American National Bank v. Powell
Annotate this Case
Fourth Division
December 18, 1997
1-96-3870
AMERICAN NATIONAL BANK as Trustee under ) APPEAL FROM THE
Trust No. 28399 by METROPLEX, INC., as ) CIRCUIT COURT
agent, ) OF COOK COUNTY.
)
Plaintiff-Counterdefendant-Appellee, )
)
v. )
)
JOHN POWELL, ) HONORABLE
) D. ADOLPHUS RIVERS,
Defendant-Counterplaintiff-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
John Powell, a tenant in a south-side high-rise for nearly
25 years, challenged his landlord, Metroplex, Inc. (Metroplex) to
make substantial repairs by withholding rent under the Chicago
Residential Landlord and Tenant Ordinance (RLTO). Metroplex
filed a forcible entry and detainer claim against Powell, seeking
to evict him for not paying the required rent. Metroplex alleged
Powell failed to abide by the ordinance's requirements for
withholding rent.
We agree Powell did not bring himself within the terms of
the RLTO. The remaining question is whether Powell's failure to
abide by the RLTO is fatal to his retaliatory eviction
affirmative defense. Because we answer this question in the
negative, we reverse and remand.
FACTS
In 1973, Powell became a tenant at 4700 South Lake Park
Avenue in Chicago. Powell renewed his lease periodically, and on
June 19, 1995, he signed the lease with Metroplex. The lease
began on July 1, 1995 and provided for monthly rent of $668,
payable on the first of each month at Metroplex's office in
downtown Chicago. If Powell did not pay the full amount of his
rent by the fifth of each month, Metroplex could assess a late-
rent charge and eventually terminate Powell's lease for
"nonpayment of rent beyond any grace period available under State
law" or repeated late payment of rent.
Powell's lease was governed by the RLTO. The RLTO provides:
"If there is material noncompliance by the landlord
with a rental agreement *** the tenant may notify the
landlord in writing of the tenant's intention to
withhold from the monthly rent an amount which
reasonably reflects the reduced value of the premises
due to the material noncompliance. If the landlord
fails to correct the condition within 14 days after
being notified by the tenant in writing, the tenant
may, during the time such failure continues, deduct
from the rent the stated amount." (Emphasis added).
Chicago Municipal Code 5-12-110(d) (amended November
6, 1991).
On June 20, 1995, Powell sent a "REQUEST FOR REPAIRS" to
Metroplex pursuant to section 5-12-110(d). Powell's request
letter advised Metroplex of his intent to withhold rent if
Metroplex failed to correct 38 defects in his apartment and the
common areas of the building within 14 days. These defects
included, inter alia, malfunctioning or missing emergency
lighting, smoke detectors, and fire extinguishers in violation of
the Chicago Municipal Code. Metroplex received this letter on
June 22, 1995. Under the RLTO, Powell could begin to withhold
rent 15 days after June 22, on July 7.
On June 23, 1995, Powell faxed a note to Stephanie Fields,
an employee of Metroplex, confirming Metroplex's scheduled
maintenance work on June 26. On June 28, 1995, Powell again
faxed a note to Fields, expressing his concern over the
unfinished maintenance work: "The painters did not paint the
bathroom door. Could you have them come back and do some touch-
ups when I'm home?"
That same day, Fields responded:
"With the exception of the water pressure in the
shower, we have completed the maintenance required in
your apartment. We have contacted C.A.M. pipe clearing
company to look at the shower. They will be here on
Friday afternoon [June 30, 1995]. If any touch-up
paint is required, the painters will come up then as
well."
On June 29, 1995, Powell faxed another note to Fields: "I
will not be home Friday. I have an appointment. You will have
to reschedule." That same day, Powell also sent a "RENT LETTER"
in which he explained to Metroplex his decision to withhold rent
and enclosed a reduced rent check for $443.25. Donald Cole, a
Metroplex employee, admitted he received this letter, but did not
specify a date.
On July 7, 1995, Powell wrote a letter to Fields:
"Per our conversation this morning ***. You
stated that I was not home, 7-5-1995 when the painters
were to come and do some unfinished work. We agreed
they would come between 8:30 and 9:00 A.M. on the 5th
of July. I was home until 12:30 P.M. You also stated,
that you would let me know, before the end of this day
7-7-1995, if they can come on Monday [July 10, 1995].
I also requested new kitchen cabinets several
years ago. You have tried several times to repair the
ones I have to no avail. As I stated this morning
after twenty-one years, I need new cabinets.
If you have any questions you can contact me ***."
That same day, Metroplex sent written notice to Powell,
pursuant to the forcible entry statute, demanding Powell pay the
balance of his rent within five days. During these five days,
Powell paid only $57.75, leaving an unpaid rent balance of $167,
or 25% of his rent. On July 18, 1995, Metroplex filed a forcible
entry claim to regain possession of Powell's apartment.
After two unsuccessful pleading attempts, Powell filed his
second amended affirmative defense and counterclaim. Powell's
affirmative defense asserted Metroplex's forcible entry claim was
retaliation for Powell's complaints, and therefore was violative
of the RLTO. In his affirmative defense, Powell included a
prayer for damages under the ordinance. Powell's counterclaim
also sought damages for Metroplex's retaliatory eviction, as well
as a refund of overpaid rent for Metroplex's breach of the
implied warranty of habitability.
Metroplex filed a motion for summary judgment on its
forcible entry claim and a motion to strike and dismiss Powell's
affirmative defense and counterclaim. On August 26, 1996, the
trial court granted both Metroplex's summary judgment motion and
its motion to strike and dismiss. On October 15, 1996, the court
denied Powell's motion to reconsider. This appeal followed.
DECISION
First, Powell argues the trial court should not have granted
summary judgment to Metroplex on its forcible entry claim. The
trial court granted summary judgment, despite Powell's
retaliatory eviction charges, because he failed to allow
Metroplex 14 days to make repairs before withholding rent, as
required by the RLTO.
Initially, Powell contends Metroplex waived its argument on
the issue of whether Powell allowed Metroplex 14 days to make
repairs. Powell contends Metroplex failed to raise this issue in
response to Powell's affirmative defense and counterclaim.
