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05/01/89 John Georgacopoulos, Indiv v. John Georgacopoulos

May 1, 1989

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT VOLE, INC., PLAINTIFF-APPELLEE

v.

JOHN GEORGACOPOULOS, INDIV. AND D/B/A FRANKFURTER EXPRESS, ET AL., DEFENDANTS-APPELLANTS



538 N.E.2d 205, 181 Ill. App. 3d 1012, 131 Ill. Dec. 17 1989.IL.643

Appeal from the Circuit Court of Lake County; the Hon. Stephen E. Walter, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendants appeal from the judgment of the circuit court of Lake County finding defendants in breach of a commercial lease with plaintiff, Vole, Inc., and ordering a forfeiture of the lease and repossession by plaintiff. Defendants' counsel has failed to comply with Supreme Court Rule 341(e)(4)(ii), which requires a jurisdictional statement indicating a proper basis for appellate jurisdiction. (122 Ill. 2d R. 341(e)(4)(ii).) We expect compliance with this rule in future appeals to this court.

Plaintiff is the owner of a parcel of land located at 23250 N. Milwaukee Avenue, Half Day, Lake County, Illinois. On July 15, 1972, plaintiff entered into a written lease for the parcel with the lessees, Arthur and Silvio DiVito. The lease agreement called for the construction of a building on the parcel by the lessees. The term of the lease was 24 years. The amount of rent was set at $450 a month for two years, $500 per month for the next three years and $600 per month for the balance of the term. All construction costs were to be paid by the lessees. A building was constructed, and the lessees commenced operation of a hot dog stand known as Art's Beef.

In September 1980, the lease was assigned, with the required consent of plaintiff, to defendant Thomas G. McGrogan. Defendant McGrogan continued the operation of Art's Beef. In January 1982, defendant McGrogan contracted by sublease with the original lessee DiVito to operate the business for defendant. DiVito operated the business until December 31, 1982. Rent was paid by DiVito to McGrogan and then McGrogan paid plaintiff. In January 1983, a sublease was entered into between McGrogan and Vernel Reddig for a period of one year.

On December 27, 1983, defendants John Georgacopolous and McGrogan entered into a sublease. Georgacopolous was the owner of Fiddlesticks Saloon and Dining Room (Fiddlesticks), a restaurant located on property adjacent to the premises of plaintiff being leased to defendant McGrogan.

In March 1984, defendant McGrogan sent a letter notifying plaintiff of his intention to erect a new sign on the leased property. He received no response. The sign was erected and advertised both the hot dog stand, now called Frankfurter Express, and Fiddlesticks, the restaurant next door. The part of the sign advertising Fiddlesticks was illuminated and twice the size of the part of the sign advertising Frankfurter Express. The part of the sign advertising Frankfurter Express was not illuminated. The sign also advertised the fact that Fiddlesticks served alcoholic beverages.

McGrogan acknowledged receipt of at least two letters notifying him of plaintiff's objections to the sign. The first of these letters was received in October 1984. Defendant McGrogan also testified to having received actual notice that plaintiff objected to the use of the leased premises for the parking of cars belonging to patrons of Fiddlesticks and that defendant McGrogan received such notice prior to ever subletting the premises to defendant Georgacopolous in January 1983.

On August 16, 1985, a two-count complaint was filed in the circuit court of Lake County against defendants regarding the use of plaintiff's property located at 23250 N. Milwaukee Avenue, Half Day, Lake County, Illinois. Count I alleged, inter alia, that defendant Georgacopoulos, the corporate president of Lincolnshire Inn, Inc., an Illinois corporation, operating the Fiddlesticks Saloon and Dining Room at the premises immediately adjacent to and bordering the westerly edge of the leased premises, had joined the two businesses' parking lots; used the parking facilities of the leased premises in connection with the operation of Fiddlesticks, wherein alcoholic beverages were sold; erected a sign upon the leased premises advertising Fiddlesticks, without the consent of plaintiff; used the leased premises' parking lot for eight hours per day solely for the use of the patrons of Fiddlesticks; and used and maintained the sign only to advertise Fiddlesticks. Count II adopted and realleged the foregoing and additionally alleged an unauthorized assignment of the lease and sought a right to re-enter and repossess the leased premises.

At the hearing for a preliminary injunction on November 20, 1985, the court entered an order which required defendants to reinstall cement bumpers which effectively divide the parking lots, prohibited the valet parking attendants of Fiddlesticks from parking vehicles on the leased premises, prohibited the sign from advertising or promoting the sale of alcoholic beverages at Fiddlesticks, and prohibited Fiddlesticks' employees from advising their patrons or prospective patrons to park on the leased premises. Pursuant to a petition for rule to show cause and other relief filed April 7, 1986, the court on April 23, 1986, found that the defendants, Georgacopoulos and McGrogan, willfully failed and refused to install cement bumpers effectively dividing the parking lots, that they advertised and promoted the sale of alcoholic beverages on the sign, and that valet parking attendants from Fiddlesticks parked vehicles on the leased premises; and held defendants in contempt of court. The court again directed compliance with its order and imposed fines. Pursuant to a further petition, the court on December 9, 1986, ordered that the cement bumpers be secured to preclude their being moved.

On February 17, 1988, an agreed order was entered which granted a permanent injunction in favor of plaintiff as requested in count I. The order also provided, "That this cause is set for trial on April 18, 1988, at 10:30 a.m. on the issue of attorneys' fees and Count II of the complaint." The case proceeded to trial resulting in the trial court's order of April 26, 1988, and in a judgment order dated May 2, 1988.

In its decision, the trial court initially found that the defendants breached the lease in two pertinent ways: (1) by causing an alteration to the premises, other than the building, by removal of the outdoor sign and replacing it with a substantially larger sign which advertised, for all practical purposes, the adjacent restaurant; and (2) by changing the primary use of the premises to a parking lot for the adjacent restaurant by removing cement bumpers between the lots, by reducing business hours for the leased premises and by the posting of new signs with restrictions upon parking in any other adjacent lots but not posting such signs on the leased premises. Not only did the trial court find that the evidence was ...


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