{ "id": 173503, "name": "ROBERT F. COLEMAN, as Principal of Robert F. Coleman and Associates, Plaintiff-Appellant, v. MADISON TWO ASSOCIATES et al., Defendants-Appellees", "name_abbreviation": "Coleman v. Madison Two Associates", "decision_date": "1999-09-10", "docket_number": "No. 1-98-1064", "first_page": "570", "last_page": "582", "citations": [ { "type": "official", "cite": "307 Ill. App. 3d 570" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "29 Ill. App. 449", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4973641 ], "year": 1888, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-app/29/0449-01" ] }, { "cite": "14 A.D.2d 264", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3040832 ], "year": 1961, "pin_cites": [ { "page": "265", "parenthetical": "\"the words, 'provided, however,' are deemed to denote the expression of a limitation or exception\"" } ], "opinion_index": 0, "case_paths": [ "/ad2d/14/0264-01" ] }, { "cite": "220 N.Y.S.2d 434", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1961, "pin_cites": [ { "page": "436", "parenthetical": "\"the words, 'provided, however,' are deemed to denote the expression of a limitation or exception\"" } ], "opinion_index": 0 }, { "cite": "55 Tenn. App. 122", "category": "reporters:state", "reporter": "Tenn. App.", "case_ids": [ 8506593 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "129-30", "parenthetical": "the words, \"provided, however,\" are \"recognized words of art\" establishing a condition precedent" }, { "page": "851", "parenthetical": "the words, \"provided, however,\" are \"recognized words of art\" establishing a condition precedent" } ], "opinion_index": 0, "case_paths": [ "/tenn-app/55/0122-01" ] }, { "cite": "657 N.E.2d 1095", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "Northern Trust" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927648 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "367", "parenthetical": "Northern Trust" }, { "page": "367" }, { "page": "367" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0355-01" ] }, { "cite": "578 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "Anderson" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 261", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498587 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "267", "parenthetical": "Anderson" }, { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0261-01" ] }, { "cite": "668 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "Grant" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159555 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "1024", "parenthetical": "Grant" }, { "page": "1025" }, { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/1011-01" ] }, { "cite": "486 N.E.2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "109 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126475 ], "year": 1985, "pin_cites": [ { "page": "240-41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0236-01" ] }, { "cite": "366 N.E.2d 1096", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "Arendt" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387178 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "566", "parenthetical": "Arendt" }, { "page": "566-67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0564-01" ] }, { "cite": "682 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351003 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "174" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0171-01" ] }, { "cite": "694 N.E.2d 1108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222605 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "600" }, { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0593-01" ] }, { "cite": "585 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597145 ], "year": 1991, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0001-01" ] } ], "analysis": { "cardinality": 942, "char_count": 29464, "ocr_confidence": 0.817, "pagerank": { "raw": 9.074116079210556e-08, "percentile": 0.5052887253272295 }, "sha256": "13e29f84e2fc1c13c66565dba2dcfc0cdad8d88137dc9f3e232c3ad84f378cf3", "simhash": "1:f27e9fc0ba93768c", "word_count": 4638 }, "last_updated": "2023-07-14T21:00:41.446378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT F. COLEMAN, as Principal of Robert F. Coleman and Associates, Plaintiff-Appellant, v. MADISON TWO ASSOCIATES et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPlaintiff