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Elward v. Mancuso Chevrolet

MARCH 20, 1970.

JOSEPH F. ELWARD, PLAINTIFF-APPELLANT,

v.

MANCUSO CHEVROLET, INC., A CORPORATION OF DELAWARE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. WAYNE W. OLSON, Judge, presiding. Affirmed.

ALLOY, J.

Rehearing denied April 28, 1970.

The record in this cause discloses that Joseph F. Elward owned a commercial building at 8102-4 Lincoln Avenue, Skokie, Illinois. The building was leased to Fritz Anderson Company in September 1954 in the lease which expired October 31, 1959. Fritz Anderson Company used the building as a sheet metal shop. Fritz Anderson Company thereafter on November 30, 1956, subleased the premises to defendant Mancuso Chevrolet, Inc. Defendant as sublessee immediately in December of 1956 began using the property as an autobody repair shop. In the original lease between Fritz Anderson Company and the plaintiff, a $550 security deposit was made and defendant Mancuso Chevrolet, Inc., took over such deposit as assignee at the time of the subleasing. The Fritz Anderson Company lease, which had been assigned to defendant, expired by its terms on October 31, 1959. Plaintiff then made a new lease with Mancuso Chevrolet, Inc. for the period commencing on November 1, 1959, and extending to October 31, 1964. The new lease to defendant began on November 1, 1959, at which time defendant was operating an autobody repair shop in the building. It continued to operate an automobile repair shop in the building during the period of the lease. The lease provided by its terms that it could be occupied "for any commercial purpose that is lawful under the ordinances of the Village of Skokie." The lease also provided as follows:

"Third: Lessee shall not . . . allow said premises to be used for any purpose that will increase the rate of insurance thereon. . . ."

By the terms of the lease it was provided that a rental of $305 per month was to be paid during the fifth year of the lease. The new lease also provided that the security deposit of $550 which was originally made by Fritz Anderson Company, was to be retained by plaintiff as security deposit for the new lessee, Mancuso Chevrolet, Inc. Such deposit, by the terms of the lease could be applied in payment of any sums due from lessee under its terms, and lessor was to return any portion of the deposit not previously applied in payment of such sums due.

The building had been insured by plaintiff for $20,000 through a certain agency from the time the Fritz Anderson Company lease began in 1954. At that time the building was rated "sheet metal shop" and when the defendant took over the building as a sublessee in 1956, defendant began using the building as an "autobody repair shop." The insurance rate for an autobody repair shop is higher than the rate for a sheet metal shop. The record shows that the insurance company did not discover the change in the use of the building until the spring of 1961 and at that time they increased the premium for the building insurance to reflect the new use of the building as an autobody repair shop. The net result was to increase plaintiff's insurance costs on the building during the balance of the term of the 1959 lease by $209.95.

On August 27, 1964, defendant wrote plaintiff and stated that they expected to vacate the premises at the termination of the term of the lease and enclosed a check for $60 which defendant explained could be used together with the $550 deposit to make a total of $610 in rent (at $305 per month for September and October). The check contained the notation "balance of all rental due on property located at 8102 Lincoln Avenue, Skokie, Illinois, to October 31, 1964." Plaintiff did not cash the check but wrote defendant that there might be an additional amount owing by defendant due to the increase in insurance costs on the building because of defendant's use of the premises. On September 28, 1964, plaintiff wrote defendant explaining there was an additional $209.95 due by reason of the increased insurance costs. On November 13, 1964, plaintiff again wrote defendant and said that the $209.95 had been deducted from the security deposit and thus there was still $209.95 due on the rent for October. On November 23, 1964, plaintiff wrote that he would file suit if he received no reply. Defendant did not reply to any of the letters. On July 14, 1965, plaintiff filed suit and obtained judgment by confession (under a clause in the lease) on July 16, 1965. Defendant moved to open up the judgment; and on April 21, 1966, the judgment was opened up and defendant was given leave to appear and plead.

Thereafter, there were a series of continuances from June 20, 1966, to October 10, 1966, to December 15, 1966, and to March 28, 1967. The record does not indicate who requested the continuances and defendant in its brief states that they were by agreement after a request by plaintiff. Plaintiff has denied that this was so and referred to the fact that the record makes no showing as to who requested the various continuances. On March 2, 1967, plaintiff filed a motion for summary judgment and attached exhibits setting forth most of the facts recited in this opinion. On April 10, 1967, defendant also moved for summary judgment. A number of continuances thereafter were made from May 17, 1967, to June 1, 1967, to July 12, 1967, when the case was continued to an undetermined date. The record does not disclose which party requested these continuances and plaintiff contends it was by mutual agreement while defendant states that it was plaintiff who first requested the continuances in which defendant concurred. Thereafter, there was a new setting and a continuance to October 10, 1967, and thereafter to November 17, 1967, then to December 14, 1967, and again to February 28, 1968. On February 28, 1968, the case was again continued to March 22, 1968, and on March 22, 1968, the trial judge specifically set the matter for trial on July 31, 1968. From July 31, 1968, the case was continued to October 9, 1968, and it was placed upon the trial calendar.

By October 9, 1968, the case had been continued in one manner or another approximately 15 times. Plaintiff's attorney was the first one to appear before the court on October 9, 1968, and such attorney advised the judge that there were two motions for summary judgment which had not been heard and that plaintiff's attorney and defendant's attorney were seeking to work out an agreed statement of facts, and such attorney thereupon requested another continuance. The trial judge refused to grant such continuance. Plaintiff's attorney then requested that the court hear the motions for summary judgment or transfer the case to another judge who could hear the motions. The trial judge denied such request. The trial judge then permitted plaintiff's attorney to call the attorney for the defendant and the defendant's attorney came to the courtroom. Plaintiff's attorney stated that they were ready to argue the motions for summary judgment but the trial judge declined to hear such motions and indicated that the trial should proceed. Plaintiff's attorney thereupon sought to continue the case to the next day, but the trial judge told the attorney that if he could not begin presenting evidence at that time, the trial judge would dismiss the case. Plaintiff's attorney had no evidence to present and the judge entered an order as follows:

"October 9, 1968, Order

"Not prepared for trial.

"It is ordered by the Court that this cause be and the same is hereby dismissed out of this Court with prejudice."

Thereafter, on October 28, 1968, the plaintiff's attorney moved to vacate the October 9, 1968, order dismissing the case. Defendant filed no counterpleadings or affidavit. The motion to vacate the dismissal order was denied by the court and plaintiff has appealed to this Court.

It is thus apparent that the basic issue in the case is whether the trial court abused its discretion when it dismissed the case on October 9, 1968, ...


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