IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION

All of the parties are before the court on motions for summary judgment. The court has read and considered the respective memoranda, exhibits and case submissions and has entertained additional oral argument. For the reasons stated herein, the court concludes that plaintiff’s motion for summary judgment should be granted. Defendants Brody and Cohen’s motion for summary judgment should be denied. Defendants Lupescu, Schachter, Withers, Nathan, Sugarman, Glatt, and Lasko motion for summary judgment should be granted in part and denied in part.

When deciding whether a motion for summary judgment should be granted, the court must review all of the pleadings, depositions, affidavits and admissions on file to determine whether a genuine issue of material fact exists and whether movant is entitled to judgment as a matter of law. Stahulak v. City of Chicago, 291 Ill.App.3d 824 (1^st Dist. 1997). On a motion for summary judgment, all the evidence must be construed in a light most favorable to the non-moving party. If there are any material facts that can be identified upon which reasonable minds could differ, or inferences that can be drawn that can lead to differing conclusions, the motion for summary judgment must be denied. Nolan v. Johns-Manville Asbestos & Magnesia Materials Co., 74 Ill. App.3d 778 (1^st Dist. 1979).

Plaintiff alleged that defendant, Citywide Realty, charged her excessive fees in violation of the City of Chicago Residential Landlords and Tenants Ordinance and under the Illinois Consumer Fraud Act. Three and a half years later, Plaintiff added Rose Lasko as a defendant. Ms. Lasko seeks partial summary judgment on (1) Parks’ claims for damages in excess of one recovery for two months’ rent, and (2) all claims by class members that occurred before June 9, 1992. Ms. Lasko claims that plaintiffs are only entitled to one recovery of double rent because they cannot establish that Ms. Lasko willfully violated the section 5-12-140 of the ordinance. Ms. Lasko argues that a tenant seeking separate double recoveries for separate violations under the ordinance must prove that the defendant willfully violated the ordinance. Ms. Lasko also seeks summary judgment on all claims prior to June 9, 1992. In its August 1999 order, this court ruled that a five-year statute of limitations period should apply to plaintiffs’ claims. Ms. Lasko seeks summary judgment on all claims prior to June 9, 1992 since this was five years prior to when Ms. Lasko was named as a defendant (June 9, 1997).

Pursuant to this court’s ruling in August 1999, section 5-12-140 is remedial in nature. Previously, Lasko argued that the two-year statute of limitations in Section 13-202 of Illinois Code of Civil Procedure should be applied in this case because Section 5-12-140, upon which plaintiff based her claim, is penal in nature. Section 5-12-140 provides for recovery of two-months rent whenever a landlord attempts to enforce any one of nine residential lease provisions prohibited by the section. Lasko argued that Namur v. Habitat Co., 294 Ill. App.3d 1007 (1^st Dist. 1996) supported her position that Section 5-12-140 is penal in nature. In Namur, the court examined two similar provisions under the Ordinance, Section 5-12-080(f) (provides for damages in the amount of two times the security deposit plus 5% interest if the landlord fails to comply with the ordinance the regards to security deposits) and Section 5-12-170 (allows the tenant to recover $100.00 in damages if landlord fails to provide tenant with summary of the Ordinance), and determined that they were both penal provisions. The court reasoned that these two sections were penal because, "they specify either the amount of damages that can be awarded for violations or the formula by which the amount of damages is to be calculated."

Several courts disagreed with the holding in Namur. In Friedman v. Krupp Corp., 282 Ill. App.3d 436 (1^st Dist. 1996), where plaintiff’s claim was also based on section 5-12-140, the First District held that the Ordinance is actually "remedial in nature." The court in Friedman reasoned that the purpose of the Ordinance is to protect tenants because they are usually in a disadvantageous situation in relation to landlords. The Appellate court further states that the purpose of the ordinance was purely remedial. Lawrence v. Regent Realty Group, Inc., et. al., 1999 Ill.App.LEXIS 567 (1^st Dist. 1999), a case that was just decided on August 11, 1999, also disagrees with the reasoning in Namur. The court in Lawrence reasoned that, "viewing section 5-12-080(f) as penal…would defeat its remedial purpose."