Robert E Coleman sought a declaratory judgment against, and monetary damages from, the following defendants: Madison Two Associates (Madison Two), the owner of the building in which plaintiffs law firm subleased office space; Hines Chicago Associates (Hines), Madison Two\u2019s managing partner; and NCNB National Bank, NationsBank and Nationbanc Services (collectively, NCNB), the prime leaseholder and plaintiffs sublessor. Plaintiff appeals the dismissal of his amended complaint, as amended, claiming that (1) NCNB breached its sublease with him in failing to give him proper notice of early termination of its \u201cUnderlying Lease\u201d with Madison Two, its lessor; (2) the sublease and its consents to sublease required that Madison Two demand attornment as a condition precedent to termination of the sublease; and, alternatively, (3) Madison Two\u2019s letter proposing a new lease term was a demand for attornment which plaintiff accepted.\nThe record reflects that on June 30, 1986, NCNB leased space on the fifty-sixth floor of the building known as \u201cThree First National Plaza\u201d (Building) from Madison Associates, then owner of the Building. On March 19, 1990, and on June 20, 1990, Madison Two, as successor in interest to Madison Associates, and NCNB executed two amendments to the Underlying Lease. The first amendment added property located on the 20th floor of the Building to the Underlying Lease and then substituted the original property on the fifty-sixth and twentieth floors with property located on the fifty-third floor. The second amendment stated, \u201c[t]he New Premises [on the fifty-third floor] shall be substituted for the Original Premises [on the fifty-sixth and twentieth floors] and all references in the Lease to the term \u2018leased premises\u2019 shall be deemed to be to the New Premises.\u201d The second amendment further provided:\n\u201cEither Landlord or Tenant may elect to terminate the Lease effective as of May 1, 1998 (\u2018Early Termination Date\u2019) by giving not less than twelve (12) months\u2019 prior written notice to the other, in which case the Lease shall terminate on the Early Termination Date.\u201d\nOn February 15, 1991, NCNB sublet office space on the fifty-third floor of the building to plaintiff, that term to commence on March 1, 1991, and end on September 30, 2000, \u201cor on such earlier date upon which said term may expire or be canceled or terminated pursuant to any of the conditions or covenants of this Sublease or the Underlying Lease or pursuant to law.\u201d The sublease also provided that it would \u201cbe subject and subordinate to all of the terms, covenants, conditions and provisions of the Underlying Lease. Copies of the Underlying Lease have been delivered to and examined by Sublessee and made part of this Sublease Agreement.\u201d (Emphasis in original.) Pursuant to the terms of the sublease, communications and notices between NCNB and plaintiff were required to \u201cbe in writing and by phone facsimile simultaneously and shall be given or made by registered or certified mail.\u201d The sublease further provided that \u201cSublessor shall, no later than three (3) days after receipt thereof, give to Sublessee a copy of each notice and demand received from the Underlying Landlord concerning the Subleased premises and shall within such time give to the Underlying Landlord a copy, or the substance of, each notice and demand received from Sublessee concerning the Subleased Premises.\u201d Madison Two (through Hines), NCNB and plaintiff then entered into an agreement entitled \u201cConsent to Sublease.\u201d On January 3, 1995, NCNB and plaintiff amended the sublease, adding additional space adjacent to the original premises, extending the term of the sublease through February 28, 2001, and also providing that \u201c[e]xcept as hereto amended, the Sublease will continue in full force and effect in accordance with its terms. This Amendment shall not affect or limit Sublessor\u2019s early termination rights under the Underlying Lease.\u201d Plaintiff, NCNB and Madison Two (through Hines) executed a second \u201cConsent to Sublease\u201d which contained virtually the same language as the first \u201cConsent to Sublease.\u201d\nOn January 15, 1997, NCNB notified Madison Two of its intention to \u201cexercise[ ] its right to an early termination to be effective May 1, 1998,\u201d reminding Madison Two that it was \u201ccurrently subleasing this space to [plaintiff] and, via a copy of this letter, [were] notifying him of [its] intention to proceed with this early termination.