2024 IL App (1st) 230708-U No. 1-23-0708 Third Division October 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) LOYOLA UNIVERSITY OF CHICAGO, ) ) Plaintiff-Appellee, ) Appeal from the Circuit Court ) of Cook County. v. ) ) No. 2021 M1 701604 ONWARD MSO, LLC, and ANY AND ALL ) UNKNOWN OCCUPANTS, ) The Honorable ) Robert F. Harris, Defendants ) Judge Presiding. ) (Onward MSO, LLC, ) Defendant-Appellant). ) ) ______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court. Presiding Justice Lampkin and Justice Martin concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment is reversed, where the trial court abused its discretion in denying a continuance based on the illness of defendant’s trial counsel immediately prior to trial. As the issue of possession has been rendered moot by the subsequent execution of the eviction order, the matter is remanded for a new trial to determine whether defendant is liable for past-due rent.
¶2 The instant appeal arises from a forcible entry and detainer lawsuit filed by plaintiff Loyola
University of Chicago against defendant Onward MSO, LLC, a company which operated a No. 1-23-0708
restaurant on the premises owned by plaintiff. Defendant’s counsel had health issues during
the proceedings, resulting in two continuances; after the second one, the trial court indicated
that it would grant no further continuances and suggested that defendant retain additional or
alternate counsel. Shortly before trial, defendant’s counsel had a health emergency which was
unrelated to his prior condition, which resulted in his hospitalization. The trial court, however,
denied defendant’s requests for a continuance and the matter proceeded to a jury trial. At trial,
defendant was unable to present its case, as it was not represented by an attorney, and the trial
court ultimately entered a directed verdict at the end of plaintiff’s case. On appeal, defendant
primarily contends that the trial court erred in (1) denying its requests for a continuance,
(2) permitting the trial to go forward without defendant being allowed to present its case, and
(3) denying his petition for rule to show cause, which was based on plaintiff’s unilateral
altering of the address on the premises in question. For the reasons that follow, we reverse and
remand the matter for a new trial.
¶3 BACKGROUND
¶4 Lease
¶5 On March 22, 2017, plaintiff, as landlord, and defendant, as tenant, entered into a lease
agreement for defendant’s use of certain property owned by plaintiff; the lease was signed on
behalf of defendant by Michael Olszewski, defendant’s owner and sole member. According
to the lease, plaintiff and Albion Hotel, LLC (Albion), had developed a six-story multiuse
building “commonly known as 6566-90 N. Sheridan Road/1209 W. Albion Avenue,
Chicago, Illinois.” The building was vertically subdivided into four parcels, two owned by
plaintiff and two owned by Albion. The lease provided that “[t]he premises to be leased to
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Tenant consists of that portion of the Loyola Retail Improvements designated as ‘Retail
Space #A’ and ‘Retail Space #B’ on the site plan attached hereto.”
¶6 The term of the lease was to begin on the “Rent Commencement Date,” which was
defined as the earlier of (1) the date that defendant opened for business to the public or (2)
November 26, 2017, and was to extend for a period of 10 years. The lease provided for one
year of rent abatement, with monthly rent payments of $10,000 commencing during the
second year of the lease.
¶7 Under the lease, defendant was to use the property solely for the operation of a sit-down
restaurant, and was responsible for all work and improvements on the premises at its sole
expense, which was estimated to be in excess of $1 million. Upon expiration of the lease,
“[a]ll personal property, furnishings, machinery and trade fixtures, equipment and
improvements that [defendant] install[ed] in the Premises [would] remain the property of
[defendant],” and defendant would be responsible for removing such items from the property.
¶8 Upon the commencement of defendant’s rent payment obligation, defendant was required
to pay rent on the first day of each calendar month. Past-due rent would incur interest
charges, as well as a $200 late charge. The lease provided that a failure to pay rent which
continued for five days after defendant’s receipt of written notice from plaintiff would
constitute a default under the lease. Under the lease, “[e]xcept for the payment of Rent,” if
either party was delayed or prevented from the performance of any of its obligations under
the lease by, inter alia, an act of God, the period for its performance would be extended for a
time equivalent to the period of such delay.
¶9 On May 1, 2018, the parties amended the lease to confirm that the rent commencement
date of the lease would be November 26, 2017, and that the lease term would extend to
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November 25, 2027. The amendment further provided defendant with an additional month of
rent abatement, through December 25, 2018 (i.e., the first month of the second year of the
lease term). Accordingly, defendant would first be required to pay rent in January 2019.
