Boyer v. Buol Properties ( 2015 )

Illinois Official Reports
Appellate Court
Boyer v. Buol Properties, 2014 IL App (1st) 132780Appellate Court JESSICA BOYER, Plaintiff-Appellee, v. BUOL PROPERTIES,
Caption WERNER BUOL, and HELGA BUOL, Defendants-Appellants.
District & No. First District, Fourth Division
Docket No. 1-13-2780
Filed November 20, 2014
Held In an action arising from a dispute over the return of plaintiff’s
(Note: This syllabus security deposit on an apartment she vacated by mutual agreement
constitutes no part of the with the landlords, the trial court’s finding that the deduction for
opinion of the court but repairs that were not due to reasonable wear and tear was reversed and
has been prepared by the the cause was remanded for a determination of whether the damage
Reporter of Decisions was present when plaintiff moved in, whether plaintiff agreed to pay
for the convenience of for the return of the security deposit by certified mail, and whether
the reader.) such an agreement is permitted in view of the silence of the Chicago
Residential Landlord and Tenant Ordinance on the subject;
furthermore, the landlords’ contention that plaintiff’s cashing of the
returned security deposit and the certified mail fee resulted in an
accord and satisfaction was rejected by the appellate court based on
the absence of any evidence of a mutual intent to compromise the
claim, likewise, the appellate court rejected the landlords’ contentions
that plaintiff failed to mitigate her damages by not raising any dispute
about the amount of the returned security deposit check within the
compliance period in the absence of any indication defendants would
have returned the disputed funds and that plaintiff was equitably
estopped from filing suit after the compliance period had expired.
Decision Under Appeal from the Circuit Court of Cook County, No. 2012-
Review M1-147018; the Hon. Dennis M. McGuire, Judge, presiding.
Judgment Affirmed in part and reversed in part. Cause remanded.
Counsel on Richard M. Craig, of Law Offices of Richard M. Craig, P.C., of
Appeal Chicago, for appellants.
Mark Silverman, of Mark Silverman Law Office Ltd., of Chicago, for
appellee.
Panel JUSTICE TAYLOR delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith specially concurred, with opinion.
Justice Epstein concurred in part and dissented in part, with opinion.
OPINION
¶1 Defendants Buol Properties, LLC (Buol Properties), Helga Buol (Ms. Buol), and her son,
Werner Buol (Mr. Buol), appeal from the trial court’s judgment against them for violations of
the Chicago Residential Landlord and Tenant Ordinance (Chicago Municipal Code
§ 5-12-010 et seq.) (the Ordinance).
¶2 Plaintiff Jessica Boyer was a tenant at the subject premises. After she moved out,
defendants returned her security deposit to her via certified mail, deducting $220 for various
repairs and $3.40 for postage. Plaintiff then filed the instant suit against them, alleging, in
relevant part, that (1) defendants failed to provide her with copies of paid receipts for the
repair work in a timely fashion, as required by the Ordinance; (2) defendants were not
entitled to deduct the cost of repairs from her security deposit, since the damages at issue
were reasonable wear and tear; and (3) defendants were not entitled to deduct the cost of
postage from her security deposit.
¶3 Following a bench trial, the trial court found in plaintiff’s favor and awarded her actual
damages, statutory damages of twice her security deposit, and attorney fees, for a total of
$8,063.40. Defendants now appeal. For the reasons that follow, we affirm in part, reverse in
part, and remand.
¶4 I. BACKGROUND
¶5 In plaintiff’s amended complaint, she alleged the following. On June 7, 2011, plaintiff
and defendants entered into a written rental agreement for the subject premises. Plaintiff paid
a security deposit of $1,575 to defendants. On May 27, 2012, pursuant to the parties’ mutual
agreement, plaintiff vacated the subject premises. Plaintiff alleged that she left the apartment
in the same condition as she received it, except for reasonable wear and tear.
¶6 On July 5, 2012, defendants mailed plaintiff a check for $1,352.75 labeled “Return of
Sec. Deposit.” Included alongside the check was a page titled “Return of Security Deposit
Balance,” which stated that $1.15 in interest was added and that deductions were made in the
amount of $220 for repairs and $3.40 for postage. Also included was a page titled
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“Proposal,” which stated: “Bolek and Lolek Construction Co. shall provide all necessary
labor & specified building materials to *** [p]atch, sand, prime and paint the front hallway
and archway in the apartment on the first floor.” The page lists the “Labor & Material Cost”
as $220. On the bottom of the page there is a photocopy of an unnegotiated check, dated July
3, 2012, from Buol Properties to Bolek & Lolek, in the amount of $220. In the memo line of
the check is written the address of the subject premises.
¶7 Plaintiff alleged several violations of section 5-12-080(d) of the Ordinance, which
provides, in relevant part:
“(d) The landlord shall, within 45 days after the date that the tenant vacates the
dwelling unit ***, return to the tenant the security deposit or any balance thereof and
the required interest thereon; provided, however, that the landlord, or successor
landlord, may deduct from such security deposit or interest due thereon for the
following:
(1) Any unpaid rent which has not been validly withheld or deducted pursuant
to state or federal law or local ordinance; and
(2) A reasonable amount necessary to repair any damage caused to the
premises by the tenant or any person under the tenant’s control or on the premises
with the tenant’s consent, reasonable wear and tear excluded. In case of such
damage, the landlord shall deliver or mail to the last known address of the tenant
within 30 days an itemized statement of the damages allegedly caused to the
premises and the estimated or actual cost for repairing or replacing each item on
that statement, attaching copies of the paid receipts for the repair or replacement.
If estimated cost is given, the landlord shall furnish the tenant with copies of paid
receipts or a certification of actual costs of repairs of damage if the work was
performed by the landlord’s employees within 30 days from the date the statement
showing estimated cost was furnished to the tenant.” Chicago Municipal Code
§ 5-12-080(d) (amended July 28, 2010).
Plaintiff alleged the following violations of the Ordinance. First, she stated that defendants
failed to provide her with an itemized statement of damages within 30 days of her vacating
the subject premises, and they also failed to provide her with copies of paid receipts or a
certification of actual costs for the repairs performed. Second, she stated that defendants
failed to return her security deposit within 45 days of her vacating the subject premises.
Third, she stated that defendants’ deductions were improper, insofar as the damage at issue
was reasonable wear and tear.
¶8 The case proceeded to a bench trial. Plaintiff was the sole witness on her own behalf.
Plaintiff testified that she entered into a rental agreement with Ms. Buol for the subject
property from July 1, 2011, to June 30, 2012. She paid a security deposit of $1,575. In May
2012, plaintiff contacted Ms. Buol and requested that she be allowed to terminate her lease
early. Ms. Buol agreed to allow her to terminate the lease on May 31, 2012, because Ms.
