Appeal from the Circuit Court of Jackson County. No. 01-LM-181 Honorable E. Dan Kimmel, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
rcuit court of Jackson County against Kevin Williams and Archie Williams, individually and doing business as Royal Rentals, a partnership (hereinafter referred to collectively as Royal Rentals). The subject of the complaint was the return of a security deposit. The court entered an order dismissing certain counts and striking paragraphs in other counts of the plaintiff's complaint. On reconsideration, the court affirmed the prior order and granted leave to appeal the dismissed counts pursuant to Supreme Court 304(a) (155 Ill. 2d R. 304(a)). On appeal, the plaintiff raises the following issues: (1) whether the circuit court erred in dismissing count II of his complaint, which alleged a violation of the Security Deposit Interest Act (the Act) (765 ILCS 715/0.01 et seq. (West 2000)), and (2) whether the circuit court erred in dismissing count IV of his complaint, which alleged a breach of contract. We reverse and remand.
On May 23, 2001, the plaintiff filed his complaint against Royal Rentals. Royal Rentals operated 10 apartment buildings with a total of 227 units. The Carbondale, Illinois, apartment complex in which the plaintiff lived had more than 25 units itself.
The plaintiff alleged that he leased an apartment in Logan Apartments from about September 25, 1998, until about May 23, 2000. The plaintiff paid a security deposit of $225. A lease signed by the plaintiff dated August 6, 1999, was attached to the complaint as an exhibit. Paragraph 3 of the lease, entitled "SECURITY DEPOSIT," concluded: "ROYAL agrees to return the balance of the security deposit, less any deductions for damages or breach of this Lease, within thirty (30) business days after the expiration date of this Lease Agreement. TENANTS agree to waive right to interest on security deposit."
Also attached to the complaint were several exhibits. A "Tenant Check[-]In Form" indicates that several areas of the house were marked as dirty. A "Housing Check[-]Out Form" indicates that all but three of these items were still listed as dirty. A document entitled "Itemized Deposit Return Receipt" noted a deposit in the amount of $225 but indicated that the plaintiff was being charged $460 for "cleaning charges" and $10 for a "hole in hallway." The document indicated that the amount of $245 was due to Royal Rentals. At no point was any part of the security deposit returned or any interest on the security deposit paid to the plaintiff.
The plaintiff's complaint is in four counts and states that the claims are brought on behalf of a class. Count I requests a return of the security deposit pursuant to the Security Deposit Return Act (765 ILCS 710/0.01 et seq. (West 2000)). Count II requests interest from the security deposit according to the Act (765 ILCS 715/0.01 et seq. (West 2000)). Count III alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2000)). Count IV alleges a breach of contract. The plaintiff made class allegations for each count. Royal Rentals filed a suggestion of the death of Archie Williams on January 16, 2001.
The plaintiff filed a motion for class certification. Royal Rentals filed a document entitled "Motion Attacking Complaint." The court entered an order dismissing count II and count IV pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)) and striking specific paragraphs of count I and count III pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/ 2-615 (West 2000)). The plaintiff filed a motion for reconsideration. The court denied the motion and affirmed the prior order as final and appealable (see 155 Ill. 2d R. 304(a)). The plaintiff appeals.
In his brief, the plaintiff raises issues regarding the striking of paragraphs in counts I and III. Royal Rentals points out that the trial court merely struck certain allegations in count I and count III and that, therefore, the court's ruling on these counts was not final and appealable. See 155 Ill. 2d R. 304(a); Lee v. Juhlin, 25 Ill. App. 2d 221, 227, 166 N.E.2d 459, 462 (1960). At the beginning of the oral argument in this court, the plaintiff's counsel conceded this point, and this decision only concerns the dismissal of count II and count IV. The plaintiff contends that the trial court erred in dismissing count II. Count II sets forth a claim under the Act (765 ILCS 715/0.01 et seq. (West 2000)). The Act provides that for any residential property containing more than 25 units, a lessor is obligated to pay a lessee interest on any security deposit. 765 ILCS 715/1, 2 (West 2000). A lessor who willfully fails to pay the interest is also liable for court costs and attorney fees. 765 ILCS 715/2 (West 2000).
Royal Rentals contends that the lease is a clearly expressed waiver of the statutory right to receive interest. The lease agreement states, "TENANTS agree to waive right to interest on security deposit."
Royal Rentals' assertion that the plaintiff waived his right to interest under the Act is unconvincing. Royal Rentals contends that whether statutory protection can be waived by contract depends on whether the right in question is conferred for the benefit of the public at large rather than solely for the private benefit of individuals. See O'Brien v. Encotech Construction Services, Inc., 183 F. Supp. 2d 1047, 1049 (N.D. Ill. 2002); People ex rel. American Bankers Insurance Co. v. Palmer, 363 Ill. 499, 511, 2 N.E.2d 728, 733 (1936); In re Estate of Ferguson, 313 Ill. App. 3d 931, 937, 730 N.E.2d 1205, 1210 (2000); Department of Public Aid ex rel. Allen v. Dixson, 323 Ill. App. 3d 600, 603, 752 N.E.2d 1147, 1150 (2001). The Act, however, does not merely confer a benefit on individuals. The Act protects a class of people-those who rent from large property owners. See Munroe v. Brower Realty & Management Co., 206 Ill. App. 3d 699, 704, 565 N.E.2d 32, 35 (1990); Dickson v. West Koke Mill Village Partners, 329 Ill. App. 3d 341, 346, 769 N.E.2d 971, 975 (2002) (discussing the protection of a class under the Act); Gittleman v. Create, Inc., 189 Ill. App. 3d 199, 203, 545 N.E.2d 237, 240 (1989) (the legislative history indicates that the policy for awarding costs and attorney fees is to set a penalty for landlords who ignore the mandate of the Act). The right to interest provided by the Act is a consideration of public concern.
The plaintiff's position is supported by precedent. In Gittleman, tenants sued a landlord for security deposits and interest refunds under the Act. Gittleman, 189 Ill. App. 3d at 201, 545 N.E.2d at 238. The leases had a stamped provision that read as follows: " 'It is understood that the security deposit is net of security deposit interest, if any.' " Gittleman, 189 Ill. App. 3d at 202, 545 N.E.2d at 239. The landlord claimed that this provision meant that an amount was subtracted from the gross rent for each month as credit for interest on the security deposit. The court found that the leases did not reflect the calculation ...