KEN MAYLE, ANTONIO CLARK, TONY SISILLIANO, ZACHARY BLEWS, аnd PHIL BOBROFF, Plaintiffs-Appellants, v. URBAN REALTY WORKS, LLC; 660 LAKE LLC; DEMETRIOS KOULIOUFAS; HARRY KOULIOUFAS; IRENE KOULIOUFAS; ANTHONY ROUCHES; ERIC JOHNSTONE; and BAY-RON PARKER, Defendants (Urban Realty Works, LLC, Demetrios Koulioufas, Irene Koulioufas, Harry Koulioufas, Anthony Rouches, and Eric Johnstone, Defendants-Appellees).
No. 1-21-0470
Appellate Court of Illinois, First District, Third Division
March 23, 2022
2022 IL App (1st) 210470
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.
¶ 1 In 2013, plaintiffs Ken Mayle, Antonio Clark, Tony Sisilliano, Zachary Blews, and Phil Bobroff were evicted from their Chicago apartment. In the course of the eviction process, plaintiffs allege that several of the defendants unlawfully entered the premises and disposed of
BACKGROUND
¶ 2 ¶ 3 As noted, this is the second time this case has been before us. Since almost all of the relevant facts occurred prior to the first appeal, we take our facts from our prior opinion except where we supplement them with facts occurring subsequent to the issuance of that opinion.
¶ 4 On June 22, 2017, plaintiffs filed an 11-count complaint against defendants Urban Realty Works, LLC (Urban Realty Works); 660 Lake, LLC (660 Lake); Demetrios Koulioufas, Harry Koulioufas,1 Irene Koulioufas, Anthony Rouches, Eric Johnstone, and Bay-Ron Parker. The complaint alleged that, in September 2012, plaintiffs moved into an apartment on Lake Street in Chicago, which was owned by Chicago Title Land Trust Company as trustee under trust number 1090074, dated June 23, 1987.2 According to the complaint, defendants Demetrios
¶ 5 The complaint alleged that, on July 31, 2013, defendants Urban Realty Works and Parker served a five-day notice on “‘Josh and all occupants‘”3 of the apartment; the complaint alleged that “[d]efendants, individually or through their agents,” unlawfully entered the premises to serve plaintiff Clark with the notice. Prior to receiving the notice, plaintiffs paid $1600 per month to defendant Demetrios Koulioufas.
¶ 6 The document titled “Landlord‘s Five Day Notice,” which was attached to plaintiffs’ complaint, was directed to “Josh and all occupants” and provided:
“YOU ARE HEREBY NOTIFIED that your tenancy of the following premises, to wit:
The property at [the Lake Street address] together with all buildings, sheds, closets, out-buildings, garages and other structures used in connection with said premises, will terminate on August 7th, 2013, and you are now hereby required to surrender possession of said premises to the undersigned on that day.”
¶ 7 Count I of the complaint was against all defendants and alleged that defendants violated section 5-12-060 of the RLTO (
¶ 8 Counts II through VI were by each plaintiff against all defendants, and all alleged that defendants violated section 5-12-160 of the RLTO (
¶ 10 On October 23, 2017, defendant Rouches filed a motion to dismiss counts I through VI of the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (
¶ 11 On November 15, 2017, defendant Johnstone filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code (
¶ 12 On November 30, 2017, the Koulioufas defendants filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code, claiming that counts I through VI should
¶ 13 On January 17, 2018, the trial cоurt entered an order dismissing counts I through VI with prejudice based on the statute of limitations. The court further struck counts VII through XI with leave to replead them.4
¶ 14 On March 13, 2018, plaintiffs filed an amended complaint, adding a number of factual allegations. Counts I through VI of the amended complaint were identical to the previously dismissed counts I through VI of the original complaint, repleaded to preserve them for appeal. Counts VII through XI were also identical to the prior versions of those counts, other than incorporating the additional factual allegations. The amended complaint also included the same exhibits as the original complaint, namely, the “Landlord‘s Five Day Notice,” the cancelled checks, and the lists of personal property.
