                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                 Public Building Comm’n v. Yellen, 2013 IL App (1st) 112638




Appellate Court            PUBLIC BUILDING COMMISSION OF CHICAGO, Plaintiff, v.
Caption                    SHERWIN YELLEN, Defendant-Appellant (Nandorf, Inc., d/b/a Unique
                           Thrift Store, Defendant-Appellee; Martin Yellen and Unknown Owners,
                           Defendants).



District & No.             First District, Second Division
                           Docket No. 1-11-2638


Filed                      February 26, 2013


Held                       Defendant lessee was not entitled to any apportionment of the proceeds
(Note: This syllabus       of plaintiff’s condemnation action, since defendant’s tenancy terminated
constitutes no part of     prior to the date plaintiff deposited the compensation awarded for the
the opinion of the court   condemned property and took title with the right to possession; therefore,
but has been prepared      the cause was remanded for the entry of an order remitting to the lessor
by the Reporter of         the funds apportioned to the lessee.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 02-L-50176; the
Review                     Hon. Alexander White, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 John F. Cloutier, of Chicago, for appellant.
Appeal
                           John J. Foran, of Foran, O’Toole & Burke, LLC, of Chicago, for appellee.


Panel                      JUSTICE SIMON delivered the judgment of the court, with opinion.
                           Justices Quinn and Connors concurred in the judgment and opinion.


                                             OPINION

¶1           On February 7, 2002, plaintiff, Public Building Commission of Chicago (PBC), filed a
        complaint for condemnation pursuant to the Public Building Commission Act (50 ILCS 20/1
        et seq. (West 2002)) seeking title to real property located at 2329-43 South Kedzie Avenue,
        Chicago, Illinois. The property was owned by defendants Sherwin Yellen (Yellen) and
        Martin Yellen. Defendant Nandorf, Inc., d/b/a Unique Thrift Store (Nandorf), was named as
        a party claiming a leasehold interest in the property. Following a jury trial, the jury entered
        a verdict setting the compensation for the property at $1,950,000, plus interest. On May 16,
        2007, the trial court entered a final judgment order based on this verdict.
¶2           On August 27, 2007, Nandorf moved for apportionment of the final just compensation
        award. On August 12, 2010, following an evidentiary hearing on the apportionment motion,
        the trial court entered a memorandum decision and judgment in favor of Nandorf, awarding
        $380,000 for its leasehold interest, $99,045.81 of reimbursement for gross rent paid to
        Yellen, and $6,500 to be paid to the appraiser for unpaid fees related to her report and
        testimony in the jury trial. Yellen filed a motion to reconsider, amend the pleadings and
        admit new evidence in which Yellen sought to reverse the trial court’s order based upon the
        trial court’s misapplication of the law. Yellen also sought to amend his pleading to include
        affirmative defenses and the admission of evidence of the May 7, 2009, judgment entered in
        favor of Nandorf in its negligence action against the demolition company that damaged the
        building occupied by Nandorf.
¶3           The trial court denied Yellen’s motion and this appeal followed. Yellen asserts that the
        trial court erred in apportioning the condemnation award because: Nandorf did not have a
        leasehold interest in the property at the time of the taking; Nandorf was compensated for its
        damages in the separate negligence action it brought against the demolition company, thereby
        making the apportioned condemnation award to Nandorf an impermissible double recovery;
        the voluntary payment doctrine barred Nandorf’s claimed entitlement to recover rent
        payments it made to Yellen; and Nandorf’s claim is barred by the doctrine of res judicata.
        Yellen also argues that the trial court improperly awarded payment of fees for Nandorf’s
        appraiser out of the condemnation award. For the following reasons, we reverse the judgment
        of the trial court and remand the matter for entry of an order that the condemnation award
        funds and payment of the $6,500 in fees to Nandorf’s expert witness be disgorged and
        remitted in full and without offset to Yellen.

