SECOND DIVISION 										June 25, 2002

No. 1-01-0849

MARGARET and LOREN VANDERPLOW,

	Plaintiffs-Appellants,

		v.

JERRY and STACY KRYCH,

	Defendants-Appellees.  

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Appeal from the

Circuit Court of

Cook County

00 M1 124189

Honorable

Donald J. Suriano,

Judge Presiding

	JUSTICE McBRIDE delivered the opinion of the court:

	Plaintiffs Margaret and Loren Vanderplow filed a five-count

first amended complaint in the circuit court of Cook County against

their former landlords, defendants Stacy and Jerry Krych, alleging 

breach of contract and violations of the Chicago Residential

Landlord and Tenant Ordinance (Chicago Municipal Code § 5-12-080(c)

(amended November 6, 1991) (RLTO)).  Following a bench trial, the

trial court entered judgment for plaintiffs on count V only. 

Plaintiffs appeal, seeking reversal of the court's judgment on

count II.  Defendants cross-appeal, seeking reversal of the court's

judgment on count V.

	In a motion that was taken with the case, defendants contend

that we lack jurisdiction over the appeal and cross-appeal because

plaintiffs' "Motion to Amend [the] Pleadings to Conform to the

Proof at Trial" (motion to amend) was not directed against the

final judgment, and therefore, it did not extend the time for

filing a notice of appeal.  Thus, before reaching the merits of the

appeal and cross-appeal, we must address whether we have jurisdiction.  Robertson v. Winnebago County Forest Preserve District, 301 Ill. App. 3d 520, 522, 703 N.E.2d 606 (1998).

	Pursuant to Supreme Court Rule 303(a)(1), a notice of appeal

must be filed within 30 days after entry of the final judgment

appealed from, or if a timely postjudgment motion directed at the

final judgment has been filed, within 30 days after entry of the

order disposing of the last pending postjudgment motion.  155 Ill.

2d R. 303(a)(2).  The judgment appealed from in the instant case

was entered on October 26, 2000.  On November 17, 2000, plaintiffs

filed the motion to amend.  On November 22, 2000, the trial court

granted plaintiffs' motion for an extension of time to file any

post-trial motions until December 21, 2000.  However, plaintiffs'

motion for reconsideration was not filed in the office of the clerk

of the circuit court of Cook County until December 26, 2000.  The

motion to amend was denied on January 29, 2001; the trial court

also found it did not have jurisdiction to consider plaintiffs'

untimely motion for reconsideration.  Plaintiffs filed their notice

of appeal on February 28, 2001, more than 30 days after the

judgment was entered but within 30 days of the denial of the motion

to amend.  Defendants filed their notice of cross-appeal on March

12, 2001.

	To qualify as a postjudgment motion, the motion must request

at least one of the forms of relief specified in section 2-1203 of

the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1998)), it

must specify the grounds that would warrant granting the relief requested, and it must be filed with the clerk.  Robertson, 301 Ill. App. 3d at 523.  Section 2-1203 provides that in cases tried

without a jury, any party may, within 30 days after entry of

judgment, file a motion for rehearing, retrial, modification or

vacation of the judgment, or "for other relief."  735 ILCS 5/2-

1203(a) (West 1998).  The "other relief" referred to in section 2-

1203 must be similar in nature to the other forms of relief

specified in that section.  Brock v. Police Board, 205 Ill. App. 3d 1035, 1040, 563 N.E.2d 970 (1990).

	Section 2-616(c) of the Code of Civil Procedure provides:  "A

pleading may be amended at any time, before or after judgment, to

conform the pleadings to the proofs, upon terms as to costs and

continuance that may be just."  735 ILCS 5/2-616(c) (West 1998). 

