FOURTH DIVISION May 12, 2016

No. 1-14-2853

MANDA TANIA TRUTIN ) ) Appeal from the Plaintiff-Appellee and Cross-Appellant, ) Circuit Court of ) Cook County. v. ) ) No. 13 M1 127786 IULIAN ADAM and AMANDA SCHMICKER, ) ) Honorable Defendants-Appellants and Cross-Appellees. ) Israel A. Desierto, ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from a landlord-tenant dispute brought under the Chicago Residential

Landlord and Tenant Ordinance (RLTO). The tenant, the plaintiff in this action, prevailed at trial

and was awarded attorney fees and costs as a "prevailing plaintiff" under the RLTO. The

landlords later brought a postjudgment petition for relief from judgment pursuant to section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), which the tenant

opposed and the circuit court denied. The question presented is whether, under the RLTO, the

tenant is entitled to fees and costs for successfully opposing that postjudgment petition in the

circuit court. We hold that she is.

¶2 I. BACKGROUND

¶3 Manda Tania Trutin (Manda) entered into a residential lease with Iulian Gabriel Adam

and Amanda Schmicker (the landlords) in the city of Chicago for the lease period beginning July

24, 2011 and ending July 31, 2012. The security deposit for the lease was $850. After vacating

the unit, the landlords sent Manda both a check for $450 and a notice clarifying the reasons for deducting $400 from the security deposit: picture holes or gouges to walls ($200); paint and

supplies ($100); and cleaning services ($100). Manda filed suit seeking to enforce various

provisions of the RLTO, alleging a failure to pay the security deposit interest, failure to timely

return the security deposit with interest, failure to disclose the financial institution holding

plaintiff's security deposit, commingling of security deposit with landlord assets, and failure to

provide a current RLTO summary.

¶4 On February 5, 2014, the trial court entered judgment in favor of Manda and awarded her

attorney fees and court costs pursuant to the RLTO.

¶5 A. The Original “Motion to Vacate”

¶6 On April 9, 2014, the landlords filed a pleading styled a "motion to vacate" the trial

court's February 5 ruling. That motion did not specify the statute under which it was brought. No

affidavit was attached to it. And it was obviously filed well beyond 30 days from the final

judgment.

¶7 Manda filed a response in opposition. She argued that the circuit court had no jurisdiction

over a posttrial motion filed more than 30 days after the final judgment, and the "motion to

vacate" could not be deemed a petition for relief from judgment pursuant to section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), as it was not styled as such and did

not attach any affidavits as required by that statute.

¶8 Manda also filed a supplemental petition for attorney fees and costs pursuant to the

RLTO for the effort expended in litigating the postjudgment "motion to vacate."

¶9 On May 20, 2014, the trial court denied the "motion to vacate" based on lack of

jurisdiction, as it was not filed within 30 days of the final judgment. The trial court's order was

silent on the request for attorney fees.

-2- ¶ 10 In her brief, Manda claims that the trial court denied her supplemental fee petition

because it lacked jurisdiction over that fee petition, just as it lacked jurisdiction over the "motion

to vacate" in the first instance. But we have no transcript of that proceeding or any bystander's

report or stipulation and, as we have noted, the order is silent on the petition for attorney fees.

¶ 11 In any event, neither party appealed the trial court's May 20 order.

¶ 12 B. The Section 2-1401 Petition

¶ 13 About a month later, on June 20, 2014, the landlords filed a section 2-1401 petition for

relief from judgment, seeking to vacate the circuit court's judgment in favor of Manda based on

what they deemed newly-discovered evidence that would entitle them to post-judgment relief.

On August 6, 2014, after a hearing on the matter, the trial court denied the section 2-1401

petition as well. After the trial court announced its ruling in open court, Manda's counsel made

an oral request for attorney fees and costs:

"COUNSEL: Since this is a matter under the RLTO, we are entitled to file a fee

petition. I would like to get it—rather than have to appear another time, I would like to

set a briefing schedule.