Buol had another tenant lined up for the property.
¶9 Plaintiff testified that she moved out on May 27, 2012. After she moved out, she received
a phone call from the Buols informing her that there was damage to the apartment, and she
requested a walkthrough of the apartment to see what the damage was. The walkthrough
occurred a few days later, on May 29, 2012. Mr. Buol and Ms. Buol’s husband Peter were
present with the plaintiff. At the walkthrough, the Buols pointed out a dent in the entrance
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archway and some marks on the left side of the hallway. Plaintiff testified that those
problems were already present when she moved into the apartment. Plaintiff’s counsel asked
her whether she told Mr. Buol that she was taking responsibility for anything in the
apartment. Plaintiff answered, “No. *** Werner offered for me to look into if I wanted to fix
it myself, and I said I will look into that, and then I could not get ahold of them again.”
Plaintiff additionally denied telling any of the defendants to send her anything by certified
mail.
¶ 10 At some time after the walkthrough, around May 29 or 30, plaintiff testified that she
attempted to call Mr. Buol. Ms. Buol answered the phone. According to plaintiff, Ms. Buol
had no idea that there was damage to the apartment. “[S]he hung up the phone on me and I
was unable to reach any of the Buols again,” plaintiff said. Plaintiff also testified that she
never did repair any of the damage to the apartment, because she “could not get ahold of
anybody.”
¶ 11 Plaintiff stated that on June 13, 2012, she sent defendants a letter in which she mentioned
that Mr. Buol told her that she could fix the damages herself. She denied receiving a reply
letter from defendants that was sent on June 17, 2012. She stated that the first and only letter
she received from the defendants was the July 5, 2012, letter that was attached to her
complaint. As noted earlier, that letter included a check for $1,352.75. On cross-examination,
plaintiff stated that she deposited that check. Additionally, at no time between receiving the
letter and July 20, 2012, did she dispute any amounts listed in that letter.
¶ 12 After plaintiff concluded her testimony, plaintiff rested. Defendants then moved for
judgment in their favor, arguing that, by cashing the check without disputing the charges
imposed by the defendants, plaintiff had accepted those charges under the doctrine of accord
and satisfaction. The trial court denied defendants’ motion.
¶ 13 Defendants called both Ms. Buol and Mr. Buol as witnesses. Ms. Buol testified that the
original term of plaintiff’s lease was through the end of June 2012. Plaintiff requested
permission to leave early, and Ms. Buol found a new tenant for the balance of the lease. The
new tenancy was to begin on June 1, 2012, and plaintiff was made aware of this.
¶ 14 Near the end of May 2012, Ms. Buol observed damage to the apartment; in particular, the
entrance archway was “pushed in.” “I’m not a carpenter,” Ms. Buol said, “but the damage
was pretty serious.” Ms. Buol testified that the damage was “absolutely not” present prior to
plaintiff’s tenancy, because the apartment was newly built and the entranceway was newly
decorated before she moved in. On cross-examination, she stated that she did not have any
photographs of what the entranceway looked like before plaintiff’s tenancy.
¶ 15 Ms. Buol stated that she was not present at the walkthrough with plaintiff and Mr. Buol,
and she did not personally discuss the sending of the security deposit with plaintiff. However,
after the walkthrough, Mr. Buol told her to send plaintiff’s security deposit to her via
certified mail. Accordingly, Ms. Buol did so. Ms. Buol testified that she has been a landlord
for 40 years, and she “[v]ery seldom” returns security deposits by certified mail; she only
does so when a tenant requests it.
¶ 16 Ms. Buol also stated that she received plaintiff’s June 13, 2012, letter which referenced
plaintiff’s earlier conversation with Mr. Buol about fixing the damages herself. When she
received that letter, she arranged for Bolek & Lolek to prepare a proposal for repairing the
damage. She then sent plaintiff a two-page letter in reply. A copy of the letter is included in
the record as one of defendant’s exhibits, along with a receipt from the post office indicating
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that the letter was sent by priority mail on June 17, 2012. On the first page of the June 17
letter, Ms. Buol states, “I am enclosing the proposal from our contractor. For insurance
purposes, we can only use licensed contractors. As soon as the work is completed, I’ll return
the balance of your secrity [sic] deposit.” The second page of the letter is entitled “Proposal”
and states that Bolek & Lolek “shall provide all necessary labor & specified building
materials to *** [p]atch, sand, prime and paint the front hallway and archway in the
apartment on the first floor” for $220. (The text on this page is identical to the text on the
second page of defendants’ July 5, 2012, letter to plaintiff; however, there is no photocopied
check on the page.)
¶ 17 Ms. Buol testified that she had hired Bolek & Lolek at least 30 times in the past, and on
those occasions, her cashed check served as her paid receipt. She explained that her bank
provided her with a copy of the cashed check that was signed by Bolek & Lolek. On
cross-examination, she stated that she did not send that copy to plaintiff: “I mean, she didn’t
ask for it.”
¶ 18 Finally, Ms. Buol also testified that when she sent plaintiff her security deposit, plaintiff
cashed the check without ever indicating to Ms. Buol that the amount was insufficient.
¶ 19 Mr. Buol was the second witness for the defendants. He testified that the walkthrough
occurred on May 27, 2012, and the parties present were himself, plaintiff, and plaintiff’s
mother. Mr. Buol’s father was in the yard but not in the house. During the walkthrough, Mr.
Buol noticed damage to the apartment: the archway had “a metal strip type of drywall” that
was pushed in approximately an inch deep, with cracks surrounding the indentation. Mr.
Buol pointed out the damage to plaintiff. Plaintiff asked whether she could repair it herself.
Mr. Buol told her that she could, but she had to do it before the new tenant moved in. In fact,
plaintiff never repaired the damage and never contacted him again after the walkthrough.
¶ 20 On cross-examination, Mr. Buol stated that he did not have any photographs of the
damage. On redirect, he stated that one reason for his lack of photographs was that plaintiff
took responsibility for the damage and said that she would make sure that it was fixed.
¶ 21 Mr. Buol also testified that plaintiff requested that her security deposit be returned by
certified mail. Mr. Buol thought that this request was “kind of unusual” and informed the
plaintiff that it would be at her expense, since “that’s not how we usually get it done.” He
explained that he was familiar with how his parents typically return security deposits, and
they never return them by certified mail unless a tenant requests it. Per plaintiff’s
instructions, he told Ms. Buol that she needed to send plaintiff’s security deposit by certified
mail.
