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Spotlight: Solomon v. American Nat'l Bank & Trust Co.
Double Damages despite acceptance of refund.
of the CRLTO provides that a landlord or the landlord's agent fails to
comply with the various security deposit requirements of Sections
5-12-080(a)-(e), the tenant shall be entitled to two times the amount
of the deposit plus court costs.
In this case, the tenants vacated their apartment April 30, 1991.
On May 15, 1991, the landlord sent a letter to the tenants
explaining that the landlord intended to withhold fund from
the tenant's $1350 security deposit for late fees and cleaning charges.
The landlord mailed the security deposit refund checks on
June 27, 1991, more than 45 days after the tenants vacated the
apartment. The tenants cashed the security deposit refund
checks and brought suit against the landlord for the late delivery of
The trial court in Cook County granted the tenant's motion for summary
judgment for landlord's failure to timely return the deposit against
the landlord in the amount of $2700 plus attorneys fees, representing
an amount equal to two times the security deposit plus attorneys fees.
The landlord appealed the case.
The landlord first argued that the tenant's cashed check
operated as an accord and satisfaction and settled the matter.
While the court ruled that the cashed check was not an accord
and satisfaction, the court went further and stated that "even if the
check operated as an accord and satisfaction of a claim to
the security deposit refund, it did not operate to preclude the
statutory claim that defendant failed to provide the refund within the
time specified in the ordinance."
Next, the landlord argued that the court's award was excessive.
The landlord argued that the funds already returned to the
tenants should be offset against the $3000 award. The court
could find no support for the landlord's argument and affirmed the
trial court's award of $3000 in favor of the tenant.
The case is reproduced below:
ELIZABETH SOLOMAN, MEAH HELFAND and TRACY BEAN,
AMERICAN NATIONAL BANK AND TRUST COMPANY, AS
TRUSTEE UNDER TRUST No. 10914307,
243 Ill. App. 3d 132, 135 (1st Dist. 1993)
1st District, 1993
JUSTICE CAMPBELL delivered the opinion of the court:
Plaintiffs Elizabeth Solomon, Meah Helfand and Tracy Bean had leased an
apartment in a building owned by defendant, American National Bank and
Trust Company, as trustee under trust No. 10914307. After vacating the
apartment, plaintiffs brought suit against defendant for failing to
promptly return their security deposit in violation of the Chicago
Residential Landlord Tenant Ordinance (Chicago Municipal Code Section 5-12- 080 (1992)). On
cross-motions for summary judgment, the circuit court of Cook County
entered summary judgment in favor of plaintiffs. For the following
reasons, we affirm.
The record on appeal indicates the following facts. On April 24, 1990,
plaintiffs entered into a lease for an apartment in a building owned by
defendant. Plaintiffs paid approximately $1,500 as a security deposit.
On April 30, 1991, plaintiffs vacated the apartment. On May 15, 1991,
the building property manager mailed a letter to plaintiffs advising
them that their security deposit would be returned minus deductions for
late charges and the cost of cleaning the refrigerator, resulting in
each plaintiff receiving $452.33.
Subsequently, defendant issued a check to each plaintiff in the amount
of $452.33. These checks were dated June 26, 1991, and were mailed with
a postmark dated June 27, 1991. Each check contained language on its
face stating "S.D. 281-A pd. in full" and language on the reverse side
stating "Security deposit pd. in full." Each plaintiff crossed out the
above-quoted language and cashed the checks. Later, the building
property manager was notified by plaintiffs' attorney in a letter dated
July 9, 1991, that plaintiffs disputed defendant's calculations. The
letter also demanded payment of an additional $1,350 plus interest,
asserting rights under the Chicago Residential Landlord Tenant
Ordinance, which provides in relevant part that:
"(d) The landlord shall within 45 days after the date that the tenant
vacates the dwelling unit, return to the tenant the security deposit or
any balance thereof and the required interest thereon.
(f) If the landlord or landlord's agent fails to comply with this
section, the tenant shall be awarded damages in an amount equal to two
times the security deposit plus interest at five percent together with
court costs and reasonable attorney's fees. This subsection does not
preclude the tenant from recovering other damages to which he may be
entitled under this chapter." Chicago Municipal Code
Sections 5-12-080(d), (f) (1991)."
On July 25, 1991, plaintiffs brought suit against defendant. Plaintiffs
moved for summary judgment on October 21, 1991, after defendant's
answer admitted that plaintiffs vacated the apartment on April 30,
1991, and that the checks were mailed on June 27, 1991. Defendant filed
a cross-motion for summary judgment, asserting that there had been an
accord and satisfaction as a matter of law.
