## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

V illage of Palatine v. Palatin e Associates, LLC , 2012 IL App (1st) 102707

Appellate Court Caption THE VI L L AGE OF PAL ATI NE, a Municipal Corporation, P laintiffAp p ellee, v. PAL ATI

NE ASSOCI ATES, L L C, an I llinois L imit ed L iability Corporation, SEARS ROEBU CK AND COMPANY, a New York Corporation, and AL L AMER I C AN TI TL E AGENCY, L L C, an I llinois L imited L iabi l i t y Company
, Def endants (All Americ an Title Ag ency , L L C, an I lli n o i s L imited L iability Company
, DefendantAppellant; Palatine Associates, L L C, an I llinois L imited L iability Corporation, De fenda

nt-Appellee ).

District & N o. First District, Six th Division
Docke t No. 1-10-2707

Filed Marc h 16, 2012

Held (Note : This syl l abus

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appea l from a condemna tion proce eding in which plaintiff village
soug ht to acquir e a shopping cente r for use as a police fac ility and other municipal uses, the trial court’s decision that a tenant pursuant to le ases for two spa ces in the c enter had no rig ht to a share of the final awa rd of just compensation was aff irm ed
, s ince the rec ord showed the tenant’s lease s wer e terminated and the tenant’s rig ht to any of the final awa rd of just compensa

tion was barr ed when the five-da y notices the owner of the shopping c enter delivere d to the tenant demanding the payment of pastdue re nt expi red w ithout pay ment prior to the entr

y of the fina l awar d.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-L -51257; t he Hon. Alexander P. White, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Strecke r, J epson & Associates, of L ake Z urich (P aul H. Strecke r and Christy J . J epson, of c ounsel), for appellant.

Ry an & Ry an, of Chica g o (Will iam E. Ry an, Timothy J

. Ry an, Micha el W. Ry an, and L aure n E. Ry an, of c ounsel), for appellee

.

Panel PRES I DI N G JU ST I CE R. G O RD ON delivere d the judgme nt of the court, with opinion.
J ustices L ampkin and Palmer c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 This a

ppeal arises from a condemnation proce eding broug ht by the Villag e of Palatine 1 (Villag e), seeking to acquir e rea l proper ty in Palatine, I llinois
, that was b ei n g u sed for a shopping c enter . The Villag e intends to ac quire the proper ty to be used as a police fac ility
, with other municipal uses. The Villag e paid over $6 milli on to the owner , defe ndant Palatine Associates, L L C (Palatine Associates)
, in just compensation, and any claims of tenants was to be apportioned from the money rec eived. Palatine Associates filed a motion reque sting the trial court to find that appellant All Amer i ca n Title Ag ency , L L C (All Americ an), had no interest in the final awa

rd ofjust compensation beca use its lease s had terminated prior to the entry of the awa

rd. The court ag ree d and All Americ an appea ls, arguing that its lease s wer e not terminated prior

to the entry

of the fina l awar d of just compensation. We aff irm.

¶ 2 BA CKGROUND ¶ 3 I . L ease s ¶ 4 Palatine Associates was the owner of the proper ty at issue in this case (subject proper ty), which consisted of a shopping cente r with a number of tenants, i n cludi ng Sears and All Americ an. All Americ an was a tenant for two space s and had enter ed into two written lease s in 2005. The first lease
, dated April 28, 2005, was for “appr ox imately

7500 square fee t” at 601 North Hicks Road (the 601 lease ), for a lease term beg inning J une 1, 2005, and ending

on May 31, 2015, with the option for All Americ an to ext en d t h e l ea s e for two additional option periods of five year s ea ch

. The second lease
, dated October 28, 2005, was for

T he V il la ge was ori ginal ly named a par ty to the ins ta nt app eal

. However, on Novem ber 17, 1 2010 , th e a ppe al was di smisse d as to th e V il la ge forla ck of j uri sdi ct ion

.
-2-“appr ox imately 2500 square fee t” at 565 North Hicks Road (the 565 lease ), for a lease term

from November 1, 2005, throug h May 31, 2015, with the option for All Americ an to extend the lease for two additional option periods of five y ear s eac h. Both lease s contained simil ar terms. ¶ 5 Article 2 of

eac h lease provided:
“Te nant acknow l edges that the premises are being acc epted ‘as is’ and subject to the L andlord’s obligations set forth in Ex hibit B attache d here to. L andlord has not ag ree d to make any chang es, additions or alterations in or to the L ease d Premises or to perf orm any work there in, all of which shall be the sole obliga tion of Tena

nt and at Tena

nt’s sole cost and expense, e x cept a s provided in Exhi bit B.” ¶ 6 The lea ses re quired All Amer ican to pay a fixed base rent, as well as “ additional rent,” define d as “Rea l Estate Taxes and CAM Charg es based up o n T en ant’s pro-r ata share [ ] [2 ] (ca pped at $3.00 per square foot throug h [t he] initial lease term).” Article 4 of the lease s stated that “Te nant shall pay to L andlord, *** as ‘F ix ed Ba se Rent’ for the Premises during the term of this L ease without a ny deduction or setoff, except as expressly provided in this lease
, the amount set forth in Section 1.1, in equal monthly installments, in advanc e, on the first day of ea ch ca lendar

month.” ¶ 7 Article 5 of

the 565 lease explained how to calculate taxes: “Commencing on the Commencement Date TENANT shall pay , as additional re n t , TENANT ’S proportionate share of all rea l estate taxes and assessments*** for eac h cale ndar year during the term here of[.] *** For purposes of th i s L ea s e, TENANT ’S proportionate sha

re sha ll be deeme d 1.50%. (2500 out of 167,142 sq. f t.) During the term of this L ease , TENANT shall pay to L ANDL ORD, monthly in advanc e, an amount equal to one-twe lfth (1/12th) of TENANT ’S proportionate share of

rea l estate taxes and assessments for the curre n t y ear , as rea sonably estimated by L ANDL ORD. Such amount is curr ently estimated to b e $ 2

. 0 0 p er square foot. I f TENANT ’S proportionate share of taxes with respe ct of any tax year is less than the total
amount there tofore paid by TENANT for such period, the excess shall be cre dited ag ainst the rent next becoming due or promptly ref unded if no rent rema ins due. I f TENANT ’S proportionate share of taxes for any y ear promptly exceeds the total amount there tofore paid by TENANT for such period, TENAN T s h al l
, within 30 day s afte r rec eipt of invoices from L ANDL ORD and a copy of rea l estate tax bill, pay the differ ence betwee n the actua l amount paid by TENANT and TENANT ’S proportionate share of rea l estate taxes and assessments.”
Ar t icle 5 of the 601 lease is identical except that the 601 lease deeme d All Am er i ca n ’s proportionate share of taxes to be 4.49%. Article 6 of the lease s provided that “the additional
rent for r eal e state taxes and CAM shall not e x cee d $3.00 per square foot. Tena nt sha ll not be res p o n s i b le for pay

ment of any rea l estate taxes or CAM, incurre d or paid prior to

“CAM Char ges” ar e “co m m on ar ea m ai nte nan ce cos ts and cha rges and exp ens es inc urr ed 2 in the owne rs hip andope ra ti on o f t he S hopp ing Cent er .”

-3-Dec ember 1, 2006. CAM and Taxes shall be cappe d at $3.00 per foot during the orig inal

lease term.” Article 6 fur

ther provide d:
“Dur ing the 60-day period immediately following L andlord’s delivery of any annual
statement to taxes or C AM C h ar g es, Tena nt shall have the rig ht to inspect L andlord’s

ac co unting rec ords relating to Taxes or CAM Charg es (as applicable to the statement delivere d) at L andlord’s or its ag ent’s office
, upon rea sonable prior notice. Unles s Tena nt shall take written exception to any item in any such statement within said 60-day period, such statement shall b e co n s i d er ed final and acc epted by Tena nt. Any pay

ment due to L andlord or cre dit or pay ment due to Tena

nt as shown on an y s u ch s t at ement shall be paid or applied in the manner and within the time period descr ibed here in, whether or not written exception is take n t h ere to, provided that such pay ment or application shall be without prejudice to a

ny such written e x ception.” ¶ 8 Article 12 of the lease s pr o vided the following conce rning repa irs by Palatine Associate s:

“L andlord[ ] shall keep the foundations, roof, parking are as, C o m m o n Areas and
structura l por

tions of the walls of the Premises in g ood condition and repa ir, except for
repa irs require d there to by rea s o n o f t h e acts or omissions of Tena nt, Tena nt’s employ ees, a g ents, invitees, license es, or contra ctors. Tena nt sha ll reimburse L andlord for such repa irs, repla ceme nt and maintenanc e as descr ibed in Article 6 of this L ease provided in no event shall Tena nt be responsible for any repa ir or repla ceme nt costs for the founda t i o n s , structura l portions of the walls, load bear ing items, plumbing, utilit y lines, pipes and conduits inside or outside the Premises and/or common are as unless the
repa ir or repla ceme nt is cause d by Tena nt, its employ ees, customers or invitees. Tena nt shall g ive L andlord written notice of the nece ssity for repa irs coming to the attention of Tena nt following which L andlord shall have a rea sonable ti me to u n d ertake and complete such repairs. The provisions of t his Paragraph shall not apply in the case of damag e or destruction by fire or other casua lty or by eminent domain, in which event the obliga tions of L andlord shall be controlled by either Arti cle 14 or Article 16 here of. I f [L andlord] fails to make the require d repa irs under the lease within a rea sonable time, the n Tena nt may make sa id repa irs and off set ag ainst rent.” ¶ 9 Article 16 of the lease s ref err ed to eminent domain pro ce ed i n gs an d p ro v i d ed that “Te nant shall share in any condemnation awa rd for the differ ence betwee n MV of the space [3 ] and rent being paid for rema ining term of the lease .” Article 17 applied to any defa ult by the lessee:
“If Tena nt defa ults in the pay

ment of Fixed Ba se Rent or other charg es or i n t h e p er formance of any other of Tena nt’s obligations here under, and fails to reme d y s u ch defa ult within five (5) day s afte r written notice from L andlord *** then and in any such instance, without further notice to Tena nt, except to the extent require d by law, L andlord
may enter upon the Premises and terminate this L ease

