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Perry v. Evanston Ymca

OPINION FILED JANUARY 23, 1981.

STUART PERRY ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

EVANSTON YOUNG MEN'S CHRISTIAN ASSOCIATION ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN L. CROWE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

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 23 1/2-4.207 of the Evanston Residential Landlord and Tenant Ordinance (Code of the City of Evanston (1957, as amended), ch. 23 1/2, § 23 1/2-1.01 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 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.

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 23 1/2-1.202(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.

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 ...


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