## Illinois Official Reports

Appellate Court

Benford v. Everett Commons, LLC , 2014 IL App (1st) 131231

Appellate Court Caption PAMELA BENFORD, Plaintiff-Appellant, v. EVERETT COMMONS, LLC, Defendant-Appellee.

District & No. First District, Fifth Division

Docket No. 1-13-1231

Filed May 2, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) The trial court’s order awarding defendant landlord reimbursement of its attorney fees and costs in defending plaintiff’ s action for damages arising from defendant’s failure to maintain plaint iff’s apartment in compliance with the Chicago Residential Landlord an d Tenant Ordinance and the implied warranty of habitability was reversed, since defendant was not the prevailing party where judgment was entered for plaintiff, even though no damages were awarded, and no

fees or costs were due under either the lease or th e ordinance.

Decision Under

Review Appeal from the Circuit Court of Cook County, No. 1 1-M1-17472; the Hon. Sidney A. Jones III, Judge, presiding.- 2 -

Judgment Reversed and remanded.

Counsel on
Appeal John O. Noland, Jr., of Chicago, for appellant.

Scarpelli & Brady, LLC, of Park Ridge (Nicholas J. Scarpelli, of counsel), for appellee.

Panel JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice McBride concur red in the judgment and opinion.

OPINION

¶ 1 Plaintiff Pamela Benford appeals from an order of the trial court awarding defendant

Everett Commons, LLC, reimbursement of the attorney fees and costs it incurred in defending against plaintiff’s landlord-tenant action. We reve rse and remand.

¶ 2 BACKGROUND
¶ 3 Plaintiff filed an action against defendant, her l andlord, seeking damages for defendant’s

failure to maintain her rental apartment in complia nce with the Chicago Residential Landlord and Tenant Ordinance (RLTO) (Chicago Municipal Code § 5-12-150 (amended Nov. 6, 1991)) and the implied warranty of habitability. She asser ted water leaks in her rental apartment caused (a) her clothing, electronics and furniture to be ruined beyond repair and (b) mold to grow, causing her respiratory problems. She sought damages for the loss of her personal property and the cost of her medical care and expen ses resulting from the mold. Defendant filed three affirmative defenses, asserting (1) pla intiff was barred from pursuing her claims because her repeated and continuous failure to prov ide access to her apartment for inspection and repair purposes violated the requirements of th e RLTO, (2) she failed to mitigate her damages and (3) she failed to pay rent for the apar tment and, therefore, any judgment for plaintiff should be offset by the amount of past-du e rent. ¶ 4 A multiday jury trial commenced on plaintiff’s sec ond amended complaint. At the close of

plaintiff’s case, the court granted defendant’s mot ion for a directed verdict on property damage, finding plaintiff failed to present any evi dence of the fair market value of her damaged property. It denied defendant’s motion to b ar plaintiff from testifying regarding her personal injury and medical treatment.
¶ 5 On October 22, 2012, the jury came to its verdict. All 12 jurors executed “VERDICT

FORM B,” which provides as follows:- 3 - “We, the jury, find for the plaintiff and against the defendant, and further find the following:
First: Without taking into consideration the quest ion of reduction of damages due to any affirmative defense, we find that the total amount of damages suffered by the plaintiff as a proximate result of the occurrence i n question is $0, itemized as follows:
The reasonable expense of necessary medical care, treatment and services received: $0 Second: Considering the first and third affirmativ e defenses, we find that the reduction attributable solely to the plaintiff’s co nduct is $5,850

. Third: After reducing the total damages sustained by the plaintiff by the reduction attributable solely to the plaintiff’s conduct, we assess the plaintiff’s recoverable damages in the sum of $0 .”
¶ 6 The court entered judgment on the jury verdict on the same day, October 22, 2012. It

entered the following order:
“The jury having returned a unanimous verdict in f avor of defendant and against plaintiff Benford.

