2017 IL App (2d) 160466 No. 2-16-0466 Opinion filed February 1 , 2017

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ VIOLETTA JAWORSKI, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff -Appellant, ) ) v. ) No. 15- CH -1411 ) DANUTA SKASSA , RICHARD FERRARI, ) ROBERT FERRARI, and PHILLIP FERRARI, ) ) Defendant s ) Honorable ) Paul M. Fullerton, (Danuta Skassa, Defendant- Appellee ). ) Judge, Presiding.

______________________________________________________________________________ JUSTICE SCHOSTOK delivered the j udgment of the court, with opinion. Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion. O PINION ¶ 1 Plaintiff, Violetta Jaworski, app eals from the dismissal of her claim to quiet title to a garage in her condominium complex. She contends that her claim should not have been dismissed on res judicata ground s, as the prior action, initiated by defendant Danuta Skassa (defendant) , did not result in a final judgment or decide th e issue of ownership of the garage

. Because defendant believes that plaintiff has filed this appeal for improper purposes, defendant asks this court to impose sanctions against plaintiff. For the reasons that follow, we affirm , but we deny defendant’s request to impose sanctions. ¶ 2 I. BACKGROUND2017 IL App (2d) 160466

- 2

- ¶ 3 Defendants Richard Ferrari, Robert Ferrari, and Phillip Ferrari developed the St. Charles condominiums in Bensenville, which complex is comprised of 24 condominiums and 25 garages. When the project was completed, Robert lived in unit 1H. Pursuant to the plat of survey and the declarations, Robert, as the owner of unit 1H, had use of garage s 1H and 1HA. ¶ 4 Thereafter, unit 1H was conveyed to Regina Sokolowski. However, plaintiff, who lived
in unit 2H, alleged that garage 1H was not conveyed to Sokolowski . On December 23, 2013, Sokolowski sold her property to defendant and her husband. On May 21, 2014, the Ferraris sold
garage 1H to plaintiff for $6,500. Approximately one year later, on May 7, 2015, defendant filed a forcible entry and detainer action against plaintiff , seeking possession of garage 1H. ¶ 5 At trial on the forcible entry and detainer action, plaintiff advised the court that “we have [a] dispute over garage space, to know who is the rightfu l owner of the garage space.” In response, although defendant initially advised the court that the nature of the claim was “possession only for a garage space,” she later indicated that “ownership is an issue.” ¶ 6 The trial court entered judgment in defendant’s favor. In doing so, the court noted that “what controls here legally is the plat of survey, which is incorporated into the deed.” The court noted that “[i]t was never changed, by [plaintiff’s] own admission, and that assigns garages designated by the letter to the condominium, also designated by that letter.” Accordingly, “[ defendant and her husband] are owners of Condominium H[, and] therefore, they are owners of both garages designated by letter H.” ¶ 7 Although plaintiff was advised of her right to appeal, she filed neither a posttrial motion nor a notice of appeal in the forcible entry and detainer case. Rather, within one month after the court granted defendant possession of the garage, plaintiff filed a complaint to , among other things, quiet title to the garage. Defendant moved to dismiss that case, arguing that res judicata2017 IL App (2d) 160466

- 3

- barred plaintiff’s cause of action. See 735 ILCS 5/2- 619(a)(4) (West 2014)

. The trial court granted the motion, and after the other counts in plaintiff’s complaint were dismissed, this timely appeal followed. 1 ¶ 8 II. ANALYSIS ¶ 9 At issue in this appeal is whether the dismissal of plaintiff’s action on res judicata grounds was proper. We are also asked to consider imposing sanctions against plaintiff for filing this appeal. We address each issue in turn. ¶ 10 The first issue we consider is whether the dismissal of plaintiff’s action was proper. A s noted, defendant moved to dismiss the action pursuant to section 2-619(a)(4) of the Cod e of Civil Procedure (735 ILCS 5/2- 619(a)(4) (West 2014)). A section 2 -619 (a)(4) motion to dismiss admits the legal sufficiency of a plaintiff’s allegations but asserts that re s judicata defeat s the claim pre sented. Winters v. Wangler , 386 Ill. App. 3d 788, 792 (2008). Res judicata precludes the relitigation of claims previously decided if “ (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.” Hudson v. City of Chicago , 228 Ill. 2d 462,

1 Plaintiff filed a four -count amended complaint. In count I, plaintiff sued defendant to quiet title to garage 1H. Counts II through IV sought relief from the Ferraris . The court dismissed count I with prejudice on January 25, 2016, and the remaining counts were dismissed on May 24, 2016, in an order in which the court asserted that it retained jurisdiction to enforce the settlement agreement between plaintiff and the Ferraris. Pl aintiff timely appealed on June 17, 2016. See Director of Insurance v. A & A Midwest Reb uilders, Inc. , 383 Ill. App. 3d 721, 725 (2008) (trial court’s retention of jurisdiction to enforce a settlement agreement does not divest appellate court of jurisdict ion to consider appeal in the case).2017 IL App (2d) 160466

- 4

- 467 (2008). We review de novo a dismissal pursuant to section 2

- 619(a)(4). Morris B. Chapman & Associates v. Kitzman , 193 Ill. 2d 560, 565 (2000). ¶ 11 Plaintiff argues that res judicata should not bar her quiet

