## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Nadhir v. Salom on , 2011 IL App (1st) 110851

Appellate Court Caption ANDREW NADHI R
, FRANK BA TTAGL IA, and J ASON WEL CH, Plaintiffs-Appellants, v. BI L HA SAL OMON, a/k/a Bi lha Salomon Messer, and STEVEN T. SI MS, individually and as Trustee of the Steven T. Sims Grantor Trust, De fenda nts-Appellee s.

District & N o. First District, Second D ivision Docke t No. 1-11-0851

Filed Rehea ringdenied September 20, 2011

October 20, 2011

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court e rr ed in enter ing judgment for defendant landlords in an action alleg ing that defe ndants failed to return plaintiffs’ secur ity deposit
at the end of their lease in vi o l at i o n o f a city ’s residential landlord and
tenant ordinanc e, since defe ndants did not g ive plaintiffs proper notice of the deductions from their deposit and did not return the balanc e within 21 day s as require d by the ordinanc e, and, further more, def en d an t s raised their claim that plaintiffs violated the lease provision requiring them to pay the heat bill as an aff

irmative defe nse rathe r than as a counter claim; there fore
, the cause was rema nded for the entry of

judgme nt for plaintiffs and a de termination of dama g es and attorney fee s under the or dinance

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-M1-178551; the Hon. Rog er F ein, J udg e, pre siding.

J udg ment Reverse d; cause rema nded with direc tions.Counsel on

Appea l Mark Silverman, of Mark Silverman L aw Offic e, L td.
, of Chicag o, for appellants.

Br endan R. Appel, of L aw Offic es of Br endan R. Appel, of Chicag o, for appellee s.

Panel J USTI CE CONNORS delivere d the judgme nt of the court, with opinion. Presiding J ustice Quinn and J ustice Har ris concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiffs Andre w Nadhir, Fr ank Battag lia, and J ason Welch filed suit ag ainst defe ndants Bilha S al o m on and Steven T. Sims
, alleg ing that defe ndants failed to return plaintiffs’

sec u ri t y d ep osit at the conclusion of plaintiffs’ lease in violation of the City of Evanston Residential L andlord and Tena nt Ordinanc e (Evanston Municipal Code § 5-3-1 et seq. (ef f. Fe b. 2008)) (ERL TO). Def endants raised an aff

irmative defe nse, alleg ing that plaintiffs had damag ed the proper

ty , incurre d fines by the city
, and failed to pay utilit y bills in violation of both the ERL TO and the leas e. Fo l lowing a bench trial, the trial court found in favor of defe ndants. We reve rse a

nd rema nd with directions.

¶ 2 I . BA CKGROUND ¶ 3 In J uly 2007, plaintiff Nadhir beg an renting a proper ty i n t he City of Evanston (City) from defe ndants pursuant to a written lease ag ree ment. Nadhir rente d the apar tment located

on the first floor of the proper ty for the term of the lease

. Plaintiffs Welch and Battag lia later joined Nadhir in living at the proper ty , an d all three plaintiffs signe d a written lease
ag ree ment with defe ndants for a term t o run from J uly 1, 2009, to J uly 1, 2010. This lease

was for the apar

tment located on the second floor of the proper ty

. Other are as of the building, such as the gar age, baseme nt, y ard, and patio are as, wer e considere d common are as. Throug hout the 2009-10 lease period, the second- floor apar tment was the only occupie d unit in the building. ¶ 4 Pursuant to section 5-3-5- 1 of the ERL TO (Evanston Municipal Code § 5-3-5- 1 (ef f. Fe b. 2008)), plaintiffs paid defe ndants a s ec u ri ty deposit in the amount of $2,625, which
repr esente d contributions of $937 from Nadhir and Battag lia, and $750 from Welch. Intere st due on the se curity

deposit at the end of

the lease period amounted to $38.77. ¶ 5 Plaintiffs vacated the premises at some point prior to the termination of the lease period, but left some items such as c ouches in the baseme nt a rea in the car e of the new tena nts for

-2-later retrie val. On J une 30, 20 1 0
, p lain ti f f s a nd defe ndant Salomon conducte d a walk-through inspection of the premises. The condition of t he property at t his time was disputed at trial. Acc ording to plaintiffs, Salomon noted no issues with the proper ty other than the condition of the lawn. W el ch denied that plaintiffs had damag ed the proper ty during their stay by
, amongother thing s, brea

king w indows, putting holes in the fenc e and walls, or setting f ire
to the y ard. Battag lia and Nadhir testified simil arly to Welch, and all three asser ted that the
proper ty was undamag ed and clea n at the t i m e t h at they vacated it, and that Salomon had

never mentioned any

problems duringthe walk- throug h. ¶ 6 Plaintiffs eac h testified that the proper ty had been in poor condition at the time that they had moved in and that it was in about the same c ondition or better whe n their lea se ende d. Nadhir testified that the house continuously neede d repa irs and that t h ere wer e constant issues with the plumbing and water

