{ "id": 4276741, "name": "LARISSA WILLIS, Plaintiff and Counterdefendant-Appellant, v. NAICO REAL ESTATE PROPERTY AND MANAGEMENT CORPORATION, Defendant and Counterplaintiff-Appellee", "name_abbreviation": "Willis v. Naico Real Estate Property & Management Corp.", "decision_date": "2008-02-19", "docket_number": "No. 1-06-2066", "first_page": "486", "last_page": "490", "citations": [ { "type": "official", "cite": "379 Ill. App. 3d 486" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "260 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863307 ], "year": 1993, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0351-01" ] }, { "cite": "138 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576867 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0178-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "388" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "62 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2972054 ], "year": 1976, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0435-01" ] }, { "cite": "274 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291549 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "943" }, { "page": "943" }, { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0939-01" ] }, { "cite": "222 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602359 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "429" }, { "page": "429" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0422-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 502, "char_count": 11039, "ocr_confidence": 0.771, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3934812415704545 }, "sha256": "20591652faa54800e3f68bfacdafdae1d293cfbd496a0160256950030ec499b7", "simhash": "1:c26c3e92595600ee", "word_count": 1858 }, "last_updated": "2023-07-14T21:50:11.340315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LARISSA WILLIS, Plaintiff and Counterdefendant-Appellant, v. NAICO REAL ESTATE PROPERTY AND MANAGEMENT CORPORATION, Defendant and Counterplaintiff-Appellee." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nFollowing a jury trial in this tenant-landlord dispute, judgment was entered in favor of the tenant plaintiff Larissa Willis in the amount of $3,395 for the return of her security deposit and annual interest on it under the Residential Landlord Tenant Ordinance of the City of Chicago (RLTO). In addition, judgment was entered in favor of the defendant landlord, Naico Real Estate Property and Management Corporation, in the amount of $788 based on its counterclaim for one month\u2019s rent. Thereafter, the court awarded $4,332.20 in attorney fees to plaintiff and $3,582.75 in attorney fees to defendant.\nOn appeal, plaintiff challenges the award of attorney fees to defendant by raising two issues: (1) whether the trial court properly dismissed with prejudice count IX, which alleged that a certain lease provision regarding attorney fees for the landlord was not enforceable; and (2) whether the trial court properly allowed defendant to recover attorney fees. Although defendant has not filed a brief in response, we may proceed under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We affirm in part and reverse in part.\nThe record shows that plaintiff and defendant entered into a written lease agreement on June 1, 1997, for an apartment at 4849 West Jackson Boulevard in Chicago. As part of the lease agreement, plaintiff paid a security deposit in the amount of $1,576. The lease was for a rental term of one year, which was renewed annually, and the monthly rent was set at $788. After the lease terminated on May 31, 2004, plaintiff became a month-to-month tenant until she vacated the premises on July 12, 2004.\nOn September 21, 2004, plaintiff filed her original complaint alleging that defendant violated the RLTO in not refunding her security deposit and for failing to pay annual interest on it. On October 28, 2004, defendant filed a counterclaim, including count I, which alleged that plaintiff breached her lease agreement and owed rent from June 1, 2004, through July 12, 2004, pursuant to the lease agreement. Defendant also claimed damages resulting from plaintiffs possession of the apartment, costs, and attorney fees pursuant to paragraph 25(B) of the lease, which provided:\n\u201cTenant shall pay Lessor all Lessor\u2019s costs, expenses and attorney\u2019s fees in and about the enforcement of the covenants and agreements of this Lease.