Illinois Official Reports

Appellate Court

Chung v. Pham, 2020 IL App (3d) 190218

Appellate Court 

Caption

DAWN CHUNG, Plaintiff-Appellee, v. SONNY PHAM, DefendantAppellant (Hoa Tuyet Pham, Intervenor-Appellant).–HOA TUYET 

PHAM, Plaintiff-Appellant, v. SONNY PHAM and DAWN CHUNG,

Defendants-Appellees.

District & No. Third District 

Nos. 3-19-0218, 3-19-0536 cons.

Filed March 20, 2020

Decision Under 

Review

Appeal from the Circuit Court of Peoria County, Nos. 15-CH-89, 18-

CH-24; the Hon. Katherine S. Gorman Hubler and the Hon. Mark E. 

Gilles, Judges, presiding.

Judgment Affirmed in part and reversed in part.

Cause remanded with directions.

Counsel on

Appeal

Rhonda Heinz, of Westervelt, Johnson, Nicoll & Keller, LLC, of 

Peoria, for appellant Sonny Pham.

Jeffrey Alan Ryva, of Quinn, Johnston, Henderson, Pretorius & 

Cerulo, of Peoria, for other appellant.

Joseph B. VanFleet and Graciela Mata Gomez, of Howard & Howard 

Attorneys PLLC, of Peoria, for appellee.
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Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.

Presiding Justice Lytton and Justice Carter concurred in the judgment 

and opinion.

OPINION

¶ 1 This appeal involves separate proceedings from the circuit court of Peoria County. Peoria 

County case No. 15-CH-89 was brought by plaintiff-appellee, Dawn Chung, against defendantappellant, Sonny Pham, for the specific performance of a commercial real estate purchase 

agreement (purchase agreement). The circuit court granted, and our court affirmed, partial 

summary judgment and specific performance in favor of Dawn. While Sonny’s appeal of these 

grants in Peoria County case No. 15-CH-89 were pending, the circuit court allowed plaintiffappellant, Hoa Tuyet Pham, a/k/a Cindy, to file an intervention complaint in Peoria County 

case No. 15-CH-89. Cindy also brought a foreclosure lawsuit, Peoria County case No. 18-CH24, against Dawn and Sonny with respect to the commercial real estate subject to the purchase 

agreement. The circuit court involuntarily dismissed Cindy’s complaints in Peoria County case 

Nos. 15-CH-89 and 18-CH-24. The circuit court then awarded Dawn attorney fees, property 

taxes, and rent under the purchase agreement in Peoria County case No. 15-CH-89. Cindy, 

joined by Sonny, appeals in case No. 3-19-0218.

¶ 2 While Cindy and Sonny’s appeal was pending, Dawn filed a motion to compel Sonny to 

transfer the commercial real estate in accordance with the purchase agreement and prior court 

orders. The circuit court held a hearing, during which it oversaw the transfer of the deed to and 

monies for the commercial real estate. Cindy appeals in case No. 3-19-0536.

¶ 3 On our court’s own motion, Peoria County case Nos. 15-CH-89 and 18-CH-24 were 

consolidated for purposes of appeal. In addition, on our court’s own motion, appeal No. 3-19-

0536 was consolidated with appeal No. 3-19-0218.

¶ 4 I. BACKGROUND

¶ 5 On December 3, 2014, Dawn and Sonny executed a purchase agreement for commercial 

real estate, located at 7814 N. Sommer Street in Peoria. The purchase price of the commercial 

real estate was $202,000, which, under the purchase agreement, was to be “adjusted by 

prorations and credits allowed the parties.” Sonny represented, warranted, and covenanted that, 

as of the date of the purchase agreement’s execution and as of the closing date, he was “the 

sole owner of and ha[d] good and merchantable fee simple title to the Real Property.” Likewise, 

Sonny represented, warranted, and covenanted that, as of the date of the purchase agreement’s 

execution and as of the closing date, “[t]here [we]re no leases (oral or written), options, 

purchase contracts, or other agreements of any kind or nature, written or oral, whereunder or 

whereby any party could claim or assert any right, title, or interest in the Real Property that 

have not been disclosed.” Initially, the closing date was scheduled for January 14, 2015. 

However, Dawn and Sonny subsequently agreed to delay the closing until February 14, 2015.

¶ 6 Sonny refused to close on the commercial real estate. At the time of the scheduled closing, 

the commercial real estate was subject to a mortgage held by Morton Community Bank but 

had no other encumbrances. Following Sonny’s refusal to close, Dawn, on March 5, 2015, 

filed a 12-count verified complaint in Peoria County case No. 15-CH-89 (underlying lawsuit) 
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seeking, among other things, the specific performance of the purchase agreement. Dawn made 

at least 14 unsuccessful attempts to serve Sonny in the underlying lawsuit. Before Dawn could 

effectuate service, Sonny, on April 8, 2015, borrowed $201,043.89 from his sister, Cindy, to 

pay off the mortgage held by Morton Community Bank. 1 Sonny’s loan from Cindy was 

secured by a mortgage on the same commercial real estate subject to Dawn and Sonny’s 

purchase agreement. On the same day the mortgage was delivered by Sonny, April 8, 2015, 

Cindy recorded the mortgage in Peoria County. Thereafter, Morton Community Bank released 

its mortgage. 

¶ 7 On April 14, 2015, Dawn filed a motion requesting a special order allowing service of 

process on Sonny’s attorney. The circuit court granted Dawn’s motion under section 2-203.1 

of the Code of Civil Procedure (Code). 735 ILCS 5/2-203.1 (West 2014). Sonny’s attorney of 

record was served with a copy of the verified complaint filed in the underlying lawsuit on 

April 21, 2015. Thereafter, on April 23, 2015, Dawn recorded a lis pendens notice in Peoria 

County, as required by section 2-1901 of the Code. Id. § 2-1901.

¶ 8 A. Events Related to the First Appeal—Case No. 3-17-0487

¶ 9 Eventually, on June 26, 2017, the circuit court granted partial summary judgment in favor 

of Dawn in the underlying lawsuit. 2 The circuit court found that a valid and enforceable 

purchase agreement existed between Dawn and Sonny, Sonny breached the purchase 

agreement, and Dawn proved the elements necessary for an order requiring the specific 

performance of the purchase agreement. The circuit court enjoined Sonny from transferring 

the commercial real estate to anyone other than Dawn and ordered that the terms of the 

purchase agreement be performed within 60 days. The circuit court retained jurisdiction to hold 

any hearings necessary for the enforcement of the order or a determination of attorney fees or 

damages. Sonny timely filed a notice of appeal on July 25, 2017. Our court affirmed the circuit 

court’s grant of partial summary judgment and order of specific performance. See Chung v. 

Pham, 2018 IL App (3d) 170487-U. The mandate issued on January 8, 2019.

¶ 10 On August 18, 2017, the circuit court stayed the proceedings pending Sonny’s appeal. 

However, the stay was contingent upon Sonny filing “[b]ond *** in the amount of 

$202,000.00” within 30 days. See Ill. S. Ct. R. 305(b) (eff. July 1, 2017) (“A bond or other 

form of security may be required in any case, and shall be required to protect an appellee’s 

interest in property.”). Sonny did not file the bond, so the stay was lifted after 30 days.

¶ 11 As a result, on September 20, 2017, Dawn filed a petition for attorney fees and rule to show 

cause as to why Sonny had not closed on the commercial real estate, as required by the circuit 

court’s June 26, 2017, order. According to Dawn, no response was received from Sonny when 

she attempted to schedule a closing. On October 20, 2017, Sonny filed an objection to Dawn’s 

1

Cindy was not a party to Dawn and Sonny’s purchase agreement.

