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06/30/94 INDUSTRIAL STEEL CONSTRUCTION v. JOHN

June 30, 1994

INDUSTRIAL STEEL CONSTRUCTION, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
JOHN MOONCOTCH AND COMMERCIAL NATIONAL BANK OF BERWYN, NOT INDIVIDUALLY BUT AS TRUSTEE UNDER TRUST AGREEMENT DATED SEPTEMBER 1, 1987 AND KNOWN AS TRUST NO. 870153, DEFENDANTS-APPELLEES/CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Robert D. Ericsson, Judge Presiding.

Manning, Campbell, Buckley

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

This is an appeal by defendants John Mooncotch and Commercial National Bank of Berwyn from a judgment of the trial court granting summary judgment in favor of plaintiff Industrial Steel Construction corporation. Defendants argue on appeal that the trial court erred: (1) by determining that plaintiff was entitled to an abatement of rent paid to defendant after April 1991; (2) by granting plaintiff the monthly rent payments as damages where plaintiff failed to prove it suffered a loss; and (3) in denying defendants' post-trial motions. Plaintiff cross-appeals alleging that the trial court erred by failing to abate rents from January 1990. We affirm.

On September 1, 1987, plaintiff Industrial Steel Corporation entered into a lease agreement with defendants John Mooncotch and Commercial National Bank of Berwyn, as trustee of an industrial structure in Hodgkins, Illinois. Defendant Mooncotch leased the premises to plaintiff for a monthly amount of $4,827.63. The rider provision to the lease provided plaintiff with an option to purchase the property and in pertinent part stated:

"* * * Lessee is hereby given an option to purchase the premises legallydescribed in the real estate contract * * * The purchase price for subject property will be determined as follows * * * Lessee shall designate an appraiser to perform an appraisal of the premises and Lessor shall also designate a third appraiser to also perform an appraisal of the premises. Of the three appraisals received the appraisal showing the highest and lowest value for the premises shall be disregarded and the purchase price shall be the amount shown in the remaining appraisal, less the sum of $100,000 * * * This option will not be exercisable by Lessee if it is in default under this lease.

On July 14, 1989, plaintiff notified defendants that it was exercising the option to purchase the property. Pursuant to the provision of the rider, plaintiff also named its appraiser as required. That appraiser determined the value of the property to be $650,000. Because defendants did not promptly name a second appraiser to evaluate the property, plaintiff obtained a second appraisal. That appraiser valued the property at $660,000. Defendants eventually presented their appraisal in August 1990, which valued the property at $1,190,000. The parties did not reach an agreement on the sales price, and eventually plaintiff filed an action for specific performance of the contract. Plaintiff continued to pay rent during the pendency of the litigation.

On January 31, 1991, the trial court ordered the parties to have a fourth appraiser evaluate the property. On April 21, 1991, the fourth appraiser submitted his appraisal to the court establishing the value of the property to be $700,000. Subsequently, plaintiff filed a motion for summary judgment. In its motion, plaintiff argued for specific enforcement of the contract at a sales price of $560,000, and that the purchase price should be reduced by the amount of rent which it paid after August 1, 1989 since that was the period within which it exercised its option to purchase the property. Plaintiff based its sales price on the appraisal done by the second nominated appraiser who appraised the property at $660,000, with an allowance of the $100,000 deduction set forth in the agreement.

Defendants responded to plaintiff's motion to dismiss asserting that the sales price of the property should have been $600,000, and that the court had no authority to abate the purchase price by the rent plaintiff paid from August 1, 1989.

On June 15, 1992, the trial court granted plaintiff's motion for summary judgment, awarded specific performance of the contract at a purchase price of $600,000 and further ordered that plaintiff be given an abatement by defendants for rent paid after April 30, 1991. The amount of the abatement totalled $75,615.64. Plaintiff ceasedmaking rent payments to defendants after the court's entry of summary judgment.

Defendants filed several post-judgment motions. Defendants filed a motion to compel performance and to compel payment of rent and other expenses. The motion alternatively sought to have the June 15, 1992 judgment vacated. In a second post-judgment motion defendants sought to have the trial court reconsider its ruling, to vacate the judgment in part, and to modify the judgment in part. In a third motion defendants sought to strike plaintiff's complaint and motion for summary judgment, although at that time the trial court had finally entered judgment on the complaint. Defendants also sought to have the trial court create a joint escrow for the rent abatement of $75,671.64.

On October 27, 1992, the trial court denied each of defendants' motions. The court then set a closing date for sale of the property 60 days from the October 27, 1992 order denying defendants' post-judgment motions. On November 23, 1992, defendants again filed a motion to compel, which the court denied as being moot.

Defendants concede that plaintiff exercised its option to purchase the property, and do not dispute the court's imposition of the $600,000 sales price. However, defendants argue that the trial court erred by granting plaintiff an abatement for rent paid after April 1, 1991. Also, defendants assert that: (1) Illinois case law specifically provides that abatement of rental payments as damages is not proper; and (2) plaintiff failed to demonstrate compliance with the lease and rider and is therefore not entitled to damages.

Plaintiff contends that the trial court properly determined that it was entitled to a credit for rent paid during the pendency of the case. Plaintiff asserts that by exercising the option to purchase, it became the equitable owner of the property, therefore it was not required to pay rent. Plaintiff also maintains that it was entitled to a credit towards the purchase price for rent paid to defendants after its appraisal was done in ...


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