Court of Appeals of Illinois, First District, Second Division
1002 E. 87th Street LLC, Plaintiff-Appellant,
MIDWAY BROADCASTING CORPORATION, MELODY SPANN COOPER, and PIERRE COOPER, Defendants-Appellees.
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.
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
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 ...