¶ 15 On April 11, 2018, defendant Johnstone filed a motion to dismiss the amended complaint pursuant to section 2-615 of the Code, claiming that the allegations of the complaint directed at him merely set forth conduct that was consistent with the usual, lawful conduct of the agent for the purchaser of a property and that plaintiffs had failed to set forth any allegations that would subject him to liability.
¶ 17 Attached to the Koulioufas defendants’ motion to dismiss, in support of their section 2-619 motion, were the affidavits of the three Koulioufas defendants, in which they averred that they never retained defendant Urban Realty Works in connection with the property; they never engaged or asked defendants Rouches, Johnstone, or Parker to deal in any way with any person at the property; they never asked anyone to serve any notices concerning the property; and they never removed any personal property from the property and never asked anyone to do so. The Koulioufas defendants further averred that plaintiffs never informed any of them that plaintiffs’ personal property had been taken and never made a demand for the return of any such property.
¶ 18 On April 23, 2018, defendant Rouches filed a combined motion to dismiss the amended complaint, claiming that counts VII through XI should be dismissed pursuant to section 2-615 of the Code because any specific allegations directed at Rouches merely described conduct that was consistent with the usual, lawful manner of a real estate sale and the allegations related to the alleged removal of plaintiffs’ personal property were vague and insufficient to impose liability on Rouches.
¶ 19 On June 27, 2018, the trial court entered an order granting the motions to dismiss based on section 2-615 but granted plaintiffs leave to file an amended complaint.
¶ 21 The second amended complaint alleged that, in June 2013, plaintiffs noticed defendants Rouches and Johnstone at the building in which the apartment was located (the property). They advised plaintiff Bobroff that defendant Harry Koulioufas “was ‘gone,’ that the Property had been sold and that Plaintiffs had ‘had a good run, but it‘s over.‘” They also advised plaintiff Bobroff that plaintiffs would be required to vacate the apartment by August 1, 2013. Plaintiffs informed defendants Rouches and Johnstone that they needed more time to vacate the apartment. Defendants Rouches and Johnstone also asked plaintiffs to allow architects into the apartment, which plaintiffs permitted.
¶ 22 The second amended complaint alleged that, in July and August 2013, defendants Rouches, Johnstone, and Parker had meetings in the closed restaurant with several of the plaintiffs individually. During those meetings, defendants Rouches and Johnstone “made vague offers to Plаintiffs about offering assistance to Plaintiffs to move.” They stated that they would not
¶ 23 The second amended complaint alleges that, during his meeting, defendant Parker told plaintiff Mayle that any discussions about his being able to remain in the apartment needed to take place with defendant Johnstone. Defendant Parker later told plaintiff Mayle that he had discussed the situation with defendants Johnstone and Rouches and they had decided to evict plaintiffs.
¶ 24 The second amended complaint alleged that, on July 31, 2013, defendants Urban Realty Works and Parker served a “Landlord‘s Five Day Notice” on “‘Josh and all occupants‘” of the apartment; defendant Rouches was present when the noticе was delivered. However, no one named “Josh” resided in the apartment, and plaintiffs did not know anyone named “Josh.” On the same day, plaintiffs Clark and Sisilliano observed defendant Parker break down the front door of the apartment. Also on July 31, 2013, “Defendants moved several people who were strangers to Plaintiffs,” including defendant Parker, into the apartment. The people moving into the apartment told plaintiff Mayle that they were being paid by defendant Johnstone. Shortly thereafter, defendant Johnstone came to the property and told plaintiff Mayle that Mayle “had to ‘get out’ of the Apartment.”
¶ 26 The second amended complaint alleged that on August 6, 2013, plaintiff Bobroff returned to the apartment to find that “Defendants” had caused his personal belongings to be removed from the apartment and left out in the rain. “Defendants” also caused the steel door dividing plaintiff Bobroff‘s portion of the apartment from the rest of the space to be locked and placed a mechanical device on the door to prevent it from being opened. The second amended complaint alleged that defendant Parker “and his associates physically prevented Plaintiffs from having full access to the Apartment.” On the same day, defendant Rouches called plaintiff Mayle at least four times. The next day, defendant Rouches also sent plaintiff Mayle several text messages.