2

Partial summary judgment was granted in favor of Dawn for her counts of breach of the purchase 

agreement and breach of her and Sonny’s lease agreement. With respect to the count for breach of the 

purchase agreement, Dawn sought both specific performance and “reasonable attorney’s fees and costs 

of this suit.” Dawn also alleged counts of breach of implied covenant of quiet enjoyment, breach of 

implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, 

unjust enrichment, fraud and inducement, conversion, fraud, tortious interference with contracts, 

tortious interference with prospective economic advantage, and defamation.
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petition for attorney fees, arguing the purchase agreement does not provide attorney fees to 

Dawn and, in the alternative, that Dawn’s request was unreasonable. On this same day, the 

circuit court entered an order for rule to show cause against Sonny, stating “it appear[s] that 

[Sonny] has willfully refused to perform under a Real Estate Sales Contract and transfer the 

real property and improvements to [Dawn] pursuant to Orders of this Court.” Sonny was 

commanded to appear at a hearing on Dawn’s petition for rule to show cause.3

¶ 12 B. Events Related to the Second Appeal—Case No. 3-19-0218

¶ 13 On December 5, 2017, while Sonny’s appeal was pending and on the same day he was 

scheduled to appear for Dawn’s petition for rule to show cause, Cindy filed a petition to 

intervene in the underlying lawsuit. Cindy requested “the Court allow her to intervene in this 

action and allow her 45 days to file any necessary pleadings.” This same day, the circuit court, 

by agreement of the parties, granted the petition to intervene and provided Cindy with “45 days 

to file any Pleadings.”

¶ 14 Cindy filed an intervention complaint on January 18, 2018. Cindy’s intervention complaint 

alleged that she had a mortgage on the commercial real estate subject to Dawn and Sonny’s 

purchase agreement. Thus, intervention was appropriate to protect her position as a mortgagee. 

Cindy sought a court order requiring the payment of her mortgage as part of any transfer of the 

commercial real estate. Further, the prayer for relief contained in the intervention complaint 

requested “the court to allow [Cindy] to participate in the case.” The mortgage executed by 

Sonny and Cindy was attached to Cindy’s intervention complaint.

¶ 15 Also on January 18, 2018, while Sonny’s appeal from the underlying lawsuit was pending, 

Cindy filed a foreclosure complaint in Peoria County case No. 18-CH-24 (foreclosure lawsuit). 

In this foreclosure lawsuit, Cindy alleged that she held a recorded mortgage on the commercial 

real estate subject to Dawn and Sonny’s purchase agreement. The mortgage executed by Sonny 

and Cindy was attached to Cindy’s complaint. According to the foreclosure complaint, the 

initial $201,043.89 mortgage delivered by Sonny was now in default and totaling $229,393.47.

¶ 16 On March 15, 2018, Dawn filed separate section 2-619(a)(9) motions to dismiss Cindy’s 

intervention and foreclosure complaints in the underlying and foreclosure lawsuits. See 735 

ILCS 5/2-619(a)(9) (West 2016). In her motions to dismiss, Dawn argued Cindy had actual 

notice of Dawn’s underlying lawsuit before recording her mortgage on April 8, 2015. In 

response to Dawn’s requests for admissions of facts in the underling lawsuit, Cindy admitted 

she was “aware of [that] lawsuit when [she] had the Mortgage recorded.” Further, Cindy 

admitted she “discussed [that] lawsuit with [Sonny] prior to recording the Mortgage.”

¶ 17 On June 8, 2018, the circuit court entered a single order resolving Dawn’s separately filed 

motions to dismiss in the underlying and foreclosure lawsuits. The circuit court’s order stated: 

“[t]he Court finds as a matter of law when applying the legal doctrines of lis pendens and 

pendate [sic] lite that [Cindy]’s interest *** in real estate is junior to the interest created by 

[Dawn]’s summary judgment in [the underlying lawsuit].” Cindy filed separate motions to 

reconsider, amend, and for a stay in the underlying and foreclosure lawsuits on July 9, 2018.

3

This hearing was finally held on January 11, 2019, after multiple continuances and a stay of the 

circuit court proceedings, entered on August 30, 2018, pending our court’s resolution of the first appeal, 

case No. 3-17-0487.
- 5 -

¶ 18 In the meantime, on August 16, 2018, Dawn filed a supplemental memorandum in support 

of her original petition for attorney fees and rule to show cause, filed on September 20, 2017. 

In addition to attorney fees, Dawn requested property taxes and rent under the purchase 

agreement in the underlying lawsuit.4 Regarding rent, section 3(K)(ii) of article II of Dawn 

and Sonny’s purchase agreement states:

“Rents under all leases of the Real Property (exclusive of delinquent rents, but 

including prepaid rents); security deposits; common area maintenance and other 

payments payable by tenants, for or in connection with such use of occupancy thereof; 

operating expenses; personal property taxes, if any; and all other items customarily 

prorated or adjusted on the conveyance of similar properties shall be prorated as of the 

Closing Date (on a per diem basis, except to the extent that such above mentioned items 

are paid by tenants or addressed in § 3(c)(iii) herein).”

¶ 19 With respect to attorney fees, several sections of article II of Dawn and Sonny’s purchase 

agreement reference monetary obligations. Section 4(B)(i) and (ii) provide:

“(i) Except for matters which can be removed by the payment of money, which 

Seller agrees to remove at or before Closing, the Real Property is not subject to any 

liens, security interests, liabilities or judgments of any kind whatsoever.

(ii) Seller shall be responsible for all debts, claims, contracts, and liabilities in any 

way connected with the conduct of its operations on the Real Property, and Purchaser 

shall have no liability for Seller’s operations conducted on the Real Property or 

otherwise or for any liabilities, known, unknown, contingent or otherwise, of Seller.”

Section 5 of article II, pertaining to a default by the parties, provides:

“If Purchaser wrongfully refuses to close the sale of the Real Property or is unable 

to close the sale of the Real Property under the terms of this Agreement, the same shall 

constitute a breach of this Agreement and Seller shall be entitled to all remedies under 

Illinois law at the time of the breach, including, without limitation, *** the right to 

recover as an element of its damages, reasonable attorney’s fees and court costs and all 

other damages that Purchaser will suffer as a result of Purchaser’s breach or default 

hereunder. If Seller wrongfully refuses to close the purchase of the Real Property, the 

same shall constitute a breach of this Agreement and Purchaser shall be entitled to all 

remedies under Illinois law at the time of breach.”

¶ 20 On August 30, 2018, following a hearing, the circuit court denied reconsideration of the 

dismissals of Cindy’s complaints in the underlying and foreclosure lawsuits. However, the 

circuit court granted Cindy leave to amend her complaints. The circuit court also, on Cindy’s 

request and over Dawn’s objection, entered a stay of the proceedings pending our court’s 

resolution of the first appeal, case No. 3-17-0487. This time, the stay was not contingent upon 

the filing of bond, as required by Rule 305(b).

¶ 21 On September 21, 2018, Cindy filed her amended complaints in the underlying and 

foreclosure lawsuits. Cindy alleged in her amended complaints that Sonny used the funds he 

4

Regarding property taxes, the circuit court subsequently cited to section 3(F)(i) and (ii) of article 

II of the purchase agreement and found Dawn should receive a credit against the $202,000 purchase 

price in the amount of $17,964.79 for 2016 and 2017, $7823.78 for 2018, and $21.44 per day through 

the closing for 2019. On appeal, Cindy and Sonny focus their arguments on rent and attorney fees rather 

than on property taxes.
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received from Cindy to pay off and replace the mortgage held by Morton Community Bank. 

Cindy also alleged her mortgage was recorded on April 8, 2015, before Dawn served Sonny in 

the underlying lawsuit on April 21, 2015, or recorded a lis pendens notice on April 23, 2015. 

