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People Ex Rel. Fahner v. Testa

OPINION FILED FEBRUARY 10, 1983.

THE PEOPLE EX REL. TYRONE C. FAHNER, ATTORNEY GENERAL, PLAINTIFF-APPELLANT,

v.

JOSEPH D. TESTA, INDIV. AND D/B/A STERLING ESTATES MOBILE HOME PARK ET AL., DEFENDANT-APPELLEE. — (JOSEPH D. TESTA, PLAINTIFF,

v.

ERNEST GLASGOW ET AL., DEFENDANTS.)



Appeal from the Circuit Court of Cook County; the Hon. Joseph Wosik, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Tyrone C. Fahner, the Illinois Attorney General, appeals an order of the trial court dismissing his first amended complaint against defendant, Joseph Testa, charging him with violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121 1/2, par. 261 et seq.) and the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). The following issues are raised for review: (1) whether the amended complaint states a cause of action for violations of the consumer fraud and mobile home statutes, and (2) whether the cause of action abated upon Testa's death.

On May 21, 1980, defendant filed a complaint for forcible entry and detainer against Ernest and Donna Glasgow and Douglas and Tammie Hanson. The Glasgows, tenants of defendant's mobile home village, had allowed the Hansons to move into their mobile home. On July 3, 1980, the Illinois Attorney General, plaintiff, filed a complaint for injunctive and other relief against defendant. These two causes were consolidated on October 16, 1980.

On November 25, 1980, plaintiff filed his first amended complaint for injunctive and other relief against defendant, the owner/operator of Sterling Estates Mobile Home Village. Defendant bought and sold new and used mobile homes as Testa Mobile Home Sales. Both businesses are located in Justice, Illinois. The complaint charged that defendant told certain of his mobile home tenants that they could not sell their homes unless the homes were removed from the village after sale. Defendant offered to buy certain of their homes at prices that were as much as one-half below the prices offered by potential purchasers. Defendant attempted to evict certain tenants and purchasers of the homes of former tenants and denied leases to potential purchasers. There was no comparable mobile home village in the vicinity. Plaintiff alleged that defendant's acts were unfair or deceptive, in violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121 1/2, par. 262). Plaintiff asked that the court adjudge defendant's conduct an unfair practice, that defendant be required to notify tenants of their right to sell their homes and not face eviction, and that defendant be required to inform tenants of the standards for prospective tenants and for having a mobile home remain in the village. Plaintiff asked a penalty of $50,000 and that defendant be enjoined from requiring tenants to sell to him or face eviction.

In count II, plaintiff charged that certain tenants were threatened with eviction after they filed complaints with the consumer protection division of the Office of the Attorney General for violations of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). Plaintiff alleged that requiring tenants to prepay an entire year's rent for a year-to-year lease was a violation of section 6 of that act (Ill. Rev. Stat. 1979, ch. 80, par. 206). Further, defendant interfered with the tenants' right to sell their homes by refusing to offer leases to prospective purchasers. Plaintiff asked that the court adjudge defendant's conduct a violation of the mobile home statute, that he be required to offer leases for a period of not less than 12 months, that he be enjoined from threatening or trying to evict tenants who complain to government agencies of violations of the mobile home statute, and that he not be allowed to interfere with the tenant's right to sell his mobile home by arbitrarily refusing tenancy to prospective purchasers.

In count III, plaintiff complained that defendant had failed to comply with a subpoena and notice to produce. Plaintiff asked that the court order compliance and enjoin defendant from conducting his business.

On July 23, 1981, Testa's attorney filed a motion suggesting death and other relief. On June 29, 1981, Testa had died as a result of injuries suffered when a bomb exploded in his car. At a hearing on defendant's motion to dismiss plaintiff's amended complaint, held on November 23, 1981, the trial court made the following findings:

(1) The complaint does not state a cause of action under either the consumer fraud or mobile home statute.

(2) The tenants are not consumers.

(3) Under the Mobile Home Landlord and Tenant Act there is no right to on-site sale of a mobile home.

(4) Sterling Estates leases are not void or voidable.

(5) The death of Testa abated the cause of action.

The trial court dismissed the complaint with prejudice although it acknowledged that the tenants might have a cause of action at law for damages. Plaintiff appeals.

The first issue raised by this appeal is whether the amended complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121 1/2, par. 261 ...


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