Although a motion to amend a complaint to conform with the proofs

at trial pursuant to section 2-616(c) of the Code of Civil

Procedure may be filed at any time, it is not similar in nature to

the "other relief" referred to in section 2-1203, and is not a

motion directed against the judgment.  Brock, 205 Ill. App. 3d at 1040 (motion to amend petition for administrative review to conform

to briefs and arguments of parties was not a motion directed

against judgment); Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347, 549 N.E.2d 1262 (1990) (motion for leave to amend

complaint is not a motion directed against judgment within meaning

of Rule 303(a)(1) or encompassed within relief provided for by

section 2-1203).  Accordingly, such a motion does not extend the time for filing a notice of appeal.  Andersen, 133 Ill. 2d at 347.  See also Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189, 737 N.E.2d 160 (2000).

	In light of this authority, plaintiffs' claim that the motion

to amend was a valid postjudgment motion within the meaning of

section 2-1203 is unpersuasive.  However, citing some of these same

cases, plaintiffs ask us to consider the content of their motion to

amend, because "the nature of a motion is determined by its

substance rather than its caption" (Robertson, 301 Ill. App. 3d at 523), and a court should not "blindly adhere to nomenclature at the

expense of reality" in deciding whether a motion really is a

section 2-1203 motion (Andersen, 133 Ill. 2d at 347).  Plaintiffs contend that in substance their motion "was in the nature of a

motion for reconsideration or rehearing, and thus was one of the

specifically enumerated post-trial motions in [section 2-1203],

whose filing tolls the running of the 30 day period for the filing

of a notice of appeal."  In the alternative, plaintiffs argue that

the substance of the motion asserted a "claim" within the meaning

of Supreme Court Rule 304(a), analogous to a claim for attorney

fees, and therefore it extended the time to appeal.

	In order to resolve these contentions, we set out additional

facts from the record on appeal.  Plaintiffs entered into a one-

year lease with defendants from October 1, 1999 to September 30,

2000, for a Chicago apartment which was subject to the RLTO.  In

the first amended complaint referenced above, plaintiffs alleged that they vacated the premises on or about April 30, 2000 because

the apartment was in disrepair.  They further alleged that "on or

about June 19, 2000 [defendants deducted $970 from the $1,750

security deposit and mailed plaintiffs a refund of] $785.84 along

with an explanat[ory] letter dated May 22, 2000 and [a] painting

bill."

	In count I of the first amended complaint, plaintiffs alleged

that defendants had violated sections 5-12-120, 5-12-140(a), and 5-

12-140(b) of the RLTO, by including a $1,150 reletting charge in

the contract, which discouraged plaintiffs from terminating their

tenancy.

	In count II, plaintiffs alleged that defendants had violated

section 5-12-080 of the RLTO in two ways: (1) by failing to keep

the security deposit in a different account from that used for the

rent collected, and (2) by not returning the security deposit by

June 15, 2000. 

	In count III, plaintiffs alleged that defendants had "failed

to repair anything" within 14 days of plaintiffs' requests to do

so, which diminished the apartment's fair market value to $575 per

month, while defendants collected the full rent, $1,150 per month,

between October 1, 1999 through April 30, 2000.

	In count IV, plaintiffs alleged that defendants had violated

section 5-16-100 of the RLTO by failing to disclose the apartment's

heating costs prior to execution of the lease.

	In count V, plaintiffs alleged that defendants made improper deductions from the security deposit consisting of $275 for

patching and repainting interior walls which suffered from mere

ordinary wear and tear; $145 for repairing the roof which

plaintiffs had patched after removing their own satellite dish; and

$550 for rent accruing after plaintiffs had properly terminated the

lease and their tenancy.

	During the trial proceedings, plaintiffs' attorney asked Jerry

Krych whether a summary of the RLTO was attached to the written

lease offered to plaintiffs.  Defendants' attorney immediately

objected and moved to strike, arguing that the first amended

complaint did not contain any allegations with respect to the

landlord's obligation to provide the RLTO summary.  Then the

following exchange occurred:

			"THE COURT: What's the relevance?

