Opinion
No. 12-0064
03-13-2013
AJAZ A. KHAN, Plaintiff-Appellee, v. MOHAMMAD S. KHAN, SHUMAILA KHAN, RAKHI ENTERPRISES, INC., d/b/a NIRALA SWEETS AND SNACKS, 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.10 MI 719301
The Honorable Sheldon C. Garber, Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Neville and Justice Sterba concurred in the judgment.
ORDER
¶ 1 Held: Appeal dismissed as moot where intervening event renders it impossible to grant effectual relief to defendant. ¶ 2 Defendant, Rakhi Enterprises, Inc., d/b/a Nirala Sweets and Snacks, appeals from the trial court's order awarding plaintiff, Ajaz A. Khan, possession of a commercial building. On appeal, defendant claims the trial court lacked both statutory and inherent authority to grant plaintiff possession under the Illinois Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-101 et. seq. (West 2012)), as a sanction for defendants' nonpayment of the use and occupancy charges, without considering the underlying merits of plaintiff's possession claim.
Defendant in the singular refers to defendant, Rakhi Enterprises, Inc., d/b/a Nirala Sweets and Snacks. Defendants, in the plural, refers to all the defendants collectively, Mohammad S. Khan, Shumaila Khan, Rakhi Enterprises, Inc., d/b/a Nirala Sweets and Snacks, and All Unknown Occupants.
¶ 3 BACKGROUND
¶ 4 On August 18, 2010, plaintiff filed a complaint under the Illinois Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-101 et. seq. (West 2012)), against Mohammad S. Khan, Shumaila Khan and All Unknown Occupants, seeking possession of the commercial premises located at 2433 W. Devon Avenue, Chicago, as well as monetary damages, for defendants failure to make rental payments from September 2008 to the date of the judgment. Plaintiff amended his complaint on December 8, 2010, to allege one count for possession against all defendants and a separate count for monetary damages only against Mohammad Khan. On November 23, 2010, the trial court entered an order requiring defendants to pay use and occupancy. Defendants failed to make any payments under this initial order. ¶ 5 On January 4, 2011, a bench trial was held on plaintiff's amended complaint. On January 11, 2011, the trial court ruled in favor of plaintiff, entering an order of possession and monetary judgment against defendants. In February of 2011, Rakhi Enterprises, Inc., filed a petition to intervene. Plaintiff filed a second amended complaint with the third count naming Rakhi and seeking possession of the commercial premises. Plaintiff filed a second motion requesting use and occupancy, which the court granted. Defendants again failed to make payments. Plaintiff filed a motion for sanctions, requesting an order of possession be entered for defendants' willful violation of the second use and occupancy order. On September 28, 2011, the trial court entered a possession order granting plaintiff possession of the commercial premises, instanter. On December 5, 2011, the trial court denied defendants' motion to reconsider, finding this court's holdings in Circle Management, LLC v. Olivier, 378 Ill. App. 3d 601 (2007) and Rotheimer v. Arana, 384 Ill. App. 3d 569 (2008), inapplicable to eviction actions involving commercial property because each dealt with a residential property. This appeal is one of two brought by defendants. On June 20, 2012, this court affirmed the trial court's entry of the order of possession and money judgment in favor of the landlord on defendants' first appeal. Ajaz A. Khan v. Mohammad S. Khan, et al., 2012 IL App (1st) 110977-U. ¶ 6 Defendant was evicted and, since the filing of this appeal, the term of the subject lease agreement has expired. The lease expired on June 14, 2012. In his brief, plaintiff contends the commercial premises have been demolished and remodeled.
¶ 7 ANALYSIS
¶ 8 Initially neither party challenged our jurisdiction, however, because as a reviewing court we have a duty to consider our own jurisdiction sua sponte, we ordered the parties to file supplemental briefs addressing the issue. See Emery v. Northeast Illinois Regional Transportation Co., 374 Ill. App. 3d 974, 977 (2007). "The existence of an actual controversy is an essential requisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions." In re Marriage of Nienhouse, 355 Ill. App. 3d 146, 149 (2004) (citing Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523 (2001)). In other words, a moot case leaves no justiciable issue for the court to decide. ¶ 9 An issue is moot if no actual controversy exists or events occur that make it impossible for the court to grant effectual relief. Dixon v. Chicago and North Western Transp. Co., 151 Ill. 2d 108, 116 (1992). "This court will not review cases merely to establish a precedent or guide future litigation." Madison Park Bank v. Zagel, 91 Ill. 2d 231, 235 (1982). Even if the case is pending on appeal when the events that render an issue moot occur, as a reviewing court, we will generally not issue an advisory opinion. Bluthardt v. Breslin, 74 Ill. 2d 246, 250 (1979). ¶ 10 An otherwise moot issue may be considered in rare circumstances where the issue " 'involves a question of great public interest.' " Circle Management, 378 Ill. App. 3d at 607 (quoting In re Minor, 127 Ill. 2d 247, 257 (1989)). " 'In order to fall into the public interest exception (1) the question must be of a public nature; (2) an authoritative determination of the question must be desirable for the purpose of guiding public officers; and (3) the question must be likely to recur.' " Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008) (quoting Brown v. Duncan, 361 Ill. App. 3d 125, 134 (2005)). The exception is narrowly construed and requires a definite showing of each criterion before it can be used. In re India B., 202 Ill. 2d 522, 543 (2002). ¶ 11 Although defendant does not directly concede the issue is moot, defendant requests this court decide the appeal "on the merits under the 'public interest' or 'public policy' exception to the mootness doctrine. To decide this appeal under the public interest or public policy exception, the case must be moot. ¶ 12 Although moot, this case does not present a situation in which an exception applies. Defendant has failed to establish that the issue of whether a trial court may award a landlord possession under the Act as a sanction for a commercial tenant's failure to comply with a use and occupancy order has a significant impact on the public as a whole such that the "rare" use of the public interest exception is warranted. Defendant argues this case involves an issue "affecting the rights of countless commercial landlords and tenants[,]" but fails to offer any support for its conclusion. Additionally, defendant failed to cite any caselaw justifying the application of the public interest exception in a commercial tenancy, relying only on Circle Management, which involves residential tenancy. ¶ 13 We disagree with defendant that the public interest exception should apply in this case. We do not dispute that the public may want to know whether a landlord can be awarded possession under the Act as a sanction for a commercial tenant's failure to comply with a use and occupancy order, but we are not convinced that this question rises to the "extraordinary degree of public concern and interest" needed to overcome the mootness doctrine. See Duncan Pub. Inc. v. City of Chicago, 304 Ill. App. 3d 778, 783 (1999). Hence, this is not a case where " 'the magnitude or immediacy of the interests involved warrant[s] action by the court.' " Dixon v. Chicago, 151 Ill. 2d at 117. Nor is this an instance where there is a pressing need for an advisory opinion on this issue. ¶ 14 We are convinced that any opinion would be merely advisory. The court has the final say on justiciability and should exercise judicial restraint whenever the disputed issues become moot and, as here, have not been shown to meet the restrictive requirements of the public interest exception.
¶ 15 CONCLUSION
¶ 16 Finding no exception to the mootness doctrine, we lack jurisdiction to hear the appeal. Accordingly, we dismiss this appeal. ¶ 17 Appeal dismissed.