On December 19, 1991, the trial court denied defendant's motion and
granted plaintiffs' motion. The trial court entered judgment for
plaintiffs in the amount of $3,000 plus costs, representing double the
amount of the security deposit plus $300 in attorney fees. Defendant
timely filed a notice of appeal to this court.
Summary judgment is properly granted if the pleadings, depositions, and
admissions on file, together with any affidavits, show there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch.
110, par. 2-1005(c); Alop v. Edgewood Valley Community Association
(1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21, 107 Ill. Dec.
355.) In order to withstand a motion for summary judgment, the
nonmoving party must come forward with evidentiary material that
establishes a genuine issue of fact. ( Salinas v. Chicago Park District
(1989), 189 Ill. App. 3d 55, 545 N.E.2d 184, 136 Ill. Dec. 660.) Absent
an abuse of discretion by the trial court, summary judgment will not be
reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App.
3d 1, 475 N.E.2d 549, 86 Ill. Dec. 335.
Defendant's first contention on appeal is that the trial court erred in
concluding that there was no accord and satisfaction in this case. To
constitute an accord and satisfaction there must be: (1) a bona fide
dispute; (2) an unliquidated sum; (3) consideration; (4) a shared and
mutual intent to compromise the claim; and (5) execution of the
agreement. (Grove v. Winter (1990), 197 Ill. App. 3d 406, 413, 554
N.E.2d 722, 726, 143 Ill. Dec. 787.) An accord and satisfaction is
contractual in nature; thus, the intent of the parties is of
central importance. (Holman v. Simborg (1987), 152 Ill. App. 3d 453,
456, 504 N.E.2d 967, 969, 105 Ill. Dec. 682.) The debtor must show that
the creditor intended to accept the payment of less than what is
claimed as full satisfaction; otherwise, the payment operates
only as a discharge of the amount paid. (See Holman, 152 Ill. App. 3d
at 456, 504 N.E.2d at 969.) To determine the intent of the parties, it
is necessary to examine the language of the relevant documents. See
Holman, 152 Ill. App. 3d at 456, 504 N.E.2d at 969; see also Suburban
Bank v. Bousis (1991), 144 Ill. 2d 51, 59, 578 N.E.2d 935, 939, 161
Ill. Dec. 289 (written agreement is presumed to express mutual intent
absent clear and convincing evidence to the contrary).
The language of the checks the landlord sent to the tenants clearly
refers to plaintiffs' security deposits being paid in full. However,
this language does not establish that the landlord intended that
cashing the checks would extinguish the plaintiffs' claims for
landlord's failure to refund the security deposit within the time
prescribed by law. Thus, this case is distinguishable from Schultheis
v. McWilliams Electric Co. (1991), 219 Ill. App. 3d 571, 573, 579
N.E.2d 1100, 1101, 162 Ill. Dec. 286, Nelson v. Fire Insurance Exchange
(1987), 156 Ill. App. 3d 1017, 1019, 510 N.E.2d 137, 138-39, 109 Ill.
Dec. 516, and Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill.
App. 3d 818, 822-23, 420 N.E.2d 567, 570, 51 Ill. Dec. 153, where the
relevant documents expressly referred to paying or settling claims.
Instead, this case is more similar to Holdman, in which this court held
that the specific language of a judgment order fully satisfied a
negligence claim, but did not bar a Structural Work Act claim. (See
Holman, 152 Ill. App. 3d at 456-57, 504 N.E.2d at 969-70; see also Iloh
v. Stein (1992), 226 Ill. App. 3d 644, 647-48, 589 N.E.2d 1054, 1055,
168 Ill. Dec. 654 (check without words of completeness did not
constitute accord and satisfaction); Bevelheimer v. Gierach (1975), 33
Ill. App. 3d 988, 995, 339 N.E.2d 299, 305 (accord and satisfaction
does not bar matter not contemplated by agreement).) In this case, even
if the check operated as an accord and satisfaction of a claim to the
security deposit refund, it did not operate to preclude the statutory
claim that defendant failed to provide the refund within the time
specified in the ordinance.
Defendant argues that plaintiffs need not have actually known that the
checks were offered in full payment of all claims plaintiffs may have
had against defendant, so long as a reasonable person would have known.
(See Lafrentz & Karstens Co. v. Cavanagh (1911), 166 Ill. App.