The prayer for relief in the amended intervention complaint again requested “the court to allow 

[Cindy] to participate in the case.” After Cindy’s amendments, Dawn again filed separate 

section 2-619(a)(9) motions to dismiss in the underlying and foreclosure lawsuits.

¶ 22 On January 11, 2019, the circuit court held a combined hearing and took all pending matters 

in the underlying and foreclosure lawsuits under advisement, including Dawn’s motions to 

dismiss, petition for rule to show cause, and requests for attorney fees and rent. On January 30, 

2019, the circuit court issued a single written order resolving these issues. The parties do not 

dispute that the circuit court granted Dawn’s section 2-619(a)(9) motions to dismiss Cindy’s 

amended intervention and foreclosure complaints in the underlying and foreclosure lawsuits.

¶ 23 Further, with respect to the foreclosure lawsuit, the circuit court relied upon and recited its 

prior findings from June 8, 2018, concerning the doctrine of lis pendens. The circuit court 

found that, as a matter of law, Cindy’s interest in the commercial real estate was junior to 

Dawn’s interest arising from the order granting partial summary judgment in the underlying 

lawsuit. The circuit court then found: 

“[Cindy’s] actual knowledge of the underlying lawsuit bars any attempt that she may 

take to assert lien priority to the Premises over [the] interest obtained by [Dawn] by 

virtue of her summary judgment in [the underlying lawsuit]. Accordingly, the doctrines 

of lis pendens and pendite lite [sic]bar any relief sought by [Cindy] against Dawn *** 

in this [foreclosure] action and she has superior rights to the Premises over [Cindy].”

¶ 24 With respect to the underlying lawsuit against Sonny, the circuit court found: “the 

Appellate Court affirmed [Dawn]’s Motion for Partial Summary Judgment on the issue of her 

breach of contract claim and found she is entitled to specific performance [of the purchase 

agreement].” After this finding, the circuit court moved on to resolve Dawn’s requests for the 

payment of rent and attorney fees under the purchase agreement.

¶ 25 Regarding rent, the circuit court cited section 3(K)(ii) of article II of the purchase 

agreement and found “[t]here is no dispute [Dawn] paid [Sonny] monthly rent of $1936.00. 

From 2/14/15 *** through the date of closing shall be prorated and credited to [Dawn].”5

Further, the circuit court, while citing language from Dawn’s petition that was not contained 

in the purchase agreement, awarded $50,000 in attorney fees, which were to be paid by Sonny 

at closing. The closing was ordered to take place within 28 days. 

¶ 26 Cindy and Sonny filed separate motions to reconsider in the underlying and foreclosure 

lawsuits. The circuit court denied these motions to reconsider on March 25, 2019, and again 

ordered the parties to close on the commercial real estate within 31 days. Three days earlier, 

the circuit court entered a default judgment against Sonny and in favor of Cindy in the amount 

of $229,393.47, plus costs and per diem interest of $27.54, in the foreclosure lawsuit. 

¶ 27 On April 22, 2019, Cindy filed separate amended notices of appeal in the underlying and 

foreclosure lawsuits, challenging the circuit court’s June 8 and August 30, 2018, and 

5

On September 8, 2015, Sonny filed a counterclaim against Dawn in the underlying lawsuit, 

stating Dawn “is indebted *** for rent *** at the rate $1,935.66 per month.” Dawn argued this 

was a judicial admission justifying her receipt of $1936 in rent.
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January 30 and March 25, 2019, orders. On April 23, 2019, Sonny filed a notice purportedly 

“joining [the] appeal of *** [Cindy],” wherein he listed both case Nos. 15-CH-89 and 18-CH24 and challenged the circuit court’s January 30 and March 25, 2019, orders.6

¶ 28 C. Events Related to the Third Appeal—Case No. 3-19-0536

¶ 29 On June 14, 2019, while Cindy and Sonny’s appeal was pending, Dawn filed a motion to 

compel the transfer of the commercial real estate and for a rule to show cause as to why Sonny 

had not previously done so. Dawn filed a verified supplement to her motion on July 15, 2019. 

The circuit court entered an order for rule to show cause on July 16, 2019, commanding Sonny 

to appear on July 24, 2019.7 The circuit court stated it appeared Sonny “willfully refused to 

perform under a Real Estate Sales Contract and transfer the real property and improvements to 

[Dawn] pursuant to Orders of this Court.”

¶ 30 The July 24, 2019, hearing was held as scheduled with Sonny present in court. On this date, 

the circuit court entered an order in the underlying and foreclosure lawsuits granting in part 

and denying in part Cindy and Sonny’s objection to the attorney fees setoff to the purchase 

price of the commercial real estate. The circuit court ordered that, in the closing statement, 

Dawn’s $50,000 attorney fees award should be removed from the same category as the offsets 

for property taxes and rent under the purchase agreement. The $50,000 attorney fees award 

was to be listed as a separate category entitled “Less Amounts for Attorney’s Fees Called for 

in Court Order.” Judge Gilles stated “[t]hat’s the way I interpret Judge Gorman’s order.”

¶ 31 The circuit court also overruled Cindy and Sonny’s objection to the language of the deed 

for the commercial real estate. In particular, the circuit court allowed the statement “[t]he 

premises are specifically not conveyed subject to the Mortgage recorded on April 8, 2015 by 

[Cindy].” Finally, the circuit court stated that the order to show cause would be discharged 

upon Sonny’s transfer of the deed to Dawn and the exchange of a cashier’s check for the 

balance shown on the closing statement. Sonny conveyed the deed for the commercial real 

estate to Dawn on July 24, 2019. According to the closing statement, Dawn owed Sonny 

$19,229.67 of the $202,000 purchase price. The $202,000 purchase price was offset by 

property taxes from 2016-2019 ($30,162.33), 53 months of rent ($102,608), and attorney fees 

($50,000). The amount of $19,229.67 was paid by Dawn to Sonny on July 24, 2019.

¶ 32 Cindy filed a motion to reconsider or for partial stay in the underlying and foreclosure 

lawsuits on July 26, 2019, which was denied by the circuit court in identical orders filed on 

August 15 and 16, 2019. Cindy filed a timely notice of appeal on September 9, 2019.

6

Notably, Sonny uses his appellate brief to merely adopt the facts and arguments presented by 

Cindy. Sonny does not appeal the dismissal of Cindy’s complaints in the underlying and foreclosure 

lawsuits but adopts Cindy’s arguments with respect to Dawn’s awards of attorney fees and rent under 

the purchase agreement. Sonny did, however, file a substantive reply brief.

7

Prior to this point, Judges James A. Mack and Katherine S. Gorman Hubler presided over the 

proceedings in the underlying and foreclosure lawsuits. After Cindy and Sonny appealed Judge Gorman 

Hubler’s rulings on April 22 and 23, 2019, respectively, Judge Mark E. Gilles became the presiding 

judge.
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¶ 33 D. Consolidation of Circuit Court Cases and Appeals

¶ 34 It is not clear from the record whether the underlying and foreclosure lawsuits were 

formally consolidated by the circuit court. Therefore, on January 13, 2020, on our court’s own 

motion, those cases were consolidated for purposes of appeal. In addition, appeal No. 3-19-

0536 was consolidated with appeal No. 3-19-0218.

¶ 35 II. ANALYSIS

¶ 36 A. Appeal No. 3-19-0218

¶ 37 The issues in appeal No. 3-19-0218 can be summarized as whether the circuit court erred 

by (1) dismissing Cindy’s complaints in the underlying and foreclosure lawsuits or 

(2) awarding Dawn attorney fees and rent under the purchase agreement. Each issue is 

addressed below.

