{ "id": 486485, "name": "UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Plaintiffs, v. OLD ORCHARD PLAZA LIMITED PARTNERSHIP et al., Defendants (Brunswick Corporation, Intervenor and Plaintiff-Appellee; Old Orchard Park Fidelity Associates Limited Partnership et al., Defendants-Appellants)", "name_abbreviation": "United States Fidelity & Guaranty Co. v. Old Orchard Plaza Limited Partnership", "decision_date": "2002-08-30", "docket_number": "Nos. 1\u201400\u20143215, 1\u201401\u20140321 cons.", "first_page": "727", "last_page": "740", "citations": [ { "type": "official", "cite": "333 Ill. App. 3d 727" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "317 Ill. App. 3d 590", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026028 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0590-01" ] }, { "cite": "164 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581931 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "977-78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "292 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725067 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0597-01" ] }, { "cite": "98 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499141 ], "year": 1981, "pin_cites": [ { "page": "250", "parenthetical": "a lease is an instrument of writing within the contemplation of the Interest Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0243-01" ] }, { "cite": "283 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182735 ], "year": 1996, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0830-01" ] }, { "cite": "12 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853293 ], "year": 1973, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0083-01" ] }, { "cite": "77 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291368 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0508-01" ] }, { "cite": "201 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477051 ], "year": 2002, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0351-01" ] }, { "cite": "284 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260422 ], "weight": 5, "year": 1996, "pin_cites": [ { "parenthetical": "USF&G I" }, { "page": "767-68" }, { "page": "774" }, { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0765-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 32546, "ocr_confidence": 0.771, "pagerank": { "raw": 8.104861872646521e-08, "percentile": 0.4677548768287263 }, "sha256": "564fffcb6788266de12afc4e73771026b7f4095e99911a57df07d83b4767692a", "simhash": "1:bf416a035b44d7ea", "word_count": 5333 }, "last_updated": "2023-07-14T19:13:04.462910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Plaintiffs, v. OLD ORCHARD PLAZA LIMITED PARTNERSHIP et al., Defendants (Brunswick Corporation, Intervenor and Plaintiff-Appellee; Old Orchard Park Fidelity Associates Limited Partnership et al., Defendants-Appellants)." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis case is before us a second time. In United States Fidelity & Guaranty Co. v. Old Orchard Plaza Limited Partnership, 284 Ill. App. 3d 765 (1996) (USF&G I) we held, inter alia, that the allegations in Brunswick Corporation\u2019s (Brunswick) second-amended complaint alleged facts sufficient to state a claim that Jerry Burin, a court-appointed receiver (Reciever), adopted a lease under which Brunswick was a lessee and, according to Brunswick, under which it was entitled to a $2 million termination payment. We reversed the trial court\u2019s dismissal of the complaint and remanded for a trial on the issue of whether Burin in fact adopted the lease.\nOn remand, Brunswick amended its complaint to substitute Old Orchard Park Fidelity Associates Limited Partnership (Old Orchard LP) in lieu of Burin based upon an April 5, 1995, unopposed order entered by the trial court which discharged Burin and which, according to Brunswick, assigned to Old Orchard LP the lease at issue. After a two-day bench trial, the trial court entered judgment in favor of Brunswick and against Old Orchard LP for the $2 million termination payment, less amounts for real estate taxes owed by Brunswick, together with prejudgment interest for a total judgment of $2,459,981.06. The trial court also awarded Brunswick a judgment for attorney fees and costs of $521,708.91.