¶ 10 Performance Under Lease
¶ 11 The record reflects that defendant’s restaurant opened on December 20, 2018. Defendant
did not make a rent payment in January 2019, which was the first payment owed under the
lease. Between February 2019 and January 2020, defendant made only 10 rent payments,
totaling $100,000.
¶ 12 The restaurant was forced to close in March 2020 due to the COVID-19 pandemic and
never reopened. Defendant did not make any rental payments after the restaurant’s closure in
March 2020.
¶ 13 On April 13, 2021, plaintiff sent defendant a notice of default, claiming that defendant’s
rent payment was in arrears in the amount of $169,889.84, and provided that defendant had
until April 30, 2021, to cure the default before the lease would be terminated. Defendant did
not make such a payment.
¶ 14 Complaint
¶ 15 On May 4, 2021, plaintiff filed a forcible entry and detainer action against defendant,
alleging that plaintiff was entitled to possession of “6850 North Sheridan Road” in Chicago,
as well as $258,014 in unpaid rent for the period from September 1, 2019, through May 31,
2021; the complaint was later amended to change the subject address to “6580 N. Sheridan
Road.” Plaintiff also filed a motion for use and occupancy payments during the course of the
litigation, which was granted in part; defendant, however, did not make any use and occupancy
payments during the course of the proceedings.
4 No. 1-23-0708
¶ 16 On October 6, 2021, defendant filed an answer and affirmative defenses to the amended
complaint, as well as several counterclaims. Defendant raised a total of 14 affirmative
defenses, including (1) waiver, (2) novation, (3) estoppel, (4) fraud, (5) unclean hands, (6)
setoff, (7) frustration of purpose, (8) impossibility of performance, (9) equitable rescission due
to mutual mistake, (10) force majeure, (11) failure of consideration, (12) unjust enrichment,
and (13) laches. Defendant also filed counterclaims for (1) breach of contract, (2) declaratory
relief, (3) rescission, (4) reformation, (5) “money had and received,” and (6) unjust enrichment.
Defendant’s claims were primarily based on his allegations that the COVID-19 pandemic had
frustrated the purpose of the contract and had made it impossible to operate a sit-down, fine
dining restaurant.
¶ 17 Plaintiff filed a motion to dismiss certain of defendant’s affirmative defenses and all of his
counterclaims pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
619 (West 2020)), claiming that they were not germane to the forcible entry and detainer
proceedings. In December 2021, the trial court dismissed each of defendant’s counterclaims,
as well as four of his affirmative defenses (for setoff, equitable rescission, failure of
consideration, and unjust enrichment), leaving defendant with 10 affirmative defenses.
¶ 18 Pretrial Proceedings
¶ 19 The parties proceeded to engage in discovery and other pretrial matters; as the various
delays in pretrial proceedings are the subject of the instant appeal, we relate them in some
detail. On May 2, 2022, the trial court entered an initial order setting the matter for a pretrial
hearing on June 27, 2022, and setting a trial date of July 6, 2022; the matter was continued to
June 9, 2022, for status on depositions.
5 No. 1-23-0708
¶ 20 On May 31, 2022, defendant filed a motion to extend the discovery schedule. Defendant
claimed that Olszewski, defendant’s owner and sole member, had been in a vehicular accident
on April 9, 2022, which “left him in significant pain, and required protracted medical
treatment, rendering him entirely unavailable to counsel for participation or consultation.”
Defendant therefore sought an extension of the discovery schedule by 45 days. In response,
plaintiff expressed doubt on the claims as to Olszewski’s health, noting that defendant had not
raised the issue when the discovery schedule was initially set in early May and that Olszewski
had participated in two site visits in late April and early May, during which he was walking
and otherwise active without any medical devices. On June 9, 2022, the trial court extended
the discovery schedule, setting a pretrial date of August 29, 2022, and setting the matter for
trial on September 13, 2022.