¶ 38 1. Dismissals of Cindy’s Complaints in the

Underlying and Foreclosure Lawsuits

¶ 39 The circuit court twice granted Dawn’s separate section 2-619(a)(9) motions to dismiss 

Cindy’s intervention and foreclosure complaints in the underlying and foreclosure lawsuits. 

Section 2-619(a)(9) permits involuntary dismissals where “the claim asserted *** is barred by 

other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-

619(a)(9) (West 2016). An “affirmative matter” means “something in the nature of a defense 

which negates the cause of action completely.” (Internal quotation marks omitted.) Donelson 

v. Hinton, 2018 IL App (3d) 170426, ¶ 9. When the circuit court decides a section 2-619(a)(9) 

motion to dismiss, all pleadings and supporting documents are construed in the light most 

favorable to the nonmoving party. Dawson v. City of Geneseo, 2018 IL App (3d) 170625, ¶ 17. 

We conduct a de novo review. Id.

¶ 40 a. Lis Pendens

¶ 41 The circuit court’s section 2-619(a)(9) dismissals of Cindy’s intervention and foreclosure 

complaints were based upon an application of lis pendens. Thus, a brief review of the longexisting common law doctrine of lis pendens and the more recent statutory provisions related 

to that doctrine is in order.

¶ 42 Historically, the doctrine of lis pendens was developed at common law to avoid the 

“endless litigation of property rights precipitated by transfers of interest” in the property after

litigation has begun. First Midwest v. Pogge, 293 Ill. App. 3d 359, 363 (1997); Lake County 

Grading Co. v. Forever Construction, Inc., 2017 IL App (2d) 160359, ¶ 53. The doctrine of 

lis pendens began as an equitable remedy that bound all subsequent purchasers or 

encumbrancers of property to the outcome of a pending lawsuit affecting the title to or lien on 

that property. Pogge, 293 Ill. App. 3d at 363; Lake County Grading Co., 2017 IL App (2d) 

160359, ¶ 54. In Allen & Korkowski & Associates v. Pettit, the Fourth District noted that the 

common law doctrine of lis pendens operates in rem, resulting in “persons not parties to the 

litigation and not even subject to the jurisdiction of the court in the case [being] bound.” 108 

Ill. App. 3d 384, 389 (1982). The inflexible doctrine was premised on the notion that the 

existence of a lawsuit triggers constructive “ ‘notice to the world.’ ” Pogge, 293 Ill. App. 3d at 

363; Lake County Grading Co., 2017 IL App (2d) 160359, ¶ 54.
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¶ 43 On the one hand, constructive “ ‘notice to the world’ ” created a risk that subsequent third 

party purchasers or encumbrancers of property, lacking direct knowledge of a pending lawsuit, 

would be saddled with the outcome of that pending lawsuit. See Pogge, 293 Ill. App. 3d at 

363; Lake County Grading Co., 2017 IL App (2d) 160359, ¶ 54. On the other hand, subsequent 

third party purchasers or encumbrancers of property who had direct knowledge of a pending 

lawsuit, namely actual notice, would be bound, as always, to the outcome of that pending 

lawsuit. Pogge, 293 Ill. App. 3d at 363-64; Lake County Grading Co., 2017 IL App (2d) 

160359, ¶ 54.

¶ 44 It has been recognized that three requirements must be met for lis pendens to apply: (1) the 

property must be of a character as to be subject to the rule, (2) the circuit court must have 

jurisdiction over “ ‘the person and of the res,’ ” and (3) the property must be sufficiently 

described in the circuit court pleadings. Norris v. Ile, 152 Ill. 190, 202 (1894); accord Pogge, 

293 Ill. App. 3d at 363 (citing 3 Richard A. Michael, Illinois Practice, Civil Procedure Before 

Trial § 21.1 (1989)). Related to the second requirement, “ ‘[t]he lis pendens begins from the 

service of the summons or subpoena after the filing of the bill.’ ” Allen, 108 Ill. App. 3d at 389 

(quoting Norris, 152 Ill. at 199); see also Grant v. Bennett, 96 Ill. 513, 521 (1880) (“The service 

of subpoena alone is not sufficient, but a bill must also be filed, and where a bill has been filed 

and a subpoena served, whether the bill was filed before or after service, lis pendens begins 

from the date of the service and not from the filing of the bill.”).

¶ 45 When it originated, the common law doctrine of lis pendens, which viewed a pending 

lawsuit as constructive “notice to the world,” was not unduly cumbersome because in “an 

earlier, simpler era, when the amount of litigation was not progressing exponentially, the rule 

was workable. Clerk’s docket books were slim, and ‘everybody knew’ what was going on in 

court, especially in the smaller communities.” Allen, 108 Ill. App. 3d at 391.

¶ 46 i. Current Status of Constructive “Notice to the World”

¶ 47 However, as the courthouse docket books became voluminous, it was less and less likely 

that “ ‘everybody knew’ ” what legal disputes were brewing, even in the smaller communities. 

See id. Truthfully, as the court in Allen stated, “[t]oday it requires sophisticated electronic 

equipment for even a court itself to track the docket.” Id. Based on these changes in our fastpaced society, our legislature developed a statutory solution to soften the harshness of the 

common law doctrine of lis pendens for a third party subsequent purchaser or encumbrancer 

of property who was in the dark about a pending lawsuit. See 735 ILCS 5/2-1901 (West 2014). 

The mere existence of a pending lawsuit is no longer treated as constructive notice for purposes 

of lis pendens. 

¶ 48 Now, the provisions of section 2-1901 require a party to the lawsuit to affirmatively provide 

formal constructive “notice to the world” of their pending lawsuit. See id. “Before there may 

be ‘constructive notice,’ a lis pendens notice must be filed in the recorder’s office” by a party 

to the lawsuit. Pogge, 293 Ill. App. 3d at 363; see also Lake County Grading Co., 2017 IL App 

(2d) 160359, ¶ 55; 735 ILCS 5/2-1901 (West 2014). Simply stated, if a lis pendens notice is 

not filed in the recorder’s office, as required by section 2-1901, then a subsequent third party 

purchaser or encumbrancer of property, which is the subject of a pending lawsuit, will not be 

bound by the outcome of that pending lawsuit. 735 ILCS 5/2-1901 (West 2014); Pogge, 293 

Ill. App. 3d at 363; Lake County Grading Co., 2017 IL App (2d) 160359, ¶ 55.
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¶ 49 ii. Current Status of Actual Notice

¶ 50 Significantly, section 2-1901 does not alter the harshness of the common law doctrine of 

lis pendens for third party subsequent purchasers or encumbrancers of property who have 

direct knowledge, i.e., actual notice, of a pending lawsuit. Pogge, 293 Ill. App. 3d at 363-64; 

Lake County Grading Co., 2017 IL App (2d) 160359, ¶ 56; accord Voga v. Voga, 376 Ill. App. 

3d 1075, 1081 (2007). As at least two courts have succinctly stated, “[i]t would be inconsistent 

to bind those with constructive notice of the pending action [under section 2-1901] but not 

those with actual notice.” Pogge, 293 Ill. App. 3d at 364; Lake County Grading Co., 2017 IL 

App (2d) 160359, ¶ 56; see also U.S. Bank National Ass’n v. Johnston, 2016 IL App (2d) 

150128, ¶ 45 (“Actual notice is knowledge that the purchaser had at the time of the 

conveyance.”). For this reason, parties with actual notice of a pending lawsuit remain subject 

to the common law doctrine of lis pendens, even if there is noncompliance with section 2-1901. 

Pogge, 293 Ill. App. 3d at 363-64; Lake County Grading Co., 2017 IL App (2d) 160359, ¶ 56; 

Voga, 376 Ill. App. 3d at 1081.

