{ "id": 3148200, "name": "PIONEER TRUST AND SAVINGS BANK et al., Plaintiffs-Appellants, v. LUCKY STORES, INC., d/b/a Eagle Discount Supermarket #242, Defendant-Appellee", "name_abbreviation": "Pioneer Trust & Savings Bank v. Lucky Stores, Inc.", "decision_date": "1980-12-05", "docket_number": "No. 79-1297", "first_page": "573", "last_page": "577", "citations": [ { "type": "official", "cite": "91 Ill. App. 3d 573" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "312 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "57 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5408172 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0388-01" ] }, { "cite": "305 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2460217 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0714-01" ] }, { "cite": "326 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783721 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0915-01" ] }, { "cite": "299 N.E.2d 540", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852498 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0476-01" ] }, { "cite": "260 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 2d 335", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580184 ], "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0335-01" ] }, { "cite": "268 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 238", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2534057 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0238-01" ] }, { "cite": "324 N.E.2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706087 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/1089-01" ] }, { "cite": "297 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2932581 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0502-01" ] }, { "cite": "216 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 2d 169", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2591253 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0169-01" ] }, { "cite": "281 N.E.2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2915089 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0549-01" ] }, { "cite": "362 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 371", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464225 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0371-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11139, "ocr_confidence": 0.879, "pagerank": { "raw": 5.715488650074501e-07, "percentile": 0.9498887772993715 }, "sha256": "204d3cdc3a1dce8f2d712067eb001027696beb4a0a5de1edbfa5c88d6126bd42", "simhash": "1:a41579a4396d2dae", "word_count": 1801 }, "last_updated": "2023-07-14T14:46:24.599710+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PIONEER TRUST AND SAVINGS BANK et al., Plaintiffs-Appellants, v. LUCKY STORES, INC., d/b/a Eagle Discount Supermarket #242, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is an appeal by plaintiffs from a finding for defendant in an action for declaratory judgment concerning obligations of the parties under section 18 of the lease of a store by defendant in plaintiffs\u2019 shopping center. That section, which is entitled \u201cSigns,\u201d is as follows:\n\u201c18. SIGNS\nLandlord does hereby agree to erect and maintain at least one (1) free standing sign identifying the Shopping Center in a location mutually agreeable to Landlord and Tenant, and Landlord shall pay for electrical service and electricity for the operation and lighting of said sign. Tenant shall have the right to install, erect and maintain upon the demised premises all signs necessary or appropriate to the conduct of its business, including signs on Tenant\u2019s free-standing pylon sign tower referred to in Exhibit C hereto and in the plans and specifications to be prepared pursuant to Section 2 hereof.\u201d\nThe record and the briefs of the parties disclose that two electrical signs had been installed in the shopping center and were in operation on a single tower which had been erected by plaintiffs, who also provided the electrical service to the tower for the operation of both signs. The higher of the two, which identified the shopping center, was the freestanding sign mentioned in section 18 of the lease. It was put up by defendant, and plaintiffs erected the owner sign \u2014 which identified its business. It appears that both signs became nonfunctional because of a power failure due to an electrical cable defect and, when defendant failed to respond to plaintiffs\u2019 requests for restoration of electrical service, defendant retained an electrical contractor to repair the defect. It then deducted the cost thereof, in the amount of $2,132.53, from its rent.