Opinion
No. 1-12-1246
02-14-2013
THE HABITAT COMPANY, Plaintiff-Appellee, v. VALERIE SCOTT and ALL UNKNOWN OCCUPANTS, Defendants-Appellants.
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. 12 MI 703322
The Honorable
Anthony Burrell
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Epstein and Pucinski concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not prohibit defendant from presenting a defense or otherwise violate her right to due process. The record as a whole showed that defendant failed to use available court procedure to assist in her defense, not that the trial court thwarted any attempt to do so. Affirmed. ¶ 2 Defendant, Valerie Scott, appeals from the trial court's order, granting plaintiff, The Habitat Company, possession of defendant's apartment and a monetary judgment in the amount of $991.85 plus costs. On appeal, defendant contends that the trial court violated her right to due process. Specifically, defendant contends that she was prohibited from putting on a defense, plaintiff posed leading questions, notice of termination was untimely and witnesses were not sworn. In addition, defendant contends that the court failed to apply the correct substantive law. Defendant further contends that the trial court erred by denying defendant's motion to vacate the judgment entered in plaintiff's favor. We affirm.
¶ 3 BACKGROUND
¶ 4 We recite only those facts necessary to understand the issues raised on appeal. Defendant is an elderly tenant and recipient of housing assistance payments pursuant to the project-based portion of section 8 of the Housing Act of 1937 (42 U.S.C. § 1437f (West 2012)). For the past 28 years, defendant has used this assistance to rent a two-bedroom apartment located at 5539 N. Winthrop No. 3, in Chicago, Illinois (premises), and prior to this action, was responsible for a monthly payment of $123. For the past nine years, defendant's minor granddaughter has resided with her. Although defendant states in her brief that her granddaughter is named on the lease, the record as a whole suggests that the additional named tenant, Latoya Trice, is actually defendant's daughter. Throughout 2011, defendant allegedly complained to plaintiff of habitability problems in the premises. ¶ 5 Each year the Department of Housing and Urban Development (HUD) requires that individuals seeking section 8 housing assistance submit to a recertification process to review income and family composition in order to redetermine rent and assistance levels. 24 CFR § 982.516 (West 2012). Failure to complete the recertification process will result in ineligibility for assistance. On November 30, 2011, defendant received a notice from plaintiff to recertify or her subsidy would be terminated. Recertification required the following:
"1. Receipts or stubs for employment, unemployment, self-employment, social security, supplemental security income, welfare, pension fund, and alimony/childAccording to the record presented on appeal, there is no evidence to suggest defendant provided any of the above documents to plaintiff on or before the requested date. ¶ 6 On January 1, 2012, plaintiff demanded the full market rent of $1,037 per month. Five days later, defendant paid $123 towards her January 2012 rent and $25 for her January 2012 parking. Defendant subsequently received a notice of termination of tenany on January 17, 2012, and failed to pay the remainder of her January 2012 rent within the five-day period required by HUD. 24 CFR § 247.4 (West 2012). Plaintiff then filed an action against defendant to recover possession of the premises and unpaid rent. ¶ 7 At a bench trial on March 16, 2012, defendant appeared pro se. Defendant submitted an agreed statement of facts pursuant to Illinois Supreme Court Rule 323(d). Ill. S. Ct. R. 323(d) (eff. Dec. 13, 2005). Although, the actual trial transcript has not been included in our record on appeal. Ms. Martinez, plaintiff's employee, testified that defendant's rent would be adjusted according to her income as long as she recertified as required by HUD. Martinez testified that she sent defendant adequate notice that her subsidy would be terminated effective January 1, 2012, if she did not recertify and comply with the requirements. After failing to seek recertification, defendant only paid a portion of the January rent. Defendant was given a timely notice of termination, but failed to pay the remainder of the rent due within the five-day period. Additionally, defendant failed to pay rent in February and March. Plaintiff admitted, three exhibits, not included in the record on appeal. ¶ 8 After plaintiff rested, the trial court questioned defendant. She testified that she received a copy of the termination notice, but failed to pay the remainder of rent within the five-day period. Defendant further testified that she went to the office and was told that she needed to produce guardianship papers for her granddaughter. Defendant also testified, however, that this was the first time she was asked for this documentation and she was "not going to get them." Defendant was concerned that asking for guardianship papers would initiate a fight with her daughter. Plaintiff then gave defendant the portion of the paid rent back. Defendant conceded that she was responsible for obtaining and retaining her subsidy. ¶ 9 The trial court found plaintiff did nothing to hinder defendant from getting her subsidy and it was defendant's responsibility to bring necessary documentation to plaintiff. Therefore, her failure made her liable for market rent. The trial court held that plaintiff proved its case by the preponderance of the evidence and granted plaintiff possession of the premises, as well as money judgement in the amount of $991.85 plus costs. In addition, the trial court stayed the order until April 15, 2012, since defendant had resided in the premises for so long. On April 12, 2012, defendant filed an emergency notice to vacate the judgment entered in plaintiff's favor citing retaliatory eviction, waiver of plaintiff's claims and lack of due process. After a hearing on April 13, 2012, the motion was denied. Defendant now appeals.
