Auker v. Tilbury

2020 IL App (2d) 190899-U

• Court: Appellate Court of Illinois
• Decided: June 29, 2020
• Docket: 2-19-0899
• Status: Unpublished

Opinion

2020 IL App (2d) 190899-U No. 2-19-0899 Order filed June 29, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

BRAD AUKER, d/b/a LMHP, Inc., ) Appeal from the Circuit Court ) of Ogle County. Plaintiff-Appellee, ) ) v. ) ) No. 19-SC-327 WILLIAM TILBURY and CONNIE ) TILBURY, ) Honorable ) John C. Redington, Defendants-Appellants. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRIDGES delivered the judgment of the court. Justices McLaren and Schostok concurred in the judgment.

ORDER

¶1 Held: “The trial court’s findings of breach and damages in plaintiff’s suit against trailer park tenants for unpaid rent and late fees were not against the manifest weight of the evidence where plaintiff presented clear testimony as to the delinquent amounts. Also, plaintiff did not waive its right to collect late fees by permitting violations of park rules by other tenants. Defendants relied on a statute that required fairness in the application of park rules and regulations but did not speak to lease provisions.”

¶2 Plaintiff, Brad Auker, d/b/a LMHP, Inc., sued defendants, William and Connie Tilbury, for

past-due rent, late fees, and attorney fees. The trial court found for plaintiff, and defendants appeal.

They contend that (1) the judgment was against the manifest weight of the evidence, and

(2) plaintiff waived its right to enforce the lease’s late-fee provisions. We affirm. 2020 IL App (2d) 190899-U

¶3 I. BACKGROUND

¶4 At the September 2019 trial, Ann Michelle Auker testified that she and her husband Brad

were the principals of the corporate plaintiff, which owned a trailer park. Defendants leased a lot

there. The lease required defendants to pay $275 per month in rent. It also provided for a $5-per-

day late fee if the rent for a given month was more than 5 days late and for defendants to pay

plaintiff’s attorney fees if plaintiff had to go to court to enforce the lease.

¶5 Plaintiff filed a previous complaint against defendants in October or November 2018. A

judgment on that complaint was entered in November 2018 and had not been fully satisfied at the

time of trial.

¶6 Ann Auker testified that she kept records of amounts paid. Asked what late fees were

unpaid, she said that defendants’ rent was late for the following periods in 2019: 43 days late in

February, 8 days late in March, 10 days late in April, 38 days late in June, 51 days late in July, and

34 days late in August. As of the trial date, they had not paid rent or late fees for September 2019.

Ann said that she had incurred $2591 in legal fees and $428.36 in costs in attempting to collect

from defendants, for a total, including rent and late fees, of $4294.36.

¶7 William Tilbury testified that he believed plaintiff had waived its right to strictly enforce

the terms of the lease because it permitted violations by other tenants. Other tenants maintained

inoperable vehicles and ran businesses from their homes, allegedly in violation of park rules, but

plaintiff did nothing to remedy those violations.

¶8 Connie Tilbury testified that she had copies of receipts for fees that had been paid. She

submitted a document consisting of photocopies of receipts for postal money orders. Except for

one in May 2019 payable to “L.M.H.P.,” no payee is listed. The receipts bear notations such as

“Late fees February,” “Feb. & March Lot Rent,” and “APRIL RENT.”

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¶9 The court awarded plaintiff $1275 in rent and late fees subject to reduction if the September

rent arrived in the mail, plus $900 in attorney fees and $240.76 in costs for a total of $2415.76.

Defendants timely appeal.

¶ 10 II. ANALYSIS

¶ 11 Defendants, appearing pro se, first contend that the court’s judgment was against the

manifest weight of the evidence. They contend that plaintiff’s exhibits were confusing and

included charges that were awarded in the prior judgment. They further argue that their own

exhibit conclusively shows that they paid the amounts at issue here.

¶ 12 Plaintiff has not filed a brief. However, the record is simple and the claimed errors are

such that we can easily decide them without the aid of an appellee’s brief. Thus, we decide the

merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,

133 (1976).

¶ 13 Following a bench trial, the standard of review is whether the trial court’s judgment is

against the manifest weight of the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d

151, 154 (2001). A judgment is against the manifest weight of the evidence when an opposite

conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on the

evidence. Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 177 (2004). The elements of a

cause of action for breach of contract include the existence of a valid and enforceable contract, the

plaintiff’s performance, a breach of the contract by the defendant, and resultant damages to the

plaintiff. Razor Capital v. Antaal, 2012 IL App (2d) 110904, ¶ 30.

¶ 14 The contract, the validity of which defendants do not dispute, provides that, after a five-

day grace period, defendants must pay a $5-per-day late fee. Ann testified to the specific number

of days that the various payments were late. Reference to plaintiff’s exhibits was not necessary to

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support this testimony. Also, the periods Ann identified were subsequent to the November 2018

judgment in the prior case. Thus, there was no overlap from the prior judgment in this case.

¶ 15 Defendants next contend that plaintiff waived the right to collect late fees because it

routinely permitted violations of park rules by other tenants while enforcing the lease’s late-fee

provisions against defendants. Defendants cite section 14(d) of the Mobile Home Landlord and

Tenant Rights Act (765 ILCS 745/14(d) (West 2018)), which provides:

“Rules and regulations promulgated and adopted by the park owner are enforceable against

a tenant only if:

***

(d) They apply to all tenants in a fair manner.” 765 ILCS 745/14(d) (West 2018).

¶ 16 We note that the cited provision applies to rules adopted by the park owner, rather than to

lease provisions. Defendants offered no evidence of instances in which plaintiff waived late fees

or other lease provisions for other tenants while enforcing them against defendants.

¶ 17 III. CONCLUSION

¶ 18 For the reasons stated, we affirm the judgment of the circuit court of Ogle County.

¶ 19 Affirmed.

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