. Nadhir stated that they had taken very g ood car e of the premises, and he testi fied that during the walk-through Salomon had in fac t rema rked that she wa s “ama zed how g ood this house looks.” ¶ 7 Salomon testified to a marke dly differ ent version of events. Acc ording to Salomon, whe n she arrived for the final walk-through she found that the s econd- floor apartment w as “just

a disaster, beer cans, there are food, there are shoes, furniture
, it was scar y .” Salomon stated that she often rente d to colleg e students, but the condition of the apar tment on that date was “one of the worst” that she had seen. Salomon testified that a new g roup of tenants wer e due
to move into t h e ap ar t m en t the next day
, and she beg an making calls in order to have the
apar tment clea

ned. Reg arding the condition of the proper ty on that date, Salomon testified: “[The] [c] arpe t was compl et ely soiled with food, with oily stuff nonrec og nizable, the ceiling looks like somebody shake beer bottles a nd stuff just fle w up so y ou can like a stamp of the beer t o p

. Fo o d
, b roken g lass in the patio door leadingto the bedroom, c arbon monoxide and g as dete ctor yanked out.
*** Kitchen is filth, the re fr i ger at or is broken from the inside, shelves was missing. Some other shelve s are beingtaped with scotc h tape.

***
The y ard was completely

burned. The re w as g lass all over the place

. There was stones, debris, bikes, g rills.”
A number of pictures wer e admitted to evidenc e that Salomon testified repr esente d the state of the proper

ty shortly befor e the final walk-thro ugh, but it appea rs that there wer e no pictures taken of the premises during the walk -t hroug h itself. Salomon also testified that defe ndants had rece ived a $75 fine fr om the City of Evanston for

acc umulated t rash in the front y ard, which was issued on J uly 12, 2010. Finally
, Salomon testified that she had to g ive
t h e n ew tenants a reduc tion in rent of $677.42 beca use they wer e unable to move i n t o t h e proper ty until J uly 10, 2010. ¶ 8 The fore g oing fac ts wer e disputed at trial, but the rema ining rele vant fac ts wer e not. O n J uly 9, 2010, defe ndants paid $290 to have the premises clea ned. Be g inning on J uly 6, 2010, defe ndants eng ag ed contra ctor J im Kar ras to perf orm various repa irs on the premises, which included both the first- and second- floor units Among other things
, Kar ras repa ired and painted the walls a

n d c eilings, repa ired damag ed car pet, repla ced broken blinds, and repla ced

-3-the g lass in a broken window. Al t h o u g h Kar ras repa ired the floor in both units, he also testified that he could not tell whether there was “any more or less damag e on the first floor than the second floor.” Kar ras issued a bill to defe ndants on J uly 15, 2010, which defe ndants paid on J uly 18, 2010. Kar ras later testified that he did not believe that it was possibl e to repa ir all of the damag e to the proper ty befor e J uly 21, 2010. Kar ras did not finish work on the y ard until about two months later. ¶ 9 On J uly 20, 2010, Salomo n s ent an e-ma il to Nadhir reg arding plaintiffs’ secur ity deposit. The e-mai l l i s t ed t he amount of the secur ity deposit and then, in a section entitled “De ductions,” listed the following : “F ire in lawn ha

ve to re place landsca

ping TBD
Gar bag e Pick-up TBD Cleaningafte r the g arba g e TBD City of Evanston fine for g arba g e in front of proper ty TBD
Br oken Window in unit TBD Smoke & Car

bon detec tors remove d and missing 150.00 Major scuf

fingand scr atche s in hardwood f loors TBD .” The e-ma il also contained a deduction direc ted solely to Nadhir that rea d, “Ne ver reg istered
g as meter for he at with Nicor G as–3200.00.” ¶ 10 On J uly 22, 2010, Nadhir sent an e-ma il to defe ndants reque sting the return of plaintiffs’

secur ity deposit. Nadhir noted in the e -mail that the deposit was require d to be returne d no later than J uly 21, 2010, but that plaintiffs had not y et rec eived it. Sims responde d to Nadhir and stated that Salomon was out of town and would not return for sever al day s. On J uly 31, 2010, defe ndants sent plaintiffs a second e-ma il r eg arding the secur ity deposit. This e-ma il

was structura lly identical to the first but contained dollar amounts for sever al line i t em s instead of “ TBD .” The “De ductions” sec tion now rea ds:
“F ire in lawn ha

ve to re place landsca

ping 1200.00
Gar bag e Pick-up TBD Cleaningafte r the g arba g e 150 City of Evanston fine for g arba g e in front of proper ty TBD
Br oken Window in unit 150.00 Smoke & Car

