                                  2016 IL App (1st) 151087
                                        No. 1-15-1087
                                 Opinion filed March 31, 2016

                                                                        FIFTH DIVISION

                                           IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


     A.M. REALTY WESTERN L.L.C.,                )      Appeal from the Circuit Court
                                                )      of Cook County.
          Plaintiff-Appellant,                  )
                                                )
          v.                                    )      No. 2013 L 5905
                                                )
     MSMC REALTY, L.L.C.,                       )      The Honorable
                                                )      John C. Griffin,
          Defendant-Appellee.                   )      Judge, presiding.


               JUSTICE GORDON delivered the judgment of the court, with opinion.
               Presiding Justice Reyes concurred in the judgment and opinion.
               Justice Lampkin specially concurred, with opinion.


                                        OPINION


¶1             Plaintiff A.M. Realty Western L.L.C. sued a former tenant, defendant

       MSMC Realty, L.L.C., to collect monthly payments that the former tenant had

       agreed to pay, in addition to rent, for certain building improvements.
     No. 1-15-1087

¶2           This case was previously before us on appeal, when we considered the

       trial court's dismissal for lack of standing. Defendant had moved to dismiss on

       the ground that plaintiff lacked standing to collect under the prior lease because

       plaintiff had since sold the building. On November 17, 2011, the trial court

       granted defendant's motion and dismissed the complaint with prejudice. On

       November 30, 2012, we reversed and remanded for further proceedings on the

       merits. A.M. Realty Western L.L.C. v. MSMC Realty, L.L.C., 2012 IL App (1st)

       121183, ¶ 52. Those further proceedings were to include a determination by the

       trial court whether plaintiff had fully performed its HVAC obligations under the

       lease. Infra ¶ 41.

¶3           Pursuant to our prior opinion, proceedings continued and, on December

       19, 2014, the trial court entered summary judgment in favor of defendant. It is

       this order which is now before us on appeal. For the following reasons, we

       reverse and remand for further proceedings consistent with this opinion.

¶4                                  BACKGROUND

¶5                               I. Complaint and Lease

¶6           On August 10, 2010, plaintiff filed a verified complaint, in which it

       alleged that SSM Regional Health Services (SSM), defendant's predecessor in

       interest, had signed a store lease on January 12, 2004, in which SSM agreed to

       rent commercial space from plaintiff.

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     No. 1-15-1087

¶7           The lease was attached to the complaint as "Exhibit A," and the lease

       stated that it was for the second floor of "12940 S. Western," in Blue Island,

       Illinois, and that the tenant, SSM, was a not-for-profit corporation that owned

       and operated St. Francis Hospital and that SSM's principal office was in

       Evanston, Illinois.

¶8           Section 3.02(a) of the lease provided, in relevant part, that:

             "3.02(a) Landlord shall provide, at Tenant's expense:

                     (i) Heating, ventilation, and air conditioning

             equipment (HVAC) for the Premises ***

                     (iii) All improvements required in the leased

             space other than the bathrooms provided by Landlord

             shall be initially paid by Landlord upon occupancy of

             the Tenant and then billed back to the Tenant over a 5

             year amortization schedule in addition to the rent

             (other than HVAC which shall be billed on a 15 year

             amortization schedule)[.]" (Emphasis added.)

        In its complaint, plaintiff alleged that it made HVAC improvements and had

       complied with all its obligations under the lease.

¶9           Plaintiff alleged that, on July 8, 2008, with plaintiff's consent, SSM

       assigned its interest and obligations under the lease to defendant. A letter, dated

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       No. 1-15-1087

          July 8, 2008, and requesting the landlord's consent was attached to the

          complaint as "Exhibit B."1 This letter is entitled "Consent to Assignment of

          Lease" from SSM to defendant, and is signed by both SSM and defendant. The

          letter states that an "Assignment of Landlord Leases" is attached to the letter,

          but this assignment was not included as an exhibit to the complaint.

¶ 10             Plaintiff alleged that defendant vacated the premises at the end of the

          lease term which, according to the lease, was on April 30, 2009. Plaintiff

          alleged that it sent, on March 22, 2010, a final notice to defendant demanding

          $96,403.15 owed for improvements and that, in response, defendant had sent a

          payment for only $31,941.68. Defendant's payment excluded $64,401.47, which

          was the amount allegedly owed for HVAC improvements. Plaintiff alleged

          that, on May 10, 2010, it mailed a letter to defendant demanding the $64,401.47

          still allegedly owed and that, on May 21, 2010, it received a response stating

          that defendant had no intention of paying the remaining amount. Although the

          complaint states that defendant's May 21, 2010, letter is attached as "Exhibit C,"

          it was not. As we note later, plaintiff subsequently filed an amended complaint

          in order to attach this missing document.




             1
               In its answer, dated March 31, 2011, defendant stated that it "admits" that
       the lease was assigned to defendant and that "a true and correct copy of the
       assignment is attached as Exhibit B" to plaintiff's complaint.
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       No. 1-15-1087

¶ 11           Plaintiff's complaint, which was filed on August 10, 2010, alleged two

         counts: count I, for breach of contract; and count II, for anticipation of breach.

         Count I alleged that section 3.02 of the lease required defendant to pay

         $1,611.54 per month for the HVAC improvements, and that defendant failed to

         make the 17 payments due between April 2009 through August 2010 which

         totaled $27,396.18. Count II alleged that plaintiff had already stated that it had

         no intention of paying for the HVAC improvements and that, between the day

         the complaint was filed and April 2014, defendant would owe an additional

         $37,065.29. Thus, the complaint sought a total of $64,461.47, plus costs and

         other relief that may be just.

¶ 12                        II. Defendant's First Motion to Dismiss

¶ 13           On October 27, 2010, plaintiff filed a motion for a default judgment

         which alleged that defendant had failed to file an appearance or other pleading.

         On November 8, 2010, the trial court ordered defendant to file its appearance or

         answer or otherwise plead within 30 days. On November 15, 2010, defendant

         filed an appearance; and, on December 6, 2010, defendant filed a combined

         section 2-615 and section 2-619 motion to dismiss with prejudice (735 ILCS

         5/2-615, 2-619 (West 2010)).