                                                  -2-
¶4                                        I. BACKGROUND
¶5          On May 13, 1992, Yellen and Nandorf entered into a five-year lease of the subject
       property, 2321-29 South Kedzie Avenue, Chicago, Illinois. The lease terms included a rent
       provision of $5,000 per month plus a pro rata share of real estate taxes and insurance. Two
       five-year lease extension options were also included. Nandorf operated a thrift store at the
       property and, in May 1997, exercised the first five-year option with a monthly rent of $5,600
       plus a pro rata share of real estate taxes and insurance. The second five-year option was
       exercised by Nandorf ’s January 25, 2002, letter to Yellen extending the option term effective
       through May 2007 at a monthly rent of $6,200 plus a pro rata share of real estate taxes and
       insurance.
¶6          On February 7, 2002, the PBC filed the underlying eminent domain proceeding.
       Thereafter, Nandorf occupied the property and operated the thrift store. But, on January 14,
       2004, the building occupied by Nandorf was damaged by a demolition contractor hired by
       the PBC to demolish an adjoining building. Nandorf continued to pay rent for a period of
       time, but was unable to occupy the building after it was damaged and ceased using the
       building for the operation of the thrift store. Following a jury trial, the trial court entered a
       final judgment order in the eminent domain proceeding, finding that just compensation for
       the property was $1,950,000, plus interest. On July 16, 2007, the PBC deposited the final
       award, plus interest, with the county treasurer.
¶7          On August 27, 2007, Nandorf filed its motion to apportion the award and an amended
       motion to apportion on May 20, 2008, which is at issue in this appeal. Attached as copies to
       the amended motion were the lease and letters relating to Nandorf’s exercise of the earlier
       option periods. Included was its letter of January 25, 2002, in which Nandorf’s general
       manager Otto A. Bonomo included a “request that two additional option periods of five years
       each at $6,800.00 and $7,400.00 per month respectively be added to the lease. Enclosed is
       that addendum. If this meets with your approval, please signature [sic] it and get it back to
       me.” Yellen refused to accept that offer, as he did the other similar oral requests of Mr.
       Bonomo.
¶8          In its motion to apportion, Nandorf claimed that it was “entitled to the apportionment of
       the final just compensation award for its leasehold value for the unexpired term of its lease
       from January 14, 2004 until the expiration of the second option period on May 12, 2007.”
       A briefing schedule was set for the motion. After briefs were submitted, an evidentiary
       hearing was held with testimony presented in November 2009 and January 2010.
¶9          At the apportionment hearing, Nandorf called Susan Enright, a commercial real estate
       appraiser, to testify as its expert on the valuation of the leasehold. Enright testified that she
       was originally contacted to appraise the leasehold value, but then was asked by counsel for
       Nandorf and counsel for Yellen to appraise the value of the whole property. In her testimony
       in the eminent domain proceeding, Enright stated that the market value of the entire property
       was $2,700,000. Enright also added that she was later contacted by Nandorf’s counsel and
       asked to separately appraise the leasehold value.
¶ 10        Enright described her inspection of the property, interviews of real estate brokers and

                                                 -3-
       appraisers, analysis of the lease and the market data from comparable properties and detailing
       the property and area. From this Enright determined that the market rent for the property was
       $12 per square foot. She then opined that the contract rent was below market value because
       the subject property lease rent at a monthly rate of $3.74 per square foot generated positive
       leasehold income of $8.26 per foot for a total value of $13,044 per month.
¶ 11        Enright stated that she then calculated total leasehold potential income by multiplying
       the monthly leasehold income by 40, the remaining number of months in the lease option
       period that commenced May 12, 2002, to come to a total of $521,760. She then applied a
       discount factor of 10% and did a present value calculation to come to her total market value
       of the leasehold interest of $379,372, which she rounded up to $380,000. On cross-
       examination, Enright testified that she did not enter into an engagement letter for her work
       in the eminent domain proceeding or for her work related to the apportionment hearing.
¶ 12        Otto Bonomo testified that he was an employee of Nandorf from November 1974 to July
       2004 and continued on with the company as a member of the board of directors after his
       retirement. Bonomo stated that he was eventually promoted to the position of general
       manager of the company and was responsible for maintaining Nandorf’s six thrift stores in
       continuous, good operating condition. Bonomo also spoke to the selection of the property as
       a location for a thrift store and his discussions with Yellen in reaching terms for the lease
       agreement in 1992.
¶ 13        Bonomo further testified that Yellen submitted a form lease and, in negotiating the lease
       terms, Nandorf included some changes as well as a rider. The parties signed the lease as
       modified and Nandorf later exercised the two five-year options in 1997 and 2002. Bonomo
       stated that, when Nandorf exercised the 2002 option, he also sent a letter to Babette Yellen
       seeking to include two more five-year renewal options in the lease. Yellen did not agree to
       that request. Bonomo testified that, at that time, Yellen had indicated that the city was
       interested in taking the property, but that he was going to do everything he could to prevent
       that from happening.
¶ 14        Bonomo recalled that Nandorf continued to operate a thrift store on the property until
       January 14, 2004, when the building was damaged by the demolition contractor. He spoke
       to Yellen on the date of the accident and was told that the building would be repaired as soon
       as possible. Bonomo also talked with Yellen and his insurance company on several occasions
       regarding the repair of the building. Based on reassurances that the building would be
       repaired, Nandorf continued to pay its monthly rent and pro rata share of real estate taxes
       and insurance through December 2004.
¶ 15       On cross-examination, Bonomo stated that he initially identified the subject property as
       a possible store location and conducted negotiations to rent the property. When he was given
       the form lease, it was forwarded to Nandorf’s attorneys, who made alterations and drafted
       the rider. In particular, Bonomo testified that someone on behalf of Nandorf added the final
       sentence to paragraph 11 of the lease, which provides, in full:
                “In case the Premises shall be rendered untenantable by fire, explosion or other
            casualty, Lessor may, at his option, terminate this lease or repair the Premises within
            sixty days. If Lessor does not repair the Premises within said time, or the building