IT IS HEREBY ORDERED:
1) Judgment is hereby entered on the verdict in fa vor of defendant and against plaintiff. 2) Defendant’s costs to be reimbursed by plaintiff .” The court denied plaintiff’s motion to reconsider t he directed verdict on December 26, 2013.
¶ 7 Plaintiff filed a timely notice of appeal on Janua ry 18, 2013 and an amended notice of

appeal by leave of court on August 15, 2013, appeal No. 1-13-0314. She appealed the court’s directed verdict, the jury verdict and the court’s denial of her motion to reconsider. We resolved her appeal in Benford v. Everett Commons, LLC , 2014 IL App (1st) 130314 ( Benford

I ), an opinion filed on the same date as the instant opinion ( Benford II ). In Benford I , we affirmed the court’s grant of a directed verdict on property damage and affirmed the jury verdict in favor of plaintiff assessing zero damage s. However, we remanded for correction of the court’s order entering judgment for defendant w here the jury found for plaintiff.
¶ 8 While Benford I was pending on appeal, the case continued below on defendant’s request for reimbursement of attorney fees and costs. In th e court’s October 22, 2012, order entering judgment “on the jury verdict in favor of defendant ,” the court ordered “defendant’s costs to be reimbursed by plaintiff.” Defendant filed a motion for reimbursement in November 2012 seeking reimbursement of its appearance fee, trial witness subpoena fee and reasonable attorney fees pursuant to the court’s order and und er section 5-12-180 of the RLTO, asserting it was the prevailing party. 1

1 Section 5-12-180 of the RLTO provides:
“Except in cases of forcible entry and detainer ac tions, the prevailing plaintiff in any action arising out of a landlord’s or tenant’s application of the rights or remedies made available in

this ordinance shall be entitled to all court costs and reasonable attorney’s fees; provided, however, that nothing herein shall be deemed or int erpreted as precluding the awarding of attorney’s fees in forcible entry and detainer acti ons in accordance with applicable law or as expressly provided in this ordinance.” Chicago Muni cipal Code § 5-12-180 (added Nov. 6, 1991).- 4 - ¶ 9 Plaintiff responded that, although a provision in the parties’ lease agreement provides for

attorney fees to be paid to the landlord should it be required to file an action to enforce the lease due to plaintiff’s breach thereof, such a provision is unenforceable pursuant to section 5-12-140(f) of the RLTO. 2 She also argued that defendant’s claim for attorne y fees was barred under the RLTO because defendant was seeking the fe es in its forcible entry and detainer action and because defendant had not pled a remedy available under the RLTO in its

affirmative defenses.
¶ 10 Defendant pointed out in its reply to the response that it was seeking reimbursement for its

expenditures in plaintiff’s landlord-tenant complai nt, not in its own eviction action, which it had filed as a wholly separate case. It also assert ed that the jury had awarded it $5,850 on its

first and third affirmative defenses and those defe nses had invoked remedies under the RLTO. Specifically, its first affirmative defense, regard ing plaintiff’s failure to provide defendant access to her apartment, quoted from the RLTO and t he third affirmative defense sought past-due rent as provided in section 5-12-13(a) of the RLTO.
¶ 11 The court granted the motion for reimbursement on February 6, 2013, and ordered

defendant to file an attorney fee petition. It gran ted the petition over plaintiff’s objections on March 14, 2013, ordering plaintiff to pay defendant $24,785 for attorney fees and costs and
court costs. It ordered that its October 22, 2012, order be amended to reflect the $24,785 judgment in favor of defendant and against plaintif f.
¶ 12 Plaintiff timely filed her notice of appeal from t he court’s order on April 9, 2013, appeal

No. 1-13-1231 ( Benford II ), the case at bar. 3 Although Benford I and Benford II

are related, on plaintiff’s motion, we did not consolidate the case s.

