Opinion
1-21-0165
09-30-2021
NANCY MOSE and BARBARA ROZNY, as Co-Trustees of the Chester Rozny Declaration of Trust, dated April 5, 2000, Plaintiffs-Appellants, v. PARK RIDGE AUTO REPAIRAND SERVICE, INC., and ALL UNKNOWNOCCUPANTS, Defendants(Park Ridge Auto Repair and Service, Inc., Defendant-Appellee).
This order was filed under Supreme Court Rule 23 and is not precedent except for the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 20 M2 1934 Honorable James L. Allegretti, Judge, Presiding.
JUSTICE MARTIN delivered the judgment of the court. Justices Lampkin and Rochford concurred in the judgment.
ORDER
MARTIN, JUSTICE
¶ 1 Held: The circuit court, presiding over an eviction action, abused its discretion by enjoining the plaintiffs from listing or selling the subject commercial property when the defendant, a tenant company, did not show a clearly ascertainable right that needed protection.
¶ 2 Nancy Mose and Barbara Rozny (plaintiffs and sisters), in their capacities as co-trustees of the Chester Rozny Declaration of Trust, dated April 5, 2000 (Chester Trust), appeal from a portion of the circuit court's order that prohibited them from listing or selling the property at issue in their eviction action, pending resolution of various motions in the case. For the reasons that follow, we vacate that portion of the order.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
¶ 3 I. BACKGROUND
¶ 4 Chester and Mary Ellen Rozny are the parents of Nancy Mose, Barbara Rozny, and John Rozny. Prior to his death, Chester Rozny created the Chester Trust, naming Mary Ellen and Nancy as co-trustees. Later, Barbara replaced Mary Ellen as a co-trustee. Park Ridge Auto Repair and Service, Inc. (Park Ridge Auto) was founded by Chester in 1945 and has been owned by John since Chester's death in 2010. The Chester Trust owns commercial property located at 316 Higgins Road (the Property) in Park Ridge, Illinois. On August 23, 2015, the Chester Trust, as lessor, entered into a commercial lease with Park Ridge Auto to operate on the Property.
¶ 5 In July 2020, the plaintiffs filed an eviction action for possession and past due rent against Park Ridge Auto. A month after filing the eviction action, John and Park Ridge Auto filed a complaint in the Chancery Division of the Cook County Circuit Court against both sisters, individually and in their capacities as co-trustees of the Chester Trust, and the Mary Ellen Rozny Declaration of Trust, dated April 5, 2000 (Mary Ellen Trust). The Chancery complaint asserted that the parents' original estate plan provided, among other things, that John would receive the Property upon Mary Ellen's death. John alleged that the sisters exerted undue influence on Mary Ellen to gain control over the Chester Trust and took actions adverse to his interests as a beneficiary. For relief, John requested: (1) that the sisters be ordered to provide an accounting for the Chester Trust, (2) that they be enjoined from selling or transferring the Property, (3) that Nancy and Barbara be removed as trustees of the Chester Trust, (4) a declaration that John is the beneficial owner of the Property, (5) a stay of the eviction proceedings, and (6) an order allowing Park Ridge Auto to continue operating at the Property under a rental rate based on the reduced property tax assessment.
Mary Ellen was still living at the time the Chancery complaint was filed, but she died in December 2020.
¶ 6 John filed a motion in the Chancery court seeking consolidation of the Chancery matter with the eviction matter, which was pending before a court of the Municipal Department. On September 11, 2020, the motion to consolidate was denied. Park Ridge Auto then filed a motion to stay the eviction matter and that motion was also denied.
¶ 7 In response to the eviction complaint, Park Ridge Auto filed an answer asserting defenses and counterclaims. The defenses included: impossibility and commercial frustration based on a decline in business resulting from the COVID-19 pandemic and related restrictions; failure to mitigate damages; setoff due to overpaid rent and unpaid fees for storing Trust-owned automobiles on the Property; that John is the beneficial owner of the Property; and estoppel. The counterclaims, overlapping with the defenses, asserted: breach of contract for unpaid auto storage fees; unjust enrichment for overpaid rent; John is the beneficial owner of the Property under the terms of both the Trust and Chester's will. As remedies, Park Ridge Auto requested: damages for unpaid storage fees; damages for overpaid rent; a declaration that John is the beneficial owner of the Property; an accounting of the Chester Trust; and a reformed lease. Supporting the defenses and counterclaims, Park Ridge Auto asserted that: Chester intended for John to inherit the Property; and the parties had contemplated that the rent amount was to equal the property taxes, but the sisters did not reduce the rent, despite obtaining a fifty percent reduction in property taxes. In addition, the answer alleged that Barbara was operating two businesses out of a separate Trust-owned residential property without paying rent to the Trust and the sisters had locked John out of a Trust-owned vacation house in Williams Bay, Wisconsin. The defenses and counterclaims paralleled the claims in the Chancery complaint, and some pertained to John personally, not Park Ridge Auto. However, John did not file a motion to intervene personally in the eviction case. Park Ridge Auto was the only named defendant.
