Russell v. Howe
Annotate this Case
No. 2--97--0430
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
RENEE RUSSELL, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 97--CH--0228
)
HENRY HOWE and ILENE HOWE, ) Honorable
) Melvin E. Dunn,
Defendants-Appellees. ) Judge, Presiding.
JUSTICE COLWELL delivered the opinion of the court:
Defendants, Henry and Ilene Howe, leased two rooms of their
home to plaintiff, Renee Russell, and her children. After
defendants denied plaintiff access to the premises, plaintiff sued
defendants for trespass and for breach of the implied covenant of
quiet enjoyment. Plaintiff also requested a preliminary injunction
and moved for a temporary restraining order to prevent defendants
from interfering with plaintiff's access to the premises. The trial
court issued the temporary restraining order, denied the preliminary
injunction, and awarded possession of the premises to defendants.
On appeal, plaintiff argues that the trial court (1) abused its
discretion in denying the preliminary injunction; and (2) lacked the
jurisdiction to award possession of the premises to defendants.
Defendants did not file a brief in this appeal. For the reasons set
forth below, we vacate the trial court's order denying the
preliminary injunction and awarding possession to defendants.
I. FACTS
The following facts are not in dispute. On February 14, 1997,
defendants verbally agreed to lease two rooms of their
Carpentersville home (the premises) on a month-to-month basis to
plaintiff and her two children. On the same day, after tendering
to defendants $300 for the first month's rent and $200 toward the
security deposit, plaintiff moved in. Although plaintiff did not
receive a key to the premises, defendants assured her that someone
always would be available to let her in. One week later, plaintiff
tendered to defendants $300 for the second month's rent, $100 for
the balance of the security deposit, and $20 for the water bill.
On March 21, 1997, plaintiff experienced car trouble and called
defendants to inform them that she might not return that evening as
planned. Defendants informed plaintiff that they no longer would
allow plaintiff and her children to enter the premises. A few days
later, plaintiff's attorney contacted defendants in an attempt to
resolve the dispute. Defendants advised plaintiff's attorney that
they would not allow plaintiff and her children to enter the
premises without a court order.
On March 31, 1997, plaintiff sued defendants for trespass and
for breach of the implied covenant of quiet enjoyment. In her
verified complaint, plaintiff sought, among other relief, a
preliminary injunction to prevent defendants from further
interfering with plaintiff's access to the premises. On the same
day, plaintiff also moved for a temporary restraining order. After
issuing the temporary restraining order, the trial court scheduled
a hearing for 10:30 a.m. on April 10, 1997, to determine whether
plaintiff was entitled to a preliminary injunction. Defendants did
not file a single pleading in the trial court.
On April 10, 1997, plaintiff's attorney arrived in court at
10:33 a.m. to discover that the trial court had already conducted
the preliminary injunction hearing. Although defendants still had
not filed a single pleading, the trial court denied plaintiff's
request for a preliminary injunction and granted possession of the
premises to defendants. Plaintiff immediately moved to vacate the
trial court's order.
On April 14, 1997, the trial court denied plaintiff's motion
to vacate the April 10, 1997, order. Plaintiff then filed a notice
of interlocutory appeal (see 166 Ill. 2d R. 307(a)(1)) and a motion
to stay the execution of the April 10, 1997, order pending appeal.
On April 15, 1997, the trial court denied plaintiff's motion for a
stay. In its order, the trial court stated that, because the
"Municipal Ordinance of the Village of Carpentersville" prohibited
plaintiff and her children from occupying the premises, the trial
court would not "order a willful violation of such an ordinance."
The order did not, however, specify any particular portion of the
ordinance.
II. ANALYSIS
At the outset, we note that, although defendants did not file
a brief in this appeal, the issues presented are relatively
straightforward. Therefore, we may decide this appeal without the
benefit of defendants' brief. See First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
A. ABUSE OF DISCRETION
On appeal, plaintiff first argues that the trial court abused
its discretion in denying plaintiff's request for a preliminary
injunction. We agree.
