No. 2--05--0610 filed: 2/2/07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ VG MARINA MANAGEMENT ) Appeal f rom the Cir

cuit Court CORPORATION, ) Ka ne Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 01--LM--668 ) FRANK WIENER, ) Honorable ) Judith M. Brawka, Defend

ant-App ellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered th e opinion o f the cou rt: Defend ant, Frank Wiener, appeals from the trial court's orders granting summary judgment to plaintiff, VG Marina Management Corpora tion, on its complaint for rent and awarding plaintiff its attor ney fees in curred in bri nging the complaint. On appeal, defendant contends that (1) the award of attorney f

ees violates section 5--12--140(f) of Chicago' s Residential Landlord and Tenant Ordinance (the RLTO) (Chi cago Mu nicipal Code §5--12--140(f) (amended Nove mber 6, 1991)), and (2) the lease agreement be tween the p arties is unenforceable because it contains provisions that violate the RLT O. For th e reasons that fo llow, we a ffirm. OnApril 19, 2001, plaintiff filed a "complaint for rent," alleging

that defendant had breached the parties' lease agr

eement by fa

iling to timely pay

rent. The complaint requested the award of

all past-due rent as well as plaintiff's attorney fees incurred in the action. Plaintiff's claim for attorney fees was predicated on parag raph 15(e) of the lease, which provided:No. 2--05--0610

-2- "Lessee shall pay upon demand a ll Lessor's costs, char

ges and expenses , in cluding the fees of agents and others re tained by L essor an d, as prov ided by applica ble laws and court rules, the fees of counselincurred in enforcing L essee's obligations hereunder or incurred by Lessor in any litigation, neg otiation, or transaction in which Lessee cause s Lessor, without Lessor's fa

ult, to become involved or concerned." The parties subseque nt ly f iled cross-motions for summary judg ment. Defendant did not contes t plainti ff's assertion that he had failed to pay rent due under the lease agr eement. Rather, defendant argued, inter ali a , that the attorney f ees provision contained in paragraph 15( e) of the le ase

was unenforceable under

the RLTO and that the lease a s a whole was unenforceable as a matter of public policy, by

virtue of lease provisions that violated the RLTO. On Septembe r 14, 2004, the trial court denied defendant's motion for summary judgment and granted plaintiff's motion for summary judgmen t. The trial court also ruled that plaintiff was entitled to an award of attorney fe es and granted plaintiff leave to file a fee petition. On May 19, 2005, after considering plaintiff's petition for attorney fe es, the trial court entered judgment ag ainst defendant for $30,380.66, consisting of $6,798.82 for unpaid rent, $1,081.84 for costs, and $22,500 for plaintiff's attorney fees. Defendant timely appeals

. Defendant

first contends that the trial court erred in granting summary judgment to plaintiff

on the issue

of attorney

fees. A s he did at

tria l, de fendant argues that the attorney fees provision contained in paragraph 15(e) of the le ase is unenforceable under section 5--12--140(f) of the RL TO. Summary judgment is proper when t he p leadings, depositions, and affidavits on file demonstrate that

no genuine issue of material fact exists and that the moving party

is entitled to judgment as a matter of law. City of

Oakbrook Terrace v. Suburban B ank & Trust Co. , 364 Ill. App. 3d 506, 510 (2006).No. 2--05--0610

-3-

We review de novo the propriety of a n order granting summary judgment. City of Oakbrook Terrace , 364 Ill. App. 3d at 5 10, ci ting Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102 (1992). Similarly, the construction and leg al effect of the lease agreement and the provisions of the RLTO are questionsof law, which we review de novo

