                                   2017 IL App (1st) 162987

                                                                              SIXTH DIVISION
                                                               Opinion filed: September 1, 2017

                                         No. 1-16-2987

______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

 JOHN OVNIK, KIMBERLEE OVNIK, and              )     Appeal from the
 CHICAGO MUSIC WORKS, INC. d/b/a Deaf Dog      )     Circuit Court of
 Music,                                        )     Cook County
                                               )
       Plaintiffs-Appellees,                   )
                                               )
 v.                                            )     No. 13 L 12989
                                               )
 GALINA PODOLSKEY and VADIM GOSHKO,            )     Honorable
                                               )     Patrick J. Sherlock,
       Defendants-Appellants.                  )     Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Justice Rochford concurred in the judgment and opinion.
       Justice Delort specially concurred, with opinion.

                                           OPINION

¶1     The defendants, Galina Podolskey (Galina) and Vadim Goshko (Vadim), appeal from

various orders entered by the circuit court in the instant action brought by the plaintiffs, John

Ovnik (John), Kimberlee Ovnik (Kimberlee) (collectively, the Ovniks), and Chicago Music

Works, Inc. d/b/a Deaf Dog Music (CMW), seeking damages by reason of the defendants’

failure to return the security deposit posted with them in connection with the rental of a

townhouse plus penalties, interest, attorney fees, and costs under the Chicago Residential
No. 1-16-2987


Landlord and Tenant Ordinance (RLTO) (Chicago Municipal Code § 5-12-010 et seq. (amended

Mar. 31, 2004)). On appeal, the defendants contend, inter alia, that the circuit court erred by:

denying, in whole or in part, three motions to dismiss that they brought pursuant to section 2-619

of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)); and granting summary

judgment in Kimberlee’s favor. For the reasons that follow, we reverse the summary judgment

entered by the circuit court and remand the matter for further proceedings consistent with this

opinion.

¶2     The following factual recitation is derived from the pleadings and exhibits of record.

¶3     In May 2009, the defendants, as the lessors, entered into a two-year lease agreement to

lease a townhouse located at 1816 South Indiana Avenue in Chicago. The lease agreement stated

that it was “for a private dwelling” and included a copy of the RLTO. The named lessee was

CMW and John, CMW’s sole shareholder, was a guarantor. Although Kimberlee paid the

$6,375 security deposit with a personal check (the 2009 security deposit), the lease agreement

stated that “[l]essee has deposited with [l]essor the security deposit” and that, upon termination

of the lease agreement, the security deposit “shall be returned to [l]essee, including interest[ ]

***.” In October 2010, CMW fell behind on its rent payments due under the lease. On

November 12, 2010, John sent a text message to Galina, stating that she could deduct October’s

rent from the 2009 security deposit and that he was “not concerned with earning interest on the

deposit.”

¶4     The lease agreement was renewed for another two-year term beginning in June 2011.

The renewal lease agreement listed both CMW and John as tenants and required an additional

security deposit of $6,757.50, which CMW paid (the 2011 supplemental security deposit), for a

total security deposit of $13,132.50 (the combined security deposit). In May 2013, at the end of



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the two-year renewal lease term, the townhouse was vacated, but the defendants refused to return

the combined security deposit.

¶5     On November 14, 2013, the Ovniks filed the instant action seeking to recover the

combined security deposit plus penalties, interest, attorney fees, and costs under sections 5-12-

080(f)(1) and 5-12-180 of the RLTO (Chicago Municipal Code §§ 5-12-080(f)(1) (amended July

28, 2010), 5-12-180 (amended Nov. 6, 1991)).

¶6     On August 11, 2014, the defendants filed a motion pursuant to section 2-619 of the Code

to dismiss that portion of the plaintiffs’ complaint seeking interest, penalties, attorney fees, and

costs, alleging that John waived the plaintiffs’ right to “any interest” on the combined security

deposit. In her affidavit filed in support of the defendants’ motion, Galina attested that she did

not pay interest on the security deposit due to the text message she received from John on

November 12, 2010. The Ovniks filed a response and attached an affidavit from John, who

claimed that Galina offered to return the combined security deposit with interest if he and

Kimberlee signed a release agreement when they vacated the townhouse. The circuit court

denied the defendants’ motion to dismiss, finding that the plaintiffs could not, as a matter of law,

waive their right to interest and were, therefore, not estopped from raising a claim for interest.

