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Pleasure Driveway & Park Dist. v. Jones





APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES W. IBEN, Judge, presiding.


Rehearing denied September 7, 1977.

Pleasure Driveway and Park District of Peoria brought this action against five golf pros to recover damages occasioned by the defendants' wrongful holdover of the golf concession pro shops at five public fee golf courses owned by the plaintiff. Defendants counterclaimed, alleging wrongful termination of their employment as greenskeepers on each of the five courses. Following a bench trial, the court entered a joint and several judgment against the golf pros in the amount of $127,605 and found for the plaintiff on defendants' counterclaim. This appeal ensued.

Only a brief summary of the events and facts preceding commencement of this action is necessary to a determination of the issues properly presented here. This litigation relates to a controversy previously before this court in Pleasure Driveway & Park District v. Kurek, 27 Ill. App.3d 60, 325 N.E.2d 650, and the opinion in that case should be consulted for a more complete account of the facts.

Previous to 1974, defendants were employed by plaintiff as greenskeepers at plaintiff's five courses and were also concessionaires of the pro shops on those courses for which they paid an annual fee or rent to the Park District. From 1972 until October 1973, negotiations were conducted between the plaintiff and defendants concerning the rental fee for the pro shops and which resulted in a contract between the parties for the year 1973. Subsequent negotiations failed to produce a contract for 1974 and on January 19, 1974, the Park District awarded a three-year contract for the pro shops to Golf Shops Management, Inc. (GSM), with the stated intention of continuing defendants' employment as greenskeepers. The contract with GSM was contingent upon plaintiff obtaining control of the pro shops. On January 21, 1975, each of the five golf pros was served with a 30-day written notice to terminate the tenancy of the premises occupied by the pro shops and on February 20, 1974, the Park District filed a forcible entry and detainer action to recover possession of the five pro shops. On the same date the Park Board terminated the employment of the golf pros as greenskeepers.

After a jury trial in the forcible entry and detainer action, the court ordered the plaintiff to restore the golf pros to possession of the pro shops and reinstate them as employees. This judgment was reversed in Pleasure Driveway & Park District v. Kurek, 27 Ill. App.3d 60, 325 N.E.2d 650. In that appeal this court held that the golf pros' right to possession of the pro shops ended on December 31, 1973, and that the golf pros' employment as greenskeepers was not germane to the question of their right to possession of the pro shops, but instead was a separate contractual relationship. A writ of restitution was issued by this court restoring possession to plaintiff, but was recalled upon order of the Illinois Supreme Court pending a determination of an appeal to that court. Petition for leave to appeal was denied on May 27, 1975, and a second writ of restitution issued on June 30, 1975, restoring possession of the pro shops to the park district.

The present action was filed on July 25, 1975, to recover money damages from the defendants for their wrongful possession of the pro shops from January 1, 1974, until June 30, 1975. The original complaint was amended to include a claim under section 2 of "An Act to revise the law in relation to landlord and tenant" for damages equal to double the yearly value of the land. (Ill. Rev. Stat. 1975, ch. 80, par. 2.) Defendants answered and filed six affirmative defenses which were stricken by the trial court upon plaintiff's motion. Defendants also counterclaimed, seeking restoration of their positions as greenskeepers and back pay from the date their employment was terminated. Plaintiff filed a motion for summary judgment on the issue of liability, relying on our decision in Kurek and the trial court granted the motion.

After a bench trial, the trial court refused to award the double damages requested by plaintiff under section 2, but did allow plaintiff damages and used the earlier contract with GSM as a measure of those damages. The court found no merit in defendants' counterclaim and entered judgment in favor of plaintiff thereon. Separate appeals were taken from the trial court's judgment by each of the defendants, but were later consolidated into the present appeal. Plaintiff filed a cross-appeal from the trial court's refusal to award double damages.

Following oral arguments and while this case was under advisement to this court, the Circuit Court of Appeals for the Seventh Circuit rendered its opinion in Kurek v. Pleasure Driveway & Park District (7th Cir. 1977), 557 F.2d 580. The five golf professionals who are defendants in this action had filed a complaint in Federal court seeking money damages for an alleged violation of Federal antitrust laws by the defendants (Pleasure Driveway & Park District, the plaintiff in this cause, and other individual named defendants who are not parties to this action) and for violation of the plaintiffs (defendants herein) civil rights under 42 U.S.C. § 1983 (1970). The golf professionals alleged in district court that their right to petition had been violated when their employment as greenskeepers had been terminated. We have allowed the golf professionals motion to add the opinion of the Seventh Circuit Court of Appeals as additional authority and will refer to that decision as needed.

• 1 Defendants assert that the trial court committed reversible error when it dismissed the affirmative defense that Pleasure Driveway & Park District v. Kurek, 27 Ill. App.3d 60, 325 N.E.2d 650, was procured by fraud and when it entered summary judgment against defendants on the issue of liability because of that decision. Of the affirmative defenses specified in defendants' answer, error is assigned on appeal only as to the affirmative defense of fraud. However, in their motion to add as additional authority the opinion of the Seventh Circuit Court of Appeals previously referred to, defendants argue that since the Seventh Circuit Court of Appeals has decided that the plaintiff may be subject to damages for antitrust violations, we should reverse the trial court's dismissal of defendants' affirmative antitrust defenses. We decline to do so. Having failed to initially allege and argue the dismissal of the antitrust defense, defendants have waived whatever assignment of error they might have to that dismissal. We therefore do not consider whether the affirmative antitrust defense alleged was meritorious.

The specific fraudulent acts alleged in the affirmative defense is that plaintiff fraudulently failed to provide a complete record on appeal in Kurek, and but for the omissions occurring in the record, this court would have affirmed the lower court's decision in defendants' favor. Defendants' arguments are without merit.

• 2 Supreme Court Rules 322 and 329 (Ill. Rev. Stat. 1975, ch. 110A, pars. 322, 329) provide ample means to insure a true record is before the appellate court and it was defendants' responsibility to cure whatever inaccuracies, if any, that might have existed in the record. Having failed to do so, defendants cannot now claim that this court's decision in Kurek was procured by fraud because of alleged deficiencies in the record.

The next issue relates to the complaint. Defendants contend that the judgment of the trial court was wrong as a matter of law and present three reasons in support of their position. We will consider each of these arguments separately.

First, defendants argue that because the amended complaint "cites section 2, chapter 80 of the Illinois Revised Statutes in support of its claim for damages," the complaint seeks relief only under that statute. Defendants contend that the trial court found that defendants did not wilfully holdover (as required by section 2) and since ...

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