Nemeth v. Levin
| Decision Date | 02 May 2014 |
| Docket Number | No. 1-13-2185,1-13-2185 |
| Citation | 2014 IL App (1st) 132185 |
| Parties | JENNIFER NEMETH, Plaintiff-Appellee, v. JEREMEY LEVIN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 Held: Interlocutory appeal was dismissed in part for lack of jurisdiction where denial of motion to dismiss was not a final and appealable order and affirmed in part where denial of request for sanctions was consistent with objective facts.
¶ 2 Jeremey Levin, the owner of an apartment building at 1121 North Ashland Avenue, Chicago, Illinois, 60622, appeals from an order denying his motion to dismiss a lawsuit filed by his former tenant, Jennifer Nemeth, alleging Levin's handling of her security deposit violated the Chicago Residential Landlords and Tenants Ordinance, § 5-12-010, et seq. (amended Nov. 6, 1991) (hereinafter RLTO). In this interlocutory appeal, ostensibly brought pursuant to Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb.26, 2010)), Levin contends the motion shouldhave been granted because his building came within an exception to the municipal ordinance. Levin also contends the court should have sanctioned Nemeth for failing to amend her complaint in a timely fashion after Levin told her he considered her damage claim to be excessive.
¶ 3 Levin, who resides in Devon, Pennsylvania, accepted a $1,700 security deposit from Nemeth when they entered into a one-year written lease for tenancy beginning on May 15, 2012. On the front page of the lease agreement, one of Levin's daughters, Jena L. Levin, a Chicago attorney, was listed as "person authorized to act on behalf of owner for purpose of service of process and receipting of notices."
¶ 4 About three months after Nemeth moved into the 3rd Floor Front unit of Levin's Ashland Avenue building, she sent an email to him, his wife, and Jena, informing the Levins that a "family-related issue" was forcing Nemeth to move out early and that she hoped to begin subletting the unit as of October 1, 2012. Nemeth vacated the apartment by October 1, 2012, and returned her set of keys on October, 15, 2012. The apartment was relet at the beginning of November. Levin credited Nemeth with 40 cents interest for the five months he retained her security deposit, and then deducted $400 for unpaid rent, $27.50 for late payment of rent, $150 to clean the bathroom and kitchen and replace six light bulbs, and $823.52 to satisfy bills from Commonwealth Edison for electric utility service, but noted that the Commonwealth Edison balance was subject to adjustment. On or about November 29, 2012, he refunded $476.41 to Nemeth.
¶ 5 In February 2013, Nemeth sued Levin in the circuit court of Cook County, alleging that he violated the RLTO by failing to hold her security deposit in an Illinois financial institution (count I), comingling her security deposit with his own assets (count II), failing to disclose the name andaddress of the financial institution (count III), failing to notify her that he transferred the security deposit from one financial institution to another during the rental agreement (count IV), failing to give her a receipt (count V), failing to return the security deposit less allowable deductions within 45 days of her departure (count VI), and failing to attach an interest rate summary to her lease (count VII). Nemeth's damage claim totaled $23,332, because she sought twice her security deposit in each of the first five counts ($3,400 x 6 counts), $1,132.50 in the sixth count, $100 in the final count, and in every count asked for interest, court costs ($337), and attorney fees.
¶ 6 In March 2013, Levin's daughter, Jena, appeared as counsel and filed the motion at issue in this appeal. The motion to dismiss was divided into two parts. Citing section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), Levin argued Nemeth's entire complaint should be dismissed because his apartment building was exempted from the RLTO as an "owner-occupied" building of six units or less due to the fact that his two adult daughters reside rent-free in the building and he stays in one of those apartments during his frequent visits to Chicago. Next, citing section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)), Levin sought dismissal of counts II through V on grounds that those counts improperly duplicated the damages sought in count I. He contended it was wrong to "stack" or sum the damage claims for multiple violations to the RLTO and that for this reason alone, the court should consider only the allegation in count I that Levin failed to hold the security deposit within Illinois. In the concluding paragraph of his section 2-615 argument, Levin stated that as a sanction pursuant to Supreme Court Rule 137, Nemeth should be ordered to pay the attorney fees Levin incurred in preparing the motion to dismiss, because he warned her that he believed the purpose of counts II through V was to needlessly increase the costs of the litigation and that if she did not voluntarily withdraw counts IIthrough V, he would bring his belief to the court's attention. 137 Ill. S. Ct. R. 137 (eff. Feb.1, 1994).
