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08/11/89 Exchange National Bank of v. Randy S. Sampson

August 11, 1989

EXCHANGE NATIONAL BANK OF CHICAGO, AS TRUSTEE, PLAINTIFF-APPELLEE

v.

RANDY S. SAMPSON, D/B/A SUBURBAN GRAPHICS, DEFENDANT-APPELLANT

ON JUNE 2, 1988, IN LIEU OF TRIAL ON THE PLAINTIFF'S COMPLAINT IN FORCIBLE ENTRY AND DETAINER (ILL. RE

v.

STAT. 1987, CH. 110, PAR. 9-101 ET SEQ.), THE TRIAL COURT ENTERED AN AGREED ORDER SETTING FORTH THE TERMS OF THE SETTLEMENT REACHED BETWEEN THE PARTIES AS FOLLOWS: "AGREED ORDER



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 1303, 186 Ill. App. 3d 969, 134 Ill. Dec. 796 1989.IL.1239

Appeal from the Circuit Court of Du Page County; the Hon. Charles E. Ruth, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Randy S. Sampson, d/b/a Suburban Graphics, appeals the judgment of the circuit court of Du Page County awarding the plaintiff, Exchange National Bank of Chicago, as trustee under trust No. 3529, a writ of possession of the defendant's business premises on Main Street in Wheaton, Illinois, rent arrearage and attorney fees and costs. The defendant's motion to vacate the judgment was denied, and this appeal was filed.

The defendant raises these issues: (1) whether the trial court lacked authority to unilaterally amend the terms of its agreed order with the plaintiff and thereafter enforce the amended terms against it; and (2) whether the trial court abused its discretion when it awarded plaintiff attorney fees. Also taken with the case is the plaintiff's motion for attorney fees incurred in this appeal. We affirm and remand the cause for an evidentiary hearing on plaintiff's attorney fees incurred on appeal.

This cause having come before the Court for trial & the parties having conferred with counsel & desirous of settling this matter, & the Court being advised in the premises, it is ORDERED:

1) Defendant has tendered Plaintiff checks Nos. 9410, 9416 & 9424 in the aggregate sum of $3100.00 as & for rents in arrears for June 1988 and July 1988.

2) Defendant shall mail to Plaintiff on or before June 12, 1988 a check in the amount of $1325.00 representing the balance of the rent due for March, 1988 based upon the agreement of the parties to split the plumbing bill of 1246.61, Plaintiff contributing $625.00 and Defendant the balance.

3) The parties agree to split evenly any future plumbing repairs to pipes contained in the walls or ceilings. The parties shall promptly confer to make any such repairs & provide each other with bills.

4) This cause is continued for 4 months. If Defendant fails to deposit the rent in the mail on or before the 1st day of the month, on motion of Plaintiff, a writ of possession shall issue. If all conditions are complied with, this cause shall be dismissed, each party to bear its own fees and costs."

In August, the defendant petitioned the court to find the plaintiff in contempt of court for violating the agreed order by failing and refusing to confer regarding plumbing repairs and by refusing to pay for any plumbing repairs. Plaintiff moved to strike or deny the defendant's petition for a contempt finding and filed its motion for writ of possession and judgment for unpaid rent and for attorney fees and costs. Plaintiff alleged therein that the rent for August in the amount of $1,950 had not been received as of August 11, 1988, and that the parties' lease provided for attorney fees and costs in the event of a default. Appended to the motion was plaintiff's counsel's affidavit as to the fees and costs incurred in connection with the litigation.

On August 18, after hearing evidence and argument, which included defendant's argument that time was not made "of the essence" in the agreed order, the court denied the plaintiff's motion for writ of possession and required the defendant to pay the August rent instanter. Then, on its ...


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