BAUM v. MARTIN

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Docket Number

Gen. No. 10,265.

Attorney(S)

ROBERT E. DOLPH, of Aurora, for appellant. MATTHEWS, JORDAN DEAN, of Aurora, for appellees; FRED T. DEAN, of Aurora, and RICHARD A. CAGLE, of counsel.

Judges

MR. PRESIDING JUSTICE WOLFE delivered the opinion of the court.

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Smart Summary

Factual and Procedural Background

Raymond H. Baum and Geraldine F. Baum, joint tenants and owners of a two-apartment building in Aurora, Illinois, initiated a suit before a Justice of the Peace against their tenant, E.P. Martin, who occupied the upper apartment. On September 29, 1947, the Justice of the Peace entered judgment in favor of the owners for possession of the premises. The tenant appealed this judgment to the Circuit Court of Kane County. After the appeal was perfected, the owners filed an affidavit in the circuit court and moved for summary judgment to regain possession. The tenant responded by filing a counteraffidavit rather than a motion to strike the sufficiency of the owners’ affidavit. The circuit court found the counteraffidavit insufficient to raise a factual issue and granted summary judgment in favor of the owners. The tenant then appealed this ruling to the Appellate Court of Illinois.

Legal Issues Presented

Whether the circuit court erred in granting summary judgment to the property owners despite the tenant’s assertion of a disputed question of fact regarding the owners’ good faith demand for possession.
Whether the tenant’s filing of a counteraffidavit, instead of a motion to strike, constituted an admission of the sufficiency of the owners’ affidavits supporting summary judgment.
Whether the owners’ desire to occupy the upper apartment in good faith, as alleged, negates the tenant’s claim that a factual dispute exists requiring a jury trial.

Arguments of the Parties

Appellant's Arguments

The tenant argued that there was a disputed factual question regarding whether the owners demanded possession of the apartment in good faith, which should have been decided by a jury.
The tenant contended that the summary judgment was improper because the counteraffidavit raised issues that should preclude judgment without trial.

Appellees' Arguments

The owners maintained that the tenant’s filing of a counteraffidavit admitted the sufficiency of their affidavit supporting summary judgment.
They argued that the tenant failed to file a written motion to strike the affidavit, which was necessary to challenge its sufficiency.
The owners asserted their good faith desire to occupy the upper apartment as their residence, a fact not denied by the tenant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Scharf v. Waters, 328 Ill. App. 525	Requirement that to test sufficiency of affidavit supporting summary judgment, a written motion to strike must be filed specifying objections.	Held that the tenant’s failure to file such a motion and instead filing a counteraffidavit amounted to admission of affidavit sufficiency, supporting summary judgment.
Bertlee Co., Inc. v. Illinois Publishing Printing Co., 320 Ill. App. 490	Standard that summary judgment is proper only if affidavits leave no factual issues for jury determination.	Applied to conclude that affidavits here left no genuine issue of fact, justifying summary judgment.
Great Atlantic Pacific Tea Co. v. Town of Bremen, 327 Ill. App. 393	Principle reinforcing summary judgment standards regarding sufficiency of affidavits and absence of factual disputes.	Used to support the court’s reasoning that no jury question remained.
Shirley v. Ellis Drier Co., 379 Ill. 105	Legal standard for granting summary judgment when affidavits conclusively establish facts.	Referenced to affirm the propriety of summary judgment under the circumstances.
Shaffer v. Bowes, 31 A.2d 690 (D.C. Mun. Ct. App.)	Owner’s right to occupy own premises in good faith without violating occupancy statutes.	Cited to support that owners’ good faith intent to occupy the apartment justified possession demand.
Downs v. Karsh, 33 A.2d 620 (D.C. Mun. Ct. App.)	Good faith occupancy by owner and absence of bad faith despite owning multiple properties.	Used to reinforce that owners’ choice of residence among multiple properties is their right if exercised in good faith.

Court's Reasoning and Analysis

The court analyzed the procedural posture where the tenant appealed the Justice of the Peace’s judgment and the owners subsequently moved for summary judgment in the circuit court. The tenant responded by filing a counteraffidavit rather than a formal motion to strike the owners’ affidavit. The court found that by filing a counteraffidavit without challenging the affidavit’s sufficiency through a motion to strike, the tenant effectively admitted the affidavit’s sufficiency to support summary judgment. The tenant’s counteraffidavit did not deny the owners’ good faith intent to occupy the apartment but rather presented allegations more in the nature of recitals without positive averments contradicting the owners’ claim. The court relied on Illinois precedent establishing that summary judgment is appropriate when affidavits leave no genuine issue of fact for jury resolution. Furthermore, the court cited authority from the District of Columbia emphasizing that an owner’s good faith occupancy of their property is lawful and cannot be evaded by tenants asserting bad faith without evidence. Thus, the court concluded the counteraffidavit was insufficient to raise a factual dispute, and summary judgment was properly granted.

Holding and Implications

Judgment affirmed.

The court upheld the circuit court’s summary judgment in favor of the property owners, confirming that the tenant’s procedural failure to properly challenge the affidavit and the absence of a genuine dispute over the owners’ good faith occupancy justified the ruling. The decision directly resolves the parties’ dispute by affirming possession for the owners and does not establish new precedent beyond applying established summary judgment and landlord-tenant law principles.

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Raymond H. Baum and Geraldine F. Baum, Appellees, v. E. P. Martin, Appellant.

