NO. 4-09-0106 Filed 11/20/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE HOUSING AUTHORITY OF CHAMPAIGN ) Appeal from COUNTY, an Illinois Municipal ) Circuit Court of Corporation, ) Champaign County Plaintiff-Appellant, ) No. 08LM734 v. ) ELAINE LYLES and UNKNOWN OCCUPANTS, ) Honorable Defendants-Appellees. ) Holly F. Clemons, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE McCULLOUGH delivered the opinion of
the court:
Following a bench trial in this tenant-landlord dis-
pute, judgment was entered in favor of the tenant, defendant
Elaine Lyles. Thereafter, the court awarded $5,089.50 in attor-
ney fees to defendant and $145 in court costs.
On appeal, landlord plaintiff Housing Authority of
Champaign County, an Illinois municipal corporation, challenges
the award of attorney fees and court costs to defendant. We
affirm in part and reverse in part.
The record shows that plaintiff and defendant entered
into a written lease agreement on April 24, 2003, for an apart-
ment at 108 West Washington in Champaign. The lease provided for
an annual review on April 1, 2004. Plaintiff became a
month-to-month tenant, unless terminated.
On May 30, 2008, plaintiff filed a complaint in forc- ible entry and detainer alleging that defendant breached the
terms of the lease "as a result of keeping her unit in an unsani-
tary and unsafe condition." Plaintiff sought possession of the
premises, "holdover rent, and attorney[] fees and costs" pursuant
to the lease. In support thereof, plaintiff attached a 30-day
notice to terminate tenancy, dated April 4, 2008.
At a bench trial on July 25, 2008, the parties stipu-
lated to the admission of 23 exhibits. The exhibits are not
contained in the record on appeal.
Following the close of plaintiff's case in chief, the
trial court sua sponte expressed concern that it did not have any
proof that defendant was served the notice terminating tenancy.
The court continued the matter to "allow counsel to present any
authority that they may have which would allow the plaintiff to
proceed without having actual proof of service of the 30-day
notice."
On August 15, 2008, the trial court entered judgment in
favor of defendant and against plaintiff. The court found (1) no
evidence that defendant "consciously avoided receiving the
notice" and (2) strict compliance under section 9-211 of the
Illinois Code of Civil Procedure (735 ILCS 5/9-211 (West 2006))
was required.
On September 10, 2008, defendant filed a petition for
attorney fees and costs pursuant to section 3 of the lease, which
- 2 - provides: "In the event one party to this lease defaults in
fulfilling any of the provisions of this lease, the non[]de-
faulting party may recover all costs and reasonable attorney[]
fees incurred in enforcing this lease, whether or not suit shall
be required."
Following hearings on the fee petition, the trial court
found plaintiff in default under section 12 of the lease, which
provides:
"Any notice by the Authority to Tenant shall
be written and shall be deemed effective if
given by delivery in person to any adult
Tenant or by mailing such notice by first
class United States mail, properly addressed
to Tenant at the Unit address with postage
paid. Nothing herein shall preclude the
Authority from giving additional copies of
notices in a different manner if required or
permitted under the provisions of state law."
The trial court awarded $5,089.50 in attorney fees to defendant
and $145 in court costs.
On November 7, 2008, plaintiff filed a motion to
reconsider. The trial court conducted a hearing on the motion
and denied it.
This appeal followed.
- 3 - Plaintiff argues that defendant was not entitled to an
award of attorney fees based upon the lease provisions. We
agree.
Plaintiff filed a complaint in forcible entry and
detainer. "A forcible entry and detainer action is a limited
proceeding that determines the issue of who is entitled to
immediate possession." Avenaim v. Lubecke, 347 Ill. App. 3d 855,
861-862, 807 N.E.2d 1068, 1074 (2004). "Forcible entry actions
are summary, statutory proceedings, and '[a] court hearing a
forcible entry and detainer claim is considered "a court of
special and limited jurisdiction." [Citation.]'" Avenaim, 347
Ill. App. 3d at 861, 807 N.E.2d at 1074, quoting Yale Tavern,
Inc. v. Cosmopolitan National Bank, 259 Ill. App. 3d 965, 971,
632 N.E.2d 80, 85 (1994). "'Matters not germane to the issue of
possession may not be litigated in a forcible entry and detainer
action.'" Avenaim, 347 Ill. App. 3d at 861, 807 N.E.2d at 1074,
quoting Yale Tavern, 259 Ill. App. 3d at 971, 632 N.E.2d at 85.
