for computing real estate taxes and common area expenses should both be changed your order to make the make there are a match between the size of the building on which the taxes of itself we have alleged that the produce agreed that real estate taxes and commentary made its expenses would both be computed on the basis of the size of these single building one out of three that the theater operated in the paid for their greed that the city of computing centuries fractional share of expenses and taxes the denominator which stood for the entire rentable area of that one building would be hundred fifty make a difference i don't think it does your honor it doesn't make it a reference to sexual one point two of the lease either or the recitals of the lease which were the mechanics by which the the agreement of the parties was carried out the letter was church street plaza saying to century we think this lease doesn't work it doesn't make sense given the way the project has been developed it's inconsistent with what we were talking about in terms of centuries pro rata share of real estate taxes income in the area expenses subsequent to that letter that we we are thinking see your honor so we don't have you get i can't say to you what the negotiations were but there were discussions between the parties between it provided what the acoustical sandridge were going to be and who is going to be responsible for meeting those standards which are an important element in a multi screen theatre where you don't want the noise from transformers interrupting the the soft weepy movie next think would you point to to indicate to the court that both parties were aware that a mutual mistake had been made yeah we don't have a factual record here we have alleged in the complaint that it was the result of a mutual which applied the discovery rule to a reformation action and it's also contrary to the supreme court's ruling in hermitage in which he said that the question of the applicability of the discovery rule ought to be based on the whether the and resolve what i think is a conflict between this court and the second district because the proper date for the commencement the earliest date for the commencement of limitations period was the date of execution of the  seeks to reform their agreement is the first amendment the lease agreement which created what we refer to in our brief as the capital l lease which is the original lease agreement as  amended by the first amendment that document didn't exist until the first amendment was executed in august of one thousand nine hundred ninety and as i said this lawsuit is timely without regard to the discovery rule if the limitations trial court ruled that the discovery rule within the applicable has not been factual development of all of the circumstances but among the circumstances we know this is century time we paid it's taxes it's really state taxes as if the amendment were the way we said it should be until two thousand and true it which point it changed its it changes tune and started insisting on paying on the basis of the beneficiary of the mistake they're paying about eighty one percent of we've we said in everything they're paying about eighty one percent of the real estate taxes that they ought to be paying if they were paying in that interest that in in condominium purchased situations interest had to be paid and your interest money if possession was going to be delivered in less than a year and did not have to be paid if the period that the interest between contract date and delivery of the unit was going to be more the here again the initial contract calls for delivery in less than a year and there was an amendment to the contract that extended the delivery date and that in the time between the initial contract and the delivered delivery date under the amended contract was more than a year and the defendant said we don't have to pay interest this court said that's not right in accordance with is which is this court's discussion of the common law merger doctrine these the execution of the amended contract created a new contract consisting of the amended terms and so many of the other terms says the party said agreed not to change the date of that new contract was the date of the amendment and the measuring period again in this case was not a limitation eged that the parties agreed to change the provision on real estate taxes and by mistake that change was not included in the first amendment to country so it's that mistake that we're seeking to reform and it's that that document the first amendment to lease agreement they were seeking to reform if you ask me what what what am i going to sort of what words were i write on what paper in order to accomplish the relief that we're seeking in this lawsuit it would be to add one more line to paragraph true of the first amendment to lease agreement as the paragraph that talks about where one hundred eighty five thousand is could be stricken out and hundred fifty thousand is going to be inserted into space it names two places but by mistake it failed to name the third place i imagine century when we get to trial on the merits may argue that it wasn't a mistake that there was intent but if this stage in the proceedings we have alleged that there was an attempt to included and a mistaken feel your to include it in we're entitled to we believe we're entitled to a trial on the merits which we can contains the mistake that we're in this court now seeking to get the right to the litigator were in the trial court seeking to reform was the first amendment police and it had once there was an amendment to the lease agreement any action brought on and the contractor with regard to the contract had to be brought on the contract as amended which was the lease agreement as amended by the first amendment which didn't exist until an agreement the agreed to reduce the agreement to a writing and that the writing that was created did not reflect the party's actual agreement so you start with the party's agreement and the question is what built if that century he said oh but you could have come in and brought this suit earlier as soon as the original lease was signing you could have been here and that's you could have filed suit that's  when that's when the process of actually crude but that's not correct because that's not this we're not bringing a suit to enforce an agreement that was made in february of one thousand night we're bringing a lease at all if they were going to amend the lease then