\nOld Orchard LP filed a timely notice of appeal. The following issues are before the court: (1) whether the trial court\u2019s conclusion that the Receiver adopted the lease was clearly erroneous; (2) whether the trial court\u2019s finding that Old Orchard LP assumed the Receiver\u2019s liability pursuant to the April 5, 1995, order was an abuse of discretion; and (3) whether the trial court\u2019s award of prejudgment interest and attorney fees was an abuse of discretion. For the reasons that follow, we affirm.\nI. STATEMENT OF FACTS\nBecause the facts proceeding our decision in USF&G I are relevant to the issues now before us, we restate them here in pertinent part.\nOn December 14, 1956, the United States Steel & Carnegie Pension Fund (the Fund) leased 32 acres of land and existing improvements, commonly known as Old Orchard Plaza (the Property), to International Minerals & Chemical Corporation (IMG). The lease was to expire on December 20, 2023, if all options to extend it were exercised.\nOn September 1, 1971, Brunswick acquired the leasehold estate from IMG. On April 27, 1983, Brunswick entered into a contract to sell its leasehold estate to Equity Associates (Equity). As consideration for the sale of the leasehold, Equity agreed to lease the office space Brunswick occupied at the time back to Brunswick at a below market rate pursuant to a sublease (the Lease). The Lease provided that Brunswick would occupy the office space through April 1993, at which point it would have an option to extend the term. The Lease further provided that if Brunswick vacated the premises without having exercised the option, Equity would pay Brunswick a termination payment of $2 million (the Termination Payment). The Termination Payment is the subject of the instant appeal.\nOn December 5, 1985, Equity acquired fee simple title to the Property from the Fund. The Lease with Brunswick remained in effect. In 1987, Equity sold the Property to LP Equity. A short time later, LP Equity sold the Property to Old Orchard Plaza Limited Partnership (OOPLP). Equity, LP Equity, and OOPLP are affiliates created and controlled by La Salle Partners.\nSometime prior to October 5, 1988, OOPLP sought a mortgage loan on the Property from United States Fidelity and Guaranty Company (USF&G). On October 5, 1988, USF&G received a letter from its real estate consulting firm, Piedmont Realty Advisers, stating that if Brunswick vacated the premises in April 1993, the landlord would be liable for the Termination Payment.\nOn November 30, 1988, Brunswick executed a letter, at USF&G\u2019s request, certifying that upon any foreclosure sale or conveyance in lieu thereof, Brunswick would recognize the purchaser as its landlord under the Lease as if such purchaser were the original landlord, \u201cprovided, however, that such purchaser shall in no way be liable or responsible for any alleged default by the Landlord pertaining to any period prior to the time that the purchaser acquires actual possession or control of the Property, or any portion thereof.\u201d\nOn January 6, 1989, OOPLP received two mortgage loans on the property from USF&G totalling $23.5 million. On March 1, 1992, OOPLP defaulted on the mortgages by failing to pay real estate taxes, as required under the loan documents. On May 8, 1992, USF&G accelerated OOPLP\u2019s total indebtedness. On May 12, 1992, Brunswick sent Equity and La Salle Partners written notice that it intended to vacate the office space on April 30, 1993. The notice further demanded payment of $2 million upon its vacation.\nOn July 7, 1992, USF&G filed a complaint in the chancery division of the circuit court of Cook County against OOPLR LP Equity, Equity, and La Salle Partners (the La Salle Partner defendants) alleging various fraudulent transfers of funds. The complaint sought assignment of rents and appointment of a Receiver. It specifically stated that USF&G does not seek a foreclosure \u201cat this time.\u201d On August 5, 1992, the circuit court appointed Jerry Burin as Receiver, and from that date until he was discharged, Burin demanded and received rents and managed the Property. Brunswick later sent letters demanding the Termination Payment to USF&G and Burin. All parties denied liability.\nOn March 8, 1993, Brunswick obtained leave to intervene and filed an intervenor\u2019s complaint against the La Salle Partner defendants, USF&G, and Burin. The complaint sought declaratory judgments that the Termination Payment provision was a covenant running with the land, that Brunswick had an equitable vendor\u2019s lien on the Property for the unpaid purchase price which took priority over any mortgage liens, that Burin had implicitly adopted the Lease, that the Termination Payment was an ordinary operating expense of Receivership, and that USF&G was a mortgagee in possession.