                                                -4-
            containing the Premises shall have been wholly destroyed, the term hereby created shall
            cease and determine. If premises are being repaired rent abates for the portion not being
            used.”
¶ 16        Bonomo testified that when Nandorf moved in, it had to repair the roof of the building
       to stop leaks, but considered that cost in determining to enter into the lease. At the end of the
       initial option period, when Nandorf wrote Yellen to exercise the second option period, it
       requested that two additional five-year option periods be included in the lease. Bonomo
       stated that Yellen did not accept the request. Bonomo said that Nandorf was able to remove
       cash registers the day after the demolition accident, but no one was permitted further access
       to the building because of its damaged, unsafe condition. Nandorf was eventually able to
       remove other items in 2007 before the PBC took possession.
¶ 17        Tammy Rose testified that she had been office manager for Nandorf since 1987. She was
       responsible for communicating with landlords, calculating amounts due to landlords, and
       supervising the issuance of checks. Pursuant to these duties, Rose communicated regularly
       with Yellen concerning the property. Rose confirmed that monthly rent checks were sent to
       Yellen through December 2004 and identified copies of those checks at trial that had been
       cleared after deposit by Yellen.
¶ 18        Rose also testified that, after Nandorf had stopped remitting rent payments, she had
       various conversations with Yellen concerning the property. In January 2005, she talked on
       the telephone with Yellen, who informed her that clothing was on the ground around
       Nandorf’s donation box in the parking lot. Yellen told her that Nandorf had to pick up the
       clothes and plow the snow in the parking lot to avoid any lawsuits. After talking with
       Nandorf’s general manager, David Vandenbosch, Rose sent Yellen a letter to inform him that
       Nandorf would remove the donation box, with the possibility of returning it in the spring.
¶ 19        Rose recounted that in September 2005, Yellen informed her that he saw that the building
       on the property was not properly closed off and said that Nandorf needed to provide board-up
       service so that the building would be secure. Rose sent Yellen a letter in response telling him
       that Nandorf would contact a company to board up the building. Yellen again contacted Rose
       in August 2006, this time using a handwritten fax note, to inform her that the receiving door
       at the property was open and needed to be secured.
¶ 20        David Vandenbosch testified that he was hired as an assistant general manager by
       Nandorf in the winter of 1999-2000 and became general manager in 2004 when Bonomo
       retired. Vandenbosch said that he and Bonomo were aware of the eminent domain complaint
       in February 2002, but exercised the five-year option on January 25, 2002, to maintain that
       option because they understood the condemnation proceeding could be abandoned at the will
       of the PBC. After being advised of the demolition accident, Nandorf continued to make
       payments on its lease because it had not received any notice that the rent was terminated and
       it wanted to reopen the store at that location based on its prior success. Furthermore, Yellen
       had informed Nandorf that he intended to repair the building. In addition, Vandenbosch
       testified that Yellen’s insurance adjustor had contacted Nandorf about the damage to and
       repair of the building.
¶ 21        Vandenbosch further testified that he stopped the rent payments after approximately one


