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Nos. 2--04--0346 & 2--04--0382 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

After two separate small claims bench trials, defendant Paradise Park, Inc. (PPI), was foundliable for conversion, illegal eviction, and negligent failure to protect property. PPI seeks to reversethe trial court's rulings. Because both cases arise from a common set of events, the cases have beenconsolidated on appeal. We affirm the trial court's decisions.

I. BACKGROUND FACTS

Plaintiff Romas Dargis filed a small claims complaint on October 21, 2003, to recover thevalue of a deck that PPI and its vice-president, Anthony J. Dini in his individual capacity, allegedlyconverted for their own uses at a trailer park owned by PPI. Shortly thereafter, on November 4,2003, plaintiff Lucia Zuro filed a small claims complaint to recover the value of property that wasdamaged or stolen allegedly as a result of PPI illegally evicting her from its trailer park. Zuro servedsummons upon PPI, and Dargis served summons upon Dini. Attorney Mark E. Thompsonsubsequently filed appearances on behalf of Dini in the Dargis case and on behalf of PPI in the Zurocase. On November 25, 2003, attorney Thompson filed separate answers to the two complaints,denying all of the allegations.

A. Bench Trials

On January 13, 2004, and on February 3, 2004, Judge J. Edward Prochaska conductedseparate bench trials on the Dargis case and on the Zuro case, respectively. After consideringtestimony and exhibits, Judge Prochaska issued two written opinions, making findings of fact andconclusions of law, and explicitly incorporating his opinion on the Dargis case into his opinion on theZuro case. The following are the collective findings and conclusions of Judge Prochaska.

1. Findings of Fact

Zuro contracted with PPI to rent seasonal recreational vehicle (RV) campsite S50 at ParadisePark during the 2003 season, which ran from April 11 to October 26, 2003 (weather permitting), fora fee of $1,100, payable in equal one-third installments by May 31, 2003. The site contract, entitled"Seasonal Site Contract," permitted Zuro to maintain a trailer on the campsite, to use and enjoycommon facilities, and to entertain visitors who registered with and paid a daily fee to PPI. However,it explicitly stated: "This contract creates a license and does not create any ownership or leaseholdinterest in any RV site or in Paradise Park." The contract also stated:

"No site Alterations such as bushes, trees or permanent fixtures may be done with out consentof management. Decks are permitted, with approval of the management, and a signed deckcontract. Maximum width of decks is 10 ft. *** Any decks, bushes, patio blocks, etcinstalled on your site must remain when you leave."

PPI reserved the right to terminate the contract, as well as the use and enjoyment of the commonfacilities at Paradise Park, for violation of terms of the contract. PPI also reserved the right to assignRV sites at the expiration or termination of the contract, but restricted the trading or reassignmentof sites and contracts without its express permission. The contract contained an exculpatory clause,the terms of which hold PPI harmless, release PPI from liability, and provide a waiver of all causesof action against PPI, for any property damage "related to occupancy and use of an RV site." Finally,the contract required all seasonal campers to maintain insurance for any and all property damage.

Zuro occupied site S50 and owned a 10-foot by 30-foot portable wood deck, which wasmaintained on the site. Dargis, who was Zuro's guest at the campsite and who had not signed a sitecontract with PPI, purchased that deck from Zuro for $5,000. He subsequently maintained andimproved it prior to selling it to an unnamed third party in the fall of 2003.

At some time during the 2003 season, PPI promulgated a new policy that required eachcamper who had a deck to sign a deck contract that charged a $200 fee in order to maintain a deckon a campsite. Zuro and Dargis opposed this policy and organized a group of campers to protest it. Dargis then began to remove the deck from site S50, but PPI's security agents prevented him fromdoing so.

On October 18, 2003, Zuro and Dargis were evicted from the campsite and were given twohours to pack their belongings, after Dini, an agent of PPI, gave Zuro a document entitled"Termination of Contract," which stated:

"As of October 18, 2003 at 2:30 P.M. your contract has been terminated affective [sic]immediately. As of this point in time you are no longer allowed on this property and arerequested to leave immediately."

As a result of the sudden eviction, Zuro was forced to leave at the campsite many of her personalbelongings both inside and outside the trailer. When PPI permitted Zuro to return to her trailer onOctober 30, 2003, many of her items were damaged or missing.

