                                                                              Digitally signed by
                                                                              Reporter of
                                                                              Decisions
                                                                              Reason: I attest to
                             Illinois Official Reports                        the accuracy and
                                                                              integrity of this
                                                                              document
                                    Appellate Court                           Date: 2019.07.10
                                                                              13:01:29 -05'00'




                  Tanna Farms, L.L.C. v. Golfvisions Management, Inc.,
                               2018 IL App (2d) 170904



Appellate Court         TANNA FARMS, L.L.C., Plaintiff-Appellee, v. GOLFVISIONS
Caption                 MANAGEMENT, INC., Defendant-Appellant.



District & No.          Second District
                        Docket No. 2-17-0904



Filed                   June 21, 2018



Decision Under          Appeal from the Circuit Court of Kane County, No. 17-LM-38; the
Review                  Hon. Thomas J. Stanfa, Judge, presiding.



Judgment                Affirmed.


Counsel on              Michael M. Roth and Michael D. Pisano, of Ice Miller LLP, of Lisle,
Appeal                  for appellant.

                        Kate L. McCracken, of Hoscheit, McGuirk, McCracken & Cuscaden,
                        P.C., of St. Charles, for appellee.



Panel                   JUSTICE SCHOSTOK delivered the judgment of the court, with
                        opinion.
                        Justices Zenoff and Jorgensen concurred in the judgment and opinion.
                                             OPINION

¶1                                         I. BACKGROUND
¶2        The plaintiff, Tanna Farms, L.L.C., is the owner of the Tanna Farms Golf Course. In
     2010, it leased the golf course to the defendant, Golfvisions Management, Inc., a company
     that manages golf courses.
¶3        In January 2017, the plaintiff filed suit against the defendant under the Forcible Entry and
     Detainer Act (Act) (735 ILCS 5/9-101 et seq. (West 2016)). The complaint alleged that the
     defendant had breached the lease by failing to pay monthly rent and real estate taxes and
     failing to repair sewer lines.
¶4        In February 2017, the plaintiff moved for summary judgment in its favor on the basis that
     it had served the defendant with a five-day notice for past-due rent and it was undisputed that
     the defendant did not pay that rent until after the expiration of the five-day period. The
     following month, the defendant filed a cross-motion for summary judgment. That motion
     argued that the plaintiff had waived its legal rights because it had, after the expiration of the
     five-day period, (1) accepted payment of the past-due rent and real estate taxes, (2) stated
     that it would drop the lawsuit if an additional $35,541.66 were paid, and the defendant
     subsequently paid (and the plaintiff acknowledged receiving) that amount, and (3) accepted
     payment of the most recent monthly rent, thereby bringing the defendant’s account current.
     The plaintiff’s response acknowledged that these payments had been made, but argued that
     the payments were accepted in order to mitigate the plaintiff’s damages rather than in waiver
     of the plaintiff’s legal right to proceed with the lawsuit.
¶5        Thereafter, despite a flurry of discovery and motions by both parties for the imposition of
     sanctions, the parties began to engage in settlement talks. Agreed orders were entered in
     April and June 2017, postponing the hearing on the cross-motions for summary judgment in
     light of “continuing attempts to resolve the outstanding issues.”
¶6        On July 10, 2017, one week before the scheduled hearing date, the plaintiff filed a motion
     to voluntarily dismiss its case pursuant to section 2-1009 of the Code of Civil Procedure
     (Code) (735 ILCS 5/2-1009 (West 2016)). The motion noted that no trial date had been set
     and stated that, if the voluntary dismissal was granted, the plaintiff would pay the defendant’s
     court costs as required by section 2-1009. The motion stated that the plaintiff sought a
     dismissal without prejudice.
¶7        On July 17, 2017, the scheduled date for hearing the cross-motions for summary
     judgment, the court first addressed the plaintiff’s motion to voluntarily dismiss the case. The
     defendant objected to such a dismissal on the grounds that there were pending dispositive
     motions that could provide it with a judgment on the merits, and that, if a dismissal without
     prejudice were entered, the plaintiff could again bring suit against it. The plaintiff’s attorney
     stated that his request for a dismissal without prejudice was inadvertent and that the plaintiff
     had meant to seek a dismissal with prejudice. The plaintiff’s attorney argued that there was
     no substantive difference between such a dismissal and any outcome that the defendant could
     achieve, even if the cross-motions for summary judgment were heard:
                  “If you grant the motion for involuntary [sic] dismissal that I have filed, what is
              going to be the end result? The end result is that the tenant, which manages the Tanna
              Farms Golf Course, will remain as the tenant and will continue operating under the


