The Takiff Properties Group Ltd. 2 v. GTI Life, Inc. ( 2018 )

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Appellate Court Date: 2019.04.23
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Takiff Properties Group Ltd. #2 v. GTI Life, Inc., 2018 IL App (1st) 171477
Appellate Court THE TAKIFF PROPERTIES GROUP LTD. #2, Plaintiff-Appellee, v.
Caption GTI LIFE, INC., and GUY IANTONI, Defendants-Appellants.
District & No. First District, Second Division
Docket No. 1-17-1477
Filed December 26, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 2015-
Review M1-114035; the Hon. Patricia S. Spratt, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas J. Nitschke, of Blaise & Nitschke, P.C., of Chicago, for
Appeal appellants.
Arnold H. Landis, of Law Offices of Arnold H. Landis, P.C., of
Chicago, for appellee.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason concurred in the judgment and opinion.
Justice Hyman specially concurred, with opinion.
OPINION
¶1 The Takiff Properties Group Ltd. #2, the plaintiff-landlord in this dispute, entered into a
commercial lease with GTI Life, Inc., the defendant-tenant. Defendant Guy Iantoni served as
tenant’s guarantor.1 Following a bench trial, the court entered judgment in landlord’s favor
with respect to its claim that tenant, which had abandoned the property, owed overdue rent.
The court also found that the lease contractually waived landlord’s obligation to mitigate
damages under section 9-213.1 of the Code of Civil Procedure (735 ILCS 5/9-213.1 (West
2014)). On appeal, tenant asserts that the trial court should have entered judgment in its favor
because parties cannot contractually negate section 9-213.1 and, even if they can, landlord
waived its right to assert any contractual waiver. Tenant also contends landlord failed to
present evidence that it attempted to mitigate its damages. For the following reasons, we affirm
the trial court’s judgment.
¶2 I. Background
¶3 In 2008, landlord leased to tenant the property located at 633 Skokie Boulevard, Suite 250,
Northbrook, Illinois. Although the lease was initially for one year, it was extended through
October 31, 2014, with an eventual increase in rent to $2167 per month. The lease contained
several cumulative remedies benefitting landlord, including the following:
“If the Lessee abandons the premises or otherwise entitles the Lessor so to elect,
and the Lessor elects to terminate the Lessee’s right to possession only, without
terminating the lease, the Lessor may, at the Lessor’s option enter into the premises,
*** and take and hold possession thereof. *** Upon and after entry into possession
without termination of the lease, the Lessor may, but need not, relet the premises or any
part thereof for the account of the Lessee to any person, firm or corporation other than
the Lessee for such rent, for such time and upon such terms as the Lessor in the
Lessor’s sole discretion shall determine, and the Lessor shall not be required to accept
any Lessee offered by the Lessee or to observe any instructions given by the Lessee
about such reletting.”2 (Emphases added.)
¶4 On June 25, 2015, landlord filed a complaint alleging that tenant owed $18,309.97 in
unpaid rent as well as attorney fees and costs. Ultimately, tenant filed an answer admitting that
“a certain amount of money” had not been paid but denying that the amount due was
$18,309.97. As an affirmative defense, tenant alleged that landlord failed to exercise
reasonable diligence to mitigate its damages. Specifically, landlord knew or should have
known that tenant no longer possessed the premises after March 2014. Yet, landlord made no
effort to relet the premises until approximately the summer of 2014. Tenant alleged that
because landlord failed to mitigate damages, it was not entitled to any unpaid rent. Landlord
did not file a response to the defense raised.
¶5 The matter proceeded to trial on February 15, 2017. No court reporter was present but the
parties submitted bystander reports for the trial court’s approval. According to landlord’s
proposed bystander’s report, Steve Freeman testified on landlord’s behalf that it relet the
1
For purposes of this opinion, “tenant” will refer to both GTI Life, Inc., and Iantoni.
2
We note there is no suggestion that landlord terminated the lease upon tenant’s abandonment.
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premises on August 1, 2014, prior to the lease expiration, and did not charge tenant rent for the
remaining period. On cross-examination, “Freeman testified that he had no personal
knowledge of the specific steps that [landlord] took to relet the Premises but that he believed
the Premises were listed.” Landlord’s bystander report further stated that Iantoni testified, on
tenant’s behalf, that certain personal property left on the premises was not returned.