Illinois follows the "American Rule," which provides
that absent statutory authority or a contractual agreement, each
party must bear its own attorney fees and costs. Morris B.
Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 572, 739
N.E.2d 1263, 1271 (2000); Negro Nest, LLC v. Mid-Northern Manage-
ment, Inc., 362 Ill. App. 3d 640, 641-42, 839 N.E.2d 1083, 1085
(2005). "Statutes permitting the recovery of costs are in
- 4 - derogation of the common law and must be strictly construed."
Negro Nest, 362 Ill. App. 3d at 642, 839 N.E.2d at 1085. Suc-
cessful litigants cannot recover attorney fees as costs unless
expressly authorized by a statute or agreement using specific
language. Estate of Downs v. Webster, 307 Ill. App. 3d 65, 70,
716 N.E.2d 1256, 1260 (1999). A statute or contract must allow
for attorney fees by specific language, such that one cannot
recover if the provision does not specifically state that "attor-
ney fees" are recoverable. See Downs, 307 Ill. App. 3d at 70,
716 N.E.2d at 1260; Qazi v. Ismail, 50 Ill. App. 3d 271, 273, 364
N.E.2d 595, 596-97 (1977).
Under Illinois law, a lease is an agreement subject to
the law of contracts. American Apartment Management Co. v.
Phillips, 274 Ill. App. 3d 556, 559, 653 N.E.2d 834, 836 (1995).
Leases should be construed as a whole to ascertain the parties'
intent (see Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d
314, 320, 597 N.E.2d 622, 625 (1992) ("courts must look to the
lease 'as a whole' and the spirit of the agreement between the
parties")), and the words used should be given their plain and
generally accepted meaning (Book Production Industries, Inc. v.
Blue Star Auto Stores, Inc., 33 Ill. App. 2d 22, 31, 178 N.E.2d
881, 885 (1961)). In instances where the terms of a lease are
unambiguous, "they must be enforced as written, and no court can
Free access — add to your briefcase to read the full text and ask questions with AI
NO. 4-09-0106 Filed 11/20/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE HOUSING AUTHORITY OF CHAMPAIGN ) Appeal from COUNTY, an Illinois Municipal ) Circuit Court of Corporation, ) Champaign County Plaintiff-Appellant, ) No. 08LM734 v. ) ELAINE LYLES and UNKNOWN OCCUPANTS, ) Honorable Defendants-Appellees. ) Holly F. Clemons, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE McCULLOUGH delivered the opinion of
the court:
Following a bench trial in this tenant-landlord dis-
pute, judgment was entered in favor of the tenant, defendant
Elaine Lyles. Thereafter, the court awarded $5,089.50 in attor-
ney fees to defendant and $145 in court costs.
On appeal, landlord plaintiff Housing Authority of
Champaign County, an Illinois municipal corporation, challenges
the award of attorney fees and court costs to defendant. We
affirm in part and reverse in part.
The record shows that plaintiff and defendant entered
into a written lease agreement on April 24, 2003, for an apart-
ment at 108 West Washington in Champaign. The lease provided for
an annual review on April 1, 2004. Plaintiff became a
month-to-month tenant, unless terminated.
On May 30, 2008, plaintiff filed a complaint in forc- ible entry and detainer alleging that defendant breached the
terms of the lease "as a result of keeping her unit in an unsani-
tary and unsafe condition." Plaintiff sought possession of the
premises, "holdover rent, and attorney[] fees and costs" pursuant
to the lease. In support thereof, plaintiff attached a 30-day
notice to terminate tenancy, dated April 4, 2008.
At a bench trial on July 25, 2008, the parties stipu-
lated to the admission of 23 exhibits. The exhibits are not
contained in the record on appeal.