¶ 14           In its motion, defendant sought to dismiss (1) pursuant to section 2-615

         on the ground that the lease allegedly barred plaintiff's claims; and (2) pursuant

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       No. 1-15-1087

         to section 2-619 on the ground that plaintiff's claims arose prior to the

         assignment of the lease by SSM to defendant and that defendant had not

         assumed these claims.

¶ 15           In its motion, defendant acknowledged that plaintiff had entered into a

         five-year lease with SSM and that SSM later assigned this lease to defendant

         with plaintiff's consent. Defendant acknowledged that, upon assuming the lease

         and during the remaining term of the lease, defendant paid both the rent and the

         monthly payment for the HVAC improvements. However, defendant claimed

         that it was not obligated to pay the remaining cost of the HVAC improvements

         after the lease terminated.

¶ 16           In the alternative, defendant argued that the HVAC improvements were

         made prior to the assignment, and that defendant was liable only for those

         obligations which arose after the assignment.

¶ 17           Defendant attached as an exhibit to its motion a document entitled

         "Consent of Landlord to Assignment" (Consent), which appears to be signed by

         plaintiff landlord only. (This document is a different document from the July 8,

         2008, letter which requested the landlord's consent and which was attached to

         the complaint and described above.) This Consent states that an "Assignment of

         Landlord Leases" is attached as "Exhibit A," but this "Exhibit A" is not attached

         to the Consent in the appellate record.         The Consent states: "Landlord

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       No. 1-15-1087

         acknowledges that [defendant] MSMC will be liable for those obligations under

         the Lease arising from and after the Assignment becomes effective." The

         immediately preceding line was crossed out by pen and the deletion was

         initialed. The deleted line stated that the landlord agreed "to release SSM from

         all of the lease obligations on and effective after the date of the Assignment."

¶ 18           On February 28, 2011, the trial court granted, without prejudice,

         defendant's 2-615 motion to dismiss count II, the anticipatory breach count.

         The trial court dismissed this count on the ground that, although the complaint

         stated that plaintiff had attached defendant's letter declaring defendant's intent

         not to pay, the letter was not actually attached to the complaint. Plaintiff was

         also granted 21 days to replead. The trial court also denied defendant's section

         2-619 motion, finding that "a question of fact exists as to the obligations under

         the lease and assignment."

¶ 19           On March 10, 2011, plaintiff filed its amended verified complaint for the

         purpose of attaching "Exhibit C" which is defendant's May 21, 2010, letter

         which stated: "MSMC does not owe and will not pay the $64,461.47 you are

         demanding." Plaintiff's amended complaint also asked for costs and "such other

         relief as may be just and proper."




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       No. 1-15-1087

¶ 20                                III. Defendant's Answer

¶ 21           On March 31, 2011, defendant filed its answer in which it admitted that

         plaintiff and SSM had entered into a commercial lease; that a copy of that lease

         was attached to plaintiff's complaint as exhibit A; that plaintiff had made

         HVAC improvements to the leased premises; that the lease was later assigned

         to defendant; that "a true and correct copy of the assignment is attached as

         Exhibit B" to the complaint; that plaintiff sent a demand letter "on or around

         March 22, 2010[,] seeking $96,403.15"; that defendant then "made a payment

         to [p]laintiff of rent"; that plaintiff sent another demand letter "on or around

         May 10, 2010[,] seeking $64,461.47; and that on May 21, 2010, defendant sent

         plaintiff a letter claiming that "under the terms of the Lease no further payments

         were owed."

¶ 22           In its answer, defendant also admitted that on "July 8, 2008, [defendant]

         MSMC assumed SSM's obligations under the Lease arising on or after the date

         of the assignment" and that it agreed to "make monthly rent payments, and

         make certain payments in addition to the rent." Defendant also admitted that

         "Section 3.02 [of the lease] requires, in addition to rent, certain payments for

         the HVAC improvements from the effective date of the assignment."

¶ 23           Defendant specifically asked that "it be awarded its attorneys' fees and

         costs incurred in this action."

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       No. 1-15-1087

¶ 24           Defendant's answer also contained three affirmative defenses: (1) failure

         to mitigate damages; (2) a prior release or discharge contained in the

         assignment which released defendant from obligations arising prior to the

         assignment; and (3) a "no meeting of the minds/mistake" defense.

¶ 25           In plaintiff's answer to defendant's interrogatories, filed August 4, 2011,

         plaintiff stated that "[t]he property was sold and to the best of [p]laintiff's

         knowledge, is vacant."

¶ 26                 IV. Defendant's Motion to Dismiss for Lack of Standing

¶ 27           On September 19, 2011, defendant filed a motion to dismiss for lack of

         standing.     In its motion, defendant stated that, although plaintiff sought

         payments which it claimed were due between April 2009 and April 2014,

         plaintiff sold the property on March 26, 2011, to the Board of Trustees of

         Community College District No. 524 (the community college).            Defendant

         claimed that plaintiff had conveyed its entire interest in the property and thus

         had no standing to bring an action for breach of lease. Defendant also observed

         that plaintiff had specifically retained the right to collect amounts from another

         lessee, namely, Kaleidoscope, Inc., but did not do so with respect to defendant.

¶ 28           On October 3, 2011, plaintiff produced the sale documents, in response to

         a document request by defendant. This document production contained a "rent

         roll" which listed the tenants as of March 30, 2011.     Since defendant was no

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       No. 1-15-1087

         longer a tenant, it was not listed. At the bottom of the current rent roll,

         someone had written by hand that "seller has retained the right to collect from

         Kaleidescope from the monthly [sic] through 12/7/11 the amount equal to

         211,623.84 for tenant improvements."

¶ 29           The document production also contained a "Post-Closing Lease

         Assignment Agreement," which stated that plaintiff had assigned the

         Kaleidoscope lease to the community college. With respect to the assignment,

         the agreement stated:

                       "Pursuant to Section 3.02(a) of the Kaleidoscope

               Lease, AM Realty made certain tenant improvements to the

               Kaleidoscope space and Kaleidoscope has agreed to

               reimburse AM Realty for these expenses plus interest over a

               period of five (5) years to and including the end of calendar

               year 2011.

                       D. As part of the sale transaction of the Subject

               Property, AM Realty has assigned the Kaleidoscope Lease

               to the College.

