{ "id": 4304512, "name": "MIKE FIGUEROA, Plaintiff-Appellee, v. KATHRYN DEACON et al., Defendants-Appellants", "name_abbreviation": "Figueroa v. Deacon", "decision_date": "2010-08-25", "docket_number": "No. 1\u201409\u20141844", "first_page": "48", "last_page": "54", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 48" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "331 Ill. App. 353", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5056942 ], "year": 1947, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app/331/0353-01" ] }, { "cite": "181 Ill. App. 3d 1012", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499580 ], "year": 1989, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/1012-01" ] }, { "cite": "289 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351194 ], "year": 1997, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0746-01" ] }, { "cite": "392 Ill. App. 3d 39", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4288327 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "56" }, { "page": "57" }, { "page": "57" }, { "page": "57" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0039-01" ] }, { "cite": "210 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533861 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "99" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0097-01" ] }, { "cite": "396 Ill. App. 3d 1078", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4293217 ], "year": 2009, "pin_cites": [ { "page": "1086" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/1078-01" ] } ], "analysis": { "cardinality": 665, "char_count": 13936, "ocr_confidence": 0.774, "pagerank": { "raw": 6.391342495904715e-08, "percentile": 0.39585666963595173 }, "sha256": "445750957acbe1d60817eb5aeeecae07bab81b99653f29746ac692b3f6a44050", "simhash": "1:0eee94f75fea3416", "word_count": 2285 }, "last_updated": "2023-07-14T16:58:54.131587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIKE FIGUEROA, Plaintiff-Appellee, v. KATHRYN DEACON et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE STEELE\ndelivered the opinion of the court:\nFollowing a bench trial, defendants Kathryn Deacon and James Deacon appeal from an order of the circuit court granting possession of rental premises and a money judgment for past-due rent and costs in the amount of $8,782.20 to plaintiff, Mike Figueroa. For the following reasons, we reverse.\nBACKGROUND\nProcedural History\nKathryn and Figueroa entered into a one-year written rental agreement on December 1, 2006 (original lease), for premises located at 5627 West Lawrence Avenue in Chicago. James is Kathryn\u2019s adopted son, who is disabled and lived with her in the apartment. Her adopted daughter Lynda also resided in the apartment. Under the terms of the original lease, the rental payment was $800 per month, which was allegedly a downward adjustment by approximately $200 because Kathryn would also be paying to heat the basement area.\nKathryn and her children occupied the apartment during the entire lease term. However, during the lease term, disputes arose between Kathryn and Figueroa regarding rental payments and utility payments for the basement apartment and laundry room. Subsequently, in December 2007, Figueroa and Kathryn, who was represented by counsel, met and attempted to resolve issues pertaining to the amount Kathryn owed in back rent, credits she was owed for overpayment of utility bills, and obligations of both parties under a new proposed one-year lease for the apartment. The parties then entered into a new one-year lease (new lease) in December 2007. The new lease was essentially a modified original lease, which contained additional handwritten portions initialed by both parties. The new lease provided for a new lease term expiring in December 2008, the security deposit was deemed paid in full, a changed amount was set for the late charges, and the amount of Kathryn\u2019s responsibility for utility charges was set. She would be entitled to an offset against monthly rent if the charges exceeded the set amount. Additionally, Figueroa agreed to \u201cstart fresh,\u201d waiving all past rent and security deposit issues.\nOn June 18, 2008, Figueroa filed a complaint (case number 08 Ml 715273) for possession of the premises and a monetary judgment against Kathryn. The complaint alleged a balance due of $1,073.13, which included late charges, interest and fines. Additionally, the complaint indicated service of a five-day notice to Kathryn by personal delivery and certified mail. Copies of the five-day notice, a certified mail payment receipt, and certified mail return card with Kathryn\u2019s signature were attached to the complaint.\nIn response to the complaint, Kathryn filed a motion to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 2008)) and counterclaims. Figueroa filed a motion to dismiss Kathryn\u2019s counterclaims. On September 8, 2008, the trial court entered an order granting Kathryn\u2019s motion to dismiss, waived Figueroa\u2019s refiling fee, and set a briefing schedule and hearing (for October 8, 2008) on the motion to dismiss the counterclaims.