However, Metroplex could raise this issue in its motion for
summary judgment. See Cannon v. Bryant, 196 Ill. App. 3d 891,
554 N.E.2d 489 (1990). There was no waiver.
Powell contends he allowed Metroplex 14 days to make
repairs. He says the 14 day period stretches between the day the
landlord receives notice the tenant intends to withhold rent and
the day the landlord receives a reduced rent payment. Metroplex
contends the 14 day period stretches between the day the landlord
receives notice the tenant intends to withhold rent and the day
the tenant sends a reduced rent payment.
The trial court agreed with Metroplex and held Powell
withheld rent when he sent his reduced rent check to Metroplex on
June 29, a mere seven days after Metroplex received his request
for repairs.
Appellate review of an order granting summary judgment is de
novo. Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 669 N.E.2d 1185
(1996). This court must consider anew the facts and the law
related to a case in determining whether the trial court
correctly decided no genuine issues of material fact were present
and the moving party was entitled to judgment as a matter of law.
Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 649 N.E.2d 1323 (1995); Deloney v. Board of Education of Thornton,
281 Ill. App. 3d 775, 666 N.E.2d 792 (1996). We may affirm
summary judgment for any grounds which properly appear in the
record, regardless of whether the trial court relied on those
same grounds. Leavitt v. Farwell Tower Ltd. Partnership, 252
Ill. App. 3d 260, 625 N.E.2d 48 (1993).
Statutory interpretation is a question of law properly
resolved in a summary judgment proceeding. Plambeck v. Greystone
Management, 281 Ill. App. 3d 260, 666 N.E.2d 670 (1996)
(interpreting the RLTO). If the ordinance is clear and
unambiguous, this court will not resort to extrinsic rules of
construction. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990). However, if the ordinance is capable of more than
one reasonable reading, this court will use rules of construction
to resolve the ambiguity. People v. Jameson, 162 Ill. 2d 282,
642 N.E.2d 1207 (1994).
This court applies the same rules used to interpret statutes
as it does to interpret municipal ordinances. In re Application
of County Collector, 132 Ill. 2d 64, 547 N.E.2d 107 (1989). The
fundamental rule in interpreting an ordinance remains giving
effect to the intent of the legislature. Kraft, Inc., 138 Ill. 2d at 189. The best evidence of this intent comes from the
language of the ordinance itself (Szpila v. Burke, 279 Ill. App.
3d 964, 665 N.E.2d 357 (1996)(interpreting the RLTO)), but may
also include consideration of the reason behind and the necessity
for the ordinance (Meyer v. Cohen, 260 Ill. App. 3d 351, 632 N.E.2d 22 (1993) (interpreting the RLTO)). Further, "the
relevant language must be read within the context of the entire
provision of which it forms an integral part." Illinois Wood
Energy Partners v. County of Cook, 281 Ill. App. 3d 841, 850, 667 N.E.2d 477, 483 (1995).
The RLTO does not contain a provision concerning how and
when a tenant must notify a landlord of a deduction in rent.
Here, both Metroplex's and Powell's interpretations are
reasonable, and the RLTO ambiguous on this point.
A key element of a valid lease is a provision governing the
time and manner of rent payment. Chapman v. Brokaw, 225 Ill.
App. 3d 662, 588 N.E.2d 462 (1992). The lease between Metroplex
and Powell reflects their understanding of when and where payment
occurs: "*** Tenant agrees to pay the monthly rent *** on the
date the rent is due [the first of the month] at the Owner's
address ***."
Part of Powell paying rent is Metroplex receiving rent; part
of Powell deducting rent is Metroplex receiving reduced rent. As
we have noted in discussing this section of the RLTO, "the tenant
may *** deduct an appropriate amount, reflecting the reduced
value of the premises, from each rental payment." (Emphasis
added). Reed v. Burns, 238 Ill. App. 3d 148, 153, 606 N.E.2d 152, 155 (1992).
This court has addressed a similar provision of the RLTO.
Before its 1991 amendment, the RLTO provided:
"[T]he tenant may give written notice to the
landlord *** and request that [the invalid lease] be
cured. The landlord shall cure the violation by
tendering to the tenant within 15 days a new lease ***.
In the event that the landlord fails to cure the
violation the tenant may terminate the rental agreement
by written notice." See Plambeck, 281 Ill. App. 3d at
269-70.
In Plambeck, the court held once the tenant has alerted the
landlord to the invalid lease, the tenant "need only provide the
landlord with written notice of termination ***." Plambeck, 281
Ill. App. 3d at 270. Before terminating the lease, the tenant
must provide the landlord, and the landlord must receive, two
written notices: the written notice of the violation, and the
written notice of the termination after 15 days. Plambeck, 281
Ill. App. 3d at 270; but see also Sjostrom & Sons, Inc. v. D. &
E. Mall Restaurant, Inc., 29 Ill. App. 3d 1082, 332 N.E.2d 62
(1975)(notice of termination under lease provision effective when
sent).
We conclude the tenant withholds or deducts rent under the
ordinance when the landlord receives partial payment.
Admittedly, while the tenant in a sense deducts rent at the
moment of writing a reduced rent check, this action does not
operate in a vacuum. Deducting rent is meaningless unless and
until the landlord becomes aware of it.
In this case, the RLTO required Powell send and Metroplex
receive two notices: the notice of intent to deduct rent
(Powell's June 20 request letter), and the notice of the deducted
rent (Powell's June 29 rent deduction letter). The record does
not clearly tell us when Metroplex received Powell's rent
deduction letter. Powell sent his request letter on Tuesday,
June 20, 1995, and it reached Metroplex two mail-days later on
Thursday, June 22. Powell sent his rent deduction letter on the
following Thursday, June 29, 1995.
Powell asks this court to conclude his rent deduction letter
did not reach Metroplex until Wednesday, July 5 at the earliest--
four mail-days later, excluding Sunday, July 2 and Tuesday, July
4. In order for Powell's rent letter to comply with the RLTO,
Metroplex must have received this letter no sooner than 15 days
after June 22: Friday, July 7--six mail-days after Powell sent
his rent letter. We believe the strong likelihood is that
Metroplex received the rent deduction letter before July 7--too
early to conform to the requirement of the RLTO.
If determining the date Metroplex received the rent
deduction letter were the controlling issue, we would stop at
this point and remand the case for trial on that issue. However,
even assuming Metroplex received Powell's rent letter on July 7
or thereafter, the date Metroplex received the rent letter does
not necessarily determine whether Powell complied with the 14 day
period under the RLTO.