. In the event of such termination the obligations of L andlord here under shall ce a s e without prejudice
, howeve r, to the rig ht of L andlord to r ecove r from Tena nt a ny sums due L andlord for rent or otherwise to the

“M V ” i s no t d ef

ine d i n t he l eas e, b ut li kely m ean s market valu e. 3

-4-date of such entry

***.” ¶ 10 Article 24 of

the lease s conce rns bre ach of the lease s by

Palatine Associate s: “I f L andlord shall fail to perf orm any covena

nt, term or condition of this L ease up o n L andlord’s part to be perf ormed and, as a conseque nce of such defa ult, T en ant shall

rec over a money judgme nt ag ainst L andlord, such judgme nt shall be satisfied only out of the proce eds of sale rec eived up o n execution of such judgme nt and levy there on ag ainst the rig ht, title and interest of L andlord in the Shopping Center as the same may then be encumbe re d and neither L andlord nor if L andlord be a partne rship, any of the partne rs comprising such partne rship shall be liable for any defic iency

. Tena nt may also offse t its j udg ment ag ainst rents.” ¶ 11 Article 26 of

the lease s set forth var ious miscellaneous provisions: “(a ) Acc ord an d Satisfaction. No pay ment by Tena

nt or rec eipt by L andlord of a lesser amount than the renta l or other charg es here in stipulated shall be deeme d to be other than o n ac co u n t of the ear liest stipulated rent nor shall any endorse ment or statement on any chec k or any letter acc ompanyi n g s u ch check or pay ment as rent be deeme d an accord and satisfac tion, and L andlord may acc ept such chec k or pay ment without prejudice to L andlord’s rig ht to rec over the balanc e of such rent or other char g es or pursue any

other re medy

provided for

in this L ease or ava ilable at law or in equity

. (b) Waiver. No waiver of any condition or leg al rig ht or reme dy shall be implied by the failure of L andlord to de clar e a forf eiture, or for any other rea son, and no waiver of
any condition or cove nant shall be va lid unless it be in writing sig ned by the L andlord.

***
* * * (f) Entire Ag ree ment. This L ease and exhibi ts attache d here to set forth all of the

covena nts, promises, ag ree ments, conditions and understanding s betwee n L andlord and Tena nt conce rning the Premises and there are no covena nts, p ro m i ses, ag ree ments, conditions or understanding s, either oral or written, betwee n them other than are here in
set forth. Ex cept as otherwise provided no subsequent alteration, amendment, chang e or addition to this L ease shall be binding upon L andlord or Tena nt unless reduc ed to writing and sig ned by

them.
This L ease superse des and revoke s all previous neg otiations, arr ang ements, letters of intent, offe rs to lease
, lease proposals, brochur es, repr esenta tions, and information
conveyed, whether oral or in writing
, betwee n the parties here to or their respe cti ve repr esentatives or any

other pe rson purportingto repre sent the L andlord or the Tena nt. The Tena nt acknow ledg es that it has not been induced to enter int o this L ease by any repr esentations not set forth in this L ease , shall be used in the interpret at i o n or [4 ] construction of this L ease , and the L andlord shall have no liability for any conseque nces arisingas a r esult of any

such re prese ntations.”

Wh il e it appe ar s that a word m ay be m is si ng fr om the sen te nce , the quot ed la nguage is as 4 it app ear s i n t he r eco rd.

-5-¶ 12 Article 29 of the 601 lease , conce rning“L andlord Repr esentations,” provided:
“L andlord repr esents to Tena nt that the exis ting HVAC sy stem and equipment servicing the Premises is, as of the d at e o f this L ease , in g ood working order

. L andlord further
repr esents to the best of L andlord[’]s knowledg e to Tena nt that the Shopping Center and the Premises are , as of the date of this L ease , in compliance with all applicable laws, rules, re g ulations and ordinanc es.” Article 29 of

the 565 lease states that it was omitted intentionally

. ¶ 13 Ex hibit B, entitled “L andlord’s Work,” provides in entirety : “L andlord shall not pe rfor m any work whatsoeve r on the Premises. Tena nt shall acc ept the Premises ‘AS I S, WHERE I S AND WI TH AL L FAU L TS, I F ANY.’ L andlord shall be responsible for the mai nte n a n c e and repla cem ent as neede d of all Mecha nical (HVA C), elec trical sy stems, any fire sprinkler
sy stems and other structura l components.” Ex hibit C, entitled “Te nant’s Work,” provides in entirety : “The following items done over and above L andlord’s scope of work shall be done by Tena nt at the Tena

nt’s expense: All work not detailed in Exhibi t B.”

¶ 14 I I . Condemnation Procee ding ¶ 15 On December 22, 2006, the Vil lag e filed a compl ai n t to condemn the subject prope rty

so that it could build a police station, with other municipal uses. In its complaint, the Villag e soug ht “to acquir e fee simple title in and to the rea l proper ty , toge ther with all improvements and appurte nance s attache d to and part of said rea l estate” descr ibed in its leg al descr iption. In its prayer for relief

, the Villag e asked “[t] hat pl ai n t i ff
, b y this proce eding
, acquir e the

owner ship of the said proper ty in fee simple, fre e from all liens and claims whatsoeve r.” All Americ an was named as a party defe ndant to the complaint and was serve d with proce ss, and there is no claim that it did notrec eive a ll required notice s. ¶ 16 On J une 9, 2009, All Americ an made an oral motion for leav e t o fi l e a trave rse a nd motion to dismiss the complaint for condemnation, which was denied on the same day

. Also

on J une 9, 2009, the condemnation court enter ed an ag ree d final judgme nt order conce rning 5 the Villag e’s condemnation action. The order provided just compensation for “the fee simple title to rea l proper

ty descr ibed in [t he Villag e’s] complaint to condemn ***, subject only to the lease of Sear s and excluding a ny interest of Sea

rs” f or $6.15 million. ¶ 17 On J uly 6, 2009, the condemnation co u rt en t er ed an order vesting title to the subject
proper ty in the Villag e, subjec t to the lease of Sears. The order also authorized the Villag e to take immedia t e p o s session of the subject proper ty other than that portion occupie d by Sears. ¶ 18 On J uly 9, 2009, the condemnation court allowed Palatine As s o ciates to withdraw the bulk of t he aw ard of

$6.15 milli on, order ing $2 million to be reta ined by the Cook County
trea surer pendingtenants’ inter est in the awa rd. On July 13, 2009, the conde mnation court order ed the rema ining $2 milli on to be paid to Palatine Associates’ attorney as escr owee to

Due to the number of cou rt s invol ved in thi s cas e, we re fe r t o t h e c o u rt dec idi ng the 5

con demnati on c ase as th e “ con demnati on c our t” fo r t he s ake of cl ar it y.

-6-b e deposited in an interest-be aring acc ount pending a deter mination of claims filed by seve r a l tenants, includingAll America n. ¶ 19 On November 2, 2009, the Villag e fi l ed a m o t i on with the condemnation court for immediate possession of the subject proper ty , excluding th at p o rt ion occupie d by Sears, beca use All Americ an ref

used to relinquish possession. The motion stated that during the hear ing in which the order vesting title was enter ed, All Americ an repr esente d that it had no objection to the entry of the order vesting title. Howeve r, as of the date of the Villag e’s motion, All Americ an rema ined on the subject proper ty and ref used to relinquish possession; All Americ an also had not paid any rent to the Villag e since the date t i tle vested in the Villag e, nor had it contac ted the Villag e to reque st permission to rema in on the premises. On November 6, 2009, the condemnation court order ed possession of the proper ty to the Villag e afte r seven day s from the entry of the order

. On November 24, 2009, the circ uit court enter ed

an agree d order that All Americ an could rema in in possession until Dec ember 31, 2009, and would pay

$500 for the use and occ upancy

. ¶ 20 On Dec ember 3, 2009, Palatine Associates filed a motion to rele ase $300,000 being held in escr ow and on Dec ember 4, 2009, the condemna tion court order ed the escr owee to pay that amount to Palatine Associates.

¶ 21 I I I . For cible Entry and De tainer a

nd Ba nkruptcy Actions ¶ 22 On August 7, 2007, during the pendenc y of the condemnation action, Palatine Associate s

serve d All America

n with a “Notice of Termination of Tena ncy” (the five-da

y notice). The notice stated:
“You are here by notified that y our tenanc y or lease of the fo l l o wi n g descr ibed premises, to wit: 565 N Hicks Rd Palatin e, I l l i n ois, toge ther with all other

acc ommodations used by y ou in connec tion therewith, will be terminate d as follows,” and then listed three options: one conce rning non-pay ment o f re n t , one conce rning other brea ches, and one terminating a wee k-to-we ek, month-to-month, or holdov er t en ancy

. Palatine Associate s had che cked the box next t o the first option, which provided:
“The re is due the undersig n ed for acc rued and past-due renta l for said

acc ommodations afor esaid the sum of Eig ht Thousand Three Hundre d Eig hty -three and 32/100 Dollars ($8383.32), for which demand is here with made, and unless pay ment is

m ad e within five (5) day s from the date of service here of, y our tenanc y is terminated. Only FULL PAY

MENT of the rent demande d in this notice will waive the landlord’s right to terminate t h e l ea s e u n der this notice, unless the landlord agrees in writi ng to continue the leasein exc hange for rece iving partial payment .” (Empha sis in original.) The notice ended by stating: “Unless y ou promptly comply with the above, suit will be instit uted for possession, and for renta l due, toge ther with the costs of such proce eding .” On the same day
, Palatine Associates also serve d a “Notice of Termination of Tena ncy” for the 601 lease
, which was identical to the noti ce p ro v i d ed for the 565 lease
, except that the amount owed unde r the 601 lea se wa s $25,225.