\nOn April 26, 1993, USF&G settled its claim against the La Salle Partner defendants and agreed to the following terms: (1) USF&G would dismiss the claim; (2) of the nine parcels constituting the Property USF&G would release its interest in parcels 1 through 6 and foreclose only on parcels 7 through 9, which contained the Brunswick office space; (3) the La Salle Partner defendants would assert no defense and consent to the foreclosure; (4) if OOPLP went into bankruptcy, it would consent to lift the automatic stay on the foreclosure; and (5) USF&G reserved indemnity and subrogation rights against the La Salle Partner defendants for the Termination Payment. On April 30, 1993, Brunswick vacated the premises. On July 15, 1993, USF&G filed its complaint for foreclosure of parcels 7 through 9.\nOn May 21, 1993, Brunswick and the Receiver entered into a stipulation which provided in part:\n\u201c3. Brunswick asserts its claim against the Receiver only in his official capacity, and thus seeks to recover from the Receiver only to the extent that the Receiver has rent or other monies in his possession from his operation of Old Orchard Plaza or has control or possession of the real estate which is the subject of the lease or other property which can be used to satisfy Brunswick\u2019s claim.\n4. Brunswick and the Receiver stipulate and agree that the Receiver\u2019s right and duty to use any property in his possession and control to satisfy Brunswick\u2019s claim is conditioned upon the Court entering orders directing the Receiver to use said property in such manner.\n5. Brunswick does not seek a money judgment against either the Receiver in his personal capacity, or against his agent, The John Buck Management Group arising out of any of the acts or circumstances alleged in Intervenor\u2019s Complaint.\u201d\nOn August 6, 1993, Brunswick amended its complaint to add requests for declaratory judgments that it has a vendor\u2019s lien against parcels 7 through 9, which is superior to USF&G\u2019s mortgage interest, and against parcels 1 through 6. USF&G filed a motion to dismiss for failure to state a claim. On August 25, 1993, the circuit court granted the motion, finding (1) the Termination Payment provision was not a covenant running with the land because it did not touch and concern the Property and there was no privity between Brunswick and USF&G; (2) Brunswick was not entitled to a vendor\u2019s Hen; (3) USF&G was not a mortgagee in possession; and (4) Brunswick was estopped from asserting a claim for the Termination Payment against USF&G by its letter of November 30, 1988. On September 22, 1993, Brunswick filed its first notice of appeal.\nOn October 5, 1993, Brunswick received an invoice from Burin demanding payment for Brunswick\u2019s aUeged share of 1992 real estate taxes on the Property. On December 7, 1993, Brunswick filed a second-amended complaint against the La Salle Partner defendants and Burin, containing two counts. Count I sought declaratory judgments that the La Salle Partner defendants were each personally liable for the Termination Payment and that Brunswick had a vendor\u2019s lien against the Property. Count II sought declaratory judgments that Burin had adopted the Lease and was liable for the Termination Payment as successor to the landlord\u2019s interest, that the Termination Payment was an ordinary operating expense of Receivership, and that Burin\u2019s nonpayment of the Termination Payment was a material breach of the lease that entitled Brunswick to set off any of its further obligations.\nThe circuit court granted USF&G leave to intervene as defendant. On December 28 and 29, 1993, USF&G, the La Salle Partner defendants and Burin each filed motions to dismiss Brunswick\u2019s second-amended complaint. On March 23, 1994, the circuit court granted USF&G\u2019s and Burin\u2019s motions in their entirety. The court found that Burin never adopted the Lease or succeeded the landlord in interest, and that nonpayment of the Termination Payment did not excuse Brunswick from paying real estate taxes. With respect to the La Salle Partner defendants\u2019 motion, the circuit court granted Brunswick leave to file a third-amended complaint instanter, in which count I alleged a vendor\u2019s lien and count II alleged personal liability for the Termination Payment. The court then dismissed count I, citing its earlier ruling on the vendor\u2019s hen issue, and sustained count II. The next day, Burin filed a counterclaim against Brunswick for unpaid real estate taxes due under the Lease.