Fitzpatrick v. ACF Properties Group, Inc.

• Decision Date: 02 July 1992
• Docket Number: No. 2-91-0670,2-91-0670
• Citation: 595 N.E.2d 1327,231 Ill.App.3d 690
• Parties: , 172 Ill.Dec. 657 Barbara FITZPATRICK, Plaintiff-Appellant, v. ACF PROPERTIES GROUP, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1327

595 N.E.2d 1327

231 Ill.App.3d 690, 172 Ill.Dec. 657

Barbara FITZPATRICK, Plaintiff-Appellant, v. ACF PROPERTIES GROUP, INC., Defendant-Appellee.

No. 2-91-0670.

Appellate Court of Illinois Second District.

July 2, 1992.

Richard S. Connors, argued, Chicago, for Barbara fitzpatrick.

John P. McTigue, McKenna, Storer, Rowe, White & Farrug, Wheaton, Christine L. Olson, argued, James P. DeNardo, McKenna, Storer, Rowe, White & Farrug, Chicago, for ACF Properties Group, Inc.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Barbara Fitzpatrick, brought a multicount personal injury action against defendant, ACF Properties Group, Inc. (ACF), for damages Fitzpatrick allegedly sustained when she was sexually assaulted in her apartment at the Maple Lakes Apartments (Maple Lakes), which was owned by ACF. Count I of plaintiff's fourth amended complaint alleged a negligence cause of action; count II alleged willful and wanton conduct; count III alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill.Rev.Stat.1989, ch. 121 1/2, par. 261 et seq.); count IV alleged common-law fraud; count V alleged negligent infliction of emotional distress; and count VI sought recovery of plaintiff's security deposit. The case proceeded to trial before a jury. At the close of plaintiff's case, the trial court entered directed verdicts in favor of defendant as to counts II through VI. At the conclusion of all the evidence, the jury returned a verdict in favor of defendant and against plaintiff on the remaining negligence count. The trial court denied plaintiff's post-trial motion for judgment notwithstanding the verdict or a new trial, and plaintiff filed her timely notice of appeal.

On appeal, plaintiff purports to raise the following issues: (1) whether she is entitled to a new trial where the record on appeal does not contain a jury verdict or judgment order in favor of either party; (2) whether the trial court committed reversible error in refusing to allow plaintiff to present spoliation evidence; (3) whether plaintiff was denied her right to a fair and impartial trial; (4) whether the circuit court of Cook County erred by transferring this case to Du Page County under the doctrine of forum non conveniens; and (5) whether the trial court committed reversible error in directing verdicts in favor of defendant on counts II through VI of plaintiff's complaint. Though raised in her post-trial motion, plaintiff in her appellate briefs to this court has not requested or presented any argument seeking either judgment notwithstanding the verdict or a finding that the jury's verdict on count I was against the manifest weight of the evidence.

As stated, plaintiff was a tenant at Maple Lakes, which was owned by defendant. Plaintiff had originally moved into a studio apartment in 1984 and later moved into a one-bedroom apartment in May 1985. Before plaintiff moved into her first apartment, she visited Maple Lakes with her mother. At that time, plaintiff's mother asked whether the premises were safe. The mother testified that an unidentified employee told her that there were no crimes at Maple Lakes. In the early morning hours of December 28, 1985, a person entered plaintiff's apartment through a bedroom window and sexually assaulted her. After the occurrence, plaintiff moved out of the apartment and did not pay rent for January 1986. Defendant did not return plaintiff's security deposit.

The window in the bedroom of plaintiff's apartment consisted of two separate panes of glass, consisting of an inner and outer, or storm, window. Plaintiff testified that in November 1985 her inner bedroom window would not shut or lock. She reported this to defendant in November. On November 14, 1985, a repair order was left in her apartment. Plaintiff did not inspect the bedroom window after November 14, assuming that the window would close, even though the bedroom was colder than the rest of the apartment. Plaintiff did not complain to Maple Lakes about this condition. In addition, plaintiff did not recall any problem with the storm window and never complained of a problem with that window.

Antonio Hernandez, the chief of maintenance at Maple Lakes, testified that he performed the repair work on the bedroom window in plaintiff's apartment. According to Hernandez, he fixed the lock, and when he left, the latch on the inside window was working properly. He checked all the windows at the time and closed the windows and checked the locks, all of which were working properly. Plaintiff's mother testified that she went to clean plaintiff's apartment the day after Christmas 1985. She testified that the bedroom window at that time was open. Plaintiff's mother closed the inside window, which did not lock, and put a tool in the track of the window. Plaintiff's mother did not know if the outer storm window locked.