In Illinois, the trial court has broad discretion in
determining whether to grant a preliminary injunction. Lou Owen,
Inc. v. Village of Schaumburg, 279 Ill. App. 3d 976, 984 (1996).
Consequently, a reviewing court will reverse a trial court's refusal
to grant a preliminary injunction only if that refusal constitutes
an abuse of discretion. Lou Owen, Inc., 279 Ill. App. 3d at 984.
As a general rule, the trial court will grant a preliminary
injunction where the plaintiff shows that she (1) has a clearly
ascertainable right that needs protection; (2) will suffer
irreparable harm without the protection; (3) has no adequate remedy
at law; and (4) is likely to succeed on the merits. Postma v. Jack
Brown Buick, Inc., 157 Ill. 2d 391, 399 (1993). Where the defendant
answers or responds to the plaintiff's complaint, the trial court
must hold a hearing to determine the legal sufficiency of that
complaint and to resolve any questions of material fact. Carriage
Way Apartments v. Pojman, 172 Ill. App. 3d 827, 835-36 (1988).
Where the defendant does not answer or respond, however, the trial
court need not hold a hearing because the sole question is whether
the complaint is legally sufficient. Carriage Way Apartments, 172
Ill. App. 3d at 835-36. Consequently, if the defendant does not
answer or respond, the trial court may not receive or consider
extraneous evidence when deciding whether to issue the preliminary
injunction. Carriage Way Apartments, 172 Ill. App. 3d at 836.
In this case, plaintiff filed a verified complaint seeking,
among other relief, a preliminary injunction to prevent defendants
from interfering with plaintiff's access to the premises.
Defendants neither answered nor responded to that complaint. Thus,
in deciding whether to grant the preliminary injunction, the trial
court should have confined its inquiry to the legal sufficiency of
plaintiff's complaint. See Carriage Way Apartments, 172 Ill. App.
3d at 836.
The trial court's April 15, 1997, order makes clear, however,
that the trial court denied the preliminary injunction not because
plaintiff's complaint was legally insufficient but because the trial
court believed that plaintiff's occupation of the premises violated
the Carpentersville municipal code. Whether the Carpentersville
municipal code prohibits plaintiff's occupation of the premises is
an issue that may be relevant at some future point in these
proceedings. However, that issue can be resolved only by
considering evidence falling outside the four corners of plaintiff's
complaint. Thus, under Carriage Way Apartments, the trial court
should not have considered that issue when deciding whether to grant
the preliminary injunction. See Carriage Way Apartments, 172 Ill.
App. 3d at 836.
Accordingly, because the trial court considered improper
evidence in deciding whether to grant the preliminary injunction,
we hold that the trial court's denial of that injunction was an
abuse of discretion. We therefore (1) vacate the portion of the
trial court's April 10, 1997, order that denied plaintiff's request
for a preliminary injunction, and (2) remand this cause to a
different trial judge for a new hearing on plaintiff's request for
a preliminary injunction.
B. THE TRIAL COURT'S JURISDICTION
Plaintiff next argues that this court must vacate the remainder
of the trial court's April 10, 1997, order because the trial court
lacked the jurisdiction necessary to award possession of the
premises to defendants. Again, we agree.
In Illinois, the Forcible Entry and Detainer Act (the Act) (735
ILCS 5/9--101 et seq. (West 1996)) provides the sole means for
settling a dispute over the possession of real property. City of
Quincy v. Daniels, 246 Ill. App. 3d 792, 797 (1993); People v.
Evans, 163 Ill. App. 3d 561, 565 (1987). Moreover, because a
forcible entry and detainer action is in derogation of the common
law, the party bringing such an action must comply with the
requirements of the Act, especially those relating to jurisdiction.
Nance v. Bell, 210 Ill. App. 3d 97, 99 (1991). If the party
bringing the action fails to comply with the Act's jurisdictional
requirements, the trial court lacks jurisdiction over the dispute
and is powerless to award possession. See Nance, 210 Ill. App. 3d
at 100-01.