Although no reason for the eviction was given on October 18, 2003, Dini testified at trial thatZuro and Dargis were evicted in order to prevent them from removing the deck, which PPI believedto be its property. At trial, Zuro and Dargis testified that they were evicted in retaliation for theirefforts to organize other campers to oppose the new deck policy. Judge Prochaska determined thata combination of the two reasons probably led to the eviction.
 

2. Conclusions of Law

After hearing the evidence at the trials, Judge Prochaska found that PPI and Dini unlawfullyconverted the deck for their own uses and unjustly enriched themselves at Dargis's expense. Hefound that PPI unlawfully evicted Zuro and negligently failed to protect Zuro's property.

Judge Prochaska's unlawful conversion determination was based upon the contract betweenZuro and PPI. He found that Zuro's ownership of the deck was undisputed, that the contract did notpreclude her from selling the deck, and that the contract did not prevent subsequent sale of the deckto a third party. Because Dargis was not a party to the contract between Zuro and PPI, PPI had nolegal right to prevent him from removing the deck once he purchased it from Zuro. When theyprevented Dargis from removing the deck, PPI and Dini unlawfully converted the deck. JudgeProchaska consequently awarded damages to Dargis.

Because PPI had no legal right to prevent the removal of the deck, Judge Prochaska reasonedthat preventing removal of the deck was not a legally justifiable reason to evict Zuro from thecampsite. He also determined that Zuro's opposition to PPI's new deck policy was not a legallyjustifiable reason for the eviction, which was a vindictive and cruel attempt at public humiliation. Because PPI had no contractual basis for the eviction, the eviction was illegal.

Finally, the nature and circumstances of the illegal eviction led Judge Prochaska to determinethat PPI owed Zuro, a tenant, the duty to protect her property. He reasoned that although a landlordgenerally does not owe his tenant a duty to prevent unforeseeable criminal acts of a third person,Zuro's public eviction made it foreseeable that her property could be a target for thieves and vandals. Because PPI failed to safeguard Zuro's property and trailer, its negligence was the proximate causeof her subsequent loss of property. Judge Prochaska consequently awarded damages to Zuro.

B. Posttrial Motions

On February 20, 2004, defendants filed motions to vacate the judgments or to grant them newtrials. In both cases, Judge Prochaska denied the motions with respect to the merits of the cases. Inthe Dargis case, however, defendants argued that judgment was erroneously entered against both PPIand Dini because PPI was not a defendant in the case as a result of not being served. In an orderdated March 23, 2004, Judge Prochaska dismissed Dini as a party in the matter, vacated the judgmentagainst him, and ruled that the judgment remained in effect against PPI. PPI now appeals from JudgeProchaska's rulings in both cases.

II. DISCUSSION

On appeal, PPI raises five issues: (1) whether the judgment against it is void in the Dargis casebecause PPI was not served; (2) if jurisdiction is proper, whether Dargis proved the requisite elementsof conversion; (3) whether Zuro was evicted illegally; (4) whether PPI had a duty to protect Zuro'sproperty; and (5) whether the exculpatory clause in the site contract protects PPI from any liabilityfor damages to and loss of Zuro's property. We will address each issue in turn, but first we mustaddress the procedural errors committed by PPI on appeal.

First, PPI challenges many of the factual findings upon which the trial court's legal conclusionsare based and asks us to accept its version of certain facts (for example, that Zuro had no preexistingownership interest in the deck). However, we can review the trial court's factual findings only if wehave a sufficiently complete record of the trial proceedings, which we do not. A report ofproceedings is not in the record before us. In the event of the absence of a report of proceedings,Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)) authorizes a bystander's report, and Rule 323(d)(166 Ill. 2d R. 323(d)) authorizes an agreed statement of facts. Neither of these alternatives isprovided to us in this case. It is the appellant's burden to preserve the trial evidence and to presenta sufficiently complete record of the trial proceedings to support a claim of error on appeal. Foutchv. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). In the absence of such a record, we must presume thatthe trial court's decisions are in conformity with the law and have a sufficient factual basis. Foutch,99 Ill. 2d at 392. Fortunately for the appellant in this case, it supplemented the record with one trialexhibit, the seasonal site contract, which, when viewed alongside Judge Prochaska's two writtendecisions, provides sufficient information for us to decide the issues in this case. In the absence ofa report of proceedings or a suitable alternative thereto, however, we presume that Judge Prochaska'sfactual findings, as recited above, have sufficient basis in the evidence, and therefore we adopt them. Nonetheless, "[a]ny doubts which may arise from the incompleteness of the record will be resolvedagainst the appellant." Foutch, 99 Ill. 2d at 392.

