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100 W. Monroe Partnership v. Carlson

January 18, 2001

100 W. MONROE PARTNERSHIP, ) ) PLAINTIFF-APPELLEE, ) ) V. ) ) ) HERBERT P. CARLSON ) ) DEFENDANT-APPELLANT


The opinion of the court was delivered by: Justice South

Appeal from the Circuit Court of Cook County.

The Honorable Sheldon C. Garber, Judge Presiding.

Defendant, Herbert P. Carlson, an attorney, maintained law offices at 100 West Monroe Street (Monroe Building) in Chicago, Illinois. The Monroe Building is owned by plaintiff, 100 W. Monroe Partnership.

On April 7, 1993, defendant and plaintiff entered into a five-year lease agreement for Suite 1200 commencing on May 1, 1993, and ending on April 30, 1998. The agreed-upon base rent for Suite 1200 was $3,690.42 plus a proportionate share of the real estate taxes and common area expenses. On April 28, 1995, defendant exercised his termination rights under Article 41 of the lease, and in accord with that Article, the lease terminated on November 1, 1995.

On October 26, 1995, plaintiff and defendant entered into a new one-year lease for Suite 1212 in the Monroe Building which commenced on November 1, 1995, and ended on October 31, 1996. The rent for Suite 1212 was $1,187.50 per month. As with the prior lease, defendant was also responsible for his proportionate share of the real estate taxes and common area expenses.

On October 16, 1996, before the parties' second lease ended, the parties entered into a third lease agreement. Defendant signed a six-month lease for Suite 711 in the Monroe Building which commenced on November 1, 1996, and ended on April 30, 1997. The rent was $450 per month. On April 28, 1997, in accordance with an amendment to the lease, the parties extended the lease for Suite 711 for another six months until October 31, 1997. On September 15, 1997, defendant extended his Suite 711 lease for the final time until May 1, 1998.

On May 29, 1998, plaintiff filed a complaint against defendant in the circuit court of Cook County seeking an order of possession of the three suites and to collect all unpaid rent under the Forcible Entry and Detainer Act. The complaint alleged that from December 1997 through June 1998, rent was due in the amount of $35,688.79, plus attorney fees. Defendant filed his answer on July 31, 1998, wherein he denied having sufficient knowledge to form a belief as to the truth or falsity of the allegations.

On September 16, 1998, plaintiff filed its amended complaint with exhibits attached thereto. Plaintiff alleged that defendant had not paid rent since October 1997, and that despite demands had failed and refused to pay, so that his indebtedness through June 1998, for unpaid rent for suites 1200, 1212 and 711 amounted to $41,138.19. Plaintiff also sought possession of Suite 711 and identified a promissory note which defendant executed on January 2, 1996, promising to pay plaintiff $46,375.70, plus interest at 8% per annum by April 15, 1996.

On October 28, 1998, plaintiff moved for judgment on the pleadings or alternatively for summary judgment and attached the affidavit of Dawn Matuzewich, who was the assistant to the property manager at the Monroe Building. She stated she was the keeper of the tenant records for plaintiff and had knowledge of defendant's tenant history and the note which she maintained in the ordinary course of business. Given her knowledge of defendant's tenant history, Matuzewich claimed defendant owed $41,138.19 in unpaid rent through June of 1998. She further stated that defendant's lease expired May 1, 1998, and that he continued to occupy Suite 711 while paying no rent. Matuzewich stated that pursuant to the note, defendant owed $46,375.70 plus interest. As of October 28, 1998, Matuzewich alleged that no payments, credits or setoff had been made on either the note or the unpaid rent.

On October 29, 1998, plaintiff filed the affidavit of Kevin Costello in further support of its motion for judgment on the pleadings. Costello stated he had been the building manager at the Monroe Building and had had dealings with defendant as a tenant. Costello warranted that on or about January 1996, defendant promised to repay the amounts owed for unpaid rent for the suites he had leased, and based upon defendant's representation regarding his intent to pay, Costello had him execute a note evidencing the debt and a promise to repay it by April 15, 1996, which defendant signed. Costello stated that defendant did not make payment by April 15, 1996, and to his knowledge has never made payments.

On October 29, 1998, the trial court granted defendant's motion for leave to file his answer and ordered him to respond to plaintiff's motion by November 3, 1998. On November 4, 1998, defendant filed his response to plaintiff's motion without counter-affidavits or other supporting documents attached. In that response, he demanded that the amount alleged be proven by competent evidence, including the manner in which the sum was reached.

On November 4, 1998, the trial court granted the motion for judgment on the pleadings, awarding plaintiff $44,738.19 in unpaid rent and possession of Suite 711, plus leave to file a petition for attorney fees. Defendant was ordered to surrender possession by December 1, 1998.

On December 10, 1998, plaintiff filed its petition for attorney fees. Defendant was granted leave to respond, and on December 16, 1998, the court awarded plaintiff $4,500 in attorney fees, bringing the total amount awarded plaintiff to $49,238.19, plus costs.

Defendant failed to surrender possession on December 1, 1998. Instead, on December 3, 1998, he filed a motion to stay the eviction. The trial court granted defendant an extension and ordered him to surrender possession by December 15, 1998. Defendant did not surrender possession by December 15, ...


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