¶6 The bystander’s report submitted by landlord concluded that after hearing argument and
considering the testimony as well as the documents admitted into evidence, the court entered
judgment in landlord’s favor for $21,616.30. In addition, “[t]he court found that [tenant] had
contractually waived [landlord’s] duty to mitigate,” and the court rejected the suggestion that
such duty could not be contractually waived. The trial court subsequently certified landlord’s
bystander’s report, to the exclusion of the report submitted by tenant, and added that tenant
“provided no legal authority for [its] position that the waiver of mitigation in the lease is
unenforceable.”
¶7 Tenant moved for the court to reconsider, arguing that Freeman admitted he had no
knowledge of any actions taken to mitigate landlord’s damages and that parties could not
contract away landlord’s “statutory duty to mitigate damages.” See id. They argued that
landlord attempted to contract itself out of its statutory duty through the lease’s language
stating that the landlord could, but was not required to, relet the premises. Tenant did not,
however, identify any case stating that a statutory duty, let alone, this statutory duty, could not
be contractually waived. According to the proposed bystander’s report certified by the court,
the trial court denied the motion to reconsider, finding that tenant had not pled that landlord
had a statutory duty to mitigate, as opposed to a common law duty.
¶8 II. Analysis
¶9 On appeal, tenant asserts that (1) landlord failed to present evidence of mitigation,
(2) landlord waived its right to assert the contractual provision excusing it from reletting the
premises, and (3) the parties could not have contracted away landlord’s statutory duty to
mitigate damages. We first examine the nature of section 9-213.1.
¶ 10 A. Section 9-213.1: Duty or Defense
¶ 11 “After January 1, 1984, a landlord or his or her agent shall take reasonable measures to
mitigate the damages recoverable against a defaulting lessee.” Id. The doctrine of mitigation is
often characterized as imposing a “duty” on an injured party, but this characterization is
inaccurate. St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill. App. 3d
285, 293 (1998); Timothy J. Patenode & William J. Dorsey, Tenant Defaults and Landlord
Remedies, in Commercial Landlord-Tenant Practice § 8.23, at 8-19 (Ill. Inst. for Cont. Legal
Educ. 2015) (stating that “the duty to mitigate is not correctly spoken of as a duty”). The
injured party incurs no liability for failing to act; rather, his recovery is reduced by the amount
of loss he could have avoided incurring. St. George Chicago, Inc., 296 Ill. App. 3d at 293
(citing Restatement (Second) of Contracts § 350, cmt. b, at 127 (1981)). This confusion is
reflected in the parties’ pleadings, which refer to section 9-213.1 both as a duty and as an
affirmative defense.
¶ 12 Moreover, as this court has previously observed, section 9-213.1 left out many details.
Snyder v. Ambrose, 266 Ill. App. 3d 163, 166 (1994). More than 30 years after the statute was
enacted, many details are still wanting. The statute’s language does not identify where the
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burden lies, although our appellate court has determined it lies with the landlord. See id.
Pertinent to this appeal, the statute does not clearly indicate whether the legislature intended to
eliminate contracting parties’ ability to excuse a landlord from attempting to mitigate damages.
Cf. City of Evanston v. Create, Inc., 85 Ill. 2d 101, 106, 114-15 (1981) (where the parties
apparently did not dispute that an ordinance, requiring landlords to “make a good faith effort to
rent [property] at a fair rental,” intended to foreclose contractual waiver of such duty, the
supreme court rejected the landlord’s assertion that the ordinance impermissibly interfered
with the right to contract (internal quotation marks omitted)).
¶ 13 Tenant contends that as a categorical rule, parties cannot waive statutory requirements. Our
supreme court, however, has held that they can. Smith v. Freeman, 232 Ill. 2d 218, 228 (2009).
