Wolff v. Bethany N. Suburban Grp.
| Docket Number | 1-19-1858 |
| Decision Date | 23 April 2021 |
| Citation | 2021 IL App (1st) 191858,197 N.E.3d 77,458 Ill.Dec. 664 |
| Parties | Michelle WOLFF, as Executor of the Estate of Marjorie Hamilton, individually and as the representative of a class of similarly situated persons, Plaintiff-Appellant, v. BETHANY NORTH SUBURBAN GROUP, d/b/a Chestnut Square at the Glen Association, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Phillip A. Bock and Jonathan B. Piper, of Bock, Hatch, Lewis, & Oppenheim, LLC, of Chicago, for appellant.
Elizabeth M. Bartolucci, of O'Hagan Meyer, LLC, of Chicago, for appellee.
¶ 1 Plaintiff Michelle Wolff, as executor of the estate of Marjorie Hamilton, individually and as the representative of a class of similarly situated persons, appeals from an order of the circuit court of Cook County that granted summary judgment in favor of defendant, Bethany North Suburban Group (Bethany), doing business as Chestnut Square at the Glen Association, and denied plaintiff's partial motion for summary judgment. Plaintiff, as representative of a class of similarly situated persons, sought damages from Bethany for violations of the Security Deposit Interest Act (Interest Act) ( 765 ILCS 715/0.01 et seq. (West 2014)) and the Security Deposit Return Act (Deposit Return Act) ( 765 ILCS 710/0.01et seq. (West 2014)). Plaintiff also sought individual damages for consumer fraud under the Consumer Fraud Act and Deceptive Business Practices Act (Consumer Fraud Act) ( 815 ILCS 505/1 et seq. (West 2014)) and breach of contract.
¶ 2 Plaintiff raises the following issues on appeal: (1) whether the circuit court erred in granting Bethany's motion for summary judgment on both the class claims and her individual claims and (2) whether the circuit court erred in denying her motion for partial summary judgment on the class claims. For the following reasons, we affirm the judgment of the circuit court.
¶ 5 Marjorie Hamilton entered into a contract titled "Residency and Services Agreement" (Agreement) for Chestnut Square at the Glen Association (Chestnut Square) for Apartment 1309A on December 1, 2004. In the definitions section of the Agreement, Chestnut Square was defined as an Illinois not for profit corporation that operates an independent living senior housing community for persons 55 years and older1 in Glenview, Illinois, and is affiliated with Bethany Methodist Corporation. The Agreement provided for an initial deposit that was to be paid by Hamilton to reserve a residence in Chestnut Square that would only be refunded as expressly provided in the Agreement. The Agreement further stated that Chestnut Square would pay interest on the initial deposit at the passbook savings rate established by Bank One. The entrance fee, which is the fee at issue, was defined as "the fee charged by Chestnut Square Association upon your taking possession of your residence ("the Apartment")."
¶ 6 The Agreement was divided into several sections; those that are relevant to the controversy at hand are as follows. Section II, ‘‘Admission & Occupancy,‘‘ contained the following key provisions: (1) the Agreement was conditioned on Chestnut Square securing all necessary financing, permits, licenses, and government approvals required for the construction of the property within five years; (2) if such financing, permits, licenses, and government approvals were not received within five years and upon notice from Chestnut Square of same, either party could elect to terminate the Agreement within 90 days after the expiration of the five-year period or the notice is sent, and the initial deposit would be refunded with the interest earned; (3) Hamilton could elect to terminate the Agreement at any time prior to occupancy of the apartment and receive a refund of her initial deposit without interest when another Agreement for the apartment had been signed and the initial deposit received; (4) failure to take occupancy within 60 days of the occupancy date could result in the apartment being reassigned and the Agreement terminated and the initial deposit would be refunded without interest, at the time the apartment became occupied by another resident and a new entrance fee received; and (5) Hamilton had the right to reside at Chestnut Square under the terms of the Agreement and to receive services during the balance of her lifetime or until the Agreement was terminated as provided in section VIII.