While Powell offers a correct interpretation of when the
tenant deducts rent under the RLTO, both parties have failed to
grasp the clear meaning of section 5-12-110(d). Though deducting
occurs when the landlord receives a reduced rent payment, the
tenant cannot deduct rent until the landlord has received written
notice of the tenant's intent to deduct rent, and has had a full
14 day opportunity during which to make requested repairs. In
other words, once the landlord had received this opportunity, the
RLTO allows the tenant to begin deducting rent on the 15th day,
that is, "during the time such failure [to repair] continues."
Chicago Municipal Code 5-12-110(d).
In Powell's case, he notified Metroplex of his intent to
deduct rent on June 22. Under the RLTO, Powell could begin to
deduct rent 15 days later, on July 7, if Metroplex failed to
complete the requested repairs. But Powell sent his reduced rent
payment on June 29. Thus, regardless of whether Powell deducted
rent when he sent his reduced rent check or when Metroplex
received his check, Powell deducted rent for a period of time--
July 1-6--during which Metroplex could still make repairs.
Under the RLTO, the tenant cannot deduct rent until the 14
day period expires; the landlord gets these 14 days free.
Without this reading, the tenant can deduct rent for a period of
time in which the landlord still has a chance to make repairs.
The forcible entry statute provides a cogent analogy.
Before filing a forcible entry claim, a landlord must notify a
tenant in writing, "that unless payment [of delinquent rent] is
made *** not less than five days after service [of such notice],"
a forcible entry action will commence. Illinois courts have
uniformly held this notice does not become effective until
received by the tenant. See Avdich v. Kleinert, 69 Ill. 2d 1, 9,
370 N.E.2d 504, 508 (1977); Jeffreys v. Hart, 197 Ill. App. 514
(1916). Additionally, the landlord may not initiate a forcible
entry claim until the five day period expires. See Hopkins v.
Levandowski, 250 Ill. 372, 95 N.E. 496 (1911); see also Robinson
v. Chicago Housing Authority, 54 F.3d 316 (7th Cir. 1995)
(applying Illinois law)("the specified time period mentioned in
the notice must pass without tender of payment by the tenant").
Similarly, under the RLTO, Powell did not withhold rent until
Metroplex received his reduced rent check. However, Powell could
not withhold rent until the 14 day period expired.
This court also must abide by the primary rule of statutory
construction--to give effect to the intent of the legislature,
here, the Chicago City Council. The city council expressed that
intent in the RLTO:
"It is the purpose of [the RLTO], in order to protect
and promote the public health, safety and welfare of
its citizens, to establish' the rights and obligations
of the landlord and the tenant in the rental of
dwelling units, and to encourage the landlord and
tenant to maintain and improve the quality of housing."
Chicago Municipal Code 5-12-010.
The city council also said the RLTO "should be liberally
construed and applied to promote its purposes and policies."
Chicago Municipal Code 5-12-010. Accord Freidman v. Krupp
Corp., 282 Ill. App. 3d 436, 443, 668 N.E.2d 142, 147 (1996)(RLTO
should be liberally construed as a remedial ordinance); but see
Szpila, 279 Ill. App. 3d at 971 (RLTO should be strictly
construed as a penal statute).
In light of the RLTO's purpose to improve rental housing, as
well as the city council's expression of the proper approach to
construing and applying the RLTO, the tenant must give the
landlord a 14 day opportunity to make repairs. Powell failed to
give Metroplex a full 14 days because he withheld rent for a
period in July during which Metroplex could still make repairs.
In short, Powell did not comply with the RLTO.
At oral argument, Powell asked us to disregard his apparent
failure to bring himself within the time limits established by
the RLTO. He contended the time limits are directory and cannot
defeat the clear policy of the ordinance--to protect tenants from
indifferent landlords.
In effect, Powell asks us to rewrite the RLTO, to add words
not inserted by the City Council. We believe, however, this
court must resist the temptation to rewrite an ordinance in order
to reflect life as we might think it should be. If the City
Council did not intend the provisions of its ordinance to be
binding on landlords and tenants, it could have said so.
Our conclusion that Powell did not follow the strict terms
of the ordinance does not resolve the case. We must examine the
trial court's order striking Powell's affirmative defense and
counterclaim.
Powell's affirmative defense, entitled "Retaliatory
Conduct," asserted the RLTO prohibited Metroplex from filing a
forcible entry claim against Powell merely because he invoked his
rights as a tenant. The affirmative defense also asked for
damages under the RLTO.
The RLTO provides:
"*** A landlord may not knowingly terminate a
tenancy, decrease services, bring or threaten to bring
a lawsuit against a tenant for possession or refuse to
renew a lease or tenancy because the tenant has in good
faith:
***
(d) requested the landlord to make repairs to the
premises as required by a building code ***; or
* * *
(g) exercised any right or remedy provided by law.
*** In an action by or against the tenant, if
there is evidence of tenant conduct protected herein
within one year prior to the alleged act of
retaliation, that evidence shall create a rebuttable
presumption that the landlord's conduct was
retaliatory." (Emphasis added.) Chicago Municipal
Code 5-12-150.
Powell's June 20 request letter was protected conduct.
Metroplex filed its forcible entry claim less than one month
after receiving Powell's request letter. Additionally, the
record reveals other facts which lend support to Powell's
assertion of retaliation. Powell had lived in this building for
nearly 25 years, but Metroplex quickly moved to evict him once he
withheld $167, or a mere 25%, of his $668 rent. Metroplex also
filed forcible entry claims against six other tenants of this
building who requested repairs.
The trial court struck this affirmative defense, ruling
Powell could not complain of retaliatory conduct because he did
not comply with the RLTO:
"I'd also like to call your attention to the fact
that the defendant has contended that the plaintiff's
conduct was retaliatory, and I submit to you that the
defendant, in reference to the facts in this particular
case, place[s] [himself] in the precarious position of
not complying with the Residential Landlord and Tenants
Ordinance, that [he] relied upon, and, by not giving
the plaintiff the requisite minimum number of days to
cure, that the--and that would be at least 14 days--
that [he] cannot complain of retaliatory conduct.
This is a case for nonpayment of rent, and that
takes it out of the realm of retaliatory conduct.
