{ "id": 5636432, "name": "KEEP PRODUCTIONS, INC., Plaintiff-Appellant, v. ARLINGTON PARK TOWERS HOTEL CORPORATION, Defendant-Appellee", "name_abbreviation": "Keep Productions, Inc. v. Arlington Park Towers Hotel Corp.", "decision_date": "1977-05-11", "docket_number": "No. 76-649", "first_page": "258", "last_page": "265", "citations": [ { "type": "official", "cite": "49 Ill. App. 3d 258" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "332 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2622140 ], "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0140-01" ] }, { "cite": "163 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. 2d 94", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328220 ], "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0094-01" ] }, { "cite": "123 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill. App. 2d 536", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5127933 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/3/0536-01" ] }, { "cite": "332 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 647", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2624247 ], "year": 1954, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0647-01" ] }, { "cite": "333 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2626517 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0631-01" ] }, { "cite": "437 F.2d 231", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2209908 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/437/0231-01" ] }, { "cite": "499 F.2d 220", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1171083 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/499/0220-01" ] }, { "cite": "359 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2893176 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "229" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0223-01" ] }, { "cite": "207 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 2d 285", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2602419 ], "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/59/0285-01" ] }, { "cite": "485 F.2d 153", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 669823 ], "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/f2d/485/0153-01" ] }, { "cite": "154 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766109 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0272-01" ] } ], "analysis": { "cardinality": 849, "char_count": 18552, "ocr_confidence": 0.892, "pagerank": { "raw": 3.881737031416043e-07, "percentile": 0.9009347649225882 }, "sha256": "49da7ff2ee7a7bd78b69146164d38595a8c6ad68c17c1237aa18bb1906edcd35", "simhash": "1:31e6acbe9f36ecc4", "word_count": 2977 }, "last_updated": "2023-07-14T15:10:40.599780+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KEEP PRODUCTIONS, INC., Plaintiff-Appellant, v. ARLINGTON PARK TOWERS HOTEL CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE JIGANTI\ndelivered the opinion of the court:\nThis action was brought for a mandatory injunction to restore plaintiff Keep Productions, Inc., to possession of the premises commonly known as the Arlington Park Theatre, pursuant to the provisions of a license agreement entered into between plaintiff as licensee and defendant Arlington Park Towers Hotel Corporation as licensor and owner of the premises. On March 31, 1976, on plaintiff\u2019s motion and verified complaint and after notice and an evidentiary hearing, the trial judge, sitting without a jury entered a preliminary mandatory injunction restoring plaintiff to the use and occupancy of the premises. Thereafter defendant filed a petition to vacate the order of March 31 and on April 19, 1976, after three days of evidentiary hearings, the court entered an order vacating the preliminary injunction, nunc pro tunc April 15, 1976. It is from this order that plaintiff appeals, raising questions as to the admissibility and sufficiency of the evidence considered by the court and contending that it was error to apply the court\u2019s findings prospectively so as to terminate the remainder of the contract. Defendant filed a notice of interlocutory cross-appeal claiming that the court erred in not dissolving the injunction for want of equity on the ground that plaintiff had an adequate remedy at law.\nPlaintiff, Keep Productions, Inc. (\u201cKeep\u201d), as licensee, and defendant, Arlington Park Towers Hotel Corporation (\u201cAPTHC\u201d), entered into a license agreement on July 30, 1975, concerning the use of the Arlington Park Theatre, owned by defendant. The agreement was to expire on September 20, 1976, or earlier in the event of default as described in the agreement. The license agreement provides in pertinent part: that in exchange for the right to use, occupy and possess certain portions of the theatre (and box office and adjacent parking lot), Keep would pay APTHC a license fee of *49,000, payable in monthly installments of *7,000 for seven months; that the theatre be used \u201conly for the presentation of legitimate live theatrical productions, fashion shows, and, with prior written consent of the licensor, which consent shall not be unreasonably withheld, other entertainment events and no other use\u201d; and Keep was to conduct such productions \u201con the average, six (6) performances per performance week\u201d and that Keep would be permitted to be closed for \u201ca cumulative maximum period of nine (9) weeks\u201d during the term of the agreement, but not longer than \u201ca consecutive period of 21 days, unless such closing is the result of casualty, acts of God or failure of a principal actor to appear for a scheduled performance.