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06/01/87 J & G Restaurant, Inc., v. James A. Regas Et Al.

June 1, 1987





510 N.E.2d 17, 156 Ill. App. 3d 834, 109 Ill. Dec. 396 1987.IL.725

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.


As noted above, the present case arises out of a forcible entry and detainer action brought by plaintiff's landlord on January 3, 1980. In that action, the landlord alleged that plaintiff had failed to pay rent at the Del Prado Building at 5307 South Hyde Park in Chicago for the months of November and December 1979, in breach of its obligation under a lease dated August 1, 1977. The landlord further alleged that plaintiff was notified of its default on December 12, 1979, and failed to cure the default within five days, as required by the lease. The landlord sought possession of the premises as well as back rent, interest, costs and attorney fees.

Plaintiff retained defendants as counsel in that action, and defendants appeared on January 11, 1980. Defendants filed successive motions to dismiss on behalf of plaintiff, arguing that the landlord's notice of default failed to conform to statutory requirements and that the lease provided for cure within 10 days of default rather than five days as alleged by the landlord. The trial court rejected both arguments, and denied the motions to dismiss.

At a pretrial conference on May 13, 1980, defendants presented a motion in limine, again urging an interpretation of the lease to the effect that a default in payment of rent could be cured within 10 days of notice, not five days. The court permitted plaintiff to make an offer of proof as to the parties' intent to the lease. The trial Judge ultimately disallowed this evidence and held that the lease unambiguously provided for cure within five days of notice of default for nonpayment of rent.

The forcible entry and detainer action was subsequently tried before a jury. The trial court directed a verdict in favor of the landlord as to rent, but denied the motion for a directed verdict as to possession. After closing arguments and instructions, the jury returned a verdict in favor of the landlord. The trial court entered judgment for possession, but stayed execution and reserved jurisdiction over interest and fees.

Without filing a post-trial motion, defendants appealed the judgment entered against plaintiff. In their brief on behalf of plaintiff, defendants presented a number of issues for review, including the statutory requirements for default notice, the period of cure for default, evidentiary matters, and errors in jury instructions. The landlord responded in its brief that no error occurred, that any error which may have occurred was harmless, and that plaintiff's appeal should be dismissed for failure to preserve issues by filing a post-trial motion. The appellate court declined to dismiss the appeal, but found that the substantive issues were waived and affirmed the judgment without deciding those issues. See American National Bank & Trust Co. v. J & G Restaurant, Inc. (1981), 94 Ill. App. 3d 318, 418 N.E.2d 909.

On May 29, 1984, plaintiff filed the instant action against defendants seeking $1.25 million in damages. Plaintiff alleged in its complaint that the judgment in favor of the landlord in the forcible entry and detainer action would have been reversed but for defendants' failure to preserve issues on appeal. In response to a demand by defendants, plaintiff filed a bill of particulars on September 17, 1984, specifying the trial errors which allegedly entitled it to a reversal.

Thereafter, the parties submitted the case to the court on cross-motions for summary judgment. Plaintiff argued in support of its motion that the two errors in the earlier case which would have resulted in reversal on appeal were that the trial court misconstrued the lease to provide plaintiff with five days, rather than 10, to cure the default in payment of rent and erred in instructing the jury that plaintiff was required to "pay" the rent within the time permitted rather than to "tender" the rent. At the hearing on the cross-motions, plaintiff conceded that if the trial court's interpretation of the lease was correct, then "[that] would dispose of the motion."

The trial court rejected both of plaintiff's arguments and granted defendants' motion for summary judgment. The court reaffirmed its decision on plaintiff's motion to reconsider, and plaintiff appealed.

Summary judgment is properly granted where the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 472 N.E.2d 822.) Summary judgment will not be reversed absent an abuse of discretion by the trial court such that the plaintiff's right to fundamental Justice is violated. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.) In the present case, the trial Judge acted properly ...

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