			[PLAINTIFFS' ATTORNEY]: Well, it's

relevant -- first of all, he's right.  We

didn't allege that in a separate count ***.

			***

			*** [B]ut it would show, first of all,

the credibility of this witness, number one,

and number two is whether he was cognizant

about the [RLTO] or not, or whether he really

knew the provisions concerning the [RLTO].

			[DEFENDANTS' ATTORNEY]: Judge, I think

the credibility is clear.  The man [said] he didn't do it.  The plaintiffs never pled it,

and they filed interrogatories, they filed a

document request, they had opportunity.

			THE COURT: I'll sustain the objection."

	Later, plaintiffs' attorney asked Jerry Krych whether he had

enclosed any documents with the security deposit refund check, and

Mr. Krych indicated that he believed he enclosed a "breakdown" of

the security deposit, stating interest paid and deductions made,

but that he could not recall whether he had also enclosed a copy of

a bill.

	When Margaret Vanderplow testified, plaintiffs' attorney asked

her whether she had received a summary of the RLTO from defendants. 

She answered "No"; however, the following exchange occurred:

			"[DEFENDANTS' ATTORNEY]:  Same objection

as to the summary of the ordinance, relevancy.

			[PLAINTIFFS' ATTORNEY]:  It's asked and

answered.

			THE COURT:  Sustained.

			[PLAINTIFFS' ATTORNEY]:  Do you remember

how much security deposit you paid?

			[MARGARET VANDERPLOW]:  1725.

			[PLAINTIFFS' ATTORNEY]:  And you never

got a receipt for that security deposit?

			[MARGARET VANDERPLOW]:  No.

			[DEFENDANTS' ATTORNEY]:  Same objection on this.  There's no allegation in the

complaint for any cause of action relating to

failure to attach a receipt for [the] security

deposit.

			I think Count --

			THE COURT:  Count II?

			[DEFENDANTS' ATTORNEY]:  Count II is the

only count addressing the security deposit

provisions of the RLTO because it references

5-12-080, and it talks about timely return and

not keeping the deposits in a separate

account, and that's it.

			*** There's no allegation of failure to

pay interest or failure to get a receipt or

anything else under the RLTO.

			[PLAINTIFFS' ATTORNEY]: Well, as the

Court knows, a liberal amending of pleadings

is allowed to conform to the proof at trial.

			And although we did discuss the security

deposit in Count II, and the evidence is

pretty clear concerning that, we can always

ask the Court to amend our pleadings to add

that extra item to conform to the proof at

trial under the Code of Civil Procedure.

			[DEFENDANTS' ATTORNEY]: My understanding is that even so, even with liberal

construction, you have to at [least] put

something in there that references that. 

There's nothing in there.

			***

			THE COURT:  Is there something in the

ordinance requiring them to give a receipt. 

			[DEFENDANTS' ATTORNEY]:  There is.  That

would be under B, which isn't referenced

there.  080-B, I believe is the one that says

that *** they shall give a receipt for the

deposit, and that's not anywhere in this,

either the amended complaint or the original

complaint.

	***

			THE COURT: It's not pled.  I'm going to

sustain the objection."

	Plaintiffs did not attempt to elicit any further testimony

about the RLTO summary or any receipts.  

	During closing arguments, plaintiffs summarized the five-count

first amended complaint, the portions of the RLTO cited in the

first amended complaint, and the related testimony.  Plaintiffs

gave no indication that they wished to amend the first amended

complaint in any way.  Plaintiffs did not refer to any other

sections of the RLTO, did not move tion ask to add new coun ts,

tand did not refer to any of the parties' arguments or the trial court's rulings as to the relevancy of the stricken testimony.

	Upon conclusion of the trial, the trial court entered judgment

in favor of defendants on counts I through IV; and in favor of the

plaintiffs as to count V in the amount of $825 based on the

improper deductions from the security deposit for repainting ($275)

and two weeks rent accruing after plaintiffs moved out ($550).