¶ 22 Plaintiff then took the stand a second time as a rebuttal witness on her own behalf. She
stated that her mother, not her, was the one who was taking photographs at the walkthrough.
She also reiterated that she did not take any responsibility for the damages. She said that she
asked if she could do the work, stating, “I knew it would be expensive for them to hire their
own person and I would rather just do it myself.”
¶ 23 During closing arguments, counsel for plaintiff argued, among other things, that the
damage to plaintiff’s apartment was merely reasonable wear and tear:
“There’s no pictures and we had two different walkthroughs. *** And all we have
from Bolek & Lolek, which is what the defendants rely on, is something that doesn’t
say fix dents, fix dings, fix scuffs, fix anything the defendants testified about. It
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doesn’t say fix anything. It doesn’t say there’s any problem. It says one thing, patch
and prime. Painting is always done in an apartment. That’s something you might just
do as maintenance to maintain your place, paint it, wear and tear.”
¶ 24 At the conclusion of the trial, the court found that the defendants never sent a paid receipt
for the damage repairs to plaintiff, notwithstanding the “Proposal” contained in defendants’
July 5, 2012, letter to plaintiff. The court also found that deducting the cost of postage from a
tenant’s security deposit was not authorized under the Ordinance. Finally, the court found
that the damage to the apartment (which it referred to as “the painting and patching”) was
reasonable wear and tear. Accordingly, the court found defendants to be in violation of the
Ordinance. The court entered judgment for plaintiff in the amount of $3,373.40, consisting of
plaintiff’s actual damages (the $223.40 deducted from her security deposit) plus twice the
amount of her security deposit. See Chicago Municipal Code § 5-12-080(f)(1) (added July
28, 2010) (if a landlord fails to comply with subsection (d), the tenant is entitled to statutory
damages of twice her security deposit). The court subsequently awarded attorney fees to
plaintiff (see Chicago Municipal Code § 5-12-180 (added Nov. 6, 1991) (prevailing plaintiff
in an action under the Ordinance is entitled to costs and fees)), bringing the total judgment
against defendants to $8,063.40. Defendants now appeal.
¶ 25 II. ANALYSIS
¶ 26 On appeal, defendants raise seven contentions of error. Their first three contentions of
error deal with the individual violations of the Ordinance alleged by the plaintiff. First,
defendants argue that the damage to the apartment was not reasonable wear and tear, and,
therefore, they were entitled to deduct it from plaintiff’s security deposit. Second, they argue
that they were entitled to deduct the cost of postage from plaintiff’s security deposit where
plaintiff specifically asked for it to be sent by certified mail and agreed to pay the cost. Third,
they challenge the trial court’s finding that the photocopy of the check to Bolek & Lolek,
sent by defendants to plaintiff in their letter dated July 5, 2012, did not qualify as a paid
receipt.
¶ 27 In defendants’ remaining four contentions of error, defendants either contend that
plaintiff failed to make a prima facie case under the Ordinance or they contend that any
noncompliance by the defendants should be excused. First, defendants argue that plaintiff
failed to prove that defendants were her landlords, as is required for recovery under the
Ordinance. Second, they argue that, when plaintiff deposited the check from defendants
without disputing its amount, that action constituted acceptance of that amount under the
doctrine of accord and satisfaction. Third, they argue that by failing to raise any inquiry
about the amount of the check, plaintiff failed to mitigate her damages. Fourth, they argue
that plaintiff should be estopped from recovering under the Ordinance where she cashed the
security deposit check and then deliberately “waited in the weeds” until the statutory
compliance period had expired before raising any objection to defendants’ actions. We
consider these contentions in turn.
¶ 28 A. Reasonable Wear and Tear
¶ 29 We begin by considering defendants’ contention that the trial court erred in finding that
the damage to the apartment was “reasonable wear and tear” where all three witnesses at trial
testified to the contrary. We defer to the trial court’s findings of fact unless they are against
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the manifest weight of the evidence, meaning that an opposite conclusion is apparent or the
finding appears to be unreasonable, arbitrary, or not based on evidence. Goldberg v. Astor
Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶ 60.
¶ 30 As noted above, the Ordinance provides that landlords may deduct the cost of repairs
from a tenant’s security deposit, except for “reasonable wear and tear.” Chicago Municipal
Code § 5-12-080(d) (amended July 28, 2010). The Ordinance does not explicitly define
“reasonable wear and tear,” nor has our research disclosed any case law in Illinois that
defines the phrase. However, the municipal court of appeals for the District of Columbia has
defined the equivalent phrase “ordinary wear and tear” in the context of a lease requiring the
tenant to surrender the premises in the condition they were received except for ordinary wear
and tear. Tirrell v. Osborn, 55 A.2d 725, 727 (D.C. 1947). The court in that case stated:
“[Ordinary wear and tear] has been defined as the wear which property undergoes
when the tenant does nothing more than to come and [go] and perform the acts
usually incident to an ordinary way of life. Stated otherwise ordinary wear and tear is
the depreciation which occurs when the tenant does nothing inconsistent with the
usual use and omits no acts which it is usual for a tenant to perform.” Id. (citing
Taylor v. Campbell, 108 N.Y.S. 399, 401 (N.Y. App. Div. 1908)).
¶ 31 With this definition in mind, we proceed to consider the evidence presented at trial
regarding the damage to the apartment. As pointed out by defendants, all three witnesses
testified that the entrance archway was dented. Mr. Buol stated that the drywall in the
archway was pushed in approximately an inch deep, with cracks surrounding the indentation.
Ms. Buol also testified that the entrance archway was “pushed in,” and she opined that the
damage was “pretty serious.” Finally, plaintiff admitted that there was “a dent in the archway
when you first enter,” as well as marks on the hallway. She stated that she asked to repair the
damage herself “[b]ecause I knew it would be expensive for them to hire their own person
and I would rather just do it myself.”
¶ 32 This witness testimony is further corroborated by the “Proposal” that defendants sent to
plaintiff, which stated that contractors were being hired to “[p]atch, sand, prime and paint the
front hallway and archway in the apartment on the first floor.” During closing arguments,
counsel for plaintiff argued that this proposal “doesn’t say fix dents, fix dings, fix scuffs, fix
anything the defendants testified about. It doesn’t say fix anything. It doesn’t say there’s any
problem.” We disagree. The proposal clearly stated that the contractors were going to
“[p]atch” the front hallway and archway, which indicates that there was some kind of hole or
indentation that needed to be filled in.
