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02/01/96 JIFFY LUBE INTERNATIONAL v. KRISHAN

February 1, 1996

JIFFY LUBE INTERNATIONAL, INC., PLAINTIFF-APPELLEE,
v.
KRISHAN AGARWAL, DEFENDANT-APPELLANT (JEFFREY M. LIPNER, DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 92--L--1863. Honorable S. Louis Rathje and Richard A. Lucas, Judges, Presiding.

The Honorable Justice Inglis delivered the opinion of the court: Geiger and Colwell, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, Krishan Agarwal, appeals the orders of the circuit court of Du Page County which granted summary judgment in favor of plaintiff, Jiffy Lube International, Inc., and plaintiff's motion for attorney fees. Defendant, Jeffrey Lipner, did not appeal the trial court's orders. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

On June 25, 1990, defendant and Lipner (lessees) executed a lease with plaintiff which is the subject of the case at bar. Lessees agreed to pay rent in the sum of approximately $1,225 per month. The lessees failed to pay rent on the premises, and plaintiff filed an action for forcible entry and detainer. The action sought back rent and attorney fees.

On September 1, 1994, plaintiff filed a motion for summary judgment, alleging that the lessees had not paid any monies due and owing under the lease since November 1, 1991. The motion further alleged that the lease agreement obligated the defaulting party to pay all reasonable attorney fees incurred as a result of enforcing the provisions of the lease. Plaintiff requested relief in the amount of $53,320.57, reasonable attorney fees, and possession of the subject premises.

In support thereof, plaintiff attached several affidavits. The first such affidavit was from Lipner, which indicated that he had not made any payments pursuant to the lease agreement since December 31, 1990.

Plaintiff also attached an affidavit from Michael Lambert, one of plaintiff's employees. Mr. Lambert indicated that, as of November 1991, the subject premises had been abandoned by the lessees.

Plaintiff also attached an affidavit from Susan Strelkow, one of plaintiff's employees. She indicated that there was now due and owing the amount of $53,320.57 pursuant to the lease terms.

Defendant responded, arguing that plaintiff was not entitled to the relief it was seeking. Defendant further alleged that the lease was never executed by all the parties and, as such, was an "incomplete or inchoate document and cannot be the basis of a lawsuit." Defendant further attacked the sufficiency of the affidavits, alleging that they were not in compliance with Supreme Court Rule 191 (145 Ill. 2d R. 191). Defendant lastly alleged that the motion was defective in that it sought possession of the subject premises, relief which defendant argues was not requested in plaintiff's amended complaint. In support of defendant's argument, he attached a copy of Supreme Court Rule 191.

On October 6, 1994, Judge S. Louis Rathje granted plaintiff's motion for summary judgment and awarded plaintiff possession of the subject premises. Judge Rathje further awarded plaintiff damages in the amount of $53,320.57 and granted plaintiff 14 days in which to file a petition for fees.

On October 20, 1994, plaintiff filed a petition seeking attorney fees. Defendant moved to strike the petition on the grounds that (1) the law and the contract did not permit an award of attorney fees; and (2) plaintiff failed to submit itemized billing statements. Defendant filed a Rule 237 request to produce certain persons and documents prior to the hearing on the fee petition. 134 Ill. 2d R. 237. On December 1, 1994, defendant was presented those items in open court, and the hearing on the petition was continued to January 23, 1995. Judge Rathje was subsequently elevated to the appellate court, and Judge Richard A. Lucas was assigned the case prior to the January 23, 1995, hearing date.

On December 22, 1994, defendant filed a motion seeking Judge Lucas' recusal. The motion alleged that Judge Lucas was biased against defendant's counsel. There is no indication in the record that the motion was ever ruled upon. On February 27, 1995, defendant moved for a substitution of a judge for cause. In said motion, defendant alleged that his counsel had filed a complaint against Judge Lucas with the Judicial Inquiry Board in another action and that Judge Lucas was biased against defendant and his counsel. On March 6, 1995, Judge Lucas refused to allow a hearing on the petition, noting that it was not filed until February 27, 1995.

On May 22, 1995, Judge Lucas granted plaintiff's petition for attorney fees and awarded plaintiff fees and costs in the amount ...


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