-7-¶ 23 Shortly there afte r, Palatine Associates filed two forc ible entry and detainer complaints 6 alleg ing that All Americ an unlawfully withheld possession of ea ch of the proper ties and
reque sted damag es in the case of the 601 lea se in the amount of $25,000 and in the case of the 565 lease in the amount of $8,333.32. ¶ 24 On J anuar

y 28, 2009, the eviction court enter ed order s in eac h forc ible entry and detainer 7 action conce rning a motion in limine filed by Palatine Associates and stated in rele vant part: “1. Article 26(f) of the L ease betwee n Plaintiff and Def endant is c lear and contains

no ambig uities and is contr o l ling betwee n the parties as to other oral or written statements not set forth in the L ease ; 2. Def endants are barr ed from offe ring testimony as to any o ra l o r written
repr esentations alleg edly made by Plaintiff to Def endant that are not set forth in the L ease betwee n the par

ties;
3. Art i cl e I I of the L ease define s the premises rente d by Def endant and includes

common are as desc ribed in that Article .” ¶ 25 On J u n e 19, 2009, Palatine Associates filed two identical mo t i o n s fo r s u m m ar y 8 judgme nt in the forcible entry and detainer cases, one in the case conce rningthe 565 lease and one in the case conce rning the 601 lease

. The motions explained that All Americ an had raised three aff

irmative defe nses: (1) that it was entitled to a setoff for the cost of repa irs and

no rent was due at the time of the five-da y notice; (2) that Palatine Associates ag ree d to defe r ful l pay ment under the lease s until the condemnation court rende red a decision and, i n addition, Palatine Associates waived its right to strict compliance with the lease s by

acc epting a partial pay

ment of $4,000; and (3) that Palatine Associates knew or should have known when the lease was signe d that there wer e o rdi nance violations and so, due to its brea ch and its unclea

n hands, it should n o t b e permitted to rec over from All Americ an. Palat ine Associates claimed that all three aff irmative defe nses wer e lacking in merit (1) under I llinois law, (2) under the terms of the l ease s, (3) unde r the five -day notices, and ( 4) pursuant to the January

28, 2009, ruling on Palatine Associate s’ motion in limine

. ¶ 26 Attache d to the motions for summary judgme nt wer e aff idavits from J ohn Arg ianas, one of the manag ers of

Palatine Associate s. Arg ianas stated that in his capac ity as mana g er, he
neg otiated the terms of both lease s and was familiar with the terms and provisions of t h e lease s. He further stated that All Americ an never g ave written notice to Palatine Associates of any repa irs that wer e n ee d ed
, nor di d it make any require d repa irs under the lease

. As a

T he par ti es agree tha t the for ci ble ent ry and det ai ner complai nts wer e fi le d on August 23, 6 2007
, but the cop ie s of the complai nts in the re cor d do not ind ic at e the dat e the complai n t s wer e fi le d.

Due to the number of cou rt s invol ved in thi s cas e, we re fe r to the cou rt dec idi ng the for ci ble

7
ent ry and det ai nerac ti ons as th e “ evict ion cou rt ” f or the sa ke of c la ri ty.

Pal at ine Asso ci at es st at es tha t it fi le d it s m oti ons for summ ar y j udgm ent on J une 19, 2009
, 8 and the not ic es of m oti on li st the ser vice dat e as J une 19, 2009

. However, the cop ie s of the m oti ons for summ ar y j udgm entin th e r eco rd on a ppe al ar e no t f il e- st amped.

-8-result, All Americ an was not entitled to an offse t ag ainst rent. Arg ianas stated that he cause d

the five-da

y notices to be serve d upon All Americ an, which was at that time in arr ear s in the
amount of $8,383.32 on the 565 lease and $25,225 on the 601 lease

. During October 2007, All Americ an tender ed and Palatine Associates acc epted a partial pay ment of $4,000 in rent, but the rema ining balance was not tender ed. As of J une 19, 2009, the date of the a ffidavit, Arg ianas s t at ed t h at All Americ an was in arr ear s in the amount of $31,783.31 on the 565 lease and $157, 6 0 0 o n t he 601 lease

. Finally
, Arg ianas stated that All Americ an remained in possession of the proper ty

. ¶ 27 On S ep t em b er 2, 2009, All Americ an filed a notice of remova l of the conde m n at i o n action to the United States District Court for the Norther n District of I llinois

. The notice of

remova l stated that All America n had filed f

or chapter 11 bankruptc y (26 U.S .C. § 101 et 9
seq. (2006)) and the claims as serted by All Americ an to the funds held in escr ow wer e

remova ble bec ause the y

related to the bankr

uptcy case

. ¶ 28 On October 29, 2009, the bankruptc y court enter ed an order to modify the automatic stay : (1) to allow the eviction co u rt to rule upon the motions for summary judgme nt filed by Palatine Associates in the two forc ible entry and detainer actions filed by Palatine Associates
ag ainst All Americ an and (2) to allow the cond emnation court to deter mine whether All Americ an had a claim for compensation in the condemnation action filed by the Villag e. On November

3, 2009, the bankr

uptcy court re turned the c ase to the c ircuit court.

¶ 29 I V. All Americ an’s Intere st in the Final Awa rd of Just C ompensation ¶ 30 On J anuar

y 7, 2010, the eviction court enter ed an order in both forc ible entry and detainer

case s based on Palatine As s o ci at es’ motion under section 2-1401 of the Code of Civil Procedur e (735 I L CS 5/ 2-1401 (West 2008)) to vacate a dismissal for wa nt of prosec ution that had been enter ed on September 18, 2009. The order stated that at the time the dismiss al

was enter ed, there was a pending bankruptc y proce eding

. Since an automat ic s ta y would have been in eff

ect at the time the dismiss al was enter ed, the evicti o n co u rt did not have the authority to enter it, and acc ording ly
, the dismiss al was vacated and the case was reinstated. The court further noted that on October 29, 2009, the bank rupt cy court g rante d an order modifying the automatic stay to permit the eviction court to rule on the motions for summary judgme nt in both case s and permitting the condemnation court to dete rm i n e whether All Americ an had a claim for compensa tion. The eviction court found that Palatine Associates

was no longe r the owner of the prope rty and ther efor e no long er e ntitled to possession; the
court further found that the motions for summary judgme nt wer e moot and that Palat i ne Associates w ould need to proc eed in ba nkruptcy court on its claim for ba ck re nt. ¶ 31 The eviction court then found that Palatine Associates terminated All Americ an’s lease by serving a five-da

y notice. Howeve r, Palatine Associates did not automatically obtain the

T he re cor d re fl ect s tha t All Am er ic an fi le d for ban krupt cy o n A u gust 13, 2009

. All 9 Am er ic an’ s bri ef st at es tha t on the same day, it fi le d a cou nte r- and cr oss

- complai nt for tur nover of the esc rowe d funds to the ban krupt cy est at e. Whi le tha t m oti on app ear s in the re cor d, it is not fi le

st amped so it is unc le arwhet herit was fi le d orwhen itwas fi le d.

-9-rig ht to possession, which would only occur afte r the filing of a forc ible entry and deta iner complaint and a deter

mination by the finder of fac t that Palatine Associates was entitled to possession. The court conclude d by stating that “[t] his Court makes no finding as to the rig ht of possession o t h er t han the landlord terminated the Def endants’ ten[a]ncy on August 14, 2007,” and the n dismiss ed the c ases. ¶ 32 On J anuar

y 6, 2010, Palatine Associates filed a motion, which was later amende d, asking the condemnation court to deter mine that All Americ an did not have a compensa ble interest in the final awa

rd of just compensation and reque sted that the $1,311,447.10 claimed by All Americ an be disbursed to Palatine Associates. Palatine Associates char acte rized the motion

as one for summary judgme nt and arising under sections 10-5-70 and 10-5-90 of the Eminent Domain Act (735 I L CS 30/10-5-70, 10-5-90 (West 2010)). The motion reque sted the court t o d eter mine as a matter of law that All Americ an’s lease hold was terminated i n Au gu s t 2007, deter

mine that All Americ an did n o t have a claim to the final awa rd of just
compensation, and further to order the escr owee to distribute the funds to Palati ne Associates. ¶ 33 In response , All America n claimed that it was entitled to a portion of t he award of just
compensation. It claimed that prior to enter ing into the lease s, Palatine Associates made the following repr esentations:
“a. the larg e parking lot used to acc ommodate Sears and the other tenants, including All America

n, was to be r esurf

ace d with newly

striped par

king spa ces; b. the dilapidated sidew alks and brick support columns in f ront of, and adja cent to, the pre mises would be re paire d or re place d;

c. the fa ca d e d i re ct ly above, and in front of, the premises would be repa ired or repla ced to allow All Americ an to post identity and advertising signa g e thereon which could be se en by

persons fr om the main roadw ay s adjac ent to the par king lot; and
d. a substantial, cre ditworthy
, reta il store was g oing to sign a lease with Palatine Associates for the larg e, vaca nt space immediately adjoining All Americ an’s premises.”
All Americ an claimed that it expen d ed ap proxi mately $200,000 in renovation costs to the interior of the premises in relianc e on Palatine Associates’ repr esenta tions. All Americ an further claimed that s u i t h ad been filed ag ainst Palatine Associates by the Villag e for a number of ordinanc e violations and that Palatine As s o ci at es failed to abide by its
repr esentations or its dut ies under the lease s. ¶ 34 All Americ an claimed that in M ay o r J u n e 2007, Palatine Associates ag ree d that All Americ an would not be require d to pay the monthly rent in strict compliance with the lease s “due to the deter iorated condition of the premises and common are as an d t he pending

co n d em nation case .” Instead, the parties ag ree d “that Palatine Associates would be p ai d whateve r amount All Americ an could aff ord based upon it s b usiness income during the pendenc y of the condemnation p r o c e e d in g ” a n d f u r th e r a gr e e d th at Palatine Associates would be paid the full amount of rent owed under the lease s out of the proce eds of any awa rd
g rante d to All America

n pursuant to the conde mnation proce eding s. ¶ 35 All Americ an cl ai m ed t h at Palatine Associates had waived its rig ht to demand strict compliance with the terms of the lease s by acc epting partial pay ments of $4,000 in October

