YOLANDA CASTREJON, Plaintiff-Appellee, v. ROY TIJERINA and EUSTOLIO DELGADO, Defendants-Appellants. YOLANDA CASTREJON, Plaintiff-Appellant, v. ROY TIJERINA and EUSTOLIO DELGADO, Defendants-Appellees.
No. 1-15-1661 & 1-15-2684 (cons.)
Appellate Court of Illinois, First Judicial District
September 28, 2016
2016 IL App (1st) 151661
JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
THIRD DIVISION
¶ 1 Held: The trial court erred in finding defendant liable for compensatory damages on plaintiff‘s conversion claim for defendant‘s changing of the locks at the request of the property owner. In addition, the trial court erred in finding defendant liable for punitive damages and attorney fees.
¶ 2 This appeal arises from an initial complaint filed by plaintiff Yolanda Castrejon against defendants Roy Tijerina and Eustolio Delgado for wrongful eviction and damages. In response, defendants filed a counter-claim for unpaid rent. After a bench trial, Tijerina filed a notice of appeal and plaintiff filed a counter-notice of appeal, which have been consolidated here. On appeal, Tijerina contends that the trial court erred by finding him liable for conversion. Tijerina also contends that the trial court abused its discretion by finding him liable for punitive damages when there was no evidence to support a finding of willful and wanton conduct. In addition, Tijerina contends that the trial court erred in finding against him liable for attorney fees. We reverse.
¶ 3 BACKGROUND
¶ 4 We recite only those facts necessary to understand the issues raised on appeal. On September 1, 2011, plaintiff entered into an oral lease with Delgado, who is her cousin, to rent an apartment at 925 North Damen Avenue in Chicago, Illinois (the property). The property was an owner-occupied, 4-unit apartment building. Approximately a year later, plaintiff and her boyfriend Steven Puccini filed an initial complaint for possession and damages against defendants. In response, defendants, represented by the same attorney, jointly filed a counter-claim for nonpayment of rent against plaintiff and Puccini. Thereafter, Puccini moved to voluntarily dismiss his claims against defendants.
¶ 6 In March 2015, a bench trial commenced and the testimony revealed the following. Plaintiff testified that she lived at the property from August 2011 until August 2012 with her two children. During the initial walkthrough, plaintiff observed that the apartment was in need of repair as evidenced by an inoperable stove, peeling ceiling paint, a cracked bathroom window “fixed” by a piece of duct tape, coverless electrical outlets, a dented heater and a noticeable gap between the lock and the front door. She was concerned about her children‘s safety, but her cousin Delgado told her “[d]on‘t worry about it” because he would handle all of the repairs. She trusted Delgado because he was a relative, and thus, entered into an oral lease on a month-to-month basis for $850 in cash on the first of every month.
¶ 8 On August 28, plaintiff stopped at the property to pick up a few personal items and discovered that she had been locked out. The following day, she returned with Puccini and observed the front building door open and encountered Tijerina. While plaintiff claimed that Tijerina identified himself as “the new owner,” Tijerina denied making any such statement and there is no evidence in the record that title to the property was held by anybody but Delgado. In any event, a physical altercation allegedly ensued when Tijerina tried to physically restrain Puccini and plaintiff from entering the apartment. Upon gaining access, plaintiff observed that many of her belongings were gone and people were painting the apartment. Tijerina told plaintiff that her belongings had only been moved to the top of her bed. Plaintiff then called the police and filed a report because Tijerina was trespassing in her apartment and her belongings were missing, such as a 42-inch flat-screen TV, king-size bed, curtains, dresser, shoes, refrigerator, stove, microwave, and a glass top for the coffee table.
¶ 10 During the August incident, Puccini claimed that Tijerina came down the stairs and put his hands out to push him out of the property. In the process of the dispute, Puccini said he was forced up against the railing, injuring his hand. Puccini was trying to get into plaintiff‘s apartment because he thought that Tijerina was robbing it. Upon entering plaintiff‘s apartment, Puccini observed that some personal belongings were piled high on the bed, but he did not see many items such as the Ikea glass table, couch, carpets, chairs for the kitchen table, a large screen TV and stand, and the kids’ mattresses. He then waited on the street with plaintiff for the police to arrive while Tijerina told plaintiff to “keep [Puccini] away from me or I‘m going to kill him.”