¶ 27 The second amended complaint alleged that on August 9, 2013, defendant Rouches sent plaintiff Mayle a text message indicating that the locks would be changed and asking whether “‘almost everyone [was] out.‘” On the same day, “[d]efendants” caused all of the personal property in the apartment belonging to plaintiff Blews to be removed frоm the apartment and thrown into the garbage. On August 10, 2013, “Defendants” caused the locks to the apartment
¶ 28 The second amended complaint alleged that on August 9, 2013, the trust that owned the property conveyed ownership of the property to defendant 660 Lake and that, at the time the majority of plaintiffs’ personal property was removed, the trust still held legal title to the property. The second amended complaint alleged that, on information and belief, defendant Johnstone was a member and the registered agent of defendant 660 Lake. The second amended complaint further alleged that, on information and belief, defendant Rouches was the manager and a member of defendant Urban Realty Works. The amended complaint alleged that defendants Rouches, Johnstone, and Parker “acted in furtherance of the plan to remove Plaintiffs from the Apartment so that the Apartment would be vacant.” Finally, the amended complaint alleged that on August 22, 2013, “Defendants” caused plaintiffs’ remaining personal property to be removed from the apartment and thrown into the garbage.
¶ 29 The second amended complaint again repleaded counts I through VI to preserve them for appeal. As with the amended complaint, the second amended complaint also realleged the allegations of counts VII through XI, with the only change being the incorporation of the additional factual allegations as set forth above.
¶ 31 On October 2, 2018, the Koulioufas defendants filed a combined motion to dismiss counts VII through XI of the second amended complaint, claiming that the second amended complaint failed to cure the defects of the prior pleadings and should be dismissed under section 2-615 of the Code. They also claimed that the second amended complaint should be dismissed under section 2-619 because their affidavits showed that they were entitled to judgment as a matter of law. In support of their section 2-619 motion, the Koulioufas defendants attached to the motion to dismiss the same affidavits as had been attached to their prior motion to dismiss.
¶ 32 On October 9, 2018, defendant Rouches filed a combined motion to dismiss the second amended complaint, claiming that counts VII through XI of the second amended complaint should be dismissed under section 2-615 because they failed to allege sufficient facts to support a cause of action.
¶ 33 On November 15, 2018, the trial court entered an order dismissing counts VII through XI of the second amended complaint with prejudice with respect to defendants Rouches, Johnstone, and the Koulioufas defendants. On the same day, the trial court entered an order finding defendants Urban Rеalty Works and 660 Lake in default for failure to appear. On February 21, 2019, plaintiffs filed a motion for a default judgment against defendants Urban Realty Works and 660 Lake, and on February 28, 2019, the trial court entered judgment against them with respect to each plaintiff.
¶ 35 On May 15, 2019, plaintiffs filed a notice of appeal. However, on March 26, 2020, we dismissed the appeal for lack of jurisdiction. Mayle, 2020 IL App (1st) 191018, ¶ 46. We found that, despite his lack of participation in the case, the claims against defendant Parker remained pending, meaning that the orders appealed from were not final and appealable unless the trial court first made findings pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), which it did not do. Mayle, 2020 IL App (1st) 191018, ¶¶ 39, 44.
¶ 36 After the case was remanded, plaintiffs again attempted to serve defendant Parker but were unsuccessful. Consequently, on April 21, 2020, the trial сourt entered an order dismissing the claims against Parker pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). On April 26, 2021, plaintiffs again filed a notice of appeal, and this appeal follows.
ANALYSIS
¶ 37 ¶ 38 On appeal, plaintiffs challenge the dismissal of each count of their complaint. In the case at bar, the defendants filed motions to dismiss at various times, most filed pursuant to section 2-619.1 of the Code, which permits a party to file a motion to dismiss based on both section 2-615 and section 2-619 of the Code.
