FIRST DIV ISION FEBRUARY 19, 2008

No. 1-06-2066

LARI SSA WIL

LI S, ) Appeal from the ) Circuit Court of Plaintiff and Counte

rdefen dant-Ap pellant, ) Co ok Co un ty.

) v. ) No. 04 M1 161956 ) NAICO REAL

ESTATE PROPERTY AND ) MANAGEMENT CORPORATION, ) Honorab le ) Francis J. Dolan, Defendant and Counterplaintiff-Appellee. ) Judge Presi ding.

JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: 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 he r security de

posit and

annua l int erest on it under the Re siden tial Landlor d Tenan t Ordi nance o f the C ity of Ch icago (RLT O). I

n addition , judgme

nt was en tered in favor of the defe ndant lan dlord, Na ico Real E state Property and Mana

gement Corporation, in the amount of $788 based on its counterclaim for one month's rent. Thereafter, the cour t awarded $4,332.20 in attorney fees to plaintiff and $3,582.75 in attorne y f ees to de fendant

. 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 alleg ed that a certain lease provision rega rding attorney

fees for the landlord was not enforce able; and (2) whether the trial court properly allowed defendant to recover attorne y fees. A lthough defendant has not filed a brief in response, we may proceed under the principles set forth in First Capitol1-06-2066

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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 e ntered into a written lease agre ement on June 1, 1997 , for an a

partmen t at 4849 We st Jackson B oulevar d in Chicago. As par

t of the le ase agreement, plaintiff paid a secur ity deposit in the amount of $1,576. The lease was for a rental term of one ye ar, which was renewed annually , and the monthly rent was se t 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 he r security de

posit and for failing to pay annual interest on it. On October 28, 2004, defendant filed a counterc laim, including count I, which alleg ed that plaintiff breached her lease ag reement and owed rent from June 1, 2004, through July 12, 2004, pursu ant to the le ase agre ement . Defen dant a lso cl aimed damages resul ting fr om pl ainti ff's possession of the apartment, costs, and attorney fees pursuant to paragraph 25( B) of the lease, which provided:

"Tenan t shal l pay Lessor all Less or's co sts, expe nses a nd att orney's fees in a nd about the enfor

cement o f the cov enants a nd agr eements of this Lease." On July 18, 2005, plaintiff filed a second amende d complaint including count IX, which alleged that defendant, in filing its counterc laim, attempted to enforce an illegal lease pr ovision to obtain attorney fe es in violation of the RLTO. On November 22, 2005, plaintiff filed a motion for summary judg

ment on count IX, arg

uing that paragraph 25(B ) of the lease violated the RLTO in that it r equired the tena nt to pay all of the lessor' s costs, expenses, a nd attorney

fees in enforc ing the l ease. Pla

intiff re lied on se ction 5-1 2-140(f ) of the RL

TO, which provide s:1-06-2066

- 3 - "Except as otherwise specifically provided by this chapter, no re

ntal agreement may

provide that the la ndlord or tenant: * * * Agrees that in the event of a lawsuit arising out of the tenancy

the tenant will pay the landlord' s attorney’s fe es except as p rovided for b y court rules, stat ute, or ordi nance." Chicago Municipal Code §5-12-140(f) (amende d November 6, 1991). Defend ant filed a section 2-615 mot

ion to dismis s count I

X (735 I LCS 5/2 -615 (Wes t 2004)), c ontending

that sec tion 5-12- 180 of the RLTO p rovides f or a land lord, if h e is a prevailing plaintiff, to be awarded all cour t costs and reasonable attorney fees. Section 5-12-180 provides : "Except in cases of forcible entry and detainer actions, the prevailing plaintiff in any action arising out of a landlord's or tenant' s applica

tion of the

rights or remed

ies made availab le in this ordinanc e shall be

entitled t o all cour t costs an d reasonable attorney’s f

ees." Chicago Municipal Code § 5-12-180 (a mended November 6, 1991). In re sponse, p laintiff

contende d that section 5-12- 180 of the RLTO d id not appl

y be cause defendant alleged a common law br each of the lease, not a claim under the RL TO. The trial court granted defendant' s motion to dismiss count IX with prejudice on April 11, 2006, stating that, "[c]ount IX of plaintiff's complaint on its face and in substance is not a claim for relief, regardless of its merits."1-06-2066

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As noted, following

a jury trial, jud gment w as enter

ed in favor of pla

intiff on c ounts I through VII

I of her third amende d complaint in the amount of $3,395, and in favor of defendant on count I of its cou ntercla im in the amount of $78 8. In this orde r, the tri al court

expressly granted both parties leave to file a pe tition for attorney fe es and respective responses. Both par ties then f iled petit ions for a ttorney fees. Pla intiff ar gued th at she wa s entitled to attorne y f ees purs uant to se ction 5-1 2-180 of t he RL TO. Def

endant a rgued that it als o was a prevailing plaintiff entitled to attorney fees pursuant to section 5-12-180 of the RL TO and paragraph 25(B) of

the lease. On July 7, 2006, the trial court found f or plaintiff on her petition for attorney

fees in the amount of $4,332.20 pursuant to section 5-12-180 of the RL TO, and found for defenda nt on its petition for

