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FOURTH DIVISION

January 18, 2001

No. 1-99-2075

1-00-1189 (Consolidated)

JUSTICE SOUTH delivered the opinion of the court:

Defendant, Herbert P. Carlson, an attorney, maintained law offices at 100 West MonroeStreet (Monroe Building) in Chicago, Illinois. The Monroe Building is owned by plaintiff, 100W. Monroe Partnership.

On April 7, 1993, defendant and plaintiff entered into a five-year lease agreement forSuite 1200 commencing on May 1, 1993, and ending on April 30, 1998. The agreed-upon baserent for Suite 1200 was $3,690.42 plus a proportionate share of the real estate taxes and commonarea expenses. On April 28, 1995, defendant exercised his termination rights under Article 41 ofthe lease, and in accord with that Article, the lease terminated on November 1, 1995.

On October 26, 1995, plaintiff and defendant entered into a new one-year lease for Suite1212 in the Monroe Building which commenced on November 1, 1995, and ended on October31, 1996. The rent for Suite 1212 was $1,187.50 per month. As with the prior lease, defendantwas also responsible for his proportionate share of the real estate taxes and common areaexpenses.

On October 16, 1996, before the parties' second lease ended, the parties entered into athird lease agreement. Defendant signed a six-month lease for Suite 711 in the Monroe Buildingwhich commenced on November 1, 1996, and ended on April 30, 1997. The rent was $450 permonth. On April 28, 1997, in accordance with an amendment to the lease, the parties extendedthe lease for Suite 711 for another six months until October 31, 1997. On September 15, 1997,defendant extended his Suite 711 lease for the final time until May 1, 1998.

On May 29, 1998, plaintiff filed a complaint against defendant in the circuit court ofCook County seeking an order of possession of the three suites and to collect all unpaid rentunder the Forcible Entry and Detainer Act. The complaint alleged that from December 1997through June 1998, rent was due in the amount of $35,688.79, plus attorney fees. Defendantfiled his answer on July 31, 1998, wherein he denied having sufficient knowledge to form abelief as to the truth or falsity of the allegations.

On September 16, 1998, plaintiff filed its amended complaint with exhibits attachedthereto. Plaintiff alleged that defendant had not paid rent since October 1997, and that despitedemands had failed and refused to pay, so that his indebtedness through June 1998, for unpaidrent for suites 1200, 1212 and 711 amounted to $41,138.19. Plaintiff also sought possession ofSuite 711 and identified a promissory note which defendant executed on January 2, 1996,promising to pay plaintiff $46,375.70, plus interest at 8% per annum by April 15, 1996.

On October 28, 1998, plaintiff moved for judgment on the pleadings or alternatively forsummary judgment and attached the affidavit of Dawn Matuzewich, who was the assistant to theproperty manager at the Monroe Building. She stated she was the keeper of the tenant recordsfor plaintiff and had knowledge of defendant's tenant history and the note which she maintainedin the ordinary course of business. Given her knowledge of defendant's tenant history,Matuzewich claimed defendant owed $41,138.19 in unpaid rent through June of 1998. Shefurther stated that defendant's lease expired May 1, 1998, and that he continued to occupy Suite711 while paying no rent. Matuzewich stated that pursuant to the note, defendant owed$46,375.70 plus interest. As of October 28, 1998, Matuzewich alleged that no payments, creditsor setoff had been made on either the note or the unpaid rent.

On October 29, 1998, plaintiff filed the affidavit of Kevin Costello in further support ofits motion for judgment on the pleadings. Costello stated he had been the building manager atthe Monroe Building and had had dealings with defendant as a tenant. Costello warranted that onor about January 1996, defendant promised to repay the amounts owed for unpaid rent for thesuites he had leased, and based upon defendant's representation regarding his intent to pay,Costello had him execute a note evidencing the debt and a promise to repay it by April 15, 1996,which defendant signed. Costello stated that defendant did not make payment by April 15, 1996,and to his knowledge has never made payments.

On October 29, 1998, the trial court granted defendant's motion for leave to file hisanswer and ordered him to respond to plaintiff's motion by November 3, 1998. On November 4,1998, defendant filed his response to plaintiff's motion without counter-affidavits or othersupporting documents attached. In that response, he demanded that the amount alleged beproven by competent evidence, including the manner in which the sum was reached.

On November 4, 1998, the trial court granted the motion for judgment on the pleadings,awarding plaintiff $44,738.19 in unpaid rent and possession of Suite 711, plus leave to file apetition for attorney fees. Defendant was ordered to surrender possession by December 1, 1998.

