2020 IL App (2d) 190371 No. 2-19-0371 Order filed April 29, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
JOSEPH SEYL, as trustee of the Joseph Seyl ) Appeal from the Circuit Court Living Trust dated December 16, 2013, and ) of Kane County. DAWN S. SEYL, as trustee of the Dawn S.) Seyl Living Trust dated December 16, 2013 ) ) Plaintiffs-Appellees and, ) Cross-Appellants, ) ) v. ) No. 17-AR-693 ) ACHIM GROSS and JANINE BIRR, ) ) Honorable Defendants-Appellants and ) Divya K. Sarang, Cross-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court. Justices Hutchinson and Bridges concurred in the judgment.
ORDER
¶1 Held: The trial court’s finding that the landlords failed to mitigate damages was not against the manifest weight of the evidence where the landlords made a business decision to sell their house rather than relet it; where the landlords failed to prove that damage to their house was entirely caused by the tenants, the court’s award of half the cost of repairs was not manifestly erroneous. Judgment affirmed. 2020 IL App (2d) 190371
¶2 This case arises from a landlord-tenant dispute. Plaintiffs, Joseph Seyl and Dawn S. Seyl
(Landlords), sought unpaid rent and recovery for damage to the leased premises. Defendants,
Achim Gross and Janine Birr (Tenants), asserted affirmative defenses, including the Landlords’
failure to mitigate damages. After a bench trial, the court found that the Landlords failed to
mitigate damages in part, after they listed the house for sale rather than reletting it, but that the
Landlords were entitled to damages in the amount of $5700 for rent for the time before they listed
the house for sale. The trial court also awarded the Landlords half of the alleged property
damages, or $7050; $350 for costs; and $7000 for attorney fees.
¶3 The Tenants appeal arguing that the trial court erred by awarding the Landlords (1) any
rent due because the Landlords completely failed to mitigate damages, and (2) $7050 for property
damage because the evidence does not support this finding. The Landlords cross-appeal arguing
that the trial court erred by failing to award them (1) rent due from the date of the Tenants’ breach
through the date of the sale of the house, (2) the entire cost to repair the damage caused by the
Tenants beyond normal wear and tear, and (3) all of their attorney fees. For the following
reasons, we affirm.
¶4 I. BACKGROUND
¶5 On December 18, 2017, the Landlords filed a two-count complaint against the Tenants
alleging the following. The Landlords owned a single-family property on Green Ridge in Elgin
(the house). On October 3, 2012, the Tenants entered into a lease agreement (lease) with the
Landlords to rent their house until February 28, 2014, for $1900 a month, plus a $1900 security
deposit. According to the lease attached to the complaint, the Tenants would “keep the residence
in good repair and order (except to the extent Landlord has in this lease agreed to make repairs).”
Under the terms of the lease, the Tenants had no right to sublet the property, or to make alterations,
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additions, or painting to the property. The parties renewed the lease more than once. The
parties executed the last renewal in March 2017 with the term ending March 15, 2018. The
Tenants did not relinquish possession of the property until after August 12, 2017.
¶6 Count I alleged breach of lease terms; failure to pay rent. Tenants failed to relinquish the
keys to the property. On September 5, 2017, the Tenants’ attorney notified the Landlords by
email that the Tenants relinquished the possession of the property. The Tenants failed to pay rent
for the remaining seven months of the lease term, which amounted to $13,300 in unpaid rent. The
Landlords “acted diligently to repair the home in getting [the house] on the market in order to
mitigate the damages through a sale of the home.” Under the terms of the lease, the Landlords
were entitled to attorney fees and costs incurred in enforcing the lease.
