2022 IL App (1st) 192495-U No. 1-19-2495 Order filed January 21, 2022
SIXTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
BOARD OF EDUCATION OF RIVER TRAILS ) Appeal from the SCHOOL DISTRICT 26, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 19 M3 4933 ) PARK VIEW MONTESSORI SCHOOL and ALL ) UNKNOWN OWNERS OR OCCUPANTS, ) Honorable ) James P. Pieczonka, Defendants-Appellees. ) Judge presiding. ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices Connors and Mikva concurred in the judgment.
ORDER
¶1 Held: Appeal dismissed as moot where case concerned possession of premises and duration of lease but the lease is now undisputedly expired and the lessor is in possession of the premises.
¶2 Plaintiff Board of Education of River Trails School District 26 brought a forcible entry and
detainer action against defendant Park View Montessori School to evict defendant from certain
leased premises as its tenancy had expired. Defendant filed a counterclaim seeking a declaration
that the lease was extended and its tenancy was not expired. Plaintiff and defendant filed summary No. 1-19-2495
judgment motions, and the court granted defendant’s motion, finding that defendants maintained
valid possession of the premises pursuant to a lease agreement and addendum. Plaintiff filed a
motion to reconsider that the trial court denied, finding that the lease was extended for a year from
2019 into 2020. On appeal, plaintiff contends that the court erred in denying its reconsideration
motion as defendant’s tenancy expired in 2019 by the terms of the lease. For the reasons stated
below, we dismiss this appeal as moot.
¶3 I. JURISDICTION
¶4 Upon plaintiff’s July 2019 complaint and defendant’s August 2019 counterclaim, both
parties filed summary judgment motions. The court granted defendant’s motion and denied
plaintiff’s motion on August 27, 2019. Plaintiff’s September 2019 reconsideration motion was
denied on November 5, 2019, and plaintiff filed its notice of appeal on December 5, 2019.
¶5 Defendant contends that the August 2019 order was not final as to all claims so that this
court lacks jurisdiction. However, that order denied plaintiff’s summary judgment motion and
granted defendant’s summary judgment motion, and it provided that defendants had valid
possession of the premises pursuant to the lease as amended until June 30, 2020. It thereby denied
plaintiff’s claim for possession and granted defendant’s central counterclaim to retain possession
and declare an extension of the lease. Implicit in the finding that the lease was valid until June 30,
2020, was that plaintiff’s obligations under the lease also continued, as defendant counterclaimed.
The November 2019 order denying reconsideration also provided that each party was to pay its
own attorney fees, thus disposing of defendant’s counterclaim for its costs of defending the forcible
entry action. Lastly, the November 2019 order declared itself final and included a finding that there
was no just reason to delay enforcement or appeal of the August 2019 order.
¶6 Accordingly, we have jurisdiction in this matter pursuant to article VI, section 6 of the
Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 301 (eff. Feb. -2- No. 1-19-2495
1, 1994) and 303 (eff. July 1, 2017) governing appeals of final orders in civil cases, or alternatively
Rule 304(a) (eff. Mar. 8, 2016) governing appeals of partially final orders in civil cases.
¶7 II. BACKGROUND
¶8 The parties entered into a lease in March 2006 whereby defendant would occupy a school
building owned by plaintiff. The lease was to run from July 1, 2006, to June 30, 2008, which “may
be extended on a year by year basis upon approval by” plaintiff. In the clause regarding rent, the
lease provided that “[c]ontinuation of the Lease Agreement and rent adjustments shall be
negotiated by December 31st during the term of the Lease Agreement.”
“Failure of [plaintiff] to insist on the strict performance of the terms, agreements and
conditions herein contained, or any of them, shall not constitute or be construed as a waiver
of relinquishment of [plaintiff’s] right thereafter to enforce any such term, agreement or
condition, but the same shall continue in full force and effect.”
The lease provided that “[a]t the expiration of this lease, [defendant] will give peaceable possession
of the premises to [plaintiff] in as good condition as that in existence at the date of execution of
the lease, wear and tear arising from the reasonable use and damages by the elements excepted.”