\nAlso, on March 24, 1994, Brunswick filed its second notice of appeal. On May 23, 1994, this court entered an order consolidating the two appeals.\nIn the meantime, with Brunswick\u2019s appeal pending, USF&G proceeded with the foreclosure. The trial court entered judgment of foreclosure on March 23, 1994. A sheriffs sale of the Property took place on November 9, 1994. USF&G was the bidder and for a $6,750,000 bid received the certificate of sale. On December 20, 1994, USF&G assigned the notes, mortgage, loan documents and claims and defenses in the litigation to Old Orchard Park Fidelity Associates Limited Partnership (Old Orchard LP). On January 6, 1995, the court entered its order confirming the sheriffs report of sale and ordering execution of a deed to Old Orchard LP\nAs of March 1995, Burin had completed his final report and the Receiver\u2019s estate consisted of $8,184.09. On March 27, 1995, Old Orchard LP filed a motion to discharge the Receiver. On April 5, 1995, the court entered an order drafted by Old Orchard LP\u2019s counsel and agreed to by Old Orchard LB Brunswick and the Receiver (the April 5 Order).\nThe April 5 Order provided in pertinent part:\n(d) Jerry Burin is hereby authorized to assign to Old Orchard LP all leases entered into by the Receiver in connection with the Property;\n(e) Jerry Burin is hereby authorized to enter into an assignment with Old Orchard LB which shall be legally valid and binding for all purposes, assigning any and all claims by or against the Receiver relating to the Property, including but not limited to:\n(i) the Receiver\u2019s Counterclaim against Brunswick Corporation for unpaid rent, filed herein on April 13, 1994[.]\n(ii) any and all other claims, rights, interests, or causes of action relating to the Property.\u201d\nAt the same time they submitted the April 5 Order, Old Orchard LP\u2019s counsel moved for Old Orchard LP to be substituted for USF&G in the circuit court. Substitution was allowed on April 5, 1995, and, in May 1995, Old Orchard LP was substituted for USF&G in the then-pending appeal.\nIn October 1996, we delivered our opinion in the consolidated appeal. USF&G I, 284 Ill. App. 3d 765. With respect to Brunswick\u2019s claims against USF&G, we affirmed the dismissal. Before doing so, however, we addressed the issue of whether Brunswick waived its claims against USF&G when it executed the November 30, 1988, letter, which provided:\n\u201cUpon any foreclosure sale or conveyance in lieu thereof, *** [Brunswick] shall attorn to and recognize the purchaser of the Property, or any portion thereof as its landlord under the Lease as if such purchaser were the original landlord thereunder, provided, however, that such purchaser shall in no way be liable or responsible for any alleged default by the landlord pertaining to any period prior to the time that the purchaser acquires actual possession or control of the Property or any portion thereof.\u201d\nWe held that because USF&G was not a \u201cpurchaser\u201d that took control of the Property pursuant to a \u201cforeclosure sale,\u201d the letter did not constitute a waiver of Brunswick\u2019s claims.\nThereafter, we nevertheless affirmed the trial court\u2019s finding in USF&G\u2019s favor. We held (1) Brunswick failed to state a claim against USF&G based on a vendor\u2019s hen; (2) Brunswick failed to state a claim that USF&G was a mortgagee in possession; and (3) Brunswick failed to state a claim that the Termination Payment is a covenant running with the land.\nWe also considered the trial court\u2019s dismissal of Brunswick\u2019s claims against the Receiver and reversed. We held that the allegations were sufficient to state a claim that Burin adopted the Lease. We also found that Brunswick had stated a claim that, under the material breach doctrine, Burin\u2019s failure to make the Termination Payment excused Brunswick from having to pay further real estate taxes. Accordingly, we remanded the case for further proceedings.\nOn March 26, 1998, Brunswick filed its fourth-amended complaint for declaratory judgment. Count I alleged that OOPLP and the other La Salle Partner defendants, as the owners of the Property and successor to the landlord\u2019s interest, were obligated to make the Termination Payment that had been due on April 30, 1993. Count II was against Old Orchard LP It alleged that the Receiver had adopted the Lease and was responsible for the Termination Payment. Brunswick further alleged that by reason of the April 5 Order discharging the Receiver, Old Orchard LP was the successor to the Receiver and was personally liable for the Termination Payment.