specially concurring:
I agree this case warrants reversal. I do not agree, however, that the reversal should be based on any deficiency in the pleadings under section 2 — 1005(c). Both parties agree this is a forcible entry and detainer action. As such, it “is a summary statutory proceeding to adjudicate and restore rights of possession and *** should not be burdened by matters unrelated to the issue of possession.” Subway Restaurants, Inc. v. Riggs, 297 Ill. App. 3d 284, 287, 696 N.E.2d 733 (1998). Stated differently, all matters related to the issue of possession are properly before the circuit court to adjudicate and restore rights of possession. As an exhibit to the complaint for forcible entry and detainer, the plaintiff attached a copy of the lease. There is no issue regarding the accuracy of the lease. As part of its motion for summary judgment, the plaintiff relied on two distinct paragraphs of the lease. Although less than clear, it appears the trial court relied on either one or both paragraphs in granting the plaintiffs motion for summary judgment.
Following the grant of summary judgment, the defendants in their motion for reconsideration contended that the basis for the summary judgment motion was not properly pled in the complaint and therefore violated section 2 — 1005(c). The circuit court, in rejecting the motion, observed that the property at issue should not be allowed to remain vacant, consistent with the intent of the statute. See Subway Restaurants, Inc., 297 Ill. App. 3d at 288 (limitations imposed by the Forcible Entry and Detainer Act (now 735 ILCS 5/9 — 101 et seq. (West 2004)) allow the issue of possession to be resolved quickly). After the entry of summary judgment, the trial court was well within its authority to “permit pleadings to be amended upon just and reasonable terms.” 735 ILCS 5/2 — 1005(g) (West 2002). However, it appears the court did not do so. The only conclusion that can be reasonably drawn from this is that the trial court believed the complaint satisfied the pleading requirements of the Forcible Entry and Detainer Act to allow it to rule on the plaintiffs motion for summary judgment. See 735 ILCS 5/9 — 106 (West 2002). Even if we should find this to be an overly generous reading of the pleadings, I can find no basis to conclude that the trial court erred in ruling on the plaintiff s motion for summary judgment where the motion was based on the lease attached and incorporated into the plaintiffs complaint.
Nonetheless, based on the proceedings in the trial court, I agree that the summary judgment finding for the plaintiff must be reversed.
To the extent the trial court relied on paragraph 13 of the lease to grant the plaintiffs summary judgment motion, the trial court erred. As the defendants argue, once the use and occupancy order was entered as sought by the plaintiff, the premises could no longer be considered “abandoned” as provided in paragraph 13. Because the plaintiff did not seek leave of court to accept use and occupancy rent without prejudice to its claim of possession (see Eckel v. MacNeal, 256 Ill. App. 3d 292, 294, 628 N.E.2d 741 (1993) (trial court entered order granting plaintiff leave to accept use and occupancy without prejudice)) and the defendants paid said use and occupancy, paragraph 13 provided no basis for the trial court to grant summary judgment to the plaintiff.
To the extent the trial court relied on paragraph 11 of the lease to grant the plaintiffs summary judgment, once again the trial court erred. As best I can determine, fire destroyed the property in August 2003. Under the specific terms of paragraph 11, in the event fire rendered the premises untenantable, the plaintiff could either declare the lease terminated or repair the premises within 60 days. It did neither. Moreover, the plaintiffs actions since the fire are at odds with the provisions of paragraph 11 suggesting that the provisions of paragraph 11 are unavailable to the plaintiff. First, the plaintiff claims that the defendant had the responsibility to repair the premises and thus the plaintiff would not repair the premises within 60 days or any other period of time. Second, the plaintiff sought rent from the defendants from December 2003 through the date the plaintiff filed its complaint; thus, the plaintiff cannot claim any timely intention to declare the lease terminated. In any event, the defendants’ claim of waiver would preclude the entry of summary judgment based on paragraph 11. See Steven W. Barrick & Associates v. Witz, 147 Ill. App. 3d 615, 619, 498 N.E.2d 738 (1986) (where landlord failed to give notice that she would require strict compliance with lease term, landlord waived breaches based on prior behavior).
In the context of this appeal, our review de novo is to determine whether “a material issue of fact exists or [whether] the summary judgment was based upon an erroneous interpretation of the law.” Pagano, 257 Ill. App. 3d at 909. Because the former has been made out by the defendants, a reversal is warranted.