Circle Management, LLC v. Olivier

Citation882 N.E.2d 129,378 Ill.App.3d 601
Decision Date28 December 2007
Docket NumberNo. 1-07-0621.,1-07-0621.
PartiesCIRCLE MANAGEMENT, LLC., Plaintiff-Appellee, v. Beverly OLIVIER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Zoe G. Biel of Klise & Biel, Ltd., Chicago, for Appellee.

Cara A. Roecker, Jonathan K. Baum, Jeffrey E. Jamison, Brian J. Poronsky of Katten Muchin Rosenman LLP, Chicago, for Appellant.

Justice GREIMAN delivered the opinion of the court:

Defendant Beverly Olivier appeals a trial court order granting possession of her apartment to plaintiff Circle Management, LLC. (Circle Management) as a sanction for her failure to pay use and occupancy charges during the pendency of Circle Management's forcible entry and detainer action brought under the Illinois Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-101 et seq. (West 2004)). On appeal, Beverly asserts that the trial court lacked both the statutory and inherent authority to grant Circle Management possession under the Act as a sanction for her inability to make use and occupancy payments absent any consideration of the underlying merits of Circle Management's possession claim. We reverse.

On November 11, 2005, Beverly and her husband Collins Olivier executed a lease for apartment 801 located at 5718 N. Winthrop in Chicago. The lease required the Oliviers to pay $800 per month in rent on the first day of every month. On September 20, 2006, Circle Management, lessor of the Oliviers' apartment, filed a complaint against Beverly and Collins.1 The complaint alleged that starting August 1, 2006, Beverly and Collins failed to make their monthly rental payments and that Circle Management was owed $2,450 in back rent. Accordingly, the complaint sought possession of, and back rent for, the Oliviers' apartment. Beverly responded with a general appearance and a jury demand. She continued residing there with her two children during the pendency of Circle Management's forcible entry and detainer action.

On October 11, 2006, the court entered an agreed order establishing a pretrial filing schedule. In pertinent part, the agreed order granted Circle Management "fourteen (14) days, to and including October 25, 2006, to file a Motion for Use and Occupancy." On October 26, 2006, one day after the deadline set forth in the agreed order, Circle Management filed a motion for a use and occupancy award. In the motion, Circle Management asserted its belief that "[d]efendants plan on asserting a counterclaim against Plaintiff which will delay a speedy resolution to this matter and prevent Plaintiff from regaining possession of the premises in time to rent the premises for the winter to new tenants" and sought a court order requiring Beverly to make regular use and occupancy payments during the pendency of the case.

On November 30, 2006, the trial court entered an agreed order reached by the parties, which called for Beverly to pay Circle Management $800 a month beginning December 14, 2006, for use and occupancy of the apartment. Beverly, however, failed to make her first use and occupancy payment. Accordingly, on December 20, 2006, Circle Management filed a motion for immediate possession, asserting that it was entitled to possession of Beverly's apartment as a result of her failure to comply with the agreed use and occupancy order.

Beverly filed a response objecting to the propriety of Circle Management's motion, stating: "While [Circle Management] identifies no statute, regulation, ordinance or rule of court upon which it bases this request, defendant presumes that [Circle Management] is seeking a finding that Mrs. Olivier is in contempt of court, and asking this Court to award possession as a sanction for Mrs. Olivier's alleged contempt. * * * [Circle Management] has not provided defendant with adequate notice of the type of contempt it seeks, nor is a finding of contempt warranted, as it is impossible for Mrs. Olivier to comply with this Court's order." Accordingly, Beverly requested the court to deny Circle Management's motion.

Thereafter, on January 5, 2006, the trial court conducted a hearing on Circle Management's motion for immediate possession. Beverly informed the court that she had not paid the use and occupancy charges ordered by the court because she did not have the funds to comply with the order. She explained that her husband had left her in September or August of 2006 and had not provided her with any income or child support following his departure. Moreover, Beverly testified that she was currently unemployed, but that was she was actively seeking employment. When asked by the trial court why she entered into the November 30, 2006, agreed order to make monthly use and occupancy payments, Beverly explained that she had believed she would be able to receive revenue from various charities, but that the money had not been forthcoming. The parties stipulated that Beverly's failure to comply with the use and occupancy order was not willful.

