Kopnick v. JL Woode Management Co.
Docket No. 1-15-2054
Appellate Court of Illinois, First District, Fourth Division
March 30, 2017
2017 IL App (1st) 152054
Illinois Official Reports
Appellate Court Caption CHARLENE KOPNICK, Plaintiff-Appellant, v. JL WOODE MANAGEMENT COMPANY, LLC; JL WOODE LTD., LLC EXIST; JL WOODE LTD., LLC EXIST, d/b/a HAWTHORNE HOUSE; and HAWTHORNE HOUSE LP, Defendants-Appellees.
Decision Under Review Appeal from the Circuit Court of Cook County, No. 14-CH-20526; the Hon. Thomas R. Allen, Judge, presiding.
Judgment Affirmed in part, reversed in part, and remanded.
Counsel on Appeal Berton N. Ring and Stuart M. Clarke, of Berton N. Ring, PC, of Chicago, for appellant.
Jeffrey L. Widman and Jennifer L. Devroye, of Shaw Fishman Glantz & Towbin LLC, of Chicago, for appellees.
OPINION
¶ 1 Charlene Kopnick sued her former landlord, claiming a violation of section 5-12-170 of Chicago‘s Residential Landlord and Tenant Ordinance (RLTO) (
¶ 2 We summarize her allegations. Kopnick began renting and residing in a high rise apartment building at 3450 North Lake Shore Drive, Chicago, in January 2013. At issue is a written lease she executed to renew her tenancy for the one-bedroom apartment, Unit No. 2215, at a rate of $1745 per month for the year beginning January 11, 2014. The 2014 lease, which she attached as an exhibit to her complaint, consisted of 18 pages, including a 5-page form contract personalized with names, dates, and dollar amounts, which was followed by 13 pages of various addenda that addressed other details of her tenancy, such as her right to keep pets on the property. Kopnick sued four entities, but the 2014 lease she attached to her complaint disclosed that only one of them, Hawthorne House LP, contracted with her. Therefore, for purposes of this appeal, we will refer to the single entity Hawthorne House as Kopnick‘s landlord, and, to the extent we can, disregard her references to JL Woode Management Company, LLC; JL Woode Ltd., LLC Exist (sic), and JL Woode, Ltd., d/b/a Hawthorne House.
¶ 3 Kopnick alleged that on November 11, 2014, Hawthorne House proposed a lease renewal that would take effect on January 11, 2015, and she attached three pages of the proposed 2015 lease substantiating that the landlord‘s offer to renew was made 61 days before the expiration of the 2014 lease. Kopnick further alleged, without providing details or a supporting exhibit, that on November 19, 2014, 52 days before the expiration of the 2014 lease, she declined to renew her tenancy for another year. She stated that on that same day, the landlord “charged” her $450.32 as an “insufficient notice fee,” although she did not attach an exhibit showing this “charge” or her payment of what she was calling a “penalty” fee for her untimely notice of intent to vacate. Kopnick
¶ 4 In count I, Kopnick alleged the landlord “did not give” her a summary copy of the RLTO, either when offering the 2014 lease or when she executed the 2014 lease, in violation of section 5-12-170 of the RLTO.
¶ 5 In count II, Kopnick alleged that the landlord required 60 days’ notice of her intent to renew or move out at the end of her lease and had “charged” her a daily fee equal to one day‘s rent for each of the eight days that she had not provided timely notice. She alleged that the late notice fee was found in a combination of paragraphs 13 and 31 of the lease, that “Paragraphs 13 and 31 [were] in violаtion of § 5-12-140 of the RLTO,” and that because the late fee was unfair, unscrupulous, and contrary to public policy, it also violated section 2 of the Consumer Fraud Act.
¶ 6 Kopnick‘s final count, count III, consisted to two sentences. She realleged her prior material allegations and added that her landlord‘s “collection of notice fees and the enforcement of their notice fee policy is an unjust retention of a benefit obtained by coercion.” In count III, Kopnick proposed to represent herself and the same class of individuals described in count II.
¶ 7 The day after she filed the complaint, Kopnick filed a motion on December 24, 2014, for class action certification pursuant to section 2-801 of the Code.
¶ 8 Kopnick‘s landlord filed a combined motion to dismiss pursuant to section 2-619.1 of the Code.
¶ 9 Most of the landlord‘s arguments for dismissal were section 2-615 arguments.