. Lawrence v. Regent Realty Group, Inc. , 197 I ll. 2d 1, 9 ( 2001); Plambeck v. Greystone Manageme

nt & Columb ia National Trust Co. , 281 Ill. App. 3d 260, 266 (1996). The same rules that govern the interp ret ation of statutes apply in construing municipal ordinanc es. Starr v. Gay , 354 Ill. App. 3d 610, 612 (2004). As in the case of a statute, the primary objective in construing an ordinance is to ascertain and g ive effect to the intent of the lawmaking body as disclosed by the

language contained in the ordina nce. Starr , 354 Ill. App. 3d at 612-13. The bes t indica tor of this intent comes from the language of the ordinance itself, but may also include consideration

of the reason behind and the necessity for the ordinance. American National Bank v. Powell , 293 Ill. App. 3d 1033, 1038 (1997) (interpreting the RLTO). Section 5- -12--14 0 of the RL TO provid

es in rele vant par t as follow s: "Except as otherwis e specif

ically provided by this chapter , no rental agreement may provide t hat the la ndlord or tenant: * * * (f) Agrees that in the event of a lawsuit arising out of the tenancy

the tenant will pay t he landlo rd's attorney

's fees except as provided for by court rules, statute, or ordinance." Chicago Municipal Code §5--12--140(f) (a mended November 6, 1991). The plain language of this section is clear : a

rental agreement may

not provide that a tenant agrees to pay attorney

fees in connec

tion with a

lawsuit, u

nless such attorney f

ees are provided for by

courtNo. 2--05--0610

-4-

rules, statute, or ordinance. The plain langua ge of p aragr

aph 15(e ) of the le ase agreement does not violate section 5 --12-- 140(f) o f the RL TO, beca use it pro vides tha

t plain ti ff ma y recover attorney fees incurred in enforcing defe nda nt's o bligations under the lease agre ement only "a s provided by applica ble laws and court rules." Accordingly, we rea d the attorney f

ees language of

paragraph 15(e) of the lease to be in harmony with section 5- -12--140(f) . See Plambeck , 281 Ill. App. 3d at 267 (holding th at a le ase containing provision that lessee shall pay costs, expenses, and attorney f ees incurred by lessor due to lessee 's breach of lease ag reement " 'to the extent

permissi ble by Court rules, Court order, state statute or Loca l Ordinance' " (emphasis omitted), did not violate section

5-- 12--140(f) of the RLTO)

. Defendant

additionally arg

ues that, even if paragraph 15( e ) of the leas e does no t violate section5--12--140(f) of the RL TO, no court rule, statute, or ordinance provides for the r ecovery of attorney fees in the instant case. The trial court rejected this argument, ruling that section 5--12--180 of the RL TO permit

ted such a n award . Section 5 --12-- 180 provid es as fol lows: "Except incases of forcible entry

and detainer actions, the prevailing plaintiff in any actionarising out of a l andlo rd's or tenant's application of the rig hts or remedies made availab le in this ordinance shall be entitled to all court costs and reasona ble attor ney's fee s; p rovided, however, that nothing herein shall be deemed or interpreted as precluding the awarding of att orney's f

ees in fo rcible e

ntry and deta

iner ac tions in ac cordanc e with applica ble law or as expressly

provided for in this ordinance." Chicago Municipal Code §5-- 12--180 (added November 6, 1991). Defendant

argues that this provision does not apply in this case, because plaintiff's complaint did not seek a right or remedy

made available in the RLTO. We disag ree.No. 2--05--0610

-5-

Section 5--12

-- 130 of the RLTO provides the rig hts and remedies available to a landlord when a tenant has breached the terms of a lease agreement or w

here a tenant has breached his or he r other obligations under the RLTO. Chicago Municipal Code §5--12--130 (amended N ovember 6, 1991). Subsection (a) of that section specifically pro vides a land lord's remedi es upo n a ten ant's failure to pay rent and states as follows: "(a) Failure to Pay Re

nt. If all or any

portion of rent is unp aid when due and the tenant fails to pay

the unpaid rent within five day s after written notice by

the landl ord of his intention to terminate the rental agreement if r ent is not so paid, the landlord may terminat e the rental a

greement. *** A

landlord may also maintain an action

for rent and/or damages without terminat

ing th e rental agreement." Chica go Municipal Code §5--12--130(a) (amended November 6, 1991). Subsection (a) provides two distinct remedie s upon the n onpay ment of re