Generally, individuals may waive statutory rights, so long as the waiver is voluntary, knowing,
and intentional. Elsener v. Brown, 2013 IL App (2d) 120209, ¶ 83; see also State of Illinois
Department of Central Management Services v. State of Illinois Labor Relations Board, State
Panel, 373 Ill. App. 3d 242, 255 (2007) (stating that a labor agreement can contain a
contractual waiver of a statutory right if the waiver is unmistakable and clear). That being said,
the State can adopt statutes impinging on private parties’ ability to contract. City of Evanston,
85 Ill. 2d at 114. The question is whether the legislature intended to do so here.
¶ 14 Given that section 9-213.1 is riddled with ambiguities, we now consider the legislative
history of this statute, something that the handful of cases addressing this statute have not
previously done. See Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App
(1st) 132011, ¶ 33 (stating that a statute is ambiguous where its meaning cannot be interpreted
from the statute’s plain language). As our supreme court has stated, legislative history and
debates constitute “[v]aluable construction aids in interpreting an ambiguous statute.” (Internal
quotation marks omitted.) Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 15 (citing
Advincula v. United Blood Services, 176 Ill. 2d 1, 19 (1996)). We begin with the state of the
law prior to the statute’s enactment.
¶ 15 Pursuant to the common-law doctrine of mitigation of damages, a plaintiff asserting a
breach of contract claim cannot recover losses that it could have reasonably avoided. Boyer v.
Buol Properties, 2014 IL App (1st) 132780, ¶ 67 (citing Restatement (Second) of Contracts
§ 350 (1981)). This doctrine has long constituted an affirmative defense to be pleaded and
proved by the defendant. Rozny v. Marnul, 43 Ill. 2d 54, 73 (1969). Additionally, defense
counsel conceded at oral arguments in this appeal that the common law duty to mitigate
damages can be contractually waived. That being said, before section 9-213.1 was enacted,
Illinois was divided as to whether landlords had a common law duty to mitigate damages
where a tenant abandoned the premises. See In re Estate of Conklin, 116 Ill. App. 3d 426, 429
(1983). One line of authority held that a landlord had absolutely no duty to mitigate, a second
dictated that the general rule requiring a party to mitigate damages applied equally to
landlords, and a third found that a landlord’s duty was limited to accepting suitable subtenants
when offered. See id.
¶ 16 In 1983, the House of Representatives presented the statute in question, which remains
substantially the same today. According to Representative Preston:
“House Bill 986 amends the Code of Civil Procedure to require a landlord to take
reasonable steps to mitigate damages against a tenant who is in default. *** In all areas
of contract law in this state, without exception, except for the one that I’m going to
mention, the nondefaulting, the nonbreaching party has a duty, imposed by law, to take
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reasonable steps to try to reduce the damages against the party who is in default. That is
true in every contract in Illinois and throughout the United States, except in Illinois for
landlord-tenant contract, which we normally call leases. Through a throwback to Old
English Common Law, a landlord does not have to do anything to try to reduce the
damages against a tenant in default. As a matter of fact, landlords do it anyway, even
though they don’t have to, because it’s, frankly, crazy not to try to do something to
reduce your damages ***. *** I have to take reasonable measures to try to mitigate or
reduce those damages. That is all that this Bill does in landlord-tenant lease situations.
It requires reasonable measures to try to reduce the amount of damages. Now, this
sounds like this is really changing the law a great deal, but, in fact, it’s not changing the
law almost at all.” (Emphasis added.) 83 Ill. Gen. Assem., House Proceedings, May 12,
1983, at 63 (statements of Representative Preston).
¶ 17 Representative Preston’s remarks show that the legislature enacted section 9-213.1 to
ensure that landlords have the same duty to mitigate damages that other contracting parties
have. To the extent that the trial court drew a distinction here between a landlord’s common
law duty to mitigate and its statutory duty to mitigate, no meaningful distinction exists. The
statute adopted the same common law duty that applied to every other contracting party: no
more, no less. A lack of mitigation remains an affirmative defense. Furthermore, prior
decisions applying section 9-213.1 do not change our determination.
¶ 18 In Snyder, the defendant-tenant’s attorney attempted to cross-examine the
plaintiff-landlord as to his efforts to mitigate damages. Snyder, 266 Ill. App. 3d at 165. When
the landlord objected to such questioning in the absence of a pled defense alleging the failure to
mitigate damages, the trial court sustained the objection. Id. On appeal, the reviewing court
acknowledged that section 9-213.1 left out many details, including who had the burden of
proof, but the court did not engage in statutory interpretation of this ambiguous statute. The
court did not consider Representative Preston’s statements before the House of
Representatives. Id.
¶ 19 The reviewing court found that a landlord should shoulder the burden of showing
mitigation given that such evidence was chiefly within the landlord’s control. Id. at 166.