¶ 11 Delgado testified as an adverse witness that he lived in the United States for 35 years, but spoke only “a little” English and could not write in English or Spanish. He worked at a hospital kitchen for over 20 years and had a relative cosign the loan to purchase the property, which was in foreclosure at the time of trial. Over the years he charged dozens of tenants cheap rent in cash and never had anyone sign a written lease. It was unclear from his testimony, however, how
¶ 12 Tijerina testified that he lived and owned the building a few doors down from the property and occasionally assisted Delgado in making repairs, acting as a friend and without compensation. He did paint and change the locks in plaintiff‘s apartment at Delgado‘s request, but never told plaintiff or Puccini that he was the new owner of the property. He was only offering Delgado assistance because the city had filed a few violations against him. In plaintiff‘s apartment there was a bed and mattress, no sheets, a stove, refrigerator, an old stained couch and carpet, a table with mismatched chairs and a dresser drawer with no personal items. It did not strike Tijerina as odd that items were left behind because renters always left property behind. Plaintiff, however, did ask about her belongings and told Tijerina that she would be back for them.
¶ 13 After closing arguments (which were held without a court reporter present), the trial court issued its ruling in open court and on the record. Plaintiff‘s counsel made a brief statement
¶ 14 This discussion then segued into the court‘s “ruling” on damages which we print verbatim from the transcript:
[Defense Counsel]: Your Honor, could you separate out what Mr. Tijerina is liable for?
The court: Mr. Tijerina is liable for conversion, and, basically, the rent would not have anything to do with it because I didn‘t find him to be a landlord. So he‘s not liable for the rent. He is liable for the property in the unit up to 5,000 and he would be liable for the medical bills. So that would be 5,000 plus the medical bills and then the punitive damages would be six times that amount, whatever that amount is.”
[Defense counsel]: You are finding Mr. Tijerina guilty for punitives as well?
The court: Well, I guess…well, let‘s see, I can only find him for the conversion. That‘s probably correct.
[Plaintiff‘s counsel]: Parasitic damage, they latch on to the underlying tort claim. So their finding that the tort itself was willful and wanton, I want to state that for the record to be clear.
The court: The evidence on that was actually, you know, it was…obviously, there was really no way to reconcile the testimony of Mr. Tijerina with the testimony of the two major witnesses for the plaintiff.
[Defense counsel]: The punitives are stemming from the conduct of Mr. Delgado as the slumlord.
The court: Right. As the slumlord. So I think here it would just be the actual damages. Misspoke. I had this down here that the punitive would be against Mr. Delgado, and the actual damages and the conversion would be Tijerina only. Tijerina would only be liable for…
[Plaintiff‘s counsel]: I think he‘d be liable for the $5,000.
The court: Plus the medical bills.
[Plaintiff‘s counsel]: As well as the punitive on the $5689.
The court: Yes, 5689, not for the rest of it, not for the rent because he wasn‘t a landlord, for the conversion of the property in the unit and the medical bills.
[Plaintiff‘s counsel]: So I can give the numbers to you now.
The court: Whatever they come out to.
[Plaintiff‘s counsel]: So if you add 5689, divided by 2 for Delgado and Tijerina, that would equal to each of them in compensatory damages $2,844.50 for each defendant. Then if you times that by six, that works out to $17,067 for each defendant as well as…defendant Tijerina will be a judgment against him of $17,067 plus attorney‘s fees and costs.
The court: Right.
[Plaintiff‘s counsel]: And then for defendant Delgado, it would be…
The court: You add 2550 to that.
[Plaintiff‘s counsel]: 2550 against defendant Delgado $32,367 plus attorney‘s fees and costs.
The court: That‘s correct.
¶ 15 Thereafter, defendants, represented by their trial counsel, filed a joint notice of appeal (No.1-15-1661) and plaintiff filed a notice of cross-appeal (No. 1-15-2684). She also filed a petition seeking $73,502.51 in attorney fees. Following a hearing, the trial court found Tijerina liable for $11,625.49 and Delgado liable for $65,877.77 in attorney fees. Plaintiff then filed a separate notice of appeal (consolidated with her cross-appeal, No. 1-15-2684), asking this court to find both defendants jointly liable for the full amount of attorney fees. In addition, Tijerina
¶ 16 ANALYSIS
¶ 17 On appeal, Tijerina contends that the trial court erred by finding him liable for conversion because he was not the property‘s landlord. When reviewing a challenge to the trial court‘s ruling after a bench trial, we are to affirm the trial court unless its judgment is against the manifest weight of the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001) (“[a] judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on the evidence“). A reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact especially regarding credibility determinations. Wal-Mart Stores, Inc. v. Human Rights Com‘n, 307 Ill. App. 3d 264, 267 (1999).