¶ 21 On August 12, 2022, defendant filed a motion to continue the trial schedule, in which
defendant’s counsel, a sole practitioner, indicated that he was “presently amidst a personal
health crisis, which has largely incapacitated him.” 1 Counsel indicated that he had been
“medically directed” to curtail his activities pending medical testing, and was scheduled for
surgery on August 30, 2022. Counsel further represented that “[i]t is fully anticipated that with
appropriate medical intervention, counsel’s incapacitation will be sufficiently rectified to
resume his normal schedule as soon as possible.” Defendant accordingly requested that the
trial schedule be continued for several weeks. On August 26, 2022, the trial court granted
defendant’s motion, setting a pretrial date of September 30, 2022, and setting the matter for
trial on October 7, 2022.
1 Defendant’s filing did not reveal the nature of counsel’s health issue, but the record on appeal indicates that it was related to a leg injury. 6 No. 1-23-0708
¶ 22 On September 22, 2022, defendant filed a second motion to reschedule the trial date, in
which defendant’s counsel indicated that he had surgery on August 30, 2022, “to address a
catastrophic injury.” Postsurgical rehabilitation, however, had rendered counsel “entirely
homebound,” and a reaction to anesthesia had left counsel with a “serious case of laryngitis.”
Counsel indicated that his surgeon had directed him to remain homebound until after his
postsurgical evaluation, scheduled for October 19, 2022. Accordingly, defendant requested
that the trial schedule be extended for another several weeks. On September 26, 2022, the trial
court granted defendant’s motion, setting a pretrial date of October 24, 2022, and setting the
matter for trial on October 28, 2022. The trial court further ordered that “[d]efendant has 21
days to hire substitute or additional counsel, if he chooses. However, no further continuances
will be granted.” The order also provided that “[n]o further continuances will be granted if
Defendant’s counsel withdraws or additional and/or substitute counsel appears for Defendant.”
¶ 23 On October 17, 2022, defendant filed an emergency motion to postpone the trial, in which
defendant’s counsel indicated that he “was literally just scheduled for emergency surgery
tomorrow, October 18, 2022,” and would be unable to conduct a trial on October 28, 2022.
Counsel further indicated that “[c]ounsel will withdraw of necessity, which has become clearly
necessary.” Accordingly, defendant requested that the trial date be postponed.
¶ 24 At the October 24, 2022, pretrial date, the trial court expressed surprise that no counsel for
defendant was present. Plaintiff’s counsel indicated that a colleague of defendant’s counsel
had informed plaintiff’s counsel that defendant’s counsel was currently in the hospital.
Olszewski, who was present, confirmed that his counsel was “rushed to the hospital Saturday” 2
and was currently hospitalized. The trial court examined its prior order of September 26, 2022,
2 The “Saturday” referred to by Olszewski is presumably Saturday, October 22, 2022. 7 No. 1-23-0708
and recalled that defendant had received several continuances based on counsel’s health; it
further noted that, due to that fact, its prior order was “very clear that [the trial court] was
granting the continuance, *** but [it] was also setting this for a final trial date.” The trial court
also advised Olszewski at that time that he should consider retaining additional or substitute
counsel.
¶ 25 The trial court asked Olszewski if he had retained another attorney, and he responded that
he was “in the process” of obtaining one, but requested an additional 21 days to find one. The
trial court noted that it had previously given defendant time to retain new counsel, but
Olszewski indicated that “what happened is [counsel] was fine. He had an emergency and he
got rushed to the hospital.” The trial court indicated that “[h]e hasn’t been fine. *** [T]his is
not the first time you’ve asked for a continuance based on his health.” Olszewski responded:
“He told me he was prepared and ready to go to court. We were all ready to go to trial and this
came up. He was rushed to the hospital Saturday unbeknownst to him. I don’t know what
happened to the man. He really wanted to go.” The trial court indicated that it was not going
to allow defendant more time to find an attorney, and that “we are going to trial on the 28th.”
Olszewski objected, and the following colloquy occurred:
“OLSZEWSKI: Can you give me three weeks—
THE COURT: No, it’s denied. I’ve given you more continuances than anybody.
And I was—this is the precise reason why I instructed that you get either additional
or substitute counsel by the 17th of October.
This is the—precisely the reason why I gave that instruction. ***
I’m not—
OLSZEWSKI: Let me ask you this? Can I ask you this?
8 No. 1-23-0708
I’m speaking to my attorney, I said do we need another counsel, he goes, no, I’ll be
fine. We were prepared to go and he became ill unexpectedly. It’s not—
THE COURT: No. No, it was expected. It could have been expected. He was ill
before and that’s why he asked for the continuance.