¶ 7 A few weeks later, in April 2013, when the parties appeared in court for a status call, Nemeth asked for and was granted leave to amend her complaint. The trial court's order also indicates Levin withdrew his section 2-615 argument but chose to maintain his request for sanctions and that the court set a briefing schedule and a hearing date on the remainder of Levin's motion. Nemeth left the court room and immediately filed a first amended verified complaint which was substantively similar to her original pleading, but was styled as a single count and sought damages of only $4,632.50.
¶ 8 Nemeth subsequently filed a response brief in which she challenged Levin's contention that his building was an owner-occupied building of six units or less, in part because the building had been marketed for sale as a seven flat with two retail units and because Levin undisputedly resided in Pennsylvania and only visited rather than resided in one of the apartments. Nemeth attached a real estate listing for 1121 North Ashland Avenue and an affidavit regarding her contacts with Levin. She pointed out that if she showed at trial that the building did in fact contain seven dwelling units, this would disqualify the building from the statute's exception for six or fewer units, and there would be no need to address whether the building was owner-occupied.
¶ 9 In reply, Levin argued that Nemeth focused on his residency, but that his daughters qualified as "beneficial owners" of the property and brought the building within the owner-occupied exception. He also argued Nemeth had not provided "any legitimate basis" to argue that the building had more than six dwelling units.
¶ 10 After hearing oral arguments in May 2013, the trial court took the motion underadvisement. In June 2013, the court entered a two-page handwritten order that, among other things, (1) denied Levin's 2-619 motion to dismiss on the basis of the owner-occupied exception, (2) indicated a question of fact remains as to the number of dwelling units, (3) indicated a question of fact remains as to whether Levin waived application of the RLTO by attaching a summary of the ordinance to his lease with Nemeth, (4) denied Levin's request for sanctions pursuant to Rule 137, and (5) scheduled Nemeth's compliant for trial on September 30, 2013. The court's order also stated there was no just reason to delay either the enforcement or appeal of the order. Levin has appealed to this court, seeking review of the denial of his motion on the basis of the owner-occupied exception and denial of his request for sanctions.
¶ 11 In his opening appellate brief, Levin cites Supreme Court Rule 304 as the basis of our jurisdiction. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Before we address Levin's arguments, we must consider Nemeth's challenge to our jurisdiction over the denial of Levin's motion to dismiss. Except as provided by the Illinois Supreme Court Rules, we have jurisdiction to review only final judgments, orders, or decrees. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Flores v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480, 482 (1982) (); Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 210, 642 N.E.2d 1264, 1266 (1994) . "A judgment or order is final for purposes of appeal if it disposes of the rights of the parties, either on the entire case or on some definite and separate part of the controversy, and, if affirmed, the only taskremaining for the trial court is to proceed with execution of the judgment." Brentine v. DaimlerChrysler Corp., 356 Ill. App. 3d 760, 765, 826 N.E.2d 1057, 1062 (2005); Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 538, 718 N.E.2d 612, 619 (1999). Nemeth contends that the trial court's denial of Levin's motion to dismiss is not the type of ruling that is appealable pursuant to Rule 304. Ill. S. Ct. R. 304 (eff. Feb. 26, 2010). We agree with her.
¶ 12 Rule 304 provides, in pertinent part:
"Rule 304. Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding
(a) Judgments As To Fewer...
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