¶ 7 Section III, ‘‘Obligations of Chestnut Square,’’ contained the following key provisions regarding the services provided by Chestnut Square to Hamilton as part of her monthly service fee: (1) water, heat, and air conditioning; (2) necessary repairs, painting, maintenance, and replacement of property and equipment of Chestnut Square; (3) weekly basic interior housekeeping; (4) one meal per day was included but additional meals could be available for additional charges; (5) local transportation; (6) a 24-hour emergency response system; (7) access to a beauty/barber shop with additional fees for services used; (8) use of common areas and participation in social activities; (9) reservation of guest rooms at an additional fee; (10) outdoor parking; (11) limited on-site storage; (12) the ability to modify her apartment with prior written consent; and (13) health care services—limited home health care services through a third party, priority access to Bethany Terrace Nursing Centre, and assistance in medical emergencies.2
¶ 8 Section IV, ‘‘Fees,’’ covered the entrance fee, which was $123,600; the monthly service fee of $1600; underground parking space entrance fee and monthly service fee, which Hamilton did not pay; tax and special assessment obligations; and the guarantee of continued residency. Hamilton did not have a separate tax obligation; her portion of real estate taxes was included in her monthly service fee. The guarantee of continued residency provision provided that Hamilton would not be removed from residency solely based on her financial inability to pay the monthly service fee or other charges and could continue to reside at Chestnut Square if facts were established that justified deferment of charges without impairing the operation of Chestnut Square. Any deferred charges under this provision would be deducted from the entrance fee refund that may become due to Hamilton.
¶ 9 Sections V through VII governed Hamilton's transfer from her apartment. Section V, ‘‘Transfers,’’ allowed Hamilton to request a transfer from one apartment to another as well as provided for Chestnut Square's assistance in arranging a transfer to Bethany Terrace Nursing Centre or the health facility of her choice if special medical or nursing care was needed. Section VI, ‘‘Release of Apartment,’’ provided for the release of the apartment if Hamilton's condition required more than a temporary transfer from the apartment. Section VII, ‘‘Cost Factors Involved in Transfers,’’ contained provisions regarding calculating the cost of various types of transfers, including transfers to an apartment with a higher or lower entrance fee.
¶ 10 Section VIII, ‘‘Termination and Refund After Occupancy,’’ contained the following key provisions: (1) ‘‘Termination by Resident’’—the Agreement could be terminated by Hamilton at any time with written notice that specified the effective date of the termination, not less than 120 days after service of the notice and under such termination the Agreement remained in effect until the later of expiration of the 120 days or until the apartment was vacated and the monthly service fee remained in effect until the termination of the Agreement, at which time all financial obligations to Chestnut Square would cease; (2) ‘‘Death of Resident’’—Hamilton's legal representative could terminate the Agreement upon 30 days’ written notice to Chestnut Square and the estate would remain liable for the monthly services fee during that 30-day period; (3) ‘‘Termination by Chestnut Square’’—the Agreement could be terminated by Chestnut Square for good and sufficient cause on notice, at which time possession to the apartment would be "promptly" surrendered; (4) ‘‘Refund of Entrance Fee’’—upon termination of the Agreement, after occupancy, Chestnut Square refunds 100% of the amount of the entrance fee paid; the refund will be paid to the resident or their estate upon reoccupancy of the apartment minus any expenses necessary to return the apartment to like-new condition; (5) ‘‘Termination of Monthly Service Fee’’—the monthly service fee remained due and payable until the termination date or removal of the resident's personal property, whichever was last.
¶ 11 Section IX, ‘‘Limitation of Rights,’’ limited Hamilton's rights to those expressly granted in the Agreement. Specifically, the Agreement granted no proprietary interest in Chestnut Square, Chestnut Square Association, or any other assets, real or personal property of Chestnut Square or Bethany. Additionally, the Agreement noted that residency conveyed no title, legal or equitable, to the real property or improvements of Chestnut Square or Chestnut Square Association.
¶ 12 Section X, ‘‘Limitations on Chestnut Square Association's Obligations,’’ concerned Chestnut Square's property and liability insurance and stated further that its obligations were subject to fire or other casualty, war, riot, strikes, lockouts, delays, inability to obtain labor, material, or supplies or other causes beyond its control.
¶ 13 Section XI contained general provisions including a subsection M on ‘‘Professional Advice,’’ which stated that Hamilton's signature acknowledged that the Agreement involved significant financial, legal, and tax considerations and that Chestnut Square recommended that she obtain independent tax advice concerning those matters.
¶ 14 Section XII, ‘‘Explanation of Your Rights,’’ gave Hamilton 14 days from the (1) execution of the...
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