¶ 51 iii. Current Interface of Common Law and Statutory Lis Pendens

¶ 52 The effect of the coexistence of the common law doctrine of lis pendens, resulting from 

actual notice, and section 2-1901, governing constructive notice, is straightforward. At this 

time, subsequent third party purchasers or encumbrancers of property involved in a pending 

but unresolved lawsuit can be assigned to one of three categories: (1) those with actual notice 

who are and always have been subject to the common law doctrine of lis pendens; (2) those 

with constructive notice who, after the filing of a lis pendens notice, are subject to section 2-

1901; or (3) those with neither actual nor constructive notice who are not subject to the 

common law doctrine of lis pendens or section 2-1901 and, thus, whose interests are superior 

to any interest resulting from the pending lawsuit. See Pogge, 293 Ill. App. 3d at 363-64; Lake 

County Grading Co., 2017 IL App (2d) 160359, ¶¶ 54-56; 735 ILCS 5/2-1901 (West 2014).

¶ 53 iv. Application of Lis Pendens to the Present Appeal

¶ 54 Here, Cindy obtained and recorded her mortgage on April 8, 2015. It was not until 15 days 

later, on April 23, 2015, that Dawn filed a lis pendens notice in Peoria County. Thus, we may 

swiftly conclude, as Cindy argues for purposes of this appeal, that Cindy did not receive 

constructive notice under section 2-1901 and cannot be bound to the outcome of the underlying 

lawsuit on that basis. See 735 ILCS 5/2-1901 (West 2014). Consequently, Cindy does not fall 

under the second category of third party subsequent purchasers or encumbrancers of property.

¶ 55 Next, we must determine whether Cindy had actual notice of the underlying lawsuit. This 

determination will indicate whether Cindy falls within the first or the third category of third 

party subsequent purchasers or encumbrancers of property. The former category subjects 

Cindy to the common law doctrine of lis pendens, as Dawn argues, while the latter category 

protects Cindy from any application of lis pendens, as Cindy argues. 

¶ 56 The determination and effect of Cindy’s actual notice, or lack thereof, is dictated by the 

guidance set forth by our supreme court in Grant, which was one of the first cases in which 

our supreme court addressed the doctrine of lis pendens. See Grant, 96 Ill. at 521-25. The 

significance of Grant, which preceded our supreme court’s opinion in Norris, cannot be 

overemphasized. See Norris, 152 Ill. at 199, 202. Grant became a cornerstone for the oft-cited 

principle that lis pendens “begins from the date of the service.” Grant, 96 Ill. at 521.
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¶ 57 As a cautionary introduction, the archaic language employed in Grant is difficult to digest 

with a mere cursory reading. Indeed, an incomplete reading of Grant produces inaccurate 

conclusions. However, an understanding of our supreme court’s discussion in that case of both 

constructive and actual notice is vital to the outcome of the present appeal. Thus, we begin by 

reviewing the pertinent facts in Grant, the analysis developed by our supreme court with 

respect to lis pendens, and the facts contained in the record in the present appeal.

¶ 58 The facts in Grant reveal that a Mr. Rockafellow, the prior owner of the property at issue, 

was seeking a reconveyance of title and possession of the property from a Miss Newcomb. Id.

at 520. Rockafellow filed his bill in the circuit court of Cook County against Newcomb about 

one hour before Newcomb conveyed the property to a third party, Mr. Grant. Id. Three days 

after Newcomb conveyed the property to Grant, Newcomb was personally served with the 

summons in Rockafellow’s lawsuit. Id. at 531 (Dickey, C.J., dissenting). When before our 

supreme court, Grant argued that his status as an innocent third party purchaser made his 

interest in the property superior to that of Rockafellow, as determined by his lawsuit against 

Newcomb. Id. at 524-25 (majority opinion).

¶ 59 The timing of events in this appeal mirror the timing of events in Grant. As in Grant, Dawn 

filed a verified complaint in the circuit court to obtain title and possession of the commercial 

real estate from Sonny. See id. at 520. Likewise, after Dawn filed her complaint on March 5, 

2015, but before Sonny’s attorney finally accepted service of process on his behalf on April 

21, 2015, Sonny conveyed a security interest on the commercial real estate to Cindy. See id.

As in Grant, Cindy then asserted that her status as a third party subsequent encumbrancer made 

her interest in the commercial real estate superior to that acquired by Dawn in the underlying 

lawsuit. See id. at 524-25.

¶ 60 Relevantly, in Grant, our supreme court determined whether Grant’s interest as a third 

party subsequent purchaser would be superior to the interests rendered in the lawsuit involving 

the same property filed by Rockafellow. Id. at 521. In doing so, our supreme court considered, 

inter alia, two separate and distinct questions before reaching a conclusion. Id. Initially, our 

supreme court addressed whether Grant had constructive notice of Rockafellow’s lawsuit 

against Newcomb from the filing of the bill in the circuit court. See id. at 521-23. Next, our 

supreme court addressed whether Grant, while lacking constructive notice, had actual 

knowledge of the lawsuit filed by Rockafellow against Newcomb. See id. at 521, 523-25. 

¶ 61 Ultimately, our supreme court held that Grant lacked both constructive and actual notice 

of Rockafellow’s lawsuit and, therefore, had an interest in the property that was superior to 

any interest rendered by the outcome of that lawsuit. Id. at 521-25. When addressing the initial 

question focused on Grant’s constructive notice, our supreme court stated: “[t]he service of 

subpoena alone is not sufficient, but a bill must also be filed, and where a bill has been filed 

and a subpoena served, whether the bill was filed before or after service, lis pendens begins 

from the date of the service and not from the filing of the bill.” Id. at 521. Grant was protected 

from the harshness of lis pendens due to the timing of Rockafellow’s bill and the service of 

Newcomb. Id. at 521-22. Constructive “notice to the world” did not exist until Newcomb was 

served with the summons. Id. at 522.

¶ 62 Before moving on to the second question in Grant, we state the obvious by observing that 

our supreme court was well aware that personal jurisdiction over Newcomb was established 

three days after the property was conveyed to Grant. Id. at 522. Nonetheless, our supreme court 
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proceeded to consider the consequences for Grant if he possessed actual notice of 

Rockafellow’s lawsuit against Newcomb when purchasing the property. Id. at 523-25.

¶ 63 When addressing Grant’s actual notice, our supreme court knew, at the time Newcomb 

conveyed the subject property to Grant, neither Newcomb nor Grant knew anything about the 

filing of the bill in the circuit court by Rockafellow. Id. at 520. In addition, the supreme court 

observed that Grant lacked any actual knowledge that “Rockafellow had any claim to the 

property, or that there was danger of litigation over the title” when Grant purchased the 

property from Newcomb. Id. at 523. Further, our supreme court emphasized that Grant testified 

he had no actual knowledge that “any difficulty existed between Miss Newcomb and 

Rockafellow,” “any person had any claim on the land,” or “of whom or how [Miss Newcomb] 

acquired the title to the property.” Id. at 524. After clarifying that Grant lacked both 

constructive and actual notice, our supreme court treated Grant as an innocent third party that 

was protected from the reach of the doctrine of lis pendens. See id. at 522, 524-25. In our view, 

it is clear our supreme court would have reached the opposite outcome if Grant had possessed 

actual notice of Rockafellow’s lawsuit, even where Grant did not have constructive notice. 

¶ 64 Our supreme court’s discussion of a hypothetical factual scenario where a third party, 

Grant, had actual notice of a pending lawsuit, is on all fours with the nonhypothetical facts of 

this appeal. See id. at 523-25. In this appeal, unlike in Grant, Cindy admitted that she had 

actual notice of the underlying lawsuit before she obtained and then recorded her mortgage. 