Defendant “shall have the right to terminate the Lease Agreement on June 30th of any year of the
agreement by giving written notice to [plaintiff] at the Premises of such intention at least one (1)
year prior to the specified June 30th termination date,” and plaintiff “shall have the option to
terminate this Lease Agreement to meet student enrollment needs by giving written notice to
[defendant] of its decision to occupy [the premises] at least one (1) year prior to taking occupancy.”
¶9 The parties entered into an addendum to the lease in November 2018, expressly referring
to a previous addendum in November 2017. It provided that, “[i]n accordance with [the lease]
which provides for an extension on a year to year basis of said Lease upon approval by [plaintiff],
[plaintiff] hereby approves and [defendant] accepts an extension of said Lease” from July 1, 2018, -3- No. 1-19-2495
to June 30, 2019. It also amended the dimensions of the leased premises, rent, and utility
apportionment. The addendum provided that it was incorporated into the 2006 lease, its provisions
“supersede any provisions to the contrary contained in said Lease as previously amended,” and
“all other terms and conditions as set forth in the [2006 lease] shall remain in full force and effect.”
¶ 10 A. Pleadings
¶ 11 Plaintiff filed its verified forcible entry complaint in July 2019, alleging that the 2006 lease
between the parties for the premises was extended by the 2018 addendum to June 30, 2019. As the
lease had expired by the time of the complaint, defendant’s failure to vacate the premises was an
unlawful withholding of possession. Plaintiff sought an order of possession for the premises and
fees and costs for bringing suit. Attached to the complaint were copies of the lease and addendum.
¶ 12 Defendant appeared in July 2019 and filed its verified counterclaim in August 2019. It
alleged that it had occupied the premises under various leases and addenda extending leases for
over 40 years since 1976, in which time it maintained and made improvements to the premises at
its substantial expense. The 2006 lease provided for extensions with plaintiff’s approval but it was
“completely silent regarding whether either Party had an option and/or right to extend the lease
term.” In other words, the lease did not address what should occur if the parties failed to negotiate
or reach an agreement regarding lease continuation by December 31 of a lease year, nor the method
and deadline for either party to notify the other that it intended, or was requesting, to extend the
lease. “Nonetheless, following the end of the original 2006 lease term, the Parties’ custom and
practice for the last 10 years was to extend the term of the 2006 Lease by one-year intervals via
regular, annual lease addendums.” The addenda were “usually not negotiated and entered into until
just prior to the start of a new lease term and in some cases, the addendums were not finalized until
after the start of the new lease term.” (Emphasis in original.) Indeed, “in many cases, the addendum
-4- No. 1-19-2495
was signed months after the most recent extension,” as shown by the November 2018 addendum
regarding an extension from July 2018 through June 2019.
¶ 13 While the lease had no express extension provision, it provided for each party’s right to
terminate the lease, including that plaintiff could terminate the lease with written notice at least a
year before taking occupancy. As shown by the minutes of plaintiff’s board, plaintiff considered
its May 2019 letter to defendant – stating that plaintiff would not be renewing the lease, without
explaining the reason for that decision – to be a lease termination letter rather than a denial of
renewal. “Accordingly, there was an expectation between the Parties that the lease term would
extend on a year-to-year basis if neither party exercised their option to terminate the lease.”
Defendant argued that the one-year notice provision was in the lease “because both Parties
recognize it is impractical to relocate an entire school and all its students with less than one-year’s
notice.” The May 2019 letter was “inconsistent with the Parties’ intent, customs and practices,
which is reflected by the Parties’ prior course of dealings” and could not terminate the tenancy
until at least May 2020.
¶ 14 Since its July 2019 complaint, plaintiff had allegedly refused to perform its obligations
under the lease by such actions as terminating garbage pickup, not performing snow removal and
lawn maintenance, and prohibiting fire inspectors from full access to the premises for their
inspection, a prerequisite for defendant’s day care center license. Defendant also alleged that it
had no alternative location for its programs so that if it was evicted from the premises it would
lose its enrollment for the 2019-2020 school year.