support payments, educational status, etc, for you and your daughter.
2. Information regarding savings and checking accounts, money market funds, trust, certificates of deposits, stocks/bonds, IRA/Keogh or other retirement/investment accounts, etc, for you and your daughter.
3. Bills for medical insurance payments, health care professionals and facilities, eye doctors, dentists, hearing aids, prescription drugs, medical assistance, monthly payments on accumulated medical bills, etc, for you and your daughter.
4. Legal guardianship papers for your granddaughter to be added to the lease.
5. Current postal mail to show new residency of your daughter, in order to have her removed from your lease. If new residency cannot be verified, your daughter will remain on the lease. If that is the case, please provide income information for your daughter as well."
¶ 10 ANALYSIS
¶ 11 Defendant contends that the trial court violated her right to due process. Specifically, defendant contends that she was prohibited from putting on a defense, plaintiff posed leading questions, notice of termination was untimely and witnesses were not sworn. Where, as here, the issue involves a question of law, whether defendant's right to due process was violated, we apply a de novo standard of review. Lamm v. McRaith, 2012 IL App (1st) 112123 ¶ 23. Under the Forcible Entry and Detainer Act, the party asserting her right to possession has the burden of proof and must establish her right by a preponderance of the evidence. Circle Management, LLC, v. Olivier, 378 Ill. App. 3d 601, 609 (2007); 735 ILCS 5/9-109.5 (West 2012). The defendant has the right to assert any germane defenses in response to the plaintiff's possession claim. Rotheimer v. Arana, 384 Ill. App. 3d 569, 576 (2008); 735 ILCS 5/9-106 (West 2012). In addition, the trial court must consider the underlying merits of a possession claim, as well as the basic procedural requirements of trial. Circle Management, LLC., 378 Ill. App. 3d at 611. An eviction trial, like any other civil trial, should be an orderly procedure wherein the plaintiff presents evidence of possession and compliance with the necessary procedural steps for notice of termination. Eckel v. MacNeal, 256 Ill. App. 3d 292, 296 (1993). ¶ 12 Relying on Eckel, defendant first contends that the trial court failed to conduct a proper trial. We find plaintiff's reliance on Eckel misplaced. In Eckel, the appellate court reversed the trial court's order granting a landlord possession of an apartment because the trial court never considered the merits of the possession claim. Id. at 698. In contrast, here, defendant was afforded due process because the trial court adequately considered the underlying merits of plaintiff's possession claim, which plaintiff proved by a preponderance of the evidence. ¶ 13 The record also rebuts defendant's assertion that the trial court prohibited her from presenting a proper defense. At trial, the court gave defendant an opportunity to present evidence and be heard. The trial court specifically asked defendant why she did not pay her rent after receiving the five-day notice and defendant relayed her side of the dispute. In addition, defendant admitted to the trial court that it was her responsibility to get and keep her subsidy, which she failed to do by the required date. Contrary to defendant's assertion, the trial court's questioning of defendant was not improper and the record reflects that the court was trying to provide defendant with assistance in proving her version of events. Furthermore, the record provided on appeal, contains no evidence that defendant attempted to use court procedures to put on a defense. Pro se litigants are presumed to have full knowledge of applicable court rules and procedures that would be required of litigants represented by counsel. Fiallo v. Lee, 356 Ill. App. 3d 649, 657 (2005). Defendant did not request to call witnesses, object to alleged leading questions, question plaintiff's witness, ask to testify further in her own behalf or argue any affirmative defenses, such as improper notice of termination. Moreover, she failed to raise these issues below and it is well settled that issues cannot be raised for the first time on appeal and are thus, forfeited. See Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755 ¶ 