On December 10, 1998, plaintiff filed its petition for attorney fees. Defendant wasgranted leave to respond, and on December 16, 1998, the court awarded plaintiff $4,500 inattorney fees, bringing the total amount awarded plaintiff to $49,238.19, plus costs.

Defendant failed to surrender possession on December 1, 1998. Instead, on December 3,1998, he filed a motion to stay the eviction. The trial court granted defendant an extension andordered him to surrender possession by December 15, 1998. Defendant did not surrenderpossession by December 15, 1998, and an amended order of possession was entered onDecember 29, 1998.

On January 28, 1999, defendant filed a motion to reconsider and vacate the amendedorder of possession and all other orders awarding possession of Suite 711, money damages,unpaid rent and attorney fees. On March 29, 1999, defendant presented his motion to reconsiderand vacate, and the trial court granted defendant 10 additional days, until April 8, 1999, to file hismemorandum in support of the motion.

On May 20, 1999, the trial court denied defendant's post-judgment motion to reconsider and vacate the order of possession. Defendant filed his notice of appeal on June 4, 1999.

The June 4, 1999, appeal has been consolidated with another appeal arising from citationproceedings which commenced on November 25, 1998, when plaintiff filed its citation todiscover assets. The proceedings culminated with the circuit court's order entered on March 13,2000, which denied defendant's emergency motion to vacate the order assigning defendant'sbeneficial interest in a land trust to the sheriff of Cook County, Illinois. Defendant filed hisnotice of appeal on April 11, 2000, a day after his emergency motion to clarify the orderassigning his beneficial interest in a land trust to the sheriff was granted. Clarification was givenon the record on April 10, 2000.

Prior to the March 13, 2000, order denying defendant's motion to vacate, plaintiff secureda turnover order on May 13, 1999, directing defendant to execute an assignment of his beneficialinterest in the land trust. Defendant filed a motion to reconsider and vacate the turnover order onMay 19, 1999. On May 27, 1999, the circuit court denied that motion and ordered defendant toeither execute an assignment of the beneficial interest in the land trust by June 4, 1999, or thecourt would execute the assignment itself. Defendant did not execute an assignment of thebeneficial interest in the land trust by June 4, 1999, and on that date filed an emergency motion todefer the turnover pending appeal. On June 7, 1999, the trial court granted defendant until June14, 1999, to execute an assignment of the beneficial interest in defendant's land trust or to postbond upon appeal. On June 10, 1999, defendant filed his motion to permit additional time topost bond pending appeal. On June 11, 1999, defendant's motion was granted, and he was givenuntil June 24, 1999, to allow sufficient time to post an appeal bond and defer the court's orderrequiring execution of his beneficial interest until that date. On June 24, 1999, the trial courtgranted defendant until July 8, 1999, to post bond, and all pending citations were continued untilthat date. On July 8, 1999, defendant was granted an extension until July 19, 1999. On July 16,1999, defendant filed an emergency motion to permit additional time to post bond pendingappeal. On July 19, 1999, the trial court granted defendant a seven-day extension until July 26,1999, and held that was defendant's final extension. On July 30, 1999, plaintiff filed itsemergency motion to execute assignment of the beneficial interest. On August 2, 1999, plaintiffagain filed an emergency motion. Defendant did not post bond.

On February 2, 2000, the circuit court executed the assignment of the beneficial interest. As stated above, on April 11, 2000, defendant filed his second appeal claiming that the court'sassignment occurred more than six months from the filing of the citation.

The grant or denial of summary judgment is reviewed on appeal de novo. ContainerCorp. of America v. Wagner, 293 Ill. App. 3d 1089, 1091, 689 N.E.2d 259, 261 (1997). Thefunction of the appellate court on review of summary judgment is to determine whether the trialcourt properly determined that no genuine issue of material fact had been raised, and if none wasraised, whether judgment was proper as a matter of law. Malanowski v. Jabamoni, 293 Ill. App.3d 720, 724, 688 N.E.2d 732, 735 (1997), rehearing denied, appeal denied 177 Ill. 2d 571, 698N.E.2d 544. The appellate court may affirm on any ground in the record, regardless of whetherthe trial court relied upon it and regardless of whether the trial court's reasoning for grantingsummary judgment was correct. Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d1118, 1125, 716 N.E.2d 329, 335 (1999).

