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10/05/88 Bismarck Hotel Company, v. Kimberly A. Sutherland

October 5, 1988

BISMARCK HOTEL COMPANY, PLAINTIFF-APPELLEE

v.

KIMBERLY A. SUTHERLAND, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

529 N.E.2d 1091, 175 Ill. App. 3d 739, 125 Ill. Dec. 15 1988.IL.1504

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Cawley, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

This is the second appeal resulting from three forcible entry and detainer actions filed by plaintiff, Bismarck Hotel Co., against defendant, Kimberly A. Sutherland, concerning defendant's lease and occupancy of a suite of offices in plaintiff's building at 134 N. La Salle in Chicago. Plaintiff filed its first forcible entry and detainer action against defendant on June 19, 1979. In the appeal resulting from that action, this court found that, upon expiration of defendant's lease on December 31, 1978, the parties' conduct revealed the creation of a month-to-month tenancy of suite 700 and therefore entered summary judgment for defendant. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 172-73, 415 N.E.2d 517.) We also affirmed orders striking defendant's counterclaim and denying her motion to file an amended counterclaim on the ground that they involved claims for damages which were not germane to the distinctive purpose of a forcible entry and detainer proceeding, i.e., to adjudicate the right to possession of premises. Bismarck Hotel Co., 92 Ill. App. 3d at 174.

On March 17, 1981, the circuit court dismissed plaintiff's second forcible entry and detainer action, which plaintiff had filed on February 3, 1981, pursuant to a finding that "[plaintiff's] suit is premature since no mandate has been issued or filed in a matter pending before the supreme court of Illinois."

This appeal results from the third forcible entry and detainer action by plaintiff against defendant, filed on June 19, 1981. After a bench trial in the circuit court of Cook County, the trial court entered a final judgment order on March 17, 1987, awarding plaintiff $3,602.20 in back rent from defendant. On June 26, 1987, the trial court reduced the judgment to $2,902.20 pursuant to defendant's post-trial motion, reflecting a vacation of the award to plaintiff of rent from August 1981.

Plaintiff's amended complaint in this action, filed on February 17, 1982, alleged that defendant: (1) was a month-to-month tenant of suite 700 from December 1980 to August 1981; (2) was obligated to pay plaintiff $700 per month plus the cost of utilities; (3) had failed to pay the utilities for that period or any rent from January through April 1981; (4) owed plaintiff $210.19 for utilities and $2,800 in rent; (5) vacated the premises without notice to plaintiff on or about July 28, 1981; and (6) thus owed plaintiff rent for the month of August 1981. Plaintiff made no claim for possession in the amended complaint.

Defendant's fourth amended counterclaim in the instant action is mainly in issue here. Therein, defendant purports to allege claims for: intentional interference with the quiet enjoyment of her leasehold (count I); punitive damages relating to count I (count II); breach of the covenant of quiet enjoyment (count III); actual eviction in contract (count VI); malicious use of process (count VII); and a civil rights violation under the Illinois Constitution (count XIII). Counts IV and V, although appearing in the fourth amended counterclaim, had been stricken from defendant's third amended counterclaim. The fourth amended counterclaim combined counts VII through XII of the third amended counterclaim into one count VII. Counts I, II, III and VI were essentially based on plaintiff's alleged: (1) refusal to allow defendant to sublet any portion of suite 700 from September 15, 1979, to July 26, 1981, when defendant vacated the suite; (2) refusal to allow defendant to place her associates' or employees' names on the outer door of suite 700 or the building lobby directory; (3) removal of the lettering "JANICE I. MILLETTE, ATTORNEY AT LAW" from the outer door of suite 700 without defendant's knowledge or consent; and (4) serving defendant with several notices to quit the premises pursuant to plaintiff's filing of the second and instant actions against defendant. The basis of count VII was plaintiff's prosecution of all three forcible entry and detainer actions against defendant. The basis of count XIII was alleged sex discrimination by plaintiff in its dealings with defendant.

Defendant asserted the allegations of count I of her third amended counterclaim, which were identical to those of count I of the fourth amended counterclaim, as her affirmative defenses to plaintiff's amended complaint.

On October 28, 1985, the trial court struck defendant's fourth amended counterclaim pursuant to plaintiff's motion under section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). On March 31, 1986, the trial court denied defendant's motion to reconsider the October 28, 1985, order. On December 22, 1986, the trial court denied defendant's motion to reinstate her third amended counterclaim and struck her affirmative defenses. On March 12, 1987, the trial court denied defendant's motion to reconsider the foregoing orders and granted plaintiff's oral motion in limine to bar defendant from introducing any evidence at trial relating to the allegations of her amended counterclaims and affirmative defenses. On March 17, 1987, the trial court entered a final judgment order for defendant. On June 26, 1987, although it reduced the amount of the judgment, the trial court denied defendant's post-trial motion for judgment or a new trial. Defendant appeals from those orders and the judgment for plaintiff.

Preliminarily, we must address plaintiff's contentions that this court does not have jurisdiction over defendant's appeal and that it is otherwise barred by the doctrines of res judicata, collateral estoppel or the law of the case.

Plaintiff first asserts that defendant's failure to timely appeal the orders dismissing or upholding the dismissal of the fourth amended counterclaim precludes the instant appeal. We conclude that we have jurisdiction over the appeal of those orders due to the trial court's failure to include in any of them the finding that there was no just reason to delay enforcement or appeal required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) to make final judgments in actions involving multiple parties or claims for relief appealable. See Peterson v. Gwin (1959), 17 Ill. 2d 261, 161 N.E.2d 123; Board of Trustees of The University of Illinois v. Timpone (1963), 28 Ill. 2d 525, 190 N.E.2d 786; Chicago Miniature Lamp Works, Inc. v. D'Amico (1979), 78 Ill. App. 3d 269, 397 N.E.2d 138.

Plaintiff next asserts that this court's affirmance of the dismissal of defendant's counterclaim in the first action between the parties on the grounds that the counterclaim raised issues not germane to the distinctive purpose of forcible entry and detainer proceedings, i.e., to adjudicate the right to possession of premises, barred defendant's fourth amended counterclaim in the instant action under the doctrines of res judicata, collateral estoppel and/or the law of the case.

The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent litigation between the same parties or their privies on matters found to be part of the same cause of action. The essential elements of the doctrine are identity of parties, subject matter and causes of action. (In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 891, 511 N.E.2d 895.) The instant action ultimately involved only a claim for rent based on defendant's occupancy of suite 700 for a different period than was at issue in the first action between the parties. As such, there is lacking identity of subject matter and cause of action between this action and the former necessary to apply the doctrine of res judicata.

Collateral estoppel bars relitigation of a fact or question: (a) actually fully litigated in a prior action; (b) necessary to the determination of that action; and (c) upon which a final judgment was rendered. (Ogle v. Fuiten (1983), 112 Ill. App. 3d 1048, 445 N.E.2d 1344, aff'd (1984), 102 Ill. 2d 356, 466 N.E.2d 224.) The question of defendant's right to pursue a counterclaim for damages in an action by plaintiff for arrearages in rent only was neither actually litigated in the prior action nor necessary to the determination reached therein. And the judgments of the trial court and this court therein ...


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