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09/23/94 DOUGLAS THEATER CORPORATION v. CHICAGO

September 23, 1994

DOUGLAS THEATER CORPORATION, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
CHICAGO TITLE & TRUST COMPANY, AS TRUSTEE, UNDER TRUST NO. 1083978; HAROLD BINSTEIN, AS BENEFICIARY OF TRUST NO. 1083978; GOLD STANDARD ENTERPRISES, INC., AN ILLINOIS CORPORATION; AND CHALET INTERNATIONALE, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ARTHUR L. DUNNE, JUDGE PRESIDING.

Rehearing Denied October 19, 1994. As Corrected November 21, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Cousins, Jr., Murray, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

After the affirmance, on appeal, of a trial court judgment awarding plaintiff, Douglas Theater, specific performance, plaintiff filed an amended petition claiming (1) equitable damages, and (2) tortious interference with prospective economic advantage. The court dismissed plaintiff's amended petition for equitable damages with prejudice and dismissed without prejudice the claim for tortious interference with prospective economic advantage. Plaintiff appeals from the order dismissing plaintiff's amended petition. Defendants, Chicago Title & Trust Company; Harold Binstein; Gold Standard Liquors, Inc.; and Chalet Internationale, Inc., cross-appeal from that portion of the order dismissing without prejudice plaintiff's claim for tortious interference with prospective economic advantage, allowing leave to refile the claim in the Law Division.

We affirm.

BACKGROUND

In 1987, plaintiffs filed an action for specific performance to require the defendants to convey property that had been omitted from a conveyance made pursuant to the exercise of a purchase option held by plaintiff. The purchase option was part of a 1982 contract between plaintiff and American National Bank and Trust Company of Chicago (American National) to lease a parcel of land located at 750 West Wellington Avenue in Chicago, Illinois.

On August 8, 1983, the property formerly owned by American National was purchased by Harold Binstein, subject to plaintiff's lease and plaintiff's option to purchase. The title to this property was transferred to Chicago Title and Trust Company, as Trustee, of trust No. 1083778, with Harold Binstein as the sole beneficiary.

When, on December 22, 1986, plaintiff exercised its purchase option, a dispute arose as to the interpretation of the lease agreement and the premises which were the subject matter of the option. The dispute involved discrepancies between the lease and the legal description of the premises as indicated by the plat of survey of the premises that was drawn in April 2, 1982. As a result of this dispute, Chicago Title, as trustee, and Harold Binstein, as beneficiary, refused to convey two portions of the property to which plaintiff claimed entitlement. The two omitted portions were (1) the basement beneath parcel 2 as indicated in the survey of April 2, 1982 and (2) the northern half of the public alley which had been vacated by the city of Chicago at the time of closing on May 14, 1987. Plaintiff, however, proceeded with the closing on the sale of the property under a reservation of rights to their claims to the disputed basement and alley areas. On September 23, 1987, plaintiff filed a complaint for specific performance with the circuit court seeking to enforce the purchase option and require the defendants to convey the disputed property.

On December 7, 1987, the plaintiff's attorney sent a letter to defendant Binstein's attorney advising Binstein of plaintiff's plan to build a theater in the unconveyed basement portion of the premises and asserting that the inability of plaintiff to proceed on the project would result in a loss of revenue to plaintiff of at least $1000 per week. In addition, the letter stated that the inability of the plaintiff to proceed on improvements to the unconveyed alley portion would result in similar loss of revenue. The letter also stated that such loss of revenue could potentially be a part of the measure of damages in the pending litigation between the parties. The letter added that a court may conclude that there may be some error in the plaintiff's approach and that the plaintiff was open for suggestions on how to solve the dispute.

On January 5, 1988, another letter was sent by the plaintiff's attorney to Binstein's attorney. This letter stated that, as a result of the defendants' refusal to convey the alley portion of the premises, plaintiff could not conclude a transaction with the Payne-Leavitt Group to build a theater in the alley portion of the unconveyed property. The letter further opined that the legal position being taken by Binstein, with regard to the alley portion of the unconveyed property, was not supported by the lease and that the plaintiff was preparing a comprehensive motion for summary judgment regarding the alley portion.

A third letter was sent on February 15, 1988. This letter reiterated the prospective loss resulting from the inability to accept the Payne-Leavitt offer which would be kept open until February 28, 1988.

In the interim, on January 28, 1988, plaintiff moved for partial summary judgment with respect to the unconveyed northern half of the alley. Defendants filed a cross-motion for summary judgment. On May 15, 1988, a judgment was entered in favor of the plaintiffs. The order directed defendants to convey the unconveyed alley portion of the property. After proceedings were held on the remainder of plaintiff's complaint for specific performance of the remaining unconveyed portion of the premises, judgment was entered in favor of the plaintiff. The order denied the plaintiff's request for attorney fees and costs and reserved any judgment on the issue of damages, pending any appeals. Both parties appealed the order. (See Douglas Theater Corp. v. Chicago & Trust Co. (1991), 210 Ill. App. 3d 301, 569 N.E.2d 88, 155 Ill. Dec. 88.). This court affirmed the trial court's award of specific performance of the unconveyed parcels to the plaintiff as well as the trial court's decision to deny the plaintiff's request for attorney fees and costs. This court also affirmed the trial court's decision to reserve judgment on the issue of equitable compensation pending the outcome of the appeals. See Douglas Theater 210 Ill. App. 3d at 315, 569 N.E.2d 88.

After the appeal, the plaintiff sought an award of equitable damages by filing a petition for damages in the trial court on March 20, 1992. The damages sought were for the loss of revenues from the unconveyed parcels, the inability to build a theater on the alley portion of the premises from the time that the transaction should have closed, the inability to build a theater in the basement portion of the premises, damages resulting from decreased rental income from the Payne-Leavitt Group, damages for lost bookings relating to the northern half of the alley portion, damages relating to additional rent paid on the property from the time that the transaction should have closed, attorney's fees, and punitive damages. The defendants filed a motion to strike the petition for damages on the grounds that the damages sought by Douglas were not recoverable on a specific performance claim and no relief could be granted.

On June 18, 1992, Defendants' motion to strike was heard. On September 29, 1992, the trial court granted the defendants' motion to strike the various claims filed in the petition. The order granted the plaintiff leave to file an amended petition for damages. In addition, the order awarded the plaintiff $22,964.98 in equitable damages for lost rental from the Payne-Leavitt lease from the time that the transaction should have closed.

On October 27, 1992, the plaintiff filed an amended petition for damages. The amended petition for damages sought the same damages prayed for in the original petition. The amended petition also contained a claim for damages based on a theory of tortious interference with prospective economic advantage. On March 11, 1993, on defendants' second motion to strike the amended petition for damages, the trial court dismissed the amended petition. All of the plaintiff's damage theories except the claim for tortious interference with economic advantage were dismissed with ...


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