\nPlaintiffs filed a complaint for declaratory judgment, alleging in pertinent part that it was the responsibility of defendant to repair the defect and requesting that the court make a declaration as to the rights of the parties concerning the \u201crepair of structural breaks in maintaining the free standing sign * \u00b0 * .\u201d The trial court ordered \u201c[t]hat the provisions of section 18 of the lease requiring \u2018the Landlord shall pay for electrical service and electricity\u2019 is clear and unambiguous and therefore provides that the Landlord [plaintiffs] shall pay for the repairs of the electricity, electrical service and cable for said signs involved in this case.\u201d\nOn motion of plaintiffs, that order was vacated and they were granted leave to file an amended complaint, which contained substantially the same allegations as their original complaint but also asserted that defendant owed plaintiffs various sums of money under the lease\u2014 including rent. The amended complaint requested only that the court \u201cdetermine whether defendant has violated the terms and provisions of said lease.\u201d Subsequently, plaintiffs filed an amendment to the amended complaint, asserting in substance that section 18 was orally modified \u201cby mutual consent and overt act\u201d to require defendant to keep the sign it installed in good repair and to pay the electricity and maintenance thereof.\nThe trial court entered an order without an evidentiary hearing providing that under section 18 it was the obligation of plaintiffs \u201cto provide electricity and electrical service for Defendant\u2019s sign\u201d and \u201cto make repairs and maintain the electricity and electrical service for said sign.\u201d Pursuant thereto, the court ordered defendant to refund $549.42 of the $2,132.53 it had deducted from the rent, and it also dismissed without prejudice all other matters in the amended complaint which did not relate to section 18 of the lease. This appeal followed from that order.\nOpinion\nPlaintiffs\u2019 primary contention is that the trial court erred in declaring it was plaintiffs\u2019 responsibility to repair defendant\u2019s sign without hearing evidence on the issues of fact.\nThe entry of a declaratory judgment is authorized \u201cin cases of actual controversy\u201d (Ill. Rev. Stat. 1977, ch. 110, par. 57.1), which has been interpreted to mean a concrete dispute, admitting of an immediate and definitive determination of the parties\u2019 rights, the resolution of which will aid in determination of the controversy or some part thereof (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298).\nIn the instant case, the actual controversy appearing in the pleadings and discussed in the briefs concerns the responsibility of the parties under section 18 of the lease for the repair of the electrical cable defect. Without an evidentiary hearing, the trial court found that it was plaintiffs\u2019 obligation to do so.\nPlaintiffs\u2019 position on appeal is unclear, but in their brief they state that they should have been permitted to present evidence \u201cto ascertain the intention of the parties under the lease.\u201d It thus appears that they are contending that section 18 was ambiguous as to which party was responsible for the repair of the cable break, and that the trial court should have heard evidence as to the intent of the parties in that regard.\nInitially, we note that the rules concerning the construction of written contracts are applicable to written leases. (Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 281 N.E.2d 462; O\u2019Fallon Development Co. v. Reinbold (1966), 69 Ill. App. 2d 169, 216 N.E.2d 9.) Thus, if a lease is unambiguous and contains no uncertain terms, its interpretation is a question of law for the court (see Modern Tackle Co. v. Bradley Industries, Inc. (1973), 11 Ill. App. 3d 502, 297 N.E.2d 688; 12 Ill. L. & Prac. Contracts \u00a7246 (1955)), which will not then resort to rules of construction (Kimes v. Rogers (1975), 25 Ill. App. 3d 1089, 324 N.E.2d 201; Kelly v. Terrill (1971), 132 Ill. App. 2d 238, 268 N.E.2d 885). As stated in First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99, 102, \u201cAn ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning, through indefiniteness of expression, or having a double meaning.\u201d (See also 12 Ill. L. & Prac. Contracts \u00a7211 (1955).) However, whether an ambiguity exists is a question of law to be initially determined by the court before any extrinsic evidence is received (Gaffney v. WUliam J. Burns Detective Agency International, Inc. (1973), 12 Ill. App. 3d 476, 299 N.E.2d 540; 12 Ill. L. & Prac. Contracts \u00a7247 (1955)); but, where a court determines that an ambiguity exists, extrinsic evidence may be introduced by the parties and considered by the court in ascertaining the true meaning of the contract (Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 326 N.E.2d 33; Joseph v. Joseph (1973), 15 Ill. App. 3d 714, 305 N.E.2d 19).