Square Footage Discrepancy Not Material Term in Chicago Office Lease Dispute

smart-office-furniture-image-2(photo credit: www.smartofficefurniture.ca)

 123 Madison Street Corp. v. Power & Dixon, 2013 IL App (1st) 122795-U examines a commercial lease dispute involving a law firm tenant.

The facts: in 2002, plaintiff’s predecessor (the former office building owner) entered into lease with defendant law firm. Over the next few years, the Lease was amended three times to cover three different office suites – each bigger than the last and each requiring increased rent payments. Tenant defaulted and the building’s management company filed suit. Tenant vacated and the parties went to trial on money damages. Over the course of several hearings, and after the court substituted in the current building owner as the plaintiff, the trial court entered judgment for landlord, awarding nearly $70,000 in back rent plus attorneys’ fees over over $12,000. The Tenant law firm appealed.

Held: Judgment for landlord affirmed.

Reasoning: The appeals court rejected the law firms three key arguments: (1) that there was no privity of contract between plaintiff and tenant; (2) plaintiff materially breached the lease by renting less space than called for in the lease and over-charging the tenant; and (3) the trial court erroneously found that tenant was leasing the office suite for a “flat-rate” instead of leasing for a specific square footage amount. (¶¶ 45-56).

On the privity issue (privity doctrine basically requires that a party have some contractual relationship with the party being sued), the Court noted that the plaintiff wasn’t the lessor.  

The original plaintiff was the former owner’s management company and the substituted plaintiff was the building’s current owner.

The Court held that privity was a question of standing (only a party to a contract has standing to sue on it) and an affirmative defense that had to be pled and proved by the tenant.  Since the tenant failed to raise the privity/lack of standing defense by affirmative defense or motion to dismiss, the tenant didn’t meet his burden of proving the plaintiff’s lack of standing to sue. (¶¶ 50-51).

Tenant also argued that the landlord’s material breach precluded it from suing to enforce the lease.  The tenant claimed that while the lease provided for nearly 4,000 square feet of rentable space, the landlord was only leasing under 3,000 square feet.  The tenant claimed it overpaid the landlord nearly $100,000 for the shortened space.

The court rejected this argument stating that there was no evidence that the precise number of square feet of rentable space was a material term.  One of the law firm’s principals even testified that the square footage wasn’t a make-or-break issue:  the firm simply wanted “more space” than the prior suite.

 The Court also affirmed the trial court’s finding that the tenant was agreeing to pay a “flat rate” rather than a specific price per square foot.  (¶¶ 52-55).

 Take-aways: I’ve represented commercial landlords where the lease will have changed hands multiple times from lease signing to the date of trial.  When representing a property manager whose name differs from the one on the lease, I move to admit in evidence any management agreement between the owner/lessor and the property manager.

Another case lesson is that a lease square footage discrepancy will only be considered a material term if the lease says so.

Fee Petition Doesn’t Extend Time to Appeal Trial Verdict In Commercial Lease Spat

In Naperville South Commons, LLC v. Nguyen, 2013 IL App (3d) 120382-U, a Will County shopping center landlord filed its notice of appeal too late and so a money judgment for the tenant stands.

The case involves a multi-year shopping center lease for tenant’s operation of nail salon. Several months into the lease’s fourth year, the landlord unilaterally increased the tenant’s rent by over $1,200 per month.  Tenant balked and landlord filed joint action for rent and possession.

At trial, the court entered judgment for the tenant on landlord’s rent claim because the landlord failed to prove that the tenant owed rents or other monies at the time landlord served its 5-day notice.  The court also awarded the tenant some $54,000 in attorneys’ fees based on fee-shifting language in the lease.  Landlord appealed.

The appeals court held it lacked jurisdiction over landlord’s appeal and affirmed trial court’s award of attorneys’ fees.

The trial court entered judgment in November 2011 and the landlord didn’t file its appeal until nearly six months later in May 2012 – the day after the court ruled on tenant’s attorneys’ fee petition (which the tenant filed within 30 days of the trial court judgment). 

In Illinois, a notice of appeal must be filed within 30 days of a final judgment or within 30 days of the order which disposes of the “last pending postjudgment motion.”  Ill. Sup.Ct. R. 303.  Here, contrary to landlord’s position, the tenant’s attorneys’ fee petition was not a postjudgment motion since it didn’t directly challenge any of the trial court’s findings but was instead “collateral to” the trial court’s judgment.  ¶ 15.

