City of Chicago v. Mendelson

• Decision Date: 04 October 1973
• Docket Number: No. 57537,57537
• Citation: 14 Ill.App.3d 950,304 N.E.2d 16
• Parties: CITY OF CHICAGO, a municipal corporation, Plaintiff, v. Jeanette MENDELSON, Defendant/Third Party Plaintiff/Appellee, v. COOK COUNTY DEPARTMENT OF PUBLIC AID, Third Party Defendant/Appellant.
• Court: United States Appellate Court of Illinois

Page 16

304 N.E.2d 16

14 Ill.App.3d 950

CITY OF CHICAGO, a municipal corporation, Plaintiff, v. Jeanette MENDELSON, Defendant/Third Party Plaintiff/Appellee, v. COOK COUNTY DEPARTMENT OF PUBLIC AID, Third Party Defendant/Appellant.

No. 57537.

Appellate Court of Illinois, First District, Third Division.

Oct. 4, 1973.

Block, Levy & Becker, Chicago, for defendant-appellant.

Vincent Bentivenga and Donald P. Smith, Asst. State's Attys., Chicago, for plaintiff-appellee.

McGLOON, Justice.

The City of Chicago brought an action against Jeanette Mendelson to demolish certain improved real property after a fire had occurred at said property. Defendant, Mendelson, filed a third-party complaint impleading the Cook County Department of Public Aid and the State of Illinois Department of Public Aid as third-party defendants, claiming that third-party defendants unlawfully withheld rents from welfare recipients who were tenants in her building. Third-party plaintiff claimed that the withholding of rents prevented her from making necessary repairs to the building. The rent withholding was for a period of time which predated the fire. The circuit court of Cook County granted third-party plaintiff's motion for judgment on the pleadings and entered a judgment order in favor of third-party plaintiff and against third-party defendants, ordering the payment of the withheld rents and an accounting to determine the amount thereof. Third-party defendants have appealed from that order.

The Cook County Department of Public Aid (hereafter Cook County) contends that the trial court erred in granting the motion for judgment on the pleadings. Mendelson contends that the order from which the appeal was taken was not an appealable order. Mendelson further contends that the trial court properly entered summary judgment on the issue of liability. We note for further discussion that Mendelson has improperly characterized judgment on the pleadings as summary judgment.

We reverse and remand.

The facts are as follows. The third-party complaint alleged that the tenants occupying the building in question were welfare recipients and that Cook County had unlawfully withheld rent payments from Mendelson. The complaint prayed for judgment in the amount of the withheld rent.

Mendelson also filed a petition for an accounting of all withheld rents which were allegedly owed to her. Attached to the petition was a copy of an order entered on September 26, 1969, in prior action involving building code violations entitled, 'City of Chicago, Plaintiff v. Jeanette Mendelson, et al., Defendants.' The order recited that after having received testimony, the trial court dismissed the complaint. Also attached to the petition was a copy of a Certificate of Inspection from the City of Chicago Department of Buildings. The certificate was dated November 26, 1969, and was based on an inspection of the building in question on November 25, 1969. The certificate showed there were no violations of the Building and Electrical Provisions of the Municipal Code of Chicago as of the latter date. In its answer to the petition, Cook County neither admitted nor denied the averments concerning the prior building code action but demanded strict proof thereof. Cook County denied that no violations existed on November 25, 1969.

A hearing was held on the petition for an accounting. At this hearing Mendelson submitted a motion for judgment on the pleadings. During arguments of counsel, mention was made of Ill.Rev.Stat.1971, ch. 23, par. 11--23, which statute authorizes rent withholding when a building wherein recipients of public aid reside is found to have building code violations. It was determined that rents were withheld for the period of March, 1969, to January, 1970. The dismissed order in the previous action was entered on September 26, 1969, and the inspection which was the basis of the certificate was made on November 25, 1969. The trial court decided that the dismissal order and the certificate of inspection showing no violations were conclusive on the issue of whether building code violations existed during the withholding period and granted the petition for an accounting. Neither side presented any evidence. The trial court then granted Mendelson's motion for judgment on the pleadings. The court ordered that an accounting of withheld rents be filed with the court. Shortly thereafter, the trial court entered an order finding no just reason for delaying appeal of the judgment order. A money judgment of $4,116.90 was finally entered in favor of Mendelson representing the amount of withheld rents which were owed to her.

Mendelson contends that the order from which this appeal was taken was not an appealable order. On March 6, 1972, the trial court entered judgment on the pleadings, Nunc pro tunc, February 28, 1972. On March 28, 1972, the court entered an order finding that the previous order was appealable under Supreme Court Rule 304(a). On the same date Cook County filed its notice of appeal. Subsequently, a hearing was held on the issue of the amount of withheld rent. The court resolved the issue and entered a money judgment on April 14, 1972. Mendelson argues that because the trial court postponed its hearing concerning the accounting until a future date, its order of March 6, 1972, was only a partial determination of the rights and liabilities of the parties and was not final and appealable. She further argues that the trial court improperly made the finding as required by Rule 304(a) that the order of March 6, 1972, was appealable.

It is well established that a decree which adjudicates the rights and liabilities of the parties is final although it reserves an accounting for future consideration. (Altschuler v. Altschuler (1948), 399 Ill. 559, 78 N.E.2d 225; Barnhart v. Barnhart (1953), 415 Ill. 303, 114 N.E.2d 378.) When the trial court enters a final order as to fewer than all the claims for relief, an appeal may be taken from such final order only if the court expressly finds that there is no just reason for delaying appeal. (Ill.Rev.Stat.1971, ch. 110A, par. 304(a).) In the instant case, because the judgment order was a final order, it was proper for the trial court to expressly so find. Mederacke v. Becker (1965), 56 Ill.App.2d 128, 205 N.E.2d 519.

Cook County contends that the trial court erred in granting the motion for judgment on the pleadings. In her appellee's brief, Mendelson has characterized the trial court's action as summary judgment. We find no support for this characterization in the record. We have examined the pleadings and the transcript of the hearings and find no mention of summary judgment. The trial court ruled on the motion for judgment on the pleadings. This was the form of relief which had been requested. In the reply brief of Cook County, the improper characterization was continued. However, this has no bearing on the nature of the trial court's order or the appropriate standard of review. The Illinois Civil Practice Act provides for judgment on the pleadings and summary judgment in two separate sections, Ill.Rev.Stat.1971, ch. 110, pars. 45 and 57. Under the circumstances, we shall regard the judgment order as judgment on the pleadings and review the order accordingly. Tompkins v. France (1959), 21 Ill.App.2d 227, 157 N.E.2d 799.

A motion for judgment on the pleadings raises the question of whether the pleadings present an issue of material fact, and if there is no such issue presented, the question as to whether the moving party is entitled to judgment. (Tompkins v. France (1959), 21 Ill.App.2d 227, 157 N.E.2d 799.) If any material fact is in issue, judgment on the pleadings cannot be entered. (Minor v. Universal C.I.T. Credit Corp. (1960), 27 Ill.App.2d 330, 170 N.E.2d 5.) In the instant case the pleadings consisted of the third-party complaint and answer and the petition for an accounting with accompanying exhibits and answer. (Sullivan v. Bard (1963), 44 Ill.App.2d 16, 194 N.E.2d 18.) We find that the trial court erred in entering judgment on the pleadings.

At the hearing on the petition for an accounting at which the court granted the motion for judgment on the pleadings, the court found that the dismissal order in the prior building code action and the certificate of...