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Ahn Brothers, Inc. v. Buttitta

OPINION FILED MAY 9, 1986.

AHN BROTHERS, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

DOMINIC J. BUTTITTA ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

In this consolidated appeal, plaintiffs appeal from two orders of the trial court — one which directed a finding in favor of defendants on the declaratory judgment count of plaintiffs' complaint, and the other which dismissed with prejudice the remaining counts of the complaint.

Plaintiffs, Ahn Brothers, Inc., Dongkee Ahn and Sungkee Ahn, filed this tort action against defendants, Dominic J. Buttitta and Dominic A. Buttitta, seeking to recover damages and to set aside a release. Defendants owned and operated a shopping center located at 716 South Barrington Road in Streamwood. In August 1978, plaintiffs purchased a restaurant located in that shopping center and, in conjunction with the purchase, took an assignment of lease for the premises occupied by the restaurant. Pursuant to the assignment, plaintiffs assumed all liabilities of the lease, including rent, late-payment charges, shared-increased-property-tax expense, shared-common-area expense, shared-common-area lighting, and reimbursement for reasonable attorney fees and costs upon default.

In June 1980, plaintiffs sold the restaurant to N.J., Inc. for $78,000, payable in installments over four years and backed by a security interest in the restaurant and equipment. N.J., Inc. took an assignment of the lease covering the restaurant premises, with plaintiffs remaining liable in the event of default.

In the fall of 1980, N.J., Inc. encountered financial difficulty and failed to pay its monthly rental payments. Defendants contacted plaintiffs in December 1980 and demanded N.J., Inc.'s December rent. Plaintiff Dongkee Ahn then met with Jack Mishler, one of the principals of N.J., Inc., and entered into a oral agreement whereby plaintiffs retook possession of the restaurant and agreed to resume making rent payments to defendants.

Plaintiffs paid the December and January rent and penalties. No other payments were made.

In February 1981, Mishler ceased operation of the restaurant and abandoned it. Plaintiffs went into the restaurant a few times to clean it, but they did not reopen it. In April, Defendants changed the locks. Plaintiff Dongkee Ahn testified that he then telephoned defendant Dominic A. Buttitta and asked him why he changed the locks. Buttitta's response was, "Bring the rent. If you bring the rent, you can open the door." Plaintiff claimed, and defendants denied, that plaintiffs later unsuccessfully attempted to obtain the keys in person from defendant.

Defendant Dominic J. Buttitta explained in his answers to interrogatories that the front-door lock was rekeyed on April 1, 1981, so that the premises could be secured from vandalism. Prior to this, defendant did not have a key to the front door. Plaintiffs took no other action and never reentered the premises.

In August 1981, defendants' attorney sent plaintiffs a release in which plaintiffs would be excused from any obligation to pay back rents, taxes, late charges and interest, in exchange for plaintiffs' release of any and all claims they had under the lease and to all personal or trade fixtures located at the restaurant. Plaintiffs signed the release both individually and for the corporation.

Plaintiffs filed suit in June 1982 to set aside the release and to recover damages against defendants for their allegedly tortious conduct. The cause proceeded to trial on plaintiffs' fifth amended complaint which sought: (1) damages for trespass to realty, (2) damages for conversion, (3) damages for interference with prospective business advantage, and (4) declaratory judgment to test the validity and binding effect of the release.

On November 1, 1984, a bench trial was held on the declaratory judgment count. At the close of plaintiff's case, the court granted defendants' motion for a directed finding and thereby declared the release to be valid and binding. The court also set the remaining three counts for trial. Plaintiffs filed a notice of appeal as to this order on November 13, 1984. Prior to trial on the remaining counts, defendants filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619). Following argument, the court granted the motion to dismiss with prejudice, concluding that the release extinguished all remaining claims under the complaint. Plaintiffs timely filed a notice of appeal as to this order. The appeals have been consolidated by this court.

• 1 Plaintiffs first argue that, in directing a finding in favor of defendants on the declaratory judgment count, the trial court was required to follow the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, namely, whether all the evidence, when viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favors defendants that no contrary verdict based on that evidence could ever stand. Defendants submit that the proper standard is set forth in section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1110), which requires the court in a bench trial at the close of the plaintiff's proofs to "weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence."

It is well settled that in a bench trial the defendant may move for judgment at the close of the plaintiff's case. (McHenry State Bank v. City of McHenry (1983), 113 Ill. App.3d 82, 84; see Ill. Rev. Stat. 1983, ch. 110, par. 2-1110.) The trial court must first determine, as a legal question, whether the plaintiff has presented a prima facie case and must grant the defendant's motion if the plaintiff has failed to do so. If the plaintiff has presented a prima facie case, the court must then weigh the evidence considering the credibility of the witnesses and the quality of the evidence. (Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154-55; McHenry State Bank v. City of McHenry (1983), 113 Ill. App.3d 82, 84; see Ill. Rev. Stat. 1981, ch. 110, par. 2-1110.) If this weighing process negates some of the evidence necessary to the plaintiff's prima facie case, the court should enter judgment for the defendant. However, the motion should be denied if sufficient evidence remains to establish the plaintiff's prima facie case. Contrary to the Pedrick standard, the court is not to view the evidence in the light most favorable to the plaintiff. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154.

• 2 Consequently, the Pedrick standard the plaintiffs seek to impose is not appropriate under the present circumstances. The trial court proceeded under the correct standard as set forth in section 2-1110 of the Code of Civil Procedure. Upon a review of the record, we conclude the trial court's determination is not contrary to the manifest weight of the evidence. ...


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