Although it is not the only jurisdictional prerequisite to a
forcible entry and detainer action, a complaint is perhaps the most
fundamental. Indeed, section 9--106 of the Act states that an
action for forcible entry and detainer commences when the party
seeking possession files a complaint in the circuit court for the
county in which the premises are located. See 735 ILCS 5/9--106
(West 1996). Moreover, for more than 100 years, the Illinois courts
have treated a written complaint as a jurisdictional prerequisite
in forcible entry and detainer actions. See Redfern v. Botham, 70
Ill. App. 253, 254 (1897); Abbott v. Kruse, 37 Ill. App. 549, 551
(1891). Thus, if the party seeking possession fails to file a
forcible entry and detainer complaint, the trial court lacks
jurisdiction over the dispute and is powerless to award possession.
See Redfern, 70 Ill. App. at 254; Abbott, 37 Ill. App. at 551.
In this case, the trial court awarded possession of the
premises to defendants. Defendants, however, never filed a written
complaint for forcible entry and detainer. In fact, with the
exception of defense counsel's appearance, defendants did not file
a single piece of paper with the trial court. Thus, the trial court
possessed neither jurisdiction over defendants' claim to possession
nor the power to award possession of the premises to defendants.
See 735 ILCS 5/9--106 (West 1996); see also Redfern, 70 Ill. App.
at 254; Abbott, 37 Ill. App. at 551. Accordingly, we vacate the
portion of the trial court's April 10, 1997, order that awarded
possession of the premises to defendants.
III. CONCLUSION
In sum, we hold that the trial court (1) abused its discretion
in denying plaintiff's motion for a preliminary injunction; and (2)
lacked the jurisdiction necessary to award possession of the
premises to defendants. Accordingly, we vacate the trial court's
April 10, 1997, order in its entirety and remand this cause for a
new hearing on plaintiff's request for a preliminary injunction.
For the foregoing reasons, the circuit court of Kane County's
April 10, 1997, order is vacated, and the cause is remanded.
Vacated and remanded.
BOWMAN and DOYLE, JJ., concur.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
RENEE RUSSELL, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 97--CH--0228
)
HENRY HOWE and ILENE HOWE, ) Honorable
) Melvin E. Dunn,
Defendants-Appellees. ) Judge, Presiding.
JUSTICE COLWELL delivered the opinion of the court:
Defendants, Henry and Ilene Howe, leased two rooms of their
home to plaintiff, Renee Russell, and her children. After
defendants denied plaintiff access to the premises, plaintiff sued
defendants for trespass and for breach of the implied covenant of
quiet enjoyment. Plaintiff also requested a preliminary injunction
and moved for a temporary restraining order to prevent defendants
from interfering with plaintiff's access to the premises. The trial
court issued the temporary restraining order, denied the preliminary
injunction, and awarded possession of the premises to defendants.
On appeal, plaintiff argues that the trial court (1) abused its
discretion in denying the preliminary injunction; and (2) lacked the
jurisdiction to award possession of the premises to defendants.
Defendants did not file a brief in this appeal. For the reasons set
forth below, we vacate the trial court's order denying the
preliminary injunction and awarding possession to defendants.
I. FACTS
The following facts are not in dispute. On February 14, 1997,
defendants verbally agreed to lease two rooms of their
Carpentersville home (the premises) on a month-to-month basis to
plaintiff and her two children. On the same day, after tendering
to defendants $300 for the first month's rent and $200 toward the
security deposit, plaintiff moved in. Although plaintiff did not
receive a key to the premises, defendants assured her that someone
always would be available to let her in. One week later, plaintiff
tendered to defendants $300 for the second month's rent, $100 for
the balance of the security deposit, and $20 for the water bill.
On March 21, 1997, plaintiff experienced car trouble and called
defendants to inform them that she might not return that evening as
planned. Defendants informed plaintiff that they no longer would
allow plaintiff and her children to enter the premises. A few days
later, plaintiff's attorney contacted defendants in an attempt to
resolve the dispute. Defendants advised plaintiff's attorney that
they would not allow plaintiff and her children to enter the
premises without a court order.
