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Carter v. Mueller





Appeal from the Circuit Court of Cook County; the Hon. Paul P. Preston, Judge, presiding.


Plaintiff Elizabeth Carter brought suit against defendants for allegedly inducing her to lease an uninhabitable apartment on the basis of various false representations. The four count amended complaint alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 261 et seq.) (count I), common law fraud (count II), breach of implied warranties of habitability and quiet enjoyment (count III), and wilful and wanton misconduct (count IV). Defendants filed a counterclaim seeking damages for unpaid rent and for property damage. After a bench trial, the trial court entered judgment on count III in favor of plaintiff and against defendants in the amount of $500. The court granted judgment in favor of defendants on counts I, II and IV and in favor of the plaintiff on the counterclaim. Plaintiff appeals from that portion of the judgment entered in favor of defendants on counts I, II and IV. Defendants have not appealed from the judgment in favor of plaintiff on the counterclaim.

At trial, plaintiff testified that on March 2, 1981, she discussed renting an apartment with the rental agent, Marianne Naples, at Cambridge Square Apartments. Plaintiff asked whether any two-bedroom units were available. Naples indicated that there were and gave her the key to a two-bedroom model apartment. The model was clean and painted and contained a modern stove and refrigerator. Plaintiff told Naples that she wanted an apartment with a southern exposure. Naples pointed on a map to an apartment facing south and indicated that such an apartment was available. Plaintiff asked to see the apartment but was told that she could not because Naples did not have the key. Plaintiff returned the next day and again was told that she could not see the apartment for the same reason. Plaintiff asked Naples whether the apartment would be thoroughly cleaned and painted and was told that it would be "in perfect condition, just like the model" apartment. Plaintiff gave Naples a check for $100 to hold the apartment and as a partial payment of the security deposit. On March 10, 1981, plaintiff signed a lease and delivered a check for $560 to Naples for the first month's rent and the balance of the security deposit. At this time plaintiff again asked whether "everything was going to be taken care of in the apartment" and was assured by Naples that it would be. On March 27, 1981, plaintiff talked with defendant Mueller at the apartment building. He told her that everything had been done except the carpet cleaning. He gave her the keys to an apartment which she discovered faced north rather than south. She told Mueller that a mistake had been made and he replied that he had no other apartments available. Plaintiff did not have an opportunity to inspect the apartment until the next day when she moved in.

When she moved in, she discovered that outside the apartment proper, the doorbells, mailbox and security door were all broken. The apartment itself was filthy. The carpet was dirty and smelled terrible and was ripped by the door. Litter was strewn about the apartment and the windows were unwashed. In one bedroom a window was broken. The walls had not been cleaned but instead had been painted over in the spots where they were dirty. There was a big hole in one bedroom door. The oven and refrigerator were not operational. The refrigerator was "filthy with decayed food in it [and] [m]old all over it." The bathroom had never been cleaned and the toilet would not stop running. There was extremely low water pressure with no hot water. The apartment was infested with cockroaches and silverfish.

Despite these defects, plaintiff moved into the apartment because she had no other place to go. She stayed for three days, during which she was able to obtain a working refrigerator from another apartment. She told defendant Mueller that she wanted her money back because the apartment was neither the one she was promised nor in the condition she was promised. No repairs were made during her stay in the apartment and on March 31, 1981, she moved out.

In an offer of proof, plaintiff stated that it cost her $50 to move out of the apartment. The trial court also sustained objections to questions concerning whether plaintiff would have moved into the apartment had she seen its condition, and how she felt when she saw the apartment's condition.

On cross-examination plaintiff testified that although she had walked through the rooms of the apartment prior to moving in, she had not examined the apartment.

Marianne Naples, the rental agent, testified on behalf of plaintiff. She stated that she was employed by defendant George F. Mueller & Sons, Inc., at Cambridge Square Apartments from November of 1980 until July of 1981 as a rental agent. Arnold Mueller instructed her to do certain things when renting apartments to prospective tenants. She was told to show them the model apartment and to say that she did not have the key to the apartment that she was actually leasing. Mueller told her that she could not rent to blacks. The trial court sustained defense objections to questions concerning defendants' policies for handling complaints from other apartments and pertaining to defendants' patterns and practices of business. Naples confirmed plaintiff's testimony concerning the conversations leading to plaintiff's signing of the lease. She admitted that she had at all times a pass key to the apartment leased to plaintiff. When asked whether she knew whether the apartment would be painted and cleaned to look like the model, the trial court sustained defendants' objection on the ground that "[s]he can't possibly tell us what's going to happen tomorrow morning * * *." Naples was allowed to testify that she knew from personal observation that the apartment's actual condition did not conform to that of the model.

On cross-examination Naples testified that she had delivered to defendant Mueller the checks which she had received from plaintiff for the apartment.

Michael Murphy testified on plaintiff's behalf. He stated that he is married to plaintiff's mother. He assisted plaintiff in moving into Cambridge Square Apartments on March 28, 1981. He corroborated the testimony of plaintiff and Naples concerning the dilapidated condition of the apartment.

Plaintiff thereupon rested her case. Defendants also rested without presenting any testimony. The trial court then found that plaintiff should recover $500 for count III. The court further stated as to the tort counts that "[t]here was no tort obligation" and that "an obligation of a tenant [is] to see that the apartment is spic and span before she moves in." The court found against plaintiff on counts I, II and IV, and against defendants on the counterclaim. Plaintiff appeals from that portion of the trial court's judgment which denied her any relief under counts I, II and IV.


The first issue which plaintiff presents for review is whether the trial court's ruling that plaintiff had failed to prove fraud and deceit is contrary to the manifest weight of the evidence. The supreme court has held that:

"the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as `fraud and deceit' or `deceit') are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citations.] Furthermore, the reliance by the other party must be ...

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