                                                 -5-
       year because he had seen no progress in the repair of the building despite Yellen’s assurances
       to Bonomo. Vandenbosch also believed the lease was still viable based on Yellen’s
       continued contacts with Nandorf in 2005 and 2006 requesting that Nandorf take certain
       actions as tenant. Vandenbosch testified that Nandorf completed the tasks requested by
       Yellen because they considered the landlord-tenant relationship to still be in place.
¶ 22        When counsel for Yellen stated that he would not call any witnesses, Yellen was called
       to testify by Nandorf as an adverse witness. Yellen testified that Nandorf was a quality tenant
       that paid its bills on time and did not have any outstanding debts. Yellen said that he initially
       intended to have the building on the property repaired and contacted his insurance agent and
       construction people; however, as he investigated further, he realized that the repair would be
       more complicated than he originally believed and the insurance company never offered to
       provide enough funds to repair the building. Yellen admitted that he deposited all of the rent
       checks received from Nandorf, never gave any notice that the lease was terminated, and
       contacted Rose to request actions by Nandorf on several occasions in the three years
       following the demolition accident that damaged the building.
¶ 23        On August 12, 2010, the trial court issued a memorandum decision and judgment. The
       court awarded Nandorf $380,000 for its leasehold interest and $99,045.81 for reimbursement
       of gross rent paid after the date of the demolition accident. In addition, the court awarded
       $6,500 to Enright for unpaid fees for her work on the jury trial.
¶ 24        Yellen filed a motion for reconsideration, arguing that the judgment should be vacated.
       Yellen asserted that Nandorf did not have a leasehold interest on the date of the taking and,
       therefore, was not entitled to apportionment of the condemnation award. Asserting that the
       voluntary payment doctrine and double recovery rule precluded this award, Yellen also
       sought to reverse the award granting Nandorf recovery of rents paid. In addition, Yellen
       argued for reversal of the award to Enright because she was not a party to the action and had
       no standing. In addition, Yellen moved to introduce newly discovered evidence and amend
       his pleadings to conform to the evidence that Nandorf was compensated for damages in its
       tort action against the demolition company in a separate cause of action.
¶ 25        On August 29, 2011, the trial court entered a 24-page memorandum decision and order.
       The trial court’s order is confusing at best, essentially copying the parties’ arguments
       verbatim, each in the first person voice, and then providing conclusions that either contradict
       the court’s findings or the court’s ultimate orders. While the narrative of the trial court’s
       order is favorably dispositive toward Yellen’s position on the ultimate issue in this case, that
       the expiration of Nandorf’s lease prior to the date of the taking bars the former lessee from
       receiving any portion of the condemnation award under City of Lake Forest v. First National
       Bank of Lake Forest, 52 Ill. App. 3d 893 (1977), it ultimately entered orders denying
       Yellen’s motion in its entirety.
¶ 26        For example, in concluding its discussion of Yellen’s first argument, the trial court
       stated:
                “The Court agrees with Nansdorf [sic]. Yellen argues in order for Nandorf to receive
            compensation from Yellen, in respect to the condemnation award, a leasehold must have
            existed at the time of the taking, and not at the date of valuation. Although the eminent


                                                 -6-
           domain action was filed on February 7, 2002, for which Nandorf still had an unexpired
           lease, the actual taking did not take place until July 16, 2007[,] after the expiration of the
           lease on May 12, 2007. Nandorf does not dispute a leasehold did not exist at the time of
           actual taking, on June [sic] 16, 2007[,] when the condemnation award was paid, and
           admits City of Lake Forest stands for the proposition a lessee is not entitled to any
           portion of the condemnation award if the lease is cancelled. Although Nandorf did not
           ‘cancel’ the lease, there is no dispute the lease had terminated on May 12, 2007[,] which
           was between the date the petition to condemn was filed (February 2, 2002) and the date
           the compensation award was paid (July 16, 2007). Furthermore, there is no dispute
           Nandorf was paying rent beyond the expiration of the lease on May 12, 2007[,] and was
           deprived of his use of the leased premises after that date. Therefore, the lease did not
           expire on May 12, 2007[,] and Nandorf is entitled to a portion of the condemnation
           award.”
¶ 27       With respect to Yellen’s second argument, the trial court opined that it agreed with
       Yellen concerning the award granting the recovery of rent paid, stating “[t]he Court agrees
       with Yellin [sic]. There is no recovery of the rents paid.” However, the trial court ordered the
       denial of Yellen’s motion to reconsider and “[t]he motion to recover rents paid by Nandorf,”
       despite the fact that Nandorf had not filed the latter motion. Finally, in the text of the order,
       the trial court agreed that Nandorf was standing in the appraiser’s shoes in requesting the
       award and that it could not make such a request and the appraiser had no standing. Yet, in
       the next sentence, the trial court stated “[f]or the reasons stated above, Yellen’s motions to
       reconsider the Decision and to vacate the judgment [are] denied.” This appeal followed.

