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Starr v. Gay

December 30, 2004

R. STARR, D/B/A GEORGE ELLISON MANAGEMENT COMPANY, PLAINTIFF-APPELLEE,
v.
GLYNNIS GAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 99 M1 716184. Honorable Sheldon C. Garber Judge Presiding.

The opinion of the court was delivered by: Justice Hall

The central issue in this case is whether the commingling prohibition set forth in section 5-12-080(a) of the Chicago Residential Landlord and Tenant Ordinance (Ordinance) (Chicago Municipal Code § 5-12-080(a) (amended November 6, 1991)) is violated when a landlord-seller of a subject property transfers a tenant's security deposit to a purchaser at closing by applying the amount of the deposit toward the property's purchase price and then giving the purchaser a bookkeeping credit against the purchase price equal to the amount of the deposit. We hold that this "credit method" of transferring a tenant's security deposit at closing does not violate the commingling prohibition contained in section 5-12-080(a) of the Ordinance.

[9]     BACKGROUND

In 1994, Glynnis Gay (tenant) entered into a written one-year lease agreement with R. Starr, d/b/a George Ellison Management Company (landlord), for lease of an apartment in a 40-unit building in Chicago in which the owner did not reside. Tenant gave landlord a security deposit of $435 when she rented the apartment. The parties renewed the lease four times.

In a letter dated April 13, 1999, sent by certified mail, tenant notified the landlord that pursuant to section 5-12-110(d) of the Ordinance (Chicago Municipal Code § 5-12-110(d) (amended November 6, 1991)), she intended to withhold a portion of her monthly rent unless the landlord corrected 50 defects and violations in her apartment and common areas of the building within 14 days from receipt of the letter. In May 1999, tenant paid landlord reduced rent which tenant claimed reflected the reduced value of the premises due to the landlord's failure to correct 20.5 of the violations.

The following month, the landlord filed a forcible entry and detainer claim to regain possession of tenant's apartment. In July 1999, while the case was still pending, the landlord sold the building in which tenant's apartment was located. On August 12, 1999, tenant filed affirmative defenses and counterclaims to the landlord's forcible entry and detainer claim.

On October 13, 1999, the trial court entered an order granting the landlord's oral motion to dismiss its forcible entry and detainer claim. The matter was then reassigned for further proceedings regarding tenant's counterclaims.

The landlord-purchaser then filed a forcible entry and detainer claim against tenant but shortly thereafter entered into a settlement agreement with tenant in August 2000. As part of the settlement agreement, the landlord-purchaser deposited into an escrow account with tenant's attorney the sum of $4,000; tenant received $1,000 from the escrow deposit. Tenant also agreed to vacate the building on or before August 31, 2000, and waive all claims against the landlord-purchaser relating to her security deposit.*fn1

After a protracted exchange of discovery motions, tenant filed her first amended counterclaims against the landlord on October 1, 2002. Count IV of the first amended counterclaims pertained to tenant's allegation that as part of the transaction for the sale of the subject building, the landlord improperly commingled her security deposit with landlord assets in violation of section 5-12-080(a) of the Ordinance, when instead of transferring the security deposit to the landlord-purchaser via check, the landlord transferred the value of the security deposit by applying the amount of the deposit toward the purchase price and then giving the landlord-purchaser a bookkeeping credit against the purchase price equal to the amount of the deposit. Tenant argued that such a transfer improperly commingled her security deposit with landlord assets and thereby constituted a conversion of her deposit.

On May 6, 2003, the trial court denied tenant's motion for partial summary judgment as to count IV, but the court stated that it was willing to give tenant's counsel a Rule 304(a) (155 Ill. 2d R. 304(a)) finding regarding the matter. Tenant's counsel accepted the trial court's offer and thereafter consented to landlord's counsel orally moving for partial summary judgment in order to allow the court to render its Rule 304(a) finding.

The trial court then entered an order granting landlord's counsel's oral motion for partial summary judgment as to count IV, ruling as a matter of law that the transfer at issue did not violate section 5-12-080(a) of the Ordinance. As promised, the trial court made a finding that pursuant to Supreme Court Rule 304(a), there was no just reason to delay enforcement or appeal of its order granting partial summary judgment in favor of the landlord as to count IV. Tenant timely appealed after her motion for reconsideration was denied.

ANALYSIS

In ruling on the tenant's motion for partial summary judgment as to count IV, the trial court was required to interpret section 5-12-080(a) of the Ordinance. The same rules that govern the interpretation of statutes apply in construing municipal ordinances. City of East St. Louis v. Union Electric Co., 37 Ill. 2d 537, 542, 229 N.E.2d 522 (1967); City of Nameoki v. City of Granite City, 408 Ill. 33, 37, 95 N.E.2d 920 (1950); Sternic v. Hunter Properties, Inc., 344 Ill. App. 3d 915, 918, 801 N.E.2d 974 (2003). As in the case of a statute, the primary objective in construing an ordinance is to ascertain and give effect to the intent of the lawmaking body as disclosed by the language contained in the ordinance. Reitman v. Village of River Forest, 9 Ill. 2d 448, 451, 137 N.E.2d 801 (1956).

Interpreting or construing a municipal ordinance is a matter of law for the trial court and is appropriate for summary judgment. See Young v. Village of Glen Ellyn, 120 Ill. App. 3d 692, 697, 458 N.E.2d 1137 (1983) (holding that the construction of a municipal ordinance is a matter of law). The purpose of summary judgment is not to try a question of fact but to determine whether a genuine issue of material fact exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788 (1993). Summary judgment is an efficient means of disposing of litigation but it is also a drastic measure, and therefore, should only be employed when the right of the moving party is ...


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