¶ 15 In the first count of its counterclaim, defendant sought a preliminary injunction enjoining
plaintiff from evicting defendant and taking possession of the premises until the parties agreed on
an extension of the lease or defendant had an opportunity to find and move its programs to a new
location. In its second count, defendant alleged breach of contract and sought specific -5- No. 1-19-2495
performance; that is, it alleged a valid tenancy under the lease as amended and sought an order that
plaintiff must allow defendant’s continued occupancy, allow building inspectors full access to the
premises, and provide maintenance and other services as provided in the lease “for the remainder
of the lease term.” In its third count, defendant also alleged breach of contract and sought
compensatory damages “[i]n the alternative, if [the trial c]ourt finds that Counter-Plaintiff is not
entitled to specific performance and injunctive relief as alleged in Counts I and II,” “including but
not limited to” attorney fees and costs of defending the lawsuit and expenses of seeking and
preparing a new location. In its fourth count, defendant sought a declaratory judgment that it had
a valid tenancy over the premises until June 30, 2020, and that plaintiff was obligated by the lease
to provide maintenance and other services after July 1, 2019.
¶ 16 B. Summary Judgment
¶ 17 Plaintiff filed a motion for summary judgment, arguing that defendant’s tenancy had
expired on June 30, 2019, pursuant to the lease as amended by the addendum. The lease provided
for extensions upon plaintiff’s approval, but plaintiff had not approved any extensions beyond the
2018 addendum; that is, past June 30, 2019. As the attached affidavit established that defendant
had not vacated the premises after the lease expired, plaintiff argued that it should receive summary
judgment in its favor. Attached to the motion was the affidavit of Dr. Nancy Wagner, plaintiff’s
superintendent of schools, averring that plaintiff’s board had not approved any extensions beyond
the 2018 addendum, the lease terminated on June 30, 2019, and defendant had not vacated the
premises as of the July 2019 date Dr. Wagner signed the affidavit.
¶ 18 Defendant filed a cross-motion for summary judgment and response to plaintiff’s summary
judgment motion. It argued that plaintiff’s motion depended upon selectively quoting the lease and
addendum, and upon Dr. Wagner’s affidavit not based on her personal knowledge as shown in her
August 2019 deposition attached to defendant’s motion. Specifically, she testified that she was not -6- No. 1-19-2495
plaintiff’s superintendent until July 2017 and was not employed by plaintiff when the 2006 lease
was negotiated or signed, so that she was not privy to “the lengthy 12-year course of dealings
surrounding the annual lease extension process.” Defendant argued that Dr. Wagner’s affidavit
should be stricken for lack of personal knowledge, while attached affidavits by George, Dave, and
Susan Petkovich established the parties’ course of dealings based on personal knowledge.
¶ 19 Defendant argued that summary judgment for itself was appropriate because the lease did
not terminate as plaintiff alleged but defendant’s tenancy extended to June 30, 2020. Alternatively,
summary judgment for plaintiff was inappropriate because there was a genuine issue of material
fact as to whether plaintiff was entitled to immediate possession of the premises “due to the
ambiguity contained in the four corners of the applicable lease agreement.” Defendant reiterated
its claim that plaintiff’s board decided to terminate the lease in May 2019 and plaintiff sent
defendant a letter that month stating that plaintiff would not be renewing the lease but not providing
a reason for that decision. However, the lease provided that written notice of termination by
plaintiff would have to precede termination by at least one year. Also, the lease term was from
July 1 to the following June 30, consistent with the school year.
¶ 20 George Petkovich, defendant’s secretary/treasurer from 2006 to 2012 and president from
2012 to 2017, Dave Petkovich, defendant’s director from 2009 to 2012 and secretary/treasurer
thereafter, and Susan Petkovich, a member of defendant’s board from 2011 onwards, averred
substantially identically in support of defendant’s motion. Defendant had leased the premises for
over 40 years and spent money during its tenancy maintaining and improving the premises. The
2006 lease had a two-year term and a requirement of one year’s notice of termination by plaintiff
“to mitigate the significant burden that would be created if [defendant] and its students were forced
to relocate on short notice.” The lease provided for year-to-year extensions negotiated by
December 31 of a lease year, and “the Parties’ custom and practice was to extend the term of the -7- No. 1-19-2495
2006 Lease by one-year intervals via regular, annual lease addendums,” with each lease term
running from July 1 to June 30. However, rent negotiations and lease extensions “were usually not
negotiated and entered into until just prior to the start of a new lease term.” Moreover, some
addenda were not finalized until after the new lease term had begun, as shown by the November
2018 addendum providing for an extension of the lease from July 1, 2018, to June 30, 2019.
