{ "id": 12144104, "name": "NEWBERRY THEATRE, INC., Plaintiff and Counterdefendant, v. SBB THEATRE, INC., Defendant and Counterplaintiff and Third-Party Plaintiff-Appellee.-TRANSAMERICA INSURANCE COMPANY, Third-Party Defendant-Appellant.)", "name_abbreviation": "Newberry Theatre, Inc. v. SBB Theatre, Inc.", "decision_date": "1981-05-28", "docket_number": "No. 80-237", "first_page": "928", "last_page": "930", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 928" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "178 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 2d 212", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234821 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0212-01" ] }, { "cite": "395 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "121" } ], "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 306", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3281415 ], "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0306-01" ] }, { "cite": "396 N.E.2d 1241", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "1244" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 222", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5604415 ], "year": 1979, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0222-01" ] } ], "analysis": { "cardinality": 317, "char_count": 5180, "ocr_confidence": 0.907, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29614023829188496 }, "sha256": "c70a095d6ad089c8eff1d828304682bff626f0891b72ba6b668dc375155c1781", "simhash": "1:1e46dcc60b146f64", "word_count": 846 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ROMITI, P. J, and JIGANTI, J., concur." ], "parties": [ "NEWBERRY THEATRE, INC., Plaintiff and Counterdefendant, v. SBB THEATRE, INC., Defendant and Counterplaintiff and Third-Party Plaintiff-Appellee.\u2014TRANSAMERICA INSURANCE COMPANY, Third-Party Defendant-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE JOHNSON\ndelivered the opinion of the court:\nThis is an appeal from a summary judgment against the surety, Trans-america Insurance Company (hereafter Transamerica), on an appeal bond. SBB Theatre (hereafter SBB) filed a forcible detainer suit against Newberry Theatre (hereafter Newberry) for possession of a movie theatre in Chicago. Newberry filed a countersuit to stay eviction proceedings. SBB filed yet another complaint seeking money damages. The suits were consolidated under No. 77 CH 3726 in the chancery division of the circuit court of Cook County where SBB moved for summary judgment as to both possession and money damages of $28,860.92. The trial court granted the motion restoring possession to the landlord. At the same time, the trial court scheduled a hearing for the following day to determine the amount of damages due SBB. Newberry filed an appeal from the order restoring possession. This court set an appeal bond at $25,000. Newberry then posted a bond, on which Transamerica was surety, and was allowed to remain in possession of the theatre. The appeal was dismissed, and the trial court entered judgment in favor of SBB for $39,707.76. SBB filed this action against Transamerica on the bond and immediately filed a motion for summary judgment. The motion was granted and judgment entered in the sum of $25,000 the amount of the surety bond.\nTransamerica accurately states the general rule that summary judgment can be entered only where it is determined that no genuine issue of material fact is presented and movant is entitled to judgment as a matter of law. (Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 226, 396 N.E.2d 1241, 1244; Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 310, 395 N.E.2d 119, 121.) The propriety of granting a motion for summary judgment is determined from a study of the pleadings, answers to interrogatories, depositions, and affidavits which were filed. Ill. Rev. Stat. 1977, ch. 110, par. 57(3).\nThe basis of SBB\u2019s action was the obligation of Transamerica to perform on its surety bond. There was no question as to the execution of the appeal bond. The appeal was from case No. 77 CH 3726, which is the consolidation of the action for possession and the action for money damages. In determining the appeal bond case, the trial court had the benefit of review of the entire record.\nTransamerica argues that it contracted to stand good for the principal, SBB, contingent upon successful prosecution of the appeal from only the \u201cjudgment for possession and costs.\u201d Transamerica further argues that the appeal from the judgment on the issue of possession should be considered separately from the trial court\u2019s decision on damages.\nWe disagree with defendant Transamerica and affirm the judgment of the circuit court.\nThe amount of the bond required by this court could not have been intended to limit the coverage of the bond solely to \u201ccosts\u201d connected with the possession issue. Such costs amounted to only $40.\nThe wording of the bond reads:\n\u201cWe jointly and severally agree to pay to the above judgment creditor any part of the judgment which is not reversed, and interest, damages, and costs.\u201d (Emphasis added.)\nThe elements of damages to SBB, the landlord, had been considered by this court before the order for the bond was entered and before Transamerica elected to become surety on the bond. In our view, it would have been unlikely for Transamerica not to have considered the potential damages to SBB in deciding to accept such an obligation.\nFurther, we would distinguish this court\u2019s opinion in Finley v. Crossley (1961), 33 Ill. App. 2d 212, 178 N.E.2d 684, from the case at bar. Transamerica offers Finley in support of its denial of liability. However, in Finley the facts involved a partition suit, not a forcible detainer action. The facts connected with the consequences of retained possession are to be distinguished from those in a foreclosure situation. We do not diverge from our rule in Finley that the undertaking or contract of a surety is to be strictly construed and that the surety has a right to stand upon the strict terms of his obligation. (Finley, at 216.) Rather, we reiterate the rule and strictly construe the surety contract before us to include interest, damages, and costs incurred on the judgment in consolidated case No. 77 CH 3726 in the amount of $25,000.\nOn review of the record, including pleadings, answers to interrogatories, depositions, and affidavits, we find no genuine issue of material fact, and SBB is entitled to judgment as a matter of law.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nROMITI, P. J, and JIGANTI, J., concur.", "type": "majority", "author": "Mr. JUSTICE JOHNSON" } ], "attorneys": [ "Crooks & Gilligan, of Chicago (John W. Gilligan, of counsel), for appellant.", "Charles Kraut and Alfred B. Teton, both of Chicago, for appellee." ], "corrections": "", "head_matter": "NEWBERRY THEATRE, INC., Plaintiff and Counterdefendant, v. SBB THEATRE, INC., Defendant and Counterplaintiff and Third-Party Plaintiff-Appellee.\u2014TRANSAMERICA INSURANCE COMPANY, Third-Party Defendant-Appellant.)\nFirst District (4th Division)\nNo. 80-237\nOpinion filed May 28, 1981.\nRehearing denied June 29, 1981.\nCrooks & Gilligan, of Chicago (John W. Gilligan, of counsel), for appellant.\nCharles Kraut and Alfred B. Teton, both of Chicago, for appellee." }, "file_name": "0928-01", "first_page_order": 950, "last_page_order": 952 }