attorne y f ees in the amount of

$3,582.75 pursuant

to paragraph 25(B) of

the lease. On app eal, p laint iff ma intai ns th at the trial court shoul d not have gra nted d efenda nt's section 2 -615 motion to dismiss c ount I X of her second a mended c omplaint. S he conte nds that a factually suff

icient cause of action was presented in count I X because she stated that parag raph 25(B) o f the lea se was a

n illega l provision

under se ction 5-1 2-140(f ) of the RL

TO. She a

lso maintains that since

defenda nt’s coun terclai m was an a

ttempt to e

nforce an illeg al lease provision, she was entitled to recover two months’ rent under section 5-12-140( f) of the RLTO. A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defec ts appar ent on its f

ace. 73 5 ILCS 5/2-615 (

West 2004) ; Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429 (2006). I n order for a complaint to be legally sufficient, it must set forth a legally recognized clai m "upon which relief can be grant ed." Winfrey v. Chicag o Park District , 274 Ill. App. 3d 939, 943 (1995). I f the complaint fails to do this, there is no recourse at law for the injury alleg ed, and the complaint must be dismissed. Winfrey , 274 I ll. Ap p. 3d a t 943. We review t he circ uit court' s grant

of a section 2-615 motion to dis miss de novo

. Marshal l , 222 I ll. 2d at 429.1-06-2066

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When reviewing the sufficiency of a complaint, we construe the allegations in the lig ht most favorable to

the plain tiff and a ccept a s true all

well-ple aded fa

cts and a ll reason able inferences that may

be drawn from those facts. Marshal l , 222 Ill. 2d at 429. In this case, count I

X actually is plaintiff’s stand a gainst defendant’s counterclaim for attorney fe es, and not a claim for relief. See ge nerally 735 I

LCS 5/2-608(d) (West 2004) (providing for answers to countercla ims). Since count IX does not set forth a leg ally recog nized cause of action, there is no recourse a t law, and the count must be dismissed. Winfrey , 274 I ll. App. 3d at

943. Ther

efore, the trial

court pr operly grante d defend

ant’s se ction 2-6 15 motion to dismiss whe

n it found t

hat count IX " in substan

ce is not a claim for relief, regar

dless of it s merits." Second, plaintiff contends that the trial court’s award of attorne y fees to de fendant based on paragraph 25(B) of

the lease must be reversed because paragraph 25(B) is invalid and unenforceable because it violates sec tion 5-12-140(f) of the RLTO. The Illinois Supreme Court has stated, "[a]part from statute, there is, of course, no right on the part of the successful party to recover ‘attorney ’s’ fees and the ordinary expenses and burdens of litigation.’ [Citation.]” 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's c ounterclaim alleges a breac h of contract and does not address the RL TO specifically , section 5-12-180 of the RLTO states that any preva iling plaintiff in any a

ction arising out of a landlord's or tenant' s application of the rights or remed

ies made availab le in this or

dinance is entitle d to all co

urt costs a

nd reasonable attorne y f ees. In interpreting a

statute or ordinance, the primary goal is to ascertain and give af fect to the intent of the legislature. Barnett v. Zion Park District , 171 Ill. 2d 378, 388 (1996). L egislative intent is best demonstrated by the plain lang uage of the statute. Barnett , 171 Ill. 2d at 389.1-06-2066

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Where the

langua ge is cl ear and

unambig uous, a re viewing court ma y no t depart

from its pl ain meaning by

reading into it exceptions that the legislature did not express. Kraft, Inc. v. Edg ar , 138 Ill. 2d 178, 189 (1990). In this case, although the la nguage of section 5-12-180 of the RLTO entitles any prevail ing plai

ntiff to be awarde d attorne

y f ees ( Meyer v. Cohen , 260 Ill. App. 3d 351, 363 (1993)), defendant's counterc laim is for breach of contract, a common law c laim. The fee and cost provision relied on by def endant, section 5-12-180 of the RLTO, a pplies only to actions arising out of "the rights or reme dies made available in this ordinance ." (Emphasis added.) Chicago Municipal Code §5-12-180 (amended Novembe r 6, 1991). Defendant does not cite or rely on the RLTO in its counterclaim. I t cites and relies on a provision of the lease, paragraph 25( B). The counterclaim has nothing to do with "r ights or remedies made available in this ordinance." Section 5-12-140(f) of the RLTO e xpressly prohibits and makes "unenf orceable" any lease provision that requires a tenant to "pay the landlord's attorney

fees" in a lawsuit arising out of the tenancy--which this lawsuit does. To hold otherwise would render section 5-12-140(f ) meaningless. The

obvious pu

rpose of the ordinance is t

o protect tenants w

ho find the

mselves in a lawsuit arising out of their tenancy

. In 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 5-12-140(f) of the RLTO as noted. For the foregoing r

easons, we affirm the judgment of the circ uit court as to the dismissal of count IX of plaintiff' s complaint and reverse the trial court's judg ment awarding attorney

fees to defendant in the amount of $3,582.75. Affirme d in part a

nd rever sed in par t. WOLFSON and GARCI

A, JJ., concur.1-06-2066

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