¶ 40 A motion to dismiss under section 2-619 admits the legal sufficiency of all well-pleaded facts but allows for the dismissal of claims barred by an affirmative matter defeating those claims or avoiding their legal effect. Janda v. United States Cellular Corp., 2011 IL App (1st) 103552, ¶ 83 (citing DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006)). When reviewing a motion to dismiss under section 2-619, “a court must accept as true all well-pleaded facts in plaintiffs’ complaint and all inferences that can reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). Additionally, a cause of action should not be dismissed under section 2-619 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78 (2003). As with a section 2-615 motion, for a section 2-619 dismissal, our standard of review is
I. RLTO Counts
¶ 41 ¶ 42 The trial court first dismissed counts I through VI of the complaint, based on violations of the RLTO, because it found that the statute of limitations barred plaintiffs’ claims. Section 2-619(a)(5) provides that a defendant may file a motion for dismissal when an action has not been commenced within the time limited by law.
¶ 44 Section 5-12-060 of the RLTO concerns “Rеmedies for improper denial of access” and provides, in relevant part:
“If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated unreasonable demands for entry otherwise lawful, but which have the effect of harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement pursuant to the notice provisions of Section 5-12-110(a). In each case, the tenant may recover an amount equal to not more than one month‘s rent or twice the damage sustained by him, whichever is greater.”
Chicago Municipal Code § 5-12-060 (amended Nov. 6, 1991).
¶ 45 Section 5-12-160 of the RLTO concerns the “Prohibition on interruption of tenant occupancy by landlord” and provides, in relevant part:
“If a tenant in a civil legal proceeding against his landlord establishes that a violation of this section has occurred he shall be entitled to recover possession of his dwelling unit or personal property and shall recover an amount equal to not more than two months’ rent or twice the actual damages sustained by him, whichever is greater.”
Chicago Municipal Code § 5-12-160 (amended Nov. 6, 1991).
¶ 46 All parties acknowledge that the RLTO does not explicitly provide for a specific statute of limitations for violations of the ordinance. Thus, we look to the Code to provide the appropriate statute of limitations. However, the parties disagree as to which section of the Code is
¶ 47 While there is no case law analyzing the appropriate statute of limitations for violations of sections 5-12-060 and 5-12-160, several courts have considered the issue with respect to certain other sections of the RLTO. Thus, we begin with a discussion of those cases.
¶ 48 Our supreme court discussed the statute of limitations applicable to section 5-12-080 of the RLTO (
“If the landlord or landlord‘s agent fails to comply with any provision of Section[s] 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 at Chi. City Clerk J. Proc. 45,166, 45,168 (May 14, 1997)).
¶ 49 The issue before the supreme court was whether a violation of section 5-12-080 was a “statutory penalty” such that section 13-202 of the Code governed. After finding that section 13-202 applied to ordinances such as the RLTO, the supreme court considered whether a suit allеging a violation of section 5-12-080 constituted an action for damages “for a statutory penalty” such that the two-year statute of limitations applied. The court noted that it had previously defined a “‘penalty’ as ‘in the nature of punishment for the nonperformance of an act or for the performance of an unlawful act.‘” Landis, 235 Ill. 2d at 12 (quoting Hoffmann v. Clark, 69 Ill. 2d 402, 429 (1977)). The court further noted that “a penal statute ‘subjects one person to the payment of a sum of money to another without reference to any actual injury and without requiring him to allege or prove an actual injury.‘” Landis, 235 Ill. 2d at 12-13 (quoting Babcock v. Harrsch, 310 Ill. 413, 417 (1923)). The court identified three factors to determine whether a statute provided for a statutory penalty:
“[A] statutory penalty must: (1) impose automatic liability for a violation of its terms; (2) set forth a predetermined amount of damages; and (3) impose damages without regard to the actual damages suffered by the plaintiff.” Landis, 235 Ill. 2d at 13 (citing McDonald‘s Corp. v. Levine, 108 Ill. App. 3d 732, 738 (1982), citing Hoffmann, 69 Ill. 2d at 429).