¶ 33 Thus, it is uncontroverted that there was a dent in the entrance archway of plaintiff’s
apartment. It is further uncontroverted that this damage was “serious” (to quote Ms. Buol)
and would be “expensive” to fix (to quote the plaintiff). In light of this evidence, the trial
court’s finding that the damage to the apartment was merely “reasonable wear and tear” was
against the manifest weight of the evidence. See Wade v. City of North Chicago Police
Pension Board, 226 Ill. 2d 485, 504 (2007) (a finding is against the manifest weight of the
evidence when the opposite conclusion is clearly evident). A serious, expensive-to-fix dent in
an archway is more damage than would normally occur when a tenant simply comes and
goes and performs the acts usually incident to an ordinary way of life. See Tirrell, 55 A.2d at
727; Taylor, 108 N.Y.S. at 401.
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¶ 34 Plaintiff argues that even if the damages to the apartment did not constitute reasonable
wear and tear, she is still not responsible for them, because they were already present when
she moved into the apartment. This was a contested issue at trial: although plaintiff testified
that the damages to the apartment “were there before [her],” Ms. Buol testified that the
damage was “absolutely not” present prior to plaintiff’s tenancy. The trial court did not reach
the issue of whether the damage was preexisting, since it erroneously found it to be
reasonable wear and tear.
¶ 35 We therefore remand for the trial court to determine whether the damage to the apartment
was present at the time that plaintiff moved into the apartment. If so, then its judgment with
regard to the $220 should be undisturbed. However, if the court finds that the damage
occurred during the tenancy, then defendants were entitled to deduct the cost of repairs from
plaintiff’s security deposit (Chicago Municipal Code § 5-12-080(d) (amended July 28,
2010)), and plaintiff’s judgment should be reduced by $220.
¶ 36 B. Deduction of Postage
¶ 37 Defendants next argue that they were entitled to deduct the cost of postage from
plaintiff’s security deposit, since plaintiff explicitly asked for the security deposit to be sent
by certified mail and agreed to pay the associated costs. Plaintiff argues that the Ordinance
does not permit such deductions even at a tenant’s request. Plaintiff further argues that,
regardless of this court’s interpretation of the Ordinance, she expressly denied requesting
certified mail, and the trial court was entitled to believe that denial.
¶ 38 Deductions from security deposits are covered in section 5-12-080(d) of the Ordinance,
which provides, in relevant part:
“(d) The landlord shall, within 45 days after the date that the tenant vacates the
dwelling unit ***, return to the tenant the security deposit or any balance thereof and
the required interest thereon; provided, however, that the landlord, or successor
landlord, may deduct from such security deposit or interest due thereon for the
following:
(1) Any unpaid rent which has not been validly withheld or deducted pursuant
to state or federal law or local ordinance; and
(2) A reasonable amount necessary to repair any damage caused to the
premises by the tenant ***.” Chicago Municipal Code § 5-12-080(d) (amended
July 28, 2010).
In interpreting this language, we are mindful that the fundamental goal of statutory
interpretation is to ascertain and give effect to the intent of the legislature. Landis v. Marc
Realty, L.L.C., 235 Ill. 2d 1, 6 (2009). The best indicator of legislative intent is the language
of the statute, which must be accorded its plain and ordinary meaning. Id.; People v. Trainor,
196 Ill. 2d 318, 332 (2001). Municipal ordinances are interpreted using the same rules of
statutory interpretation. In re Application of the County Collector, 132 Ill. 2d 64, 72 (1989).
¶ 39 Plaintiff argues that, under section 5-12-080(d), the two enumerated deductions listed
above are the only deductions that a landlord is allowed to take from a tenant’s security
deposit. In support, plaintiff cites Nadhir v. Salomon, 2011 IL App (1st) 110851. Nadhir
deals with the Evanston Residential Landlord and Tenant Ordinance (Evanston Municipal
Code § 5-3-1 et seq. (eff. Feb. 2008)) (ERLTO), which is similar to the Ordinance in that it
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authorizes only a handful of security deposit deductions. Nadhir, 2011 IL App (1st) 110851,
¶ 28. In Nadhir, the subject lease provided that the tenant, Nadhir, would be responsible for
the gas bill. Id. ¶ 9. When Nadhir vacated the premises without having paid the gas bill, the
landlords deducted it from his security deposit. Id. ¶¶ 9-10. This court held that even though
Nadhir had breached his obligation under the lease, the landlords were not entitled to deduct
the cost of his gas bill from his security deposit, because it was not one of the enumerated
security deposit deductions authorized under the ERLTO. Id. ¶ 33.
¶ 40 Under the plain language of the Ordinance, as well as the reasoning in Nadhir, it seems
clear that, in the absence of an agreement between the parties, a landlord may not unilaterally
deduct postage from a tenant’s security deposit. However, in this case, defendants allege that
the deduction was not unilateral; rather, plaintiff explicitly requested that her security deposit
be returned by certified mail and agreed to pay the cost. The Ordinance is entirely silent as to
whether parties may make such agreements. Nor does Nadhir purport to speak on this issue.
¶ 41 In this case, the existence of an agreement regarding postage was a disputed issue at trial.
Mr. Buol testified that plaintiff asked for her security deposit to be sent by certified mail at
her expense. Plaintiff, on the other hand, denied telling defendants to send her anything by
certified mail. The trial court never made any findings on this issue, insofar as it simply
found that postage was not an enumerated deduction under section 5-12-080(d) of the
Ordinance.
¶ 42 Accordingly, we remand for the trial court to make a factual finding as to whether
plaintiff actually agreed that her security deposit would be returned by certified mail at her
expense. If it finds that no such agreement existed, then its judgment with regard to the $3.40
should remain undisturbed. If, however, it finds that there was such an agreement, then it
should decide whether such an agreement between landlord and tenant is permissible under
the specific facts of this case.
¶ 43 C. Whether the Photocopied Check Was a “Paid Receipt”
¶ 44 Defendants next argue that the trial court erred when it found that the photocopied check
to Bolek & Lolek included in defendants’ July 5, 2012, letter did not constitute a paid receipt
under the Ordinance.
¶ 45 Section 5-12-080(d) of the Ordinance provides that, where a landlord deducts money
from a tenant’s security deposit to pay for repairs,
“the landlord shall deliver or mail to the last known address of the tenant within 30
days an itemized statement of the damages allegedly caused to the premises and the
estimated or actual cost for repairing or replacing each item on that statement,
attaching copies of the paid receipts for the repair or replacement. If estimated cost is
given, the landlord shall furnish the tenant with copies of paid receipts *** within 30
days from the date the statement showing estimated cost was furnished to the tenant.”
(Emphasis added.) Chicago Municipal Code § 5-12-080(d) (amended July 28, 2010).
