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Dangeles v. Marcus

OPINION FILED FEBRUARY 16, 1978.

GEORGE P. DANGELES, PLAINTIFF-APPELLANT,

v.

ETHEL L. MARCUS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the dismissal of his complaint for specific enforcement of both a lease and a sublease agreement. Defendant, Ethel L. Marcus (lessor), and defendant, Samuel Sherman (sublessee), moved to dismiss the complaint on the ground that the plaintiff and lessor had entered into a subsequent lease agreement which superseded the terms of the lease agreement which plaintiff seeks to enforce by this action. The trial court granted the motion and dismissed the complaint. Plaintiff contends that: (1) the trial court erred in granting the motion to dismiss on the basis of the subsequent so-called lease agreement; (2) that defendants' motion was insufficient in law; and (3) that plaintiff's motion to vacate the judgment was timely.

We reverse the decision of the trial court and remand the case for trial.

The complaint for specific performance, as amended, alleged that in July 1962 plaintiff entered into a written lease agreement with the lessor for a store to be used as a laundromat and self-service dry cleaning establishment. According to the lease attached to the complaint, the initial term of the lease agreement was five years, from August 1, 1962, through July 31, 1967. The lease included provisions for a first option to renew the lease for a second five-year term from August 1, 1967, to July 31, 1972, and a second option to renew the lease for a third five-year period from August 1, 1972, to July 31, 1977. The option provisions also provided for an increase or decrease in the rental price for the option terms, based on changes in the cost of living as measured by the Consumer Price Index. The option provisions were contained in a rider attached to the standard lease form.

The complaint as amended also alleged that plaintiff gave notice, pursuant to the lease agreement, to extend the lease term for the first optional five-year term from August 1, 1967, until July 31, 1972. Thereafter, plaintiff and lessor executed a "memorandum" document in standard lease form, dated May 1, 1967, and covering the exact term of the first option from August 1, 1967, to July 31, 1972. The terms of this document included an increase in rental. A copy of this "memorandum," as set out in the record, contains no rider or option provision.

The amended complaint stated further that in October of 1968 plaintiff entered into a sublease agreement with sublessee, Sam Sherman; the sublease agreement was entered into with the consent of the lessor; and that the sublease provided for a greater rental than that paid by the plaintiff to the lessor.

A letter attached to the amended complaint indicates that on March 17, 1972, plaintiff notified the lessor's authorized agent, Louis Leaf, that he wished to renew the lease agreement for a second five-year period, to begin August 1, 1972. Plaintiff contends that he tendered the rental for August 1, 1972, the beginning of the new term, but that payment was refused by the lessor. The complaint further stated that since August 1, 1972, the sublessee has refused to pay the rental under the sublease agreement and has been making rental payments directly to lessor.

The complaint prayed for specific performance of the 1962 lease agreement between plaintiff and lessor and the specific performance of the sublease contract between plaintiff and sublessee. In addition, plaintiff sought to recover from the lessor all monies received from the sublessee in excess of the rental owed the lessor by the plaintiff under the terms of their lease agreement.

The defendants filed a motion to dismiss which did not state under which section of the Civil Practice Act it was brought. An affidavit in support of the motion to dismiss alleged that on May 1, 1967, the plaintiff and lessor had entered into a new lease agreement which did not contain an option to renew and which superseded the 1962 lease agreement. Defendants referred to the "memorandum" document attached to the plaintiff's complaint and dated May 1, 1967, as the superseding lease. The trial court dismissed the plaintiff's complaint. The trial court then denied plaintiff's motion to vacate the judgment order stating that the motion was not timely. Although the motion to vacate had been filed with the clerk of the court within 30 days of the judgment, it had not been brought before the court for hearing within the 30-day period.

From these decisions plaintiff appeals.

OPINION

At issue, for purposes of this appeal, is the propriety of the trial court's dismissal of the action, based on its finding that the plaintiff's right to renew under the original lease had been superseded and negated by a subsequent lease agreement executed by plaintiff and lessor. No issue is raised with regard to the sublease agreement between the plaintiff and the sublessee; the validity of that agreement is admitted for purposes of the motion to dismiss.

The plaintiff contends that the defendants' motion to dismiss was improperly granted because the complaint stated a valid cause of action for the specific performance of the provisions of a lease agreement. The mere existence of a subsequently signed document describing a lease, plaintiff argues, cannot, as a matter of law, defeat his claim. Plaintiff also contends that defendants' motion to dismiss was insufficient because it did not specifically point out the defects complained of and consisted merely of conclusions.

• 1 The defendants contend that their motion to dismiss was properly granted because plaintiff, as a matter of law, cannot introduce evidence to show that the subsequently signed document is not a lease. We do not agree. An action should not be dismissed for insufficiency at law unless it clearly appears that no set of facts could be proven under the pleadings which ...


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