¶ 8 On November 13, 2020, the eviction court entered an order of eviction on the plaintiffs' motion for judgment on the pleadings.
¶ 9 In January 2021, Christine Rozny, John's wife, filed a motion to intervene and vacate the November 13th eviction order, asserting that she was an occupant and did not receive notice of the eviction action. Based on her motion, the eviction court vacated the November 13th order.
¶ 10 On January 26, 2021, John and Park Ridge Auto filed a motion to voluntarily dismiss the Chancery case. The same day, John and Park Ridge Auto filed a motion for leave to file amended counterclaims and a third-party complaint in the eviction case. The proposed amended counterclaim named John and Park Ridge Auto as third-party plaintiffs and counter-plaintiffs. It named the sisters, individually and as co-trustees of both the Chester and Mary Ellen Trusts, as counter-defendants and third-party defendants. The pleading essentially combines the original answer and counterclaims with the claims asserted in the Chancery case, along with additional claims related to the Chester Trust. For relief, John and Park Ridge Auto request, among other things: (1) that John be granted possession and title to the Property, (2) an order removing Nancy and Barbara as trustees of the Chester Trust and Mary Ellen Trust, (3) the appointment of an independent trustee for both, (4) an accounting, (5) compensatory, treble, and punitive damages and attorney fees, (6) orders that Nancy and Barbara be disinherited under both Trusts, (7) that Mary Ellen's will and amendment be set aside, (8) an order voiding the transfer of deed for the Wisconsin lake house, and (9) an order enjoining the sisters from selling or transferring the Property until these matters are resolved. Again, John did not file a motion to intervene despite seeking to assert claims that pertained to him personally.
¶ 11 The next day, January 27, 2021, the sisters filed a motion to reconsider the order vacating the order of eviction. The motion claimed that Christine had been properly served as an "unknown occupant" and, moreover, Park Ridge Auto had already tendered possession of the Property to the Chester Trust in December 2020. The same day, the sisters filed a complaint in the Chancery Division naming John and Park Ridge Auto as defendants. Viewing case information available on the Clerk of the Cook County Circuit Court's website, the sisters' Chancery case was later consolidated with the prior Chancery case filed by John and Park Ridge Auto. See Leach v. Department of Employment Security, 2020 IL App (1st) 190299, ¶ 44 (we may take judicial notice of public records on government websites). The consolidated Chancery case appears active and ongoing.
Statements by both parties at a subsequent hearing contradicted this and indicated Park Ridge Auto was in possession of the Property.
¶ 12 The following day, January 28, 2021, the parties appeared before the eviction court for a status conference. The court indicated it had received, but not had the opportunity to review, the parties' filings from the prior two days. Orally, counsel for Park Ridge Auto informed the court that the sisters intended to list the Property for sale on February 5, 2021. Counsel asked the court to prevent them from doing so. Counsel for the sisters confirmed their plans to begin listing the Property on February 5th, but he objected to the request noting that John was not a party to the eviction case and Park Ridge Auto had not set forth facts establishing a basis for such an order. Counsel further argued that the issues related to title were collateral to the eviction case and the Chancery court would be the proper forum for John to request an order restraining the sisters from listing or selling the Property. Counsel also informed the court there was a related and pending Chancery case between the same parties.
¶ 13 The court stated:
"[R]ight now, Park Ridge Auto *** is the defendant and they are in possession, and they are going to stay in possession, and I don't want the place sold out from under them while they are in possession so a new forcible starts with a new plaintiff ***. We're going to deal with this one because, as I understood it originally, there was a lot of dispute as to who belongs in there, whose got the right to take them out, and everything else. And if chancery wants to pick up the whole ball of wax and deal with it, it's all right with me ***. But for now, I've got this case, and I don't want any sales going on *** while this case is pending ***."