-10-and Dec ember 2007. All Americ an further claimed that Palatine Associates knew or should

have known that the subject proper ty had numerous ordi n an ce v i olations and that All Americ an relied upon its repr esentations that no violations exis ted to its detriment. Finally
, All Americ an claimed that the J uly 6, 2009, order vesting title in the Villag e terminated the lease s and since Palatine Associates no longe r had any interest i n the lease d premises, the forc ible entry and detainer actions wer e dismiss ed by the eviction court o n De ce mber 28, 2009. ¶ 36 All America

n also claimed that the five-da y notices we re de fec tive beca use, due to the lease s’ overstate ment of the square footag e of the lease s premises, All Americ an had actua lly
overpa id its rent from Dec ember 1, 2005, throug h April 2007 and thus owed no r ent at the time of their rec eipt of the five-da y notices. All A merica

n further claimed that the five-da y notices did not terminate the lease s and only indicated that P al at i n e Associates was establishing a position to exercise its rig ht to terminate the lease s at some time in the future. ¶ 37 On August 11, 2010, the condemnation court issued a memorandum decision and orde r

on three motions: (1) All Americ an’s motion for apportionment of the condemnation awa rd, (2) Palatine Associates’ motion for determination, and (3) Palatine Associate s’ motion for
summary judgme nt. The court ag ree d with Palatine Associates, finding that All Americ an’s lease was terminated on August 14, 2007, at the expiration of the five-da y notice period, and

so All Americ an did not hav e an interest in the proper ty when the final awa

rd of just
compensation was awa

rded on J uly 7, 2009. Acc ording ly
, the court g rante d Palat i n e Associates’ motion for a decla ration that All Americ an’s lease was terminated, denied All Americ an’s m o t i o n for apportionment of the condemnation awa rd, g rante d Palatine Associates’ motion for summary judgme n t , and g rante d Palatine Associates’ motion for disbursement of the f

inal compensation awar d by the esc rowe e. ¶ 38 On September 10, 2010, All Americ an filed a notice of appea l, asking the court to reve rse the condemnation court’s order s of J une 9, 2009, in which the court enter ed an ag ree d final judgme nt order of

just compensation in the amount of $6.15 million and Aug ust 11, 2010. ¶ 39 On Fe bruar

y 16, 2011, the condemnation court enter ed an order for the escr owee to pay the balanc e of the final awa rd of j u s t co m p en s ation that was held in escr ow to Palatine Associates and that if All Americ an was succe ssful on appea l, Palatine Associates would be responsible for

pay ing the amount owed to All Amer ican.

¶ 40 ANALYSI S ¶ 41 On ap peal, All Americ an argues that the condemnation court err ed in finding that i t s lease s wer e terminated prior to the entry of the final awa rd of just compensation and g ranting Palatine Associates’ mot i o n fo r summary judgme nt. A trial court is permitted to g rant summary judgme nt only “if the pleading s, depositions, and admissions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter o f l aw

. ” 7 35 I L CS 5/2-1005(c) (West 2008). The trial court must view these documents and exhibi ts in the light most favor able to the nonmoving party

. Home Insurance Co. v. Cincinnati Insurance Co
., 213 I ll. 2d 307, 315 (2004). We revie w a trial court’s decision to g rant a motion for summary judgme nt de novo

.

-11-Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 I ll. 2d 90, 102 (1992). De novo

consideration means we perf orm the s ame analy sis that a trial judge would perf orm. Khan v. BDO Seidman, LLP , 408 I ll. App. 3d 564, 578 (2011). ¶ 42 “Summary judgme nt is a drastic measure and should only be g rante d if the movant’s rig ht
to judgme nt is clea

r and fre e from doubt.” Outboar d Ma r i n e Corp.
, 154 I ll. 2d at 102. Howeve r, “[m] ere speculation, conj ec t u re, or g uess is insufficient to withstand summary judgme nt.” Sorce v. Naperville Jee p Eagle, Inc.
, 309 I ll. Ap p

. 3 d 3 1 3
, 328 (1999). A defe ndant moving for summary judgme nt bear s the initial burden o f p ro o f. N edzve kas v. Fung
, 374 I ll. App. 3d 618, 624 (2007). The defe ndant may meet his burden of proof either by aff irmatively showing that some element of the case must be resolved in his favor or by establishing “ ‘that there is an absenc e of evidenc e to support the nonmoving party ’s case .’ ” Nedzvek as , 374 I ll. App. 3d at 624 (quoting Cel otex Corp. v. Catrett
, 477 U.S. 317, 325 (1986)) . In other wor ds, there is no e vidence to support the plaintiff’s complaint. ¶ 43 “ ‘The purpose of summary judgme nt is not to try an issue of fac t but *** to determine whether a triable issue of fact ex ists.’ ” Schrager v. N o r t h Community Bank
, 328 I ll. App. 3d 696, 708 (2002) (quoting Luu v. Kim
, 323 I ll. App. 3d 946, 952 (2001))

. “ ‘To withstand

a summary judgme nt motion, the nonmoving party need not prove his case at this preliminary stag e but must prese nt some fac tual basis that would support his claim.’ ” Schrager
, 328 I ll. App. 3d at 708 (quoting Luu
, 323 I ll. App. 3d at 952). We may aff irm on any basis appea

ring in the rec ord, whether or not the trial court relied on that basis or its re asoning was corr ect. Ray Danc er, Inc . v. DM

C Corp. , 230 I ll. App. 3d 40, 50 (1992). ¶ 44 In addition, th is case conce rns t he condemnation court’s interpretation of a contra ct as

a matter of law. A contra ct construed as a matter of law by the trial court may be construed independe ntly by a revie wing court, unrestra ined by the tr ia l c o u r t’ s ju d gme nt. Fleet Business Credit, LLC v

. Enterasys Networks, Inc ., 352 I ll. App. 3d 456, 469 ( 2004) (citing Lewis X. Cohen Insurance Trust v. Stern
, 297 I ll. App. 3d 220, 232 (1998), and Zale Construction Co.

v. Hoffman
, 145 I ll. App. 3d 235, 240 (1986))

. Acc ording ly
, our revie w from a trial court’s interpre tation of a contra ct as a m at t er of law is de novo. Ave ry v. State Farm Mutual Automobile Insurance Co
., 216 I ll. 2d 100, 129 (2005). As noted, de n o vo consi deration

means we perf

orm the s ame analy sis that a trial judge would perf orm. Khan
, 408 I ll. App. 3d at 578. ¶ 45 A lease is a contra ct betwe en the landlord and tenant and nor mal principles of c ontrac t interpre tation apply

. Midland Managem ent Co. v. Helgason
, 158 I ll. 2d 98, 103 (1994); Clarendon America Insurance Co. v. Prime Group Realty Servic es, Inc.
, 389 I ll. Ap p

. 3 d 724, 729 (2009) (citing Sears, Roebuc k & Co. v. Charwi ll Associates, Ltd. Partnership
, 371 I ll. App. 3d 1071, 1076 (2007))

. The principal objective in construing a contr ac t i s t o deter mine and g ive effec t t o t he intention of the parties at the time they enter ed into the
contra ct. Fleet Business Credit
, 352 I ll App. 3d at 469 (citing Schweihs v. Davis, Friedman, Zavett, Kane & MacRae
, 344 I ll. App. 3d 493, 500 (2003), Zale Construction
, 145 I ll. App. 3d at 241, and Ancraft Products Co. v. Universal Oil Products Co.
, 100 I ll. App. 3d 694, 697 (1981)) . To deter

mine the intent of the parties, the court must look to the instrument itself, its purpose and the surrounding circ umstances of its execution and p erformanc e. Fleet Business Credit
, 352 I ll. App. 3d at 469. “When a dispute exis ts betwee n the parties as to the

-12-meaning of a contra ct provision, the threshold issue is whether the contra ct is ambig uous.”

