Block 418, LLC v. Uni-Tel Communications Group, Inc.

No. 2-09-0034 Filed: 2-16-10 Corrected: 4-21-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
BLOCK 418, LLC, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
)
v. ) No. 07--LM--2205
)
UNI-TEL COMMUNICATIONS )
GROUP, INC., ) Honorable
) Kenneth L. Popejoy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
In June 2007, plaintiff, Block 418, LLC, filed a complaint pursuant to the Forcible Entry and
Detainer Act (the Act) (735 ILCS 5/9--101 et seq. (West 2006)) against defendant, Uni-Tel
Communications Group, Inc. On November 7, 2007, the trial court entered an agreed order, which
stated that, inter alia, "[t]his Agreed Order is a final order resolving all matters arising under this
lawsuit, but this Court retains jurisdiction to enforce the terms of this Agreed Order." Subsequently,
when defendant defaulted on its rent obligation, plaintiff sought to amend its complaint. Defendant
objected, claiming that it had complied with the November 7, 2007, agreed order, and thus, the trial
court had lost jurisdiction for future claims. The trial court determined that jurisdiction was proper,
and it later found in favor of plaintiff and awarded damages to plaintiff of $45,328.49, the amount
of rent due from October, November, and the 12 days in December 2008 during which defendant
No. 2--09--0034
occupied the premises. Defendant timely appeals, challenging the trial court's jurisdictional
authority, and alternatively, the award of damages. We affirm.
In its June 2007 complaint, plaintiff sought possession of 55 South Main Street, Suite 304,
in Naperville, $10,472.20 for rent owed, and costs of the suit plus attorney fees and additional rent
incurred through the date of judgment.
On November 7, 2007, the trial court entered an agreed order, indicating that the parties had
reached a settlement. The agreed order provided, inter alia, that (1) defendant agreed to pay base rent
for October 2006, common area maintenance contributions, real estate taxes, and attorney fees; (2)
defendant agreed to pay November 2007 rent and other additional rent charges; (3) defendant would
receive discounts on rent payments if rent was paid on or before the due date; (4) defendant agreed
to certain penalties for late payments; and (5) the trial court "retain[ed] jurisdiction to enforce the
terms of this Agreed Order." The agreed order also provided that "[a]ll payments pursuant to this
Agreed Order and all subsequent rent payments owed under the Parties' Lease" must be made by
defendant and directed the method by which those subsequent rent payments would be made.
In March 2008, defendant did not pay rent to plaintiff, and on March 25, 2008, plaintiff filed
a "Motion to Enforce Agreed Order of November 7, 2007," seeking (1) an order of possession for
the property; and (2) a judgment of $20,580.12 plus costs and attorney fees. On April 16, 2008, the
parties reached another agreed order, and at that time, defendant agreed to pay the past-due rent and
attorney fees incurred by plaintiff. Paragraph 4 of the April 16, 2008, agreed order provided:
"4. This court continues to retain jurisdiction to enforce the terms of the Agreed
Order entered on November 7, 2007."
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In August 2008, defendant did not pay rent to plaintiff, and on September 22, 2008, plaintiff
filed another "Motion to Enforce Agreed Order of November 7, 2007," seeking (1) an order of
possession; and (2) a judgment for August and September's rent of $35,075.35 plus attorney fees.
The trial court allowed defendant to respond to plaintiff's motion. The record reflects that defendant
later paid the August and September rent.
On November 7, 2008, plaintiff filed an amended motion to enforce the November 7, 2007,
agreed order, alleging as follows:
"When [defendant] failed to pay the rent when due for the months of August and
September of 2008, Plaintiff filed its Motion to Enforce Agreed Order on September 22,
2008. Although Plaintiff has not received [defendant's] rent payments for the months of
August and September of 2008, [defendant] has again breached its obligation under the
Agreed Order by failing to pay the rent when due for the months of October and November."
On November 19, 2008, defendant filed its response, asserting that the trial court lacked jurisdiction
to enforce the November 7, 2007, agreed order.
