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 

SCHOOL DISTRICT 26, 

Plaintiff-Appellant, 

v. 

PARK VIEW MONTESSORI SCHOOL and ALL 

UNKNOWN OWNERS OR OCCUPANTS,

Defendants-Appellees. 

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Appeal from the

Circuit Court of

Cook County.

No. 19 M3 4933

Honorable 

James P. Pieczonka, 

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 
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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. 
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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, 
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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 

afterthe start of the new lease term.” (Emphasis in original.) Indeed, “in many cases, the addendum 
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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 
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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 
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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 
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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 
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own clear and unambiguous terms. Specifically, the lease provided that it could be renewed yearto-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 
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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 
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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 
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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 
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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 
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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. 
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¶ 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 
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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.