Ebert v. Dr. Scholl's Foot Comfort Shops, Inc.

• Citation: 137 Ill.App.3d 550,484 N.E.2d 1178,92 Ill.Dec. 323
• Decision Date: 18 October 1985
• Docket Number: No. 84-0136,84-0136
• Parties: , 92 Ill.Dec. 323 Albert C. EBERT, Plaintiff-Appellant, v. DR. SCHOLL'S FOOT COMFORT SHOPS, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1178

484 N.E.2d 1178

137 Ill.App.3d 550, 92 Ill.Dec. 323

Albert C. EBERT, Plaintiff-Appellant, v. DR. SCHOLL'S FOOT COMFORT SHOPS, INC., Defendant-Appellee.

No. 84-0136.

Appellate Court of Illinois First District, Fifth Division.

Oct. 18, 1985.

Linda Kay Staton, Chicago, for plaintiff-appellant.

Harry Golter, Timothy G. Nickels, Wildman, Harrold, Allen & Dixon, Chicago, for defendant-appellee.

MEJDA, Presiding Justice:

The present action arose following the termination of commercial lease negotiations between plaintiff, Albert C. Ebert ("plaintiff"), as lessor and defendant, Dr. Scholl's Foot Comfort Shops, Inc. ("defendant"), as lessee. Plaintiff now appeals from the trial court's entry of summary judgment orders in favor of defendant. Plaintiff contends that 1) the summary judgments were improper since material issues of fact were in dispute, 2) the trial court erred in failing to find that a contract existed between the parties, and 3) the trial court erred in finding a holdover tenancy under the terms and conditions of the prior lease. We affirm.

Defendant leased and occupied the property known as 19-21 North Wabash Avenue for approximately thirty years. The initial lease for the property was executed on November 15, 1950, between defendant and George S. Lurie, Joseph M. Reich, and Sidney J. Wolf as successor trustees under a trust agreement dated December 29, 1920, and known as Shops Realty Trust. Successive agreements amended and extended the lease and, on July 25, 1969, the final lease, extending the term to April 30, 1981, was executed by the original parties.

In 1979, the Cosmopolitan National Bank of Chicago, under Trust No. 23668, dated September 15, 1977, acquired legal title to the property commonly known as 17-25 North Wabash Avenue, Chicago, Illinois. The original beneficial owner of Trust No. 23668 was Walter Canton. Prior to April 22, 1980, Canton conveyed his beneficial interest to plaintiff.

On April 22, 1980, defendant wrote to plaintiff's agent, acknowledging the April 30, 1981, lease expiration date, and requesting a lease renewal meeting. The parties, however, were unable to meet until March 9, 1981. At the meeting, plaintiff informed defendant's agent, Herbert Kotkin, that he intended to remodel the 19-21 North Wabash Avenue property. Plaintiff explained that he intended to divide the space then leased by defendant into two rental spaces. This division would reduce defendant's 40' frontage at 19-21 North Wabash Avenue to a 20' frontage at 21 North Wabash Avenue. Kotkin did not object to the space reduction. He did, however, express concern that defendant's business would be impeded during the construction period. Prospective rental fees were not determined at this time.

Negotiations between the parties and/or their agents continued throughout April of 1981. On May 5, 1981, plaintiff's agent sent defendant a standard form lease, requesting that it be signed and returned to plaintiff within ten days. Paragraph 17(g) of the form lease provided as follows:

"Submission of this instrument for examination does not constitute a reservation or an option for the premises. The instrument becomes effective as a lease upon the execution and delivery both by Lessor and Lessee."

Defendant made changes and deletions in the form lease before signing and returning it to plaintiff on May 14, 1981. Paragraph 17(g), however, was left intact. On the same day, Kotkin sent plaintiff the following letter.

"Dear Mr. Ebert:

As you know, we have been working diligently with Ann Annovitz and our attorneys on the correction and execution of our final lease draft. Meanwhile, we realize that our existing lease expired April 30, 1981, and we wish to acknowledge, by this letter, that we have agreed to the new rate that is effective May 1, 1981, so that our accounting department can proceed to reimburse you at the correct rental. This rate for May 1, 1981, through April 30, 1982, is $9,583.30 a month. This totals to $115,000 for this coming twelve months.

If you have not cashed our original rent payment for 19 North Wabash Avenue, then I suggest you return it to my attention. I am having our accounting department forward to you a check for the May rent at the new rate.

Within the next few weeks we will finalize, between the two of us, the final lease document and we will be on our way to a profitable ten-year association.

If you have any further questions, please feel free to contact me by telephone, and I am sure we can iron out any problem. Thank you.

Best wishes.

