Heritage Pullman Bank v. American Nat. Bank and Trust Co. of Chicago

• Decision Date: 15 May 1972
• Parties: , 115 Ill.Dec. 706 HERITAGE PULLMAN BANK, Plaintiff, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a National Banking Association as Trustee U/T/A dated
• Court: United States Appellate Court of Illinois

Page 231

518 N.E.2d 231

164 Ill.App.3d 680, 115 Ill.Dec. 706

HERITAGE PULLMAN BANK, Plaintiff, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a

National Banking Association as Trustee U/T/A dated May 15,

1972 and known as Trust No. 76777, et al., Defendants

(American National Bank, as Trustee under Trust No. 66176,

Plaintiff-Appellant v. Carmen Kurt, Frederick Kurt and

Norden Jacob; Harris Trust and Savings Bank, as Trustee

under Trust No. 35475; Sheridan Tower Associates, Ltd.;

and Chicago Title & Trust Company, an Illinois corporation,

as Trustee under a Trust Deed Recorded as Document No.

24092347, Defendants-Appellees).

No. 86-3381.

Appellate Court of Illinois,

First District, Fourth Division.

Dec. 3, 1987.

Rehearing Denied Jan. 25, 1988.

William J. Harte, Ltd., Chicago (William J. Harte, Mary Ellen Rosen, of counsel), for plaintiff-appellant.

Earl A. Talbot and Morton Jaffee, Chicago, for defendants-appellees.

Justice LINN delivered the opinion of the court:

Plaintiff, the American National Bank and Trust Company of Chicago, as Trustee under Trust No. 66176, brought a forcible detainer action in the circuit court of Cook County against defendants, the Harris Trust and Savings Bank, as Trustee under Trust No. 35475 (the Harris Trust); its beneficiaries, Carmen and Frederick Kurt, and Norden Jacob (Kurt-Jacob beneficiaries); Sheridan Tower Associates, Ltd.; and the Chicago Title and Trust Company, as Trustee under Trust Deed No. 24092347.

The trial court consolidated the forcible detainer action with a pending foreclosure action involving the same property. The court subsequently granted defendants' motion to dismiss the forcible detainer action pursuant to section 2-619(a)(3) of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(3).) Plaintiff appeals, contending that the trial court could have, and should have, adjudicated the forcible detainer action without reaching the issues raised in the other pending foreclosure action.

We reverse the order of the trial court, and remand.

This action involves a 101-unit apartment building located at 3900 North Pine Grove Avenue, in Chicago, Illinois. In determining whether to allow a motion to dismiss, a court must take all well-pled allegations of fact contained in the complaint as true and construe all reasonable inferences therefrom in the plaintiff's favor. (Cook v. Askew (1975), 34 Ill.App.3d 1055, 1057, 341 N.E.2d 13, 15.) Plaintiff alleged that in 1974, the Chicago Title and Trust Company, as Trustee under Trust No. 63837 (CT & T. Tr. 63837), with its beneficiary, Sheridan Tower Associates, Ltd., created a leasehold estate in the property. CT & T. Tr. 63837 entered into a lease agreement with defendants Harris Trust and the Kurt-Jacob beneficiaries. CT & T. Tr. 63837 was the lessor and defendants Harris Trust with the Kurt-Jacob beneficiaries were the lessee.

CT & T. Tr. 63837 and the Harris Trust amended the lease in 1977. The amended lease gave the Harris Trust the option of buying CT & T. Tr. 63837's interest as lessor in the property. The lease amendment was recorded as Trust Deed Document No. 24092347, with Chicago Title and Trust as trustee.

Pursuant to the lease amendment, the Harris Trust and the Kurt-Jacob beneficiaries bought the leasehold from CT & T. Tr. 63837. They paid for the leasehold with a note, secured with a trust deed conveying the leasehold back to CT & T. Tr. 63837.

In 1979, the Harris Trust and the Kurt-Jacob beneficiaries sold their interest as lessor to the National Boulevard Bank, as trustee for the beneficiary, the B & B Investment Company. In return, National Boulevard and B & B executed a note and secured it with a trust deed conveying the leasehold back to the Harris Trust and the Kurt-Jacob beneficiaries.

B & B defaulted on the note. In 1982, the Kurt-Jacob beneficiaries brought an action to foreclose on the note. The trial court entered judgment for the Kurt-Jacob beneficiaries, who bought back the leasehold at a Sheriff's sale.

The Kurt-Jacob beneficiaries subsequently defaulted on the note that it executed as payment for CT & T. Tr. 63837's interest as lessor. CT & T. Tr. 63837, with its beneficiary, Sheridan Tower, brought a foreclosure action in the trial court, which is still pending. In the course of the foreclosure action, the trial court appointed a receiver to manage the property.