¶ 10 After the parties briefed their positions, the court heard oral arguments. Defense counsel argued the merits of the motion and added that Kopnick‘s pleading singled out only paragraphs 13 and 31 of the lease, but it appeared she was relying on paragraph 3 for her conclusory allegation that she was required to give at least 60 days’ notice of her intent to move out and appeared to be relying on paragraph 35 for her conclusory allegation that the landlord was required to give only 30 days’ notice of its intent not to renew someone‘s lease. Thus, the following four paragraphs of the 2014 lease were implicated by the parties’ arguments:
¶ 11 Paragraph 3 of the form lease stated in pertinent part, “This Lease Contract will automatically renew month-to-month unless either party gives at least 60 days *** written notice of termination or intent to move-out as required by paragraph 35. If the number of days isn‘t filled in, at least 30 days notice is required.” (The number “60” had been filled into space provided on the form lease.)
¶ 12 Paragraph 13 set out the consequences of “FAILING TO PAY THE FIRST MONTH‘s RENT,” specifically, “If you don‘t pay the first month‘s rent when or before the Lease Contract begins, all future rent will be immediately due.” The record does not suggest, however, that Kopnick failed to pay the first month‘s rent due under any of the three annual leases she entered into for the apartment or that the landlord sought to enforce paragraph 13 by collecting “the first month‘s rent” and accelerating the due date for the remaining 11 months of any annual lease.
¶ 14 The other paragraph not mentioned in Kopnick‘s pleading, paragraph 35, stated in part:
“MOVE-OUT NOTICE. Before moving out, you must give our representative advance written notice as provided below. Your move-out notice will not release you from liability for the full term of the Lease Contract or renewal term. You will still be liable for the entire Lease Contract term if you move out early ***. YOUR MOVE-OUT NOTICE MUST COMPLY WITH EACH OF THE FOLLOWING: We must receive advance written notice of your move-out date. The advance notice must be at least the number of days of notice required in paragraph 3. Oral move-out notice will not be accepted and will not terminate your Lease Contract.
Your move-out notice must not terminate the Lease Contract sooner than the end of the Lease Contract term or renewal period.
YOUR NOTICE WILL NOT BE ACCEPTABLE IF IT DOES NOT COMPLY WITH ALL OF THE ABOVE. You must obtain from our representative written acknowledgment that we received your move-out notice. We will notify you of our intention not to renew your lease at least thirty days before it expires so long as you are not in default under the terms of your Lease Contract.”
¶ 15 As we indicated above, although she did not specify a particular paragraph, it appears that Kopnick was relying on paragraph (g) of section 5-12-140 of the RLTO, which states that no rental agreement may provide that the landlord or tenant “may cancel a rental agreement at a different time or within a shorter time period than the other party, unless such provision is disclosed in a separate written notice.”
¶ 16 The other RLTO section she specifically relied upon, section 5-12-170, stated in relevant part:
“Summary of ordinance attached to agreement.
The commissioner of the department of planning and developmеnt shall prepare a summary of this chapter, describing the respective rights, obligations and remedies of landlords and tenants hereunder, and shall make such summary available for public inspection and copying. The commissioner shall also, after the city comptroller has announced the rate of interest on security deposits on the first business day of the year, prepare a separate summary describing the respective rights, obligations and remedies of landlords and tenants with respect to security deposits, including the new interest rate as well as the rate for each of the prior two years. The commissioner shall also distribute the new
rate of security deposit interest, as well as the rate for each of the prior two years, through public service announcements to all radio and television outlets broadcasting in the city. A copy of such summary shall be attached to each written rental agreement when any such agreement is initially offered to any tenant or prospective tenant by or on behalf of a landlord and whether such agreement is for a new rental or a renewal thereof. Where there is an oral agreement, the landlord shall give to the tenant a copy of the summary.” Chicago Municipal Code § 5-12-170 (amended Nov. 17, 2010).
¶ 17 Also relevant here is that if a tenant establishes in a civil proceeding that the landlord violated section 5-12-170, the tenant is entitled to recover $100.00 in damages (
¶ 18 As oral arguments continued, Hawthorne House‘s counsel pointed out that rather than imposing a shorter time period on one of the parties as Kopnick had alleged, (1) lease paragraph 3 actually required “either party” to give at least 60 days’ notice and (2) that the figure “60” was typed onto the form contract above the preprinted statement “If the number of days isn‘t filled in, at least 30 days notice is required,” which counsel argued was significant because Illinois authority indicates a typed portion prevails over a printed portion of a contract. Furthermore, Kopnick had alleged the landlord gave her 61 days’ notice, which was an allegation the landlord was actually in compliance with the 60 day requirement imposed on both parties.
