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07/11/95 AMERICAN APARTMENT MANAGEMENT COMPANY v.

July 11, 1995

AMERICAN APARTMENT MANAGEMENT COMPANY, INC., AS AGENT, PLAINTIFF-APPELLANT,
v.
VICKEY PHILLIPS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable D. Adolphus Rivers, Judge Presiding.

Rehearing Denied July 27, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Plaintiff American Apartment Management Co., Inc. (American), filed this action for possession of an apartment pursuant to the forcible entry and detainer statute. The suit was predicated upon defendant Vickey Phillips' (Phillips) alleged breach of certain provisions of her lease. The circuit court granted Phillips' motion for summary judgment, and American appealed. For reasons that follow, we affirm.

On May 14, 1992, American as lessor and Phillips as lessee entered into a written lease agreement for the premises commonly described as 6358 South King Drive, Unit 2D, Chicago, Illinois. Phillips received federal rental assistance through the section 8 housing assistance program, administered by the United States Department of Housing and Urban Development (HUD). Under this program, she was required to pay approximately 30% of her income, approximately $48 per month, towards her rent, with HUD paying the remainder. Phillips lived in the apartment with her three children.

On March 25, 1993, Chicago police officers Stephen Nowells and Elgin Holt set up a surveillance on Phillips' apartment after receiving a complaint from a confidential informant of drug activity there. Their affidavits erroneously state that they did so on May 25, 1993. After watching the apartment for a period of time, and observing several people enter, the two officers asked for and were granted permission to enter. Inside they observed several persons in different rooms of the apartment and spoke with Phillips, who identified herself as the leaseholder. She told them that all the people in the apartment were her friends. While in the apartment, the officers observed a man lying on a bed and told him to stand up. When he did so, they observed a clear plastic bag containing several ziplock plastic bags containing white powder, which they suspected was cocaine. The officers placed this man, who identified himself as Eddie Haster, under arrest. Further investigation revealed that the white powder was crack cocaine, with an estimated weight of 10.5 grams and a street value of approximately $1,500.

In her affidavit, Phillips stated that she knew Haster as the cousin of her ex-boyfriend. Prior to March 25, 1993, she had associated with him only briefly. The visit he paid her on that day was the first and only time he paid a social visit to her apartment. Prior to that day, she had no knowledge that Haster was involved with drugs in any way.

On June 7, 1993, American issued and served upon Phillips a 10-day notice of termination of tenancy, which stated that her lease had been breached in that, "On or about March 23, 1993 Chicago police raided your unit and confiscated crack cocaine from your unit, in violation of P13(B), P13(C) and P23(B) of your Lease." When Phillips failed to vacate the apartment pursuant to this notice, American filed this action for possession of the premises on June 23, 1993.

On October 14, 1993, Phillips filed a motion to dismiss, contending that American's suit must be dismissed as a matter of law because she did not know, or have reason to know, that the alleged violation of her lease would occur. On December 1, 1993, the circuit court denied her motion to dismiss.

On January 19, 1994, Phillips filed a motion for summary judgment, again asserting that she had no knowledge, nor any reason to know, that Haster possessed illegal drugs in her apartment. American filed its response to her motion on March 4, 1994, attaching the affidavits of police officers Nowells and Holt.

On April 13, 1994, the circuit court granted the motion for summary judgment. It found:

"The uncontested facts and record as a whole establish that Defendant was not in violation of paragraphs 13(b), 13(c), or 23(b) of her lease, by virtue of paragraph 29 of her lease, which sets forth the specifics which define drug related activity, which paragraph is controlling."

The court stated "that plaintiff has not and did not comply with the requirements of the lease; and that the purported reason for terminating the tenancy of Vickey Phillips was not in compliance with the lease; and she was not in violation of P29 that I read, with PP13(B), 13(C) and 23(B) of the lease." The court further stated that there was no lease violation because "there was no criminal activity on the part of the tenant in reference to drug-related criminal activity under 29(D)" and that the possession of cocaine by Phillips' guest did not amount to "an event whereby that plaintiff would have the right, under the lease, to terminate the tenancy."

On May 6, 1994, American filed a motion for reconsideration, which was denied by the circuit court on June 16, 1994. In its ruling on the motion, the court elaborated on its prior holding, stating:

"The police never found any controlled substance upon her person or in her apartment that belonged to her. They found it upon the person of a person that was not a lessee of that premises that was a visitor and that under the law cannot be imputed to her."

The court further stated, "All you can prove is that some person in her apartment who didn't live there had drugs upon ...


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