The court then entered a written order setting forth a briefing schedule on the plaintiffs' motion to reconsider. The order also entered and continued the other pending motions and held subpoenas in abeyance. In addition, the order stated: "The property located at 316 Higgins Road, Park Ridge, Illinois, 60068 has not been listed for sale and is not under contract for sale, this status quo regarding the property shall be maintained through court on April 1, 2021."
¶ 14 The sisters then petitioned this court to review this aspect of the January 28th order prohibiting them from listing or selling the Property, arguing that it amounted to a temporary restraining order (TRO). Park Ridge Auto filed a motion to dismiss the appeal. This court dismissed the appeal upon finding that the eviction court's January 28th order did not constitute a TRO and applicable procedures for such were not followed. Mose v. Park Ridge Auto Repair and Service, Inc., No. 1-21-0093 (summary order entered Feb. 8, 2021).
¶ 15 Following dismissal, the sisters filed the instant appeal under Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017) for interlocutory review of an order granting an injunction. Park Ridge Auto filed a motion to dismiss this appeal asserting that the appeal was barred by the dismissal of the prior appeal since the plaintiffs were appealing the same order. Another panel of this court denied the motion to dismiss. Neither party requested expedited review.
¶ 16 Subsequent orders of the eviction court indicate all motions remain pending and the order prohibiting the listing or sale of the Property remains in place. See Seymour v. Collins, 2015 IL 118432, ¶ 6, n. 1 (we may take judicial notice of the public records of another court). Accordingly, this matter remains in actual controversy, it is not a moot question, and we have jurisdiction to consider this appeal.
"[A]n appellate court has an independent duty to consider whether it has jurisdiction to hear an appeal." Daewoo International v. Monteiro, 2014 IL App (1st) 140573, ¶ 72 ("An appellate court has a duty to consider its own jurisdiction, whether or not the parties have raised it as an issue."). "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." Id., In re Marriage of Nienhouse, 355 Ill.App.3d 146, 149 (2004).
¶ 17 II. ANALYSIS
¶ 18 At the outset, the parties dispute the nature of the eviction court's January 28th order. The plaintiffs assert that the portion of the order restricting them from listing or selling the Property is tantamount to a preliminary injunction. Park Ridge Auto counters that the eviction court merely acted sua sponte to exercise its inherent authority to stay the proceedings until it ruled on the pending motions. As such, Park Ridge Auto argues the order was not appealable and we do not have jurisdiction to review it.
¶ 19" 'To determine what constitutes an appealable injunctive order under Rule 307(a)(1), we look to the substance of the action, not its form.'" Same Condition, LLC v. Codal, Inc, 2021 IL App (1st) 201187, ¶ 24 (quoting In re A Minor, 127 Ill.2d 247, 260 (1989))." 'Actions of the circuit court having the force and effect of injunctions are still appealable even if called something else.'" Id. "Among other things, an injunctive order demands that a party refrain from doing a specific thing, 'the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.'" Id. (quoting In re A Minor, 127 Ill.2d at 261). Injunctive orders are distinguishable from "ministerial" or "administrative" orders within the court's inherent authority because such orders "affect the relationship of the parties in their everyday activity apart from the litigation." (Internal quotation marks omitted.) Id.
¶ 20 In the present case, the eviction court's order prohibits the plaintiffs from doing a specific thing-listing or selling the Property-which operates as a restraint upon them in the exercise of their real or supposed rights to own and dispose of their real property. Furthermore, because the order restricts what the plaintiffs can do with their property, it affects the relationship of the parties in their everyday activities apart from the litigation. Cf. id. ¶ 25 (finding order restricting plaintiffs from posting statements about the defendant online was appealable under Rule 307(a)(1) as a restraint upon the plaintiffs' exercise of real or supposed first amendment rights and the order affected "the relationship of the parties in their everyday activities apart from the litigation."). We find that this part of the court's January 28th order was injunctive and was not merely a stay of proceedings. Therefore, the order was appealable under Rule 307(a)(1), and we have jurisdiction to review it. For simplicity, we will refer to the portion of the January 28th order prohibiting the plaintiffs from listing or selling the Property as a preliminary injunction.
