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Burnham Management Company v. Davis

December 31, 1998

BURNHAM MANAGEMENT COMPANY, PLAINTIFF-APPELLEE,
v.
YOLANDA DAVIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 97--LM-1547 Honorable Donald J. Fabian, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

The plaintiff, Burnham Management Company, filed this forcible entry and detainer action against the defendant, Yolanda Davis, to recover possession of the premises that the defendant leased at the Mill Apartments in Elgin, Illinois. The defendant's tenancy was federally subsidized. The plaintiff manages the Mill Apartments. The plaintiff's complaint also claimed rent of $1321 from April 1, 1997, through August 31, 1997. After a bench trial, judgment was entered for the plaintiff on December 11, 1997, for possession of the premises. The court continued the cause to December 17, 1997, and on that date, it entered judgment in favor of the plaintiff for $2,270, which represented unpaid rent from February 1, 1997, through December 31, 1997, less a set off for some rent paid by the defendant during that period. On January 16, 1998, the defendant filed her notice of appeal from the orders entered on December 11, 1997, and December 17, 1997.

On appeal, the defendant argues that (1) the plaintiff's retroactive interim and annual recertifications of the defendant's rental obligation were improper and resulted in an incorrect amount being demanded in the owner's 10-day notice; (2) the plaintiff waived its right to possession when the plaintiff agreed to accept a lesser amount than that demanded in the 10-day notice and then later refused to accept the lesser amount; and (3) the plaintiff's 10-day notice was defective precluding the trial court from exercising jurisdiction to enter an order on behalf of the plaintiff.

The record on appeal contains no report of proceedings. However, the parties have filed an agreed statement of facts pursuant to Supreme Court Rule 323(d) (166 Ill. 2d R. 323(d)). The parties' agreed statement of facts reveals in relevant part that the defendant's tenancy was subsidized by the U.S. Department of Housing and Urban Development (HUD) and was controlled, in part, by the HUD handbook. Under the HUD program, the defendant was to pay 30% of her adjusted annual income toward her monthly rent and the balance was to be paid by HUD. The plaintiff was required to annually verify tenants' incomes and compute tenants' rents and assistance payments (annual recertification). The defendant was required to report changes in income and household composition that occurred between annual recertifications, at which time rent was to be recalculated (interim recertification).

The defendant testified that the plaintiff brought a previous eviction action against her in 1996 (the 1996 eviction case), which concluded on March 13, 1997. On January 7, 1997, while the 1996 eviction action was still pending, the defendant found employment. Prior to that time, she had not been employed since August 1996. Accordingly, her rental obligation after August 1996 and prior to an interim recertification was set at $0 per month. The defendant admitted that she did not report her employment to the plaintiff until March 13, 1997, the date judgment was entered in her favor in the 1996 eviction action. On March 17, 1997, the defendant met with Simona Rhodes, the assistant manager at the Mill Apartments. At that time, the defendant filled out paperwork so her rent could be recalculated. An interim recertification, covered the period from February 1, 1997, through March 30, 1997. An annual recertification, covered the period from April 1, 1997, through March 30, 1998.

The defendant further testified that on April 17, 1997, the plaintiff sent the defendant a letter informing her that her monthly rental obligation was $259, effective February 1, 1997. On that same day, the plaintiff sent the defendant another letter informing her that her monthly rental obligation was $259, effective April 1, 1997. According to the defendant, she was told on May 7, 1997, that she owed $835 in past due rent and then signed a repayment agreement for that amount.

The defendant also testified that on August 19, 1997, she received a 10-day notice from the plaintiff. At that point, she talked with Betty Cooke and Simona Rhodes. She stated that Cooke told her that if she could pay $700 by the end of the 10-day period in the notice, she could enter into a repayment agreement for the remaining money. The defendant stated that she contacted three agencies for rental assistance and had commitments of $700. A few days after receiving the 10-day notice, she was at one of the agencies, the Community Crisis Center. When a person from that agency called the Mill Apartments, the defendant talked with Rhodes. According to the defendant, Rhodes said that she had to pay the entire amount of rent owed by the end of the 10-day period or she could not stay in the apartment.

