Fitzgerald v. Lake Shore Animal Hospital, Inc.

539 N.E.2d 311, 183 Ill. App. 3d 655, 132 Ill. Dec. 1, 1989 Ill. App. LEXIS 715
CourtAppellate Court of Illinois
DecidedMay 16, 1989
Docket1-87-2198
StatusPublished
Cited by13 cases

This text of 539 N.E.2d 311 (Fitzgerald v. Lake Shore Animal Hospital, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzgerald v. Lake Shore Animal Hospital, Inc., 539 N.E.2d 311, 183 Ill. App. 3d 655, 132 Ill. Dec. 1, 1989 Ill. App. LEXIS 715 (Ill. Ct. App. 1989).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

This action was brought to recover possession of commercial property leased to defendant. The trial court entered summary judgment in favor of plaintiff and awarded a portion of her attorney fees incurred in enforcing the terms of the lease. Defendant appeals, arguing that the trial court abused its discretion in awarding those fees.

Defendant has been the tenant in plaintiff’s building, located at 225 West Division Street in Chicago, since it was built in 1966. The facility is a single-use structure with specifically designed features, many of which were created and provided by defendant’s owner, the late Dr. Prasuhn, for use in his hospital. On January 31, 1985, the parties entered into a written lease for a term of one month, renewable by holding over. The holdover tenancy under the lease was on a month-to-month basis and was terminable by either party upon one month’s notice. The pertinent provision in the lease is as follows:

“At the termination of this lease, by lapse of time or otherwise, Lessee will yield up immediate possession of the Premises to Lessor, in good condition and repair, loss by fire and ordinary wear excepted, and will return the keys therefor to Lessor at the place of payment of rent. If Lessee retains possession of the Premises or any part thereof after the termination of the term by lapse of time or otherwise, then such holding over constitutes creation of a month to month tenancy, upon the terms of the lease, terminable by either party upon notice to the other party, prior to the beginning of the month next succeeding the date of the notice. Lessee shall also pay to Lessor all damages sustained by Lessor resulting from retention of possession by Lessee. The provisions of this paragraph shall not constitute a waiver by Lessor of any right of re-entry as hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmance of tenancy operate as a waiver of the right to terminate this lease for a breach of any of the covenants herein.”

On August 27, 1986, shortly after Dr. Prasuhn’s death, plaintiff served notice to terminate, requiring defendant to vacate the premises by October 1,1986.

On September 26, 1986, defendant and Mary Prasuhn, Dr. Prasuhn’s executor, filed a declaratory judgment against plaintiff in the chancery division of the circuit court of Cook County, claiming that plaintiff’s notice to vacate violated an oral agreement between plaintiff’s attorney and Dr. Prasuhn that defendant would be given a reasonable time to relocate and move before being required to yield possession. Defendant also sought in the same suit to enjoin plaintiff from instituting a forcible detainer action.

On or about September 30, 1986, defendant received a “Statement of Rent Due” for October 1986, which it promptly paid and which payment was accepted by plaintiff’s agent.

On October 2, 1986, plaintiff filed a forcible detainer action in circuit court, and, on November 5, 1986, she filed a motion for summary judgment thereon.

On November 13, 1986, defendant moved in the forcible action, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), to dismiss the forcible detainer suit or to consolidate it with defendant’s chancery action.

On December 3, 1986, the trial judge denied both defendant’s motion to dismiss or consolidate and plaintiff’s motion for summary judgment, required defendant to respond to the complaint within seven days, ordered that discovery be completed by December 31, 1986, and set the case for trial on January 7,1987.

On December 12, 1986, defendant filed a second motion to consolidate before another judge in the law division of the circuit court. That motion was continued until January 8, 1987, one day after the then scheduled trial date in the forcible detainer action.

During December, plaintiff brought an emergency motion to compel, and an order was entered regulating, discovery. In response to defendant’s motion to compel, and its emergency motion to extend, discovery, the trial court set a new trial date of February 2, 1987. By agreement of the parties, defendant’s motion to consolidate was continued until after the rescheduled trial date.

On December 15, 1986, defendant filed its answer and affirmative defenses and counterclaim in the forcible detainer action. In its affirmative defenses, defendant alleged an oral modification to the written lease allowing it a reasonable time to relocate and, in its counterclaim, it sought damages for having to defend itself in the forcible proceeding. On January 2, 1987, the trial court granted plaintiff’s motion to strike defendant’s affirmative defenses and counterclaim, in which she claimed that the alleged oral agreement for reasonable time to vacate was unenforceable under the parol evidence rule and was unsupported by consideration. (A transcript of that hearing is not included in the record on appeal.) Also on January 2, 1987, defendant filed a motion for summary judgment, arguing that plaintiff’s acceptance of rent after the notice to quit constituted a waiver of her right to possession.

On January 8, 1987, plaintiff filed a revised motion for summary judgment, arguing that all the admissible facts in evidence established that she was entitled to possession. Plaintiff also specifically denied making any agreements “external” to the lease. On January 9, 1986, defendant filed its amended affirmative defenses, in which it alleged that Dr. Prasuhn relied on the representations of plaintiff’s attorney that defendant would have a reasonable time to relocate and that plaintiff was therefore estopped “from sending a notice of termination or filing a forcible entry and detainer action until a reasonable time necessary for the Hospital to relocate has passed.” Plaintiff moved to strike and dismiss defendant’s amended affirmative defenses.

On January 26, 1987, the trial judge granted plaintiff’s motion to strike and dismiss defendant’s amended affirmative defenses, finding as a matter of law that there was no consideration supporting the alleged oral modification to the lease, granted plaintiff’s revised motion for summary judgment and denied defendant’s motion for summary judgment. The judge then stayed the judgment for possession in favor of plaintiff until such time as the judge presiding over the still pending chancery action could determine any “equitable issues” that may have existed. On March 24, 1987, the trial judge denied defendant’s motion for reconsideration.

On March 25, 1987, the judge sitting in chancery dismissed defendant’s action, stating in the order “that the complaint should be dismissed with prejudice based on issue preclusion because the allegations of the complaint that are the predicate for the substantive relief sought have already been stricken and dismissed *** in Fitzgerald v. Lake Shore Animal Hospital 86 M1 736961 and because the other elements of issue preclusion are present.” (A transcript of that hearing is not included in the record on appeal.)

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Cite This Page — Counsel Stack

Bluebook (online)
539 N.E.2d 311, 183 Ill. App. 3d 655, 132 Ill. Dec. 1, 1989 Ill. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-lake-shore-animal-hospital-inc-illappct-1989.