Fleet Business Credit
, 352 I ll. App. 3d at 469 (citing Installco, Inc. v. W hiting Corp.
, 336 I ll. App. 3d 776, 783 (2002)) . “Contrac tual languag e is ambiguous when it is ‘ “susce ptible to

more than one meaning [citation] or is o b s cu re i n meaning throug h indefiniteness of expression.” ’ ” Fleet Business Credit
, 352 I ll. App. 3d at 469 (quoting Shields Pork Plus, Inc. v. Swiss Valley Ag Servic e , 329 I ll. App. 3d 305, 310 (2002), quoting W ald v. Chicago Shippers Ass’n
, 175 I ll. App. 3d 607, 617 (1988))

. An ambig uity is not cre ated simply beca use the parties do not ag ree upon an interpre tation. Fleet Business Credit
, 352 I ll. App. 3d at 469 (c iting Groshek v. Frainey
, 274 I ll. App. 3d 566, 569 ( 1995), Zale Constr uction
, 145 I ll. App. 3d at 241, and Harlem-I rving Realt

y, In c. v. A l esi
, 99 I ll. App. 3d 932, 936 (1981))

. I llinois courts follow the “four corne rs” rule when interpre ting co n trac ts, which require s: “ ‘ “An ag ree ment, when reduc ed to writing
, must be presumed to speak the intention of the parties who signe d it. I t speaks for itself, and the intention with which it was executed
must be deter

mined from the languag e used. I t is not to be chang ed by extrinsi c evidenc e.” ’ ” Fleet Business Credit
, 352 I ll. App. 3d at 469-70 (quoting Air Safety, Inc. v. Teache rs R ealty Corp.
, 185 I ll. 2d 457, 462 (1999), quoting W estern Illinois Oil Co. v. Thompson , 26 I ll. 2d 287, 291 (1962)). ¶ 46 In the case at bar, the condemnation court found that the lea ses had be en ter minated in August 2007, meaning that All Americ an was not entitled to any portion of the awa rd of just
compensation enter ed in J uly 2009. On appea l, All Americ an makes a number of arguments that it claims demonstrate that the le ases we re not ter minated.

¶ 47 I . Effe ct of Eviction Court Dec ision ¶ 48 W e fi rs t addre ss All Americ an’s claims conce rning the eff ect of the eviction co u rt ’s decision to terminate the forc ible entry and detainer case s as moot. All Americ an claims that the condemnation court did not have jurisdiction to deter mine whether the lease s wer e terminated beca

use only th e ev i cti on court had jurisdiction to make a finding as to the termination of the lease s; when the eviction court found that the forc ible entry and detainer actions wer e moot, the condemnation court was unable to “re open a moot forc ible action to decide the issues of a case wher e there is no longe r a justiciable controve rsy .” Fur thermore
, All Americ an argues that since the condemnation awa rd was paid by the Villag e prior to the entry of a judgme nt in the eviction court, the lease s wer e only terminated at the time of the entry of the final awa

rd of just compensa

tion. We do not find All Americ an’s argument persua sive. ¶ 49 Under

the Em inent Domain Act, “the court in the same e minent domain proce edingin which the [condemnation] order s have been made shall have exclusive authority to hear and deter mine all rig hts in and to just compensation and shall make f indings a s to the rig hts of the parties.” 735 I L CS 30/10-5-70(a ) (West 2008). Thus, under the expli cit languag e of the Eminent Domain Act, the condemnation court had t h e authority to deter mine whether All Americ an had a

rig ht to the just compensation awa rd, which require d the deter mination of whether All Americ an was a lease holder at the time of the awa rd. Additionally
, in the

-13-forc ible entry and detainer actions, Palatine Associates soug ht to recove r possession of the

proper ties, as it claimed that All Americ an had wrong fully withheld possession. The eviction
court found the actions to be moot, since Palatine Associates was no longe r the owner of the
proper ty afte r title had vested in the Villag e. Howeve r, the case at bar has nothing to do with Palatine Associates’ owner ship status but instead focuse s on All Am er i ca n ’s status as a tenant. Thus, the fac t that the eviction court found the case s befor e it to be moot is irrele vant t o the deter

mination in the instant case and the condemnation court’s authorit y t o d ec i d e whether All America

n had a r ight to the c ompensation awa rd. ¶ 50 Finally
, we find All Americ an’s relianc e on Departme nt of Public W orks & Buildings v. Bohne
, 4 1 5 I ll. 253 (1953), and Bohne v. Bauer
, 21 I ll. App. 2d 133 (1959), to be
unpersua sive. All Americ an uses the case s, both of which arise under the same fac ts, to argue that it should be entitled to a portion of the just compensation awa rd beca use it was a tenant in possession with no judgme nt enter ed ag ainst it by the eviction court on the day the awa rd

was paid by the Villag e. Howeve r, neither case conce rns the issue of whether the tenant was entitled to a portion of the j u s t compensation awa rd; further
, it does not appea r that the landlord objected at all to the tenant’s claim. Additionally
, neither case conce rns a forc ible entry and detainer action by the landlord, so neither the appellate court nor the I lli n o i s Supreme Court considere d the eff ect of an eviction action on the t en ant’s claim. In fac t, Bohne
, the appellate court case , conce rned the question of when the landlord’s interest in the
proper ty terminated, not the tenant’s. See Bohne
, 21 I ll. App. 2d at 134 (noting that the issue

was deter mining the point in a condemnation action at which the landlord’s title was exti ng uished). Thus, neither of these cases as s i s ts All Americ an in its argument. Since we have deter

mined that the condemnation co u rt had the authority to decide when the lease s

wer e terminated, we proce ed to consider the condemna tion court’s conclusion that the lease s

wer e ter minated in August 2007. ¶ 51 In the case at bar, the condemnation court deter mined that the lease s wer e terminated at the expiration of the five-da y notice period. All Americ an a r g u es that the condemna

tion court

err ed in its deter

mination beca

use the five-da

y notices did not terminate the lease s as a matter of law, a nd there are questions of fac t as to whether the five- day

notices we re e ffe ctive. ¶ 52 We first consider All Ameri ca n ’s arguments conce rning the eff ect and validity of the five-da y notices. All A merica

n argues that the five-da

y notices did not te rminate the lease s but only provided notice of Palatine Associates’ rig ht to terminate the lease s at some point in the future. Additionally
, All Americ an argues that there is a question of fac t as to the fiveday notices’ validity
, beca use the amounts due in the notices wer e incorre ct due to the lease s’ inacc urate computation of re nt, tax es, and CAM c harg es.

¶ 53 I I . Whether the F ive-Da y Notices Te rminated the L ease s ¶ 54 All Americ an arg ues that the five-da

y notices did not terminate the lease s but th at the lease s wer e instead terminated at the time the condemnation awa rd was paid. Given that the evi ct i o n co u rt did not enter a judgme nt prior to the entry of the condemnation awa rd, we must deter

mine whether the termination occur red at the expiration of the five-da y notices or at the time the awa

rd was paid. I f the lease s were terminated prior to the entry of the

-14-condemnation awar d, All America n is not entitl ed to a por

tion of the awa

rd; if the entry

of the awa rd terminate d the lease s, All America n is entitled to compensation. ¶ 55 The five -day

notice for

the 565 lease stated:
“Y ou are here by notified that y our tenanc y or lease of the following descr i b ed premises, to wit: 565 N Hicks Rd Palatine, I llinois
, toge ther wi t h all other

acc ommodations used by y ou in connec tion therewith, will be terminate d as follows,” and then listed three options: one conce rning non-pay ment of rent, one co n ce rn i n g other brea ches, and one terminating a we ek -t o-we ek, month-to-month, or holdover tenanc y

. Palatine Associate s had che cked the box next t o the first option, which provided:
“There is due the undersig ned for acc rued and past-due renta l for said

acc ommodations afor esaid the sum of Eig ht Thousand Three Hundre d Eig hty -three and 32/100 Dollars ($8383.32), for which demand is here with made, and unless pay ment is made within five (5) day s from the date of service here of, y our tenanc y i s terminated. Only FULL PAY

MENT of the rent demande d in this notice w ill waive the landlord’s right to terminate the lease under this notice, unless the l a n dl o r d a gr ees in writi ng to continue the leasein exc hange for rece iving partial payment .” (Empha sis in original.) The notice ended by stating: “Unless y ou promptly comply with the above, suit will be instit uted for possession, and for renta l due, toge ther with the costs of such proce eding .” The five-da y notice for the 601 lease was identical to the notice provided for the 565 lease
, except that the amount owed unde r the 601 lea se wa s $25,225. ¶ 56 All Americ an argu es t h at t h e fi v e- d ay notices did not terminate the lease s but only indicated that Palatine Associates had the rig ht to terminate the lease s. In support, All Americ an points to the leases, which provide:
“I f Tena nt defa ults i n t h e p ayment of Fixed Ba se Rent or other char g es or in the perf ormanc e of any other of Tena nt’s o b l i gat i o ns here under, and fails to reme dy such defa ult within five (5) day s afte r written notice from L andlord *** then and in any such instance, without further notice to Tena nt, exc ept to the exte nt required by law
, L andlord
may enter upon the Premises and te rminate this L ease .” (Empha sis added.)
Al l Americ an argues that the law require s Palatine Associates to rec eive a judgme nt for possession, at which point Palatine Associates would have the option of t er m i n at i n g the lease s. We do n ot find this argument persua sive. As Palatine Associates notes, the not ices specific ally state that “unless pay ment is made within five (5) day s from the date of service here of, y our tenanc y is terminated .” (Emphasis added.) The languag e of the notices does not state that Palatine Associates would rese rve the rig ht to terminate the lease but instead clea rly states that the lea se would be te rminated if pa y ment was not made

. ¶ 57 W e fi nd Elliott v. LRSL Enterprises, Inc.
, 226 I ll. App. 3d 7 2 4 (1 9 9 2 ), wh i ch Al l Americ an cites to show that termination of a tenanc y and termination of a lease are distinct,
to be inapposite. Elliott did not involve a five-da y notice but instead conce rned interpre tation of an ag ree d order

. I t was nece ssary to deter mine whether t h e p h ra se “ ‘tena ncy is terminated’ ” in the agree d order meant that the lease
, which contained a reservation of

reme dy provision, was no longe r eff ective. Elliott
, 226 I ll. App. 3d at 730. T he court deter mined that the entry of the a g ree d order in the context of a forc ible entry and deta iner

-15-proce eding meant that the phrase “ ‘termination of tenanc y ’ ” conce rned termination of the

tena n t ’s right of possession in the proper ty and did not terminate the privity of contra ct betwee n the landlord and tenant wher e the lease contained a provision to the contra ry

. Elliott
, 226 I ll. App. 3d at 731. In the case at bar, the five-da y notice specific ally noted that rent was due under the lease an d that the “tena ncy is terminated” if that rent was not paid. Thus,

u n l i k e Elliott
, the issue here square ly conce rns the languag e of the lease and the five-da y notice ser ved pursua

nt to that lease. ¶ 58 In the case at bar, as noted, t h e fi v e- d ay notice specific ally said that All America n’s
tenanc y “is t er m i n at ed ” in the event that the rent due was not paid. Thus, unlike All Americ an’s other case s, the languag e of t h e fi ve-da y notice makes it clea

r that Palatine Associates was not rese rving the rig ht to terminate the lease s but was in fac t terminating the lease s afte r the passag e of the time in the notices. Acc ording ly
, the five-da y n o t i ces terminated All American’ s leases in August 2007 at t he end of t he five-day period of time when All Americ an did not pay all of its past-due rent, making All Americ an not entitled to a portion of the just compe nsation awa rd.