bon detec tors remove d and missing 150.00 Major scuf

fingand scr atche s in hardwood f loors 500.00.” The Nic or deduc tion as to Nadhir re mained the same. ¶ 11 Def

endants never returne d any portion of the secur ity deposit to plaintiffs. On August 24, 2010, plaintiffs filed a small-claims complaint ag ainst defe ndants, alleg ing that defe ndants violated the ERL TO by failing t o deliver written notice of the amount of damag es or ref unding the secur ity deposit within 21 day s. At trial, defe ndants argued that (1) the e x act amount of damag es to th e p re m ises was unknown until afte r J uly 21, 2010, beca use the damag e to the pre mises was so extensive, and (2) the amount of damag es wa s g reater than the secur ity deposi t an d there fore plaintiffs wer e not entitled to rec over any part of their

-4-secur ity deposit. The trial court initially grante d defe ndants’ motion for a direc ted finding at

the close of plaintiffs’ case -in-chie f, but defe ndants then went on to prese nt their own case

in-chief as an “ offe r of pr oof” a

nd the trial cour

t ruled on the mer its of the case

. ¶ 12 The trial court found that defe ndants wer e not require d t o s ub m i t the exact itemiz ed damag es within 21 day s of the end of the lease
, noting that defe ndants’ use of “TB D [t o be deter mined]” was “re asonable under the circ umstances” beca use defe ndants “ac tually didn’t know what th e costs would be until their repa irs wer e actua lly done and they rec eived the b ills, principally from the contra ctor.” The trial court further found that the J uly 20 e-ma il

was sufficie nt to satisfy defe ndants’ obligations under the ERL TO. Finally
, the trial court found that while plaintiffs had proven that defe ndants failed to return the security deposit in the amou n t o f $ 2
, 6 2 5 plus about $40 in interest, defenda nts had proven that plaintiffs had

cause d damag e to the proper ty , including the $75 citation, $170 for specia l g arba g e pickup, $290 in clea

ning costs, $3,562.44 in repa irs by Kar ras, and $1,738 for the Nicor heat bill. The trial court stated that the amount of damag es to the proper ty was “ more than e noug h offse t for the amount of the secur ity deposit” and acc ording ly enter ed judgme nt in favor of defe ndants. Plaintiffs timely appea led.

¶ 13 I I . ANALYSI S ¶ 14 A. “Mootness” ¶ 15 W e m u s t i n i t ially addre ss defe ndants’ mislabeled arg ument that plaintiffs’ appea l i s “moot” on the ground that the trial c ourt g rante d defe ndants’ motion for a direc ted finding at the close of plaintiffs’ case

. Def endants’ motion wa s based on the fac t that pla intiffs did
not enter a written lease into eviden ce

. The trial court g rante d the motion, finding that beca use plaintiffs had testified that they paid a se curity

deposit pursuant to a wr itten lease, they wer e required to enter the l ease into evidence in order to suc cee d in their claim under the ERL TO. After g ranting the motion, howeve r, plaintiffs asked the cou rt to allow defe ndants to prese nt their case as an “off er of proof.” The ostensible rea son for this was to enable the court to rule on the m erits of the case i n t h e event that the t rial court’s decision was somehow later rever sed. Yet afte r hearing defe ndants’ evidence, t h e trial court iss ued

a ruling on the merits. Now on appea l, defe ndants argue that the trial court’s direc ted finding ruling is the controlling one, ra t h er than the ruling on the merits. Def endants argue that beca use plaintiffs failed to argue in their opening brief that the trial court’s direc ted finding ruling was err or, they have forf eited that issue and we need not rea ch the merits of plaintiffs’
appea l. ¶ 16 Reg ardle ss of what we may think about the corr ectne ss of the trial court’s rea soning on the motion for a direc ted finding
, that ruling is irrele van t to this appea l. Not only is defe ndants’ own arg

ument forf

eit for lack of citation to authority (I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008)), but th e rec ord is clea r that the trial court vacated the direc ted finding afte r defe ndants p re s en t ed their case

. The trial court stated that the judgme nt afte r trial “ca n superse de [t he direc ted finding ] or it can supplement it. *** In eff ect it’s irrele vant at this point beca

use I ju s t m ad e a rul ing on the merits.” There was conseque ntly no rea son for plaintiffs to raise this issue in their brief , and it has no ef

fec t on this appeal.

