NOTICE 2014 IL App (5th) 130543 Decision filed 06/25/14. The text of this decision may be NO. 5-13-0543 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
HARTMANN REALTORS, ) Appeal from the ) Circuit Court of Plaintiff and Counterdefendant-Appellee, ) St. Clair County. ) v. ) No. 13-SC-1714 ) DONNA BIFFAR, ) Honorable ) Brian Babka, Defendant and Counterplaintiff-Appellant. ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Chapman and Spomer concurred in the judgment and opinion.
OPINION
¶1 The defendant and counterplaintiff, Donna Biffar, appeals from the order of the
circuit court of St. Clair County dismissing her counterclaim and striking her affirmative
defense filed against the plaintiff and counterdefendant, Hartmann Realtors. For the
reasons which follow, we affirm the decision of the circuit court and remand for further
proceedings.
¶2 This case commenced on June 5, 2013, when Hartmann Realtors filed a small
claims complaint against Biffar seeking damages for cleaning and repairing a residential
apartment after the lease was voluntarily terminated and the premises were vacated by the 1 tenant, Biffar's daughter. Biffar was the cosigner on the lease. On September 9, 2013,
Biffar filed an answer to the small claims complaint, denying the complaint's allegations
and asserting an affirmative defense. The affirmative defense alleged that Hartmann
Realtors had "painted or otherwise altered the premises" without first giving advance
notice to Biffar or her daughter, which would have given them an opportunity to
document the alleged damages, and had prevented the "fact finder from conducting an
inspection" of the premises. The affirmative defense also alleged that Hartmann
Realtors's alteration of the premises prevented Biffar from being able to fully defend the
allegations contained in the complaint.
¶3 Biffar also filed a counterclaim against Hartmann Realtors, which was based on
negligent spoliation of evidence. The counterclaim alleged that Hartmann Realtors had a
duty to preserve the condition of the rental apartment when it knew that the condition of
the apartment at the time that Biffar's daughter had vacated the premises was relevant
evidence for future litigation. The counterclaim further alleged that Hartmann Realtors
breached its duty to preserve the premises when it cleaned and repaired the alleged
damaged areas, which included replacing carpet and painting walls, without first giving
Biffar or her daughter an opportunity to conduct their own inspection. The counterclaim
also alleged that Hartmann Realtors's breach of duty proximately caused damage to
Biffar in that she was unable to put on a complete defense "of the lack of damages as
alleged" in the small claims complaint. The counterclaim requested judgment in Biffar's
favor "in an amount of any judgment entered against her in this case, to offset her
inability to put on a complete defense." 2 ¶4 On September 23, 2013, Hartmann Realtors filed a motion to dismiss Biffar's
counterclaim for failure to state a cause of action under section 2-615 of the Illinois Code
of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) and to strike affirmative
defense. With regard to the counterclaim, the motion alleged that Biffar had failed to set
forth any facts in her counterclaim supporting the existence of an agreement, contract,
statute, or special circumstance giving rise to a duty by Hartmann Realtors to preserve the
status quo of the rental premises in anticipation of a civil suit being brought by Biffar.
The motion argued that there were also no facts alleged in the counterclaim indicating
that Hartmann Realtors had voluntarily accepted a duty to preserve the condition of the
rental apartment. The motion argued that the apartment was cleaned and necessary
repairs were completed to remove the premises of cat feces and fleas that were found
after the tenant had vacated the apartment and that such cleaning and repairs were
necessary to render the premises habitable and marketable.
¶5 The motion to dismiss counterclaim further stated that Biffar had failed to set forth
any facts alleging damages. Specifically, the motion argued that damages for negligent
spoliation of evidence must relate to some underlying cause of action brought by Biffar
that was compromised by the loss or destruction of evidence which Hartmann Realtors
had a duty to preserve. The motion argued that Biffar's measure of damages had no
independent basis but was instead linked to "whatever Hartmann [Realtors was] able to
prove in [its] own case." Therefore, the motion argued that because Biffar had failed to
allege a nexus to an otherwise valid, underlying cause of action, she had failed to
3 adequately allege damages in support of her claim for negligent spoliation of evidence.
Accordingly, the motion requested that Biffar's counterclaim be dismissed with prejudice.