In the present case, as has been discussed earlier, defendants mailed plaintiff her security
deposit check on July 5, 2012. Included alongside the check was a one-page “Proposal”
which stated that Bolek & Lolek would perform the necessary repairs for $220. On the
bottom of the page was a photocopy of an unnegotiated check for $220, from the account of
Buol Properties, LLC, signed by Ms. Buol and made out to Bolek & Lolek. The check was
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dated July 3, 2012, and the memo line of the check contains the address of the subject
premises. Plaintiff argues that this photocopied check is insufficient to constitute a paid
receipt. We agree.
¶ 46 We note initially that the Ordinance does not define the term “receipt,” nor do the parties
cite any law as to its meaning. However, Black’s Law Dictionary defines a receipt as “[a]
written acknowledgment that something has been received.” Black’s Law Dictionary 1382
(9th ed. 2009); see also Merriam-Webster’s New Collegiate Dictionary 714 (7th ed. 1969)
(defining a “receipt” as “a writing acknowledging the receiving of goods or money”). Thus,
in order to qualify as a receipt, the documentation provided by defendants would have to
show that the $220 in question was actually received by Bolek & Lolek. This requirement is
not satisfied by a photocopy of a check that has not been negotiated by its payee. As plaintiff
points out in her brief, a photocopy of an unnegotiated check can easily be produced without
the check being given to anyone, just like a picture of cash.
¶ 47 Accordingly, we affirm the trial court’s finding that defendants failed to furnish plaintiff
with copies of paid receipts for the work done to her former apartment, in violation of section
5-12-080(d) of the Ordinance.
¶ 48 D. Whether Defendants Were Actually Plaintiff’s Landlords
¶ 49 Defendants’ next contention is that the trial court should have entered judgment for
defendants where plaintiff failed to prove that defendants were her landlords, as is required
for recovery under the Ordinance.
¶ 50 The Ordinance defines a “landlord” as “the owner, agent, lessor or sublessor, or the
successor in interest of any of them, of a dwelling unit or the building of which it is part.”
Chicago Municipal Code § 5-12-030(b) (amended Nov. 6, 1991). At the close of trial, the
court entered a factual finding that defendants were, in fact, plaintiff’s landlords. We review
the court’s finding under the manifest weight of the evidence standard. Goldberg, 2012 IL
App (1st) 110620, ¶ 60.
¶ 51 In this case, there are three defendants: Ms. Buol, Mr. Buol (who is not Ms. Buol’s
husband, but her adult son), and Buol Properties. It is readily apparent from the trial record
that Ms. Buol was plaintiff’s landlord. During trial, plaintiff’s counsel asked her, “And did
you enter into a rental agreement for this property that we’re talking about at 1829 West
Melrose in Chicago with Ms. Buol?” to which plaintiff replied, “Yes.” Subsequently,
plaintiff explicitly referred to Ms. Buol as her landlord:
“COUNSEL FOR PLAINTIFF: And there was a discussion with the landlord
about moving out early and what would happen?
PLAINTIFF: Yes.
Q. Can you tell us about when that was and with whom it was?
A. It was with Helga Buol.”
This testimony was corroborated by the testimony of Ms. Buol, who stated that she had been
a landlord for 40 years and that plaintiff was “our tenant.” Finally, during closing arguments,
counsel for defendants admitted that Ms. Buol was the landlord when he referred to her as “a
landlord that takes all of this very, very seriously.”
¶ 52 As for Mr. Buol, defendants assert that he was merely an “unfortunate volunteer who
manned the walkthrough” and had no further involvement with the plaintiff. This is belied by
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plaintiff’s exhibits, which show that Mr. Buol was one of the parties who held plaintiff’s
security deposit and accounted for the deductions therefrom. On the “Proposal” included
with plaintiff’s security deposit, the “Customer” for the repairs to plaintiff’s apartment is
listed as “Werner & Helga Buol.” Even more significantly, the actual security deposit check
is from a bank account jointly owned by Mr. Buol and Ms. Buol.
¶ 53 Finally, Buol Properties was the party that paid for the repairs to plaintiff’s apartment that
were later deducted from her security deposit. This is shown by the photocopied check to
Bolek & Lolek, which is from the account of Buol Properties and signed by Ms. Buol. Based
upon this evidence, the trial court could reasonably infer that Buol Properties was acting as
the landlord, or, at the very least, was acting as an agent of Ms. Buol in her capacity as
landlord. No alternate explanation was offered, at trial or otherwise, for why Buol Properties
would be paying for the repairs to plaintiff’s apartment. Thus, the trial court’s finding that
defendants were plaintiff’s landlords is not against the manifest weight of the evidence.
¶ 54 E. Accord and Satisfaction
¶ 55 We next consider defendants’ contention that, when plaintiff deposited defendant’s check
for $1,352.75, that act constituted the acceptance required for accord and satisfaction.
¶ 56 An accord and satisfaction is a contractual method of discharging a debt or claim by
some performance other than that which was originally due. Saichek v. Lupa, 204 Ill. 2d 127,
135-36 (2003); Koules v. Euro-American Arbitrage, Inc., 293 Ill. App. 3d 823, 829 (1998).
To constitute an accord and satisfaction, there must be (1) a bona fide dispute between the
parties as to the amount owed between them, (2) an unliquidated sum owed, (3)
consideration, (4) a shared mutual intent to compromise the claim at issue, and (5) execution
of the agreement. Saichek, 204 Ill. 2d at 135. The “accord” is the agreement between the
parties, and the “satisfaction” is its execution or performance. Fremarek v. John Hancock
Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1071 (1995). Because an accord and
satisfaction is contractual in nature, courts focus on the parties’ intent when determining
whether an accord and satisfaction has been reached and executed. Saichek, 204 Ill. 2d at 135
(citing Solomon v. American National Bank & Trust Co., 243 Ill. App. 3d 132, 134-35 (1993)
(parties’ intent is of “central importance”)). The debtor bears the burden of showing that the
creditor intended to accept the payment in full satisfaction of the claim at issue; in the
absence of such an accord, the payment only operates as a discharge of the amount paid.
Solomon, 243 Ill. App. 3d at 135.
¶ 57 In cases where there is a genuine, ongoing dispute over the amount owed under a
contract, and one party offers to settle the dispute by tendering a check that purports to be in
full satisfaction of the contract, the other party’s act of cashing the check can count as the
acceptance required for an accord. Shea, Rogal & Associates, Ltd. v. Leslie Volkswagen, Inc.,
216 Ill. App. 3d 66, 71 (1991) (“the very act of knowingly accepting and cashing or
depositing a check upon which conditional language has been added is the hallmark of an
accord and satisfaction”). This court has explained the theory behind this doctrine as follows:
“[W]here there is a bona fide dispute as to the amount due, it makes no difference that
the creditor protests or states that he does not accept the amount proffered in full
satisfaction. The creditor must either accept what is offered with the condition upon
which it is offered or refuse it. [Citations.] The acceptance of the check given in full
satisfaction of a disputed claim is an accord and satisfaction if the creditor took the
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check with notice of the condition upon which the check was tendered. [Citations.] A
creditor has no right to cash the check and thereby obtain the benefit of such offer
without its accompanying burden of compromise.” Quaintance Associates, Inc. v.
