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Swap Shop, Inc. v. M & R Amusement Corp.





APPEAL from the Circuit Court of Cook County; the Hon. HAROLD A. SIEGAN, Judge, presiding.


JUSTICE WILSON delivered the opinion of the court:

Plaintiff appeals from an order of the trial court dismissing its six-count amended complaint by summary judgment against Samuel T. Cohen, individually and as agent of Harris Trust and Savings Bank, Sara W. Cohen, individually and as trustee under Samuel T. Cohen Family Trust; and Dorothy Berger (hereinafter all referred to as Cohen); and on the court's own motion dismissing count 4 only of the amended complaint as to M & R Amusement Corporation, Double Drive-In Corporation, M & R Theatres, Inc., Raymond J. Marks, Martin G. Rosenfield, Richard A. Rosenfield, Louis H. Marks, Jerrold Marks (hereinafter all referred to as M & R). The pertinent facts follow.

Counts 1-4 of the complaint allege, essentially, interference with plaintiff's business, unfair competition, and conspiracy. Count 5 alleges fraudulent misconduct, and count 6 alleges a joint venture and defendants' subsequent deprivation of plaintiff's share of business. In support of these allegations, plaintiff's submission of supporting documents indicates that in 1969, it subleased from M & R the premises of the Double Drive-In movie theatre for its flea market business during the daylight weekend hours. The term of the lease was for five years as a percentage rental based on plaintiff's gross revenues, which were derived from the stall charges paid by its sellers and the admissions fees of shoppers. When Cohen, the lessor, learned of this sublease in 1969, he negotiated with M & R to receive 35 percent of all rentals that M & R received from plaintiff.

Plaintiff and M & R signed a new sublease in April 1974, providing for an expiration date of April 1982, and containing a clause permitting M & R, upon 90 days prior written notice, to terminate this sublease prior to its expiration date. Plaintiff further states that M & R agreed to waive their right to exercise this termination clause in consideration of the following:

(1) In 1974, plaintiff made improvements on four acres of land and installed a new entrance gate at one of the Double Drive-In theatres;

(2) In 1972, plaintiff met with M & R and Cohen in Cohen's office for the purpose of discussing an additional 22 acres of land with the proposal of improving it and the original leased premises for use in connection with the flea market. Plaintiff indicated at the meeting that it could not make these improvements unless the premises would be available to it in connection with the flea market business for at least a term of five years. M & R allegedly agreed to these conditions and M & R sent plaintiff a copy of a letter from Cohen dated May 7, 1975, the terms of which were that Cohen agreed to lease the additional acreage for a five-year term; with the cost of improvements and taxes to be the expense of M & R and plaintiff. No reference was made in the Cohen letter to M & R of the "cancellation clause" discussed at the meeting, and M & R's cover letter to plaintiff stated that they were not sure whether they should bring it up at this time;

(3) Plaintiff successfully defended against an injunction action brought by the City of Chicago to enjoin the use of the flea market at the Double Drive-In; and

(4) In 1976, plaintiff made additional improvements on the leased premises.

In September 1977, M & R sent notice to plaintiff that the sublease would be terminated as of December 31, 1977. Plaintiff stated that it informed Cohen of the termination notice and that thereafter Cohen and M & R renegotiated the existing lease on the Double Drive-In premises and extended its term effective January 1, 1978, to December 31, 1998. The new lease provides that Cohen receive 35% of the net income realized by Double from its operation of the flea market. M & R reopened the flea market in the spring of 1978 without disclosing that M & R would now be operating the flea market and further, M & R secured plaintiff's customer lists and solicited these customers to patronize the flea market. The Cohen documents submitted in support of their motion for summary judgment indicate that Cohen was unaware of the sublease prior to 1969 and had no relationship with plaintiff. When he learned of the additional use of the leased premises in 1969, he insisted that M & R pay a rental charge for such use as it was not contemplated in the original lease. From 1969 until the end of 1975, all checks for rent for the operation of the flea market came from Double Drive-In. After this time, he received checks made payable to Double Drive-In from plaintiff and endorsed over to him as agent for the landlord.

In May 1975, Cohen did meet with plaintiff and M & R at M & R's insistence, to discuss the additional leasing of land for use in plaintiff's business. Cohen indicated that he did not want to create a relationship with plaintiff and his relationship was only with M & R as their lessor. In November 1975 he received a check from plaintiff, representing the landlord's share of the flea market operation receipts for the period October 1 through October 31, 1975; however, this was returned to M & R with a letter dated December 1, 1975, in which he indicated all checks for rentals due must come from M & R, as the sole lessee. M & R's acknowledgment in a return letter dated December 10, 1975, confirms Cohen's intent not to become involved in any way with the operations of the flea market. He was informed by plaintiff in late 1977 of M & R's intent to terminate the sublease, but he assured plaintiff this was his first notice of this action and he was not a part of it. When M & R informed him that they would be operating the flea market in February 1978, the new lease provided that he would receive 35% of the net income realized by M & R. The new lease was not signed until spring 1978 even though it encompassed the period beginning January 1, 1978.


Plaintiff initially contends that issues of material fact exist which precluded the granting of summary judgment. It is their contention that a material issue of fact was presented from its pleadings and supporting documents which was not countered by the Cohen documents denying his involvement in the operation of the flea market.

Summary judgment is only appropriate if the pleadings, depositions, affidavits, and other documents show that the movant is entitled to this remedy as a matter of law. (Duffy v. Midlothian Country Club (1980), 92 Ill. App.3d 193, 415 N.E.2d 1099.) Summary judgment is not designed to try issues of fact (Gasdiel v. Federal Press Co. (1979), 78 Ill. App.3d 222, 396 N.E.2d 1241); as such, the right of the moving party must be clear, undisputed, and free from doubt. (Kocjancich v. Bridges (1981), 93 Ill. App.3d 550, 417 N.E.2d 694.) Pleadings and supporting documents are strictly construed against the movant and ...

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