THE COURT: I have denied their petition. The judgment that was previously

entered stands.

COUNSEL: No. No. I am sorry, [Y]our Honor, I am the prevailing party on

the—

THE COURT: And judgment was granted on your behalf, correct?

COUNSEL: Correct.

THE COURT: And an award has already been given, correct?

COUNSEL: Yes.

-3- THE COURT: You are asking me for additional attorney's fees based on this

1401 petition?

COUNSEL: On responding to this, yes.

THE COURT: Respectfully, and if you wish, the court reporter is here, I believe

that the judgment that was previously entered will stand.

COUNSEL: Okay. You will not entertain any further fee petition, is that correct?

THE COURT: At this time, no."

¶ 14 The order entered on August 6, 2014 reflected that the court denied both the landlords'

section 2-1401 petition and Manda’s request for attorney fees and costs.

¶ 15 C. The Appeal

¶ 16 On September 5, 2014, the landlords filed a notice of appeal of the August 6, 2014 order

denying their section 2-1401 petition. On September 15, 2014, Manda filed a notice of cross-

appeal. In explaining the relief sought in her cross-appeal, Manda wrote: "Reverse the portion of

the order of 8/6/14 denying cross-appellant the right to file a petition for attorney's fees pursuant

to the [RLTO] and remand the case to allow the filing of a fee petition and further proceedings

thereon; attorney's fees and costs for appeal pursuant to [the RLTO]."

¶ 17 The landlords failed to prosecute their appeal, and we dismissed it for want of

prosecution. The only matter before us is the cross-appeal regarding attorney fees.

¶ 18 II. ANALYSIS

¶ 19 The landlords failed to file a brief on this cross-appeal brought by Manda. We are not

compelled to serve as an advocate for the appellee landlords, but we may choose to consider the

merits of the appeal where the record is simple, and we can resolve the dispute without the

benefit of an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp.,

(1976). We will do so in this case.

-4- ¶ 20 A. Jurisdiction

¶ 21 It is always our duty to consider our own jurisdiction, even if the question is not raised by

the parties. Uesco Industries, Inc. v. Poolman of Wisconsin, Inc.,

. The jurisdictional question is noteworthy here because Manda appears to be seeking attorney

fees and costs resulting from her efforts in opposing two different posttrial actions. In her brief,

Manda seeks "attorney's fees and costs to which [she] is entitled as the prevailing tenant *** in

opposing the landlords' attempts to vacate the judgment in her favor." (Emphasis added.) Her use

of the plural, as well as the argument she makes in her brief, indicate that she is attempting to

secure attorney fees arising out of both attempts to overturn her trial victory—(1) the initial

"motion to vacate" denied on May 20, 2014, and (2) the subsequent section 2-1401 petition

denied on August 6, 2014. We must determine our jurisdiction to hear each of these rulings

independently. 1

¶ 22 Taking the second circuit court ruling first, Manda's notice of cross-appeal indicates that

the only order from which she is appealing is the circuit court's August 6, 2014 order, which

denied the landlords' section 2-1401 petition and denied Manda's request to file a fee petition for

costs incurred in opposing that petition. Under Illinois Supreme Court Rule 303(a)(3) (eff. May

30, 2008), a notice of cross-appeal is timely filed if, among other reasons, it is filed within 10

days of receipt of notice of a timely filed notice of appeal by another party.

Here, the

landlords filed a timely notice of appeal from the August 6 order by filing it on September 5,

2014, within 30 days of the final order. See Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). Manda

then filed her notice of cross-appeal 10 days later, on September 15, 2014. We thus have

jurisdiction over the August 6 order's denial of attorney fees pursuant to Rule 303(a)(3).

1 Manda also requests attorney fees and costs for litigating this cross-appeal. We will take up that question as well. -5- ¶ 23 It makes no difference that, ultimately, the landlords failed to prosecute their appeal.