PLM, Inc., 95 Ill. App. 3d 818, 822 (1981).
¶ 58 Plaintiff argues that no accord and satisfaction occurred in this case, because there was no
evidence of a mutual intent to compromise the claim. We agree. The parties agree that, at the
time the defendants sent plaintiff the check for $1,352.75, plaintiff had not yet raised any
objections to that amount. Her objections only came later. Since there was not yet any
disagreement as to the amount due, the defendants had no reason to intend to compromise
their claim. See id. at 821 (an accord “presupposes a disagreement as to the amount due”).
¶ 59 A recap of the events in this case is instructive here. The parties agree that plaintiff
moved out of her apartment on May 27, 2012. On or around that date, she went on a
walkthrough of the apartment with Mr. Buol. Mr. Buol pointed out damage to the apartment,
and plaintiff offered to fix it herself. On June 13, 2012, plaintiff sent a letter to the Buols in
which she again mentioned the possibility of fixing the damage herself. Ms. Buol testified
that she subsequently mailed a reply letter to plaintiff on June 17, 2012, in which she
informed plaintiff that, for insurance purposes, they could only use licensed contractors, and
she proposed to have Bolek & Lolek perform the repairs for $220. Plaintiff denied ever
receiving that letter. In any event, the parties agree that the next correspondence between the
parties was on July 5, 2012, when defendants sent plaintiff a check for $1,352.75 labeled
“Return of Sec. Deposit.” Plaintiff cashed the check, but she never disputed the amount of
the check, or the listed deductions, until the filing of the instant lawsuit.
¶ 60 Under either party’s version of events, it is apparent that, at the time defendants sent
plaintiff the check, they were not aware that she disputed the amount or the deductions listed
in the attached letter. Thus, it can hardly be said that the defendants intended the check as a
compromise and settlement of a disputed claim. In the absence of such intent, there can be no
accord and satisfaction. Saichek, 204 Ill. 2d at 135.
¶ 61 Defendants nevertheless argue that the instant case is analogous to MKL Pre-Press
Electronics/MKL Computer Media Supplies, Inc. v. La Crosse Litho Supply, LLC, 361 Ill.
App. 3d 872 (2005), and Quaintance, 95 Ill. App. 3d 818, in which the court found that the
act of cashing a check constituted agreement to an accord. Both of these cases are readily
distinguishable, because in both cases, there was clearly an ongoing dispute between the
parties at the time the check at issue was tendered. Indeed, the factual difference between
these cases and the instant case helps to illustrate why the doctrine of accord and satisfaction
is inapplicable here.
¶ 62 In MKL, plaintiff was a distributor for printing systems and related equipment
manufactured by defendant. MKL, 361 Ill. App. 3d at 874. After defendant cancelled the
distribution agreement between the parties, plaintiff sent defendant a bill for repairs and
assorted services that it had performed earlier that year. Id. at 875. Defendant wrote back,
objecting to the charges and stating that defendant would not pay them. Plaintiff’s attorney
then sent defendant a demand letter for $26,453.31. Defendant responded via letter, stating,
“ ‘[W]e are sending you the final payment in the amount of $1,696.47.’ ” Id. at 875-76.
Included was a check for that amount, marked “ ‘FINAL PAYM.’ ” Id. at 876. Under these
facts, the MKL court found that plaintiff’s act of cashing that check served as acceptance of
an accord. Id. at 878. It specifically found that a shared mutual intent to compromise the
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parties’ claims could be inferred from their conduct, because, in context, defendant’s tender
of the check marked “ ‘FINAL PAYM’ ” was clearly an attempt to settle an ongoing dispute
between the parties. Id. The same cannot be said in the instant case, where no such dispute
existed until after plaintiff had already deposited the check.
¶ 63 The facts of Quaintance are similar to those of MKL. The Quaintance defendant hired the
plaintiff to recruit a qualified person for employment as defendant’s controller. Quaintance,
95 Ill. App. 3d at 819. After plaintiff’s search ended in failure, a disagreement arose as to
how much defendant owed plaintiff. Id. at 822. Plaintiff sent defendant a letter requesting
fees and expenses in the amount of $9,808.61. Defendant sent back a letter stating that it
would only pay 60% of the requested fees and further stating: “ ‘I don’t know any other way
to handle the situation but I do believe this is fair. I consider this the end of the matter but
certainly would be prepared to discuss it if you so desire.’ ” Id. Included with the letter was a
check for $6,060.48. Plaintiff accepted and cashed the check. The Quaintance court found
this to be an accord and satisfaction, stating, “There is no allegation that plaintiff did not
understand that the proffered check was offered as a compromise and settlement.” Id. at 823.
¶ 64 By contrast, in the present case, the proffered check could hardly have been a
“compromise and settlement,” insofar as the dispute between the parties had not yet arisen
and there was nothing yet to compromise or settle. The Quaintance court itself implicitly
acknowledged this divide when it stated that an accord “presupposes a disagreement as to the
amount due.” Id. at 821. Thus, the trial court did not err in holding that plaintiff’s act of
cashing the check did not constitute an accord and satisfaction.
¶ 65 F. Mitigation of Damages
¶ 66 Defendants next argue that plaintiff’s recovery should be reduced because she failed to
mitigate her damages by not raising any dispute regarding the amount of her security deposit
check within the statutory compliance period. As discussed earlier, defendants mailed
plaintiff her security deposit check on July 5, 2013. At that time, the statutory compliance
period for returning the security deposit had not yet ended. It would not end until six days
later, on July 11, 2013. Chicago Municipal Code § 5-12-080(d) (amended July 28, 2010)
(landlord must return tenant’s security deposit within 45 days after the tenant vacates the
premises). Defendants posit that, within that six-day window, plaintiff could have informed
defendants that she believed she was entitled to more money, and, if she had done so,
defendants might have chosen to return the disputed funds, thus reducing the damages
incurred by plaintiff. Defendants argue that plaintiff’s failure to take such action should be
construed as a failure to mitigate her damages.