306, 310.) The argument overlooks the specific language used on the
checks. This court must seek a reasonable interpretation of a contract,
and a strong presumption exists against provisions which could easily
have been included in the agreement. (Prime Group, Inc. v. Northern
Trust Co. (1990), 215 Ill. App. 3d 1065, 1069, 576 N.E.2d 841, 844, 159
Ill. Dec. 918.) Schultheis, Nelson and Quaintance suggest that had
defendant intended that the checks serve as accord and satisfaction for
damages to which plaintiffs were legally entitled above and beyond the
refund, defendant could have used language to that effect.
Consequently, we conclude that the trial court did not abuse its
discretion in ruling that the language on the check did not preclude
Defendant also contends that the judgment entered was excessive. The
trial court entered judgment against defendant in the sum of $3,000,
representing a doubling of the amount of plaintiffs' security deposit
($1,350 x 2 = $2,700) plus $300 in attorney fees. Defendant
argues that the trial court should have offset the judgment by $1,357
to account for the three checks previously issued to plaintiffs.
Defendant contends that the judgment exceeds the damages available
under section 5-12-080(f) of the ordinance.
The parties have cited no cases regarding the interpretation of section
5-12-080(f) of the ordinance, and our research discloses none. When
construing an ordinance, a court should consider each section of the
ordinance in connection with every other section, rather than isolating
sections. (See Castaneda v. Illinois Human Rights Comm'n (1989), 132
Ill. 2d 304, 318, 547 N.E.2d 437, 443, 138 Ill. Dec. 270.) As noted
above, the ordinance provides:
"If the landlord or landlord's agent fails to comply with this section,
the tenant shall be awarded damages in an amount equal to two times the
security deposit plus interest at five percent together with court
costs and reasonable attorney's fees. This subsection does not preclude
the tenant from recovering other damages to which he may be entitled
under this chapter." (Chicago Municipal Code
Section 5-12-080(f) (1991).)
The ordinance further provides:
"To the extent that this chapter provides no right or remedy in a
circumstance, the rights and remedies available to landlords and
tenants under the laws of the state of Illinois or other local
ordinances shall remain applicable." (Chicago Municipal Code
The parties dispute whether the security deposit refund may be deemed
part of the "damages" provided for in section 5-12-080(f).
Reading the ordinance as a whole, we conclude that the deposit is not
included in the statutory damages available under subsection
(f). We note that the ordinance provides for the return of
the deposit and statutory damages where the landlord fails to issue a
proper receipt to a tenant or prospective tenant. (Chicago Municipal
Code §§ 5 -- 12 -- 080(b), (f) (1991).) As the ordinance does not
expressly provide for the return of the deposit in the situation
presented on appeal, plaintiffs' recovery of the deposit itself is
governed by State law or other local ordinances. (Chicago Municipal
Code section 5-12-190 (1991).) Defendant has failed to
demonstrate in this case that plaintiffs were not entitled to the
refund under State law or other local ordinances. Consequently,
defendant has failed to demonstrate that the trial court's award of $
3,000 in damages was an abuse of discretion in this case.
Finally, plaintiffs seek additional attorney fees incurred in defending
this appeal. This issue was not raised by plaintiffs in the trial
court, probably due to uncertainty over whether the judgment would be
appealed. This court is entitled to have the issue clearly defined and
to be cited to pertinent authority. (See, e.g., In re Marriage of
Winton (1991), 216 Ill. App. 3d 1084, 576 N.E.2d 856, 159 Ill. Dec.
933.) On appeal, the parties have cited cases which speak in general
terms of statutory construction or are instances where appellate fees
were granted. Neither party, however, discusses any recent case law
that addresses the specific issue of whether a statute or ordinance of
the sort at issue here allows for recovery of appellate fees.
Consequently, we remand the matter to the trial court in order that the
parties may fully brief the issue and that the trial court have the
first opportunity to consider it.
For the aforementioned reasons, the judgment of the circuit court of
Cook County finding defendant liable in the amount of $3,000 is
affirmed and the case is remanded for proceedings consistent with this
opinion regarding attorney fees for this appeal.
Affirmed and remanded.
MANNING, P.J., and O'CONNOR, J., concur.
you believe your landlord has violated the obligation to make a timely
return of your deposit or to pay interest on your deposit, please feel
free to telephone us at 773-399-1122 for a free telephone consultation
(most consultations require approximately ten to fifteen minutes) or email us.
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