	On November 8, 2000, plaintiffs filed their motion to extend

the time to file any posttrial motions until December 21, 2000.  As

indicated above, this motion was allowed on November 22, 2000.  As

also indicated above, plaintiffs filed the motion to amend on

November 17, 2000.  The motion to amend stated in relevant part:

			"3.  Defendant [Jerry] Krych testified

that the ordinance summary was never tendered

to the plaintiffs in violation of Section 5-

12-070 of the Chicago Residential Landlord and

Tenant Ordinance.

			4.  Mr. [Jerry] Krych further testified

*** no receipts or paid invoices [were]

tendered to the plaintiffs for the deductions

made against the security deposit.  He further

testified that he was not sure if he sent the

estimate to plaintiffs in violation of the

[state] statute for the return of the security

deposits under Section 765 ILCS 710/1.

			5.  735 ILCS 6/2-616(c) allows pleadings to be amended after trial to conform to the

proofs at trial, and the evidence already

produced supports the amendment. [Citations.]

			*** 

			8.  All the evidence that was admitted

into the trial supports the proof needed for

the amendment and the two new counts.

			WHEREFORE, plaintiff prays to amend the

pleadings by adding a Count VI for claims

under section 5-12-170 of the [RLTO] and Count

VII under 765 ILCS 710/1."

	On December 21, 2000, plaintiffs mailed a motion for

reconsideration of the judgment to the clerk of the circuit court

of Cook County, arguing that plaintiffs' testimony as to the

diminished value of the apartment was unrefuted and that

defendants' testimony indicated that defendants had violated the

RLTO.  Plaintiffs cited supporting authority and concluded with a

prayer "for the court to reconsider [the] judgment."

	As previously indicated, on January 29, 2001, the trial court

denied the motion to amend, finding that granting it would result

in prejudice to defendants.  The trial court also found that it did

not have jurisdiction over the motion for reconsideration that

plaintiffs mailed to the clerk of the circuit court on December 21,

2000, because it was not filed until December 26, 2000.

	With these additional facts in mind, we now address plaintiffs' contention that the motion to amend was in substance

one of the motions enumerated in section 2-1203 which when filed 

tolls the running of the time to file a notice of appeal.  Our

examination of the substance of the motion to amend discloses that

it was, in fact, a motion for leave to amend the complaint after

the entry of judgment.  As previously indicated, a motion for leave

to amend does not extend the time for filing a notice of appeal

under Supreme Court Rule 303(a)(1).  Robertson, 301 Ill. App. 3d at 523.

	Furthermore, contrary to plaintiffs' contention, the "proof"

the motion relies upon was never admitted.  Although the motion

refers to specific testimony regarding the RLTO summary, the motion

does not disclose that defendants objected to this testimony and

that the trial court sustained the objections.  Additionally, the

motion mischaracterizes the nature of other testimony, indicating

that Jerry Krych "testified *** no receipts or paid invoices [were]

tendered to the plaintiffs for the deductions made against the

security deposit," when the record of proceedings indicates that he

actually testified that he could not recall whether he had enclosed

a copy of a bill with the security deposit refund check.

	Because the "proof" was never admitted, the motion was not

properly characterized as a section 2-616(c) motion to amend the

pleadings to conform to the proof at trial (735 ILCS 5/2-616(c)

(West 1998)).  Instead, plaintiffs' request to "amend the pleadings

by adding a Count VI for claims under section 5-12-170 of the [RLTO] and Count VII under 765 ILCS 710/1" was clearly a request to

add new causes of action that were not asserted in the first

amended complaint.  This type of motion is governed by section 2-

616(a) of the Code of Civil Procedure (735 ILCS 5/2-616(a) (West

1998)), which provides that new causes of action may be added, "on

just and reasonable terms," "any time before final judgment." 

Plaintiffs have not cited any section of the Code of Civil

Procedure providing for the addition of new causes of action

subsequent to judgment.

