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Fredman v. Clore

AUGUST 24, 1973.

HARRY FREDMAN, PLAINTIFF-APPELLEE,

v.

KENT CLORE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Peoria County; the Hon. ESPEY C. WILLIAMSON, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1973.

Harry Fredman, the plaintiff, is the owner of an apartment building in the City of Peoria and on November 15, 1971, he entered into an oral agreement with Kent and Kathy Clore as to the rental of an apartment within the building on a month to month basis for the consideration of $112.00 per month.

During the months of February, May and August of 1972 inspections were conducted by the Peoria Department of Environmental Development of the apartment rented by the defendants and of the apartment building generally. Certain violations of the Peoria Housing Code were found, i.e., leaking roof, falling plaster, peeling paint, improper wiring, inadequate heat, and plaintiff was notified as to these violations and directed to correct them.

The defendants allege in certain pleadings that the defendant was aware of some of the defects at the time they rented their apartment and agreed to have them remedied. Also the defendants allege that the inspections made by the Department of Environmental Development were made pursuant to their complaint.

On June 13, 1972, the defendants commenced making payment of their rental money to the Director of the Department of Environmental Development pursuant to section 16-113.5 of the Peoria Housing Code, which provides:

"Sec. 16-113.5 After inspection and due notice of violation by the Director, any tenant directly affected by a violation of this Code by the owner or lessor, and so long as the violation exists, may place all rents due to the owner or lessor in escrow with the consent of the Director. The Director shall hold the rents in a separate account, as Escrow Agent for the tenant, until such time as the violation is corrected and if the owner is prosecuted, convicted and fined, until such fine and costs are satisfied in full. Thereupon, the Director shall release the escrowed funds or so much as may remain less any fine and costs to the owner or lessor."

On July 13, 1972, the defendants received from the plaintiff notice to terminate the lease agreement of their apartment within thirty days and the notice was given pursuant to Ill. Rev. Stat., ch. 80, sec. 6, the applicable portion of which states:

"In all cases of tenancy for any term less than one year, other than tenancy from week to week, where the tenant holds over without special agreement, the landlord may terminate the tenancy by thirty days' notice, in writing, and may maintain an action for forcible entry and detainer or ejectment."

On August 15, 1972, the defendants filed in the circuit court of Peoria County a verified complaint for a declaratory judgment and injunctive relief against the plaintiff, the City of Peoria, and the Director of the Department of Environmental Development of the City of Peoria which sought (1) compensating damages in the amount of the sum of rent paid to the plaintiff, (2) a mandatory injunction against the plaintiff directing him to repair the premises in a manner to meet the minimum requirements of the housing code, (3) a permanent injunction enjoining plaintiff from seeking eviction proceedings against the defendants, (4) a mandatory injunction against the Director of the Department of Environmental Development directing him to perform a thorough inspection of the premises and further directing him to report all violations of the Housing Code to the court, (5) a mandatory injunction requiring the Director of Environmental Development to continue accepting rental payments and to place them in escrow, and (6) reasonable attorney fees, court costs and other relief as the court might deem proper.

On August 17, 1972, the plaintiff filed an action which results in this appeal, namely a suit in forcible entry and detainer against the defendants. This suit was predicated upon the statutory provisions found in Ill. Rev. Stat. 1971, ch. 80, sec. 6. The defendants filed a motion to dismiss this action or in the alternative to have it consolidated with their previously filed suit for declaratory judgment and injunctive relief. The plaintiff filed an answer to this motion and also a motion for summary judgment which was supported by affidavit. The defendants filed a reply to the plaintiffs' answer, and both parties filed additional affidavits in support of their various pleadings. Lastly, as far as the pleadings are concerned, the defendants filed an answer and set forth affirmative defenses to the plaintiff's action in forcible entry and detainer.

On November 6, 1972, the circuit court of Peoria County denied the defendants' motion to dismiss or consolidate and granted the plaintiff's motion for summary judgment and possession of the premises in question. This appeal stems from this order of the trial court.

The defendants raise several issues in this appeal, the first of which is that the trial court erred in denying their motion to dismiss the forcible entry and detainer action, or in the alternative consolidating it with the previous action filed by them.

• 1, 2 With this contention of the defendants we do not agree. Their motion to dismiss or consolidate was filed pursuant to Ill. Rev. ...


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