On March 31, 1997, plaintiff sued defendants for trespass and
for breach of the implied covenant of quiet enjoyment. In her
verified complaint, plaintiff sought, among other relief, a
preliminary injunction to prevent defendants from further
interfering with plaintiff's access to the premises. On the same
day, plaintiff also moved for a temporary restraining order. After
issuing the temporary restraining order, the trial court scheduled
a hearing for 10:30 a.m. on April 10, 1997, to determine whether
plaintiff was entitled to a preliminary injunction. Defendants did
not file a single pleading in the trial court.
On April 10, 1997, plaintiff's attorney arrived in court at
10:33 a.m. to discover that the trial court had already conducted
the preliminary injunction hearing. Although defendants still had
not filed a single pleading, the trial court denied plaintiff's
request for a preliminary injunction and granted possession of the
premises to defendants. Plaintiff immediately moved to vacate the
trial court's order.
On April 14, 1997, the trial court denied plaintiff's motion
to vacate the April 10, 1997, order. Plaintiff then filed a notice
of interlocutory appeal (see 166 Ill. 2d R. 307(a)(1)) and a motion
to stay the execution of the April 10, 1997, order pending appeal.
On April 15, 1997, the trial court denied plaintiff's motion for a
stay. In its order, the trial court stated that, because the
"Municipal Ordinance of the Village of Carpentersville" prohibited
plaintiff and her children from occupying the premises, the trial
court would not "order a willful violation of such an ordinance."
The order did not, however, specify any particular portion of the
ordinance.
II. ANALYSIS
At the outset, we note that, although defendants did not file
a brief in this appeal, the issues presented are relatively
straightforward. Therefore, we may decide this appeal without the
benefit of defendants' brief. See First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
A. ABUSE OF DISCRETION
On appeal, plaintiff first argues that the trial court abused
its discretion in denying plaintiff's request for a preliminary
injunction. We agree.
In Illinois, the trial court has broad discretion in
determining whether to grant a preliminary injunction. Lou Owen,
Inc. v. Village of Schaumburg, 279 Ill. App. 3d 976, 984 (1996).
Consequently, a reviewing court will reverse a trial court's refusal
to grant a preliminary injunction only if that refusal constitutes
an abuse of discretion. Lou Owen, Inc., 279 Ill. App. 3d at 984.
As a general rule, the trial court will grant a preliminary
injunction where the plaintiff shows that she (1) has a clearly
ascertainable right that needs protection; (2) will suffer
irreparable harm without the protection; (3) has no adequate remedy
at law; and (4) is likely to succeed on the merits. Postma v. Jack
Brown Buick, Inc., 157 Ill. 2d 391, 399 (1993). Where the defendant
answers or responds to the plaintiff's complaint, the trial court
must hold a hearing to determine the legal sufficiency of that
complaint and to resolve any questions of material fact. Carriage
Way Apartments v. Pojman, 172 Ill. App. 3d 827, 835-36 (1988).
Where the defendant does not answer or respond, however, the trial
court need not hold a hearing because the sole question is whether
the complaint is legally sufficient. Carriage Way Apartments, 172
Ill. App. 3d at 835-36. Consequently, if the defendant does not
answer or respond, the trial court may not receive or consider
extraneous evidence when deciding whether to issue the preliminary
injunction. Carriage Way Apartments, 172 Ill. App. 3d at 836.
In this case, plaintiff filed a verified complaint seeking,
among other relief, a preliminary injunction to prevent defendants
from interfering with plaintiff's access to the premises.
Defendants neither answered nor responded to that complaint. Thus,
in deciding whether to grant the preliminary injunction, the trial
court should have confined its inquiry to the legal sufficiency of
plaintiff's complaint. See Carriage Way Apartments, 172 Ill. App.
3d at 836.