\nOld Orchard LP moved to dismiss Brunswick\u2019s fourth-amended complaint for failure to state a claim; that motion was denied on October 13, 1998. Old Orchard LP answered and set forth additional defenses to the complaint. Brunswick moved for summary judgment against OOPLP and Old Orchard LP; that motion was denied on February 15, 2000.\nOn June 8, 1999, Brunswick filed its fifth-amended complaint that added as parties the La Salle Partner defendants, together with OOPLP The claims against Old Orchard LP remained unchanged. On August 1, 2000, the court allowed Brunswick\u2019s motion to enter an agreed dismissal order as to OOPLP and the La Salle Partner defendants. Pursuant to a \u201cconfidential settlement agreement,\u201d the court dismissed with prejudice Brunswick\u2019s claims against OOPLP and the La Salle Partner defendants.\nA bench trial as to Brunswick\u2019s remaining claims against Old Orchard LP took place on August 7 and 8, 2000. The two disputed issues for trial were (1) whether the Receiver adopted the Lease; and (2) the meaning and effect of the April 5 Order. Brunswick called one witness, its assistant general counsel, Elizabeth McGrail. Brunswick also read into the record excerpts from the evidence deposition of the Receiver. Old Orchard LP called two witnesses, Richard Fenton and Carolyn Van Horn, attorneys who represented USF&G and Old Orchard LP Their testimony referred to the communications between the parties through their respective counsel before and after the April 5 Order discharging the Receiver.\nOn August 8, 2000, the trial judge ruled. He concluded that the Receiver adopted the Lease. He then stated \u201cthat the entire determination of the rights of the parties here is dependent entirely on the wording of the April 5th order.\u201d The court concluded that the order was unambiguous and assigned to Old Orchard LP all claims by or against the Receiver. The court then entered judgment against Old Orchard LP for the $2 million Termination Payment, less $188,771 for Brunswick\u2019s share of the real estate taxes. The judgment also included an award of $648,952.06 for prejudgment interest for a total judgment of $2,459,981.06. In addition, on January 3, 2001, the court awarded Brunswick attorney fees and costs of $521,708.91.\nOn September 20, 2000, and on January 17, 2001, Old Orchard LP filed its respective notices of appeal from the trial judgment and the award of attorney fees and costs. The appeals were consolidated by this court.\nOld Orchard LP makes the following arguments on appeal: (1) the November 30, 1988, letter sent by Brunswick to USF&G bars Brunswick from pursuing Old Orchard LP for the Termination Payment; (2) the Receiver did not adopt the Lease and the Termination Payment obligation; and (3) the April 5 Order does not compel a personal judgment against Old Orchard LP for the following reasons: (a) the Receiver never entered into an assignment with Old Orchard LP; and (b) the May 21 stipulation precludes a personal judgment against Old Orchard LP Old Orchard LP also argues that the court erred in awarding prejudgment interest, attorney fees, and costs.\nII. DISCUSSION\nA. The Effect of the November 30, 1988, Letter\nInitially, Old Orchard LP argues that Brunswick is estopped from pursuing it for the Termination Payment because Brunswick waived its right to do so upon execution of the November 30, 1988, letter to USF&G. In the November 30, 1988, letter, Brunswick agreed:\n\u201cUpon any foreclosure sale or conveyance in lieu thereof, *** [Brunswick] shall attorn to and recognize the purchaser of the Property, or any portion thereof as its landlord under the Lease as if such purchaser were the original landlord thereunder, provided, however, that such purchaser shall in no way be liable or responsible for any alleged default by the landlord pertaining to any period prior to the time that the purchaser acquires actual possession or control of the Property, or any portion thereof.\u201d\nOld Orchard LP argues that because it acquired possession of the Property from USF&G, which purchased the Property through foreclosure, it is not hable for OOPLP\u2019s prior default in fading to pay the Termination Payment.