Further, Cindy admitted that she discussed the underlying lawsuit with Sonny, despite the fact 

that he was not served with a summons after Dawn’s 14 good faith, but unsuccessful, attempts. 

Unlike in Grant, Cindy had actual notice of the equities involved in Dawn’s lawsuit. See id. at 

524. Likewise, by virtue of her discussions with Sonny, Cindy had actual notice of the “danger 

of litigation over the title” of the commercial real estate. See id. at 523. Clearly, if Grant had 

known about the equities involved in Rockafellow’s lawsuit against Newcomb, our supreme 

court would have bound Grant to the outcome of that lawsuit. See id. at 524-25.

¶ 65 We cannot ignore the approach employed by our supreme court in Grant. See id. at 521-

25. Therefore, we conclude, for purposes of lis pendens, the subsequent timing of personal 

service is irrelevant when (1) the third party trying to evade the reach of lis pendens has actual 

notice and (2) the circuit court eventually obtains personal jurisdiction over the defendant in 

the pending lawsuit. If this were not the rule, then the timing of the service on Newcomb in 

Grant, three days after her conveyance of the property to Grant, would have ended our supreme 

court’s inquiry in that case. See id. at 521-22. It is significant that once the supreme court found 

Grant, the third party, lacked constructive notice, it nonetheless felt it necessary to consider his 

actual notice. See id. at 523-25.

¶ 66 While Cindy may have lacked a malicious intent, we conclude she knowingly aided 

Sonny’s encumbrance of the commercial real estate, which was an act in derogation of the 

representations, warranties, and covenants contained in the purchase agreement subject to the 

underlying lawsuit. This mutual knowledge of Cindy and Sonny, which was not present 

between Newcomb and Grant in Grant, is detrimental to Cindy’s position. See id. at 514. Based 

on these facts, we conclude the date of Sonny’s service of process for purposes of the circuit 

court’s jurisdiction over “the person” relates back to the first verifiable date of Cindy’s actual 

notice of the underlying lawsuit, April 8, 2015. See id. at 523-25; Norris, 152 Ill. at 202; Pogge, 

293 Ill. App. 3d at 363 (citing 3 Richard A. Michael, Illinois Practice, Civil Procedure Before 

Trial § 21.1 (1989)). As a result, we hold that Cindy’s interests do not take priority over Dawn’s 
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interest arising from the circuit court’s June 26, 2017, grant of partial summary judgment and 

order of specific performance. In other words, Cindy cannot evade lis pendens by pointing out 

that the circuit court obtained personal jurisdiction over Sonny after her actual notice of the 

underlying lawsuit.

¶ 67 Hence, the circuit court did not err by binding Cindy to her actual notice, consistent with

the first category of third party subsequent purchasers or encumbrancers of property. For the 

reasons set forth above, we affirm the circuit court’s dismissals of Cindy’s intervention and 

foreclosure complaints in the underlying and foreclosure lawsuits pursuant to the common law 

doctrine of lis pendens.

¶ 68 b. Subrogation and Assignment

¶ 69 Next, with respect to subrogation, Cindy claims Dawn and Sonny intended for Cindy’s 

mortgage to be substituted for or replace the mortgage held by Morton Community Bank, as 

to prevent the commercial real estate from foreclosure before closing. On this basis, Cindy 

submits her complaints should not have been dismissed. Cindy argues her complaints 

sufficiently allege that she was subrogated to Morton Community Bank’s priority lien position 

when she, with Dawn’s knowledge, lent money to Sonny to pay that institution’s mortgage.

¶ 70 Subrogation allows one who has involuntarily paid a debt or claim of another to succeed 

to the rights of the other with respect to that claim or debt. Dix Mutual Insurance Co. v. 

LaFramboise, 149 Ill. 2d 314, 319 (1992); see also Paliatka v. Bush, 2018 IL App (1st) 172435, 

¶ 18. Relevantly, there are two types of subrogation: contractual subrogation and common law 

subrogation. Paliatka, 2018 IL App (1st) 172435, ¶ 17. A new lender seeking contractual 

subrogation to lien priority must demonstrate (1) there is an express agreement that the new 

lender will be able to assert the rights of the original creditor; (2) the previous debt was, in fact, 

paid by the new lender; (3) no harm will come to an innocent party if priority is granted to the 

new lender; and (4) there was no gross negligence. Id. In addition, the new lender must record 

its mortgage, the original mortgage must be in full force and effect at the time of the recording, 

and the lien priority must be limited to the original amount perfected by the original creditor. 

Id.

¶ 71 In contrast, common law subrogation arises as a result of the payment on behalf of another. 

Id. ¶ 18. In this context, subrogation is an equitable remedy that attains “substantial justice” by 

“placing ultimate responsibility for the loss upon the one against whom in good conscience it 

ought to fall.” LaFramboise, 149 Ill. 2d at 319. The one asserting subrogation must “step into 

the shoes of, or be substituted for, the one whose claim or debt he has paid” and enforce only 

“those rights which the latter could enforce.” Id. Such a right depends upon the equities of each 

case. Paliatka, 2018 IL App (1st) 172435, ¶ 18. Again, a party must show that he or she 

involuntarily paid the debt of another and seeks to assert the rights of the original creditor 

against the one whose debt was absolved. Id. Common law subrogation can prevent injustice 

or unjust enrichment but cannot apply to create an inequitable result. LaFramboise, 149 Ill. 2d 

at 319; see also Paliatka, 2018 IL App (1st) 172435, ¶ 18.

¶ 72 Here, the facts alleged by Cindy do not support either contractual or common law 

subrogation. With respect to contractual subrogation, Cindy, at a minimum, fails to identify 

any express agreement that would allow her to assert the rights of Morton Community Bank. 

See Paliatka, 2018 IL App (1st) 172435, ¶ 17. It is insufficient for Cindy to merely allege that 
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Dawn and Sonny intended for Cindy’s mortgage to replace or be substituted for an existing 

mortgage.

¶ 73 Common law subrogation is equally problematic for Cindy. “[S]ubstantial justice” would 

not be attained by “placing ultimate responsibility for the loss” on Dawn. See LaFramboise, 

149 Ill. 2d at 319. Forcing responsibility on Dawn would inequitably subordinate her right to 

acquire clear title to the commercial real estate, under the purchase agreement and orders of 

specific performance, to a mortgage that was executed and recorded, in derogation of the 

representations, warranties, and covenants contained in that purchase agreement, when Dawn 

was in good faith attempting to serve Sonny. See id.; Paliatka, 2018 IL App (1st) 172435, ¶ 18.

¶ 74 Similar to our application of subrogation principles, we are unpersuaded that Cindy has 

any claim of an assignment. Due to the absence of an express agreement, any claim of an 

assignment by Cindy must fail. See Stoller v. Exchange National Bank of Chicago, 199 Ill. 

App. 3d 674, 681 (1990) (“Generally, no particular form of assignment is required; any 

document which sufficiently evidences the intent of the assignor to vest ownership of the 

subject matter of the assignment in the assignee is sufficient ***.”); Cincinnati Insurance Co. 

v. American Hardware Manufacturers Ass’n, 387 Ill. App. 3d 85, 100 (2008) (“A valid 

assignment ‘needs only to assign or transfer the whole or a part of some particular thing, debt, 

or chose in action and it must describe the subject matter of the assignment with sufficient 

particularity to render it capable of identification.’ ”). As was true with respect to subrogation, 

it is insufficient for Cindy to vaguely allege the intentions of Dawn and Sonny in relation to 

her recorded mortgage.

¶ 75 c. Cindy’s Intervention Complaints in the Underlying Lawsuit

¶ 76 The purpose of intervention is to “expedite litigation by disposing of the entire controversy 

among the persons involved in one action to prevent a multiplicity of lawsuits.” People ex rel. 