“[I]n recognition of the logistical difficulties involved with relocating [defendant] and all
of its students in the event [plaintiff] wanted to take back possession of the Premises ***
and occupy the Premises, all lease addendums following the 2006 Lease expressly
incorporated the 2006 Notice Provision that required Plaintiff to give [defendant] written
notice of its decision to occupy the Premises at least one year prior to taking occupancy.”
Thus, “even in the context of a one-year lease extension,” the parties had expectations that plaintiff
would give defendant “one year’s written notice that it would not extend the lease and that after
the start of the one-year lease, that Defendant would have a valid lease hold for one year from the
date Defendant received written notice of Plaintiff’s intent to not extend its lease,” and that plaintiff
“could not avoid the written notice requirement and take back possession of the Premises without
notice by allowing the lease to expire.” Affiant George “never entered into a lease renewal with
Plaintiff. Rather, starting in 2008, the 2006 Lease was extended in year-long increments via
addendums and that each addendum expressly incorporated the 2006 Notice Provision.”
Nonetheless, plaintiff’s board voted on May 7, 2019, to terminate defendant’s lease, effective June
30, 2019, and plaintiff sent defendant a letter the next day, less than two months before the lease
term in the 2018 addendum expired, that it “will not be renewing this lease after the termination
date of June 30, 2019,” and defendant should remove its property from the premises by that date.
¶ 21 Plaintiff filed a response to defendant’s summary judgment motion and reply in support of
its own motion, reiterating its position that the lease as amended terminated by July 2019 by its -8- No. 1-19-2495
own clear and unambiguous terms. Specifically, the lease provided that it could be renewed year-
to-year with plaintiff’s approval but plaintiff provided no such approval beyond the 2018
addendum. While defendant pointed to the termination provision with its one-year written notice
requirement, defendant’s tenancy was not terminated but merely expired. Granting defendant relief
and automatically extending the lease would allow a tenant to hold over without approval of the
landlord, in this case plaintiff’s board. Plaintiff also argued that the lease’s provision for one-year
written notice of termination was superseded by the 2018 addendum, which provided (1) for one
year’s renewal when the 2006 lease provided for a two-year renewal, and (2) that the addendum
superseded any contrary provision of the lease. “It is absolutely contrary in nature to have a year
termination notice requirement when the lease itself is only to last a year.” Plaintiff argued that
there was no basis for the court to consider the parties’ customs and practices as defendant
requested. Defendant knew that plaintiff intended not to renew the lease, as shown by defendant
obtaining new school space in time to open in early July 2019, as shown in turn by attached news
articles to that effect. Dr. Wagner’s affidavit was sufficient to support plaintiff’s summary
judgment motion because she had personal knowledge of the leases and addenda by reviewing
them and discussing them with plaintiff’s staff including the previous superintendent.
¶ 22 In August 2019, the court granted defendant summary judgment and denied plaintiff
summary judgment, declaring that “defendants maintain valid possession over the premises ***
until June 30, 2020, in accordance with and subject to” the 2006 lease and 2018 addendum. The
order also continued all pending matters.
¶ 23 C. Reconsideration
¶ 24 Plaintiff filed a motion to reconsider, arguing that the court had erred in applying the law
and had not considered new facts. Plaintiff argued that the 2006 lease did not provide for automatic
renewal but for negotiations during the lease term towards a goal of year-to-year extension with -9- No. 1-19-2495
plaintiff’s approval. Based on Dr. Wagner’s attached affidavit, plaintiff alleged that the November
2017 addendum extended the lease term from July 1, 2018, to June 30, 2019, and the November
2018 addendum amended other provisions but did not extend the lease term. Noting that
termination and expiration of a lease are not the same, plaintiff also argued that it was not required
to provide one year’s written notice because that lease provision applied to termination of the lease
while defendant’s tenancy merely expired by the lease and addendum provisions on June 30, 2019.