* * *
*** [P]ossibly, were it not for the fact that the
tenant had prematurely indicated that the reduced rent
was to commence prior to the expiration of the 14 days,
then the defendant may have had a valid retaliatory
conduct case against the plaintiff."
Although we conclude Powell did not comply with the RLTO's
rent withholding provision, we disagree with the trial court
dismissal of Powell's retaliatory eviction affirmative defense.
Considering the dearth of relevant case law construing the rent
withholding provision of the RLTO, Powell's request for repairs
and his withholding of rent create a "good faith" fact issue.
Conduct protected by the ordinance creates a presumption of
retaliation. Metroplex addressed the issue in its summary
judgment motion with a blanket denial.
Summary judgment is inappropriate if the moving party cannot
demonstrate the absence of a factual dispute with respect to all
issues raised by the pleadings, including the non-moving party's
affirmative defense. Old Kent Bank v. Surwood Corp., 256 Ill.
App. 3d 221, 627 N.E.2d 1192 (1994); West Suburban Mass Transit
District v. Consolidated Rail Corp., 210 Ill. App. 3d 484, 569 N.E.2d 187 (1991). Summary judgment was inappropriate here
because a triable issue of fact exists: whether Metroplex's
putative reason for evicting Powell--nonpayment of rent--was a
mere pretext to evict a troublemaker.
Powell contends the trial court should not have dismissed
his second amended affirmative defense and counterclaim as not
germane to Metroplex's forcible entry claim.
A motion to dismiss under section 2-615 "tests the legal
sufficiency of a pleading and a court must accept all well-
pleaded facts as true." Doe v. Calumet City, 161 Ill. 2d 374,
381, 641 N.E.2d 498, 503 (1994). On appeal, the standard of
review for a section 2-615 dismissal is de novo. Hough v.
Kalousek, 279 Ill. App. 3d 855, 665 N.E.2d 433 (1996).
Powell's affirmative defense presented his retaliatory
eviction argument and asked for money damages under the RLTO.
Powell's counterclaim presented two counts: "Retaliatory Conduct"
and "Breach of the Implied Warranty of Habitability." The
retaliatory eviction count tracked the affirmative defense and
asked for damages under the RLTO. The breach of implied warranty
count asked for a refund of overpaid rent.
A forcible entry and detainer action is a limited
proceeding, focusing on the central issue of possession. Foster
v. Foster, 273 Ill. App. 3d 106, 652 N.E.2d 350 (1995). The
forcible entry and detainer statute provides:
"On complaint by the party or parties entitled to
possession of such premises ***, stating that such
party is entitled to the possession of such premises
***, and that the defendant *** unlawfully withholds
the possession thereof from him, her or them, the clerk
of the court shall issue a summons.
The defendant may under a general denial of the
allegations of the complaint offer in evidence any
matter in defense of the action. No matters not
germane to the distinctive purpose of the proceeding
shall be introduced by joinder, counterclaim or
otherwise." (Emphasis added). 735 ILCS 5/9-106 (West
1992).
In short, matters germane to a forcible entry claim may be
introduced by the defendant through affirmative defenses or
counterclaims. Oak Park Trust & Savings Bank v. Village of Mount
Prospect, 181 Ill. App. 3d 10, 536 N.E.2d 763 (1989).
"Claims which are germane to the issue of possession
generally fall into one of four categories: (1) claims asserting
a paramount right of possession; (2) claims denying the breach of
the agreement vesting possession in the plaintiff; (3) claims
challenging the validity or enforceability of the agreement on
which the plaintiff bases the right to possession; or (4) claims
questioning the plaintiff's motivation for bringing the action."
People ex rel. Department of Transportation v. Walliser, 258 Ill.
App. 3d 782, 788, 629 N.E.2d 1189, 1194 (1994); accord Oak Park
Trust, 181 Ill. App. 3d at 23. A retaliatory eviction claim is
germane to a forcible entry action and states a defense. Clore
v. Fredman, 59 Ill. 2d 20, 27, 319 N.E.2d 18, 21-22 (1974)("If,
in fact, the landlord's action is retaliatory, the landlord is
not entitled to possession of the property and the action cannot
be maintained.") Breach of the implied warranty of habitability
claims also are germane. Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N.E.2d 208 (1972).
While his affirmative defense and both counts of his
counterclaim were germane, Powell asked for monetary damages,
attorney fees, and costs. Counterclaims seeking money damages
are not germane to forcible entry claims. Walliser, 258 Ill.
App. 3d at 788. Our supreme court has defined germane as closely
related, relevant, or pertinent. Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 263 N.E.2d 833 (1970). As we have said in a similar
context involving a municipal rental housing ordinance,
"presumably, any matter arising under *** the Village Ordinance
would be germane to the issue of whether the landlord is entitled
to possession or rent." Oak Park Trust, 181 Ill. App. 3d at 23.
The ordinance here specifically provides for damages from
retaliatory eviction defenses and claims: "The tenant has a
defense in any retaliatory action against him for possession and
is entitled to *** an amount equal to and not more than two
months' rent or twice the damages sustained *** and reasonable
attorney fees." Chicago Municipal Code 5-12-150. We see no
good reason to allow Powell to argue retaliatory eviction under
the RLTO, but not to allow him to pursue remedies specifically
provided in the RLTO. Powell's affirmative defense and count I
of his counterclaim are germane to Metroplex's forcible entry
claim and should not have been dismissed.
Powell correctly contends the RLTO does not abolish the
common law implied warranty of habitability. The RLTO 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 5-12-190.
Where the RLTO fails to provide tenant rights, the implied
warranty of habitability still exists. Cf. Nottage v. Jeka, 172 Ill. 2d 386, 667 N.E.2d 91 (1996)(legislature must abolish common
law cause of action with plain language); Harris v. Manor
Healthcare Corp., 111 Ill. 2d 350, 489 N.E.2d 1374 (1986).
However, Powell's implied warranty counterclaim is not
germane to Metroplex's forcible entry claim because it seeks
money damages independent of the RLTO.
CONCLUSION
The trial court erred in granting summary judgment to
Metroplex because a triable issue of fact exists on Powell's
affirmative defense of retaliatory eviction. The trial court
erred in striking and dismissing Powell's retaliatory eviction
affirmative defense and counterclaim. The trial court correctly
dismissed Powell's implied warranty of habitability counterclaim.
Affirmed in part, reversed and remanded in part.