\u201d\nKeep\u2019s first production at the theatre in August 1975 was a play starring Lana Turner and Louis Jordan, described by Keep\u2019s president David Lonn as \u201cvery famous superstars,\u201d which cost *33,000 per week to produce. Other plays presented featured show business personalities variously described by Lonn as \u201cAcademy Award winners,\u201d \u201cwell-known\u201d actors, stars of the \u201cfirst rank\u201d or the \u201cvery first magnitude,\u201d and averaged about *20,000 per week in production costs. Adult ticket prices ranged from \u201caround *4 to *15 per performance.\nOn or about March 4,1976, defendant, taking the position that plaintiff had breached the license agreement by allowing the theatre to remain closed for a total number of days in excess of that allowed by the agreement, barred Keep from the premises by placing locks and chains on the doors. Defendant then served plaintiff with notice that the license agreement had been breached and terminated. On March 19,1976, Keep filed a complaint praying for the issuance of a mandatory injunction restoring it to the theatre premises and enjoining APTHC from depriving Keep of possession, use and occupancy of the premises, and for damages. On March 26, APTHC filed its answer, generally denying plaintiff\u2019s allegations and stating that plaintiff had an adequate remedy at law. Three days later an evidentiary hearing was commenced. On March 31, 1976, the court made specific findings of fact and entered a preliminary injunction restoring Keep to the use and occupancy of the theatre. The court determined that in measuring down time, a \u201cperformance week\u201d was a six day week excluding Mondays; that Keep was entitled to be closed for a \u201ccumulative maximum period of nine (9) weeks\u201d which meant 54 days; that Keep had been impermissibly closed for a total of 45 days, leaving nine down days remaining. Pursuant to the court order of March 31,. 1976, APTHC restored Keep to use and occupancy of the theatre, and the period of time for computing impermissible down time recommenced, having been tolled from March 4 through March 30.\nKeep resumed use and occupancy of the theatre on March 31,1976, but no performance was presented that day, nor on April 1, 2, 3 or 4, 1976. April 5 was a Monday. On April 6 and 7, performances by the Free Street Theatre was presented. The Free Street Theatre, characterized as an \u201calternative,\u201d \u201cenvironmental\u201d and \u201cpublic\u201d theatre by its founder, consists of a group of actors, singers, dancers and musicians and engages in various scripted and improvisational activities, including some audience participation. The production contract provided for an indefinite run of at least six performances per week, and further required Keep to give at least two weeks notice of cancellation.\nThere was no advance notice nor advance ticket sales for the performances of April 6 and 7. No admission was charged for these presentations, but donations were solicited by the performers from the audience. These donations were solely for the benefit of the Free Street Theatre. On April 8, 1976, a bomb exploded at the theatre, damaging it to the extent that it could not be occupied safely. Thereafter, on April 12, APTHC filed a petition to vacate the preliminary injunction, asserting that Keep had violated the license agreement since the injunction, and reasserting the existence of an adequate remedy at law. The court heard evidence on three consecutive days on the issue of whether the Free Street Theatre was a \u201clegitimate live theatrical production\u201d within the meaning of section 4.01 of the license agreement. An evidentiary hearing was held at which parol evidence was introduced over plaintiff\u2019s objection, to determine the proper construction of the phrase \u201clegitimate live theatrical production\u201d as within the contemplation of the parties when they entered into the agreement. The court heard testimony by an officer of the parent corporation of APTHC, Keep\u2019s president, and attorneys for the parties who had participated in the negotiations. None of the witnesses could recall with specificity the discussions which took place during negotiations. There was conflicting testimony regarding the extent to which \u201cname stars\u201d and \u201cthe kind of shows that had been in the theatre before\u201d influenced the use of the phrase \u201clegitimate live theatrical productions\u201d. There was also testimony by Keep\u2019s president, David Lonn, to the effect that \u201clegitimate theatre\u201d denoted a five performance, other than vaudeville or concerts; that a \u201clegitimate\u201d play is one that is based on an outline or a script that tells a story; and that \u201clegitimate\u201d by definition does not exclude commingling of actors and audience, or improvisational work.\nAt the conclusion of the evidentiary hearing, the court held that the performances given by the Free Street Theatre on April 6 and 7 were not \u201clegitimate live theatrical productions\u201d within the contemplation of the parties under the license agreement nor within the meaning of the preliminary injunction order of March 31, 1976, and that the performances scheduled after April 7, 1976, likewise would not have satisfied the requirements of the license agreement or the preliminary injunction and therefore the theatre had been closed inexcusably for a sufficient number of days to exhaust the total permissible under the agreement. The court accordingly dissolved the preliminary injunction, restored APTHC to the exclusive possession of the theatre and enjoined Keep from further occupying the premises. This interlocutory appeal and cross-appeal followed.