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12/31/87 Thomas Poulos Et Al., v. Ronald Reda Et Al.

December 31, 1987

THOMAS POULOS ET AL., PLAINTIFFS-APPELLEES

v.

RONALD REDA ET AL., D/B/A POWER ZONE GYM, DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 816, 165 Ill. App. 3d 793, 117 Ill. Dec. 465 1987.IL.1973

Appeal from the Circuit Court of Cook County; the Hon. Angelo D. Mistretta, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. QUINLAN, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Plaintiffs, Thomas and James Poulos, filed an action pursuant to the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1983, ch. 110, par. 9-101 et seq.) against the defendants, Ronald Reda and Richard Litwin, d/b/a Power Zone Gym, for possession of the subject premises and rent. The defendants filed a timely jury demand, answer, affirmative defenses and a three-count counterclaim based upon an agreed order entered in a previous forcible entry and detainer action between the identical parties on the same lease agreement. On the day of trial, the trial court granted summary judgment in favor of the plaintiffs as to the defendants' counterclaim, struck the defendants' jury demand and entered judgment in favor of the plaintiffs after a bench trial. This appeal follows.

For the reasons hereinafter stated, we reverse the decision of the trial court.

On April 1, 1980, the parties entered into a lease agreement and addendum regarding certain commercial property located at 2209-11 South Laramie in Cicero, Illinois. Various disputes arose between the parties regarding their rights and obligations under the lease, and in March 1985, the plaintiffs filed a forcible entry and detainer action against the defendants for possession of the premises and rent. On May 21, 1985, the court entered an order pursuant to an agreement of the parties settling the disputed obligations and the suit was dismissed. The terms of the settlement order essentially required the plaintiffs to make certain repairs to the premises and provided for a reduced rent for the ensuing six-month period.

Subsequent to the dismissal of the first action, the plaintiffs filed the present action, against seeking possession of the premises and rent. The defendants filed a timely jury demand, an answer, affirmative defenses and a three-count counterclaim. The affirmative defenses alleged that the defendants were entitled to various setoffs against the rent due and owing to the plaintiffs based upon the obligations of the parties as enumerated in the settlement order dismissing the first forcible action. The counterclaim sought a permanent injunction barring the plaintiffs from terminating the lease and seeking specific performance under the lease and settlement order (count I), lost profits incurred because of plaintiffs' noncompliance with the settlement order (count II), and attorney fees (count III).

Plaintiffs filed a motion to strike and dismiss defendants' counterclaim pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) for failure to state a cause of action. The trial court denied plaintiffs' motion as to counts I and II. Count III was dismissed by agreement of the parties.

Plaintiffs then filed responses to the affirmative defenses and counterclaim and filed two motions for summary judgment. The first motion sought summary judgment on the plaintiffs' original complaint against the defendants alleging that the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.) precluded the defendants from establishing their defenses. They argued that because the order relied on by the defendants in their defenses was not signed by the plaintiffs, it was barred by the Statute of Frauds. Since the defendants could not establish their affirmative defenses without that document, plaintiffs contended that they were entitled to summary judgment as a matter of law. The motion was supported by a copy of the original lease agreement, a copy of the court order of May 21, 1985, and an affidavit executed by the plaintiff stating that both exhibits were true and exact copies of the documents they purported to be.

The second motion sought summary judgment on the defendants' counterclaims and relied on a similar argument. Defendants' counterclaim alleged that the settlement agreement of May 21, 1985, constituted a modification of the original lease agreement. Plaintiffs argued that the order could not be considered as evidence of a modification because it was not signed by the plaintiffs as required by the Statute of Frauds. Plaintiffs asserted that since the order was not admissible as proof of an alleged modification, the defendants had no basis for their counterclaim, and the plaintiffs were entitled to summary judgment as a matter of law. This motion was similarly supported by a copy of the original lease agreement, a copy of the court order of May 21, 1985, and an affidavit executed by the plaintiffs stating that both exhibits were true and exact copies of the documents they purported to be.

Defendants responded to both motions, stating that the Statute of Frauds was not applicable to the order of May 21, 1985. Both motions for summary judgment were heard on the morning of trial. The court denied the plaintiffs' motion as to the original complaint, but granted summary judgment without prejudice in favor of the plaintiffs as to the counterclaim, stating that the counterclaim was not "germane" to the forcible entry and detainer action.

Immediately prior to trial, the court informed the parties that in its opinion section 9 -- 108 of the Forcible Entry and Detainer Act, which provided for the right to trial by jury, applied only to residential property and that the parties were to proceed to trial without a jury. During the course of the trial the court did not allow into evidence any testimony or exhibits regarding the settlement order or depreciated value of the premises. At the Conclusion of the trial, the court awarded judgment to the plaintiffs in the amount of $9,000 less $1,450.20 expended by the defendants in repairing the premises. Possession was stayed for ...


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