the term in

the lease was reasonable based on a consideration of its

provisions and language. Belvidere South Towne Center,

Inc. v. One Step Pacemaker, Inc. (1977), 54 Ill. App.3d 958,

961, 12 Ill.Dec. 626, 370 N.E.2d 249.

We do not find that the trial court gave an unreasonable

interpretation to the provision by finding that these items

sold by defendant were beyond the use restrictions in the

lease. We do, however, find that plaintiff waived enforce-

ment of the use provision prior to the time that plaintiff

sent the letter demanding strict compliance.

A lessor may demand strict compliance at a future date

even though it did not do so in the past. (LaSalle Na-

tional Bank v. Helry Corp. (1985), 136 Ill. App.3d 897, 904,

91 Ill.Dec. 472, 483 N.E.2d 958.) A landlord may “simply

notify the tenant that his actions are not consistent with

the lease terms and that further deviations will not be

tolerated and will be followed by termination of the lease.

[Citations.]’” Steven W. Barrick & Associates v. Witz

(1986), 147 Ill. App.3d 615, 620, 101 Ill.Dec. 414, 498 N.E.2d

738.

In the instant case, a letter of compliance was sent to

defendant on September 30, 1987. The letter demanded

that defendant cease in selling items that were outside

B8

of the use provision by November 1, 1987. The trial court

found that the evidence presented was clear that there

was no compliance or even attempted compliance by No-

vember 1. Termination of the lease, therefore, was appro-

priate_under the circumstances. Barrick & Associates, 147

Ill.App.3d at 620, 101 Ill.Dec. 414, 498 N.E.2d 738.

Defendant argues that letters demanding strict compli-

ance are of no legal significance in cases involving viola-

tion of use provisions. This is simply wrong. Plaintiff cor-

rectly cites to cases where a demand for strict compliance

was effective in nullifying previous waivers of use viola-

tions in residential leases. See, 222 East Chestnut Corp.

v. Murphy (1950), 341 Ill.App. 430, 94 N.E.2d 364 (ab-

stract of opinion); Burch v. Hickman (1947), 330 Ill.App.

155, 70 N.E.2d 421 (abstract of opinion).

Next, defendant argues that the test to determine the

effectiveness of the waiver is whether the lessor had full

knowledge of the lessee’s breach. Okey, Inc. v. American

National Bank & Trust Co. (1981), 96 Ill.App.3d 987,

992-93, 52 Ill.Dec. 540, 422 N.E.2d 221, is cited by defen-

dant for this proposition. Okey is distinguishable in that

there a demand for strict compliance was not made upon

the lessee.

Finally, defendant argues that it would be inequitable

and create an unfair advantage to allow plaintiff to take

possession after 4% years into the 5-year lease term after

it has exercised its option to renew for a second 5-year

term. We do not agree. The most glaring inequity would

be to allow a tenant to sell virtually anything in viola-

tion of his lease. According to defendant, a landlord would

have no recourse since demands for compliance would be

’ ineffective with respect to the use provisions.

——_ 2

B9

In appropriate circumstances equity will enjoin forfeiture.

(Kanter & Eisenberg v. Madison Associates (1987), 116

Ill.2d 506, 108 Ill.Dec. 476, 508 N.E.2d 1053.) However,

where a tenant’s wilful acts defy compliance, equity will

not interpose to grant relief from forfeiture. Justine Real-

ty Co. v. American Can Co. (1983), 119 Ill.App.3d 582,

589-90, 75 Ill.Dec. 50, 456 N.E.2d 871; Soltwisch v. Blum

(1973), 9 Ill. App.3d 760, 763-64, 292 N.W.2d [sic.] 742; Bar-

nard v. Hollingsworth (1948), 336 Ill.App. 228, 232, &3

N.E.2d 372.

For the foregoing reasons, the order of the circuit court

of Cook County is affirmed.

AFFIRMED.

LINN and McMORROW, JJ., concur.

Cl

APPENDIX C

IN THE

CIRCUIT COURT OF COOK COUNTY, ILLINOIS

MUNICIPAL DEPARTMENT, FIRST DISTRICT

BAIRD & WARNER, INC.,

Plaintiff,

No. 87 M1-744203 v.

AL-PAR, INC.,

Defendant.

