Pros Corporate Management Services, Inc. v. Ashley S. Rose, Ltd., 2-91-0839

• Decision Date: 05 May 1992
• Docket Number: No. 2-91-0839,2-91-0839
• Citation: 228 Ill.App.3d 573,170 Ill.Dec. 173,592 N.E.2d 609
• Parties: , 170 Ill.Dec. 173 PROS CORPORATE MANAGEMENT SERVICES, INC., Plaintiff, v. ASHLEY S. ROSE, LTD., Defendant-Appellant (Louis A. Allen, Plaintiff-Appellee). Second District
• Court: United States Appellate Court of Illinois

Page 609

592 N.E.2d 609

228 Ill.App.3d 573, 170 Ill.Dec. 173

PROS CORPORATE MANAGEMENT SERVICES, INC., Plaintiff, v. ASHLEY S. ROSE, LTD., Defendant-Appellant (Louis A. Allen Plaintiff-Appellee).

No. 2-91-0839.

Appellate Court of Illinois,

Second District.

May 5, 1992.

Ashley S. Rose, on the brief, Ashley S. Rose, Ltd., Wheaton, for Ashley S. Rose.

David H. Keay, Law Office of David H. Keay, Brent E. Ohlmann, David H. Keay on the brief, Wheaton, for Pros Corporate Management.

Justice DOYLE delivered the opinion of the court:

The plaintiff, Pros Corporate Management Services, Inc. (Pros), filed a complaint in the circuit court of Du Page County naming as defendant Ashley S. Rose, Ltd., and seeking money allegedly due under a written lease, as well as attorney fees pursuant to the lease. The plaintiff filed an amended complaint adding Louis A. Allen as a plaintiff. Following a bench trial, the court entered a finding against Pros, entered judgment in favor of Louis Allen in the amount of $13,042.22 and continued the matter for a hearing on attorney fees. The court subsequently awarded Louis Allen $11,202.50 in attorney fees, and the defendant appealed.

The following issues are raised by the defendant on appeal: (1) whether the trial court lacked jurisdiction to conduct a trial; (2) whether the trial court erred in allowing Louis Allen to become a plaintiff; (3) whether the trial court erred in refusing to enforce the defendant's Rule 237(b) (134 Ill.R. 237(b)) notice to produce; (4) whether the trial court erred in conducting a bench trial absent Louis Allen; and (5) whether the trial court erred in denying the defendant's motion for summary judgment and its post-trial motion, both of which were based on Pros' alleged waiver of its right to enforce the lease as to rent payments.

The following facts are relevant to our disposition of the issues. On August 1, 1988, Pros filed its complaint against the defendant alleging that the defendant owed $12,541.91 pursuant to a written lease between the defendant and Louis Allen & Associates, Inc. (Allen & Associates). According to the complaint, Pros was the agent of Allen & Associates. The complaint also sought attorney fees under the lease if Pros prevailed.

On February 22, 1989, the defendant filed a motion to dismiss pursuant to section 2-619(a)(2) of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(2)), based upon Pros' alleged lack of standing. On July 21, 1989, the defendant moved to amend the statutory basis of its motion to dismiss from section 2-619(a)(2) to section 2-619(a)(9) of the Code. On August 21, 1989, the court entered an order granting the defendant's motion to dismiss based on Pros' lack of standing. That order further provided that "[i]f counsel for plaintiff can produce an assignment, counsel may file motion to vacate dismissal within thirty (30) days of the date hereof." The order, as originally drafted by the defendant's attorney and submitted to the court, granted Pros leave to file an amended complaint rather than leave to file a motion to vacate the dismissal.

On September 20, 1989, Pros filed an amended complaint which named as plaintiffs both Pros and Louis A. Allen "individually as successor to LOUIS A. ALLEN ASSOCIATES, INC." Attached to the complaint as an exhibit is a copy of a warranty deed conveying the subject property from Allen & Associates to Louis Allen and Ruth Allen. The amended complaint sought the same relief as the original complaint. On October 25, 1989, Pros filed a motion for leave to file its amended complaint nunc pro tunc based on the court's unilateral modification of the August 21, 1989, order dismissing the original complaint.

On November 29, 1989, Pros filed a motion to vacate the August 21, 1989, order of dismissal pursuant to section 2-1401 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 2-1401). On December 13, 1989, the court entered an order granting Pros' motion for leave to file its amended complaint nunc pro tunc to August 21, 1989. On January 3, 1990, the defendant filed a motion to vacate the December 13, 1989, order, which the court denied on January 10, 1990.