The trial court's April 15, 1997, order makes clear, however,
that the trial court denied the preliminary injunction not because
plaintiff's complaint was legally insufficient but because the trial
court believed that plaintiff's occupation of the premises violated
the Carpentersville municipal code. Whether the Carpentersville
municipal code prohibits plaintiff's occupation of the premises is
an issue that may be relevant at some future point in these
proceedings. However, that issue can be resolved only by
considering evidence falling outside the four corners of plaintiff's
complaint. Thus, under Carriage Way Apartments, the trial court
should not have considered that issue when deciding whether to grant
the preliminary injunction. See Carriage Way Apartments, 172 Ill.
App. 3d at 836.
Accordingly, because the trial court considered improper
evidence in deciding whether to grant the preliminary injunction,
we hold that the trial court's denial of that injunction was an
abuse of discretion. We therefore (1) vacate the portion of the
trial court's April 10, 1997, order that denied plaintiff's request
for a preliminary injunction, and (2) remand this cause to a
different trial judge for a new hearing on plaintiff's request for
a preliminary injunction.
B. THE TRIAL COURT'S JURISDICTION
Plaintiff next argues that this court must vacate the remainder
of the trial court's April 10, 1997, order because the trial court
lacked the jurisdiction necessary to award possession of the
premises to defendants. Again, we agree.
In Illinois, the Forcible Entry and Detainer Act (the Act) (735
ILCS 5/9--101 et seq. (West 1996)) provides the sole means for
settling a dispute over the possession of real property. City of
Quincy v. Daniels, 246 Ill. App. 3d 792, 797 (1993); People v.
Evans, 163 Ill. App. 3d 561, 565 (1987). Moreover, because a
forcible entry and detainer action is in derogation of the common
law, the party bringing such an action must comply with the
requirements of the Act, especially those relating to jurisdiction.
Nance v. Bell, 210 Ill. App. 3d 97, 99 (1991). If the party
bringing the action fails to comply with the Act's jurisdictional
requirements, the trial court lacks jurisdiction over the dispute
and is powerless to award possession. See Nance, 210 Ill. App. 3d
at 100-01.
Although it is not the only jurisdictional prerequisite to a
forcible entry and detainer action, a complaint is perhaps the most
fundamental. Indeed, section 9--106 of the Act states that an
action for forcible entry and detainer commences when the party
seeking possession files a complaint in the circuit court for the
county in which the premises are located. See 735 ILCS 5/9--106
(West 1996). Moreover, for more than 100 years, the Illinois courts
have treated a written complaint as a jurisdictional prerequisite
in forcible entry and detainer actions. See Redfern v. Botham, 70
Ill. App. 253, 254 (1897); Abbott v. Kruse, 37 Ill. App. 549, 551
(1891). Thus, if the party seeking possession fails to file a
forcible entry and detainer complaint, the trial court lacks
jurisdiction over the dispute and is powerless to award possession.
See Redfern, 70 Ill. App. at 254; Abbott, 37 Ill. App. at 551.
In this case, the trial court awarded possession of the
premises to defendants. Defendants, however, never filed a written
complaint for forcible entry and detainer. In fact, with the
exception of defense counsel's appearance, defendants did not file
a single piece of paper with the trial court. Thus, the trial court
possessed neither jurisdiction over defendants' claim to possession
nor the power to award possession of the premises to defendants.
See 735 ILCS 5/9--106 (West 1996); see also Redfern, 70 Ill. App.
at 254; Abbott, 37 Ill. App. at 551. Accordingly, we vacate the
portion of the trial court's April 10, 1997, order that awarded
possession of the premises to defendants.
III. CONCLUSION
In sum, we hold that the trial court (1) abused its discretion
in denying plaintiff's motion for a preliminary injunction; and (2)
lacked the jurisdiction necessary to award possession of the
premises to defendants. Accordingly, we vacate the trial court's
April 10, 1997, order in its entirety and remand this cause for a
new hearing on plaintiff's request for a preliminary injunction.
For the foregoing reasons, the circuit court of Kane County's
April 10, 1997, order is vacated, and the cause is remanded.
Vacated and remanded.
BOWMAN and DOYLE, JJ., concur.
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