MEMORANDUM OF FINDINGS OF FACT

Trial was held February 3, 1988, and final arguments

were held February 9, 1988. On March 25, 1988, the Court

entered an order in favor of plaintiff, Baird & Warner,

Inc., for possession of the premises at 5301 South Hyde

Park Boulevard, Chicago. That order was based upon the

Court’s determination of factual issues as follows:

1. The store lease dated November 16th, 1982 between

plaintiff and defendant, Al-Par Inc. provides that the pur-

pose of the lease is limited to “Health and Beauty Aids

Store.” By its letter of September 30, 1987, the plaintiff

demanded that the defendant strictly comply with the

terms of the lease, including but not limited to ceasing

the sale of groceries, watches, calculators and other items

going beyond that purpose.

C2

That letter demanded that the defendant comply with

the use clause by November 1, 1987.

The evidence at trial was clear that there was not com-

pliance with the use clause by November 1. The evidence

also shows that the defendant or related companies had

retail establishments to which transfer of the inventory

of items inconsistent with the use clause might have been

made, and the Court also observed that the officers of

the defendant were sophisticated businessmen who had

the benefit of advice of counsel at the inception of the

store lease and during the operations under it.

The Court is aware the plaintiff, over the course of the

lease, appeared to tolerate non-compliance with the use

clause and was of the view that, if properly raised, more

time than thirty days for compliance could have been ap-

propriate; however, the evidence was clear that no real

attempt at compliance with the use clause was made.

Paragraphs 13, 19 and 21(d) provide that waivers by the

landlord are not continuous and that, in effect, any such

waiver may be negated by a demand for strict compliance,

such as made by the lessor’s letter of September 30, 1987.

2. The plaintiffs strict compliance letter of September

30, 1987, also demanded that the defendant comply with

the store lease requirement that the premises be kept in

a “clean, sighty and healthy condition and in good repair.”

The parties presented two video tapes of the premises.

The plaintiff's video tape was made November 17, 1987

and the defendant’s video tape was made in the middle

of December 1987. The November video tape, even though

taken outside of the premises, showed a scene that did

not meet the requirements of the store lease. There was

also supplemental testimony by plaintiff's witnesses as to

the condition of the premises.

C3

The defendant’s December video tape on the other hand

showed premises that were “broom-clean”’ and in the Court’s

view, too perfect to be credible in the conduct of an ac-

tive retail business.

On the basis of the Court’s view of the credibility of

the video tapes and the witnesses, the Court found that

the lease provision had not been complied with after the

notice for strict compliance.

July 12, 1988 :

nunc pro tunc George W. Rothschild

to March 25, 1988 Judge

D1

APPENDIX D

IN THE

CIRCUIT COURT OF COOK COUNTY, ILLINOIS

MUNICIPAL DEPARTMENT, FIRST DISTRICT

BAIRD & WARNER, INC.,

Plaintiff,

No. 87 M1 744203 v.

AL-PAR, INC.,

Defendant.

ORDER FOR POSSESSION

This Cause coming to be heard after trial on the merits,

argument of counsel, and post-trial briefing, and this Court

fully advised in the premises,

IT IS HEREBY ORDERED THAT:

1. Judgment is granted in favor of plaintiff for posses-

sion of the premises at issue located at 5301 South Hyde

Park Boulevard;

2. Execution of this judgment is stayed 30 days;

3. The Court’s memorandum opinion will be filed at a

later date nunc pro tunc.

DATE ENTERED: 3/25/88

D2

/s/ George W. Rothschild

Judge George W. Rothschild

SIDLEY & AUSTIN - 90761

Attorney for Baird & Warner, Inc.

One First National Plaza -

Chicago, Illinois 60603

(312) 853-7000

El

APPENDIX E

STATUTORY PROVISIONS INVOLVED

Ch. 110, § 9-101, Ill. Rev. Stat.

ARTICLE IX. FORCIBLE ENTRY AND DETAINER

PART 1. IN GENERAL

9-101. Forcible entry prohibited

§ 9-101. Forcible entry prohibited. No person shall

make an entry into lands or tenements except in cases

where entry is allowed by law, and in such cases he or

she shall not enter with force, but in a peaceable manner.

Ch. 110, § 9-102, Ill. Rev. Stat.

9-102. When action may be maintained

§ 9-102. (a) When action may be maintained. The per-

son entitled to the possession of lands or tenements may

be restored thereto in the manner hereafter provided:

* * *

4. When any lessee of the lands or tenements, or

any person holding under such lessee, holds posses-

sion without right after the termination of the lease

or tenancy by its own limitation, condition or terms,

or by notice to quit or otherwise.