## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

100 Roberts Road B usin ess Condom iniu m Ass’n v. Kh alaf , 2013 IL App (1st) 120461

Appellate Court Caption 100 ROBERTS ROAD B U SI NESS CONDOMI

NIUM ASSOCI ATI ON, Pla i n t i ff- Appellant, v. VI CTORI A KHALAF and STANL EY HORN, Def endants (Judd Azulay
, Glenn Seiden and All Unkno wn Occ upants, Def endants-A

ppellees)

.

District & N o. First District, F ourth Division
Docke t No. 1-12-0461

Filed September 19, 2013

Held (Note : This syl lab us

co n st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a forc ible entry and detainer action arising from defe ndants’ failure to pay common assessments for a business condominium, wher e the trial

co u rt initially enter ed judgme nt for plaintiffs but reduc ed the damage s due to the findi ng that plaintiff fail ed t o mitigate its damag es, but upon

rec onsideration found that defe nd an t s waived their rig ht to argue mitigation and dismiss ed the case on the ground that plaintiff broug ht the action for an improper purpose, the appellate court rev erse d the trial court’s ultimate ruling and rema nded the cause for entry of a judgme nt in plaintiff’s favor for the assessments due, without deduction for the failure
to mitigate damag es, and cost s an d attorney fee s, since plaintiff had no duty to mitigate damag es under the rele vant statutory pro v i sions, and under the circ umstances here
, wher e the collection of past-due assessments, and not possession, was at issue, the defe nse of improper motive would not be expanded beyond a re taliatory eviction context.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 10-M3-4333; t he Hon. Martin S. Ag ran, Judge , presiding

.

J udg ment Reverse d and re manded with dire ctions.Counsel on

Appea l Patrick E. Dwyer I I I
, of L aw Offic e of Patrick E. Dwyer I I I
, of Chicag o, for a ppellant.

Alan J. Mandel, of Alan J. Mandel, L td., of Skokie, for a ppellees.

Panel PRES I DI NG J USTI C E HOWSE delivere d the judgme nt of the court, with opinion.
J ustices McB ride a

nd Taylor conc urre d in the judgme nt and opinion.

OP INION

¶ 1 On November 24, 2010, plaintiff 100 Roberts Road Business Condomini um Association filed a forc ible entry and detainer lawsuit ag ainst defe ndants Victoria Khalaf
, Stanley Horn, J udd Azulay
, Glenn Seiden and all unknown occupa nts, claiming that defe ndants had failed to pay the common assessments due for a business condominium since 2004. ¶ 2 On J uly 2 8
, 2 0 1 1
, fo l l o wing a bench trial, the trial court enter ed a judgme nt for the plaintiff for past-due assessments ag ainst defe ndants J udd Az u l ay and Glenn Seiden. Howeve r, the trial court reduc ed plaintiff’s damag e awa rd based on its finding that plaintiff had fa iled to miti g ate its damag es. ¶ 3 Plaintiff filed a motion to rec onside r, cl ai m i n g t h at i t was inappropriate to reduc e plaintiff’s awa

rd based on its a lleg ed failure to mitigate damag es. On plaintiff’s motion for rehe aring the trial court g rante d plaintiff’s motion to rec onsider, finding that defe ndants had waived their rig ht to arg

ue mitigation bas ed on the decla ration of condominium owner s. Howeve r, the court then made a finding that plai n t i ff h ad brought the forc ible entry and detainer lawsuit for an improper purpose and dismiss ed the case ag ainst defe ndants. Plaintiff
ap peale d. For the rea sons that follow, we reve rse the judgme nt of the circ uit co u rt an d

rema nd with directions for f

urther pr ocee dings.