\nPlaintiff Keep contends that the trial court erred in admitting parol evidence to clarify the term \u201clegitimate live theatrical production\u201d since the term was not ambiguous as a matter of law and has a plain and clear meaning. Even assuming that the phrase was ambiguous, Keep contends that the court\u2019s holding was contrary to the manifest weight of the evidence in that there was no evidence of any explicit discussion or statement regarding \u201cany specific representation concerning the meaning of the term in question.\u201d Keep asserts its position that since the court based its findings on the contemplation of the parties when they entered the license agreement, and the evidence showed that APTHC was more than adequately. represented by counsel, such high degree of legal expertise \u201cmilitates against fence-mending variations of a negotiated contract.\u201d Keep argues that had APTHC specifically understood the phrase \u201clegitimate live theatrical production\u201d as clearly excluding a certain type of entertainment, e.g., Free Street Theatre, then surely they would have clarified the term during the drafting process. Keep apparently concludes that assuming there is an ambiguity in the contract for the purpose of justifying the admission of parol evidence, the court\u2019s construction of the allegedly ambiguous phrase is against the manifest weight of the evidence since the evidence showed that APTHC was adequately represented by counsel who would have insisted on using different language had the phrase used not adequately expressed what the parties contemplated. Therefore, the manifest weight of the evidence does not support a finding that the Free Street Theatre was not the type of production envisioned by the parties since there was no evidence that an exclusion of performances of the Free Street Theatre genre was contemplated. The term \u201clegitimate live theatrical production\u201d therefore should be defined in terms of the dictionary definition, supported by the expert testimony presented by Keep\u2019s president, David Lonn, which was the only direct evidence in the record as to the meaning of the phrase. The presentations of the Free Street Theatre fell within those definitions. However, Keep apparently does not argue with the court\u2019s finding that the Free Street Theatre would not be \u201clegitimate live theatrical production\u201d if that phrase was properly defined by the court in terms of the kind of shows involving \u201cname stars\u201d that had been in the theatre before.\nPlaintiff argues that absent an ambiguity in the terms of an agreement, no parol evidence is admissible. However, the primary object of the construction of a contract is to give effect to the intention of the parties. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683.) This can be accomplished by focusing on the words used by the parties and then drawing back and testing their meaning in the context of the entire contract, the circumstances surrounding its execution and the manner in which the parties interpreted it by their performance. (International Minerals & Chemical Corp. v. Husky Oil Co. (7th Cir. 1973), 485 F.2d 153, 158.) In order to be able to enforce a contract according to the sense which the parties mutually understood at the time it was made, the court must give greater deference to the parties\u2019 intent than to any particular words they may have used to express that intent. (Stevens v. Fanning (1965), 59 Ill. App. 2d 285, 290, 207 N.E.2d 136.) Initially, the court must determine whether this intent can be established by the words of the contract alone, or whether some recourse must be had to extrinsic evidence.\n\u201cIf the court is satisfied that the parties have expressed themselves and their intent clearly, the agreement is pronounced unambiguous and is enforced as written. However, to determine this lack of ambiguity, the courts frequently admit extrinsic evidence provisionally, not for the purpose of varying or contradicting\u2019 the writing, but to determine the fact that it is indeed unambiguous.\u201d (Footnotes omitted.) (4 Williston, Contracts \u00a7601, at 311 (3d ed. 1961).)\nThe court properly admitted relevant parol evidence of the negotiations between the parties and the context within which the term \u201clegitimate live theatrical productions\u201d was used to determine initially if there was an ambiguity in the contract and if there was, to then determine the proper resolution of that ambiguity. (3 Corbin, Contracts \u00a7579, at 421-22 (1960); Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 229, 359 N.E.2d 745; Lucie v. Kleen-Leen, Inc. (7th Cir. 1974), 499 F.2d 220; Ortman v. Stanray Corp. (7th Cir. 1971), 437 F.2d 231.) Having found such uncertainty as to the implication of the use of \u201clegitimate live theatrical productions\u201d the court was justified in admitting extrinsic evidence so long as it did not change or vary the agreement. Baird & Warner v. Ruud (1976), 45 Ill. App. 3d 223, 229, 359 N.E.2d 745; Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 333 N.E.2d 50.