¶7 Count II alleged damage to the house to the extent that the Landlords paid $14,150 to JHC
Painting and Construction for necessary repairs to the house caused by the Tenants. The damage
included significant chips in the kitchen and hallway tile; excessive wear and tear to the carpet
throughout the house; nail and screw holes in the walls in need of patching prior to painting;
chipping exposing the metal frame of the walls; broken blinds throughout the house; dirty kitchen
appliances; damages to screens on the porch requiring replacement of the door and wall repair;
replacement of doors throughout the house, including two doors that had been removed; broken
garage door springs; and general filth and mold throughout the house. The Landlords also
removed “significant amounts of [the Tenants’] personal property.”
¶8 The Tenants filed an answer and affirmative defenses. After the trial court dismissed
several affirmative defenses, the Tenants filed an amended answer and affirmative defenses.
Tenants admitted the general allegations regarding the lease and the renewal of the lease. The
Tenants denied that they would not allow the Landlords in the property until August 12, 2017.
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Regarding count I, the Tenants affirmed that under the terms of the lease they were obligated to
pay rent through March 15, 2018; they failed to make rent payments from August 15, 2017 through
March 15, 2018; and their last payment was for the period from July 15 through August 15, 2017.
The Tenants denied or had insufficient information regarding the remaining allegations in counts
I and II.
¶9 The Tenants asserted several affirmative defenses including constructive eviction, failure
to mitigate damages, breach of implied warranty of habitability, and breach of implied duty of
good faith and fair dealing.
¶ 10 The matter proceeded to arbitration, where the panel entered an award in favor of the
Landlords. The Tenants timely filed a rejection of the award. The matter then proceeded to a
bench trial.
¶ 11 At trial, Carrie Cox, a realtor, testified as follows. Cox first saw the house in September
2017 and noted several issues that needed repair including the badly stained carpet. Cox listed
the house for sale as promptly as possible, on November 9, 2017. The house sold on February 5,
2018.
¶ 12 James Carrigan, the Landlords’ contractor and owner of JHC Painting and Construction,
testified as follows. Carrigan first saw the house in late September or early October 2017.
Carrigan observed damaged trim, walls, and floors, including broken tiles in the kitchen and
“destroyed carpet” in the front bedroom. According to Carrigan, “there was no cleaning that
carpet,” due to the “amount of staining, pet urine, wornoutness [sic], especially in the main living
[room]. It was worn through to the crunch side on the back. *** The amount of staining, it
would never have come clean.” The urine odor came from the carpet upstairs and downstairs,
although the odor was not as bad upstairs. The urine odor was consistent with the use of a catheter
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by a quadriplegic dependent person. In addition, there were pet urine stains. Carrigan opined
that the carpet did not look older than five years.
¶ 13 Carrigan also testified as follows. The home was extremely damaged, especially for the
type of home and neighborhood. “[We] took out [b]roken trim, the doors, the carpet,” and
doorknobs and cut out and replaced squares of drywall. He identified several photographs as
depicting the conditions he observed in the house, including marks and damage to the walls and
door frames consistent with wheelchair use. Carrigan removed debris from the house, including
trash left by the Tenants. Carrigan completed the work in November 2017. Carrigan identified
his invoice that totaled $14,150. The Landlords paid the entire invoice amount. The invoice
showed a $9500 credit that indicated a prior payment made by the Landlords. Carrigan
explained,
“I’m not a carpet guy, so I general out my carpeting. So we took a payment for that so
that way he was paid, and then we completed the project. And the final, after both the
deposit and the carpet was installed plus what was left on the back of the invoice.”
¶ 14 The invoice listed paint work at $5000 and stated,
“[P]aint the entire home. All rooms on first and second floor 2 coats on walls and ceiling.
Prime as needed all paint will come[e] from pig paints in [E]lgin[.] Also includes
basement[.]”
The invoice listed “Carpet install” at $7000 and stated,
“Install new carpet [o]n first floor [a]nd entire second floor[;] includes all the bedrooms
and hallways on second floor as [well] and both stair wells.”
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The invoice listed “wet carpet removal” at $300, “dumpster rental” at $500, “drywall” at $400,
“doors” at $200, “paint prep” at $300, “kitchen flooring” at $450 and stated that this included
replacing six tiles and regrouting the entire kitchen floor.
