Faison v. RTFX, Inc. , 2014 IL App (1st) 121893 ( 2014 )

Illinois Official Reports
Appellate Court
Faison v. RTFX, Inc., 2014 IL App (1st) 121893Appellate Court TOCCARA FAISON, on Behalf of Herself and Others Similarly
Caption Situated, Plaintiff-Appellant, v. RTFX, INC., an Illinois Corporation,
Defendant-Appellee (North Star Trust Company, as Trustee Under
Trust No. 13189, Defendant).
District & No. First District, Fifth Division
Docket No. 1-12-1893
Rule 23 Order filed November 15, 2013
Rule 23 Order
withdrawn January 15, 2014
Opinion filed February 7, 2014
Held In a class action alleging violations of the Chicago Residential
(Note: This syllabus Landlord Tenant Ordinance, the appellate court affirmed the dismissal
constitutes no part of the of the counts alleging that defendant failed to tender a summary of the
opinion of the court but ordinance when plaintiff orally renewed her lease after the initial
has been prepared by the one-year term expired, that defendant failed to tender notice of
Reporter of Decisions building code violations and pending code enforcement litigation, that
for the convenience of defendant failed to correct defective, unsafe, and uninhabitable
the reader.) conditions, and that plaintiffs suffered damages as a result of those
conditions, but the dismissal of the counts alleging the failure to pay
interest on plaintiff’s individual security deposit, to tender a receipt for
her security deposit payments, and to disclose the name and address of
the financial institution where her security deposit was held was
reversed and remanded.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-11658; the
Review Hon. Franklin Ulyses Valderrama, Judge, presiding.
Judgment Affirmed in part and reversed and remanded in part.
Counsel on Berton N. Ring, P.C., of Chicago (Berton N. Ring and Stuart M.
Appeal Clarke, of counsel), for appellant.
Chuhak & Tecson, P.C., of Chicago (Cary S. Fleischer, of counsel),
for appellee.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Justices McBride and Taylor concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Toccara Faison appeals the circuit court’s decision to grant defendant RTFX,
Inc.’s motion to dismiss pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)) plaintiff’s class action complaint
in which she alleged violations of several provisions of the Chicago Residential Landlord
Tenant Ordinance (RLTO) (Chicago Municipal Code § 5-12-010 et seq.), and breach of the
implied warranty of habitability.
¶2 I. BACKGROUND
¶3 Plaintiff initially filed a six-count class action complaint on March 28, 2011, against
RTFX and North Star Trust Company, as trustee under trust No. 13189, alleging violations of
the RLTO and breach of the warranty of habitability under Illinois common law arising out
of her tenancy at 2420 North Kedzie Avenue, unit B3, in the City of Chicago. She also
moved for class certification. On June 7, 2011, the circuit court entered an order dismissing
count III and dismissing North Star Trust Company as a party. 1
¶4 Plaintiff thereafter moved for leave to file an amended class action complaint, which the
circuit court granted. In addition, consistent with the claims in her amended complaint,
plaintiff filed an amended motion for class certification.
1
North Star Trust is not a party to this appeal.
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¶5 In the amended five-count complaint, plaintiff alleged that she entered into a one-year
lease with defendant on April 4, 2007, in which the lease term ran from April 1, 2007,
through March 31, 2008, the monthly rent was $590, and she provided a $590 security
deposit. Plaintiff indicated that she paid the security deposit in installment payments,
tendering the full amount in approximately June of 2007, but defendant did not provide her
with receipts for her payments. She also paid a $40 key deposit on March 29, 2007, and again
did not receive a receipt. Plaintiff alleged that after the one-year lease expired, she continued
her tenancy on a month-to-month basis by oral agreement. Further, defendant increased her
rent by $10 on May 1, 2008, and by $10 again on May 1, 2009. She also alleged that she paid
an additional $10 in cash each time the rent was increased as part of her security deposit, but
she was not given a receipt for those payments.
¶6 Plaintiff claimed that throughout her tenancy, the property contained several unsafe,
unsanitary, and uninhabitable conditions, which defendant failed to remedy. Plaintiff alleged
the property was cited for 4 code violations on May 4, 2007, and for 32 code violations over
the course of her tenancy, and there were two building code administrative proceedings
against the property in August and December 2009. Plaintiff alleged that defendant failed to
provide her with any notice of these code violations or proceedings, and her attorney
submitted a demand for the violations on February 28, 2011, but defendant replied that there
were no violations. Plaintiff also alleged that defendant paid her interest on her security
deposit in the amount of $1 on January 2, 2010, and $1 on January 29, 2010.
¶7 In count I, plaintiff claimed that defendant violated section 5-12-080 of the RLTO
(Chicago Municipal Code § 5-12-080 (amended Mar. 31, 2004)) in three ways. First,
defendant failed to pay interest on her security deposit at the end of the year-long lease on
March 31, 2008, or again on March 31, 2009, in violation of subsection 5-12-080(c) of the
RLTO. Second, plaintiff asserted that defendant failed to tender a receipt for her security
deposit payments, in violation of subsection 5-12-080(b). Third, plaintiff alleged that
defendant never disclosed the name and address of the financial institution where her security
deposit was held, in violation of subsection 5-12-080(a)(3) (Chicago Municipal Code
§ 5-12-080(a)(3) (amended July 28, 2010)). Plaintiff argued that the remedy for violating
section 5-12-080 was monetary damages in twice the amount of the security deposit. She also
alleged that other tenants suffered the same wrongs.
¶8 In count II, plaintiff alleged that defendant never tendered a summary of the RLTO when,
as plaintiff alleged, she and defendant orally renewed the lease after the initial one-year term
expired, in violation of section 5-12-170 (Chicago Municipal Code § 5-12-170 (amended
Oct. 1, 2003)), and the remedy for this violation was a $100 penalty. 2
¶9 In count III, plaintiff alleged that defendant violated subsection 5-12-100(a) of the RLTO
(Chicago Municipal Code § 5-12-100(a) (amended Nov. 6, 1991)) by failing to provide
2
We note that, on appeal, plaintiff does not challenge the circuit court’s grant of defendant’s motion
to dismiss as to count II. This issue is therefore waived and we do not address it on appeal. In re
Parentage of Janssen, 292 Ill. App. 3d 219, 221 (1997) (a party waives an issue if he or she fails to raise
it on appeal).
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notice to her and similarly situated tenants of building code violations or pending code
enforcement litigation. Plaintiff alleged that defendant did not provide notice of any code
violations occurring within the 12-month period preceding the start of her lease, April 1,
2006, through March 31, 2008. Plaintiff asserted that the remedy was one month’s rent or
actual damages.
¶ 10 In count IV, plaintiff alleged that defendant violated sections 5-12-070 and 5-12-110
(Chicago Municipal Code §§ 5-12-070, 5-12-110 (eff. Nov. 6, 1991)) by failing to correct
defective, unsafe, unsanitary, and uninhabitable conditions at the apartment building during
her tenancy, including noninsulated windows, no window screens, no smoke or carbon
monoxide detectors, moldy wood, leaking pipes, moldy baseboards, infestation of insects and
rodents, cracks in the walls, peeling plaster, faulty electric wiring, a rusted bathroom tub,
faulty or broken appliances, and peeling floor tiles. Plaintiff asserted that she and the class
members were entitled to damages equal to the difference in the value of the property had it
conformed to the RLTO and the value of the nonconforming property.
¶ 11 In count V, plaintiff alleged that defendant’s failure to correct the uninhabitable
conditions of the property also violated the warranty of habitability implied under Illinois
law, and as a result, plaintiff and other class members suffered damages equal to the
difference in the market value of their units in the condition delivered and the value of the
units had they been delivered as warranted and without defects.
¶ 12 As part of her class action claims, plaintiff alleged the existence of four different classes.
Class A consisted of all tenants within the previous two years who provided security deposits
but were not paid interest or given receipts. Class B consisted of all tenants who were not
given a summary of the RLTO upon entering into or renewing their lease agreement. Class C
consisted of all tenants who were not provided notice of code violations or proceedings.