¶ 19 With regard to count I, Kopnick‘s attorney then argued that the 2014 lease attachment that might appear to be the required RLTO summary was only a partial summary, which was insufficient. Counsel offered to amend count I in order to correct the allegation that there was “no summary” to state there was “no full summary” attached to the lease. With regard to counts II and III, Kоpnick‘s attorney admitted that his client never paid the “charge” and contended she was deliberately not paying it to avoid waiving her legal claims due to the voluntary payment doctrine. Counsel also argued that even without payment, “we‘ve established actual damages in the complaint.” He further argued, however, “we can re-plead to make that more clear if Your Honor would like, but if we‘re asking solely for injunctive relief [to stop the ‘further charging or collection of late notice fees‘], then we don‘t need to establish actual damages in the complaint.” Also, “if Your Honor wants us to plead in more particularity every single way in which the Defendants are going about trying to collect this sum from the Plaintiff, we can.” Counsel next argued that it was Hawthorne House‘s “policy” to hold itself only to 30 days notice, while holding Kopnick to a 60 day requirement, аnd that this discrepancy was “an unfair business practice.”
¶ 20 At the conclusion of oral arguments, the court granted the dismissal motion on the basis of section 2-615 and did not reach the section 2-619 argument. Despite counsel‘s statement at the hearing that the landlord‘s attachment to the 2014 lease was only a partial and insufficient summary of the RLTO, the trial court found, as a matter of law, that the attachment satisfied section 5-12-170 of the RLTO. The trial court said:
“It‘s there. It‘s there by your exhibit, it‘s there — you can call it a half a summary, you can call it a, you know, a partial summary, you can call it not an
updated summary, it‘s there. It‘s attached. I can‘t wish that away, it‘s there. So Count 1 I have to dismiss, and it‘s dismissed with prejudice. Because you can‘t un-plead your way out of that, you can‘t un-ring the bell, it‘s there. You said it‘s not there, it is there, and I think the Defendant‘s motion is well founded on that provision, because it‘s attaсhed.”
With regard to Count II‘s allegations of consumer fraud, the court found that paragraph 3 of the lease prominently imposed a 60-day notice period for both parties and that because Kopnick had not paid the “charge” or fee, she had no actionable damages. The court also found that Kopnick could not maintain the claim of unjust enrichment set out in Count III, given that “She didn‘t lose any money, nobody got hurt.” The trial court entered a written order disposing of the claims with prejudice and this appeal followed.
¶ 21 A dismissal pursuant to section 2-615(a) is reviewed de novo. Reynolds, 2013 IL App (4th) 120139, ¶ 25, 988 N.E.2d 984. A section 2-615(a) argument for dismissal attacks the legal sufficiency of the complaint based on defects apparent on its face. Reynolds, 2013 IL App (4th) 120139, ¶ 25. A section 2-615(a) argument poses the question of whether the facts alleged by the plaintiff, viewed in the light most favorable to the plaintiff, and all reasonable inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon which relief may be granted. Reynolds, 2013 IL App (4th) 120139, ¶ 25. A cause of action should not be dismissed with prejudice pursuant to section 2-615(a) unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover. Reynolds, 2013 IL App (4th) 120139, ¶ 25. When ruling on a section 2-615 motion, the court may consider (1) facts apparent from the face of the pleadings, (2) matters subject to judicial notice, and (3) judicial admissions in the record. Reynolds, 2013 IL App (4th) 120139, ¶ 25 (citing Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005), and Thurman v. Champaign Park District, 2011 IL App (4th) 101024, ¶ 8, 960 N.E.2d 18).
¶ 22 Applying this standard to the dismissal of count I, we find that the ruling was in error. Contrary to the trial court‘s finding, it is apparent from the face of the lease attachment that it is not the RLTO summary described and mandated by section 5-12-170 of the RLTO.
¶ 23 Moreover, the omitted sections offer significant protection to tenants, and their absence from the summary that was attached to Kopnick‘s complaint is not in keeping with the ordinance‘s stated purpose. The omitted sections of the RLTO spell out some of the landlord‘s duties, such as giving the tenant notice of code citations issued against the property. The omitted sections also describe tenant remedies for minor and mаjor defects, including withholding rent and terminating the lease. The omitted sections also describe the potential consequences of either parties’ failure to perform their duties, such as the landlord‘s failure to provide utilities and the tenant‘s failure to timely pay the rent.