-5-¶ 17 B. Retur n of the Sec urity

Deposit ¶ 18 P l ai n t i ffs’ first argument on appea l is that the trial court’s ju d gm en t i n fa v o r o f defe ndants was err or beca use defe ndants’ use of “TB D” in place of a dollar amount for the deductions in the J uly 20 e-ma il does not satisfy the ERL TO. As noted above, the trial court found that “TB D” satisfied the ERL TO beca use it was rea sonable under the circ umstances. ¶ 19 The meaning of an ordinanc e is an issue of statutory construction that we revie w de novo

. See City of Chicago v. Driscoll
, 373 I ll. App. 3d 945, 9 4 6 (2 0 0 7 ). “W hen construing the meaning of a disputed statute, this court’s primary objective is to asce rtain and g ive effec t to the intent of the leg islature. [C itation.] L eg islative intent is best deter mined by examining the statutory languag e, which must be g iven its plain and ordinary meaning .” Lucas v. Lakin
, 175 I ll. 2d 166, 171 (1997). Moreove r, the ERL TO states that it is to be “libera lly construed and applied to promote its purposes and policies” (Evanston Municipal Code § 5-3-1( C) (ef f. Fe b. 2008)), which are decla red to be “to establish rig hts and obligations of the landlord and the tenant in the renta l of dwelling units and to encour ag e the landlord and t h e t en an t to maintain and improve the quality of the housing” (Evanston Municipal Code § 5-3-1( B) (ef f. Fe b. 2008)). ¶ 20 Reg ardingthe re turn of sec urity deposits, the ERL TO states a s follows: “Upon termination of th e t en an cy , proper ty or money held by the landlord as

secur ity or prepa id rent may be applied to t h e p ay ment of acc rued rent and the
amount of damag es which t h e landlord has suffe red by rea son of the tenant’s noncompliance with se ction 5-3-4- 1 of this c hapter
, all as it emized by the landlord in a written notice delivere d to the tenant together with the amount due twenty one (21) d ay s af

t er tenant has vacated his unit. Any secur ity or prepa id rent not so ap p l i ed
, and any interest on such secur ity due to tenant, shall be paid to the tenant within twenty one (21) day s afte r tenant has vaca ted his unit.” (Emphasis added.) Evanston Municipal Code § 5-3- 5-1(C) ( eff . Fe b. 2008).
The italicized languag e above is the portion of this section at issue. Def endants conce de that they are require d to provide plaintiffs with an itemiz ed list of the type of damag es within 21 day s, but they

argue that they are not obligated t o provide plainti ffs with the actual cost of the damag es and the specific amount to be deduc ted from the security deposit at t hat time. Def endants argue that the J uly 20 e-ma il, which li sted all items except the s moke de t ector and the Nicor heat bill as “TB D,” was sufficie nt to satisfy their obligation under the ERL TO. ¶ 21 Def

endants’ position is not supported by the plain languag e of the ERL TO. In the eve nt that a tenant damag es t he premises, the ER L TO requires the landlord to send t he tenant in writing an itemiz ed list of the damag es “ together with the amount due.” (Emphasis added.) Evanston Municipal Code § 5-3-5- 1(C) (ef f. Fe b. 2008). Although it is at least arguable that the term “amount due” is slightly unclea r when rea d i n isolation, its meaning is obvious when it is rea d in context with the next sentenc e, which require s the return within the same 21-day period of “[a]ny secur ity or prepa id rent not so applied.” (Emphasis added.) Evanston Municipal Code § 5-3-5- 1(C) (ef f. Fe b. 2008). I t is well settled that when interpre ting a statute, “[t] he st atute should be read as a whole and construed ‘so that no term i s rende red

-6-superf luous or meaning less.’ ” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc.
, 238 I ll. 2d 455, 461 (2010) (quoting In re Marriage of Kates
, 198 I ll. 2d 156, 163 (2001))

. I f we wer e to adopt defe ndants’ position that they may list t he dollar a

mount of any deduction merely

as “to be deter

mined” in the 21-day notice, the second sentenc e of section 5-3-5- 1(C) would be completely superf

luous beca

use if the amount that must be returne d to the tenant is unknown, t h en i t i s impossibl e to return that amount within the 21-day period. Adopting defe ndants’ position would mean that a landlord could evade the 21-day return require ment

mere ly by g iving a tenant notice of some u n specifie d damag es, rende ring that deadline meaning less. We cannot acc ept an interpre tati o n of the ERL TO that would lead to such a result. ¶ 22 Contrary to defe ndants’ position, we rea d the plain languag e of the ERL TO to require a landlord, within 21 day s of a tenant vacating the premises, to send written notice to a tenant of any deductions that t he landlord plans to withhold from the se curity deposit in the form of an itemiz ed list with specific dollar amounts. Wit hin that same 21-day period, the landlord
must also deliver to the tenant the balanc e of the s ec u ri ty deposit, minus the itemiz ed deductions. ¶ 23 T o t h e ex t en t that the trial court found and defe ndants now argue on appea l t h at a landlord i s not requir ed to list a doll ar amount for each item of damag es i f i t is rea sonable under the circ umstances not to, we can f ind no support for this proposition in t he ERL TO. Section 5-3-5 -1 (C ) m an d ates that a landlord “shall” provide the notice to the tenant and “s h al l ” return the secur ity deposit within 21 day s of the end of the lease

