Camco, Inc. v. Lowery
| Decision Date | 18 November 2005 |
| Docket Number | No. 1-03-0144.,1-03-0144. |
| Citation | 839 N.E.2d 655 |
| Parties | CAMCO, INC., Plaintiff-Appellee, v. Carol LOWERY, Defendant-Appellant. |
| Court | Illinois Supreme Court |
Camco, Inc. (Camco), the plaintiff, filed a forcible entry and detainer action against the defendant, Carol Lowery. The parties filed cross-motions for summary judgment and the trial court denied Ms. Lowery's motion and granted Camco's motion for summary judgment. Ms. Lowery appeals from the trial court's December 5, 2002, order granting Camco's motion and entering a judgment for possession of her apartment.
Camco is the agent and manager for Van Buren Park Apartments (Van Buren), a privately owned housing project that is subsidized by the United States Department of Housing and Urban Development (HUD) under the "Section 8 New Construction Program (hereinafter Section 8)." See 42 U.S.C. § 1437d(h)(2000). HUD has an approved lease for participants in its Section 8 program, and approved the leases that Van Buren entered into with its Section 8 tenants. On December 23, 1999, Van Buren entered into a lease with Ms. Lowery, a Section 8 tenant, for Unit 1301A, located at 2120 West Gladys (Unit 1301A). The lease provided that Ms. Lowery, as head of household, and her two sons, Prenis Lowery and A.L. (a minor and member of Ms. Lowery's household)1, were approved to reside in Unit 1301A.
On April 26, 2002, Camco served Ms. Lowery with a notice of termination of tenancy. The notice stated that Ms. Lowery's tenancy was being terminated for material noncompliance with the terms of her lease with Van Buren. The notice stated that Ms. Lowery violated her lease on March 27, 2002, when the Chicago police raided her unit and arrested her son, A.L., for selling and possessing illegal drugs in violation of paragraphs 13(b), 13(c), 23(b), and 24 of the lease. Paragraph 13(b) of the lease provides that the tenant shall not use the unit for unlawful purposes. In paragraph 13(c) of the lease, the tenant agrees not to:
"c. engage in or permit unlawful activities in the unit, in the common areas or on the project grounds;
1. Tenant, any member of the Tenant's household, or guest or other person under the Tenant's control shall not engage in criminal activity, including drug related criminal activity, on or off project premises. Drug related criminal activity means the illegal manufacture, sale distribution, use of possession with intent to manufacture, sell, distribute, or use of a controlled substance (as defined in section 102 of the Controlled Substances Act {21 U.S.C. 802}).
2. Tenant, any member of the Tenant's household, or a guest or other person under the Tenant's control shall not engage in any act intended to facilitate criminal activity, including drug-related criminal activity, on or off project premises. (Emphasis in original.)
3. Tenant or members of the household will not permit the dwelling unit to be used for, or to facilitate, criminal activity, including drug-related criminal activity, on or off project premises. (Emphasis in original.)
4. Tenant or members of the household will not engage in the manufacture, sale, or distribution of illegal drugs at any location, whether on or off project premises or otherwise.
* * *
6. VIOLATION OF THE ABOVE PROVISIONS SHALL BE A MATERIAL VIOLATION OF THE LEASE AND GOOD CAUSE FOR TERMINATION OF TENANCY. A single violation of any of the provisions of this clause shall be deemed a serious violation and a material noncompliance with this Agreement. It is understood and agreed that a single violation shall be good cause for termination of this Agreement. Unless otherwise provided by law, proof of violation shall not require criminal conviction, but shall be by a preponderance of the evidence." (Emphasis in original.)
Paragraph 23(b) of the lease provides that the landlord may only terminate the lease for: (1) the tenant's material noncompliance with the terms of the agreement; (2) the tenant's material failure to carry out obligations under any state landlord and tenant act; or (3) criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises by other tenants, or any drug-related criminal activity on or near the premise engaged in by the tenant, any member of the tenant's household, or any guest or person under the tenant's control. Finally, paragraph 24 of the lease provides that the tenant shall not undertake, or permit his or her family or guests to engage in any hazardous acts or do anything that will increase the project's premiums. Ms. Lowery was advised in the notice that if she remained in the leased unit after May 14, 2002, the date specified for termination, the landlord would terminate her tenancy by bringing a judicial action.