                       E. However, the parties have determined that it is

               more efficient for AM Realty to reserve its right to payment




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       No. 1-15-1087

                under   Section   3.02   with    respect   to   these   tenant

                improvements."

¶ 30            Thus, it was from the assignment of the lease that plaintiff reserved the

         right to collect amounts owed from tenant improvements. Since defendant was

         not a current tenant at the time of the sale, there was no assignment of

         defendant's lease and hence no need to reserve a right to prevent it from being

         assigned away.

¶ 31            Additional language in the "Post-Closing Lease Assignment Agreement"

         makes clear that the assignment was the reason for the reservation.         The

         agreement provided that: "AM Realty's Assignment of the Kaleidoscope Lease

         to the College shall not include AM Realty's right to continue to receive tenant

         improvement payments due and owing AM Realty from Kaleidescope pursuant

         to Section 3.02 of the Kaleidoscope Lease."

¶ 32            In its response to defendant's motion, plaintiff argued that it had paid

         funds out of its own pocket to improve the property as defendant's predecessor

         had requested, pursuant to an agreement that plaintiff would be paid back.

         Plaintiff argued that the agreement was similar to a loan.

¶ 33            On November 17, 2011, the trial court issued a written order that stated

         in full:



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       No. 1-15-1087

                       "This matter coming to be heard on Defendant MSMC

                Realty, LLC's motion to dismiss for lack of standing,

                counsel being present, and the court fully advised in the

                premises, it is hereby ordered:

                       (1) MSMS Realty, LLC's motion is granted and this

                matter is dismissed with prejudice."

¶ 34            Although the order contains a "(1)," there was no "(2)."

¶ 35            On December 19, 2011, plaintiff filed a motion to reconsider, in which it

         argued that plaintiff had standing to seek the entire amount of the HVAC

         improvements because this obligation had accrued prior to both the termination

         of the lease and the sale of the property. In the alternative, plaintiff argued that,

         at the very least, it had the right to collect the payments that were due prior to

         March 30, 2011, which was the date of the property sale.

¶ 36            On March 23 2012, the trial court denied plaintiff's motion in a written

         order that stated in full:

                "This matter comes before the Court on Plaintiff's Motion to

                Reconsider its Order of November 17, 2011[,] which

                dismissed the Complaint for lack of standing. After due

                consideration of Plaintiff's Motion to Reconsider, Defendant

                MSMC Realty, LLC's Response to said Motion and

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       No. 1-15-1087

               Plaintiff's Reply to Defendant's Response to Plaintiff's

               Motion to Reconsider and after review of the applicable

               caselaw regarding matters appropriately considered when

               dealing with motions to reconsider and after a review of the

               submissions giving rise to the November 17, 2011[,] order

               Plaintiff's Motion to Reconsider the Order of November 17,

               2011[,] is DENIED."

¶ 37           Plaintiff filed a notice of appeal, seeking review of the November 17,

         2011, order dismissing the complaint for lack of standing and the March 23,

         2012, order denying plaintiff's motion for reconsideration.

¶ 38                                 V. The First Appeal

¶ 39           The sole issue on appeal was whether plaintiff had standing to sue after

         plaintiff's sale of the building. A.M. Realty Western L.L.C. v. MSMC Realty,

         L.L.C., 2012 IL App (1st) 121183, ¶ 30. Plaintiff argued that it had standing,

         since defendant's obligation to pay had accrued prior to plaintiff's subsequent

         sale of the building. A.M. Realty, 2012 IL App (1st) 121183, ¶¶ 26, 31. Plaintiff

         argued that the sale of the building did not extinguish plaintiff's standing to

         bring the instant case because the payments in the lease were akin to a loan,

         which became due once the improvements were made and thus before the

         property was sold. See A.M. Realty, 2012 IL App (1st) 121183, ¶ 40.

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       No. 1-15-1087

¶ 40           We agreed, stating that, "if there is a debt as plaintiff claims in its

         complaint, it matured before the property was sold." A.M. Realty, 2012 IL App

         (1st) 121183, ¶ 43. We explained that "[p]laintiff alleges that it fully performed

         its HVAC obligation under the lease when it improved the HVAC units on the

         property. If plaintiff fully performed" its HVAC obligation "as it alleges, then

         the alleged debt to repay for these improvements had matured" under the lease,

         when the improvements were made and thus "prior to the sale of the property."

         A.M. Realty, 2012 IL App (1st) 121183, ¶ 44. "Since defendant's debt had

         allegedly matured, it did not pass on to the subsequent owners of the property."

         A.M. Realty, 2012 IL App (1st) 121183, ¶ 45.

¶ 41           We held that "defendant's alleged obligation to pay had accrued prior to

         the end of the lease" (A.M. Realty, 2012 IL App (1st) 121183, ¶ 49). Although

         our opinion was limited to the issue of standing (A.M. Realty, 2012 IL App

         (1st) 121183, ¶ 52), this conclusion about when the obligation accrued was a

         necessary step, and hence a part of our holding. See Exelon Corp. v.

         Department of Revenue, 234 Ill. 2d 266, 277-78 (2009) (a holding is "essential

         to the disposition of the cause"); People v. Vesey, 2011 IL App (3d) 090570,

         ¶ 20 ("dicta [is] unnecessary to the court's holding"); Village of Vernon Hills v.

         Heelan, 2014 IL App (2d) 130823, ¶ 24 (an issue that "we necessarily had to

         address" is not dicta).      However, defendant's "alleged" obligation was

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       No. 1-15-1087

         predicated on plaintiff's full performance. As we explained, only "[i]f plaintiff

         fully performed" its HVAC obligation under the lease "as it alleges," did "the

         alleged debt to repay for these improvements" mature. A.M. Realty, 2012 IL

         App (1st) 121183, ¶ 44. Thus, we remanded for further proceedings on the

         merits. A.M. Realty, 2012 IL App (1st) 121183, ¶ 52.

¶ 42                                   VI. After Remand

¶ 43           After remand, plaintiff moved for substitution of judge, which was

         granted on August 2, 2013. Defendant did not object.

