{ "id": 3559004, "name": "NOVAK FOOD SERVICE EQUIPMENT, INC., Plaintiff-Appellant, v. MOE'S CORNED BEEF CELLAR, INC., Defendant-Appellee", "name_abbreviation": "Novak Food Service Equipment, Inc. v. Moe's Corned Beef Cellar, Inc.", "decision_date": "1984-02-14", "docket_number": "No. 83\u20141463", "first_page": "902", "last_page": "906", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 902" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "404 N.E.2d 1097", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3203127 ], "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0097-01" ] }, { "cite": "424 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499870 ], "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0758-01" ] }, { "cite": "29 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "374 Ill. 194", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2532939 ], "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill/374/0194-01" ] }, { "cite": "139 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 2d 226", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5167898 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/12/0226-01" ] }, { "cite": "371 Ill. 174", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2521600 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill/371/0174-01" ] }, { "cite": "16 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "296 Ill. App. 412", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3152680 ], "year": 1939, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-app/296/0412-01" ] } ], "analysis": { "cardinality": 537, "char_count": 9773, "ocr_confidence": 0.765, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.286063395974051 }, "sha256": "75407f08612fa320aa0b0ea291eb29d11151f32ec0f887e02a57e5357e14a724", "simhash": "1:62fd39ed659581ef", "word_count": 1591 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NOVAK FOOD SERVICE EQUIPMENT, INC., Plaintiff-Appellant, v. MOE\u2019S CORNED BEEF CELLAR, INC., Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nPlaintiff, Novak Food Service Equipment, Inc. (Novak), appeals from the circuit court\u2019s refusal to enter a preliminary order of replevin of restaurant equipment in possession of defendant Moe\u2019s Corned Beef Cellar, Inc. (Moe\u2019s). Novak brought this interlocutory appeal pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)) and raises issues of whether: the refusal to enter an order of replevin at the preliminary hearing is appealable as of right; and, the circuit court erred in refusing to enter the preliminary order of replevin.\nFor the reasons hereinafter presented, we dismiss for lack of jurisdiction and direct the circuit court to make a final determination on the merits.\nNovak\u2019s verified complaint in replevin alleged its entitlement to all the equipment delivered to Moe\u2019s under various attached sales invoices, and sought the issuance of a court order for possession of the property, the value of property not delivered and damages for property detention. Moe\u2019s filed its verified answer and counterclaim. The answer denied the material allegations of Novak\u2019s right to possession and damages. The verified counterclaim alleged that: the equipment did not fit the spaces set forth in Novak\u2019s design plan for installation of the equipment which Novak was bound to supply under the agreement; Novak failed to provide supervision of the equipment\u2019s installation as provided by contract; and Moe\u2019s incurred extra expenses in attempting to fit the equipment into the space available, all allegedly amounting to a material breach of the sales agreement. Novak filed no answer to the counterclaim.\nA hearing was held pursuant to sections 19 \u2014 105 and 19 \u2014 107 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1981, ch. 110, pars. 19 \u2014 105, 19 \u2014 107). Those sections require a hearing when the application for entry of an order for replevin is contested, as in the present case. If a plaintiff establishes a prima facie superior right to possession of the disputed property and also demonstrates to the court the probability that the underlying claim to possession will ultimately prevail on final hearing, an order for replevin is authorized by section 19 \u2014 107. In the instant case, the hearing before the circuit court developed evidence, through Novak\u2019s secretary, which revealed that the invoices of sale were subject to a security agreement requiring payment of $16,300 in lump sum, the nonpayment of which is the basis for the replevin action. The secretary testified that Moe\u2019s made a partial payment of $9,000, which was accepted by Novak, leaving a balance of $5,934. He also testified with respect to subsequent changes made in the equipment described in the contract, in addition to equipment returns to Novak, for which credits were reflected in the balance claimed to be due.\nOn cross-examination, he stated that one of the supporting invoices was a contract requiring Novak to render design services and provide a layout plan for the designated equipment sold to Moe\u2019s. Moe\u2019s sought to continue examination of this witness under section 2 \u2014 1102 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1102) (formerly section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60)). The circuit court sustained Novak\u2019s objection to any testimony being elicited from this witness relating to Moe\u2019s counterclaim. The counterclaim asserted that the supporting contract for design and layout services had been breached by Novak and that the equipment purchased did not fit the premises properly. Moe\u2019s claimed that the resulting damages exceeded the balance due Novak under the sales contract and therefore dissipated the basis for ordering the replevin.