. There is no “re asonable ness” exception to this require ment in the express provisions of the ERL TO, and when construing a statute we may not “re ad into the statute ex ce p t i o ns, limit ations, or

co nditions which the leg islature did not express.” Hines v. Departme nt of Public Aid
, 2 2 1 I ll. 2d 222, 230 (2006); acc ord Lawrence v. Rege nt Realty Group
, 197 I ll. 2d 1, 10-11 (2001) (“Under our sy stem of g overnme nt, courts may not rewrite statutes to make them consistent with their own idea s of orde rliness and public policy .”). ¶ 24 Moreove r, to the extent that defe ndants argue that they should be excused from the 21- day require ment beca

use the extensive damag e to the proper ty alleg edly made it impossibl e fo r them to specific ally list the damag es within that time, their argument is unper s u as i v e. First, there was ample evidenc e at trial that the majority of the work on t h e p re m i ses was either in prog ress or had been completed and paid for befor e the 21-day deadline, particula rly the clea ning and trash remova l, but this was no t re fl ecte d in Salomon’s J uly 20 e-ma il. Def endants fail to e x plain why this infor mation w as not included in the e-ma il or why they should be excused from pr oviding infor mation that they

in fac t had. ¶ 25 Second and more importantly
, the inability to obtain a damag es estimate within 21 day s is irrele vant to a landlord’s duty under section 5-3-5- 1(C) to return the secur ity deposit. L and l ords are not fore ver barre d from holdi ng their t enants accounta ble for damag e to the
proper ty if they return a sec urity deposit befor e deduc ting damag es fr om it. Section 5-3-6- 1(C) explicitl y

grants a landlord t he right t o rec over the same damag es i n a lawsuit fr om a tenant as can be withheld from a security deposit under section 5-3-5- 1(C ). See Evanston Mu n i ci p al C o d e § 5-3-6- 1(C) (ef f. Fe b. 2008). In the event that a landlord is unable to deter mine the full extent of damag es cause d b y a t en ant within 21 day s of the end of the

-7-lease
, the land l o rd can still file suit ag ainst the tenant in order to rec over those damag es.

There is no rea son to rea d a “re asonable ness” exception into section 5-3-5- 1(C) when the ERL TO expressly provides a method for ensuring that a tenant is held ac co u ntable for damag es to lease d premises. Cf. Mallah v. Barkauskas
, 130 I ll. App. 3d 815, 816-17 (1985) (discussing the eff

ect of a landlord’ s failure to provide a timely estimate of damag es under the I llinois Security

Deposit Return Ac t (I ll. Rev. St at. 1983, ch. 80, ¶ 101 (now 765 I L CS 710/1 (West 2010)), and noting that the proper course of action is to return t h e s ec u ri t y deposit to the tenant and c ommence a n action for

damag es). ¶ 26 In sum, the trial court e rre d when it found that de fenda nts were not r equire d to include

a dollar estimate of the damag es when they notified plaintiffs that they intended to withhold part of the security deposit. Defe ndants’ use of “TB D” a s a plac eholder was insufficient to satisfy the ERL TO. ¶ 27 The rema ining question is whether defe ndants wer e entitled to withhold plaintiffs’ entire

secur ity deposit. This is a question of fac t, and on issues of fac t we “def er to the finding s of
t h e t ri al co urt unless they are ag ainst the manifest weig ht of the evidenc e.” Eyc haner v. Gross
, 202 I ll. 2d 228, 251 (2002). “A decision is ag ainst the manifest weig ht of the evidenc e only when the opposite conclusion is appar ent or when t h e finding s appea r to be

unrea sonable, a

rbitrar y , or not based on the evidenc e.” Id. at 252. ¶ 28 Under section 5-3-5- 1(C), defe ndants are authorized to withhold only damag es “suf fer ed by rea son of the tenant’s noncompliance wit h section 5-3-4- 1” of the ERL TO. Evanston Municipal Code § 5-3-5- 1(C) (ef f. Fe b. 2008). Section 5-3-4- 1 deals with the obligation of
a tena nt to maintain the leased dw elling. Under this sec tion, a tenant must: “(A ) Comply with all obligations imposed upon tenants by provisions of the codes a pplicable to the dwe lling unit; (B ) Kee p that part of the premises that he o ccupie s and uses as safe as the condition of the pre mises permits; (C) Dispose from his dwelling unit all ashes, rubbish, g arba g e and other waste in a clea n and saf e manne r; (D) Kee p all plumbing fix tures in the dwelling unit or used by the tenant as clea n as their c ondition permits; (E ) Us e in a rea sonable manner all elec trical, plumbing, sanitary
, heating, ventilating, air conditioning and other fac iliti es and appliance s, including elevators, in the premises; (F ) Not delibera

tely or neg lige ntly destroy
, defa ce, d a ma g e, impair or remove and part of the premises or know ingly permit any

person to do so; (G) Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb hi s n eighbor’s peac eful enjoy ment of the pre mises; and (H) Not eng ag e in or permit the u nlawful selling, possession, serving
, storag e, deliv er ance , manufa cture , cultivation, g iving awa y or use of any controlled substance; prostitution; or g ambling on the lease d premises.” Evanston Mu n i ci pal