¶7     A three-count second amended complaint was subsequently filed by John, Kimberlee,

and CMW, alleging that the defendants: (1) failed to return the combined security deposit (count

I); failed to pay interest on the security deposit from June 1, 2011, to May 31, 2012 (count II);

and failed to pay interest on the security deposit from June 1, 2012, to May 29, 2013 (count III).

The same attorney represented both CMW and the Ovniks.

¶8     On April 20, 2015, the defendants filed a motion to dismiss the second amended

complaint pursuant to section 2-619 of the Code, arguing that the RLTO does not apply to



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corporate entities such as CMW, and the plaintiffs, therefore, lacked standing to bring a claim

under the RLTO. They asserted that the Ovniks were not parties to the lease agreements and that

it was CMW that paid both security deposits. The defendants supported their motion with copies

of CMW’s rent checks.

¶9       On June 3, 2015, the circuit court granted the defendants’ motion in part. Although the

circuit court held that the RLTO applied to all three plaintiffs, it, nevertheless, dismissed the

Ovniks as party-plaintiffs for lack of standing based upon its finding that they had not paid any

security deposit. The circuit court denied the motion as to CMW.

¶ 10     On June 10, 2015, the defendants filed their answer to the second amended complaint

along with their affirmative defenses and a four-count counterclaim.           In their affirmative

defenses, the defendants again asserted that the RLTO did not apply to corporate lessees and

that John had waived interest on the security deposit in his November 12, 2010, text message.

¶ 11     On July 2, 2015, the Ovniks filed a motion to reconsider the circuit court’s order

dismissing them as plaintiffs. They argued that, contrary to the court’s factual determination,

Kimberlee had paid the 2009 security deposit. In support of their motion was Kimberlee’s

affidavit and a copy of a check from her bank account in the amount of $6,375, payable to

Vadim.

¶ 12     On July 16, 2015, before the circuit court ruled on the Ovniks’ motion to reconsider, the

matter proceeded to mandatory arbitration on CMW’s claims against the defendants. In its

Statement of the Case filed in the arbitration proceeding, CMW stated that it sought “the amount

of the security deposit ($13,132[.]50),” plus penalties, interest, and attorneys fees, and it listed

Kimberlee and John as witnesses. On July 20, 2015, following the arbitration hearing, the




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arbitrator awarded CMW a total of $21,187.86, but did not state how the award was calculated.

None of the parties moved to reject the arbitrator’s award.

¶ 13     On September 28, 2015, the circuit court granted in part the Ovniks’ motion to reconsider

its June 3, 2015, order dismissing them as party-plaintiffs. Specifically, the circuit court vacated

its order as to Kimberlee, but did not vacate its order as to John.

¶ 14     On September 29, 2015, the circuit court entered: a $21,187.86 judgment in favor of

CMW on the arbitrator’s award against Galina and Vadim, jointly and severally; and a judgment

in favor of the Ovniks and CMW on the defendants’ counterclaims. The order states that, as to

CMW and John, it “is a final order and there is no reason for delaying enforcement, appeal or

both.”

¶ 15     On October 13, 2015, the defendants filed a section 2-619 motion to dismiss, arguing,

inter alia, that Kimberlee's claim based upon their failure to return the 2009 security deposit or

pay interest thereon was barred by the doctrines of res judicata and collateral estoppel. The

circuit court denied the defendants’ motion, finding that “[t]he amount of [the arbitrator’s] award

shows he did not *** enter” an award as to the 2009 security deposit.

¶ 16     On April 28, 2016, Kimberlee moved for summary judgment on her individual claims.

She asserted that “judgment has already been entered in favor of CMW and against [the

defendants] with respect to one of the two security deposits,” and that the only remaining issue

was the defendants’ failure to return the security deposit which she posted in 2009, along with

interest thereon from 2012 and 2013.

¶ 17     On June 15, 2016, the defendants filed their response in opposition to Kimberlee’s

motion for summary judgment, asserting that she was in privity with CMW, and as a




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consequence of the judgment in favor of CMW on the arbitration award, her claims based upon

the 2009 security deposit are barred under the doctrine of res judicata.

¶ 18   On July 6, 2016, the circuit court granted summary judgment in favor of Kimberlee and

against the defendants in the sum of $19,125 for the 2009 security deposit and penalties under

the RLTO. On October 5, 2016, the circuit court granted Kimberlee an additional $25,200 for

attorney fees, costs, and interest. The circuit court denied the defendants’ post-judgment motions

on November 3, 2016, and this appeal followed.