\nWe disagree. Brunswick\u2019s claim against Old Orchard LP does not arise out of Old Orchard LP\u2019s status as a foreclosure sale purchaser of the Property. Brunswick\u2019s claim against Old Orchard LP is based on the April 5 Order which, according to Brunswick, assigned all claims against the Receiver to Old Orchard LP Thus, Old Orchard LP\u2019s liability for the Termination Payment arises out of its status as assignee of the Receiver\u2019s liability. Therefore, Brunswick\u2019s claim against Old Orchard LP is not barred by the letter.\nB. Receiver\u2019s Adoption of the Lease\nOld Orchard LP\u2019s next argument is that the Receiver did not adopt the Lease. Because this issue involves a mixed question of law and fact we review it under the clearly erroneous standard. See Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 369 (2002).\nWhen this case was before us the first time, we were presented with the question of whether Brunswick\u2019s complaint stated a claim that Burin adopted the Lease. USF&G I, 284 Ill. App. 3d at 767-68. The complaint alleged as follows: Beginning on August 5, 1992, Burin managed and controlled the Property and exercised all power and control authorized to the lessor; Burin demanded and received rent payments from Brunswick through April 1993, when the lease expired; Burin demanded and received Brunswick\u2019s allocable share of real estate taxes, even after the Termination Payment became due; and Burin never cancelled or otherwise repudiated the lease. According to Brunswick\u2019s complaint, Burin was in open possession and control of the Property for approximately nine months before the Termination Payment became due.\nWe applied the standard set forth in Toushin v. Gonsky, 77 Ill. App. 3d 508 (1979). We recognized that a Receiver does not become liable under a lease by virtue of his appointment, but has the right to accept or reject a lease. USF&G I, 284 Ill. App. 3d at 774. We also recognized that acceptance of a lease does not have to be express; it can arise by implication if the Receiver remains in possession beyond a reasonable time to make the election. USF&G I, 284 Ill. App. 3d at 774. Applying Toushin, we concluded that Brunswick stated a claim that Burin adopted the Lease and remanded. Thus, on remand, the issue became whether Brunswick could prove those allegations.\nThe evidence established that the Receiver reviewed the Lease when appointed. There is no question that he was in possession for over nine months and that Brunswick paid rent for nine months. He admitted that his monthly reports to the court showed that he collected $1,375,945.46 from Brunswick. Further, Burin admitted that he never told Brunswick that he was rejecting the Lease.\nBrunswick\u2019s witness, Elizabeth McGrail, testified that Burin demanded rent, an allocable share of real estate taxes, and an al-locable share of common space expenses under the Lease. She further testified that Burin kept the cafeteria operating and maintained the landscaping and security on the Property. She also testified that during the 10-month period before Brunswick vacated the Property, Burin never advised Brunswick he was cancelling the Lease.\nAfter hearing the evidence, the trial court declared:\n\u201cThere is no question in my mind that the Receiver took over the property and operated it as a landlord, did all of those things which a landlord would do; and by virtue of the activity and perhaps even more importantly the duration thereof, I conclude that the Receiver adopted the lease.\u201d\nOld Orchard LP does not dispute the court\u2019s factual findings; rather, it contends that Toushin is distinguishable because Burin, unlike the Receiver in Toushin, \u201crefused the Termination Payment and thereby rejected the lease.\u201d To support this argument, Old Orchard LP directs the court to a November 12, 1992, letter, wherein counsel for the Receiver informed Brunswick:\n\u201cAs a court-appointed Receiver, Mr. Burin obviously has no personal liability with respect to this payment. To date, income from the Property has been applied only to payment of taxes and other ordinary operating expenses, as required by statute. No funds have been paid to the mortgagee. Funds on hand now or in the future will be disbursed in accordance with relevant statutes and court orders.\u201d\nThe above letter is insufficient to establish that Burin rejected the Lease. The letter does not deny liability with respect to the Lease; it only denies liability with respect to the Receiver\u2019s personal assets. It does not say that the Termination Payment will not be paid. The letter does not overcome the other evidence with respect to the adoption of the Lease; that is, the fact that the Receiver collected over $1.3 million from Brunswick during the nine-month period remaining on Brunswick\u2019s lease.