¶6 With regard to the affirmative defense, the motion alleged that Biffar had failed to
sufficiently plead the affirmative defense as she did not argue that although the cleaning,
painting, and repairs were necessary as alleged in the small claims complaint, Hartmann
Realtors's claim is nevertheless defeated by some affirmative event. Instead, Biffar
argued that Hartmann Realtors's failure to give advance notice and opportunity to inspect
the vacated rental premises prior to cleaning, painting, and replacement of the "feces-
ridden carpet and broken mini-blinds" deprived Biffar of the opportunity to fully present
her defense. The motion further argued that Biffar "ignore[d] the opportunities that were
available" to her and her daughter before her daughter vacated the premises. The motion
notes that Biffar had the opportunity to thoroughly inspect the premises and had the
ability to take photographs of the condition of the apartment before her daughter vacated
the apartment. Further, the motion argues that Hartmann Realtors had no duty to
preserve the condition of the premises or to give advance notice prior to rendering the
apartment habitable.
¶7 On September 24, 2013, Biffar filed a response to the motion to dismiss
counterclaim and to strike affirmative defense, arguing that Hartmann Realtors had
voluntarily assumed a duty to preserve the condition of the apartment when it took
pictures of the apartment before completing the cleaning and repair work. Additionally,
Biffar argued that the affirmative defense was based on a litigant's duty to preserve the
integrity of relevant, material evidence, such as the condition of the rental apartment. 4 Biffar further argues that she had given color to Hartmann Realtors's claim, but argued
that her defense was prejudiced because the fact finder did not have an opportunity to
conduct a site inspection of the vacated apartment.
¶8 On October 29, 2013, a hearing was held on Hartmann Realtors's motion to
dismiss the counterclaim and motion to strike the affirmative defense. During the
hearing, Hartmann Realtors's counsel argued that Biffar's counterclaim had failed to state
a cause of action because Biffar failed to allege any facts setting forth any duty on the
part of Hartmann Realtors. Counsel acknowledged that Hartmann Realtors had taken
pictures of the apartment before removing carpeting that was infested with cat feces,
painting the walls, replacing broken blinds, and doing "things" that any landlord would
do to render an apartment habitable and marketable. However, counsel argued that
Hartmann Realtors's actions did not constitute a voluntary undertaking of a duty to
preserve the condition of the apartment.
¶9 Counsel also argued that Biffar had every opportunity to inspect the premises
before they were vacated and that there was no allegation that she was frustrated in any
attempt to inspect the apartment at that time nor was there any allegation that she sought
an opportunity to inspect the apartment after it was vacated. Further, counsel argued that
Biffar's counterclaim was not a "stand-alone claim" and was "really a defense." Counsel
argued that the alleged negligent spoliation of evidence claim did not relate to a valid,
independent cause of action that would be brought by Biffar and therefore Biffar suffered
no damages. With regard to the affirmative defense, counsel argued that Biffar failed to
allege that the "repairs were otherwise valid, but for the opportunity to inspect." 5 ¶ 10 In response, counsel for Biffar argued that Hartmann Realtors took pictures of the
premises before completing the repair work partly in anticipation of litigation and that
this affirmative conduct resulted in Hartmann Realtors voluntarily assuming a duty to
preserve the condition of the premises. Counsel argued that Biffar should have been
given an opportunity to inspect the premises and that Biffar was expecting the refund of
her security deposit and instead received a bill for the amount of the cleaning and repair
charges.
¶ 11 After hearing counsel's arguments, the trial court stated as follows:
"The agreement or contract in question doesn't provide any duty for the
landlord that I see in that regard. It's whether or not there's a special circumstance,
and further, the law says a defendant may voluntarily assume a duty by affirmative
conduct. An action for negligent spoliation can be stated under existing
negligence law, requiring the plaintiff to prove the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, an injury proximately caused by
the breach and damages. In an action for negligent spoliation, a plaintiff must
allege sufficient facts to support a claim that the loss or destruction of the evidence
caused the plaintiff to be unable to prove an underlying lawsuit.
We don't have that situation. We don't have an underlying lawsuit. ***
I don't think it's unreasonable for someone in a landlord situation to take
pictures before they try to remedy it. I think they would be faulted if someone
said, 'Well, you could have at least taken some pictures before you decided to do
the repairs in question.' 6 So I understand your defense, your affirmative defense and your
counterclaim, *** and it's clever. But without a case, without precedence [sic]
supporting your position, I'm going to grant the relief [Hartmann Realtors] is
requesting."
¶ 12 Accordingly, the trial court granted Hartmann Realtors's motion to dismiss
counterclaim for failure to state a cause of action under section 2-615 of the Code (735
ILCS 5/2-615 (West 2012)) and to strike affirmative defense. Immediately after the
announcement of the trial court's judgment, Biffar's counsel indicated that he was ready
for trial, and the trial commenced solely on Hartmann Realtors's small claims complaint.
