2013 IL App (1st) 120461
Ill. App. Ct.2013Background
- 100 Roberts Road Business Condominium Association (plaintiff) sued unit owners of Unit 10005 (including Azulay and Seiden) under the Forcible Entry and Detainer Act to collect unpaid condominium assessments dating to 2004.
- Plaintiff filed lien and demand for possession, then sued; two defendants defaulted (Khalaf, Horn); Azulay and Seiden defended and went to a bench trial. Possession was not contested — dispute concerned unpaid assessments and related fees.
- Trial court initially awarded plaintiff unpaid assessments but reduced the award citing plaintiff’s failure to mitigate; on reconsideration the court found defendants had waived mitigation but then dismissed the action, concluding plaintiff brought the suit for an improper purpose.
- Plaintiff appealed the dismissal and the deductions for mitigation; the appellate court reviewed statutory text and precedent and considered whether improper motive or mitigation were germane defenses in this statutory forcible entry proceeding.
- The appellate court reversed the trial court, holding mitigation is not a defense under the Condominium/Forcible Entry statutes and refusing to expand the improper-motive defense beyond retaliatory-eviction contexts; remanded to enter judgment for plaintiff for assessments, costs, and reasonable attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of improper-motive defense in a condo forcible-entry action | Improper motive is not germane to forcible-entry actions to collect assessments | Plaintiff sued for improper reasons (bad feelings, leveraging defaults); motive should bar recovery | Reversed trial court: improper-motive defense cannot be expanded here; limited to retaliatory-eviction/public-policy contexts |
| Duty to mitigate unpaid-assessment damages | No duty to mitigate under Condominium/Forcible Entry Act; plaintiff entitled to full assessments, interest, fees | Plaintiff should have mitigated (e.g., rented unit); court should reduce award for failure to mitigate | Held plaintiff had no duty to mitigate under statutes governing condominium associations; mitigation deduction improper |
| Failure to plead affirmative defenses (waiver) | Defendants failed to plead mitigation/improper motive so couldn't raise them at trial | Defendants presented evidence at trial; Supreme Court Rule 181(b)(2) permits defenses in forcible-detainer actions when no answer ordered | Evidence was considered at trial without objection; plaintiff waived appellate challenge to allowance of evidence; Rule 181(b)(2) supports admitting such defenses at trial |
| Remedy and disposition | Plaintiff sought possession, unpaid assessments, costs, interest, attorney fees | Defendants sought dismissal and deductions | Appellate court reversed dismissal and directed entry of judgment for plaintiff for assessments due (no mitigation deduction), costs and reasonable attorney fees; remanded for further proceedings consistent with opinion |
Key Cases Cited
- Foutch v. O’Bryant, 99 Ill. 2d 389 (appellant bears burden of adequate record on appeal)
- Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450 (statutory interpretation de novo)
- Williams v. Manchester, 228 Ill. 2d 404 (statutes in derogation of common law strictly construed)
- Rosewood Corp. v. Fisher, 46 Ill. 2d 249 (definition of “germane” as closely related)
- Reid v. Arceneaux, 63 Ill. App. 2d 113 (defenses not germane when possession conceded)
- Sawyier v. Young, 198 Ill. App. 3d 1047 (damages not germane where possession not at issue)
- American National Bank v. Powell, 293 Ill. App. 3d 1033 (examples of matters germane when possession contested)
- Bismarck Hotel Co. v. Sutherland, 92 Ill. App. 3d 167 (forcible-entry is summary statutory proceeding with limited scope)
- Jack Spring, Inc. v. Little, 50 Ill. 2d 351 (retaliatory eviction public-policy defense)
- Clore v. Fredman, 59 Ill. 2d 20 (public policy forbidding retaliatory termination or nonrenewal)
- St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill. App. 3d 285 (landlord mitigation duty under 9-213.1 applies to landlords, not condo associations)
- Newport Condominium Ass’n v. Talman Home Federal Savings & Loan Ass’n, 188 Ill. App. 3d 1054 (forcible-entry court has limited jurisdiction)
- Great American Federal Savings & Loan Ass’n v. Grivas, 137 Ill. App. 3d 267 (damages and possession distinction)