¶ 44           Also after remand, defendant moved for leave to amend its affirmative

         defenses and plaintiff filed a motion objecting. On June 16, 2014, the trial court

         denied plaintiff's motion and ordered plaintiff to answer. Defendant's amended

         affirmative defenses alleged: (1) that plaintiff failed to mitigate damages after

         the lease ended; (2) that the July 29, 2008, assignment of lease discharged or

         released defendant from paying the HVAC payments; and (3) that there was "no

         meeting of the minds as to payment of the HVAC improvement after

         expiration" of the lease. Plaintiff's answer is not in the record before us.

¶ 45           On October 21, 2014, defendant filed a motion for summary judgment on

         the grounds (1) that "the lease did not require [defendant] to make HVAC

         payments after the lease expired" and (2) that plaintiff was "attempting to

         recover the same damages twice" because "it sold the property, including the

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       No. 1-15-1087

         still-functioning HVAC unit."     In its response, dated November 18, 2014,

         plaintiff argued that "this exact same issue" about the lease had already been

         argued in defendant's motion to dismiss for lack of standing and had been

         denied. In addition, plaintiff argued: that the lease required defendant to make

         full payment on the requested improvements; and that plaintiff sold the building

         at a loss, for less than the loan amount, such that the lender received all the

         funds from the building's sale and thus plaintiff was not seeking to collect

         damages twice. In its reply, defendant argued, among other things, that a matter

         may be resolved on summary judgment, despite an earlier denial of a motion to

         dismiss, "because different standards apply. In its reply, defendant did not

         dispute plaintiff's factual assertion that the entire purchase price went to the

         lender, but argued instead that the "amount that [plaintiff] owed and paid to the

         bank [did] not affect the fact that [plaintiff] received funds for the HVAC

         units."

¶ 46           On December 19, 2014, the trial court issued a written opinion granting

         defendant's motion for summary judgment. First, the trial court quoted section

         3.02 of the lease which provides that "all improvements *** shall be initially

         paid by the Landlord upon occupancy of the Tenant and then billed back to the

         tenant over a 5 year amortization schedule in addition to the rent (other than

         HVAC which shall be billed on a 15 year amortization schedule)." (Emphasis

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       No. 1-15-1087

          added.) Without discussing the parenthetical which begins "other than HVAC,"

          the trial court held that defendant was not required to make further HVAC

          payments "because the lease explicitly provides for a five-year term."

¶ 47             Although it ruled in defendant's favor, it held that defendant was "not

          entitled to damages." The trial court did not specify what "damages" it was

          rejecting. However, the only monies that defendant requested in its answer

          were for attorney fees and costs.

¶ 48             The trial court also rejected plaintiff's argument that there was no double

          recovery "when it sold the property for less than what was owed to the bank."

          The trial court rejected this argument, holding: "Regardless of where the funds

          went after they were received, [plaintiff] was compensated for the value of the

          units and cannot be compensated a second time."

¶ 49             In its last line, the trial court's opinion stated: "This is a final order that

          disposes of the case in its entirety without further notice." The order did not

          state " that there is no just reason for delaying either enforcement or appeal or

          both." Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).

¶ 50             On January 20, 2015, 2 plaintiff filed a motion to reconsider. Plaintiff

          argued that the trial court's holding overlooked the 15-year amortization and


             2
               The 30-day time limit to file the motion to reconsider would normally have
       expired on January 18, 2015. 735 ILCS 5/2-1203(a) (West 2014) ("In all cases
                                                  17
       No. 1-15-1087

          repayment schedule specifically included in the lease for the HVAC

          improvements. Plaintiff also argued that the appellate court, when it reversed

          and remanded the case on the issue of standing, "said that the Defendant owes

          this money," and that the subsequent sale is irrelevant to defendant's prior-

          existing obligation to pay for the improvements.         Plaintiff argued that, in

          finding a lack of damages, the trial court relied on the deposition testimony of

          Andrew Duren, a representative of the purchaser. However, Duren did not

          testify that the market value of the HVAC units caused the purchaser to increase

          its purchase price, but rather that, when calculating the price, the purchaser took

          into account whether it would need to repair or replace the heating and cooling

          system.

¶ 51             On March 30, 2015, the trial court denied plaintiff's motion for

          reconsideration.    The trial court noted that, in its order granting summary

          judgment, it found:     (1) that the lease did not require defendant to make

          payments for the HVAC improvements after the lease terminated; and (2)




       tried without a jury, any party may, within 30 days after entry of the judgment ***
       file a motion for rehearing, or a retrial, or modification of the judgment or to vacate
       the judgment or for other relief.") However, January 18, 2015, was a Sunday and
       the following day, January 19, was Martin Luther King Day. Herlehy v. Marie V.
       Bistersky Trust, 407 Ill. App. 3d 878 (2010) (the 30-day period for filing a motion
       under section 2-1203 of the Code of Civil Procedure was extended when the last
       day fell on a holiday). Thus, the motion to reconsider was timely filed.
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       No. 1-15-1087

         plaintiff was not entitled to damages. The trial court denied plaintiff's motion to

         reconsider because plaintiff was making the same arguments.

¶ 52           The first order which the trial court entered on March 30, 2015, stated

         that "defendant's" motion to reconsider was denied "without prejudice." On the

         same day, the trial court issued an "amended order" which stated that

         "plaintiff's" motion to reconsider was denied "with prejudice." The amended

         order also stated: "This is a final order that disposes of the case in its entirety

         without further notice." Similar to the order granting summary judgment, this

         order did not make "an express written finding that there is no just reason for

         delaying either enforcement or appeal or both." Ill. S. Ct. R. 304(a) (eff. Feb.

         26, 2010).

¶ 53           On April 8, 2015, defendant filed a motion in the trial court for attorney

         fees and costs, on the ground that section 10.2 of the lease provides that, "in any

         litigation between the parties regarding this Lease, the losing party shall pay to

         the prevailing party all reasonable expenses and court costs including attorneys'

         fees incurred by the prevailing party."       Pursuant to this lease provision,

         defendant sought $107,461 in attorney fees and $4,797 in court costs, and

         attached a supporting affidavit. The amount which plaintiff had sought under

         the lease was $64,461.




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       No. 1-15-1087

¶ 54           On April 15, 2015, the trial court issued a written order which granted

         defendant leave to file its motion for fees and costs, and which set a briefing

         schedule for the motion. On April 15, 2015, plaintiff also filed a notice of

         appeal.

