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Kimball Hill Management Company v. Roper

July 20, 2000


Appeal from the Circuit Court of Kane County. No. 98-L-634 Honorable Richard D. Larson, Judge, Presiding.

The opinion of the court was delivered by: Justice Galasso

Plaintiff, Kimball Hill Management Company, operates and administers Foxview Apartments (Foxview) in Carpentersville. Foxview is a federally assisted housing project under the United States Housing Act of 1937, section 8, as amended (section 8) (42 U.S.C.A. §1437(f) (West 1994)), a program for people with low incomes, people with disabilities, and the elderly. In October 1997, defendant, Terri Roper, became a tenant at Foxview. In the notice of termination of tenancy, dated November 17, 1998, plaintiff listed the reasons for the termination of tenancy. The first allegation was that on or about June 19, 1998, defendant had an unauthorized person living in her apartment, namely, her brother, Edward Roper (Edward). The second allegation was that on or about June 19, 1998, an illegal gun, illegal cannabis, and stolen property were confiscated by police in her apartment. The third allegation was that on or about June 16, 1998, crack cocaine was sold out of her apartment. On December 8, 1998, plaintiff filed a complaint in forcible entry and detainer against defendant for various violations of her lease. After a bench trial, the trial court found for plaintiff on the allegation related to illegal cannabis and ordered possession of the subject apartment in question to plaintiff. Defendant's motion for reconsideration was later denied, and this timely appeal followed. Subsequently, defendant filed a motion for a stay of enforcement. On May 5, 1999, the trial court granted the motion, conditioned on defendant's payment of accrued rent and, thereafter, monthly rent as it came due.

On appeal, defendant raises one general issue, namely, whether the trial court erred in holding defendant strictly liable for a third party's criminal activity that occurred in her home without her knowledge or consent.

The record on appeal contains the agreed statement of facts, from which the following relevant facts are taken. At the relevant time, Foxview was comprised of section 8 apartments, and defendant's tenancy was subsidized by the United States Department of Housing and Urban Development (HUD). As a subsidized tenant, defendant paid 30% of her adjusted annual income towards her monthly rent and the balance of her rent was paid by HUD to Foxview.

At the trial, Detective McGovern testified that he was a member of the Carpentersville police department's narcotics task force. On June 18, 1998, he obtained a search warrant for 13 Oxford Road, Unit 5, Carpentersville, Illinois. Later testimony identified this as defendant's apartment. McGovern testified that at 6 p.m. on June 18, 1998, he arrived at the subject address to execute the search warrant. McGovern testified that the search warrant had specified "a black male and various electronic equipment." According to McGovern, the apartment's door was not opened voluntarily, and it was necessary to break into the apartment with the use of a "ram." At the time of McGovern's entrance into the apartment, Edward was in the downstairs living room, and defendant and her children were upstairs. McGovern further testified that, in his search of the apartment, he found cannabis, a .380-semiautomatic handgun, seven rounds of ammunition, a VHS recorder, and two speakers. The handgun and ammunition were located on the top of the kitchen cabinets. McGovern stated that he found the VHS recorder and speakers on top of a television set. McGovern also located what appeared to be cannabis on an end table in the living room. According to McGovern, a person standing in the living room door would have been able to observe the cannabis. A field test performed on the substance by McGovern tested positive for cannabis.

McGovern stated that, following the search, defendant and Edward were transported to the Carpentersville police station. At approximately 12:30 a.m. on June 19, 1998, defendant was questioned by McGovern and Officer Mark Rasmussen. Defendant denied any knowledge that the cannabis, handgun, or ammunition was in her apartment. She further denied that she knew that any of the electronic equipment was stolen.

On cross-examination, McGovern acknowledged that, at the time the search commenced, defendant and her two children were in the upstairs of unit 5. He conceded that the handgun and ammunition were not visible upon entry into the kitchen. McGovern could not recall if defendant told him anything about undergoing dialysis treatment.

