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Milton v. Therra

Court of Appeals of Illinois, First District, Second Division

June 14, 2018

LEZETTE MILTON and ANTWONNE STRONG, Plaintiffs-Counterdefendants-Appellants,
v.
BOUREMA THERRA, FATOUMATA TRAORE, and UNKNOWN OCCUPANTS, Defendants-Appellees (Bourema Therra, Counterplaintiff).

          Appeal from the Circuit Court of Cook County, Illinois. No. 16 M 1709788 Honorable David A. Skryd, Judge Presiding.

          PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.

          OPINION

          MASON PRESIDING JUSTICE

         ¶ 1 In these forcible entry and detainer proceedings, the trial court entered judgment in favor of the tenants, Bourama Thera[1] and Fatoumata Traore, finding that the landlord, Lezette Milton, [2]wrongfully denied the tenants possession of the leased premises. The trial court also entered judgment in favor of Thera on his counterclaim for lost profits sustained as a result of the interruption of his business conducted on the premises, as well as repair costs, attorney fees, and court costs in the total amount of $29, 615.95. During the course of the proceedings, the trial court found Milton in contempt for failing to comply with certain orders and awarded Thera relief in the form of attorney fees incurred in pursuing two petitions for a rule to show cause, as well as compensation for personal property allegedly stolen by Milton.

         ¶ 2 In this appeal, Milton challenges (i) the judgment entered in Thera's favor for lost profits, contending that the claim was beyond the court's authority in a forcible action, and (ii) two of the contempt orders, contending that the court failed to follow the procedures required to make such findings. We agree with Milton and vacate the money judgment in Thera's favor as well as two of the contempt findings and remand for further proceedings.

         ¶ 3 Milton filed her verified complaint on June 8, 2016, naming only Thera as a defendant. She alleged that she (and Antwonne Strong) owned the leased premises located at 12255 S. Halsted Street in Chicago, having purchased the property following a lender's foreclosure. Milton claimed that as of May 31, 2016, Thera owed $5109 in unpaid rent under a commercial lease for the property entered into between Thera and Letitia Jenkins, the previous owner of the property. A copy of the lease was attached to the complaint. The lease between Jenkins (whose first name was incorrectly spelled "Leticia" in the lease) and Thera had a 10-year term commencing February 2, 2012, and provided for monthly rent in the amount of $425. Milton also attached a ledger purportedly showing the history of rent payments, which reflected monthly payments of $425. Finally, Milton attached a 10-day notice reflecting service on Thera on May 3, 2016.

         ¶ 4 On the same day the complaint was filed, Milton changed the locks on the premises, proceeded to commence major construction work, and removed and discarded certain personal property used in Thera's business, a salon called Tata Hair Braiding, which Thera operated with his wife.

         ¶ 5 Milton's self-help was the subject of substantial motion practice in the forcible entry case. The trial court initially ordered Milton to provide Thera with keys to the new locks by July 22, 2016. During a status hearing on July 28, 2016, the court ordered Milton to complete the rehab work on the premises by August 11, 2016, and to provide Thera access to the premises. Additionally, during this hearing, Milton sought and was granted leave to amend her complaint to add a party and a count based on Milton's claimed discovery of a different lease for the premises. Despite the court's July 28 order, Milton again changed the locks on July 29.

         ¶ 6 Milton did not immediately file her amended complaint, and after she changed the locks for the second time, Thera filed a counterclaim seeking lost business profits as a result of being locked out of the premises. On September 13, 2016, Thera also filed a petition for a rule to show cause against Milton for having failed to comply with the July 28 order regarding completion of the work and providing Thera access to the premises.

         ¶ 7 Milton responded to the petition, alleging that she lacked control over completion of the work, since she had no expertise in construction and had hired a contractor to perform the repairs. Milton also filed a motion to dismiss Thera's counterclaim, arguing that Thera's claim for lost profits was not within the scope of the forcible entry proceedings. Milton later filed her amended verified complaint on October 14, 2016.

         ¶ 8 In her amended complaint, which added Traore as a defendant, Milton claimed that the lease attached to her original complaint was not, in fact, a valid lease for the property and that both she and the lender had been unaware of the existence of any other lease at the time Milton purchased the property. Milton alleged that the lease attached to the original complaint had been forged by Thera in an attempt to make a "legitimate claim to possession of the property." Milton claimed the real lease for the property-attached as an exhibit to the amended complaint-was entered into between Jenkins (whose first name is correctly spelled "Letitia") and Traore, doing business as Tata Hair Braiding. According to Milton, Traore "allowed [Thera] to use the property." The newly discovered lease was for a three-year period from April 1, 2011, to April 1, 2014, and provided for rent in the amount of $900 per month. The tenant's signature on the lease is illegible, but there are initials next to Traore's name on the same page. "Oumou Thera" is also listed as a tenant, but there are no initials next to that name, and Thera did not sign the lease. Unlike the original complaint, the amended complaint did not attach the ledger of rental payments showing rental payments of $425 per month during 2015 and 2016, when the supposed "real" lease would not have been in effect. In addition to the count seeking possession of the property, Milton included a claim for fraud based on Thera's alleged conduct in forging the 10-year lease. She sought $1425 in damages, representing unpaid rent under the newly discovered lease.