¶ 67 Under the common-law doctrine of mitigation of damages, a plaintiff in a breach of
contract suit cannot recover losses that could have been reasonably avoided. Restatement
(Second) of Contracts § 350 (1981). It is sometimes said that a plaintiff has a “duty” to
mitigate damages, but this is not entirely accurate, because the plaintiff incurs no liability for
her failure to act. She simply cannot recover for that portion of losses which she could have
avoided. St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill. App. 3d
285, 293 (1998). In other words, where an injured party permits her loss to be unnecessarily
enhanced through her own negligence or willfulness, that increased loss will be borne by the
injured party. Id.; see Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560,
¶ 213 (injured party must exercise reasonable diligence and ordinary care in seeking to
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minimize damages). The failure to mitigate damages is an affirmative defense that must be
pleaded and proved by the defendant. Rozny v. Marnul, 43 Ill. 2d 54, 73 (1969) (rejecting
defendant’s mitigation of damages argument where defendant’s trial counsel made no effort
to plead or prove failure to mitigate).
¶ 68 Plaintiff argues that, under the specific statutory scheme set forth in the Ordinance,
failure to mitigate damages is not a defense; rather, a tenant is entitled to the full measure of
damages regardless of whether those damages were avoidable. However, we need not reach
this argument. Even if we assume, for the sake of argument, that failure to mitigate damages
is still a valid defense under the Ordinance, defendants’ claim still fails, because defendants
did not present any evidence at trial to show that the damages at issue were actually
avoidable. Defendants’ claim is premised upon the argument that, if plaintiff had disputed the
amount of her security deposit check within the statutory compliance period, defendants
might have chosen to return the disputed funds. However, none of the defendants testified at
trial that they would actually have returned the disputed funds. The trial transcript is
completely silent on this matter. Accordingly, defendants’ claim in this regard is nothing
more than speculation and conjecture. Without evidence that the damages at issue could
reasonably have been avoided, defendants’ mitigation of damages argument necessarily fails.
Toushin v. Gonsky, 77 Ill. App. 3d 508, 517 (1979) (trial court did not err in rejecting
mitigation of damages where the opportunity to mitigate damages was merely speculative);
see Rozny, 43 Ill. 2d at 73 (failure to mitigate damages is an affirmative defense that must be
pleaded and proved by defendant).
¶ 69 G. Equitable Estoppel
¶ 70 Defendants’ final contention is that plaintiff’s conduct in cashing the security deposit
check and raising no objections to its amount or the attached documentation within the
statutory compliance period should equitably estop her from now raising objections before
the court. In response, plaintiff argues that the doctrine of equitable estoppel should not apply
to cases brought under the Ordinance, because the Ordinance does not explicitly provide that
equitable estoppel is a defense. Plaintiff further argues that, in any event, the elements of
equitable estoppel are not satisfied under the facts of this case. We begin by considering this
latter argument.
¶ 71 The general principle behind equitable estoppel is that, where a person’s statements or
conduct induce a party to take or forbear from action, that person will not be allowed to deny
her words or acts to the detriment of the other party. Geddes v. Mill Creek Country Club,
Inc., 196 Ill. 2d 302, 313 (2001). The elements of equitable estoppel are as follows:
“ ‘A party claiming estoppel must demonstrate that: (1) the other person
misrepresented or concealed material facts; (2) the other person knew at the time he
or she made the representations that they were untrue; (3) the party claiming estoppel
did not know that the representations were untrue when they were made and when
that party decided to act, or not, upon the representations; (4) the other person
intended or reasonably expected that the party claiming estoppel would determine
whether to act, or not, based upon the representations; (5) the party claiming estoppel
reasonably relied upon the representations in good faith to his or her detriment; and
(6) the party claiming estoppel would be prejudiced by his or her reliance on the
representations if the other person is permitted to deny the truth thereof.’ ” Orlak v.
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Loyola University Health System, 228 Ill. 2d 1, 21-22 (2007) (quoting DeLuna v.
Burciaga, 223 Ill. 2d 49, 82-83 (2006)).
See also Vaughn v. Speaker, 126 Ill. 2d 150, 162-63 (1988). The party claiming estoppel
bears the burden of proving these elements by clear and unequivocal evidence. Geddes, 196
Ill. 2d at 314.
¶ 72 In this case, defendants claim that plaintiff is estopped from bringing suit by her silence,
which lulled the defendants into believing that the security deposit check and the attached
“receipt” were both sufficient under the Ordinance. In this vein, our supreme court has stated:
“Estoppel may arise from silence as well as words. It may arise where there is a
duty to speak and the party on whom the duty rests has an opportunity to speak, and,
knowing the circumstances, keeps silent. [Citations.] It is the duty of a person having
a right, and seeing another about to commit an act infringing upon it, to assert his
right. He cannot by his silence induce or encourage the commission of the act and
then be heard to complain.” (Internal quotation marks omitted.) Geddes, 196 Ill. 2d at
314.
However, this kind of estoppel by silence can only occur where one party is aware of the
facts and the other party is ignorant. It does not operate where the means of knowledge are
equally open to both parties. Maniez v. Citibank, F.S.B., 404 Ill. App. 3d 941, 950 (2010);
Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1041-42 (2007). In other words, “ ‘ “[a]
party claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to
seek information that is easily accessible, and then charge his ignorance to others.” ’ ” Id. at
1042 (quoting Town & Country Bank of Springfield v. James M. Canfield Contracting Co.,
55 Ill. App. 3d 91, 95 (1977), quoting Vail v. Northwestern Mutual Life Insurance Co., 192
Ill. 567, 570 (1901)). Furthermore, a party is not estopped by her silence where she is in
ignorance of her rights. JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C., 2014 IL
App (1st) 121111, ¶ 43 (citing Maniez, 404 Ill. App. 3d at 950).
¶ 73 With these principles in mind, we turn to consider the facts of the present case.
Defendants essentially accuse plaintiff of “waiting in the weeds”: according to them, plaintiff
consulted with an attorney and cashed the security deposit check within the statutory
compliance period, but she deliberately refrained from making her concerns known to the
Buols until the compliance period had ended. Plaintiff argues that defendants’ version of
events is factually incorrect, since plaintiff’s initial consultation with an attorney did not
occur until after the compliance period had already ended. That is, she did not learn of her
rights under the Ordinance until it was too late for the defendants to cure any violation.
Plaintiff further argues that the record does not support defendants’ assertion that she cashed
the check within the statutory compliance period.