¶ 13 ANALYSIS
¶ 14 Plaintiff argues the court erred in granting defen dant reimbursement of its attorney fees and

costs for five reasons:
(1) The RLTO provides for attorney fees to a preva iling party, which defendant was

not; (2) The trial court usurped the jury’s role;

2 Section 5-12-140(f) of the RLTO provides:
“Except as otherwise specifically provided by this chapter, no rental agreement may provide that the landlord or tenant:

* * *
(f) Agrees that in the event of a lawsuit arising o ut of the tenancy the tenant will pay the landlord’s attorney’s fees except as provided for b y court rules, statute, or ordinance[.]

* * *
A provision prohibited by this section included in a rental agreement is unenforceable. The tenant may recover actual damages sustained by the tenant because of the enforcement of a prohibited provision. If the landlord attempts to e nforce a provision in a rental agreement prohibited by this section the tenant may recover t wo months’ rent.” Chicago Municipal Code § 5-12-140(f) (amended Nov. 6, 1991).

3 The record on appeal includes the four-volume recor d filed in Benford I

.- 5 - (3) The RLTO voids the lease terms for attorney fe es; (4) The jury verdict must be reversed since the ev idence showed that plaintiff did not restrict access to her apartment; and
(5) Attorney fees are not provided in the RLTO’s l andlord remedies for improper

denial of access.
The construction and legal effect of the lease agre ement and the provisions of the RLTO are questions of law, which we review de novo. Plambeck v. Greystone Management & Columbi a National Trust Co. , 281 Ill. App. 3d 260, 266 (1996).

¶ 15 A. Prevailing Party
¶ 16 Citing to section 5-12-180 of the RLTO, plaintiff first argues that the court erred in

awarding defendant attorney fees since defendant wa s not the prevailing party in her action and

the RLTO does not allow fees to a defendant that wa s not the prevailing party. Section 5-12-180 of the RLTO provides as follows:
“Except in cases of forcible entry and detainer ac tions, the prevailing plaintiff in any action arising out of a landlord’s or tenant’s application of the rights or remedies

made available in this ordinance shall be entitled to all court costs and reasonable attorney’s fees; provided, however, that nothing he rein shall be deemed or interpreted as precluding the awarding of attorney’s fees in fo rcible entry and detainer actions in accordance with applicable law or as expressly prov ided in this ordinance.” Chicago Municipal Code § 5-12-180 (added Nov. 6, 1991).

Plaintiff is correct that defendant cannot recover costs and attorney fees under section 5-12-180 of the RLTO. Defendant was not the prevail ing party below, let alone the “prevailing plaintiff” as required for recovery of costs and fe es under section 5-12-180.
¶ 17 We resolved the question of whether plaintiff or d efendant was the prevailing party below

in Benford I , addressing defendant’s assertion that plaintiff’s argument on appeal incorrectly supposed that the jury had found in plaintiff’s fav or on issues of liability. We resolved the question in plaintiff’s favor, finding that defenda nt failed to provide any evidentiary support for its assertions that (1) the jury did not intend to find for plaintiff and entered its verdict in favor of plaintiff in error and that (2) the court had a basis for entering an order contrary to the jury verdict. Benford v. Everett Commons, LLC , 2014 IL App (1st) 130314, ¶¶ 50-51. We held that, “[a]bsent an inquiry by the court regarding t he jury verdict and an opportunity for the jury to correct the verdict, the court had no authority to enter an order contrary to the jury verdict.”

Id. ¶ 51. We found “[p]ursuant to that verdict, plaint iff was the prevailing party below” and

remanded for correction of the court’s order to ref lect the jury verdict in favor of plaintiff. Id

. ¶ 18 Further, as plaintiff points out, defendant did no t file a counterclaim in plaintiff’s action.

