Filed November 20, 2006
No. 1-05-1263
FRANCESCA DETRANA, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
JERRY SUCH and SERIFA SUCH, )
)
Defendants-Appellees )
)
(Berton N. Ring, ) Honorable
) Joyce Marie Murphy Gorman,
Appellant). ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
In this landlord-tenant dispute, plaintiff Francesca Detrana
appeals from an order of the circuit court entering partial summary
judgment in defendants' favor on the issue of "ownership," and an
order (following a bench trial) imposing Supreme Court Rule 137
sanctions (155 Ill. 2d R. 137) against plaintiff's attorney. At
trial, the trial court ruled that, pursuant to section 5-12-020(a)
of the City of Chicago Residential Landlord and Tenant Ordinance
(RLTO) (Chicago Municipal Code §5-12-020(a) (2004)), the subject
building coowned by defendants Jerry and Serifa Such and Serifa's
father, Nasrulla Murtus,1 was exempted from the operation of the
1
Murtus, who died prior to trial, was not named as a defendant in this case.
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RLTO because it was "owner-occupied." The court further denied
plaintiff’s request for sanctions against defendants and their
counsel. There was no report of proceedings or bystanders report
filed in this matter. However, in reading the record in this case
together with the briefs of both parties, this court concludes that
it can determine the issues in this appeal. We find that the
record is sufficiently complete to allow us to consider the merits
of the arguments raised. Robles v. Chicago Transit Authority, 235
Ill. App. 3d 121, 601 N.E.2d 869 (1992).
On appeal, plaintiff contends: (1) the term "owner-occupied,"
as used in the RLTO, should apply only to titleholders who maintain
a measure of control over the premises; (2) even if this court
finds that bare legal title constitutes ownership within the
meaning of the RLTO, summary judgment in favor of defendants was
improper because genuine issues of material fact existed regarding
whether defendants waived the RLTO exemption and whether Murtus'
occupancy was designed to avoid application of the RLTO; and (3)
plaintiff presented an objectively reasonable argument regarding
the definition of "ownership" as incorporating an element of
control, thereby precluding imposition of Supreme Court Rule 137
sanctions (155 Ill. 2d R. 137) against his attorney, Berton Ring.
We affirm in part and reverse in part.
STATEMENT OF FACTS
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Plaintiff entered into a lease on June 5, 1999, "for apartment
unit #3" located at 1246 West Altgeld in Chicago. The monthly rent
was $1,525 and the security deposit was $2,287.50. Serifa Such
was listed as the lessor. The expiration date of the lease was
June 30, 2000. Plaintiff renewed the lease on June 30, 2000, with
the rent listed as $1,600 and the security deposit $2,362.50.
Plaintiff moved out of the premises prior to June 27, 2001, having
"paid all the rents to Serifa through June 30, 2001." On August
15, 2001, Serifa sent plaintiff a list of deductions against
plaintiff’s security deposit plus the balance of the deposit
($1,077.54), "together with the receipts," explaining the deduction
of $116.25 for two late charges, and giving credit for two years of
interest on the deposit.
On October 22, 2001, plaintiff filed a four-count complaint
against defendants. Counts I, II and IV were based on claims
under the RLTO. Count III was based on breach of contract for
mishandling her security deposit. Plaintiff further alleged in her
complaint that the "subject *** building contains two units, is not
owner occupied and is subject to the [RLTO]."
On January 8, 2003, defendants filed a motion for partial
summary judgment on counts I, II and IV of plaintiff's complaint,
arguing that the RLTO was inapplicable to the property because
Murtus, one of the titleholders, resided in the basement apartment,
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thereby excluding the building from operation of the RLTO pursuant
to section 5-12-020 of the RLTO. Defendants attached, in support
of their motion, the quitclaim deed by which Murtus conveyed title
to the building to himself, Serifa, and Jerry; Serifa's
supplemental and second supplemental affidavits; and a portion of
Serifa’s deposition. In her affidavits, Serifa averred that:
Murtus had resided in and occupied the premises for approximately
37 years; during plaintiff’s tenancy, the basement apartment was
occupied by Murtus and, at times, by his grandson, Adam; and Murtus
was 78 years old in 1999 and was absent from his basement apartment
approximately two or three weeks out of the entire year due to
medical treatments. In her deposition, Serifa testified that: at
times from 1999 to 2001, when Murtus was ill, he would stay with
defendants for short periods of time, but then would return to his
home at the 1246 West Altgeld building; and Murtus’ furniture,
furnishings and clothing were at the Altgeld building. Defendants
further argued that plaintiff's affidavit, which they attached,
"does not state that Nasrulla Murtus did not occupy the subject
property *** from 1999-2001," and that plaintiff admitted in the
affidavit that Murtus received his mail at the property.
Defendants further argued that plaintiff's affidavit simply stated
that plaintiff never saw, communicated with or met Murtus.
Defendants explained this fact throughout Serifa's deposition, in
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which Serifa testified that Murtus was very ill and a private
person. Defendants further explained, pursuant to Serifa's
supplemental and second supplemental affidavits, that the reason
plaintiff never saw Murtus, but did see Adam, was that Adam went to
work every day, while Murtus was retired and stayed at home.
Lastly, defendants maintained that because plaintiff was working
nights and sleeping during the day, she could not have personal
knowledge of Murtus' whereabouts and activities.
Plaintiff filed a memorandum of law in opposition to
defendants' motion for partial summary judgment. Plaintiff argued
that a question of fact existed as to whether Murtus occupied the
basement apartment. Plaintiff maintained that Serifa was lying
about Murtus' occupancy, based on the fact that the basement
apartment did not have electric service or direct heat, and Murtus
lived there without a telephone. Plaintiff further argued that a
"letter" from defendants to plaintiff, showing a deduction for
interest on plaintiff's security deposit for her two-year tenancy
pursuant to the RLTO, was evidence that Serifa "treated the RLTO as
applying" to the property, and "the purported applicability of the
'owner-occupied' exemption [was] a convenient fabrication concocted
after suit was commenced." (Emphases in original.)
Plaintiff also argued that, although Murtus was a titleholder,
he could not be deemed an owner for purposes of the owner-occupied
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exemption because he did nothing concerning the management of the
building and kept his "ownership" secret. Plaintiff maintained
that the thrust of the RLTO is to ensure the proper treatment of
tenants by landlords and that this purpose is not applicable where
the party has no control over the status of the tenants' rights.
In opposition, plaintiff presented her affidavit, which
included her averment that she never saw Murtus in the building and
that the basement apartment was unoccupied (except by Adam for two
or three months) during her tenancy. Plaintiff also relied on
Serifa's deposition testimony regarding the facts that the basement
unit did not have its own direct heating, electricity or telephone
service to the apartment.
The trial court granted partial summary judgment on the issue
of ownership, finding that Murtus was a titleholder, but denied the
motion on the issue of occupancy, finding that competing deposition
testimony sufficiently created a factual dispute.
A trial was conducted on plaintiff’s complaint and, on
November 3, 2002, the trial court entered judgment in favor of
defendants and against plaintiff on the RLTO counts, finding that
the RLTO did not apply because the building was "owner-occupied" by
Murtus. The trial court also entered judgment in favor of
plaintiff on her breach of contract claim regarding her security
deposit. Defendants tendered payment of the judgment against them
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to plaintiff, but plaintiff’s counsel refused to accept it.
Defendants then filed a petition for Supreme Court Rule 137
sanctions against Berton N. Ring, plaintiff