nt: one reme dy p ermits a landlord to t er minate the lease agreement upon prope r notice to the tenant, and the other remedy permits a landlord to maintain an action for rent and dam age s without te rminating the agr eement. Inth e instant c ase, pla

intiff did not seek t

he reme dy o f termina

tion, as its

lease a greement with defendant had already

expired and defendant

had vacated the premises. I nstead, plaintiff's complaint for rent soug ht the sec ond reme dy, which pe rmits a landlord to "maintain an action for rent and/or damages." Alth ough plaintiff's complaint for rent did no t spec ifically indicate that it was br ought pursuant to the pro visions of

the RL TO, the c omplaint no nethele ss invoked a

remedy pr

ovided by the RLTO. The RLTO "applies to, re gulates and determines rights, obligations and remedies unde r every rental agreeme nt for a dwel ling u nit l ocated with in th e Cit y of Chica go." Ch icago MunicipalNo. 2--05--0610

-6-

Code §5--12--010 (amended November 6, 1991). T he rights or re medies available to landlords under the laws of th e State of

Illinois, or oth er loca

l ordinances, ar

e applic able only

"[t]o the e xte nt [ the RLTO] pr ovide s no right or remedy in a circumstance." Chicago Municipa l Code §5--12--190 (amended November 6, 1991). As the RLTO regulated and determined plaintiff' s remedies under the instant rental agreement, and beca use section 5--12--130(a) of the RLTO specifically

provided remedies for the nonpayment of re nt, plaintiff's complaint necessarily was brought pursuant

to the authority of the RLTO. Under sections 5--12--010 and 5--1 2--190, n o other r emedies were a vailable to plaintiff. Moreover, we note that co urts are to construe pleadings liberally , with the view to do substantial justice between the parties. Skorek v. Przy byl o , 256 I ll. App. 3d 288, 289 (1993). An opposing party

is not pre judiced w here the pleading contains facts that reasonably

inform that

party of the nature of the charge to be answere d. Skorek , 256 Ill. App. 3d at 289. I n the instant case, plain tiff's complaint contained facts sufficient for it to be construed as a n a ction fo r rent under section5--12--130(a) of the RL TO. Plaintiff alleged the existence of a lease between the parties for the rental o f a dwell ing unit i n the City of Chicago a

nd defenda nt's fa ilure to pa

y r ent acc ording t

o the t erms of the lease. Plaintiff also specifically requested an award of attorney fees, which ordinar ily is unavailable in a common-law action for breach of contract. See Leahy

Realty Corp. v. American Snack Foods Corp. , 253 Ill. App. 3d 233, 250 (1993 ). In d efendi ng again st pl ainti ff's complain t, d efendant specifically invoked the RLTO and, in their cross-motions for summary judgmen t, the parties argued the import of various provisions of the RLTO. I

n defendant's motion for summary judgmen t, defendant

noted that the subject rental apartment was within the boundaries of the City of

Chicago and asserted that the RL TO "is applicable to the particulars of the landlordNo. 2--05--0610

-7-

te nant relation ship in this c ase." U nder the se circ

umstance s, defen

dant was not preju

dic ed b y plaintiff 's fail ure to spe cifical ly r

efere nce the R LTO i n its compla

int. For these reasons, we conclude that plaintiff's complaint sufficiently invoked a remedy under section5--12--130(a) of the RL TO. After plaintiff prevailed upon its complaint for a remedy " made available" under the RLTO, the trial court c orrectly de termined that

plaintiff was entitled

to an award of costs and attorney f

ees under section 5--12--180, and we uphold its awa rd. See Meyer v. Cohen , 260 Ill. App. 3d 351, 363 (1993) (noting that section 5--12--180 is a blanket provision entitling party to attorney

fees and costs upon

prevailing in an action asserting rig hts or remedies under the RLTO)

