The opinion of the court was delivered by: Justice Zwick
Appeal from the Circuit Court of Cook County.
Honorable Carl J. Cipolla, Judge Presiding.
Plaintiff, The Habitat Company, filed this action against defendant, Michael McClure, for possession of McClure's apartment following expiration of his lease. McClure filed counterclaims against Habitat under the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (1993)) (IHRA) and the federal Fair Housing Amendments Act (42 U.S.C. §3601 et seq. (1988)) (FHAA) for Habitat's alleged discrimination in refusing to renew his lease due to his mental handicap. McClure subsequently vacated the premises and the case proceeded to a bench trial on his counterclaims. The trial court granted Habitat's motion for a finding at the close of McClure's case and entered judgment in favor of Habitat. See 735 ILCS 5/2-1110 (West 1996). Habitat thereafter filed a timely petition for attorney's fees and expenses pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), section 10-102 of the IHRA (775 ILCS 5/10-102(a)) and section 813 of the FHAA (42 U.S.C. 3813(a)). The trial court granted Habitat's petition for attorney's fees and expenses and entered judgment against McClure and his attorneys, appellant, the Edwin F. Mandel Legal Aid Clinic, Inc. (Mandel), for $27,329.70.
On appeal we are asked to address the following issues: (1) whether the notices of appeal filed by McClure in appeal numbers 1-96-4145 and 1-97-0295 are sufficient to confer jurisdiction on this court; (2) whether the trial court's denial of McClure's jury demand was properly raised in either of these notices of appeal and, if so, whether either the provisions of the IHRA or FHAA required the circuit court to conduct a jury trial; (3) if a jury trial was not improperly denied, whether the trial court, during a bench trial, improperly granted Habitat's motion for a verdict following the close of McClure's case; and (4) whether certain evidentiary rulings were erroneous and require reversal. The appeal in case number 1-97-1972 concerns the issue of whether the court erred in awarding attorney's fees in favor of Habitat and against McClure and Mandel.
The record shows that, on November 30, 1988, McClure, as lessee, entered into a lease with Habitat, as lessor, for an apartment located at 1130 North Dearborn in Chicago, in a building commonly known as Elm Street Plaza. The lease was for a one year period commencing January 1, 1989 and ending December 31, 1989. McClure and Habitat entered into subsequent one-year leases for 1990 and 1991. McClure's mother, Audrey McClure, signed as guarantor.
Following the expiration of McClure's lease on December 31, 1991, but before any renewal of the lease was executed, McClure's rent check for January, 1992, was returned to Habitat for insufficient funds. On February 7, 1992, Habitat served McClure with notice of termination of tenancy for failure to pay rent, and on or about February 14, 1992, Habitat filed a forcible entry and detainer action for possession. Mandel appeared on behalf of McClure in that action, raising claims that, in filing the suit, Habitat had discriminated against McClure based upon a mental handicap, and that Habitat had failed to reasonably accommodate McClure's handicap by renewing his tenancy. McClure's attorney at Mandel, Lisa Parsons, entered into settlement Discussions with Habitat's attorney, Sanford Kahn, which culminated in an agreed order of settlement whereby Habitat agreed to dismiss the 1992 case, accept past-due rent, and enter into another lease for the seven month period commencing May 1, 1992, and ending December 31, 1992. Under the settlement agreement, Mrs. McClure was again named as guarantor.
During the seven-month tenancy, Habitat received complaints about McClure from other residents and from its staff. Robert Stumfoll, the building engineer at Elm Street Plaza, testified that McClure had an unusual number of problems with water in his apartment including several bathtub and toilet overflows. On one such occasion water was flowing out of the ceiling four floors below McClure's apartment, in the building's compactor room, requiring extraction of over 50 gallons of water. In November, 1992, Kevin Flood, the building manager, notified McClure that his lease would not be renewed upon its expiration on December 31, 1992. McClure's mother contacted Mr. Flood concerning the renewal and asked him to again extend the lease. Mr. Flood agreed to renew the lease for a three-month period from January 1, 1993 to March 31, 1993, but indicated that McClure would have to leave after the end of this term.
In early January, 1993, Michelle Simmons replaced Mr. Flood as the building manager at Elm Street Plaza. In that month, McClure's bathtub again overflowed, prompting Ms. Simmons to write McClure a letter regarding the incident. Also, on March 8, 1993, McClure locked a woman in his apartment and then left the building. The woman, later identified as Roseanne Borisich, became "hysterical," called the police and unsuccessfully attempted to break the lock on the apartment door. Ms. Simmons called a locksmith who was able to gain access into McClure's apartment so that Ms. Borisich could escape.
Subsequently, on March 25, 1993, Ms. Parsons contacted Ms. Simmons, advising her that McClure wished to again renew his lease for at least six months to September 30, 1993. Ms. Simmons advised Ms. Parsons that Mr. Flood had previously decided not to renew McClure's lease, and that she agreed with that decision. Ms. Simmons testified that she could have renewed McClure's lease, but determined not to do so because of McClure's prior conduct including his tub overflows and his locking Ms. Borisich in his apartment. The next day, Habitat's general counsel, James Watts, contacted Ms. Parsons. Ms. Parsons asked Mr. Watts if Habitat would again renew McClure's lease. Watts told Parsons it was Habitat's decision not to renew the lease because of complaints from other tenants regarding McClure, the several bathtub overflows, and the lock-in incident. Ms. Parsons told Mr. Watts that those incidents seemed attributable to McClure's disability and that an accommodation might include additional services to McClure. According to Parsons, Watts told her that Elm Street Plaza was a "first class luxury high-rise property" and that it was not equipped to provide services to people with disabilities.