\nMoe\u2019s argues that under section 19 \u2014 107, the second part of the twofold test therein provided must be satisfied before the court may issue a replevin order, namely, that plaintiff must establish that it will probably prevail on the subsequent underlying claim of possession. Moe\u2019s insisted that the latter provision could not be fulfilled in the instant case because if Moe\u2019s owed Novak no money, the basis for replevin is absent. The circuit court appears to have agreed. At a subsequent hearing on Novak\u2019s motion for reconsideration the court observed that it doubted Novak\u2019s ability to prevail at a final hearing. For that reason, the court denied the motion to reconsider its denial of the preliminary order for replevin. This appeal followed.\nNovak claims the denial of the replevin order at the preliminary hearing is appealable as of right because it is tantamount to the denial of an injunction and therefore appealable pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)). It asserts that an interlocutory appeal provides the only meaningful method for review since no other alternatives sufficiently remedy damages incurred by deprivation of the property until the final hearing. The supreme court has amended its rule several times since section 19 \u2014 107 was enacted by the legislature, effective August 13, 1973 (then Ill. Rev. Stat. 1973, ch. 119, par. 4c). The court has not amended Rule 307, governing interlocutory appeals, to include this type of order, however.\nNovak\u2019s argument also ignores the statute under which it applied for its order of replevin, section 19 \u2014 107, particularly that part which requires an applicant for replevin to demonstrate the probability that the underlying claim to possession will affirmatively prevail on final hearing. Novak\u2019s right to possession in the present case is predicated upon sales agreements which, it claims, Moe\u2019s has breached by nonpayment of the contract price. Moe\u2019s countervailing argument is that Novak\u2019s right to possession is dissipated by Novak\u2019s own breach of the same agreements resulting in damages to Moe\u2019s exceeding the contract price, as set forth in Moe\u2019s verified counterclaim, which has not yet been answered. Its right to possession, Novak maintains, cannot be challenged by a counterclaim and should not be permitted to defeat its right to possession under the contract at the preliminary hearing. The law is to the contrary.\nIn a replevin action, a defendant may recoup or set off a sum owing to him or her from a plaintiff. (Cottrell v. Gerson (1938), 296 Ill. App. 412, 428, 16 N.E.2d 529, aff\u2019d (1939), 371 Ill. 174; Berg v. Henry (1956), 12 Ill. App. 2d 226, 139 N.E.2d 179 (abstract).) The provisions of the Code are in consonance with the foregoing cases. Under section 1 \u2014 108, article 2 of the Code regulates the procedure to be followed in article 19 of the Code within which the replevin statute is now situated, unless otherwise provided in article 19. (Ill. Rev. Stat. 1981, ch. 110, pars. 1 \u2014 108, 2 \u2014 101 et seq., 19 \u2014 101 et seq.) Counterclaims are authorized under the Code, are governed under sections 2 \u2014 608 and 2 \u2014 614 thereof (Ill. Rev. Stat. 1981, ch. 110, pars. 2 \u2014 608, 2 \u2014 614), and are thus applicable here. Moe\u2019s counterclaim is not simply a setoff, but goes to the essence of Novak\u2019s right to replevy the chattels by virtue of its own alleged breach of the same sales agreement with which Moe\u2019s is charged with violating. It is germane, relevant and material to the principal issue raised and Moe\u2019s should have been permitted to submit evidence in its support at the preliminary hearing. In accordance with the second requirement of section 19\u2014 107 of the Code, the circuit court stated, upon reconsideration, that Novak\u2019s probable right to replevin at the full hearing was in doubt and denied the issuance of the proposed order of replevin. This denial was in compliance with the rule that replevin is a statutory proceeding and its provisions must be strictly followed. (Universal Credit Co. v. Antonsen (1940), 374 Ill. 194, 200, 29 N.E.2d 96.) Under the foregoing circumstances, we find that there was no order from which an interlocutory appeal as of right may be taken.\nEven were we to assume, arguendo, that an appeal should lie from the order of the circuit court and the case decided on the merits of the court\u2019s denial of the preliminary order of replevin, Novak\u2019s appeal would fail. Taking Novak\u2019s analogy of the present circumstances to that in which an injunction has been denied, it must be observed that the extraordinary remedy of a preliminary injunction seeks to maintain the status quo by preventing the perpetration of a wrong or the doing of an act whereby the right in controversy may be materially injured. (See, e.g., Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 761, 424 N.E.2d 719.) Status quo, in this instance, is the last peaceable and uncontested status which preceded the pending controversy. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 103, 404 N.E.2d 1097.) Here, the granting of the preliminary replevin order would have disrupted the status quo because the effect of the order would have necessitated the removal of fixtures, secured to realty being used in Moe\u2019s ongoing business, pending a full hearing. In contrast, the denial of the order of replevin at this preliminary stage does not foreclose Novak\u2019s pursuit of its remedies since further hearing on this issue is contemplated by section 19 \u2014 107.\nFor the foregoing reasons, the appeal herein is dismissed and the cause remanded to the circuit court for further proceedings.\nDismissed and remanded.\nSTAMOS and PERLIN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "Thomas D. Murray, of Levinson, Murray & Jensen, P.C., of Chicago, for appellant.", "Gerald E. Frank, of Chicago, for appellee." ], "corrections": "", "head_matter": "NOVAK FOOD SERVICE EQUIPMENT, INC., Plaintiff-Appellant, v. MOE\u2019S CORNED BEEF CELLAR, INC., Defendant-Appellee.\nFirst District (2nd Division)\nNo. 83\u20141463\nOpinion filed February 14, 1984.\nThomas D. Murray, of Levinson, Murray & Jensen, P.C., of Chicago, for appellant.\nGerald E. Frank, of Chicago, for appellee." }, "file_name": "0902-01", "first_page_order": 924, "last_page_order": 928 }