\u201d Notwithstanding the letter\u2019s statement that a copy was sent to plaintiff, he alleges that he never received notice of NCNB\u2019s intent to terminate early the Underlying Lease with Madison Two.\nSeveral months later, in the spring of 1997, plaintiff met with representatives of Hines to discuss leasing from Madison Two additional space on the fifty-third floor. Hines agreed to present the additional space, which was leased to another, when, and if, it became available. At this time, Hines did not inform plaintiff that NCNB had opted for early termination of the Underlying Lease. Rather, Hines suggested that, should the additional space become available, Madison Two might be interested in restructuring plaintiff\u2019s sublease as a direct lease covering both the subleased premises and the additional space for a five-year term.\nPlaintiff claims that it was not until about September 15, 1997, that he first learned of NCNB\u2019s intention to end the Underlying Lease on the early termination date, information that came from Theodore J. Minorini, Hines\u2019 representative. Minorini gave plaintiff a copy of NCNB\u2019s January 15, 1997, letter. On September 16, 1997, in a letter to plaintiff signed by Minorini, Hines submitted a \u201clease proposal.\u201d The letter continued, \u201c[a]s you have requested I have given you two options with the [first] being subject to an existing tenant\u2019s rights.\u201d The \u201clease proposal,\u201d which was attached to the letter, set forth the two \u201coptions\u201d: the first option covered leased premises currently occupied by another tenant and was contingent on that tenant \u201cnot electing to renew its current lease\u201d; the second option was for the premises already occupied by plaintiff. The \u201clease proposal\u201d further specified a term for \u201c[five (5) years commencing May 1, 1998.\u201d Hines\u2019 \u201cproposal\u201d also contained the following \u201cqualifications\u201d: it was \u201cnonbinding,\u201d valid for only 30 days, could be withdrawn at any time without notice by Madison Two, and was not \u201clegally\u201d binding \u201cuntil such time as both parties formally execute and deliver a lease document.\u201d\nOn about October 8, 1997, plaintiff notified Minorini that he accepted Hines\u2019 offer without qualification or modification; however, Minorini telephoned plaintiff on October 17, 1997, advising him that Madison Two had decided to lease the premises occupied by plaintiff to another tenant, a financial institution, currently leasing space on the fifty-third floor contiguous to plaintiffs premises. In an October 28, 1997, letter, Hines responded to plaintiff that its \u201clease proposal\u201d was not a \u201cdemand\u201d for attornment; and notified plaintiff that it \u201chad not made such election or demand\u201d to attorn. Nevertheless, Hines\u2019 letter reminded plaintiff that it had \u201csuggested alternative space in the building to suit [plaintiffs] needs\u201d and indicated its willingness to discuss that alternative. Hines also suggested that any issues concerning the sublease should be directed to NONE, plaintiffs sublessor.\nOn November 5, 1997, plaintiff filed suit against the several defendants, alleging five grounds for declaratory relief: (1) the early termination clause contained in NCNB\u2019s Underlying Lease with Madison Two did not cover the premises on the fifty-third floor; (2) NCNB\u2019s notice of early termination was from an entity entitled \u201cNationsBank Services\u201d and therefore did not comport with the Underlying Lease requirements; (3) Hines\u2019 September 16, 1997, letter containing the \u201clease proposal\u201d was, in reality, a demand to attorn which plaintiff accepted; (4) alternatively, if the letter was not a demand to attorn, both \u201cconsent to sublease\u201d agreements required that plaintiff be given the opportunity to attorn before the sublease could terminate early; and (5) alternatively, if Madison Two had discretion to demand attornment from plaintiff, it breached its covenant of \u201cgood faith and fair dealing\u201d by exercising that discretion arbitrarily and capriciously.\u201d Plaintiff\u2019s complaint sought only declaratory relief to prevent the termination of his sublease.