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AMERICAN NATL. BANK & TRUST CO. v. HOYNE INDUS.

May 29, 1990

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, et al., Plaintiffs,
v.
HOYNE INDUSTRIES, INC., Defendant



The opinion of the court was delivered by: LINDBERG

 GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE.

 The parties have filed cross-motions for partial summary judgment. Neither party has fully complied with the rules governing the making of motions in this court.

 The Federal Rules of Civil Procedure provide that a motion "shall state with particularity the grounds therefor, and shall set forth the relief or order sought." FRCP 7(b). The General Rules of this court provide that "all motions shall state with particularity the grounds therefor and the relief requested." United States District Court, Northern District of Illinois, General Rule 12(c). Neither party's motion for partial summary judgment states with particularity the grounds for the motion. That the grounds are stated in the memoranda of the parties does not bring the motions into compliance with the applicable rules. In fact, the boilerplate generalities of defendant's motion appear to have been adopted without consideration of their applicability to the argument defendant makes, as the motion requests a "summary judgment dismissing the Complaint" while the memorandum sets forth no grounds which would warrant dismissal of the complaint and in fact only seeks to limit trial to "the amount of repair, if any, for which defendant is liable to plaintiffs." Defendant has also exceeded the 15 page limitation in its memorandum in support of its motion for partial summary judgment, submitting a memorandum of 17 pages, interestingly without page numbers, without obtaining prior approval of the court. United States District Court, Northern District of Illinois, General Rule 9(d). Although decision of the cross motions for summary judgment has been unnecessarily complicated by the failure of the parties to abide by the rules, the court will proceed to decide them in view of the nearness of the trial date.

 The complaint at bar contains six counts, three of which are premised on defendant's being liable for breaches of a lease of what is called the Ogden property and three of which are premised on defendant's being liable for breaches of a lease of what is called the 59th Avenue property. In their motion for summary judgment, plaintiffs contend that there is no genuine issue of material fact as to defendant's breach of both of the leases, and requests summary judgment as to liability on all six counts leaving for trial the question of damages. In its motion for summary judgment, defendant contends that there is no genuine issue of material fact that there was no privity of contract between defendant and plaintiffs and that there is no genuine question of material fact that plaintiffs did not properly mitigate damages after defendant vacated the premises. According to defendant, under either of these theories, there remains only a question as to damages for necessary repairs.

 Summary judgment should be rendered:

 
If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 FRCP 56(c). For the reasons stated below, plaintiffs' motion for partial summary judgment is granted and defendant's motion for partial summary judgment is denied.

 The undisputed facts show that plaintiff, American National Bank, holds, and has at all relevant times held, title as an Illinois land trustee to a piece of real property at 5829 West Ogden (the Ogden property) in Cicero. Plaintiff Midwest Bank holds, and has at all relevant times held, title as an Illinois land trustee to an adjacent piece of real property at 3215 South 59th Avenue (the 59th Avenue property) in Cicero. On March 13, 1969, plaintiff American National Bank and a corporation that is not a party to this lawsuit, Hoyne Industries, Inc. (Old Hoyne), entered into a fifteen-year lease of the Ogden property. Pursuant to an agreement with American National Bank, Old Hoyne took possession of the property on June 15, 1969. In late 1983, Old Hoyne exercised its option under the lease and renewed it for an additional five years, thus keeping the lease in effect through June 15, 1989. On April 1, 1986, Old Hoyne and plaintiff Midwest Bank entered into a lease of the 59th Avenue property. This lease, too, was to terminate on June 15, 1989.

 On March 20, 1987, the parent corporation of Old Hoyne transferred most of the assets and many of the liabilities of Old Hoyne to defendant, Hoyne Industries, Inc. (New Hoyne), pursuant to an Agreement for Purchase (Agreement). New Hoyne vacated both properties on or about January 31, 1988. Plaintiffs attempted to rent the properties for considerably more than defendant had been paying.

 The parties are agreed that New Hoyne was responsible for rent, taxes, and repairs up until the date on which defendant vacated the premises on January 31, 1988. They disagree as to whether New Hoyne was responsible for any of those items after it vacated the premises.

 The basis of the parties' disagreement is defendant's claim that New Hoyne was not in privity of contract with plaintiffs, and so was not responsible to perform under the lease. The Illinois Supreme Court has stated the law applicable to the issue raised as follows:

 
It has long been the law of Illinois that if the assignee of a lease does not assume the obligations thereof, then, as between the original lessor and such assignee there is privity of estate but not privity of contract; and the assignee is liable for rent only while such privity of estate continues, and may terminate further liability by assigning the lease and going out of possession. On the other hand, if there is an assumption of the lease obligations, then privity of contract also results and the assignee cannot shake off his contractual obligations by asking an assignment or going out of possession.

 Leitch v. New York Central Railroad Company, 388 Ill. 236, 58 N.E.2d 16, 18-19 (1944). In the case at bar, the undisputed facts indicate that defendant New Hoyne assumed the obligations of the leases.

 The Agreement provided:

 
4. Liabilities Retained by Sellers. It is understood and agreed that the Buyer is acquiring only the Purchased Assets and, except for the Assumed Liabilities, shall assume no debts, obligations or liabilities of any nature whatsoever. . . .
 
. . . .
 
Exhibit 3(i) Assumed Liabilities
 
From and after the Effective Date of Closing, Buyer shall assume, pay, perform and discharge all debts, obligations, contracts and liabilities of the Subsidiaries and subsidiaries of the Subsidiaries of any kind, character or description (and whether or not reflected or reserved against the Balance Sheet, books of accounts ...

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