-8-Code § 5-3-4- 1 (ef f. F eb. 2008). ¶ 29 Two fac tual finding s are pertinent to our analy sis on this issue. First, the trial court found that plaintiffs vacated t he premises on J une 30, 2010, which bega n the 21-day notification and return period for the secur ity deposit. Although defe ndants argue that plaintiffs left some items behind on the proper ty and there fore did not vacate the premises until Jul y 10, 2010, it does not appea

r from the rec ord that the trial court made that particula r fac tual finding

. In its ruling, the tria l c ourt mentioned the J uly 10 issue but stated that “I don’t think Ihave to

nece ssarily rul e o n t h at issue.” The trial court’s discussion on this point is framed as a hy pothetical, not a ruling

. Moreove r, the trial court had alre ady found that plaintiffs vacated the premises on J une 30, so a ruling that they did not vacate until J uly 10 would be in direc t conflict wi th the court’s previous finding of fac t. Def endants do not arg

ue that the trial court’s finding that plaintiffs vacated the premises on J une 30 is ag ainst the manifest weig ht of the e vidence , so we a ccor dingly use that date in our ana ly sis. ¶ 30 The second finding of fac t is th a t defe ndants proper ly withheld $5,835 as damag es, which included $1,738 for the Nicor heat bill, $290 for the clea nup, $170 for g arba g e remova l, the $75 fine, and sever al Kar

ras bills that totaled $3,562. The trial court treated these damag es

as an offse t to the $2,665 in secur ity deposit and interest that plaintiffs claimed. Be cause defe ndants’ damag es were gr eate r t han the total secur ity depo s i t , t h e trial court found that plaintiffs wer e not e ntitled to the return of any of their secur ity deposit and that def endants

wer e ther efor e not liable under ERL TO for

failingto return it. ¶ 31 Although these damag es wer e all proven at trial, the problem with the trial court’s f inding

on this point is that the J uly 20 e-ma il did not list these damag es. The only damag es listed 1 in the J uly 20 e-ma il we re $150 for the missing smoke and car bon monox ide detec tors and $3,200 for the Nicor heat bill. Be cause section 5-3-5- 1(C) o n l y authorizes the landlord to deduct damag es from the secur ity deposit that are listed in the 21-day notice, defe ndants had

no authority to deduct any expenses that wer e not itemiz ed in the J uly 20 e-ma il. The trial
court was incorre ct to find that defe ndants wer e entitled to deduct the Kar ras bills and other
expenses from the secur ity deposit. The evidenc e is undisputed that these damag es wer e not proper ly itemiz ed in the J uly 20 e-ma il, so the trial court’s finding on that point is ag ainst the manifest we ight of

the evidenc e. ¶ 32 The question n o w b ec o m es wh et h er t h e damag es that wer e itemiz ed wer e prope rly deducte d from the secur ity deposit. Plaintiffs conce de that the $150 for the smoke and car bon

monox ide detectors was itemiz ed and was therefor e p ro perly withheld. We ag ree

. Section 5-3-4- 1(F ) prohibits tenants from removing parts of the premises, and there was no dispute at trial that the de tectors we re missingwhen plaintiffs move d out. 2

T o the ext ent tha t def

end ant s ar gue tha t the J uly 31 e- m ai l li st s m ore it emiz ed damag es tha n 1 the J uly 20 e- m ai l, we not e tha t the J uly 31 e- m ai l is not re le vant to our ana lysis unde r sec ti on 5- 3- 5- 1(C) b e c a u s e i t was not sen t unt il m ore tha n 21 days had el aps ed si nce pla int if fs vacat ed the
pre m is es on J une 30.

Give n t h a t p la int if

fs con ced e tha t the $150 for the det ect ors was pro per ly wit hhe ld, we 2

ass um e witho ut dec idi ng tha t the det ect ors ar e part s of the pre m is es wit hin the m ean ing of se ct ion

-9-¶ 33 The Nicor heat bill, howeve r, shou l d n o t h ave been withheld. This char g e arose from