¶ 19   The defendants argue initially that the circuit court erred by denying, in whole or in part,

the section 2-619 motions to dismiss which they filed on August 11, 2014, April 20, 2015, and

October 13, 2015. However, we need not address the merits of the defendants’ arguments as the

denial of a section 2-619 motion to dismiss is not generally reviewable on appeal as any error in

the denial of the motion merges into the final judgment, which in this case was the summary

judgment entered in favor of Kimberlee, and it is from that final judgment that an appeal is

taken. In re Marriage of Sorokin, 2017 IL App (2d) 160885, ¶ 22; In re J.M., 245 Ill. App. 3d

909, 919-20 (1993); Paulson v. Suson, 97 Ill. App. 3d 326, 328 (1981).

¶ 20   Section 2-619 of the Code affords a defendant a means of obtaining a summary

disposition of an action based upon issues of law or uncontroverted facts establishing certain

enumerated defenses. In this regard, a section 2-619 motion is analogous to a motion for

summary judgment. In re J.M., 245 Ill. App. 3d at 919-20; Paulson, 97 Ill. App. 3d at 328. The

supreme court has held that any error in the denial of a motion for summary judgment ordinarily

merges into the final judgment (In re Estate of Funk, 221 Ill. 2d 30, 85 (2006); Belleville Toyota,

Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355 (2002)), and the same is true of any




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error in the denial of a section 2-619 motion. In re Marriage of Sorokin, 2017 IL App (2d)

160885, ¶ 22; In re J.M., 245 Ill. App. 3d at 919-20; Paulson, 97 Ill. App. 3d at 328.

¶ 21   We are not unmindful that, in CitiMortgage, Inc. v. Hoeft, 2015 IL App (1st) 150459, a

panel of this court considered an appeal from the denial of a section 2-619 motion to dismiss in

the context of an appeal filed following a final judgment in a mortgage foreclosure action. After

recognizing that the denial of a motion to dismiss is not a final and appealable order, the court in

CitiMortgage, nevertheless, concluded that it had jurisdiction to review the trial court’s order

denying the defendant’s section 2-619 motion, reasoning that the order was a procedural step

toward the final judgment confirming the sale after foreclosure. Id., ¶ 8. However, we decline

to follow the CitiMortgage court’s determination that an order denying a section 2-619 motion to

dismiss is appealable following the entry of a final order terminating the litigation in which it

was entered for three reasons. First, contrary to the court’s analysis, the issue in CitiMortgage

was not one of jurisdiction; rather, it was one of merger. The defendants in CitiMortgage did not

attempt to appeal immediately from the interlocutory order denying their section 2-619 motion as

did the defendant in Cabinet Service Tile, Inc. v. Schroeder, 255 Ill. App. 3d 865 (1993), a case

relied upon by the court in CitiMortgage. The court in Cabinet Service Tile found that it lacked

jurisdiction to entertain the appeal because it was brought directly from the denial of a section 2-

619 motion; a non-final, interlocutory order. Id. at 869. When, as in this case, a defendant

attempts to appeal from an order denying a section 2-619 motion in the context of an appeal from

a final order disposing of the litigation, this court will not review the order denying the section 2-

619 motion, not because we lack jurisdiction to hear the appeal, but because the order merges

into the final judgment from which the appeal was taken. See In re Marriage of Sorokin, 2017 IL

App (2d) 160885, ¶ 22; In re J.M., 245 Ill. App. 3d at 919-20; Paulson, 97 Ill. App. 3d at 328.



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Second, the court in CitiMortgage relied upon the holding in Knapp v. Bulun, 392 Ill. App. 3d

1018 (2009), in support of the proposition that an appeal from a final judgment draws into issue

all previous interlocutory orders that produced the final judgment. Knapp, however, did not

involve an appeal from the denial of a motion to dismiss but, rather, from an order vacating an

order which granted the plaintiff leave to file an amended complaint. Id. at 1023. The vacating

of the order which granted the plaintiffs in Knapp leave to file an amended complaint was a

procedural step in the progression leading to the order terminating the status of a doctor and his

corporation as respondents in discovery. Id. In contrast, the denial of the section 2-619 motion

in CitiMortgage was not a procedural step in the progression leading to the order confirming the

foreclosure sale. Third, the CitiMortgage court’s review of an order denying a section 2-619

motion following the entry of the final order terminating the litigation is contrary to the weight of

authority on the issue. See In re Marriage of Sorokin, 2017 IL App (2d) 160885, ¶ 22; In re

J.M., 245 Ill. App. 3d at 919-20; Paulson, 97 Ill. App. 3d at 328.