they were doing two things they were green to make certain changes and with respect to the other provisions of the lease they were agreeing to leave but leave them the same but it was a new agreement made as of the date of the amendment that's the that's the but it's the renascence of yours is the least worst thing that's right that's the agreement they made in august they said century we're going to agree to change the real estate tax and commentary maintenance computation and they agreed we're going to agree to leave everything else the same that was that's what they're for a service and it reflects the proteas making a new does but if if you were to agree with the trial court that the common law merger doctrine for some reason didn't apply then we are a properly incurred how to separate out an action to reform the first amendment the lease agreement as a freestanding independent contract and it is a valid contractually enforceable agreement that was off for acceptance consideration running both ways execution by both parties what was transpiring between century and church street that that all would be developed if this case were to reverse but but your honor with respect to the mistake in the first amendment police the discovery rule doesn't have to be addressed because the raw suit was filed within ten years of the execution of the first amendment police so the discovery so even if pain in the right which we don't think it is the suit would be timely based on the date of execution of the first amendment the least we've also with respect to the transfer the limitations another reason that the limitations period is that they were within the limitations period is that century twice paid real estate taxes as if the agreement were as the parties ha ise actually crude in august of one thousand nine hundred nine there is no issue of discovery the lawsuit was filed within ten years of the execution of the ring in addition the parties agree that the applicable statute of limitations is a ten year limitations period specified in thirteen days two of six of the code of civil procedure as that of the statute of limitations for actions on a written contract one of the one of the provisions of thirteen days to zero six is the provision the says that if any payment i'm going to leave out some intermediate words here but if if you meet payment has been made within or developed it but it's similar to the notion of equitable tolling of the statute of limitations here true such payments were made as if the agreement had been written the way the green it is if the first amendment read it consistently with the agreement of the parties that is is if the capitation of century share of the real state taxes was based only on that one building and that on the area of the entire shopping center that was those were the first two payments of real estate taxes that were made under the lease no prior payments initially there was a period between the execution the lease and centuries occupancy and the period in those payments and sells extended the commencement of the special limitations under thirteen gauge to a six those payments were made in two thousand and one to two thousand and two and the lawsuit was plainly timely filed because those those payments as well play as i just explained to your honor's a claim to reform the first amendment the lease agreement which is a separate agreement and through to reform that separate agreement is plainly timely century has argued honour's we asked the trial court below to permit us to leave to file an amended complaint to make it even clearer that we had that we allege a which change the analysis the board of analysis of of the discovery rule in illinois but i don't think that this court ought to get to that question because her suit was timely without regard to the discovery what was the this suit was filed in march of two thousand and ten and they were totaling there was a totally agree with that effect from june third through the data fi six the statute requires an action to be commenced within ten years after it accrue so the key question in this case is when did the reformation claim that was applied in the complaint accrue the trial court quickly determined that  accrued when the parties initially executed the lease agreement on february twenty third one thousand nine hundred nine now you have to look at the complaint paragraph twenty five is the key allegation and in paragraph twenty five the plaintiff says that century i'm sorry the plaintiff is entitled to reformation of section six point three of the lease to reflect the parties agreement that the tenant must pay its pro rata share of the taxes assessed against the civilian building that's what the plaintiff is asking for in this case they want to reform section six point three based on an alleged mutual mistake that the parties agreed before on february twenty third one thousand nine hundred nine that that's how century would pay its taxes so we'll see route you don't know i mean we obviously if this case were to go forward our position is there was no mistake this was a heavily negotiated document with both parties represented by believe there was a problem with the definition well no your honor i mean and that goes beyond the scope of the pleading but and if the case were to proceed we would be able to come in and show that we never agreed to any to change section six point three there was no mutual mistake but i'm glad we changed not section six point three and so i'm glad you brought that up because that letter if you look at it carefully the letter talks about amending the definition of tenants pro rat share now section six tennis pro rata share is a defined term under the lease section six point three which is the section that's of it that is at issue here that what plaintiff wants to do is sticking to a man and the definition of tenants proportionate share of real estate taxes that's a separately separate term that's defined under the lease the june letter only talks about making a modification or an amendment to the definition of tenants pro rata share that's the defined term that deals with calculating common area expenses that defined term appears nowhere in section six point three so if you look at the complaint and say and i'm quoting to plaintiff the letter was sent according to plaintiff the parties agreed to the change set forth in that letter that's the specific allegation in this case and then and then the allegation is the parties entered into the first