Fredman v. Clore

301 N.E.2d 7, 13 Ill. App. 3d 903, 1973 Ill. App. LEXIS 2131

Opinions

Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Harry Fredman, the plaintiff, is the owner of an apartment building in the City of Peoria and on November 15, 1971, he entered into an oral agreement with Kent and Kathy Clore as to the rental of an apartment within the building on a month to month basis for the consideration of $112.00 per month.

During the months of February, May and August of 1972 inspections were conducted by the Peoria Department of Environmental Development of the apartment rented by the defendants and of the apartment building generally. Certain violations of the Peoria Housing Code were found, i.e., leaking roof, falling plaster, peeling paint, improper wiring, inadequate heat, and plaintiff was notified as to these violations and directed to correct them.

The defendants allege in certain pleadings that the defendant was aware of some of the defects at the time they rented their apartment and agreed to have them remedied. Also the defendants allege that the inspections made by the Department of Environmental Development were made pursuant to their complaint.

On June 13, 1972, the defendants commenced making payment of their rental money to the Director of the Department of Environmental Development pursuant to section 16 — 113.5 of the Peoria Housing Code, which provides:

"Sec. 16 — 113.5 After inspection and due notice of violation by the Director, any tenant directly affected by a violation of this Code by the owner or lessor, and so long as the violation exists, may place all rents due to the owner or lessor in escrow with' the consent of the Director. The Director shall hold the rents in a separate account, as Escrow Agent for the tenant, until such time as the violation is corrected and if the owner is prosecuted, convicted and fined, until such fine and costs are satisfied in full. Thereupon, the Director shall release the escrowed funds or so much as may remain less any fine and costs to the owner or lessor.”

On July 13, 1972, the defendants received from the plaintiff notice to terminate the lease agreement of their apartment within thirty days and the notice was given pursuant to Ill. Rev. Stat., ch. 80, sec. 6, the applicable portion of which states:

“In all cases of tenancy for any term less than one year, other than tenancy from week to week, where the tenant holds over without special agreement, the landlord may terminate the tenancy by thirty days’ notice, in writing, and may maintain an action for forcible entry and detainer or ejectment.”

On August 15, 1972, the defendants filed in the circuit court of Peoria County a verified complaint for a declaratory judgment and injunctive relief against the plaintiff, the City of Peoria, and the Director of the Department of Environmental Development of the City of Peoria which sought (1) compensating damages in the amount of the sum of rent paid to the plaintiff, (2) a mandatory injunction against the plaintiff directing him to repair the premises in a manner to meet the minimum requirements of the housing code, (3) a permanent injunction enjoining plaintiff from seeking eviction proceedings against the defendants, (4) a mandatory injunction against the Director of the Department of Environmental Development directing him to perform a thorough inspection of the premises and further directing him to report all violations of the Housing Code to the court, (5) a mandatory injunction requiring the Director of Environmental Development to continue accepting rental payments and to place them in escrow, and (6) reasonable attorney fees, court costs and other relief as the court might deem proper.

On August 17, 1972, the plaintiff filed an action which results in this appeal, namely a suit in forcible entry and detainer against the defendants. This suit was predicated upon the statutory provisions found in Ill. Rev. Stat. 1971, ch. 80, sec. 6. The defendants filed a motion to dismiss this action or in the alternative to have it consolidated with their previously filed suit for declaratory judgment and injunctive relief. The plaintiff filed an answer to this motion and also a motion for summary judgment which was supported by affidavit. The defendants filed a reply to the plaintiffs’ answer, and both parties filed additional affidavits in support of their various pleadings. Lastly, as far as the pleadings are concerned, the defendants filed an answer and set forth affirmative defenses to the plaintiff’s action in forcible entry and detainer.

On November 6, 1972, the circuit court of Peoria County denied the defendants’ motion to dismiss or consolidate and granted the plaintiff’s motion for summary judgment and possession of the premises in question. This appeal stems from this order of the trial court.

The defendants raise several issues in this appeal, the first of which is that the trial court erred in denying their motion to dismiss the forcible entry and detainer action, or in the alternative consolidating it with the previous action filed by them.

With this contention of the defendants we do not agree. Their motion to dismiss or consolidate was filed pursuant to Ill. Rev. Stat., ch. 110, sec. 48(c), which provides:

“48. Involuntary dismissal based upon certain defects or defenses. (1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleadings attacked the motion shall be supported by affidavit:

(a) * * *

(b) 6 * *

(c) That there is another action pending between the same parties for the same cause.”

