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Tanna Farms, L.L.C. v. Golfvisions Management, Inc.

Court of Appeals of Illinois, Second District

June 21, 2018

TANNA FARMS, L.L.C., Plaintiff-Appellee,

          Appeal from the Circuit Court of Kane County. No. 17-LM-38 Honorable Thomas J. Stanfa, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Jorgensen concurred in the judgment and opinion.



         ¶ 1 I. BACKGROUND

         ¶ 2 The plaintiff, Tanna Farms, L.L.C., is the owner of the Tanna Farms Golf Course. In 2010, it leased the golf course to the defendant, Golfvisions Management, Inc., a company that manages golf courses.

         ¶ 3 In January 2017, the plaintiff filed suit against the defendant under the Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-101 et seq. (West 2016)). The complaint alleged that the defendant had breached the lease by failing to pay monthly rent and real estate taxes, and failing to repair sewer lines.

         ¶ 4 In February 2017, the plaintiff moved for summary judgment in its favor on the basis that it had served the defendant with a five-day notice for past-due rent and it was undisputed that the defendant did not pay that rent until after the expiration of the five-day period. The following month, the defendant filed a cross-motion for summary judgment. That motion argued that the plaintiff had waived its legal rights because it had, after the expiration of the five-day period, (1) accepted payment of the past-due rent and real estate taxes; (2) stated that it would drop the lawsuit if an additional $35, 541.66 were paid, and the defendant subsequently paid (and the plaintiff acknowledged receiving) that amount; and (3) accepted payment of the most recent monthly rent, thereby bringing the defendant's account current. The plaintiff's response acknowledged that these payments had been made, but argued that the payments were accepted in order to mitigate the plaintiff's damages rather than in waiver of the plaintiff's legal right to proceed with the lawsuit.

         ¶ 5 Thereafter, despite a flurry of discovery and motions by both parties for the imposition of sanctions, the parties began to engage in settlement talks. Agreed orders were entered in April and June 2017, postponing the hearing on the cross-motions for summary judgment in light of "continuing attempts to resolve the outstanding issues."

         ¶ 6 On July 10, 2017, one week before the scheduled hearing date, the plaintiff filed a motion to voluntarily dismiss its case pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2016)). The motion noted that no trial date had been set and stated that, if the voluntary dismissal was granted, the plaintiff would pay the defendant's court costs as required by section 2-1009. The motion stated that the plaintiff sought a dismissal without prejudice.

         ¶ 7 On July 17, 2017, the scheduled date for hearing the cross-motions for summary judgment, the court first addressed the plaintiff's motion to voluntarily dismiss the case. The defendant objected to such a dismissal on the grounds that there were pending dispositive motions which could provide it with a judgment on the merits, and that, if a dismissal without prejudice were entered, the plaintiff could again bring suit against it. The plaintiff's attorney stated that his request for a dismissal without prejudice was inadvertent and that the plaintiff had meant to seek a dismissal with prejudice. The plaintiff's attorney argued that there was no substantive difference between such a dismissal and any outcome that the defendant could achieve, even if the cross-motions for summary judgment were heard:

"If you grant the motion for involuntary [sic] dismissal that I have filed, what is going to be the end result? The end result is that the tenant, which manages the Tanna Farms Golf Course, will remain as the tenant and will continue operating under the terms of the lease agreement, which is attached to our complaint, which is clear and which goes on for years. If you grant the defendant's motion for summary judgment after denying our motion for involuntary [sic] dismissal, what's going to happen? The tenant is going to stay at the property and the tenant is going to continue to operate under the terms of the lease agreement between the parties, which is clear and which is in effect for many years."

         The plaintiff's attorney later alluded to "facts and circumstances that have arisen at the golf course since we filed this case" that had allayed the concerns that had given rise to the lawsuit, with the result that the plaintiff was "very comfortable with proceeding with the tenancy." Accordingly, the plaintiff would be willing to include a statement in the dismissal order to the effect that, as of now, there were no existing violations of the lease. The trial court granted the motion for a voluntary dismissal. The written order entered that day stated that the plaintiff's motion to voluntarily dismiss the case with prejudice was granted, and that "judgment for costs for Defendant is entered pursuant to 735 ILCS 5/9-114."[1]

         ¶ 8 On August 18, 2017, the defendant filed a motion for attorney fees and costs, asserting that it was the prevailing party in the litigation and was thus entitled to recover not only "costs" of $1918.97 (an amount greater than the defendant's court costs, which had already been tendered by the plaintiff) but also attorney fees of $85, 831 pursuant to section 2.14 of the lease between the parties. That provision stated:

"In the event that it becomes necessary for either party hereto to employ legal counsel and bring legal proceedings to enforce any provision of this Lease Agreement, the prevailing party in such proceedings shall be paid all costs and all reasonable ...

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