Moreover, defendant did have one year of notice: in September 2017, defendant sought an
extension but plaintiff told defendant that there would be no extensions beyond June 30, 2019,
defendant acknowledged that there would be no more extensions, and defendant sought to rent a
new location before July 2019. Lastly, plaintiff argued that a one-year notice provision was
consistent with the original lease with its two-year term but inconsistent with the one year term in
the addendum, which provided that the addendum superseded contrary lease provisions.
¶ 25 Attached to the motion was Dr. Wagner’s September 2019 affidavit that plaintiff entered
into an attached June 2017 addendum extending the lease term from July 1, 2017, to June 30, 2018,
that defendant in September 2017 requested a further extension in an attached email, that Dr.
Wagner replied in an attached email that there would be no extension past May 2019, and that
defendant acknowledged there would be no further extension. Dr. Wagner’s email in fact said:
“It is a possibility. We will know more as we go through our community engagement
process. I don't believe we would be in a place to extend a lease past May 2019 as we will
likely not know what exactly we are doing, if anything, to [the premises] by the end of
2018 and might want to make sure we have the ability to start right something right away
in June. I wish I had a more definitive answer for you.”
The November 2017 addendum extended the lease term from July 2018 to June 30, 2019, and the
November 2018 addendum amended the rent in light of defendant using less of the premises but - 10 - No. 1-19-2495
did not amend the lease term. In February 2019, representatives of defendant told Dr. Wagner that
they were aware the lease would expire in June 2019 and sought an extension, which Dr. Wagner
told them would not be possible. After the November 2018 addendum, plaintiff never adopted
another addendum to the lease nor did it extend the lease term. Dr. Wagner averred that she read
attached newspaper articles in which defendant acknowledged the end of its tenancy of the
premises on June 30, 2019, and described its plans to occupy another location by July 2019.
¶ 26 Defendant responded to the reconsideration motion and moved to strike, arguing that
plaintiff’s purported new evidence was not newly discovered but had been available before the
court ruled on the summary judgment motions, and plaintiff had not explained why it did not
provide the evidence earlier. The court should therefore strike the allegedly new evidence, absent
which plaintiff was merely reiterating its unsuccessful arguments on the summary judgment
motions. Its only new argument was that it had given defendant one year’s notice, but defendant
argued that this new argument should be deemed forfeited due to plaintiff not raising it in the
proceedings on the summary judgment motions. If the argument was not forfeited, it was not
meritorious because Dr. Wagner’s September 2017 email did not rule out the possibility of a
further lease extension so it was not notice that the lease would expire or terminate in June 2019.
Defendant argued that the court ruled properly on the summary judgment motions, correctly found
the lease and addendum to be ambiguous, and correctly found that defendant had a valid lease on
the premises until June 30, 2020, in light of the lease, addendum, and plaintiff’s notice.
¶ 27 Plaintiff replied in support of its reconsideration motion, arguing that its motion was merely
pointing out errors of law in the court’s decision on the summary judgment motions and then
pointing to facts supporting that the legal rulings were erroneous.
¶ 28 In November 2019, the court denied the reconsideration motion. The court stated that it
had considered only the Petkovich affidavits. Dr. Wagner lacked personal knowledge for her - 11 - No. 1-19-2495
averments as she did not work for plaintiff until July 2017. It did not consider attached newspaper
articles absent authentication or a proper foundation. The court granted defendant’s motion to
strike Dr. Wagner’s September 2019 affidavit, finding that it contained facts available when the
summary judgment motions were pending. It also ordered that each party was responsible for its
own attorney fees, found the instant order to be final with no just reason to delay enforcement or
appeal of the August 2019 order, and continued the case for status.