¶ 21 Generally, a circuit court's decision to grant or deny a preliminary injunction is reviewed for an abuse of discretion. Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52, 62-63 (2006). An abuse of discretion occurs only when a ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view. Bovay v. Sears, Roebuck and Co., 2013 IL App (1st) 120789, ¶ 26. But if the determination rests on a question of law, our review is de novo. Somer v. Bloom Township Democratic Organization, 2020 IL App (1st) 201182, ¶ 16.
¶ 22 Plaintiffs assert that the issue presented in this appeal is whether, "as a matter of law," the court presiding over an eviction action has authority to grant a preliminary injunction enjoining a landlord from listing or selling its property and, therefore, we should review the court's order de novo. The plaintiffs argue that the eviction court lacked legal authority to grant the injunction for two reasons. First, they contend that enjoining them from listing or selling the Property was beyond the scope of the "distinctive purpose" of the proceeding. Second, the ownership issues were pending before the Chancery Court, where John and Park Ridge Auto had requested the same relief. The plaintiffs argue that, since actions seeking an injunction and the other claims John sought to raise in the eviction case are assigned to the Chancery Division, the eviction court did not have the power to grant injunctive relief.
¶ 23 We disagree that the eviction court lacked authority to grant a preliminary injunction as a matter of law. For administrative purposes, the circuit court of Cook County has established divisions to hear certain types of cases. Actions for forcible entry and detainer (eviction) are assigned to the Municipal Department. Cook Cty. Cir. Ct. General Order No. 1.2, 2.3(b)(1), (2) (eff. July 12, 2000). "But this organization does not affect the power of any of [the circuit court's] judges to hear and dispose of any matter properly pending in the circuit court." Fulton-Carroll Center, Inc. v. Industrial Council of Northwest Chicago, Inc., 256 Ill.App.3d 821, 823 (1993). Rather, all courts of the circuit court are courts of general jurisdiction and, as such, have wide discretion to grant or deny an injunction. Ill. Const. 1970, art. VI, § 9; Biggs v. Health and Hospitals Governing Commission of Cook County, 55 Ill.App.3d 501, 505-06 (1977). Indeed, Illinois courts have long recognized that "[d] efendants in a forcible entry and detainer action may assert equitable defenses, and equitable relief may be granted." South Austin Realty Ass'n v. Sombright, 47 Ill.App.3d 89, 94 (1977) (citing Rosewood Corp. v. Fisher, 46 Ill.2d 249, 255 (1970)). Accordingly, the eviction court had authority to grant a preliminary injunction as a matter of law. As a further consequence, we do not find this challenge to the eviction court's injunction to rest on a question of law, as the plaintiffs contend. Rather, this appeal turns on whether the court abused its discretion by enjoining the plaintiffs.
¶ 24 A preliminary injunction is an extraordinary relief and will only be granted where the requesting party shows: (1) that he has a clearly ascertainable right that needs protection, (2) that he will suffer irreparable harm without the protection, (3) that he has no adequate remedy at law, and (4) that he is likely to succeed on the merits of his underlying claim. Underwood v. City of Chicago, 2016 IL App (1st) 153613, ¶ 21. A preliminary injunction is intended to preserve the status quo until the merits of the case can be decided. People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 177 (2002). Such relief should be granted only when an emergency exists, and serious harm would result if the injunction were not issued. Id.
¶ 25 The record before us does not indicate that Park Ridge Auto had any ascertainable right or interest in the Property in need of protection. Indeed, Park Ridge Auto never asserted such and did not file a proper pleading requesting injunctive relief. Rather, counsel for Park Ridge Auto, without offering argument in support on any of the elements necessary for an injunction, orally requested an order prohibiting the plaintiffs from listing or selling the Property. On appeal, Park Ridge Auto solely maintains that the circuit court merely stayed the proceedings and fails to offer any argument that injunctive relief was warranted. As we discussed, the court's order was injunctive, not a stay of proceedings. With no argument or record for support, we have no basis to find that the elements for an injunction were shown. Accordingly, we find that the circuit court abused its discretion by enjoining the plaintiffs from listing or selling the Property.
¶ 26 III. CONCLUSION
¶ 27 For these reasons, we find the eviction court abused its discretion by enjoining the plaintiffs from listing or selling the Property. Accordingly, we vacate that portion of the court's order.
¶ 28 Order vacated.