¶ 28                                        II. ANALYSIS
¶ 29       Under the government’s power of eminent domain, private property may be taken for
       public purposes subject to the constitutional requirement of just compensation for the owner
       of the property. Village of Bellwood v. American National Bank & Trust Co. of Chicago,
       2011 IL App (1st) 093115, ¶ 18. Condemnation of a defendant’s property, and compensation
       for that property, is achieved via statutory process provided under the Eminent Domain Act
       (735 ILCS 5/7-100 et seq. (West 2002)) (Act). The first step of the process is the filing of a
       condemnation petition with the circuit court. The value of the property is the fair market
       value of the property on the date that the condemnation petition is filed, as determined by a
       jury under the condemnation process. City of Lake Forest, 52 Ill. App. 3d at 895. Title and
       the right of the government entity to occupy the property does not vest until this valuation
       process is complete and payment has been deposited. Forest Preserve District v. First
       National Bank of Franklin Park, 2011 IL 110759, ¶ 40.
¶ 30       Over the past century, when the taking actually occurs has been described by our supreme
       court as a “somewhat amorphous question.” Forest Preserve District v. West Suburban Bank,
       161 Ill. 2d 448, 455 (1994). That court held that, “in one sense, a taking occurs in the context
       of a condemnation proceeding at the time of filing the complaint,” but noted “[t]hat is the
       point in time when the property is valued” and that “title acquired upon payment of just
       compensation relates back to the time of filing the complaint.” Id. Therefore, the court


                                                  -7-
       concluded that, “as a matter of legal fiction,” the property owners “indeed suffered a taking”
       at the time of the complaint. Id.
¶ 31        This “amorphous question” was recently considered again by our supreme court in
       Franklin Park, 2011 IL 110759. The court definitively found “that a taking in Illinois for the
       purposes of applying Kirby [(Kirby Forest Industries, Inc. v. United States, 467 U.S. 1
       (1984))] occurs on the date that the government (1) deposits the amount of compensation that
       has been ascertained and awarded, and (2) acquires title and the right to possess the
       property.” (Emphasis in original.) Franklin Park, 2011 IL 110759, ¶ 40. The court
       emphasized that prior rulings and comments placing the time of a taking as of the date of the
       filing of the petition for condemnation merely held that the date of filing was the date used
       for determining the value of the property and did not disturb these rulings on that issue. Id.
       ¶¶ 41-43.
¶ 32        The Franklin Park court further explained that, if a taking occurred any time prior to the
       payment of compensation and transfer of title, it would render the condemnation process
       unconstitutional. Id. ¶ 49. The court added that the government’s ability to abandon a
       condemnation proceeding lends additional support to its conclusion because it would be
       illogical to allow the government to abandon the proceeding if the taking already occurred.
       Id. ¶ 59. This court recently followed this reasoning in permitting the government to abandon
       its petition, even after the parties had reached a settlement and agreed orders were entered
       because possession had not yet been taken. Bellwood, 2011 IL App (1st) 093115, ¶¶ 18-35.
¶ 33        As in the instant matter, the taking does not necessarily end proceedings. Where a party
       alleges an interest in the property, it may seek apportionment of the condemnation award by
       petition to the court after the plaintiff has taken possession. 735 ILCS 5/7-106 (West 2002).
       Tenants under a valid leasehold hold such a valid interest in the property to be classified as
       owners in the constitutional sense and are entitled to compensation. Department of Public
       Works & Buildings v. Metropolitan Life Insurance Co., 42 Ill. App. 2d 378, 384 (1963). For
       valuation purposes, the fair market value is ascertained as of the date of the filing of the
       condemnation action and does not include “ ‘any element resulting subsequently to or
       because of the taking.’ ” Metropolitan Life, 42 Ill. App. 2d at 393-94 (quoting Olson v.
       United States, 292 U.S. 246, 256 (1934)).
¶ 34        In reviewing a condemnation action, evidentiary issues do not constitute reversible error
       when there is sufficient evidence provided by both sides and there is ample opportunity to
       review the conflicting evidence. Department of Transportation v. Bolis, 313 Ill. App. 3d 982,
       985-86 (2000). However, purely legal questions are reviewed under a de novo standard of
       review. Franklin Park, 2011 IL 110759, ¶ 24. Likewise, the interpretation of the terms of a
       lease is a question of law, and where doubt or uncertainty exists as to the meaning of the
       language used in a lease, it should be construed against the lessor and in favor of the lessee
       to find the rational and probable agreement between the parties. Sears, Roebuck & Co. v.
       Charwil Associates, Ltd. Partnership, 371 Ill. App. 3d 1071, 1076 (2007).
¶ 35        Yellen argues that the trial court must be reversed in this case because the lease ended
       prior to the date of the taking and Nandorf held no leasehold interest at that time. Yellen
       refers to the language from Franklin Park to emphasize that there is no taking until


