No. 3--96--0593
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
AZEEM AHSAN, ) Appeal from the Circuit Court
) for the 12th Judicial Circuit
Plaintiff-Appellant, ) Will County, Illinois
)
)
v. ) No. 95-L-2603
)
)
EAGLE, INC., ) Honorable
) Thomas Ewert
Defendant-Appellee. ) Judge, Presiding
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JUSTICE LYTTON delivered the opinion of the court:
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Plaintiff tenant, Azeem Ahsan, brought suit alleging breach of
contract, breach of covenant of quiet enjoyment and constructive
eviction. Defendant landlord, Eagle, Inc., filed a motion to
dismiss pursuant to section 2-615 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-615 (West 1994)), claiming plaintiff's
amended complaint failed to allege facts that would entitle
plaintiff to recovery. The trial judge granted defendant's motion,
and plaintiff appealed. We reverse and remand.
A complaint should be dismissed under section 2--615 of the
Illinois Code of Civil Procedure (735 ILCS 5/2--615 (West 1994))
only when it clearly appears that no set of facts could be proved
under the pleadings which would entitle plaintiff to relief. Lagen
v. Balcor Co., 274 Ill. App. 3d 11, 16, 653 N.E.2d 968, 972 (1995).
Factual allegations within the complaint are to be interpreted in
the light most favorable to plaintiff. Suarez v. Pierard, 278 Ill.
App. 3d 767, 769, 663 N.E.2d 1039, 1041 (1996). On appeal from a
trial court order dismissing a case pursuant to section 2-615, this
court conducts de novo review. Suarez, 278 Ill. App. 3d at 769,
663 N.E.2d at 1041.
Plaintiff's amended complaint alleges that he and defendant
were parties to a written lease for the premises located at 15 East
Cass Street in Joliet, Illinois. After the lease expired, the
parties entered into a month-to-month tenancy which lasted until
February 28, 1990. During the term of the tenancy, plaintiff paid
rent and followed the conditions of the lease. Also during the
tenancy, the roof began to leak. Defendant promised to repair the
leak but failed to do so. Eventually the building was condemned by
the City of Joliet, and plaintiff was forced to move. As a
proximate result of defendant's acts and omissions, plaintiff
claims a loss of revenue and other damages.
Defendant agrees with plaintiff that the terms of the written
lease govern the rights and obligations of the parties after its
expiration. However, defendant contends that under the terms of
the agreement: plaintiff leased the premises located at 15 East
Cass Street; Illinois common law imposes no duty on a commercial
landlord to effect repairs to demised premises; the lease
affirmatively required plaintiff to make all necessary repairs to
the premises; and plaintiff failed assert the requisite facts in
support of his claim that defendant entered into a binding oral
agreement to make the repairs.
Plaintiff argues that dismissal was improper because a genuine
issue of material existed as to the amount of property demised
under the lease, i.e., whether the lease demised the entire
premises located at 15 East Cass Street.
We hold that the trial judge erred in dismissing plaintiff's
amended complaint. The principle objective in construing a
contract is to determine and give effect to the intention of the
parties at the time they entered into the contract. USG Corp. v.
Sterling Plumbing Group, Inc., 247 Ill. App. 3d 316, 318, 617
N.E.2d 69, 70 (1993). The "four corners" rule states that if a
contract is clear on its face, no evidence outside the contract may
be considered. Home Insurance Co. v. Chicago & Northwestern
Transportation Co., 56 F.3d 763, 767 (7th Cir. 1995). Whether any
ambiguity exists is a question of law to be determined by the
court. Meyer v. Marilyn Miglin, Inc., 273 Ill. App. 3d 882, 888,
652 N.E.2d 1233, 1237 (1995).
In recent years, however, courts have come to disfavor the
strict application of the "four corners" rule and the limitation on
the use of parole evidence. See Meyer v. Marilyn Miglin; In re
Keene Corp., 188 B.R. 881 (1995), citing AM International, Inc. v.
Graphic Management Associates, Inc., 44 F.3d 572, 575 (7th Cir.
1995). Specifically, the "four corners" rule has two flaws: it
assumes precision in language that cannot exist, and it requires
the judge to determine the true intent of the parties in a
transaction that is removed in time and circumstance. URS Corp. v.
Ash, 101 Ill. App. 229, 234, 427 N.E.2d 1295, 1299 (1981). "The
meaning of words cannot be ascertained in a vacuum." URS Corp.,
101 Ill. App. 3d at 234, 427 N.E.2d at 1299, quoting Ortman v.
Stanway Corp., 437 F2d 231 (7th Cir. 1971).
We join the current trend in Illinois law which allows a court
to consider parole evidence provisionally to determine if an
agreement that appears to be clear on its face is actually
ambiguous. See Meyer, 273 Ill. App. 3d at 889, 652 N.E.2d at 1238.
This extrinsic ambiguity exists when someone who knows the context
of the contract would know if the contract actually means something
other than what it seems to mean. Home Insurance, 56 F.3d at 768.
A party that asserts extrinsic ambiguity is entitled to present to
the court objective evidence, i.e. evidence that cannot be faked
and can be supplied by disinterested third parties. Home
Insurance, 56 F.3d at 768. If, after screening the objective
evidence, the court concludes that ambiguity exists as a matter of
law, the parties will be permitted to present evidence of their
intent to the trier of fact. Home Insurance, 56 F.3d at 768.
Here, plaintiff alleged the existence of facts that preclude
dismissal. The amended complaint claims that prior to leasing the
building to plaintiff, defendant gave a tour of the building that
only included the first floor of 15 East Cass Street. After
signing the lease, plaintiff had access to the first floor, but
never had access to the second floor or roof. Plaintiff has
claimed that the leakage was in a part of the premises for which
plaintiff had no access, and defendant agreed to fix the problem.
Viewing these allegations in the light most favorable to
plaintiff, we find that there is ambiguity as to whether the lease
demised all of the premises or only a portion of the premises.
This ambiguity precludes dismissal because it appears that a set of
facts could be proved which would entitle plaintiff to relief.
The judgment of the circuit court of Will County is reversed
and this cause is remanded for further proceedings.
Reversed and remanded.
BRESLIN and HOMER, JJ., concur.