amendment but there is no variance there no inconsistency between the letter and the first amendment because the letter talks about making a change to the definition of attendance of  not tenants proportionate share of real estate tax advantages the key distinction between those two terms that's very important but according to the complaint the parties reached an agreement in august one thousand nine hundred ninety eight that's the letter of intent it's attached as exhibit eight of the complaint now obviously i've made it clear we're just feuding that there was any mutual mistake but we're here on dismissal so i'm going to take their allegations as true they lead plaintiff alleges that the parties agreed that century would pay its proportionate share of real estate taxes and that that agreement was made in august hundred ninety eight and as reflected in the letter of intent the parties then execute the lease agreement on february twenty third one thousand nine hundred nine according to plaintiff that document contains a mistake in that it included the one hundred eighty five thousand square foot minimum denominator in the calculation for computing tenants proportionate share of real estate taxes now at that point in time when the parties signed that document every single element for a cause of action for reformation existed we've got the two contract in parties they signed the document it according to plaintiff it contains a mutual mistake at that point in time under the law cause of action accru when up when all of it facts exist that entitle one party to bring the claim against the other party so as of the execution of the document that contains section six point three that can that has the one hundred eighty five thousand minimum square foot denominator that's the is clearly distinguishable and went out of its way to distinguish pain and because in shines the plaintiff in the reformation claim wasn't even a party to the contract that was a case where the plaintiff was trying to reform an insurance policy that she wasn't a party we're now here twelve years later so if there was such a hardship and such a concern you think they might have come into court more than twelve years after they claim to have known of the mistake and i think that to allow reformation clane to to proceed twelve years after the original document was signed i think that defeats the entire purpose of the statute of limitations so i i think that the pain in court was correct in holding that when the reformation claimed you know a reformation claim is extraordinary really if you're seeking to alter the terms of a written document parties enter into written contracts because they want certainty and when you come in and you ask the court no that's not the agreement we reached it's really something else you already have ten years that's a pretty generous statute of limitations to allow a plaintiff to come in and say well i didn't discover the mistake the election you told mistake which appeared on the face of the document then you're going to extend that already generous ten years indefinitely so i think the the reasoning in the rationale of bain en is is is a good rationale and that it still allows a plaintiff ten years but it's still protects the defendant from you know having to defend against a claim that that accrued twelve years ago so when you're when when you look at when did the cause of action the crew when did the facts exist that allowed the plaintiff to bring this reformation claim the reformation claim to amend section six point three that language appears in the february twenty third document not the august document and so you know plaintiff has argued that it's not february twenty third that's not the relevant date the relevant date is the august twentieth one thousand nine hundred nine first so the key date here is in the trial court that this claim stems from the february twenty third one thousand nine hundred document and i think that was a correct holding the language they want to change the language they're seeking to alter is in the document that was signed on february twenty third not the august october two thousand and one that they told the statute of limitations and first of all i want to point out that tax bill is attached as an exhibit to the complaint  if you ask me what i want changed what i said what i would do is i would add a sentence or i would add a paragraph to change one hundred eighty five thousand minimum one hundred eighty five thousand square foot minimum to nominator to one hundred fifty thousand in section point three that's what according to plaintiff that's what they're seeking to reform if you take a look at the tax bill that's attached exhibit the taxes and now bill maher and kind calculated using a one hundred fifty thousand minimum square foot and i major so for a plaintiff to come in here and say they paid that bill and that was in accordance with the language we're seeking to reform it's not even calculated using the hundred fifty thousand zero six when you're seeking to establish a right so they're seeking to reform the contract they're not suing us for nonpayment and the statute that says that the the provision in the statute that says you can bring a claim ten years if if a payment has been made under the contract that you can then make it ten years after the payment when you look at the language of the statute in the case launch reporting it that is that that's that provision is for claims of nonpayment not when you're seeking to establish the right and we cited case law in there involving pension plans and when a party is seeking to establish a right under a pension plan the right that that cause of action accrues when the document itself was established not you can't you can't say oh well i got some later pension payments under the plan and now therefore that told the statute of limitations and now that same premise lies here no they don't and i wanted to address the hermitage case as well that was a surprise the supreme court case and plaintiff's counsel raised it out as support for an application of the discovery rule and i hope you i don't think it helps me but i also think it's not it's a distinguishable case because in the hermitage case you know like i said it wasn't a reformation claim and i think that courts are  you know view reformation claims more or you know it gives them more scrutiny because of the fact that a party is coming in and asking the court change the terms of a written document so i don't think that that