{
  "id": 2527458,
  "name": "RONALD B. SHIPKA et al., Plaintiffs-Appellees and Cross-Appellants, v. GIUSEPPE INSERRA, Indiv. and d/b/a Gino's, Defendant-Appellant and Cross-Appellee",
  "name_abbreviation": "Shipka v. Inserra",
  "decision_date": "1991-03-22",
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    "judges": [],
    "parties": [
      "RONALD B. SHIPKA et al., Plaintiffs-Appellees and Cross-Appellants, v. GIUSEPPE INSERRA, Indiv. and d/b/a Gino\u2019s, Defendant-Appellant and Cross-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE LaPORTA\ndelivered the opinion of the court:\nPlaintiffs Ronald B. Shipka, L\u00e1veme Shipka, Keith Lord, and George Gelis, individually and as partners of 932 Rush Partnership, a beneficiary of La Salle National trust No. 113805, appeal from the order of the circuit court of Cook County denying attorney fees and costs in an action pursuant to a lease agreement. On appeal plaintiffs contend that the lease agreement does not require bad faith as a prerequisite for costs and attorney fees from defendant. They also contend that their actions were not barred by the fact that they commenced litigation by seeking a declaratory judgment. Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014701.\nThe record discloses that on January 4, 1990, plaintiffs filed their complaint in the chancery division of the circuit court of Cook County seeking a declaratory judgment. In that complaint plaintiffs alleged that on or about June 1, 1982, defendant had entered into a lease for his restaurant located in the basement at 932 North Rush Street in Chicago, Illinois, which lease was to terminate on February 28, 1993. The complaint further alleged that the property was subsequently purchased by La Salle National Bank with the beneficial interests in plaintiffs.\nThe complaint quoted paragraph 3 of the rider to the lease, which provides that the lessor could terminate the lease upon payment of 12 months\u2019 rent at any time after the first three years of defendant\u2019s tenancy, but no later than six months prior to the end of the lease term, only if lessor intended to demolish the building or any substantial portion of it.\nParagraph 9 of the complaint alleged that the plaintiffs as assignees under the lease intended to demolish the building, had served the tenant with written notice of the termination of the lease as of February 28, 1990, and given notice to vacate. Defendant refused to vacate the premises. Plaintiffs requested the adjudication of the rights and liabilities of the parties and that the defendant pay damages incurred by plaintiffs as a consequence of defendant\u2019s failure to vacate the premises on or before February 28,1990.\nOn March 2, 1990, plaintiffs moved for a summary judgment and for an accelerated hearing schedule, or for the setting of date for trial. In their motion plaintiffs stated that \u201cdefendant has acknowledged receipt of the written notice of Lessor\u2019s intention to demolish the building, but has stated that he will not vacate the premises at any time before February 28, 1993,\u201d the expiration date of the lease term. Plaintiffs also filed an amended complaint for declaratory judgment in which they requested that defendant \u201cpay all damages incurred by plaintiffs as [a] consequence of defendant\u2019s failure or refusal to vacate the premises on or before February 28, 1990, including the payment of reasonable attorneys\u2019 fees pursuant to paragraph 15 of the lease.\u201d\nIn their second amended complaint, filed March 9, 1990, plaintiffs alleged their rights as assignees of the lease and again requested attorney fees pursuant to paragraph 15 of the lease. On April 6, 1990, defendant filed his counterclaim in which he alleged that plaintiffs had breached the lease by their interruption of his business activities.\nAt the hearing on April 9, 1990, the trial court heard arguments on plaintiffs\u2019 motion for summary judgment. The defendant contended that there was a question of material fact whether plaintiffs\u2019 building was truly being demolished pursuant to the lease or was merely being \u201crehabbed.\u201d The trial court held, however, that \u201cfrom the depositions, affidavits and exhibits, *** no reasonable trier of fact could fail to agree that this building is intended to be substantially demolished.\u201d The court also held that the plaintiffs had \u201cprevailed on the notice provisions in the Lease as well as on the legal issue about their rights as assignors or Lessors.