Thereafter, Beverly's counsel addressed the court and challenged the validity of the practice of granting possession under the Act to a lessor as a sanction for a lessee's inability to pay use and occupancy charges. Counsel argued that the sanction Circle Management urged the court to impose did not constitute a valid contempt sanction. Specifically, counsel maintained that the sanction was not a valid criminal contempt sanction because Beverly did not act wilfully; moreover, counsel asserted, the sanction could not be classified as a valid civil contempt sanction because Beverly's ability to purge the contempt order was limited. The court responded, "Somebody should take it up to the courts and get us some guidelines," and granted Circle Management's motion for immediate possession "as a sanction" for Beverly's nonpayment of use and occupancy charges. The court further stated that the possession order could be "purged by paying the use and occupancy" by January 31, 2006, and stayed the proceedings until that date. The trial court then set a trial date for February 26, 2007, "in the event it becomes necessary." The trial court did not hear any evidence concerning the merit of Circle Management's underlying possession claim. Moreover, the trial court did not specify the authority on which it relied in imposing the sanction.

On January 29, 2006, Beverly filed a motion to clarify the court's January 5, 2006, possession order. The motion sought clarification as to "whether [the order] was a final judgment as to the disputed issue of possession, or a temporary order pending the disposition of the matter, at which time possession could revert to [Beverly] if she is successful at the trial stage." In her motion to clarify, Beverly also indicated that she sought "to appeal the Order at this time, under Illinois Supreme Court Rule 304(a), so that further guidance on the issues surrounding an award of immediate possession from failure to pay use and occupancy may be sought from the Illinois Appellate Court."

On February 14, 2007, the trial court entered an order in response to Beverly's motion, confirming that the possession order "was entered as a sanction pursuant to Plaintiff's request for failure to pay use and occupancy." The court also amended the order "to include a finding pursuant to Supreme Court Rule 304(a) that there is no just reason for delaying enforcement or appeal or both." Beverly filed a timely notice of appeal.

On appeal, Beverly asserts that the possession order was entered contrary to law, because the trial court lacks the statutory authority to award a landlord possession of a residence under the Act when a tenant is unable to comply with a use and occupancy order without considering the underlying merits of the landlord's possession claim. Moreover, she asserts that this practice cannot be upheld as a valid exercise of the trial court's inherent authority to sanction.

The Legal Assistance Foundation of Metropolitan Chicago (LAF), the Lawyers' Committee for Better Housing (LCBH), Cabrini-Green Legal Aid (CGLA) and the Northwestern University School of Law Bluhm Legal Clinic (Bluhm Clinic) (collectively amici), each of which provides free legal services to low-income tenants facing evictions, have filed an amici curiae brief in support on Beverly. In their brief, the amici assert that the practice of awarding possession to landlords when tenants fail to comply with use and occupancy orders without hearing evidence concerning the merits of the underlying possession claim is "prevalent" at the Daley Center. Specifically, the amici state in their brief that the trial court "holds approximately five hearings a week on motions for sanctions for the tenant's failure to make [use and occupancy] payments. Approximately one tenant a week is evicted as a result of these sanction hearings." The amici dispute the propriety of this prevalent practice because it relieves landlords of their statutory obligation to prove their right to possession under the Act.

Initially, we must determine whether we have jurisdiction to entertain Beverly's appeal or whether her appeal should be dismissed as moot. Following the entry of the possession order, Beverly moved out of the apartment. Thereafter, at oral argument, Circle Management's counsel informed the court that the apartment had subsequently been leased to another tenant.

Although neither party challenged our jurisdiction, a reviewing court has a duty to consider its jurisdiction sua sponte. Emery v. Northeast Illinois Regional Transportation Co., 374 Ill.App.3d 974, 977, 313 Ill.Dec. 502, 872 N.E.2d 485 (2007). As a rule, "[t]he existence of an actual controversy is an essential requisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions." In re Marriage of Nienhouse, 355 Ill.App.3d 146, 149, 290 Ill.Dec. 654, 821 N.E.2d 1228 (2004), citing Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 523, 259...

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