                                                -8-
       compensation has been paid and title has been acquired by the governmental entity. He
       asserts that, until that point, any party with an interest in the property is free to use it as if
       there was no condemnation action. Therefore, Yellen contends, the trial court erred in
       granting apportionment of the condemnation award because Nandorf’s lease expired on May
       12, 2007, and the taking occurred on July 16, 2007, at which time Nandorf had no interest
       in the property.
¶ 36       We agree. As Yellen noted during oral argument, the trial court appears to have confused
       the issues of a condemnation award and damages sounding in negligence for the demolition
       company’s damaging the subject property. Without an interest in the property at the time of
       the taking, the inability of Nandorf to use and enjoy the property is irrelevant under the
       Eminent Domain Act and is, instead, an issue properly pursued under tort law. Nandorf
       brought a negligence action against the demolition company for the damage it caused that
       interrupted Nandorf’s use of the building for its business and was successful in obtaining a
       favorable judgment that included payment to Nandorf of the bonus value of the expired
       leasehold interest as calculated by Enright and lost profits, thereby making it whole. Yellen
       correctly argues that it would be error to permit Nandorf to also receive an apportionment
       of the condemnation award, not only because it had no leasehold interest in the property at
       the time of taking, but also because Illinois courts have long recognized that a plaintiff may
       have only one satisfaction for an injury. Dial v. City of O’Fallon, 81 Ill. 2d 548, 558 (1980).
¶ 37       As addressed above, regardless of whether Nandorf received any other award, the
       Franklin Park court clearly affirmed the long-standing principle of eminent domain
       jurisprudence that the date of the taking controls. The parties, including Nandorf, and the trial
       court all explicitly agree that the lease expired on May 12, 2007, and the taking occurred on
       July 16, 2007. This fact has been repeated throughout the trial proceedings, the trial court’s
       order, and the parties’ briefs and at oral argument. Accordingly, this court concludes that
       Nandorf had no leasehold interest on the date of the taking and no right to apportionment of
       the condemnation award and the trial court erred in apportioning the award.
¶ 38       Despite Nandorf’s admission that the leasehold ended on May 12, 2007, it continued to
       advance arguments in an effort to support its conflated argument that the trial court
       mistakenly accepted. None of these arguments are supported by fact or case law, and they fail
       to overcome the clear delineation that the leasehold ended prior to the date of the taking.
       These arguments are all subsumed by the clear authority provided by the Franklin Park court
       and the line of cases before it, that the absence of a property right eclipses any right to any
       portion of the condemnation award to Nandorf.
¶ 39       In addition, Nandorf’s assertions that it is entitled to the “fair cash rental value” of the
       leasehold minus the rental rate actually being paid or that an option to renew is also valued
       and there exists a presumption that a tenant will exercise its right to renew are not well taken.
       Nor is the now irrelevant, supposedly “uncontroverted testimony” of Nandorf’s expert on the
       value of the lease, especially as it was merely as to the market value and not, as is required,
       the fair cash rental value. See Department of Public Works & Buildings v. Bohne, 415 Ill. 253
       (1953). Furthermore, there was no option to renew the lease remaining that could even have
       triggered a right to condemnation proceeds.


