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Waltz v. Schlattman

OPINION FILED FEBRUARY 1, 1980.

MICHAEL J. WALTZ, PLAINTIFF-APPELLEE,

v.

ROBERT B. SCHLATTMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LEONARD R. GRAZIAN, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover rent allegedly owed by defendant under a lease. The trial court entered judgment for plaintiff in the amount of $620 and defendant brought this appeal. Defendant contends that: (1) the trial court erred in not granting defendant a continuance to procure a copy of plaintiff's deposition which was necessary for impeachment at trial; and (2) a new trial should have been granted since the post-trial motion showed that the plaintiff's deposition and trial testimony conflicted on a critical and basic point.

The following facts are uncontroverted for the most part. Plaintiff leased his house to defendant from September 1, 1976, to August 31, 1977. The lease provided for a monthly rental of $575 and an equal amount as a security deposit. Plaintiff moved to Idaho and told defendant to pay the rent to plaintiff's brother-in-law, Mr. Norgren. Defendant leased the house because he had been transferred on business and was unable to sell his house in Indiana. On December 25, 1976, defendant informed plaintiff that he had to return to Indiana on January 1, 1977. Plaintiff told defendant that he would reduce the rent by half until defendant was able to pay the rent, but defendant refused. Plaintiff testified that he told defendant that he would be held to the terms of the lease. Defendant testified that plaintiff told him that Norgren would find another tenant for the house. Defendant also stated that on January 1 Norgren told him that he thought that he had a new tenant, that defendant's utility bills would be prorated with the new tenant's and that the unused portion of defendant's security deposit would be returned to him.

On March 1, 1977, Norgren sent a letter to defendant which included what Norgren called "a summary of the house rental account" detailing the application of the security deposit and listing defendant's "final expenses." The letter informed defendant that the balance due plaintiff was $45.11. Defendant testified that he understood the letter to mean that the lease had been cancelled and his security deposit had been applied to satisfy his expenses. Plaintiff testified that Norgren had mailed the letter at defendant's request and without any instructions from him. When asked by defense counsel whether he had seen the letter previously, plaintiff answered, "To my knowledge, I haven't." Plaintiff also testified that he had not received a copy of the letter from Norgren. Plaintiff stated that the only knowledge he had of the letter was that Norgren had sent an account of final utility and repair bills to defendant at defendant's request.

Defense counsel sought to impeach plaintiff with his deposition testimony, in which he allegedly admitted that he had received a copy of the letter and had not complained about it to Norgren. Defense counsel informed the court that he did not have a copy of plaintiff's deposition transcribed for use at trial because he "did not know this person was going to chance [sic] his testimony." He also stated that he did not bring Mr. Norgren to court because there had been no inconsistency in the testimony previously. Counsel then moved for a continuance because he was taken by complete surprise by plaintiff's testimony and because he wanted to call Mr. Norgren as a witness. The following exchange took place:

"THE COURT: Did you transcribe the deposition?

[Defense Attorney]: No, I could —

THE COURT: Motion denied. Do you intend to bring in the reporter?

[Defense Attorney]: Well, I would, but I would bring in Mr. Norgren because this letter —

THE COURT: Is Mr. Norgren under subpoena?

[Defense Attorney]: No, he's not. That's why I am surprised.

THE COURT: All right. I'll take it under — your Motion to continue this cause on the grounds of surprise is denied, all right? Now, I'll take into consideration the question of availability of Mr. Norgren, okay."

The trial continued and at the end of all the evidence, the court denied defendant's motion for a continuance. Following argument, the court found for plaintiff in the amount of $620 and entered judgment on that finding. This appeal followed.

OPINION

Defendant contends that the trial court erred in failing to grant a continuance until he could get a transcript of plaintiff's deposition typed or until he could call Norgren as a witness at trial. He argues that the interests of justice require that he be able to show that plaintiff's trial testimony differed from his deposition testimony on the question of whether he had seen Norgren's letter to defendant. Defendant asserts that the letter clearly shows an intention to release him from the lease and that plaintiff recognized that if it were shown that he was aware of the letter and failed to disavow it, defendant would not be held liable for rent. Defendant claims that because of this, ...


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