On May 30, 2002, Camco filed a forcible entry and detainer action against Ms. Lowery, and the complaint alleged that she breached paragraphs 13(b), 13(c), 23(b), and 24 of the lease. After filing the complaint, Camco initiated discovery. Camco served Chicago police tactical officer Jesse Sandoval (Officer Sandoval) with a subpoena which set a date for his discovery deposition. Camco also served a subpoena duces tecum on the Illinois State Police, Division of Forensic Services, and received an affidavit in lieu of court appearance and a laboratory report with an analysis of the contraband found in Unit 1301A on March 27, 2002.
Officer Sandoval's discovery deposition was set for August 29, 2002. At the deposition, Officer Sandoval produced a copy of A.L.'s arrest report and testified that he, his partner, Officer Frenzy, and their sergeant, set up surveillance at Unit 1301A of the Van Buren Apartments. According to Officer Sandoval, when their sergeant witnessed what appeared to be a narcotics transaction occurring at the front door of Unit 1301A, he instructed Officers Sandoval and Frenzy to approach Unit 1301A. Once the officers arrived at Unit 1301A, they detained an adult male who threw several bags of a substance believed to be cannabis to the ground. Shortly thereafter, the police placed the adult male under arrest and knocked on the door for Unit 1301A. Officer Sandoval testified that A.L. answered the door with a large bag in his hand, which Officer Sandoval believed contained suspected cannabis. A.L. was taken into custody and the officers confiscated what they believed to be additional suspected contraband inside an open Igloo cooler in Unit 1301A. Officer Sandoval testified that the recovered substances were sent to the lab for analysis and tested positive for cannabis. During the deposition, Officer Sandoval identified A.L. by using his name, rather than his initials, and testified that he was found guilty of felony possession of cannabis.
On August 29, 2002, Ms. Lowery filed a motion for summary judgment alleging that she did not violate her lease and that she did not know or have reason to know of A.L.'s conduct. In her motion, Ms. Lowery also maintained: (1) that she did not violate paragraph 13(b) or 13(c) of the lease because she did not use her apartment for any unlawful purpose and did not permit A.L. to engage in unlawful activity or use or sell drugs; (2) that she did not violate paragraph 23(b) of the lease because she did not engage in any criminal activity and was at work when A.L. was arrested, so she was unable to control his actions; and (3) that she did not violate paragraph 24 of the lease because she did not engage in any hazardous acts and did not permit A.L. to engage in any hazardous acts. Finally, the allegations in Ms. Lowery's motion for summary judgment were supported by her affidavit and a memorandum.
On October 7, 2002, Camco filed its motion for summary judgment alleging: (1) that Ms. Lowery occupied Unit 1301A under a written rental agreement with Camco; (2) that Ms. Lowery's son, A.L., also occupied Unit 1301A; (3) that on March 27, 2002, A.L. was arrested in Unit 1301A by the Chicago police and charged with possession and delivery of illegal drugs; (4) that the substances confiscated from A.L. tested positive for cannabis; and (5) that Ms. Lowery was served with a notice of termination of tenancy as a result of the possession and sale of illegal drugs by A.L., a member of her household. Camco maintained in its motion for summary judgment that, according to the lease and federal law, the possession and sale of cannabis on the premises by Ms. Lowery's son, A.L., constituted grounds for termination of her tenancy. Camco's motion for summary judgment was supported by the certification of Ceola Johnson (Van Buren's property manager), by a memorandum, and by three exhibits: (1) the transcript from Officer Sandoval's deposition; (2) a March 27, 2002, arrest report; and (3) the affidavit and lab report of Mohammad Sarwar, forensic chemist for the Illinois State Police, Division of Forensic Services.
On October 29, 2002, Ms. Lowery filed a motion to strike the three exhibits appended to Camco's motion, which she referred to as law enforcement testimony (Officer Sandoval's deposition transcript) and law enforcement records (the arrest report and the lab report). Ms. Lowery argued that the Juvenile Court Act of 1987(Act) provides that law enforcement records relating to minors who have been arrested or taken into custody before their seventeenth birthday shall be kept confidential (705 ILCS 405/1-7(A) (West 2004)), and that law enforcement officers may not disclose the identity of a minor when releasing information to the general public related to the arrest, investigation or disposition of any case involving a minor. 705 ILCS 405/1-7(E) (West 2004). Therefore, Ms. Lowery argued that all the evidence in...
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