¶ 29 The court noted that a lease with conflicting provisions must be examined as a whole to
determine the parties’ intent at the time of contract formation and execution. It also noted that lease
provisions are strictly construed against the lessor or drafter and that ambiguous lease language is
construed in favor of the lessee. It found the 2006 lease to be ambiguous because it has
contradictory terms, with a provision that the lease may be extended on a year to year basis on
plaintiff’s approval but another provision requiring plaintiff to give defendant written notice to
terminate the lease and occupy the premises to meet plaintiff’s students’ needs at least one year
prior to taking occupancy. As ambiguous leases are read in favor of the lessee, the court adopted
defendant’s interpretation that the lease ends by written one-year notice, is renewed or continued
until at least December 31 of every year, and plaintiff must give a one-year notice by July 1 of any
year to terminate it by the following June 30. The “record supports that lessor was required to give
a one year notice because lessor did require lessee’s classrooms to meet its students’ needs.”
¶ 30 The court found that the lease provision for negotiations by December 31 “shows intent to
automatically renew or continue to negotiate a rent adjustment agreement and execute an approved
addendum by” that date, with the previous rent “paid until a new addendum is executed and rent
adjusted back to” July 1. The provision for plaintiff to terminate with one year’s written notice if
it needed space for its own students “remained in effect with each addendum.” The lease term was
a fiscal or school year, from July 1 to June 30, rather than a calendar year. The “2018 addendum - 12 - No. 1-19-2495
amended and extended the 2006 lease to 6/30/19 with all terms except the lease term to remain the
same,” and the terms unaffected by the addendum included the December 31 negotiation provision
and the provision for termination on one year’s written notice. “The court finds at the time of the
2006 lease and subsequent addendums, the parties[’] intent was to evaluate their situations every
school year until either party gave notice to terminate.” The “one-year notice requirement by either
party makes the most logical sense because neither party would want to stop or start the lease in
the middle of the school year or end it abruptly in any given month.” Also, plaintiff’s board
approving a motion to terminate the lease effective June 30, 2019, and plaintiff sending a letter to
that effect the next day, “confirms the parties’ intent that notice was required to terminate the
lessee’s continuous lease and not renewing it. The Board believed they needed to give a notice of
no renewal and termination but failed to give the proper one year notice.” This appeal followed.
¶ 31 III. ANALYSIS.
¶ 32 On appeal, plaintiff contends that the court erred in denying its reconsideration motion as
defendant’s tenancy expired on June 30, 2019, by the terms of the lease and in using extrinsic
evidence when the lease was unambiguous. Defendant responds that the trial court did not err
because defendant’s tenancy was extended until June 30, 2020, by plaintiff’s failure to comply
with the notice provision of the lease, which was ambiguous so that the court did not err in using
extrinsic evidence or in concluding as it did. In supplemental briefing, defendant contends that this
appeal is moot because the central issue of possession is no longer in dispute, while plaintiff
contends that it is not moot because there are issues of damages left to be decided that would be
affected by this court’s decision on whether the order or judgment at issue was erroneous.
¶ 33 “In order to invoke the subject-matter jurisdiction of the court, a case must present a
justiciable matter,” and “[m]ootness presents a question of justiciability.” Universal Metro Asian
Services Ass’n v. Mahmood, 2021 IL App (1st) 200584, ¶ 17. Indeed, a court may find a case or - 13 - No. 1-19-2495
appeal moot sua sponte. People v. Dawson, 2020 IL App (4th) 170872, ¶ 8 (citing Hernandez v.
Morris, 39 Ill. App. 3d 783, 784 (1976)).
¶ 34 Illinois courts do not decide moot questions, render advisory opinions, review cases merely
to establish precedent, or consider issues when the outcome will not be affected regardless of how
the issues are decided. West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021
IL 125978, ¶ 60. An appeal is moot if an actual controversy no longer exists or if events have
occurred that foreclose the reviewing court from granting effective relief. Prospect Heights Fire
Protection District v. Department of Employment Security, 2021 IL App (1st) 182525, ¶ 23. In
considering mootness, a court may take judicial notice of events outside the record. Id.