\nAccordingly, we find that the trial court\u2019s conclusion that Burin adopted the Lease is not clearly erroneous.\nC. The April 5 Order\nAfter finding that the Receiver adopted the Lease, the trial court stated that it appeared \u201cthat the entire determination of the rights of the parties here is dependent entirely on the wording of the April 5th Order,\u201d which states that the Receiver is \u201cassigning any and all claims by or against the Receiver relating to the Property.\u201d The court held that the order was unambiguous. The court stated, \u201cI don\u2019t think that I have heard any evidence that in any way overcomes the statement that all of the claims, by or against the Receiver, were being assigned.\u201d The court then entered judgment against Old Orchard LP for the Termination Payment less $188,771 for Brunswick\u2019s share of the real estate taxes.\nOld Orchard LP contends that the trial court\u2019s conclusion constitutes an abuse of discretion.\nOld Orchard LP asserts that the Receiver never entered into an assignment with Old Orchard LP Old Orchard LP argues that because the April 5 Order states that the Receiver \u201cis hereby authorized to enter into an assignment with Old Orchard LP,\u201d the order merely permits the Receiver to enter into an assignment; the order itself is not an assignment.\nThe trial court disagreed with this argument. With respect to the mandatory or permissive nature of the word \u201cauthorized,\u201d it stated, \u201cI am interpreting the word \u2018authorized\u2019 in the sense of being mandatory.\u201d The trial court reasoned that because Old Orchard LP took an assignment of Burin\u2019s April 13, 1994, counterclaim against Brunswick for unpaid rent under the April 5 Order (as conceded by Old Orchard LP\u2019s attorney), it necessarily took an assignment of \u201call claims.\u201d We agree.\nThe claim for the unpaid rent (Brunswick\u2019s share of the real estate taxes) arose under the 1983 lease agreement that Old Orchard LP assumed pursuant to the April 5 Order. If Old Orchard LP assumed all claims via the Receiver, it should likewise have assumed all liabilities via the Receiver. As the trial court reasoned:\n\u201c[Y]ou can\u2019t take the benefits without taking the detriments or the liabilities, *** if in fact this document unequivocally sets forth that the Receiver\u2019s counterclaim against Brunswick for 188,000 plus dollars being a tax obligation was going with this assignment, I cannot possible [sic] see how the liability with respect to the lease Termination Payment did not also move with this assignment.\u201d\nOld Orchard LP asserts that even if we accept the trial court\u2019s conclusion that Old Orchard LP was the successor to Brunswick\u2019s claim against the Receiver, we find that Old Orchard also received the protection against personal liability promised to the Receiver by Brunswick in the May 21, 1993, stipulation. The stipulation reflected the Receiver\u2019s assertion that \u201che cannot be held personally liable to Brunswick for the Termination Payment.\u201d The stipulation also provided that Brunswick \u201cwould not seek a money judgment against either the Receiver in his personal capacity, or against his agent.\u201d\nWe find that the stipulation was not assignable to Old Orchard LE A stipulation must be construed as a contract between the parties to it, giving effect to the intent of the parties. ITT Abrasive Products Co. v. Lewis, 12 Ill. App. 3d 83, 86 (1973). \u201cWhere the personal qualities of either party are material to [a] contract, the contract is not assignable without the assent of both parties.\u201d Martin v. City of O\u2019Fallon, 283 Ill. App. 3d 830, 834 (1996). Here, the stipulation was based solely on the \u201cpersonal qualities\u201d of the Receiver; namely, his legal status as Receiver and his desire to have his personal assets expressly immune from claims against his Receivership. We reject Old Orchard LP\u2019s argument that because the April 5 Order encompasses the assignment of \u201call\u201d rights and interests, it necessarily includes the protection against personal liability. Brunswick never assented to the assignment of the stipulation.