Once Manda's cross-appeal was timely filed, entitling her to appellate jurisdiction, her cross-

appeal stood on its own. Sampson v. Eastman Kodak Co.,

(1990)

(cross-appeal is not dependent on viability of initial appeal).

¶ 24 But we do not have jurisdiction to review the propriety of any fee petition relating to the

earlier postjudgment motion, the "motion to vacate" that the trial court denied on May 20, 2014.

The notice of cross-appeal was limited to the August 6 order, the portion of which denied Manda

the right to file a fee petition. And Manda's request on that day to the trial court was to file a fee

petition for work performed in responding to the section 2-1401 petition:

"THE COURT: You are asking me for additional attorney's fees based on this

1401 petition?

COUNSEL: On responding to this, yes."

¶ 25 Moreover, even had she intended to do so, Manda could not have bootstrapped her fees

from the earlier "motion to vacate" litigation onto the section 2-1401 litigation, because they

were different actions altogether. The filing of a section 2-1401 petition, though a collateral

attack on a previous judgment, "commences a new and separate cause of action." Price v. Philip

Morris, Inc.,

; see also Warren County Soil & Water Conservation District

v. Walters,

(section 2-1401 proceeding is "independent and separate action

from the original action"). Thus, any fee petition that Manda could have filed in the section 2-

1401 proceeding could only have been brought for effort expended with regard to that

proceeding.

¶ 26 It is not clear what became of that fee petition filed with regard to the litigation on the

"motion to vacate." As we explained previously (see supra ¶¶ 9-10), Manda says the circuit court

denied that fee petition when it denied the "motion to vacate" itself, but that assertion finds no

-6- support in the record, and we cannot accept that assertion without a stipulation or record

evidence. Keener v. City of Herrin,

(2009). But it ultimately makes no

difference here. Whatever became of that fee petition, it was not a subject of the August 6 order,

and the August 6 order is the only trial court ruling before us on this cross-appeal.

¶ 27 Thus, our review is limited to Manda’s request for attorney fees and costs arising from

her efforts in opposing the landlords’ section 2-1401 petition, a request which the circuit court

denied on August 6, 2014.

¶ 28 B. Right to Fees and Costs for Litigating Section 2-1401 Petition

¶ 29 The RLTO permits a prevailing plaintiff to collect attorney fees in certain landlord-tenant

actions:

"Except in cases of forcible entry and detainer actions, the prevailing plaintiff in

any action arising out of a landlord's or tenant's application of the rights or remedies

made available in this ordinance shall be entitled to all court costs and reasonable

attorney's fees***." Chicago Municipal Code § 5-12-180 (added Nov. 6, 1991).

¶ 30 There is no question that, when a tenant sues for a violation of RLTO and prevails, that

tenant is entitled to reasonable attorney fees and all court costs related to that action. The

question here is whether that fee-shifting provision applies to a postjudgment petition, brought

under section 2-1401, attacking that result. It is a question of law we review de novo. Shadid v.

Sims,

, ¶ 7 (whether RLTO provides for fee award in certain situation

is question of law reviewed de novo); Grate v. Grzetich,

(2007)

(whether statute authorizes award of attorney fees is question of law subject to de novo review).

¶ 31 We start, as we must, by ascertaining the intent of the legislative body in adopting the

ordinance regarding attorney fees. Shadid,

, ¶ 7. We do this, first and

-7- foremost, by giving the language its plain and ordinary meaning and considering the statutory

framework as a whole. Id.