By contrast, “a statute is remedial where it ‘imposes liability only when actual damage results from a violation’ and where ‘liability is contingent upon damage being proven by the
¶ 50 In examining the factors, the supreme court found that section 5-12-080(f) provided for a statutory penalty. First, it found that section 5-12-080(f) imposes automatic liability for a violation of its terms, using thе mandatory term “shall” in providing that a tenant “‘shall be awarded‘” damages upon a violation of its terms. Landis, 235 Ill. 2d at 13 (quoting
¶ 51 In its analysis, the Landis court cited two appellate court decisions analyzing other sections of the RLTO: Namur v. The Habitat Co., 294 Ill. App. 3d 1007 (1998), and Sternic v. Hunter Properties, Inc., 344 Ill. App. 3d 915 (2003). While defendants claim that the supreme court did not express its approval of these cases, both cases were cited in support of the proposition that a statute may set forth a predetermined amount of damages if it provides a formula for a
¶ 52 In Namur, as in Landis, the court considered whether section 5-12-080 of the RLTO provided for a “statutory penalty” such that the two-year statute of limitations applied and also engaged in the same analysis with respect to section 5-12-170 of the RLTO, which provided that a tenant “shall be entitled to recover $100.00 in damages” for violation of the section (
¶ 53 The Namur court observed that some portions of the RLTO were remedial because they permitted the recovery of actual damages. Namur, 294 Ill. App. 3d at 1011. As an example, the court pointed to section 5-12-060, which permitted the tenant to recover actual damages for the landlord‘s unlawful entry, up to one month‘s rent, and permitted the landlord to recover actual damages for the tenant‘s refusal to allow lawful access. Id. (citing
¶ 54 The Namur court then considered whether violation of the RLTO was considered a “statutory” penalty under
¶ 55 In Sternic, the appellate court relied on the reasoning in Namur in considering whether violations of sections
¶ 56 The Sternic court noted that the RLTO had been found to contain both statutory penalties and remedial provisions. Sternic, 344 Ill. App. 3d at 918. The court explained that “[p]rovisions are penal when ‘they specify either the amount of damages that can be awarded for violations or the formula by which the amount of damages is to be calculated’ ” (Sternic, 344 Ill. App. 3d at 918 (quoting Namur, 294 Ill. App. 3d at 1011)), while “[p]rovisions are remedial when they permit the recovery of actual damages” (Sternic, 344 Ill. App. 3d at 918 (citing Namur, 294 Ill. App. 3d at 1011)). The Sternic court further noted that, in Namur, that court had found that “section 13-202 does not apply where a plaintiff may recover ‘actual damages and exemplary damages with a cap.’ ” Sternic, 344 Ill. App. 3d at 918 (quoting Namur, 294 Ill. App. 3d at 1012).
¶ 57 Considering the provisions before it, the Sternic court found that “[s]ection 13-202 does not apply here because the damages provided in sections
¶ 58 In the case at bar, after examining the language of the sections at issue and considering the case law interpreting other sections of the RLTO, we agree with plaintiffs that
¶ 59 With respect to section
¶ 60 Additionally, we cannot find that section
¶ 61 We also find unpersuasive defendants’ reading of Landis, which they claim demonstrates that section
¶ 62 Defendants focus heavily on the word “only” contained in the latter quote, claiming that the use of the word represents the supreme court‘s “holding” that a statute may only be considered remedial if liability is exclusively based on proving actual damages. Thus, in their view, if the statute contains any aspect of predetermined damages, the statute as a whole is penal and not remedial. Defendants offer no case law demonstrating that any other court has interpreted Landis in such a way, and we cannot find that this is an accurate reading of the Landis decision.
¶ 63 First, we note that the supreme court itself has not placed the same weight on its use of the word “only” when discussing its own decision. In Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman, 2014 IL 116362,
“A remеdial statute, on the other hand, imposes liability for actual damages suffered by the plaintiff as a result of a violation of the statute. [Citation.] Liability under a remedial statute is contingent upon damage being proven by the plaintiff. [Citation.]” (Internal quotation marks omitted.) Goldfine, 2014 IL 116362, ¶ 32.
Thus, when setting forth the applicable law, the supreme court itself did not even use the word “only,” suggesting that its use is not as critical to the court‘s analysis as defendants claim. We must also note that, in a different context, the supreme court has found that a statute containing a provision including liquidated damages could nevertheless be remedial, further suggesting that defendants’ interpretation of the supreme court‘s holding is overly restrictive. See Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶¶ 29-34 (finding that a provision permitting recovery of actual damages or $500, whichever is greater, in the Telephone Consumer Protection Act of 1991 (
¶ 64 Additionally, defendants’ interpretation of the Landis court‘s discussion of a remedial statute is inconsistent with the opinion as a whole. While the Landis court set forth a brief explanation of what makes a statute remedial, it conducted its actual analysis of the provision before it by applying the three-factor test to determine if it constituted a statutory penalty. Under defendants’ interpretation of the law, the supreme court wоuld not have needed to engage in that analysis at all—it could simply have concluded that the provision was a penalty because it did not impose liability “only” when actual damages resulted from a violation.