¶ 15 During cross examination, Carrigan testified that he first saw the house on September 27,
2017. Carrigan did not know how long the old carpet had been in the house.
¶ 16 Dawn Seyl testified as follows. Dawn and her husband Joseph owned the house during
the time the Tenants occupied it. The Tenants began occupying the house in March 2013.
Dawn identified the original lease. The rent was $1900 due on the 15th of each month, beginning
on March 15, 2013. The Tenants also provided the Landlords with a $1900 security deposit as
provided in the lease. In the final negotiations of the lease renewal, Dawn told the Tenants that
she and her husband’s goal was to sell the house. The Tenants told Dawn that they did not want
the Landlords to sell the house. The Tenants insisted on a one-year renewal term instead of a six-
month term offered by the Landlords. The Tenants told Dawn that they wanted a one-year
renewal term because “the government runs slow and they needed to wait to get the results of their
court - - whatever was taking place with their son.” The Tenants’ son, Max, was in the military
and had a lawsuit and they needed money to buy a home. The Landlords agreed to a one-year
lease extension that would end in March 2018. When the parties executed the lease extension,
Max was not living with the Tenants.
¶ 17 According to Dawn, on July 13, 2017, the Tenants told her that they were closing on their
house on July 17, 2017. In an email exchange admitted into evidence, Dawn attempted to
schedule a walkthrough of the house with the Tenants. The Tenants responded that they were
moving out on or about August 1, 2017, and then they would take a couple of weeks to clean out
the house. On August 5, 2017, Dawn sent the Tenants an email stating that her husband would
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be coming to the house the next day to mow the lawn and go through the house. Achim emailed
Dawn the same day stating that the Tenants were still “in the [midst] of moving and wanting to
clean [the house] up a bit.” On September 14, 2017, Dawn received an email from the Tenants’
attorney that the Tenants had “officially” moved out of the house. The Tenants offered to have
their daughter, Tiffany, and her friends sublease the house. According to Dawn, the Landlords
declined this offer because “on two occasions we had to do repairs based on Tiffany not closing
the shower curtain upstairs [which] caused damage to the ceiling. Not once but twice we had to
fix it.”
¶ 18 Dawn testified about the damage to the house in September 2017 as follows. Tile was
chipped in the kitchen and hallway; the carpet in the bedrooms was black and “chewed,” beyond
normal wear and tear; there were holes in the wall and door trim, a dent in the refrigerator, and the
blinds were damaged; the house was all wood and the wood was damaged; and the bathrooms and
kitchen were “filthy.” The Tenants never asked the Landlords to modify the house to
accommodate Max who was in a wheelchair. Dawn testified that photos taken in September 2017
were accurate depictions of the house. Dawn testified regarding the necessary repairs. The tile
and carpet were replaced, holes were patched, but the wood could not be replaced because “they
did not make it anymore.” The Landlords sold the house on or about February 5, 2018. Dawn
testified that the Tenants owed $10,766 in rent for the period of August 15, 2017, through February
15, 2018.
¶ 19 During cross-examination, Dawn testified as follows. The Tenants occupied the house
from March 2013 through July 2017. The lease listed Max as an occupant of the house. Dawn
was aware that Max had an auto accident and had become a quadriplegic, ventilator-dependent
person. Regarding the repairs made to the house, Dawn testified that she paid $5000 for painting
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the interior of the property, $300 for carpet removal, and $7000 for new carpet. The Landlords
did not try to find a sublessor because they “were putting the property up for sale.” The first time
they “saw the damages” to the house was in August 2017, but they may have done a “walk
through” of the property on July 12, 2017. The invoice for repairs did not breakdown which
repairs and costs were for the upstairs, main floor, and basement. Most of the wall damage on
the main floor was done by Max’s wheelchair. From August 12 through September 27, 2017,
the Landlords did nothing to repair the property. In an email, on August 6, 2017, Dawn wrote
the Tenants that the final walk through of the house would take place at the end of the lease close
to March 15, 2018.
