Glaciers have moved quicker than some cases in Cook County Circuit Court and one of those cases is mine.
14-Jul-22 After being kicked out of my apartment in 2015 by a landlord who was enraged by news stories I wrote about a troubled company co-owned by the president of our buildings condo board, I took a deep dive into the court system.
I was no stranger to Circuit Court, having covered numerous trials and hearings, and successfully defending myself against two new owners of old credit card debt. Since my goal was a quick settlement, I figured Id write one complaint and attend a hearing or two. I have an attorney, one of the best in Chicago, but I wanted to do this myself. Follow in the footsteps of litigants Ive written about and gain empathy for them.
Fortunately, I did not know what I did not know.
My first complaint was awful, but at least no one saw it for more than a year because the landlord, Michael Michalak, was able to dodge his summons five times, which is actually kind of impressive.
(Left) My former landlord (right in photo) and me during less-litigious times.
I was thinking of giving up but then one Thursday afternoon, a Cook County process server got his man. Or, actually, his wife. Suddenly, my case had other litigants besides me. It was very exciting.
In a nutshell, I was accusing my former landlord of unlawfully retaliating against me by refusing to renew my lease because I wrote and published news stories that, according to him, had resulted in what was surely a stressful meeting between him and the condo board president at the time, Ellen Chessick. He told me Ms. Chessick had approached him in the lobby of our building, Chicagos Marina City, and asked to meet with him at a later date. He had asked me what news stories I had written that she might be concerned about, and we discussed a few stories but agreed they were truthful and relevant to the audience of my website, of which he was a sponsor.
The stories included coverage of problems at Restaurant.com, a Chicago-based company doing business nationwide and dealing, at the time, with a seemingly large number of consumer complaints and at least one class action lawsuit. This wouldnt have been so bad except Ms. Chessick, arguably, got elected to the condo board, and elected president of Marina Towers Condominium Association, by boasting of her business experience as a founder and co-owner of Restaurant.com. However, when I spoke with the actual founders of Restaurant.com, who felt they were pushed out by Ellen Chessick and her husband, attorney Kenneth Chessick, the companys CEO, they insisted that Ellens role in the company was barely even minimal.
(Right) The Chessicks at the Orange Bowl in 2013.
Junko [his wife] and I are wondering if you are in town this weekend or next week to discuss the meeting that I had with the condo association president, Michael wrote in an email to me and my wife on July 8, 2015. We just want to discuss the meeting with both of you and decide how best to proceed. Let us know. Thanks, Michael.
Besides being my landlord at the time, Michael was a real estate broker for RE/MAX and a real estate investor. He rented a studio apartment to me from 2008 to 2014 and a one-bedroom apartment from 2010 to 2015. I had trouble paying rent for the studio apartment and moved out voluntarily, but in the one-bedroom apartment, there had been no tenancy issues.
I can only speculate what must have happened between July 8, 2015, when he wrote that email, and July 10, 2015, when he angrily served in person a 60-day notice that he was not renewing my lease and threatened to come back and burn the place down, but my best guess is he may have realized I was not going to take down the news stories or ease up on coverage because someone was embarrassed.
For two months, things sucked, followed by a stressful and expensive move to another apartment a few blocks away.
Chicago ordinance prohibits landlord retaliation
In Chicago, and many other cities, there is an ordinance that prohibits retaliatory conduct by a landlord. The City of Chicago Residential Landlord and Tenant Ordinance (RLTO), Municipal Code Title 5, Chapter 12, Section 150, states as follows:
It is declared to be against public policy of the City of Chicago for a landlord to take retaliatory action against a tenant, except for violation of a rental agreement or violation of a law or ordinance. A landlord may not knowingly terminate a tenancy, increase rent, decrease services, bring or threaten to bring a lawsuit against a tenant for possession or refuse to renew a lease or tenancy because the tenant has in good faith:
(a) Complained of code violations applicable to the premises to a competent governmental agency, elected representative or public official charged with responsibility for enforcement of a building, housing, health or similar code; or
(b) Complained of a building, housing, health or similar code violation or an illegal landlord practice to a community organization or the news media; or
(c) Sought the assistance of a community organization or the news media to remedy a code violation or illegal landlord practice; or
(d) Requested the landlord to make repairs to the premises as required by a building code, health ordinance, other regulation, or the residential rental agreement; or
(e) Becomes a member of a tenants union or similar organization; or
(f) Testified in any court or administrative proceeding concerning the condition of the premises; or
(g) Exercised any right or remedy provided by law.
If the landlord acts in violation of this section, the tenant has a defense in any retaliatory action against him for possession and is entitled to the following remedies: he shall recover possession or terminate the rental agreement and, in either case, recover an amount equal to and not more than two months rent or twice the damages sustained by him, whichever is greater, and reasonable attorneys fees. If the rental agreement is terminated, the landlord shall return all security and interest recoverable under Section 5-12-080 and all prepaid rent. In an action by or against the tenant, if there is evidence of tenant conduct protected herein within one year prior to the alleged act of retaliation, that evidence shall create a rebuttable presumption that the landlords conduct was retaliatory. The presumption shall not arise if the protected tenant activity was initiated for the alleged act of retaliation.
I filed my lawsuit on July 11, 2018 yes, three years later. I kept thinking I would get an explanation, perhaps even an apology, but frankly, it took three years before I could talk about the incident without screaming.
A couple of things to note in the above ordinance section. It protects the tenant if he or she does something covered in one of the seven paragraphs and then less than one year later, the landlord terminates tenancy, increases rent, decreases services, brings or threatens to bring a lawsuit against the tenant for possession, or in my case refuses to renew a lease or tenancy.