McNAMARA and BURKE, JJ., concur.
December 18, 1997
1-96-3870
AMERICAN NATIONAL BANK as Trustee under ) APPEAL FROM THE
Trust No. 28399 by METROPLEX, INC., as ) CIRCUIT COURT
agent, ) OF COOK COUNTY.
)
Plaintiff-Counterdefendant-Appellee, )
)
v. )
)
JOHN POWELL, ) HONORABLE
) D. ADOLPHUS RIVERS,
Defendant-Counterplaintiff-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
John Powell, a tenant in a south-side high-rise for nearly
25 years, challenged his landlord, Metroplex, Inc. (Metroplex) to
make substantial repairs by withholding rent under the Chicago
Residential Landlord and Tenant Ordinance (RLTO). Metroplex
filed a forcible entry and detainer claim against Powell, seeking
to evict him for not paying the required rent. Metroplex alleged
Powell failed to abide by the ordinance's requirements for
withholding rent.
We agree Powell did not bring himself within the terms of
the RLTO. The remaining question is whether Powell's failure to
abide by the RLTO is fatal to his retaliatory eviction
affirmative defense. Because we answer this question in the
negative, we reverse and remand.
FACTS
In 1973, Powell became a tenant at 4700 South Lake Park
Avenue in Chicago. Powell renewed his lease periodically, and on
June 19, 1995, he signed the lease with Metroplex. The lease
began on July 1, 1995 and provided for monthly rent of $668,
payable on the first of each month at Metroplex's office in
downtown Chicago. If Powell did not pay the full amount of his
rent by the fifth of each month, Metroplex could assess a late-
rent charge and eventually terminate Powell's lease for
"nonpayment of rent beyond any grace period available under State
law" or repeated late payment of rent.
Powell's lease was governed by the RLTO. The RLTO provides:
"If there is material noncompliance by the landlord
with a rental agreement *** the tenant may notify the
landlord in writing of the tenant's intention to
withhold from the monthly rent an amount which
reasonably reflects the reduced value of the premises
due to the material noncompliance. If the landlord
fails to correct the condition within 14 days after
being notified by the tenant in writing, the tenant
may, during the time such failure continues, deduct
from the rent the stated amount." (Emphasis added).
Chicago Municipal Code 5-12-110(d) (amended November
6, 1991).
On June 20, 1995, Powell sent a "REQUEST FOR REPAIRS" to
Metroplex pursuant to section 5-12-110(d). Powell's request
letter advised Metroplex of his intent to withhold rent if
Metroplex failed to correct 38 defects in his apartment and the
common areas of the building within 14 days. These defects
included, inter alia, malfunctioning or missing emergency
lighting, smoke detectors, and fire extinguishers in violation of
the Chicago Municipal Code. Metroplex received this letter on
June 22, 1995. Under the RLTO, Powell could begin to withhold
rent 15 days after June 22, on July 7.
On June 23, 1995, Powell faxed a note to Stephanie Fields,
an employee of Metroplex, confirming Metroplex's scheduled
maintenance work on June 26. On June 28, 1995, Powell again
faxed a note to Fields, expressing his concern over the
unfinished maintenance work: "The painters did not paint the
bathroom door. Could you have them come back and do some touch-
ups when I'm home?"
That same day, Fields responded:
"With the exception of the water pressure in the
shower, we have completed the maintenance required in
your apartment. We have contacted C.A.M. pipe clearing
company to look at the shower. They will be here on
Friday afternoon [June 30, 1995]. If any touch-up
paint is required, the painters will come up then as
well."
On June 29, 1995, Powell faxed another note to Fields: "I
will not be home Friday. I have an appointment. You will have
to reschedule." That same day, Powell also sent a "RENT LETTER"
in which he explained to Metroplex his decision to withhold rent
and enclosed a reduced rent check for $443.25. Donald Cole, a
Metroplex employee, admitted he received this letter, but did not
specify a date.
On July 7, 1995, Powell wrote a letter to Fields:
"Per our conversation this morning ***. You
stated that I was not home, 7-5-1995 when the painters
were to come and do some unfinished work. We agreed
they would come between 8:30 and 9:00 A.M. on the 5th
of July. I was home until 12:30 P.M. You also stated,
that you would let me know, before the end of this day
7-7-1995, if they can come on Monday [July 10, 1995].
I also requested new kitchen cabinets several
years ago. You have tried several times to repair the
ones I have to no avail. As I stated this morning
after twenty-one years, I need new cabinets.
If you have any questions you can contact me ***."
That same day, Metroplex sent written notice to Powell,
pursuant to the forcible entry statute, demanding Powell pay the
balance of his rent within five days. During these five days,
Powell paid only $57.75, leaving an unpaid rent balance of $167,
or 25% of his rent. On July 18, 1995, Metroplex filed a forcible
entry claim to regain possession of Powell's apartment.
After two unsuccessful pleading attempts, Powell filed his
second amended affirmative defense and counterclaim. Powell's
affirmative defense asserted Metroplex's forcible entry claim was
retaliation for Powell's complaints, and therefore was violative
of the RLTO. In his affirmative defense, Powell included a
prayer for damages under the ordinance. Powell's counterclaim
also sought damages for Metroplex's retaliatory eviction, as well
as a refund of overpaid rent for Metroplex's breach of the
implied warranty of habitability.
Metroplex filed a motion for summary judgment on its
forcible entry claim and a motion to strike and dismiss Powell's
affirmative defense and counterclaim. On August 26, 1996, the
trial court granted both Metroplex's summary judgment motion and
its motion to strike and dismiss. On October 15, 1996, the court
denied Powell's motion to reconsider. This appeal followed.
DECISION
First, Powell argues the trial court should not have granted
summary judgment to Metroplex on its forcible entry claim. The
trial court granted summary judgment, despite Powell's
retaliatory eviction charges, because he failed to allow
Metroplex 14 days to make repairs before withholding rent, as
required by the RLTO.
Initially, Powell contends Metroplex waived its argument on
the issue of whether Powell allowed Metroplex 14 days to make
repairs. Powell contends Metroplex failed to raise this issue in
response to Powell's affirmative defense and counterclaim.