¶ 20 Joseph Seyl testified as follows. He identified several photographs as depicting the house
at the time the Tenants took possession in March 2013. Joseph testified that in December 2015
the Tenants called him to make repairs to the living room ceiling caused by water leaking from the
upstairs bathroom. Upon inspection, Joseph discovered the leak was caused by the shower
curtain not being closed properly. When asked about the possibility of subleasing to the Tenants’
daughter, Tiffany, and her friends, Joseph replied that he and Dawn would not agree to the sublease
because Tiffany caused damage to the house and that no information was provided regarding her
friends. The Tenants did not ask for repairs or changes to the house to accommodate Max. The
Tenants were given keys to the house in March 2013 when they took possession, but the Tenants
did not return the keys.
¶ 21 During cross-examination, Joseph testified as follows. The carpet in the house was not
new when the Tenants moved in. Before the Tenants moved into the house, the Landlords’
family lived in the house for about fifteen years and the Landlords had replaced the carpet once
during that time. The carpet had been replaced more than two years but less than five years before
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the Tenants moved in. Joseph agreed with the contractor’s opinion that the carpet damage was
consistent with wheelchair use.
¶ 22 Janine Birr testified on behalf of herself and her fiancé, Achim Gross, as follows. Janine
and Achim moved into the house in March 2013 and moved out on August 1, 2017. She and
Achim paid rent through August 15, 2017. The Landlords did not return the Tenants’ $1900
security deposit. Achim’s father and sons, Rex and Max, moved into the house in March 2013.
Achim’s daughter, Tiffany, lived at the house for “six months or so.” Janine stated that the water
leak in the shower was caused by a rusted pipe that Joseph fixed.
¶ 23 Janine testified that the parties discussed the last lease renewal in January 2017. The
Landlords offered the Tenants a six- or twelve-month lease renewal. Janine testified,
“At first we wanted to sign a six-month lease, but both Dawn and [Joseph], they had stated
that they wanted to sell the home and they had wanted to open – they wanted us to open
the home three months later to have home showings and have people come through the
home so they can sell their home quickly.”
Janine and Achim were not comfortable with people coming through the property because Max
was on a ventilator and “it’s easy to catch germs [and] we didn’t want people *** to also see Max
in his condition.” Max was in a terrible car accident and after spending about one year in the
hospital, he came back to live in the property in January 2017. Max became a quadriplegic and
it was hard to move him and the family needed time. Janine testified that “we chose a 12-month
lease, because with a six-month lease [the Landlords] wanted to bring people into the home to sell
ASAP within a three[-]month period of time.”
¶ 24 Janine also testified that she notified the Landlords that she and Achim had found a home
to buy and that the seller wanted to close very quickly. The Landlords were “very congratulatory
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towards us.” On July 16, 2017, Dawn sent Janine an email stating that the Landlords decided to
put the house up for sale. On July 17, 2017, Dawn sent Janine and Achim an email stating, “Good
luck on your closing tomorrow.” Janine and Achim offered to have Tiffany and some of her
friends sublease the house, “and we would be responsible for the rent through the expiration of our
lease.” The Landlords refused the offer. The Landlords did not want to sublease, rather, they
wanted to list the house for sale.
¶ 25 Janine testified that, on August 5, 2017, she sent Dawn an email stating that Janine and her
family were “in the midst of moving” but they wanted to clean up a bit.” In response, Dawn sent
an email expressing an urgency in putting the house up for sale. After Janine and her family
moved out of the property, she and Achim intended to hire someone to clean it between August 1
and 15, 2017. But Janine and Achim did not hire a cleaning service because “a few days after
we had moved out it seems as though Dawn and [Joseph] had taken possession of the [house].
*** [W]e assumed we had possession of the house until August 15[, 2017], and that being that
they were in the home, we thought, okay, let them clean the house. There is a security deposit of
$1900 which they could use to clean.”