24. As already stated, it was defendant's burden to provide herself with a proper defense, even if she was acting pro se. There is nothing in the record to suggest that the trial court denied any attempt made by defendant to do so, let alone denied her due process. ¶ 14 In a related argument, defendant further contends that witnesses were not properly sworn. It is unclear from the record what actually occurred. Rule 323(d) allows parties to present an agreed statement of facts in lieu of filing a report of the proceedings, as was done in the instant case. Ill. S. Ct. R. 323(d) (eff. Dec. 13, 2005). Nonetheless, an appellant maintains the burden of presenting a sufficiently complete record of the proceedings at trial to support a claim of error, and in absence of such a record on appeal, it will be presumed the trial court was in conformity with the law and had a sufficient factual basis. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001). Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984). Here, we are unable to ascertain whether the agreed statement of facts is actually a complete recitation of the proceeding. Therefore, we assume the witness was sworn. Moreover, defendant fails to cite any relevant legal authority for her argument that failure to swear-in a witness is reversible error, as required by Illinois Supreme Court Rule 341(h)(7) (eff. Sept. 1, 2006). Accordingly, we need not consider this matter further. See TruServ Corp. v. Ernest & Young, LLP, 376 Ill. App. 3d 218, 227 (2007). ¶ 15 Defendant next contends that the trial court failed to apply the correct substantive law because neither Illinois nor federal law requires guardianship papers of a minor as a condition for recertification under HUD. Even assuming defendant is correct, we fail to see how this court can offer relief, and therefore, the argument is moot. Illinois courts do not decide moot questions or consider issues where the result will not be affected regardless of how those issues are decided. Wright Development Group, LLC, v. Walsh, 238 Ill. 2d 620, 632 (2010). Here, the record as a whole suggests that defendant took no substantial steps toward recertification. Defendant was asked to produce five sets of documents and failed to turn over any document to plaintiff. This is not simply a question of defendant's recertification being denied because she failed to produce guardianship papers. Even if we ruled that guardianship papers were not required under HUD, defendant still failed to meet her burden. The trial court was correct that it was defendant's responsibility to get and keep her subsidy. See 24 CFR §982.516 (West 2012). Therefore, this argument is moot and we need not consider it. ¶ 16 Defendant further contends that the trial court deprived her of her home without proper termination notice or an opportunity to present a defense. As stated above, the trial court provided defendant ample opportunity to present her case. The record shows that contrary to defendant's assertion, the trial court was presented with evidence that plaintiff gave defendant proper termination notice. Regardless, defendant forfeited this issue by failing to raise it below. See Hartz Construction Co., Inc. v. Village of Western Springs, 2012 IL App (1st) 103108 ¶ 34. ¶ 17 Finally, defendant contends that the trial court erred by denying her motion to vacate the judgment entered in plaintiff's favor. A party may not raise a legal issue for the first time on a motion to reconsider. Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1040 (2007). Where the denial of a motion to reconsider is based on new matters, such as additional arguments or legal theories not presented during the course of proceedings leading up to the issuance of the order being challenged, the abuse of discretion standard applies. Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 330 (2008). At trial, defendant did not present a theory of retaliation or argue that plaintiff waived any nonpayment by accepting partial rent from defendant. Moreover, the trial court conducted a hearing on the motion, but defendant has failed to provide the transcript in the record on appeal for our consideration. We found no abuse of discretion.
¶ 18 CONCLUSION
¶ 19 Based on the foregoing, we affirm the judgment of the circuit court. ¶ 20 Affirmed.