¶ 4 Ba ckground ¶ 5 The 100 Roberts Road Condomini um building consists of a three -unit building in Palos Heights, I llinois

. The first unit, 10001, is owned by a land trust, with the named benef iciary being J ohn C. G riffin. Unit 10001 is oc cupied by the law firm Griff in a nd Gallagher, L L C. Unit 10003 is owned by Omer Abuzi r and is occ upied by the l aw firm Abuzir & Mitchell, which is associate d with Victoria Khalaf

. Unit 10005, the unit at issue in this lawsuit, is titled
to Victoria Khalaf

, Stanley Horn, Glenn Seiden and J udd Azulay
, but has been vaca nt for a number of y ear s. Unit 10005 is encumbe red with a mortg ag e signe d by Victoria Kh al af, Stanley Horn, Gle nn Seiden and Judd Az ulay

.

-2-¶ 6 The 100 Rober ts Road Business Condomini um A ssociation, plaintiff, consists of three members: Victoria Khalaf
, Omer Abuzir and J ohn C. Griff in. Pursuant to the decla

ration of condominium owner ship, plaintiff has a duty to maintain the common are as of the building, estimate the costs associate d with m aint aining the common are as and collect assessments from the unit owner s to cover the costs of such maintena nce. ¶ 7 Def

endants, owner s of unit 10005, have not paid common assessments since 2004, with the exception of $2,000, which w as paid by a Da niel Azulay

in 2007. ¶ 8 On J une 11, 2010, p l ai n t i ff fi l ed a claim for a lien with the Cook County rec order of deeds in the amount of the unpaid asse ssments, $12,910, and mailed the lien to de fenda nts

on August 25, 2010. The notice of l i en i n d icated that plaintiff had reta ined the law firm Fullest Rosenlund Ander son P.C. to file a lawsuit and collect the amo u n t s owed in assessments, if nec essar

y

. ¶ 9 On September 23, 2010, plaintiff cause d a notice and demand for possession to be ser ved on all defe ndants. When there w as no response within the statutory period, plaintiff f

iled a forc ible entry and detainer lawsuit ag ainst defe ndants on November 24, 2010. In the lawsuit, plai n t i ff sought possession, unpaid assessments, and the pay ment of costs, late char g es, interest and r easona

ble attorne y

fee s. ¶ 10 On J une 15, 2011, defa ult judgme nts wer e enter ed ag ainst Khalaf and Horn. The de fault judgme nts wer e never vaca ted an d they are not parties to this appea l. On J uly 6, 2011, Azulay and Seiden a

ppear ed and f

iled an answ er w ith a g ener al denial of all alleg ations. ¶ 11 The trial commence d on J uly 6, 2011, proce eding ag ainst Azulay and Seiden. There was

no court repor

ter at the trial. Howeve r, in its J anuar y 12, 2012 memorandum order
, the trial
court re cited the f

acts e licited at trial, which w e in turn re cite below. ¶ 12 Plaintiff’s first witness, Nore en McI nerny , an attorne y

for Gr iffin and Ga llag her, L L C, testified t hat her firm acts as the attorne y and property manag er for pl aintiff and also rents space fr o m plaintiff. She testified that the proper ty at issue, unit 10005, is vaca nt. The

war ranty deed dat ed September 2003 states that the owner s of unit 10005 are Victoria Khalaf
, Stanley Horn, J udd Azulay and Glenn Seiden. She testified that with respe ct to this litigation, she prepa

red and filed the notice of liens an d s ent copies to defe ndants; she
prepa red the d em and for possession and sent copies to defe ndants; and she filed the complaint on November