And at that point, he was not sure whether he would be able to do this case which
is why I gave the specific instruction to obtain another lawyer.
OLSZEWSKI: Judge, he has a letter from his doctor from October 16th saying he
was ready to go to trial.
He’s got a letter from his physician saying [counsel] can resume his legal practice.
He—
THE COURT: I think this is a circuitous conversation at this point. I’ve issued my
ruling. I’m not giving anymore [sic] time. We are going to trial on the 28th.”
¶ 26 The trial court then proceeded to conduct the pretrial hearing, granting plaintiff’s pretrial
submissions, as they had not been objected to by defendant, and noting that defendant had not
submitted any pretrial materials but nonetheless permitting Olszewski to testify on defendant’s
behalf. Olszewski continued to object, claiming that counsel’s previous health issues related
to a broken leg which required surgery, but that “[t]his is an illness that’s affecting him right
now.” The trial court ultimately denied defendant’s motion, ordering that “[t]he in-person trial
date of October 28, 2022, *** shall stand.” The trial court further ruled on plaintiff’s pretrial
submissions and ordered that “if Defendant calls Michael Olszewski as a witness, Mr.
Olszewski may testify.”
9 No. 1-23-0708
¶ 27 Trial
¶ 28 A jury trial on the matter commenced on October 28, 2022. Olszewski appeared in court
as representative of defendant, without counsel, and made an oral request for a continuance,
which was denied. In addition to reiterating its prior opinion that defendant’s counsel’s absence
was foreseeable, given his health history, the trial court also indicated that a continuance would
mean that the trial would not be held until 2023, due to the court’s schedule. The trial court
further noted that it needed to “weigh the equities in this case,” and that plaintiff was not
receiving any rent for the restaurant during the pendency of the proceedings, notwithstanding
the previous entry of a use and occupancy order.
¶ 29 The trial court additionally granted plaintiff’s request that Olszewski not be permitted to
participate in the trial, as he was not an attorney and was therefore unable to represent a
corporate defendant. During the trial, the trial court informed the jury that “[t]he attorney for
the defendant won’t be here today,” but introduced Olszewski as “representing the corporate
entity that is the defendant on trial today.” Olszewski was not permitted to speak during the
trial, including presenting any evidence or challenging plaintiff’s evidence. Plaintiff proceeded
to present its case in chief and, after it had done so, moved for a directed verdict, which was
granted.
¶ 30 The trial court entered an eviction order giving plaintiff possession of the property located
at “6580 N. Sheridan Rd.” and ordering defendant to vacate the premises by 11:59 p.m. on
October 28, 2022. The trial court additionally entered a money judgment of $405,518.28
against defendant for rent owed to plaintiff.
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¶ 31 Posttrial Proceedings
¶ 32 On November 28, 2022, defendant, represented by new counsel, filed a motion to
reconsider, arguing that it was entitled to representation of counsel at trial and that the trial
court erred in denying defendant’s motion for a continuance. Defendant also claimed that the
trial court prejudiced defendant by indicating that Olszewski would be allowed to testify, then
barring such testimony at trial. Finally, defendant contended that the eviction order was flawed,
as it listed the incorrect address as the property address.
¶ 33 On December 14, 2022, defendant also filed a petition for rule to show cause, alleging that
the lease agreement defined the subject premises as 6566-90 North Sheridan Road, not 6580
North Sheridan Road—the address on the eviction order—meaning that the eviction from the
subject property was improper. The petition further alleged that plaintiff altered the property
address on the building by changing the address posted on the awnings and doors. Attached to
the petition were photographs of the awning of the restaurant, including an address of “6572,”
followed by the same awning with what appears to be stickers covering the existing address,
changing it to “6580”; similar “6580” stickers are affixed to the door.
¶ 34 On December 22, 2022, plaintiff filed a “motion to increase judgment,” seeking an
additional $30,000 for rent accruing for November 2022, December 2022, and January 2023,
as defendant’s postjudgment motions had stayed the judgment until at least January 2023.
Plaintiff also filed a petition for attorney fees and costs, which it alleged were permitted by the
parties’ lease.
¶ 35 The trial court ultimately denied defendant’s motion to reconsider and petition for rule to
show cause, and granted plaintiff’s motion to increase judgment and petition for attorney fees.
