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12/26/89 Steel City National Bank v. J.J. Wright Oldsmobile

December 26, 1989

STEEL CITY NATIONAL BANK OF CHICAGO, AS TRUSTEE, PLAINTIFF-APPELLANT

v.

J.J. WRIGHT OLDSMOBILE, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

549 N.E.2d 726, 192 Ill. App. 3d 926, 140 Ill. Dec. 75 1989.IL.2023

Appeal from the Circuit Court of Cook County; the Hon. Loretta C. Douglas, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This appeal from the circuit court of Cook County arises from a forcible detainer action brought by Steel City National Bank of Chicago, as trustee under trust No. 2556 (plaintiff), to recover possession of commercial real estate leased to defendant J.J. Wright Oldsmobile, Inc. (Wright Oldsmobile). The circuit court entered judgment for Wright Oldsmobile following a hearing, and plaintiff appeals from this judgment.

The facts here are not in dispute. On March 31, 1975, Skorberg's of Crystal Lake, Inc. (Skorberg), owner of the premises at 17220 Torrence Avenue in Lansing, Illinois, leased the property to a corporate entity, J.J. Wright Motor Company (Wright Motors), for a 15-year term from the date of occupancy, occurring on or about June 1, 1975, with the option to renew the lease for two additional terms of five years each. Wright Motors was incorporated on January 23, 1923, in the State of Illinois, but was involuntarily dissolved by the Secretary of State of Illinois on December 29, 1969, for nonpayment of the franchise tax.

On July 7, 1975, subsequent to the execution of the lease, John A. Wright executed a "Memorandum of Lease and Assignment" to transfer Wright Motors' rights under the lease to Wright Oldsmobile. Wright executed the agreement as president of both Wright Motors and Wright Oldsmobile, the latter entity incorporated in the State of Illinois on May 9, 1975. Skorberg consented to the transfer as follows:

"The Landlord hereby consents to the assignment of the lease by the Tenant to the Assignee, but upon the express condition that neither such consent nor the collection of rent from the Assignee shall be deemed a waiver or relinquishment for the future of the covenant against assignment or subletting, nor shall the acceptance of the Assignee as tenant be construed as releasing the Tenant from the full performance of the provisions of the lease."

Subsequently, Skorberg went into bankruptcy, and First Federal Savings & Loan Association of Lansing, Illinois (First Federal), filed a mortgage foreclosure proceeding in the circuit court of Cook County. Wright Oldsmobile, as a party in possession, was made a defendant in that action. On June 6, 1979, the circuit court entered a "Decree of Foreclosure." Included in the decree was a finding that the lease dated March 13, 1975, between Skorberg and Wright Motors, subsequently assigned to Wright Oldsmobile, was "in full force and effect." First Federal was the successful bidder at the foreclosure sale, and plaintiff in 1983 became a later successor to that interest.

On May 23, 1988, plaintiff, claiming the existence of a month-to-month tenancy, served Wright Oldsmobile with a 30-day notice to terminate the tenancy. On July 18, 1988, plaintiff filed the instant forcible detainer proceeding. In its answer to plaintiff's complaint, Wright Oldsmobile claimed that it was lawfully in possession of the premises pursuant to the unexpired lease executed in March 1975.

Plaintiff's claim here, as well its claim before the circuit court, is that the March 1975 lease is invalid because Wright Motors lacked capacity to contract as a corporation since it had previously been administratively dissolved as a corporation. Before reviewing the circuit court's findings as to plaintiff's claim, we must first address defendant's contention that plaintiff's claim is moot due to an order entered in the circuit court during the pendency of this appeal.

Subsequent to the hearing in this action, a petition to vacate the dissolution order was filed in the circuit court. The court vacated the dissolution order and restored Wright Motors to good standing "with such powers, authority and franchises as it has and was authorized to exercise prior to the entry of such Decree." Defendant contends that this order renders plaintiff's claim moot because the order restores full corporate power to Wright Motors as of the date of its dissolution.

Plaintiff initially responds that our consideration of this court order would violate the established principle of appellate review that a reviewing court may consider only documents and arguments pertinent to the appellate record. (See McCutcheon v. Chicago Principals Association (1987), 159 Ill. App. 3d 955, 513 N.E.2d 55.) This argument overlooks the fact that the question we confront is whether to exercise our appellate jurisdiction in this case. The duty of an appellate court in exercising its power of review is confined to consideration of actual controversies and not to opine upon moot questions or to declare principles of law which cannot affect the matter in issue in the case before the court. (Johnson v. Quern (1980), 90 Ill. App. 3d 151, 412 N.E.2d 1082; Dear v. Dear (1967), 87 Ill. App. 2d 72, 230 ...


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