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.,

. 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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¶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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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. 4 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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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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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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¶ 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."

8 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

9 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

10 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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"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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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.,

. 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,

. 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,

.

13 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,

. 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,

. "Since defendant's debt had

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

A.M. Realty,

.

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

the end of the lease" (A.M. Realty,

). Although

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

), 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,

(2009) (a holding is "essential

to the disposition of the cause"); People v. Vesey,

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

Heelan,

(an issue that "we necessarily had to

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

14 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,

. Thus, we remanded for further proceedings on the

merits. A.M. Realty,

.

¶ 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

15 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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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,

(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. 18 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.

19 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.

20 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

21 No. 1-15-1087

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,

("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,

(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.,

(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,

(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.,

(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,

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

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

. An appellant's failure to file a timely notice leaves this

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

(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,

.

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,

,

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,

.

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

rules that govern statutory interpretation. VC&M Ltd.,

;

Hollywood Boulevard Cinema, L.L.C. v. FPC Funding II, L.L.C.,

. Under these rules, our primary objective is to ascertain and

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

; Hollywood Boulevard,

. 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.,

; Hollywood Boulevard,

. 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,

(citing

Friedman v. Thorson,

(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,

(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,

.

¶ 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.,

(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,

(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,

. 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,

("Absent a final judgment, we lack jurisdiction over [appellant's] appeal under Rule 303."). See also F.H. Prince,

("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,

. 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,

.

¶ 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,

(citing Friedman,

). 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,

, ¶ 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,

, 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,

(2010) (citing Outboard

Marine Corp. v. Liberty Mutual Insurance Co.,

(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,

-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,

-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.,

. 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,

. "In other words, there is no

32 No. 1-15-1087

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

, ¶ 15. "'Mere speculation, conjecture or guess is insufficient to

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

(1999) (citing Sanchez v. Firestone Tire & Rubber Co.,

(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,

(2002) (quoting Luu v. Kim,

(2001)).

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

motion. Pekin Insurance,

(citing Outboard Marine.

(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.,

.

¶ 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,

. However, we held that

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

A.M. Realty,

. Although our opinion was

limited to the issue of standing (A.M. Realty,

),

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,

(2009) (a holding is "essential to the disposition of the

cause"); People v. Vesey,

("dicta [is]

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

(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,

.

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,

. 34 No. 1-15-1087

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

A.M. Realty,

. 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,

,

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,

.

¶ 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,

. 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,

. "Since defendant's debt had allegedly

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

Realty,

. 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.

37