In North American Old Roman Catholic Church by Rematt v. Bernadette, 253 Ill. App.3d

278, 627 N.E.2d 1094 (1992), the church brought a forcible entry and detainer action seeking torecover possession of the Queen of Peace Convent from defendant Sister Maria Bernadette. Thecircuit court granted the church's motion for summary judgment and the appellate court affirmed. In granting the motion for summary judgment, the circuit court considered the church's verifiedcomplaint, accompanying exhibits and transcripts from a prior case where defendant madeadmissions. The court found that in a forcible entry and detainer action, defendant could not restupon the general denial of the allegations in the church's verified complaint to defeat the church'smotion for summary judgment where the church had presented ample evidence of its right to thepossession of the convent. Bernadette, 253 Ill. App. 3d at 289, 627 N.E.2d at 1101.

In this case, plaintiff filed its complaint and defendant filed his answer. An amendedcomplaint was filed in response to defendant's answer where defendant had denied sufficientknowledge. Plaintiff's amended complaint discussed the terms of the three leases andamendments of the suites and attached the leases and amendments to the amended complaint asexhibits. Plaintiff also attached a signed promissory note whereby defendant promised to pay$46,375.70 to plaintiff. Defendant failed to respond to the amended complaint. Plaintiff movedfor judgment on the pleadings and attached the affidavit of Dawn Matuzewich. Matuzewich, theassistant to the property manager at the Monroe Building, attested to the terms of defendant'sleases and defendant's unpaid rent and note. Plaintiff later filed Kevin Costello's affidavit infurther support of the motion for judgment on the pleadings. Costello, who had been the buildingmanager at the Monroe Building, affirmed that defendant had signed the note for unpaid rent forsuites leased, that defendant had not paid the note as agreed by April 15, 1996, and that he hadnever made payments toward the note. Defendant's response to the motion for judgment on thepleadings, the amended complaint, exhibits and affidavits was simply to demand that the amountalleged owed be proved by competent evidence. Defendant attached neither affidavits nor othersupporting documents to his answer to the complaint or his response to plaintiff's motion forjudgment on the pleadings.

As stated in Bernadette, to defeat a motion for summary judgment under the forcible entryand detainer act, defendant is required to file an affidavit setting forth with particularity factsupon which his or her defense is based. Bernadette, 253 Ill. App. 3d at 289, 627 N.E.2d at 1101. Even if the complaint and answer purport to raise an issue of fact, summary judgment isnevertheless appropriate if such issues are not further supported by evidentiary facts throughaffidavits or other proper materials. Bernadette, 253 Ill. App. 3d at 289, 627 N.E.2d at 1101. Defendant, Carlson, also rested upon a general denial of the allegations in both his answer andresponse to the motion for judgment on the pleadings. He failed to counter plaintiff's supportingdocuments and, hence, raise the genuine issues of material fact necessary for this court to reversethe circuit court and deny the plaintiff's motion for judgment on the pleadings.

Defendant argues plaintiff was not entitled to the order granting the motion for judgmenton the pleadings because he was not in possession of the suites, which, he maintains, is anecessary element to a forcible entry and ejectment claim. He relies upon Hale v. Ault, 83 Ill.App. 3d 78, 403 N.E.2d 635 (1980), in support of his position that lessees in possession ofpremises are not entitled to maintain forcible entry and ejectment claims against lessors who arenot in possession. Defendant contends that plaintiff was in possession of Suites 1200, 1212 anda portion of Suite 711. Inasmuch as plaintiff was in possession of the suites in contention andnot defendant, defendant argues that the Illinois Forcible Entry and Detainer Act (735 ILCS 5/9-209 (West 1996)), does not provide plaintiff with jurisdiction to maintain such an actionregarding the non-possessed premises.

Plaintiff responds that defendant ignores the forcible entry and detainer statute (735 ILCS5/9-209), which expressly authorizes the landlord to join its claim for unpaid rent with its actionfor possession. Plaintiff argues that it simply joined its claim for all unpaid rent owed bydefendant during his tenancy at the Monroe Building and relies upon LaSalle National Bank v.Helry Corp., 136 Ill. App. 3d 897, 903, 483 N.E.2d 958, 963 (1985), to support its position that atenant tendering less than unpaid rent is insufficient under the forcible entry and detainer statute. Plaintiff argues that there are no limitations on the landlord's ability to collect all unpaid rentowed by the tenant under the provision. According to plaintiff, defendant recognizes thatbecause his requests to renew his lease and downsize into smaller office space wereaccommodated. Additionally, defendant executed a promissory note and a confession ofjudgment acknowledging his liability for all unpaid rent.

Defendant leased office space at the Monroe Building for five years without interruption. He merely changed office space during that five-year span. The forcible entry and detainerstatute does not prevent plaintiff from recovering the unpaid rent from Suites 1200 and 1212. We find that the language of the statute (735 ILCS 5/9-209) authorizes plaintiff to join its claimfor unpaid rent with its action for possession.