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The trial court awarded plaintiff an additional judgment for unpaid rent in the amount of
$46,774.19, and awarded attorney fees of $24,334.50 and costs of $3208.08.
¶ 36 Defendant filed motions to stay enforcement of the order pending appeal before both the
trial court and this court, which were denied. The record on appeal indicates that the Cook
County Sheriff’s Office effectuated the eviction on May 3, 2023.
¶ 37 ANALYSIS
¶ 38 On appeal, defendant primarily contends that the trial court erred in (1) denying his motion
for a continuance, (2) permitting the trial to go forward without defendant being allowed to
present his case, and (3) denying his petition for rule to show cause, which was based on
plaintiff’s unilateral altering of the address on the premises.
¶ 39 As an initial matter, as noted, the eviction has been effectuated in this case, meaning that
defendant no longer has possession of the subject property. Plaintiff thus claims that
defendant’s appeal is moot as to the issue of possession. An appeal is moot “if no actual
controversy exists or when events have occurred that make it impossible for the reviewing
court to render effectual relief.” Commonwealth Edison Co. v. Illinois Commerce Comm’n,
2016 IL 118129, ¶ 10. A reviewing court will generally not decide a moot question, as “such
a decision would essentially be an advisory opinion.” Id.
¶ 40 Forcible entry and detainer actions are unique in that they are concerned with determining
the right to possession “without the added complication of deciding unrelated matters.” Milton
v. Therra, 2018 IL App (1st) 171392, ¶ 23. As such, “the only factual questions that need to
be answered in this type of proceeding are ‘which party is entitled to immediate possession
and whether a defense which is germane to the distinctive purpose of the action defeats [the]
plaintiff’s asserted right to possession.’ ” Id. (quoting First Illinois Bank & Trust v. Galuska,
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255 Ill. App. 3d 86, 90 (1993)). Consequently, where the plaintiff has already regained
possession of the property, our courts have regularly found that a challenge to an eviction order
is rendered moot, as it is impossible to render effective relief to the appealing party. See, e.g.,
Circle Management, LLC v. Olivier, 378 Ill. App. 3d 601, 607-08 (2007); Said Iskan
Investments, LLC v. Drew, 2024 IL App (1st) 231707-U, ¶ 14.
¶ 41 In this case, therefore, to the extent that defendant’s claims concern the possession of the
property, such claims are rendered moot by the fact that plaintiff has regained possession of
the leased premises. This, however, does not mean that defendant’s entire appeal is moot, as
the trial court’s eviction order also included an award of monetary damages, in the form of
past-due rent. See 735 ILCS 5/9-209 (West 2020) (permitting a claim for rent to be included
in an eviction action); Campana Redevelopment, LLC v. Ashland Group, LLC, 2013 IL App
(2d) 120988, ¶ 14 (a landlord may couple a claim for possession with a claim for unpaid rent).
As this portion of the trial court’s judgment was not rendered moot, defendant’s challenge to
the trial court’s order remains properly before us and we may consider the merits of his
arguments on appeal. See Poulos v. Reda, 165 Ill. App. 3d 793, 798 (1987) (while issue of
possession was moot, the attendant claim for rent was “still a viable issue”); Goolsby v.
Thompson, 2024 IL App (1st) 231686-U, ¶ 19 (same); 6103-07 Claremont, LLC v. Hunter,
2024 IL App (1st) 231287-U, ¶ 29 (same).
¶ 42 Defendant’s primary argument on appeal is his contention that the trial court erred in
denying his requests for a continuance after his counsel was hospitalized shortly before trial.
A litigant does not have an absolute right to a continuance. K&K Iron Works, Inc. v. Marc
Realty, LLC, 2014 IL App (1st) 133688, ¶ 22. Instead, the decision to grant or deny a motion
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for a continuance lies within the discretion of the trial court. 3 Doe v. Parrillo, 2021 IL 126577,
¶ 65. Accordingly, a reviewing court will not interfere with that decision “ ‘unless it has
resulted in a palpable injustice or constitutes a manifest abuse of discretion.’ ” K&K Iron
Works, 2014 IL App (1st) 133688, ¶ 22 (quoting Wine v. Bauerfreund, 155 Ill. App. 3d 19, 22
(1987)). A trial court, however, should not refuse to grant a continuance “where the ends of
justice clearly require it.” Curtin v. Ogborn, 75 Ill. App. 3d 549, 553 (1979). As such, “an
appellate court can and should overrule a trial court’s exercise of that discretion if it is not
exercised judiciously.” Bethany Reformed Church of Lynwood v. Hager, 68 Ill. App. 3d 509,
511 (1979).
