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12/18/97 AMERICAN NATIONAL BANK AS TRUSTEE UNDER

December 18, 1997

AMERICAN NATIONAL BANK AS TRUSTEE UNDER TRUST NO. 28399 BY METROPLEX, INC., AS AGENT, PLAINTIFF-COUNTERDEFENDANT-APPELLEE,
v.
JOHN POWELL, DEFENDANT-COUNTERPLAINTIFF-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE D. ADOLPHUS RIVERS, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

John Powell, a tenant in a south-side high-rise for nearly 25 years, challenged his landlord, Metroplex, Inc. (Metroplex) to make substantial repairs by withholding rent under the Chicago Residential Landlord and Tenant Ordinance (RLTO). Metroplex filed a forcible entry and detainer claim against Powell, seeking to evict him for not paying the required rent. Metroplex alleged Powell failed to abide by the ordinance's requirements for withholding rent.

We agree Powell did not bring himself within the terms of the RLTO. The remaining question is whether Powell's failure to abide by the RLTO is fatal to his retaliatory eviction affirmative defense. Because we answer this question in the negative, we reverse and remand.

FACTS

In 1973, Powell became a tenant at 4700 South Lake Park Avenue in Chicago. Powell renewed his lease periodically, and on June 19, 1995, he signed the lease with Metroplex. The lease began on July 1, 1995 and provided for monthly rent of $668, payable on the first of each month at Metroplex's office in downtown Chicago. If Powell did not pay the full amount of his rent by the fifth of each month, Metroplex could assess a late-rent charge and eventually terminate Powell's lease for "nonpayment of rent beyond any grace period available under State law" or repeated late payment of rent.

Powell's lease was governed by the RLTO. The RLTO provides: "If there is material noncompliance by the landlord with a rental agreement *** the tenant may notify the landlord in writing of the tenant's intention to withhold from the monthly rent an amount which reasonably reflects the reduced value of the premises due to the material noncompliance. If the landlord fails to correct the condition within 14 days after being notified by the tenant in writing, the tenant may, during the time such failure continues, deduct from the rent the stated amount." (Emphasis added). Chicago Municipal Code ยง 5-12-110(d) (amended November 6, 1991).

On June 20, 1995, Powell sent a "REQUEST FOR REPAIRS" to Metroplex pursuant to section 5-12-110(d). Powell's request letter advised Metroplex of his intent to withhold rent if Metroplex failed to correct 38 defects in his apartment and the common areas of the building within 14 days. These defects included, inter alia, malfunctioning or missing emergency lighting, smoke detectors, and fire extinguishers in violation of the Chicago Municipal Code. Metroplex received this letter on June 22, 1995. Under the RLTO, Powell could begin to withhold rent 15 days after June 22, on July 7.

On June 23, 1995, Powell faxed a note to Stephanie Fields, an employee of Metroplex, confirming Metroplex's scheduled maintenance work on June 26. On June 28, 1995, Powell again faxed a note to Fields, expressing his concern over the unfinished maintenance work: "The painters did not paint the bathroom door. Could you have them come back and do some touch-ups when I'm home?"

That same day, Fields responded:

"With the exception of the water pressure in the shower, we have completed the maintenance required in your apartment. We have contacted C.A.M. pipe clearing company to look at the shower. They will be here on Friday afternoon [June 30, 1995]. If any touch-up paint is required, the painters will come up then as well."

On June 29, 1995, Powell faxed another note to Fields: "I will not be home Friday. I have an appointment. You will have to reschedule." That same day, Powell also sent a "RENT LETTER" in which he explained to Metroplex his decision to withhold rent and enclosed a reduced rent check for $443.25. Donald Cole, a Metroplex employee, admitted he received this letter, but did not specify a date.

On July 7, 1995, Powell wrote a letter to Fields:

"Per our conversation this morning ***. You stated that I was not home, 7-5-1995 when the painters were to come and do some unfinished work. We agreed they would come between 8:30 and 9:00 A.M. on the 5th of July. I was home until 12:30 P.M. You also stated, that you would let me know, before the end of this day 7-7-1995, if they can come on Monday [July 10, 1995].

I also requested new kitchen cabinets several years ago. You have tried several times to repair the ones I have to no avail. As I stated this morning after twenty-one years, I need new cabinets.

If you have any questions you can contact me ***."

That same day, Metroplex sent written notice to Powell, pursuant to the forcible entry statute, demanding Powell pay the balance of his rent within five days. During these five days, Powell paid only $57.75, leaving an unpaid rent balance of $167, or 25% of his rent. On July 18, 1995, Metroplex filed a forcible entry claim to regain possession of Powell's apartment.

After two unsuccessful pleading attempts, Powell filed his second amended affirmative defense and counterclaim. Powell's affirmative defense asserted Metroplex's forcible entry claim was retaliation for Powell's complaints, and therefore was violative of the RLTO. In his affirmative defense, Powell included a prayer for damages under the ordinance. Powell's counterclaim also sought damages for Metroplex's retaliatory eviction, as well as a refund of overpaid rent for Metroplex's breach of the implied warranty of habitability.

Metroplex filed a motion for summary judgment on its forcible entry claim and a motion to strike and dismiss Powell's affirmative defense and counterclaim. On August 26, 1996, the trial court granted both Metroplex's summary judgment motion and its motion to strike and dismiss. On October 15, 1996, the court denied Powell's motion to reconsider. This appeal followed.

DECISION

First, Powell argues the trial court should not have granted summary judgment to Metroplex on its forcible entry claim. The trial court granted summary judgment, despite Powell's retaliatory eviction charges, because he failed to allow Metroplex 14 days to make repairs before withholding rent, as required by the RLTO.

Initially, Powell contends Metroplex waived its argument on the issue of whether Powell allowed Metroplex 14 days to make repairs. Powell contends Metroplex failed to raise this issue in response to Powell's affirmative defense and counterclaim. However, Metroplex could raise this issue in its motion for summary judgment. See Cannon v. Bryant, 196 Ill. App. 3d 891, 554 N.E.2d 489, 143 Ill. Dec. 554 (1990). There was no waiver.

Powell contends he allowed Metroplex 14 days to make repairs. He says the 14 day period stretches between the day the landlord receives notice the tenant intends to withhold rent and the day the landlord receives a reduced rent payment. Metroplex contends the 14 day period stretches between the day the landlord receives notice the ...


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