¶ 32 The fee-shifting provision in the RLTO applies to "any action arising out of a landlord's

or tenant's application of the rights or remedies made available in this ordinance." Chicago

Municipal Code § 5-12-180 (added Nov. 6, 1991). The scope of this provision includes the initial

lawsuit Manda filed here, but does it also include the section 2-1401 petition filed by the

landlords to collaterally attack that judgment? As we have just noted, a section 2-1401 petition is

not a continuation of that same proceeding but, rather, is a new and separate cause of action

attacking the judgment in that initial action. Price,

; Walters,

. And recall that the RLTO does not provide for the award of fees to a prevailing

party; it awards them to a "prevailing plaintiff." (Emphasis added.) Chicago Municipal Code § 5-

12-180 (added Nov. 6, 1991). In this new and separate cause of action brought under section 2-

1401, Manda was not the prevailing plaintiff; she was not the plaintiff at all. She was a

prevailing respondent.

¶ 33 On the other hand, as we noted in Shadid,

, ¶ 7, the RLTO also

provides that it “shall be liberally construed and applied to promote its purposes and policies.”

Chicago Municipal Code § 5-12-010 (amended Mar. 31, 2004). And this court has often

recognized that the overall purpose of the RLTO is “ ‘to protect tenants,’ ” with the

understanding that “ ‘tenants are in a disadvantageous position with respect to landlords.’ ”

Shadid,

, ¶ 7 (quoting Lawrence v. Regent Realty Group, Inc.,

(1999), aff’d,

(2001)). More specifically, with regard to the fee-

shifting provision under review, this court has recognized that:

“ ‘The ordinance was passed with a recognition of the historical disparity in bargaining

positions between landlord and tenants and to protect tenants from overreaching by

-8- residential landlords. [Citation.] The attorney fees provisions are meant to give a financial

incentive to attorneys to litigate on behalf of those clients who have meritorious cases but

who, due to the limited nature of the controversy, would not normally consider litigation

as being in their client's financial best interest.’ ”

¶ 11 (quoting Pitts v. Holt,

(1999)). 2

¶ 34 Thus, for example, in Shadid, we held that the phrase “prevailing plaintiff” in this

ordinance should be read to include a prevailing counterplaintiff, where the tenant brought a

counterclaim under the RLTO and ultimately prevailed. Id. ¶ 8. We reasoned that there was no

meaningful distinction between a complaint and a counterclaim other than the procedural posture

in which the claim was raised, and denying fees to a prevailing counterplaintiff would do

violence to the fundamental purpose of the fee-shifting provision—to allow tenants to vindicate

their rights by incentivizing lawyers to take their cases. Id. ¶¶ 8-9.

¶ 35 We also take guidance from the related context of appellate fees in cases involving

statutory fee-shifting provisions. Typically, where a party that prevails in the trial court is

required to defend that victory on appeal, courts award attorney fees to that party for their work

on the appeal, too, provided they prevail on appeal as they did at trial. For example, in Chesrow,

2 We recognize that, generally speaking, statutes awarding attorney fees and costs to prevailing parties are strictly construed, as they are in derogation of the common-law principle that each side bears its own fees and costs. Gonzales-Blanco v. Clayton,

(1983). But that principle yields to the plain language of the statute; where, as here, a statute specifically provides that its provisions are to be liberally construed to effectuate their purpose, our duty is to give effect to that expressed intent and disregard that general rule of statutory construction. Chesrow v. Du Page Auto Brokers, Inc.,

(1990); Warren v. LeMay,

(1986). Since the RLTO provides for a liberal construction, we are not required to strictly construe the attorney-fee provision.

-9-

, we held that the Consumer Fraud and Deceptive Business Practices Act

allowed for an award of attorney fees on appeal, where the language of the statute provided for “

‘reasonable attorney’s fees and costs to the prevailing party’ ” and further provided that the

statute be “ ‘liberally construed to effect the purposes thereof,’ ” namely the “statutory mandate

to provide appropriate remedies to consumers.”

(quoting Ill. Rev. Stat. 1989, ch. 121½, ¶¶

270a(c), 271a). In a previous decision on which Chesrow relied, we explained our reasoning that

this consumer fraud law allowed for attorney fees on appeal:

"The language of [the statute] does not, by its own terms, restrict fees payable to those

incurred at trial. In view of the statute's broad remedial purposes, we perceive that the

intent of this provision is to compensate a prevailing party for all fees and costs

reasonably incurred in connection with the claim brought pursuant to its terms. Where the

claim must be litigated not only at trial, but also on appeal, then the attorney's fees and

costs incurred by the prevailing party in connection with appellate proceedings must be

deemed an integral part of that claim and should be recoverable under the statute."