¶ 65 In the case at bar, we take the same approach the Landis court did, namely, applying the three-factor analysis to determine whether section
¶ 66 We reach the same conclusion with respect to section
¶ 67 However, even though we have determined that plaintiffs’ RLTO counts are not time-barred, certain defendants claim that dismissal was nevertheless appropriate under section
¶ 68 Before considering this argument, we note that this alternative argument is not applicable to all defendants. In their brief on appeal, only defendants Rouches and Johnstone claim that counts I through VI fail to state a cause of action with respect to them; despite the fact that defendants Rouches, Johnstone, and Urban Realty Works filed a joint appellate brief, there is no claim that counts I through VI fail to state a cause of action against defendant Urban Realty Works. Similarly, while the Koulioufas defendants in their brief “adopt and incorporate by this reference the points and authorities asserted” by the other defendants as to the RLTO counts, the Koulioufas defendants do not specifically claim that counts I through VI fail to state a cause of action against them. Since the arguments made by defendants Rouches and Johnstone are specific to the allegations against them, merely “adopt[ing]” those arguments does not address the adequacy of the specific allegations against the Koulioufas defendants. Accordingly, we consider only whether counts I through VI fail to state a cause of action against defendants Rouches and Johnstone and reverse the dismissal of those counts against the remaining defendants.
¶ 69 We also note that neither defendant Rouches nor defendant Johnstone sought dismissal of the RLTO counts for failure to state a cause of action under
¶ 70 Finally, we must note that, in their brief, defendants Rouches and Johnstone discuss the adequacy of the allegations contained in the second amended complaint when claiming that the RLTO counts fail to state a cause of action. However, the operative complaint at the time the RLTO counts were dismissed was plaintiffs’ original complaint. When those counts were dismissed with prejudice on January 17, 2018, plaintiffs expressly noted in their subsequent amended complaints that “[t]hese Counts are re-pled solely to preserve Plaintiffs’ right to appeal the Court‘s ruling, if necessary.” The RLTO counts were never subject to a
¶ 71 Count I of the complaint was against all defendants and alleged that defendants violated section
“If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated unreasonable demands for entry otherwise lawful, but which have the effect of harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement ***” Chicago Municipal Code § 5-12-060 (amended Nov. 6, 1991).
¶ 72 In the case at bar, defendants Rouches and Johnstone claim that neither was the landlord, and that neither was alleged to have made any unlawful entry into the premises. A “landlord” is defined by section
” ‘Landlord’ means the owner, agent, lessor or sublessor, or the successor in interest of any of them, of a dwelling unit or the building of which it is part.” Chicago Municipal Code § 5-12-030(b) (amended at Chi. City Clerk J. Proc. 91084 (May 12, 2010)).
Count I of the complaint alleges that “[a]t all times relevant hereto, Defendants were ‘Landlords’ and/or ‘Owners’ of the Premises as defined by RLTO Section 5-12-030.”
¶ 73 Counts II through VI were by each plaintiff against all defendants, and all alleged that defendants violated section
“It is unlawful for any landlord or any person acting at his direction knowingly to oust or dispossess or threaten or attempt to oust or dispossess any tenant from a dwelling unit without authority of law, by plugging, changing, adding or removing any lock or latching device; or by blocking any entrance into said unit; or by removing any door or window from said unit; or by interfering with the services to said unit; including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a tenant‘s personal property from said unit; or by the removal or incapacitating of appliances or fixtures, except for the purpose of making necessary repairs; or by the use or threat of force, violence or injury to a tenant‘s person or property; or by any act rendering a dwelling unit or any part thereof or any personal property located therein inaccessible or uninhabitable.” Chicago Municipal Code § 5-12-160 (amended Nov. 6, 1991).
