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NO. 4-01-0632

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Plaintiff, Stephanie Dickson, appeals from the summaryjudgment entered in the circuit court of Sangamon County in favorof defendant, West Koke Mill Village Partners, on the basis thatthe cause of action was moot. The trial court declined to considerplaintiff's motion for class certification because plaintiff'sclaim was moot. We consider the propriety of the summary judgmentde novo (Jackson v. Graham, 323 Ill. App. 3d 766, 779, 753 N.E.2d525, 536 (2001)) and review the ruling on the class certificationunder an abuse of discretion standard (see AG Farms, Inc. v.American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 694, 695N.E.2d 882, 890 (1998)). We reverse and remand.

Plaintiff filed her original complaint on February 10,1998, an amended complaint on October 7, 1998, and a second-amendedcomplaint on January 7, 1999. In each of the complaints, plaintiffsought to recover damages for defendant's violation of the SecurityDeposit Interest Act (Act) (765 ILCS 715/0.01 through 3 (West1996)), plus costs and attorney fees for defendant's allegedfailure to pay the lessees of its apartments interest on theirsecurity deposits within 30 days after the end of each 12-monthrental period. Plaintiff filed this action on behalf of a classconsisting of all persons who (1) had been tenants of the West KokeMill Village Apartments within five years prior to the filing ofthe complaint, (2) had provided defendant with a security deposit,(3) were not in default of their leases, and (4) were not paidinterest on their security deposits within 30 days of their annuallease anniversary dates. Plaintiff filed a motion for classcertification on April 13, 1998.

On June 7, 1999, the trial court granted defendant'smotion to dismiss plaintiff's second-amended complaint to theextent that the prayer for relief improperly sought the assessmentof multiple yearly penalties rather than a single statutorypenalty, denied the remainder of defendant's motion to dismiss, anddirected defendant to answer the second-amended complaint. Defendant filed its answer to the second-amended complaint on June18, 1999, and a motion for summary judgment on February 23, 2001. Attached to the motion for summary judgment was the January 19,2001, affidavit of Dennis McEvoy, defendant's managing partner.

McEvoy's affidavit stated that plaintiff was a tenant ofdefendant's apartments from March 1991 through October 1997; onNovember 5, 1997, defendant sent plaintiff a check for $475 asrepayment for her initial security deposit minus a $50 cleaningcharge (a copy of the cover letter accompanying the check wasattached to the affidavit as an exhibit); on November 11, 1997,plaintiff's attorney called apartment manager Pam Calhoun demandingthat interest be paid on the amount of the security deposit; threedays later, Calhoun sent plaintiff a check for $134.96, equally 61/2 years of interest; on November 19, 1997, Calhoun sent a letterto plaintiff's attorney, David Patrick Hall, informing him ofdefendant's efforts to calculate interest and contact plaintiff(exhibit No. 2 to the affidavit); on November 13, 1997, Calhounsent a letter to plaintiff documenting defendant's calculations ofthe interest owed on the $525 security deposit (exhibit No. 3 ofthe affidavit) (a copy of the $134.96 check to plaintiff attachedto the November 13, 1999, letter from Calhoun showed that the checkwas dated November 14, 1997); also on November 13, 1997, Hall wrotea letter to defendant's attorney, Brad Huff, demanding six timesthe amount of the security deposit ($3,150) plus $260 in attorneyfees (exhibit No. 4 to the affidavit); and both defendant's $475and $134.96 checks to plaintiff cleared defendant's bank prior toMarch 23, 1998. McEvoy's affidavit further stated that, after theinterest issue was brought to defendant's attention, defendantimmediately began sending security deposit interest checks toprevious and current tenants. On December 23, 1997, defendant paidinterest to tenants who had moved out in 1997 and left a forwardingaddress. Of the 49 checks issued on December 23, 1997, 47 checkswere accepted and cashed within 30 to 45 days, one cleared the bankin July 1998, and the other was voided due to lapse of time. OnFebruary 13, 1998, defendant issued interest checks to all currenttenants in good standing with their leases. Of the 69 interestchecks tendered, 63 were accepted and cashed and six were voideddue to lapse of time. According to McEvoy's affidavit, each yearthereafter, defendant issued interest checks within 30 days of theanniversary date to the tenants in good standing with their leases. The November 13, 1997, letter from Calhoun to plaintiff demonstrated that interest on the security deposit was calculated at 5%in 1991, 1992, and the first eight months of 1993. For the lastfour months of 1993, all of 1994, and all of 1995, it was calculated at 3%. In 1996, and for the 10 months in 1997, interest wascalculated at 2.3%.

