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Naperville South Commons, LLC, v. Nguyen

Court of Appeals of Illinois, Third District

August 27, 2013

LIEN NGUYEN, Defendant-Appellee.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Appeal No. 3-12-0382 Circuit No. 10-LM-3022 Honorable Mark Thomas Carney, Judge, Presiding.

Justices Holdridge and McDade concurred in the judgment and opinion.



¶ 1 The plaintiff, Naperville South Commons, LLC, a commercial landlord, brought a forcible entry and detainer action against a tenant, the defendant, Lien Nguyen, alleging that the tenant owed back rent. The circuit court found in favor of the tenant and ordered the landlord to pay attorney fees. The landlord appealed.


¶ 3 The landlord filed a complaint in forcible entry and detainer against the tenant, alleging that the tenant owed back rent of $19, 401.88. Prior to filing the complaint, the landlord served a five-day notice on the tenant pursuant to the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)). The action was based upon a shopping center lease signed on May 1, 2007. The tenant made her last rent payment in August 2010, and the complaint was filed in October 2010. A bench trial was begun in January 2011.

¶ 4 The registered agent and owner of the landlord, Masud Arjmand, testified that the tenant rented space in his commercial retail development. The tenant rented unit 117, where she operated a nail studio/salon. The 2007 lease provided for an initial monthly base rate of $1, 703 and then increases in the third and fourth years to $2, 889 and $2, 976, respectively. However, the landlord did not make the rent increases due on May 1, 2009, nor May 1, 2010. Arjmand testified that this was not a lease modification, but just a temporary measure due to the poor economy. The tenant's base rent was increased to the 2010 contract rate ($2, 976) in September 2010. Arjmand testified that he made that decision because the tenant's business looked like it had recovered. Arjmand also testified as to how the triple net charges and real estate taxes were charged to each unit. The tenant sent Arjmand a letter dated September 5, 2010, which stated that she was going to withhold rent until the dispute between the parties was resolved.

¶ 5 The tenant testified that she signed the 2007 lease. She worked for Arjmand from August 15, 2009, until May 30, 2010, as his office manager. The tenant further testified that she was behind in rent in June 2009, and she wanted to get out of the lease. Arjmand asked her to stay, and he agreed to keep her rent at $1, 703 per month until the plaza had 100% occupancy. She acknowledged that there was nothing in writing to document the new rent agreement. The tenant claimed that Arjmand actually owed her money because of overpayment of triple net charges.

¶ 6 At the close of all testimony, the tenant indicated that she was going to vacate her unit by the end of month, July 2011, which the circuit court noted in its July 14, 2011 order. On November 18, 2011, the circuit court entered an order, without specific findings, concluding that the landlord had not proven by a preponderance of the evidence that the tenant owed any rent, utilities, common area expenses, taxes, or fees at the time of the five-day notice. The landlord did not file a timely notice of appeal, and its motion to file a late appeal was denied by this court.

¶ 7 Although the landlord did not file an appeal within 30 days of the November 18 judgment, the tenant did file a motion for fees, costs, and expenses on December 12, 2011. The circuit court found the motion to be collateral to the underlying action and denied the landlord's motion to strike or dismiss.

¶ 8 The landlord was given leave to file a petition for attorney fees, which he did. Paragraph 52 of the lease provided for attorney fees, costs, and expenses to the prevailing party – and each party maintained that it prevailed. The landlord argued that it prevailed because it was awarded possession of the premises, and on three occasions the tenant was ordered to pay sums of money for rent during the action. The tenant argued that she prevailed because there was no money due at the time of the five-day notice. The circuit court looked at two key issues: possession and rent. It found that the landlord had asked for possession, but there was never a judgment for possession. The tenant had voluntarily tendered possession, so the circuit court did not believe that the landlord prevailed on that issue. With respect to rent, the circuit court already determined that the landlord did not sustain his burden of proving that the tenant owed anything at the time of the five-day notice. Thus, the circuit court ruled that the tenant was the prevailing party and granted her petition for fees and costs. The circuit court entered judgment in favor of the tenant in the amount of $29, 310 for fees and $2, 077.22 for expenses, and reserved ruling on redacted fees.

¶ 9 As for the partially redacted fees, the circuit court entered a later order finding them to be reasonable, and ordered an additional fee award of $6, 950 against the landlord and in favor of the tenant. Finally, the circuit court considered the fees of the tenant's prior attorney and found his fees to be fair and reasonable. The circuit court entered another order in favor of the tenant and against the landlord, in the amount of $15, 723.50 on May 10, 2012. The next day, the landlord filed a notice of appeal, seeking review of the November 18 judgment on the complaint and all of the subsequent orders related to attorney fees.


ΒΆ 11 As an initial matter, we must determine if we have jurisdiction to ...

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