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09/01/88 Richard A. Keefe, v. Tim O'neil Et Al.

September 1, 1988

RICHARD A. KEEFE, PLAINTIFF-APPELLANT

v.

TIM O'NEIL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

529 N.E.2d 628, 174 Ill. App. 3d 1068, 124 Ill. Dec. 647 1988.IL.1335

Appeal from the Circuit Court of Cook County; the Hon. Joseph R. Schwaba, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This action was commenced in the circuit court of Cook County by plaintiff, Richard A. Keefe, the landlord, pursuant to the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1985, ch. 110, par. 9-101 et seq.). The trial court ordered defendants, Tim and John O'Neil, the tenants, to terminate their possession of the premises and pay arrearages to the date their possessory interest terminated. Plaintiff's petition for liquidated damages and attorney fees was denied. Subsequently, plaintiff filed a motion for a rehearing on the issues of damages and attorney fees, which the trial court denied. Plaintiff appeals from the denial of this motion raising the issues of (1) whether the trial court erroneously denied plaintiff a hearing on his amended verified petition for damages and petition for attorney fees, and (2) whether defendants' failure to respond to plaintiff's amended verified petition for damages constitutes an admission entitling plaintiff to an order granting such damages.

We affirm.

The record indicates that this is a forcible entry and detainer action to regain possession, via eviction, of certain premises in which plaintiff has an interest as beneficiary of a land trust at La Salle National Bank of Chicago. Plaintiff based his cause of action on an industrial building lease entered into by the parties hereto on October 1, 1982. The lease was for a period from October 1, 1982, until September 30, 1985, at a rental of $3,500 per month. Defendants subsequently extended the lease through September 1988, by notice to plaintiff, at the same rental amount plus a monthly real estate tax deposit in the amount of $450. Plaintiff filed his complaint for forcible entry and detainer on July 8, 1986, asserting that the July 1986 rent had not been remitted.

Defendants, on August 11, 1986, filed their answer and affirmative defense denying the validity of the lease, and the matter was continued until August 25. Defendants filed a counterclaim on August 18, alleging a joint venture with plaintiff involving the property. The matter came for hearing on August 25 and was set for trial on September 2, 1986, solely on the issue of possession. On August 29, defendants filed a motion to dismiss and plaintiff filed a motion to strike the counterclaim as not timely filed and containing irrelevant issues. Both motions were set for hearing on September 2, 1986.

The September 2 hearing resulted in the issuance by Judge Loverde of an agreed order which (1) required defendants to pay $7,900 to plaintiff, said sum representing rent for July, August, and September at the rate of $3,800 per month (which included a real estate tax deposit of $300 per month) less the security deposit of $3,500; (2) specified that "all rights and interests to the leasehold presently before the Court will end on October 1, 1986, with defendants to hold possession until that date"; (3) continued plaintiff's claim for damages and all other motions until October 8, 1986; and (4) granted plaintiff seven days to file amended pleadings and defendants 14 days to respond to those pleadings.

Plaintiff filed a petition for damages on September 12, 1986. On October 8, the trial court denied that petition, granted plaintiff leave to amend, and set the matter for hearing on October 28, 1986. Defendants filed their amended counterclaim on October 27. The next day (the date set for hearing) plaintiff filed his amended verified petition for damages and memorandum in support thereof, defendants filed their response and supportive memorandum, and the matter was continued.

On December 19, 1986, the matter came for hearing before Judge Schwaba. The trial court granted plaintiff's motion to strike defendants' counterclaim as not being germane or related to a forcible entry and detainer complaint. Further, the court denied plaintiff's amended verified petition for damages and for attorney fees "due to the order of J. Loverde of September 2, 1986, and the payment of $7,900." Plaintiff filed a motion for rehearing and for judgment on the pleadings, which was denied on January 20, 1987. Plaintiff appeals. I

Plaintiff contends that the trial court erroneously denied him an evidentiary hearing on the issues of damages and attorney fees. He emphasizes the language of the December 14, 1986, order wherein the trial court stated that its denial was "due to the order of J. Loverde of September 2, 1986, and the payment of $7,900." Plaintiff asserts that such language is indicative of the trial court's misinterpretation of the September 2 order as a settlement agreement. He argues that the September 2 hearing did not consider damages or attorney fees, and that, in fact, the resultant order from that hearing specifically continued those issues. He further claims that the trial court refused to hear evidence on damages or attorney fees on December 19 when it denied his amended petition for damages and for attorney fees and, thereby, deprived him of a hearing on these issues.

We note first that we agree the September 2 order, by continuing the issues of damages and attorney fees, does clearly indicate that these matters were unresolved at that time. However, we cannot agree with plaintiff's contention that he was deprived of an evidentiary hearing on these issues. Judge Schwaba's reference to the September 2 order can raise inferences inconsistent with plaintiff's assertion. On plaintiff's allegation alone, we will not assume that the trial court misinterpreted the September 2 order to be a settlement agreement or that it arbitrarily refused to allow plaintiff an opportunity to present his evidence. "It is a basic principle of appellate practice that a party who brings a cause to a reviewing court must present in the record the proceedings to show the error complained of." (La Pierre v. Oak Park Federal Savings & Loan Association (1974), 21 Ill. App. 3d 541, 546; Ill. Ann. Stat., ch. 110A, par. 321, Historical and Practice Notes, at 349 (Smith-Hurd 1985).) Plaintiff has failed to include in the record a report of the proceedings of December 19, 1986. Thus, plaintiff has failed to support his allegations of error with the record and, accordingly, we will not consider his allegations on ...


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