“ ‘Where a party alone possesses information concerning a disputed issue of fact and fails to
bring forward that information, and it is shown that it can be produced by him alone, a
presumption arises in favor of his adversary’s claim of fact.’ ” Id. (quoting Belding v. Belding,
358 Ill. 216, 220-21 (1934)). The reviewing court found that the landlord was in the best
position to present evidence on mitigation and requiring the tenant to show a lack of mitigation
would impose an arduous task. Id. at 167. Moreover, the reviewing court found it was error for
the trial court to find the landlord would be surprised at having to prove he mitigated damages,
something he had an affirmative duty to do under section 9-213.1. Id. at 165. Because the
landlord presented no evidence of mitigation, the reviewing court reversed the judgment
previously entered in his favor and remanded for further proceedings. Id. at 167.
¶ 20 Four years after Snyder, in St. George Chicago, Inc., the appellate court revisited section
9-213.1. The contractual provision there entitled the plaintiff-landlord to recover the present
value of the lease rent for the unexpired term less the present fair rental value for the unexpired
term. St. George Chicago, Inc., 296 Ill. App. 3d at 290. Rather than considering whether the
landlord’s conduct satisfied its statutory duty to mitigate, the court framed the issue as whether
the lease provision itself satisfied the landlord’s statutory duty to mitigate. Id.
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¶ 21 The reviewing court found that while a defaulting tenant could theoretically extinguish
liability if a property was immediately relet, this was unlikely and the challenged lease
provision created a best case scenario by limiting any liability to the excess of the lease rate
over the market rate. Consequently, the lease provision accomplished what the statute intended
without any risk to the tenant that efforts to relet might be unsuccessful. Id. at 291. The
reviewing court concluded that the landlord’s “actual efforts in mitigation” were irrelevant to
the period following the termination of the lease but that, conversely, the landlord “must
demonstrate actual reasonable measures to mitigate damages” to recover unpaid rent for the
four months before the lease was terminated. Id. at 291-92. St. George Chicago, Inc., did not
specifically address whether parties can contractually waive the requirement of section
9-213.1.3
¶ 22 To assist the trial court on remand, the court in St. George Chicago, Inc., agreed with
Snyder that a landlord should bear the burden of demonstrating mitigation, contrary to the
general rule requiring a defendant to plead and prove a lack of mitigation. Id. at 292-93.That
being said, the reviewing court disagreed with Snyder to the extent it required proof of
mitigation as a prerequisite to recovering damages. Id. at 293. Following St. George Chicago,
Inc., it is generally settled that where a landlord cannot demonstrate that it took reasonable
steps to mitigate damages, the award of any damages will be reduced by those losses the
landlord could reasonably have avoided. Danada Square, LLC v. KFC National Management
Co., 392 Ill. App. 3d 598, 608, 610 (2009).
¶ 23 We question aspects of both Snyder and St. George Chicago, Inc. We disagree with
Snyder’s suggestion that section 9-213.1 transformed the mitigation doctrine into something
other than an affirmative defense to be alleged, if not proven, by the defendant-tenant. See also
Timothy J. Patenode & William J. Dorsey, Tenant Defaults and Landlord Remedies, in
Commercial Landlord-Tenant Practice § 8.23, at 8-18 to -19 (Ill. Inst. for Cont. Legal Educ.
2015) (stating “[t]he authors believe that there is a good-faith basis for reversing the holdings
of St. George and Snyder” because the statute could have been intended to merely reconcile the
differing lines of authority regarding a landlord’s duty to mitigate). Contrary to Snyder, we
also find that having notice of one’s obligations outside the courtroom is substantially different
from having notice of what one must be prepared to defend against inside the courtroom.
Furthermore, St. George Chicago, Inc., considered mitigation of the tenant’s liability, not the
landlord’s mitigation of its damages, as called for by the statute. Because neither case
considered whether a tenant may contractually waive its statutory right to assert a lack of
mitigation as an affirmative defense, we find those cases do not preclude contractual waiver of
the statute. But see Timothy J. Patenode & William J. Dorsey, Tenant Defaults and Landlord
Remedies, in Commercial Landlord-Tenant Practice § 8.23, at 8-18 (Ill. Inst. for Const. Legal
Educ. 2015) (stating that “[a]lthough there is no case clearly on point, the careful practitioner
should assume that the enactment repeals earlier cases holding that the duty of mitigation is
waivable by the tenant”). Simply put, tenant has not shown that parties cannot contractually
waive the obligation and corresponding right found in section 9-213.1. With that, we turn to
3
Another contractual provision purported to excuse the landlord from reletting the property if the
lease itself was not terminated. St. George Chicago, Inc., 296 Ill. App. 3d at 291. Because the lease was
terminated, the reviewing court found it did not need to consider whether that provision was contrary to
law. Id.
