## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Naperville Sou th C

om m ons, LLC v. Nguyen , 2013 IL App (3d) 120382

Appellate Court Caption NAPE RV I L L E SOUTH COMMONS, L L C, Plaintiff-Appellant
, v

. L IEN NGUYEN, Def

endant- Appellee

.

District & N o. Third District Docke t No. 3-12-0382

Rule 23 Order

filed Motion to publ ish allowed Opinion filed J uly 18, 2013

August 27, 2013 August 27, 2013

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er 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

. ) An order requiring plaintiff landlord to pay $54,000 in attorne y fe es to defe ndant tenant was not a n abuse of discretion, since plaintiff was able
to cross-e x amine the attorney s involved, cer tain partially reda cted bills specifie d dates and times, and althoug h defe ndant was not prese nt at the hearing conce rning defe n dant’s first attorney , plaintiff did have an opportunity

to cross-e x amine that attorne y

.

Dec ision Under Review Appea l from the Circuit Court of Wil l County
, No. 10-L M-3022; the Hon. Mark T homas Carne y , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Daniel J

. Kallan (ar gued), of Daniel J

. Kallan Ltd., of J oliet, for appellant.

Kevin McQui l l an (ar gued), of McQuillan L aw Offic e, L L C, of Nape rville, for a

ppellee.

Panel J USTI CE O’B RI EN deliver ed the judgment of the c ourt, with opinion.
J ustices Holdridg e and McDa de concur red in the judgme nt and opinion.

OP INION

¶ 1 The plaintif

f, Nap er v i l l e S o u t h C o m m ons, L L C, a commerc ial landlord, brought a forc ible entry and detainer action ag ainst a tenant, the defe ndant, L ien Nguyen, alleg ing that the tenant owed back rent. The circ uit court found in favor of the tena n t an d o rd er ed the landlord to pay

attorney fee s. The landlord a

ppeale d.

¶ 2 FACTS ¶ 3 The landlord filed a complaint in forc ible entry and detainer ag ainst the tenant, alleg ing that the tenant owe d b ac k rent of $19,401.88. Prior to filing the complaint, the landlord

serve d a five-da

y notice on the tenant pursuant to the For cible Entry and Detaine r Act (735 I L CS 5/9-101 et seq. (West 2010)). The action was based upon a shopping cen t er l ease signe d on May 1, 2007. T h e t en an t m ad e her last rent pay ment in August 2010, and the complaint was filed in Oc tober 2010. A be nch trial wa s begun in J anuar y 2011. ¶ 4 The reg istered ag ent and owner of the landlord, Masud Arjmand, testified that the tenant
rente d s p ac e i n h is commerc ial reta il development. The tenant rente d unit 117, wher e she
operated a nail studio/salon. The 2007 lease provided for an initia l m o n t h l y b ase rate of $1,703 and then increa ses in the third and fourth year s to $2,889 and $2,976, respe ctively

. Howeve r, the landlord did not make the rent incre ases due on May 1, 2009, nor May 1, 2010. Arjm and testified that t his was not a lease m odification, but just a temporary measure due
to the poor economy

. The tenant’s base rent was incre ased to the 2010 contra ct rate ($2,976) in September 2010. Ar

j mand testified that he made that decision beca use the tenant’s business looked like it had rec overe d. Arjmand also testified as to how the triple net charg es and rea l estate taxes wer e charg ed to eac h unit. T h e t enant sent Arjmand a letter dated September 5, 2010, which stated that she was g oin g to withhold rent until the dispute betwee n the par

ties was re solved. ¶ 5 The tenant testified that she signe d the 2007 lease

. She worke d for Arjmand from August 15, 2009, until May 30, 2010, as his office manag er. The tenant further testified that she was b eh i n d in rent in J une 2009, and she wanted to g et out of the lease

. Arjmand asked h er t o

-2-stay , and he agree d to keep her rent at $1,703 per month until the plaza had 100% occupa ncy

. S he acknowledg ed that there was nothi ng in writing to document the new rent agre em en t

. The tenant claimed that Arjmand actua lly owed her money beca use of overpa

y ment of triple net cha rg es. ¶ 6 At the close of all testimony
, the t enant indicated t hat she wa s g oing to vacate her unit by the end of the month, J uly 2011, which the circ uit court noted in its J uly 14, 2011, order

. On November 18, 2011, the circ uit court enter ed an order
, wi t h o u t specific finding s, concludin g t h at th e landlord had not proven by a preponde ranc e of the evidenc e that the
tenant owed any rent, utilit ies, common are a expenses, taxes, or fee s at the time of the fiveday notice. The landlord di d not file a timely n o t i ce o f ap p eal, and it s motion to file a late
appea l was denie d by

this court. ¶ 7 Although the landlord did not fi l e an ap p ea l wi t h i n 3 0 d ay s of the November 18 judgme nt, the tenant did file a motion for fee s, costs, and expenses on Dec ember 12, 2011. The circuit court found the m otion to be collateral to the underlying action and d en i ed t he landlord’s motion to strike or dismiss. ¶ 8 The landlord was g iven leave to file a petition for attorney fee s, which he did. Par agraph 52 o f t h e l ease provided for attorney fee s, costs, and expenses to the preva iling party –and