24, 2010. ¶ 13 McInerny further testified that prior to the wee ks leading up to trial, she had never seen Azulay or Seiden, and she had never rec eived any chec ks from either of them. She testified that the current directors of the association are K halaf , Abuzir and Griff

in and that Abuzir and Khalaf are in a business relationship. She testified that the sign on the door of Abuzir’s unit states “Horn, K

halaf , Abuzir & Mitchell.” ¶ 14 Next, plaintiff cal l ed M ar y C o rr , the bookkeepe r at Griff in and Gallagher, L L C, who testified that the association pay s the insurance
, g arba g e, fire alar m sy stem and landsca

ping for the building. She testified that unit 10005 owes $16,282.15 in assessments and that since May 2004, she had only rec eived three chec ks for assessments, totaling $2,000. She further testified that when she beg an doingthe book work at Griff in a nd Gallagher, L L C, in 2006, unit 10005 was vaca

nt and was $5,000 in arr ear s. She was awa re that unit 10005 had not paid

-3-assessments in year s, but she did not do any thing a bout it. At some point, she was direc ted
to send notices to Daniel Azulay

. She sent sever al late notices to Daniel Azulay
, but did not send him any

claims for posse ssion. ¶ 15 Def

endants called defe ndant Seiden as a witness. He testified that he had rec ently lear ned that he was an owner of unit 10005. He stated that he was ne ver told he w as a joint owner , but acknow ledg ed that his signatu re wa s o n t he mortg ag e. He testified that he had known Horn for many y ear s. Seiden and Horn had been in the prac tice of law toge ther a nd Seiden had enter ed into about a dozen small investments with Horn. In 2005, arr ang ements wer e made to have Horn dissociate from Seiden’s firm. Ultimately
, a lawsuit was filed to eff ectuate the dissociation. That litigation is st ill pending. ¶ 16 In 2006 or 2007, Seiden felt that Khalaf was not fully acc ounting for the income she was bring ing in at the firm, and Seiden asked her to take some time off. Khalaf never returne d to the firm. Seiden testified that Daniel Azulay was the brother of J udd Azulay and th ey former ly had a law prac tice toge ther. When Seiden joined their law firm, Daniel Az ulay
reta ined an interest in the firm, but left the firm sh o rt l y t h ereafte r. There had been bad fee lings be tween the Azulay brothers a

nd Seiden enc ourag ed the se paration. ¶ 17 Following the trial, defe ndants reque sted an opportunity to respond to the issue of title. After this issue was briefe d, the trial court ruled in favor of plaintiff and awa rde d u np ai d assessments, but reduc ed the awa rd in two manner s. First, the court deducte d from the awa rd the amount of assessments alre ady paid, $2,000. Second, the court only allowed plaintiff to

rec over unpaid assessments fr om 2010 to the present beca use the court found that plaintiff had fa iled to miti g ate its damag es. ¶ 18 Plaintiff filed a motion to rec onsider, which was fully briefe d. The t ri al court gra nted plai n t i ff’s motion to rec onsider finding that article s XV and XVI I of the decla ration of condominium owner ship eff ectively waived d ef

en dants’ rig ht to arg

ue mitigation as a defe nse. Howeve r, the trial court ultimately dismiss ed the case , ruling in favor of defe ndants, finding that p l ai n t i ff had filed the lawsuit for an improper purpose. Specifica lly
, the court found: “The re is strong direc t and circ umstantial evidenc e in this case which leads the court to believe that the motivation for the suit ag ainst Azulay and Seiden was for rea sons other than th e collection of past due assessments. It appea rs that Azulay and Seiden wer e passive investors in a venture orche strated by Horn. Acc ording to the evidenc e, at the time of the filing of this ca s e, Ho rn and Seiden wer e and continued to be involved in litigation. Per Seiden’s testimony it appea rs that in 2006 or 2007 Khalaf left his law firm under a cloud. I t appea

rs by the sign on the door th at Ab u z i r, Horn and Khalaf are associate d in the prac tice of law. The evid ence produce d leads to the conclusion that 10005 Roberts Road was never occupie d. Khalaf along with Abuzir direc ted the lawyers to file sui t ag ainst Khalaf
, Horn, Az ulay and S eiden

. T h e attorney s who fil ed thi s case

wer e g iven an improper addre ss at which to serve Horn acc ording to the aff idavit of the specia l proce ss serve r. Even though Khalaf and Horn have never appea red, their attorney s waited four months to have a defa ult judgme nt enter ed ag ainst them. Fur thermore
, at no time have Khalaf or Horn petitioned the court to vacate t he d ef au l t

-4-judgme nt ag ainst them.”