Biffar's counsel did not move for leave to file an amended counterclaim or affirmative
defense, nor did counsel seek to continue the bench trial to allow for time to file amended
pleadings or seek reconsideration of the court's ruling. After hearing all of the evidence
presented at trial, the court entered judgment in favor of Hartmann Realtors and against
Biffar, awarding damages in the amount of $700, attorney fees in the amount of $350,
and costs of the suit. Biffar appeals.
¶ 13 We initially note that Biffar did not challenge the trial court's judgment in favor of
Hartmann Realtors on the small claims complaint. Instead, the two issues raised by
Biffar in her brief concern the dismissal of the counterclaim and the striking of the
affirmative defense. Therefore, our discussion will be limited to the issues raised with
regard to the counterclaim and the affirmative defense.
¶ 14 A motion to dismiss filed pursuant to section 2-615 of the Code (735 ILCS 5/2-
615 (West 2012)) attacks the legal sufficiency of a complaint; its purpose is to raise 7 defects apparent on the face of the pleadings. Stinnes Corp. v. Kerr-McGee Coal Corp.,
309 Ill. App. 3d 707, 712 (1999). "The standard of review for a section 2-615 motion to
dismiss is whether the complaint sufficiently states a cause of action, and the merits of
the case are not considered." Jackson v. Michael Reese Hospital & Medical Center, 294
Ill. App. 3d 1, 9 (1997). The question presented by a section 2-615 motion is whether the
allegations of the complaint, taking all well-pleaded facts as true and considering them in
a light most favorable to the plaintiff, are sufficient to establish a cause of action upon
which relief may be granted. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348
(2003); Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009). When
deciding a section 2-615 motion to dismiss, the court may not consider affidavits, the
products of discovery, documentary evidence not incorporated into the pleadings as
exhibits, testimonial evidence, or other evidentiary materials. Kilburg v. Mohiuddin,
2013 IL App (1st) 113408, ¶ 20. The complaint must be construed liberally and should
only be dismissed when it appears that the plaintiff cannot recover under any set of facts.
Id. However, the plaintiff must allege sufficient facts to bring a claim within a legally
recognized cause of action. Tedrick, 235 Ill. 2d at 161. Our standard of review is de
novo. Chandler, 207 Ill. 2d at 349.
¶ 15 Illinois does not recognize an independent cause of action for spoliation of
evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 192-93 (1995). Instead, an
action for negligent spoliation of evidence is recognized under general negligence law.
Id. at 193. Accordingly, a plaintiff raising a cause of action for negligent spoliation of
evidence must prove the following: (1) the defendant owed a duty to the plaintiff to 8 preserve the evidence, (2) the defendant breached that duty by losing or destroying the
evidence, (3) the loss or destruction of the evidence was the proximate cause of the
plaintiff's inability to prove an underlying lawsuit, and (4) as a result, the plaintiff
suffered actual damages. Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 26.
¶ 16 Hartmann Realtors argues that Biffar's counterclaim is deficient with regard to the
issues of duty and proximate cause. Like the trial court, we find that Biffar's
counterclaim is deficient with regard to the issue of proximate cause. Therefore, we need
not make any determination as to whether the counterclaim was deficient with regard to
duty. "A plaintiff must allege that an injury proximately resulted from a breach of a duty
when pleading causation." Jackson, 294 Ill. App. 3d at 13. In a negligent spoliation of
evidence cause of action, a plaintiff must allege sufficient facts to support a claim that the
loss or destruction of the evidence caused the plaintiff to be unable to prove an
underlying lawsuit. Boyd, 166 Ill. 2d at 196. The plaintiff must demonstrate that, but for
the defendant's loss or destruction of the evidence, the plaintiff had a reasonable
probability of succeeding in an underlying lawsuit; the plaintiff need not show that he
would have prevailed. Id. at 196-97, n.2.
¶ 17 Here, Biffar argues that Hartmann Realtors's cleaning and completion of the
repairs to the apartment without giving her advance notice interfered with her underlying
lawsuit, i.e., a potential cause of action based on breach of contract for Hartmann
Realtors's failure to refund her security deposit for the apartment. In response, Hartmann
Realtors argues that Biffar failed to allege well-pleaded facts in causation establishing
that it had prevented her from proving an underlying lawsuit by cleaning and repairing 9 the apartment. Specifically, Hartmann Realtors argues that Biffar's counterclaim is
merely a "defense by another name" and that Biffar had failed to allege facts explaining a
nexus between Hartmann Realtors's actions and her inability to prove an otherwise valid,
underlying cause of action. Hartmann Realtors also argues that Biffar had failed to allege
the existence of her potential cause of action for breach of contract for its failure to return
the security deposit and, therefore, it cannot be considered in this court's de novo review.