eac h party maintained that it preva iled. The landlord argued that it preva iled beca use it was

awa rde d p o s s es s ion of the premises, and on three occa sions the t enant was order ed to pay

sums of money for rent during the action. The tenant argued that she preva iled beca use there

was no money due at the time of the five-da y notice. The circ uit co u rt l o o k ed at two key issues: possession and rent. It found that the landlord had asked for possession, but there was

n ev er a judgme nt for possession. The tenant had voluntarily tender ed possession, so t h e circ uit court did not believe that the landlord preva iled on that issue. Wit h respe ct to rent, the circ uit c ourt alre ady deter mined that the landlord did not sustain his burden of proving that the tenant owed any

thing at the time of the five-da y notice. Thus, the circ uit court ruled that the tenant was the preva iling party and grante d her petition for fee s and costs. The circ uit
court enter ed judgme nt in favor of the tenant in the amount of $29,310 for fee s and $2,077.22 for e x penses, a

nd rese rved r

uling on r edac ted fe es. ¶ 9 As for the partially reda cted f

ees, the circ uit court enter ed a later order findingthem to be rea sonable, and order ed an additio n al fe e aw ard of $6,950 ag ainst the landlord and in favor of the tenant. Finally
, the circ uit court considere d the fee s of the tenant’s prior attorney and found his fee s to be fair and rea sonable. The circ uit court enter ed another order in favor of t he tenant and aga inst the l andlord, i n t h e am ount of $15,723.50 on May 10, 2012. The
next day
, the landlord filed a notice of appea l, seeking revie w of the November 18 judgme nt on the complaint and a ll of the subsequent orde rs re lated to attorne y fee s.

¶ 10 ANALYSI S ¶ 11 As an initial matter, we must deter mine if we have jurisdiction to consider the November 18 judgme nt in favor of the tenant on the forc ible entry and detainer complaint. The tena

nt argues that we lack jurisdiction over the November 18 judgme nt beca use the landlord did not file a timely notice of appea l or a timely motion to rec onsider pursuant to section 2-1203 of

-3-the C ode of Civil Procedur e (735 I L CS 5/2-1203 (W es t 2 0 1 0 )). Although its motion for a

late appea l was denied by this court, the landlord argues that the tenant’s motion for fee s and
costs was a posttrial motion direc ted toward the underly ing judgme nt pursuant to section 2- 1203(a)
, and si nce it was filed within 30 day s of t he final ruling reg arding attorney fee s, it

was timely for revie w of the November 18 judgme nt and all the atto rn ey fe e ru l i ng s. The
tenant counter s that the motion for fee s and costs was not a postrial motion, so as to extend the 30-day time period, as it was not direc ted at the underly ing judgme nt. The circ uit court, in ruling on a mot i o n t o s t ri ke or dismiss the landlord’s motion for fee s, found that the motion was collatera l to the underlying a ction and not a posttrial motion. ¶ 12 I llinois Supreme Court Rule 303 provides:

“The notice of appea l must be filed with the cler k of the circ uit court within 30 day s afte r the entry of the final j u d gm en t appealed from, or, if a timely posttrial motion direc ted ag ainst the judgme nt is filed, whether in a jury or a nonjury case , within 30 day s afte r t he entry of the orde r disposing of the last pending postjudgment mot ion direc ted
ag ainst that judgme nt or order
, irrespe ctive of whether the circ uit court had enter ed a series of final orders t hat were modi fied pursuant to postjudgment motions.” I ll. S. Ct. R. 303(a)( 1) (e ff. June 4, 2008). ¶ 13 A notice of appea l is a proce dural device that, when timely filed in the circ uit court, vests jurisdiction in the appellate court in order to permit revie w of the judgme nt such that it may be aff irmed, reve rsed, or modified. Gene ral Motors Corp. v. Pappas
, 242 I ll. 2d 163 (2011) ( GMC ). Once the notice of appea l is filed, the appellate court has jurisdiction and the circ uit
court n o l ong er has jurisdiction. GMC
, 242 I ll. 2d at 173-74. Howeve r, the circ uit court reta ins jurisdiction afte r the notice of appea l is filed to deter mine matter s coll ater al or incidental to the judgme nt. GMC
, 242 I ll. 2d at 173-74. Thus, a circ uit court has jurisdiction
to e ntertain a motion for attorney fee s filed within 30 day s of the entry of a final judgme nt, whether the reque st is considere d to be part of the orig inal action or collater al to the orig inal claim, even if there was a previously fil ed n o t i ce o f appea l. Herlehy v. Bistersky
, 407 I ll. App. 3d 878 (2010). A notice of appea l filed m o re t han 30 day s afte r the entry of a final judgme nt is insufficient to vest the appe l late court with jurisdiction. Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. , 137 I ll. App. 3d 550 (1985). ¶ 14 A final order or judgme nt is a deter mination by the court on the issues prese nted by the pleading s wh i ch asce rtains and fix es absolutely and finally the rights of the parties to the litigation. Berger v. Matthews
, 216 I ll. App. 3d 942 (1991). Clearly
, there was no notice of
appea l filed wi th i n 30 day s of the November 18, 2011, judgme nt, which found in favor of the t enant on the forc ible entry complaint. The question is, then, whether the motion for attorney fee s, filed by the tenant within 30 day s, was a posttrial motion direc ted ag ainst that judgme nt, so as t o ext en d t h e t i m e period of fili ng the not ice of appea l. The tenant soug ht fee s under the pr ovision in t he lea se allowingfee s to the prevailing party