                                                  -9-
¶ 40       Facing the bar imposed by Franklin Park on receiving an apportionment of the
       condemnation award in the absence of holding a property right, Nandorf, which, according
       to the record and statements made by counsel in oral argument, has been involved in prior
       condemnation actions, shifts its focus from the taking to the valuation of the leasehold. It
       contends, without authority, that “it is not the expiration of the lease which is controlling.
       Rather, it is the unexpired term of the lease due to the interruption by the damage event and
       protracted by Mr. Yellen’s conduct which is controlling.” Nandorf concludes that Yellen’s
       actions precluded it from using and enjoying its leasehold and deriving the market value of
       the leasehold as of the date of valuation. Again, it is the termination of Nandorf’s leasehold
       interest that is the cause of Nandorf being precluded from receiving an apportionment of the
       condemnation proceeds, not Yellen’s conduct.
¶ 41       Nandorf next maintains that the trial court properly rejected Yellen’s argument that the
       lease terminated due to the damage to the building because Yellen did not repair the building,
       did not provide any notice of termination of the lease, and continued to act as though
       Nandorf was his tenant. Disregarding its own acknowledgment that the lease terminated
       before the taking, Nandorf continues to claim it was a tenant after that date.
¶ 42       Reviewing the lease de novo, we look to paragraph 1l. It states, in pertinent part: “In case
       the Premises shall be rendered untenatable by *** casualty, Lessor may, at his option,
       terminate this lease or repair the Premises within sixty days. If Lessor does not repair the
       Premises within said time *** the term hereby created shall cease and determine.” Testimony
       introduced by Nandorf merely recounts that Yellen would have liked to repair the building,
       had spoken to an insurance company and determined that the cost of repairing the collapsed
       roof and wall of the building was prohibitive. Yellen’s decision not to attempt repairing the
       building is not subject to debate as paragraph 11 gives him sole discretion regarding repair
       of a casualty loss. Further, there is no conceivable way that the insurance proceeds,
       architectural work, contractor mobilization, ordering and receiving construction materials,
       obtaining necessary city permits and the completion of the extensive repairs could have been
       accomplished within 60 days. Also, there is nothing in the lease that required Yellen to give
       any notice of termination, and pursuant to paragraph 11, the termination was self-effectuating
       as the 60-day repair time limit had expired.
¶ 43       Nandorf also argues that Yellen’s requests that Nandorf maintain or repair the property
       evidenced a continuing lessor-lessee relationship. As the building was in danger of further
       collapse, access to it was denied and it was boarded up. Not wanting to cease operations at
       the site, Nandorf kept a donation box adjacent to the building. Nandorf’s brief and comments
       at oral argument described Yellen’s requests that Nandorf keep the area around the donation
       box free of debris, clear away snow, board up and secure the building to prevent the theft of
       Nandorf’s property in the building that could not be removed because of the unsafe condition
       of the building and, generally, to limit liability. These requests were characterized at oral
       argument as merely seeking the removal of an attractive nuisance at the property. But the
       requests in no way prove the existence of any ongoing tenancy relationship between Yellen
       and Nandorf after May 12, 2007, and Nandorf offers no legal support for such a result.
¶ 44       In its last gambit, Nandorf contends that by making repairs and maintaining the property
       as requested by Yellen, making rent payments after the demolition accident, and remaining

