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12/30/94 CHRISTOS KANDALEPAS AND GEORGIA KANDALEPAS

December 30, 1994

CHRISTOS KANDALEPAS AND GEORGIA KANDALEPAS, PLAINTIFFS-APPELLEES,
v.
SPYROS ECONOMOU AND ELENI ECONOMOU, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ALBERT GREEN, JUDGE PRESIDING.

Released for Publication February 16, 1995.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Following the dismissal, on appeal, of a trial court order compelling defendants, Spyros Economou and Eleni Economou, to sell their interest in certain real estate and personal property to plaintiffs, Christos Kandalepas and Georgia Kandalepas (see Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 547 N.E.2d 496, 138 Ill. Dec. 329), plaintiffs filed a motion for summary judgment in favor of their claim for the dissolution of the parties' corporation and their claim for the dissolution of the parties' partnership and the appointment of a receiver to sell property owned by the partnership. On April 29, 1991, the trial court entered an order granting plaintiffs' motion for summary judgment. On October 19, 1992, defendants filed a cross-motion for involuntarydismissal claiming that the trial court did not have jurisdiction to enter the order of summary judgment because an earlier agreed order of April 30, 1987, requiring that a rental agent be appointed to lease the subject property was still in effect. On October 30, 1992, the trial court denied defendants' cross-motion. On appeal, defendants contend that the trial court erred in refusing to enforce a prior settlement agreement entered into by the parties as reflected in the agreed order of April 30, 1987.

We affirm.

BACKGROUND

Plaintiffs and defendants were each 50% owners of real estate in Arlington Heights, Illinois, by virtue of being equal partners in a partnership. Located on that parcel was a restaurant known as the Big House restaurant which was operated by the parties' corporation, Econ Kan. On May 27, 1982, plaintiffs filed an action seeking an order to compel defendants to join plaintiffs in the renewal of a liquor license for the Big House restaurant. Plaintiffs subsequently amended their complaint (five times) to include claims for the dissolution of the partnership, the dissolution of Econ Kan, and for the appointment of a receiver for the purpose of selling the property owned by the parties' partnership.

On April 30, 1987, the parties entered into an agreed order whereby they would jointly exercise a right of direction and would lease the subject property "as is" to a third party for a period of at least five years. On March 22, 1988, plaintiffs filed a petition to vacate the agreed order of April 30, 1987, on the grounds that defendants had not complied with it. In their response to plaintiffs' petition, defendants denied that they had failed to comply with the agreed order of April 30, 1987. The petition was never heard or ruled on by the trial court.

Instead, after numerous negotiations, the parties appeared in court on June 24, 1988, and related that the parties had agreed upon all previously disputed matters except for the dispute as to which party would purchase the other party's interest in the property. The trial court resolved this issue by tossing a coin and awarding plaintiffs, as winners of the toss, defendants' 50% interest in the property for $150,000. The trial court then entered an order reflecting the award to plaintiffs of defendants' interest in the property for $150,000. On July 18, 1988, defendants filed a petition to vacate the order of June 24, 1988, asserting that defendants never agreed to sell the property to plaintiffs, that they had never agreed to or accepted the terms of the settlement agreement, and that they never authorizedtheir attorney to enter into the settlement agreement on the terms established by the trial court's order of June 24, 1988. On July 18, 1988, plaintiffs filed a petition to enforce the settlement order of June 24, 1988. On July 28, 1988, plaintiffs responded to defendants' petition to vacate the order of June 24, 1988, asserting that they denied that the order was not accepted by defendants and that they denied that defendants' attorney was not authorized to accept the settlement order. On August 1, 1988, the trial court denied defendants' motion to vacate the June 24, 1988, settlement order.

On August 26, 1988, defendants filed a notice of appeal from the orders entered on June 24, 1988, and August 1, 1988, respectively. This court dismissed the appeal holding that the order of June 24, 1988, could neither be set aside nor judicially enforced because a court-approved settlement, as a result of a coin toss within the court's presence, violates public policy. See Kandalepas, 191 Ill. App. 3d at 54-55.

On March 8, 1990, defendants filed a petition to enforce the agreed order of April 30, 1987. In response, on April 27, 1990, plaintiffs filed an answer to defendants' petition to enforce the agreed order of April 30, 1987, claiming that defendants had abandoned the agreed order and had entered into further negotiations which led to a new agreement. On May 29, 1990, the trial court denied defendants' petition.

On February 20, 1991, plaintiffs filed a motion for summary judgment in favor of their claims to dissolve the parties' businesses and to appoint a receiver to sell the property owned by the parties' partnership. On April 29, 1991, the trial court entered an order granting summary judgment in favor of plaintiffs' motion.

On May 24, 1991, defendants filed a petition to set aside the April 29, 1991, order which awarded summary judgment in favor of plaintiffs and to enforce the agreed order of April 30, 1987. In response, on July 15, 1991, plaintiffs filed an answer to defendants' petition claiming that the parties had abandoned the agreed order of April 30, 1987. On September 10, 1991, the trial court denied ...


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