. Inso holding, we note that our analysis does not undermine or re nder meaningless the protections afforded tenants unde r se ction 5-- 12--140( f) of the RLTO. Our conc lusion tha t a landlord prevailing in an action to recover unpaid rent may r

ecover attorney

fees under section 5--12- -180 in no way alters section 5--12--140(f)'s prohibition aga inst lease provisions requiring a tenant to pay attorney

fees not "provided for by

court rules, statute, or ordinance." Chicag o Municipal Code §5--12--140(f) (amended November 6, 1991). Section 5--12--140( f) continue s to prohib it attorney fees provisions not authorized by law, an example of which would be a lease provision that required

a tenan t to p ay a landl ord's attorney fe es incurred in a lawsuit regardle ss of whether the landlord was the pr ev ai li ng pa rt y. Our decision today doe s nothing to alter the import or effect of section 5--12-- 140(f). Defendant

next contends that two provisions of the lease agreement violated sec tion 5--12-- 140 of the RLTO (Ch icago Municipal Code §5--12--140 (amended November 6, 1991)) and that as

a consequence, the entire le as e m us t b e d ec la re d v oi d a nd un en fo rc ea bl e a s a ga in st pu bl ic po li cy. Sp ec if ic al ly, defendant alleges that the following lease provisions violate section 5--12--140: (1) theNo. 2--05--0610

-8-

attorney fees provision contained in lease para g raph 15(e), and (2) the holdover-tena nt provision contained in lease paragraph 15(b). As we ha ve already

discussed, the attorney

fees provision of the lease agreement did not violate section 5--12- -140(f). See Plambeck , 281 Ill. App. 3d at 267. As to the holdover-tenant provision of the lease, rega rdless of whether it violated section 5-- 12--140 of the RLTO, we rejec t defendant's argument that the e ntire lease must be invalidated

. Section 5- -12--14 0 provide s:

"A provision prohibited by this section include d in a rental a greement is unenforceable. The tenant may recover actual damag es sustained by the tena nt because of the enforcement of a

prohibited provision. If thelandlord attempts t

o enforc e a provi sion in

a rental agreement prohibited by this section the tenant may re cover two months rent." Chicago Municipal Code §5--12--140 (amended N ovember 6, 1991). Thus, the RLTO specifically provides a remedy

inthe case of a lease provision that violates one or

more portions of

section 5 --12-- 140. Bec ause pla intiff ne ver atte mpted to a ssert ag ainst

defendant the hold over -tenant

lease pr ovision, he

has not be en damag ed by the inclu sion of this

allege dly illegal provision, and we decline defenda nt's re quest

to expand upon the explicit remedy provided by section 5 --12-- 140. The R LTO i s clear

in definin

g a tena nt's re me dy for the inclusion of prohibited

lease provisions, and we de cline defendant's invitation to void the lease as a matter of public policy. Cf. Lawrence , 197 I ll. 2d at 11 ("cour ts ma y not rewrite statutes to make them consistent with their own ideas of orderliness and public policy "). Further, even if

we were inclined to reexamine the wisdom of the remedies contained in 5-- 12-140, we are not convinced that public policy would compel invalidation of the lease in its

en ti re ty, based upon the challenged p r ovision. Section 184(1) of the Restatement (Second) ofNo. 2--05--0610

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Contract s provides

that w he n some por

tion of an

agree ment is une

nforce able as a

gainst p ublic po li cy: "[A] court may neverth eless en force t

he rest of the agreement in favor of a party who did not eng age in s erious mis conduct i f the per formanc e as to w hich the a greement is unenforce able is not an essential part of the agree d exchange." Restatement (Second) of Contracts §184(1), at 30 (1981). Alth ough there is a public policy argument in favor of insuring that the provisions of the RL TO are followed, there is

also a significant

public pol icy

interest in upholdin

g the pa rties' lease a

greement. "[C]om plex, multipart agreements on which there ma y ha ve been signific ant relia

nce shou ld not be void as a whole solely be cause some small part is agai nst public pol icy" ( People v. McNett , 361 I ll. App. 3d 444, 448 (2005)), because, absent gr eat inequality or misconduct involving a n essential term of the contr act, doing so would frustrate the contractual expectations of the parties. Here, defendant fails to relate