Second, we note that PPI's brief fails to comply with Supreme Court Rule 341(e)(3) (188 Ill.2d R. 341(e)(3)). PPI failed to include the applicable standards of review with citations to authority. In this case, different standards of review are applicable to the jurisdictional issue and to the issuesarising directly from the bench trials. These standards are set out below.

A. The Trial Court Had Jurisdiction Over PPI

PPI argues that Judge Prochaska erred by entering judgment against it in the Dargis casebecause it had not been served and it never filed an appearance in the case. It contends that Dini wasthe only party served and that he was served in his individual capacity, not as the vice-president ofPPI. Additionally, PPI states that attorney Thompson confirmed with the clerk of the circuit courtthat Dini was the only defendant in the case. This confusion apparently arose because, although thecomplaint lists "Anthony J. Dini (VP)" and "Paradise Park Inc." as separate defendants, the summonsserved upon Dini lists the defendant as "Paradise Park Inc. (Anthony J. Dini)." According to PPI'sbrief, Judge Prochaska ruled at trial that there were two defendants. We have no record of that rulingor the reasons therefor.

Ordinarily, if the trial court heard disputed evidence and made factual findings, therebycreating a mixed question of law and fact regarding proper service of summons, we would apply theclearly erroneous standard of review, which permits reversal of the trial court's findings only if we areleft with the "definite and firm conviction" of an erroneous finding. People ex rel. Waller v. Harrison,348 Ill. App. 3d 976, 979-80 (2004). However, as there is no transcript of the trial, there is no basisfor holding that the trial court's finding of two defendants was clearly erroneous. See Foutch, 99 Ill.2d at 392.

Although we lack a record of the proceedings, even if we assume that the trial court heardno testimony but rather decided the jurisdictional issue solely on the basis of documentary evidence,the trial court's decision must be affirmed because PPI waived its objection to improper service. Inthis circumstance, we apply a de novo standard of review. Gaidar v. Tippecanoe Distribution Service,Inc., 299 Ill. App. 3d 1034 (1998). The record in the Dargis case contains an answer filed byAttorney Thompson. The answer identifies the defendant as "PARADISE PARK, INC. (ANTHONYJ. DINI)," but shortens the identification to "Paradise Park," not "Anthony J. Dini." Additionally, thesignature line reads "PARADISE PARK INC. / BY: [Signature of Mark E. Thompson] / MARK E.THOMPSON, its Attorney." This is the same signature line used by attorney Thompson in the Zurocase, in which there is no dispute that PPI is the defendant. Moreover, if Dini in his individualcapacity was the party filing the answer, the signature line should have read, "his attorney" insteadof "its attorney." Therefore, the answer in this case was filed on behalf of PPI, which consequentlymade a general appearance and consented to jurisdiction despite not being served. Fleming v. Walls,65 Ill. App. 3d 352, 355 (1978). Accordingly, we hold that the trial court had jurisdiction over PPI.

B. Review of the Trial Court's Rulings on the Merits

PPI challenges the trial court's rulings arising from the trial. Because these rulings were madefollowing a bench trial, the applicable standard of review is whether the trial court's judgment isagainst the manifest weight of the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d151, 154 (2001). "A judgment is against the manifest weight of the evidence only when an oppositeconclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based onevidence." Judgment Services Corp., 321 Ill. App. 3d at 154. To the extent PPI challenges the trialcourt's rulings on purely legal grounds, we review the trial court's rulings de novo. In re Marriageof Ackerley, 333 Ill. App. 3d 382, 398 (2002).

