Faison ex rel. Herself v. RTFX, Inc.

• Decision Date: 07 February 2014
• Docket Number: No. 1–12–1893.,1–12–1893.
• Citation: 379 Ill.Dec. 299,6 N.E.3d 376,2014 IL App (1st) 121893
• Parties: Toccara FAISON, on Behalf of Herself and Others Similarly Situated, Plaintiff–Appellant, v. RTFX, INC., an Illinois Corporation, Defendant–Appellee (North Star Trust Company, as Trustee Under Trust No. 13189, Defendant).
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 121893

6 N.E.3d 376

379 Ill.Dec. 299

Toccara FAISON, on Behalf of Herself and Others Similarly Situated, Plaintiff–Appellant,

v.RTFX, INC., an Illinois Corporation, Defendant–Appellee (North Star Trust Company, as Trustee Under Trust No. 13189, Defendant).

No. 1–12–1893.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 7, 2014.

Berton N. Ring, P.C., Chicago (Berton N. Ring, Stuart M. Clarke, of counsel), for appellant.

Chuhak & Tecson, P.C., Chicago (Cary S. Fleischer, of counsel), for appellee.

OPINION

Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Toccara Faison appeals the circuit court's decision to grant defendant RTFX, Inc.'s motion to dismiss pursuant to sections 2–615 and 2–619 of the Illinois Code of Civil Procedure (Code) ( 735 ILCS 5/2–615, 2–619 (West 2008)) plaintiff's class action complaint in which she alleged violations of several provisions of the Chicago Residential Landlord Tenant Ordinance (RLTO) (Chicago Municipal Code § 5–12–010 et seq.), and breach of the implied warranty of habitability.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff initially filed a six-count class action complaint on March 28, 2011, against RTFX and North Star Trust Company, as trustee under trust No. 13189, alleging violations of the RLTO and breach of the warranty of habitability under Illinois common law arising out of her tenancy at 2420 North Kedzie Avenue, unit B3, in the City of Chicago. She also moved for class certification. On June 7, 2011, the circuit court entered an order dismissing count III and dismissing North Star Trust Company as a party. ¹

¶ 4 Plaintiff thereafter moved for leave to file an amended class action complaint, which the circuit court granted. In addition, consistent with the claims in her amended complaint, plaintiff filed an amended motion for class certification.

¶ 5 In the amended five-count complaint, plaintiff alleged that she entered into a one-year lease with defendant on April 4, 2007, in which the lease term ran from April 1, 2007, through March 31, 2008, the monthly rent was $590, and she provided a $590 security deposit. Plaintiff indicated that she paid the security deposit in installment payments, tendering the full amount in approximately June of 2007, but defendant did not provide her with receipts for her payments. She also paid a $40 key deposit on March 29, 2007, and again did not receive a receipt. Plaintiff alleged that after the one-year lease expired, she continued her tenancy on a month-to-month basis by oral agreement. Further, defendant increased her rent by $10 on May 1, 2008, and by $10 again on May 1, 2009. She also alleged that she paid an additional $10 in cash each time the rent was increased as part of her security deposit, but she was not given a receipt for those payments.

¶ 6 Plaintiff claimed that throughout her tenancy, the property contained several unsafe, unsanitary, and uninhabitable conditions, which defendant failed to remedy. Plaintiff alleged the property was cited for 4 code violations on May 4, 2007, and for 32 code violations over the course of her tenancy, and there were two building code administrative proceedings against the property in August and December 2009. Plaintiff alleged that defendant failed to provide her with any notice of these code violations or proceedings, and her attorney submitted a demand for the violations on February 28, 2011, but defendant replied that there were no violations. Plaintiff also alleged that defendant paid her interest on her security deposit in the amount of $1 on January 2, 2010, and $1 on January 29, 2010.

¶ 7 In count I, plaintiff claimed that defendant violated section 5–12–080 of the RLTO (Chicago Municipal Code § 5–12–080 (amended Mar. 31, 2004)) in three ways. First, defendant failed to pay interest on her security deposit at the end of the year-long lease on March 31, 2008, or again on March 31, 2009, in violation of subsection 5–12–080(c) of the RLTO. Second, plaintiff asserted that defendant failed to tender a receipt for her security deposit payments, in violation of subsection 5–12–080(b). Third, plaintiff alleged that defendant never disclosed the name and address of the financial institution where her security deposit was held, in violation of subsection 5–12–080(a)(3) (Chicago Municipal Code § 5–12–080(a)(3) (amended July 28, 2010)). Plaintiff argued that the remedy for violating section 5–12–080 was monetary damages in twice the amount of the security deposit. She also alleged that other tenants suffered the same wrongs.