. The mot ion was related to the underlying judgme nt, in that it g ave her the basi s t o s ee k fee s, but it did not challeng e the finding s in that judgment. We conc lude that the tena nt’s motion for attorney fee s was not a posttrial motion direc ted ag ainst the judgme nt, be cause claims for fee s wer e collater al to the underlying action. See Servio v. Paul Roberts Auto Sales, Inc.
, 211 I ll. App. 3d 751 (1991); see also Marsh v. Eva n g el ical Covenant C hurch
, 138 I ll. 2d 458 (1990) (a

-4-motion for attorney fee s as sanctions under section 2-611 of the Code of Civil Procedur e was

not a posttrial motion direc ted ag ainst t h e judgme nt). Thus, the motion for fee s did not extend the time pe riod for an appea l, a nd since the landlord fa iled to f ile a notice of appea l within 30 day s of the judgme nt, w e lack jurisdiction to revie w the underlying judgment on the complaint. ¶ 15 We do, howeve r, have jurisdiction to revie w the attorney fee awa rds. The lease provided that, in the event of

any action brought by either pa rty under the lease , the pre vailing pa rty

was entitled to rec over costs and expenses, including attorney fee s. The circ uit c ourt found that the tenant was the preva iling party and awa rded fee s acc ording ly

. The landlord argued that it was the pre vailing pa rty beca use it obtained possession. ¶ 16 A party can be considere d a preva iling party for the purposes of awa rding fee s when he is succe ssful on any signific ant issue in the action and achie ves some benef it in bring ing suit,

rec eives a judgme nt in h i s favor, or obtains some aff irmative rec overy

. Grossinger Motorcorp, Inc. v . American National Bank &Trust Co. , 240 I ll. App. 3d 737 (1992). The construction of a lease ’s fee provision prese nts a question of law, which we revie w de novo

. Bright Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC
, 403 I ll. App. 3d 234 (2010). The rea sonablene ss of an awa rd of fee s by the circ uit court is revie wed for an abuse of discre tion. Powers v. Roc kford Stop-N-Go, Inc

. , 326 I ll. App. 3d 511 (2001). ¶ 17 The ci rc u i t co u rt fo u n d t h at th e landlord was seeking possession, but the tenant voluntarily tender ed possession, so there was no judgme nt for possession. Thus, the landlord

was not the preva ilin g p ar t y on that issue. The tenant was the preva iling party on the rent issue, which was the basis for the claim for possession, beca use the circ uit court found that the tenant owed nothing at the time of the five-da y notice. Since the landlord did not obtain judgme nt in its fa

vor, and was not suc cessf ul on any signific ant issue in the action, and the
t en an t p reva iled in a substantial part of the litigation, we agree that the tenant was t h e preva iling par

ty under the fee s provision of the lease

. ¶ 18 The landlord does not make any argument reg arding the rea sonablene ss of the initial fee

awa rd, thus we do not rea ch that issue. The landlord does argue that the circ uit court abused its discretion in including the reda cted portions of the tenant’s fee petition, in the amount of $6,950, in the fee awa

rd, b ec au s e the landlord could not eff ectively cross-e x amine reda ctions. In addition, the landlord argues that the circ uit court abused it s d i s cr et i o n in allowing the fee s attributable to Sean Br ady
, the tenant’s prior atto rn ey , in the amount of $15,723.50, since the tenant was not prese nt in co u rt t h at day and could not be crossexamined. ¶ 19 Whether an awa rd of attorney fee s is rea sonable is a matter of proof, and the party soug ht
to b e charg ed with such fee s should be aff orded an evidentiar

y hearing and ample opportunity to cross-e x amine as to the rea sonablene ss of the amounts claimed and to prese nt evidenc e in re buttal. 6334 North Sheridan Condomini um Ass’n v. Rue hle , 157 I ll. App. 3d 829 (1987). The bills wer e prese nted, and the landlord had an opportunity to cross-e x amine the attorney s involved. The reda cted b i l l s wer e only partially reda cted, so dates and times

wer e appa rent. Although the tenant was not prese nt at the fee hearing for Mr. Br ady
, Mr. Br ady wa s p re s ent and cross-e x amined by the landlord. Although the fee s awa rds, which

-5-totaled roughly $54,000, wer e significant, ther e wa s no showing of an abuseof discre tion.

¶ 20 CONCLUSI ON ¶ 21 The judgment of the c ircuit court of Wil l County

is affirme d.

¶ 22 Affir

med.

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