1. PPI Converted the Deck

To prove conversion, a plaintiff must establish (1) that he has a right to the property; (2) thathe has an absolute and unconditional right to the immediate possession of the property; (3) that hemade a demand for possession; and (4) that the defendant wrongfully and without authorizationassumed control, dominion, or ownership over the property. Cirrincione v. Johnson, 184 Ill. 2d 109,114 (1998). PPI argues that Dargis failed to establish the first and second prongs. We disagree.

Dargis established that he has a right to the deck because the trial court found that Zuroundisputedly owned the deck and that she rightfully sold it to Dargis. We must accept this findingbecause there is no evidence in the record to contradict it. Foutch, 99 Ill. 2d at 392. The record doesnot indicate whether the deck existed on campsite S50 prior to Zuro occupying the site (whichpresumably would evidence PPI's ownership of the deck) or whether Zuro constructed the deck(which presumably would evidence Zuro's ownership of the deck). Additionally, nothing in therecord indicates error in the trial court's determination that the deck is portable, and thus the deckcannot be a permanent fixture on the campsite under the terms of the contract. Therefore, the trialcourt's findings are not against the manifest weight of the evidence.

Dargis also established that he has an absolute and unconditional right to the immediatepossession of the deck. The trial court found that Dargis validly purchased the deck from Zuro andthat the deck remained at the site while Dargis was Zuro's guest, which was from after the sale of thedeck until they were forced to vacate. That both Zuro and Dargis used the deck continuously duringthat time evidences that, at most, Zuro had nothing more than an implied license to use the deck inconjunction with Dargis, which could be revoked upon notice. See Dunstedter v. Dunstedter, 77 Ill.580 (1875). Zuro, therefore, did not have a vested interest in the deck or its possession. Thus, theissue becomes whether PPI has an interest in the deck under the contract that requires the deck toremain with the land, even though the trial court found that Dargis was not a party to the contract. We find that PPI has no interest in the deck.

This decision is guided by reasoning that has been applied in the context of conditional salescontracts. Under conditional sales contracts, vendors retain title in personal property until fullpayment is made by a vendee. National Bank of the Republic v. Wells-Jackson Corp., 358 Ill. 356,364 (1934). Sometimes, the sales contract provides that the chattel retains its status as personalproperty despite its annexation to real estate leased by the vendee, as tenant. See National Bank ofthe Republic, 358 Ill. at 364. Under such circumstances, the general rule is that the sales contract isenforceable between the parties thereto and also against any successor in interest to the rights of thevendee, as tenant, so long as the chattel can be removed without material injury to the real estate orto the usefulness of the chattel. National Bank of the Republic, 358 Ill. at 364. The reasons for thisprinciple are clear. It is a general and a well-established principle that no one can transfer a better titlethan she has. Drain v. LaGrange State Bank, 303 Ill. 330, 335 (1922). Thus, if the vendee, as tenant,defaults in the terms of an enforceable lease agreement with a lessor and the lessor consequently takespossession of the real estate with the chattel thereon, the lessor succeeds to the rights of the vendee,as tenant, in the real estate but has no interest to succeed to in the chattel. National Bank of theRepublic, 358 Ill. at 366. Under the sales contract, the chattel retains its status as the personalproperty of the vendor, and thus the vendee does not own the chattel. National Bank of the Republic,358 Ill. at 366. Despite its succession in the interests of the vendee, as tenant, the lessor cannot anddoes not acquire any greater title to the chattel than the vendee has. National Bank of the Republic,358 Ill. at 366. Therefore, the lessor has an interest in the real estate but, given the terms of theagreement between the vendor and the vendee, not in the chattel annexed thereto, so long as itsremoval causes no material injury to the real estate or to the chattel's usefulness. National Bank ofthe Republic, 358 Ill. at 366.

The same reasoning is applicable where a licensor licenses his personal property to a licenseewho then annexes that chattel to the real estate of a third-party successor in interest to the licensee'srights in the real estate. Thus, in this case, PPI cannot take an ownership interest in the deck becauseZuro had none to give. By virtue of the seasonal site contract, PPI is the successor in interest toZuro's right to site S50. By virtue of the implied license between Zuro and Dargis, the deck on siteS50 remained the personal property of Dargis, the licensor. Therefore, when PPI removed Zuro fromsite S50, it succeeded to Zuro's rights in the real estate but had no rights to succeed to Zuro's rightsin the deck because, as between Dargis and Zuro, the deck remained the personal property of Dargis. PPI could not and did not acquire any greater title to the deck than Zuro had. Because Zuro had noownership interest in the deck, PPI has no ownership interest in the deck.