Alvarez v. Price, 408 Ill. App. 3d 457, 464 (2011). If intervention is allowed, the intervenor, 

with some exception, will have “the rights of an original party.” 735 ILCS 5/2-408(f) (West 

2016). The decision to allow or deny intervention will not be disturbed absent an abuse of 

discretion. Winders v. People, 2015 IL App (3d) 140798, ¶ 13.

¶ 77 We have carefully considered the unique procedural posture of this case. The pleadings are 

unusual in that neither Cindy’s petition to intervene nor her subsequently filed intervention 

complaints make any reference to the applicable statutory provisions governing intervention. 

See 735 ILCS 5/2-408 (West 2016). Had the circuit court been directed to the Code, it likely 

would have become very apparent that Cindy’s petition to intervene, filed after final judgment 

was rendered between Sonny and Cindy by the circuit court in the underlying lawsuit, was 

untimely. See id.

¶ 78 Nonetheless, the applicable statutory provision governing the process of intervention, 

section 2-408, requires that the party “desiring to intervene shall present a petition setting forth 

the grounds for intervention, accompanied by the initial pleading or motion which he or she 

proposes to file.” See id. § 2-408(e). The petition to intervene filed by Cindy was not 

accompanied by an initial pleading. See id. Instead, Cindy’s petition to intervene included a 

request for “45 days to file any necessary pleadings.” This request was granted, by agreement 

of the parties, on December 5, 2017.

¶ 79 It appears to our court that Cindy’s petition to intervene operated as a request for leave to 

file the “initial pleading” required by section 2-408(e). See id. Thereafter, Cindy timely filed 
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intervention complaints in the underlying lawsuit on January 18 and September 21, 2018. In 

each intervention complaint, Cindy requested “the court to allow [her] to participate in the 

case.” It seems that if we were to construe the order entered by agreement on December 5, 

2017, as an order granting intervention, then Cindy’s prayer for relief in the subsequent 

intervention complaints would have sought relief other than to allow Cindy to “participate” in 

the underlying lawsuit.

¶ 80 Even assuming for the sake of argument that the circuit court’s order, dated December 5, 

2017, granted Cindy intervenor status without an “initial pleading,” we conclude the circuit 

court did not erroneously grant Dawn’s section 2-619(a)(9) motions to dismiss on June 8, 2018, 

or January 30, 2019. Therefore, we conclude that for purposes of this appeal Cindy no longer 

has the status of an intervenor. Consequently, we will not be addressing the remaining issues 

raised by Cindy in appeal No. 3-19-0218.8

¶ 81 2. Sonny’s Challenge to Dawn’s Awards of

Attorney Fees and Rent Under the Purchase Agreement

in the Underlying Lawsuit

¶ 82 We now turn to the separate and independent issues raised by Sonny. By way of review, 

the circuit court ordered Sonny to pay $50,000 in attorney fees at the closing. The $50,000 

amount was significantly less than the amount requested by Dawn. Dawn has not challenged 

this award. Further, Sonny was ordered to pay Dawn $1936 in monthly rent “through the date 

of closing,” resulting in a credit of $102,608 against the purchase price of the commercial real 

estate.

¶ 83 According to Sonny’s contentions on appeal, section 4(B)(i) and (ii) of article II do not 

justify an award of attorney fees. Likewise, the language in section 5 does not justify the circuit 

court’s order concerning Dawn’s attorney fees. Relatedly, Sonny notes that the language relied 

upon by the circuit court to justify the award of attorney fees is not present in the purchase 

agreement. As pointed out by Sonny, the circuit court was misguided by the language 

contained in Dawn’s petition for attorney fees. We agree attorney fees are not recoverable by 

Dawn under the purchase agreement. 

8

We also note that, had the parties cited to the Code, it would have become apparent to the circuit 

court that Cindy’s petition to intervene was also untimely. Under section 2-408(a) of the Code, a party, 

upon timely application, is permitted as of right to intervene. See 735 ILCS 5/2-408(a) (West 2016). 

However, “ ‘a person may not normally seek intervention after the rights of the original parties have 

been determined and a final decree entered [citation].’ ” Winders, 2015 IL App (3d) 140798, ¶ 14. 

Indeed, a party seeking intervention after the judgment must explain its failure to seek intervention 

before the judgment. Id. If a party does not do so, then “that party has failed to demonstrate due 

diligence and the petition to intervene may be denied as untimely.” Schwechter v. Schwechter, 138 Ill. 

App. 3d 602, 604 (1985). Here, Cindy knew of the underlying lawsuit as early as April 8, 2015, yet 

she, without explanation, waited until December 5, 2017, to file her petition to intervene. This was two 

years and nine months after Dawn filed the underlying lawsuit and five months and nine days after the 

circuit court entered partial summary judgment in favor of Dawn. Under these circumstances, the circuit 

court could have properly denied Cindy intervention on the alternative basis of untimeliness. See id.; 

Winders, 2015 IL App (3d) 140798, ¶ 14; see also RTS Plumbing Co. v. DeFazio, 180 Ill. App. 3d 1037, 

1042 (1989).
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¶ 84 However, we may affirm the circuit court on any basis supported by the record. Bocock v. 

McGuire, 2017 IL App (3d) 150860, ¶ 11. That basis, supported by this record, is Sonny’s 

wrongful act of encumbering the commercial real estate with a mortgage to Cindy, in 

derogation of the representations, warranties, and covenants contained in the purchase 

agreement, requiring Dawn to incur expenses in litigation to protect her interest in that 

property. See Ritter v. Ritter, 381 Ill. 549, 554 (1943) (citing Philpot v. Taylor, 75 Ill. 309, 

310-11 (1874), McEwen v. Kerfoot, 37 Ill. 530, 537-38 (1865), and Himes v. Keighblingher, 

14 Ill. 469, 471-72 (1853)); Nalivaika v. Murphy, 120 Ill. App. 3d 773, 776 (1983); Sorenson 

v. Fio Rito, 90 Ill. App. 3d 368, 372-73 (1980). Our supreme court has recognized: 

“[W]here the wrongful acts of a defendant involve the plaintiff in litigation with third 

parties or place him in such relation with others as to make it necessary to incur expense 

to protect his interest, the plaintiff can then recover damages against such wrongdoer, 

measured by the reasonable expenses of such litigation, including attorney fees.” Ritter, 

381 Ill. at 554 (citing Philpot, 75 Ill. at 310-11, McEwen, 37 Ill. at 537-38, and Himes, 

14 Ill. at 471-72). 

¶ 85 Importantly, “[c]are must be taken to distinguish between the [‘American rule’] prohibiting 

the recovery of attorney fees from the losing party by the prevailing party in litigation and the 

rule allowing the recovery of attorney fees incurred in litigation with third parties necessitated 

by defendants’ wrongful act.” Nalivaika, 120 Ill. App. 3d at 776; see also Sorenson, 90 Ill. 

App. 3d at 372-73 (discussing Ritter and the distinction between attorney fees recoverable as 

ordinary damages and attorney fees not recoverable as costs of litigation). This is because 

attorney fees incurred by the plaintiff in actions with third parties, brought about by the 

defendant’s misconduct, are “merely a form of damages and are accordingly recoverable from 

the defendant.” Nalivaika, 120 Ill. App. 3d at 776. As has been stated in the case law, the 

“American rule” “was [not] intended to preclude a plaintiff from recovering losses directly 

caused by the defendant’s conduct simply because those losses happen to take the form of 

attorneys’ fees.” See also Sorenson, 90 Ill. App. 3d at 372.