¶ 55           In the trial court's "briefing schedule order," plaintiff was directed to file

         its response to defendant's motion for fees and costs by May 13, 2015, and

         defendant was directed to file its reply by May 27, 2015. In its brief to this

         court, plaintiff alleges:   "The Trial Court Record is missing (1) Plaintiff's

         Response to Defendant's Motion for Attorney's Fees and Costs, seeking stay on

         the decision, and (2) Defendant's Reply [to] Plaintiff's Response to its Motion

         for Attorneys' Fees and Costs." The appellate record does not contain these two

         documents.

¶ 56                   VII. After Filing the Notice of the Second Appeal

¶ 57           On June 30, 2015, plaintiff filed a motion in the appellate court, pursuant

         to Illinois Supreme Court Rule 305 (eff. July 1, 2004), seeking to stay the trial

         court proceedings pending resolution of this appeal. In its motion, plaintiff

         alleged that it had filed a response to defendant's motion for attorney fees and

         costs, in which it requested a stay of the trial court's decision pending this

         appeal. Plaintiff also alleged that the trial court granted defendant's motion and

         entered an order directing plaintiff to pay $93,843 to defendant.

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       No. 1-15-1087

¶ 58           Plaintiff attached to its motion a copy of the trial court's order, but it did

         not attach a copy of its response in which it requested a stay. However, in the

         order, dated June 12, 2015, the trial court observed that plaintiff had requested

         that the trial court either stay its decision or deny defendant's fee petition.

¶ 59           In the order, the trial court summarized the parties' arguments as follows.

         Defendant "argues that despite the fact that the Lease terminated at the end of

         the lease term, it is still entitled to attorneys' fees and costs pursuant to [section]

         10.08 of the agreement. [Defendant] contends that the Court has jurisdiction to

         enter a ruling on its post-judgment motion because 'it is ancillary to the original

         judgment.' "

¶ 60           The trial court summarized plaintiff's arguments as follows:

                        "[Plaintiff] argues that the Court should deny

               [defendant's] fee petition or in the alternative, stay its

               decision. [Plaintiff] argues that because the Court's decision

               to grant summary judgment in favor of [defendant] is

               currently being appealed, [defendant] 'does not meet the

               definition of a prevailing party] until after [plaintiff] has

               exercised its right to an appeal.' [Plaintiff] argues that it will

               face 'extreme hardship' if the Court does not grant its request

               to stay the decision on [defendant's] motion for attorney's

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               fees and costs. [Plaintiff] argues that because [defendant's]

               motion for attorney's fees and costs is 'inherently related to

               the subject matter of the appeal,' then the Court does not

               have jurisdiction to rule on [defendant's] motion. [Plaintiff]

               further argues, among other things, that based on the Court's

               December 19, 2014, order, the fee shifting provision does

               not apply and the Court should not use said provision as a

               basis to grant [defendant's] motion for fees. Alternatively,

               [plaintiff] argues that the Court should partially deny

               [defendant's] attorney's fees and costs because they are

               excessive and unreasonable."

¶ 61        The order then granted defendant's motion for attorney fees and costs in the

         following amounts: $89,046 in attorney fees; and $4,797 in costs. The order

         further stated that: "This is a final order that disposes of this case in its

         entirety." Thus, the trial court entered a series of three orders which all stated

         that "[t]his is a final order that disposes of this case in its entirety." These three

         orders were:     the order granting summary judgment; the order denying

         plaintiff's motion for reconsideration; and the order granting defendant costs

         and attorney fees.




                                                 22
       No. 1-15-1087

¶ 62           In defendant's response, filed July 10, 2015, to plaintiff's motion in the

         appellate court, defendant argued that plaintiff had failed to file a motion for a

         stay in the trial court, contending that "[m]aking a request in a response brief is

         not the same as filing a motion." Ill. S. Ct. R. 305(d) (eff. July 1, 2004)

         ("application for a stay ordinarily must be made in the first instance to the

         circuit court"). Defendant also argued that plaintiff had failed to offer "to post a

         bond or any other security pending appeal." Ill. S. Ct. R. 305(a) (eff. July 1,

         2004) ("The enforcement of a judgment for money only *** shall be stayed if a

         timely notice of appeal is filed and an appeal bond or other form of security ***

         is presented to, approved by, and filed with the court within the time for filing

         the notice of appeal or within any extension of time granted."). In addition,

         defendant argued that plaintiff's "response in the circuit court and motion in this

         Court make no reference to a bond." As previously noted, there is no copy of

         plaintiff's response in the record before us.

¶ 63           On July 16, 2015, this court issued an order stating: "Plaintiff/Appellant's

         Motion to Stay Trial Court Proceeding is hereby Denied for failure to comply

         with Ill. S. Ct. Rule 305(d) requesting a stay in the trial court, and also for

         failure to request the setting of bond." The parties' appellate briefs were then

         filed after our July 16, 2015, order, and this appeal followed.




                                                23
       No. 1-15-1087

¶ 64                                      ANALYSIS

¶ 65            Plaintiff appeals the trial court's grant of summary judgment in favor of

         defendant, as well as the trial court's denial of its motion to reconsider. For the

         following reasons, we reverse and remand for further proceedings consistent

         with this opinion.

¶ 66                            I. Duty to Consider Jurisdiction

¶ 67            Although neither party raises the issue of jurisdiction, an appellate court

         has an independent duty to consider whether or not it has jurisdiction to hear an

         appeal. Daewoo International v. Monteiro, 2014 IL App (1st) 140573, ¶ 72

         ("An appellate court has a duty to consider its own jurisdiction, whether or not

         the parties have raised it as an issue."). See also People v. Lewis, 234 Ill. 2d 32,

         36-37 (2009) ("courts of review have an independent duty to consider [their

         own subject matter] jurisdiction even if a jurisdictional issue is not raised by the

         parties," and subject matter jurisdiction is a "threshhold issue"); Secura

         Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009)

         ("A reviewing court must ascertain its [own subject matter] jurisdiction before

         proceeding in a cause of action regardless of whether either party has raised the

         issue.").

¶ 68            Our supreme court has stated that the ascertainment of a court's own

         jurisdiction is one of the "most important tasks of an appellate court panel when

                                                24
       No. 1-15-1087

         beginning the review of a case." People v. Smith, 228 Ill. 2d 95, 106 (2008)

         ("We take this opportunity to remind our appellate court of the importance of

         ascertaining whether it has jurisdiction in an appeal[.]"); R.W. Dunteman Co. v.

