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04/29/88 American Warehousing v. Howard R. Weitzman Et Al.

April 29, 1988

AMERICAN WAREHOUSING SERVICES, INC., PLAINTIFF-APPELLEE

v.

HOWARD R. WEITZMAN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

533 N.E.2d 366, 169 Ill. App. 3d 708, 120 Ill. Dec. 171, 127 Ill. Dec. 494 1988.IL.632

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields and the Hon. Roger J. Kiley, Jr., Judges, presiding. Originally Reported at 523 N.E.2d 1082.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

In this appeal defendant Howard R. Weitzman contends that the trial court erred in denying his motion to dissolve a temporary restraining order. Plaintiff responds that the issues in this appeal have become moot. We affirm.

On October 2, 1987, plaintiff, American Warehousing Services, Inc. , filed a verified complaint for injunctive and other relief against defendants Howard R. Weitzman, Brian K. Flisk and Metropolitan Petroleum Company, *fn1 alleging tortious interference with business relations and conversion. The complaint also included a request for interpleader relief in connection with a dispute over rent. On the same day, AWS filed a motion for a temporary restraining order, supported by affidavits. Although the motion has not been made part of the record on appeal, the parties appear to agree as to the contents thereof.

AWS leased warehouse space from Weitzman, Flisk and Metropolitan Petroleum at 4800 South Central Avenue in Chicago, Illinois. On Wednesday, September 30, 1987, AWS gave Weitzman written notice of its intent to vacate the premises on or before October 31, 1987. Upon receipt of this notice, Weitzman and Flisk threatened to lock the gates to the premises and prevent AWS' customers from entering and exiting the leased premises unless the rent allegedly due was paid, thereby disrupting AWS' business operations. Previously, Weitzman and Flisk had seized certain property belonging to AWS, which they refused to return unless AWS paid the disputed rent. On Friday, October 2, 1987, Weitzman followed through with his threat by preventing certain trucks of AWS' customers from entering the premises, "because of a rent dispute."

AWS filed the lawsuit at 1:30 p.m., on Friday, October 2, 1987. Plaintiff's counsel called defendant Weitzman at that time and informed him that the case had been assigned to Judge Kiley and that AWS would request a temporary restraining order at 2 p.m. Approximately 15 to 20 minutes after this call, counsel called Weitzman again to inform him that Judge Shields would hear the case because Judge Kiley was not available. At 2 p.m., AWS presented the motion for a temporary restraining order to Judge Shields, who entered the following order:

"NOW, THEREFORE, defendants, Howard R. Weitzman and Brian K. Flisktheir agents and all those acting with them or at their directionare hereby temporarily restrained from in any [manner] whatsoever preventing trucks of customers of American [Warehousing] Services, Inc., from entering or exiting American's premises at 4800 South Central Avenue, Chicago, Illinois, from harassing or 'slowing down' the movement of said trucks and from any other action which unlawfully interferes with the business of American Warehousing Services, [Inc.,] or its customers at 4800 South Central Avenue, Chicago, Illinois."

Immediately after the temporary restraining order was entered plaintiff's counsel called Weitzman at 3:10 p.m. on October 2, 1987, and read the order to him verbatim.

On October 5, 1987, AWS filed an emergency motion to hold Weitzman in contempt for violating the temporary restraining order by locking the outer gates to the warehouse, placing obstacles in front of the loading docks and turning off the electricity. On October 8, 1987, Weitzman filed an answer to the motion for a restraining order and also a motion to vacate the order. On the same day, Judge Kiley extended the temporary restraining order to October 9, 1987. After a two-day evidentiary hearing on October 8 and 9, 1987, Weitzman was found in contempt of court on October 13, 1987. His motion to vacate that finding is still pending in the trial court.

As part of his October 13, 1987, order, Judge Kiley modified the temporary restraining order entered by Judge Shields on October 2, 1987, by requiring AWS to make a $25,000 "use and occupancy payment" to "4800 South Central Building Account" for the month of October 1987, without prejudice to the rent claims of the parties, to tender $2,000 to the clerk of the circuit court "as a bond to protect the defendants against the finding of any wrongful issuance of the Temporary Restraining Order herein" and to pay $6,000 to the clerk of the court for deposit in an interest bearing account in connection with AWS' interpleader claim. AWS fully complied with the terms of that order.

Weitzman's motion to dissolve the temporary restraining order was continued to October 15, 1987, at which time Judge Kiley denied the motion and continued the restraining order to October 26, 1987. Because AWS vacated defendants' premises late in October 1987, the temporary restraining order is no longer in effect, ...


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