Appellate Court Determines that Merely Calling Forth COVID-19 is Insufficient to Call it a Defense Against Eviction

2460-68 Clark, LLC v. Chopo Chicken, LLC, 2022 IL App (1st) 210119 (January 18, 2022) 2d Div. / Cook Co. (FITZGERALD SMITH) Affirmed.

This matter arose due to a dispute between a landlord and tenant regarding the tenant’s inability to pay rent due to restaurant closures during the Covid-19 pandemic. Landlord filed a complaint for forcible entry and detainer, breach of contract, and breach of guarantee. The trial court found in favor of the landlord, awarding the landlord monetary damages and immediate possession of the premises. The trial court also allowed landlord to retain certain fixtures and property on the premises which tenants, on appeal, argued was a windfall and impermissible. On appeal, tenants first challenged the appellate court’s subject matter jurisdiction alleging defects in service of the five-day notice. The appellate court summarily rejected this argument on the basis that any purported supporting case law was out of date. Defendant further argued that the damages were not supported by the evidence and that landlord failed to provide evidence of attempts to mitigate damages. The appellate court found that tenant’s waived the issue by failing to argue mitigation of damages at the trial court and, even if not waived, the argument lacked merit. The appellate court also noted Finally, the appellate court found no error in the manner that the trial court conducted the trial. (LAVIN and COBBS, concurring)