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03/01/94 PEOPLE STATE ILLINOIS EX REL. ILLINOIS

March 1, 1994

PEOPLE OF THE STATE OF ILLINOIS EX REL. ILLINOIS DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLEE,
v.
JOHN WALLISER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 92 LM 7851. Honorable Gilbert Niznik, Judge Presiding

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice.

The opinion of the court was delivered by: Mccuskey

Justice McCUSKEY delivered the opinion of the court:

The defendant, John Walliser (Walliser), appeals from a judgment of the circuit court of Will County awarding possession of a rental house to the Illinois Department of Transportation (IDOT) as a result of Walliser's failure to pay rent. At the trial of this forcible entry and detainer action, the trial court prohibited Walliser from asserting certain defenses. The court ruled that Walliser's defenses were not germane to the issues of superior possession rights or whether Walliser owed rent to IDOT. On appeal, Walliser argues the trial court committed error in failing to join a necessary party to the action and in excluding his defenses. For reasons which follow, we affirm the judgment.

I. FACTS

Walliser is the sole shareholder and director of J. Walliser Ltd., an Illinois corporation (the corporation). The corporation is in the business of designing and building residential homes. The corporation built a home in Homer Township, Will County, Illinois (Walliser's home), in which Walliser has lived since June 9, 1989. Walliser used this home as a model to generate other home sales. The corporation stored its business equipment in Walliser's home. On August 30, 1989, Walliser purchased a five-acre parcel (the parcel) located approximately 500 feet west of his home for the purpose of continuing the corporation's business. At the time Walliser purchased the parcel, local zoning maps indicated the parcel would be zoned for residential use in the future. Walliser sought to have the parcel rezoned for residential and commercial use. He was ultimately unsuccessful in this endeavor due to sewage problems and the parcel's proximity to the right-of-way for a proposed federal interstate highway project (the right-of-way).

For approximately eight months, Walliser unsuccessfully attempted to sell his home. In April 1990, Walliser became aware that IDOT had shifted the right-of-way. During that same month, Walliser sent a letter to IDOT explaining his difficulty in selling his home and requesting that IDOT purchase the property. On May 18, 1990, IDOT sent a letter to Walliser indicating that his home was located directly in the right-of-way's path. In a letter dated June 25, 1990, IDOT informed Walliser that due to a slight shift of the right-of-way's location, a small part of the northern end of the parcel was also within IDOT's right-of-way. IDOT later agreed to purchase this portion of the parcel.

On June 26, 1990, Walliser met with IDOT representatives at his home. At this meeting, IDOT explained the available relocation benefits and assistance, including aid in locating and purchasing a replacement home. Walliser completed a Project Relocation Plan Interview Form to provide IDOT with information for his impending relocation. On this form, Walliser indicated that he did not wish to purchase a home, but rather preferred to construct a new residence for himself and his family. Walliser told IDOT that he wished to build the new home on the parcel.

On August 14, 1990, IDOT appraised Walliser's home at $188,000. IDOT's Bureau of Land Acquisition approved the appraisal on August 24, 1990. In a letter dated September 10, 1990, IDOT gave formal notice to Walliser that the right-of-way would require IDOT's purchase of his home and his eventual relocation. The letter indicated that Walliser might be entitled to reasonable moving expenses and a $7,900 supplement to aid in purchasing a replacement home. Pursuant to its regulations, IDOT computed this amount by locating three similar homes in the area. IDOT then calculated the difference between the appraised value of Walliser's home and the home which IDOT found to be most functionally similar to Walliser's home. IDOT stated in the letter that it anticipated Walliser's home would be acquired by IDOT as a result of the right-of-way construction on or about March 31, 1991. Finally, pursuant to IDOT's regulations, the letter stated that IDOT was required to give Walliser 90 days' general notice before the home was actually needed for the right-of-way construction. IDOT attached to the September 10 letter a formal offer to purchase Walliser's home for $188,000. A detailed, itemized statement of available relocation benefits was also attached to the letter.

On September 11, 1990, Walliser again met with IDOT representatives at his home. At this meeting, IDOT again explained the relocation assistance program to Walliser. The representatives also informed Walliser of the availability of three similar homes located in Lockport, including the home used to compute Walliser's purchase supplement. Walliser rejected all of these homes and again expressed his preference to build a replacement home on the parcel. The corporation did not request relocation benefits on its own behalf or participate in the negotiations for the sale of Walliser's home.

On January 29, 1991, Walliser conveyed his home to IDOT in exchange for a payment of $188,000. On April 15, 1991, Walliser and IDOT executed a lease agreement. Under the terms of the lease, Walliser agreed to rent the home from IDOT so he could continue to maintain the location as his family's residence and storage facility for the corporation's equipment. During the lease period, Walliser was to construct his replacement home. The lease period ran from May 1, 1991 to April 30, 1992. Walliser agreed to pay rent totalling $1,125 per month. The corporation was not a party to the lease. Walliser paid rent on the lease in a timely fashion through August 1991, but made no further payments following that date.

In May 1991, Walliser began to experience financial difficulties. On May 14, 1991, Walliser spoke by telephone to Michael Cullian, the IDOT representative managing his relocation. In response to Walliser's request for relocation benefits, Cullian said Walliser would have to purchase a home for an amount in excess of $188,000 in order to receive any relocation benefits. Cullian also explained that IDOT would pay for reasonable moving expenses. Walliser explained he had exhausted his financial resources in his attempts to rezone and develop the parcel. As a result of the adverse zoning decisions, Walliser was unable to construct a replacement home on the parcel. Also, due to lack of funds, Walliser did not construct a replacement home at any other location.

Meanwhile, IDOT grew increasingly impatient with Walliser's failure to pay rent. In letters dated January 14, 1992; February 7, 1992; and April 28, 1992; IDOT demanded payment of the past-due rent. On May 7, 1992, the attorney general, on IDOT's behalf, executed a claim for back rent and a five-day notice of termination of Walliser's tenancy. This notice was served upon Walliser on June 17, 1992. The next day, IDOT filed a complaint in forcible entry and detainer against Walliser to regain possession of the home and to collect past-due rent. The complaint did not name the corporation as a defendant.

After IDOT served Walliser with notice of termination of tenancy, he again attempted to seek relocation benefits. In a letter dated June 10, 1992, Walliser requested from IDOT a "review of claims" for relocation benefits. IDOT's district engineer responded by ...


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