dissenting:
I disagree with the majority’s conclusion that the RLTO allows attorney fees in this case.
Section 5 — 12—140 of the RLTO provides as follows:
“Except as otherwise specifically provided by this chapter, no rental agreement may provide that the landlord or tenant:
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(f) Agrees that in the event of a lawsuit arising out of the tenancy the tenant will pay the landlord’s attorney’s fees except as provided for by court rules, statute, or ordinance.” Chicago Municipal Code §5 — 12—140 (amended November 6, 1991).
The plain language of this section is clear: a rental agreement may not provide that a tenant agrees to pay attorney fees in connection with a lawsuit, unless such attorney fees are provided for by court rules, statute, or ordinance. Plaintiff directs us to no court rule or statute that provides for its recovery of attorney fees in this case. Plaintiff instead argues, and the trial court apparently agreed, that an ordinance — another section of the RLTO itself — provides that plaintiff may recover attorney fees in this case.
Plaintiff directs us to section 5 — 12—180 of the RLTO, which creates an exception to the section 5 — 12—140 prohibition on attorney fees for landlords:
“Except in cases of forcible entry and detainer actions, the prevailing plaintiff in any action arising out of a landlord’s or tenant’s application of the rights or remedies made available in this ordinance shall be entitled to all court costs and reasonable attorney’s fees; provided, however, that nothing herein shall be deemed or interpreted as precluding the awarding of attorney’s fees in forcible entry and detainer actions in accordance with applicable law or as expressly provided in this ordinance.” Chicago Municipal Code §5 — 12—180 (added November 6, 1991).
I resort first to the plain language of the ordinance in order to derive its meaning. Plaintiff urges that, under the above section of the RLTO, “the prevailing plaintiff in a landlord-tenant action is entitled to all costs and fees incurred in such action.” I disagree with plaintiffs characterization of section 5 — 12—180. The section does not allow for the prevailing plaintiff to recover attorney fees in all landlord-tenant lawsuits, as plaintiff implies. Rather, by its plain language, section 5 — 12—180 allows attorney fees only in actions “arising out of a [party’s] application of the rights or remedies made available in [the RLTO].” Chicago Municipal Code §5 — 12—180 (added November 6, 1991). Plaintiff brought this action to enforce its right to rent payments under the rental agreement, and not to enforce rights or remedies made available by the RLTO. Accordingly, section 5 — 12— 180 does not apply. (The section also specifically provides that attorney fees may be awarded in forcible entry and detainer actions. However, again, the current action is an action for rent pursuant to the lease, and not a forcible detainer action, and the forcible detainer language does not apply.) Plaintiffs interpretation of section 5 — 12— 180 contravenes the plain language of the ordinance.
Further, a statute or ordinance should be read as a whole and construed so that no part of it is rendered meaningless or superfluous. Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 548 (2006), citing People v. Jones, 214 Ill. 2d 187, 193 (2005). As noted, section 5 — 12— 140 provides that a landlord may not hold a tenant liable for attorney fees for lawsuits arising out of the tenancy. If we were to accept plaintiffs interpretation of section 5 — 12—180 as allowing the prevailing plaintiff attorney fees in any landlord-tenant action, section 5 — 12—140 would be rendered virtually meaningless. For this reason, along with the fact that plaintiffs interpretation is at odds with the plain language of the RLTO, I would reject plaintiffs argument.
Plaintiff also asserts in passing that the “RLTO also makes fees available for tenant breach in Section 5 — 12—130(b).” Section 5 — 12— 130 states, in pertinent part:
“Every landlord shall have the remedies specified in this section for the following circumstances:
(a) Failure to pay rent. If all or any portion of rent is unpaid when due and the tenant fails to pay the unpaid rent within five days after *** notice by the landlord of his intention to terminate the rental agreement if rent is not so paid, the landlord may terminate the rental agreement. *** A landlord may also maintain an action for rent and/or damages without terminating the rental agreement.
(b) Noncompliance by Tenant. If there is material noncompliance by a tenant with a rental agreement or with Section 5 — 12—040, the landlord *** may deliver written notice to the tenant specifying the acts and/or omissions constituting the breach and that the rental agreement will terminate upon a date not less than 10 days after receipt of the notice, unless the breach is remedied by the tenant within that period of time. If the breach is not remedied within the 10 day period, the residential rental agreement shall terminate as provided in the notice. The landlord may recover damages and obtain injunctive relief for any material noncompliance by the tenant with the rental agreement or with Section 5 — 12—040. If the tenant’s noncompliance is willful, the landlord may also recover reasonable attorney’s fees.” Chicago Municipal Code §5 — 12—130 (amended November 6, 1991).
