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January 16, 1997

MARY ANAST, Plaintiff,
COMMONWEALTH APARTMENTS, a Limited Partnership; A & R KATZ MANAGEMENT, INC., an Illinois corporation; and LEE ROGERS, Defendants.

The opinion of the court was delivered by: WILLIAMS

 On December 12, 1995, Plaintiff Mary Anast ("Anast") filed a six-count complaint against Defendants Commonwealth Apartments, A & R Katz Management, Inc., and Lee Rogers. Plaintiff alleges that defendants deprived her of her due process rights, breached their lease agreement, violated the Consumer Fraud and Deceptive Business Practices Act, the Fair Housing Act and Rehabilitation Act, and intentionally caused plaintiff to suffer severe emotional distress. Defendants move this court to dismiss plaintiff's complaint under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion is granted in part and denied in part.


 The following facts are taken from the complaint. Defendant A & R Katz Management ("Katz"), Inc. has a contract with defendant Commonwealth Apartments ("Commonwealth") to operate the apartments. Defendant Lee Rogers ("Rogers") was employed by Commonwealth and/or Katz as a building manager for Commonwealth Apartments.

 On July 14, 1992, plaintiff entered into a lease with Commonwealth and Draper and Kramer, Inc., the predecessors of defendant Katz for apartment 1013 at the Commonwealth Apartments located at 2757 North Pine Grove Avenue, Chicago, Illinois 60614. Soon after plaintiff signed the lease, defendant Katz assumed the lease agreement from Draper and Kramer. According to the lease, the total monthly rent for the unit was $ 567. Under the lease, pursuant to HUD Regulations, plaintiff paid $ 117 per month and HUD paid the balance, $ 450, of the total rent for the unit directly to Commonwealth in the form of a monthly Housing Assistance.

 Plaintiff suffered from mental illness during her tenancy. Ms. Rogers called the police because of plaintiff's mental illness. On four occasions, plaintiff was hospitalized as a result of Ms. Rogers' call to the police. On or about November 8, 1993, defendant sent a letter dated November 8th to plaintiff which stated, in part: "Consider this your thirty-day notice before enforcing a written thirty-day notice to vacate." Plaintiff never received a five-day notice for non-payment of rent, a notice to quit, or any other notice of termination.

 On December 1, 1993, Commonwealth and Katz filed a forcible entry and detainer complaint against plaintiff for possession of her apartment and $ 240 in damages, the equivalent of two months' rent. On December 7, 1993, plaintiff was personally served with a Summons for Trial requiring her appearance in the Forcible Entry and Detainer Court at 2:00 p.m. on December 17, 1993. However, as of December 10, 1993, plaintiff was re-hospitalized after Ms. Rogers placed another phone call to the police. Plaintiff remained hospitalized till January 2, 1994.

 On December 17, 1993, plaintiff was not able to appear in the Forcible Court. The attorney for the defendants told the presiding judge that Katz and Commonwealth's complaint was based on plaintiff's non-payment of rent and plaintiff had been served with a "five-day notice". The judge then entered a default judgment for possession and $ 240 plus costs in favor of Commonwealth and Katz.

 After Rogers placed another phone call to the police, plaintiff was re-hospitalized on January 10, 1994 and remained hospitalized till April 11, 1994. On February 18, 1994, the Sheriff's Office of Cook County executed the default judgment against plaintiff by entering her apartment, removing all of her possessions, and depositing them on the street in front of the building. On March 1, 1994, defendants rented plaintiff's apartment to a new tenant.

 On June 24, 1994, after being released from the hospital, plaintiff filed a combined motion to void the default judgment, or in the alternative, a petition to vacate the default judgment in the same Forcible court which entered the December 17th judgment. On January 25, 1995, the Forcible court granted plaintiff's petition to vacate the default judgment and dismissed defendants' complaint for possession of plaintiff's apartment.

 Motion to Dismiss

 Defendants move this court to dismiss the complaint of plaintiff Anast under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Demitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399, 1406 (N.D. Ill. 1996)(citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)). Therefore, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Zinermon v. Burch, 494 U.S. 113, 118, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Colfax Corp. v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996) (citation omitted). The court will dismiss a claim only if "it appears beyond doubt that [the plaintiff] can prove no set of facts in support of his claim which would entitle him to relief." Colfax, 79 F.3d at 632 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).



 The threshold issue before the court is whether the Forcible court's decision *fn1" that the issue of possession of the subject premises is moot is entitled to res judicata effect. For res judicata to apply in federal court, three requirements must be met: (1) an identity of the causes of action; (2) an identity of the parties or their privies; and (3) a final judgment on the merits. Golden v. Barenborg, 53 F.3d 866, 869 (7th Cir. 1995).

 For the first requirement, a cause of action consists of a "single core of operative facts" which give rise to a remedy. Id. Therefore, the court must determine whether the facts that gave rise to the first suit, are the same core facts that now give rise to the present suit. In the first suit, while Anast was being hospitalized for mental illness, Commonwealth and Katz obtained a default judgment in Forcible court against Anast for possession of her apartment. Defendants sought possession of the partially subsidized apartment that plaintiff was occupying because she had not paid her rent. As a result of that judgement, plaintiff was evicted from her apartment. The sheriff enforced the default judgment against her and she lost all of her possessions and became homeless. Based on these facts, Anast now seeks to recover damages for defendants' acts in obtaining the default judgment against her.

 The second requirement of res judicata -- identity of the parties -- is also satisfied. In the first suit, defendants sued plaintiff to obtain a default judgment against her for possession of the apartment. In the present suit, Anast sues defendants for their conduct in seeking this default judgment.

  However, the third requirement, final judgment on the merits, is not satisfied. In Illinois, the term "merits" has been defined as "the real or substantial grounds of [an] action or defense as distinguished from matters of practice, procedure, jurisdiction, or form." Johnson v. DuPage Airport Authority, 268 Ill. App. 3d 409, 644 N.E.2d 802, 808, 206 Ill. Dec. 34 (Ill. Ct. App. 1994). In Johnson, taxpayers filed a complaint for an injunction against the defendants for providing free transportation service to certain public officials. They sought an injunction to prohibit the defendants from providing such free service. On September 15, 1993, the defendants adopted a resolution prohibiting free transportation. On September 22, 1993 the defendants filed a motion to dismiss the suit as moot because of the resolution. A hearing was held on the motion to dismiss. The court granted defendant's motion to dismiss and dismissed the suit with prejudice. Later that day, plaintiffs filed a new complaint against the defendants. This new complaint sought an accounting of those individuals who received free transportation services. Defendants then filed a motion to dismiss. The defendants maintained that res judicata should bar the second suit because the first suit was dismissed as moot and with prejudice. "A matter is moot if an actual controversy no longer exists and the interests or rights of parties are no longer in controversy." Id. at 808. The court found that although the case was dismissed with prejudice, indicating that the dismissal was on the merits, because the cause was deemed moot, it has no res judicata effect since there was no judgment on the merits. Id. The law of Illinois is clear that a cause deemed moot will not be res judicata, since there is no judgment on the merits. Id. (citing LaSalle National Bank v. City of Chicago, 3 Ill. 2d 375, 121 N.E.2d 486 (1954)).

 In this case, the Forcible court's order finding that the issue of possession of the premises is moot and dismissed with prejudice is also not entitled to res judicata effect. Even though the possession count was dismissed with prejudice, indicating a dismissal on the merits, the dismissal actually was not on the merits. A cause deemed moot will not be res judicata, since there is no judgment on the merits. ...

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