\nOn September 30, 2008, Figueroa filed a second complaint seeking possession of the premises and a monetary judgment against Kathryn for $3,772.20. Copies of a five-day notice (second five-day notice) and a certified mail payment receipt were attached to the second complaint. On October 8, 2008, an order was entered in the first complaint case, indicating: (1) a second complaint had been filed and the case was pending; (2) Kathryn\u2019s verbal motion to voluntarily dismiss her pending counterclaims was granted without prejudice, and (3) Kathryn\u2019s filing fees in the new action were waived. The second complaint was dismissed for want of prosecution sometime around October 21, 2008, but was later reinstated. A motion for summary judgment was granted by default, but was later vacated and denied. Kathryn filed affirmative defenses to the second complaint. Figueroa\u2019s motion to strike the affirmative defenses was denied.\nOne of Kathryn\u2019s affirmative defenses alleged that on November 3, 2008, Figueroa served a notice of expiration and nonrenewal of lease and termination of tenancy (notice of nonrenewal) on her, that the nonrenewal in essence served as an acknowledgment of an ongoing lease agreement and defeated Figueroa\u2019s claim that the new lease was terminated by service of the second five-day notice, and that an action by a landlord which serves to reaffirm the existence of a lease after filing an eviction action served to eliminate the effect of the prior five-day notice and terminate the trial court\u2019s jurisdiction. The trial court, however, ruled that service of the notice of nonrenewal did not constitute a reinstatement of the tenancy. After denying Figueroa leave to file counterclaims, the court set the matter for trial.\nTrial Proceedings\nAt the bench trial, Figueroa testified that he rented the apartment to Kathryn in December 2006. Rent for the apartment was $1,200 to $1,300 per month, but because meters were not installed in the building, rent was set at $800 per month. Regarding the second five-day notice, Figueroa testified that he \u201cremember[ed] putting the copy in the door, the one under the door,\u201d but that he never served anything personally on anyone in the household, despite his affidavit to the contrary. Figueroa stated he had not received rent from Kathryn for the prior 12 months, and there was an amount due of $9,840. He decided to evict Kathryn because she failed to pay the rent.\nKathryn testified that during her prelease discussions with Figueroa, he indicated that her utility costs would not exceed $200 per month and that her rent would be lower than similar apartments because she would be paying utilities for the basement apartment. Under the terms of the new lease, Kathryn indicated that she and Figueroa agreed to a $275 payment toward utilities and that any overage would either be paid by Figueroa or deducted by Kathryn from her monthly rent. The court inquired about the amounts Kathryn paid in 2008. The parties went through receipts and money order records in an attempt to determine what amounts were paid for utilities and what amounts were tendered to and accepted by Figueroa. Kathryn\u2019s attorney attempted to question her regarding issues with the apartment dating back to 2006. However, Figueroa\u2019s counsel objected on the basis of relevance. The trial court sustained the objection, finding that events occurring before the new lease were resolved by the new lease and the only relevant time period was the term covered by the new lease.\nBecause Kathryn\u2019s counsel believed that evidence of ongoing facts predating the new lease was relevant to prove the affirmative defense of retaliatory eviction, he presented an offer of proof. The offer of proof included facts indicating that Kathryn first made complaints to Figueroa in January 2007, that she wrote a letter to Figueroa in March 2007 concerning various building code violations and complaints about utility bills, that she complained of repairs needed for the property, and that her complaints continued from that time until after the second complaint was filed. In response, the trial court again reiterated that in negotiating the new lease, Kathryn \u201cprobably waived all of her claims she might have had.\u201d Additionally, the court found there was consideration given for the settlement of any claims that arose prior to the new lease.\nKathryn testified that the new meters had not been completely installed as of the trial date and that she had ongoing disputes with Figueroa about what the net rent should be. According to Kathryn, every month since the new lease began, Figueroa indicated that he just wanted the $800 monthly rent and did not want any part of utility bills. She stated that she tendered payment to Figueroa, along with receipts for utility bills. Kathryn further testified that every attempt to discuss the utility bills with Figueroa was unsuccessful and he refused to take anything except the full amount of rent.\nAfter the parties rested, the trial court determined a final amount due to Figueroa from Kathryn. The trial court again restated its finding that the notice of nonrenewal did not reinstate the lease and that it was not inconsistent with the termination of the tenancy, and entered a monetary judgment for $3,301.20 and an order of possession that was stayed for 30 days. Kathryn\u2019s motion for reconsideration was denied and this timely appeal followed.\nDISCUSSION\nOn appeal, Kathryn contends the judgment order is void because Figueroa failed to satisfy the statutory requirements for service of a demand or notice pursuant to section 9 \u2014 211 of the Code (735 ILCS 5/9 \u2014 211 (West 2008)) and the trial court had no jurisdiction. Additionally, Kathryn contends Figueroa waived termination of the lease, despite the trial court\u2019s finding to the contrary.