                                                -10-
       in possession of the property by leaving its property in the building, it acted as a holdover
       tenant. From this, Nandorf claims that it was treated as a holdover tenant on a year-to-year
       basis for the remainder of the lease until its expiration on May 12, 2007. As discussed above,
       Nandorf did not hold a leasehold interest in the property. It did not occupy the property or
       have possession of the property. Nandorf’s business equipment and inventory were left in the
       building because of the extensive damage that collapsed the roof and wall of the building
       making it so dangerous that no one was permitted within it. In addition, performance of the
       maintenance and repairs requested by Yellen was acknowledged by Nandorf as necessary to
       avoid a public nuisance and limit liability.
¶ 45       In presenting these arguments, Nandorf does not provide citation to any supporting case
       law beyond general applications of the law of holdover tenancy or contract interpretation
       cases in its attempt to overcome the clear holding in Franklin Park. Nandorf cites Bransky
       v. Schmidt Motor Sales, Inc., 222 Ill. App. 3d 1056 (1991), and Hately v. Myers, 96 Ill. App.
       217 (1901), for the proposition that a commercial tenant who retains possession of the
       premises and maintains the payment of rent with the consent of the landlord establishes a
       year-to-year tenancy. However, neither of these cases involved a condemnation action and
       the facts in this case do not demonstrate that Nandorf met these elements for a holdover
       tenancy.
¶ 46       When a tenant maintains possession after the termination of a lease, “[a] holdover
       tenancy is created when a landlord elects to treat a tenant, after the expiration of his or her
       lease, as a tenant for another term upon the same provisions contained in the original lease.
       Only the lessor, not the lessee, has the right to decide whether to treat the lessee as a holdover
       tenant.” Roth v. Dillavou, 359 Ill. App. 3d 1023, 1027 (2005). Nandorf made multiple oral
       and written requests that Yellen grant it two additional options to extend the lease for five
       years each. Yellen, in his discretion, rejected those requests and, as lessor, those denials are
       added support to the conclusion that no holdover tenancy was ever formed between Nandorf
       and Yellen.
¶ 47       Furthermore, Nandorf ’s reading of paragraph 11 of the lease can in no way establish a
       holdover tenancy. The language of paragraph 11 clearly states that if the lessor did not repair
       the premises within 60 days of the damage accident, the “term hereby created shall cease and
       determine.” If repairs were ongoing, the lease only provides for abatement of rent for the
       portion not being used during the time of repair. The arguments concerning the lease terms
       and the actions of the parties do not change the fact that no repair of the building occurred
       within 60 days of its damage, or the fact that no option to renew was ever granted by Yellen
       that extended the May 12, 2007, termination date. On this record, it is not possible for this
       court to conclude that Nandorf would renew its tenancy.
¶ 48       The value of the leasehold is of no import if that leasehold interest does not exist on the
       date of the taking. Without such a surviving interest, it also is of no import if a tenant lost its
       use and enjoyment of its property interest because of decisions related to the condemnation.
       Nandorf does not provide any case law on point to support its claim that the leasehold value
       survives. Instead it tries to conflate decisions that talk about the date for establishing value
       in condemnation proceedings or that generally discuss the discredited notion that Nandorf
       was a holdover tenant.

                                                  -11-
¶ 49        Nandorf was successful in conflating the date of the demolition damage with the date of
       the taking before the trial court, but we reject its arguments and reverse the judgment of the
       trial court in favor of Nandorf and order the entirety of the $380,000 awarded for the
       leasehold interest and the $99,045.81 reimbursement for gross rent paid be remitted to Yellen
       without offset. Contrary to Nandorf’s argument, case law is clear that it is the expiration of
       the lease that is controlling, not the unexpired term or the actions of the parties. Nandorf
       admits and cannot escape the fact that it did not hold an interest in the property at the time
       of the taking and the trial court erred in granting Nandorf any apportionment of the
       condemnation award.
¶ 50        Additionally, we reverse the award of $6,500 granted to Enright as payment for her
       services related to the jury trial. Enright is not a party to the action and has no standing in this
       case. She is not an owner entitled to compensation under Metropolitan Life; she does not and
       cannot claim any valid interest in the property. There is nothing in the record that addresses
       imposing or shifting costs attributable to her work, nor is there anything that explains or
       supports the justification that she receive any portion of the condemnation award proceeds.
       Yellen notes, and Nandorf concedes, that in the trial court’s August 29, 2011, memorandum
       decision and order, it agreed with Yellen. Nandorf claims that the trial court granted Yellen’s
       motion on this issue. However, as Yellen argues, the trial court’s order denied his motion to
       reconsider in full. The trial court clearly, and correctly, explicitly stated its agreement with
       Yellen’s motion on this issue but, inexplicably, erred in completing its written order. This
       court can come to no other conclusion. Accordingly, the trial court’s apportionment of the
       condemnation award is in error. We reverse the trial court’s order and order any and all
       apportioned proceeds related to the taking be remitted to Yellen.

¶ 51                                   III. CONCLUSION
¶ 52       The judgment of the trial court is reversed and the matter is remanded for the trial court
       to order that the apportioned condemnation award funds of $380,000 for the leasehold
       interest, $99,045.81 reimbursement for gross rent paid, and $6,500 for fees to Enright be
       disgorged and remitted in full to Yellen without offset.

¶ 53       Reversed and remanded.




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