¶ 18 Conversion is the unauthorized deprivation of property from the person entitled to its possession. In re Rosin, 156 Ill. 2d 202, 206 (1993). To sustain a cause of action for conversion, the plaintiff must establish by a preponderance of the evidence: (1) the unauthorized and wrongful assumption of control, dominion, or ownership by defendant over the personal property of another; (2) the plaintiff‘s right in the property; (3) the plaintiff‘s absolute and unconditional right to immediate possession of the property; and (4) a demand for possession of the property. Sandy Creek Condominium Association v. Stolt and Egner, Inc., 267 Ill. App. 3d 291, 295 (1994).
¶ 19 Here, it is undisputed that plaintiff had a right to her property and a right to immediate possession of her property. Thus, we must determine whether plaintiff established by a preponderance of the evidence that Tijerina had dominion and wrongful control over plaintiff‘s
¶ 20 Tijerina next contends that the trial court erred in finding him liable for punitive damages. Punitive damages are not awarded as compensation but serve instead to punish the wrongdoer and to deter that party and others from committing similar acts of wrongdoing in the future. Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 1122, 1131 (2004). In reviewing a trial court‘s decision to award punitive damages, this court takes a three-step approach, considering: “(1) whether punitive damages are available for the particular cause of action, using a de novo standard; (2) whether, under a manifest weight of the evidence standard, the defendant or defendants acted fraudulently, maliciously or in a manner that warrants such damages; and (3) whether the trial court abused its discretion in imposing punitive damages.” Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342, 355 (2009). “Because of their penal nature, punitive
¶ 21 It is undisputed that in Illinois the tort of conversion may under proper circumstances support an award of punitive damages. Turner v. Firstar Bank, N.A., 363 Ill. App. 3d 1150, 1160 (2006). Therefore, we must determine whether the trial court‘s award of punitive damages on the conversion claim was against the manifest weight of the evidence. Punitive damages for the tort of conversion properly lie where the defendant acts willfully or with such gross negligence to indicate a wanton disregard of the rights of others. Id. The trier of fact may also consider “the character of the defendant‘s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.” Restatement (Second) of Torts § 908(2) (1979).
¶ 22 Based on the record, the award of punitive damages as it pertains to Tijerina is clearly against the manifest weight of the evidence. Any fair reading of the trial court‘s ruling on punitive damages reveals that it was inclined only to assess punitive damages against Delgado, who was colloquially referred to as a “simpleton” and a “slumlord” throughout the trial. In its ruling, the trial court specifically noted that punitive damages were appropriate because Delgado “really did act as a slumlord” and the court wanted to “discourage people from owning property, if that‘s the way they are going to rent it out.” After making a statement that Tijerina would be on the receiving end of a judgment for punitive damages, the trial court immediately retracted the statement, allowing that he had “misspoke[n],” and added that he had intended the “punitive would be against Mr. Delgado, and the actual damages and the conversion would be Tijerina only.” The record contains no evidence or argument of how Tijerina‘s conduct could have warranted punitive damages. See International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456, 493 (2006) citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001)
¶ 23 Tijerina further contends that the trial court abused its discretion by finding him liable for attorney fees. In general, Illinois courts follow the “American Rule,” which provides each party must bear its own attorney fees and costs, absent statutory authority or a contractual agreement. Country Mutal Insurance Co. v. Styck‘s Body Shop, Inc., 396 Ill. App. 3d 241, 251 (2009). Even when there is an exception to this rule, parties that do not prevail on the underlying claim are not entitled to attorney fees. See McGinley v. Madigan, 366 Ill. App. 3d 974, 992 (2006) (the reviewing court determined that plaintiffs were “not entitled to attorney fees” when they “did not prevail” on the underlying claim). Accordingly, it would be unreasonable to find Tijerina liable for plaintiff‘s attorney fees when we have stricken the compensatory and punitive damages.
¶ 24 Finally, we find that plaintiff has forfeited any contentions pertaining to her appeal (No. 1-15-2684). Plaintiff filed no separate appellate brief and does not address her joint liability contentions in her opening-response brief, which effectively served as her appellate brief and argument.
¶ 25 CONCLUSION
¶ 27 Reversed and orders vacated.