¶ 43 Illness may serve as sufficient grounds for a continuance, even on the eve of trial. See, e.g.,
Bethany, 68 Ill. App. 3d at 511 (trial court’s denial of continuance reversed where defendant
was hospitalized at time of trial). Specifically, as relevant to the instant case, the illness of a
party’s trial attorney may warrant a temporary postponement of the trial. In re Marriage of
Ward, 282 Ill. App. 3d 423, 431 (1996). In this case, we agree with defendant that such a
continuance should have been granted and that the trial court abused its discretion in denying
defendant’s requests.
¶ 44 First, despite plaintiff’s—and the trial court’s—suggestion otherwise, we do not find the
delays caused by counsel’s health to be particularly lengthy. In denying the request for a
continuance at the pretrial hearing, the trial court indicated that “the first date [this case] was
3 We note that there are certain circumstances in which the grant or denial of a continuance is expressly governed by rule or statute. See, e.g., 735 ILCS 5/2-1007 (West 2022); Ill. S. Ct. R. 231 (eff. Jan. 1, 1970); Cook Co. Cir. Ct. R. 5.2 (July 1, 1976). The circumstances present in the case at bar do not fall within those categories and, accordingly, the trial court’s decision was discretionary. See 735 ILCS 5/2-1007 (West 2022) (“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.”); Ill. S. Ct. R. 183 (eff. Feb. 16, 2011). 14 No. 1-23-0708
in front of me was in June of 2021. Eviction proceedings are summary proceedings and should
not linger for that long. This has been lingering and has been continued and dying *** and the
continuances in your favor based on your request. And we are *** at the end of that road. I am
going to proceed.” The trial court continued, “based on *** the Court’s schedule as well as the
fact that this case should have been resolved some time ago, I’m going to deny any motion for
a continuance by the defendant.” A party’s diligence in proceeding with the case is a relevant
factor in determining whether to grant a continuance. Ward, 282 Ill. App. 3d at 431; see also
Meyerson v. Software Club of America, Inc., 142 Ill. App. 3d 87, 92 (1986). The trial court’s
statements, however, appear to hold defendant responsible for delays which were largely
occasioned by the litigation process.
¶ 45 As relevant to the instant appeal, the original complaint was filed on May 4, 2021, and the
first order entered by the judge ultimately presiding over the trial appears to have been entered
on June 17, 2021, in connection with plaintiff’s motion for leave to file an amended complaint.
Plaintiff’s amended complaint was filed on July 1, 2021. Defendant filed a motion to dismiss
the complaint for failure to serve the statutorily-required five-day notice, and the parties
engaged in briefing on the matter before the motion was ultimately withdrawn on August 20,
2021. Defendant filed its answer, affirmative defenses, and counterclaims on October 6, 2021.
In response, on October 18, 2021, plaintiff filed a motion to dismiss several of defendant’s
affirmative defenses and all of its counterclaims. The parties engaged in briefing on the motion,
which was granted by the trial court in two orders, dated December 14 and 17, 2021. Several
status dates followed concerning discovery, at which both parties’ attorneys were present. At
the May 2, 2022, status, the trial court set the matter for trial for the first time, with a trial date
of July 6, 2022. Prior to this time, the record reveals no motions for continuances or other
15 No. 1-23-0708
extensions of time by either party, apart from a single motion to extend the discovery deadlines
filed by defendant in July 2021, which sought to defer the close of discovery until after the
resolution of its then-pending motion to dismiss the complaint.
¶ 46 After the May 2, 2022, status date, defendant filed a motion to extend the current schedule,
alleging that Olszewski had been injured in a vehicular accident, which prevented him from
participating in the defense of the matter. Over plaintiff’s objection, the trial court granted
defendant’s motion and extended the deadlines, including a new trial date of September 13,
2022.
¶ 47 On August 12, 2022, defendant—for the first time—filed a motion to continue the trial
schedule based on the health of defendant’s counsel. According to this motion, counsel was
scheduled for surgery on August 30, 2022. On August 26, 2022, the trial court granted
defendant’s motion, setting a new trial date of October 7, 2022. On September 22, 2022,
defendant filed a second motion to continue the trial schedule based on counsel’s health,
asserting that counsel had suffered postsurgical complications and that his surgeon directed
him to remain homebound until after his October 19, 2022, postoperative evaluation. On
September 26, 2022, the trial court granted defendant’s motion, setting a new trial date of
October 28, 2022, and making clear that “no further continuances will be granted.”