¶ 22   The defendants’ only assignment of error which is properly before this court is their

argument that the trial court erred in entering summary judgment in favor of Kimberlee. As to

that issue, the defendants contend that Kimberlee’s claims based upon the 2009 security deposit

are barred under the doctrine of res judicata.      Although we are not called upon to decide the

question of whether Kimberlee’s claims are barred by the doctrine of res judicata, we do find

that a genuine issue of material fact exists on the issue.

¶ 23   “The purpose of summary judgment is not to try a question of fact, but to determine

whether a genuine issue of material fact exists.” Illinois State Bar Ass'n Mutual Insurance Co. v.

Law Office of Tuzzolino and Terpinas, 2015 IL 117096, ¶ 14. Summary judgment is proper

when the pleadings, depositions, admissions, and affidavits on file show that there is no genuine



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issue of material fact and that the moving party is entitled to judgment as a matter of law. 735

ILCS 5/2-1005(c) (West 2014); 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co.,

2015 IL 118372, ¶ 20.     “Summary judgment is a drastic measure and should only be granted if

the movant’s right to judgment is clear and free from doubt.” Seymour v. Collins, 2015 IL

118432, ¶ 42. We review an order granting summary judgment de novo. 1010 Lake Shore

Ass’n, 2015 IL 118372, ¶ 20.

¶ 24   Under the doctrine of res judicata, a final judgment on the merits will bar any subsequent

actions between the same parties or their privies involving the same cause of action. Hudson v.

City of Chicago, 228 Ill. 2d 462, 467 (2008). For res judicata to apply, three conditions must be

met: “(1) a final judgment on the merits has been rendered by a court of competent jurisdiction;

(2) an identity of cause of action exists; and (3) the parties or their privies are identical in both

actions.” Id. “An adjudication is considered ‘on the merits’ when it ‘determines the parties’

respective rights and liabilities based on the facts before the court.’ ” Lelis v. Board of Trustees

of Cicero Police Pension Fund, 2013 IL App (1st) 121985, ¶ 31 (quoting Lehman v. Continental

Health Care, Ltd., 240 Ill. App. 3d 795, 802 (1992)). A cause of action, in turn, is “a single

group of facts giving the plaintiff a right to seek redress for a wrongful act or omission of the

defendant.” Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490 (1993).

¶ 25   In this case, the defendants contend, as they did before the circuit court, that res judicata

barred Kimberlee’s claims. They assert (1) that the circuit court’s judgment in favor of CMW on

the arbitrator’s award is a final judgment on the merits; (2) that Kimberlee’s claims are identical

to CMW’s; and (3) that privity exists between Kimberlee and CMW. In response, Kimberlee

argues both that she is not in privity with CMW and that the arbitrator never adjudicated any

rights to the 2009 security deposit which she paid.



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¶ 26   In considering the scope of the arbitrator’s award in this case and the judgment in favor

of CMW entered thereon, we are instructed by our supreme court’s reasoning in Cruz v.

Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271 (1997). As the supreme court

explained, an arbitrator’s award disposes of all claims for relief because the arbitration system

will function “only if defendants can rely on the arbitrator’s award as fixing their maximum

exposure to liability.” Id. at 280. In this case, CMW’s Statement of the Case filed in the

arbitration proceeding, stated that it sought “the amount of the security deposit

($13,132[.]50)[ ]***.” Here, as in Cruz, we have no reason to speculate as to what claims were

adjudicated in arbitration because the arbitrator’s award in favor of CMW disposed of “all claims

for relief,” including CMW’s claim for the 2009 security deposit. See Ill. S. Ct. R. 92(b) (eff.

Dec. 5, 2016). We believe, therefore, that, regardless of what the arbitrator said or failed to say,

the award in favor of CMW and the circuit court’s judgment thereon resolved CMW’s right to

relief based upon both the 2009 security deposit and the 2011 supplemental security deposit.

¶ 27   Turning to the second element of res judicata, we find that an identity of causes of action

exists in this case. Separate claims are considered the same cause of action for purposes of res

judicata if they arise from the same transaction, series of transactions, or group of operative

facts. See River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 311-12, 315 (1998). This is

plainly the situation in the case at bar, where CMW’s and Kimberlee’s claims for the 2009

security deposit involved precisely the same facts. Notably, Kimberlee, John and CMW filed a

single complaint, relied on the same allegations therein, and sought the same relief.           See

Torcasso, 157 Ill. 2d at 491 (causes of action are identical when the same facts are essential to

both proceedings, as indicated by the record and pleadings). CMW’s and Kimberlee’s causes of




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action based upon the defendants’ failure to return the 2009 security deposit or pay interest

thereon are identical.