         C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998) ("A reviewing court must be

         certain of its jurisdiction prior to proceeding in a cause of action.").

¶ 69                          II. Notice of Appeal is Jurisdictional

¶ 70           An appellate court's jurisdiction is dependent on the appellant's timely

         filing of a notice of appeal. Huber v. American Accounting Ass'n, 2014 IL

         117293, ¶ 19. In fact, the timely filing of a notice of appeal is the only

         jurisdictional step needed for initiating appellate review. People v. Patrick,

         2011 IL 111666, ¶ 20. An appellant's failure to file a timely notice leaves this

         court without jurisdiction to hear his or her appeal. Huber, 2014 IL 117293,

         ¶ 19 (where the appellant filed his notice of appeal after the 30-day deadline

         provided in the relevant supreme court rule, the appellate court was correct in

         dismissing the appeal for lack of jurisdiction); Patrick, 2011 IL 111666, ¶ 20.

         To ascertain whether a notice of appeal was timely filed, we turn to the relevant

         supreme court rules which govern filing.

¶ 71                          III. Rules of Statutory Interpretation

¶ 72           Since interpretation of a supreme court rule presents purely a question of

         law, our review proceeds de novo. VC&M, Ltd. v. Andrews, 2013 IL 114445,

                                                 25
       No. 1-15-1087

         ¶ 13 (the proper interpretation of Supreme Court Rule 303(a) "presents purely a

         question of law" and thus "proceeds de novo"). De novo consideration means

         we perform the same analysis that a trial judge would perform. Accel

         Entertainment Gaming, LLC v. Village of Elmwood Park, 2015 IL App (1st)

         143822, ¶ 27.

¶ 73           When interpreting a supreme court rule, we are governed by the same

         rules that govern statutory interpretation. VC&M Ltd., 2013 IL 114445, ¶ 30;

         Hollywood Boulevard Cinema, L.L.C. v. FPC Funding II, L.L.C., 2014 IL App

         (2d) 131165, ¶ 19. Under these rules, our primary objective is to ascertain and

         give effect to the intent of the rule's drafters. VC&M Ltd., 2013 IL 114445,

         ¶ 30; Hollywood Boulevard, 2014 IL App (2d) 131165, ¶ 19. The most reliable

         indication of the drafters' intent is the language used in the rule itself, which

         should be given its plain and ordinary meaning. VC&M Ltd., 2013 IL 114445,

         ¶ 30; Hollywood Boulevard, 2014 IL App (2d) 131165, ¶ 19. If we determine

         that a supreme court rule is ambiguous, or susceptible to more than one

         reasonable interpretation, then we may consider the committee comments, in

         order to ascertain the reason and necessity for the rule and the purpose to be

         served by it. Hollywood Boulevard, 2014 IL App (2d) 131165, ¶ 19 (citing

         Friedman v. Thorson, 303 Ill. App. 3d 131, 135 (1999)).




                                              26
       No. 1-15-1087

¶ 74                                      IV. Rule 303

¶ 75             Illinois Supreme Court Rule 303(a)(1) provides that a notice of appeal

          must be filed with the clerk of the circuit court within 30 days after the entry of

          the final judgment appealed from. Ill. S. Ct. R. 303(a)(1) (eff. June 4, 2008).3

          In the case at bar, on December 19, 2014, the trial court granted summary

          judgment and entered an order stating that it was "a final order that disposes of

          the case in its entirety."

¶ 76             However, Rule 303 further provides that, if a timely posttrial motion

          directed against the judgment is filed, then the notice of appeal must be filed

          within 30 days after the entry of the order disposing of that motion. Ill. S. Ct. R.

          303(a)(1) (eff. June 4, 2008). In the case at bar, plaintiff filed a motion to

          reconsider on January 20, 2015, which was within the 30-day time limit after

          the order granting summary judgment. 4 On March 30, 2015, the trial court

          denied that motion; and plaintiff filed a notice of appeal on April 15, 2015,

          which was well within the 30-day period after the trial court's denial. Ill. S. Ct.

          R. 303(a)(1) (eff. June 4, 2008) (the notice of appeal must be filed within 30

          days after the entry of the order disposing of the last pending postjudgment

          motion directed against the judgment); see also Ill. S. Ct. R. 274 (eff. Jan. 1,
             3
                Supreme Court Rule 303 was amended effective January 1, 2015, after
       summary judgment was granted in this case. However, the amendment has no
       effect on this case.
              4
                See footnote 2.
                                                 27
       No. 1-15-1087

         2006) ("each timely postjudgment motion shall toll the finality and

         appealability of the judgment or order at which it is directed").

¶ 77           However, on April 8, 2015, defendant filed a motion in the trial court

         with a claim for attorney fees and costs; and the trial court granted defendant

         leave to file the motion on April 15, 2015, and set forth a briefing schedule.

         April 15 was also the same day that plaintiff filed its notice of appeal. Herlehy

         v. Marie V. Bietersky Trust, 407 Ill. App. 3d 878, 898 (2010) ("A circuit court

         has jurisdiction to entertain a motion for attorney fees filed within 30 days of

         the entry of a final judgment without regard to a previously filed notice of

         appeal."), discussed with approval in Illinois Department of Financial &

         Professional Regulation (IDFPR) v. Rodriguez, 2012 IL 113706, ¶ 32.

¶ 78           Rule 303(a)(2) provides that, when a timely postjudgment motion has

         been filed by any party, a notice of appeal filed before the entry of the order

         disposing of the last pending postjudgment motion, or before the final

         disposition of any separate claim, becomes effective when the order disposing

         of the motion or claim is entered. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008);

         F.H. Prince & Co, Inc. v. Towers Financial Corp., 266 Ill. App. 3d 977, 983

         (1994) ("A request for attorneys' fees is a claim within the meaning of Supreme

         Court Rule 304(a)" which governs the finality of judgments). Thus, if Rule 303

         ended there, there would be no doubt that plaintiff's notice of appeal became

                                               28
       No. 1-15-1087

          "effective" when the trial court entered an order, on June 12, 2015, "disposing

          of the motion or claim" for attorney fees and costs. 5 Ill. S. Ct. R. 302(a)(2) (eff.