Class D consisted of all tenants subjected to habitability violations. Plaintiff alleged that the
class number exceeded 52 people, that there were common questions of fact and law which
predominated over any individual issues, that plaintiff could fairly and adequately represent
the classes’ interests, that her counsel was experienced in such matters, and that the identities
of the members could be easily determined.
¶ 13 In support of her allegations, plaintiff attached to her amended complaint (1) a copy of
her lease, (2) a February 28, 2011, letter from her attorney to Rich Sasak, an officer of RTFX
and a manager of the building, and (3) the response letter from Sasak, dated March 16,
2011. 3
3
In the February 28, 2011, letter from plaintiff’s attorney, the attorney requested disclosure of all
building code violations, code enforcement proceedings, and the names and addresses of all owners and
managers of the building. In the response letter from Sasak, he disclosed the names and addresses of the
officers and managers of RTFX, but asserted that there were no code violations or enforcement
proceedings against the property. Sasak also related that plaintiff had falsely accused employees of
stealing her packages and mail, the building’s cleaning person of physically and verbally assaulting her,
an individual of entering her apartment and having his dog urinate on her carpet, an individual of
spitting on her door, and Sasak of withholding interest on her security deposit. Sasak indicated that
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¶ 14 Defendant subsequently moved to dismiss plaintiff’s amended complaint pursuant to
section 2-619.1 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1
(West 2010)). With respect to count I, defendant argued that plaintiff’s claims were barred by
the applicable two-year statute of limitations because the alleged failure to tender receipts for
security deposit payments or pay interest occurred in 2007 and 2008, and any claims
regarding conduct occurring before March 28, 2009, were barred. 4 Defendant argued that
plaintiff’s claim that defendant failed to disclose the name and address of the bank where
security deposits were held should be dismissed because the section plaintiff relied on,
section 5-12-080(a)(3), was not in effect until after she signed her rental agreement and
presented her security deposits. Defendant further asserted that it paid interest in January
2010 and plaintiff never gave written notice that the amount was deficient pursuant to
subsections 5-12-080(c) and (f) of the RLTO. Defendant argued that plaintiff could not
represent Class A because she had no individual claim.
¶ 15 With respect to count III, defendant argued that the remedy plaintiff requested under
subsection 5-12-100(b) did not apply to her subsection (a) claim. Defendant argued that, even
if subsection (b) was applicable, plaintiff never provided the required notice specifying the
noncompliance; the 2011 letter from her attorney did not constitute a notice as it did not
specify a time period or indicate an intent to terminate the lease, and plaintiff never quit the
premises. Further, subsection 5-12-100(a) only required notice of code violations within the
12 months before a tenant enters into or renews a lease, which in plaintiff’s case would mean
from April 4, 2006, to April 4, 2007, but plaintiff cited no violations from that time period.
She only cited violations or proceedings on May 4, 2007, and August and December 2009,
but she was not entitled to notice of any of these occurrences. Defendant argued that her
individual claim and the class claim under count III should be dismissed.
¶ 16 Defendant argued that plaintiff’s allegations in counts IV and V were too narrow and
particular to support a class action. Defendant also asserted that, pursuant to the terms of the
written lease agreement, plaintiff inspected the apartment and approved of its condition
before moving in, and she failed to allege that she allowed defendant access to make any
repairs. The letter from Sasak attached to her amended complaint indicated that she refused
to allow defendant access to her apartment to spray for insects. After her lease expired, she
remained in the apartment for four years on a month-to-month basis, and agreed to two
increases in rent, and could not now contend that the condition of the apartment was deficient
and not worth the rent she paid. She did not allege that the condition of the apartment
deteriorated at some point during those four years. Defendant argued that these counts should
investigation of these claims showed that they were baseless, that RTFX would not enter plaintiff’s
apartment unless she was present because of her concerns about security, and that he gave her the only
keys to her mailbox to alleviate her concerns about stolen mail. Sasak asserted that he overpaid her the
interest due. Sasak also noted that plaintiff posted “offensive signs” on her door regarding tenants’
rights.
4
See 735 ILCS 5/13-202 (West 2008); Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 14 (2009).
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be stricken and her Class D claims could not continue as the allegations were not broad
enough to raise a common question of fact or law, they were vague and conclusory,
depended on the condition of individual apartments, and plaintiff did not allege that these
conditions were consistent or present in other units.
¶ 17 Plaintiff opposed defendant’s motion, arguing that even if she could not individually
recover under section 5-12-080(a)(3), she could still be a class representative. Regarding her
claims involving section 5-12-080(b), plaintiff asserted that she tendered an additional $10
on May 1, 2009, which fell within the two-year statute of limitations. With respect to section
5-12-080(c), plaintiff argued that defendant failed to pay the required interest for the
12-month periods due in March of 2008 and 2009, and that each failure was a separate
violation which tolled the limitations period. Plaintiff argued that she timely pursued her
claims by bringing suit on March 28, 2011, because defendant failed to pay the interest
within 30 days after March 2009. Plaintiff asserted that the lease agreement provided that the
lease was renewed for one year (until March 31, 2009) after the initial one-year term ended
on March 31, 2008, and the month-to-month tenancy did not commence until April 1, 2009.
¶ 18 With respect to count III, plaintiff maintained that defendant should have disclosed the
May 2007 building code violation when plaintiff renewed the rental agreement in March
2008, and that no notice was required, but the letter from her attorney nevertheless
constituted notice.
¶ 19 Regarding counts IV and V, plaintiff argued that her allegations were sufficient to state a
cause of action and to support a class action because she pled numerous uninhabitable
conditions and code violations.
¶ 20 In reply, defendant reiterated that any claim before March 28, 2009, was barred by the
statute of limitations, including her claim that defendant failed to provide a receipt for her
security deposit in June 2007 and May 2008 and for a key deposit in March 2007, and her
claim that defendant failed to pay interest on her security deposit on March 31, 2008.
Defendant maintained that under the terms of the lease agreement, the lease was never
renewed. Defendant disagreed that the alleged failure to pay interest on her security deposit
in 2008 and 2009 tolled the statute of limitations. Defendant reiterated that plaintiff failed to
give the required notice under section 5-12-100 of the RLTO in count III. It further argued
that counts IV and V and the class claims should be dismissed pursuant to section 2-619 of
the Code because plaintiff’s situation was unique as she was the only tenant who refused to
allow defendant access to her unit to spray for insects and inspect for repairs.
¶ 21 On April 27, 2012, the circuit court ruled from the bench regarding defendant’s motion to
dismiss. The court dismissed counts I, II, and III, with prejudice, pursuant to section 2-619 of
the Code, and dismissed counts IV and V, without prejudice, pursuant to section 2-615 of the
Code.
¶ 22 Regarding count I, the court agreed with defendant’s position that plaintiff had no
cognizable claim that defendant failed to follow subsection 5-12-080(a)(3) regarding
disclosure of the name and address of the bank where the security deposits were held because
this section was not effective until August 27, 2010, three years after plaintiff signed the
rental agreement. The court also agreed with defendant’s argument as to count III that
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plaintiff alleged a violation of subsection 5-12-100(a), but sought the wrong remedy in
subsection 5-12-100(b), and subsection 5-12-100(a) did not provide for a civil remedy.
¶ 23 With respect to counts IV and V, the court again agreed with defendants’ arguments that,
according to the terms of the lease, plaintiff “inspected the apartment and approved its
condition prior to moving into the unit,” that plaintiff failed to allege that she gave defendant
access to her unit at some point to make repairs, and that the lease was never renewed. The
court further indicated that because plaintiff remained in the unit for more than four years
and twice agreed to rent increases, she could not seek damages at this point for overpayment
based on a deficient condition. Regarding plaintiff’s class claims, the court also agreed with
defendant that plaintiff’s class claims were too narrow, individual, and fact-specific. The
court gave plaintiff 28 days to amend counts IV and V.
