Perry v. Evanston Young Men's Christian Ass'n

• Decision Date: 23 January 1981
• Docket Number: No. 79-1393,79-1393
• Citation: 48 Ill.Dec. 309,92 Ill.App.3d 820,416 N.E.2d 340
• Parties: , 48 Ill.Dec. 309 Stuart PERRY and Clifton Amoss, Plaintiffs-Appellants and Cross-Appellees, v. EVANSTON YOUNG MEN'S CHRISTIAN ASSOCIATION and Roth Holtz, Associate Executive Director, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 340

416 N.E.2d 340

92 Ill.App.3d 820, 48 Ill.Dec. 309

Stuart PERRY and Clifton Amoss, Plaintiffs-Appellants and Cross-Appellees, v. EVANSTON YOUNG MEN'S CHRISTIAN ASSOCIATION and Roth Holtz, Associate Executive Director, Defendants-Appellees

and Cross-Appellants.

No. 79-1393.

Appellate Court of Illinois, First District, Fifth Division.

Jan. 23, 1981.

[92 Ill.App.3d 821] [48 Ill.Dec. 311] Barry Rose, Evanston, for plaintiffs-appellants and cross-appellees.

Jerry A. Esrig and Chapman & Royce, Ltd., Chicago, for defendants-appellees and cross-appellants.

MEJDA, Justice:

Plaintiffs, Stuart Perry and Clifton Amoss, are former residents of the building operated by defendant, Evanston Young Men's Christian Association (YMCA). Defendant Roth Holtz is the Associate Executive Director of the YMCA. Plaintiffs brought this action alleging defendants forcibly entered each of their rooms in violation of the forcible entry and detainer statute (Ill.Rev.Stat.1977, ch. 57, par. 1, et seq.) ("the statute"). Plaintiffs request actual damages and also the "liquidated damages" provided in section 231/2-4.207 of the Evanston Residential Landlord and Tenant Ordinance (Code of the City of Evanston (1957, as amended), ch. 231/2, sec. 231/2-1.01 to 5.104) ("the ordinance"). Upon cross-motions, summary judgment was entered: (1) for defendants and against plaintiffs as to damages under the ordinance; and (2) for plaintiffs and against YMCA for violation of the statute with nominal damages of $1 and costs. Plaintiffs appealed and defendants cross-appealed.

The issues presented are whether: (1) defendants were guilty of forcible entry as to each of the plaintiffs' rooms; (2) plaintiffs' complaint claimed actual damages under the statute; and (3) the YMCA is exempt from the ordinance by its terms.

The following pertinent facts appear from the pleadings, affidavits and exhibits.

YMCA is an organization which leases rooms to over 160 residents at stipulated weekly rates. Plaintiffs are former residents. Perry occupied Room 536 from December 12, 1976 to April 10, 1977. Amoss occupied Room 427 from September 12, 1976, until May 5, 1977. Each signed a separate residence hall agreement with defendants providing, inter alia : (1) to pay a stipulated rental charge in advance; (2) to observe "quiet hours" between 11 p. m. and 7:30 a. m.; (3) that one day's notice by either party cancels the contract; and (4) that the YMCA may require the immediate vacating of rooms for violation of rules, failure to make room rent and membership payments in advance, unseemly conduct, immorality, or any other good cause.

On April 5, 1977, defendants wrote a note to Perry that he was playing his radio too loud and that, if he continued, he would be evicted. On April 7, 1977, defendants informed Perry by letter that because of his violation of quiet hours, he would be evicted at 2 p. m. on April 10, 1977. On the same day Perry wrote a letter advising defendants that the noise emanated from another room. On April 8, Holtz acknowledged receipt of Perry's letter but again stated he would be evicted at 2 p. m. on April 10.

Perry and Holtz had had a previous confrontation regarding the use of the YMCA's gym equipment. As a result, defendants had "plugged" Perry's door by placing an object in the lock, making it impossible for him to enter his room. Because of this prior encounter, Perry maintains that he had good reason to believe that Holtz, although not threatening such action, would "plug" his door to his room to effect an eviction at this time. Perry states that in order to avoid a breach of peace, he therefore vacated the premises at 1 p. m. on April 10, 1977.

On April 20, 1977, Holtz informed Amoss that there was too much noise coming from his room. On May 4, 1977, Holtz left a note On cross-motions for summary judgment, the order granting judgment found YMCA exempt from the provisions of the Evanston Landlord-Tenant Ordinance in that plaintiffs' occupancy constituted "transient occupancy in a hotel" within the meaning of section 231/2-1.202(d); that the act of "plugging" and threatening to "plug" plaintiffs' doors constituted forcible entry under the statute and that plaintiffs had not claimed actual damages in their complaint. Accordingly, judgment was entered for defendants as to the damage claimed under the ordinance, for plaintiffs as to the statutory violations with nominal damages of $1 and costs. The appeal and cross-appeal are from the order of judgment.

