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1002 E. 87th Street LLC v. Midway Broadcasting Corp.

Court of Appeals of Illinois, First District, Second Division

June 5, 2018

1002 E. 87th Street LLC, Plaintiff-Appellant,
v.
MIDWAY BROADCASTING CORPORATION, MELODY SPANN COOPER, and PIERRE COOPER, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 15 M1 701981 Honorable David A. Skyrd, Judge, presiding.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.

          OPINION

          HYMAN JUSTICE

         ¶ 1 Does a new landlord have standing to sue a tenant for rent that accrued before purchasing the property?

         ¶ 2 Plaintiff, 1002 E. 87th Street, LLC (87th Street), filed a verified complaint, seeking to evict defendant, Midway Broadcasting Corporation (Midway), for unpaid rent. 87th Street also sought to collect on the guaranty signed by Melody Spann Cooper and Pierre Cooper. The trial court dismissed 87th Street's complaint, finding that 87th Street lacked standing to recover rent that accrued before it owned the property. Under the terms of the lease, the trial court granted Midway attorney's fees and denied 87th Street attorney's fees.

         ¶ 3 87th Street argues the trial court erred in dismissing the verified complaint because (i) the trial court failed to follow the appropriate legal standard on the motion to dismiss, (ii) the lease established 87th Street's standing, (iii) Midway filed counterclaims against 87th Street on the basis of 87th Street's "standing, " and (iv) the trial court had no legal support for its decision. 87th Street also contends the trial court should not have awarded attorney's fees to Midway or to the guarantors and instead, should have awarded it attorney's fees as the prevailing party to Midway's counterclaims. Lastly, 87th Street asserts the trial court should have modified the agreed order on use and occupancy payments to match the lease's terms.

         ¶ 4 We affirm the trial court's dismissal of 87th Street's complaint for lack of standing. Under the lease, 87th Street is not entitled to bring suit for rent that accrued before it owned the property. We affirm the award of attorney's fees to Midway and the denial of 87th Street's attorney's fees, as 87th Street was not a prevailing party. And we affirm the trial court's decision not to modify the agreed order for use and occupancy payments because 87th Street failed to provide a sufficiently complete record.

         ¶ 5 Background

         ¶ 6 The facts are relatively simple. Midway operated a radio station at 1002 E. 87th Street, Chicago, leasing the space from Jeff BV Commercial, LLC (Jeff BV). Melody Spann-Cooper and Pierre Cooper signed the lease as guarantors. Jeff BV sold the property to Glass Management Services, Inc., which then sold it to 1002 E. 87th Street, LLC. The lease provides that Midway will pay rent "without abatement, demand, deduction or offset whatsoever ***." The lease also indicates that the landlord "shall include the party named as such in the first paragraph thereof, its representatives, assigns and successors in title to the Premises." When an original owner conveys the property, the "[t]enant agrees to attorn to such new owner." This section further specifies that, when the original landlord conveys the property, all liabilities and obligations "accrued thereafter are terminated" and all liabilities and obligations of the original landlord "shall be binding upon the new owner." Finally, the lease provides that the prevailing party in enforcing the lease "shall be entitled to recover from the nonprevailing party any costs, expenses and reasonable attorney's fees incurred."

         ¶ 7 In January 2015, after Jeff BV sold the property, Midway sent two checks to Chicago Real Estate Resources (CRER), the property agent, paid to "Glass Management" for January rent. CRER returned the checks and demanded $72, 810, the amount in past due rent it claimed Midway owed Jeff BV before Jeff BV sold the property. Midway denied that it owed past due rent, claiming that Jeff BV failed to maintain the property and that 87th Street was not the owner of the property when the past due rent allegedly accrued.

         ¶ 8 Later that month, 87th Street filed its verified complaint for eviction and possession of the property. The trial court entered an agreed order on use and occupancy payments. Midway counterclaimed, alleging that 87th Street stood in the shoes of Jeff BV, and was now liable for breach of contract for failing to maintain the property. The counterclaim also alleged civil conspiracy against Midway, tortious interference with contract, and tortious interference with a prospective financial advantage.

         ¶ 9 Two years later, Midway filed a motion to dismiss the complaint under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)), claiming 87th Street lacked standing to claim the past due rent. At the same time, 87th Street moved for summary judgment under section 2-1005 of the Code (id. § 2-1005), alleging that Midway could not dispute failing to pay rent to Jeff BV and, accordingly, defaulted under the lease. The trial court granted Midway's motion to dismiss and denied 87th Street's motion for summary judgment.

         ¶ 10 The trial court also awarded attorney's fees to Midway as the prevailing party and denied 87th Street's request for attorney's fees. Midway then filed a second motion to modify the agreed order on use and occupancy payments, arguing that it should be modified to reflect ...


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