If that happens, the tenant has a defense in court that could block the landlord from kicking out the tenant. And the tenant is entitled to remedies, up to two times the rent amount or twice the amount of actual damages sustained. In my case, I am suing for two months rent, $5,000 for moving expenses, $15,000 in punitive damages, and anything else the court deems just and proper.
But what the ordinance is also saying is that the tenant does not have the burden of proof to show that the landlord is retaliating. The landlord has the burden of proof to show that he or she is not retaliating. As long as the alleged retaliation happened no more than a year after the protected conduct.
My case, however, was not perfectly cut and dry. Shortly after pointing out to him that he was breaking the law, Mr. Michalak sent to me a Surrender and Release Agreement that covered such issues as turnover of keys, right of landlord to enter premises, and hold me harmless from liability should some catastrophe happen with the unit after I moved out. Feeling stressed and pressured and fearing he would slander me to other landlords, I did sign the agreement, and if I could offer one piece of advice to anyone in the same situation, I would implore you to not sign anything. This was the basis of defendant motions for the next four years, as he claimed the agreement settled our dispute.
The lawsuit was filed in the Municipal Department of Circuit Court and had two counts at first, retaliatory conduct by landlord and intentional infliction of emotional distress (IIED). At a hearing on December 16, 2019, Judge Joel Buikema patiently explained that Count 2 of the complaint, intentional infliction of emotional distress, could not be heard in the Municipal Department. Without commenting on the merit of the second count, he allowed me to re-file my complaint without the IIED claim.
I did exactly that on January 2, 2020, just before the pandemic hit and I was no longer walking into the Loop and standing before a judge but getting Zoom figured out. On February 24, 2021, following the COVID-19 continuance, Judge Eileen OConnor dismissed the complaint over how it was structured but allowed me to file an amended complaint.
This time I asked my attorney, Thomas Rosenwein (right), to write the Second Amended Complaint, and it had all the structure and legalese that I could only dream about. I handled responding to motions and defended my case, arguing that the Surrender and Release Agreement was not enforceable due to duress and other reasons.
By July 29, 2021, when we were before our third judge in the case, Lorraine Mary Murphy, I was starting to get things figured out, just in time for the judge to dismiss my case once more. However, the reason for the dismissal surprised me and probably surprised defense counsel as well.
In dismissing the case, Judge Murphy quoted from my opposition memo to the defendants motion to dismiss, where I stated that the defendant, Mr. Michalak, did not provide a clear reason, legitimate or otherwise, for not renewing my lease, though providing what a reasonable jury could find as circumstantial evidence of retaliation. Judge Murphy said that because the defendant did not provide a reason for not renewing my lease, there was no evidence that the reason was retaliatory. She said it was her experience that landlords accused of retaliation often tell their tenants that action being taken against them is retaliatory. She seemed to suggest that the tenant has the burden of proof to provide evidence of landlord retaliation, examples of which include the landlord clearly stating that he or she is retaliating.
The thing is, that is contrary to the ordinance that puts the burden of proof on the landlord to show the conduct was not retaliatory.
I filed a motion for reconsideration, which was denied, and on September 15, 2021, I was officially out of options, other than to file a notice of appeal to the Appellate Court of Illinois.
Appeal based on rebuttable presumption of retaliation
As you can imagine, the appellant brief has to be organized in a very specific way. It has to reference documents in an official record that contained 309 pages. Each argument has to be expressed clearly and convincingly, include case citations, the standard of review, and state exactly what you want the court to do. On January 3, 2022, I filed a brief that contained 26 pages, not including cover (which has to be a specific color), table of contents, statement of points and authorities, the certificate of compliance saying my brief contains 26 pages, and the certificate of service.
My brief had three main points: Whether the trial court made a mistake by not following the RLTO section that states that protected conduct of a tenant less than one year before an alleged retaliation creates a rebuttable presumption that the landlords action, in this case non-renewal of the lease, was retaliatory. Whether the Surrender and Release Agreement negates my claim of landlord violation of the RLTO and whether the agreement is unenforceable due to duress and other reasons. And whether there are freedom of speech consequences, harmful to the public, resulting from retaliation by a landlord against a tenant, who is a journalist, over news stories the tenant has written.
The responding brief by defense counsel looked like someone had really put a lot of expensive time into it, at least enough to tear apart my case citations and give me the distinct impression that he had written more briefs than I have.
On the plus side, besides expert advice from my attorney, I found enough information online to get me through this, and I got the last word with the appellate court before we settled in for what could be several months of waiting.
(Left) Facebook post by Kenneth Chessick in 2018 and a (quickly deleted) reply.
Do I have any advice for anyone who has been retaliated against by their landlord? Yes, I believe I do.
1 Dont sign anything. Youre not going to make your situation any better. Even if you feel pressured or threatened, remember that the law is on your side and you do not have to sign anything.
2 If the landlord knows he or she is breaking the law and still will not budge, file in Circuit Court sooner rather than later. A lawyer is worth the expense but if you are, like me, a glutton for punishment, you can represent yourself and though it is far from easy, the online systems like Odyssey File & Serve are much easier and quicker than filing at the courthouse in person. I filed in Municipal Court, seeking compensation for my landlords violation of city ordinance, but there are other options.
3 If your landlord threatens you with physical harm, report it to the police. Its easy to decide that the landlord is just blowing off steam and wont really harm anyone. However, he or she will deny making the threat, and a police report could help dispute that.
The goal now is to get the case remanded back to Circuit Court so I may continue on this merry journey.
If I win, I win. If I lose, I got to file a lawsuit and push it through Circuit Court and into an appellate court. I learned more about the nuts and bolts of law in the past four years than I ever did in all the years before. And if Im ever writing about a case and trying to win the trust of a litigant, I can always tell them about the time I was in their shoes.
Mr. Michalaks attorney did not respond to an invitation to comment for this article.