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05/13/94 EDN REAL ESTATE CORPORATION v. MARQUETTE

May 13, 1994

EDN REAL ESTATE CORPORATION, AN ILLINOIS CORPORATION, ED NAPLETON IMPORTS, INC., D/B/A NAPLETON IMPORTS, INC., D/B/A VOLVO/SUBURU OF OAK LAWN, INC., AND EDWARD F. NAPLETON, PERSONALLY AND AS GUARANTOR, PLAINTIFFS-COUNTERDEFENDANTS-APPELLANTS,
v.
MARQUETTE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATE JUNE 11, 1985, AND KNOWN AS TRUST NUMBER 11096, AND HENRY LESHNER, DEFENDANTS-COUNTERPLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Albert Green, Judge Presiding.

Giannis, McNAMARA, DiVITO

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Plaintiff *fn1 instituted this action for specific performance, declaratory judgment, and damages, claiming that defendants had violated the terms of a lease agreement by refusing to approve the construction of an addition to the building which was the subject of the lease. Defendants denied that they had breached the lease agreement and brought a counterclaim against plaintiff for the balance due under an agreement for the sale of chattels in bulk. The trial court determined that defendants had not breached the lease agreement and that plaintiff was not entitled to any of the relief sought in the complaint. The court also entered judgment in favor of defendants on the counterclaim against plaintiff in the amount of $143,954.40, inclusive of principal and interest, and awarded a set-off to plaintiff in the amount of $13,416. In addition, the court awarded defendants attorney fees in the amount of $59,950 plus $2,269.82 in costs. Plaintiff's request for attorney fees was denied.

On appeal, plaintiff contends that (1) the attorney fees and costs awarded to defendants were excessive, (2) the court erred in denying plaintiff's request for attorney fees, (3) the amount of the judgment interest awarded to defendants was not supported by the manifest weight of the evidence, (4) the trial court erred in dismissing the testimony of plaintiff's expert witness as to the loss of profits incurred by plaintiff, and (5) the amount of interest on the set-off awarded to plaintiff was contrary to the trial court's findings of fact.

The record reflects that defendant Leshner owned and was presidentof Leshner Corporation, which operated an automobile dealership at 4600 Southwest Highway in Oak Lawn, Illinois. Title to the real estate on which the dealership was located was owned by Marquette National Bank as trustee under land trust No. 11096, in which Leshner was the sole beneficiary.

On May 20, 1985, plaintiff and defendant Leshner entered into an agreement for sale of chattels in bulk, whereby plaintiff agreed to purchase all of the assets of an automobile dealership owned and operated by Leshner. In conjunction with the transfer of his business, Leshner agreed to lease to plaintiff the real property on which the dealership was operated.

On June 12, 1985, the parties signed a lease agreement which included the following term:

"CONSTRUCTION OF NEW IMPROVEMENTS:

The parties acknowledge that the Lessee may be required to construct an addition to the shop facilities of the premises in the near future. Lessor agrees to pay for such improvements in an amount of $100,000.00 to $200,000.00. Thereafter the base rent shall be increased monthly by an amount equal to 1.25% of the cost of such improvements expended by Lessor. In addition, the maximum purchase price, as provided herein, shall be revised and increased from $700,000 to $700,000 plus the actual amount so expended by Lessor. All plans, supervision and building shall be undertaken by Lessee and approved by Lessor. Provided, however, Lessor shall not unreasonably withhold his approval."

The lease also contained the following provision:

"If any action at law or in equity shall be brought to recover any rent under this lease, or for or on account of any breach of, or to enforce or interpret any of the covenants, terms or conditions of this lease, or for the recovery of the possession of the demised premises, the prevailing party shall be entitled to recover from the other party as part of the prevailing party's costs, reasonable attorney's fees, the amount of which shall be fixed by the court and shall be made a part of any judgment or decree rendered."

In addition, the lease required Leshner, as lessor, to maintain the roof during the first 90 days of the initial lease term. The lease agreement was attached as an exhibit to the contract for the sale of the dealership.

Within the first 90 days of the initial lease term, Napleton verbally advised Leshner that the roof was ...


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