[48 Ill.Dec. 312] in Amoss' mailbox stating he would be evicted the following day, May 5, 1977, at 2 p. m. On May 5, 1977, at about 3 p. m., Holtz confronted Amoss and said that if Amoss did not leave the premises that Holtz would place an object ("plug") in the lock of his door so that he could not gain access to his room. Amoss stated that to avoid a breach of the peace, he vacated the room at 3:30 p. m. on May 5, 1977.

OPINION

I.

Defendants, on cross-appeal, contend that they did not violate the forcible entry and detainer statute in that both Perry and Amoss voluntarily gave up possession of their rooms. They admit that an hour after the time set for Amoss' eviction, Holtz did state to Amoss that the door to his room would be locked or "plugged" if he did not leave the premises. Defendants argue that no YMCA personnel entered either room until both plaintiffs had left and no one used or threatened to use force upon the plaintiffs in order to gain entry.

Plaintiffs contend that actual force is not necessary to constitute a forcible entry within the meaning of the forcible entry and detainer statute. They argue that because of implied force they were compelled against their will, and without having an opportunity to contest the grounds of their eviction, to vacate their respective rooms; and that the threatened lockouts constitute forcible entries in contravention of this statute.

Section 1 of the forcible entry and detainer statute provides:

"That no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner." Ill.Rev.Stat.1977, ch. 57, par. 1.

The purpose of this statute is to adjudicate the right to possession (Dobsons, Inc. v. Oak Park National Bank (1980), 86 Ill.App.3d 200, 41 Ill.Dec. 495, 407 N.E.2d 993; General Parking Corp. v. Kimmel (1979), 79 Ill.App.3d 883, 35 Ill.Dec. 154, 398 N.E.2d 1104) and to prevent breaches of the peace by compelling aggrieved persons to assert their rights by peaceable means through the courts. (D. J. Bielzoff Products Co. v. James B. Beam Distilling Co. & Triangle Sign Co., Inc. (1954), 3 Ill.App.2d 530, 533, 123 N.E.2d 135, 137.) However, this statute is in derogation of the common law which permitted an individual rightfully entitled to enter to do so with force and arms and retain possession by force. (City of Chicago v. Chicago Steamship Lines, Inc. (1927), 328 Ill. 309, 159 N.E. 301.) Consequently, recovery under this statute is confined to cases strictly within its provisions. (Biebel Roofing Co., Inc. v. Pritchett (1940), 373 Ill. 214, 25 N.E.2d 800, transferred, 307 Ill.App. 247, 30 N.E.2d 196; Menagh v. Hill (1956), 12 Ill.App.2d 80, 138 N.E.2d 707.) Accordingly, where an entry is made by one having a paramount title and a right to immediate possession, in a peaceable and orderly manner, followed by no violence or intimidation, for the purpose of holding possession, no offense is committed under the statute. Fort Dearborn Lodge No. 214, I.O.O.F. v. Klein (1885), 115 Ill. 177, 3 N.E. 272; Eichengreen v. Appel (1892), 44 Ill.App. 19; 36 A C.J.S. Forcible Entry and Detainer § 17, at 975 (1961).

Each plaintiff signed a rental agreement which provided that either party may terminate said agreement with one day's notice. While both plaintiffs admit that they agreed to reduce the statutory notice period or waive it entirely under certain proscribed conditions, ¹ they argue that they in no way waived the protection of the forcible entry and detainer statute. They argue, in the face of actual or threatened lockouts, they had two options: (1) be involved in committing breaches of the peace in order to retain possession of their rooms; or (2) choose, as they did, to leave without violence albeit against their wills and assert their legal rights at a later date.

Plaintiffs, relying on Harper v. Sallee (1940), 376 Ill. 540, 34 N.E.2d 860, Bugner v. Chicago Title & Trust Co. (1917), 280 Ill. 620, 117 N.E. 711, and Hammond v. Doty (1900), 184 Ill. 246, 56 N.E. 371, argue that actual force is not necessary to constitute a forcible entry within the meaning of the statute, and that it is sufficient if possession is taken without the tenant's consent.

The above-cited cases rely on Phelps v. Randolph (1893), 147 Ill. 335, 35 N.E. 243. There, the tenant disregarded a notice to surrender possession of the premises and continued in possession. A few days later, while the tenant was absent in Chicago, the owner proceeded to the pasture, drove out the tenant's cattle and horses, removed all feed and improvements, and nailed up the gates. That court held:

"To constitute forcible entry and detainer under our statute, it is not essential that the entry be made with a strong hand, or be accompanied with acts of actual force or violence against person or property. If one enters into the possession of another against the will of him whose possession is invaded, however quietly he may do so, the entry is forcible in legal contemplation. The word 'force' in our statute means no more than the term 'vi et armis' does at common law; that is, 'with either actual or implied force.' " 147 Ill. at 339-340, 35 N.E.2d at 245.

Similarly, in Harper v. Sallee (1940), 376 Ill. 540, 34 N.E. 860, while no actual breach of the peace occurred, Harper entered and took possession of a tract of land without Mrs. Sallee's consent after her tenant's lease had...