Opinion
No. 1-13-1403
01-27-2014
ELIZABETH FICEK, Plaintiff-Appellant, v. BANKUNITED, GREEN RIVER CAPITAL, LLC, MELINDA GINES, RONALD PICKARD, DAVID PICKARD, SUSAN S. PICKARD, and SUBURBAN I, INC., Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Cook County.
No. 11L4054
Honorable
Raymond W. Mitchell,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Connors and Justice Cunningham concurred in the judgment.
ORDER
Held: There was no basis to reverse the trial court's dismissal of the plaintiff's second amended complaint, where the plaintiff attempted to assert a new claim for the first time on appeal, and her brief failed to comply with the requirements of Supreme Court Rule 341(e)(7) (eff. Feb. 26, 2010). ¶ 1 The plaintiff, Elizabeth Ficek, filed a second-amended complaint against the defendants seeking damages for violations of the Fair Debt Collection Practices Act (FDCPA)(15 U.S.C.A. §1692 et seq. (2008)); negligence per se, arising from the defendants' alleged violation of the Forcible Entry and Detainer Act (FEDA)(735 ILCS 5/9-101 et seq. (West 2008)); and trespass to chattels, arising from the defendants' alleged wrongful dispossession of the plaintiff from her residence. The defendants moved for judgment on the pleadings pursuant to section 2-615(e) of the Illinois Code of Civil Procedure (Code)(735 ILCS 5/2-615(e) (West 2010)), and the trial court granted the motion. The plaintiff now appeals from that dismissal. ¶ 1 The facts alleged in the second-amended complaint (complaint) are set forth as follows. The plaintiff is the mortgagor of a single family residence located at 524 W. Northwest Highway in Palatine (the property). The complaint named as defendants Bankunited, the holder of the mortgage encumbering the property; Green River Capital, as Bankunited's management company; and Melinda Gines, as an employee of Green River. The complaint also named Suburban I, Inc., a real estate company that allegedly evicted the plaintiff, and Suburban I's employees, Ronald Pickard, David Pickard, and Susan Pickard (realtor defendants). On July 16, 2008, Bankunited filed an action to foreclose on the mortgage encumbering the property, and on March 22, 2010, the circuit court entered an order of foreclosure, granting possession of the property to Bankunited effective April 21, 2010. The order directed that the sheriff of Cook County was to "place the plaintiff in possession of the premises" at issue. ¶ 2 According to the complaint, on May 19, 2010, the plaintiff "re-gained" possession of the property from "squatters who had moved in without her authority or consent." The complaint is silent as to when the plaintiff had relinquished possession of the property allowing the entry of the alleged squatters. On May 22, 2010, the realtor defendants, acting under the direction of Bankunited, entered the property, changed the locks, and posted a "no trespassing" sign along with the court order approving the sale of the property. The plaintiff asserts that, when the realtor defendants then refused her demand for keys, she changed the locks to the property. On May 24, 2010, the realtor defendants again allegedly entered the property, damaged and/or removed the new lock the plaintiff had placed on the door, removed the plaintiff's two pet cats, and then changed the locks to the property. ¶ 3 In June 2010, the plaintiff retained an attorney, who moved to quash the service of process "against the defendant in the foreclosure case." This motion was neither attached to the complaint in this case nor made part of the record on appeal; however, according to the complaint, the plaintiff had quitclaimed her interest in the property to an entity identified as "02103010191001 LLC", and this entity had been served by publication rather than through its registered agent or the Secretary of State. On June 16, 2010, the trial court granted the motion to quash, and entered an order vacating the judgment of foreclosure and placing Bankunited in possession of the property. According to the plaintiff, this order rendered the foreclosure order void ab initio. Thus, under Count I, the plaintiff alleged that the defendants, as "debt collectors" under the FDCPA, took nonjudicial action to effect a dispossession of her property without a present right of possession, in violation of section 1692(f)(6) of the FSCPA. 