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Burnex Oil Co. v. Floyd

MARCH 17, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.


This is the second appeal in this case. This time, defendants appeal from a judgment for $22,575 entered against them and from the denial of their motion for a new trial.

On October 15, 1960, an incorporator of O'Hare Garage, Inc., entered into an installment contract to purchase the property located at 9230 Belmont Avenue, Franklin Park, Illinois. The corporation was organized for the purpose of storing and servicing automobiles for those persons taking business trips by air at nearby O'Hare Field. In order to supply gasoline and oil for the cars, O'Hare Garage entered into an agreement with plaintiff, a wholesale distributor of Phillips Petroleum products, leasing the premises to plaintiff for ten years. The lease required that plaintiff install tanks, pumps, and any other equipment necessary for the management of a gasoline service station, and to pay O'Hare a rental of one cent per gallon of gasoline pumped. On the same date, plaintiff leased the property back to O'Hare for the same ten-year period. This second lease provided that O'Hare would use the premises solely for the purpose of receiving, storing, and selling petroleum products and motor vehicle accessories. Although O'Hare was required to pay plaintiff $1.00 per month as rent, it was not required to buy any petroleum products from plaintiff.

From October, 1960 to September, 1962, O'Hare Garage did buy its petroleum requirements from plaintiff. In September, 1962, when the business of O'Hare Garage became unprofitable, plaintiff and O'Hare agreed to terminate the second lease.

O'Hare Garage sold the premises to defendants, Floyd and Homeyer, in September, 1962, and thereafter, defendants operated the premises as a service station. Despite a dispute over the price they were paying, defendants purchased their gasoline from plaintiff until April, 1964, but without any contract so to do. At that time, defendants informed plaintiff that they would be buying gasoline from Mobil in the future, and that plaintiff should remove its equipment, including the tanks, pumps, etc., from the premises. Plaintiff refused to do so, claiming rights under its 1960 agreement with O'Hare Garage. When plaintiff did not remove the equipment, defendants had it removed and stored on the premises, repeatedly requesting plaintiff to take it away. Mobil's equipment was installed in its place.

Plaintiff's amended complaint contained two counts. Count I sought damages for conversion of its equipment, and Count II asked for damages for wrongful eviction from the premises, alleging lost profits for the period from April, 1964 to October, 1970, the remaining term of its ten-year agreement with O'Hare Garage, Inc.

When the case was pending in the trial court the first time, each of the parties filed motions for summary judgment with respect to each of the two counts of plaintiff's complaint. After hearings, the court entered a number of orders to the following effect:

(1) Denying plaintiff's motion for summary judgment as to both Counts I and II.

(2) Denying defendants' motion for summary judgment as to Count I.

(3) Directing that as to Count I, the trial proceed on the limited issue of whether or not defendants had negligently removed plaintiff's equipment.

(4) Allowing defendants' motion for summary judgment as to Count II and entering judgment in their favor.

(5) Denying plaintiff's motion to vacate the orders designated as (1) and (4) above.

• 1, 2 Plaintiff then filed a notice of appeal from orders (1), (4), and (5). Obviously, plaintiff had no desire to appeal from order (2), but neither order (2) nor order (3) were final judgments, and were, therefore, not appealable anyway. Though included in the appeal, order (1) was also not appealable (La Salle National Bank v. Little Bill "33" Flavors, 80 Ill. App.2d 298, 225 N.E.2d 465); order (5) was of no significance except to extend the time allowed for appeal from the previous judgment, so the only order presented for consideration of the Appellate Court in the prior appeal was order (4) which entered summary judgment in favor of defendants as to Count II. And from this it necessarily follows that there was only one issue properly determinable by the Appellate Court on the prior appeal, namely, whether or not the pleadings and other papers on file with the trial court demonstrated that there was "no genuine issue of material fact" to be decided by the trial court with respect to Count II, and that, under the law, those unquestioned facts entitled defendants to their judgment without further proceedings. (Ill. Rev. Stat. 1967, ch. 110, par. 57(2) and (3).) The Appellate Court decided this issue in favor of plaintiff, reversed the judgment, and remanded the cause for further proceedings. *fn1

Upon remand, the trial court interpreted the Appellate Court decision to mean that defendants were liable to plaintiff under the first lease and that nothing remained to be done except to hear evidence as to the damages involved. Accordingly, the trial court barred all evidence except that which tended to prove damages, and then entered the judgment in favor of plaintiff from which the instant appeal has been taken. In so doing, it considered, not without some reason, that the Appellate Court opinion had, in effect, reversed order (1) above, denying plaintiff's motion for summary judgment (as it was requested to do in plaintiff's notice of appeal, and most urgently in ...

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