¶ 19 On Fe bruar

y 8, 2012, plaintiff appea led the trial court’s J uly 28, 2011 order and J anuar y 12, 2012 order

. ¶ 20 On appe al, plaintiff contends this c ase must be rema nded to the trial c ourt bec ause: (1) “improper motive” is not an aff irmative d ef

en s e under I llinois condominium law, (2) mitigation is not an aff

irmative defe nse under I llinois condominium law, and (3) defe ndants forf eited both aff

irmative defe nses, improper motive a nd mitigation, beca

use they failed to plead them.

¶ 21 ANALYSI S ¶ 22 Sections 9(g )(1) and 9(h) of th e C o n d o m i n i u m Property Act (the Condomini um Act) provide that if a unit owner fails to make timely pay ments for common expenses, the amount due shall constitute a lien on the i n t er es t o f t he unit owner in the proper ty , which may be fore closed upon by the board of m anag ers of the condomini um association. S ee 765 I L CS 60 5 /9(g )(1)
, (h) (West 2008). Section 9.2 of the Condomini um Act allows a board of
manag ers to bring a lawsuit pursuant to the For cible Entry and Detaine r Act (735 I L CS 5/art. IX (West 2008)) to collect unpai d as s essments. See 765 I L CS 605/9.2(a) (West 2008). Conversely
, section 9-102(a)(7) of the For cible Entry and Detaine r Act g ives the board of
manag ers of a condominium association the authority to m ai n tain a forc ible entry and detainer action as a

means to obtain unpaid a ssessments: “(a ) The person entitled to the possession of lands or tene ments may be restore d there to under a

ny of the followingcirc umstances:

* * * (7) When any proper

ty is subject to the provisions of the Condomini um Property Act, the owner of a unit fails or ref uses to pay when due his or her proportionate share of t he common expenses of such proper ty , or of any other ex penses l aw fu l l y agree d upon or any unpaid fine, the Boa rd of Manag ers or its ag ents have serve d the demand set forth in Section 9-104.1 of this Article in the manner provided for in that Section and the u n i t o wner has failed to pay the amount claimed within the time
presc ribed in the de mand ***.” 735 I L CS 5/ 9-102(a )(7) (West 2008).
Fur ther, the For cible Entry and Detaine r Act states “whe n the action is based upon the failure of an owner of a unit there in to pay when due his or her proportionate share of the common expenses of the proper

ty , or of any other expenses lawfully agree d upon or the amount of any

u n p ai d fine, and if the court finds that the expenses or fines are due to the plaintiff, t h e p l aintiff shall be entitled to the possession of the whole of the premises cl ai m ed
, an d j u d g ment in favor of the plaintiff shall be enter ed for the possession there of and for t h e amount found due by the court including interest and late char g es, if an y , toge ther with

rea sonable attorney ’s fee s, if any , and for the plaintiff’s costs.” 735 I L CS 5/9-111(a) (West 2008). ¶ 23 In this case , there is no dispute that plaintiff proper ly brought this action seeking pay ment for unpa id assessments under the For cible Entry and De tainer A ct.

-5-¶ 24 At the out set, we note that there was no transcr ipt memorializ i n g t h e t ri al proc eeding s

and no proper by stander report certified for review on appea l. Ordinarily
, t h e absence of a

rec ord would require us to uphold the t rial court’s finding s. Foutch v. O’Bry ant , 9 9 I ll. 2d 389, 391-92 (1984) (“a

ppellant has the burden to prese nt a sufficie ntly complete rec ord ***
to support a claim of err or, and in the absenc e of such a rec ord on appea l, it will be presumed that the order enter ed by the trial court was in co n fo rm ity with law and had a sufficie nt fac tual basis”). Ho wever, in this case , the trial court included in its J anuar y 12, 2012 memorandum order a detailed statement of fac ts summarizing the testimony of eac h witness who testified at trial. As such, we have a sufficie nt basis in the rec ord to consider the merits of this appea l.

