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08/30/94 JOSEPH T. SNYDER v. JOHN C. AMBROSE

August 30, 1994

JOSEPH T. SNYDER, JR., PLAINTIFF-APPELLEE,
v.
JOHN C. AMBROSE, INDIV. AND D/B/A AMBROSE AND CUSHING, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 92-AR-3681. Honorable Ann B. Jorgensen, Judge, Presiding.

Rehearing Denied September 28, 1994. Petition for Leave to Appeal Denied February 1, 1995.

McLAREN, Geiger, Quetsch

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, John C. Ambrose, asks this court to reverse the judgment of the trial court. For the following reasons, we vacate in part, reverse in part, and remand.

In our opinion, only one of the issues raised by the defendant is precedential: that the trial court erroneously excused proof of the plaintiff's mitigation of damages. We will summarily dispose of the rest of the defendant's arguments before turning to our Disposition on the precedential issue.

I. THE NONPRECEDENTIAL ISSUES

We deem waived the defendant's arguments with respect to the trial court's alleged abuse of discretion for denying the defendant's motions for continuances. In ruling on those motions, the trial court interpreted a local court rule. The defendant failed to cite or provide this court with that rule and, pursuant to Supreme Court Rule 341(e)(5), his arguments on this issue are waived. 134 Ill. 2d R. 341(e)(5).

We also find no abuse of discretion on the part of the trial court for admitting plaintiff's exhibits Nos. 6 and 7 and awarding allegedly excessive attorney fees (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(c)(7), eff. July 1, 1994). However, we vacate the fee award without prejudice to the plaintiff seeking reasonable attorney fees upon a retrial of the cause.

Furthermore, we find no merit in the defendant's arguments that plaintiff's exhibit No. 1 was improperly found to be a valid modification of a prior lease because it was unsupported by consideration. The findings of the trial court in this regard are not against the manifest weight of the evidence. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(c)(8), eff. July 1, 1994.

Likewise, the defendant's claim that plaintiff's exhibit No. 1 wasinadmissible in the absence of an adequate foundation under the best evidence rule lacks merit. The trial court did not abuse its discretion in admitting this evidence (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(c)(7), eff. July 1, 1994). Assuming arguendo there was an abuse of discretion, we determine there was sufficient other evidence in the record to establish that plaintiff's exhibit No. 1 was the actual lease between the parties.

II. THE PRECEDENTIAL ISSUE: MITIGATION OF DAMAGES

The defendant asserts the trial court erred in excusing the plaintiff from establishing mitigation of damages. We agree.

The plaintiff filed a complaint on November 17, 1992, alleging that the defendant had entered into a written agreement to rent real estate from the plaintiff from April 1, 1991, through October 31, 1992. The complaint alleged that the defendant had paid rent from April through July 1991, ...


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