¶ 26 Janine also testified as follows. On August 6, 2017, Janine and Achim received an email
from the Landlords stating that they refused to do a walkthrough at that time and would, instead,
do a walkthrough on March 15, 2018; the lease termination date. Janine stated that she and her
family enjoyed living in the house; they moved out because of Max’s condition. Max could only
get around on the main floor due to his wheelchair.
¶ 27 During cross examination, Janine testified that Max did not live in the house before he
joined the army in 2015. Max came to live in the house in January 2017. Janine and Achim
asked the Landlords for keys to the house, but neither she nor Achim received them. On August
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1, 2017, when Janine and her family moved out, they left one garage-door opener behind in the
house and kept one garage-door opener. Janine did not recall whether she returned the other
garage-door opener. When Janine and her family moved into the house in March 2013, the carpet
was clean. While Janine and her family lived in the house, the carpet was cleaned four or five
times. Janine did not clean the carpet when she vacated the property because “[w]e did not get a
chance to do so.”
¶ 28 Achim testified as follows. He never received keys to the house. He had access to the
house through the garage. Achim’s son, Max, lived in the house when the Tenants first moved
in. Max joined the military and was then in a catastrophic car accident. After Max was released
from the hospital, Achim trained to be Max’s caretaker. Achim stated that before Max moved
back into the house, the carpet looked clean. Later in Achim’s testimony, he described the carpet
when he moved in as “livable.” After Max moved back into the house with a wheelchair, the
carpet “got heavily stained from a lot of traffic inside the house”: doctors, nurses, veterans’
administration personnel, caretakers, “also, him going up and down, you know, from his room to
the living room. So, yeah, it was a lot of – a lot of wear and tear on the carpet.” The wheelchair
had six wheels and weighed about 500 pounds. Max weighed about 200 pounds. Max required
a catheter that caused a bad urine smell in the house. Achim asked the Landlords to install
laminate flooring in Max’s room, the living room, and the dining room, and Achim offered to pay
half of the cost, but the Landlords refused. Achim intended to hire a professional cleaning crew
after moving out but did not do so because the Landlords were already in possession of the house.
¶ 29 During rebuttal testimony, Dawn testified that the Tenants never requested keys to the
house.
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¶ 30 After closing argument, the court requested the parties to provide case law on the issue of
acceptable wear and tear and continued the matter. Subsequently, the court requested the parties
to provide case law regarding “the landlord’s duty to accept whatever mitigation the tenant
provides” and other issues. The parties provided memoranda to the court.
¶ 31 On April 4, 2017, the trial court rejected the Tenants’ claims of breach of warranty of
habitability and breach of good faith and fair dealing. The court found for the Landlords on count
I of their complaint alleging breach of lease terms; failure to pay rent. However, the court found
that the Landlords failed to mitigate their damages from November 15, 2017, through February 5,
2018, the date the house sold. The court, therefore, found the Tenants liable for unpaid rent only
from August 15, 2017, through November 15, 2017, and awarded the Landlords $5700 in rent.
¶ 32 Regarding count II, alleging damage to the house, the court found that “the carpet had to
be replaced due to more than normal [and excessive] wear and tear *** due to the wheelchair
damage.” The court found that “both the landlord[s] and [the Tenants] should carry 50 percent
of the repairs.” Therefore, the court awarded the Landlords $7050 for repairs plus $350 for court
costs. Subsequently, on April 24, 2019, the court awarded the Landlords $7000 in attorney fees.
¶ 33 The Tenants filed their notice of appeal on May 1, 2019. The Landlords filed a cross-
appeal on May 9, 2019.
¶ 34 II. ANALYSIS
¶ 35 A. Mitigation of Damages
¶ 36 The Tenants urge us to vacate the trial court’s award of $5700 for unpaid rent, arguing that
(1) the court erred as a matter of law in its interpretation and application of the landlord’s statutory
duty to mitigate damages under section 9-213.1 of the Code of Civil Procedure (Code) (735 ILCS
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5/9-213.1 (West 2018)) and case law, and (2) the trial court erred by failing to find that the
Landlords did not mitigate damages due to their unreasonable delay in repairing the house.