\nD. In Rem versus In Personam Liability\nOld Orchard LP also argues throughout its brief that Brunswick can only recover to the extent of the assets in the Receivership estate. We reject this argument. As argued by Brunswick, the Termination Payment was a full-recourse personal obligation of the landlord. The Termination Payment provision reads:\n\u201cProvided Tenant is not in default under the terms of this Lease, if Tenant does not elect to renew the term of this Lease for (i) the First Extension Term, then Tenant shall receive a payment of $2,000,000.00 upon its vacation of the demised premises ***.\u201d\nIt contains no limiting language. And as Brunswick asserts, the nature of the liability under the Lease never changed. The Receiver\u2019s adoption of the Lease did not change the nature of the existing contract rights from in personam liability to in rem liability.\nE. Award of Prejudgment Interest\nNext, Old Orchard LP argues that the trial court erred in awarding prejudgment interest because there was no \u201cinstrument in writing\u201d entered into by the Receiver and Old Orchard LP that could require prejudgment interest. We disagree.\nSection 2 of the Interest Act provides that \u201c[c]reditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing.\u201d 815 ILCS 205/2 (West 1998). As Brunswick argues, the \u201cinstrument in writing\u201d in this case was the Lease. See Montgomery Ward & Co. v. Wetzel, 98 Ill. App. 3d 243, 250 (1981) (a lease is an instrument of writing within the contemplation of the Interest Act). When the Receiver adopted the Lease he became bound by its terms and his liability thereunder was assigned to Old Orchard LP via the April 5 Order.\nAccordingly, we find that the trial court correctly awarded Brunswick 5% interest from April 30, 1993.\nF. Award of Attorney Fees\nFinally, Old Orchard LP argues that the trial court erred in awarding attorney fees and costs to Brunswick. Once again, we disagree.\nArticle 29, section 10, of the Lease provided in part:\n\u201cIn the event of any litigation or arbitration between Tenant and Landlord to enforce any provision of this Lease or any right of either party hereto, the unsuccessful party to such litigation or arbitration shall pay to successful party all costs and expenses, included [sic] reasonable attorneys\u2019 fees, incurred herein.\u201d\n\u201c[I]n \u2018fee-shifting\u2019 agreement situations or where a contract provision provides for fees, the trial court *** must conduct a reasonableness evaluation. It also makes its reasonableness determination based on various factors and its decision will not be disturbed unless there has been an abuse of discretion.\u201d In re Pine Top Insurance Co., 292 Ill. App. 3d 597 (1997).\nAs noted by Brunswick, a fee petition must comply with the requirements of Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978 (1987). Kaiser requires the party seeking fees to provide sufficient evidence from which the court can render a decision as to their reasonableness. Kaiser, 164 Ill. App. 3d at 977-78. Brunswick provided all of the attorney time records for this action, affidavits, and an affidavit of an independent expert who stated that the fees were reasonable under the circumstances.\nThe trial court has \u201cbroad discretionary powers\u201d in awarding attorney fees (Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590 (2000)). There is no basis in the record to conclude the trial court abused its discretion.\nIII. CONCLUSION\nAccordingly, we hereby affirm the trial court\u2019s order of August 10, 2000, that entered judgment in favor of Brunswick and we affirm the trial court\u2019s order of January 3, 2001, that awarded Brunswick attorney fees and cost.\nAffirmed.\nGALLAGHER, P.J., and O\u2019MARA FROSSARD, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Jack Carriglio, of Heckler, Bulger & Tilson, of Chicago, for appellant Old Orchard Park Fidelity Associates Limited Partnership.", "Brian E. Neuffer, of Winston & Strawn, of Chicago, for appellee." ], "corrections": "", "head_matter": "UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Plaintiffs, v. OLD ORCHARD PLAZA LIMITED PARTNERSHIP et al., Defendants (Brunswick Corporation, Intervenor and Plaintiff-Appellee; Old Orchard Park Fidelity Associates Limited Partnership et al., Defendants-Appellants).\nFirst District (6th Division)\nNos. 1\u201400\u20143215, 1\u201401\u20140321 cons.\nOpinion filed August 30, 2002.\nJack Carriglio, of Heckler, Bulger & Tilson, of Chicago, for appellant Old Orchard Park Fidelity Associates Limited Partnership.\nBrian E. Neuffer, of Winston & Strawn, of Chicago, for appellee." }, "file_name": "0727-01", "first_page_order": 745, "last_page_order": 758 }