	Additionally, in Robertson, 301 Ill. App. 3d 520, 703 N.E.2d 606, the court emphasized that a valid section 2-1203 motion (735

ILCS 5/2-1203 (West 1998)) not only specifically requests a

rehearing, a retrial, a modification or vacation of the judgment,

or other similar relief, but also specifies the grounds warranting

the relief requested.  See also Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 292, 635 N.E.2d 1068 (1994) (one-sentence motion

seeking reconsideration was an invalid postjudgment motion because

it did not provide a factual or legal basis upon which the trial

court could reconsider its prior decision); Droen v. Wechsler, 271 Ill. App. 3d 332, 648 N.E.2d 981 (1995) (motion which asked trial

court to reconsider order dismissing plaintiff's case without leave

to file amended complaint, expressed desire to file amended

complaint sounding in equity, and cited supporting authority was

sufficiently specific to constitute a valid postjudgment motion). 

The motion to amend did not ask the trial court to reconsider or vacate any of its trial rulings or the judgment entered at the

conclusion of the trial, nor did it offer any argument warranting

such relief.  In fact, in the motion to amend, plaintiffs failed to

acknowledge that the trial court sustained defendants' objections

to the trial testimony quoted above.  Thus, the substance of the

motion to amend was not seeking modification or vacation of any of

the trial court's rulings, and it cannot be construed as a valid

section 2-1203 motion.  We also point out that in contrast to the

motion to amend, in their untimely motion for reconsideration,

plaintiffs referred to trial testimony, cited supporting authority,

and asked "the court to  reconsider [the] judgment."

	Plaintiffs also argue that the motion should be construed as

a section 2-1203 motion because it implicitly requested

reconsideration of the judgment, otherwise, the motion "would have

served no purpose."  However, the preceding authority clearly

indicates that a proper section 2-1203 motion specifically seeks at

least one of the forms of relief set out in section 2-1203 and

specifies the grounds warranting the relief requested.  See, e.g. Robertson, 301 Ill. App. 3d 520.  Furthermore, our supreme court has rejected the argument that every motion for leave to file an

amended complaint after the entry of summary judgment implicitly

includes a request to vacate the entry of summary judgment.  Berg, 193 Ill. 2d at 190.  Accordingly, we reject plaintiffs' contention that their motion implicitly triggered section 2-1203.

	In the alternative, plaintiffs attempt to analogize the motion to amend to the motion for attorney fees filed in Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 563 N.E.2d 459 (1990).  In that case, the trial court denied plaintiffs' claim for

injunctive relief and entered judgment for the defendant.  Within

30 days of this decision, defendant filed a motion for attorney

fees as a sanction, and on the same day, plaintiffs filed a notice

of appeal of the judgment.  The court held that defendant's request

for attorney fees as a sanction was properly considered part of the

underlying cause of action and that, until defendant's claim was

resolved, plaintiff's appeal was premature.  We conclude that Marsh has no application to the instant case, because plaintiffs were not

attempting to assert ancillary claims at the first opportunity.

Rather, plaintiffs were attempting to introduce independent claims

which they could have included in the first amended complaint or

even original complaint.  Furthermore, plaintiffs have failed to

cite any authority construing Marsh in this way.

	In light of the preceding analysis, we conclude that

plaintiffs' "Motion for Leave to Amend [the] Pleadings to Conform

to the Proof at Trial" was not a valid postjudgment motion within

the meaning of section 2-1203 of the Code of Civil Procedure (735

ILCS 5/2-1203 (West 1998), and that its filing did not toll the

running of the 30 day period for the filing of a notice of appeal

(155 Ill. 2d. R. 303(a)(1)).  Accordingly, the notice of appeal was

due within 30 days of the October 26, 2000, judgment and was

untimely when filed approximately 120 days after judgment, on February 28, 2001.

	Appeal dismissed.

	BURKE, P.J. and GORDON, J., concur.