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Rodriguez v. Owaynat





Appeal from the Circuit Court of Cook County; the Hon. Anne O'Laughlin Scott, Judge, presiding.


Defendant Mark Owaynat appeals from a judgment of the circuit court, after a bench trial, in which he was ordered to vacate the premises occupied and operated by him as a tavern and to pay plaintiff $1,930 for rent and costs. On appeal, defendant contends: (1) that the trial court erred in refusing to vacate the judgment where he established during post-trial proceedings the existence of a meritorious defense which he presented with due diligence; (2) that the trial court erred in ruling that payments made by him were not a defense to the forcible entry and detainer action; and (3) that the evidence supported his claim that a fraud was committed upon the court, and plaintiff should have been required to answer the charge at an evidentiary hearing on the issue.

The record indicates that on November 19, 1984, plaintiff initiated a forcible entry and detainer action (Ill. Rev. Stat. 1983, ch. 110, par. 9-101 et seq.) against defendant, wherein he alleged that he was entitled to possession of the premises unlawfully occupied by defendant and requested damages for rent owed, a security deposit past due and water and sewer expenses. On December 21, 1984, trial was held where plaintiff was represented by counsel while defendant appeared pro se.

Plaintiff testified that he entered into a 10-year lease agreement, dated June 15, 1984, which had been drafted by defendant. Under its terms, defendant was to rent certain premises from plaintiff to be operated as a tavern. Plaintiff stated that defendant was to pay him $386 per month as rent plus a security deposit of $1,000. To date, however, defendant had not paid any money.

Defendant testified that the parties had agreed that defendant would repair the premises to alleviate all building code violations. Defendant explained that he made all repairs necessary in the building, from which he had saved the receipts and added that he was still owed money by plaintiff for that work. Defendant further asserted that he paid plaintiff a total of $9,000 to purchase the building, but stated that because plaintiff had not paid $7,000 in taxes due on the property, the deal was never closed.

Plaintiff responded that the lease on its face was clear and contained no mention of an option to purchase and no provision that defendant was to be paid for repairs to the premises. To the contrary, the relevant provision of the lease provided:

"Lessor [plaintiff] states that there are no building/business violations and that he will pay for any violation corrections."

John Masterly testified that he represented defendant in the contractual arrangement between defendant and plaintiff for the sale of the premises leased by defendant from plaintiff. Masterly stated that defendant had paid plaintiff $3,000 towards the purchase of the building and explained that rent and other items were to be prorated at the closing. Masterly was not able to produce a copy of this contract, but he claimed to have copies of the checks tendered to plaintiff.

The circuit court found that: plaintiff had presented a prima facie case, proving that defendant was in possession of the premises; rent was owing but not paid; proper notice was served on defendant to vacate; defendant had failed to present evidence of an agreement for sale and was not entitled to a set-off pursuant to such agreement; and, defendant had failed to prove that building code violations existed which he corrected. Accordingly, the court denied defendant relief pursuant to this defense. Thereafter, the court found in favor of plaintiff, ordering defendant to vacate the premises and to pay plaintiff $1,930 plus costs.

Defendant subsequently retained counsel and filed a timely motion to vacate. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203(a).) At the hearing on this motion, defendant presented written statements by city inspectors indicating that they had discovered several business and building code violations on the premises. Defendant also presented a receipt showing that a $6,000 down payment was made to plaintiff toward the purchase of the premises. *fn1 Defendant tendered to the court a variety of bills totaling $6,018 incurred by him in repairing the premises. He stated again that a contract for sale existed between the parties, but he was not able to produce it. He added that the sole purpose of the lease was to procure a liquor license in the event that the real estate sale contract failed. Defendant contended that plaintiff's perjured testimony amounted to a fraud and asked that the judgment be vacated.

The circuit court found that defendant's post-trial evidence was insufficient to vacate the judgment. The court stated that in granting such relief it must find that newly discovered evidence, unobtainable at the time of trial, was presented; here, however, post-trial evidence presented by defendant could have been procured in time for trial and held that to grant defendant's motion to vacate in effect would be to give him a second chance to gather evidence. The court also commented that in a forcible entry and detainer action, its function was to hear issues of possession and rent arrearage only and therefore found that the other matters concerning an alleged contract for sale had not been adjudicated at trial and consequently the court would not now resolve the matter. Defendant's motion to vacate the judgment was denied.


On appeal defendant contends that the circuit court erred in refusing to vacate its judgment because he established the existence of a meritorious defense and acted with due diligence. Plaintiff responds that because defendant failed to allege any trial errors, the circuit court properly denied his motion.

• 1 The purpose of a motion to vacate judgment is to alert the circuit court to errors it has committed and afford an opportunity for their correction. (In re Marriage of Sanborn (1979), 78 Ill. App.3d 146, 396 N.E.2d 1192; Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App.3d 719, 365 N.E.2d 115.) The circuit court may vacate a judgment even absent due diligence, however, where justice and fundamental fairness require such relief. Czyzewski v. Gleeson ...

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