                                                 -2-
               terms of the lease agreement, which is attached to our complaint, which is clear and
               which goes on for years. If you grant the defendant’s motion for summary judgment
               after denying our motion for involuntary [sic] dismissal, what’s going to happen? The
               tenant is going to stay at the property and the tenant is going to continue to operate
               under the terms of the lease agreement between the parties, which is clear and which
               is in effect for many years.”
       The plaintiff’s attorney later alluded to “facts and circumstances that have arisen at the golf
       course since we filed this case” that had allayed the concerns that had given rise to the
       lawsuit, with the result that the plaintiff was “very comfortable with proceeding with the
       tenancy.” Accordingly, the plaintiff would be willing to include a statement in the dismissal
       order to the effect that, as of now, there were no existing violations of the lease. The trial
       court granted the motion for a voluntary dismissal. The written order entered that day stated
       that the plaintiff’s motion to voluntarily dismiss the case with prejudice was granted, and that
       “judgment for costs for Defendant is entered pursuant to 735 ILCS 5/9-114.”1
¶8         On August 18, 2017, the defendant filed a motion for attorney fees and costs, asserting
       that it was the prevailing party in the litigation and was thus entitled to recover not only
       “costs” of $1918.97 (an amount greater than the defendant’s court costs, which had already
       been tendered by the plaintiff) but also attorney fees of $85,831 pursuant to section 2.14 of
       the lease between the parties. That provision stated:
                    “In the event that it becomes necessary for either party hereto to employ legal
               counsel and bring legal proceedings to enforce any provision of this Lease
               Agreement, the prevailing party in such proceedings shall be paid all costs and all
               reasonable attorney’s fees by the non-prevailing party.”
       The plaintiff argued that its voluntary dismissal did not make the defendant the “prevailing
       party” under the lease. The trial court agreed and denied the defendant’s motion for attorney
       fees:
                    “I find that the defendant in this instance, in these facts, is not a prevailing party. I
               believe that the time that I ruled on the plaintiff’s motion to voluntary [sic] nonsuit
               with prejudice, that that did not set in motion the switch which then put the defendant
               as a prevailing party.”
       Although issues relating to sanctions motions remained pending in the trial court, the trial
       court found that there was no reason to delay immediate enforcement or appeal of its order
       denying attorney fees. This appeal followed.

¶9                                           II. ANALYSIS
¶ 10       The defendant contends that the trial court erred in finding that it was not the prevailing
       party and therefore was not entitled to recover its attorney fees under the lease. We begin by
       determining the proper standard of review to be applied.
¶ 11       The defendant argues that, as its appeal relates to a contract term (“prevailing party”), we
       should review the trial court’s ruling de novo, as we would any issue of contract
       interpretation. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100,

           1
            That section requires that, when a plaintiff voluntarily dismisses a claim under the Act, “judgment
       for costs shall be entered in favor of the defendant.” 735 ILCS 5/9-114 (West 2016).

