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12/08/88 Billy Mcminn, v. Lee J. Cavanaugh

December 8, 1988

BILLY MCMINN, PLAINTIFF

v.

LEE J. CAVANAUGH, INDIV. AND D/B/A TRI-C CERTIFIED SERVICE CENTER, ET AL., DEFENDANTS (ATLANTIC RICHFIELD

CAVANAUGH, INDI

v.

AND AS A MEMBER OF A PARTNERSHIP WITH MITCHELL



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Company, Counterplaintiff-Appellant; Lee J.

Cavanaugh,

Counterdefendants-Appellees)

No. 88-0377

532 N.E.2d 343, 177 Ill. App. 3d 353, 126 Ill. Dec. 658 1988.IL.1776

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN, delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Counterplaintiff, the Atlantic Richfield Company , brought a counterclaim in the circuit court of Cook County against counter-defendants, Lee J. Cavanaugh, individually and his partnership with Mitchell Cavanaugh (Cavanaugh). ARCO owned an automobile service station and Cavanaugh was its tenant under a lease. Both ARCO and Cavanaugh were named co-defendants in a personal injury action. In its counterclaim, ARCO sought indemnity from Cavanaugh based on provisions in the lease. The trial court dismissed ARCO's counterclaim. ARCO appeals, assigning error to the dismissal.

We affirm the order of the trial court.

Background

The trial court dismissed ARCO's counterclaim pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a)(9)). A motion to dismiss, including one under section 2-619(a)(9), admits all well-pled facts. Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 93, 405 N.E.2d 1256, 1261.

ARCO alleged in its counterclaim that on August 25, 1982, it and Cavanaugh entered into a lease agreement for an automobile service station. Cavanaugh became the tenant-operator of the service station, located at 3 North Wilke Road, in Arlington Heights, Illinois. The lease term began January 1, 1983, ...


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