how the ho ldover- tenant pr ovision im

pacted upo n his failure to pay r ent after voluntarily relinquishing

possession of the premises. Defendant also has failed to show prejudice that mate rially affec ted the r

ights of the part ies under the leas e agre ement. Inurging a contrary

result, defendant

directs us to the Wisconsin Supreme Court's decision in Baierl v. McTagg art , 245 Wis. 2d 632, 629 N.W.2d 277 (2001), in which the court voided a l ease that, he a rgues, containe d invalid a ttorney fee lan guag e. Howe

ver, it is w ell settled that decisions by courts from othe r states are not binding on courts of this state. Those Certain Underwriters at Lloyd's v. Professional Underwriters Agency , Inc. , 364 Ill. App. 3d 975, 981 (2006). To the extent defend ant's citation t

o foreig n authori ty would direct us to a

different result, we find it unpersuasive and instead follow the principles of law discussed above.No. 2--05--0610

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For the fo regoing reas ons, we affirm the trial court's orders g ranting plaintiff's motion for summary judgme

nt and awarding

plaintiff attorney f

ees. We deny plaintiff' s request for an award of attorney f

ees on appeal, because we c onclude that plaintiff has failed to show that such fees are warranted under Supreme Court Rule 375 (155 Ill. 2d R. 375). Affirmed. McLA REN, J., concurs. JUS TICE O'MA LLEY, diss entin g: I disagree with the majority's c onclusion that the RLTO allows attorney fees in this case. Section 5- -12--14 0 of the RL TO provid

es as fol lows: "Except as other wise specifically pr

ovided by this chapter, no re

ntal agreement may provide t hat the la ndlord or tenant: * * * (f) Agrees that in the

event of a lawsuit arising out of the tenancy the tenant will pay the land lord' s attorney

's f ees exc ept as pr ovided for by c ourt rules, statute, or ordinance." Chicago Municipal Code §5--12--140 (amended N ovember 6, 1991). The plain language of this section is clear: a rental agree

ment may not provide that a tena nt agrees to pay

attorney fe es in connection with a lawsuit, unless such attorney fees are provided for by court rules, statute, or ordinance. Plaintiff directs us to no court rule or statute that provides for i t s recove ry of attorney

fees in th

is case. Plaintiff

instead a rgues, and the tr

ial cour t appare ntly agreed, that a n ordinance--another section of the RL TO itself--provides that plaintiff may recover attorney fe es in this case.No. 2--05--0610

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Plaintiff directs u s to section 5--12- -180 of th e RLT O, which c reates an exception to the section 5 --12-- 140 prohib ition on att orney fees for landlor

ds: "Except in cases of forcible entry

and detainer actions, the prevailing plaintiff in any actionari sing out of a landlord's or tenant's application of the rights or remedies made availab le in this ordinance shall be entitled t o all cour t costs and reasonable atto rney 's fee s; provided, howe v er, that nothing herein shall be deemed or interpr eted as precluding the awarding of attorney' s fees in forcible entry and detainer ac ti ons in acc ordance with applica ble law or as expressly provided in this ordinance." Chicago Municipal Code §5--12- -180 (added November 6, 1991). I re sort firs t to the pla

in langu age of the ordinance in

order to derive its meaning. Plaintiff urges that, under the above section of the RL TO, "the prevailing plaintiff in a landlord-tenant action is entitledto all costs and fees incurred in such action." I disag

ree with plaintiff's character ization of section 5--12--180. The sec tion does n ot allow f or the pr evailing plaintiff to recover attorney

fees inall landlord-tena

nt lawsuit s, as plai

ntiff impli es. Rather, by its plain lang uage, section 5--12--180 allows attorney fe es only in actions "arising out of a [party 's] application of the rights or remedies made available i n [the RLTO]. " Chicago Municipal Code §5--12--180 (added November 6, 1991). Plaintiff brought this action

to enforce its right to rent pay ments under the rental agreement, and not to enforc e right s or reme dies made availab le by the RLTO. Accordingly , section 5--12--180 does notapply . (The se ction also specific ally

provides that attorney f

ees may be

awarded in forcible entry and detainer actions. However, ag ain, the current action is an

action for rent pursuant to the lease, and not a for cible detain er acti on, an d the f orcib le det ainer l anguage d oes no t appl y.) Plain tiff's interpretation of section 5--12--180 contravene s the plain language of the ordinanc e.No. 2--05--0610

