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Wirtz Realty Corp. v. Freund

June 23, 1999

WIRTZ REALTY CORPORATION, PLAINTIFF, COUNTERDEFENDANT-APPELLEE,
v.
J. DENNIS FREUND AND C. GERALDINE FREUND, DEFENDANTS, COUNTERPLAINTIFFS-APPELLANTS.



The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County. Honorable Ronald S. Davis, Michael C. Zissman, Judges Presiding.

JUSTICE BURKE delivered the opinion of the court:

Defendants J. Dennis Freund (Dennis) and C. Geraldine Freund (Geraldine) appeal from an order of the circuit court granting plaintiff Wirtz Realty Corporation's (Wirtz) motion for summary judgment on plaintiff's claim for past due rents, and the judgment of the circuit court, after a bench trial, in favor of plaintiff on defendants' counterclaim which alleged that Wirtz violated the Illinois Human Rights Act (775 ILCS 5/3--101, et. seq) which prohibits discrimination against mentally handicapped individuals in the rental of residential property. On appeal, defendants contend that the trial court erred in its interpretation of section 3--102.1(K) of the Human Rights Act (735 ILCS 5/3--102.1(K)); the trial court's judgment in favor of plaintiff on defendants' counterclaim was against the manifest weight of the evidence; and the trial court erred in granting plaintiff's motion for summary judgment on plaintiff's claim for unpaid rent. For the reasons set forth below, we affirm.

Plaintiff filed a complaint against defendants in the circuit court to collect past due rent after it evicted defendants from their apartment at 1420 North Lake Shore Drive (1420 Building) in Chicago, Illinois.

Defendants filed a counterclaim alleging plaintiff had violated the Human Rights Act by

"imposing a 30-day 'mutual cancellation rider' on their lease, later barring [their adult son] Kenneth [Freund] from the building, and ultimately evicting them--all because of Kenneth's mental handicap."

Plaintiff denied it had violated the Human Rights Act and, alternatively, raised an affirmative defense, based on section 3--102.1 (K) of the Act, that it was justified in evicting defendants because Kenneth posed a "direct threat to the health and safety" of the building. In March 1994, the trial court granted plaintiff's motion for summary judgment on its claim for unpaid rent and entered judgment in plaintiff's favor. Defendants' counterclaim proceeded to a bench trial in 1997.

At trial, defendants called Harry Benjamin, plaintiff's vice president of property management, as an adverse witness. Benjamin testifed that he was the individual responsible for terminating defendants' lease, as well as initially approving the filing of plaintiff's complaint against defendants. He began his responsibilities managing the 1420 Building around 1988 when John Pemberton, another of plaintiff's vice presidents, started to go into semi-retirement. Throughout 1988, Pemberton was responsible for the day-to-day operations of the 1420 Building and Benjamin would assist Pemberton. In mid-to-late 1989, Pemberton retired and Benjamin undertook the day-to-day operations of the 1420 Building.

Benjamin testified that during the period of June 1973 through October 1988, plaintiff offered defendants standard one-year leases for their apartment at the 1420 Building. Except for formal letters he wrote to defendants concerning the renewal of their tenancy, Benjamin never documented any complaints or other conversations related to defendants. Benjamin never personally witnessed Kenneth "interacting in an inappropriate way with any building employee." According to Benjamin, all of his information about Kenneth came from reports by other employees. Except for when Kenneth "hurled a cigarette and a pop can at one of the employees," Benjamin stated that he had no reports of Kenneth touching any building employee or tenant.

Benjamin admitted that at a prior deposition he did not testify that anyone had informed him that Kenneth had thrown a cigarette or Coke can at anyone. He also stated that upon reading the deposition of Trudence Kaplan (Trudence), a tenant in the 1420 Building, his recollection was refreshed about the events surrounding defendants' eviction.

Benjamin further testified that he could not recall anything that Pemberton told him about problems with defendants or Kenneth prior to 1988. In addition, Benjamin had no recollection of when he learned about an incident in 1987 when Kenneth was in front of the apartment of Justice William Clark, a tenant in the 1420 Building, threatening to kill the Justice, and testified it could have been after defendants were evicted. Benjamin also stated that around the beginning of November 1989, Fred Jach, the 1420 Building's engineer, stopped working at the building because of health problems and Toni Stipanicev became the building engineer. Benjamin further stated that sometime in 1988 or 1989 he became aware, through a conversation with Dennis, that Kenneth had sometimes resided in a hospital.

Benjamin also stated that he did not recall specific dates for many incidents. For example, he could not remember exactly which tenants he spoke to concerning complaints about Kenneth and could not specifically remember the year that Trudence complained about Kenneth urinating in an elevator. He stated several times that his recollection of 1988 and 1989 blended together and that he was not clear about any dates, but after reading Trudence's deposition prior to testifying, he believed the dates that Trudence had testified to in her deposition taken prior to trial were correct.