The Court held that since tenant’s fee petition was not a post-judgment motion, the landlord did not have additional time – beyond the 30 days – to file its notice of appeal.  Because the landlord didn’t file its notice of appeal within 30 days of the underlying judgment, the court lacked jurisdiction to consider the landlord’s appeal.

The Third District did accept landlord’s appeal of the trial court’s fee award for the prevailing tenant.  The Court first held that the tenant was in fact the prevailing party.  The landlord argued that since it obtained possession of the premises, it won the case, since the primary purpose of the case was to dispossess the tenant.

In Illinois, “a party can be considered a prevailing party for the purposes of awarding fees when he is successful on any significant issue in the action and achieves some benefit in bringing suit, receives a judgment in his favor, or obtains some affirmative recovery.” ¶ 17.

The Court held that the landlord didn’t prevail on the possession issue since the tenant voluntarily left the premises: there was no adjudication of possession in landlord’s favor.  ¶ 18.

On the rent issue, the tenant clearly won since the trial court ruled that the tenant owed nothing based on landlord failing to carry its burden of proof that the tenant owed monies at the time landlord served its 5-day notice.

The Court affirmed the fee award to the tenant, noting that the tenant properly supported its fee petition with competent evidence that quantified its fees in defending the landlord’s eviction suit. ¶ 20.

Take-aways:

– When in doubt, file a Notice of Appeal within 30 days of the trial date order, regardless of what motions are filed by other parties after the judgment.  If the notice turns out to be premature, it will take effect automatically when the post – judgment motion is disposed of.

– A fee petition filed by a prevailing party is not a Rule 303 post-judgment motion that extends the 30-day period to file a notice of appeal;

– to be considered a prevailing party for purposes of an attorneys’ fees petition, the party must obtain an on-the-merits adjudication in its favor on a particular issue.

Seventh Circuit Upholds Limitation of Liability Clause in Construction Contract

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In Sams Hotel Group, LLC v. Environs, Inc., 2013 WL 2402824, the Seventh Circuit upheld an Indiana district court’s validation of a contractual limitation of liability clause against a hotel developer.  In its ruling, the Court examined some recurring commercial litigation issues including the economic loss rule, and the standards that govern contractual indemnification and limitation of liability clauses. 

Facts: The owner and defendant architect entered into a $70,000 contract for the design of a six-story hotel in Indiana.  A little over a year later, when the hotel was nearly complete, numerous defects surfaced and the property ultimately had to be demolished.  The hotel never opened and the owner brought negligence and breach of contract claims against the architect.  The owner claimed it sustained over $4 million in damages due to the architect’s negligent hotel design. 

Trial Result: The Indiana district court granted summary judgment to the architect on the negligence claim based on the economic loss rule.  This rule (known as the Moorman doctrine in IL) posits that a plaintiff cannot recover for purely economic loss in tort where a contract governs the parties’ relationship – absent any personal injury or damage to other property. 

Once the owner’s negligence count was out, the parties went to trial on the owner’s  breach of contract claim.  The court ruled in the owner’s favor on that count but pared down its damages to the $70,000 architectural services contract price.  This was a harsh result considering the owner was claiming damages sixty times this amount!  The owner appealed its Pyrrhic victory to the Seventh Circuit.

The Court (applying Indiana law – this was a diversity suit) affirmed.  It first held that parties are free to enter into contracts and bargain as they see fit. * 2.  Contracts will be enforced as written absent the involvement of a consumer or a contract of adhesion (a “take it or leave it” scenario).  Since the property owner and architectural firm were sophisticated commercial entities with equal bargaining power, the Court enforced the contract’s $70,000 maximum liability amount.

The Court rejected the owner’s argument that the limitation of liability clause was an impermissible indemnification against negligence clause because it allowed the architect to avoid significant liability for its negligent design services.  *2-3. 

The Court distinguished limitation of liability provisions from contractual indemnification terms.  Limitation of liability clauses “serve to establish a contractual ceiling” on awardable damages while indemnification terms completely shield or insure a party against his own negligence. *3. 

In the latter indemnity situation, if a party wants to be indemnified for its own negligence, the contract must “clearly and unequivocally” provide that a party will pay for another’s negligence.  *2. But limitation of liability clauses can be less specific  – especially where the contracting parties are on an equal bargaining footing.  *3.

Take-aways.  In Indiana, limitation of liability provisions (which cap damages at a specific amount) are subject to less scrutiny than contractual exculpatory clauses (which completely insure a party against his own negligence).

This relaxed standard for damage limitations is even more prominent in contracts between two sophisticated commercial entities. Parties to high-dollar construction contracts should be leery of contractual terms which cap damages.