¶ 25 Fa ilure to Plead Aff irmative De fense s ¶ 26 Plaintiff argues that beca use defe ndants d i d n o t p l ea d t h e af fi rm at i ve defe nses of mitigation and improper purpose, defe ndants should have been barr ed from prese nting evidenc e of those issues at trial. The decision whether to a llow e vidence at trial lies within the sound discretion of the trial court and will not be overturne d unless there is a n abuse of that discretion. W

ebber v. W

ight & Co. , 368 I ll. App. 3d 1007, 1027-28 (2006). In the trial court’s fac tual finding s, it was clea r that evidenc e reg arding improper motive and mitigation

was prese nted at trial without any noted objection by the parties. Any doubts which may arise from the incompleteness of the rec ord will be resolved ag ainst the appellant and in favor of the judgme nt below. Foutch
, 99 I ll. 2d at 392. Ba sed upon the rec ord befor e us, we have no evidence that plaintiff objected to this testimony at trial and, there fore
, find plaintiff has waived the rig ht to raise the issue on appea l. See Gaston v. Founders Insurance Co.
, 365 I ll. App. 3d 303, 311 (2006) ( g ener ally , issues raised f or the fir st tim e on appe al ar e wa ived). ¶ 27 Fur

ther, Supreme Court Rule 181(b)( 2) provides “[i] n actions for forc ible detainer (see Rule 101(b))
, the defe ndant must appea r at the time and place specifie d in the summons. I f the defe ndant appea

rs, he or she need no t fi l e an answe r unless order ed by the court; and when no answe r is order ed, the alleg ations of the complaint will be deeme d denied, and any defe nse may be prove d as if it wer e spec ifically pleade d.” I ll. S. C t. R. 181(b)(2) ( eff . Fe b. 10, 2006). Given there is no indication in the rec ord that defe ndants wer e order ed to file an

answe r, it appea

rs that evidenc e in support of these defe nses was also proper ly prese nted at trial pursuant to Supreme Court Rule 181(b)( 2). Finding that it was proper for defe ndants to prese nt evidenc e of improper motive and mitigation at trial, we must now deter mine whether these de fense s were g erma ne to plaintiff’s f

orcible e ntry

and deta iner a ction.

¶ 28 Improper Motive D efe nse ¶ 29 Plaintiff argues that in filing a forc ible entry and detainer lawsuit ag ainst defe ndants for unpaid assessments, improper motive was not g erma ne to this action pursuant to the For cible Entry and Detaine r Act and, there fore
, could not leg ally serve as a defe nse to the claims made in the lawsuit. Where we m u s t as ce rt ain the meaning of a statute, our revie w is de novo

. Knolls Condominium Ass’n v. Harm s , 202 I ll. 2d 450, 454 (2002). ¶ 30 An action under the For cible Entry and Detaine r Act “is a specia l statutory proce eding
,

-6-summary in its nature , in deroga tion of the common law, and a party seeking this reme dy
must comply with the require ments of the statute.” (Interna l quotation marks omitted.) Eddy

v. Kerr
, 96 I ll. App. 3d 680, 681 (1981). A statute in derog ation of the common law cannot be construed as chang ing the common law beyond what the statutory languag e expresses or is nece ssarily implied from what is expressed. W illiams v. Manche

ster , 228 I ll. 2d 404, 419 (2008). In construing such a statute, a court will not presume that the leg islature intended an innovation of the common law further than that which the statutory languag e specifie s or clea rly implies. Id. Indeed, “ ‘statutes in derog ation of common law are t o b e s t rictly

co n s trued and nothing is to be rea d into such statutes by intendment or implicatio n