¶ 24 These omissions are significant because the City Council (1) expressly provided in section 5-12-010 that the RLTO is to be “liberally construed and applied to promote its purposes and policies” and (2) said “[i]t is the purpose of this chapter and the policy of the city, in order to protect and promote the public health, safety and welfare of its citizens, to establish the rights and obligations of the landlord and the tenant to the rental of dwelling units, and to enсourage the landlord and the tenant to maintain and improve the quality of housing.”
¶ 25 We are not concluding that Kopnick adequately alleged a cause of action based on the RLTO. We have no way of knowing whether she is capable of pleading a compensable RLTO violation and, more importantly, proving a compensable RLTO violation. We have no opinion as to whether she was actually given a full summary of the RLTO but attached only part of the document to her complaint. Nevertheless, our brief comparison of the RLTO‘s plain language to the 2014 lease attachment suggests that the trial court misconstrued the attachment and its significance in the proceedings when the сourt said to Kopnick‘s attorney, “you said it‘s not there, it is there.”
¶ 26 We are mindful of the principle that when statutory or ordinance language is clear, we are to apply the language as it was written without resort to further aids of construction. Alternate Fuels, 215 Ill. 2d at 238 (citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)). However, our interpretation of the plainly worded municipal ordinance is bolstered by our consultation to the actual RLTO summary that is available on the
must be attached to every written agreement and also upon initial offering for renewal.” (Emphasis added.) Thus, our consultation to the document on the government website confirms our conclusion that the two-page summary Kopnick attached to her complaint, which addressed only the initial sections of the RLTO, is not what the City Council intended to be attached to a lease. It bears repeating, however, that we are not finding that Kopnick‘s pleading was sufficient and that we can predict if she is capable of pleading or proving an RLTO violation. We are only concluding that what was attached to Kopnick‘s complaint was not the RLTO summary described and required by section 5-12-170 of the RLTO.
¶ 27 Hawthorne House argues, however, that Kopnick‘s appellate arguments misconstrue sеction 5-12-170 and that in fact the landlord complied with every requirement placed upon it by section 5-12-170. In order to address the landlord‘s argument, we return to the language of section 5-12-170. As quoted fully above, section 5-12-170 imposes four obligations on the commissioner of Chicago‘s department of planning and development and one obligation on landlords. The first obligation is that the commissioner “shall prepare a summary of this chapter” of the Municipal Code of Chicago, “describing the respective rights, obligations and remedies of landlords and tenants hereunder.”
¶ 28 Based on this language, we agree with the landlord‘s contention that section 5-12-170 describes two “separate” summaries, the first of which concerns “this chapter” (the RLTO sections), and the second of which concerns security deposits. However, we are not persuaded that the landlord‘s only obligation is to provide the security deposit summary with each oral or written lease. According to the landlord‘s reading of section 5-12-170, the RLTO summary need only be made available by the commissioner for public inspection and copying. Continuing to parse the ordinance language, the landlord argues the separate security deposit summary is to be publicized by the commissioner through radio and television broadcasts and distributed by landlords as an attachment to every offer to lease or еvery executed lease. The landlord emphasizes that section 5-12-170 next states “[a] copy of such summary shall be attached,” which is a single summary and that section 5-12-170 does not literally say “[a] copy of [these summaries] shall be attached” or “[a] copy of [each] such summary shall be attached.”
¶ 29 We disagree with Hawthorne House‘s interpretation of section 5-12-170 for several reasons. One reason is that the City Council gave section 5-12-170 the title “Summary of ordinance attached to rental agreement,” demonstrating the intention of the legislating body that information about the “ordinance,” not just information about security deposits, is to be “attachеd to [every] rental agreement.”
“Summary of ordinance attached to Rental Agreement. The Commissioner of the Department of Housing shall prepare a summary of this chaptеr, describing the respective rights, obligations and remedies of landlords and tenants hereunder, and shall make such summary available for public inspection and copying. A copy of such summary shall be attached to each written rental agreement when any such agreement is initially offered to any tenant or prospective tenant by or on behalf of a landlord and whether such agreement is for a new rental or a renewal thereof. Where there is an oral agreement, the landlord shall give the tenant a copy of the summary.”
Chicago Municipal Code § 5-12-170 (added at Chi. City Clerk J. Proc. 33795 (Sept. 8, 1986) (formerly Ordinance No. 192.1-7)).
