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Mendelson v. Lillard

OPINION FILED MAY 2, 1980.

ARTHUR B. MENDELSON, PLAINTIFF-APPELLEE,

v.

ELLA LILLARD, D/B/A EGO'S PENTHOUSE LOUNGE ET AL., DEFENDANT. — (WILLIE JACKSON, SR., D/B/A TOPFLIGHT SKATING RINK, INTERVENING APPELLANT.) — ARTHUR B. MENDELSON, ASSIGNEE OF MARY COLUCCI, PLAINTIFF-APPELLEE,

v.

WILLIE JACKSON, SR., D/B/A TOPFLIGHT SKATING RINK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EUGENE R. WARD, the Hon. WILLIE M. WHITING, and the Hon. JAMES E. SULLIVAN, Judges, presiding.

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

Willie Jackson, Sr., d/b/a Topflight Skating Rink (Jackson), has brought four separate appeals in this consolidated matter — all of which arise from two forcible entry and detainer actions. In 78-1658, he appeals from a purported denial of his petition to intervene in one of those actions brought by plaintiff against Ella Lillard. The remaining three appeals stem from the other action which was brought by plaintiff against Jackson — 79-540 from a judgment entered against him for possession of premises he rented; 79-570 from a denial of two subsequent section 72 petitions as well as a "petition to vacate void judgment"; and 79-790 from the denial of his motion to file an amended petition "to vacate void judgment."

Certain background facts must be explained at the outset. While the record is far from clear as to many of these matters, we have surmised that title to the demised property giving rise to the instant litigation, located at 5600-14 West Madison, in Chicago, was held in a land trust by Central National Bank, as trustee. At the direction of the beneficiary of the land trust, Central National executed two trust deeds to Chicago Title and Trust Company as security for two bearer installment notes. At some point prior to the litigation at hand, it appears that plaintiff became the holder of the notes, trust deeds, and an assignment of rents to the property. It further appears that portions of the second floor of the building were leased to two separate tenants — Ella Lillard, who owned and operated Ego's Penthouse Lounge, and Willie Jackson, Sr., who owned and operated the Topflight Skating Rink. Both had apparently signed leases with an individual named Linda Norris, as agent for Management Enterprises (a management company operated by Central National), and they had always sent their rent payments to Norris. Both were also allegedly unaware of the assignment of rents, and they continued paying Norris. The parties apparently were unable to locate or contact Norris after the instant litigation commenced.

On March 8, 1978, plaintiff filed a forcible detainer action for nonpayment of rent against "Ella Lillard d/b/a Ego's Penthouse Lounge and d/b/a Topflight Skating Ring [sic]," seeking possession of the entire second floor of the building. Lillard appeared and answered as proprietor of both the lounge and the skating rink. A judgment order was entered against Lillard for possession of the entire second floor on July 26, 1978. Jackson then filed a petition for leave to intervene on August 17, 1978, stating in pertinent part that he had entered into a lease with Management Enterprises in 1977 for the second floor of the premises; that he (and not Ella Lillard) owned and operated the Topflight Skating Rink on that floor; that he had a right to possession of the premises occupied by the skating rink through a lease with Management Enterprises, which was signed by its agent Linda Norris; that Ella Lillard is the sole operator of Ego's Penthouse Lounge, which is separate from the Topflight Skating Rink; and that he is now aware of the assignment of rents to plaintiff and is willing to abide by any directive of the court regarding the future payment of rent to him. A hearing was held on the petition, at which it appears the trial court stayed the writ of restitution and continued the hearing to allow Jackson time to locate Linda Norris or work out a settlement with plaintiff. Although no order denying the petition to intervene appears in the record, Jackson nonetheless filed a notice of appeal (78-1658) on September 15, 1978, purportedly from an order of August 17 "denying the Defendant/Appellant's Petition for Leave to Intervene." Shortly thereafter, this court granted a stay of execution of the judgment and ordered that bond be set at $5,000.

Subsequently, on November 2, 1978, plaintiff filed a second forcible detainer action as "Assignee of Mary Colucci" against Willie Jackson, d/b/a Topflight Skating Rink, for possession of the entire second floor. Jackson in turn moved to stay the proceedings on the ground that an appeal was pending on the denial of his motion to intervene in the action against Ella Lillard; that pursuant to the appeal, he posted a $5,000 case bond "to cover any and all rental payments possibly hereafter due and owing the Plaintiff"; that the appeal bond is adequate to cover "any and all rentals which may hereafter accrue"; and that therefore the second action should be stayed pending the outcome of the appeal on his petition to intervene. After a hearing, the motion to stay was denied, and on January 8, 1979, a judgment order for possession was entered against Jackson in favor of plaintiff and, from that order, Jackson filed a timely notice of appeal (79-540).

