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Bismarck Hotel Co. v. Sutherland

OPINION FILED DECEMBER 17, 1980.

BISMARCK HOTEL CO., PLAINTIFF-APPELLEE,

v.

KIMBERLY A. SUTHERLAND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. SULLIVAN, Judge, presiding.

MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 16, 1981.

Plaintiff, Bismarck Hotel Co., owner of the Metropolitan Building located at 134 N. La Salle Street in Chicago, filed a forcible entry and detainer action against defendant, Kimberly Sutherland, a tenant in the building. Defendant is an attorney and rented a suite which she uses as law offices. Defendant appeals from the following orders entered by the trial court: (1) denying defendant's motion for summary judgment and granting plaintiff's motion for summary judgment; (2) granting plaintiff's motion to strike defendant's counterclaim and denying defendant's motion to file an amended counterclaim; and (3) denying defendant's motion for a temporary restraining order and a preliminary injunction. We affirm in part and reverse in part.

Defendant and another attorney, James Leeson, executed a written lease with plaintiff for suite 700 of the Metropolitan Building for the term December 1, 1976, through December 31, 1978. On October 12, 1978, plaintiff asked defendant whether she would be willing to move to another suite within the building when her lease expired. Leeson had abandoned the premises several months earlier. Defendant declined the offer. Plaintiff then indicated that the rent for suite 700 would increase from $625 per month to $700 per month as of January 1, 1979. Defendant agreed to the increased rent.

The next day, plaintiff sent defendant a letter stating that defendant's lease would not be renewed. However, it offered her the option of renting another suite. Defendant accepted the offer under protest and demanded that her lease to suite 700 be renewed in writing. After defendant's written lease expired on December 31, 1978, defendant received a bill for January rent in the amount of $700, which she paid. Rent bills for February, March and April were also subsequently paid.

On February 8, plaintiff informed defendant by letter that she had been a month to month tenant since January 1, and that her tenancy would be terminated on April 30, 1979. In closing, plaintiff stated that it was willing to discuss any other arrangements which defendant might wish to make. Defendant responded that she considered plaintiff's conduct to be a renewal of her former lease. Further negotiations occurred in April, but no agreement was reached. Plaintiff did not send defendant a rent bill for May, but accepted the $700 tendered by de-defendant.

On May 17, plaintiff and defendant orally agreed to a new lease for suite 700 for the term July 1, 1979, to September 30, 1981. The next day, plaintiff sent defendant a letter acknowledging the terms of the oral lease. Plaintiff subsequently sent defendant a written copy of the lease which reflected the terms set forth in plaintiff's May 18 letter. Defendant refused to sign it, claiming that it was not in conformity with the May 17 oral agreement. She requested that a corrected lease be prepared. Meanwhile, she paid rent for the month of June.

On June 11, defendant wrote to the Wirtz Realty Corporation, which manages the Metropolitan Building. She complained of the lack of good faith bargaining by the agents of Wirtz Realty and noted the discrepancies between the oral agreement and the proposed lease. She concluded by saying that this would be her final attempt to settle the matter out of court.

Plaintiff filed its forcible entry and detainer action on June 19. Defendant filed an answer denying the allegations in the complaint and submitted a jury demand. In addition, she filed a counterclaim against plaintiff and its attorney for abuse of process. Defendant also filed a petition for a temporary restraining order and a preliminary injunction. She claimed that her business would suffer irreparable harm unless plaintiff was restrained from interfering with her use and occupancy of the suite. The court denied this petition without prejudice.

Plaintiff subsequently filed a motion for summary judgment and a motion to strike the counterclaim. The court ordered the counterclaim stricken. Before the court had ruled on plaintiff's motion for summary judgment, defendant filed a motion for summary judgment. She also sought to file an amended counterclaim against plaintiff, its attorney and Wirtz Realty.

The court granted plaintiff's motion for summary judgment and awarded plaintiff possession. It denied defendant leave to file an amended counterclaim because the issues therein were not germane to the issue of forcible entry and detainer. Subsequently, the court entered an order staying the judgment for possession pending this appeal.

• 1, 2 We first address the question relating to defendant's right to possession of the premises. One of defendant's contentions is that a holdover tenancy arose when plaintiff accepted rent for the month following the expiration of her lease. A holdover tenancy is created when a landlord elects to treat a tenant, after the expiration of his lease, as a tenant for another term upon the same provisions contained in the original lease. (Luster v. Estate of Cohon (1973), 11 Ill. App.3d 608, 297 N.E.2d 335 (abstract).) It is the intention of the landlord, not the tenant, that determines whether the tenant is to be treated as a holdover. (Balaban & Katz Corp. v. Channel Amusement Co. (1948), 336 Ill. App. 113, 120, 83 N.E.2d 27, 30.) While the landlord's acceptance of rent for the month following expiration of the lease may by itself indicate the landlord's election to treat the tenant as a holdover (see Eppstein v. Kuhn (1906), 225 Ill. 115, 122-23, 80 N.E. 80, 83), other facts and circumstances bearing on the landlord's intent should be considered as well. Sheraton-Chicago Corp. v. Lewis (1972), 8 Ill. App.3d 309, 311, 290 N.E.2d 685, 686-87.

• 3 Here, more than two months before defendant's written lease expired, plaintiff informed defendant that the lease would not be renewed. Plaintiff took no actions which were inconsistent with this position. In addition, the terms under which defendant remained in possession differed from the terms under the written lease. James Leeson, a party to the written lease, had abandoned the premises. Also, plaintiff increased the rent from $625 to $700 following the expiration of the written lease. Accordingly, it is clear that plaintiff never intended to extend the terms of the written lease by creating a holdover tenancy.

We next consider defendant's contention that she is entitled to remain in possession of suite 700 until September 30, 1981. Defendant argues that on May 17 the parties orally agreed to a new lease with a September 30, 1981, termination date, the essential terms of which were embodied in a letter from plaintiff the following day. Plaintiff, in its May 18 letter, set forth the proposed terms of a new lease which it perceived had been agreed upon the previous day. Plaintiff stated that monthly rental from July 1979 through September 1980 would be $700, and that from October 1980 through September 1981 it would be $760, with an allowance for the month of September 1981 in the amount of $720; this allowance was made subject to fulfillment of all the terms and conditions of the lease. However, when plaintiff sent defendant a written lease which included the terms set forth in its May 18 letter, defendant refused to sign it. Defendant claimed that it did not conform to the May 17 oral agreement. In ...


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