The defendants’ motion to dismiss or consolidate on its face does not satisfy the statutory requirements in that it fails to identify any other pending action between the same parties for the same cause. Nor was this failure corrected by a supporting affidavit, which is understandable since it would have been impossible to do so. Section 48(c) of chapter 110, Ill. Rev. Stat., in order to become operative requires an identity of parties and causes between two actions before a motion for dismissal or consolidation can be found to be well taken. In the instant case no such identity is present since the parties are the plaintiff Harry Fred-man and the defendants Kent and Kathy Clore, while in the suit filed by the defendants we find the Clores as plaintiffs pitted against the defendants Harry Fredman, The City of Peoria, and the Director of the Department of Environmental Development for the City of Peoria. As to the identity of “causes” set forth in the two suits wé find no resemblance whatsoever. True that they both stemmed from the same rental agreement, but there the identity ceases. One suit, namely the one now before us, is an action in forcible entry and detainer which presents the issue as to right of possession of rented premises. The other is a class action in equity seeking compensatory damages, injunctive relief and attorney fees. The purpose of section 48 (c) of the Civil Practice Act is to foster orderly procedure by preventing a multiplicity of actions. (People ex rel. Lehman v. Lehman, 34 Ill.2d 286, 215 N.E.2d 806.) To have granted defendants’ motion to dismiss or consolidate would have resulted in a situation that would have presented such divergent theories and different prayers for relief that a most difficult if not impossible trial would have been presented to the trial court. We believe that the trial court correctly denied the defendants’ motion.

The defendants further contend that the public policy of the State of Illinois and the duty of every person is to provide and maintain a healthful environment and that every person has a right to such environment and in support of this contention cites the Illinois Constitution, 1970, article XI, sections 1 and 2, as well as the Municipal Housing Code of the City of Peoria and Ill. Rev. Stat., ch. 80, sec. 71. We quarrel not with this contention of the defendants. Our constitution does in fact set forth such a policy. We also recognize that the provisions of the Housing Code of the City of Peoria and the Landlord and Tenant Act cited by the defendants both provide for the protection of tenants from a retaliatory eviction should they complain to certain authorities as to violations of a building code by an owner. In examining the record we fail to find any evidence that the plaintiff was aware of the defendants’ complaints as to his violation of the Building Code in the City of Peoria, llie defendants in their pleadings aver that the defendant was aware of their complaints but a mere allegation is not sufficient to create a material issue of fact. Mere allegations or denials in pleadings controverted by affidavit are insufficient to create a genuine issue as to a material fact. (St. Louis Fire and Marine Insurance Co. v. Garnier, 24 Ill.App.2d 408, 164 N.E.2d 625.) The defendants’ argument that the plaintiff’s suit for possession is an act of retaliation presupposes that the plaintiff had knowledge of complaints as to building code violations. The only reference as to such awareness on the part of the plaintiff is found in the pleading of the defendants. Such allegations can only be considered as self-serving and are not sufficient to invoke the provisions of the retaliation provision contained in the Housing Code of the City of Peoria or in our state statutes.

The defendants further urge that if the rights they claim as tenants, to-wit, a healthful environment and freedom from retaliatory actions are not deemed to be a “special agreement” encompassed by Ill. Rev. Stat., ch. 80, sec. 6, then such statute is unconstitutional. We have already determined that there is no basis for the defendants’ charge of “retaliatory action” on the part of the plaintiff so it is unnecessary for us to consider this attack on the constitutionality of the statute.

In analyzing the argument of the defendants it becomes clear that they want this court to hold that in a forcible entry and detainer suit when no rent is claimed by the landlord the tenants may nevertheless raise equitable defenses in an effort to defeat the claim for possession. The defendants desire that this court extend the holding in Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, so as to permit equitable defenses in an action where no rent but only possession is claimed. In Spring our supreme court held that where the landlord claims rent due, the tenants claim for damages, resulting from a breach of implied warranty of habitability, can be raised to determine the issue of whether the tenant owes the landlord any rent. It should be noted that our supreme court specifically limited the application of the law as set forth in the case of Spring by stating:

“* * e [W]e make clear precisely what this case does not involve.’ It does not involve nor purport to adjudicate issues which might arise in an action based on notice given in accordance with any section of the Landlord and Tenant Act (Ill. Rev. Stat. 1969, ch. 80) except section 8, which is here specifically involved.”

We are concerned with an action based on notice given in accordance with section 6, not section 8, of the Landlord and Tenant Act and in view of the precise limitation set forth in Spring we deem the holding in that case inapplicable to the instant case and further consider the “limitation” as an admonition against extending the law as set forth in Spring to actions resulting from other sections of the Act.

For the reasons set forth we hereby affirm the trial court’s order denying the defendants’ motion to dismiss or consolidate and its further order granting plaintiff’s motion for summary judgment.

Affirmed.

DIXON, J., concurs.