¶ 59 I I I . All America n’s Def enses to F ive-Da

y Notices ¶ 60 All Americ an also argues that the condemnation court should not have found the lease s terminated by the five-da

y notices beca

use there are questions of fac t as to whether the fiveday notices wer e eff

ective. All Americ an claims that the square footag e under the lease s was inacc urate , making the computations of rent due, taxes due, and CAM char g es due likewise inacc urate , since they

wer e base d on the square footag e of the lease d premises. In fac t, All Americ an claims that, h ad t h e rent, taxes, and CAM char g es been proper ly calc ulated, it would have overpa id the amount due, meaning that there was no past-due rent at the time the notices wer e issued. All America n additionally

claims that it was not require d to pa y taxes

or CAM char g es until 2008 and challeng es the sufficie ncy of the aff idavit submitt ed i n support of Pala

ti n e A s s o c ia

te s ’ mo ti o n

. Finally
, All Americ an argues that Palatine Associates

was e stopped from c halleng ing the lease s beca use of its own bre ache s. ¶ 61 Initially
, we note that All Americ an does not claim t h at i t paid the rent due under its lease s afte r April 2007. Instead, All Americ an claims that in May or J une 2007, it orally
ag ree d with Palatine Associates to pay a lesser amount, based on the level of de terioration of the rest of the subject proper ty , and submitt ed two pay ments in the amount of $4,000 eac h for rent in October and Dec ember 2007. We consider whether the acc eptanc e of these lesser

a mo u nts p reve nts Palatine Associates from challeng ing the lease s below, but for the pu r p o s e s of considering the eff

ectivene ss of the five-da y notices, it is sufficie nt to note t h at Al l Am eric an acknow ledg es that it did not pay the amounts due under the lease s afte r Ap ri l 2007.

¶ 62 A. Affidavit ¶ 63 We first addre ss All Americ an’s arguments conce rni n g t h e af fi d avit filed by

Palatine Associates. Palatine Asso ci ates attache d the motions for summary judgme nt from the forc ible entry and detainer case s to their motion befor e the condemnation court. Attache d to

-16-the motions for summary judgme nt wer e aff idavits from J ohn Arg ianas, one of the manag ers of P al at ine Associates. Arg ianas stated that in his capa city as manag er, he neg otiated the
terms of both lease s and was familiar with the terms and provisions of the lease s. He further stated that All Americ an never g ave written notice to Palatine Associates of any repa irs that

wer e neede d, nor did it make any require d repa irs under the lease

. As a result, All Americ an

was not entitled to an offse t ag ainst rent. Arg ianas stated that he cause d the five-da y notices
to be serve d upon All Americ an, which was at that time in arr ear s in the amount of $8,383.32

on the 565 lease and $25,225 on the 601 lease

. During October 2007, All Americ an tender ed and Palatine Ass o ci at es acc epted a partial pay ment of $4,000 in rent, but the rema ining balanc e was not tender ed. As of J une 19, 2009, the date of the aff idavit, Arg ianas stated that All Americ an was in arr ear s in the amount of $31,783.31 on the 565 lease and $157,600 on the 601 lease

. Finally
, Ar gi an as stated that All Americ an rema ined in possession of the
proper ty

. ¶ 64 All Americ an claims that Arg ianas’ aff idavits do not comply with I llinois Supreme Court Rule 191(a) (ef

f. Jul y 1, 2002) bec ause the y wer e conclusory and insufficient to pr ove that
any rent was due at the time the five-da y notices we re issued. We note that All A merica n 1 0 did not raise this argument befor e the condemnation court. An argument that has not been raised in the trial court cannot be raised for the fi rs t t i m e o n ap p eal, even in the case of a summary judgme nt. Lajato v. AT& T, Inc
., 283 I ll. App. 3d 126, 136 (1996). Whil e it claims
to have been justified, All Americ an does not dispute that it has not paid the co n trac tual
amount due under the lease s since April 2007. Thus, Arg ianas’ aff idavits a re not nece ssary to prove that proposition.

¶ 65 B. Square-FootageCalculations ¶ 66 All Ameri ca n al s o ar gu es t h at t h e s q u ar e-footag e calc ulations in the lease s were incorre ct, making the rent, taxes, and CAM c harg es due inacc urate , since they all relied on

a calc ulation based on the square footag e of the lease d premises. We do not find t h i s argument persua sive. As Palatine Associates notes, there is no indication that All Americ an disag ree d with the square -footag e calc ulati o n i n the lease s until it defa ulted in its rent pay ments. Moreove r, the lease s list the square footag e as “appr ox imately 7500 square fee t” in the 601 lease and “appr ox imately 2500 square fee t” in the 565 lease

. Thus, by their very terms, the lease s do not purport to list an exact measure ment of the lease d premises. Despite this fac t, All Americ an ag ree d to use the figures of 2,500 and 7,500 as the square footag e for the calc ulation of the rent, taxes, and CAM char g es; indeed, the lease s make the formulas for calc ulating the amounts due perf ectly clea r. We cannot find that All Americ an was entitled
to pay a les s er am ount mere ly beca use the actua l square footag e of the premises differ ed from the a

pproxi mation list ed in the lea ses.

All Am er ic an cha ll enges onl y the por ti on of Argian as’ af fi davit s in whic h he st at es the 1 0
amount of re nt due

. I t doe s not m ake any ar gum ent as to any oth er asp ect s of the af fi davit s, suc h as Argian as’ st at ements tha t All Am er ic an d id not give writ te n no ti ce con cer nin g requi re d r epa ir s or

m ake th e r epa ir s i ts el f.

-17-¶ 67 The only case All Americ an cites in support of its argument is Kirkpatrick v. Strosberg
,

385 I ll. App. 3d 119 (2008), in which the appellate court considere d whether a condominium develo p er brea ched its purcha se ag ree ments with buy ers when the measure ments of the condominium units wer e differ ent th an i n the develope r’s floor plans. All Americ an uses Kirkpatrick to state that a duty of g ood faith and fair dealing is implied in ever y contra ct or lease

. See Kirkpatrick
, 385 I ll. App. 3d at 131. Howeve r, more applicable to the case at bar is Kirkpatrick ’s discussion of the plaintiffs’ brea ch of contra ct claims conce rning the square footag e of the units. The cont ra ct s s i gn ed by the plaintiffs stated that all dimensions wer e approximate, and the appellate court noted that s i n ce the contra cts contained those statements, the t ri al co urt did not err in finding that the contra cts wer e not brea ched. Kirkpatrick
, 385 I ll. App. 3d at 129. L ike in Kirkpatrick
, the lease s here expli citly stated in
at least two place s that the square footag e of the lease d premises was an approx imation. There fore, we find that the fac t that the actua l measure ments differ ed from the approximations does not permit All Americ an to pay a lesser amount of rent, taxes, or CAM char g es.

¶ 68 C. Nece ssity of Paying Taxes and CAM Charges ¶ 69 All Americ an also claims that it should not have b ee n re q u i re d t o pay taxes or CAM char g es prior to 2008, meaning that it ove rpaid the amount due when it paid those char g es. Article 5 of

the 565 lease conce rned the pay ment of taxes: “Commencing on the Commencement Date TENANT shall p ay , as additional rent, TENANT ’S proportionate share of all rea l estate taxes and assessments*** for eac h cale ndar year during the term here o f[

. ] * * * For purposes of this L ease , TENANT ’S proportionate sha

re sha ll be deeme d 1.50%. (2500 out of 167,142 sq. f t.) During the term of this L ease , TENANT shall pay to L ANDL ORD, monthly in advanc e, an amount equal to one-twe lfth (1/12th) of TENANT ’S proportionate share of

rea l estate t ax es and assessments for the curr ent y ear , as rea sonably estimated by L ANDL ORD. Such amount is curr entl y es t i m at ed to be $2.00 per square foot. I f TENANT ’S proportionate share of taxes with respe ct of any tax y ear is less than the total
amount there tofore paid by TENANT for such period, the excess shall be cre dited ag ainst the rent next becoming due or promptly ref unded if no rent rema ins due. I f TENANT ’S proportionate share of taxes for any y ear promptly exceeds the total amount there tofore paid by TENANT for s u ch p er iod, TENANT shall, within 30 day s afte r rec eipt of invoices from L ANDL ORD and a copy of rea l estate tax bill, pay the differ ence betwee n the actua l a

mount pa id by TENANT and TENANT ’S proportionate share of rea l e state taxes and assessments.”
Article 5 of the 601 lease is i d en t i ca l ex cept that the 601 lease deeme d All Americ an’s proportionate share of taxes to be 4.49%. Article 6 of the lease s provided that “the additional
rent for rea l e state taxes a nd CAM shall not ex cee d $3.00 per square foot. Tena nt sha ll not be responsible for pay

ment of any rea l estate tax es o r CAM, incurre d or paid prior to Dec ember 1, 2006. CAM and Taxes shall be cappe d at $3.00 per foot during the origi n al lease term.” Article 6 fur

ther provide d:

-18-“Dur ing the 60-day period immediately following L andlord’s delivery of any annual
statement to tax es o r C AM Charg es, Tena nt shall have the rig ht to inspect L andlord’s

acc ounting rec ords relating to Taxes of CAM Charg es (as applicable to th e s t atement delive r ed) at L andlord’s or its ag ent’s office
, upon rea sonable prior notice. Unless Tena nt shall take written exception to any item in any such statement within said 60-day period, such statem en t s h al l b e considere d final and acc epted by Tena nt. Any pay

ment due to L andlord or cre dit or pay ment due to Tena

nt as s h o wn o n an y such statement shall be paid or applied in the manner and within the time period descr ibed here in, whether or not written exception is tak en t here to, provided that such pay ment or application shall be without prejudice to a

ny such written e x ception.” ¶ 70 All A merica

n rea ds the provisions conce rning taxes and CAM char g es to say that there should be no monthly pay ment of taxes until 2008, since 2007 taxes wer e paid in 2008, and

no CAM char g es until All Americ an was furnished wi t h a statement of the 2007 annual CAM char g es in 2008. W i t h respect to the tax pay ments, the languag e of article 5 of the lease s provides that “[d]uring the ter m of this L ease , TENANT shall pay to LANDL ORD, monthly in advanc e, an amount equal to one -twelfth (1/12th) of TENANT ’S proportionate share of rea l estate taxes and assessments for t he curr ent year , as rea sonably estimated by L ANDL ORD.” Thus, the clea r and unambi gu o u s languag e of the lease s require d All Americ an to pay the taxes monthly in advanc e to Palatine Associates. All Americ an attempts to rea d the second- to-last sentenc e of article 6, which rea ds, “Te nant shall not be responsible for pay ment of any rea l estate taxes or CAM, incurr ed or paid prior to D ece mber 1, 2006,”
to mean that since taxes are paid in 2008, there could be no tax pay ments due until 2008. We disag ree

. Even if the 2007 taxes a re ultimately paid in 2008, they are never theless incurre d in 2007. Given that the lease s unambig uously contemplate advanc e pay ments, it is clea

r that All Americ an was require d to make tax pay ments beg i n n i n g in 2007 and All Americ an’s
argument to the contra

ry is not persuasive. ¶ 71 Wit h reg ard to the CAM char g es, the lease s do not make clea r whether CAM char g es ar e also due monthly in advanc e or are paid in some other form. Howeve r, the l ea s es do contemplate a credi t b ei n g du e to All Americ an upon its revie w of an annual statement of CAM char g es. I f a cre dit is possible, there must have been contemplated some advanc e p aym en t ; otherwise, the amount due by All Americ an would be ex actly the amount sta t ed in the annual statement and no cr ed i t woul d be possible. Thus, we ag ree with Palatine Associates that CAM char g es are also paid in advanc e. Moreove r, even if All Americ an was in fac t not require d to pay CAM char g es upon the furnishing of an annual statement that was

never rec eived, any overpa y ment of CAM c harg es would not ha ve offse t the amount owed by All Americ an in rent and taxes. Thus, even if the amount due was overstate d, there would still have been a balanc e owing at the time of the five-da y notices and the lease s would still have been terminated. See Elizondo v. Medina
, 100 I ll. App. 3d 718, 721 (1981) (finding it irrele vant that the five-da

y notice demande d more money that was owed, since the tenant did not tender e ven the a

mount actually

due).

-19-¶ 72 D. Palatine Associates’ Ac ceptanc e of Lesser Amount of Rent

¶ 73 All Americ an also arg ues that Palatine Associates should be estopped from demanding strict compliance with the lease s due to its conduct. All Americ an claims that in May or J une 2007, Palatine Associate s and All Americ an met to discuss the condemnation c ase and the condition of the shoppingcente r. Ac cordingto All America n: “The parties a g ree d that due to the dete riorate d condition of the common ar eas a nd the pending condemnation case , All Americ an was unable to operate proper ly or sublease the premises, and it would be very difficult for Palatine Associates to find a new tenant willing to pay t h e am o u n t of rent require d under the L ease s. There fore
, Palatine Associates ag ree d that All Americ an was not oblig ated to pa y the monthly rent in strict compliance with the terms of the L ease s, but that Palatine Associate s wo u l d be paid whateve r amount All Americ an could pay based on i t s b u s iness income during the pendenc y o f t h e condemnation proce eding

. The parties also ag ree d that Palatine Associates would be paid the full rent owed under the L ease s out of the proce eds of any

awa rd g rante d to All America n pursuant to the conde mnation proce eding s.”
All Americ an claims that based on this agree ment, it submitt ed two $4,000 p aym en t s to Palatine Associates in October and Dec ember 2007. Thus, it argues that Palatine Associates should be estopped from demanding stric t compliance w ith the leases. “ The acce ptance of rent, even afte r a notice to quit has been g iven, is not itself a waiver
, but mere ly evidenc e to be considere d in acc ordanc e with all the circ umstances.” W ang v. Marcus Brush Co.
, 354 I ll. App. 3d 968, 970 (2005) (citing Glad-Nan Corp. v. Henry ’s Drive -In, I nc. , 29 I ll. App. 2d 363, 367 (1961), and Podbielniak v. Podbielniak
, 3 8 I l l

. Ap p

. 2d 451, 460 (1962))

. In the

case at bar , we f

ind All America

n’s ar g ument to be unper suasive for a number of re asons. ¶ 74 First, t h er e is absolutely no evidenc e in the rec ord to support that such a conve rsation

occur red; All Americ an’s citation to the rec ord in support of this alleg ed agree ment is to its
response to Palatine Associates’ motion to deter mine that All Americ an did not hav e an interest in the condemnation awa rd. Whil e All Americ an is not require d to prove its case on

a motion for summary judgme nt, it must still prese nt some fac tual basis that would support its claim. See Schrager
, 328 I ll. App. 3d at 708. Her e, there is no fac tual basis to support its contention. ¶ 75 But most importantly
, article 26 of the lease s ex p l i ci t l y s t at e that “[n] o pay ment by Ten an t o r re ce ipt by L andlord of a lesser amount than the renta l or other charg es here in stipulated shall be deeme d to be other than on acc ount of the ear liest stipulated rent *** and L andlord may acc ept such chec k or pay ment without prejudice to L andlord’s right to rec over the balanc e of such rent or o t h er ch ar ges or pursue any other reme dy provided for in this L ease or available at law or in e quity .” Thus, the clea r languag e of the lease s indicates that

acc eptanc e of the chec ks, which constituted less than th e t o t al amount owed by All Americ an, did not opera

te as a waiver of Palatine Associates’ demand for strict compliance and that the m oney would be considered to be pay ment of t he “ear liest stipul at ed re nt,” i n this case , rent from May or J une 2007, which was when All Americ an ce ased paying rent. See LaSalle National Bank v. First City Corp.
, 58 I ll. App. 3d 575, 578 (1978) (“A cce ptance of rent which acc rued prior to the brea ch constituting the g round for t er m i n ati on is not a

-20-waiver of the right to enforc e the f orfe iture.”)

. ¶ 76 We find All Americ an’s relianc e on McG ill v. W ire Sales Co.
, 175 I ll. App. 3d 56 (1988), and W aukegan Times Theatre Corp. v. Conrad
, 324 I ll. App. 622 (1945), to be unpersua sive. In McG ill
, the tenants paid, and the landlord acc epted, a pay ment for all of the back rent due. McG ill
, 175 I ll. App. 3d at 58-59. This differ s from the case at b ar , wh er e All Americ an tender ed a partial pay

ment. Additionally
, in W aukeg a n T

i me s , the landlord knew that prohibited assig nments of the lease had occur red but did not complain of the assig nments and continued to collect rent from the assig nees for over a y ear

. W aukegan Times
, 324 I ll. App.
at 631-32. Her e, by contra st, Palatine Associates did not continue to behave as though strict compliance wi th the l ease s was not nece ssary

. Palatine Associates serve d five-da y notices in August 2007, filed actions for forc ible entry and detainer shortly there afte r, and continued
to pursue those actions until the eviction court dismiss ed them as moot in J anuar y 2010. Thus, we cannot find that Palatine Associates’ conduct preve nts them from arguing that All Americ an wa s require d to comply with the lease s.