¶ 35 The crux of this case was possession of the premises and a determination of when the lease
ended according to its terms as amended. The trial court found for defendant and against plaintiff,
extending lawful possession for defendant as sought in its counterclaim and denying plaintiff’s
forcible entry claim for possession, when it found that defendant’s tenancy under the lease was
valid through June 30, 2020. However, once that date passed, this case became moot. Regardless
of whether we were to decide that the lease ended on June 30, 2019, or June 30, 2020, there is no
dispute that it had clearly expired by the latter date; that is, plaintiff was, and defendant was not,
entitled to possession of the premises after June 30, 2020. 1 Plaintiff seeks possession of the
premises and a declaration that the lease expired on June 30, 2019. However, defendant has vacated
the premises, and plaintiff has come into possession of the premises, since June 30, 2020. 2
1 June 30, 2020, fell while this case was being briefed, specifically between defendant filing its appellee brief in June 2020 and plaintiff filing its reply brief in July 2020. 2 We take judicial notice from maps, the parties’ websites, and official records that plaintiff is now operating a school at the premises and that defendant is now operating its programs, including a day care center licensed by the Department of Children and Family Services, at a different location than the premises. - 14 - No. 1-19-2495
¶ 36 As noted above, the crux of this case has been occupancy of the premises. Plaintiff sought
damages for unlawful occupancy for the first time in its reply brief, other than a prayer in its
complaint for fees and costs of bringing suit, not rent. While plaintiff was clearly due rent for
defendant’s occupancy of the premises for the year ending June 30, 2020, that was so whether that
occupancy was proper or not. As plaintiff has not claimed in its original or supplemental briefing
that defendant failed to pay rent or expenses of occupancy such as utilities, we presume on this
record that defendant paid rent and expenses from July 1, 2019, to June 30, 2020, pursuant to the
trial court orders that its lease providing for rent and expenses continued to the latter date.
¶ 37 In supplemental briefing, plaintiff notes that the Code of Civil Procedure provides for
damages of “double the yearly value of the” premises from a tenant who “willfully holds over ***
after the expiration of his or her term or terms.” 735 ILCS 5/9-202 (West 2018). Plaintiff contends
that it can raise such a claim on remand so that a decision of this court on plaintiff’s contention of
error would affect the outcome of litigation between the parties concerning the premises insofar as
it would determine whether defendant willfully held over.
¶ 38 However, defendant contends that plaintiff has waived a claim for holdover damages by
not raising it either in the trial court or here until its reply brief, and that plaintiff is not entitled to
damages under section 9-202. As to the first point, Supreme Court Rule 341(h)(7) (eff. Oct. 1,
2020) provides that “[p]oints not argued [in the appellant brief] are forfeited and shall not be raised
in the reply brief, in oral argument, or on petition for rehearing.”
¶ 39 Moreover, we find that, whether or not the trial court erred in finding for defendant,
plaintiff cannot recover under section 9-202. A tenant is not charged double rent under section 9-
202 if he or she retained possession for colorably justifiable reasons, or in a reasonable belief that
continued possession was rightful. Wendy and William Spatz Charitable Foundation v. 2263 North
Lincoln Corp., 2013 IL App (1st) 122076, ¶¶ 43-44. In other words, a landlord cannot claim - 15 - No. 1-19-2495
damages under section 9-202 if there was a good faith or bona fide dispute regarding the right to
possession. Id. ¶ 44. This court has also rejected the proposition that waiting to assert an alleged
right to continued possession until after a landlord has sued for possession constitutes bad faith or
willfulness under section 9-202. Id. ¶ 45. We need not determine whether the judgment below was
erroneous to determine that there was a bona fide or good faith dispute as to possession here so
that plaintiff would not be entitled to holdover damages even if we were to reach the merits of its
appeal and find for plaintiff.
¶ 40 Plaintiff also contends in supplemental briefing that defendant’s counterclaim precludes
this appeal from being moot. However, we consider it key that each party requested its fees and
costs for bringing or defending suit but the trial court found in its final order that each party would
be responsible for its own attorney fees. Especially in light of the facts that defendant’s
counterclaim for damages was pled in the alternative and the court granted primary relief, we do
not see the counterclaim as a bar to finding this appeal moot.
¶ 41 We conclude that a declaration that the lease expired on June 30, 2019, would be merely
advisory and would no longer affect any outcome. We therefore dismiss this appeal as moot.
¶ 42 IV. CONCLUSION.
¶ 43 Accordingly, we dismiss this appeal as moot.
¶ 44 Dismissed.
- 16 -