. ’ ” Id

. (quoting Summers v . Summers , 40 I ll. 2d 338, 342 (1968)). ¶ 31 When enter

taining forc ible entry and detainer actions, the court “has limit ed and specia l jurisdiction without equitable powers

. ” N ew port Condominium Ass’n v. Talman Home Fede ral Savings &Loan Ass’n of Chicago , 188 I ll. App. 3d 1054, 1058 (1988). A f orcible entry and detainer proce eding is a summary statutory proce eding to adjudi ca t e p o ssession rig hts and should not be burdene d by matters unrelated to the issue of possession. Bismarck Hotel Co. v. Sutherland, 92 I ll. App. 3d 167, 174 (1980). ¶ 32 T h e fo rc ible entry and detainer statute provides that “no matters not g erma ne to the distinctive purpose of the proce eding shall be introduced by joinder, counter cl ai m or otherwise. Howeve r, a claim for rent may be joined in the complaint, and judgme nt may be
enter ed for the amount of rent found due.” 735 I L CS 5/9-106 (West 2008). Acc ording ly
, only
matters g erma

ne to the distinctive purpose of a forc ible entry claim may be introduced by the d e f e n d a n t th r o u gh a f f ir ma ti v e d e f e nses, counter claims or otherwise. Am e r ic a n Na ti o n a l B a n k

v. Powell
, 293 I ll. App. 3d 1033, 1044 (1997); Oak Park Trust & Savings Bank v. Village of Mount Prospect
, 181 I ll. App. 3d 10 (1989). Our supreme court has defined “ge rmane ” as “close ly allied, *** closely related, closely connec ted.” (Interna l quotation marks omitted.) Rosewood Corp. v. Fisher , 46 I ll. 2d 249, 256 (1970). ¶ 33 Her e, the parties have made it clea r throughout the rec ord that possession is not at issue; the only matter at issue in plaintiff’s forc ible entry and detainer ac t ion is the pay ment of unpaid assessments. 1 ¶ 34 “W h er e a cl ai m s ee ks damag es and not possession, [damag es to defe ndant] i s n o t g erma ne to the distinct purposes of the for cible entr y and deta iner proc eeding .” Sawyier v. Y oung , 198 I ll. App. 3d 1047, 1053 (1990); Great American Fede ral Savings & Loan Ass’n

v. Grivas
, 137 I ll. App. 3d 267 (1985); Bismarck Hotel Co. v. Sutherland
, 92 I ll. App. 3d 167 (1 9 8 0 ); Reid v. Arcene aux , 63 I ll. App. 2d 113 (1965). Damag es sought by the def en d an t must be tied to the issue of possession. Spanish Court Two Condominium Ass’n v. Carlson
,

Wh en pos ses si on is at is sue , cou rt s have f o u n d the fol lowi ng is sue s to be germ ane in 1 for ci ble ent ry and det ai ner act ion s: “( 1) cl ai m s ass er ti ng a par amount ri ght of pos ses si on; (2) cl ai m s den ying the bre ach of

th e a greement vest ing pos ses si on i n the pla int if f; (3) cl ai m s chal le nging the valid it y or enf

orc eab il it y of the agree m ent on whic h the pla int if f bas es the ri ght to pos ses si on; or (4) cl ai m s que st ion ing the pla int if f’ s m oti vatio n for bri nging t he act ion .” Ameri can Nat ion al , 293 I ll

. App. 3 d at 104 4. Be cau se pos ses si on i s no t a t i ssu e, t hes e do not app ly in thi s c ase

.