          June 4, 2008).

¶ 79             However, Section 303 continues and it provides, in relevant part:

                       "A party intending to challenge an order disposing of

                 any postjudgment motion or separate claim, or a judgment

                 amended upon such motion, must file a notice of appeal, or

                 an amended notice of appeal within 30 days of the entry of

                 said order or amended judgment ***." (Emphasis added.)

                 Ill. S. Ct. R. 303(d) (eff. June 4, 2008).

¶ 80             As the appellate court has previously observed, the above language is

          capable of two reasonable interpretations. In Hollywood Boulevard, the Second

             5
                Without the June 12 order, the appeal would have been premature. Bale v.
       Barnhart, 343 Ill. App. 3d 708, 711-12 (2003) (a "timely motion for attorney fees
       *** renders the appeal premature" until the issue is resolved). For example, in
       Bale, the appellate court held that "there was no final judgment because the order
       *** left unresolved the issue of attorney fees–an issue raised in the pleadings."
       Bale, 343 Ill. App. 3d at 712. Similarly, in the case at bar, the issue of attorney
       fees was raised in the pleadings. Thus, without the June 12 order, this appeal
       would also have been premature. Bale, 343 Ill. App. 3d at 712 ("Absent a final
       judgment, we lack jurisdiction over [appellant's] appeal under Rule 303."). See
       also F.H. Prince, 266 Ill. App. 3d at 983-84 ("if a trial court has jurisdiction to
       hear a claim for fees, any other judgment entered in the case before the claim for
       fees is ruled upon is or becomes nonfinal and nonappealable when the claim for
       fees is made, unless the prior judgment contains the language set forth in Supreme
       Court Rule 304(a), that there is no just reason to delay enforcement or appeal"
       (emphasis in original)).
                                                  29
       No. 1-15-1087

         District explained that the above language "could be read [(1)] to require a new

         or an amended notice of appeal only if the party is challenging a judgment

         insofar as it is amended. In other words, the party would need to file a new or

         an amended notice of appeal only if challenging the amendment to the

         judgment." (Emphasis in original.) Hollywood Boulevard, 2014 IL App (2d)

         131165, ¶ 20. Yet, this same language could also "be read [(2)] to require a

         new or an amended notice of appeal if the party is challenging a judgment that

         has been amended." (Emphasis in original.) Hollywood Boulevard, 2014 IL

         App (2d) 131165, ¶ 20.

¶ 81           In the case at bar, plaintiff did not file a notice of appeal or an amended

         notice of appeal after the entry of the trial court's June 12, 2015, order granting

         defendant's motion for attorney fees and costs.

¶ 82           When the language of a supreme court rule is ambiguous, we may turn to

         the committee notes for guidance, in order to ascertain the reason and purpose

         underlying the rule. Hollywood Boulevard, 2014 IL App (2d) 131165, ¶ 21

         (citing Friedman, 303 Ill. App. 3d at 135). In the Committee Comments to

         Rule 303, the drafters of the rule explained that: "where the postjudgment order

         grants new or different relief than the judgment itself, or resolves a separate

         claim, a second notice of appeal is necessary to preserve an appeal from such

         [an] order." Ill. S. Ct. R. 303, Committee Comments (adopted Mar. 16, 2007).

                                               30
       No. 1-15-1087

          Interpreting this rule and its explanatory comments, the appellate court held

          that, if a trial court awards " 'new and different relief than the judgment itself,' "

          then a new or amended notice of appeal is necessary to appeal from the order

          granting the new or different relief. Hollywood Boulevard, 2014 IL App (2d)

          131165, ¶ 22 (quoting Ill. S. Ct. R. 303(d), Committee Comments (adopted

          Mar/ 16, 2007)).    In the case at bar, since plaintiff chose not to file a new or

          amended notice of appeal, the fees-and-costs order is not on appeal before us.6

¶ 83             However, the issue of summary judgment is properly before us, since the

          notice of appeal became effective once the trial court issued its order disposing

          of defendant's motion. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008). In Hollywood

          Boulevard, 2014 IL App (2d) 131165, ¶ 28, the Second District held, as we do

          here: "to the extent that [appellant] challenges only the undisturbed portion of

          the [original] judgment, he was not required to file a new or an amended notice

          of appeal after the trial court amended the judgment. [Appellant's] premature

          notice of appeal *** became effective once the court disposed of his

          postjudgment motion *** and it confers jurisdiction on this court to review the

          undisturbed portion of the [original] judgment." Thus, we have jurisdiction to




             6
               In addition, we observe that the issue of fees and costs is not discussed in
       the briefs to this court, which were filed after both the trial court's June 12, 2015,
       order and our July 16, 2015, order denying a stay.
                                                  31
       No. 1-15-1087

         consider the undisturbed portion of the original judgment which, in the case at

         bar, was the trial court's grant of defendant's summary judgment motion.

¶ 84                        V. Standards for Summary Judgment

¶ 85         " 'Summary judgment is a drastic measure and should only be granted if the

         movant's right to judgment is clear and free from doubt.' " Pekin Insurance Co.

         v. Roszak/ADC, LLC, 402 Ill. App. 3d 1055, 1059 (2010) (citing Outboard

         Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992)). It is

         appropriate only when the pleadings, depositions and admissions on file, taken

         together with any affidavits and exhibits, indicate that there is no genuine issue

         of material fact and that the moving party is entitled to judgment as a matter of

         law. Pekin Insurance, 402 Ill. App. 3d at 1058-59 (citing 735 ILCS 5/2-1005(c)

         (West 2008)). In making this determination, the court must view the relevant

         documents in the light most favorable to the nonmoving party. Pekin, 402 Ill.

         App. 3d at 1058-59 (citing 735 ILCS 5/2-1005(c) (West 2008)).

¶ 86           A defendant moving for summary judgment bears the initial burden of

         proof. Erie Insurance Exchange v. Compreve Corp., 2015 IL App (1st) 142508,

         ¶ 15. The defendant may meet its burden of proof either by affirmatively

         showing that some element of the case must be resolved in its favor or by

         establishing an absence of evidence to support the nonmoving party's case. Erie

         Insurance, 2015 IL App (1st) 142508, ¶ 15. "In other words, there is no

                                               32
       No. 1-15-1087

         evidence to support the plaintiff's complaint." Erie Insurance, 2015 IL App

         (1st) 142508, ¶ 15. "'Mere speculation, conjecture or guess is insufficient to

         withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc. 309 Ill.