On November 21, 2008, the trial court conducted a hearing and found that it had jurisdiction
under the November 7, 2007, agreed order. The trial court noted that the case required a forcible
entry and detainer hearing but did not "require a brand new lawsuit. I think you've got a lawsuit
here." The trial court scheduled the trial on plaintiff's claim for possession and damages for
December 15, 2008. On December 8, 2008, defendant filed a response and counterclaim against
plaintiff.
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On December 15, 2008, prior to trial, defendant advised the trial court that it had returned
possession of the premises to plaintiff on December 12, 2008, and withdrew its counterclaim. The
following exchange took place between the trial court and defendant's attorney:
"THE COURT: What defense do you have to failing to pay rent up to the date that
you tendered possession?
MR. ROTH [defense counsel]: We are not claiming a defense to that, your Honor.
***
We are not disputing the right to possess the space. We are giving possession back
to them."
In its findings, the trial court noted that defendant had "already stated on the record that [it had] no
defense to the payment of rent for the timeframes that they are in possession." Thereafter, the trial
court entered judgment in favor of plaintiff and against defendant for rent on a per diem basis
through December 12, 2008, the date defendant vacated the premises. The trial court continued,
"[t]here is absolutely no basis to deny a motion and an entry of an award of damages for the
timeframe that your client did possess the property pursuant to the terms of the lease and the Agreed
Order and the like up through the date of December 12, but only that far, no further in any manner
whatsoever." The trial court's order reflected a judgment in favor of plaintiff and against defendant
for $45,328.49, the amount of rent due from October, November, and the 12 days in December
during which defendant occupied the premises.
Defendant timely appeals.
The first issue raised in this appeal is whether the November 7, 2007, agreed order provided
the trial court with jurisdiction over the October and November 2008 rent and possession so as to
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allow plaintiff to bypass compliance with the Act. This court reviews de novo the issue of a trial
court's subject matter jurisdiction. Millenium Park Joint Venture, LLC v. Houlihan, 393 Ill. App.
3d 13, 20 (2009), citing In re Estate of Ahern, 359 Ill. App. 3d 805, 809 (2005).
Reviewing courts have held that a trial court retains authority to enforce its own orders
(County of Cook v. Illinois Fraternal Order of Police Labor Council, 358 Ill. App. 3d 667, 671
(2005)), and where an order contemplates future conduct, it may be inferred that the court retained
jurisdiction to enforce it. Director of Insurance v. A&A Midwest Rebuilders, Inc., 383 Ill. App. 3d
721, 723 (2008). In determining whether a trial court has retained jurisdiction, it is "necessary to
'examine the scope of the [trial court's] order.' " Director of Insurance, 383 Ill. App. 3d at 724,
quoting Brigando v. Republic Steel Corp., 180 Ill. App. 3d 1016, 1020 (1989).
In the present case, the trial court's November 7, 2007, agreed order stated that, inter alia,
"[t]his Agreed Order is a final order resolving all matters arising under this lawsuit, but this Court
retains jurisdiction to enforce the terms of this Agreed Order." The agreed order also spoke to "all
subsequent rent payments owed under the Parties' Lease" and directed the method by which those
subsequent rent payments would be made. Thus, the November 7, 2007, agreed order clearly
contemplated future conduct, and we conclude that the trial court retained jurisdiction to enforce its
order.
Moreover, although defendant argues in its reply brief that the April 16, 2008, agreed order
was not an enforcement of the subject lease, because it simply evidenced defendant's agreement to
pay $2,414 for attorney fees as part of a settlement of the subject lease regarding payment of the
October and November 2008 rent and possession, the order states otherwise. The trial court's April
16, 2008, agreed order expressly stated that the court "continues to retain jurisdiction to enforce the
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terms of the agreed order entered on November 7, 2007." The substance of the April 16, 2008,
agreed order further supports our interpretation that the trial court's November 7, 2007, order
contemplated future conduct and our conclusion that the trial court retained jurisdiction to enforce
its order.