Officer Steven Pugsley, who inspected plaintiff's apartment the night of the assault, testified that the lock on the inner bedroom window did not work. He did not recall anything regarding the outer window. Officer Terrence Freeman was the evidence technician who inspected plaintiff's apartment. Officer Freeman did not check the storm window, but there was snow packed in the track of that window. He closed the storm window to the point where the snow prohibited the window from closing further. Freeman stated that the inner window did not lock, but that he did not include this detail in his report.

Plaintiff moved out of her apartment on January 6, 1986. Victoria Torres, a manager at ACF, inspected the apartment after the plaintiff moved out. The inspection report listed nothing wrong with plaintiff's apartment and did not indicate any necessary repairs. Antonio Hernandez, the maintenance man, was requested to perform maintenance work on the apartment after plaintiff moved out, but there was no testimony that Hernandez actually performed any repairs in the apartment.

Plaintiff called Dr. David Coynik, a dermatologist, to testify regarding plaintiff's alleged damages suffered as a result of the sexual assault. Dr. Coynik testified that plaintiff acquired HPV, a sexually transmitted virus, as a result of the incident. Plaintiff also called Dr. George Banuelos, an obstetrician. Dr. Banuelos testified that he diagnosed the HPV condition in a prenatal examination of plaintiff in November 1989. Dr. Chester Scrignar testified that he diagnosed plaintiff as suffering from post-traumatic stress disorder. Dr. Scrignar stated that the sexual assault was the trauma which caused this condition. Dr. James Dolan testified on defendant's behalf regarding when plaintiff acquired the HPV virus. Dr. Dolan testified that there was no way to tell with any reasonable degree of certainty when plaintiff acquired the virus and he could not say that she acquired the virus on the night of the sexual assault. As stated, the trial court entered verdicts in favor of defendant on counts II through VI of plaintiff's complaint and the jury returned a verdict in favor of defendant on the remaining negligence count. Plaintiff appealed following denial of her post-trial motion.

Plaintiff's first contention is that she is entitled to a new trial based on the fact that the record on appeal does not contain a jury verdict or judgment order in favor of either party. We disagree. As defendant correctly notes, this court on January 16, 1992, granted defendant's motion to supplement the record with the signed jury verdict and order entering judgment on the verdict, upon the filing of a certification by the trial court that the jury verdict form and entry of judgment was an accurate copy of the jury's original verdict and the original judgment that was entered and filed in the trial court. The supplemental record on appeal does in fact contain a copy of the original jury verdict and judgment order and is accompanied by the trial court's certification of accuracy. As such, plaintiff's argument is without merit.

Next, we consider plaintiff's contention that it was error to transfer this case from Cook County to Du Page County under the doctrine of forum non conveniens. In this respect, defendant points out that plaintiff did not file a response in the trial court objecting to the motion to transfer venue, nor did she raise the issue in her post-trial motion. As such, plaintiff has waived consideration of this issue on review. (Pecora v. Szabo (1981), 94 Ill.App.3d 57, 67, 49 Ill.Dec. 577, 418 N.E.2d 431; Hinduliak v. Inn of the Four Lakes, Inc. (1968), 98 Ill.App.2d 42, 47, 240 N.E.2d 532.) We also believe that plaintiff has failed to adequately brief this issue, in violation of Supreme Court Rule 341(e)(7) (134 Ill.2d R. 341(e)(7)). In her initial brief, plaintiff fails to cite any authority whatsoever in support of her argument that transfer was improper. In her reply brief, plaintiff provides case law for the general proposition that certain factors must strongly favor a transfer of venue (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill.2d 101, 143 Ill.Dec. 274, 554 N.E.2d 209; Torres v. Walsh (1983), 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601), but then fails to adequately analyze or argue why such factors did not favor defendant in this case. Rather, plaintiff simply concludes that the factors did not favor defendant. Plaintiff's argument may also be considered waived on this basis. 134 Ill.2d R. 341(e)(7).

Even if plaintiff had not so effectively waived consideration of this issue, we agree with defendant that transfer of venue was not improper where plaintiff's injuries occurred in Du Page County, plaintiff resided in Du Page County at the time of the occurrence, plaintiff's apartment, which was owned by defendant, was located in Du Page County, the investigating police officers were located in Du Page County, and plaintiff's initial medical treatment occurred in Du Page County. Based...