¶ 18 The trial court noted that a plaintiff must allege sufficient facts to support a claim
that the loss or destruction of evidence caused the plaintiff to be unable to prove an
underlying lawsuit and found that "[w]e don't have an underlying lawsuit." We agree
with the trial court that there is no factual allegation in Biffar's counterclaim that would
support such a showing. Biffar's counterclaim alleged the following regarding causation:
"[Hartmann Realtors] breached its duty to preserve the [apartment] when it destroyed
relevant evidence, including carpet and the condition of the walls by painting, without
first letting [Biffar] or [the tenant] conduct their own inspection prior to such repairs,
proximately causing damage to [Biffar] in her ability to put on a full defense of the lack
of damages as alleged in the Complaint in the case." The counterclaim did not allege that
Biffar had a potential cause of action based on breach of contract for Hartmann Realtors's
failure to return her security deposit, and Biffar's counsel failed to seek leave to amend
the counterclaim to bring a breach of contract action for Hartmann Realtors's failure to
return the security deposit. Instead, the counterclaim alleged that Biffar's defense was
hindered by Hartmann Realtors cleaning and repairing the apartment without giving her
advance notice. The allegations contained in the counterclaim did not establish a 10 causative link between the cleaning and the completion of the repairs to the apartment
and Biffar's inability to prove an underlying lawsuit. Further, the counterclaim did not
allege that Biffar had a reasonable probability of succeeding in an underlying suit. Thus,
the allegations contained in Biffar's counterclaim did not state sufficient facts to establish
causation for negligent spoliation of evidence.
¶ 19 Furthermore, we note that Biffar cites Jackson v. Michael Reese Hospital &
Medical Center, 294 Ill. App. 3d 1, 18-19 (1997), for the proposition that a spoliation
case may be remanded for a party to replead additional facts to state a cause of action for
negligent spoliation of evidence that would survive a section 2-615 challenge as long as
the record does not indicate that no set of facts can be proven that would entitle the
plaintiff to recovery. However, unlike Jackson, we find that the record indicates that
Biffar cannot establish that she could recover under the theory of negligent spoliation of
evidence because she cannot show that but for Hartmann Realtors's cleaning and
repairing of the residential rental apartment, she had a reasonable probability of
succeeding in an underlying lawsuit since no underlying lawsuit had been filed.
¶ 20 Biffar next argues that her affirmative defense was improperly stricken. "An
'affirmative defense' is one in which the defendant gives color to his opponent's claim but
asserts new matter which defeats an apparent right in the plaintiff." Raprager v. Allstate
Insurance Co., 183 Ill. App. 3d 847, 854 (1989). A motion to strike an affirmative
defense pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012))
challenges the legal sufficiency of the affirmative defense. Raprager, 183 Ill. App. 3d at
854. In order to set forth an affirmative defense, sufficient facts must be alleged to 11 satisfy each element of the affirmative defense. Richco Plastic Co. v. IMS Co., 288 Ill.
App. 3d 782, 784 (1997). When determining the sufficiency of any claim or defense, the
court will disregard any conclusions of fact or law that are not supported by allegations of
specific fact. Id. at 784-85. A trial court striking an affirmative defense as inadequate as
a matter of law is subject to de novo review. Bogner v. Villiger, 343 Ill. App. 3d 264, 268
(2003).
¶ 21 To the extent that Biffar's argument concerning the striking of her affirmative
defense was based on negligent spoliation of evidence, we conclude that she failed to
allege sufficient facts to establish negligent spoliation of evidence in her affirmative
defense. Biffar alleged the following in her affirmative defense: "Plaintiff Hartmann
Realtors painted or otherwise altered the premises when it altered the premises alleged in
the Complaint, without first giving advance notice to *** Biffar or [the tenant] prior to
such alleged repairs to document any alleged damages, preventing the fact finder from
conducting an inspection of [the apartment] or allowing *** Biffar to fully put on a
defense of this case." Like the counterclaim, the affirmative defense contained no
allegation that but for Hartmann Realtors's loss or destruction of the evidence, Biffar had
a reasonable probability of succeeding in an underlying lawsuit. See Boyd, 166 Ill. 2d at
196-97, n.2. We also note Biffar's counsel did not seek leave to amend the affirmative
defense in the trial court to include this allegation.