Further weakening PPI's ownership claim is the fact that the trial court found the deck to beportable, meaning the deck was not annexed to the real estate. Additionally, there is no evidence inthe record that the deck could not be removed without material injury to the real estate or to thedeck's usefulness. Because, given the facts of this case, there is no basis upon which PPI can claiman ownership interest in the deck, Dargis had an absolute and unconditional right to the immediatepossession of the deck.

For the foregoing reasons, we reject PPI's challenges to the trial court's conclusion that PPIconverted the deck. Therefore, we affirm the trial court's decision on this issue.

2. The Eviction of Zuro Was Illegal

PPI challenges the trial court's ruling that the removal of Zuro from the campsite was anillegal eviction, on the grounds that the trial court erred in finding that the seasonal site contractconstituted a lease. We affirm the trial court's ruling.

The only question raised by PPI on this issue is whether the seasonal site contract constitutesa license or a lease. PPI argues that the contract creates a license because the contract explicitlydeclares that it is a license granting use of a specific campsite and that it creates no ownership orleasehold interest in any RV site or in Paradise Park. Because a license is revocable at any time atthe will of the licensor (Soderholm v. Chicago National League Ball Club, Inc., 225 Ill. App. 3d 119,124 (1992)), PPI asserts that in this case an illegal eviction is impossible.

A license grants the licensee the right to enter upon the licensor's land and use it for a specificpurpose, without giving up the licensor's legal possession and control over the property. NorthAvenue Properties, L.L.C. v. Zoning Board of Appeals, 312 Ill. App. 3d 182, 189 (2000). Theappearance of the term "license" in an instrument, however, does not necessarily make it so. SeeUniversal Vending Service Co. v. DeMeo, 231 Ill. App. 30 (1923). Whether a contract is a licenseor a lease is determined, not from the language used, but rather from the legal effect of its provisions. Jackson Park Yacht Club v. Department of Local Government Affairs, 93 Ill. App. 3d 542, 546(1981).

The existence of a lease depends upon the intention of the parties. Jackson Park Yacht Club,93 Ill. App. 3d at 546. Essential requirements of a lease include the following: (1) a definiteagreement as to the extent and bounds of the property; (2) a definite and agreed term; and (3) adefinite and agreed rental price and manner of payment. Jackson Park Yacht Club, 93 Ill. App. 3dat 546-47.

In this case, the seasonal site contract contains the essential requirements of a lease. First,there is a definite agreement that the site identified as S50 is the extent and bounds of the property. Second, April 11 to October 26, 2003, is the agreed term; the caveat of "weather permitting" doesnot make the term so indefinite as to nullify the intention of the parties. Third, $1,100, payable inequal one-third installments by May 31, 2003, are the definite and agreed rental price and manner ofpayment.

Moreover, the contract itself belies PPI's contention that the contract gives no estate to Zuro.The contract gives Zuro an exclusive interest in site S50 from April 11 to October 26, 2003. Underthe contract, no one, not even PPI, can remove Zuro from the site unless and until the contractexpires or is terminated. The contract cannot be terminated unless Zuro violates its terms. Thus,because PPI's right to possess the site is restricted by the terms of the contract, and PPI does not havethe right to remove Zuro at will, the contract creates for Zuro an estate in the site. Additionally,because Zuro occupied the site by right for a specific term, she was a tenant. See Urban Investment& Development Co. v. Maurice L. Rothschild & Co., 25 Ill. App. 3d 546, 552 (1975).

Finally, the fact that the agreement was for a specific purpose does not transform the contractinto a license. An agreement does not fail as a lease simply because the premises may be used onlyfor certain purposes. People v. Chicago Metro Car Rentals, Inc., 72 Ill. App. 3d 626, 630 (1979). For example, in Gustin v. Barney, 250 Ill. App. 209 (1928), the court upheld the existence of a leaseeven though the lessee was given the right only to hunt upon the premises and the lessor reserved allother uses. Therefore, we hold that the contract in this case constitutes a lease agreement betweenPPI and Zuro.