(Emphasis in original.) Warren,

.

¶ 36 We applied this reasoning in finding that the Magnuson-Moss Warranty-Federal Trade

Commission Improvements Act (

et seq. (2006)) permitted an award of fees for

appellate work. Melton v. Frigidaire,

(2004). We reasoned that

“[a]llowing a plaintiff to petition for appellate attorney fees and costs furthers the Act’s goal of

providing consumers with legal assistance to enable them to pursue a remedy for injury or loss.”

Melton quoted a North Dakota decision that wrote, “ ‘We do not believe that a prevailing

consumer’s attorney-fee award *** should be dissipated by uncompensated costs, expenses and

attorney fees in successfully defending a judgment on appeal.’ ”

(quoting Troutman v. Pierce,

Inc.,

(N.D. 1987)).

- 10 - ¶ 37 We would further note that in federal civil rights litigation, courts award fees incurred by

prevailing plaintiffs in defending their judgments both postjudgment and on appeal. See, e.g.,

Ustrak v. Fairman,

(7th Cir. 1988) (plaintiff entitled to fee award for appellate

work in defending successful judgment below; plaintiff “had no choice” but to incur them or

forfeit his victory below); Plyler v. Evatt,

(4th Cir. 1990) (prevailing civil

rights plaintiff entitled to fees in opposing defendant's posttrial motion to modify judgment;

plaintiff's counsel sought "to preserve [the] fruits" of its victory and was "under clear obligation

to make the defensive effort"; "[t]o deny attorneys fees for such an effort *** would obviously

thwart the underlying purpose of the attorney fee provision" at issue).

¶ 38 The analogy to appellate work is not perfect. An appeal is clearly a continuation of the

trial court proceeding in which a plaintiff prevailed. Here, on the other hand, the section 2-1401

petition was an independent, collateral action. But the reasoning of those decisions we have

discussed applies with equal force to the scenario before us. In each case, the plaintiff has

secured a victory before the trial court and is now required to defend that victory based on a legal

maneuver initiated by the losing defendant, be it an appeal or a postjudgment collateral attack. In

each case, that prevailing plaintiff is faced with the choice of opposing that legal maneuver or

forfeiting the victory she gained in the trial court. And in each case, if attorney fees were not

awarded for that prevailing plaintiff’s subsequent legal work in defending her victory, she might

lack the financial resources to engage a lawyer to continue litigating the case postjudgment.

¶ 39 Indeed, one could reasonably argue that the entire purpose behind the fee-shifting

provision in the RLTO could be thwarted by a losing defendant, who could strategically choose

to file a section 2-1401 petition rather than a direct appeal, and then appeal the ruling on the

section 2-1401 petition, too. In the process of litigating the section 2-1401 petition in the circuit

- 11 - and reviewing courts, the once-prevailing plaintiff could easily find herself spending more on

attorney fees than she was awarded in the original action.

¶ 40 We believe that denying attorney fees to Manda in defending the section 2-1401 petition

would lead to a result that is entirely incompatible with the purpose of the RLTO. The ordinance

is intended to give tenants an incentive to pursue cases that otherwise would not be worth the

cost of litigation, and lawyers an incentive to take those cases. The ordinance contemplates that a

prevailing plaintiff will be awarded all reasonable attorney fees, and all court costs, for litigating

that RLTO claim. A section 2-1401 petition, though technically a separate action, is still directed

at that RLTO claim, and though the prevailing plaintiff has now become a prevailing respondent,

she is the same person fighting to vindicate the same claim. It is clear to us, from the language

and stated purpose of the RLTO, that it was the intent of the Chicago City Council that any

litigation related to the RLTO action would fall within the confines of the fee-shifting provision,

and that the City Council did not contemplate a legal maneuver that is technically removed from

the initial action even though it directly challenges it.

