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Clark Oil & Refining Corp. v. Banks

NOVEMBER 12, 1975.

CLARK OIL & REFINING CORPORATION, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE, CROSS-APPELLANT,

v.

ERNEST D. BANKS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT, CROSS-APPELLEE.



APPEAL from the Circuit Court of Cook County, the Hon. RICHARD SAMUELS, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Ernest Banks, brings this appeal following a judgment in favor of plaintiff, Clark Oil & Refining Corporation, on its forcible entry and detainer action for possession of the subject premises. Plaintiff cross-appeals from a judgment in favor of defendant on his counterclaim. The trial court assessed and awarded damages to defendant on his counterclaim in the amount of $500.

Defendant presents four issues for review: whether the trial court erred in (1) striking certain affirmative defenses and a corresponding portion of defendant's counterclaim, (2) allowing plaintiff's motion in limine pertaining to the stricken defenses, (3) directing a verdict for plaintiff on its complaint and entering judgment thereon, and (4) assessing damages on defendant's counterclaim sua sponte, thus depriving defendant of the trial by jury that he demanded and had not waived. By its cross-appeal, plaintiff urges reversal of the judgment entered for defendant on his counterclaim and alleges that the trial court committed error when it (1) failed to strike defendant's counterclaim in its entirety, (2) admitted certain evidence offered by defendant, (3) failed to grant plaintiff's motion for a directed verdict on defendant's counterclaim, and (4) denied plaintiff's post-trial motion. Plaintiff also contends, in the alternative, that if the trial court properly directed a verdict for defendant on his counterclaim, its action in assessing sua sponte the damages sustained by defendant did not constitute reversible error.

The record discloses that plaintiff, a refiner of gasoline and related products, leased the subject premises with a retail gasoline service station situated thereon to defendant under a one-year lease dated January 31, 1972. The parties also entered into a one-year Retail Consignment Agreement, dated April 15, 1971, under which plaintiff contracted to supply gasoline to defendant. Rental payments based upon the volume of gasoline sold during the previous business day were to be remitted by defendant on a daily basis, except on weekends. Defendant also agreed to remit in the same manner payments for gasoline sold.

Although the lease provided that it could be renewed on a yearly basis, it further provided that it could be terminated by plaintiff "for cause or no cause" at the end of any yearly term upon 30 days' written notice to defendant. In addition, plaintiff could terminate the lease without notice to defendant if defendant failed or refused to pay rent or other monies due under the terms of the consignment agreement.

On December 18, 1972, plaintiff mailed to defendant a notice of termination effective on January 31, 1973. Subsequently on several occasions during the latter part of January, defendant failed to remit monies owing to plaintiff in conformance with the contract. Because of these defaults in payment, plaintiff notified defendant on January 26 that the lease was being terminated immediately. Defendant refused to surrender possession of the premises.

Alleging that defendant's account had an outstanding balance in excess of $8,900, plaintiff brought suit on January 29, 1973, to regain possession of the premises. That suit was dismissed without prejudice after the summons and an alias summons were returned unserved. On March 7, 1973, after the expiration of defendant's lease, plaintiff brought this action. By its complaint, plaintiff sought possession of the premises, but did not pray for monetary relief.

By his answer, defendant entered a general denial to the allegations contained in plaintiff's complaint and asserted the following affirmative defenses: (1) defendant occupied the premises under an unexpired lease, (2) plaintiff's policy was to renew station leases if the tenant conducted a "Clark" operation, (3) plaintiff's operating procedures violated Illinois' antitrust laws, (4) plaintiff's attempted eviction of defendant was in retaliation for defendant's refusal to conspire with plaintiff to violate the antitrust laws, and (5) the legal relationship existing between the parties was not that of landlord and tenant, but either that of joint adventurers or of franchisor and franchisee. Defendant also filed a counterclaim in which he incorporated by reference the allegations contained in his answer and further alleged that plaintiff breached the consignment agreement causing defendant to sustain damages of $20,000.

Plaintiff's motion to strike was granted with respect to the affirmative defenses and corresponding paragraphs of the counterclaim pertaining to the alleged antitrust violations and the legal relationship between the parties.

The jury was discharged upon its inability to reach a verdict, and subsequently, the trial court granted both plaintiff's motion for a directed verdict on its complaint and defendant's motion for a directed verdict on his counterclaim. Upon the evidence presented, the trial court awarded defendant $500 in damages.

In accordance with an order agreed upon by the parties which was entered on September 24, 1974, defendant relinquished possession of the subject premises to plaintiff.

During oral argument, defendant's counsel admitted that issues identical to those presented in the instant case were recently reviewed by this court in Clark Oil & Refining Corp. v. Thomas, 25 Ill. App.3d 428, 323 N.E.2d 479. We disagree with counsel's contention that Thomas was erroneously decided and find that Thomas is controlling on this action with regard to the propriety of the trial court in striking certain affirmative defenses and corresponding paragraphs of the counterclaim.

• 1 The principal issue addressed by the court in Thomas was whether the affirmative defenses raised by defendant pertaining to alleged violations by plaintiff of Illinois' antitrust laws were properly stricken by the trial court. Here, in disposition of this same issue, we reinterate the pertinent holding in Thomas: "[T]he aspects of defendant's answer and counterclaim based on antitrust laws are not germane to the decisive issue of possession. The trial court acted properly in striking the affirmative defenses and counterclaim based on violation of the antitrust laws." (25 Ill. App.3d 428, 433, 323 N.E.2d 479, 482-83; accord, Clark Oil & Refining Corp. v. Leistikow (1975), 69 Wis.2d 226, 230 N.W.2d 736.) Because of the summary nature of a forcible entry and detainer action, the holding in Thomas is even more compelling when applied to the facts in the instant case. In Thomas, Clark Oil rested its right to terminate the lease upon the tenant's failure to pay rent and other monies due. However, in this action plaintiff's claim for possession is predicated solely upon its right to terminate defendant's lease at the end of its term in accordance with the leasing agreement. A tenant who becomes a defendant in a forcible entry and detainer action is not left without a forum within which to present his antitrust claims against his landlord; indeed, defendant is a named plaintiff in a pending antitrust action against Clark Oil in Ashcraft v. Clark Oil & Refining Corp., No. 73 C 566 (N.D. Ill.).

We next consider the correctness of the directed verdict for defendant on his counterclaim and the assessment of damages thereon by the trial court sua sponte. Our initial inquiry, however, must be whether the trial court properly entertained the remainder of defendant's counterclaim pertaining to an alleged breach by plaintiff of the Retail Consignment Agreement. Plaintiff maintains that the trial court should have struck the entire counterclaim because no allegation ...


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