¶ 74 We agree with plaintiff on both points. It is undisputed that plaintiff first consulted with
an attorney on July 18, 2012. Section 5-12-080(d) states that a landlord must return a tenant’s
security deposit within 45 days after the date that the tenant vacates the premises. Chicago
Municipal Code § 5-12-080(d) (amended July 28, 2010). In this case, plaintiff vacated the
premises on May 27, 2012. Forty-five days from that date is July 11, 2012, a full week before
plaintiff’s first consultation with an attorney. With regard to copies of paid receipts for repair
work, section 5-12-080(d)(2) provides that such receipts must be provided “within 30 days
from the date the statement showing estimated cost was furnished to the tenant.” Chicago
Municipal Code § 5-12-080(d)(2) (amended July 28, 2010). In this case, defendants mailed a
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statement of estimated cost to the plaintiff on June 17, 2012. Thirty days from that date is
July 17, 2012–again, before plaintiff’s first meeting with her attorney.1 There is no indication
in the record that plaintiff was aware of her rights before that initial meeting with her
attorney. As noted earlier, a party is not estopped by her silence where she is ignorant of her
rights. JPMorgan Chase Bank, 2014 IL App (1st) 121111, ¶ 43; Maniez, 404 Ill. App. 3d at
950. Accordingly, plaintiff’s silence during the statutory compliance period does not estop
her from bringing the instant suit.
¶ 75 Plaintiff is also correct in pointing out that the record does not disclose the exact date on
which she cashed the security deposit check. None of the parties testified at trial regarding
when the check was cashed. The check itself bears the notation “Void after Sept 1, 2012,”
which tells us that it was presumably cashed before that date; but that is all that we know.
Thus, the record does not support defendants’ claim that plaintiff cashed the check before the
end of the compliance period and then waited out the remainder of that period.
¶ 76 Finally, even if plaintiff had been aware of her rights within the statutory compliance
period, her silence would not give rise to equitable estoppel where the means of knowledge
were equally open to both parties. Maniez v. Citibank, F.S.B., 404 Ill. App. 3d 941, 950
(2010); Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1041-42 (2007). In this regard, we
are guided by Trossman, in which this court rejected an equitable estoppel claim under
similar circumstances. In Trossman, the counterplaintiffs and counterdefendant Trossman
were guarantors of a certain loan (the Wysteria loan). Id. at 1023. The parties agreed that
Trossman would pay a pro rata share of the payments on the Wysteria loan; that is,
whenever counterplaintiffs made a payment, Trossman had to match a certain percentage of
that payment. Id. Trossman failed to make payments under the agreement, and
counterplaintiffs sued. Id. at 1022. In his defense, Trossman argued that his payment
obligations under the agreement had never been triggered, since counterplaintiffs did not
personally make any payments on the Wysteria loan. (All of “their” payments had actually
been made by a corporation that they owned.) Id. at 1032. The trial court agreed with
Trossman and granted summary judgment in his favor. Id. at 1035-36.
¶ 77 On appeal, counterplaintiffs argued that Trossman should be equitably estopped from
raising the aforementioned defense, since he was fully aware that counterplaintiffs were
making corporate payments, yet he never objected or informed them that he considered their
method of payment to be ineffective. Id. at 1039. The Trossman court rejected this argument.
Id. at 1042. It observed that Trossman did not have superior knowledge of material facts;
counterplaintiffs knew at least as much about their own payments as Trossman did. Id. The
court further stated that “the means of ascertaining the legal effect of those payments were
equally available to Trossman and to counterplaintiffs, in that they both could have sought
legal counsel.” Id. Accordingly, the court held that counterplaintiffs could not rely on
equitable estoppel.
1
Defendants argue that the applicable date for purposes of section 5-12-080(d)(2) is not the date
that the receipt was placed in the mail, but four days later. In support, they cite Illinois Supreme Court
Rule 12(c), which states: “Service by mail is complete four days after mailing.” Ill. S. Ct. R. 12(c) (eff.
Jan. 4, 2013). However, Rule 12(c) is inapplicable here, since it pertains solely to service of documents
in the trial and appellate courts.
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¶ 78 Likewise, in the instant case, defendants cannot claim that plaintiff had superior
knowledge of material facts relating to the deductions that defendants made from her security
deposit. Defendants were fully aware of the deductions they made and the documentation
they attached. In addition, both parties were equally capable of ascertaining the legality of
those deductions under the Ordinance. If anything, defendants would seem to be in a superior
position with regard to knowledge of the relevant landlord-tenant laws, since Ms. Buol had
been a landlord for 40 years. Thus, under the well-established principle that “ ‘ “[a] party
claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to seek
information that is easily accessible, and then charge his ignorance to others” ’ ” (id. (quoting
Town & Country Bank of Springfield, 55 Ill. App. 3d at 95, quoting Vail, 192 Ill. at 570)),
defendants’ estoppel claim must fail.
¶ 79 III. CONCLUSION
¶ 80 For the foregoing reasons, we reverse the trial court’s finding that the $220 deduction for
repairs was not reasonable wear and tear, and we remand for the court to determine whether
the damage was present at the time the tenant moved into the apartment. We also direct the
trial court to make a factual determination as to whether plaintiff agreed to pay for the cost of
sending her security deposit by certified mail. If the trial court answers this question in the
affirmative, it is additionally to determine whether such an agreement is permissible in light
of the fact that the Ordinance is silent on the subject of such agreements; and, if so, the trial
court’s judgment with regard to the $3.40 in postage should be reversed. We affirm the trial
court’s ruling in all other respects.
¶ 81 Affirmed in part and reversed in part. Cause remanded.
¶ 82 PRESIDING JUSTICE FITZGERALD SMITH, specially concurring.
¶ 83 I concur with the majority in principle. However, I question the findings of the trial court.
This case is the perfect example of what is wrong with the Chicago Residential Landlord and
Tenant Ordinance. It was designed with good intentions, but here, one can clearly see how a
landlord can be out-maneuvered by a Machiavellian tenant and a trial judge who fails to
make findings based on the evidence presented. In my view, while, again, I concur with the
majority, I wholeheartedly believe this cause should be remanded to a different judge.
¶ 84 JUSTICE EPSTEIN, concurring in part and dissenting in part.
¶ 85 I respectfully disagree with the majority’s conclusion that the finding of reasonable wear
and tear was against the manifest weight of the evidence. That term is not well defined by the
ordinance and the trial court’s interpretation was within the realm of reason. See Beelman
Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364, 370 (2009) (a
“decision is against the manifest weight of the evidence only if the record discloses that the
opposite conclusion clearly is the proper result”).
¶ 86 I agree that this case should be remanded for a factual determination of whether an
agreement existed to send the security deposit by certified mail at the tenant’s expense. I
respectfully disagree with the opinion of the concurring justice that this cause should be
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remanded before a different judge. I see nothing in the record to suggest that such an order is
necessary or desirable.
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