Willis v. Naico Real Estate Property and Management Corporation

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State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2066 Rel

Case Date: 02/19/2008

Preview:FIRST DIVISION FEBRUARY 19, 2008

No. 1-06-2066

LARISSA WILLIS, Plaintiff and Counterdefendant-Appellant, v. NAICO REAL ESTATE PROPERTY AND ) MANAGEMENT CORPORATION, Defendant and Counterplaintiff-Appellee.

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Appeal from the Circuit Court of Cook County. No. 04 M1 161956 Honorable Francis J. Dolan, Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court: Following 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's rent. Thereafter, the court awarded $4,332.20 in attorney fees to plaintiff and $3,582.75 in attorney fees to defendant. On 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

1-06-2066 Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We affirm in part and reverse in part. The 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. On 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 plaintiff's possession of the apartment, costs, and attorney fees pursuant to paragraph 25(B) of the lease, which provided: "Tenant shall pay Lessor all Lessor's costs, expenses and attorney's fees in and about the enforcement of the covenants and agreements of this Lease." On 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's costs, expenses, and attorney fees in enforcing the lease. Plaintiff relied on section 5-12-140(f) of the RLTO, which provides:

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1-06-2066 "Except as otherwise specifically provided by this chapter, no rental agreement may provide that the landlord or tenant: *** Agrees that in the event of a lawsuit arising out of the tenancy the tenant will pay the landlord's attorney's fees except as provided for by court rules, statute, or ordinance." Chicago Municipal Code

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