Herbert Kotkin"

Plaintiff rejected the May 14 lease and, on May 20, 1981, sent defendant a new lease which differed from the May 14 lease.

On June 15, 1981, defendant advised plaintiff that the May 20 lease was unacceptable, and that it no longer wished to enter into a long-term lease agreement for the 21 North Wabash Avenue property. Defendant then offered to continue to lease the property as a month-to-month tenant at the $9,503.33 per month rate noted in the May 14 letter. Plaintiff stated that he would consider the offer.

Plaintiff subsequently signed the previously rejected May 14 lease and mailed it to defendant. In addition, plaintiff deposited the May and June rent checks in his account. Further negotiations between the parties failed, and defendant vacated the premises on July 9, 1981.

On July 27, 1981, plaintiff filed his initial complaint alleging that defendant had breached an existing lease agreement, and that defendant had been a holdover tenant. Plaintiff subsequently amended his complaint and excluded the holdover claim. Thereafter, defendant filed a counterclaim alleging overpayment for the holdover period, and having paid $19,166.66, prayed judgment in the amount of $6,916.66.

On May 2, 1983, the trial court granted defendant's motion for summary judgment on plaintiff's amended complaint. In the same order, the court granted defendant's motion for summary judgment on the counterclaim. The second ruling, however, was limited to liability and was accompanied by an order for prove-up to determine damages. The May 2 order therefore, was not deemed final and appealable. On July 13, 1983, the trial court awarded defendant $4,574.64 on the counterclaim and found no reason to delay appeal or enforcement.

On July 25, 1983, plaintiff, through a new attorney, filed a motion "to vacate the order entered granting defendant's motion for summary judgment and findings against the plaintiff." At the hearing on plaintiff's motion, defendant objected to the filing because the acting attorney was not of record. The trial judge granted plaintiff's new counsel until August 26, 1983, to file a substitution of attorneys. No substitution of attorneys was filed, however, until October 21, 1983.

On December 20, 1983, the trial court denied plaintiff's motion. On January 11, 1984, plaintiff filed a notice of appeal, wherein he appealed from the trial court's denial of his post-trial motion. On May 23, 1984, defendant moved to dismiss plaintiff's appeal. On August 2, 1984, plaintiff presented a motion for leave to file an amended notice of appeal. The motions were taken with the appeal for decision.

I

Before addressing the merits of the appeal, we must determine whether plaintiff has properly invoked the appellate jurisdiction of this court. (In re Marriage of Rossi (1981), 100 Ill.App.3d 669, 672, 56 Ill.Dec. 214, 427 N.E.2d 294.) Jurisdictional questions are implicit in both defendant's motion to dismiss the appeal and in plaintiff's motion to file an amended notice of appeal. We therefore begin by resolving these concerns.

A

The motion to dismiss this appeal is based on defendant's contention that the appeal is defective. ¹ Initially, defendant maintains that the attorney filing plaintiff's post-trial motion on July 25, 1983, was not the attorney of record, and therefore, did not have authority to address the court on that date. Defendant supports this argument by citing Supreme Court Rule 13(c)(1) which states as follows:

"Appearance and Withdrawal of Attorneys. (1) Addressing the Court. An attorney shall file his written appearance or other pleading before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise." 87 Ill.2d R. 13(c)(1).

In addition, defendant states that at the August 19, 1983, hearing on plaintiff's motion, the trial court allowed plaintiff's new counsel seven days in which to file a substitution of attorneys. Counsel for plaintiff, however, did not file an appearance in this case until October 21, 1983. Defendant maintains that counsel's failure to comply with either Rule 13(c)(1) or the court's directives serves to render plaintiff's post-trial motion a nullity. Defendant argues that since no timely post-trial motion was properly filed in plaintiff's behalf, and more than 30 days elapsed before any notice of appeal was filed, the appellate court lacks jurisdiction to review the trial court's orders. Allabastro v. Wheaton National Bank (1980), 91 Ill.App.3d 222, 224, 46 Ill.Dec. 653, 414 N.E.2d 537.

We do not accept this conclusion, however, since we disagree with defendant's assertion concerning the validity of plaintiff's post-trial motion. Defendant has presented no authority requiring the nullification of an otherwise proper motion merely because of counsel's failure to file a timely substitution of attorneys. Moreover, the record before us gives no indication that counsel's tardiness caused either prejudice to defendant or any substantial inconvenience to the trial court. Despite any failure by plaintiff's attorney, the parties remained properly before the court throughout the proceedings below. Thus, the filing of plaintiff's post-trial motion effectively stayed the 30-day notice of appeal period until December 20, 1983, when the motion was denied. Since plaintiff's original notice of appeal was filed on January 11, 1984, within 30 days of the denial...