¶ 28   Kimberlee argues, however, that CMW lacked standing to raise a claim for the 2009

security deposit because she paid it with a personal check. However, Kimberlee is a stranger to

the May 2009 lease; she was neither the named lessee not the guarantor. As stated earlier,

although   Kimberlee’s affidavit and cancelled check show that she paid the 2009 security

deposit, the lessee was CMW and the lease states that “[l]essee has deposited with [l]essor the

security deposit” and that, upon termination of the lease agreement, the security deposit “shall be

returned to [l]essee, including interest[ ] ***.”   Clearly a factual issue remains as to whether

Kimberlee posted the 2009 security deposit on behalf of CMW. In addition to the factual

question of whether Kimberlee posted the 2009 security deposit on behalf of CMW, there also

exists the question of whether Kimberlee was in privity with CMW for res judicata purposes.

¶ 29       We begin our analysis of the issue with the distinction between standing and privity.

“Standing” refers to whether a litigant “is entitled to have the court decide the merits of a dispute

or a particular issue” and “requires some injury in fact to a legally recognized interest.” In re

Estate of Wellman, 174 Ill. 2d 335, 344-45 (1996).           Privity, in turn, exists when parties

adequately represent the same legal interests, irrespective of their nominal identities. Oshana v.

FCL Builders, Inc., 2013 IL App (1st) 120851, ¶ 23 (citing People ex rel. Burris v. Progressive

Land Developers, Inc., 151 Ill. 2d 285, 296 (1992)). Thus, “[a] nonparty may be bound pursuant

to privity if his interests are so closely aligned to those of a party that the party is the ‘virtual

representative’ of the nonparty.” City of Chicago v. St. John’s United Church of Christ, 404 Ill.

App. 3d 505, 513 (2010). Because there is no “prevailing definition of ‘privity’ that the court

can apply to all cases[,] *** determining privity requires careful consideration of the



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circumstances of each case.” Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 403 Ill.

App. 3d 179, 190 (2010).

¶ 30   CMW was the lessee under the May 2009 lease and a co-lessee with John under the June

2011 renewal lease. Before the second amended complaint named CMW as a party-plaintiff,

Kimberlee and John sought damages based upon the defendants’ failure to return both the 2009

security deposit that was paid by Kimberlee and the 2011 supplemental security deposit paid by

CMW or pay interest on either. In their second amended complaint, Kimberlee, John and CMW

sought damages based upon the defendants’ failure to return both security deposits or pay

interest thereon. After John and Kimberlee were dismissed as party-plaintiffs, CMW persisted in

prosecuting claims based upon both the 2009 security deposit and the 2011 supplemental

security deposit, and in its Statement of the Case filed in the arbitration proceeding, stated that it

sought “the amount of the security deposit ($13,132[.]50)[ ]***.” In addition, CMW listed

Kimberlee and John as witnesses to be called at the arbitration hearing, and throughout all of the

proceedings, CMW, John and Kimberlee were represented by the same attorney. See Johnson v.

Nationwide Business Forms, Inc., 103 Ill. App. 3d 631, 635 (1981) (finding privity where the

plaintiffs were represented by the same attorneys and their causes of action “contained identical

allegations of misconduct”); Houghton v. Novak, 9 Ill. App. 3d 699, 701 (1973) (recognizing

privity between claimants who were in “a mutual relationship to the same property rights which

were the subject matter of the prior litigation”).

¶ 31     Viewing the evidentiary material contained in the record before us in its light most

favorable to the defendants (see Williams v. Manchester, 228 Ill. 2d 404, 417 (2008) (evidentiary

material in a summary judgment proceeding must be construed liberally in favor of the opponent

of the motion)), we believe that, at minimum, there exists a material issue of fact on the question



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of whether Kimberlee was in privity with CMW. As such, the defendants’ invocation of the

doctrine of res judicata as a bar to Kimberlee’s claims based upon the 2009 security deposit

should not have been resolved against them in a summary judgment proceeding.

¶ 32    Based upon the foregoing analysis, we reverse the summary judgment entered in favor

of Kimberlee and remand this matter back to the circuit court for further proceedings consistent

with the opinions expressed herein.

¶ 33   Reversed and remanded.