¶ 30 It was only subsequently, in 1997, that the City Council amended section 5-12-170 by inserting the language regarding security deposits (
¶ 31 Accordingly, the 2014 lease exhibit indicates two things to this court. First, because exhibits become part of a pleading and prevail over the allegations (Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 18, 983 N.E.2d 1044), the presence of the summary overcame Kopnick‘s allegation that there was no summary attached to her 2014 lease. In effect, Kopnick pled that an RLTO summary was attached to her 2014 lease, which is not actionable. There is a principle that courts are to construe pleadings liberally with a view toward doing substantial justice between the parties (Cole v. Guy, 183 Ill. App. 3d 768, 773 (1989)), but that principle does not cоrrect or replace defective allegations. When Kopnick effectively pled that a RLTO summary was attached to her 2014 lease, she did not plead facts sufficient to state a cause of action upon which relief may be granted pursuant to the RLTO and she gave the trial court reason to dismiss Count I as factually deficient.
¶ 32 Second, Kopnick‘s allegations were insufficient to show that liability may attach. However, the exhibit suggests that Kopnick might be capable of pleading an ordinance violation and that the “with prejudice” portion of the ruling is contrary to the principle that “a cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006); Reynolds, 2013 IL App (4th) 120139, ¶ 25. The Code begins with the statement: “[t]his Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.”
¶ 33 Kopnick next argues that the RLTO summary attached to her 2014 lease should have been contained the most current security deposit information in order to comply with the RLTO, but it did not. She presents this argument for the first time in her appellate reply brief. As a court of review, we will not consider arguments that were never made in the trial court. Baker v. Collins, 29 Ill. 2d 410, 415 (1963) (indicating that theories which were not raised in the pleadings or considered by the trial court will not be considered on appeal); Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 534 (1994) (indicating it is well established that “issues not raised in the trial court may not be raised for the first time on appeal“). See also
¶ 34 Our review of counts II and III, however, lead us to conclude that those counts were properly dismissed with prejudice. Both counts (“VIOLATIONS OF THE ILLINOIS CONSUMER FRAUD ACT” and “UNJUST ENRICHMENT“) concern Kopnick‘s purported “double rent” obligation, which is the term she coined for the simultaneous obligation to pay her current month‘s rent and the late notice fee. Kopnick, however, paid only her normal monthly rent obligation and did not pay the $450.32 “charge” for giving insufficient notice of her intent to vacate the apartment. In count II, Kopnick sought a permanent injunction in order to halt the landlord‘s “unfair and deceptive” “policy of charging double rent” and “policy of including [language to thаt effect in its form lease].” Count II fails because precedent indicates that Kopnick‘s “failure to allege specific, actual damages precludes a claim relying on the Consumer Fraud Act.” Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 911 N.E.2d 1049 (2009) (indicating that the Consumer Fraud Act provides remedies for purely economic injuries and that emotional damages are not compensable); Xydakis v. Target, Inc., 333 F. Supp. 2d 686, 688 (N.D. Ill. 2004) (indicating that the Illinois legislature “made it clear that only parties actually harmed by *** a violation [of the Consumer Fraud Act] could bring a private action“). Mere ” ‘aggravation and inconvenience’ ” is not compensable under the statute. Xydakis, 333 F. Supp. 2d at 688 (quoting Roche v. Fireside Chrysler-Plymouth, Mazda, Inc., 235 Ill. App. 3d 70, 86 (1992) (when car dealer failed to sell consumer “the new Laser based on the terms of the original agreement or to return her used car or the equity in it, a direct violation of the Consumer Fraud Act occurred and resulted in damage to plaintiff“). The cited cases
¶ 35 Kopnick does not argue the sufficiency of the allegations she set out in Count III, which consisted of only two sentences. The first sentence stated, “85. Plaintiff restates and re-alleges paragraphs 1-80 *** as if fully set forth herein.” The second sentence read, “86. Defendants’ collection of notice fees and the enforcement of their notice fee policy is an unjust retention of a benefit obtained by coercion.” In any event, Kopnick‘s failure to tender the late notice fee to her landlord means she cannot sustain a claim for unjust enrichment on the basis of the unpaid “charge.” Unjust enrichment occurs where one person has received money under such circumstances that in equity and good conscience he ought not retain. Cohon v. Oscar L. Paris Co., 17 Ill. App. 2d 21, 149 N.E.2d 472 (1958). Because Kopnick
¶ 36 Based on the above, we (1) reverse the trial court‘s denial of leave to amend the allegations of a violation or violations of the RLTO, (2) remand for further proceeds as to the RLTO claim only, and (3) affirm the trial court‘s ruling as to the other claims.
¶ 37 Affirmed in part, reversed in part, and remanded.