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Naperville South Commons, LLC v. Nguyen

Court of Appeals of Illinois, Third District

August 27, 2013

NAPERVILLE SOUTH COMMONS, LLC, Plaintiff-Appellant,
v.
LIEN NGUYEN, Defendant-Appellee.

Held: [*]

An order requiring plaintiff landlord to pay $54, 000 in attorney fees to defendant tenant was not an abuse of discretion, since plaintiff was able to cross-examine the attorneys involved, certain partially redacted bills specified dates and times, and although defendant was not present at the hearing concerning defendant’s first attorney, plaintiff did have an opportunity to cross-examine that attorney.

Appeal from the Circuit Court of Will County, No. 10-LM-3022; the Hon. Mark Thomas Carney, Judge, presiding.

Daniel J. Kallan (argued), of Daniel J. Kallan Ltd., of Joliet, for appellant.

Kevin McQuillan (argued), of McQuillan Law Office, LLC, of Naperville, for appellee.

Justices Holdridge and McDade concurred in the judgment and opinion.

OPINION

O'BRIEN, JUSTICE

¶ 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.

¶ 2 FACTS

¶ 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 the 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.

ΒΆ 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 ...


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