Opinion
No. 1-19-2157
05-07-2021
HARLAN CHEMERS, Plaintiff-Appellee, v. LISA BETH GANSBERG, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 18 M2 005282
Honorable Thaddeus Machnik, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶ 1 Held: Appeal dismissed for lack of jurisdiction where the trial court's September 25, 2019, order was not a final and appealable order.
¶ 2 Defendant, Lisa Beth Gansberg, appeals the order of the circuit court granting, upon reconsideration, plaintiff Harlan Chemers' motion to dismiss her counterclaims in his forcible entry and detainer action. On appeal, defendant contends that the dismissal was error where 1) the parties' lease expressly incorporated Chicago's Residential Landlord Tenant Ordinance (RLTO),
and 2) her counterclaims based on the RLTO were germane to the forcible entry and detainer proceeding. Defendant also contends that the trial court erred in refusing to deem certain facts admitted under Illinois Supreme Court Rule 216 (eff. July 1, 2014), where plaintiff failed to respond to her requests to admit for over four and a half months. For the following reasons, we dismiss the appeal for lack of jurisdiction.
¶ 3 BACKGROUND
¶ 4 At all times relevant to this appeal, plaintiff owned a single-family home located at 809 Cedar Lane in Northbrook, Illinois. From May 11, 2018, to June 14, 2019, plaintiff leased the home to defendant. The parties used a written lease form that was created by the Chicago Association of Realtors for Chicago residential leases. As such, several provisions of the lease referred to the Chicago Municipal Code. Also attached to the lease were the "City of Chicago Residential Landlord and Tenant Ordinance Summary" and the "Residential Landlord and Tenant Ordinance Rate of Interest on Security Deposits." Pursuant to the lease, defendant agreed to pay $2,100 per month for use of the premises and she gave plaintiff $2,100 as a security deposit.
¶ 5 According to defendant, soon after moving into the house she discovered it was infested with insects and rodents, the appliances did not work and the heating and air conditioning systems did not operate properly. They also had no hot water for five days in November 2018. When defendant notified plaintiff of these conditions and the need for repairs, plaintiff and his wife responded with obscenities and threats of eviction.
¶ 6 On November 12, 2018, counsel for defendant sent plaintiff a letter stating, in part, that
"[y]our failure to maintain the Property and repair and/or replace the defects listed herein are a violation of the RLTO. As such, demand is hereby made upon the Landlord to
fix all electrical, plumbing, and HVAC systems in the Property so that the same are in good working and safe order and all in compliance with all applicable governmental and municipal codes within fourteen (14) days from the date of your receipt of this letter. The Tenant cannot properly utilize the Property with these items of disrepair. In the event you fail to fix all of the aforementioned issues within said fourteen day period, the Tenant is hereby notifying you that she will withhold, beginning on the fifteenth (15th) day, an amount equal to fifty-percent (50%) of the rent ($1,050.00), it being reasonably determined by Tenant that said amount reasonably reflects the reduced value of the Property.
You should also be aware that pursuant to Section 5-12-150 of the RLTO, that you, as the Landlord, are prohibited from retaliating against the Tenant as a result of my submission of this notice to you and said retaliatory conduct by you could include *** terminating or threatening to terminate the Tenant's tenancy, increasing rent, terminating services, bringing or threatening to bring an eviction action or refusing to renew the Lease. This is a very serious matter and you could be exposed to significant liability for failure to comply with the RLTO."
¶ 7 On November 16, 2018, counsel for plaintiff sent a letter in response. In the letter, counsel denied that the RLTO applied because the property was located in Northbrook, not Chicago. The letter continued:
"In regard to your client's intention to withhold 50% of her rent, please be advised that such deductions are not reasonable, nor appropriate. To date, our client has made all necessary repairs to the premises. Unfortunately, the new oven that our client installed caused the circuit breakers to trip. Our client will be correcting such issue in the next few
days, and regardless, such condition does not amount to the landlord's violation of any laws, codes, or applicable statutes.
Please be advised that if your client withholds 50% of her rent, our client reserves its right to serve her with a notice of termination and seek to terminate her tenancy."
Plaintiff withheld half of her rent payment for December for reasons stated in her letter. On December 20, 2018, plaintiff filed a forcible detainer complaint seeking to recover $1,050.00 in unpaid rent. He also sought possession of the property as a result of the rent deficiency.