¶ 77 E. Represe ntations by Palatine Associates ¶ 78 Al l Am er i ca n also argues that Palatine Associates is estopped from arguing that All Americ an brea ched the lease s beca use Palatine Associates brea ched the lease s and their oral
repr esentations to All Americ an by failing to make repa irs to the common ar ea s o f t h e shopping cente r. All Americ an char acte rizes its claims in this are a as fra udulent inducement claims. ¶ 79 Article 26 of

the lease provides: “(f ) Entire Ag ree ment. This L ease and exhibi ts attache d here to set forth al l o f the

covena nts, promises, ag ree ments, conditions and understanding s betwee n L andlord and T en ant conce rning the Premises and there are no covena nts, promises, ag ree ment s , conditions or understanding s, either oral or written, betwee n them other than are here in
set forth. Ex cept as otherwise provided no subsequent alteration, amendment, chang e or addition to this L ease shall be binding upon L andlord or Tena nt unless reduc ed to writing and sig ned by

them. This L ease superse des and revoke s all previous neg otiations, arr ang ements, letters of intent, offe rs to lease
, lease proposals, brochur es, repr esenta tions, and information
conveyed, whether oral or in writing
, betwee n the parties here to or their respe ctive
repr esentatives or any

other pe rson purportingto repre sent the L andlord or the Tena nt. The Tena nt acknow ledg es that it has not been induced to enter into this L ease by any repr esentations not set forth i n t h i s L ease , shall be used in the interpre tation or construction of this L ease , and the L andlord shall have no liability for any conseque nces arisingas a r esult of any

such re prese ntations.” ¶ 80 Palatine Associates claims that the pres ence of t he int eg ration and nonrelianc e cla uses in article 26 of the lease s prec ludes All Americ an’s arguments as a matter of law. We agree that the nonre liance c lause pre vents All A merica n from establishing justifiable relianc e on any alleg ed statements made by Palatine Associates prior to enter ing into the lease s. To state

a claim for fra

ud, a plaintiff must alleg e five elements: “(1) a false statement of materia l fac t;

-21-(2) by one who knows or believes it to be false; (3) made with the intent to induce action by

another in relianc e on the statement; (4) action by the other in relianc e on the truthfulness of the statement; and (5) injury to the other resulting from that relianc e. ” State Security Insurance Co. v. F

r a nk B. Hall & Co.
, 258 I ll. App. 3d 588, 592 (1994) (citing Soules v. Gene ral Motors Corp.
, 79 I ll. 2d 282, 286 (1980))

. As part of its fra ud claim, a plaintiff must alleg e that its relianc e on the misrepre sentation was justified. Adler v. W illiam Blair & Co.
, 271 I ll. App. 3d 117, 125 (1995). “In deter mining whether relianc e was justifiable, all of the fac ts which the plaintiff knew, as well as those fac ts the plaintiff could have lear ned throug h the exercise of

ordinary prudenc e, ar e take n into account.” Adler , 271 I ll. App. 3d at 125. ¶ 81 One factor that courts have considered in analy zing j ustifiable r el i an ce i s the pre sence of a nonrelianc e clause in a contra ct betwee n the parties. See Tirapelli v. Advanc ed Equities, Inc. , 351 I ll. App. 3d 450, 457 (2004); Adler
, 271 I ll. App. 3d at 126; Rissman v. Rissman
, 213 F.3d 381, 383-85 (7t h C i r. 2 0 0 0 ). In the case at bar, All Americ an claims that the nonrelianc e clause i n t h e l ease s should instead be considere d an exculpatory clause and there fore did not prevent its claim. We disagree

. ¶ 82 In support of its argument, All Americ an cites Kleinwort Benson North America, Inc. v

. Quantum Financial Servic es, Inc.
, 285 I ll. App. 3d 201, 216 (1996), in which the court found that a clause limit in g l i ab i l ity for fra ud did not preve nt resc ission of the contra ct beca use “exculpatory clause s for wilful and wanton conduct are void as a ma tter of public policy ,” which included t h e provision that limit ed the liability for fra ud. We find our decision in B en son v. Stafford
, 407 I ll. App. 3d 902 (2010), to be instructive. In that case , we al s o considere d whether a clause was a nonrelianc e clause or an exculpatory clause
, and also considere d the plaintiff’s relianc e on Kleinwort

. In deter mining that it was not an exculpatory clause , we noted: “The provision indicates that no party relied on any repr esentation that was not contained in the written contra ct. I f there was no relianc e, then there can be no liability
, reg ardle ss of whether t h e last sentenc e of the provision is prese nt. The languag e of the provision

mere ly makes expli cit an alre ady -pre sent result of the nonrelianc e clause

. We do not see it as analog ous to Kleinwort
, beca use i n that case , the clause limit ed the r emedy for a n intentional tort that had occur red. See Kleinwort
, 285 I ll. App. 3d at 215. Her e, the fra ud
cannot occur , beca

use the parties have ag ree d that there was no relianc e, a nece ssary element for fra

ud. Thus, the clause targ ets relianc e, n o t a re lease from liability for intentional torts, which would be void. See Zimmerman v. Northfi eld Real Estate, Inc.
, 156 I ll. App. 3d 154, 164 (1986) (‘An exculpatory clause cannot protec t persons from the results of t heir wilful and wanton misconduct.’).” (Emphasis i n o ri g inal.) Benson
, 407 I ll. App. 3d at 926-27.
Simi larly
, in the case at bar, the parties have ag ree d that no promises wer e made outside of the languag e of the leases an d t h at Al l Americ an was not induced to enter into the lease s. This targ ets the re liance e lement of fr aud and the prese nce of the liability clause at the end of the lease provision does not turn that into an impermissible exculpatory clause

. Thus, All Americ an cannot claim that its lease s wer e not terminated b ec ause of fra ud committed by Palatine Associate s.

-22-¶ 83 F. Palatine Associates’ Breac h

¶ 84 Finally
, All Americ an argu es t h at t h e b re ac h es of the lease s committed by Palatine Associa t es i n n o t making the repa irs it was require d to make under the lease allowed All Americ an to offse t its damag es ag ainst the rent due, ag ain eliminating any rent du e at t he time of the five- day

notices. Exhibi t B of the lease s, entitled “L andlord’s W ork,” provides in entirety : “L andlord shall not perf orm any work whatsoeve r on the Premises. Tena nt shall

ac ce p t the Premises ‘AS I S, WHERE I S AND WI TH AL L FAU L TS, I F ANY.’ L andlord shall be re s p o n sible for the maintenanc e and repla ceme nt as neede d of all Mecha nical (HVA C), elec trical sy stems, any fire spr inkler sy stems and other struc tural compone nts.” ¶ 85 Article 12 of the lease s also provided the followin g co n ce rn i n g re p airs by Palatine Associates:
“L andlord, shall keep the foundations, roof, parking are as, Common Are as and structura l portions of the walls of the Premises in g ood cond ition and repa ir, except for repa irs require d there to by rea son of the acts or omissions of Tena nt, Tena nt ’s employ ees, ag ents, invitees, licensee s, or contra ctors. Tena nt shall reimburse L andlord for such
repa irs, repla ceme nt and maintenanc e as described in Article 6 of this L ease provided in

no event shall Tena

nt b e re s p o n s i ble for any repa ir or repla ceme nt costs for the foundations, structura l portions of the walls, load bear ing items, plumbing, utilit y lines, pipes and conduits inside or outside the Premises and/or common are as unless the repa ir or replace ment is cause d by Tena nt, its employ ees, customers or invi tees. Te nant shall
g ive L andlord written notice of the nece ssity for repa irs coming to the attention of Tena nt following which L andlord shall have a rea sonable time to undertake and complete such
repa irs. The provisions of this Paragraph shall not apply in the ca s e o f damag e or destruction by fire or other casua lty or by eminent domain, in which event the obliga tions of L andlord shall be controlled by either Article 14 or Article 16 hereof. I f [L andlord] fails to make the require d repa irs under the lease within a rea sonable time, the n Tena nt may make sa id repa irs and off set ag ainst rent.” ¶ 86 Article 24 of

the lease s conce rns bre ach of the lease s by

Palatine Associate s: “I f L andlord shall fail to perf orm any covena

nt, t er m o r condition of this L ease upon L andlord’s part to be perf ormed and, as a conseque nce o f s uch defa ult, Tena nt shall

rec over a money judgme nt ag ainst L andlord, such judgme nt shall be satisfied only out of the proceed s of sale rec eived upon execution of such judgme nt and levy there on ag ainst the rig ht, title and interest of L andlord in the Shopping Center as the same may then be encumbe red and neither L andlord nor i f L andlord be a partne rship, any of the partne rs comprising such partne rship shall be liable for any defic iency

. Tena nt may also offse t its j udg ment ag ainst rents.”
All Americ an’s arg

ument is not persua sive conce rning offs et ting Palatine Associates’ claimed brea ches ag ainst All Ame r ic a n ’ s rent due beca

use All Americ an did not satisfy either of the two way s in which it was entitled to offse t rent under the lease s. The first way , under article 12, require d All Americ an to g ive written notice of any repa irs that neede d to be made and then, afte r Palatine Associates failed to make the repa irs, All Americ an could make them and o ffse t it ag ainst the rent. The second way , under article 24, require d All Americ an to

-23-rec over a m o n ey j u d gm ent aga inst Palatine Associates. There is no evidenc e in the record

of All Americ an requesting or m akingany repa irs to the proper

ty , and ther e is no question that All Americ an never rec eived a mo n ey judgme nt ag ainst Palatine Associates. Acc ording ly
, All Americ an was not entitled to offse t any thing ag ainst the amount of rent due. ¶ 87 Even if Palatine A ssociates ha d brea ched the lease s, the mere fac t that it did so did not relieve All Americ an of its obligations to pay rent. “Eve n if a lessor ag ree s to repa ir, *** that

coven an t i s independe nt of the lessee’ s duty to pay rent.” City of Chicago v. American National Bank
, 86 I ll. App. 3d 960, 963 (1980) (citing McArdle v. Courson
, 82 I ll. App. 3d 123, 125-26 (1980))

. Thus, All Americ an was still require d to pay rent under the lease s. Since none of All Americ an’s defe nses established that the five-da y notices wer e ineffe ctive,

we find that the five-da

y notices terminated the lease s and, conseque ntly
, All Americ an was not entitled to a portion of the aw ard of just compensation.

¶ 88 I V. Escr ow ¶ 89 Since we have deter mined that All Americ an is not entitled to any part of the final aw ard for just compensation, we need not deter mine whether the condemna tion court err ed in permitting disburse ment of the a war d by the esc rowe e.

¶ 90 CONCLUSI ON ¶ 91 For t h e reasons set forth above, the condemnation court corr ectly deter mined that All Americ an wa s not entitled to share in the fina l awar d of just compensation.

¶ 92 Affir

med.

-24-