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Oak Park Nat'l Bk. v. Dobson's

OPINION FILED JUNE 11, 1979.

OAK PARK NATIONAL BANK, TRUSTEE, PLAINTIFF-APPELLEE,

v.

DOBSON'S, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARTIN G. LUKEN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

A judgment for possession of demised business premises and for general taxes allegedly in default was entered in favor of Oak Park National Bank, as trustee under a land trust (plaintiff), and against Dobson's, Inc. (defendant). Defendant appeals.

A summary of the trial record is essential. On September 21, 1976, plaintiff filed suit for possession. On December 13, 1976, plaintiff filed an amended complaint for possession and for an alleged default by defendant in failing to pay as additional rent a specified portion of general taxes. Appended to the amended complaint is a written lease from plaintiff to a tenant other than defendant. The lease, dated December 15, 1966, expired on January 31, 1977, with an option given the tenant to renew for two additional five-year periods. An appended consent by plaintiff to assignment of the lease to defendant appears to be unexecuted.

On January 25, 1977, defendant filed an answer denying that it owed the amount of the general taxes set forth in the amended complaint but admitted that it owed a lesser amount which the parties had agreed to in accordance with a letter appended to the answer. Thereafter the case was continued approximately 11 times for pretrial conferences. On March 15, 1978, an order was entered reciting the withdrawal of counsel for defendant and the substitution of a new attorney. This order reflects acceptance by the secretary of defendant.

On March 15, 1978, an order was entered "By agreement." This order bears the handwritten signature of counsel for both parties. The order provided that the case be continued to June 15, 1978, unless "the tax element of the Rent (and current use and occupation)" payments be made. The additional general taxes to be paid by defendant totaled $22,348.11. The order provided that if the payments had been made "this cause shall be dismissed, and if payment not be made, judgment shall be entered for possession and judgment of such sum of $22,348.11."

On June 15, 1978, an order was entered which recited that the case came on to be heard on the trial call and counsel for plaintiff represented to the trial court that defendant had failed to pay the amount specified in the agreed order of March 15, 1978. Consequently, judgment was entered in favor of plaintiff for possession and a money judgment for the amount of the general taxes allegedly in default.

On the same date as the entry of said judgment, June 15, 1978, a one-page unverified motion was filed in behalf of defendant which purported to be signed by its president. This motion sought to vacate the agreed order entered on March 15, 1977. It also prayed that the proper tax liability of the defendant be determined "pursuant to the new lease from June, 1977, as the defendant is willing to pay to the plaintiff." The motion further states that the order of March 15, 1977, "is obtained by misrepresentation of the facts." The motion set out that the tax liability had been agreed to be paid "by the former management" from whom plaintiff should recover the amount. The motion also avers:

"It is the contention of the defendant that the plaintiff having accepted rent under the new lease effective June, 1977 and the tenant fulfilling all his obligations under it, the Plaintiff has no right to take possession under old lease on any ground."

On June 19, 1978, the motion of defendant was denied. On June 19, 1978, defendant filed notice of appeal from the judgment of June 15, 1978, and from the order denying the motion to vacate.

Defendant's original brief filed by his last counsel in the trial court contends:

(1) Plaintiff has failed to give notice of demand for possession.

(2) The trial court had no jurisdiction because defendant was never in default in payment of rent.

(3) The trial court had no jurisdiction to adjudicate real estate taxes in the ...


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