Nidhur’s alleg ed failure to have the utilit y company transfe r the heat bill from defe ndants to him, which was alleg edly require d pursuant to the written lease that Nidhur signe d in 2007 when he first moved i n. Although the J uly 20 e-ma il orig inally soug ht $3,200 for this bill, defe ndant Sims appar ently rea liz ed at trial that the bill included charg es from a time period during which none of plaintiffs had lived in the premises, which is why the trial court found damag es of only $1,738 on this item. Howev er , t h e problem is that reg ardle ss of whether Nidhur in fac t brea ched his obligation under the lease
, this char g e cannot be deducte d from the secur ity deposit under section 5-3-5- 1(C). Although the trial court found that Nidhur had brea ched his duty to pay this bill under the lease
, compliance with the lease ag ree ment is not

an obliga tion of a tenant under section 5-3-4- 1. Def endants wer e there fore not authorized to deduct any

thing from the secur ity deposit due to the Nicor heat bill. The trial court’s finding to the contra

ry was a g ainst the manifest we ight of the evidenc e. ¶ 34 In sum, the onl y amount proper ly deducte d from t h e s ec u ri ty deposit was the $150 for the missing detec tors. Def endants should h av e returned all but $150 of the deposit to plaintiffs no later than 21 day s afte r plaintiffs vacated the premises on J une 30. Be cause they did not do so, they are liable to plaintiffs under section 5-3-5- 1(F ) for twice the amount wrong fully

withheld plus reasona

ble attorne y

fee s.

¶ 35 C. Setoff ¶ 36 The last issue conce rns whether the trial court proper ly found that the Nicor heat bill and the Kar ras work char g es fully o ffse t the secur ity deposit. Plaintiffs contend that these damag es wer e improperly assessed, while defe ndants asser t that the trial court corr ectly assessed these damag es and, beca use the damag es wer e gre at er than the secur ity deposit,

corr ectly found defe ndants not liable. Both the trial court and defe ndants char acte rized these damag es as a “setoff

” for th e s ecur ity deposit, and defe ndants argue that these damag es absolve de fenda

nt of liability

to plaintiffs. ¶ 37 We need not eve n consider whether the damage s evidenc e that was adduce d at trial on the Nicor bill and the Kar ras wor k was sufficie nt. D efe ndants are not e ntitled to a setoff of
any kind beca

use they failed to counter claim ag ainst plaintiffs. What defe ndants and the trial
court overlooke d at trial is that a setoff is a counter claim, which is a very differ ent proce dural device than an a ffirmative defe nse: “[T] he di ff

ere nce betwee n a counter claim and an aff irmative defe nse is that a counter claim seeks aff

irmative relief wher eas an a f f ir mative defe nse mere ly attempts to defe at a plaintiff’s cause of action. [C itation.] Presently
, the proce dural concept of setoff is subsumed under the term ‘counte rcla im’ even wher e no aff irmative relief is
soug ht. [C itations.] Setoff most commonly app ea rs as a counter claim filed by a defe n dant, based upon a transac tion extrinsi c to that which is the basis of the plaintif f ’ s c a u s e o f action. [C itations.] ” Lake County Grading Co. of Libertyville, Inc. v. Adv ance M

echanic al Contractors, Inc. , 275 I ll. App. 3d 452, 461-62 (1995).

5- 3- 4- 1(F ).

-10-Put another way , an aff irmative defe n s e is desig ned to defe at a defe ndant’s liabili ty to a plaintiff, wher eas a setoff is a ty pe of counter claim that is desig ned to mitigate the damages that a liable defe ndant owes to a plaintiff. Counterclaims are controlled by section 2-608 of the Code of Civil Procedur e (735 I L CS 5/2-608 (West 2010)), wher eas aff irmative defe nses

are controlled by section 2-613 (735 I L CS 5/2-613 (West 2008)). In small-claims case s such

as this one, which are desig ned to be less formal than other proce eding s, i s s u es s u ch as counter claims an d aff

irmative defe nses that normally must be raised in the answe r to the
comp l ai n t n ee d not be specific ally pled in written pleading s. See I ll. S. Ct. R. 286(a) (ef f. Aug . 1, 1992). ¶ 38 In this case, de fenda nts raised a

nd argued the Nic or heat bill and the Karra s char g es as

an aff irmative defe nse, not as a counter claim. In fac t, the trial cou rt and defe nse counsel discussed this specific proce dural point at the beg inning of the trial. During o p ening statements, defense counsel sta t ed t hat “the testimony is g oing to indicate that the amount of damag es done to this proper ty far exceede d the secur ity deposit,” and defe nse counsel stated that beca

use of this he i n t en d ed t o ask the trial court for “not a liable verdic t.” Immediately following defe ndants’ opening statement, the trial court asked, “I s th er e a counter claim? ” Def

ense counsel responde d, “The re is no counter claim.” Def endants then
went on to prove up during trial the various damag es that they alleg edly incurre d. After trial, the trial cour

t ruled: “[T] he landlords, the defe ndants here
, have adequately shown m o re t h an enoug h off s et fo r the amount of the secur ity deposit *** [pl aintiffs are ] not entitled to the
p enalty
, statute, the ordinanc e require s [ sic ] of two times the secur ity deposits and beca use the damag es are g reater than the amount of the secur ity deposits, they ’re not entitled to their [ sic ] return of their se curity deposits. There fore
, the plaintiffs’ prayer for relief *** [i s] denied. J u d gm en t will be
enter ed for