For the foregoing reasons, we reject PPI's challenges to the trial court's conclusion that PPIillegally evicted Zuro. Therefore, we affirm the trial court's decision on this issue.

3. PPI Had a Duty to Protect Zuro's Property and Was Negligent in that Duty

PPI challenges the trial court's ruling that it was negligent in its duty to protect Zuro'sproperty after the eviction. We affirm the trial court's ruling.

A successful negligence action requires proof of the existence of a duty, a breach of that duty,and an injury proximately caused by the breach. Elizondo v. Ramirez, 324 Ill. App. 3d 67, 72 (2001). PPI insists that, as a licensor, it owes no duty to Zuro, a licensee, other than not to willfully andwantonly injure her, which it did not, and thus cannot be liable for negligence. We summarily rejectthis contention. Having ruled that Zuro was not a licensee but rather was a tenant, we need not reachthe merits of PPI's argument.

However, whether a duty exists is a question of law. Hills v. Bridgeview Little League Ass'n,195 Ill. 2d 210, 228 (2000). Therefore, we must decide whether the trial court properly held that PPIowed Zuro a duty to protect her property from theft and damage caused by third parties.

Generally, one does not have a duty to protect others from criminal acts by third parties. Jackson v. Shell Oil Co., 272 Ill. App. 3d 542, 547 (1995). An exception exists, however, where thecriminal act was reasonably foreseeable and a special relationship exists between the injured party andthe party with the alleged duty. Jackson, 272 Ill. App. 3d at 547.

In this case, there is nothing in the record to indicate that the theft and damage to Zuro'sproperty was not foreseeable. The trial court found that the eviction was done publicly. To thatextent, it is reasonable to conclude that others at the campground were aware that anything left at thecampsite would not be protected. Moreover, Zuro's property remained unsecured for 12 days, givingthieves and vandals ample opportunity to loot and to destroy. Therefore, we find that the theft anddamage to Zuro's property was foreseeable.

We also find that, although there exists no special relationship between PPI and Zuro, PPIassumed a duty to protect. Generally, no special relationship exists between a landlord and a tenant,and thus a landlord has no duty to protect tenants against foreseeable third-party criminal acts. Rowev. State Bank of Lombard, 125 Ill. 2d 203, 215-16 (1988). Such a duty arises, however, when alandlord, under the facts of the case, assumed the duty. Shea v. Preservation Chicago, Inc., 206 Ill.App. 3d 657, 661 (1990). When a landlord exercises control over a portion of a leased premises, thelandlord assumes a duty to exercise such control in a reasonably safe manner. Shea, 206 Ill. App. 3dat 661. Whether this retention of control includes a duty to protect tenants against foreseeable third-party criminal acts depends upon the normal and usual function of such control and the particularcircumstances of the case. Shea, 206 Ill. App. 3d at 661. Consequently, several jurisdictions haveheld that a landlord assumes no duty to care for the property that a former tenant has left behind whenthe landlord exercises control over the premises after the tenancy has been terminated by lawfuleviction. See, e.g., Banks v. Korman Assoc., 218 N.J. Super. 370, 372, 527 A.2d 933, 934 (App.Div. 1987); Ringler v. Sias, 68 Ohio App. 2d 230, 232, 428 N.E.2d 869, 870 (1980); Conroy v.Manos, 679 S.W.2d 124, 127 (Tex. App. 1984). The exception is when the landlord chooses to carefor the property. See, e.g., Christensen v. Hoover, 643 P.2d 525, 528 (Colo. 1982) (en banc). Inthis case, however, the problem is not that PPI chose to care for Zuro's property but rather that itexercised control over the campsite via an unlawful eviction. Because the eviction was unlawful, theconverse of the general principle applies, and thus the law imposes upon PPI the duty to protect theproperty left behind by Zuro. Where an unlawful eviction induces a tenant to forgo remedies orprecautions against the risk of theft and damage, any consequential harm results from the landlord'snegligent failure to protect as fully as if the landlord had created the risk. See Rowe, 125 Ill. 2d at218; Restatement (Second) of Torts