Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/12/96 DEBORAH A. SELVY v. HERBERT A. BEIGEL

September 12, 1996

DEBORAH A. SELVY, JESSIE SELVY, JR., JESSIE SELVY, III, AND SAMUEL B. SELVY, AND CARY R. SELVY, CHANTA M. SELVY, DENARD R. SELVY, ELIJAH V. SELVY, IRVING L. SELVY, KENNETH L. SELVY, LARNELL N. SELVY, MICHAEL R. SELVY, RICKY A. SELVY, AND SHANTIL T. SELVY, BY THEIR NEXT FRIENDS, DEBORAH A. SELVY AND JESSIE SELVY, JR., PLAINTIFFS-APPELLANTS,
v.
HERBERT A. BEIGEL, KEYWAY INVESTMENTS, INC., SIDNEY D. MISSNER, AND SIDNEY D. MISSNER TRUST NO. 244858, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 90-CH-07362. Honorable William Maddux, Jacqueline P. Cox, Judges Presiding.

Released for Publication October 22, 1996.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

The plaintiffs, Deborah and Jessie Selvy and their 12 children (the Selvys), appeal the trial court's order granting the motion for summary judgment of defendant Keyway Investments, Inc. (Keyway). The Selvys sued Keyway, owners of the building in which the Selvys resided, for damages arising from the Selvys' exposure to lead-based paint. Keyway filed its motion for summary judgment, claiming that plaintiffs could not establish a landlord/tenant relationship with Keyway, an essential element of their case. The trial court agreed and granted Keyway's motion. On appeal, plaintiffs argue that: (1) they have raised a genuine issue of material fact as to whether a landlord/tenant relationship existed; (2) they need not establish the existence of such a relationship to support all of their causes of action; and (3) the trial court improperly vacated its order imposing sanctions upon Keyway. We disagree and affirm.

Plaintiffs resided in the third-floor apartment of a building, located at 2452 West North Avenue in Chicago, from 1983 through 1990. When the plaintiffs first moved into the apartment, the Sidney Missner Trust (the Trust) owned the building. During the Trust's ownership of the property, the City of Chicago and plaintiffs repeatedly informed the Trust and its agent, Herbert A. Beigel (Beigel), of the illegal levels of lead-based paint present in the building. The Trust failed to remedy the problem and the Selvy children were diagnosed with and treated for lead poisoning.

The Trust was delinquent in paying real estate taxes on the property. In June of 1989, Keyway obtained an order directing issuance of the tax deed for the apartment building and other properties owned by the Trust. Keyway recorded the deed on August 4, 1989. Nevertheless, plaintiffs claimed that they continued to pay rent to Beigel. Beigel never informed plaintiffs of the change in ownership and held himself out as the owner's agent. Plaintiffs remained in the building until August of 1990, without entering into an oral or written agreement with Keyway.

In July of 1990, plaintiffs filed their initial complaint against Keyway and other defendants, seeking both an injunction and damages stemming from their exposure to lead-based paint. The complaint alleged that Keyway violated the Chicago Residential Landlords and Tenants Ordinance (the Ordinance), breached their implied warranty of habitability, were guilty of negligence and engaged in willful and wanton misconduct. See Chicago Municipal Code ยง 193.1-3 (1989).

In response, Keyway filed a motion for summary judgment, and motions to strike and dismiss plaintiffs' complaint. In its motions, Keyway claimed that plaintiffs' action was barred by the doctrine of res judicata. Keyway argued that the order granting Keyway the tax deed for the property extinguished the Selvys' prior leasehold and therefore resolved the present dispute.

In ruling on Keyway's motions, the trial court first noted that Keyway's summary judgment motion was withdrawn without prejudice. Further, the trial court rejected Keyway's res judicata arguments. As such, the court denied Keyway's motions to strike and dismiss, on the condition that plaintiffs amend their complaint to correct certain technical errors. Plaintiffs amended their complaint in compliance with the trial court's orders and added an additional count of retaliatory eviction under the Ordinance.

Keyway filed both an answer and another motion for summary judgment in response to plaintiffs' amended complaint. In their answer, Keyway asserted a number of affirmative defenses, including their previously rejected res judicata argument. Plaintiffs filed a motion for sanctions, noting that the trial court had repeatedly rejected Keyway's res judicata arguments. Judge Cox granted plaintiffs' motion for sanctions.

In response to Keyway's second summary judgment motion, plaintiffs claimed that the evidence established that Keyway knew of the Selvys' presence in the apartment. Keyway's sole director, officer and shareholder, Steven Dobrofsky (Dobrofsky), testified at his deposition that someone from Keyway may have gone out to the building in which the Selvys resided shortly after obtaining the deed and found that the apartment was locked from the inside. In September of 1989, the City of Chicago filed suit against Keyway and other defendants to force them to abate the lead-based paint contained in certain properties.

Furthermore, Dobrofsky testified that beginning in June of 1989, Keyway would have paid any utility bills relating to the recently obtained properties. Specifically, Keyway paid a $372.59 water bill to the City of Chicago which covered water service for the Selvys' apartment building and the adjoining properties in June of 1990. Dobrofsky stated that he never knew the Selvys occupied the apartment, though he acknowledged that Keyway sometimes allowed tenants to remain in buildings without paying rent to fend off vandalism.

Judge Maddux ruled on Keyway's motion for summary judgment. Judge Maddux granted Keyway's motion as to all of plaintiffs' claims, finding that plaintiffs could not establish the existence of a landlord/tenant relationship. Keyway then filed a motion before Judge Cox to vacate her grant of plaintiffs' request for sanctions. In light of Judge Maddux's ruling, Judge Cox granted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.