McClure refused to vacate the premises after March 31, 1993, and on June 18, 1993 Habitat filed an action for possession of the premises based upon expiration of his lease. On August 6, 1993, McClure filed his counterclaim and jury demand for unlawful discrimination in five counts: first, under the Chicago Residential Landlord & Tenant Ordinance (Chicago Mun. Code §5-12-010 et seq. (1991)); second and third, under the IHRA; fourth, under the FHAA; and fifth, under the federal Rehabilitation Act (29 U.S.C. 794 (1982)). Habitat's motion to dismiss each of the counts was granted with the exception of McClure's third count. In December, 1993, McClure vacated the premises.
On September 14, 1995, McClure filed his first amended answer, affirmative defenses and counterclaims. McClure's two amended counterclaims sought damages against Habitat for intentional discrimination against McClure in not renewing his lease and for refusing to accommodate his handicap to afford him an equal opportunity to use and enjoy his apartment. McClure's first counterclaim (styled Third Counterclaim) was again brought pursuant to the IHRA; the second counterclaim (styled Fourth Counterclaim) was brought under the FHAA. Both McClure's initial counterclaim and his amended counterclaim were filed on his behalf by Mandel.
On November 16, 1995, the trial court granted Habitat's motion to strike McClure's jury demand.
On October 17, 1996, the case proceeded to a bench trial. On October 24, 1996, after McClure had rested his case following three days of trial testimony, the court sustained Habitat's motion for a finding and entered judgment in favor of Habitat and against McClure upon both of his counterclaims. See 735 ILCS 5/2-1110 (West 1996). On November 22, 1997, McClure filed his notice of appeal (no. 1-96-4145) from this judgment. That same day, Habitat filed its Petition for Attorneys' Fees under Supreme Court Rule 137, the IHRA and FHAA. McClure subsequently sought a Rule 304(a) finding of appealability from the court which the court made on January 9, 1997. McClure filed a subsequent notice of appeal (no. 1-97-0295) the next day, on January 10, 1997.
On February 24, 1997, the trial court granted Habitat's petition for attorneys' fees and expenses, and on April 28, 1997, the trial court entered judgment against McClure and Mandel for Habitat's fees and expenses in the sum of $27,329.70. Mandel filed a notice of appeal (no. 1-97-1972) from this judgment on May 16, 1997. McClure joined in this appeal on May 19, 1997.
Initially, we address Habitat's claim that we have no jurisdiction to consider the appeals in Nos. 1-96-4145 and 1-97-0295 because McClure's notices of appeal were premature.
In Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 467-68, 563 N.E.2d 459 (1990), our supreme court determined that the filing of a petition for attorney's fees in the trial court within 30 days of an otherwise final judgment renders any prior order made by the circuit court in the case non-final. Citing Marsh, Habitat argues that there is no jurisdiction in appeal no. 1-96-4145 because its petition for fees rendered McClure's prior notice of appeal premature. We agree. Jurisdiction in no. 1-96-4145 was premised upon the existence of a final order; however, the filing of Habitat's timely petition for fees rendered the court's October 24, 1996 judgment non-final. This is a straight-forward application of our supreme court's decision in Marsh.
With regard to appeal no. 1-97-0295, Habitat argues that the court's order of January 9, 1997, which stated that it was "modifying" the October 24, 1996 order so as to make appealability findings pursuant to Supreme Court Rule 304(a), is essentially a "nunc-pro-tunc order," substantively changing the effect of the prior order so as to confer appellate jurisdiction where it did not previously exist. Habitat argues that it is improper for the circuit court to use its nunc-pro-tunc authority to do more than correct a typographical error or other minor defect. See Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1056, 399 N.E.2d 216 (1979) (jurisdictional defects may not be cured by entry of a nunc-pro-tunc order). Habitat also argues that when the circuit court makes a Rule 304(a) finding in a judgment order that is otherwise final, as the court's October 24, 1996 order was at the moment it was entered, Rule 304(a) language is meaningless and cannot be given effect.
Habitat's arguments concerning the timing of McClure's notices of appeals are patent red herrings. First, Supreme Court Rule 304(a) expressly states that the circuit court may enter Rule 304(a) findings at a time subsequent to the time of the entry of a non-final order. "Such a finding may be made at the time of the entry or the judgment or thereafter on the court's own motion or motion of any party." 134 Ill. 2d R. 304(a)(emphasis added). Thus, a party may seek to modify an otherwise final order to include a finding under Rule 304(a) after a motion for attorney's fees has been filed, so that the party may appeal the order without awaiting the outcome of the attorney's fee petition. See e.g., F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 640 N.E.2d 1313 (1994). This was clearly the basis of the trial court's January 9, 1997 order. The circuit court's common law authority to enter nunc-pro-tunc orders, which the circuit court did not invoke, is simply irrelevant to any of the issues presented in this appeal.
With regard to Habitat's second argument, that it would have been improper for the circuit court to have made Rule 304(a) findings at the time final judgment was entered on October 24, 1996, so that the court should not logically be able to do it later, we note that our supreme court has recently reversed those appellate court rulings relied upon by Habitat. In Niccum v. Botti, Marinaccio, Desalvo & Tameling, Ltd., 182 Ill. 2d 6, 694 N.E.2d 562 (1998), the court determined that it is permissible for the circuit court to include within an otherwise final order Rule 304(a) language "in anticipation" that a party may subsequently seek attorney's fees and thereby render the order non-final. Niccum, 182 Ill. 2d at 9. The inclusion of such language now operates to convert an existing appeal taken pursuant to ...