¶ 8 In count II, plaintiff alleged that defendant never tendered a summary of the RLTO when, as plaintiff alleged, she and defendant orally renewed the lease after the initial one-year term expired, in violation of section 5–12–170 (Chicago Municipal Code § 5–12–170 (amended Oct. 1, 2003)), and the remedy for this violation was a $100 penalty.²

¶ 9 In count III, plaintiff alleged that defendant violated subsection 5–12–100(a) of the RLTO (Chicago Municipal Code § 5–12–100(a) (amended Nov. 6, 1991)) by failing to provide notice to her and similarly situated tenants of building code violations or pending code enforcement litigation. Plaintiff alleged that defendant did not provide notice of any code violations occurring within the 12–month period preceding the start of her lease, April 1, 2006, through March 31, 2008. Plaintiff asserted that the remedy was one month's rent or actual damages.

¶ 10 In count IV, plaintiff alleged that defendant violated sections 5–12–070 and 5–12–110 (Chicago Municipal Code §§ 5–12–070, 5–12–110 (eff. Nov. 6, 1991)) by failing to correct defective, unsafe, unsanitary, and uninhabitable conditions at the apartment building during her tenancy, including noninsulated windows, no window screens, no smoke or carbon monoxide detectors, moldy wood, leaking pipes, moldy baseboards, infestation of insects and rodents, cracks in the walls, peeling plaster, faulty electric wiring, a rusted bathroom tub, faulty or broken appliances, and peeling floor tiles. Plaintiff asserted that she and the class members were entitled to damages equal to the difference in the value of the property had it conformed to the RLTO and the value of the nonconforming property.

¶ 11 In count V, plaintiff alleged that defendant's failure to correct the uninhabitable conditions of the property also violated the warranty of habitability implied under Illinois law, and as a result, plaintiff and other class members suffered damages equal to the difference in the market value of their units in the condition delivered and the value of the units had they been delivered as warranted and without defects.

¶ 12 As part of her class action claims, plaintiff alleged the existence of four different classes. Class A consisted of all tenants within the previous two years who provided security deposits but were not paid interest or given receipts. Class B consisted of all tenants who were not given a summary of the RLTO upon entering into or renewing their lease agreement. Class C consisted of all tenants who were not provided notice of code violations or proceedings. Class D consisted of all tenants subjected to habitability violations. Plaintiff alleged that the class number exceeded 52 people, that there were common questions of fact and law which predominated over any individual issues, that plaintiff could fairly and adequately represent the classes' interests, that her counsel was experienced in such matters, and that the identities of the members could be easily determined.

¶ 13 In support of her allegations, plaintiff attached to her amended complaint (1) a copy of her lease, (2) a February 28, 2011, letter from her attorney to Rich Sasak, an officer of RTFX and a manager of the building, and (3) the response letter from Sasak, dated March 16, 2011.³

¶ 14 Defendant subsequently moved to dismiss plaintiff's amended complaint pursuant to section 2–619.1 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2–619.1 (West 2010)). With respect to count I, defendant argued that plaintiff's claims were barred by the applicable two-year statute of limitations because the alleged failure to tender receipts for security deposit payments or pay interest occurred in 2007 and 2008, and any claims regarding conduct occurring before March 28, 2009, were barred. ⁴ Defendant argued that plaintiff's claim that defendant failed to disclose the name and address of the bank where security deposits were held should be dismissed because the section plaintiff relied on, section 5–12–080(a)(3), was not in effect until after she signed her rental agreement and presented her security deposits. Defendant further asserted that it paid interest in January 2010 and plaintiff never gave written notice that the amount was deficient pursuant to subsections 5–12–080(c) and (f) of the RLTO. Defendant argued that plaintiff could not represent Class A because she had no individual claim.

¶ 15 With respect to count III, defendant argued that the remedy plaintiff requested under subsection 5–12–100(b) did not apply to her subsection (a) claim. Defendant argued that, even if subsection (b) was applicable, plaintiff never provided the required notice specifying the noncompliance; the 2011 letter from her attorney did not constitute a notice as it did not specify a time period or indicate an intent to terminate the lease, and plaintiff never quit the premises. Further, subsection 5–12–100(a) only required notice of code violations within the 12 months before a tenant enters into or renews a lease, which in plaintiff's case would mean from April 4, 2006, to April 4, 2007, but plaintiff cited no violations from that time period. She only cited violations or proceedings on May 4, 2007, and August and December 2009, but she was not entitled to notice of any of these occurrences. Defendant argued that her individual claim and the class claim under...