¶ 24 The circuit court also entered a written order dismissing counts I, II, and III with
prejudice pursuant to section 2-619 of the Code, dismissing counts IV and V without
prejudice pursuant to section 2-615 of the Code, and granting plaintiff leave to amend counts
IV and V by May 25, 2012. Plaintiff never amended her complaint. On June 14, 2012, the
court entered an order in which it held, “[p]laintiff having elected to stand on her pleadings,
this Honorable Court dismisses the remainder of Plaintiff’s case with prejudice.” Plaintiff
filed a notice of appeal on June 28, 2012, from the April 27, 2012, order and the June 14,
2012, order.
¶ 25 II. ANALYSIS
¶ 26 Pursuant to section 2-619.1 of the Code, a party may file a combined motion to dismiss
involving both sections 2-615 and 2-619. Dratewska-Zator v. Rutherford, 2013 IL App (1st)
122699, ¶ 13. “A section 2-615 motion to dismiss challenges the legal sufficiency of the
nonmovant’s pleadings whereas a section 2-619 motion to dismiss admits the legal
sufficiency of the nonmovant’s pleadings, but asserts certain defects or defenses.” Id. “Under
either section of the Code, our standard of review is de novo.” Kean v. Wal-Mart Stores, Inc.,
235 Ill. 2d 351, 361 (2009). “[T]his court reviews the judgment, not the reasoning, of the trial
court, and we may affirm on any grounds in the record, regardless of whether the trial court
relied on those grounds or whether the trial court’s reasoning was correct.” Coghlan v. Beck,
2013 IL App (1st) 120891, ¶ 24.
¶ 27 With respect to a motion under section 2-615 of the Code, the court examines “whether
the allegations of the complaint, when construed in the light most favorable to the plaintiff,
and taking all well-pleaded facts and all reasonable inferences which may be drawn from
those facts as true, are sufficient to establish a cause of action upon which relief may be
granted.” Dratewska-Zator, 2013 IL App (1st) 122699, ¶ 14. Any exhibits attached to the
complaint “are considered part of the pleading for every purpose.” Id. “Mere conclusions of
law or facts unsupported by specific factual allegations in a complaint are insufficient to
withstand a section 2-615 motion to dismiss.” Ranjha v. BJBP Properties, Inc., 2013 IL App
(1st) 122155, ¶ 9.
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¶ 28 In a section 2-619 motion to dismiss, the moving party “admits the legal sufficiency of
the complaint, but asserts an affirmative defense or other matter to defeat the plaintiff’s
claim.” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The court views the
pleadings and any supporting documentary evidence “ ‘in the light most favorable to the
nonmoving party.’ ” Id. at 367-68 (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179,
189 (1997)).
¶ 29 In addition, the interpretation of municipal ordinances presents a question of law, which
we review de novo on appeal. Ries v. City of Chicago, 242 Ill. 2d 205, 216 (2011). “Municipal
ordinances are interpreted using the same general rules of statutory interpretation.” Landis v.
Marc Realty, L.L.C., 235 Ill. 2d 1, 7 (2009).
“The fundamental rule of statutory construction is to ascertain and give effect to
the intent of the legislature. [Citation.] The best indicator of the legislature’s intent is
the language in the statute, which must be accorded its plain and ordinary meaning.
[Citation.] Where the language in the statute is clear and unambiguous, this court will
apply the statute as written without resort to extrinsic aids of statutory construction.
[Citation.]” Landis, 235 Ill. 2d at 6-7.
¶ 30 A statute must be viewed as a whole, and “words and phrases should not be construed in
isolation, but should be interpreted in light of other relevant provisions of the statute.”
Crittenden v. Cook County Comm’n on Human Rights, 2012 IL App (1st) 112437, ¶ 81.
However, if a statute is considered ambiguous, i.e., it is susceptible to more than one
reasonable interpretation, we may resort to extrinsic aids of statutory construction. Ranjha,
2013 IL App (1st) 122155, ¶ 10.
¶ 31 This case also involves examination of a written lease agreement, and our goal in
analyzing the terms of the lease is to give effect to the intent of the parties, which must be
ascertained from the lease alone where its language is unambiguous. Nationwide Mutual Fire
Insurance Co. v. T&N Master Builder & Renovators, 2011 IL App (2d) 101143, ¶ 16. We
must consider a lease as a whole, construing its provisions so that no part is rendered
meaningless. Id.¶ 32 A. Dismissal of Count I
¶ 33 1. Subsection 5-12-080(a)(3) of the RLTO
¶ 34 On appeal, plaintiff argues that the circuit court erred in dismissing her claim that
defendant violated subsection 5-12-080(a)(3) by failing to disclose the name and address of
the financial institution where her security deposit was being held. As defendant argued, and
as the trial court found, this requirement mandating disclosure of the financial institution
where a security deposit is held was added by amendment in 2010. Prior to this amendment
and at the time plaintiff entered into the lease agreement in 2007, section 5-12-080(a)
provided as follows:
“A landlord shall hold all security deposits received by him in a federally insured
interest-bearing account in a bank, savings and loan association or other financial
institution located in the State of Illinois. A security deposit and interest due thereon
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shall continue to be the property of the tenant making such deposit, shall not be
commingled with the assets of the landlord, and shall not be subject to the claims of
any creditor of the landlord or of the landlord’s successors in interest, including a
foreclosing mortgagee or trustee in bankruptcy.” Chicago Municipal Code
§ 5-12-080(a) (amended Mar. 31, 2004).
¶ 35 As subsequently amended, subsection (a)(3) now provides in relevant part:
“The name and address of the financial institution where the security deposit will be
deposited shall be clearly and conspicuously disclosed in the written rental agreement
signed by the tenant. If no written rental agreement is provided, the landlord shall,
within 14 days of receipt of the security deposit, notify the tenant in writing of the
name and address of the financial institution where the security deposit was
deposited.” Chicago Municipal Code § 5-12-080(a)(3) (amended July 28, 2010).
¶ 36 As such, the circuit court determined that defendant did not violate this section, as
plaintiff signed the lease agreement prior to the amendment. Plaintiff relies on Meyer v.
Cohen, 260 Ill. App. 3d 351 (1993), in arguing that this court should not apply different
standards under the RLTO to some tenants and not others based on the fortuity of when they
executed their respective leases.
¶ 37 In Meyer, the defendant argued that only four of the seven units in her complex were
occupied at the time the plaintiff signed the lease and these unoccupied units did not
constitute “dwelling units” as defined by the RLTO; thus, her complex contained “six units
or less” and fell within an exception to the RLTO. Meyer, 260 Ill. App. 3d at 355-56. The
defendant argued that the RLTO provision requiring landlords to attach a copy of the RLTO
to the lease did not apply to her apartment complex. Id. at 354-55. The court disagreed with
the defendant and concluded that the applicability of the RLTO did not depend on how many
units happened to be occupied or how many leases were in effect at the time a particular
lease was signed. Id. at 356. The court reasoned that the defendant’s interpretation
contradicted the purpose of the RLTO because it
“would lead to the anomalous result that a landlord would be subject to the ordinance
with respect to some of his current tenants, but not others, in the same building,
depending on the number of units occupied when a particular lease was signed. The
city council could not have intended that tenants in the same building be afforded
different rights and responsibilities under the law depending on the temporal fortuity
of entering into their leases; we find such a ‘last in time, first in right,’ type of scheme
to be completely incongruous with, and in derogation of, the express purpose of the
ordinance.” Id. at 356-57.
¶ 38 We find that Meyer does not control our decision in this case. In contrast to the current
circumstances, Meyer did not involve an intervening change in the law. Defendant is not
contending that a certain provision of the RLTO does not apply to its apartment complex
based on the fortuity of how many units happened to be occupied at the time plaintiff signed
her lease. Rather, defendant argues that the 2010 amendment adding section 5-12-080(a)(3)
should not be applied here because it did not exist at the time that plaintiff signed the lease in
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2007. “The general rule in this State is that absent express language to the contrary, an
amendatory act is to be construed prospectively.” Meyer, 260 Ill. App. 3d at 363.