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the case before us.
¶ 24 B. Contractual Waiver
¶ 25 Tenant contends that landlord waived its right to assert the contractual provision that
excused it from reletting the property. While we agree with landlord that this argument lacks
cohesion (see Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296, 297 (2010)), we find
the thrust of the argument to be as follows: (1) landlord, by failing to respond to the affirmative
defense raised, admitted that it failed to mitigate damages; (2) landlord’s admission that it
failed to mitigate damages is inconsistent with its assertion that it was not required to mitigate
damages and that, in any event, it did mitigate damages; and (3) landlord’s admission waived
the right to present those inconsistent arguments.
¶ 26 A contracting party may waive a contractual provision intended to benefit that contracting
party. Barker v. Leonard, 253 Ill. App. 3d 661, 663 (1994). Actions suggesting that the party
will not require strict compliance with the beneficial provision may be evidence of waiver. Id.
Furthermore, courts may find implied waiver of a legal right where the party against whom
waiver is being asserted takes actions that are inconsistent with anything other than an
intention to waive that legal right. Id.
¶ 27 Landlord first disputes that by neglecting to respond to the affirmative defense, landlord
admitted it failed to mitigate damages. See 735 ILCS 5/2-610 (West 2014); Pancoe v. Singh,
376 Ill. App. 3d 900, 908 (2007) (stating that the failure to reply to an affirmative defense
generally results in an admission). Specifically, landlord notes that a defendant waives the
right to challenge the plaintiff’s failure to reply to an affirmative defense where the defendant
introduces evidence supporting that defense. Pancoe, 376 Ill. App. 3d at 908. Landlord cites
defense counsel’s cross-examination of Freeman. For those keeping track, landlord essentially
contends that tenant waived the right to assert landlord’s alleged waiver of tenant’s contractual
waiver.
¶ 28 Tenant responds, however, that defense counsel questioned Freeman regarding his
inability to testify regarding landlord’s efforts to mitigate damages, not landlord’s actual lack
of effort to mitigate damages. We are not persuaded. Not only is tenant splitting hairs, but there
would be no reason to ask Freeman about his knowledge of mitigation, or lack thereof, unless
defense counsel was attempting to show that landlord had not engaged in mitigation. Thus,
tenant waived the right to require an answer to its affirmative defense. It follows that landlord
did not admit that it failed to mitigate damages. Furthermore, landlord’s lack of response did
not unequivocally reflect an intention to waive its contractual right not to relet the premises.
¶ 29 Here, two commercial parties entered into a commercial lease purporting to waive tenant’s
right to have landlord attempt to relet the property upon tenant’s default. Tenant has identified
no policy preventing the enforcement of the contract in these particular circumstances. See
Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 64-65 (2006) (stating that a private
contractual provision is not contrary to public policy unless it clearly contradicts that which the
constitution, statutes, or case law have declared to be public policy or it is manifestly injurious
to the public’s welfare). There is no suggestion that there is a disparity in bargaining power
between these commercial entities. Consequently, tenant has not shown that the trial court
erred in enforcing the lease provision that excused landlord from reletting the premises.
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¶ 30 III. Conclusion
¶ 31 Section 9-213.1 merely extended to tenants the same common law affirmative defense
previously available to every other litigant. Here, however, tenant contractually waived that
affirmative defense. Absent any reason why this contractual waiver should not be enforced, we
affirm the trial court’s judgment. In light of our determination, we need not consider whether
landlord presented sufficient evidence that it mitigated its damages.
¶ 32 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 33 Affirmed.