Defendant’s October 17, 2022, emergency motion to postpone trial—and Olszewski’s oral
motions to the same effect on October 24, 2022, and October 28, 2022—followed and, as
noted, were denied.
¶ 48 Examining the timeline of the litigation, then, defendant received two prior continuances
based on counsel’s health, with the trial court denying the third. The continuances resulted in
the trial date moving from September 13, 2022, to October 28, 2022—slightly over six weeks.
16 No. 1-23-0708
While we agree with the trial court that eviction matters are summary proceedings which
should be resolved quickly (see, e.g., Wells Fargo Bank, N.A. v. Watson, 2012 IL App (3d)
110930, ¶ 14), we cannot find that a delay of less than two months is so egregious as to warrant
proceeding to trial regardless of the circumstances. See Bethany, 68 Ill. App. 3d at 512 (finding
that the defendant’s prior continuances, amounting to a one-month delay in the trial date, were
“minimal” and “did not significantly delay the litigation”).
¶ 49 We also cannot agree with the trial court’s characterization of counsel’s illness as
foreseeable, based on his prior health issues. The record indicates that counsel’s prior
continuances were based on an injury to his leg which required surgery, and which developed
postsurgical complications. The record further indicates, however, that shortly prior to trial,
counsel suffered an illness or other health event which was unrelated to his prior leg injury and
surgeries, resulting in his hospitalization. While counsel’s health was the common factor, we
find the subsequent illness more similar to defendant’s analogy of a vehicular accident than a
mere continuation of counsel’s prior problems, as the trial court apparently concluded. We
therefore cannot find that the trial court’s previous suggestion that defendant seek additional
or substitute counsel is particularly relevant, as there is no indication that counsel would have
otherwise been unable to appear as scheduled and, in fact, Olszewski indicated that counsel
had received a clean bill of health from his physician shortly before he became ill.
¶ 50 We also find unpersuasive plaintiff’s suggestion that defendant’s claims as to his counsel’s
health were unsupported. A motion for a continuance on the basis of illness must generally be
supported by competent medical testimony setting forth the nature of the illness and the reasons
17 No. 1-23-0708
why the individual is unable to participate in the trial. 4 Ward, 282 Ill. App. 3d at 431. In this
case, plaintiff is correct that the specific health issues which led to counsel’s absence at the
time of the trial are not entirely clear from the record on appeal—indeed, while Olszewski
indicated on October 24, 2022, that counsel had been “rushed to the hospital Saturday”
(October 22), defendant’s emergency motion to postpone trial, filed on October 17, indicated
that counsel was “literally just scheduled for emergency surgery tomorrow, October 18, 2022.”
It is clear, however, that the trial court’s decision to deny a continuance in the instant case was
not based on a finding that the request was insufficiently supported, as it expressly
acknowledged that it accepted that counsel was ill, and we cannot find that any lack of
evidentiary support prevented the trial court from adequately considering the matter.
¶ 51 The report of proceedings from the October 24, 2022, pretrial hearing indicates that
plaintiff’s counsel was informed prior to the hearing that defendant’s counsel had been recently
hospitalized, which was corroborated by Olszewski’s statements to the same effect once he
appeared at the hearing. Olszewski additionally attempted to explain the nature of counsel’s
illness to the trial court, but the trial court indicated that “I’m not asking for a lowdown on his
illness. I understand that he’s ill.” Subsequently, on the day of trial, the report of proceedings
indicates that Olszewski attempted to hand the trial court a “medical report” from counsel’s
doctor for its review. Plaintiff objected to Olszewski submitting anything to the court, as he
was not an attorney, and the trial court ultimately did not accept the document, indicating that
it “kn[e]w” that counsel had been ill and that “I’m not asking for detail necessarily,” but was
only concerned with the question of whether the parties were ready for trial. We therefore
4 We note that Illinois Supreme Court Rule 231 (eff. Jan. 1, 1970), requires an affidavit in support of certain motions for continuances. While a continuance based on illness is not specifically discussed within the rule, courts generally consider an affidavit to be “competent medical testimony” sufficient to support a motion for a continuance. See, e.g., Bethany, 68 Ill. App. 3d at 513. 18 No. 1-23-0708
cannot find that the lack of documentary support in the record on appeal weighs against
defendant’s request for a continuance under the circumstances of the instant case, especially
where the trial court was clear that it did not need—or want—such information.