On March 26, 1990, the defendant filed a document entitled "NOTICE TO PRODUCE AT TRIAL." That document states, in pertinent part, that the plaintiff is "notified in accordance with Supreme Court Rule 237(b) to produce at the trial or arbitration hearing" both Louis A. Allen and Ruth G. Allen. The notice further requires production of the Allens at the "Arbitration Center" on April 3, 1990, or "any date which that hearing" might be continued. On March 30, 1990, Pros and Louis Allen filed a motion to quash the defendant's Rule 237(b) notice to produce.

On March 26, 1990, the defendant also filed another motion to dismiss the amended complaint pursuant to section 2-619(a)(9) of the Code. On April 2, 1990, the court denied the defendant's motion to dismiss and also denied the plaintiffs' motion to quash the defendant's Rule 237(b) notice to produce "as far as the arbitration proceedings [were] concerned."

On April 3, 1990, the court entered an order stating that the matter was heard at an arbitration hearing on April 3, 1990, and that an award was entered. Also on April 3, 1990, there was an arbitration award entered in favor of the plaintiff in the amount of $13,012.42. The arbitration award reserved the issue of attorney fees for a hearing before the supervising judge. On April 12, 1990, the defendant filed its rejection of the arbitration award.

While the record does not contain a copy of the notice, our records show that the defendant filed a notice of appeal on April 12, 1990 (No. 2-90-0395). On May 15, 1990, the trial court ordered "[t]he matter [to be] set for trial July 12, 1990." On June 5, 1990, this court entered an order dismissing the appeal (No. 2-90-0395). The record indicates that that order was filed in the circuit court on June 12, 1990.

Our records, of which we may take judicial notice, indicate that on June 22, 1990, the defendant filed in this court an "affidavit of intent to file a petition for leave to appeal to the supreme court" and a motion to recall our mandate. On July 3, 1990, the defendant filed an "expedited motion to stay proceedings pending appeal to the supreme court." On July 10, 1990, this court denied the defendant's motion to stay the trial court proceedings.

On July 2, 1990, the defendant filed a motion to continue the trial. Alternatively, the motion asked the trial court to put the case on inactive status for the reason that the court lacked jurisdiction to set the matter for trial because of the case's pendency in the appellate court. The defendant also filed on July 2, 1990, its motions for summary judgment and to dismiss. On that same date, the trial court entered an order denying the defendant's motions to dismiss and to continue the trial date. On July 12, 1990, the trial court denied the defendant's motion for summary judgment and proceeded to conduct a bench trial.

As a preliminary matter, the trial court stated for the record that counsel had handed it an order of this court stating that a motion by the defendant to stay proceedings in the trial court had been denied. The trial court also ruled, prior to trial commencing, that the previously filed notice to produce pursuant to Rule 237(b) applied only to the arbitration hearing and that the defendant was obligated to renew the Rule 237(b) notice if it wanted to require the presence of Louis Allen and Ruth Allen at trial.

Drew Matthews, who was employed by Pros from October 1983 to May 1988 as vice-president and project manager, testified at trial that he was familiar with the management of the commercial properties managed by Pros. Matthews managed the property of which the defendant was a tenant. Matthews also identified a written lease between the defendant and Allen & Associates commencing April 1, 1984, and ending March 31, 1987.

According to Matthews, the defendant vacated the premises when the lease terminated in March 1987. At that time, the defendant owed $13,042.22 in rent. Pros mailed a rental statement to the defendant dated March 31, 1987, stating a total amount due of $13,042.22. Pros received no payments from the defendant after the mailing of the March 31, 1987, statement. Randall A. Pros, who was president of Pros during the term of the lease, testified that the defendant was billed for rent on a monthly basis.

Following the plaintiff's case, the defendant moved for a directed finding on the basis that neither Pros nor Louis Allen had standing. The court granted the motion as to Pros and denied it as to Louis Allen.

Ashley Rose testified on behalf of the defendant that the defendant vacated the premises at the end of March 1987. According to Mr. Rose, about eight months to a year after the defendant moved out, he received a statement from Pros, dated March 31, 1987. The defendant was delinquent some months with rent payments and on one occasion made a lump sum payment of four payments which was accepted by the landlord.

There was never a demand letter served on the defendant during the time it occupied the premises. No suit was ever filed to collect rent. The defendant paid rent in March 1987, which was accepted. The only demand letter ever received after the defendant vacated the premises was one sent a "considerably long time" after the defendant left. He also received a telephone call from an attorney "months" after he left, stating there was a claim, but not alleging the amount claimed. The defendant never received any itemized statement concerning his security deposit, as required by the lease, nor was any security deposit returned to him. On cross-examination, Rose denied receiving a letter from Drew Matthews dated December 31, 1985, that stated the defendant's account was delinquent in the amount of $5,102.70. He had no recollection of ever making any demand for the...