\nIn the instant case, we think that section 18 of the lease is unclear as to who was responsible for the cable repairs and, more specifically, we are of the belief that the language does not support the finding of the trial court that plaintiffs were obligated \u201cto provide electricity and electrical service for Defendant\u2019s sign\u201d (emphasis added); and \u201cto make repairs and maintain electricity and electrical service for said sign.\u201d As we view that section, it contains two provisions \u2014 (1) that plaintiffs were to erect and maintain a freestanding sign, identifying the shopping center (which they did) and were to pay for the electrical service and electricity for the operation and lighting of said sign; and (2) that defendant had the right \u201cto install, erect and maintain other signs necessary for its business, including signs on Tenant\u2019s free-standing pylon sign tower referred to in exhibit C hereto and in the plans and specifications to be prepared pursuant to section 2 hereof.\u201d Exhibit C contains no reference to \u201cTenant\u2019s free-standing pylon sign tower\u201d but does state that plaintiffs\u2019 work shall include the furnishing and complete installation of the following: \u201c(1) Sign tower structure and foundation with necessary primary electrical. Sign will be furnished and installed by Tenant.\u201d While it is clear from the above that plaintiffs were required to pay for the electrical service and electricity for its freestanding sign, we see no language in section 18 justifying the finding of the court that plaintiffs were required to provide electricity and electrical service for defendant\u2019s sign or to make repairs and maintain electricity and electrical service for that sign.\nWe are thus of the opinion that the lease is unclear as to which party was responsible for the repair of the cable defect and that the trial court should have conducted an evidentiary hearing to determine the intent of the parties in that respect.\nIn the light of this holding, the remaining portion of the order appealed from which, in effect, approved the deduction from rent by defendant of $1,583.11 of the expense incurred in the repair of the cable defect, must be vacated for determination on remandment.\nPlaintiffs also contend that the trial court improperly dismissed their amended complaint \u201cas it pertains to matters not relating to section 18 o o o \u201d Thg amended complaint asserted claims for additional monies due \u2014 among other things, rent, insurance, electricity, and a \u201ccommon area charge.\u201d In that order appealed from, the court dismissed without prejudice those additional claims. In their brief, however, plaintiffs do not support their contention by argument or citation of authority. We will thus not consider this contention, as Supreme Court Rule 341(e)(7) (Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7) provides, in pertinent part, that \u201c[pjoints not argued [in appellants\u2019 brief] are waived.\u201d (See also Collins v. Westlake Community Hospital (1974), 57 Ill. 2d 388, 312 N.E.2d 614; 2 Ill. L. & Prac. Appeal and Error \u00a7557 (1953).) In any event, in view of our holding that this matter is to be remanded, we conclude that no prejudice has resulted as the matter will still be before the trial court.\nAccordingly, the order appealed from is reversed, and this matter is remanded for further proceedings consistent with the content of this opinion.\nReversed and remanded.\nLORENZ and MEJDA, JJ., concur.\nPioneer Trust and Savings Bank, under Land Trust No. 11056 (Lessor), and Salvatore Di Mucci, sole beneficiary under the trust, will be termed as plaintiffs in this opinion.\nThe order was entered on the hearing of \u201cDefendant\u2019s Motion to Dismiss Amended Complaint and Amendment thereto,\u201d but it appears that the motion was never ruled upon.\nNo plans and specifications appear in the record.\nThe record is silent as to the reason the trial court made the implicit finding that $549.42 of defendants\u2019 $2,132.53 rent deduction was improper.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Rubinelli & Altieri, of Chicago, for appellants.", "Howard E. Gilbert, of Chicago, for appellee." ], "corrections": "", "head_matter": "PIONEER TRUST AND SAVINGS BANK et al., Plaintiffs-Appellants, v. LUCKY STORES, INC., d/b/a Eagle Discount Supermarket #242, Defendant-Appellee.\nFirst District (5th Division)\nNo. 79-1297\nOpinion filed December 5, 1980.\nRubinelli & Altieri, of Chicago, for appellants.\nHoward E. Gilbert, of Chicago, for appellee." }, "file_name": "0573-01", "first_page_order": 595, "last_page_order": 599 }