Plaintiff's amended complaint seeks possession of Suite 711 and unpaid rent for thatsuite, as well as Suites 1200 and 1212. When this action was filed, defendant's lease of Suite 711had expired, and he continued to maintain possession thereof. Inasmuch as defendant was inpossession of Suite 711, a forcible entry and detainer action against defendant was proper. Clearly, plaintiff does not seek possession of Suites 1200 and 1212 in its amended complaint butmerely seeks the unpaid rent. Defendant signed a promissory note acknowledging his unpaidrent. The existence of defendant's debt is further supported by plaintiff's affidavits filed insupport of its motion for judgment on the pleadings. Defendant does not contest the debt withcounter-affidavits or other supporting documents.

Therefore, we hold that no genuine issue of material fact has been raised, and the circuitcourt's decision to grant plaintiff's motion for judgment on the pleadings is affirmed.

Illinois Supreme Court Rule 277(f) provides:

"When Proceeding Terminated. A proceeding under this rulecontinues until terminated by motion of the judgment creditor,order of the court, or satisfaction of the judgment, but terminatesautomatically 6 months from the date of (1) the respondent's firstpersonal appearance pursuant to the citation or (2) the respondent'sfirst personal appearance pursuant to subsequent process issued toenforce the citation, whichever is sooner. The court may, however,grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in effectnotwithstanding the termination of the proceedings until thejudgment is satisfied or the court orders otherwise." 134 Ill. 2d R.277(f).

In Resolution Trust Corporation v. Ruggiero, 994 F.2d 1221, 1227 (1993), the U.S. Courtof Appeals for the seventh circuit held the U.S. district court's order was valid contrary todefendant's argument that it was issued more than six months after debtor first appeared for hiscitation examination, and that no order extending the six-month deadline had been issued. Thecourt held that the oral ruling, which the written order memorialized, was made several daysbefore the six-month deadline expired, substantially complying with the statute. ResolutionTrust Corporation, 994 F.2d at 1227-28. The court also found that inasmuch as the citationexaminations had been repeatedly delayed because of defendant's conduct, the delays could bethought of as continuances extending the six-month period, as the statute permits. ResolutionTrust Corporation, 994 F.2d at 1228. "Moreover, since the deadline is intended not only toprevent property from being encumbered by judgment liens indefinitely, but also to protect thejudgment creditor from being harassed by his creditors, a debtor who by his own actions delaysthe citation proceedings should be estopped to plead the deadline." Resolution TrustCorporation, 994 F.2d at 1228.

In the case at bar, the citation to discover assets was filed November 25, 1998. Defendantwas ordered to execute an assignment of beneficial interest in the land trust by June 4, 1999. Hefailed to execute the assignment by that date and filed a variety of motions which wereentertained by the court until the court executed the assignment of beneficial interest itself onFebruary 2, 2000. The May 13, 1999, circuit court turnover order fell within the Supreme CourtRule 277(f) six-month requirement. The motions which defendant filed delayed the citationproceedings, and he is, therefore, estopped from pleading the Supreme Court Rule 277(f) six-month deadline. "A citation lien remains subject to attack and modification until the turnoverorder. It is the turnover order which makes the lien irrevocable." In re Marino v. Chrysler CreditCorp., 205 B.R. 897, 899 (1997).

Defendant argues that the citation proceedings expired on July 31, 1999, and in accordwith Supreme Court Rule 277(f) all orders entered after that date are void, including the turnoverorder. Defendant further states that Supreme Court Rule 277(f) requires the trial court to extendthe time of citation proceedings after six months have elapsed since defendant appeared or theproceedings expired. Defendant asserts plaintiff never requested to extend the life of thesecitation proceedings, nor did the trial court grant such an extension.

Plaintiff responds that contrary to defendant's assertions, it located defendant's asset andmoved for and obtained a turnover order on May 13, 1999, which was within the six-month timeframe established by Supreme Court Rule 277(f), and that defendant's rights to the propertypassed upon entry of the turnover order.

Plaintiff also argues that after the court entered the turnover order, defendant filed threemotions to reconsider and vacate that order and five motions for extensions. Defendant claimedthat he needed additional time to post a bond pending his appeal, which he never posted. Plaintiff states the above motions were filed to delay plaintiff's collection.

We find that the circuit court entered the turnover order within the six-month periodestablished by Supreme Court Rule 277(f), and that defendant is estopped from pleading the six-month deadline because his own actions delayed the citation proceedings. The circuit court orderassigning defendant's beneficial interest in a land trust to the sheriff of Cook County is not void.

Based upon the foregoing analysis, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and BARTH, J., concur.