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Further, a statute or ordinanc e should be

read as a whole a

nd constr ued so tha

t no part o f it is rendered meaningless or superf luous. Gaylor v. Villag e of Ringwood , 363 Ill. App. 3d 543, 548 (2006 ), cit ing People v. Jones , 214 Ill. 2d 187, 193 (2005). As noted, section 5--12--140 provides that a landlord may not hold a tena ntliable for attorne

y f ees for lawsuitsar is in g o ut of

th e t en an cy. If we were to acc ept plaint iff's interpretation of section 5--12--180 a s allowing the prevailing plaintiff attorney fees in a

ny l andlord- tenant act ion, sect ion 5--12 --140 wo

uld be re

ndered v irtually meaning less. For th is rea son, a long wi th th e fact t hat pl ainti ff's i nterpretation is at odds with the plain lan guag e of the RL

TO, I would re ject plai ntiff' s argument. Plaintiff also asserts in passing that the "RL TO also makes fees available for tenant br each in Section

5--12-- 130(b)." Section 5- -12--13 0 states, in pertine nt part: "Every landlord shall have the reme dies specified in this section for the following circumst ances: (a) Failure

to pay rent. I f all or a

ny p ortion of

rent is un paid when due and the tenant fails to pay

the unpaid rent within five day s after *** notice by the landlord of his intention to terminat

e the rental agreement if rent is not so paid, the landlord may terminate the rental agree ment. *** A land

lo rd may also maintain an ac tion for rent and/or damages without terminat ing the r ental ag reemen t. (b) Noncompliance by

Tenant. If there

is material noncompliance by a tenant wi th

a rental agreement or with Section 5--12--040, the landlord *** may deliver written

notice to the tenant specify

ing the acts and/or omissions constituting the breach and that the re ntal agreement

will termi

nate upon a date no t less than

10 days after r

eceipt o f the notic e, unless the breach

is rem edi ed b y the ten ant wit hi n t hat per io d of ti me. If the breach is not remediedNo. 2--05--0610

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within the 10 day period, the r

esidential rental agreement shall terminate a s provided in the notice. Th e l an dl or d m ay r ecover dama ges and obtain injunctive relief for any material noncompliance by the tenant with the re nt al a greement or with Section 5--12--040. I f the tenan t's noncompliance is willful, the landlord may also recover reasonable attorney 's fees." Chicago Municipal Code §5--12--130 (amended N ovember 6, 1991). Plaintiff does not a ss ert that s ection 5- -12--13 0(b) app lies in this case, a nd plaintif

f points to no portion of the record where plaintiff argued, or the tr ial court concluded, that defendant's failure to pay rent was "willful," as is required to trigger the attorne y fees pr ovision of section 5--12--130(b). Plaintiff simply argue s thatthe RL TO does no t prohibit landlord s from re coverin g attor ney fees in all cases, and

thus that se ction 5-- 12--140 should not ba r it from r ecover ing fee s here. I

agree with plain tiff's assertion that s e ction 5--12--130(b) allows a landlord to collect attorney fees, but that revelation is entire ly c onsistent w

ith th e above-qu

oted text of

section 5 --12-- 140, which prohibit s

a l andlord f

rom colle cting a

ttorney fees " [e]xcept as o therwise specific ally

provided by [the RL TO]. " C h icago Municipal Code §5--12--140 (amended November 6, 1991). T he fact that the RLTO specific ally

provides under section 5--12--130(b) for landlords in some instances to recover attorney fees doe s not defe at my

conclusi on that pla

intiff he re is not e ntitled to a

ttorney fees. The majority

concludes that plaintiff is entitled to attorney fees under the RLTO

because this actioncould be characterized as an action under section 5--12--130(a) of the RL TO, and th