case is relevant and i think the case that is relevant is the painting case because the facts are are you saying we can't so i'm saying that the court should not apply the discovery role in a reformation claim when the claim is proper tween the two contract in parties the case there's two there's two principles that i think are important in this analysis and one is you know parties are presumed to have knowledge of the terms of contracts when they sign a contract and parties enter into written contracts for certainty and you take those two principles and you say when it's the two contract the parties involved in a reformation claim you've got a whole you've got to hold the plaintiff to those standards you've got to say you know when you sign a written contract you're charged with knowledge of what's in there so if there is a mutual mistake on the face of the document and you sign it you're charged with knowledge of that mistake as these we agreed to the first amendment and we signed that document yes agreed to the changes in that document and that's our position at that document sets forth the entire all of the amendments that we agreed to  the amendment itself doesn't change the effective date of the lease i mean i know plaintiff's counsel has relied on the merck has cited cases about the merger doctorin and once in a man minutes new single document as amended but it doesn't affect the date of the original document that document was signed on february twenty third one night the lease still in existence as of that date that's the date that has the language that the plaintiff is claiming is mistaken so didn't pay under the lease before the amendment was signed plaintiff would be coming in here suing for breach of the lease so it's not like it just be if this rate of the original date  truth from the original i don't think it's even i think it's a come it's it's an irrelevant question when you're just terminating when the cause of action accrued now if they were suing for for nonpayment or something like that you know you look at the hold up document you look at the lease as amended but that doesn't there's not one case that they cited applying the merger dr and what it says just because there's an amendment that now a accrual date you've now undone the accrual date from before and now advanced it and that clearly that just can't be the case because if all the facts exist back in february twenty third one thousand nine hundred nine just to file  that the terms of the contract have changed yes they've been amended by what's in the first amendment but that doesn't undo the accrual date that doesn't advance the effective date of the lease the lease remained effective as of february twenty third  hundred and that the first amendment did not change section six point three that's that's what they want to reform and i think you have to look at what is the language they want to change where is that language really win there yes that's the fundamental question when did the reformation claim accrue and the case law says a cause of action accrues when all the facts exist that allow a party to maintain the claim what are really applies in a reformation claim i mean it's talking about when did the injury occur when did when did you discover that there was an injury i mean that's not really that's not really at issue here in a reformation clea have because i think when you're talking about a reformation claim that's between the two contract parties and i think that's an important distinction that the parties are charged with knowledge of the document so the no there was no mutual mistake so using me in that you didn't say well just because a just because a party signs an amendment doesn't mean there was a mutual mistake i mean parties can decide to amend a contract without there ever having been a mutual mistake and so there was an amendment signed that i think signing an amendment isn't tantamount to saying there's a mutual mistake how does a man contracts all the time without there ever having been a mistake nine lease agreement that's the language they're seeking to reform so you have to look at when did the facts exist that allowed them to maintain that action when were they entitled to seek reformation of section six point three of the lease and they were entitled to bring that claim in fun february twenty third one thousand nine hundred nine the limitations expired on february twenty third two thousand and nine they filed their complaint in march of two thousand  so they were over a year late even if the court were to apply the discovery rule you know plaintiff has the burden of pleading facts to show that it should be applied and they haven't met that burden and they say they say they discovered the mistake in june of two of one thousand nine hundred nine but they didn't they don't say when and they don't say why it would have taken them four months over four months to discover the alleged mutualistic which appears on the face of the document there must be were so you know even if the court and to follow shawn's then you know they still haven't met that burden and they really can't meet that burden when you when you look at the fact that they were a signatory to the contract they're charged with so you want to bring your argument to a yes a well you're honest again i want to stress that you need to look out what their complaint just seeking not not what counsel you know now says they're seeking but what is the complaint seeking the complaint wants to see to change the language of section six point three that language appears in the february twenty third document and therefore believe the trial court properly followed bain in and help the cause of  that he grabs the first member to release correctly made the change with respect to expenses but mistakenly did not make the change with respect to a real say texas and so the he to century and century agreed to make changes that were satisfactory to it to church street they made a new agreement that was satisfactory to both sides everybody got a little something that's the new agreement that's what we're seeking t is computed with the denominator of one hundred fifty thousand square feet and it also shows payment of the taxes completed on that basis and base seventeenth two thousand and two  accomplished by changing the words in the first amendment police by adding to paragraph two in striking out one hundred eighty five thousand paragraph six point three and substituting their four hundred fifty thousand that was