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General Parking Corp. v. Kimmel

OPINION FILED DECEMBER 28, 1979.

GENERAL PARKING CORPORATION, PLAINTIFF-APPELLEE,

v.

MARTIN A. KIMMEL, INDIV. AND D/B/A VAN BUREN BOOKSTORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. SULLIVAN, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

On May 3, 1979, General Parking Corporation filed a forcible entry and detainer action against Martin A. Kimmel to recover possession of premises located at 72 West Van Buren Street, Chicago, Illinois. The trial court entered judgment for plaintiff on the pleadings. Defendant appeals.

On appeal, defendant argues that his constitutionally based affirmative defense was sufficient to withstand a judgment on the pleadings and that the trial court therefore erred in refusing to allow a trial on the merits.

We affirm.

Defendant Martin A. Kimmel is an individual doing business as Van Buren Bookstore, an adult bookstore located at 72 West Van Buren Street, Chicago, Illinois. Defendant's uncle Charles Kimmel organized the business in 1960 and operated it until 1972, when Martin Kimmel became the sole proprietor. The premises on which the store was located had been leased since the inception of the business.

Plaintiff General Parking Corporation has owned the premises on which the store is located since 1967 and has leased the premises to the tenants per various three-year lease agreements. The final lease between General Parking and Martin Kimmel expired on April 30, 1979.

Kimmel, however, remained on the premises. Subsequently, on May 3, 1979, General Parking filed a forcible entry and detainer action to regain possession of the premises. Kimmel filed an affirmative defense to this action in which he alleged that General Parking and the city of Chicago entered into a conspiracy to evict him, thereby depriving him of his constitutional rights.

Shortly thereafter, Kimmel filed suit against General Parking and the city of Chicago in the United States District Court for the Northern District of Illinois, Eastern Division, seeking to enjoin General Parking from pursuing the forcible entry and detainer action because of an alleged conspiracy between General Parking and the city to evict defendant and deprive him of his constitutional rights. On May 25, 1979, the district court held a hearing to determine the propriety of issuing a preliminary injunction. Kimmel and General Parking each presented one sworn witness who was subject to cross-examination. After hearing the evidence, the district court made specific findings that General Parking and the city did not conspire to evict Kimmel and did not violate Kimmel's constitutional rights. The court also determined that the lease between General Parking and Kimmel expired on April 30, 1979, and that General Parking should not be enjoined from proceeding with its forcible entry and detainer action. Kimmel's motion for a temporary restraining order and permanent injunction was denied and his complaint was dismissed with prejudice. On June 20, 1979, the district court amended its order and dismissed, without prejudice, that portion of the complaint in which Kimmel sought damages and costs.

Subsequently, on July 11, 1979, the circuit court of Cook County granted General Parking's motion for judgment on the pleadings in the forcible entry and detainer action.

• 1 On appeal, Kimmel argues that his constitutionally based affirmative defense was sufficient to withstand a judgment on the pleadings. While it is true that circuit courts> have jurisdiction over all justiciable matters (Ill. Const. 1970, art. VI, § 9), the defenses which may be raised in a forcible entry and detainer action are limited. Section 5 of the Forcible Entry and Detainer Act provides, in part, that "[n]o matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim, or otherwise * * *." (Ill. Rev. Stat. 1977, ch. 57, par. 5.) The general purpose of a forcible entry and detainer action is to adjudicate the parties' right to possession of the premises, and therefore such proceedings should not be burdened with matters not directly related to the issue of possession. (See, e.g., Clark Oil & Refining Corp. v. Banks (1975), 34 Ill. App.3d 67, 339 N.E.2d 283; Clark Oil & Refining Corp. v. Thomas (1974), 25 Ill. App.3d 428, 323 N.E.2d 479; Bleck v. Cosgrove (1961), 32 Ill. App.2d 267, 177 N.E.2d 647.) The Illinois Supreme Court has defined "germane" as meaning, "closely allied; closely related, closely connected; appropriate." Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 257, 263 N.E.2d 833, 838.

In the instant case, General Parking's suit was based upon Kimmel's unlawful possession of the premises after termination of the lease. However, Kimmel's affirmative defense deals with a wide range of matters which took place over an extended period of time. Included within the scope of his defense were allegations such as the formation of a conspiracy in 1977 between the city of Chicago and other persons to eliminate all adult bookstores in Chicago; the formation and actions of teams of fire and building inspectors who were instructed by the city to find violations of the Chicago Building Code; the purposeful harassment and intimidation of landlords by the inspectors; the use of the building and fire codes to eliminate all adult bookstores within the city in violation of the store owner's constitutional rights; and the participation by General Parking in the alleged conspiracy. Presumably, these and other related allegations asserted in the defense would have been addressed by Kimmel had he been allowed to present his affirmative defense. Proof of these matters would have undoubtedly been lengthy and complex.

• 2, 3 We find that the matters asserted by Kimmel in his affirmative defense were neither germane, relevant, nor related to the question of possession which was at issue in the forcible entry and detainer action. Kimmel's assertions had no bearing on the question of whether he had a property interest in the premises after his lease expired. In fact, Kimmel admits in his brief that the lease expired on April 30, 1979. A tenant who remains in possession after his lease expires becomes a tenant at sufferance whose possession can be put to an end whenever the landlord wishes. (Bradley v. Gallagher (1973), 14 Ill. App.3d 652, 303 N.E.2d 251.) Therefore, Kimmel had no property interests which he could have asserted in his defense.

• 4 Furthermore, the lease between General Parking and Kimmel is commercial in nature. Matters which are considered germane to the issue of possession are construed more strictly in actions involving commercial leases. (Clark Oil & Refining Corp. v. Banks (1975), 34 Ill. App.3d 67, 339 N.E.2d 283.) While it is true that our supreme court has gradually expanded the category of defenses which may be entertained in a forcible entry and detainer action (Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208), it has expressly confined its holding to facts presented to it; occupancy of multiple dwelling units. (50 Ill.2d 351, 367, 280 N.E.2d 208, 218.) Later cases have refused to extend the narrow holding of Jack Spring to commercial leases. Clark Oil & Refining Corp. v. Banks (1975), 34 Ill. App.3d 67, 339 N.E.2d 283, citing Ing v. Levy (1975), 26 Ill. App.3d 889, 326 N.E.2d 51, and Germania Federal Savings & Loan Association v. Jacoby (1974), 23 Ill. App.3d 145, 318 N.E.2d 734.

Kimmel also alleged in paragraph 23 of his affirmative defense that the action brought by General Parking was tantamount to a retaliatory eviction. He argues that General Parking filed the forcible entry and detainer action in retaliation for Kimmel's exercise of his constitutional rights and that this and other acts complained of in his defense are against the public policy of Illinois as set forth in section 1 of "An Act to protect the rights of tenants to ...


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