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Vanderplow v. Krych

June 25, 2002

MARGARET AND LOREN VANDERPLOW, PLAINTIFFS-APPELLANTS,
v.
JERRY AND STACY KRYCH, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County 00 M1 124189 Honorable Donald J. Suriano, Judge Presiding

The opinion of the court was delivered by: Justice McBRIDE

UNPUBLISHED

Plaintiffs Margaret and Loren Vanderplow filed a five-count first amended complaint in the circuit court of Cook County against their former landlords, defendants Stacy and Jerry Krych, alleging breach of contract and violations of the Chicago Residential Landlord and Tenant Ordinance (Chicago Municipal Code § 5-12-080(c) (amended November 6, 1991) (RLTO)). Following a bench trial, the trial court entered judgment for plaintiffs on count V only. Plaintiffs appeal, seeking reversal of the court's judgment on count II. Defendants cross-appeal, seeking reversal of the court's judgment on count V.

In a motion that was taken with the case, defendants contend that we lack jurisdiction over the appeal and cross-appeal because plaintiffs' "Motion to Amend [the] Pleadings to Conform to the Proof at Trial" (motion to amend) was not directed against the final judgment, and therefore, it did not extend the time for filing a notice of appeal. Thus, before reaching the merits of the appeal and cross-appeal, we must address whether we have jurisdiction. Robertson v. Winnebago County Forest Preserve District, 301 Ill. App. 3d 520, 522, 703 N.E.2d 606 (1998).

Pursuant to Supreme Court Rule 303(a)(1), a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or if a timely postjudgment motion directed at the final judgment has been filed, within 30 days after entry of the order disposing of the last pending postjudgment motion. 155 Ill. 2d R. 303(a)(2). The judgment appealed from in the instant case was entered on October 26, 2000. On November 17, 2000, plaintiffs filed the motion to amend. On November 22, 2000, the trial court granted plaintiffs' motion for an extension of time to file any post-trial motions until December 21, 2000. However, plaintiffs' motion for reconsideration was not filed in the office of the clerk of the circuit court of Cook County until December 26, 2000. The motion to amend was denied on January 29, 2001; the trial court also found it did not have jurisdiction to consider plaintiffs' untimely motion for reconsideration. Plaintiffs filed their notice of appeal on February 28, 2001, more than 30 days after the judgment was entered but within 30 days of the denial of the motion to amend. Defendants filed their notice of cross-appeal on March 12, 2001.

To qualify as a postjudgment motion, the motion must request at least one of the forms of relief specified in section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1998)), it must specify the grounds that would warrant granting the relief requested, and it must be filed with the clerk. Robertson, 301 Ill. App. 3d at 523. Section 2-1203 provides that in cases tried without a jury, any party may, within 30 days after entry of judgment, file a motion for rehearing, retrial, modification or vacation of the judgment, or "for other relief." 735 ILCS 5/2-1203(a) (West 1998). The "other relief" referred to in section 2-1203 must be similar in nature to the other forms of relief specified in that section. Brock v. Police Board, 205 Ill. App. 3d 1035, 1040, 563 N.E.2d 970 (1990).

Section 2-616(c) of the Code of Civil Procedure provides: "A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just." 735 ILCS 5/2-616(c) (West 1998). Although a motion to amend a complaint to conform with the proofs at trial pursuant to section 2-616(c) of the Code of Civil Procedure may be filed at any time, it is not similar in nature to the "other relief" referred to in section 2-1203, and is not a motion directed against the judgment. Brock, 205 Ill. App. 3d at 1040 (motion to amend petition for administrative review to conform to briefs and arguments of parties was not a motion directed against judgment); Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347, 549 N.E.2d 1262 (1990) (motion for leave to amend complaint is not a motion directed against judgment within meaning of Rule 303(a)(1) or encompassed within relief provided for by section 2-1203). Accordingly, such a motion does not extend the time for filing a notice of appeal. Andersen, 133 Ill. 2d at 347. See also Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189, 737 N.E.2d 160 (2000).

In light of this authority, plaintiffs' claim that the motion to amend was a valid postjudgment motion within the meaning of section 2-1203 is unpersuasive. However, citing some of these same cases, plaintiffs ask us to consider the content of their motion to amend, because "the nature of a motion is determined by its substance rather than its caption" (Robertson, 301 Ill. App. 3d at 523), and a court should not "blindly adhere to nomenclature at the expense of reality" in deciding whether a motion really is a section 2-1203 motion (Andersen, 133 Ill. 2d at 347). Plaintiffs contend that in substance their motion "was in the nature of a motion for reconsideration or rehearing, and thus was one of the specifically enumerated post-trial motions in [section 2-1203], whose filing tolls the running of the 30 day period for the filing of a notice of appeal." In the alternative, plaintiffs argue that the substance of the motion asserted a "claim" within the meaning of Supreme Court Rule 304(a), analogous to a claim for attorney fees, and therefore it extended the time to appeal.

In order to resolve these contentions, we set out additional facts from the record on appeal. Plaintiffs entered into a one-year lease with defendants from October 1, 1999 to September 30, 2000, for a Chicago apartment which was subject to the RLTO. In the first amended complaint referenced above, plaintiffs alleged that they vacated the premises on or about April 30, 2000 because the apartment was in disrepair. They further alleged that "on or about June 19, 2000 [defendants deducted $970 from the $1,750 security deposit and mailed plaintiffs a refund of] $785.84 along with an explanat[ory] letter dated May 22, 2000 and [a] painting bill."

In count I of the first amended complaint, plaintiffs alleged that defendants had violated sections 5-12-120, 5-12-140(a), and 5-12-140(b) of the RLTO, by including a $1,150 reletting charge in the contract, which discouraged plaintiffs from terminating their tenancy.

In count II, plaintiffs alleged that defendants had violated section 5-12-080 of the RLTO in two ways: (1) by failing to keep the security deposit in a different account from that used for the rent collected, and (2) by not returning the security deposit by June 15, 2000.

In count III, plaintiffs alleged that defendants had "failed to repair anything" within 14 days of plaintiffs' requests to do so, which diminished the apartment's fair market value to $575 per month, while defendants collected the full rent, $1,150 per month, between October 1, 1999 through April 30, 2000.

In count IV, plaintiffs alleged that defendants had violated section 5-16-100 of the RLTO by failing to disclose the apartment's heating costs prior to execution of the lease.

In count V, plaintiffs alleged that defendants made improper deductions from the security deposit consisting of $275 for patching and repainting interior walls which suffered from mere ordinary wear and tear; $145 for repairing the roof which plaintiffs had patched after removing their own satellite dish; and $550 for rent accruing after plaintiffs had properly terminated the lease and their tenancy.

During the trial proceedings, plaintiffs' attorney asked Jerry Krych whether a summary of the RLTO was attached to the written lease offered to plaintiffs. Defendants' attorney immediately objected and moved to strike, arguing that the first amended complaint did not contain any allegations with respect to the landlord's obligation to provide the RLTO summary. Then the following exchange occurred:

"THE COURT: What's the relevance?

[PLAINTIFFS' ATTORNEY]: Well, it's relevant -- first of all, he's right. We didn't allege that in a separate count ***.

***

*** [B]ut it would show, first of all, the credibility of this witness, number one, and number two is whether he was cognizant about the [RLTO] or not, or whether he ...


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