¶ 39 As noted, the lease agreement was entered into on April 4, 2007, with the lease term to
begin on April 1, 2007. “The accrual of a cause of action occurs when facts exist that
authorize the bringing of the action.” Namur v. The Habitat Co., 294 Ill. App. 3d 1007, 1013
(1998) (finding that the plaintiffs’ claim for commingling the security deposit accrued when
it was deposited and their claim for failing to attach a summary of the RLTO accrued when
the lease was offered to the plaintiffs). Thus, plaintiff’s cause of action, if any, would have
accrued when she initially provided the security deposit in 2007. However, the ordinance
upon which she relies to state a violation was not enacted until July 28, 2010, and did not
become effective until 30 days later on August 27, 2010. Accordingly, the trial court
correctly determined that plaintiff could not state a claim and properly granted defendant’s
motion to dismiss pursuant to section 2-619 of the Code.
¶ 40 2. Subsection 5-12-080(b) of the RLTO
¶ 41 On appeal, plaintiff asserts that defendant demanded, and she provided, an additional $10
in cash toward her security deposit on May 1, 2009, but defendant failed to give her a receipt,
and that this claim fell within the two-year statute of limitations.5
¶ 42 Initially, we note that in dismissing count I as a whole, the circuit court only referred to
defendant’s argument regarding subsection 5-12-080(a)(3), without addressing plaintiff’s
claims under subsections 5-12-080(b) and (c). In its written order, the court indicated that it
dismissed count I with prejudice pursuant to section 2-619 of the Code, without specifically
referring to any particular subsection of 5-12-080 of the RLTO.
¶ 43 Further, we also note that in the circuit court, defendant argued that any of plaintiff’s
claims which accrued before March 28, 2009 (i.e., two years before she filed her complaint
on March 28, 2011), were barred by the statute of limitations. This encompassed the alleged
failure to tender receipts for the initial $590 security deposit in 2007, the $40 key deposit in
2007, and the $10 payment toward her security deposit on May 1, 2008, and the failure to
pay interest on her security deposit on March 31, 2008. The applicable statute of limitations
on claims such as plaintiff’s, brought under subsection 5-12-080 of the RLTO, is two years.
Namur, 294 Ill. App. 3d at 1013. See 735 ILCS 5/13-202 (West 2008). This two-year time
frame does not, however, encompass plaintiff’s claims occurring after March 28, 2009.
Because plaintiff brought suit on March 28, 2011, her claim regarding the failure to provide a
receipt for the additional $10 she contributed toward her security deposit on May 1, 2009, or
the failure to pay interest on March 31, 2009, would not be barred by the applicable two-year
5
We note that, in plaintiff’s opening brief, it appears she mistakenly refers to count III instead of
count I in her argument.
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statute of limitations. The statute of limitations on these claims would have run on May 1,
2011, and March 31, 2011, respectively. 6
¶ 44 Turning to subsection 5-12-080(b) of the RLTO, it provided at the time plaintiff entered
into the initial lease:
“(b) Any landlord or landlord’s agent who receives a security deposit from a
tenant or prospective tenant shall give said tenant or prospective tenant at the time of
receiving such security deposit a receipt indicating the amount of such security
deposit, the name of the person receiving it and, in the case of the agent, the name of
the landlord for whom such security deposit is received, the date on which it is
received, and a description of the dwelling unit. The receipt shall be signed by the
person receiving the security deposit. Failure to comply with this subsection shall
entitle the tenant to immediate return of security deposit.” Chicago Municipal Code
§ 5-12-080(b) (amended Mar. 31, 2004). 7
¶ 45 Plaintiff argues that, because defendant failed to provide her with a receipt for the $10
additional security deposit that she provided on May 1, 2009, defendant violated subsection
(b) and she is therefore entitled to twice the amount of the security deposit pursuant to
section 5-12-080(f). Prior to being amended in 2010, subsection (f), which relates to
remedies, provided:
“(f) If the landlord or landlord’s agent fails to comply with any provision of
Section 5-12-080(a)–(e), the tenant shall be awarded damages in an amount equal to
two times the security deposit plus interest at a rate determined in accordance with
Section 5-12-081. This subsection does not preclude the tenant from recovering other
damages to which he may be entitled under this chapter.” Chicago Municipal Code
§ 5-12-080(f) (amended Mar. 31, 2004).
¶ 46 On appeal, defendant argues that the parties’ written lease constituted a receipt under
subsection 5-12-080(b) because the lease indicated that plaintiff deposited a security deposit
with the landlord and the lease contained the name of the landlord and a description of her
unit. Plaintiff counters that defendant waived this argument by failing to raise it in the circuit
6
We note that plaintiff does not present any argument on appeal concerning defendant’s alleged
failure to provide a receipt for her provision of the initial security deposit or “key deposit” in 2007, or
for the additional $10 she alleged she gave defendant in 2008 toward her security deposit, or the alleged
failure to pay interest in 2008. A party waives an issue if he or she fails to raise it on appeal. In re
Parentage of Janssen, 292 Ill. App. 3d 219, 221 (1997). As discussed, these particular claims also were
clearly barred by the statute of limitations because they accrued more than two years before plaintiff
filed her March 28, 2011, lawsuit. Namur, 294 Ill. App. 3d at 1013. As such, the only issue we address
is the payment of $10 on May 1, 2009, toward her security deposit, and the failure to pay interest on
March 31, 2009. The payment of interest issue will be discussed further in the next section.
7
Although subsection (b) was amended in 2010, the amendment is not relevant to any issue on
appeal.
- 11 -
court and disagrees that the lease could constitute a receipt because it was not given to her at
the time she paid the $10 in 2009 and did not contain the required information.
¶ 47 Defendant did not raise the argument that the lease constituted a receipt in its motion to
dismiss or in its reply to plaintiff’s response to its motion to dismiss. In general, a party may
not raise an issue for the first time on appeal. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.
2d 278, 306 (2000). “Employing the waiver rule against an appellee is particularly apt ‘if the
opposing party could have introduced evidence to contest or refute the assertions made on
appeal, had he an opportunity to do so in the trial court’ [citation].” Evans v. United Bank of
Illinois, N.A., 226 Ill. App. 3d 526, 531 (1992) (finding that the defendant waived a defense
that she argued for the first time on appeal in support of affirming the circuit court’s decision
granting her motion for summary disposition, when the record contained no evidence
regarding the defense and the plaintiff would have been prejudiced if the court were to
consider the argument without the chance to develop evidence in the trial court (quoting In re
Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989))).
¶ 48 On the other hand, this court has also held that “[t]he rule that a defense not raised in the
trial court is regarded as waived and may not be raised for the first time in a reviewing court
is a rule only insofar as an appellant is concerned; an appellee may urge any point in support
of judgment on appeal, so long as a factual basis for such point was before the trial court.”
Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093, 1099 (1989) (affirming the
circuit court’s decision to grant summary judgment in favor of the defendants based on a
defense that the defendants argued for the first time on appeal).
¶ 49 Here, the factual basis underlying defendant’s argument was before the court as the lease
was an exhibit to plaintiff’s amended complaint. The lease indicated that plaintiff provided
$590 for the security deposit, it identified the specific apartment, it contained the name of the
lessor (RTFX), and was signed by an agent of RTFX. Further, in paragraph five of the
“LEASE AGREEMENT AND COVENANTS” section, it provided that “Tenant has
deposited with Lessor the Security Deposit in the amount set forth above ***.” Additionally,
in paragraph 25, entitled “RECEIPT OF REQUIRED DOCUMENTS,” it provided: “By
execution of this Lease, Tenant confirms and acknowledges that Tenant has received the
following documents from Lessor: A. Summaries of the Chicago Residential Landlord and
Tenant Ordinance and Security Deposits; and B. A receipt for the Security Deposit, if any, as
required by said Ordinance.”