¶ 22 Biffar argues that pursuant to Illinois Supreme Court Rule 286(a) (eff. Aug. 1,
1992) she was not required to file an answer in the small claims proceedings unless
ordered to do so by the trial court and that she was only required to appear and any 12 "defense may be proved as if it were specifically pleaded." However, we note that Biffar
also failed to allege and establish at the hearing on the motion to strike affirmative
defense that she had a reasonable probability of succeeding in an underlying lawsuit had
Hartmann Realtors's allowed her an opportunity to inspect the apartment before cleaning
or completing the repairs. Thus, Biffar failed to allege sufficient facts to establish
negligent spoliation of evidence in her affirmative defense.
¶ 23 To the extent that Biffar's argument with regard to the affirmative defense was
based on a discovery violation, we conclude that the affirmative defense was properly
stricken. Biffar cites Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 121-22
(1998), a products-liability case, for the proposition that a potential litigant has a duty to
take reasonable measures to preserve the integrity of relevant, material evidence.
¶ 24 Initially, we note that as set forth in Illinois Supreme Court Rule 287(a) (eff. Aug.
1, 1992), there is no discovery in small claims cases unless leave of court is requested and
granted. From our review of the record, it appears that there was no discovery request
made by Biffar in these small claims proceedings.
¶ 25 Additionally, we note that Biffar did not sufficiently plead the affirmative defense.
As stated above, "[a]n 'affirmative defense' is one in which the defendant gives color to
his opponent's claim but asserts new matter which defeats an apparent right in the
plaintiff." Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 854 (1989). Biffar's
affirmative defense does not allege nor did Biffar argue at the hearing on the motion to
strike the affirmative defense that although the cleaning, painting, and repairs were
necessary as alleged in the complaint, there was new matter which defeated Hartmann 13 Realtors's damage claim for the cleaning and repairing of the apartment. Therefore, we
conclude that Biffar's affirmative defense was properly stricken by the trial court.
¶ 26 Furthermore, Biffar complains that she did not have an opportunity to inspect the
apartment prior to Hartmann Realtors cleaning and repairing the apartment. However,
the record indicates that Biffar visited her daughter at the apartment at least once a week
and assisted her daughter when she moved out, a process that took approximately two
days. Therefore, the record belies Biffar's assertion that she did not have an opportunity
to inspect or take photographs of the premises before Hartmann Realtors took possession
of the apartment and began making it ready for the next tenant.
¶ 27 Finally, we note that Hartmann Realtors filed a motion for attorney fees in defense
of appeal, which this court ordered taken with the case on November 25, 2013. In the
motion, Hartmann Realtors requested attorney fees for these appellate proceedings if this
court affirmed the trial court's judgment. Hartmann Realtors based this request for
attorney fees on the rental agreement signed by Biffar's daughter, the tenant of the
apartment, and Biffar as the cosigner, which indicated that if legal proceedings were
pursued, the prevailing party shall recover reasonable attorney fees and court costs. The
trial court awarded Hartmann Realtors $350 for attorney fees in the trial court
proceedings, and now Hartmann Realtors requests that this court remand the case to the
trial court for a determination of the reasonable attorney fees and court costs in defense of
this appeal. In response, Biffar objects to an award of attorney fees and court costs in an
amount over the $350 already awarded. We hereby grant Hartmann Realtors's motion for
attorney fees in defense of this appeal as set forth in the rental agreement, and we 14 therefore remand the matter to the trial court to determine the appropriate amount for
attorney fees and court costs for these appellate court proceedings.
¶ 28 For the foregoing reasons the judgment of the circuit court of St. Clair County is
hereby affirmed and remanded for further proceedings.
¶ 29 Affirmed and remanded for further proceedings.
15 2014 IL App (5th) 130543
NO. 5-13-0543
IN THE
FIFTH DISTRICT ________________________________________________________________________
HARTMANN REALTORS, ) Appeal from the ) Circuit Court of Plaintiff and Counterdefendant-Appellee, ) St. Clair County. ) v. ) No. 13-SC-1714 ) DONNA BIFFAR, ) Honorable ) Brian Babka, Defendant and Counterplaintiff-Appellant. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: June 25, 2014 ________________________________________________________________________
Justices: Honorable Thomas M. Welch, P.J.
Honorable Melissa A. Chapman, J., and Honorable Stephen L. Spomer, J., Concur ________________________________________________________________________
Attorney Peter J. Maag, Maag Law Firm, LLC, 22 West Lorena Avenue, Wood for River, IL 62095 Appellant ________________________________________________________________________
Attorney Louis E. Costa, Costa Law Office, P.C., 2001 Broadway, Mt. Vernon, for IL 62864 Appellee ________________________________________________________________________