However, Metroplex could raise this issue in its motion for
summary judgment. See Cannon v. Bryant, 196 Ill. App. 3d 891,
554 N.E.2d 489 (1990). There was no waiver.
Powell contends he allowed Metroplex 14 days to make
repairs. He says the 14 day period stretches between the day the
landlord receives notice the tenant intends to withhold rent and
the day the landlord receives a reduced rent payment. Metroplex
contends the 14 day period stretches between the day the landlord
receives notice the tenant intends to withhold rent and the day
the tenant sends a reduced rent payment.
The trial court agreed with Metroplex and held Powell
withheld rent when he sent his reduced rent check to Metroplex on
June 29, a mere seven days after Metroplex received his request
for repairs.
Appellate review of an order granting summary judgment is de
novo. Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 669 N.E.2d 1185
(1996). This court must consider anew the facts and the law
related to a case in determining whether the trial court
correctly decided no genuine issues of material fact were present
and the moving party was entitled to judgment as a matter of law.
Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 649 N.E.2d 1323 (1995); Deloney v. Board of Education of Thornton,
281 Ill. App. 3d 775, 666 N.E.2d 792 (1996). We may affirm
summary judgment for any grounds which properly appear in the
record, regardless of whether the trial court relied on those
same grounds. Leavitt v. Farwell Tower Ltd. Partnership, 252
Ill. App. 3d 260, 625 N.E.2d 48 (1993).
Statutory interpretation is a question of law properly
resolved in a summary judgment proceeding. Plambeck v. Greystone
Management, 281 Ill. App. 3d 260, 666 N.E.2d 670 (1996)
(interpreting the RLTO). If the ordinance is clear and
unambiguous, this court will not resort to extrinsic rules of
construction. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990). However, if the ordinance is capable of more than
one reasonable reading, this court will use rules of construction
to resolve the ambiguity. People v. Jameson, 162 Ill. 2d 282,
642 N.E.2d 1207 (1994).
This court applies the same rules used to interpret statutes
as it does to interpret municipal ordinances. In re Application
of County Collector, 132 Ill. 2d 64, 547 N.E.2d 107 (1989). The
fundamental rule in interpreting an ordinance remains giving
effect to the intent of the legislature. Kraft, Inc., 138 Ill. 2d at 189. The best evidence of this intent comes from the
language of the ordinance itself (Szpila v. Burke, 279 Ill. App.
3d 964, 665 N.E.2d 357 (1996)(interpreting the RLTO)), but may
also include consideration of the reason behind and the necessity
for the ordinance (Meyer v. Cohen, 260 Ill. App. 3d 351, 632 N.E.2d 22 (1993) (interpreting the RLTO)). Further, "the
relevant language must be read within the context of the entire
provision of which it forms an integral part." Illinois Wood
Energy Partners v. County of Cook, 281 Ill. App. 3d 841, 850, 667 N.E.2d 477, 483 (1995).
The RLTO does not contain a provision concerning how and
when a tenant must notify a landlord of a deduction in rent.
Here, both Metroplex's and Powell's interpretations are
reasonable, and the RLTO ambiguous on this point.
A key element of a valid lease is a provision governing the
time and manner of rent payment. Chapman v. Brokaw, 225 Ill.
App. 3d 662, 588 N.E.2d 462 (1992). The lease between Metroplex
and Powell reflects their understanding of when and where payment
occurs: "*** Tenant agrees to pay the monthly rent *** on the
date the rent is due [the first of the month] at the Owner's
address ***."
Part of Powell paying rent is Metroplex receiving rent; part
of Powell deducting rent is Metroplex receiving reduced rent. As
we have noted in discussing this section of the RLTO, "the tenant
may *** deduct an appropriate amount, reflecting the reduced
value of the premises, from each rental payment." (Emphasis
added). Reed v. Burns, 238 Ill. App. 3d 148, 153, 606 N.E.2d 152, 155 (1992).
This court has addressed a similar provision of the RLTO.
Before its 1991 amendment, the RLTO provided:
"[T]he tenant may give written notice to the
landlord *** and request that [the invalid lease] be
cured. The landlord shall cure the violation by
tendering to the tenant within 15 days a new lease ***.
In the event that the landlord fails to cure the
violation the tenant may terminate the rental agreement
by written notice." See Plambeck, 281 Ill. App. 3d at
269-70.
In Plambeck, the court held once the tenant has alerted the
landlord to the invalid lease, the tenant "need only provide the
landlord with written notice of termination ***." Plambeck, 281
Ill. App. 3d at 270. Before terminating the lease, the tenant
must provide the landlord, and the landlord must receive, two
written notices: the written notice of the violation, and the
written notice of the termination after 15 days. Plambeck, 281
Ill. App. 3d at 270; but see also Sjostrom & Sons, Inc. v. D. &
E. Mall Restaurant, Inc., 29 Ill. App. 3d 1082, 332 N.E.2d 62
(1975)(notice of termination under lease provision effective when
sent).
We conclude the tenant withholds or deducts rent under the
ordinance when the landlord receives partial payment.
Admittedly, while the tenant in a sense deducts rent at the
moment of writing a reduced rent check, this action does not
operate in a vacuum. Deducting rent is meaningless unless and
until the landlord becomes aware of it.
In this case, the RLTO required Powell send and Metroplex
receive two notices: the notice of intent to deduct rent
(Powell's June 20 request letter), and the notice of the deducted
rent (Powell's June 29 rent deduction letter). The record does
not clearly tell us when Metroplex received Powell's rent
deduction letter. Powell sent his request letter on Tuesday,
June 20, 1995, and it reached Metroplex two mail-days later on
Thursday, June 22. Powell sent his rent deduction letter on the
following Thursday, June 29, 1995.
Powell asks this court to conclude his rent deduction letter
did not reach Metroplex until Wednesday, July 5 at the earliest--
four mail-days later, excluding Sunday, July 2 and Tuesday, July
4. In order for Powell's rent letter to comply with the RLTO,
Metroplex must have received this letter no sooner than 15 days
after June 22: Friday, July 7--six mail-days after Powell sent
his rent letter. We believe the strong likelihood is that
Metroplex received the rent deduction letter before July 7--too
early to conform to the requirement of the RLTO.
If determining the date Metroplex received the rent
deduction letter were the controlling issue, we would stop at
this point and remand the case for trial on that issue. However,
even assuming Metroplex received Powell's rent letter on July 7
or thereafter, the date Metroplex received the rent letter does
not necessarily determine whether Powell complied with the 14 day
period under the RLTO.