1. PLEADING, § 386 — admission by filing counteraffidavit. Where plaintiffs, after defendant perfected appeal to circuit court from judgment in suit commenced before justice of the peace, filed affidavit in circuit court and asked for summary judgment, defendant, by filing counteraffidavit, admitted sufficiency of plaintiffs' affidavit.

See Callaghan's Illinois Digest, same topic and section number.

2. JUDGMENTS, § 5.1^fn_ — manner of testing motion and affidavit for summary judgment. If defendant desired to test sufficiency of plaintiffs' motion and affidavit for summary judgment, defendant should have filed a written motion to strike specifying his objection to affidavit and motion.

3. JUDGMENTS, § 5.1^fn_ — propriety of summary judgment for plaintiff landlords. Where owners of two-apartment building, after tenant of upper apartment appealed to circuit court from judgment of justice of the peace awarding possession to owners, filed affidavit in circuit court and asked for summary judgment, and tenant did not test sufficiency of affidavit by motion to strike but filed counteraffidavit, admitting that owners had demanded possession of premises and not denying that they desired in good faith to occupy upper apartment as their residence, counteraffidavit was insufficient to raise a question of fact for jury, and hence summary judgment for owners was warranted.

MR. PRESIDING JUSTICE WOLFE delivered the opinion of the court.

Raymond H. Baum and Geraldine F. Baum were the owners in joint tenancy of a two-apartment building, in the City of Aurora, Illinois. E.P. Martin occupied the upper apartment as a tenant. He had been in possession of the same for several years. The owners of the property started a suit before a Justice of the Peace in Kane county, Illinois, against the tenant for possession of the property, and on September 29, 1947, a judgment was entered in the owners' favor. From this judgment, an appeal was perfected to the circuit court of Kane county.

After the appeal had been perfected, the owners of the property filed an affidavit in said court and asked for summary judgment against the defendant for possession of the premises. The defendant did not test the sufficiency of the affidavit by motion to strike, but filed a counteraffidavit, setting up facts, as they claimed in opposition to the motion of the plaintiffs for a summary judgment. The court entered the following order: "This cause having come on for hearing on the motion of the plaintiffs, the appellees herein, for a summary judgment, and affidavit in support thereof having been filed and a counteraffidavit having been filed by the defendant, the appellant herein, and said counteraffidavit having been considered insufficient to raise a question of fact for the jury, Therefore be it hereby ordered, adjudged and decreed that summary judgment be entered in favor of the plaintiffs herein for possession of the premises herein described." The tenant, E.P. Martin, has prosecuted an appeal to this court to reverse this order.

At the time that the appellant perfected his appeal from the judgment of the Justice of the Peace, he, within the proper time, filed a demand for a jury. He now insists that the court erred in rendering a summary judgment in the proceeding, because there was a disputed question of fact involved in the suit; namely, whether the appellees had demanded possession of the premises in good faith, and such question of fact should have been submitted to a jury. The appellant, by filing a counteraffidavit, admitted the sufficiency of the affidavits of the appellees, because if he had desired to test the sufficiency of plaintiffs' motion and affidavit for a summary judgment, he should have filed a written motion to strike specifying his objection to the affidavit and motion. Scharf v. Waters, 328 Ill. App. 525. He admits in his affidavit that the appellees had demanded possession of the premises, stating that they wanted it to live in. In his reply brief, he states: "The appellant has never raised a question concerning the desire of the landlord to occupy the second floor apartment, whether true or not." In his affidavits, he states more by way of recital than a positive averment of facts, many circumstances tending to show that the appellees desired the possession of the upper flat, so that they could get more rental out of the premises, but nowhere do they deny that the appellees desired in good faith to occupy the upper apartment as their residence.

In Scharf v. Waters, supra, it is stated: "If there is anything left to go to the jury the motion for a summary judgment is denied. If what is contained in the affidavits would have constituted all the evidence before the court and upon such evidence, there would be nothing left to go to the jury, and the Court would be required to direct a verdict, then a summary judgment will be entered." Bertlee Co., Inc. v. Illinois Publishing Printing Co., 320 Ill. App. 490; Great Atlantic Pacific Tea Co. v. Town of Bremen, 327 Ill. App. 393; Shirley v. Ellis Drier Co., 379 Ill. 105. In the case of Shaffer v. Bowes, a Municipal Court of Appeals for the District of Columbia, reported in 31 Atlantic reporter, second series, 690, it is stated: "It is evident the act did not intend to prevent an owner from occupying his own premises, provided such occupancy is sought in good faith and not for the purpose of evading or defeating the purposes of the act. In such circumstances where an owner has several properties available, the choice of which one he shall occupy is for him."

In Downs v. Karsh, also from a Municipal Court of Appeals for the District of Columbia, 33 Atlantic reporter, second series, 620 it is stated: "There is no evidence in the record of bad faith on the part of appellant. There are some indefinite references to a petition filed by her with the rent administrator for an increase of rent, but since the office of the administrator is open to both landlord and tenant we think neither should be penalized for exercising a right given by the act. . . . It is true appellant owns another property, but where an owner has several properties available, the choice of which one he shall occupy is for him. ( Shaffer v. Bowes, supra.)"

It is our conclusion that the appellant, having failed to test the sufficiency of appellees' affidavit for a summary judgment, and filing counteraffidavits in resisting the application for a summary judgment, the court properly found that the counteraffidavit did not state a defense to the affidavits of the appellees, and the court properly held that they were insufficient, and rendered judgment in favor of the owner of the property. The judgment appealed from is hereby affirmed.

Judgment affirmed.