The evidence at trial revolved around eight incidents and the effect those incidents had on the operation of the apartment building and the persons involved. Specifically, the evidence focused on: (1) a 1986 incident in the apartment building's elevator between Kenneth and Linda Kaplan (Linda), another tenant; (2) a 1987 or 1988 incident when Linda observed Kenneth pacing in front of Justice Clark's front door; (3) incidents when Kenneth stood in front of building employees and would not allow them to pass or continue their work; (4) a June 23, 1989, incident when Pemberton received a call from a man identifying himself as "Freund" and threatening to "get" Pemberton, Justice Clark, and Jach, because they were "bothering his mother"; (5) a July or August 1989 incident in the building elevator between Kenneth, Trudence, and a friend of Trudence; (6) a November 1989 incident when Trudence discovered dog food and garbage outside her apartment door and later saw Kenneth holding two knives; (7) an incident when Trudence observed Kenneth throw a lit cigarette and Coke can at the apartment building's doorman; and (8) Kenneth's reported return to the apartment building after defendants had assured plaintiff that he would not return.

(1) 1986 elevator incident

Linda testified that in 1986 Kenneth and she were in the building's elevator when Kenneth turned to her with a lit cigarette in his mouth and asked whether she had the "money" she owed him. Linda further testified that Kenneth was very close to her and that she was "stunned, *** panicked, *** alarmed, uptight, and nervous" because she had never had contact with Kenneth before and there would be no reason for her to owe Kenneth anything. She reported the incident to Jach who gave her his home telephone number and asked that she call him if she had further problems. Also with respect to this incident, neither Pemberton, in his deposition testimony admitted during trial, nor Benjamin, testified that they knew of the incident.

(2) Threats against Justice Clark and his parents

Linda testified that one day she entered the apartment building and observed Kenneth pacing in front of Justice Clark's apartment door and shouting about killing Justice Clark and his parents. Linda stated that she was "terrified," did not use the elevator, and followed the doorman's suggestion to leave the building until the situation was resolved. The evidence also showed that Pemberton did not testify he knew about the incident, Benjamin never specifically mentioned the incident, and Benjamin was unclear as to when he first learned of it.

(3) Incidents with building employees

Jach, the building engineer, testified that he reported to Benjamin and Pemberton that other employees were reporting to him that Kenneth was obstructing their work by standing in front of them and not allowing them to pass, threatening to have them fired, and accusing them of stealing. The record does not contain any direct evidence from the actual employees about the harassment, and no evidence that Kenneth ever physically harmed anyone. The record does contain a letter to defendants in 1989, in which Pemberton stated that Wirtz was concerned about Kenneth's continued harassment of employees and that a solution would have to be found.

(4) June 23, 1989 telephone call to Pemberton

In his deposition, admitted at trial, Pemberton testified that on June 20, three days before he received the threatening telephone call from Kenneth, he had sent a letter to defendants expressing Wirtz's concerns about Kenneth's actions and about defendants' continued tenancy. No evidence was presented that Benjamin knew about the threats and, in fact, Pemberton stated in his deposition that he told no one other than Jach about the call.

(5) Urination in the elevator

Trudence testified that Kenneth exposed his penis to her and another woman in a closed elevator and proceeded to urinate. She stated that the incident frightened her and that she immediately reported the incident to the doorman and Benjamin. She further stated that she became concerned for the safety of her teenage daughter and instructed her daughter not to ride the elevator if Kenneth was on it.

(6) Dog food and knives incident

Trudence testified that she discovered dog food near her apartment and Kenneth had placed it there to poison her dog. She proceeded to defendants' apartment and confronted Dennis, in an "elevated voice," about the trash. Kenneth then appeared behind his father brandishing two long knives over his head. After several minutes, Kenneth left and then reappeared with a cigarette in his mouth.

Trudence stated that she could have made an exit from the situation, but did not, and she did not

"feel that *** [Kenneth] was going to come and stab *** [Trudence and the building employee who accompanied her to defendants' apartment]."

Trudence reported the incident to Benjamin and told Benjamin that she feared for the safety of her daughter. After this incident, plaintiff offered defendants a new lease, but added a 30-day mutual cancellation rider to the lease which allowed either party to cancel the lease after giving 30 days' notice.

(7) Throwing of cigarette and Coke can

As to this incident, there was no evidence that the objects Kenneth threw came close to striking the doorman. The doorman never testified, and Trudence testified that the doorman "didn't seem to be very upset about it." Trudence characterized Kenneth's conduct as unpredictable, reported the incident to Benjamin, and told Benjamin that, as a result of Kenneth's continued misconduct and the building management's inability to remedy the situation, her family was going to move out of the building. Stipanicev, the building engineer, testified that although the doormen were to report to him concerning problems, none had reported problems with Kenneth.

After this incident, Wirtz sent defendants the first lease cancellation notice, requiring defendants to vacate their apartment by January 31, 1990. On January 3, Wirtz and Dennis came to an agreement whereby defendants agreed that Kenneth would not return to the building in exchange for Wirtz's rescission of the lease cancellation. This agreement was in effect until March 3, 1990, when Wirtz sent defendants a second lease cancellation notice.

(8) Kenneth's return to the building

Benjamin testified that around March 2, 1990, he received a report from Stipanicev that Kenneth had returned to the building. As a result of this report, Benjamin directed his secretary to prepare a letter to defendants terminating their lease, dated March 3, 1990. The record shows that at the time Wirtz claimed Kenneth returned, he was involuntarily committed in the University of Chicago Hospital and had been so committed since December 1989. The ...


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