¶ 34 JUSTICE HYMAN, specially concurring:
¶ 35 I concur in the result but write separately because I disagree with the majority’s
consideration of—much less reliance on—“legislative history” in determining whether the
landlord had a duty under section 9-213.1 to mitigate damages. 735 ILCS 5/9-213.1 (West
2014). The majority writes that section 9-213.1 is “wanting” in detail and “riddled with
ambiguities” and turns to comments made during debate in the House of Representatives to
divine its meaning. I would refrain from doing so because, as a tool of construction, legislative
history renders a narrative of little value and, besides, is unnecessary to resolve the issue before
us.
¶ 36 The use of legislative history in construing a statute’s meaning is often problematic even
when interpreting an ambiguous statute. As Justice Scalia noted, “[w]e are governed by laws,
not by the intentions of legislators.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring). “[L]egislators do not make laws by making speeches on the floor of the legislative
chamber.” Town of the City of Bloomington v. Bloomington Township, 233 Ill. App. 3d 724,
736 (1992). “They make laws by majority vote on a specifically worded bill that has been read
three times before each house and distributed to each legislator.” Id.; see also Ill. Const. 1970,
art. IV, § 8(c), (d). “Neither the disclosed nor undisclosed intent of a legislator *** becomes
law; only the bill as it reads when passed becomes law.” (Emphasis omitted.) Town of the City
of Bloomington, 233 Ill. App. 3d at 736.
¶ 37 Moreover, statements made by individual legislators during floor debates or in committee
reports do not necessarily reflect the intent of those who ultimately voted to enact the law. For
instance, the majority focuses solely on the remarks of Representative Preston. The comments
of one legislator cannot be deemed reflective of the views of the entire body. Indeed some, if
not many, legislators might not have heard the comments or been aware of them when they
voted. See, e.g., Krohe v. City of Bloomington, 329 Ill. App. 3d 1133, 1139 (2002) (Steigmann,
J., dissenting); McKinley Foundation at the University of Illinois v. Illinois Department of
Labor, 404 Ill. App. 3d 1115, 1128 (2010) (legislators do not delegate to their colleagues who
choose to speak about a bill “the authority to define what it means. Instead, the senators who
choose not to speak on the bill are entirely justified in relying upon the words it contains, not
the remarks of their colleagues construing those words in whatever fashion they wish.”); see
also Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv.
J.L. & Pub. Pol’y 61, 68 (1994) (arguing legislative history is unreliable because legislative
intent is “elusive for a natural person, fictive for a collective body”).
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¶ 38 And comments by legislators may not express their own views about the meaning and
intent of a statute but the views of third parties, such as interest groups and lobbyists. See Jack
Schwartz & Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and
Misuse of Legislative History, 54 Md. L. Rev. 432, 455 (1995) (noting, “[e]xcessive reliance
on legislative history invites lobbyists to try to win indirectly, through the legislative history,
what they lack the votes to win directly”). Although I would not suggest Representative
Preston’s remarks were anything other than his own, they do represent the views of a single
legislator in one of two legislative bodies that passed the statute (it should be noted that
throughout his service in Springfield, Representative Preston earned a reputation as a
responsible, independent, and effective legislator). To the extent the comments can ever
properly be deemed “legislative history,” I reject the notion that this court should rely on them
in construing section 9-213.1.
¶ 39 A court’s primary function in interpreting a statute involves determining and giving effect
to the legislature’s intent in enacting the statute. And legislative intent best reveals itself
through the language of the statute. See Walker v. Rogers, 272 Ill. App. 3d 86, 90 (1995). A
court construing a statute should read it as a whole, give the statutory language its plain
meaning, and import to the statute the fullest possible meaning to which it is susceptible.
Central Illinois Public Service Co. v. Illinois Commerce Comm’n, 268 Ill. App. 3d 471, 484
(1994). Thus, while a court may properly consult dictionaries and other appropriate sources in
interpreting the meaning of ambiguous terms contained in a statute, the intent of any individual
legislators before enacting a statute, arguably, has no compelling or functional relevance.
¶ 40 Furthermore, the majority’s resort to legislative history does nothing to clarify the waiver
issue. Our supreme court has held that parties may waive statutory requirements, such as
section 9-213.1’s directive that a landlord take reasonable measures to mitigate damages. See
Smith v. Freeman, 232 Ill. 2d 218, 228 (2009). The parties’ lease absolved the landlord of any
duty to mitigate damages. Thus, I would stay clear of the murky and turgid waters of legislative
history.
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