Plaintiff does not assert that section 5 — 12—130(b) applies in this case, and plaintiff points to no portion of the record where plaintiff argued, or the trial court concluded, that defendant’s failure to pay rent was “willful,” as is required to trigger the attorney fees provision of section 5 — 12—130(b). Plaintiff simply argues that the RLTO does not prohibit landlords from recovering attorney fees in all cases, and thus that section 5 — 12—140 should not bar it from recovering fees here. I agree with plaintiffs assertion that section 5 — 12—130(b) allows a landlord to collect attorney fees, but that revelation is entirely consistent with the above-quoted text of section 5 — 12—140, which prohibits a landlord from collecting attorney fees “[ejxcept as otherwise specifically provided by [the RLTO].” Chicago Municipal Code §5 — 12—140 (amended November 6, 1991). The fact that the RLTO specifically provides under section 5 — 12—130(b) for landlords in some instances to recover attorney fees does not defeat my conclusion that plaintiff here is not entitled to attorney fees.
The majority concludes that plaintiff is entitled to attorney fees under the RLTO because this action could be characterized as an action under section 5 — 12—130(a) of the RLTO, and thus it is an action “arising out of a [party’s] application of the rights or remedies made available in [the RLTO]” so that attorney fees are available under section 5 — 12—180 (Chicago Municipal Code §5 — 12—180 (added November 6, 1991)). See 371 Ill. App. 3d at 203. Plaintiff has not argued the application of section 5 — 12—130(a) to this case. In fact, though plaintiff specifically mentions section 5 — 12—130(b) in its brief, it makes no such mention of section 5 — 12—130(a). Thus the majority raises this issue sua sponte. A reviewing court should set aside the principles of waiver only for good reason: “to provide a just result [or] to maintain a sound and uniform body of precedent.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). In exercising the court’s power to override considerations of waiver, “[proper] care should be taken that the litigants are not deprived of an opportunity to present argument.” Hux v. Raben, 38 Ill. 2d 223, 225 (1967) (holding that, in the situation presented there, the appellate court did not err by considering arguments not raised by the parties). Because there has been no input from the parties to shape the issue for our review, no opportunity for defendant to respond to the issue, and no good reason presented to disregard the principles of waiver, we should consider the section 5 — 12—130(a) argument waived. Further, if the majority chooses to advocate for one side over the other by raising arguments for plaintiff, it should at least afford defendant an opportunity to respond to the arguments. At a minimum, in the interest of basic fairness, the majority should order supplemental briefing.
Absent input from defendant, the majority anticipates an argument on defendant’s behalf when it sua sponte offers that its interpretation does not render section 5 — 12—140 meaningless. See 371 Ill. App. 3d at 206 (“In so holding, we note that our analysis does not undermine or render meaningless *** section 5 — 12—140(f) ***”). The majority reasons that, under its interpretation, section 5 — 12— 140 continues to prohibit attorney fees provisions in cases where a lease provision requires that a tenant pay a landlord’s attorney fees regardless of whether the landlord was the prevailing party in a lawsuit. 371 Ill. App. 3d at 206. This sua sponte rather extreme hypothetical, which may implicate public policy considerations beyond the scope of the RLTO, illustrates the extent to which the majority has gone on its own to defend a holding that it reaches entirely on its own.
The sua sponte nature of the majority’s ruling leaves open further questions about the ruling’s propriety. The majority concludes that plaintiff here sought a remedy under section 5 — 12—130(a) of the RLTO, based on language from RLTO provisions describing the ordinance’s scope. 371 Ill. App. 3d at 205. (Of course, the majority does so again without any suggestion from the parties.) The relevant portion of section 5 — 12—130(a) states that a “landlord may also maintain an action for rent and/or damages without terminating the rental agreement.” (Emphasis added.) Chicago Municipal Code §5— 12 — 130(a) (amended November 6, 1991). The majority states that plaintiff did not seek a remedy of termination, because the lease had already ended, but it does not discuss whether the fact that the lease was no longer in effect at the time of the complaint moves this case outside of the intended scope of section 5 — 12—130(a).
In light of these (and perhaps other) potential problems with the majority’s interpretation, and without any input from the parties on this issue, I do not venture a conclusion as to the application of section 5 — 12—130(a) to this case.
Based on the above discussion, I would either order supplemental briefing on the issues the majority discusses or limit my analysis to the issues the parties have presented to us. Without supplemental briefing, I would hold that the trial court erred in granting plaintiffs motion for summary judgment, and denying defendant’s, on the issue of attorney fees, and I would reverse the trial court’s ruling in that respect. I agree with the majority that the attorney fees provision of the lease agreement does not violate the RLTO (see 371 Ill. App. 3d at 204) and that the lease should not be declared void in its entirety as a matter of public policy (see 371 Ill. App. 3d at 206-08).