Jackson then filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) on March 21, 1979, seeking vacatur of the judgment for possession. The petition stated that when the judgment was entered, "there already was pending an action which was on appeal between the parties regarding the same subject matter"; that "this court did not have jurisdiction to entertain another forcible detainer action during the pendency of the appeal"; and that "had the [trial] court known of these facts, the court would not and should not have entered a judgment in this cause." The petition was denied, as was Jackson's subsequent motion to vacate the order of denial. On March 29, 1979, Jackson filed a notice of appeal from both orders (79-570).

On April 6, 1979, Jackson filed another section 72 petition which was, in fact, a photocopy of his previous petition. He also filed a "petition to vacate void judgment," seeking vacatur of the judgment for possession, wherein he alleged that in connection with the forcible action he was simultaneously served with a 5-day notice in addition to a 30-day notice of termination of tenancy; that plaintiff filed the forcible action before 30 days had expired; that the action was therefore "premature and void"; that plaintiff designates himself as "assignee of Mary Colucci" but that no assignment was attached to the complaint nor did plaintiff introduce evidence of such an assignment at trial; that the judgment for possession was therefore void; and that plaintiff had no right to bring the forcible action since an appeal was pending (78-1658) and an "appeal bond was in effect covering the premises." After a hearing on April 6, 1979, the trial court denied Jackson's second section 72 petition as well as his petition to vacate the void judgment. On April 9, 1979, Jackson filed a notice of appeal from the original order of possession, the order denying his first section 72 petition, and the April 6 order denying the motion to vacate the judgment (79-570).

A motion by Jackson to file an amended petition to vacate void judgment was denied on May 9, 1979, and he filed a notice of appeal on May 18, 1979, from the orders of May 9 and April 9 (although the record does not indicate the existence of an April 9 order). Jackson's attorney informed us at the oral arguments of this case that Jackson was in fact ultimately dispossessed, although that is not reflected in the record.

OPINION

Initially, we note that although Jackson has docketed four appeals to this court, the issues and arguments presented in his brief are not directed to any particular appeal. We have separated them as follows:

AS TO APPEAL No. 78-1658

Jackson contends that the trial court erred in denying him leave to intervene in the first forcible action brought against Ella Lillard. In response, plaintiff argues that the trial court did not enter any order denying the petition to intervene. We note that an order denying a party the right to intervene has been held to be final and appealable under Supreme Court Rule 301 (Ill. Rev. Stat. 1977, ch. 110A, par. 301). (Koester v. Yellow Cab Co. (1974), 18 Ill. App.3d 56, 309 N.E.2d 269; Veterans Travel Club v. Illinois Commerce Com. (1973), 15 Ill. App.3d 116, 303 N.E.2d 142.) However, a judgment must have in fact been entered. A mere finding upon which no final judgment has been entered is not a final and appealable order. (Mobil Oil Corp. v. Hurwitz (1978), 63 Ill. App.3d 430, 380 N.E.2d 49; Wilke Metal Products, Inc. v. David Architectural Metals, Inc. (1965), 55 Ill. App.2d 34, 204 N.E.2d 35.) Further, if the court retains jurisdiction for future determination of matters of substantial controversy, the order is not final. (Joliet Federal Savings & Loan Association v. O'Hare International Bank (1973), 12 Ill. App.3d 1012, 299 N.E.2d 350; Impey v. City of Wheaton (1965), 60 Ill. App.2d 99, 208 N.E.2d 419.) Thus, if a request to intervene is never ruled upon, there is no appealable order since the failure to rule on a motion is not the equivalent of denial. Veterans Travel Club v. Illinois Commerce Com.

Turning to the facts of the instant case, we note that at the hearing of the petition on August 17, 1978, Jackson's attorney argued that intervention should have been allowed to determine the authority of Linda Norris "to enter into these contracts and leases." The court then made statements as follows: "Well, I am not going to let you intervene right now I might consider giving you a short stay here. * * * I will not allow you to intervene at this time. I will enter and continue your motion to intervene. * * * All right, I am going to stay the writ, enter and continue the motion." Later in the hearing, the trial judge suggested to Jackson that during the stay of the writ, he should offer to pay plaintiff the rent due and file suit against Norris for the rents paid her by mistake. A written draft order was entered, stating, "Writ to Second Floor only * * * stayed SEVEN (7) more days." This is the only order entered on August 17, 1978, and Jackson's notice of appeal is 78-1658 is from an order of that date.

No written order denying Jackson's petition to intervene appears in the record nor did the trial court verbally deny it, and it appears that the court only stayed the writ and continued the hearing on the petition to allow Jackson the opportunity to either bring Norris into court or settle with plaintiff. At the most, the court indicated that Jackson could not establish his right to intervene without the presence of Norris but, as noted above, such is insufficient to constitute an appealable order. ...


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