While Powell offers a correct interpretation of when the
tenant deducts rent under the RLTO, both parties have failed to
grasp the clear meaning of section 5-12-110(d). Though deducting
occurs when the landlord receives a reduced rent payment, the
tenant cannot deduct rent until the landlord has received written
notice of the tenant's intent to deduct rent, and has had a full
14 day opportunity during which to make requested repairs. In
other words, once the landlord had received this opportunity, the
RLTO allows the tenant to begin deducting rent on the 15th day,
that is, "during the time such failure [to repair] continues."
Chicago Municipal Code 5-12-110(d).
In Powell's case, he notified Metroplex of his intent to
deduct rent on June 22. Under the RLTO, Powell could begin to
deduct rent 15 days later, on July 7, if Metroplex failed to
complete the requested repairs. But Powell sent his reduced rent
payment on June 29. Thus, regardless of whether Powell deducted
rent when he sent his reduced rent check or when Metroplex
received his check, Powell deducted rent for a period of time--
July 1-6--during which Metroplex could still make repairs.
Under the RLTO, the tenant cannot deduct rent until the 14
day period expires; the landlord gets these 14 days free.
Without this reading, the tenant can deduct rent for a period of
time in which the landlord still has a chance to make repairs.
The forcible entry statute provides a cogent analogy.
Before filing a forcible entry claim, a landlord must notify a
tenant in writing, "that unless payment [of delinquent rent] is
made *** not less than five days after service [of such notice],"
a forcible entry action will commence. Illinois courts have
uniformly held this notice does not become effective until
received by the tenant. See Avdich v. Kleinert, 69 Ill. 2d 1, 9,
370 N.E.2d 504, 508 (1977); Jeffreys v. Hart, 197 Ill. App. 514
(1916). Additionally, the landlord may not initiate a forcible
entry claim until the five day period expires. See Hopkins v.
Levandowski, 250 Ill. 372, 95 N.E. 496 (1911); see also Robinson
v. Chicago Housing Authority, 54 F.3d 316 (7th Cir. 1995)
(applying Illinois law)("the specified time period mentioned in
the notice must pass without tender of payment by the tenant").
Similarly, under the RLTO, Powell did not withhold rent until
Metroplex received his reduced rent check. However, Powell could
not withhold rent until the 14 day period expired.
This court also must abide by the primary rule of statutory
construction--to give effect to the intent of the legislature,
here, the Chicago City Council. The city council expressed that
intent in the RLTO:
"It is the purpose of [the RLTO], in order to protect
and promote the public health, safety and welfare of
its citizens, to establish' the rights and obligations
of the landlord and the tenant in the rental of
dwelling units, and to encourage the landlord and
tenant to maintain and improve the quality of housing."
Chicago Municipal Code 5-12-010.
The city council also said the RLTO "should be liberally
construed and applied to promote its purposes and policies."
Chicago Municipal Code 5-12-010. Accord Freidman v. Krupp
Corp., 282 Ill. App. 3d 436, 443, 668 N.E.2d 142, 147 (1996)(RLTO
should be liberally construed as a remedial ordinance); but see
Szpila, 279 Ill. App. 3d at 971 (RLTO should be strictly
construed as a penal statute).
In light of the RLTO's purpose to improve rental housing, as
well as the city council's expression of the proper approach to
construing and applying the RLTO, the tenant must give the
landlord a 14 day opportunity to make repairs. Powell failed to
give Metroplex a full 14 days because he withheld rent for a
period in July during which Metroplex could still make repairs.
In short, Powell did not comply with the RLTO.
At oral argument, Powell asked us to disregard his apparent
failure to bring himself within the time limits established by
the RLTO. He contended the time limits are directory and cannot
defeat the clear policy of the ordinance--to protect tenants from
indifferent landlords.
In effect, Powell asks us to rewrite the RLTO, to add words
not inserted by the City Council. We believe, however, this
court must resist the temptation to rewrite an ordinance in order
to reflect life as we might think it should be. If the City
Council did not intend the provisions of its ordinance to be
binding on landlords and tenants, it could have said so.
Our conclusion that Powell did not follow the strict terms
of the ordinance does not resolve the case. We must examine the
trial court's order striking Powell's affirmative defense and
counterclaim.
Powell's affirmative defense, entitled "Retaliatory
Conduct," asserted the RLTO prohibited Metroplex from filing a
forcible entry claim against Powell merely because he invoked his
rights as a tenant. The affirmative defense also asked for
damages under the RLTO.
The RLTO provides:
"*** A landlord may not knowingly terminate a
tenancy, decrease services, bring or threaten to bring
a lawsuit against a tenant for possession or refuse to
renew a lease or tenancy because the tenant has in good
faith:
***
(d) requested the landlord to make repairs to the
premises as required by a building code ***; or
* * *
(g) exercised any right or remedy provided by law.
*** In an action by or against the tenant, if
there is evidence of tenant conduct protected herein
within one year prior to the alleged act of
retaliation, that evidence shall create a rebuttable
presumption that the landlord's conduct was
retaliatory." (Emphasis added.) Chicago Municipal
Code 5-12-150.
Powell's June 20 request letter was protected conduct.
Metroplex filed its forcible entry claim less than one month
after receiving Powell's request letter. Additionally, the
record reveals other facts which lend support to Powell's
assertion of retaliation. Powell had lived in this building for
nearly 25 years, but Metroplex quickly moved to evict him once he
withheld $167, or a mere 25%, of his $668 rent. Metroplex also
filed forcible entry claims against six other tenants of this
building who requested repairs.
The trial court struck this affirmative defense, ruling
Powell could not complain of retaliatory conduct because he did
not comply with the RLTO:
"I'd also like to call your attention to the fact
that the defendant has contended that the plaintiff's
conduct was retaliatory, and I submit to you that the
defendant, in reference to the facts in this particular
case, place[s] [himself] in the precarious position of
not complying with the Residential Landlord and Tenants
Ordinance, that [he] relied upon, and, by not giving
the plaintiff the requisite minimum number of days to
cure, that the--and that would be at least 14 days--
that [he] cannot complain of retaliatory conduct.
This is a case for nonpayment of rent, and that
takes it out of the realm of retaliatory conduct.
* * *
*** [P]ossibly, were it not for the fact that the
tenant had prematurely indicated that the reduced rent
was to commence prior to the expiration of the 14 days,
then the defendant may have had a valid retaliatory
conduct case against the plaintiff."