¶ 37 We review de novo questions of law and statutory interpretation. In re Christopher K.,
217 Ill. 2d 348, 363-64 (2005). After a bench trial, a trial court’s findings of fact will not be
disturbed unless they are against the manifest weight of the evidence. Jameson Real Estate, LLC
v. Ahmed, 2018 IL App (1st) 171534, ¶ 59. “A decision is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when the findings appear to be
unreasonable, arbitrary, or not based on the evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 252
(2002). “The manifest weight of the evidence standard affords great deference to the trial court
because the trial court is in a superior position to determine and weigh the credibility of the
witnesses, observe witnesses’ demeanor, and resolve conflicts in their testimony.” Wade v.
Stewart Title Guaranty Co., 2017 IL App (1st) 161765, ¶ 59. Under this standard, we may not
reweigh the evidence presented to the trial court or make an independent determination of the facts.
Jameson Real Estate, 2018 IL App (1st) 171534, ¶ 59.
¶ 38 Section 9-213.1 of the Code provides:
“Duty of landlord to mitigate damages. After January 1, 1984, a landlord or his or her
agent shall take reasonable measures to mitigate the damages recoverable against a
defaulting lessee.” 735 ILCS 5/9-213.1 (West 2018).
¶ 39 The purpose of section 9-213.1 of the Code “is to require a landlord to undertake reasonable
efforts to relet the premises after a defaulting tenant departs, rather than allowing the premises to
stand vacant and then attempting to collect the lost rent in the form of damages.” Danada Square,
LLC v. KFC National Management Co., 392 Ill. App. 3d 598, 609 (2009). The landlord bears
the burden of proving that it complied with the statutory duty of mitigation. Id. at 608.
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¶ 40 Here, the Tenants contend that the trial court “was confused” and “improperly assigned a
portion of [the] duty [to mitigate] on [the Tenants].” The Tenants note that the court stated that
the Tenants “had a duty to be – to try and find and sublet or to do something, and they did not
completely carry forth.” We determine that the court misspoke to the extent that it implied that
the Tenants had a duty to mitigate damages.
¶ 41 However, the trial court’s finding regarding the Landlords’ duty to mitigate damages was
legally proper and not against the manifest weight of the evidence. The record clearly shows that
the Tenants breached the lease that ran from March 15, 2017, through March 15, 2018, when they
stopped paying rent through August 15, 2017. The Landlords sought seven months of unpaid
rent or $11,400. But the trial court did not award the Landlords this entire sum. The court
reasoned that the Landlords failed to mitigate damages once the house was repaired on or about
November 15, 2017, through the time the house sold on February 5, 2018, because during that
time, the Landlords listed the house for sale instead of attempting to relet it. Thus, it is clear that
the court understood that the Landlords had a duty to mitigate damages. For these reasons the
court awarded the Landlords only half of the unpaid rent they sought. Accordingly, the court’s
findings show that the court understood the law, including that the doctrine of mitigation concerns
“the measure of damages, [and] not the legal right to recover damages. (Emphasis in original.)
St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill. App. 3d 285, 293 (1988).
¶ 42 The Tenants argue that the Landlords’ duty to mitigate arose in July 2017 because the
Tenants told the Landlords that they had purchased a home on July 1, 2017. However, the
Tenants paid rent through August 15, 2017; the Tenants’ emails establish that, although they had
moved out on August 1, 2017, they intended to take two weeks to clean the house; the first week
of August, the Tenants’ son, Rex, cleaned out the garage; and the Tenants state in their brief that
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they vacated the house in “early August.” Thus, we reject the Tenants’ argument that the
Landlords’ duty to mitigate started in July.