\nKathryn first contends that the second five-day notice was improperly served, because Figueroa admitted that he only slid a copy of the notice under the door and posted it on the door rather than in the manner prescribed by statute.\nWhether there is substantial compliance with a statutory provision is a question of law and our standard of review is de novo. Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086 (2009).\nA forcible detainer action is a special statutory proceeding that is in derogation of the common law. Therefore, the party requesting this relief must comply with the requirements of the statute, especially those requirements establishing the court\u2019s jurisdiction. Nance v. Bell, 210 Ill. App. 3d 97, 99 (1991). Where the statute includes a requirement that written demand is made prior to filing a complaint, the demand must be made in strict compliance with the statute or jurisdiction will not attach. Nance, 210 Ill. App. 3d at 100.\nSection 9 \u2014 211 of the Code provides three methods of serving a notice of termination upon a tenant who is in actual possession of the premises. Specifically, section 9 \u2014 211 provides:\n\u201cService of demand or notice. Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person of the age of 13 years or upwards, residing on or in possession of the premises; or by sending a copy of the notice to the tenant by certified or registered mail, with a returned receipt from the addressee; and in case no one is in the actual possession of the premises, then by posting the same on the premises.\u201d 735 ILCS 5/9 \u2014 211 (West 2008).\nThe circumstances presented in the case at bar are analogous to those presented in the recent case of American Management Consult ant, LLC v. Carter, 392 Ill. App. 3d 39, 56 (2009), which we note was decided after the trial court proceedings in the case at bar.\nIn Carter, one of the issues raised was the landlord\u2019s failure to comply with the service requirements of section 9\u2014211 (735 ILCS 5/9\u2014 211 (West 2008)) by posting a notice on the door when the tenant was in actual possession of the premises. The court noted prior Illinois decisions which held that the \u201cmethods of service suggested in the relevant statutes are not meant to be exhaustive\u201d and upheld a landlord\u2019s written notice even when the method of service deviated \u201cslightly\u201d from those noted in the statute. Prairie Management Corp. v. Bell, 289 Ill. App. 3d 746, 752 (1997), citing Vole, Inc. v. Georgacopoulos, 181 Ill. App. 3d 1012, 1019 (1989); Ziff v. Sandra Frocks, Inc., 331 Ill. App. 353, 355 (1947). However, the court specifically found Bell to be distinguishable because it did not consider the section of the statute at issue, which only allowed service by posting when the defendant was no longer in possession of the premises. Carter, 392 Ill. App. 3d at 57. In finding the service of notice defective, the court in Carter found that section 9 \u2014 211 was an exhaustive list of permissible delivery methods and must be strictly enforced. Carter, 392 Ill. App. 3d at 57.\nAdditionally, the court found that although defendant actually did receive notice of plaintiffs forcible entry and detainer action, strictly construing the statute, as it must, \u201cthe method by which notice was \u2018served\u2019 require[d] a finding that defendant did not receive proper notice and preclude [d] plaintiff from obtaining relief under the statute.\u201d Carter, 392 Ill. App. 3d at 57. The court held that without proper service of notice, defendant\u2019s due process rights were violated and the court could not go forward on the purely statutory proceeding of forcible entry. Carter, 392 Ill. App. 3d at 57.\nThe same result must be reached in the instant case. Here, Figueroa\u2019s trial testimony indicated that he posted a copy of the notice on the door and slid another copy under the door, but never personally served anyone in the household with the notice. That method of service did not comply with the statutory methods of service for a tenant who is in actual possession of the premises and thus was improper. As such, we must conclude, as the court did in Carter, that Kathryn\u2019s due process rights were violated and the court had no jurisdiction. Accordingly, we reverse the judgment of the trial court and dismiss the action.\nOur disposition of this issue makes it unnecessary for us to consider Kathryn\u2019s other claim.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed.\nReversed.\nMURPHY, EJ, and QUINN, J., concur.\nAt the time of the original written lease agreement, both James and Lynda were minors. James was born on April 21, 1990; Lynda was born on August 26, 1991.", "type": "majority", "author": "JUSTICE STEELE" } ], "attorneys": [ "Paul Bernstein, of Chicago, for appellants.", "Delaney Law, of Chicago (William Delaney, of counsel), for appellee." ], "corrections": "", "head_matter": "MIKE FIGUEROA, Plaintiff-Appellee, v. KATHRYN DEACON et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 1\u201409\u20141844\nOpinion filed August 25, 2010.\nPaul Bernstein, of Chicago, for appellants.\nDelaney Law, of Chicago (William Delaney, of counsel), for appellee." }, "file_name": "0048-01", "first_page_order": 64, "last_page_order": 70 }