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Clore v. Fredman

AUGUST 24, 1973.

NORTON KENT CLORE ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,

v.

HARRY FREDMAN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. ALBERT PUCCI, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1973.

We have previously considered one aspect of this appeal in the case of Fredman v. Clore, ante, p. 903. In that case we affirmed the action of the circuit court of Peoria County in refusing to dismiss the action of forcible entry and detainer instituted by the landlord Fredman against the Clores, the tenants, and also the trial court's refusal to consolidate the forcible entry and detainer action with a class action for declaratory judgment and injunctive relief filed by the Clores. We also affirmed the trial court's action in granting the landlord Fredman's motion for summary judgment in his favor against the Clores in the forcible entry action.

An adequate statement of the facts and proceedings which resulted in this appeal and in the appeal in the case of Fredman v. Clore, ante, p. 903 is set forth in the latter case.

We now have before us an appeal which raises not only the issues heretofore decided by us but in addition presents an additional issue.

This additional issue stems from Count II of the complaint of the Clores hereinafter referred to as the plaintiffs. In Count II the plaintiffs, individually and on behalf of other tenants occupying the apartment building in question, complain of the City of Peoria and Frank E. Naven, director of the Department of Environmental Development, by alleging that there has not been a compliance with the Housing Code of the City of Peoria in regard to making adequate inspections of the rental premises in question and that further after such inspections as were made there was a failure to adequately report violations. The plaintiffs alleged that Count II of their complaint is brought in the nature of an action in mandamus and they prayed that the Department of Environmental Development of the City of Peoria be ordered to continue accepting plaintiffs' rent and that the same be placed in escrow until further order of court. It was also prayed that the defendants be ordered to conduct a thorough inspection of the apartment building and that a determination be made whether the premises meet the minimum standards set forth in the Housing Code of Peoria and that such report of inspection and determination be filed with the trial court.

We should note that the plaintiffs had summons served on the landlord Fredman, the defendant Frank E Naven, Director of the Department of Environmental Development, and Robert O. Wright, City Manager of the City of Peoria.

The trial court also in this action granted the landlord Fredman's motion for summary judgment. A like motion for summary judgment filed on behalf of Frank E. Naven was granted and a motion to quash the summons served on Robert O. Wright, the City Manager, was granted on the grounds that he was not a proper party to receive service of process for the City of Peoria, nor was he properly made a party to the lawsuit.

It is this action of the trial court that the plaintiffs complain of and which we are concerned with in this appeal. It is the contention of the plaintiffs that the trial court erred in refusing to consolidate the instant case with the case of Fredman v. Clore, ante, p. 903. As we have stated, this court has ruled otherwise and therefore we need not further consider this contention. The plaintiffs also argue that the plaintiffs stated a prima facie case against all defendants and that this cause should be remanded to the trial court for further proceedings.

The plaintiffs present several arguments in opposition to the defendants' contention, to-wit, that plaintiffs do not have the requisite standing pursuant to chapter 24, section 11-13-15 of the Illinois Revised Statutes to maintain this action; that an action in mandamus will not lie where the governmental functions sought to be performed have already been performed; that the plaintiffs have failed to exhaust the administrative remedies available to them under the local ordinances and that there was a complete failure on the part of the plaintiffs to present to this court anywhere in their brief any issue relating to the decision of the trial court in regard to Count II and therefore there has been an abandonment on appeal of the purported causes of action sought to be raised therein and further there has been an abandonment of any alleged error by the trial court in regard to Count II.

As to the defendant Fredman we need not in this opinion concern ourselves as to the correctness of the trial court's ruling when his motion for summary judgment was granted. We have already held that the trial court's action in Fredman v. Clore, ante, p. 903, should be affirmed and to now say that the granting of his motion for summary judgment in the instant case was erroneous would not only be inconsistent but would be contrary to the reasoning set forth in our prior opinion concerning these parties, which was derived from the same factual and procedural situation.

As to the defendant Naven and City Manager Robert O. Wright, we concur in their contention that the plaintiffs' failure to present to this court any issue in regard to the trial court's action as to Count II of their complaint constitutes an abandonment of any alleged error by the trial court.

• 1 The plaintiffs make no mention in their brief of any error relating to Count II of their complaint. An examination of their brief in detail, i.e., "The Nature of the Case, Points and Authorities, Issues Presented and Argument," fails to disclose any assignment of error on their part as to the trial court's action on Count II which sought relief against the defendant Naven and City Manager Wright. It is also to be noted that the plaintiffs' notice of appeal is of a general nature and fails to specify any particular error. Ordinarily the failure to urge or discuss an assignment of error will be considered an abandonment or waiver thereof, and an assignment of error will be regarded as waived and no consideration will be given to it where it is not argued or briefed. See Appeal and Error, 3 I.L.P., sec. 852, p. 110, and City of Lawrenceville v. Max-well, 6 Ill. 42, 126 N.E.2d 671.

• 2 There has been a failure of the plaintiffs to comply with Supreme Court Rule 341 (Ill. Rev. Stat., ch. 110A, sec. 341) in that the rule specifically requires an appellant to set forth in his brief a statement of the issue or issues presented for review. To hold that failure to comply with this requirement will constitute an abandonment of an assignment of error may at first blush appear to be a harsh sanction, but upon reflection such a result should naturally follow, for to hold otherwise would seriously prejudice the appellee and be quite unfair to the trial court and the reviewing court. Neither the appellee or this court should have the burden of speculating as to what possible errors may have been committed. In the instant case the defendant Naven and the City Manager Wright have no way of knowing what issues they are confronting on appeal and thereby they have been deprived of the right to respond to arguments and authorities which should have been briefed by the plaintiffs. Appellees are not required to be placed in a position where they must be ready to present arguments and authorities ...


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