\nThereafter, Madison Two and NCNB both moved to dismiss plaintiffs complaint. On January 17, 1998, the circuit court granted both motions without prejudice, with leave to file an amended complaint. On February 17, 1998, plaintiff filed his amended complaint, which was substantially the same as his original complaint, adding only a second count which sought damages from NCNB for \u201cfailing to give plaintiff prior notice of early termination when it gave notice to the prime landlord,\u201d thereby breaching its \u201cobligation to \u2018use its best efforts *** to assist in relations with the Underlying Landlord.\u2019 \u201d After filing his amended complaint, plaintiff also was granted leave to amend by including a request for damages in excess of the minimum jurisdictional amount. Following argument, the court dismissed plaintiffs amended complaint, as amended, for failure to state a cause of action, from which plaintiff appeals.\nUnder section 2 \u2014 615 of the Code of Civil Procedure, no action should be dismissed on a motion for failure to state a cause of action unless it clearly appears that no set of facts can be proved under the pleadings which will entitle plaintiff to relief. 735 ILCS 5/2 \u2014 615 (West 1996); People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11, 585 N.E.2d 51 (1991). For the purpose of such a motion, all well-pleaded facts in the complaint are admitted as true, together with all reasonable inferences which may be drawn from them. Peter J. Hartmann Co. v. Capital Bank & Trust Co., 296 Ill. App. 3d 593, 600, 694 N.E.2d 1108 (1998); Barille v. Sears Roebuck & Co., 289 Ill. App. 3d 171, 174, 682 N.E.2d 118 (1997). The dismissal of a complaint with prejudice under section 2 \u2014 615 involves a question of law as to whether the complaint sets forth facts which, if true, would entitle plaintiff to relief; accordingly, the standard of review of the circuit court\u2019s dismissal is de novo. Peter J. Hartmann Co., 296 Ill. App. 3d at 600; Barille, 289 Ill. App. 3d at 174.\nI\nPlaintiff initially contends the circuit court erred in dismissing his complaint because NCNB breached its contractual duty to give him \u201cproper and timely\u201d notice of NCNB\u2019s exercise of its right to early termination. Plaintiff also premises NCNB\u2019s \u201cduty\u201d on the sublease requirement that NCNB \u201cuse its best efforts to assist in. relations with the landlord.\u201d NCNB responds that neither the sublease nor the Underlying Lease expressly required it to tender notice of early termination to its subtenant, plaintiff.\nThe second amendment to the Underlying Lease between Madison Two and NCNB provided that \u201c[e]ither Landlord or Tenant may elect to terminate the Lease, effective as of May 1, 1998 (\u2018Early Termination Date\u2019), by giving not less than twelve (12) months\u2019 prior written notice to the other.\u201d Although not disputing the validity of NCNB\u2019s election, plaintiff maintains that the sublease required NCNB to give 12 months\u2019 notice of its election to plaintiff as well as Madison Two, pointing to a provision in the sublease which, he argues, requires NCNB to give him a copy of any notice between Madison Two and NCNB within three days of its receipt or issuance.\nThe portion of the sublease upon which plaintiff relies provides that \u201cSublessor shall, no later than three (3) days after receipt thereof, give to Sublessee a copy of each notice and demand received from the Underlying Landlord concerning the Subleased premises and shall within such time give to the Underlying Landlord a .copy, or the substance of, each notice and demand received from Sublessee concerning the Subleased Premises.\u201d (Emphasis added.) Plaintiff relies further upon a sublease provision that requires all. notices and communications between NCNB and plaintiff \u201cto be in writing and by phone facsimile simultaneously,\u201d contending that the sublease imposed upon NCNB the additional express duty to give 12 months\u2019 written notice to plaintiff as to its election of early termination.