¶ 50 However, regardless of whether defendant waived its argument regarding the receipt, we
would nonetheless conclude that the lease agreement signed in 2007 did not constitute a
“receipt” under subsection 5-12-080(b) for purposes of the additional contribution of $10
toward the security deposit on May 1, 2009. Although the lease indicated the
landlord/recipient information and the dwelling unit and it was signed by the person
receiving the security deposit, it was lacking in other respects. The written lease was not
given to plaintiff “at the time of receiving such security deposit” on May 1, 2009. Although
the lease itself was dated, this was not the same date as when plaintiff provided the additional
security deposit amount. Also, while the lease indicated the amount of the initial $590
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deposit, it obviously did not indicate the amount of plaintiff’s additional $10 contribution in
2009.
¶ 51 Defendant also contends on appeal that the only remedy plaintiff would be entitled to for
the alleged May 1, 2009, failure to provide a receipt is the return of the $10 security deposit
pursuant to subsection 5-12-080(b), and not the remedy under subsection 5-12-080(f) of
twice the amount of the security deposit.
¶ 52 Turning to the language of the ordinance at issue, as noted, subsection (b) provides that
“[f]ailure to comply with this subsection shall entitle the tenant to immediate return of
security deposit.” Chicago Municipal Code § 5-12-080(b)(1) (amended July 28, 2010). In
addition, subsection (f) directs that if a landlord “fails to comply with any provision of
Section 5-12-080(a)–(e), the tenant shall be awarded damages in an amount equal to two
times the security deposit plus interest at a rate determined in accordance with Section
5-12-081. This subsection does not preclude the tenant from recovering other damages to
which he may be entitled under this chapter.” (Emphases added.) Chicago Municipal Code
§ 5-12-080(f) (amended July 28, 2010).
¶ 53 Based on this language, we believe that the ordinance specifically provides for more than
just the return of the security deposit as a remedy for failing to provide a receipt for the
security deposit; it also allows for recovery of two times the security deposit plus interest.
See Solomon v. American National Bank & Trust Co., 243 Ill. App. 3d 132, 137 (1993) (“We
note that the ordinance provides for the return of the deposit and statutory damages where the
landlord fails to issue a proper receipt to a tenant or prospective tenant.” (Emphasis in
original and added.)).
¶ 54 3. Subsection 5-12-080(c) of the RLTO
¶ 55 Plaintiff also argues on appeal that the circuit court improperly dismissed her claim that
defendant failed to pay interest on her security deposit pursuant to subsection 5-12-080(c)
within 30 days of the end of the 12-month rental period on March 31, 2009. Plaintiff asserts
that the fact that defendant paid her $1 interest on January 2, 2010, and on January 29, 2010,
did not remedy this error because the payments did not fall within 30 days of when the
interest became due on March 31, 2009.
¶ 56 Subsection 5-12-080(c) provides:
“(c) A landlord who holds a security deposit or prepaid rent pursuant to this
section for more than six months shall pay interest to the tenant accruing from the
beginning date of the rental term specified in the rental agreement at the rate
determined in accordance with Section 5-12-081 ***. The landlord shall, within 30
days after the end of each 12-month rental period, pay to the tenant any interest, by
cash or credit to be applied to the rent due.” Chicago Municipal Code § 5-12-080(c)
(amended July 28, 2010).
¶ 57 In examining subsections 5-12-080(c) and (f), our supreme court has concluded:
“A landlord’s duty to comply with [section 5-12-080(f)] is absolute. If a landlord
requires a security deposit, the landlord is required to pay the tenant interest on that
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deposit. If he fails to do so, he is liable to the tenant for the damages specified in the
ordinance. There are no exceptions. Where a statute is clear and unambiguous, as this
one is, the court should not look to extrinsic aids for construction. ***
*** The purpose of the law is to help protect the rights of tenants with respect to
their security deposits, including the right to receive interest. In most cases, the
amount of interest landlords owe for security deposits is small, too small to warrant
litigation against a landlord who refuses to abide by the law. Without the prospect of
liability for significant additional damages, landlords would therefore have little
incentive to meet their statutory obligations.” Lawrence v. Regent Realty Group, Inc.,
197 Ill. 2d 1, 9-10 (2001).
See also Plambeck v. Greystone Management & Columbia National Trust Co., 281 Ill. App.
3d 260, 272 (1996) (finding that there was no de minimis exception regarding the prohibition
on commingling security deposit funds where the landlord deposited two increases in the
deposit in the amounts of $20 and $25 into its rent account).
¶ 58 Accordingly, defendant was required to strictly comply with the clear and unambiguous
directives in the ordinance. Subsection 5-12-080(c) requires landlords to pay interest within
30 days after the end of each 12-month rental period. Plaintiff asserts that the parties’ rental
period ended on March 31, 2009, which would conform with the dates of their initial written
rental agreement for the one-year lease that set the rental period from April 1 to March 31.
Defendant does not contend that a different 12-month period is applicable. Thus, defendant
was required to pay within 30 days of March 31, 2009, and its interest payments in 2010 or
2011 did not excuse its failure to pay interest within the prescribed time period.
¶ 59 Defendant also contends that plaintiff cannot prevail on this claim because she failed to
provide notice pursuant to subsection 5-12-080(f)(2). Plaintiff maintains that she was not
required to provide notice.
¶ 60 We note that subsection 5-12-080(f)(2) is arguably inapplicable to the instant
circumstances because this provision relating to notice was not added until the amendment in
2010. As amended in 2010, this subsection now provides:
“(f)(1) Subject to section (f)(2), if the landlord fails to comply with any provision
of Section 5-12-080(a)–(e), the tenant shall be awarded damages in an amount equal
to two times the security deposit plus interest at a rate determined in accordance with
Section 5-12-081. This subsection does not preclude the tenant from recovering other
damages to which he may be entitled under this chapter.
(2) If a landlord pays the interest on a security deposit or prepaid rent within the
30-day period provided for in subsection (c), or within the 45-day period provided for
in subsection (d), whichever is applicable, but the amount of interest is deficient, the
landlord shall not be liable for damages under subsection (f)(2) unless:
(A) the tenant gives written notice to the landlord that the amount of the interest
returned was deficient; and
(B) within fourteen days of the receipt of the notice, the landlord fails to either:
(i) pay to the tenant the correct amount of interest due plus $50.00; or
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(ii) provide to the tenant a written response which sets forth an explanation
of how the interest paid was calculated.” Chicago Municipal Code
§ 5-12-080(f) (amended July 28, 2010).
¶ 61 Nevertheless, based on the language concerning notice in subsection 5-12-080(f)(2), we
conclude that it would only apply when the landlord paid interest within the prescribed time
period, but paid a deficient amount. Thus, this subsection is only applicable where the
landlord has actually paid some amount of interest within the prescribed time period,
although the amount is incorrect. This differs from the circumstances in the present case,
where plaintiff alleges that defendant failed to pay any interest at all within 30 days of March
31, 2009.
¶ 62 4. Class Claims Under Section 5-12-080 of the RLTO
¶ 63 With respect to the class action component of plaintiff’s count I claims, plaintiff
maintains that even if she cannot individually maintain a claim under section 5-12-080(a)(3),
she can still be a class representative because she alleged three different violations under
section 5-12-080, only one of which fell under subsection (a)(3), and all three violations were
redressable by the same civil remedy in subsection (f).
¶ 64 Although plaintiff moved to certify the class, the circuit court ruled only on defendant’s
motion to dismiss. “[A] trial court may rule upon a defendant’s motion to dismiss before the
question of class certification has been decided.” Van Harken v. City of Chicago, 305 Ill.
