Mayle v. Urban Realty Works, LLC
| Decision Date | 26 March 2020 |
| Docket Number | No. 1-19-1018,1-19-1018 |
| Citation | 2020 IL App (1st) 191018,148 N.E.3d 873,439 Ill.Dec. 820 |
| Parties | Ken MAYLE, Antonio Clark, Tony Sisilliano, Zachary Blews, and Phil Bobroff, Plaintiffs-Appellants, v. URBAN REALTY WORKS, LLC; 660 Lake LLC; Demetrios Koulioufas; Harry Koulioufas; Irene Koulioufas; Anthony Rouches; Eric Johnstone ; and Bay-Ron Parker, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Joan M. Fenstermaker and Nicholas Bailey, of Joan M. Fenstermaker, P.C., of Chicago, for appellants.
Robert T. Metz, of Law Offices of Mark E. Edison P.C., of Oak Brook, for appellees Urban Realty Works LLC and Anthony Rouches.
Kurt H. Feuer, of Evanston, for appellee Eric Johnstone.
Marc D. Sherman, of Marc D. Sherman & Colleagues, P.C., of Lincolnwood, for appellees Demetrios Koulioufas, Harry Koulioufas, and Irene Koulioufas.
No brief filed for other appellees.
¶ 1 The instant appeal arises from the dismissal of plaintiffs' 11-count complaint against defendants as a result of plaintiffs' eviction from an apartment building. The trial court dismissed six counts of the complaint, arising under the Residential Landlord and Tenant Ordinance (RLTO) (Chicago Municipal Code § 5-12-010 et seq. (amended Mar. 31, 2004)), based on the statute of limitations. The trial court subsequently dismissed the remaining five counts of the complaint for failure to state a cause of action. Plaintiffs appeal, and for the reasons that follow, we dismiss the appeal for lack of jurisdiction.
¶ 3 On June 22, 2017, plaintiffs Ken Mayle, Antonio Clark, Tony Sisilliano, Zachary Blews, and Phil Bobroff filed an 11-count complaint against defendants Urban Realty Works, LLC (Urban Realty Works); 660 Lake, LLC (660 Lake); Demetrios Koulioufas, Harry Koulioufas,1 Irene Koulioufas, Anthony Rouches, Eric Johnstone, and Bay-Ron Parker. The complaint alleged that, in September 2012, plaintiffs moved into an apartment on Lake Street in Chicago, which was owned by Chicago Title Land Trust Company as trustee under trust number 1090074 dated June 23, 1987. According to the complaint, defendants Demetrios Koulioufas, Harry Koulioufas, and Irene Koulioufas (collectively, the Koulioufas defendants) were the beneficiaries of the trust. On August 8, 2013, the trust conveyed ownership of the apartment to defendant 660 Lake, LLC. Prior to the sale, and in contemplation of the sale, the Koulioufas defendants engaged Urban Realty Works to manage the premises "and to remove Plaintiffs from the Premises so that the Premises would be vacant at the time of sale." The complaint alleged that defendants Rouches, Johnstone, and Parker "acted in furtherance of the plan to remove Plaintiffs from the Premises so that the Premises would be vacant at the time of sale."
¶ 4 The complaint alleged that, on July 31, 2013, Urban Realty Works and Parker served a five-day notice on " ‘Josh and all occupants’ "2 of the apartment; the complaint alleged that "[d]efendants, individually or through their agents," unlawfully entered the premises to serve plaintiff Clark with the notice. Prior to receiving the notice, plaintiffs paid $1600 per month to defendant Demetrios Koulioufas.
¶ 5 Count I of the complaint was against all defendants and alleged that defendants violated section 5-12-060 of the RLTO (Chicago Municipal Code § 5-12-060 (amended Nov. 6, 1991)) by making an unlawful entry into the apartment.
¶ 6 Counts II through VI were by each plaintiff against all defendants, and all alleged that defendants violated section 5-12-160 of the RLTO (Chicago Municipal Code § 5-12-160 (amended Nov. 6, 1991)), which prohibited a landlord from interrupting a tenant's occupancy without authority of law. Counts II through VI alleged that, after service of the five-day notice, between August 6 and August 21, 2013, defendants "individually or through their agents" unlawfully entered the apartment and removed and disposed of plaintiffs' personal property.
¶ 7 Counts VII through XI were by each plaintiff against all defendants and alleged conversion of personal property. Each count alleged that the named plaintiff had an absolute and unconditional right to possession of the property; that he had demanded possession of the property; and that defendants wrongfully assumed control, dominion, and ownership of the property. Each count also alleged that the actions of defendants were done with malicious intent.