15 U.S.C.A. §1692(f)(6)(2008). Count II, designated "negligence per se," claimed that the defendants forcibly and unlawfully retook possession of her property by changing the locks, in violation of FEDA section 9-101 (735 ILCS 5/9-101 (West 2010)). Count III alleged that the defendants committed a trespass to chattels by changing the locks "pursuant to a void court order" so as to deprive the plaintiff of possession without filing a FEDA action. ¶ 4 The defendants subsequently moved to dismiss the complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)). On October 18, 2012, the trial court entered an order dismissing the complaint as to the realtor defendants, and on December 13, 2012, and February 27, 2013, the court entered orders dismissing the remaining defendants. The court subsequently denied the plaintiff's request to file a third-amended complaint, pointing out the that the plaintiff "has had three opportunities to plead a viable cause of action and, at this point, it is apparent that she can state no set of facts that will entitle her to relief." The plaintiff now appeals only from the orders dismissing her complaint under section 2-615. ¶ 5 On appeal, the plaintiff does not articulate any particular error by the trial court in dismissing her complaint. Rather, she seeks reversal on the sole basis that the defendants committed a "wrongful eviction" by changing her locks and "engaging in self-help," when the foreclosure order allowed only the Sheriff to evict her and place the defendants in possession. Bankunited argues that this issue was not preserved in the trial court, is not properly argued on appeal, and is therefore waived. We agree. ¶ 6 It is well settled that an issue not raised in the lower court is waived and cannot be raised for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536, 662 N.E.2d 1248 (1996). In this case, the plaintiff's theory of wrongful eviction based upon an alleged lack of compliance with the foreclosure order was never asserted before the trial court. Accordingly, it is waived. Furthermore, we note that, although the original complaint did include a claim for wrongful eviction under FEDA, that cause of action was dismissed under Code section 2-615 and was never reasserted in the first or second amended complaints. Accordingly, it has been abandoned and is not subject to review on appeal. Foxcroft Townhome Owners Ass'n. v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54, 449 N.E.2d 125 (1983); Gaylor v. Campion, Curran, Rausch, Gummerson & Dunlop, P.C., 2012 IL App (2d) 110718 ¶ 35, 980 N.E.2d 215. ¶ 7 Even if we were inclined to consider the merits of the plaintiff's argument, they too have been waived by her failure to comply with Supreme Court Rule 341(h)(7) (210 Ill.2d R. 341(h)(7)). This rule requires an appellant's brief to include her contentions on appeal and the reasons therefor, supported with citation of authority. Salgado v. Marquez, 356 Ill.App.3d 1072, 1074, 828 N.E.2d 805 (2005), quoting 210 Ill.2d R. 341(h)(7). A reviewing court is entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument presented. Thrall Car Manufacturing Co. v. Lindquist, 145 Ill.App.3d 712, 719, 495 N.E.2d 1132 (1986). This court is under no obligation to act as an advocate for the appellant or assume the burden of researching her case. U.S. Bank v. Lindsey, 397 Ill.App.3d 437, 459, 920 N.E.2d 515 (2009). ¶ 8 Here, the plaintiff's argument consists only of the statement set forth above, followed by a citation to one case, McCormick v. Potter-Herrick Wall Paper Mills, 147 Ill. App. 487 (1909). McCormick, however, has no relevance to the plaintiff's argument here, and in fact held that the locking of the leased premises did not constitute an eviction under the facts of that case. ¶ 9 Aside from its lack of relevance, we note that McCormick is an opinion of the appellate court rendered in 1909. Since the opinion was rendered before 1935, it has no precedential value in any case other than the one in which it was rendered. Bryson v. News America Publications Inc., 174 Ill. 2d 77, 95, 672 N.E.2d 1207 (1996); Parker v. Murdoch, 2011 IL App. (1st) 101645 ¶ 23, 959 N.E.2d 1219. That being the case, the appellant has failed to cite any authority in support of the issue raised on appeal, and the issue is therefore waived. ¶ 10 For the foregoing reasons, the decision of the circuit court is affirmed. ¶ 11 Affirmed.