- title action, because there was no final judgment entered in the forcible entry and detainer action and the causes of action are not the same . We disagree. ¶ 12 First, there was a final judgment entered in the forcible entry and detainer action. Although, as plaintiff points out, forcible entry an d detainer actions are summary proceedings to adjudicate a party’s right to possession (see Rosewood Corp. v. Fisher , 46 Ill . 2d 249, 255 (1970)), that does not mean that a judgment entered in a forcible entry and detainer action is not final (s ee Naperville South Commons, LLC v. Nguyen , 2013 IL App (3d) 120382, ¶ 14 (in appeal of final judgment entered in forcible entry and detainer c ase, court noted that “[a] final order or judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties to the litigation ”). ¶ 13 Second , there is an identity of cause of action , as the question of ownership was at issue in both cases. Although ownership need not be decided in a forcible entry and detainer action, it may be consider ed . S ee Rosewood , 46 Ill. 2d at 254

- 55 (matters germane to possession may be raise d in a forcible entry and detainer action); see also Rodriguez v. Owaynat , 137 Ill. App. 3d 1017, 1021 -22 (1985) ( ownership may be decided in a forcible entry and detainer action, as ownership can be ger mane to the issue of possession ) . This is es pecially true when a party’s claim t o possession is based on title. Wood v. Wood , 284 Ill. App. 3d 718, 726 (1996)

. Here, defendant’s claim to possession in the forcible entry and detainer case was based on the fact that she claimed title to the garage. Accordi ngly, it was proper for the court in the forcible entry and detainer action to consider who had title to the garage. Id. The court in the forcible entry and2017 IL App (2d) 160466

- 5

- detainer case concluded that defendant had title to the garage. Thus, because the issue of

owner ship was decided in the forcible entry and detainer action, it cannot be relitigated in this quiet- title case . See Hudson , 228 Ill. 2d at 467 ( res judicata bars issues actually decided in first action). The cases on which plaintiff relies are inapposite, as in those cases the issue of ownership was never resolved in the f irst action. S ee, e.g. , Gurga v. Roth , 20 11 IL App (2d)
100444 , ¶¶ 13, 20 . Given that all of the elements of res judicata are satisfie d, we must conclude that plaintiff’s claim to quiet title was properly dismissed on the basis of res judicata

. ¶ 14 Citing Continental Illinois National Bank & Trust Co. of Chicago v. Wilson , 103 Ill. App. 3d 357 (1982), plaintiff challenge s a trial court’s abi lity to resolve questions of ownership in a for cible entry and detainer action. In Wilson , the court considered whether a serious title dispute could be resolved in a forcible entry and detainer action when title m ight have passed through, among other ways, adverse possession or easement by prescription. Id. at 36 0- 61. Plaintiff’s reliance on Wilson is misplaced, as the issue raised here is not whether who has title to the garage may be resolved in a forcible entry and detainer action, but rather whether a ruling on title in a forcible entry and detainer action bars a subsequent adjudication of title. If plaintiff wished to challenge the court’s ability in the forcible entry and detainer action to resolve the issue of title, she should have raised those concerns in that case. She simply cannot challenge the court’s conclusion there in this case seeking quiet title. ¶ 15 P laintiff also argues that a determination regarding title to property rendered in a forcible entry and detainer action should not bar considerations of title in an action to quiet title, because if it does, “a litigant who knowingly (or unknowingly) holds title to a piece of property via a fraudulently recorded deed or other instrument can gain title and possession to a piece of property from the rightful owner through the expedited proceedings for forcible entry and2017 IL App (2d) 160466

- 6

- detainer actions.” Not only is this contention forfeited , as plaintiff has not cited any authority for it (see Chicago Title & Trust Co. v. Weiss , 238 Ill. App. 3d 921, 927 (1992) ), but nothing in the record before us even hints that defendant fraudulently obtained title to garage 1H. 2 ¶ 16 Given our conclusion that defendant’s motion to dismiss based on res judicata was properly granted, we need not decide defendant’s claim on ap peal that issue preclusion also bars plaintiff’s action to quiet title to the garage. ¶ 17 The next issue we address is whether this court should impose sanctions against plaintiff for bringing this appeal. Defendant asks this court to impose sanctions under I llinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994). Plaintiff claims that she should not be sanctioned, as she has not denied defendant possession of the garage, she too wishes to resolve this claim expeditiously, and some case law supports her contentions on appeal. ¶ 18 Rule 375(b) allows us to impose an appropriate sanction if the appeal is frivolous, not taken in good faith, or taken for an improper purpose, such as to harass or cause unnecessary delay or needless increase in litigation costs. Id. The purpose of Rule 375(b) is to condemn and punish the abusive conduct of litigants and their attorneys. Gabuka v. Kurtz , 2015 IL App (2d) 140252, ¶ 26. The i mposition of sanctions under Rule 375(b) is discretionary. Id. ¶ 19 Here, although plaintiff’s appeal proved unsuccessful, we cannot conclude that it is sanctionable. That is, we cannot say that the issues raised are devoid of arguable merit, that the appeal was brought in bad faith, or that plaintiff sought to harass, delay, or unnecessarily run up

2 In so noting, we observe that, because res judicata is an equitable doctrine, it need not be applied where it would work an injustice. Yorulmazoglu v. Lake Forest Hospital , 359 Ill. App. 3d 554, 563 (2005). Here, there is no such injustice.2017 IL App (2d) 160466

- 7

- litigation costs by initiating this appeal. Therefore, we do not impose any sanctions under Rule 375(b). ¶ 20 III. CONCLUSION ¶ 21 For the above

- stated reasons, the judg me nt of the circuit court of Du Page County is affirmed , an d defendant’s request for sanctions is denied

. ¶ 22 Affirmed.