\nNCNB responds, however, that because it did not receive the notice of early termination from Madison Two, but sent it to Madison Two, it had no obligation to tender such notice to plaintiff within the parameters of time set out in the sublease. NCNB insists .that it was required only to tender to plaintiff \u201ca copy, of each notice and demand received from the Underlying Landlord concerning the Subleased premises\u201d (emphasis added); because the notice of early termination was not received from Madison Two, but was tendered to Madison Two, NCNB argues that it was under no contractual, obligation to supply plaintiff with a copy of its notice to Madison Two.\nAlthough the Underlying Lease between Madison Two and NCNB requires that NCNB give 12 months\u2019 notice of its election only to Madison Two, plaintiff\u2019s sublease specifically makes reference to and incorporates the terms of the Underlying Lease. Th,e sublease expressly states that \u201ccopies of the Underlying Lease have been delivered to and examined by Sublessee and made part of this Sublease Agreement.\u201d Granted, a sublessee possesses neither privity of estate nor privity of contract with the landlord (Arendt v. Lake View Courts Associates, 51 Ill. App. 3d 564, 566, 366 N.E.2d 1096 (1977) (Arendt)), and the sublessee holds its estate \u201csubject to\u201d the terms of an original lease; nevertheless, a sublease may contain terms, stronger than the \u201csubject to\u201d language, such as a clause specifically incorporating certain provisions of the original lease. See, e.g., Wright v. Mr. Quick, Inc., 109 Ill. 2d 236, 240-41, 486 N.E.2d 908 (1985). Such incorporation of terms and covenants was undertaken here, by virtue of the following language in the sublease:\n\u201cThe terms, covenants, conditions and provisions except renewal options (if any) contained in the Underlying Lease (including, but not limited to the remedies provided thereunder) are incorporated herein by reference, and shall, as between Sublessor and Sublessee[,] constitute the terms, covenants, conditions and provisions of this Sublease, except to the extent that they are inapplicable to, inconsistent with, or modified by the provisions of this instrument. The parties agree to observe and perform the terms, covenants, conditions, and provisions on their respective parts to those terms, covenants, conditions and provisions of the Underlying Lease which are incorporated herein.\u201d (Emphasis added.)\nNo reason has been advanced that demonstrates any inapplicability or inconsistency of notice to the landlord of early termination in the Underlying Lease when compared to the sublease.\nBy designating the \u201cterms, covenants, conditions and provisions\u201d already in place between Madison Two and NCNB as those which govern the sublease between NCNB and plaintiff, the sublease imposed on NCNB the same obligation to \u201cobserve and perform the terms, covenants, conditions, and provisions *** of the Underlying Lease\u201d terms, which prescribed that NCNB give plaintiff at least 12-months\u2019 notice of early termination as NCNB would have been required to give Madison Two. The circuit court\u2019s dismissal of plaintiffs amended complaint, insofar as it seeks monetary damages for breach of the sublease by NCNB, was reversible error.\nPlaintiff also argues that the sublease obligated NCNB to \u201cuse its best efforts *** to assist in relations with the Underlying Landlord\u201d and insists that NCNB breached this duty when it failed to advise him prior to, or at least contemporaneously with, its notification to Madison Two of its election. NCNB responds that the \u201cbest efforts\u201d clause upon which plaintiff relies is legally insufficient to create an independent duty on the part of NCNB to provide plaintiff with written notice of early termination, particularly when the plain and unambiguous language of the sublease fails to impose such a duty upon NCNB. Plaintiff maintains that the subject clause establishes an independent duty and obligation on NCNB to use its best efforts to facilitate communication between him and Madison Two.\nA \u201cbest efforts\u201d undertaking is similar to the exercise of good faith implied in all contracts. Grant v. Board of Education, 282 Ill. App. 3d 1011, 1024, 668 N.E.2d 1188 (1996) (Grant). Although the question of whether a party has satisfied its \u201cbest efforts\u201d or good-faith obligation is one of fact (Grant, 282 Ill. App. 3d at 1025), notions of fair dealing and good faith by themselves do not form the basis for tort relief. Anderson v. Burton Associates, Ltd., 218 Ill. App. 3d 261, 267, 578 N.E.2d 199. (1991) (Anderson). The obligation of good faith and fair dealing primarily is used to determine the intent of the parties where a contract is susceptible to two conflicting constructions. Northern Trust Co. v. VIII South Michigan Associates, 276 Ill. App. 3d 355, 367, 657 N.E.2d 1095 (1995) (Northern Trust). Parties to a contract are entitled to enforce the terms of the contract to the letter and an implied covenant of good faith cannot override or modify the express terms of that contract. Northern Trust, 276 Ill. App. 3d at 367.