Following the close of plaintiff's case in chief, the
trial court sua sponte expressed concern that it did not have any
proof that defendant was served the notice terminating tenancy.
The court continued the matter to "allow counsel to present any
authority that they may have which would allow the plaintiff to
proceed without having actual proof of service of the 30-day
notice."
On August 15, 2008, the trial court entered judgment in
favor of defendant and against plaintiff. The court found (1) no
evidence that defendant "consciously avoided receiving the
notice" and (2) strict compliance under section 9-211 of the
Illinois Code of Civil Procedure (735 ILCS 5/9-211 (West 2006))
was required.
On September 10, 2008, defendant filed a petition for
attorney fees and costs pursuant to section 3 of the lease, which
- 2 - provides: "In the event one party to this lease defaults in
fulfilling any of the provisions of this lease, the non[]de-
faulting party may recover all costs and reasonable attorney[]
fees incurred in enforcing this lease, whether or not suit shall
be required."
Following hearings on the fee petition, the trial court
found plaintiff in default under section 12 of the lease, which
provides:
"Any notice by the Authority to Tenant shall
be written and shall be deemed effective if
given by delivery in person to any adult
Tenant or by mailing such notice by first
class United States mail, properly addressed
to Tenant at the Unit address with postage
paid. Nothing herein shall preclude the
Authority from giving additional copies of
notices in a different manner if required or
permitted under the provisions of state law."
The trial court awarded $5,089.50 in attorney fees to defendant
and $145 in court costs.
On November 7, 2008, plaintiff filed a motion to
reconsider. The trial court conducted a hearing on the motion
and denied it.
This appeal followed.
- 3 - Plaintiff argues that defendant was not entitled to an
award of attorney fees based upon the lease provisions. We
agree.
Plaintiff filed a complaint in forcible entry and
detainer. "A forcible entry and detainer action is a limited
proceeding that determines the issue of who is entitled to
immediate possession." Avenaim v. Lubecke, 347 Ill. App. 3d 855,
861-862, 807 N.E.2d 1068, 1074 (2004). "Forcible entry actions
are summary, statutory proceedings, and '[a] court hearing a
forcible entry and detainer claim is considered "a court of
special and limited jurisdiction." [Citation.]'" Avenaim, 347
Ill. App. 3d at 861, 807 N.E.2d at 1074, quoting Yale Tavern,
Inc. v. Cosmopolitan National Bank, 259 Ill. App. 3d 965, 971,
632 N.E.2d 80, 85 (1994). "'Matters not germane to the issue of
possession may not be litigated in a forcible entry and detainer
action.'" Avenaim, 347 Ill. App. 3d at 861, 807 N.E.2d at 1074,
quoting Yale Tavern, 259 Ill. App. 3d at 971, 632 N.E.2d at 85.
Illinois follows the "American Rule," which provides
that absent statutory authority or a contractual agreement, each
party must bear its own attorney fees and costs. Morris B.
Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 572, 739
N.E.2d 1263, 1271 (2000); Negro Nest, LLC v. Mid-Northern Manage-
ment, Inc., 362 Ill. App. 3d 640, 641-42, 839 N.E.2d 1083, 1085
(2005). "Statutes permitting the recovery of costs are in
- 4 - derogation of the common law and must be strictly construed."
Negro Nest, 362 Ill. App. 3d at 642, 839 N.E.2d at 1085. Suc-
cessful litigants cannot recover attorney fees as costs unless
expressly authorized by a statute or agreement using specific
language. Estate of Downs v. Webster, 307 Ill. App. 3d 65, 70,
716 N.E.2d 1256, 1260 (1999). A statute or contract must allow
for attorney fees by specific language, such that one cannot
recover if the provision does not specifically state that "attor-
ney fees" are recoverable. See Downs, 307 Ill. App. 3d at 70,
716 N.E.2d at 1260; Qazi v. Ismail, 50 Ill. App. 3d 271, 273, 364
N.E.2d 595, 596-97 (1977).
Under Illinois law, a lease is an agreement subject to
the law of contracts. American Apartment Management Co. v.