App. 3d 972, 976 n.4 (1999). In order to adequately represent a class, the interest of the
named party must be the same as those of the unnamed parties, and the “ ‘plaintiff must be a
member of the class.’ ” Uesco Industries, Inc. v. Poolman of Wisconsin, Inc., 2013 IL App
(1st) 112566, ¶ 46 (quoting Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill. App. 3d 995,
999 (1991)). 8 “[T]here is no need to determine whether these prerequisites [for class
certification] are met if, as a threshold matter, the record establishes that the plaintiff has not
stated an actionable claim.” Id. ¶ 47. That is, the named plaintiff “ ‘cannot adequately
represent a class when the representative does not state a valid cause of action.’ ” Id. (quoting
De Bouse v. Bayer AG, 235 Ill. 2d 544, 560 (2009)). See also Griffith v. Wilmette Harbor
Ass’n, 378 Ill. App. 3d 173, 184 (2007) (“In the context of a class action, if a purported
representative plaintiff for a class action cannot maintain his individual claim against the
defendant because of lack of standing or otherwise, then the class action claim cannot be
8
For purposes of class certification, the proponent must establish four prerequisites set forth in
section 2-801 of the Code. See 735 ILCS 5/2-801 (West 2008).
“ ‘(1) the class is so numerous that joinder of all members is impracticable; (2) there are
questions of fact or law common to the class, which common questions predominate over any
questions affecting only individual members; (3) the representative parties will fairly and
adequately protect the interests of the class; and (4) the class action is an appropriate method
for the fair and efficient adjudication of the controversy.’ ” Uesco Industries, Inc. v. Poolman
of Wisconsin, Inc., 2013 IL App (1st) 112566, ¶ 45 (quoting Barbara’s Sales, Inc. v. Intel
Corp., 227 Ill. 2d 45, 71-72 (2007)).
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maintained. [Citation.] Accordingly, if a putative class action plaintiff has not suffered the
injury that he alleges other members of the putative class have suffered, that purported
plaintiff cannot represent the class.”).
¶ 65 As previously discussed, plaintiff could not maintain her individual claim under
subsection 5-12-080(a)(3). Accordingly, we conclude that the circuit court properly
dismissed the class action component of her claim. However, as we previously stated, the
trial court erred in dismissing plaintiff’s individual claims under subsections 5-12-080(b) and
(c) (that defendant failed to provide a receipt for the $10 she contributed toward her security
deposit on May 1, 2009, and that defendant failed to pay interest at the end of the 12-month
period on March 31, 2009). In order to withstand a motion to dismiss class allegations
pursuant to section 2-615 of the Code, “[t]he plaintiff’s complaint simply must contain
allegations which implicate, or bring the complaint within, these prerequisites. It is enough
that the factual allegations are sufficiently broad in scope to plead the possible existence of a
class action claim under section 2-801.” Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439,
453-54 (2004). In plaintiff’s amended complaint, she alleged that she believed there were at
least 52 tenants in the building and joinder would be impracticable, there were common
questions of law and fact which predominated, she could fairly and adequately represent the
class, and that she reasonably believed that some or all tenants who paid security deposits
“suffered violations under RLTO Section 5-12-080.” Accordingly, we conclude that the class
component of those particular claims were improperly dismissed at this stage of the
proceedings. We make no ruling, however, with respect to whether class certification is
ultimately warranted in this case or whether plaintiff’s motion for class certification should
be granted.
¶ 66 In sum, we find that the circuit court appropriately dismissed plaintiff’s claim under
subsection 5-12-080(a)(3) of the RLTO. However, we find that the dismissal of plaintiff’s
claims pursuant to subsections (b) and (c) was in error.
¶ 67 B. Dismissal of Count III: Section 5-12-100 of the RLTO
¶ 68 On appeal, plaintiff contends that the circuit court erred in dismissing count III because
subsection 5-12-100(b) provides for a private right of action when a violation of subsection
5-12-100(a) occurs. Defendant contends that the language regarding a private right of action
in 100(b) applies only to subsection (b), not (a). Defendant also argues that even if a private
right of action was available for plaintiff’s subsection 5-12-100(a) claim, she failed to satisfy
the notice requirement pursuant to section 5-12-090.
¶ 69 As sections 5-12-090, 5-12-100, and 5-12-110(a) are at issue here, we set forth each
below in relevant part.
“5-12-090 Identification of owner and agents.
***
If the landlord fails to comply with this section, the tenant may terminate the
rental agreement pursuant to the notice provisions of Section 5-12-110(a). If the
landlord fails to comply with the requirements of this section after receipt of written
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notice pursuant to Section 5-12-110(a), the tenant shall recover one month’s rent or
actual damages, whichever is greater.” Chicago Municipal Code § 5-12-090
(amended Nov. 6, 1991).
“5-12-100 Notice of conditions affecting habitability.
Before a tenant initially enters into or renews a rental agreement for a dwelling
unit, the landlord or any person authorized to enter into a rental agreement on his
behalf shall disclose to the tenant in writing:
(a) Any code violations which have been cited by the City of Chicago during the
previous 12 months for the dwelling unit and common areas and provide notice of the
pendency of any code enforcement litigation or compliance board proceeding
pursuant to Section 13-8-070 of the municipal code affecting the dwelling unit or
common area. The notice shall provide the case number of the litigation and/or the
identification number of the compliance board proceeding and a listing of any code
violations cited.
(b) Any notice of intent by the City of Chicago or any utility provider to terminate
water, gas, electrical or other utility service to the dwelling unit or common areas.
The disclosure shall state the type of service to be terminated, the intended date of
termination; and whether the termination will affect the dwelling unit, the common
areas or both. A landlord shall be under a continuing obligation to provide disclosure
of the information described in this subsection (b) throughout a tenancy. If a landlord
violates this section, the tenant or prospective tenant shall be entitled to remedies
described in Section 5-12-090.” Chicago Municipal Code § 5-12-100 (amended Nov.
6, 1991).
“5-12-110 Tenant Remedies.
***
(a) Noncompliance by Landlord. If there is material noncompliance by the
landlord with a rental agreement or with Section 5-12-070 either of which renders the
premises not reasonably fit and habitable, the tenant under the rental agreement may
deliver a written notice to the landlord specifying the acts and/or omissions
constituting the material noncompliance and specifying that the rental agreement will
terminate on a date not less than 14 days after receipt of the notice by the landlord,
unless the material noncompliance is remedied by the landlord within the time period
specified in the notice. If the material noncompliance is not remedied within the time
period so specified in the notice, the rental agreement shall terminate, and the tenant
shall deliver possession of the dwelling unit to the landlord within 30 days after the
expiration of the time period specified in the notice. If possession shall not be so
delivered, then the tenant’s notice shall be deemed withdrawn and the lease shall
remain in full force and effect. If the rental agreement is terminated, the landlord shall
return all prepaid rent, security and interest recoverable by the tenant under Section
5-12-080.” Chicago Municipal Code § 5-12-110 (amended Nov. 6, 1991).
- 17 -
¶ 70 During the pendency of this appeal, we granted plaintiff’s motion to file as supplemental
authority a recent opinion from this court, Ranjha v. BJBP Properties, Inc., 2013 IL App (1st)
122155. Ranjha involved interpretation of the same provisions of the RLTO at issue in the
case at bar, that is, an alleged violation of section 5-12-100(a) for failing to disclose code
violations before or at the time a lease was executed, and the remedies provided in sections
5-12-090 and 5-12-110(a). Ranjha, 2013 IL App (1st) 122155, ¶ 1. Similar to plaintiff here,
the plaintiff tenant in Ranjha filed a class action complaint based on the alleged violation of
subsection 5-12-100(a) for failure to disclose code violations and claimed the remedy of the
greater of one month’s rent or actual damages, in accordance with sections 5-12-100(b),
5-12-090, and 5-12-110. Id. ¶ 8. The circuit court dismissed the complaint after concluding
that a tenant must surrender possession of the premises to the landlord in order to obtain the
remedy set forth in section 5-12-090 of the RLTO. Id.
¶ 71 Our court indicated that the three provisions at issue should be read in the following
order: “5-12-100; 5-12-090; and 5-12-110(a).” Ranjha, 2013 IL App (1st) 122155, ¶ 12.