\nHere, the terms of the Underlying Lease were specifically incorporated into the sublease as agreed to by all parties. The sublease specifically required that NCNB use its \u201cbest efforts\u201d to assist in \u201crelations\u201d between plaintiff and Madison Two. The Underlying Lease, to which the sublease was subordinate, set forth, with specificity, NCNB\u2019s notice requirements as to Madison Two. The \u201cbest efforts\u201d and \u201cassistance\u201d clauses permit the construction of the sublease sought by plaintiff, that timely notice of NCNB\u2019s election to terminate early its Underlying Lease with Madison Two would have enabled plaintiff to begin his negotiations directly with Madison Two prior to the time that Madison Two would have needed to seek other parties to take over the subject space. Plaintiff should have been allowed to pursue this theory at trial as well.\nII\nPlaintiff next asserts that Madison Two breached the consents to sublease when it allowed the early termination of the lease and resultant termination of the sublease without first giving plaintiff his \u201cright\u201d to attorn. Specifically, plaintiff maintains that both consents to sublease required that Madison Two give plaintiff the right to at-torn as a condition precedent to termination of the sublease. Madison Two responds that the language contained in the consents to sublease expressed an \u201cexception\u201d to early termination rather than a condition precedent.\nAlthough plaintiff maintains that the proviso, \u201cprovided, however,\u201d indicates a condition precedent, the entire language of the above-quoted portion of the consents to sublease reflects otherwise. Compare World Secret Service Ass\u2019n v. Travelers Indemnity Co., 55 Tenn. App. 122, 129-30, 396 S.W.2d 848, 851 (1965) (the words, \u201cprovided, however,\u201d are \u201crecognized words of art\u201d establishing a condition precedent), with In re Livingston\u2019s Estate, 220 N.Y.S.2d 434, 436, 14 A.D.2d 264, 265 (1961) (\u201cthe words, \u2018provided, however,\u2019 are deemed to denote the expression of a limitation or exception\u201d).\nThe phrase, \u201cprovided, however, that [plaintiff] agrees, at the election and upon written demand of [Madison Two] to attorn\u201d (emphasis added), operates as an exception to the simultaneous termination of the lease and sublease only if Madison Two elected and in writing demanded attornment to which plaintiff agreed. There was no such election or written demand made here to which plaintiff effectively could have agreed.\nPlaintiff also identifies a Madison Two breach of the \u201cconsents to sublease\u201d provision because it did not present plaintiff with the opportunity to attorn, which plaintiff construes as his \u201cright\u201d to attornment. The language expressly shows, however, that Madison Two had the option to \u201celect\u201d and \u201cdemand\u201d attornment; only in such case did plaintiff have the option to \u201cagree\u201d to attorn. Because Madison Two chose not to exercise its option to elect and demand attornment, plaintiff\u2019s contractual opportunity to agree to attornment never materialized.\nPlaintiff alternatively suggests that, even if Madison Two had unilateral discretion not to elect and demand attornment, it made its election in an arbitrary and capricious manner in violation of its duty to proceed in good faith. Madison Two counters that its decision to lease to a financial institution, rather than to plaintiff, was neither capricious nor arbitrary.