         App.3d 313, 328 (1999) (citing Sanchez v. Firestone Tire & Rubber Co., 237

         Ill. App. 3d 872, 874 (1992). " 'To withstand a summary judgment motion, the

         nonmoving party need not prove his case at this preliminary stage but must

         present some factual basis that would support his claim.' " Schrager v. North

         Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting Luu v. Kim, 323 Ill.

         App. 3d 946, 952 (2001)).

¶ 87           We review de novo a trial court's decision on a summary judgment

         motion. Pekin Insurance, 402 Ill. App. 3d at 1059 (citing Outboard Marine.

         154 Ill. 2d 90, 102 (1992)). As we stated above, de novo consideration means

         that we perform the same analysis that a trial judge would perform. Erie

         Insurance Exchange v. Compreve Corp., 2015 IL App (1st) 142508, ¶ 14.

¶ 88                       VI. Grounds for Summary Judgment

¶ 89           In the case at bar, defendant sought summary judgment on the grounds

         (1) that "the lease did not require [defendant] to make HVAC payments after

         the lease expired" and (2) that plaintiff was "attempting to recover the same

         damages twice" because "it sold the property, including the still-functioning

         HVAC unit." The trial court found for defendant on both grounds.

                                             33
       No. 1-15-1087

¶ 90             Both of these holdings contradict our prior opinion. First, the trial court

          held that defendant was not required to make HVAC payments after the lease

          expired. A.M. Realty, 2012 IL App (1st) 121183.           However, we held that

          "defendant's alleged obligation to pay had accrued prior to the end of the lease."

          A.M. Realty, 2012 IL App (1st) 121183, ¶ 49. Although our opinion was

          limited to the issue of standing (A.M. Realty, 2012 IL App (1st) 121183, ¶ 52),

          this conclusion about when the obligation accrued was a necessary step, and

          hence a part of our holding. See Exelon Corp. v. Department of Revenue, 234

          Ill. 2d 266, 277-78 (2009) (a holding is "essential to the disposition of the

          cause"); People v. Vesey, 2011 IL App (3d) 090570, ¶ 20 ("dicta [is]

          unnecessary to the court's holding"); Village of Vernon Hills v. Heelan, 2014 IL

          App (2d) 130823, ¶ 24 (an issue that "we necessarily had to address" is not

          dicta). 7 However, defendant's "alleged" obligation was predicated on plaintiff's

          full performance. As we explained, only "[i]f plaintiff fully performed" its

          HVAC obligation under the lease "as it alleges," did "the alleged debt to repay

          for these improvements" mature. A.M. Realty, 2012 IL App (1st) 121183, ¶ 44.

          Thus, we remanded for further proceedings on the merits, principally on

             7
                At oral argument, defendant appeared to be arguing that our prior opinion
       in this case was incorrect. Defendant argued that we were not bound by what we
       had previously decided with respect to the prior motion to dismiss and that "if you
       follow [this court's prior holding] to its conclusion, I don't think it leads you to a
       correct place in the law." However, we adhere to our precedent for the reasons
       stated in that opinion. A.M. Realty, 2012 IL App (1st) 121183.
                                                 34
       No. 1-15-1087

         whether plaintiff had fully performed its HVAC obligation under the lease.

         A.M. Realty, 2012 IL App (1st) 121183, ¶ 52. The trial court, however, ruled

         on a different issue.

¶ 91           At oral argument on March 15, 2016, this court asked defendant several

         times whether plaintiff had fully performed and defendant conceded that

         plaintiff had. For example, in the following colloquy, defendant admitted that

         plaintiff had fully met its obligations under the contract:

                   "JUSTICE REYES: Did the plaintiff here fully meet their obligations

               under the contract?

                   DEFENSE COUNSEL: Yes.

                   JUSTICE REYES: In what capacity?

                   DEFENSE COUNSEL:             They provided the rental space.    They

               improved the property."

         When asked again about this issue, defense counsel repeated that "[t]here was

         no dispute as to the provisions of these things" by plaintiff.

¶ 92           Second, the trial court held that plaintiff was "attempting to recover the

         same damages twice" because "it sold the property, including the still-

         functioning HVAC unit."       On the first appeal, plaintiff argued that it had

         standing, since defendant's obligation to pay had accrued prior to plaintiff's

         subsequent sale of the building. A.M. Realty, 2012 IL App (1st) 121183, ¶¶ 26,

                                                35
       No. 1-15-1087

         31. Plaintiff had argued that the sale of the building did not extinguish plaintiff's

         standing to bring the instant case because the payments in the lease were akin to

         a loan, which became due once the improvements were made and thus before

         the property was sold. See A.M. Realty, 2012 IL App (1st) 121183, ¶ 40.

¶ 93           We agreed, stating that, "if there is a debt as plaintiff claims in its

         complaint, it matured before the property was sold." A.M. Realty, 2012 IL App

         (1st) 121183, ¶ 43. We explained that "[p]laintiff alleges that it fully performed

         its HVAC obligation under the lease when it improved the HVAC units on the

         property. If plaintiff fully performed [the HVAC improvements] as it alleges,

         then the alleged debt to repay for these improvements had matured" when the

         improvements were made and thus "prior to the sale of the property." A.M.

         Realty, 2012 IL App (1st) 121183, ¶ 44. "Since defendant's debt had allegedly

         matured, it did not pass on to the subsequent owners of the property." A.M.

         Realty, 2012 IL App (1st) 121183, ¶ 45. Since defendant's debt to pay had

         accrued prior to the sale, the subsequent sale was irrelevant.

¶ 94           Thus, the grounds for the trial court's grant of summary judgment




                                                36
       No. 1-15-1087

         contradict our prior opinion, and we must reverse.

¶ 95                                     CONCLUSION

¶ 96           For the foregoing reason, we reverse and remand for further proceedings

         consistent with this opinion.

¶ 97           Reversed and remanded.

¶ 98           JUSTICE LAMPKIN, specially concurring.

¶ 99           I concur in the judgment only.




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