APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
510 N.E.2d 986, 157 Ill. App. 3d 919, 109 Ill. Dec. 918 1987.IL.851
Appeal from the Circuit Court of Cook County; the Hon. Edward R. Burr, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Defendant appeals from an order of possession of certain premises entered on October 23, 1985, pursuant to a jury verdict rendered against him on September 13, 1985, contending that: (1) the trial court lacked subject matter jurisdiction because of Standard Management Realty Company's (Standard) failure to properly serve notice of termination of tenancy as to apartments 704 and 706; (2) the trial court lacked subject matter jurisdiction because there was a prior pending matter between the same parties in Federal court; (3) the doctrine of res judicata bars the institution of the cause below because this action was filed while the same issues were pending in the district court as to apartment 706; (4) the acknowledgement of the tenancy by the plaintiff through its payment of utility bills after its service of notice deprived the trial court of jurisdiction; (5) the trial court erred in denying his motion for a directed verdict at the close of Standard's evidence; (6) the verdict that no interdependent covenants existed between defendant and plaintiff was against the manifest weight of the evidence; and (7) the trial court erred in instructing the jury.
The following facts are pertinent to our Disposition. On September 29, 1984, Johnson and Standard executed a lease for certain premises known as 2 East 8th Street, apartment 704, for a term of two years commencing on November 1, 1984. Standard informed Johnson in October 1984 that the apartment would not be completed on November 1 because of ongoing construction. Plaintiff was given temporary rent-free accommodations in an adjoining apartment until such time as the demised premises were ready for occupancy. Apartment 704 was completed on December 19, 1984. However, because of numerous complaints received by plaintiff respecting defendant's conduct, defendant was denied permission to move into apartment 704. The conduct complained of included yelling in the hallways, abusive language towards tenants and loud music at all hours. On December 20, 1984, Johnson sent Standard a letter indicating that he wished to move into apartment 704 pursuant to the lease.
On January 11, 1985, defendant filed a complaint in the United States District Court, Northern District of Illinois, Eastern Division, alleging racial discrimination and alleging a valid lease with regard to apartment 704. Plaintiff's answer denied the allegations of discrimination and affirmatively pleaded termination of the lease for apartment 704 and counterclaiming for possession of apartment 706. Johnson had been served with a notice to relinquish possession of apartment 706 and had been tendered a check returning his first month's rent and security deposit.
On March 20, 1985, Standard filed a forcible entry and detainer suit in the circuit court of Cook County alleging that it was entitled to possession of apartment 706. On April 26, 1985, Johnson filed a motion to dismiss pursuant to section 2-619(a)(3) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(3)) in which he alleged that the same action was pending between the same parties in the United States District Court. The June 3, 1985, scheduled hearing on the motion was continued to June 26, 1985. After Standard voluntarily dismissed its counterclaim in the Federal court on June 13, 1985, its motion to dismiss was denied.
On August 12, 1985, Johnson's motion to dismiss this cause pursuant to section 2-619(a)(1) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(1)) alleging that the trial court lacked jurisdiction to entertain the cause because it had previously been filed as a compulsory counterclaim was denied on August 19, 1985.
He then filed his answer on August 21, 1985, denying Standard was entitled to possession of apartment 706. As an affirmative defense he alleged breach of condition precedent and retaliation within the meaning of Federal law and counterclaimed, alleging racial discrimination in two counts. Standard moved to strike Johnson's affirmative defense and counterclaims on the grounds that the counterclaims were pending in Federal court and the affirmative defenses were not germane to the issue of possession of apartment 706. On August 27, 1985, the trial court struck all of Johnson's affirmative defenses and counterclaims and granted him leave to amend.
On September 3, 1985, Johnson filed a motion to dismiss under section 2-619(a)(9) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)) alleging that Standard had continued to pay utilities on behalf of Johnson subsequent to the service of the 30-day notice, thereby reaffirming the tenancy which was denied on September 9, 1985. Johnson also filed his answer and affirmative defense alleging breach of condition precedent and counterclaimed for retaliation pursuant to Federal law.
The cause went to trial on issues of possession and the affirmative defenses of retaliation and breach of condition precedent. Johnson's motion for a directed verdict at the end of all of the evidence was denied. Instructions and special interrogatories were tendered to the jury over Johnson's objection. The jury returned a verdict in favor of Standard on September 13, 1985. Johnson filed a motion for judgment notwithstanding the verdict, or in the alternative for a new ...