\nGood faith between contracting parties requires one vested with contractual discretion to exercise it reasonably and not arbitrarily or capriciously; parties to a contract impliedly promise to do nothing that will destroy or injure the other party\u2019s right to receive the fruits of the contract. Grant, 282 Ill. App. 3d at 1025. Although this \u201cobligation\u201d exists in every contract in Illinois, essentially it is used as a construction aid in determining the parties\u2019 intent; vague notions of fair dealing and good faith do not form the basis for an individual tort. Anderson, 218 Ill. App. 3d at 267. The obligation of good faith and fair dealing, therefore, is utilized to determine the intent of the parties where a contract is susceptible to two conflicting constructions. Northern Trust, 276 Ill. App. 3d at 367. Parties to a contract, however, are entitled to enforce the terms of the contract to the letter and an implied covenant of good faith cannot override or modify the express terms of that contract. Northern Trust, 276 Ill. App. 3d at 367. Here, the consents to sublease made eminently clear that Madison Two had the discretion to demand attornment. The consents to sublease clearly notified plaintiff that Madison Two also had the option, upon termination of the lease, not to elect or demand attornment; plaintiff was not entitled to attornment as a matter of right.\nAccordingly, that part of plaintiffs complaint, which alleged that Madison Two breached its duty of good faith and fair dealing, properly was dismissed by the circuit court.\nIII\nPlaintiff lastly contends, alternatively, that Minorini\u2019s September 16, 1997, letter expressed, in essence, Madison Two\u2019s demand to attorn, to which plaintiff agreed. Madison Two responds that the letter from Minorini was merely a new \u201clease proposal,\u201d which was nonbinding and was timely withdrawn.\nThe September 16, 1997, letter began, \u201c[o]n behalf of Hines, I am pleased to submit a lease proposal to your firm for space at Three First National Plaza.\u201d That letter then provided plaintiff with two \u201coptions\u201d set forth in the \u201clease proposal\u201d document, which was attached to the letter. The first option covered leased premises that were currently occupied by another tenant and was contingent on that tenant \u201cnot electing to renew its current lease.\u201d The second option was for the premises already occupied by plaintiff. The \u201clease proposal\u201d further specified a term for \u201c[fjive (5) years commencing May 1, 1998.\u201d The \u201cproposal\u201d also contained the following \u201cqualifications\u201d: it was \u201cnonbinding,\u201d was valid for only 30 days, could be withdrawn at any time without notice by Madison Two, and was not \u201clegally\u201d binding \u201cuntil such time as both parties formally execute and deliver a lease document.\u201d\nAlthough plaintiff insists that the letter operated as a demand for attornment, a review of the contents of that letter and the attached \u201clease proposal\u201d demonstrates that the letter falls far short of a demand for attornment. An attornment is a continuation of the existing lease under the same conditions and continues the landlord-tenant relationship \u201cunder the term of the original tenancy.\u201d Arendt, 51 Ill. App. 3d at 566-67; Oswald v. Mollet, 29 Ill. App. 449, 453 (1888).\nDespite the clear language of the letter and the \u201cproposal,\u201d plaintiff insists that a question of fact remains as to Minorini\u2019s intent in writing the letter and, therefore, the circuit court erred in dismissing his amended complaint, as amended. Plaintiff argues that he should be given the opportunity to present extrinsic evidence as to Minorini\u2019s (and therefore, Madison Two\u2019s) intent.\nThe letter, however, clearly was a \u201clease proposal\u201d and not a \u201cdemand for attornment.\u201d Moreover, the content of the letter establishes that it could be withdrawn and was not \u201clegally\u201d binding until a lease was formally executed. These conditions are inconsistent with attornment. Accordingly, the circuit court did not err in dismissing this asserted ground for recovery.\nThe circuit court erred in dismissing plaintiff\u2019s claim against NCNB insofar as damages are alleged, where the language of the Underlying Lease was expressly incorporated into the sublease thereby obligating NCNB to notify plaintiff of its intent to exercise early termination of its Underlying Lease with Madison Two. The court properly dismissed plaintiffs claims against Madison Two where the consents to sublease did not require Madison Two to afford plaintiff attornment as a condition precedent to early termination of the sublease.\nReversed in part, affirmed in part, and remanded for further proceedings.\nGREIMAN and HOURIHANE, JJ, concur.