Instead, defendant filed three affirmative defenses in the action, asserting (1) plaintiff was barred from pursuing her claims because her repeate d and continuous failure to provide access to her apartment violated the requirements of the R LTO, (2) she failed to mitigate her damages, and (3) she failed to pay rent for the apartment an d, therefore, any judgment for plaintiff should be offset by the amount of past-due rent. Given tha t the jury verdict stated, “[c]onsidering the first and third affirmative defenses, we find that the reduction attributable solely to the plaintiff’s conduct is $5,850,” the jury arguably f ound in favor of defendant on these two- 6 -

affirmative defenses in that it awarded a reduction /setoff from any damages awarded to plaintiff.
¶ 19 However, an affirmative defense is “a very differe nt procedural device” than a

counterclaim. 4 Nadhir v. Salomon , 2011 IL App (1st) 110851, ¶ 37.
“ ‘[T]he difference between a counterclaim and an a ffirmative defense is that a

counterclaim seeks affirmative relief whereas an af firmative defense merely attempts to defeat a plaintiff’s cause of action. [Citation. ] Presently, the procedural concept of

setoff is subsumed under the term “counterclaim” ev en where no affirmative relief is sought. [Citations.] Setoff most commonly appears a s a counterclaim filed by a defendant, based upon a transaction extrinsic to th at which is the basis of the plaintiff’s cause of action. [Citations.]’ ” Id . (quoting Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc. , 275 Ill. App. 3d 452, 461-62 (1995)).
While “an affirmative defense is designed to defeat a defendant’s liability to a plaintiff, *** a setoff is a type of counterclaim that is designed t o mitigate the damages that a liable defendant owes to a plaintiff.” (Emphases in original.) Id

. ¶ 20 Further, “[a] set-off or recoupment by way of coun terclaim is an action in the nature of

which the defendant is the plaintiff and he must es tablish his rights as upon a distinct action.” Edward Edinger Co. v. Willis , 260 Ill. App. 106, 125 (1931). Because defendant did not file a counterclaim, he was not a counterclaim plaintiff i n plaintiff’s action. He could, therefore, never be “the prevailing plaintiff in any action ar ising out of a landlord’s or tenant’s application of the rights or remedies made availabl e in this ordinance,” as required for recovery

of fees and costs under section 5-12-180.
¶ 21 We note that, although defendant filed a forcible entry and detainer action, it filed its

complaint as an entirely separate action. The forci ble entry and detainer action is, therefore, irrelevant to the question of whether defendant is entitled to attorney fees and costs under section 5-12-180 in plaintiff’s action.
¶ 22 Plaintiff is correct that there is no basis for aw arding defendant attorney fees and court

costs under section 5-12-180 of the RLTO.

¶ 23 B. Lease Provisions
¶ 24 Plaintiff argues that the court abused its discret ion in awarding defendant attorney fees

since the lease term allowing defendant to obtain a ttorney’s fees is void under section 5-12-140(f) of the RLTO. Section 5-12-140(f) of the RLTO provides in relevant part, “Except as otherwise specifically provided by this chapter, no rental agreement may provide that the landlord or tenant: *** (f) Agrees that in the even t of a lawsuit arising out of the tenancy the tenant will pay the landlord’s attorney’s fees exce pt as provided for by court rules, statute, or ordinance.” Chicago Municipal Code § 5-12-140(f) (a mended Nov. 6, 1991). “A provision prohibited by this section included in a rental agr eement is unenforceable.” Chicago Municipal Code § 5-12-140 (amended Nov. 6, 1991).

4 Affirmative defenses are controlled by section 2-61 3 of the Code of Civil Procedure (735 ILCS 5/2-613 (West 2012)). Counterclaims are controlled by section 2-608 of the Code (735 ILCS 5/2-608 (West 2012)).- 7 - ¶ 25 Paragraph 18 of the lease provides as follows:

“If Lessor commences legal proceedings to enforce t he covenants of this lease due to Lessee’s breach thereof, Lessee shall pay Lessor’s reasonable attorney’s fees incurred to enforce Lessee’s compliance with the terms of th is Lease.”
¶ 26 We need not address whether paragraph 18 of the le ase term is void under section