¶ 34   JUSTICE DELORT, specially concurring:

¶ 35   The defendants moved to dismiss the complaint pursuant to section 2-619 of the Illinois

Code of Civil Procedure. 735 ILCS 5/2-619 (West 2014). Their motion asserted that only natural

persons, rather than corporations such as Chicago Music Works, Inc., had standing to bring

claims under the Chicago Residential Landlord and Tenant Ordinance (RLTO) (Chicago

Municipal Code § 5-12-010 et seq. (amended Mar. 31, 2004)). The circuit court denied the

motion to dismiss, but the defendants nonetheless pleaded an affirmative defense raising the

same standing issue. It appears that the defendants did not raise this defense when they

responded to the plaintiffs’ summary judgment motion. In their appeal, defendants maintain that

the circuit court erred when it denied their section 2-619 motion to dismiss, because corporations

which are tenants do not have standing to raise claims under the RLTO.

¶ 36   The majority finds that the defendants cannot pursue this claim on appeal because the

denial of a section 2-619 motion merges into the ultimate judgment. See supra ¶¶ 19-21. The

majority relies on several cases which so hold: In re Marriage of Sorokin, 2017 IL App (2d)

160885; In re J. M., 245 Ill. App. 3d 909 (1993); and Paulson v. Smith, 97 Ill. App. 3d 326




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(1981). The majority then distinguishes these cases from a case which no party cited,

CitiMortgage v. Hoeft, 2015 IL App (1st) 150549.

¶ 37   The CitiMortgage court recognized that denials of section 2-619 motions are not

normally appealable. See id. ¶ 8. And just as in this case, after the defendants’ section 2-619

motion was denied, the defendants pleaded an affirmative defense raising the same issue.

However, unlike here, the circuit court in CitiMortgage specifically struck that affirmative

defense, essentially barring the defendants from raising the issue either at trial in opposition to

the plaintiff’s motion for summary judgment. Accordingly, the CitiMortgage court determined it

should address the issue on the merits. It applied the rule that an appeal from a final judgment

order “ ‘draws into issue all previous interlocutory orders that produced the final judgment.’ ” Id.

(quoting Knapp v. Bulun, 392 Ill.App.3d 1018, 1023 (2009)).

¶ 38   The majority here takes issue with that approach. But this court has often squarely

addressed appeals from the denial of a section 2-619 motion to dismiss, after a final judgment

was entered, and resolved the propriety of the section 2-619 denial on the merits. See, e.g.,

Whetstone v. Sooter, 325 Ill. App. 3d 225, 232 (2001); Rohter v. Passarella, 246 Ill. App. 3d

860, 870 (1993). Despite the authorities cited by the majority, this court has not always honored

the rule enunciated in those cases, and our supreme court has never adopted that rule itself.

Accordingly, I must respectfully decline to join the majority’s analysis of CitiMortgage. I note,

however, that even under the majority’s analysis, the central holding of CitiMortgage, which

pertained to whether particular language in a mortgage acceleration notice is defective, is

unaffected by today’s decision.

¶ 39   Unlike the majority, I would apply the procedural progression rule and address the denial

of the section 2-619 motion on the merits. The issue presented is straightforward. The defendants



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contend that a corporation which is a tenant cannot bring claims under the RLTO. When a court

interprets an ordinance, it must “ascertain and give effect to the drafter’s intent.” Palm v. 2800

Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 48. “All other rules of statutory

construction are subordinate to this cardinal principle.” Alvarez v. Pappas, 229 Ill. 2d 217, 228

(2008). The ordinance’s language, given its plain and ordinary meaning, is the best indication of

legislative intent. Palm, 2013 IL 110505, ¶ 48.

¶ 40   The plain language of the ordinance provides an easy answer to the question defendants

raise. Section 5-12-030 (i) of the RLTO defines “tenant” as: “a person entitled by written or oral

agreement, subtenancy approved by the landlord or by sufferance, to occupy a dwelling unit to

the exclusion of others.” Chicago Municipal Code § 5-12-030 (i) (amended May. 2, 2010)

(emphasis added). “Person”, in turn, is defined in the same section as “an individual,

corporation, government, governmental subdivision or agency, business trust, estate, trust,

partnership or association or any other legal or commercial entity.” Chicago Municipal Code § 5-

12-030 (d) (amended May. 2, 2010) (emphasis added). Therefore, the defendants’ claim is

without merit.

¶ 41   Notwithstanding our difference in approach on the section 2-619 issue, I otherwise

concur with the remainder of majority’s opinion and judgment.




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