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06/17/87 Gertrude Benton, v. Zirl Smith

June 17, 1987

GERTRUDE BENTON, PLAINTIFF-APPELLANT

v.

ZIRL SMITH, AS EXECUTIVE DIRECTOR OF THE CHICAGO HOUSING AUTHORITY, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

510 N.E.2d 952, 157 Ill. App. 3d 847, 109 Ill. Dec. 884 1987.IL.833

Appeal from the Circuit Court of Cook County; the Hon. Francis J. Reilly, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Gertrude Benton appeals from a trial court order dismissing her suit against defendants Chicago Housing Authority , its executive director Zirl Smith, and its board chairman Renault Robinson. The trial court found that the present suit was res judicata as a result of a consent decree entered in an earlier class action in which plaintiff was an unnamed class member. On appeal, plaintiff contends that the doctrine of res judicata does not bar this action because the consent decree was not a decision on the merits; the class suit involved a different cause of action; notice of settlement in the class action was inadequate; and on the basis of equitable principles.

Pursuant to a written lease, plaintiff rents an apartment in the Cabrini Green Housing Project in Chicago. The project is run by defendants. The complaint alleges that in November 1983 the heat in the apartment stopped working. On December 24 or 25, 1983, the water pipes froze and burst. Water spilled throughout the apartment, damaging plaintiff's personal property, including clothing, a television set, beds and linens.

Defendants provided plaintiff with a property damage form, which she completed and returned to CHA personnel. Shortly thereafter, a member of the CHA staff informed plaintiff that the form needed to be notarized. Plaintiff had the form notarized and then resubmitted it to the CHA. Subsequently, the CHA informed plaintiff that it had lost the form and requested that she submit a new form. On February 3, 1984, plaintiff resubmitted the form, which reported personal property damages of $1,500. CHA subsequently sent an employee to examine plaintiff's personal property.

Meanwhile, in March 1984, five other Cabrini Green tenants filed a class action suit against defendants in Jones v. Chicago Housing Authority. The Jones complaint alleged that the five named plaintiffs improperly had been denied rent abatements. It alleged further that defendants had established a policy and practice of noncompliance with their duties under paragraph 10 of the standard lease. Paragraph 10 provides that defendants must grant rent abatement where the premises are damaged to the extent that conditions create a hazard to the life, health or safety of the occupants. The complaint alleged that defendants failed to accept written requests for rent abatement; failed to conduct investigations regarding defective conditions; failed to repair hazardous conditions; failed to offer alternative accommodations; and failed to grant rent abatements in proportion to the seriousness of the damage and loss in value of the dwelling.

Count I of Jones sought a declaratory judgment that the policy and practices of defendants violated duties owed the class members under paragraph 10 of the lease and an order requiring defendants to promulgate standards and rules to comply with duties owed under paragraph 10. Count II in Jones, which was subsequently dismissed, sought a determination as to the amount of rent abatement to which the individually named plaintiffs were entitled pursuant to paragraph 10 of the lease.

On June 13, 1984, the trial court in Jones certified the class of all tenants who have, since November 1, 1983, filed written requests for rent abatement, or who will file such requests, based upon conditions in CHA buildings which are hazardous to their life, health and safety.

In the present case, on November 5, 1984, a CHA attorney wrote to Benton stating that her claim for property damages was denied. The letter continued, "If you are interested in pursuing an action for negligence and to recover damages, you should seek appropriate legal action through the courts."

In Jones, a notice of proposed settlement of the class action was mailed to plaintiff here and other class members in late 1984. The notice stated that in the pending class action plaintiffs sought a declaration that the CHA failed to grant tenant requests for rent abatement, pursuant to the procedures required by paragraph 10 of the lease, when conditions in the apartments were hazardous to the life, health and safety of the tenants. Three subclasses were created. Subclass A consisted of the named representatives and tenants who requested rent abatement and had placed their rent in escrow pending settlement of Jones. These plaintiffs would receive a 50% rent abatement. The notice stated that subclass A plaintiffs' "participation in this settlement shall constitute a release of any and all claims, including breach of the implied warranty of habitability, which are relevant to the pending eviction . . . for non-payment of rent."

Subclass B, of which Benton was a member, consisted of tenants who had requested rent abatement but had not placed their rent in escrow. These plaintiffs would receive a 45-day rent credit. The notice stated: "Plaintiffs' counsel [Legal Assistance Foundation of Chicago], as a condition of settlement in the Consent Decree, have agreed not to prosecute any warranty of habitability claims that members of settlement class B have for the period of time from November 1, 1983 up to December 1, ...


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