In 1985, plaintiff bought CT & T. Tr. 63837's interest in the property. Plaintiff further alleged that it and B & B subsequently reached an agreement in which B & B forfeited all of its rights under the lease, including any rights to immediate possession. On February 27, 1986, the trial court entered an agreed order that disposed of the controversy between plaintiff and B & B.

Plaintiff filed its forcible detainer action on August 21, 1986. Plaintiff alleged that B & B, while it still held the leasehold, violated the lease agreement by failing to pay on its note and its rent. Plaintiff sought a judgment that the lease was terminated and that it was entitled to immediate possession.

On October 1, 1986, the trial judge granted defendants' motion to dismiss, based on section 2-619(a)(3) of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(3).) The trial court ruled that it could not determine which party had the right to possession at that time. The court further ruled that it could address adequately the issue of possession with the many other issues in the foreclosure action. Plaintiff appeals, contending that the trial court erred in dismissing the forcible detainer action.

I

Defendants initially challenge our jurisdiction to hear this appeal. Defendants note that the trial court consolidated the forcible detainer action with the foreclosure action. Defendants further note that the trial court, in dismissing plaintiff's forcible detainer action, did not make a written finding that there was no just reason for delaying an appeal of the order, as Supreme Court Rule 304(a) requires. (107 Ill.2d R. 304(a).) Defendants argue, therefore, that since the trial court's order was not a final judgment, and since the order lacked the requisite 304(a) finding, then this court lacks jurisdiction to hear the appeal.

We disagree. Although the trial court consolidated the forcible detainer action with the foreclosure action, the two actions retained their separate docket numbers. If the consolidated cause had proceeded to judgment, the trial court undoubtedly would have entered a separate judgment in each action. We conclude, therefore, that the consolidation of the forcible detainer action with the foreclosure action was only to permit a single hearing of evidence relating to common issues and did not result in the merging of the two matters into a single suit. (Kassnel v. Village of Rosemont (1985), 135 Ill.App.3d 361, 364, 90 Ill.Dec. 49, 51-52, 481 N.E.2d 849, 851-52.) Thus, a 304(a) finding was not required in the trial court's dismissal order. Consequently, we hold that we have jurisdiction to hear this appeal.

II

Plaintiff first contends that the existence of the foreclosure action did not bar the trial court from an immediate hearing of the forcible detainer action. After plaintiff filed its forcible detainer action, it filed a counterclaim in the foreclosure action. Plaintiff sought the same relief as in the forcible detainer action, i.e., a declaration that the lease was terminated and that plaintiff was entitled to possession.

Section 2-619(a)(3) of the Code of Civil Procedure allows a defendant to seek the dismissal of an action when "there is another action pending between the same parties for the same cause." (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(3).) Actions are "for the same cause" when they arise out of the same transaction or occurrence. Skolnick v. Martin (1964), 32 Ill.2d 55, 57, 203 N.E.2d 428, 429-30. Relying on LaSalle National Bank v. Helry Corp. (1985), 136 Ill.App.3d 897, 91 Ill.Dec. 472, 483 N.E.2d 958, defendants argue that, in both the forcible detainer and the foreclosure actions, the parties are litigating the same issues based on the same facts. In the LaSalle National Bank case, defendant learned that plaintiff would bring a forcible detainer action against it. Taking the initiative, defendant brought a declaratory judgment action against plaintiff. Defendant sought a declaration that it had the better right to possess the contested premises. Instead of filing an answer, plaintiff brought a separate forcible detainer action. We held that the trial court erred in denying defendant's motion to dismiss under section 2-619(a)(3). We stated, "[a]lthough the actions may be couched in different terms and request superficially different remedies, there is no doubt that both parties were litigating the right to possession of the premises." 136 Ill.App.3d 897, 906, 91 Ill.Dec. 472, 478-79, 483 N.E.2d 958, 964-65.

The record in the instant case reveals, however, that issues and parties are present in the foreclosure action that are absent from the forcible detainer action. Indeed, this is the very nature of an action under the forcible entry and detainer statute. The action calls for a special and limited proceeding. The scope of judicial inquiry is confined to a determination of the right to immediate possession. The question of title, therefore, cannot be litigated. (Kitzer v. Rice (1967), 90 Ill.App.2d 72, 76-77, 234 N.E.2d 115, 117.) Evidence of title may be admissible for the limited purpose of establishing or clarifying one's right to immediate possession. However, when the admission of title documents requires an adjudication of contradictory claims to title, such documents are inadmissible. A serious title dispute cannot be decided in an action under the forcible entry and detainer statute. 90 Ill.App.2d 72, 77, 234 N.E.2d 115, 118; Urbach v. Green (1957), 15 Ill.App.2d 186, 188, 145 N.E.2d 808, 810.

In contrast, a foreclosure...