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March 4, 1994



Murray, Gordan, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendants, G.M. Realty Company and Highland Management Company, appeal from the trial court's order denying defendants' motion to reconsider a previous order directing defendants to place plaintiff in possession of certain commercial premises it had formerly leased from defendants.

S & S Laundry and Highland Management Company entered into a written lease dated April 22, 1986. In its amended complaint plaintiff alleged that by virtue of said lease agreement, plaintiff was in possession of the laundry room located at 830-58 Hinman, Evanston, Illinois, and that on or about September 25, 1992, Highland Management Company or its agents wrongfully disconnected plaintiff's laundry machines.

Paragraph 13 of the lease agreement between plaintiff and Highland Management Company (the Lease), provides in pertinent part:

"In the event of any dispute or controversy arising out of the operation or alleged breach of this Lease Agreement, such dispute or controversy shall be submitted to and be governed by the rules of the American Arbitration Association. * * * No litigation shall be instituted between the parties hereto except to enforce the award or order of the arbitrators."

On February 22, 1993, the trial court entered an order: (1) that the pending arbitration between the parties was to go forward without stay, and denying plaintiff's motion to reconsider the ruling compelling arbitration; (2) defendants were ordered to allow plaintiff to reinstate its laundry machines into the subject premises, the trial court having determined that to preserve the status quo, plaintiff was entitled to possession of the laundry room in the subject premises; (3) enforcement of paragraph 2 was stayed until March 8, 1993, and defendants were granted leave to file a motion for an appeal bond prior to March 8, 1993, to stay, pending appeal, paragraph 2 of the order.

At the hearing on March 8, 1993, the trial court stated: "it was quite clear at the time that order was entered the contract no doubt called for arbitration, and I stated from the day one that I feel that the parties should proceed pursuant to the contract, which was the -- which is the arbitration as spelled out in the contract." The trial court further stated it was within his judicial discretion to place the plaintiff back in possession, where the defendant has used self-help to evict a party without due process and indicated he was placing the parties back at arm's length where they should have been when the dispute arose. The court indicated that arbitration should go forward "but * * * to allow one party to proceed in arbitration at [the] position they want to be at is not the purpose of the arbitration agreement nor the purpose of the forcible entry and detainer law in this State" and that "it is clear that anytime a party uses self-help to effectuate an eviction that they are in violation of the state's forcible detainer law."

The trial court requested some indication on the type of income that was derived from the laundry machines in the last calendar year and indicated that the court would set a bond based on that information in the form of a use and occupancy bond. The court continued the matter to March 15, 1993, for said purpose.

On March 15, the court entered an order setting a supersedeas bond in the amount of $1,200 to stay the provisions of paragraph 2 of the court's February 22, 1993, order. Defendants filed a notice of appeal on April 5, 1993.

The sole issue defendants present on appeal is whether the trial court abused its discretion in granting a preliminary mandatory injunction, sua sponte, without prior notice and without the benefit of a request from either of the parties or evidence establishing entitlement to an injunction.

Defendant argues that the trial court's issuance of a mandatory injunction, which was improperly issued sua sponte and without prior notice, was violative of due process of the law under the fourth and fourteenth amendments to the United States Constitution, was an abuse of discretion. Defendant further argues that the order granting a preliminary mandatory injunction is violative of the Illinois Injunction Act as well as case law.

In response, plaintiff attacks the jurisdiction of this court to hear this appeal based on the fact that the notice of appeal was filed 42 days after the entry of the February 22nd order and that the order appealed from was not a mandatory injunction. Alternatively, plaintiff argues that if ...

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