\u201d\nAs to the award of attorney fees and costs pursuant to paragraph 15 in the lease, plaintiffs argued that \u201cthis is clearly a generic provision in the lease which covers all situations where the Lessee is in breach and when the Lessee fails to vacate the premises on March 1.\u201d However, the trial court held:\n\u201cI think this is a situation where the suit was \u2014 although I ruled that the lessor was clearly entitled to possession, I think it was not a bad faith situation where the lessee was malicious or using bad faith to litigate.\nAccordingly, I will deny the petition for costs and fees under paragraph 15 of the lease.\u201d\nPlaintiffs contend that the trial court\u2019s refusal to award attorney fees and costs to plaintiffs was clearly erroneous. For their contention plaintiffs rely on Stride v. 120 West Madison Building Corp. (1985), 132 Ill. App. 3d 601, 606, 477 N.E.2d 1318. In that case the court allowed attorney fees to plaintiffs pursuant to a provision in a lease which required the lessee to pay\n\u201cthe fees of counsel, agents and others retained by the Lessor, incurred in enforcing the Lessee\u2019s obligations hereunder or incurred by the Lessor in any litigation, negotiation or transaction which the Lessee causes the Lessor, without the Lessor\u2019s fault, to become involved or concerned.\u201d\nThe court concluded that where allowed by contract, attorney fees may be recovered by the successful litigant (Stride, 132 Ill. App. 3d at 606-07), and because an award for attorney fees is not penal in nature, whether the parties acted in good faith is irrelevant. See also Presbyterian Distribution Service v. Chicago National Bank (1960), 28 Ill. App. 2d 147, 161, 171 N.E.2d 86.\nThe provision in the lease in our case reads as follows:\n\u201c15. Lessee shall pay upon demand all Lessor\u2019s costs, charges and expenses, including fees of attorneys, agents and others retained by Lessor, incurred in enforcing any of the obligations of Lessee under the lease or in any litigation, negotiation or transaction in which Lessor shall, without Lessor\u2019s fault, become involved through or on account of this lease.\u201d\nThere is no language in this provision that payment is conditional on the bad faith of either party, and based on Stride, the presence or absence of bad faith is irrelevant. We agree with plaintiffs that they are entitled to attorney fees and costs incurred in bringing this action.\nDefendant nevertheless maintains that the award of attorney fees in an action for declaratory judgment is inappropriate because the trial court only adjudicates the rights and liabilities of the parties. However, a court in an action for declaratory relief can within its equitable powers give other relief and dispose of issues as necessary. (See Chicago Division of the Illinois Education Association v. Board of Education (1966), 76 Ill. App. 2d 456, 473, 222 N.E.2d 243.) Indeed, it is within the power of the trial court to grant any consequential relief and dispose of the entire controversy. Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 440, 375 N.E.2d 468.\nIn this case the trial court has already given relief to plaintiffs by granting summary judgment and ordering a deadline for defendant to vacate the property. In ruling on the summary judgment motion, the court ordered plaintiff to pay to defendant certain monies due as provided in paragraph 3 of the lease rider for early termination of the lease term, to be adjusted as set out in the order. We affirm the trial court\u2019s ruling.\nWe find that plaintiffs are also entitled to attorney fees and costs pursuant to paragraph 15 of the lease to be determined on remand.\nAccordingly, the judgment of the circuit court is affirmed in part, reversed in part and the cause remanded with directions to determine plaintiffs\u2019 claims for attorney fees and costs arising from this action.\nJudgment affirmed in part, reversed in part and remanded with directions.\nMcNAMARA and EGAN, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE LaPORTA"
      }
    ],
    "attorneys": [
      "Brown & Peters, of Chicago (Robert J. Peters and Michael I. Brown, of counsel), for appellant.",
      "Segal & Segal, of Chicago (Marshall D. Segal, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "RONALD B. SHIPKA et al., Plaintiffs-Appellees and Cross-Appellants, v. GIUSEPPE INSERRA, Indiv. and d/b/a Gino\u2019s, Defendant-Appellant and Cross-Appellee.\nFirst District (6th Division)\nNo. 1\u201490\u20141178\nOpinion filed March 22, 1991.\nBrown & Peters, of Chicago (Robert J. Peters and Michael I. Brown, of counsel), for appellant.\nSegal & Segal, of Chicago (Marshall D. Segal, of counsel), for appellees."
  },
  "file_name": "0735-01",
  "first_page_order": 757,
  "last_page_order": 760
}