¶ 41 “ ‘[W]hen the literal enforcement of a statute would result in great injustice and lead to

consequences which the legislature could not have contemplated, the courts are bound to

presume that such consequences were not intended and will adopt a construction which it may be

reasonable to presume was contemplated by the legislature.’ ” In re Detention of Lieberman,

(2002) (quoting People ex rel. Cason v. Ring,

(1968)). In

Lieberman, for example, the respondent challenged the State's attempt to commit him pursuant to

the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)), arguing

that the definition of a "sexually violent person" did not include individuals such as the

respondent, who had been previously convicted of rape; the definition included the modern

moniker of "criminal sexual assault" but did not mention the now-abolished offense of "rape."

- 12 - at 310-11; 725 ILCS 207/5(e) (West 1998). Our supreme court rejected this argument, noting

that the former crime of "rape" was wholly subsumed within the modern definition of "criminal

sexual assault," and that permitting the respondent to avoid the reach of the civil commitment

statute on this technical basis would constitute "an unwarranted triumph of form over substance,

defeating the very purpose for which the statute was enacted." Lieberman,

.

¶ 42 That reasoning applies here. We read the scope of the fee-shifting provision, which

applies to "any action arising out of a landlord's or tenant's application of the rights or remedies

made available" under the RLTO (Chicago Municipal Code § 5-12-180 (added Nov. 6, 1991)), to

include a section 2-1401 petition aimed at the judgment in that action. And even though Manda

was not technically a plaintiff with regard to that action, denying fees and costs to Manda in

opposing that section 2-1401 petition would constitute an unwarranted triumph of form over

substance in interpreting the RLTO and would defeat the very purpose of its fee-shifting

provision. We will not adopt that interpretation.

¶ 43 We hold that Manda is entitled to court costs and reasonable attorney fees under the

RLTO for work performed in opposing the landlords’ section 2-1401 petition.

¶ 44 C. Right to Fees Related to Cross-Appeal

¶ 45 Manda has also requested fees incurred in litigating this cross-appeal. Typically, where a

statute provides for the award of attorney fees and costs in prosecuting an action, the cost of

presenting and litigating the fee petition itself is likewise recoverable. See, e.g., ADT Security

Services, Inc. v. Lisle-Woodridge Fire Protection District,

(N.D. Ill.

2015); Bond v. Stanton,

(7th Cir. 1980) (“[I]t would be inconsistent with

the purpose of the [civil rights fee shifting statute] to dilute a fees award by refusing to

compensate the attorney for the time reasonably spent in establishing and negotiating his rightful

claim to the fee.” (quoting Lund v. Affleck,

(1st Cir. 1978)).

- 13 - ¶ 46 Given the reasoning of these cases and our previous analysis, and given a liberal

construction of the ordinance's provision entitling Manda to "all courts costs and reasonable

attorney's fees" (Chicago Municipal Code § 5-12-180 (added Nov. 6, 1991)), we hold that Manda

is entitled to court costs and reasonable attorney fees for work performed in prosecuting this

cross-appeal.

¶ 47 The proper course is to remand these claims for court costs and attorney fees to the circuit

court for its initial review. See Erlenbush v. Largent,

(2004); Melton,

; City National Bank of Murphysboro v. Reiman,

(1992); American Savings Ass. v. Conrath,

(1984).

¶ 48 III. CONCLUSION

¶ 49 We reverse only that portion of the circuit court’s August 6, 2014 order that denied

Manda the right to file a fee petition. On remand, the circuit court shall permit Manda to file

petitions for court costs and reasonable attorney fees for work performed on the landlords’

section 2-1401 petition and on this cross-appeal.

¶ 50 Reversed and remanded with instructions.

- 14 -