Phillips, 274 Ill. App. 3d 556, 559, 653 N.E.2d 834, 836 (1995).
Leases should be construed as a whole to ascertain the parties'
intent (see Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d
314, 320, 597 N.E.2d 622, 625 (1992) ("courts must look to the
lease 'as a whole' and the spirit of the agreement between the
parties")), and the words used should be given their plain and
generally accepted meaning (Book Production Industries, Inc. v.
Blue Star Auto Stores, Inc., 33 Ill. App. 2d 22, 31, 178 N.E.2d
881, 885 (1961)). In instances where the terms of a lease are
unambiguous, "they must be enforced as written, and no court can
rewrite a [lease] to provide a better bargain to suit one of the
- 5 - parties." Owens v. McDermott, Will & Emery, 316 Ill. App. 3d
340, 349, 736 N.E.2d 145, 154 (2000).
The construction of a lease is a question of law, and
the standard of review is de novo. Negro Nest, 362 Ill. App. 3d
at 641, 839 N.E.2d at 1085.
Section 3 of the lease provides:
"In the event one party to this lease de-
faults in fulfilling any of the provisions of
this lease, the non[]defaulting party may
recover all costs and reasonable attorney[]
fees incurred in enforcing this lease, wheth-
er or not suit shall be required."
The American Heritage Dictionary defines "enforce" as
"1. To compel observance of or obedience to. 2. To compel. 3. To
give force to; reinforce." American Heritage Dictionary 610 (3rd
ed. 1992). Black's Law Dictionary defines "enforce" to mean, "To
put into execution; to cause to take effect; to make effective;
as, to enforce a particular law, a writ, a judgment, or the
collection of a debt or fine; to compel obedience to." Black's
Law Dictionary 528 (6th ed. 1990).
Applying these common definitions to the language of
the lease, this court finds as a matter of law that the lessor or
lessee would be entitled to attorney fees only if that party was
suing to compel or make effective the covenants of the lease. In
- 6 - this case, defendant was defending against plaintiff's claim that
she breached the terms of the lease "as a result of keeping her
unit in an unsanitary and unsafe condition." Defendant never
sued to enforce any covenant of the lease. Defendant was not
enforcing anything, but merely defending against the charge that
she had breached the lease. We will not "torture ordinary words
until they confess to ambiguity." Hobbs v. Hartford Insurance
Co. of the Midwest, 214 Ill. 2d 11, 31, 823 N.E.2d 561, 572
(2005), quoting Western States Insurance Co. v. Wisconsin Whole-
sale Tire, Inc., 184 F.3d 699, 702 (7th Cir. 1999). Defendant
was not entitled to an award of attorney fees in this forcible
entry and detainer action.
Plaintiff also contends that "the trial court erred in
granting defendant's petition for *** costs." Plaintiff has
failed to cite any authority in support of its contention. Nor
does it support its contention with argument. It is a rudimen-
tary rule of appellate practice that an appellant may not make a
point merely by stating it without presenting any argument in
support. See Girard v. White, 356 Ill. App. 3d 11, 17, 826
N.E.2d 517, 522 (2005) ("bare contentions that fail to cite any
authority do not merit consideration on appeal"). Plaintiff's
brief also fails to comply with Supreme Court Rule 341(e)(7) (210
Ill. 2d R. 341(e)(7)), which provides that the argument section
of an appellant's brief "shall contain the contentions of the
- 7 - appellant and the reasons therefor, with citation of the authori-
ties." Arguments that do not satisfy Rule 341(e)(7) do not merit
consideration on appeal and may be rejected for that reason
alone. Prairie Rivers Network v. Illinois Pollution Control
Board, 335 Ill. App. 3d 391, 409, 781 N.E.2d 372, 385 (2002). In
light of plaintiff's failure to comply with Rule 341(e)(7), we
conclude that plaintiff has forfeited this issue on appeal.
For the reasons stated, we affirm the trial court's
award of $145 in court costs and reverse that part of the trial
court's order awarding attorney fees to defendant in the amount
of $5,089.50.
Affirmed in part and reversed in part.
MYERSCOUGH and STEIGMANN, JJ., concur.
- 8 -