Also attached to the motion for summary judgment was aFebruary 17, 1998, letter from Hall to Huff thanking him for theinterest payment check but informing Huff that it did not affectplaintiff's demand for damages and attorney fees.

On February 25, 2000, plaintiff filed an amended motionfor class certification. On April 3, 2000, defendant filed itsobjection to plaintiff's amended motion for class certification.

In opposition to the motion for summary judgment, onFebruary 21, 2001, plaintiff filed an affidavit of her attorney,Adam M. Berger, that stated plaintiff was unable to respond to themotion for summary judgment because defendant had not complied withcourt orders to provide plaintiff with documents that defendantclaimed to have in its possession, including copies of all thechecks referred to, copies of the original leases of all tenantsreferred to, a list of tenants who did not cash their interestpayment checks, copies of all requests by tenants for the return ofsecurity deposits and interest to be paid on security deposits, andall documents previously requested in a request to produce. OnFebruary 21, 2001, the trial court conducted a hearing on defendant's motion for summary judgment and plaintiff's motion for classcertification. At that hearing, plaintiff raised the inability torespond to the motion for summary judgment because of the failureof defendant to produce documents. The trial court continued thehearing with the provision that documents would be provided in theinterim. Following the hearing, defendant filed copies of thefronts and backs of each check referred to in the motion forsummary judgment, McEvoy's affidavit, and Berger's counter-affidavit. Also produced were copies of the November 5, 1997,letter to plaintiff enclosing the $475 check and the November 19,1997, letter to plaintiff with an attached copy of the invoice forthe $50 cleaning charge.

On March 21, 2001, plaintiff filed a memorandum inopposition to defendant's motion for summary judgment and astatement of material facts in opposition to defendant's motion forsummary judgment. Attached to these documents was the affidavit ofplaintiff. In her affidavit, plaintiff stated that she leased anapartment from defendant for 6 1/2 years ending around October 31,1997; at the time she signed the lease, she paid a $525 securitydeposit; she was not in default on the lease at the end of any 12-month rental period; she did not receive a cash refund or creditfor interest accruing on the security deposit at the end of any 12-month period during her tenancy with defendant; on November 14,1997, Hall sent a letter to defendant's attorney on her behalfdemanding statutory damages, court costs, and attorney fees fordefendant's failure to pay or credit interest accruing on thesecurity deposit; and she had not received any damages fordefendant's failure to pay or credit interest accruing on thesecurity deposit. Attached to the affidavit as an exhibit wasHall's November 14, 1997, letter to Huff. Attached as a furtherexhibit were the copies of the checks defendant had disclosed indiscovery, a copy of one page of the lease covenant, and agreementsbetween plaintiff and defendant that included the paragraphrelating to security deposits.

On April 4, 2001, defendant filed its reply to plaintiff's documents in opposition to summary judgment. The hearing onthe motions was held on May 25, 2001. On June 26, 2001, the trialcourt entered an order reciting that it considered arguments ofcounsel, granting defendant's motion for summary judgment, anddeclining to consider plaintiff's motion for class certification.

On appeal, plaintiff argues that she is still entitled tostatutory penalties under the Act and, therefore, defendant was notentitled to summary judgment. Summary judgment is proper when nogenuine issue of material fact remains and the moving party isentitled to judgment as a matter of law; the right of the movingparty to judgment must be "'clear and free from doubt.'" Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281,280, 762 N.E.2d 494, 496-97 (2001), quoting Purtill v. Hess, 111Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986).

In this case, there is no dispute that the Act applies. The principal question to be determined is whether plaintiff isentitled to more under the Act than simply a belated payment of theaccrued interest.

During the period of plaintiff's lease from March 1991,to August 20, 1993, section 1 of the Act required lessors ofresidential real property containing 25 or more units in either asingle building or a complex of buildings located on contiguousparcels of real estate who received a security deposit from alessee to secure the payment of rent or compensation for damage tothe property to pay interest at 5% from the date of deposit on anysecurity deposit held for more than six months. 765 ILCS 715/1(West 1992). Effective August 20, 1993, Public Act 88-449 (Pub.Act 88-449,