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12/17/97 RENEE RUSSELL v. HENRY HOWE AND ILENE HOWE

December 17, 1997

RENEE RUSSELL, PLAINTIFF-APPELLANT,
v.
HENRY HOWE AND ILENE HOWE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 97--CH--0228. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication January 16, 1998.

The Honorable Justice Colwell delivered the opinion of the court. Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Defendants, Henry and Ilene Howe, leased two rooms of their home to plaintiff, Renee Russell, and her children. After defendants denied plaintiff access to the premises, plaintiff sued defendants for trespass and for breach of the implied covenant of quiet enjoyment. Plaintiff also requested a preliminary injunction and moved for a temporary restraining order to prevent defendants from interfering with plaintiff's access to the premises. The trial court issued the temporary restraining order, denied the preliminary injunction, and awarded possession of the premises to defendants.

On appeal, plaintiff argues that the trial court (1) abused its discretion in denying the preliminary injunction; and (2) lacked the jurisdiction to award possession of the premises to defendants. Defendants did not file a brief in this appeal. For the reasons set forth below, we vacate the trial court's order denying the preliminary injunction and awarding possession to defendants.

I. FACTS

The following facts are not in dispute. On February 14, 1997, defendants verbally agreed to lease two rooms of their Carpentersville home (the premises) on a month-to-month basis to plaintiff and her two children. On the same day, after tendering to defendants $300 for the first month's rent and $200 toward the security deposit, plaintiff moved in. Although plaintiff did not receive a key to the premises, defendants assured her that someone always would be available to let her in. One week later, plaintiff tendered to defendants $300 for the second month's rent, $100 for the balance of the security deposit, and $20 for the water bill.

On March 21, 1997, plaintiff experienced car trouble and called defendants to inform them that she might not return that evening as planned. Defendants informed plaintiff that they no longer would allow plaintiff and her children to enter the premises. A few days later, plaintiff's attorney contacted defendants in an attempt to resolve the dispute. Defendants advised plaintiff's attorney that they would not allow plaintiff and her children to enter the premises without a court order.

On March 31, 1997, plaintiff sued defendants for trespass and for breach of the implied covenant of quiet enjoyment. In her verified complaint, plaintiff sought, among other relief, a preliminary injunction to prevent defendants from further interfering with plaintiff's access to the premises. On the same day, plaintiff also moved for a temporary restraining order. After issuing the temporary restraining order, the trial court scheduled a hearing for 10:30 a.m. on April 10, 1997, to determine whether Plaintiff was entitled to a preliminary injunction. Defendants did not file a single pleading in the trial court.

On April 10, 1997, plaintiff's attorney arrived in court at 10:33 a.m. to discover that the trial court had already conducted the preliminary injunction hearing. Although defendants still had not filed a single pleading, the trial court denied plaintiff's request for a preliminary injunction and granted possession of the premises to defendants. Plaintiff immediately moved to vacate the trial court's order.

On April 14, 1997, the trial court denied plaintiff's motion to vacate the April 10, 1997, order. Plaintiff then filed a notice of interlocutory appeal (see 166 Ill. 2d R. 307 (a)(1)) and a motion to stay the execution of the April 10, 1997, order pending appeal. On April 15, 1997, the trial court denied plaintiff's motion for a stay. In its order, the trial court stated that, because the "Municipal Ordinance of the Village of Carpentersville" prohibited plaintiff and her children from occupying the premises, the trial court would not "order a willful violation of such an ordinance." The order did not, however, specify any particular portion of the ordinance.

II. ANALYSIS

At the outset, we note that, although defendants did not file a brief in this appeal, the issues presented are relatively straightforward. Therefore, we may decide this appeal without the benefit of defendants' brief. See First Capitol Mortgage Corp. v. ...


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