¶ 75 In summary, we reverse the trial court‘s dismissal of counts I through VI of plaintiffs’ complaint with respect to defendant Urban Realty Works and the Koulioufas defendants, because the applicable statute of limitations was five years, not two years. We affirm the trial court‘s dismissal of counts I through VI of plaintiffs’ complaint with respect to defendants Rouches and Johnstone because those counts failed to state a cause of action with respect to those defendants. However, we reverse the trial court‘s designation of the dismissal as being “with prejudice” so that plaintiffs have the opportunity to remedy any defects in their complaint, if they choose to do so.
¶ 76 II. Conversion Counts
¶ 77 Plaintiffs also appeal the dismissal of counts VII through XI of their second amended complaint, which were dismissed for failure to state a cause of action for common-law
¶ 78 With respect to the third element, defendants claim that plaintiffs failed to allege that any particular plaintiff demanded the return of any property from any particular defendant. Plaintiffs’ second amended complaint merely alleges that “Plaintiff *** has demanded possession of the described personal property from Defendants.” There are no allegations in the complaint as to when this demand was made, to whom it was made, or how it was made. Consequently, we agree with defendants that this conclusory allegation is insufficient. However, “[a]lthough ‘demand’ is often cited as [a] necessary element of a conversion action, demand is unnecessary where ‘another independent action of conversion is established.’ ” Fortech, L.L.C. v. R.W. Dunteman Co., 366 Ill. App. 3d 804, 817 (2006) (quoting Pavilon v. Kaferly, 204 Ill. App. 3d 235, 248 (1990)). Thus, no demand is required where the item has been sold to a third party (see Pavilon, 204 Ill. App. 3d at 248) or where the item ceased to exist because it was usеd up by the defendant (see Fortech, 366 Ill. App. 3d at 817). In the case at bar, plaintiffs’ second amended complaint alleges that plaintiff Bobroff‘s personal property was left outside in the rain, while the other plaintiffs’ personal property was thrown into the trash. Thus, the property that was allegedly converted was either disposed of or rendered unusable. Under these circumstances, and in the early pleading stages of the instant litigation,
¶ 79 As to the fourth element, we agree with defendants that there are no allegations identifying who was responsible for the removal of plaintiffs’ personal property from the apartment. Each allegation concerning the removal of the property merely alleges that “Defendants caused” the personal property to be removed. In a case such as this one, with multiple defendants occupying multiple roles, such a conclusory allegation is insufficient to properly allege that any particular defendant asserted wrongful control over plaintiffs’ property. Consequently, the trial court properly dismissed the conversion counts of plaintiffs’ second amended complaint.
¶ 80 We are unpersuaded by plaintiffs’ contention that all of the motions to dismiss were brought prior to the time of any discovery. While a motion to dismiss occurs early in the proceedings, a plaintiff is still required to allege sufficient facts to state a cause of action, even if those facts may not yet be fully developed through discovery. See Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-30 (2006) (while a plaintiff is not required to set forth evidence in the complaint, the plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action, not simply conclusions). Moreover, we note that, in the trial court‘s order granting plaintiffs until August 23, 2018, to file their second amended complaint, the court also ordered written discovery to be issued within 30 days. Indeed, the record shows that the Koulioufas defendants served their initial discovery requests on August 6, 2018, approximately six weeks before the filing of the second amended complaint. Thus, contrary to plaintiffs’ assertion, discovery had, in fact, begun at the time the court dismissed the complaint, even if it was in its early stages. Accordingly, we affirm the trial court‘s dismissal of the conversion counts of plaintiffs’ second amended complaint for failure to state a cаuse of action.
¶ 81 However, we must emphasize that a dismissal under
¶ 82 CONCLUSION
¶ 83 For the reasons set forth above, we affirm in part and reverse in part. We reverse the trial court‘s dismissal of counts I through VI of plaintiffs’ complaint with respect to defendant Urban Realty Works and the Koulioufas defendants because the applicable statute of limitations was five years, not two years. We affirm the trial court‘s dismissal of counts I through VI of plaintiffs’ complaint with respect to defendants Rouches and Johnstone because
¶ 84 Affirmed in part and reversed in part.