In the motion for summary judgment currently before the court, Ms. Lasko argues that in order for plaintiff to receive damages in excess on one recovery of double rent they must establish that Ms. Lasko willfully violated the ordinance. Ms. Lasko relies on Szpila v. Burke, 279 Ill.App.3d 964 (1^st Dist. 1996), in support of her position. In Szpila, the plaintiff filed a seven-count complaint against his landlord alleging six separate violations of sections 5-12-080(d) of the ordinance. The plaintiff moved for partial summary judgment seeking a separate double recovery for each alleged violation of the ordinance. The trial court granted the motion for summary judgment, but held that plaintiff was only entitled to one double recovery. The Appellate Court affirmed, holding that the tenant must prove that the landlord willfully violated the ordinance. When Szpila was decided in 1996, the courts still considered some portions of the ordinance as remedial while others were considered penal. However, as previously stated in the courts August 1999 order, based upon current case law the ordinance is remedial in nature. In Lawrence v. Regent Realty Group, Inc., 1999 Ill.App.Lexis 567 (1^st Dist. 1999), the court held that, "[B]ecause we find that the ordinance is remedial, we hold that a showing of willfulness is not required to subject the landlord to the penalties provided in the ordinance. …[A]willfulness requirement can only stand if the ordinance is penal." Therefore, contrary to Ms. Lasko’s position, a showing of willfulness is not a requirement under of the ordinance in order for the plaintiff to receive damages in excess of one recovery of double rent.

The next issue then becomes whether more than one recovery for double rent is should be allowed based on section 5-12-140. In order to make this determination, rules of statutory construction must be applied. Since it has already been determined that this statute is remedial in nature it should be construed liberally based on its stated purpose. Lawrence, 1999 Ill.App.Lexis 567, at 10. The Appellate court in Lawrence and Szpila were interpreting section 5-12-080(f) where the ordinance states that if a landlord fails to comply with "any provision in sections 5-12-080(a)-(e)" the tenant will be awarded damages equal to two times the security deposit. The court reasoned that since the word "any" is subject to more than one interpretation, extrinsic evidence was necessary. Based on this evidence, the court concluded that the "City of Chicago could never have intended the result urged upon us by the plaintiff." Szpila, 279 Ill.App.3d at 971. In Szpila, if the plaintiff were to receive double rent for each violation, they would have received $12,044 instead of $915. The court decided to intervene to prevent this "manifest injustice."

However, the wording of section 5-12-140, which the plaintiff relies on in this case, is slightly different. Section 5-12-140 states in pertinent part that, "[I]f a landlord attempts to enforce a provision in a rental agreement" the tenant will receive damages equal to two months rent. Although there is not case law that lends any interpretation to section 5-12-140, Black’s Law Dictionary defines the two words interchangeably. Additionally, in Lawrence the court in dicta reasoned that given the multiple violations of the ordinance in Szpila, had the court adhered to strictly to the statute there would have been a windfall for the tenant and an economic blow to the landlord, and "[N]o court could condone such a result in good conscience." Lawrence, 1999 Ill.App.Lexis 567, at 9. Based on these interpretations, unless the amount of damages allegedly owed to plaintiff exceeds two months rent, a recovery of two months rent for each violation to each plaintiff would produce "absurd results," and thus such a reading o the ordinance "must be abandoned." Id. Therefore, Ms. Lasko’s motion for summary judgment as to plaintiff’s recovery for two months rent only should be granted.

Ms. Lasko also seeks summary judgment as to all claims by the plaintiffs for alleged violations of the ordinance that occurred before June 9, 1992. This court has already ruled that the proper statute of limitations for plaintiff’s claims is five years. Therefore, no other relief is necessary at this point, since the five-year limitations period has nothing to do with the extent of Ms. Lasko’s alleged liability. Summary judgment on this issue is granted.