¶ 86 While not unlawful, Sonny’s conduct in this case was wrongful under the purchase 

agreement. Thus, the circuit court’s decision to award Dawn reasonable attorney fees can be 

affirmed as proper damages for Sonny’s wrongful act of encumbering the commercial real 

estate, in derogation of the representations, warranties, and covenants contained in the purchase 

agreement, thereby requiring Dawn to incur expenses in litigation with Cindy to protect her 

contractual interest in that property. See Bocock, 2017 IL App (3d) 150860, ¶ 11; Ritter, 381 

Ill. at 554 (citing Philpot, 75 Ill. at 310-11, McEwen, 37 Ill. at 537-38, and Himes, 14 Ill. at 

471-72); Nalivaika, 120 Ill. App. 3d at 776; Sorenson, 90 Ill. App. 3d at 372. Thus, in 

accordance with the above authorities, we affirm the circuit court’s decision to allow Dawn to 

recover reasonable attorney fees from Sonny for the necessity of defending her interest in the 

commercial real estate once Cindy intervened in the underlying lawsuit and separately filed 

the foreclosure lawsuit.

¶ 87 Notwithstanding this holding, there remains the issue of whether the $50,000 attorney fees 

award was arbitrary, unreasonable, or excessive, warranting a remand for an evidentiary 

hearing. A circuit court has broad discretionary powers to award attorney fees, so a reversal is 

proper only if there was an abuse of discretion. In re Estate of Callahan, 144 Ill. 2d 32, 43-44 

(1991); accord Mirar Development, Inc. v. Kroner, 308 Ill. App. 3d 483, 485 (1999).
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¶ 88 Further, the party seeking attorney fees bears the burden of presenting sufficient evidence 

for the circuit court to render a decision on the reasonableness of the request. In re Estate of 

Callahan, 144 Ill. 2d at 43; Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 66 

(2009). “An appropriate [attorney] fee consists of reasonable charges for reasonable services.” 

Gambino, 398 Ill. App. 3d at 66. For an attorney fee to be justified, a party must present more 

than “a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client.” 

Id. This type of data, without more, “does not provide *** sufficient information as to [the 

attorney fees’] reasonableness—a matter which cannot be determined on the basis of 

conjecture or on the opinion or conclusions of the attorney seeking the fees.” Id.

¶ 89 Instead, a party seeking attorney fees must “specify the services performed, by whom they 

were performed, the time expended thereon and the hourly rate charged therefor.” Id. The 

importance of these factors necessitates “detailed records maintained during the course of the 

litigation containing facts and computations upon which the charges are predicated.” Id. Once 

the circuit court receives this information, it should also consider the following factors: 

“[T]he skill and standing of the attorneys, the nature of the case, the novelty and/or 

difficulty of the issues and work involved, the importance of the matter, the degree of 

responsibility required, the usual and customary charges for comparable services, the 

benefit to the client [citation], and whether there is a reasonable connection between 

the fees and the amount involved in the litigation.” Id. at 66-67.

See also In re Estate of Callahan, 144 Ill. 2d at 44; Ashby v. Price, 112 Ill. App. 3d 114, 122 

(1983).

¶ 90 In this case, we have affirmed Dawn’s entitlement to attorney fees on an alternative basis 

than that of the circuit court. Hence, we conclude the prudent course is to remand the matter 

with directions for the circuit court to hold an evidentiary hearing to determine the 

reasonableness of any award of attorney fees, capped at $50,000. See Gambino, 398 Ill. App. 

3d at 66-67; In re Estate of Callahan, 144 Ill. 2d at 43-44; Ashby, 112 Ill. App. 3d at 122. At 

the hearing, Dawn’s counsel bears the burden of proof. See Gambino, 398 Ill. App. 3d at 66-

67; In re Estate of Callahan, 144 Ill. 2d at 43. The circuit court need not revisit the issue of 

attorney fees as an offset to the commercial real estate’s purchase price. We hold that the circuit 

court did not err by ordering attorney fees to be paid at closing. See Lobo IV, LLC v. V Land 

Chicago Canal, LLC, 2019 IL App (1st) 170955, ¶¶ 125, 134.

¶ 91 Next, with respect to rent, Sonny argues the circuit court misapplied section 3(K)(ii) of 

article II of the purchase agreement. Sonny contends that section does not provide for a rent 

credit against the purchase price as a result of his refusal to turn over the commercial real 

estate. We turn to the language of the purchase agreement to resolve this issue. Section 3(K)(ii) 

provides: 

“Rents under all leases of the Real Property (exclusive of delinquent rents, but 

including prepaid rents) *** and other payments payable by tenants, for or in 

connection with such use of occupancy thereof; operating expenses; personal property 

taxes, if any; and all other items customarily prorated or adjusted on the conveyance of 

similar properties shall be prorated as of the Closing Date.”

Regarding Dawn’s duty to pay rent before the closing date of February 14, 2015, the circuit 

court stated: “[t]here is no dispute [Dawn] paid [Sonny] monthly rent of $1936.00.” The circuit 

court then, when applying section 3(K)(ii), found “From 2/14/15 *** through the date of 

closing shall be prorated and credited to [Dawn.]” We agree with Sonny and conclude that 
- 18 -

section 3(K)(ii) is applicable to the proration of rent and other expenses that Dawn would owe 

to Sonny, under their existing leases, until the closing date when Dawn, as a former tenant, 

would take possession. This provision does not support an award of monthly rent to Dawn.

¶ 92 However, as was noted above, we may affirm the circuit court on any basis supported by 

the record. Bocock, 2017 IL App (3d) 150860, ¶ 11. The case law provides that “when a decree 

of specific performance does not provide complete relief, the injured party is entitled to those 

damages that will make him whole.” Mandel v. Hernandez, 404 Ill. App. 3d 701, 706 (2010); 

see also Douglas Theater Corp. v. Chicago Title & Trust Co., 266 Ill. App. 3d 1037, 1043 

(1994); Restatement of Contracts § 384(2) cmt. d (1932) (“Whether so asked by the plaintiff 

or not, it is within the discretion of the court to give such remedies as full and complete justice 

may require [citation].”); Restatement (Second) of Contracts § 358(3) (1981). Even lost profits 

are recoverable as damages for a breach of contract if (1) the lost profits are proved within a 

reasonable degree of certainty, (2) the circuit court is satisfied the wrongful act of the defendant 

caused the loss of profits, and (3) the profits were reasonably contemplated at the time of 

contract. Mandel, 404 Ill. App. 3d at 706.

¶ 93 Thus, we vacate the circuit court’s award of rent under the purchase agreement. However, 

we remand the matter for the circuit court to receive arguments on the proper amount, if any, 

Dawn should recover as damages for the time she was barred from her possession of the 

commercial real estate. This is, of course, unless the parties can reach an agreement on these 

matters.

¶ 94 B. Appeal No. 3-19-0536

¶ 95 The issues presented in appeal No. 3-19-0536 pertain to Judge Gilles’s enforcement of 

Judge Gorman Hubler’s January 30, 2019, order, in the underlying lawsuit. The issues may be 

stated as whether, when overseeing the transfer of the deed to and monies for the commercial 

real estate, Judge Gilles lacked jurisdiction to (1) order Sonny to pay attorney fees as an offset 

to the purchase price or (2) add language to the deed transferring the commercial real estate.

¶ 96 By virtue of our holding in section A(1)(c) above, Cindy does not have intervenor status 

for purposes of this appeal and is without standing to properly challenge these issues. Neither 

Sonny nor Dawn have filed a notice of appeal challenging Judge Gilles’s rulings. Thus, we 

will not reach the merits contained in Cindy’s briefs in appeal No. 3-19-0536.

¶ 97 III. CONCLUSION

¶ 98 The judgment of the circuit court of Peoria County is affirmed in part and reversed in part.

¶ 99 Affirmed in part and reversed in part.

¶ 100 Cause remanded with directions.