         ¶ 9 The trial court held a hearing on Thera's petition for a rule to show cause on October 21, 2016. The order entered on that date recites, "Defendant's motion is granted and a Rule to Show Cause is entered against Plaintiffs; Plaintiffs are ordered (again) to complete all work in the leased premises by 11/30/16." The order further reserved consideration of Milton's "right to recover attorney's fees & costs & related relief." No transcript of the October 21, 2016, hearing is contained in the record, and the order contains no factual findings. Thera later filed a petition for attorney fees.

         ¶ 10 The work on the premises was not completed by November 30. After a status hearing held on December 14, the court ordered that the tenants could resume occupancy of the premises the following day based on Milton's representation that the work had been completed.

         ¶ 11 Thera filed a second petition for a rule to show cause on January 24, 2017, alleging that Milton had failed to comply with the October 21, 2016 order because work on the premises had not been completed, evidenced by the fact that the premises lacked heat and running water. The court granted Milton an opportunity to respond and also granted Thera leave to file a fee petition relative to the first petition for a rule to show cause.

         ¶ 12 In her response, Milton asserted that, insofar as heat and running water were concerned, she was unable to comply with the court's order because neither of those utilities was in her name. She pointed out that both the original and the newly discovered lease provide that the tenant is responsible for utilities. Milton further asserted that work on the premises was complete "to the extent that Defendants can move back into the property and continue their business."

         ¶ 13 All matters, including Milton's motion to dismiss the counterclaim and Thera's pending petition for rule, were later scheduled for trial on March 16, 2017. No transcript of the trial is included in the record, and the parties have instead provided us with an agreed statement of facts pursuant to Illinois Supreme Court Rule 323(d) (eff. Dec. 13, 2005). As it pertains to the evidence at trial, the parties stipulated:

"Milton testified she purchased the Premises from a bank knowing that defendant was then leasing the Premises pursuant to a lease that had been given to Milton by the Bank ('Lease A') and that this lease provided for defendant to pay $425.00 in rent per month for the Premises. Lease A was entered into evidence. (PX1) After filing this lawsuit, Milton testified she spoke with Jenkins who provided her with another lease for the Premises, which lease was not signed by Defendant ('Lease B'). Lease B was also admitted into evidence. (PX2) Lease B provided for rent in the amount of $900.00 per month for the Premises. Jenkins testified she owned the Premises before it was foreclosed by the bank and sold to Plaintiff. She testified that Lease A was never signed by her and that her first name was spelled incorrectly and that Lease B was the last lease she signed for the Premises before the Premises was foreclosed on. Letitia provided two checks corresponding to rent under the lease that she provided, both of which were from 2011 and pre-dated the commencement of the term of Lease A.
On cross-examination, Milton admitted that, in March 2016, she acquired the Premises knowing that Defendant was leasing the Premises to operate his business under Lease A. Milton admitted that, in March 2016, she met with Defendant and told him that she now owned the Premises. She then accepted from Defendant on March 4 a rent payment for March 2016 in the amount of $425 under Lease A and provided defendant with a receipt. Milton admitted that, in April and May 2017, she refused *** to provide Defendant with a receipt for the $425 monthly rent payments Defendant offered. Milton admitted that her Landlord's Ten Day Notice contained incorrect statements. (DX3) For instance, the Notice was purportedly signed by Milton on May 3, 2016, but was notarized by Linda Nickel on June 3, 2010. The Notice sought payment of $5, 109 in rent but Milton had just acquired title to the Premises in March 2017 and had accepted the March rent payment from Defendant. As a result, $5, 109 of rent was not due Milton as of June 2017. After filing the forcible action on June 8, 2017, Milton admitted that she subsequently accepted Defendant's April and May 2016 rent payments ($425 each, totaling $850) that were tendered through her counsel on June 27, 2016. (DX2) Milton admitted also that, on June 8, 2017, she locked Defendant out of the Premises without advance notice so that he could not operate his business, removed all of his belongings from the Premises, and demolished much of the interior.
On cross-examination, Jenkins admitted that before the premises was foreclosed on by the bank, Defendant had been her tenant, had been paying her rent, and that she had provided Defendant with monthly receipts for his $425 rent payments.
Defendant testified that, from August 2000 to the present, he and his wife operated 'Tata Hair Braiding' at 12255 S. Halsted in Chicago under a series of written leases. Most recently, in January 2012, defendant, as tenant, and Jenkins, as landlord, entered into Lease A for the Premises[.] The Lease A term commenced February 2, 2012, and ends February 2, 2022. The rent is $425 per month. Defendant provided proof of the receipts provided to him by Jenkins for the dozen or so monthly $425 payments that he had timely made to Jenkins under Lease A in 2014, before the foreclosure proceedings began and a receiver was appointed. (DX4) Defendant testified that, before Milton purchased the Premises, he recorded Lease A on April 30, 2015, with the Cook County Recorder of Deeds as Document No. 1512013025. In March 2016, Defendant testified that Milton stopped by and informed defendant she now owned the Premises, having purchased it from a bank due to the Premises being in foreclosure. As a result, Defendant testified he paid Milton rent for March 2016 in the amount due under Lease A ($425) and that Milton accepted the payment and tendered to him a receipt. (DX1) Defendant denied being a party to Lease B or ever paying rent under Lease B. In April and May, Defendant testified that Milton refused to provide him with receipts for the $425 rent payments he was offering to make. After the filing of the forcible action, defendant tendered to Plaintiffs' counsel on June 27, 2016, his April and May 2016 rent payments that had been due under Lease A ($425 each, for a total ...

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