Defendant next contends that the trial court failed to abide by the Act (735 ILCS 5/9--101
et seq. (West 2006)). We find this issue forfeited. In this undeveloped contention, defendant
presents two sentences for its argument, the gist being that the trial court ignored the requirements
of the Act. Supreme Court Rule 341(h)(7) requires citation to the pages of the record where the trial
court failed to follow the specific provisions of the Act, as well as argument in support of the issue.
See 210 Ill. 2d R. 341(h)(7). A party's failure to comply with our supreme court rules is grounds for
disregarding the argument on appeal. Burmac Metal Finishing Co. v. West Bend Mutual Insurance
Co., 356 Ill. App. 3d 471, 478 (2005), citing Jeffrey M. Goldberg & Associates, Ltd. v. Collins
Tuttle & Co., 264 Ill. App. 3d 878, 886 (1994). Here, defendant fails to explain which provision or
provisions of the Act the trial court ignored or failed to follow, and it presents no relevant authority
other than a rule of law stating that "courts must strictly comply with the procedure outlined in the
Act." Because of defendant's deficiencies in developing its contention, we find defendant's issue
forfeited.
The third issue raised in this appeal is whether the trial court erred in its interpretation of the
lease. Without citation to authority, defendant argues that the section of the lease pertaining to
damages does not provide that past-due rent amounts can be the subject of a judgment for rent
separate and apart from the damages calculated. Defendant also argues that the offsets under the
lease take into consideration actual rent amounts paid and those outstanding without regard to
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whether defendant is in possession. Alternatively, defendant argues that plaintiff had a statutory duty
to mitigate damages, under section 9--213.1 of the Act. See 735 ILCS 5/9--213.1 (West 2006)
(providing that "a landlord or his or her agent shall take reasonable measures to mitigate the damages
recoverable against a defaulting lessee").
Plaintiff counters that defendant does not dispute that $45,328.49 is an accurate accounting
of rent due through December 12, 2008. Plaintiff also counters that it had no statutory duty to
mitigate damages, because a landlord's duty to mitigate is triggered after the tenant abandons the
premises. See St. George Chicago, Inc. v. George J. Murges & Associates Ltd., 296 Ill. App. 3d 285,
290-91 (1998). Therefore, plaintiff had no means of mitigating damages until December 12, 2008.
"The interpretation of a lease presents a question of law that a reviewing court is to determine
independent of the trial court's judgment." Nutrasweet Co. v. American National Bank & Trust Co.
of Chicago, 262 Ill. App. 3d 688, 694 (1994). With respect to a trier of fact's determination of
damages, a reviewing court should not disturb the trier of fact's determination unless it was contrary
to the manifest weight of the evidence. MXL Industries, Inc. v. Mulder, 252 Ill. App. 3d 18, 30
(1993).
We agree with plaintiff's position on both counts. Defendant does not dispute that it did not
pay rent for October 2008, November 2008, or the first 12 days of December. The record reflects
that, at the hearing on December 15, 2008, prior to trial, defendant advised the trial court that it had
returned possession of the premises to plaintiff on December 12, 2008. Defense counsel also
informed the trial court that it was not claiming any defense to its failure to pay rent up to the date
it tendered possession to plaintiff. Thereafter, the trial court calculated an award of damages based
on a per diem basis for the 2 months and 12 days defendant occupied the premises. Defendant
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presents little argument and no authority, other than the lease provision pertaining to damages, in
support of its argument. See 210 Ill. 2d R. 341(h)(7). On our review of the record, we determine
that the trial court correctly interpreted the lease agreement and that its calculation and award of
damages was not against the manifest weight of the evidence.
Furthermore, we agree with plaintiff's position that it had no duty to mitigate damages until
after defendant abandoned the premises. See St. George Chicago, Inc., 296 Ill. App. 3d at 290-91,
citing MXL Industries, 252 Ill. App. 3d at 31. Therefore, plaintiff had no duty until December 12,
2008, when defendant returned possession of the premises to plaintiff.
Accordingly, for the foregoing reasons, we affirm the judgment of the circuit court of
Du Page County.
Affirmed.
McLAREN and JORGENSEN, JJ., concur.
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