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Intini v. Schwartz

OPINION FILED OCTOBER 25, 1979.

ANTHONY INTINI, III, PLAINTIFF-APPELLANT,

v.

HAROLD S. SCHWARTZ, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

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

The plaintiff, Anthony Intini III, appeals from an order of the circuit court of Cook County denying Intini's petition for change of venue, granting defendant Harold S. Schwartz's motion to dismiss the complaint for specific performance, and denying Intini's oral motion for leave to file an amended complaint. Intini contends that the court committed reversible error by denying his petition for change of venue based on fear of prejudice of the trial judge and that therefore the subsequent rulings granting Schwartz's motion to dismiss and denying Intini's motion to file an amended complaint are void. Intini further contends that even if the order denying change of venue is upheld, the trial court committed reversible error when it dismissed the complaint on Schwartz's motion and denied plaintiff's motion to file an amended complaint where the court made no finding that any proposed amendment would fail to state a cause of action. Intini does not argue that his complaint for specific performance was not susceptible to Schwartz's motion to dismiss.

On June 23, 1978, Intini filed a complaint for specific performance of an option allegedly provided in a lease agreement between him and Schwartz. On August 9, 1978, Schwartz filed a motion to dismiss the complaint. It stated in part that the alleged option did not provide a legally sufficient price term.

On August 14, 1978, the motion to dismiss was noticed for hearing and was set over to August 15, 1978. On August 15, 1978, the trial court recited the matters set forth in the complaint and in the motion to dismiss and asked Schwartz's counsel for argument. Counsel for Schwartz expressed his intention to confine his argument to one of the grounds set forth in the motion to dismiss and began his argument on that point.

The court stated that such argument was not necessary as it had read the pleadings and was familiar with the law on the issue and then asked counsel for Intini for argument. Intini's counsel presented argument on another ground set forth in the motion to dismiss, and the trial court questioned him on that issue. The court interrupted to request a conference in chambers. After the conference the hearing was continued to August 29, 1978.

While there is no transcript of the conference of August 15, 1978, the transcript of the August 29, 1978, hearing makes clear that at the August 15 hearing the court allowed a two-week continuance in order for the plaintiff to do research to support his position. From this transcript it appears that the conference was attended by Intini and his counsel but that Schwartz was neither present nor represented.

At the August 29 hearing the court recited the matters set forth in the complaint and motion to dismiss. Immediately thereafter the plaintiff moved to present a petition for change of venue. The petition contained a general allegation of fear of prejudice of the trial judge and stated that this prejudice first came to Intini's attention on August 14, 1978.

The court asked the defendant for his response and he began to argue against granting the change. However, the court interrupted and asked plaintiff's counsel whether notice of the petition for change of venue had been given. Upon learning that notice was not given, the court immediately denied the petition.

The court then inquired as to whether the plaintiff had found any law to support his position on the motion to dismiss. Upon learning that he had not, the court sustained the motion to dismiss and struck the complaint.

Counsel for the plaintiff then made an oral motion for leave to file an amended complaint within 28 days. No proposed amendment was presented, either oral or written. In response to inquiries of the court, counsel for the plaintiff said the facts were as stated in the original complaint and could offer no legal theory on which he intended to base an amended complaint. The court denied leave to file an amended complaint.

The parties agree that the rule in Illinois is that a petition for change of venue filed in compliance with the statute (Ill. Rev. Stat. 1977, ch. 110, par. 501 et seq.) gives rise to an absolute right to a change of venue. (Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill.2d 247, 311 N.E.2d 673.) Resolution of this appeal turns on whether Intini's motion was in compliance with the statutory requirements of timeliness and reasonable notice.

The statute provides in part:

"A change of venue in any civil action may be had in the ...


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