Plaintiff next called Kelly Smith, a forensic scientist with the Department of State Police. Defendant stipulated that Smith would testify that the leafy substance found in defendant's apartment was cannabis.

Plaintiff rested its case, and defendant's motion for a directed finding was denied.

Defendant, age 40, testified that she had lived at the subject apartment for a little over two years. She resided there with her two children, Patricia and Prentiss, ages 10 and 8, respectively. Defendant stated that her income sources were public aid benefits and supplemental security income (SSI), based on her disabilities of kidney disease and a heart condition. According to defendant, she received kidney dialysis treatment three times a week for two to three hours' duration at Sherman Hospital in Elgin, Illinois. She testified that she was "at the bottom of the dialysis list" and, as a result, had to accept whatever time she was given to undergo dialysis. Defendant stated that she would die if she did not receive the dialysis treatments.

Defendant stated that on June 18, 1998, she asked her brother, Edward, to baby-sit her children while she was undergoing a dialysis treatment. He agreed to do so. Defendant testified that Edward was not her usual babysitter. She stated that her mother usually babysat the children but that on June 18 her mother was ill and unable to oversee the children. Defendant stated that on June 18 she left her home, taking the Pace bus, at approximately 2 p.m. and returned at about 6 p.m. According to defendant, upon arriving home, she sat for a few minutes on the apartment's porch because the dialysis treatments made her ill. Defendant then entered the apartment and went upstairs with her children. Within minutes, she heard a loud noise, and the police entered her apartment. She stated that she told the police that her daughter was in the bathroom and then asked that they not scare her. Defendant further testified that she fully cooperated with the police during the search and was later taken to the police station. During police questioning, she denied any knowledge of the handgun, ammunition, cannabis, or stereo equipment. Defendant was not charged with any offenses related to the subject search of her apartment.

Defendant further testified that the cannabis was not present in her apartment when she left for dialysis treatment. She also had no knowledge that there was a gun and ammunition on the top of her kitchen cabinets. Defendant stated that she would need to use a chair to see above the cabinets and that her disability would prevent her from using a chair to see above the cabinets because she became dizzy easily.

During cross-examination, defendant testified that she was awarded SSI payments at the end of September 1998 and immediately notified the management at Foxview. On June, 18, 1998, she cleaned her apartment prior to leaving for her dialysis treatment. Defendant testified that there was no cannabis on an end table in the living room when she left her home that day. She stated that when she arrived home from the dialysis treatment Edward and her children were outside. Edward was standing with a group of people. After entering her apartment, she went immediately upstairs and did not enter or look into the living room. According to defendant, she did not observe the television set or the speakers at the top of the set. Immediately after she went upstairs, the police arrived, at which time she heard loud talking and the sound of a battering ram. After being shown a photograph that was part of plaintiff's exhibit No. 3, defendant admitted that there were sandwich baggies on the top of the kitchen cabinet above the sink. She acknowledged that there was a "step stool" in her apartment but that she was in no physical condition to use it.

After brief oral argument, the trial court ruled that plaintiff had failed to present sufficient proof to support the first (unauthorized person) and third (selling crack cocaine) allegations. The court further found that there was insufficient evidence regarding the electronic equipment and the handgun and ammunition. It ordered the parties to brief the issue of whether defendant could forfeit possession of the apartment due to the cannabis found on the end table. The parties submitted briefs, and, after a hearing, the trial court ruled for plaintiff, finding that defendant had violated paragraphs 13(c)(1) and 13(c)(2) of the lease, which are set out below. Moreover, the trial court determined that Edward was under defendant's control because he was her babysitter.

Defendant first argues that the subject lease is ambiguous and cannot serve as the basis for terminating her tenancy. She maintains that she cannot be held responsible for her brother's illegal activities of which she had no knowledge. In response, plaintiff contends that the trial court's judgment for possession is supported by the subject lease, which does not require proof of defendant's knowledge of her brother's illegal activity as a condition for the termination of her tenancy. Additionally, plaintiff ...

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