-7-2012 I L App (2d) 110473, ¶ 33 (“where possession is not contested, the defe ndant may not

s eek damag es at all”). Given that possession is not at issue here
, we cannot fi n d t h at plaintiff’s improper motive was germane to the distinctive purpose of plaintiff’s forc ible entry and deta iner c laim. ¶ 35 In Reid, the plaintiffs filed a forc ible entry action to reg ain possession of a buildingon the basis that the defe ndant was in defa ult under article s of agree ment of the war ranty deed. Rei d
, 6 3 I ll. App. 2d at 114. Def endant chose not to contest possession but instead
counter claimed that the plaintiffs had committed fra ud and misrepre sentation by inducing the purc hase of the property

. Id. at 116. The court in Reid found that since the defe ndant’s
counter claim did not dispute possession b u t ra t h er soug ht relief other than possession, its defe nses of fra

ud and misrepre sentation wer e not g erma ne to the distinctive pur

pose of the forc ible entry

and deta iner proc eeding s. Id. ¶ 36 Simi larly
, in Sawyier
, the court found that the issue of possession w as conce ded by the defe ndant and, there fore
, was not a part of the proce eding

. Sawyier
, 198 I ll. App. 3d at 1053. As such, the court held that a defe nse challeng ing possession was not g erma ne and could not be pre sented in the for cible entr y and deta iner a ction. Id. at 1053-54. ¶ 37 In this case , possession was no longe r an issue at t ri al an d t h e d istinctive issue to be decide d in plaintiff’s claim is whether defe ndants owe plai n t i ff u npaid assessments. Def endants have not cited any case s wher e improper mot i v e h as encompassed a fac tual

scena rio like the one befor e this co urt. In the case s cited by defe ndants wher e improper motive has been held to be a valid defe nse, possession was an issue and the improper motive has been equate d with reta liatory eviction, i.e.
, case s wher e landlords have attempted to evict
tenants from their homes due to complaints the tenants have made reg arding the conditions of their homes and noncompliance with g overnme nt ordinanc es or due to their ref usal to pay rent until their complaints conce rning the condition of the p re m i s es are addre ssed. See American National
, 293 I ll. App. 3d 1033; People e x rel. De partment of Transport ation v

. W alliser
, 258 I ll App. 3d 782 (1994); Jack Spring, Inc. v. Litt le
, 50 I ll. 2d 351 (1972). In such

case s, there is a clear public policy underly ing the defen s e o f re t ali atory eviction. Clore v. Fredman
, 5 9 I l l

. 2 d 20, 26 (1974) (“The public policy of this State as evidenc ed by its statutory law fo rb i ds a landlord to terminate or ref use to rene w a lease beca use a tenant complained to a g overnme ntal authority of a bona fide violation of any applicable building code, he alth ordinanc e or similar re gulation.”). ¶ 38 Def

endants here do n o t cl ai m p l ai n t i ff fi l ed t h i s case in reta liation beca use they

co m p lained about the condition of the proper ty

. We find no public policy argu m en t applicable in this case wher e the improper motive alleg ed is bad fee lings betwee n the parties. Def endants have not cited a

ny authority findingthat the defe nse of improper motive in the
context of a forc ible entry and detainer action has been expanded beyond reta liatory eviction. We are not persua ded that the exis tence of a dispute betwee n the owner s of a condominium is a valid defe nse to a forc ible entry and detainer action filed to collect past-due assessments. We decline to expand the defe nse of improper motive beyond t h e p ub l i c policy considerations in t he cited c ases to include the fac tual alleg ations made in this case

. ¶ 39 Fur

thermore
, the fac tual basis of any improper motive in t h i s ca s e has not been f ully

-8-develope d. I t is unclea r what the exact improper motive is alleg ed to be for filing this lawsuit, and up to now, any improper motive appe ars to be ba sed upon spec ulation. ¶ 40 We appre ciate that there is obvious conflict betwee n these parties and appre ciate the trial court’s observa

ti o n s i n t h at respe ct. Howeve r, we simply can find no authority and no persua sive rea son to expand the meaning of improper motive beyond reta liatory eviction. As such, we must reve rse the trial court’s order an d re m and the cause for further procee dings consistent with this opi nion.