\nThe consent to sublease provided, in part:\n\u201cIf, at any time prior to the expiration of the term of the Sublease, the Prime Lease shall terminate or be terminated for any reason, the Sublease shall also simultaneously terminate; provided, however, that Subtenant agrees, at the election and upon written demand of Landlord, to attorn to the Landlord upon the then executory terms and conditions set forth in the Sublease for the remainder of the term of the Sublease. The foregoing provisions of this paragraph shall apply notwithstanding that, as a matter of law, the Sublease may otherwise terminate upon the termination of the Prime Lease, and shall be self-operative upon such written demand of the Landlord and no further instrument shall be required to give effect to said provisions. Upon demand of the Landlord, Subtenant agrees, however, to execute, from time to time, documents in confirmation of the foregoing provisions of this paragraph, satisfactory to the Landlord, in which Subtenant shall acknowledge such attornment and shall set forth the terms and conditions of its tenancy. Nothing contained in this paragraph shall be construed to impair or modify any right otherwise exercisable by the Landlord, whether under the Prime Lease or any other agreement.\u201d\nPlaintiff no longer seeks declaratory judgment; he has since vacated the Building and has found alternative office space. He continues to seek damages.\nThe sublease in the instant case contained the following clause, entitled \u201cSublessor\u2019s Approval\u201d:\n\u201cWhenever pursuant to this Sublease, Sublessee shall request Sublessor\u2019s consent or approval, such consent or approval shall not be unreasonably withheld or delayed, provided that Sublessor\u2019s refusal to consent to or approve any matter or thing, whenever Sublessor\u2019s consent or approval is required or requested under this Sublease or under the Underlying Lease, shall be deemed reasonable, if inter alia the Underlying Landlord has refused to give such consent or approval. Sublessor will use its best efforts (not to include litigation against the Underlying Landlord) to assist in relations with Underlying Landlord.\u201d\nIn the case at bar, the language of the consents to sublease provided, in part:\n\u201cIf, at any time prior to the expiration of the term of the Sublease, the Prime Lease shall terminate or be terminated for any reason, the Sublease shall also simultaneously terminate; provided, however, that Subtenant agrees, at the election and upon written demand of Landlord, to attorn to the Landlord upon the then executory terms and conditions set forth in the Sublease for the remainder of the term of the Sublease. The foregoing provisions of this paragraph shall apply notwithstanding that, as a matter of law, the Sublease may otherwise terminate upon the termination of the Prime Lease, and shall be self-operative upon such written demand of the Landlord and no further instrument shall be required to give effect to said provisions.\u201d (Emphasis added.)\nIn a footnote, plaintiff also asserts that Madison Two\u2019s \u201cacceptance\u201d of notice from NGNB, which did not \u201ccomply with the terms of the Second Amendment to Lease,\u201d violated its duty of good faith and fair dealing. Plaintiff cites no authority for his position and, therefore, this argument will not be considered. See 177 Ill. 2d R. 341.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Robert F. Coleman & Associates (Kenneth Philip Ross and Sean B. Grotty, of counsel), and Pavalon & Gifford (Eugene I. Pavalon, of counsel), both of Chicago, for appellant.", "Rudnick & Wolfe, of Chicago (David G. Lynch, of counsel), for appellees Madison Two Associates and Hines Chicago Associates Limited." ], "corrections": "", "head_matter": "ROBERT F. COLEMAN, as Principal of Robert F. Coleman and Associates, Plaintiff-Appellant, v. MADISON TWO ASSOCIATES et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201498\u20141064\nOpinion filed September 10, 1999.\nRehearing denied January 10, 2000.\nRobert F. Coleman & Associates (Kenneth Philip Ross and Sean B. Grotty, of counsel), and Pavalon & Gifford (Eugene I. Pavalon, of counsel), both of Chicago, for appellant.\nRudnick & Wolfe, of Chicago (David G. Lynch, of counsel), for appellees Madison Two Associates and Hines Chicago Associates Limited." }, "file_name": "0570-01", "first_page_order": 588, "last_page_order": 600 }