¶ 52 In finding that a continuance should have been granted in the instant case, we cannot
overlook the extreme prejudice which resulted from the denial of defendant’s requests.
Defendant is a limited liability company and, as such, is a legal entity distinct from its sole
member, Olszewski. See 805 ILCS 180/5-1(c) (West 2020). Accordingly, as a corporate entity,
defendant is required to be represented by a licensed attorney at all times and does not have
the ability to proceed pro se. See Downtown Disposal Services, Inc. v. City of Chicago, 2012
IL 112040, ¶ 17; Curet v. C&H Exterior Restorations, Inc., 2023 IL App (2d) 230030, ¶ 27.
See also City of Danville v. C.A. Collins Enterprises, LLC, 2023 IL App (5th) 220345, ¶ 25 (a
limited liability company must be represented by counsel). After the trial court denied the
requests for a continuance, therefore, defendant was rendered powerless to defend against
plaintiff’s case; indeed, the report of proceedings from the trial indicates that Olszewski, as
defendant’s corporate representative, had no ability to participate in the trial at all. Thus,
despite the fact that defendant had multiple defenses to plaintiff’s complaint, defendant did not
have the ability to (1) present any motions in limine or object to those submitted by plaintiff,
(2) participate in jury selection, (3) cross-examine any of plaintiff’s witnesses or challenge any
of its evidence, (4) present its own evidence in support of its defenses, or (5) participate in a
jury instruction conference. In short, defendant was essentially handcuffed from participating
19 No. 1-23-0708
in the trial, leading to a one-sided presentation to the jury which almost inevitably resulted in
a directed verdict in plaintiff’s favor. 5
¶ 53 We recognize that the trial court has the ability to control its own docket (Panos Trading
LLC v. Forrer, 2023 IL App (1st) 220451, ¶ 38), and that the trial court in the instant case was
attempting to resolve a matter which had been pending for quite some time, while being
cognizant of the fact that plaintiff had received no payment during the pendency of the
proceedings. We nevertheless must conclude that the trial court’s denial of defendant’s request
for a continuance in this case “ ‘resulted in a palpable injustice’ ” (K&K Iron Works, 2014 IL
App (1st) 133688, ¶ 22 (quoting Wine, 155 Ill. App. 3d at 22)) such that reversal is warranted.
Given the extremely harsh resultant consequences of the denial, the relatively modest length
of the previous delays, and the fact that the request for a continuance was based on the sudden
illness of counsel, we find that the trial court should have granted defendant’s request and
continued the trial, at a minimum, for the 21 days requested by Olszewski at the October 24,
2022, pretrial hearing to permit defendant to retain new counsel. Accordingly, we reverse the
trial court’s judgment in favor of plaintiff and remand the matter for a new trial on the issue of
whether defendant is liable for past-due rent.
¶ 54 Based on our decision, we have no need to engage in extensive discussion of defendant’s
remaining issues on appeal. Defendant’s arguments as to Olszewski’s ability to testify and the
award of attorney fees are necessarily obviated by the remand, as both concerned the initial
trial proceedings. Similarly, defendant’s arguments as to the propriety of the trial court’s ruling
on his petition for rule to show cause are no longer viable issues, as that petition was based on
5 To be clear, defendant failed to comply with pretrial deadlines in this matter, which resulted in the trial court barring defendant from presenting any evidence other than Olszewski’s testimony. This decision was not challenged by defendant on appeal, so we do not express any opinion as to its propriety. 20 No. 1-23-0708
the eviction order and, as explained, issues concerning the propriety of the eviction order were
rendered moot once the eviction was effectuated.
¶ 55 CONCLUSION
¶ 56 For the reasons set forth above, we find that the trial court abused its discretion in denying
defendant’s requests for a continuance based upon its trial counsel’s sudden illness. As the
issue of possession has been rendered moot, we reverse the trial court’s judgment and remand
the matter for a new trial to determine whether defendant is liable for past-due rent.
¶ 57 Reversed and remanded.