The defendant further stated that she informed the plaintiff on July 31, 1997, that she had reduced income from her job. She also gave the plaintiff a statement from her employer outlining the days she had been unable to work in June and July 1997 because of illness and that she had been reduced to part-time status. On August 11, 1997, she signed a verification of employment form at the Mill Apartments. This document indicated that the defendant's employment had been reduced to part-time status effective August 1, 1997. The defendant acknowledged that she made only three payments toward her rent between May 27 and August 19, 1997, totaling $579.

According to the defendant, when she received notice of the termination of her tenancy in the 1996 eviction case in October 1996, Rhodes told her that the plaintiff would not accept any rental payments from her because of the eviction case and that she should not come to the office. She stated that she did not report her employment in January 1997 because she had been told not to come to the office.

Simona Rhodes testified that as of the date of trial in December 1997, the defendant owed $2,377 in past-due rent. She noted that she performed the recertifications to calculate the defendant's rent.

Betty Cooke, the residential manager at the Mill Apartments, testified that the defendant did not advise the plaintiff that she began working in January 1997 until she testified on March 13, 1997, in the 1996 eviction case that she was employed. Cooke noted that if a tenant advises of a change in income, an interim recertification is done. Once recertification is done, if there is an increase in rent, a notice is sent out, and the increase becomes effective the first of the month after a 30-day notice period. If a tenant does not advise the landlord about a change of income initially and the landlord later discovers the change, any increase in rent becomes effective retroactive to the first of the month after the date of the increase in income.

Cooke further testified that, even if the defendant had informed the plaintiff of her employment immediately after obtaining her job in January 1997, the plaintiff would not have recertified her or recalculated her rent while the eviction action was pending. She noted that the plaintiff's policy was to refuse to accept rent during the pendency of such an action. She also stated that performing an interim recertification for the defendant while the 1996 eviction action was pending would have resulted in a waiver of the plaintiff's rights in that case. Finally, she noted that the recertification process at issue here began on March 17, 1997, after the plaintiff first learned of the defendant's change of income on March 13, 1997.

Based on the foregoing evidence, the trial court entered a judgment on December 11, 1997, for possession in favor of the plaintiff and awarded the plaintiff costs, finding that the defendant had an obligation to report her income in January 1997. The court continued the matter to December 17, 1997, for a ruling of the amount of past-due rent owed. The court further ordered that execution of the judgment for possession be stayed until January 12, 1998. On December 17, 1997, the court entered a judgment against the defendant for $2,270, which the court found represented 11 months of rent at $259 minus rent payments totaling $579 made by the defendant between May and August 1997. On January 16, 1998, the defendant filed her notice of appeal from the orders entered on December 11, 1997, and December 17, 1997. Thereafter, the trial court stayed execution of its two orders pending appeal.

As a preliminary matter, we note that the plaintiff filed a motion to dismiss the defendant's appeal for want of appellate jurisdiction under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). It contended that the December 11, 1997, order of possession was a final order, and therefore the defendant's notice of appeal filed more than 30 days from the court's judgment was untimely. On July 2, 1998, this court denied the plaintiff's motion to dismiss the appeal. We now reaffirm our prior ruling. Supreme Court Rule 304(a) provides that if multiple claims for relief are involved in an action an appeal may be taken from a final judgment as to one or more but fewer than all of the claims "only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill. 2d R. 304(a). The plaintiff's reliance on Foster v. Foster, 273 Ill. App. 3d 106 (1995), is misplaced. There, the appellee filed a motion to dismiss an appeal from a judgment for possession for want of jurisdiction because a second count for rent had not yet been decided when the appellant's notice of appeal was filed. Foster, 273 Ill. App. 3d at 109. The court found that language in the trial court's written determination that "[e]xecution may issue on or after September 23, 1994," was sufficient to create a final executable and appealable order on the possession count under Rule 304(a). Foster, 273 Ill. App. 3d at 109. In the case at bar, however, the trial court stayed enforcement of the judgment for possession. The required written finding under Rule 304(a) is sufficient to establish appellate jurisdiction only if it refers to either the judgment's immediate enforceability or its immediate appealability or both, depending on the ...


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