¶ 43 In addition, the Tenants argue that the Landlords delayed mitigation by waiting until the
end of September 2017 to begin repairs on the house. After reviewing the record, we determine
that the trial court found, by implication, that the Landlords took a reasonable amount of time to
begin and complete the repairs.
¶ 44 In their cross-appeal, the Landlords argue that the trial court erred by failing to award them
rental damages until the property was sold. The Landlords urge us to award them an additional
$5087 for rent from November 15, 2017, through February 5, 2018. Here, the trial court found
that the Landlords failed to mitigate their damages by listing the house for sale instead of
attempting to relet it.
¶ 45 As stated above, a landlord has a duty to take reasonable measures to mitigate damages.
735 ILCS 5/213.1 (West 2018); St. George Chicago, Inc., 296 Ill. App. 3d at 292. The phrase
“reasonable measures” is not defined in the statute or relevant case law. JMB Properties Urban
Co. v. Paolucci, 237 Ill. App. 3d 563, 568 (1992). Whether a landlord has taken reasonable
measures to mitigate damages is a question of fact. Danada Square, LLC., 392 Ill. App. 3d at
607.
¶ 46 Implicit in the trial court’s finding and award is that the Landlords’ placing the house for
sale rather than attempting to relet it was not a reasonable measure. The issue for us is whether
the trial court’s finding is against the manifest weight of the evidence. Although the Landlords
were entitled to exercise their business judgment by listing the house for sale, the Landlords cannot
compel the Tenants to bear the costs of their decision when they may have avoided those costs
altogether by attempting to relet the house. See Danada Square, LLC., 392 Ill. App. 3d at 609
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(the landlord failed to take reasonable measures to mitigate damages where it insisted on a 60-day
termination provision in a replacement lease). Accordingly, we determine that the trial court’s
finding regarding the Landlords’ failure to mitigate damages from November 15, 2017, through
February 5, 2018, is not against the manifest weight of the evidence.
¶ 47 The Landlords cite JMB Properties Urban Co., 237 Ill. App. 3d 563, to support their
argument. In that case the appellate court held that the landlord of a mall took reasonable
measures to mitigate damages where it relet the space to the first available tenant seven months
after the previous tenant vacated. Id. at 568-69. The landlord actively sought a new tenant and
relet the space prior to leasing other available spaces in the mall. Id. at 568. Here, the Landlords
did not seek a new tenant, but made a business decision to sell the house. Thus, JMB Properties
Urban Co. is distinguishable from our case.
¶ 48 B. Reasonable Wear and Tear
¶ 49 The Tenants argue that the trial court’s award of damages for excessive wear and tear is
unsupported by the evidence because the carpet and walls were only damaged in certain parts of
the house. The Tenants contend that the evidence, including the contractor’s invoice, was
insufficient because it did not itemize the charges for painting, carpet, and tile damaged by Max’s
wheelchair and, therefore, the invoice is insufficient to prove actual damages. Conversely, in
their cross-appeal, the Landlords argue that the trial court erred by failing to award the entire
amount indicated on the contractor’s invoice ($14,150), because this represents the cost to repair
the damage caused by the Tenants.
¶ 50 A trial court’s decision as to damages will not be disturbed upon review unless it is
manifestly erroneous. Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 278 (1982).
Fixing the amount of damages is preeminently the function of the fact finder, and its determination
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will not be disturbed unless it is obviously the result of passion and prejudice. Pioneer Trust &
Savings Bank v. Zonta, 96 Ill. App. 3d 339, 345-346 (1981). As a general proposition, damages
may be proven in any reasonable manner. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 108
(2006). However, damages in a breach of contract action must be proved with reasonable
certainty and cannot be based on conjecture or speculation. Kirkpatrick v. Strosberg, 385 Ill.
App. 3d 119, 130 (2008). The burden of proof of damages is on the plaintiff, not on the
defendant. First National Bank v. Dusold, 180 Ill. App. 3d 714, 418 (1989).