\u201d\nOn July 18, 2005, plaintiff filed a second amended complaint including count IX, which alleged that defendant, in filing its counterclaim, attempted to enforce an illegal lease provision to obtain attorney fees in violation of the RLTO. On November 22, 2005, plaintiff filed a motion for summary judgment on count IX, arguing that paragraph 25(B) of the lease violated the RLTO in that it required the tenant to pay all of the lessor\u2019s costs, expenses, and attorney fees in enforcing the lease. Plaintiff relied on section 5 \u2014 12\u2014140(f) of the RLTO, which provides:\n\u201cExcept as otherwise specifically provided by this chapter, no rental agreement may provide that the landlord or tenant:\n* * *\nAgrees that in the event of a lawsuit arising out of the tenancy the tenant will pay the landlord\u2019s attorney\u2019s fees except as provided for by court rules, statute, or ordinance.\u201d Chicago Municipal Code \u00a75 \u2014 12\u2014140(f) (amended November 6, 1991).\nDefendant filed a section 2 \u2014 615 motion to dismiss count IX (735 ILCS 5/2 \u2014 615 (West 2004)), contending that section 5 \u2014 12\u2014180 of the RLTO provides for a landlord, if he is a prevailing plaintiff, to be awarded all court costs and reasonable attorney fees. Section 5 \u2014 12\u2014 180 provides:\n\u201cExcept in cases of forcible entry and detainer actions, the prevailing plaintiff in any action arising out of a landlord\u2019s or tenant\u2019s application of the rights or remedies made available in this ordinance shall be entitled to all court costs and reasonable attorney\u2019s fees.\u201d Chicago Municipal Code \u00a75 \u2014 12\u2014180 (amended November 6, 1991).\nIn response, plaintiff contended that section 5 \u2014 12\u2014180 of the RLTO did not apply because defendant alleged a common law breach of the lease, not a claim under the RLTO. The trial court granted defendant\u2019s motion to dismiss count IX with prejudice on April 11, 2006, stating that, \u201c[c]ount IX of plaintiffs complaint on its face and in substance is not a claim for relief, regardless of its merits.\u201d\nAs noted, following a jury trial, judgment was entered in favor of plaintiff on counts I through VIII of her third amended complaint in the amount of $3,395, and in favor of defendant on count I of its counterclaim in the amount of $788. In this order, the trial court expressly granted both parties leave to file a petition for attorney fees and respective responses.\nBoth parties then filed petitions for attorney fees. Plaintiff argued that she was entitled to attorney fees pursuant to section 5 \u2014 12\u2014180 of the RLTO. Defendant argued that it also was a prevailing plaintiff entitled to attorney fees pursuant to section 5 \u2014 12\u2014180 of the RLTO and paragraph 25(B) of the lease. On July 7, 2006, the trial court found for plaintiff on her petition for attorney fees in the amount of $4,332.20 pursuant to section 5 \u2014 12\u2014180 of the RLTO, and found for defendant on its petition for attorney fees in the amount of $3,582.75 pursuant to paragraph 25(B) of the lease.\nOn appeal, plaintiff maintains that the trial court should not have granted defendant\u2019s section 2 \u2014 615 motion to dismiss count IX of her second amended complaint. She contends that a factually sufficient cause of action was presented in count IX because she stated that paragraph 25(B) of the lease was an illegal provision under section 5 \u2014 12\u2014140(f) of the RLTO. She also maintains that since defendant\u2019s counterclaim was an attempt to enforce an illegal lease provision, she was entitled to recover two months\u2019 rent under section 5 \u2014 12\u2014140(0 of the RLTO.\nA section 2 \u2014 615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. 735 ILCS 5/2\u2014 615 (West 2004); Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). In order for a complaint to be legally sufficient, it must set forth a legally recognized claim \u201cupon which relief can be granted.\u201d Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 943 (1995). If the complaint fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. Winfrey, 274 Ill. App. 3d at 943. We review the circuit court\u2019s grant of a section 2 \u2014 615 motion to dismiss de novo. Marshall, 222 Ill. 2d at 429.\nWhen reviewing the sufficiency of a complaint, we construe the allegations in the light most favorable to the plaintiff and accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Marshall, 222 Ill. 2d at 429.