us it is

anaction "arising out of a [party 's] application of the rights or remedies made available in [the RLT O]" so that attorney fe es are available under section 5--12--180 (Chicag o Municipal Code §5-- 12--180 (added November 6, 1991)). See slip op. at 7. Plaintiff has not argued the application of section5--12-- 130(a) t

o this cas e. I

n fact, t hough pl aintif

f specif ic ally mentions section 5--12--No. 2--05--0610

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130(b) in its brief, it makes no such mention of section 5--12--130(a). Thus the ma jority raises th is issue sua sponte . A reviewing court should set aside the principles of waiver only for good reason: "to provide a just result [or] to maintain asound and u niform bod y of precedent." Dillon v. Evanston Hospital , 199 Ill. 2d 483, 505 (2002). In exercising the c ourt's power to override considerations of waiver, "[proper] care should be taken that the litigants are not deprived of an opportunity to present argument." Hux v. Raben , 38 Ill. 2d 223, 225 (1967) (holding that, in the situation presented there, the appellate court did not err by consideringarguments not raised by the parties). Because there has been no input from the parties to shape the issue for our review, no opportu nity for def endant to respond to the issue, and no good reason presented to disreg ard the principles of waiver, we should consider the section 5--12--130(a) arg ument waived. Further, if the majority chooses t o advoca te for one s ide over

the other by r aising a rgumen ts for plain

tiff, it should

at least afford defendant an opportuni ty to respon

d to the ar

guments
. At a minimum , in the inte rest of basic fairness, the major ity shou ld ord er sup pleme ntal b riefi ng. Absent input fro m defend

ant, the majorit

y ant icipates

an arg ument on de fendant's beha lf when it sua sponte

offers that its interpretation does not render section 5--12--140 meaningless. See slip op. at 7 ("In so holding, we note that our analy sis does not undermine or rende r meanin gless *** section5--12--140(f) ***"). The majority reasons that, unde r its interpretation, section 5--12--140 continues to prohibi

t attorne y f ees prov isions in cases where a lease provision requires that a tenant pay a landlord's attorney

fees regardless of whether the la ndlord was the prevailin

g party in a lawsu

it. Slip op. at 7. T

his sua sponte

rather extreme hy

pothetic al, which may implicate public policy considerations beyond the scope of the RLTO, illustrates the extent to which the majority has g one on its own to defend a holding that it reaches entirely on its own.No. 2--05--0610

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The sua sponte

nature of the major ity's rulin g leaves open f urthe r ques tion s abou t the r ulin g's propriety. The major

ity concludes that plaintiff here sought a remedy under section 5--12--130(a) of the RLTO, based on language fr om RLTO provisions describing the ordinanc e's scope. Slip op. at 6. (Of course, the majority does so again without any suggestion from the parties.) The re levant portion of section 5 --12-- 130(a) s tates tha t a "lan dlord may

also maintain an action for rent and/or damages without terminating the rental agreeme nt ." (Emphasi s added.) Chicago Municipal Code §5--12--130(a) (amended Novembe r 6, 1991 ). The majority states that plaintiff did not see k a remedy of termination, because the lease had alrea dy ended, but it doesnot discuss whether the fact that the lease was no longer in effe ct at the time of the c omplaint mo ves th is case outside of the intended scope of section 5--12--130(a). Inlight of these (and per haps othe r) poten tial probl ems with the majority's interpr etation, and withoutany input from the parties on this issue, I do not venture a conclusion as to the applica tion of section 5--12--130(a) to this case. Based on the above discussion, I would either order supplemental briefing on the issues the major ity discusses or limit my analy sis to the issues the parties have presented to us. Without supple mental briefing, I would hold that the tria l court erred in granting plaintiff' s motion f o r summary judgment, and deny

ing defendant's, on the issue of attorne y fees, a nd I would reverse the trial court's ruling in th at respect. I ag ree with the majority tha

t the attorney fe es provision of the lease agree me nt d oes not violate the RLTO (see slip op. at 4) and tha t the lease should not be declared void in its entirety as a matter of public policy (see slip op. at 8-10).