¶ 51 Paragraph 10 of the lease provided in relevant part:
“On termination of the lease, Tenant shall return the residence to Landlord in like
condition, reasonable wear and tear excepted. If Tenant fails to keep the residence in such
condition and repair, Landlord and Landlord’s agent may enter and put the residence in
good condition and repair. On demand, Tenant shall pay Landlord the cost of such work.”
¶ 52 A vacating tenant has no duty to pay for capital improvements that add value to the
property. Northwest Commerce Bank v. Continental Data Forms, Inc., 233 Ill. App. 3d 124, 126-
127 (1992). However, if the condition of the premises is not the same at the end of a tenancy as
at the beginning, the landlord may hold the tenant liable for the costs to return the premises to a
condition acceptable for rental. Id. Pyramid Enterprises, Inc. v. Amadeo, 10 Ill.App.3d 575,
579 (1973). The landlord has the discretion to decide how to fix the repairs, but he must supply
a reasonable basis for his damage computation. Northwest Commerce Bank, 233 Ill. App. 3d at
126-127, 129).
¶ 53 Here, the Landlords presented photos of the house taken before the Tenants took possession
and photos taken after the Tenants vacated. The house was in very good condition before the
Tenants moved in. The photos taken after the Tenants moved out show excessive damage to
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numerous walls, including large holes, missing plaster and drywall from door frames, and
significant scrapes. The photos also show a badly cracked kitchen ceramic tile floor, and badly
worn, and, in some areas, destroyed carpet. Achim testified that the damage to the kitchen tile
was caused by “an 800[-]pound wheelchair driving around.” Achim also testified that the
wheelchair damaged the carpet and door frames, and Achim made holes in the walls for various
reasons. Achim testified that the carpet was badly worn and stained upstairs and downstairs.
Further, the carpet was damaged by urine. The contractor testified that the carpet was completely
worn through and uncleanable, and needed to be replaced. The photos also showed other
damages that were not indicated on the contractor’s invoice including damaged window treatments
and toilets. The trial court found that the damage to the house was “mainly due to excessive
wheelchair use.”
¶ 54 However, the Landlords failed to present any evidence to justify the replacement of carpet
throughout the entire house. There was no evidence that the Tenants damaged the carpet in the
basement. Similarly, the Landlords failed to present evidence that it was necessary to paint the
entire house including the ceilings. There was no evidence that the Tenants damaged the paint
in every room, on every floor, and on all the ceilings. In light of all of the evidence and lack
thereof, we determine that the trial court’s award of half of the contractor’s invoice, $7050, was
not manifestly erroneous.
¶ 55 C. Attorney Fees
¶ 56 The Landlords argue that the trial court erred by failing to award them all of their attorney
fees in the amount of $12,734. The Tenants contend that the Landlords failed to preserve the
record regarding this issue for review by failing to provide a transcript of the hearing on the
Landlords’ fee petition. The Landlords, as the cross-appellants, had the duty of providing this
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court with a sufficiently complete record of the proceedings below to support their claim of error.
Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003) (citing Foutch v. O’Bryant,
99 Ill. 2d 389, 391-92 (1984)). The record before us is void of any transcript from the hearing
on the fee petition, or any acceptable substitute such as a bystanders report, or an agreed statement
of facts (Ill. S. Ct. R. 323 (eff. July 1, 2017)). Therefore, we are unable to determine on what
basis the trial court awarded the amount of attorney fees now being challenged. Accordingly, we
must presume that the trial court’s ruling had a sufficient factual basis and was in conformity with
the law. See Foutch, 99 Ill. 2d at 393 (without transcript of proceedings or bystanders report, the
reviewing court must presume the trial court’s ruling was in conformity with the law). Thus, we
cannot say that the trial court abused its discretion in its award of the attorney fees.
¶ 57 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 58 III. CONCLUSION
¶ 59 The judgment of the circuit court of Kane County is affirmed.
¶ 60 Affirmed.
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