\nOnce the court admits parol evidence to determine the intention of the parties from all facts surrounding the formulation of the contract, the construction, given the contract by the trial court will not be set aside unless contrary to the manifest weight of the evidence. (Herbert Shaffer Associates, Inc. v. First Bank (1975), 30 Ill. App. 3d 647, 653, 332 N.E.2d 703; Spitz v. Brickhouse (1954), 3 Ill. App. 2d 536, 123 N.E.2d 117.) Varying inferences could have been drawn from the evidence presented as to whether the parties intended the phrase \u201clegitimate live theatrical productions\u201d to reflect their discussions regarding the types of plays which had been at Arlington Park Theatre previously and the use of name stars. The court also heard evidence regarding the insertion of the clause allowing fashion shows, and the addition of a \u201cprior written consent\u201d clause when the subject of rock concerts came up during negotiations. The conclusions of the court are entitled to the same weight as a jury verdict and will not be upset unless manifestly against the weight of the evidence. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518.) There was ample evidence to support the conclusion of the court that the performances by the Free Street Theatre on April 6 and 7,1976, were not \u201clegitimate live theatrical productions\u201d as contemplated by the parties when they entered the license agreement. We therefore will not disturb the judgment of the trial court in finding that plaintiff had not complied with the terms of the license agreement by presenting the Free Street Theatre performances.\nPlaintiff next contends that the trial corut erred in applying its findings of fact prospectively. The court, having decided that the performances of the Free Street Theatre were not \u201clegitimate live theatrical productions\u201d within the contemplation of the parties under the agreement, went on to hold that the performances scheduled after April 7, 1976, would not have satisified the requirements of the license agreement and therefore the theatre would be inexcusably closed in excess of the number of down days permissible under the agreement. Accordingly, the trial court enjoined Keep from further occupying the premises.\nThe court had heard testimony that Keep had no productions other than the Free Street Theatre scheduled to perform at any time after the preliminary injunction was issued. Free Street Theatre performances were to continue until at least May 4, 1976 and possibly up until September 20, 1976, the expiration date of the license agreement. The production contract with Free Street Theatre was to run indefinitely, and was cancellable only upon twp weeks prior notice. Illinois courts have recognized that when a party to an executory contract manifests a definite and unequivocal intent that it will not render its performance under the contract when the time fixed for performance arrives, the other contracting party may treat the contract as ended.\n\u201cWhen a party bound by an executory contract gives notice of his intention not to comply with his obligations, the other contracting party may accept such notice as an anticipatory breach and treat the contract as ended without waiting for the completion of the contract by its terms. [Citations.]\u201d (Stonecipher v. Pillatsch (1975), 30 Ill. App. 3d 140, 142, 332 N.E.2d 151.)\nThe evidence adduced at the hearing clearly showed that Keep was committed to continue with the Free Street Theatre and could not cancel that obligation without giving two weeks prior notice. Keep argues that the explosion at the theatre premises on April 8 again tolled the running of the terms of the agreement, and that the term would not resume running until Keep was served with notice from APTHC of an estimate of the length of time needed for repairs. Keep takes the position that it could have terminated the contract with the Free Street Theatre during this time and been ready with another production. We are unconvinced, however, that the explosion of a bomb at the theatre should be such a propitious occurrence as to give plaintiff new life in the face of what would otherwise be adjudged conduct terminating the contract. It was well within the discretion of the trial court to determine that Keep could not comply with the terms of the license agreement and therefore to treat the total number of permissible down days as exhausted.\nDefendant APTHC cross-appeals on the ground that the court erred in failing to dissolve the injunction for want of equity since plaintiff had an adequate remedy at law. However, we view that question as contingent upon the outcome of this appeal, and in light of our conclusion do not find that it warrants our attention.\nFor the foregoing reasons, the court\u2019s order nunc pro tunc April 15,1976 is affirmed, and the cross-appeal is dismissed.\nAffirmed.\nMcNAMARA, and McGILLICUDDY, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE JIGANTI" } ], "attorneys": [ "Howard C. Emmerman, of Rudnick & Wolfe, of Chicago, for appellant.", "Oscar O. D\u2019Angelo, Martin M. Ruken, and Robert J. Rubin, all of Chicago (Friedman & Koven, of counsel), for appellee." ], "corrections": "", "head_matter": "KEEP PRODUCTIONS, INC., Plaintiff-Appellant, v. ARLINGTON PARK TOWERS HOTEL CORPORATION, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 76-649\nOpinion filed May 11, 1977.\nHoward C. Emmerman, of Rudnick & Wolfe, of Chicago, for appellant.\nOscar O. D\u2019Angelo, Martin M. Ruken, and Robert J. Rubin, all of Chicago (Friedman & Koven, of counsel), for appellee." }, "file_name": "0258-01", "first_page_order": 280, "last_page_order": 287 }