defe ndant on that pra

yer ***.”
Ba sed o n al l o f t hese statements and finding s, the rec ord unequivoca lly demonstrates that defe ndants and the tria l court treated the dama g es asse rted by defe ndants as an a ffirmative defe nse t hat was intended to entirely defe at plaintiffs’ c laim, rather than as a counter claim that would not defe at liability but would instead offse t any damag es awa rded to plaintiffs in the event that defe nd an t s we re found to be liable. Compare 735 I L CS 5/2-613(d) (West 2010) (noting that an aff

irmative defe nse “see ks to avoid the leg al eff ect of or defe at[s] the

cause of action set forth in the complaint”), with 735 I L CS 5/2-608(a) (West 2008) (def ining

a counter claim as a claim “in the nature of a setoff, rec oupment, cross claim or otherwise” ). ¶ 39 The eff

ect of defe ndants’ proce dural choice not to asser t a counter claim is twofold. First, the damag es that defe ndants prove d at t ri al are not an aff irmative defe nse that can

succe ssfully absolve de fenda nts of liability

in this case. Ha d defe ndants proper ly provided plaintiffs with the require d notice and proper ly deducte d damag es under section 5-3-5- 1(C) of the ERL TO, they

could have raised the ir compliance with the ERL TO as a n aff irmative defe nse to plaintiffs’ cl ai m

. See 735 I L CS 5/2-613(d) (West 2010). As we found above, howeve r, def

endants fa iled to comply

with the ER L TO, so that defe nse fails. The fact that defe ndants wer e later able to prove damag es at trial does nothing to shield them from liability

-11-for their failure to timely return the secur ity deposit, which is the basis of plaintiffs’ c laim. ¶ 40 Second, defe ndants’ failure to asser t a counter claim bars them from using these damag es

as a setoff. Reg ardle ss of whether defe ndants improperly withheld plain tiffs’ secur ity deposit

or failed to prove their aff irmative defe nse, section 5-3-6 -1 (C ) of the ERL TO expressly authorizes landlords t o rec over these t y pes of damag es fr om tenants. Def endants therefor e could have raised the se dama g es as a counter claim ag ainst plaintiffs and sought not only a setoff but also aff

irmative relief for plaintiffs’ damag e to the proper ty and Nadhir’ s alleg ed brea ch of the l ease provision. Yet defenda nts did not do so, instead choosing t o ra i s e only the aff irmative defe nse that they had compl i ed wi t h section 5-3-5- 1(C) of the ERL TO. Be cause they

did not raise a c ounterc laim, defe ndants are not entitled to any setoff. ¶ 41 We rec og nize that this is a somewhat strang e result, g iven t h at t h e t ri al court a llowed defe ndants to prove up their damag es at trial and re l i ed on those damag es in enter ing j u d gm en t fo r defe ndants. The trial court was incorre ct to do so, howeve r, and this resul t 3 follows direc tly from defe ndants’ proce dural choice s in litigating this case

. Def endants expressly chose not to counter claim ag ainst plaintiffs even though they could have, and the

succe ss o r failure of the aff irmative defe nse that they did raise was depende nt on the trial court’s err oneous finding that defe ndants complied with section 5-3-5- 1(C) of the ERL TO. Be cause defe ndants’ aff

irmative defen s e failed and they did not asser t a counter claim, defe ndants are not only liable to plaintiffs but are also not entitled to any setoff of plaintiffs’ damag es.

¶ 42 I I I . CONCLUSI ON ¶ 43 Def

endan ts f a il e d to g iv e p lain

tiffs proper notice of deductions from their secur ity deposit and failed to return the balanc e of the secur ity deposit within 21 day s as require d by section 5-3-5- 1(C) of the ERL TO. Def endants failed to prove their aff irm at ive defe nse of compliance with the ERL TO, and they are there fore liable to plain ti f f s

. M o r e over, defe ndants

are not entitled to any setoff of plaintiffs’ damag es beca use they did not asser

t a counter claim
ag ainst plaintiffs. I t wa s t h er ef ore err or for the trial court to enter judgme nt in favor of defe ndants. We acc ording ly reve rse an d rema nd with direc tions to enter judgme nt for plaintiffs and for the deter mi n at i o n o f damag es and rea sonable attorney fee s pursuant to section 5-3- 5-1(F ) of the E RL TO.

¶ 44 Reverse d; cause rema nded with direc tions.

Given our re sol uti on of thi s is sue , we do not re ach the spe ci fi cs of pla int if fs ’ cl ai m s of er ror 3
on t he Ni corbi ll andth e K arra s wor k.

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