¶ 41 Mitigation De fense ¶ 42 Initially
, we note that the trial court, in its order g ranting rehe aring and entering judgment i n favor of the defe ndants, found that mitigation is not a proper defe nse in this case

. Def endants did not file a cross-a ppeal to contest this initial finding

. Acc ording ly
, we find we do not have jurisdiction to consider defe ndants’ claim that mitigation is a proper defe nse in this case

. Chicago Titl e & Trust Co. v. Brooklyn Bagel Boys, Inc.
, 222 I ll. App. 3d 413, 421 (1991); I ll. S. C t. R. 303 (eff. Ma y 30, 2008). ¶ 43 Assuming arguendo this i s s u e h ad b ee n proper ly prese rved, defe ndants’ claim that mitigation is a proper defe nse is without merit and would fail. Where we must asce rtain the meaning of a statute, our revie w is de novo

. Knolls Condominium Ass’n
, 202 I ll. 2d at 454. ¶ 44 As stated earlier, an action raised under the For cible Entry and Detaine r Act “is a specia l statutory proce eding
, summary in its nature, in derog ation of the c ommon law, and a pa rty seeking this re medy must c omply with the require ments of the statute.” (Interna l quotation marks omitted.) Eddy
, 96 I ll. App. 3d at 6 8 1. A statute in derog ation of the common law
cannot be construed as chang ing the comm o n l aw beyond what the statutory languag e expresses or is nec essarily implied from what is expressed. W illiams
, 228 I ll. 2d at 419. In construing such a statute, a court will not presume that the leg islature intended an innovation of the common law further than that which the statutory languag e specifie s or clea rly implies. Id. Indeed, “statutes i n derog atio n o f common law are to be st rictly construed and not hing is to be rea d into such sta t u t es by intendment or implication.” (Interna l quotation marks omitted.) Id. (quoting Summers , 40 I ll. 2d at 342). ¶ 45 Whil e defe ndants sug g est that beca use mitigation is require d in landlord-tena nt actions pursuant to section 9-213.1 (735 I L CS 5/9-213.1 (West 2008)), it should be require d in this

case , the duty of mitigation found in the landlord-tena nt statute has never been extended to

case s dealing with condominium associations and unit owner s. See 735 I L CS 5/9-213.1 (West 2008) (“a

landlord or his or he r ag ent shall take r easona ble measur es to mitig ate the damag es rec overa

ble ag ainst a defa

ulting lessee” ); St. George Chicago, Inc. v. George J. Murges & Associates, Ltd.
, 296 I ll. App. 3d 285, 290-91 (1998) (stating section 9-213.1 was

cre ated to “re quire landlords to make rea sonable eff orts to rele t t h e premises following a tenant’s depar

ture, rathe r than allowing the premises to stand vaca nt and t h e l an d l ord to collect r ent in the form of damag es”)

. ¶ 46 Rather, contra ry to the languag e in sec tion 9-213.1 pertaining to landlords and tena

nts, section 9-111.1 of the For cibl e E n t ry and Detaine r Act specific ally lay s out that a condominium association has the right, but not the obl iga tion, to rent out the uni t upon an

-9-entry of judgme nt in its favor

. 735 I L CS 5/9-11 1

. 1 (W es t 2 0 08) (“the board of manag ers

shall have the rig ht and authority
, inci d en t al t o t he rig ht of possession of a unit under the judgme nt, but not the obligation, to lease the unit to a bona fide tenant”)

. As such, we find it evident from the languag e of the For cible Entry and Detaine r Act relating to condominium associations’ r emedies that plaintiff had no duty to miti g ate da

mag es in this case. ¶ 47 For the above rea sons, we reve rse the trial court’s order and rema nd the cause direc ting the circ uit court to enter judgme nt for the plaintiff in the amount of the as s es s m ents due without d edu ct i o n for the claimed failure to mitigate damag es, and costs and rea sonable attorney fee s.

¶ 48 Reverse d and re manded with dire ctions.

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