“[S]ection 5-12-100 provides that when a landlord violates that section, the tenant is
entitled to the remedies set forth in section 5-12-090. Section 5-12-090 permits a
tenant to terminate the lease pursuant to the written notice provisions of section
5-12-110(a), and it also provides that a tenant shall recover the greater of one month’s
rent or actual damages if a landlord fails to comply with its requirements after
receiving the written notice provided for in section 5-12-110(a).” Ranjha, 2013 IL
App (1st) 122155, ¶ 11.
¶ 72 Turning to section 5-12-090, the court noted that it provided for two remedies, “either
lease termination or monetary damages in the amount of one month’s rent or actual damages,
whichever is greater,” and that the tenant “must satisfy the notice requirements set forth in
section 5-12-110(a).” Ranjha, 2013 IL App (1st) 122155, ¶ 13. The court indicated that the
notice provision in section 5-12-110(a) provided that the tenant “ ‘may deliver a written
notice to the landlord specifying the acts and/or omissions constituting the material
noncompliance and specifying that the rental agreement will terminate on a date not less than
14 days after receipt of the notice by the landlord,’ ” unless the material noncompliance was
remedied. (Emphasis omitted.) Id. (quoting Chicago Municipal Code § 5-12-110(a) (eff. Nov.
6, 1991)). The court made clear that written notice was required when a tenant sought the
remedy of the greater of one month’s rent or actual damages for a violation of subsection
5-12-100(a): “Without dispute, a tenant must provide written notice to the landlord to recover
the remedy of one month’s rent or actual damages ***.” Id. ¶ 15.
¶ 73 However, observing that the language regarding written notice in section 5-12-110(a)
only referred to the remedy of lease termination and not monetary damages, the court
determined that a liberal construction of section 5-12-110(a) was appropriate “as requiring a
tenant to inform the landlord what the material noncompliance was and specify the remedy
that he is seeking from the two remedies provided for in section 5-12-090.” Ranjha, 2013 IL
App (1st) 122155, ¶ 18. In effect, the court interpreted section 5-12-110(a) to read: “ ‘the
tenant under the rental agreement may deliver a written notice to the landlord specifying the
acts and/or omissions constituting the material noncompliance and specifying that the tenant
- 18 -
shall recover one month’s rent or actual damages, whichever is greater, on a date not less
than 14 days after receipt of the notice by the landlord, unless the material noncompliance is
remedied by the landlord within the time period specified in the notice.’ ” (Emphasis in
original.) Id. (quoting Chicago Municipal Code § 5-12-110 (eff. Nov. 6, 1991)). If the
landlord failed to remedy the noncompliance within the time period specified in the notice,
the tenant would be entitled to the remedy specified in that notice. Id. Thus, “if a tenant seeks
the remedy of one month’s rent or actual damages, whichever is greater, and specifies that
remedy in the written notice, then termination of the lease and delivery of premises are not
required.” Id. The court indicated that this interpretation was in line with the purpose of the
RLTO, which aims to improve rental housing. Id. ¶ 19. In reversing the circuit court’s
decision, this court held that the tenant was not required to terminate the lease and surrender
the premises in order to recover the greater of one month’s rent or actual damages “when a
landlord, after receiving the required statutory written notice, has failed to provide a tenant
with notice of Code violations in accordance with section 5-12-100.” Id. ¶ 20.
¶ 74 Based on Ranjha, the remedy provision set forth in subsection 5-12-100(b) is applicable
to plaintiff’s claim in the present case that defendant violated subsection 5-12-100(a) by
failing to disclose code violations or code enforcement litigation in the 12 months before the
lease was executed. Although Ranjha did not involve the specific contention of whether the
remedy in subsection (b) is applicable to violations of subsection (a), the court’s holding
encompassed this issue: “In sum, termination of the lease and surrender of the premises to the
landlord are not required to recover the greater of one month’s rent or actual damages when a
landlord, after receiving the required statutory written notice, has failed to provide a tenant
with notice of Code violations in accordance with section 5-12-100.” (Emphasis added.)
Ranjha, 2013 IL App (1st) 122155, ¶ 20. We find no reason to depart from this analysis.
¶ 75 This conclusion is buttressed by our decision in Krawczyk v. Livaditis, 366 Ill. App. 3d
375, 378 (2006), where the plaintiff argued that the circuit court failed to award separate
damages for a violation of section 5-12-100 based on the defendant’s failure to disclose
citations from the City of Chicago and a notice from the gas company regarding
discontinuing service to the building. The court stated that “plaintiffs are correct that the trial
court erred in failing to award separate damages for the violation of section 5-12-100
(requiring disclosure to tenants regarding legal proceedings, cutoff of utilities), as the
ordinance specifically states that such violations shall entitle the tenant to remedies under
section 5-12-090.” Id. Thus, Krawczyk dictates that the remedy in section 5-12-090 is
available for violations of section 5-12-100, including both subsections (a) (for disclosure of
code violations and proceedings) and (b) (for disclosure of a notice of intent to terminate a
utility service).
¶ 76 We also find persuasive plaintiff’s argument that the language of section 5-12-100 draws
a distinction between “section” and “subsection.” The Chicago Municipal Code, which
includes the RLTO, specifies: “Each section number of this Code shall consist of three
component parts separated by dashes. The figure before the first dash shall refer to the title
number; the figure following the first dash shall refer to the position of the chapter within a
title; and the figure following the second dash shall refer to the position of the section within
- 19 -
its chapter.” Chicago Municipal Code § 1-4-080 (added June 27, 1990). Thus, in the
ordinance at issue, “5” indicates the title number, “12” refers to the chapter within the title,
and “100” signifies the section within the chapter. Further divisions within the section would
therefore be “subsections.” This is supported by the dictionary definition of the prefix “sub-,”
which is defined as “[s]ubordinate; secondary” or “subdivision.” American Heritage
Dictionary 1210 (2d coll. ed. 1985). 9
¶ 77 As stated, the last two sentences of subsection 5-12-100(b) provide: “A landlord shall be
under a continuing obligation to provide disclosure of the information described in this
subsection (b) throughout a tenancy. If a landlord violates this section, the tenant or
prospective tenant shall be entitled to remedies described in Section 5-12-090.” (Emphases
added.) Chicago Municipal Code § 5-12-100(b) (amended Nov. 6, 1991). The word “section”
in 5-12-100(b), “[i]f a landlord violates this section,” refers to the section as a whole. The
ordinance also specifically uses the term “subsection” in 5-12-100(b), “the information
described in this subsection (b).” That the language of the ordinance draws a distinction
between a “section” and a “subsection” provides further support for plaintiff’s argument that
the phrase “violates this section” refers to the entire section 5-12-100, and not merely
subsection (b).
¶ 78 Even though we conclude that the remedy referred to in subsection 5-12-100(b) is
available for a violation based on subsection 5-12-100(a), pursuant to Ranjha, plaintiff was
also required to provide notice to defendant and specify which remedy she sought, i.e.,
termination of the lease or the greater of one month’s rent or actual damages. Ranjha, 2013
IL App (1st) 122155, ¶¶ 15, 20. Plaintiff argues that, if notice was required, she provided
proper notice to defendant in her attorney’s February 28, 2011, letter, requesting that
defendant “disclose as it relates to the above-captioned property all building code violations
[and] all code enforcement proceedings.” The letter requested “the courtesy of your response
on or before March 14, 2011.”
¶ 79 However, the letter was insufficient to provide notice as required by Ranjha. The letter
did not specify “ ‘the acts and/or omissions constituting the material noncompliance’ ” or
“ ‘specify[ ] that the tenant shall recover one month’s rent or actual damages, whichever is
greater, on a date not less than 14 days after receipt of the notice by the landlord, unless the
material noncompliance is remedied by the landlord within the time period specified in the
notice.’ ” (Emphasis omitted.) Ranjha, 2013 IL App (1st) 122155, ¶ 18 (quoting Chicago
Municipal Ordinance § 5-12-110(a) (eff. Nov. 6, 1991). Because the letter did not specify
what constituted the material noncompliance, specify the damages or remedy sought by
plaintiff, or the time period in which the landlord had to remedy the noncompliance, it was
insufficient to constitute a notice. Although the circuit court did not address these grounds for
dismissal, we may affirm the circuit court’s decision for any reason on appeal. Coghlan,
2013 IL App (1st) 120891, ¶ 24. Thus, we find that the circuit court properly dismissed count
III of plaintiff’s amended complaint.