Ms. Glatt part owner of one of the 23 buildings that the subject of this lawsuit, as joined as a defendant in June of 1997. Between 1988 and September of 1993, Ms. Glatt owned an apartment building at 5036-38 West Quincy as a tenant in common with Ms. Ida Weller. In August of 1988, they both leased the building to Citywide Realty Co. for a period of five years until September, 1993. They subsequently sold the building in September, 1993. Ms. Glatt argues that she is entitled to summary judgment because (1) she is not a "landlord" within the meaning of the ordinance, (2) the claims in Count I and III of plaintiff’s complaint are barred in their entirety by the two-year statute of limitations for penalties, and (3) the claims in Counts II and IV are barred, in part by the three-year statute of limitations on claims for alleged consumer fraud.

First Ms. Glatt argues that she is not a landlord within the meaning of the ordinance. Ms. Glatt argues that she is not liable to plaintiffs unless she is an "owner" or a landlord. Section 5-12-030(b) defines "landlord" as "owner, agent, lessor or sublessor, or the successor in interest of any of them, of a dwelling unit or the building of which it is part." Section 5-12-030(c) defines "owner" as "one or more persons, jointly or severally, in whom is vested all or part of the beneficial ownership and a right to present use an enjoyment of the premises, including a mortgagee in possession." Ms. Glatt argues that she is not an owner because she did not have a right to present use and enjoyment of the premises, because that right was granted to Citywide pursuant to the lease. She also argues that she is not a landlord either because the relation of landlord does not exist between her (the original lessor) and the subleases (members of the plaintiff class). Attached to her motion is the affidavit of her son Alvin Glatt. In his affidavit, Mr. Glatt states that his mother was the "owner" of the building between 1988 and 1993. Just because she leased the building to citywide did not divest her of her ownership interest. Furthermore, the plain language of the ordinance states that a "landlord" can be a "lessor" which is precisely what Ms. Glatt was to Citywide. Therefore, Ms. Glatt was a landlord within the meaning of the ordinance.

Second, Ms. Glatt argues that the claims in Count I and III of plaintiff’s complaint are barred in their entirety by the two-year statute of limitations for penalties. This issue has been ruled on by the court in its order of august 18, 1999 regarding Mr. Cohen’s motion to dismiss. In that order this court ruled that the proper statute of limitations for the plaintiff’s claims was five years since section 5-12-140 should be viewed as remedial instead of penal in nature. Therefore, Ms. Glatt’s request for summary judgment on this issue should be denied.

Third, Ms. Glatt argues that the claims in Counts II and IV are barred, in part by the three-year statute of limitations on claims for alleged consumer fraud. 815 ILCS 505/10a(e). This issue has also been ruled on in the court’s august 18, 1999 order. Ms. Glatt argues (similar to Ms. Lasko’s argument in her motion for partial summary judgment) that plaintiffs’ claims under the Consumer Fraud Act should be barred because of a three-year statute of limitations period. Since the cause of action arose in January of 1994, and plaintiff failed to bring a claim against Ms. Glatt until June 1997, plaintiff’s claims are barred by the statute of limitations.

Therefore, Ms. Glatt’s motion for summary judgment as to Counts I and III are denied.

Defendants Lupescu, Schachter, Withers, Nathan and Sugarman had an ownership interest in four of the 23 buildings that are the subject of this suit.

First, defendants argue that the claims in Count I and II of plaintiff’s complaint are barred in their entirety by the two-year statute of limitations for penalties. This issue previously has been ruled on by the court in its order of August 18, 1999 regarding Ms. Lasko’s motion for partial summary judgment. In that order, this court ruled that the proper statute of limitations for the plaintiff’s claims was five years since section 5-12-140 should be viewed as remedial instead of penal in nature. Therefore, defendant’s request for summary judgment on this issue should be denied pursuant to this court’s prior order.

Second, defendants argue that the claims in Counts II and IV are barred by the three-year statute of limitations on claims for alleged consumer fraud. 815 ILCS 505/10a(c). This issue has also been ruled on in the court’s August 18, 1999 order. Defendants argue – similarly to Ms. Lasko’s argument in her motion for partial summary judgment – that plaintiff’s claims under the Consumer Fraud Act should be barred because of a three-year statute of limitations period. Since the cause of action arose in January of 1994, and plaintiff failed to bring a claim against defendants until June 1997, plaintiffs’ claims are barred by the statute of limitations.