¶ 8 Attached to the complaint was a copy of a document titled "Landlord's Five Day Notice," which was directed to "Josh and all occupants" and ordered the termination of the tenancy as of August 7, 2013. The notice was dated July 31, 2013, and contains an "affidavit of service" signed by defendant Parker, who was listed as the property manager, which stated that he served the notice on that date; the notice purports to be notarized, with a signature on a notary line, but bears no notary stamp, and no date is written into the space above the notary's signature line. Also attached to the complaint were copies of several canceled checks to defendants Demetrios Koulioufas and Harry Koulioufas, which were each for $1600, many of which contained the word "rent" on the memo line. Finally, attached to the complaint were itemized lists of personal items allegedly converted by defendants.
¶ 9 On October 23, 2017, defendant Rouches filed a motion to dismiss counts I through VI of the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ), claiming that the building in which plaintiffs allegedly lived was commercial, not residential, meaning that the RLTO did not apply, and further claiming that plaintiffs' claims under the RLTO were time-barred.
¶ 10 On November 15, 2017, defendant Johnstone filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code ( 735 ILCS 5/2-619.1 (West 2016) ), seeking dismissal of counts I though IV under section 2-619 and of counts VII through XI under section 2-615 ( 735 ILCS 5/2-615 (West 2016) ). With respect to counts I through VI, like Rouches, Johnstone claimed that the counts based on the RLTO were time-barred. With respect to counts VII through XI, Johnstone claimed that none of the counts contained specific allegations that would subject him to liability for conversion. Instead, Johnstone argued that "each Plaintiff has merely alleged conclusory legal boilerplate in support of their conversion claims, and not a single specific factual allegation as to Defendant Johnstone."
¶ 11 On November 30, 2017, the Koulioufas defendants filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code, claiming that counts I through VI should be dismissed under section 2-619 because they were time-barred and that the entire complaint should be dismissed under section 2-615 for failure to plead sufficient facts to support any of plaintiffs' causes of action.
¶ 12 On January 17, 2018, the trial court entered an order dismissing counts I through VI with prejudice based on the statute of limitations. The court further struck counts VII through XI with leave to replead them.3
¶ 13 On March 13, 2018, plaintiffs filed an amended complaint, adding a number of factual allegations. Counts I through VI of the amended complaint were identical to the previously-dismissed counts I through VI of the original complaint, repleaded to preserve them for appeal. Counts VII through XI were also identical to the prior versions of those counts, other than incorporating the additional factual allegations. The amended complaint also included the same exhibits as the original complaint, namely, the "Landlord's Five Day Notice," the cancelled checks, and the lists of personal property.
¶ 14 On April 11, 2018, defendant Johnstone filed a motion to dismiss the amended complaint pursuant to section 2-615 of the Code, claiming that the allegations of the complaint directed at him merely set forth conduct that was consistent with the usual, lawful conduct of the agent for the purchaser of a property and that plaintiffs had failed to set forth any allegations that would subject him to liability.
¶ 15 On April 16, 2018, the Koulioufas defendants filed a combined motion to dismiss counts VII through XI of the amended complaint, claiming that those counts should be dismissed under section 2-615 because they failed to plead specific allegations of ultimate fact for each element of a conversion claim. The Koulioufas defendants further claimed that counts VII through XI should be dismissed under section 2-619 because plaintiffs failed to plead that an agency relationship existed that would subject the Koulioufas defendants to liability.
¶ 16 Attached to the Koulioufas defendants' motion to dismiss, in support of their section 2-619 motion, were the affidavits of the three Koulioufas defendants, in which they averred that they never retained defendant Urban Realty Works in connection with the property; they never engaged or asked defendants Rouches, Johnstone, or Parker to deal in any way with any person at the property; they never asked anyone to serve any notices concerning the property; and they never removed any personal property from the property and never asked anyone to do so. The Koulioufas defendants further averred that plaintiffs never informed any of them that plaintiffs' personal property had been taken and never made a demand for the return of any such property.
¶ 17 On April 23, 2018, defendant Rouches filed a combined motion to dismiss the amended complaint, claiming that counts VII through XI should be dismissed pursuant to section 2-615 of the Code because any specific allegations directed at Rouches merely described conduct that was consistent with the usual, lawful manner of a real estate sale and the allegations related to the alleged removal of plaintiffs' personal property were vague and insufficient to impose...
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Mayle v. Urban Realty Works, LLC
...jurisdiction over the appeal because the court had not disposed of the claims relating to one of the defendants. Mayle v. Urban Realty Works, LLC , 2020 IL App (1st) 191018, ¶ 46, 439 Ill.Dec. 820, 148 N.E.3d 873. Upon remand, the remaining defendant was dismissed from the case, and plainti......
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