Hartmann Realtors v. Biffar

• Decision Date: 25 June 2014
• Docket Number: No. 5–13–0543.,5–13–0543.
• Citation: 13 N.E.3d 350
• Parties: HARTMANN REALTORS, Plaintiff and Counterdefendant–Appellee, v. Donna BIFFAR, Defendant and Counterplaintiff–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 350

HARTMANN REALTORS, Plaintiff and Counterdefendant–Appellee

v.Donna BIFFAR, Defendant and Counterplaintiff–Appellant.

No. 5–13–0543.

Appellate Court of Illinois, Fifth District.

June 25, 2014.

Rehearing Denied July 14, 2014.

Peter J. Maag, of Maag Law Firm, LLC, of Wood River, for appellant.

Louis E. Costa, of Costa Law Office, P.C., of Mt. Vernon, for appellee.

OPINION

Presiding Justice WELCH

delivered the judgment of the court, with 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 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.”

¶ 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 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. 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.”

¶ 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.’

So I understand your defense, your affirmative defense and your counterclaim, * * * and it's

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