¶ 8 Defendant filed an answer in which she asserted the affirmative defenses of retaliation in violation of the RLTO and breach of implied warranty of habitability. She also raised the following counterclaims: 1) failure to hold security deposit in a separate, federally insured interest bearing account in violation of the RLTO; 2) failure to provide the name and address of financial institution holding the security deposit in violation of the RLTO; 3) failure to provide receipt of security deposit in violation of the RLTO; 4) failure to maintain premises in violation of the RLTO; 5) retaliation for reporting defects in violation of the RLTO; 6) breach of implied warranty of habitability; and 7) breach of lease. In her counterclaims, defendant requested attorneys fees and costs as remedies authorized by the RLTO.
¶ 9 Plaintiff filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/1-619 (West 2018)). The trial court denied the motion, finding that "the RLTO applies and the affirmative defenses and counterclaims are germane to the forcible proceeding."
¶ 10 Plaintiff filed a motion to reconsider and on May 24, 2019, the court granted the motion in part and denied it in part. Upon reconsideration, the trial court dismissed defendant's counterclaims on the grounds that the RLTO was unenforceable under section 187(2) of the Restatement
(Second) of Conflict of Laws, and on the grounds that the counterclaims were not germane to the eviction action. The court upheld defendant's affirmative defenses under common law. Defendant filed a motion to reconsider which the trial court denied on August 2, 2019. The order also gave plaintiff 21 days to respond to defendant's requests to admit over defendant's objections.
¶ 11 On September 19, 2019, plaintiff filed a motion to voluntarily dismiss the forcible detainer action pursuant to section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2018)), because defendant vacated the premises on or around June 14, 2019, the end of the lease term. On September 25, 2019, the trial court granted the motion and dismissed the action without prejudice. The order stated that defendant objected to the voluntary dismissal on the grounds that plaintiff must first pay defendant's costs as a condition precedent of dismissal under the statute. The order also noted plaintiff's argument that any costs he owed defendant was offset by costs defendant owed to plaintiff due to the dismissal of defendant's counterclaims. Defendant disputed the legal sufficiency of plaintiff's argument. The trial court's order reserved the issue of whether costs should be paid "to such time when Plaintiff may refile his claims against Defendant." Defendant filed this appeal.
¶ 12 III. ANALYSIS
¶ 13 Although neither party challenges our jurisdiction, "we have a duty, sua sponte, to consider our jurisdiction and to dismiss an appeal if jurisdiction is lacking." Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 12. Final orders may be appealed as a matter of right. See Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).
¶ 14 Here, plaintiff voluntarily dismissed his complaint pursuant to section 2-1009(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009(a) (West 2018)). Section 2-1009(a) provides
that "[t]he plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause." 735 ILCS 5/2-1009(a) (West 2018). The plaintiff's payment of costs is a condition precedent to voluntary dismissal under section 2-1009(a). Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 540 (1999).
¶ 15 Here, however, the parties vehemently disagreed on the issue of costs. The trial court's September 25, 2019, order granting the dismissal did not determine costs and expressly reserved the issue for a later date. "A judgment is final for appeal purposes if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining to be done by the trial court is to proceed with execution on the judgment." Valdovinos, 307 Ill. App. 3d at 538. An order granting voluntary dismissal without assessing costs is not a final judgment because if affirmed, something more is required of the trial court other than the mere execution of the order. The trial court still has to determine what costs plaintiff must pay under section 2-1009(a), and that determination requires resolution of substantive issues between the parties that the order itself set forth. Until the court makes that determination, "there is no final order for us to review." Id. at 540. This deficiency is not one which a finding under Rule 304(a) (eff. Mar. 8, 2016) can cure. Id. Accordingly, we dismiss this appeal for lack of jurisdiction.
¶ 16 Finally, we note that even if the trial court had determined costs, the authority to address defendant's appeal from a voluntary dismissal "does not form the jurisdictional basis from which we may also address the substantive merits of other nonfinal orders entered by a trial court prior to the granting of a voluntary dismissal." Id. at 537. Only orders which were final in nature, but
not previously appealable, become appealable following a voluntary dismissal. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997).
¶ 17 IV. CONCLUSION
¶ 18 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.
¶ 19 Appeal dismissed.