5-12-140(f) because this lease provision does not a pply here. As noted above in section A, defendant, the lessor here, did not file an action in plaintiff’s case that would make it a plaintiff, whether through counterclaim or crossclaim. It did not “commence[ ] legal proceedings to

enforce the covenants of this lease due to Lessee’s breach thereof,” in this case. Therefore, in the case at bar, defendant cannot recover attorney fees under paragraph 18 of the lease. Granted, defendant did file an eviction action agai nst plaintiff but, as stated previously, the eviction case was filed as an action entirely separ ate from the case under review here. Accordingly, there is no basis to award defendant r easonable attorney fees under the lease provision.

¶ 27 C. Attorney fees under RLTO
¶ 28 Citing section 5-12-060, plaintiff lastly argues t hat attorney’s fees are not provided in the

RLTO’s landlord remedies for improper denial of acc ess and defendant’s failure to request an RLTO remedy in its affirmative defenses voids its f ees here. Section 5-12-060 provides:

“If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or terminate the rental agreement pur suant to Section 5-12-130(b) of this chapter. In either case, the landlord may reco ver damages.” Chicago Municipal Code § 5-12-060 (amended Nov. 6, 1991).
Again, as noted previously, defendant did not file an action in this case to obtain relief of any kind. It certainly did not file an action for “inju nctive relief to compel access” or for damages. Defendant’s first affirmative defense did concern p laintiff’s failure to allow defendant access to her apartment but only in the context of seeking to bar plaintiff from pursuing her claims because her repeated and continuous failure to prov ide access to her apartment for inspection and repair purposes violated the requirements of th e RLTO. At no point did defendant seek an injunction or damages relating to such denial of ac cess. Section 5-12-060 is inapplicable here.

¶ 29 D. Trial Court Usurpation of Jury’s Role
¶ 30 Plaintiff argues that the court usurped the jury’s fact finding role by not presenting the fact

issues in defendant’s attorney fees petition to the jury. In light of today’s opinion, this issue is

moot and we will not consider it.

¶ 31 E. Jury Verdict
¶ 32 Plaintiff also argues that the jury verdict must b e reversed since the evidence showed that

plaintiff did not restrict access to landlord. Firs t, putting aside the fact that plaintiff should hav e raised this argument in Benford I , she did not raise it in her posttrial motion and it is, therefore,

forfeited. Bakes v. St. Alexius Medical Center , 2011 IL App (1st) 101646, ¶ 34. Second, even were we to consider plaintiff’s argument, the recor d is insufficient for our review of the matter. Our resolution of the argument rests on a review of the evidence presented at trial. The record on appeal does not contain a transcript or a bystan der’s report of the multiday jury trial, only- 8 -

transcripts of plaintiff’s direct and cross-examina tions. Therefore, we do not know what evidence the jury heard and have no basis for deter mining whether the jury’s findings were against the manifest weight of the evidence. It is plaintiff’s burden as the appellant to present this court with a sufficiently complete record on a ppeal to support her claims of error and any doubts arising from presentation of the record will be resolved against her. Foutch v. O’Bryant

, 99 Ill. 2d 389, 391-92 (1984). Accordingly, we pres ume the jury’s verdict was not against the manifest weight of the evidence. Lastly, in that we found in Benford I that the jury’s verdict for plaintiff must be honored, albeit without damages, the affirmative defense seeking to bar plaintiff’s claims because she restricted access to defendant landlord was not successful and is, therefore, moot.

¶ 33 CONCLUSION
¶ 34 For the reasons stated above, we reverse the decis ion of the trial court ordering plaintiff to

reimburse defendant for its court costs and attorne y fees and costs to defendant. Defendant was not the prevailing plaintiff below and, therefore, is not due attorney fees and/or costs under

either the lease or the RLTO. The case is remanded for correction of the court’s order to reflect that plaintiff does not owe defendant reimbursement for attorney fees and costs or court costs.

¶ 35 Reversed and remanded.