                                                      -3-
       129 (2005). But this argument is incorrect. The de novo standard of review is proper to the
       extent that the trial court’s ruling rested on its interpretation of a contract, such as a lease.
       Peleton, Inc. v. McGivern’s, Inc., 375 Ill. App. 3d 222, 225 (2007). However, when the ruling
       involves the application of contract terms to the facts at hand, that is a matter within the
       sound discretion of the trial court, and we review its ruling only for an abuse of that
       discretion. Id. at 226. An abuse of discretion occurs when a ruling is arbitrary, fanciful, or
       unreasonable, when no reasonable person would take the view adopted by the trial court, or
       when the ruling rests on an error of law. People v. Olsen, 2015 IL App (2d) 140267, ¶ 11.
¶ 12        This court has long held that the determination of whether a party qualifies as the
       “prevailing party” for the purpose of awarding attorney fees is subject to the abuse of
       discretion standard of review. See, e.g., Timan v. Ourada, 2012 IL App (2d) 100834, ¶ 29;
       Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 515 (2001); Med+Plus Neck &
       Back Pain Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853, 861 (2000). As this is the central
       issue in this appeal, we apply the more deferential abuse of discretion standard of review to
       the trial court’s determination that the defendant was not, under the facts of this case, the
       prevailing party entitled to attorney fees.
¶ 13        “A prevailing party, for purposes of awarding attorney fees, is one that is successful on a
       significant issue and achieves some benefit in bringing suit.” J.B. Esker & Sons, Inc. v.
       Cle-Pa’s Partnership, 325 Ill. App. 3d 276, 280 (2001). “[A] litigant does not have to
       succeed on all its claims to be considered a prevailing party.” Peleton, 375 Ill. App. 3d at
       227. However, when both parties have experienced success on various aspects of the
       litigation, it may be appropriate to find that neither party is the prevailing party. Id. at 227-28.
¶ 14        The defendant first argues that it must be considered the prevailing party because the
       order entered on July 17, 2017, entered “judgment for costs for Defendant.” It contends that,
       as it received judgment in its favor, it must be considered the prevailing party. But the July
       2017 order granted the defendant a judgment only as to costs, not on any other issue. The
       payment of court costs by a party seeking to voluntarily dismiss its claims is a routine matter
       and one that was uncontested by the plaintiff, not a significant issue in the litigation between
       the parties. See Esker, 325 Ill. App. 3d at 280 (to be a prevailing party, the party must have
       achieved success on a significant issue). Thus, the award of costs to the defendant does not
       show that it was the prevailing party in the litigation.
¶ 15        The defendant next asserts that it was the prevailing party because it achieved a
       substantial benefit in the litigation, as the dismissal with prejudice represented a concession
       by the plaintiff that it would not pursue its claims any further. The defendant makes much of
       the fact that the voluntary dismissal with prejudice permanently disposed of all of the
       plaintiff’s claims, arguing that such a dismissal is for all practical purposes the same as
       judgment in its favor on all claims. Indeed, the plaintiff’s attorney conceded during the July
       17, 2017, hearing that the practical effect of the voluntary dismissal would be the same as if
       summary judgment were entered for the defendant. However, the defendant’s argument
       ignores the reality that the plaintiff had already achieved success on most of its claims as a
       result of the litigation. After the plaintiff filed suit, the defendant paid the past-due rent and
       real estate taxes that the plaintiff claimed were due. Although the plaintiff did not obtain the
       sewer repairs that it sought in its complaint, it did obtain payment of the two other items (the
       rent and taxes) that it sought.


                                                    -4-
¶ 16       As both sides achieved success on some issues, the trial court had a sound basis for its
       determination that the defendant was not the prevailing party. See Peleton, 375 Ill. App. 3d at
       227-28; see also Powers, 326 Ill. App. 3d at 515 (“when the dispute involves multiple claims
       and both parties have won and lost on different claims, it may be inappropriate to find that
       either party is the prevailing party and an award of attorney fees to either is inappropriate”).
       Accordingly, we cannot find that that determination was an abuse of discretion, i.e., that the
       ruling was arbitrary, fanciful, or unreasonable; that no reasonable person would take the view
       adopted by the trial court; or that the ruling rested on an error of law. Olsen, 2015 IL App
       (2d) 140267, ¶ 11.

¶ 17                                      III. CONCLUSION
¶ 18      For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

¶ 19      Affirmed.




                                                  -5-