\nIn this case, count IX actually is plaintiff\u2019s stand against defendant\u2019s counterclaim for attorney fees, and not a claim for relief. See generally 735 ILCS 5/2 \u2014 608(d) (West 2004) (providing for answers to counterclaims). Since count IX does not set forth a legally recognized cause of action, there is no recourse at law, and the count must be dismissed. Winfrey, 274 Ill. App. 3d at 943. Therefore, the trial court properly granted defendant\u2019s section 2 \u2014 615 motion to dismiss when it found that count IX \u201cin substance is not a claim for relief, regardless of its merits.\u201d\nSecond, plaintiff contends that the trial court\u2019s award of attorney fees to defendant based on paragraph 25(B) of the lease must be reversed because paragraph 25(B) is invalid and unenforceable because it violates section 5 \u2014 12\u2014140(f) of the RLTO.\nThe Illinois Supreme Court has stated, \u201c[ajpart from statute, there is, of course, no right on the part of the successful party to recover \u2018attorneys\u2019 fees and the ordinary expenses and burdens of litigation.\u2019 [Citation.]\u201d Meyer v. Marshall, 62 Ill. 2d 435, 442 (1976). Plaintiff contends that defendant sued under common law and not under the RLTO and, therefore, defendant is not entitled to attorney fees. Although defendant\u2019s counterclaim alleges a breach of contract and does not address the RLTO specifically, section 5 \u2014 12\u2014180 of the RLTO states that any prevailing plaintiff in any action arising out of a landlord\u2019s or tenant\u2019s application of the rights or remedies made available in this ordinance is entitled to all court costs and reasonable attorney fees.\nIn interpreting a statute or ordinance, the primary goal is to ascertain and give affect to the intent of the legislature. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). Legislative intent is best demonstrated by the plain language of the statute. Barnett, 171 Ill. 2d at 389. Where the language is clear and unambiguous, a reviewing court may not depart from its plain meaning by reading into it exceptions that the legislature did not express. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).\nIn this case, although the language of section 5 \u2014 12\u2014180 of the RLTO entitles any prevailing plaintiff to be awarded attorney fees (Meyer v. Cohen, 260 Ill. App. 3d 351, 363 (1993)), defendant\u2019s counterclaim is for breach of contract, a common law claim. The fee and cost provision relied on by defendant, section 5 \u2014 12\u2014180 of the RLTO, applies only to actions arising out of \u201cthe rights or remedies made available in this ordinance.\u201d (Emphasis added.) Chicago Municipal Code \u00a75 \u2014 12\u2014180 (amended November 6, 1991).\nDefendant does not cite or rely on the RLTO in its counterclaim. It cites and relies on a provision of the lease, paragraph 25(B). The counterclaim has nothing to do with \u201crights or remedies made available in this ordinance.\u201d\nSection 5 \u2014 12\u2014140(f) of the RLTO expressly prohibits and makes \u201cunenforceable\u201d any lease provision that requires a tenant to \u201cpay the landlord\u2019s attorney fees\u201d in a lawsuit arising out of the tenancy\u2014 which this lawsuit does. To hold otherwise would render section 5 \u2014 12\u2014140(f) meaningless. The obvious purpose of the ordinance is to protect tenants who find themselves in a lawsuit arising out of their tenancy.\nIn the trial court order, the trial court relied on paragraph 25(B) of the lease in awarding defendant attorney fees, which is in violation of section 5 \u2014 12\u2014140(f) of the RLTO as noted.\nFor the foregoing reasons, we affirm the judgment of the circuit court as to the dismissal of count IX of plaintiff\u2019s complaint and reverse the trial court\u2019s judgment awarding attorney fees to defendant in the amount of $3,582.75.\nAffirmed in part and reversed in part.\nWOLFSON and GARCIA, JJ., concur.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Krohn & Moss, Ltd., of Chicago (Michael T. Antikainen and Scott M. Cohen, of counsel), for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "LARISSA WILLIS, Plaintiff and Counterdefendant-Appellant, v. NAICO REAL ESTATE PROPERTY AND MANAGEMENT CORPORATION, Defendant and Counterplaintiff-Appellee.\nFirst District (1st Division)\nNo. 1\u201406\u20142066\nOpinion filed February 19, 2008.\nKrohn & Moss, Ltd., of Chicago (Michael T. Antikainen and Scott M. Cohen, of counsel), for appellant.\nNo brief filed for appellee." }, "file_name": "0486-01", "first_page_order": 502, "last_page_order": 506 }