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Hoffman v. Altamore

September 07, 2004

HOLLY HOFFMAN, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
ALBERTO F. ALTAMORE, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Winnebago County. No. 03-SC-1627. Honorable J. Todd Kennedy, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice O'malley

PUBLISHED

Defendant, Alberto F. Altamore, appeals the judgment of the circuit court awarding plaintiff, Holly Hoffman, the sum of $531.67 representing her renters' security deposit that defendant had retained on the ground that plaintiff did not vacate the premises at the end of her lease term. Plaintiff cross-appeals, arguing that the trial court erred in denying her request under section 1 of the Security Deposit Return Act (765 ILCS 710/1 (West 2002)) for an award equal to twice the amount of her security deposit plus costs and attorney fees. We affirm.

Plaintiff filed a complaint seeking return of the $550 security deposit that she claimed defendant wrongfully withheld after her lease term ended. Plaintiff also claimed that she was entitled to penalties allowed by section 1 of the Security Deposit Return Act.

The case proceeded to a bench trial. Plaintiff testified that she had entered into a lease agreement with defendant for the rental of 6042 Boxwood Drive Apt #3 in Rockford. The lease was for a term of one year, from September 1, 2001, through August 31, 2002. Plaintiff introduced a copy of the lease into evidence.

Plaintiff testified that she asked defendant in the middle of August 2002 if she could rent month-to-month after the expiration of the current term. Plaintiff explained to defendant that she could not afford another one-year lease. When defendant declined plaintiff's request, she told him that she was not certain whether she would be renewing her lease for another year. Plaintiff did not contact defendant again regarding whether she would renew the lease.

Plaintiff testified that, on August 31, 2002, she removed all of her belongings from the apartment. The next day, September 1, 2002, she cleaned the apartment. That afternoon, she placed her apartment key in the mailbox of defendant's residence. She included with the key a typewritten note, a copy of which was introduced into evidence. The note reads:

"Dear Al and Linda:

Apartment #3, at 6042 Boxwood Drive is empty, and available to you. I do apologize if we had a miscommunication about when I would be leaving. The apartment is, however, empty and clean, by the first. When you have evaluated its condition, I would appreciate a call *** to let me know when I might expect my security deposit. Thank you, and I again I apologize for any confusion."

Plaintiff testified that, about two weeks after she vacated the apartment, she contacted defendant's office about her security deposit because she had not heard anything from defendant. She left a message with defendant's secretary. A week later, having heard no response from defendant, plaintiff called and left another message about the security deposit. Defendant then returned her call. Defendant told plaintiff that he did not realize that she had moved out of the apartment. In regard to the security deposit, defendant explained that he wanted to wait until he found a new tenant before they discussed the issue further. After this conversation, plaintiff waited for defendant to contact her. After leaving several more messages for defendant and receiving no reply, plaintiff drove past the apartment. Plaintiff testified that it appeared to her that someone was now occupying the apartment. Plaintiff testified that she did manage to speak with defendant on one more occasion. During that conversation, defendant raised the issue of the apartment's garbage disposal. Plaintiff explained to defendant that the garbage disposal was not working when she moved in and that it rarely worked during her tenancy. An argument ensued. Although defendant never expressly stated that he would not return her security deposit, plaintiff believed that in the wake of the argument, he would not return it.

On cross-examination, plaintiff admitted that she did not provide defendant any advance notice that she intended to vacate the premises at the end of the lease term or that she intended to renew the lease. Plaintiff explained that she forgot to give notice because she "had a lot on [her] mind" at the time. Asked why she placed the apartment key and the note in defendant's mailbox rather than in the mail slot in defendant's door, plaintiff again noted that she was very busy that day and did not "put a lot of thought into it." She explained that she did not ring defendant's doorbell and deliver the key to defendant personally because the day she came by was the Sunday of Labor Day weekend and she assumed that defendant was either out of town or did not want to be disturbed.

After plaintiff rested her case, Linda Altamore, defendant's wife, testified. Linda testified that she and defendant own five buildings on Boxwood Drive, each of which contains four rental units. Each building is on a separate parcel of property with its own legal description. Linda testified that the buildings do not comprise an apartment "complex" but are simply located on the same street. Linda noted that, although the buildings are identical to each other, they are also identical to other buildings on the same street.

Linda testified that she is also the manager of the buildings on Boxwood Drive. She testified that she instructs tenants to place their rent payments in the mail slot in the door of the Altamore residence rather than in the mailbox. Linda testified that she received an apartment key in the mailbox of the Altamore residence on September 1, 2002, but, contrary to plaintiff's claim, there was no note with the key identifying the apartment to which the key belonged. Linda testified that she did not learn that plaintiff had moved out until two weeks later when another tenant informed her. Linda testified that she retained plaintiff's security deposit of $550, equal to one month's rent, as rent for the month of September 2002 because plaintiff had not vacated the premises by September 1, 2002. Linda denied that any of the security deposit was retained to pay for damage to the apartment.

Defendant, who was pro se, also testified. Defendant generally corroborated the substance of plaintiff's testimony about their conversation regarding the possibility of renting month-to-month. Defendant agreed with plaintiff's testimony that the ...


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