9
This court may look to “a dictionary to give the terms their ordinary and popularly understood
meaning.” LeCompte v. Zoning Board of Appeals, 2011 IL App (1st) 100423, ¶ 29.
- 20 -
¶ 80 In ruling, we further note that even if plaintiff’s claim would not fail based on inadequate
notice, we nevertheless agree with defendant’s alternative argument that plaintiff failed to
allege that defendant did not disclose code violations occurring within the 12-month period
before she signed her lease on April 4, 2007. Plaintiff pleaded in her complaint that
defendant was cited with four code violations on May 4, 2007, and that there were two code
enforcement proceedings in 2009. Plaintiff also indicated that during her entire tenancy, the
property was cited for a total of approximately 32 code violations. However, none of these
allegations occurred within the 12-month period before she executed the lease, and therefore
they did not constitute violations of subsection 5-12-100(a).
¶ 81 Moreover, after the expiration of the one-year lease term, the lease was never renewed.
The lease provided that it began on April 1, 2007, and ended on March 31, 2008. In
paragraph 15 of the written lease, entitled “TERMINATION AND RETURN OF
POSSESSION,” the lease agreement provided in relevant part:
“B. Tenant agrees that in the event Tenant fails to vacate the Apartment upon
termination of this Lease or Tenant’s right of possession that:
(1) Tenant shall pay as liquidated damages for the entire time that possession is
withheld a sum equal to three times the amount of rent herein reserved, pro rated per
day of such withholding, or Lessor’s actual damages if same are ascertainable; or
(2) Lessor, at his sole option, may, upon giving Tenant written notice, extend the
terms of this Lease for a like period of time not to exceed one year at such rent as
Lessor has stated prior to said termination date; or
(3) If Lessor fails to notify Tenant within 45 days of said termination date of
Lessor’s election under either (1) or (2), Tenant’s continued occupancy shall be for a
month-to-month term.
(4) No action or non-action by Lessor except as herein provided, and except as
expressly provided otherwise in the Chicago Residential Landlord and Tenant
Ordinance, shall operate as a waiver of Lessor’s right to terminate this Lease or
Tenant’s right of possession, nor operate to extend the Term hereof.”
¶ 82 “A tenant who remains in possession after his or her lease has expired becomes a tenant
at sufferance. [Citation.] At the landlord’s sole option, a tenant at sufferance may be evicted
as a trespasser or treated as a holdover tenant.” Roth v. Dillavou, 359 Ill. App. 3d 1023, 1027
(2005). However, when a holdover tenancy is not created, a month-to-month tenancy may
result from the parties’ conduct, such as accepting monthly rental payments. Id. “Both a
holdover tenancy and a month-to-month tenancy are governed by the terms of the original
lease. [Citation.] However, a holdover tenancy lasts as long as the original lease term, while a
month-to-month tenancy can last indefinitely, although it can be terminated on 30 days’
notice. [Citation.]” Id. Additionally, “a tenancy from month to month is a single tenancy,
continuous and uninterrupted until so terminated,” and therefore a renewal does not occur “at
the beginning of each month.” Wagner v. Kepler, 411 Ill. 368, 377 (1951).
¶ 83 In the present case, the written lease agreement provided that, after the expiration of the
one-year term of the lease, defendant had the option of treating plaintiff as a tenant at
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sufferance, giving plaintiff notice that it would extend the term of the lease for a “like period
of time,” or, if defendant did not notify plaintiff within 45 days of the lease termination date
that it elected either of those two options, plaintiff’s occupancy would continue on a
“month-to-month term.” Accordingly, after the expiration of the one-year term on March 31,
2008, plaintiff’s tenancy became a month-to-month tenancy. As the lease was not renewed,
defendant was not under an obligation pursuant to section 5-12-100(a) to disclose code
violations or proceedings which occurred subsequent to the execution of her initial lease.
¶ 84 Because plaintiff has failed to plead an individual claim for a violation of section
5-12-100, her class claim must also fail for lack of a class representative pursuant to section
2-619 of the Code. Uesco Industries, 2013 IL App (1st) 112566, ¶¶ 47-48. The circuit court
properly dismissed both plaintiff’s individual and class claims under count III.
¶ 85 C. Dismissal of Counts IV and V
¶ 86 Plaintiff also challenges the circuit court’s dismissal of counts IV and V pursuant to
section 2-615 of the Code. In count IV, plaintiff alleged that defendant violated section
5-12-070 of the RLTO by failing to maintain the premises “in compliance with all applicable
provisions of the municipal code” and failing to “promptly make any and all repairs
necessary.” Chicago Municipal Code § 5-12-070 (amended Nov. 6, 1991). Similarly, in
count V, plaintiff alleged that defendant’s failure to correct these conditions breached the
warranty of habitability implied in all residential rental leases, and that she and like class
members suffered damages by paying more in rent than the apartments were worth.
¶ 87 As stated, when reviewing the sufficiency of a complaint pursuant to section 2-615 of the
Code, we accept as true all well-pleaded facts and any reasonable inference that can be drawn
from those facts. Dratewska-Zator, 2013 IL App (1st) 122699, ¶ 14. “We have repeatedly
stated, however, that Illinois is a fact-pleading jurisdiction.” Marshall v. Burger King Corp.,
222 Ill. 2d 422, 429 (2006). “While the plaintiff is not required to set forth evidence in the
complaint [citation], the plaintiff must allege facts sufficient to bring a claim within a legally
recognized cause of action [citation], not simply conclusions [citation].” Id. at 429-30.
“Conclusions of fact are insufficient to state a cause of action regardless of whether
they generally inform the defendant of the nature of the claim against him. [Citation.]
Rather, under Illinois fact pleading, the pleader is required to set out ultimate facts
that support his or her cause of action. [Citation.]” Coghlan, 2013 IL App (1st)
120891, ¶ 22.
¶ 88 “In the absence of supporting facts, the general allegations in [a complaint] are mere
conclusions. [Citation.] Conclusory allegations of fact or law are not admitted in a section
2-615 motion. [Citation.] If, after deleting such, there are not sufficient facts alleged to
support a claim, the pleading is properly stricken.” Shaker & Associates, Inc. v. Medical
Technologies Group, Ltd., 315 Ill. App. 3d 126, 133-34 (2000).
¶ 89 We conclude that the circuit court properly granted defendant’s motion to dismiss counts
IV and V and the related class claims pursuant to section 2-615 of the Code. Plaintiff’s
amended complaint makes merely general, conclusory allegations that numerous “unsafe,
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unsanitary, and uninhabitable conditions” existed “throughout” her tenancy. She does not
specify where or when such conditions existed. Plaintiff also failed to allege that she
provided defendant access to her apartment to remedy these alleged conditions. “ ‘[T]here, of
course, must be notice of the alleged defects given by the tenant to the landlord and the
landlord must have had a reasonable time within which to correct the alleged deficiencies.’ ”
(Emphasis omitted.) Abram v. Litman, 150 Ill. App. 3d 174, 176 (1986) (quoting Glasoe v.
Trinkle, 107 Ill. 2d 1, 14 (1985)). Although plaintiff was given an opportunity to amend her
amended complaint, she did not do so.
¶ 90 III. CONCLUSION
¶ 91 For the reasons set forth above, we reverse the circuit court’s dismissal of count I as it
relates to plaintiff’s claims under subsections 5-12-080(b) and (c). In all other respects, we
affirm the circuit court’s orders dismissing the remainder of plaintiff’s claims.
¶ 92 Affirmed in part and reversed and remanded in part.
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