Although we conclude Powell did not comply with the RLTO's
rent withholding provision, we disagree with the trial court
dismissal of Powell's retaliatory eviction affirmative defense.
Considering the dearth of relevant case law construing the rent
withholding provision of the RLTO, Powell's request for repairs
and his withholding of rent create a "good faith" fact issue.
Conduct protected by the ordinance creates a presumption of
retaliation. Metroplex addressed the issue in its summary
judgment motion with a blanket denial.
Summary judgment is inappropriate if the moving party cannot
demonstrate the absence of a factual dispute with respect to all
issues raised by the pleadings, including the non-moving party's
affirmative defense. Old Kent Bank v. Surwood Corp., 256 Ill.
App. 3d 221, 627 N.E.2d 1192 (1994); West Suburban Mass Transit
District v. Consolidated Rail Corp., 210 Ill. App. 3d 484, 569 N.E.2d 187 (1991). Summary judgment was inappropriate here
because a triable issue of fact exists: whether Metroplex's
putative reason for evicting Powell--nonpayment of rent--was a
mere pretext to evict a troublemaker.
Powell contends the trial court should not have dismissed
his second amended affirmative defense and counterclaim as not
germane to Metroplex's forcible entry claim.
A motion to dismiss under section 2-615 "tests the legal
sufficiency of a pleading and a court must accept all well-
pleaded facts as true." Doe v. Calumet City, 161 Ill. 2d 374,
381, 641 N.E.2d 498, 503 (1994). On appeal, the standard of
review for a section 2-615 dismissal is de novo. Hough v.
Kalousek, 279 Ill. App. 3d 855, 665 N.E.2d 433 (1996).
Powell's affirmative defense presented his retaliatory
eviction argument and asked for money damages under the RLTO.
Powell's counterclaim presented two counts: "Retaliatory Conduct"
and "Breach of the Implied Warranty of Habitability." The
retaliatory eviction count tracked the affirmative defense and
asked for damages under the RLTO. The breach of implied warranty
count asked for a refund of overpaid rent.
A forcible entry and detainer action is a limited
proceeding, focusing on the central issue of possession. Foster
v. Foster, 273 Ill. App. 3d 106, 652 N.E.2d 350 (1995). The
forcible entry and detainer statute provides:
"On complaint by the party or parties entitled to
possession of such premises ***, stating that such
party is entitled to the possession of such premises
***, and that the defendant *** unlawfully withholds
the possession thereof from him, her or them, the clerk
of the court shall issue a summons.
The defendant may under a general denial of the
allegations of the complaint offer in evidence any
matter in defense of the action. No matters not
germane to the distinctive purpose of the proceeding
shall be introduced by joinder, counterclaim or
otherwise." (Emphasis added). 735 ILCS 5/9-106 (West
1992).
In short, matters germane to a forcible entry claim may be
introduced by the defendant through affirmative defenses or
counterclaims. Oak Park Trust & Savings Bank v. Village of Mount
Prospect, 181 Ill. App. 3d 10, 536 N.E.2d 763 (1989).
"Claims which are germane to the issue of possession
generally fall into one of four categories: (1) claims asserting
a paramount right of possession; (2) claims denying the breach of
the agreement vesting possession in the plaintiff; (3) claims
challenging the validity or enforceability of the agreement on
which the plaintiff bases the right to possession; or (4) claims
questioning the plaintiff's motivation for bringing the action."
People ex rel. Department of Transportation v. Walliser, 258 Ill.
App. 3d 782, 788, 629 N.E.2d 1189, 1194 (1994); accord Oak Park
Trust, 181 Ill. App. 3d at 23. A retaliatory eviction claim is
germane to a forcible entry action and states a defense. Clore
v. Fredman, 59 Ill. 2d 20, 27, 319 N.E.2d 18, 21-22 (1974)("If,
in fact, the landlord's action is retaliatory, the landlord is
not entitled to possession of the property and the action cannot
be maintained.") Breach of the implied warranty of habitability
claims also are germane. Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N.E.2d 208 (1972).
While his affirmative defense and both counts of his
counterclaim were germane, Powell asked for monetary damages,
attorney fees, and costs. Counterclaims seeking money damages
are not germane to forcible entry claims. Walliser, 258 Ill.
App. 3d at 788. Our supreme court has defined germane as closely
related, relevant, or pertinent. Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 263 N.E.2d 833 (1970). As we have said in a similar
context involving a municipal rental housing ordinance,
"presumably, any matter arising under *** the Village Ordinance
would be germane to the issue of whether the landlord is entitled
to possession or rent." Oak Park Trust, 181 Ill. App. 3d at 23.
The ordinance here specifically provides for damages from
retaliatory eviction defenses and claims: "The tenant has a
defense in any retaliatory action against him for possession and
is entitled to *** an amount equal to and not more than two
months' rent or twice the damages sustained *** and reasonable
attorney fees." Chicago Municipal Code 5-12-150. We see no
good reason to allow Powell to argue retaliatory eviction under
the RLTO, but not to allow him to pursue remedies specifically
provided in the RLTO. Powell's affirmative defense and count I
of his counterclaim are germane to Metroplex's forcible entry
claim and should not have been dismissed.
Powell correctly contends the RLTO does not abolish the
common law implied warranty of habitability. The RLTO 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 5-12-190.
Where the RLTO fails to provide tenant rights, the implied
warranty of habitability still exists. Cf. Nottage v. Jeka, 172 Ill. 2d 386, 667 N.E.2d 91 (1996)(legislature must abolish common
law cause of action with plain language); Harris v. Manor
Healthcare Corp., 111 Ill. 2d 350, 489 N.E.2d 1374 (1986).
However, Powell's implied warranty counterclaim is not
germane to Metroplex's forcible entry claim because it seeks
money damages independent of the RLTO.
CONCLUSION
The trial court erred in granting summary judgment to
Metroplex because a triable issue of fact exists on Powell's
affirmative defense of retaliatory eviction. The trial court
erred in striking and dismissing Powell's retaliatory eviction
affirmative defense and counterclaim. The trial court correctly
dismissed Powell's implied warranty of habitability counterclaim.
Affirmed in part, reversed and remanded in part.
McNAMARA and BURKE, JJ., concur.
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