These defendants’ motion for summary judgment as to Counts I and III is denied and granted as to Counts II and IV.

Defendants Brody and Cohen also request summary judgment be granted in their favor. However, their motion was based on documents requested from the plaintiff that have since been tendered. Therefore, upon admission in oral argument their motion for summary judgment is now moot. For that reason, Brody and Cohen’s motion for summary judgment is denied in its entirety.

Plaintiff’s seek summary judgment arguing that defendants’ $20 service charge was really a late fee in violation of Section 5-12-140(h) of the Chicago Residential Landlord and Tenant Ordinance. Section 5-12-140(h) states that "no rental agreement may provide that the landlord or tenant…[A]grees that a tenant shall pay a charge, fee or penalty in excess of $10.00 per month for the first $500.00 in monthly rent plus five percent per month for any amount in excess of $500.00 in monthly rent for the late payment of rent." " If the landlord attempts to enforce a provision in a rental agreement prohibited by this section the tenant shall recover two months’ rent." Section 5-12-140(i). Defendants argue that the $20.00 service charge was for making a new lease upon automatic termination of an existing lease upon failure to pay rent by the 20^th of the month.

In order to determine whether summary judgment is proper in this case, we must first analyze what constitutes a rental agreement in this case. Defendants contend that section 5-12-140 refers only to rental agreements and thus the form entitled "charges for Late Payments" does not fall into this category because it is a separate form from the rental agreement. Defendant’s position, however, is incorrect. Section 5-13-030 of the ordinance defines "rental agreement" as "all written or oral agreements embodying the terms and conditions concerning the use and occupancy of a dwelling unit by a tenant."" Apparently this additional form was not embodied in the lease itself, but was attached to the agreement. According to the ordinance this "charges and late payments" page would be a part of the rental agreement because it embodies some of the terms and conditions for occupancy of the apartment. Defendants’ contention that this additional stapled page to the rental agreement was not a part of the rental agreement is incorrect.

Next, defendants argue that summary judgment cannot be granted because a genuine issue of material fact exists as to whether this $20 charge was for late rent as opposed to making a new lease. Defendant is incorrect on this point as well. The form says on its face that it is for "charges and late payments." (Defendant’s Resp., Exh. E). On the top portion of this form, it says that a payment of $10 will be assessed for late payment. It also says in that same section that a $20 service charge will be assessed. Then there is a separation between the top portion and the bottom portion. The bottom of the form is entitled, "Extension of Lease." If in fact defendant intended this $20 fee to be for the extension of the lease, then it would seen logical that the provision for this fee would be in this section of the form. Furthermore, in Mr. Cohen’s affidavit he admitted that the $20 fee was often imposed where no new lease was prepared. (Cohen Dep., p.60). He also states that other than the payment of rent after the 20^th of the month there were no other conditions that needed to be met. (Cohen Dep., p. 58). Put another way, if plaintiff did not pay their rent by the 10^th they were assessed a $20 late fee, and if they did not pay by the 20^th they were assessed another $20, whether or not they decided to sign a new lease.

Defendant sets forth a last chance argument that Ms. Parks does not have a claim under the ordinance since she did not sign the late service charge provision until after she paid the $20 service fee. This argument is wholly without merit. First, section 5-12-030(g) does not require a signed agreement and it can even be oral. Second, even if a signature is necessary, since the form for late charges was a part of the rental agreement, the tenant’s signature on the rental agreement is enough.

Finally, the tenant’s signature on this form that says she will be charged a late fee does not impose liability on the defendants under the ordinance. The mere fact that she was charged late fees in excess of $10 triggers the liability under the ordinance. The ordinance clearly states that "no rental agreement shall provide…that a…tenant pay an excess of $10." The language of the ordinance is clear.

Since there are no genuine issues of material fact left for this court to resolve, summary judgment is granted in favor of the plaintiff.

For reasons stated above, the plaintiff’s motion for summary judgment is granted. Defendants Brody and Cohen’s motion for summary judgment is denied. Defendants Lupescu, Schachter, Withers, Nathan, Sugarman, Glatt, and Lasko motion for summary judgment is granted in part and denied in part.

So ordered.