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Andrew Nadhir, Frank Battaglia, and Jason Welch v. Bilha Salomon

September 20, 2011


Appeal from the Circuit Court of Cook County No. 10 M1 178551 Honorable Roger Fein Judge Presiding.

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Harris concurred in the judgment and opinion.


¶ 1 Plaintiffs Andrew Nadhir, Frank Battaglia, and Jason Welch filed suit against defendants Bilha Salomon and Steven T. Sims, alleging that defendants failed to return plaintiffs' security deposit at the conclusion of plaintiffs' lease in violation of the City of Evanston Residential Landlord and Tenant Ordinance (Evanston Municipal Code § 5-3-1 et seq. (eff. Feb. 2008)) (ERLTO). Defendants raised an affirmative defense, alleging that plaintiffs had damaged the property, incurred fines by the city, and failed to pay utility bills in violation of both the ERLTO and the lease. Following a bench trial, the trial court found in favor of defendants. We reverse and remand with directions.


¶ 3 In July 2007, plaintiff Nadhir began renting a property in the City of Evanston (City) from defendants pursuant to a written lease agreement. Nadhir rented the apartment located on the first floor of the property for the term of the lease. Plaintiffs Welch and Battaglia later joined Nadhir in living at the property, and all three plaintiffs signed a written lease agreement with defendants for a term to run from July 1, 2009, to July 1, 2010. This lease was for the apartment located on the second floor of the property. Other areas of the building, such as the garage, basement, yard, and patio areas, were considered common areas. Throughout the 2009-10 lease period, the second-floor apartment was the only occupied unit in the building.

¶ 4 Pursuant to section 5-3-5-1 of the ERLTO (Evanston Municipal Code § 5-3-5-1 (eff. Feb. 2008)), plaintiffs paid defendants a security deposit in the amount of $2,625, which represented contributions of $937 from Nadhir and Battaglia, and $750 from Welch. Interest due on the security deposit at the end of the lease period amounted to $38.77.

¶ 5 Plaintiffs vacated the premises at some point prior to the termination of the lease period, but left some items such as couches in the basement area in the care of the new tenants for later retrieval. On June 30, 2010, plaintiffs and defendant Salomon conducted a walk-through inspection of the premises. The condition of the property at this time was disputed at trial. According to plaintiffs, Salomon noted no issues with the property other than the condition of the lawn. Welch denied that plaintiffs had damaged the property during their stay by, among other things, breaking windows, putting holes in the fence and walls, or setting fire to the yard. Battaglia and Nadhir testified similarly to Welch, and all three asserted that the property was undamaged and clean at the time that they vacated it, and that Salomon had never mentioned any problems during the walk-through.

¶ 6 Plaintiffs each testified that the property had been in poor condition at the time that they had moved in and that it was in about the same condition or better when their lease ended. Nadhir testified that the house continuously needed repairs and that there were constant issues with the plumbing and water. Nadhir stated that they had taken very good care of the premises, and he testified that during the walk-through Salomon had in fact remarked that she was "amazed how good this house looks."

¶ 7 Salomon testified to a markedly different version of events. According to Salomon, when she arrived for the final walk-through she found that the second-floor apartment was "just a disaster, beer cans, there are food, there are shoes, furniture, it was scary." Salomon stated that she often rented to college students, but the condition of the apartment on that date was "one of the worst" that she had seen. Salomon testified that a new group of tenants were due to move into the apartment the next day, and she began making calls in order to have the apartment cleaned. Regarding the condition of the property on that date, Salomon testified:

"[The] [c]arpet was completely soiled with food, with oily stuff non-recognizable, the ceiling looks like somebody shake beer bottles and stuff just flew up so you can like a stamp of the beer top. Food, broken glass in the patio door leading to the bedroom, carbon monoxide and gas detector yanked out.

*** Kitchen is filth, the refrigerator is broken from the inside, shelves was missing. Some other shelves are being taped with scotch tape.

*** The yard was completely burned. There was glass all over the place.

There was stones, debris, bikes, grills."

A number of pictures were admitted to evidence that Salomon testified represented the state of the property shortly before the final walk-through, but it appears that there were no pictures taken of the premises during the walk-through itself. Salomon also testified that defendants had received a $75 fine from the City of Evanston for accumulated trash in the front yard, which was issued on July 12, 2010. Finally, Salomon testified that she had to give the new tenants a reduction in rent of $677.42 because they were unable to move into the property until July 10, 2010.

¶ 8 The foregoing facts were disputed at trial, but the remaining relevant facts were not. On July 9, 2010, defendants paid $290 to have the premises cleaned. Beginning on July 6, 2010, defendants engaged contractor Jim Karras to perform various repairs on the premises, which included both the first- and second-floor units Among other things, Karras repaired and painted the walls and ceilings, repaired damaged carpet, replaced broken blinds, and replaced the glass in a broken window. Although Karras repaired the floor in both units, he also testified that he could not tell whether there was "any more or less damage on the first floor than the second floor." Karras issued a bill to defendants on July 15, 2010, which defendants paid on July 18, 2010. Karras later testified that he did not believe that it was possible to repair all of the damage to the property before July 21, 2010. Karras did not finish work on the yard until about two months later.

¶ 9 On July 20, 2010, Salomon sent an e-mail to Nadhir regarding plaintiffs' security deposit. The e-mail listed the amount of the security deposit and then, in a section entitled "Deductions," listed the following:

"Fire in lawn have to replace landscaping TBD Garbage Pick-up TBD Cleaning after the garbage TBD City of Evanston fine for garbage in front of property TBD Broken Window in unit TBD Smoke & Carbon detectors removed and missing 150.00 Major scuffing and scratches in hardwood floors TBD."

The e-mail also contained a deduction directed solely to Nadhir that read, "Never registered gas meter for heat with Nicor Gas -- 3200.00."

¶ 10 On July 22, 2010, Nadhir sent an e-mail to defendants requesting the return of plaintiffs' security deposit. Nadhir noted in the e-mail that the deposit was required to be returned no later than July 21, 2010, but that plaintiffs had not yet received it. Sims responded to Nadhir and stated that Salomon was out of town and would not return for several days. On July 31, 2010, defendants sent plaintiffs a second e-mail regarding the security deposit. This e-mail was structurally identical to the first but contained dollar amounts for several line items instead of "TBD". The "Deductions" section now read:

"Fire in lawn have to replace landscaping 1200.00 Garbage Pick-up TBD Cleaning after the garbage 150 City of Evanston fine for garbage in front of property TBD Broken Window in unit 150.00 Smoke & Carbon detectors removed and missing 150.00 Major scuffing and scratches in ...

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