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05/16/89 Florence Curtis Fitzgerald v. Lake Shore Animal Hospital

May 16, 1989

FLORENCE CURTIS FITZGERALD, PLAINTIFF-APPELLEE

v.

LAKE SHORE ANIMAL HOSPITAL, INC., DEFENDANT-APPELLANT

ON NOVEMBER 13, 1986, DEFENDANT MOVED IN THE FORCIBLE ACTION, PURSUANT TO SECTION 2-619 OF THE ILLINOIS CODE OF CIVIL PROCEDURE (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-619), TO DISMISS THE FORCIBLE DETAINER SUIT OR TO CONSOLIDATE IT WITH DEFENDANT'S CHANCERY ACTION.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

539 N.E.2d 311, 183 Ill. App. 3d 655, 132 Ill. Dec. 1 1989.IL.737

Appeal from the Circuit Court of Cook County; the Hon. Marvin H. Ruttenberg, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

This action was brought to recover possession of commercial property leased to defendant. The trial court entered summary judgment in favor of plaintiff and awarded a portion of her attorney fees incurred in enforcing the terms of the lease. Defendant appeals, arguing that the trial court abused its discretion in awarding those fees.

Defendant has been the tenant in plaintiff's building, located at 225 West Division Street in Chicago, since it was built in 1966. The facility is a single-use structure with specifically designed features, many of which were created and provided by defendant's owner, the late Dr. Prasuhn, for use in his hospital. On January 31, 1985, the parties entered into a written lease for a term of one month, renewable by holding over. The holdover tenancy under the lease was on a month-to-month basis and was terminable by either party upon one month's notice. The pertinent provision in the lease is as follows:

"At the termination of this lease, by lapse of time or otherwise, Lessee will yield up immediate possession of the Premises to Lessor, in good condition and repair, loss by fire and ordinary wear excepted, and will return the keys therefor to Lessor at the place of payment of rent. If Lessee retains possession of the Premises or any part thereof after the termination of the term by lapse of time or otherwise, then such holding over constitutes creation of a month to month tenancy, upon the terms of the lease, terminable by either party upon notice to the other party, prior to the beginning of the month next succeeding the date of the notice. Lessee shall also pay to Lessor all damages sustained by Lessor resulting from retention of possession by Lessee. The provisions of this paragraph shall not constitute a waiver by Lessor of any right of re-entry as hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmance of tenancy operate as a waiver of the right to terminate this lease for a breach of any of the covenants herein."

On August 27, 1986, shortly after Dr. Prasuhn's death, plaintiff served notice to terminate, requiring defendant to vacate the premises by October 1, 1986.

On September 26, 1986, defendant and Mary Prasuhn, Dr. Prasuhn's executor, filed a declaratory judgment against plaintiff in the chancery division of the circuit court of Cook County, claiming that plaintiff's notice to vacate violated an oral agreement between plaintiff's attorney and Dr. Prasuhn that defendant would be given a reasonable time to relocate and move before being required to yield possession. Defendant also sought in the same suit to enjoin plaintiff from instituting a forcible detainer action.

On or about September 30, 1986, defendant received a "Statement of Rent Due" for October 1986, which it promptly paid and which payment was accepted by plaintiff's agent.

On October 2, 1986, plaintiff filed a forcible detainer action in circuit court, and, on November 5, 1986, she filed a motion for summary judgment thereon.

On December 3, 1986, the trial Judge denied both defendant's motion to dismiss or consolidate and plaintiff's motion for summary judgment, required defendant to respond to the complaint within seven days, ordered that discovery be completed by December 31, 1986, and set the case for trial on January 7, 1987.

On December 12, 1986, defendant filed a second motion to consolidate before another Judge in the law division of the circuit court. That motion was continued until January 8, 1987, one day after the then ...


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