2018 IL App (2d) 170904 

                                  No. 2-17-0904

                            Opinion filed June 21, 2018 

______________________________________________________________________________

                                             IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

TANNA FARMS, L.L.C.,                   ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellee,              )
                                       )
v. 	                                   ) No. 17-LM-38
                                       )
GOLFVISIONS MANAGEMENT, INC.,          ) Honorable
                                       ) Thomas J. Stanfa, 

      Defendant-Appellant.             ) Judge, Presiding.

______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. 

       Justices Zenoff and Jorgensen concurred in the judgment and opinion.


                                           OPINION

¶1                                     I. BACKGROUND

¶2     The plaintiff, Tanna Farms, L.L.C., is the owner of the Tanna Farms Golf Course. In

2010, it leased the golf course to the defendant, Golfvisions Management, Inc., a company that

manages golf courses.

¶3     In January 2017, the plaintiff filed suit against the defendant under the Forcible Entry and

Detainer Act (Act) (735 ILCS 5/9-101 et seq. (West 2016)). The complaint alleged that the

defendant had breached the lease by failing to pay monthly rent and real estate taxes, and failing

to repair sewer lines.
2018 IL App (2d) 170904


¶4     In February 2017, the plaintiff moved for summary judgment in its favor on the basis that

it had served the defendant with a five-day notice for past-due rent and it was undisputed that the

defendant did not pay that rent until after the expiration of the five-day period. The following

month, the defendant filed a cross-motion for summary judgment. That motion argued that the

plaintiff had waived its legal rights because it had, after the expiration of the five-day period,

(1) accepted payment of the past-due rent and real estate taxes; (2) stated that it would drop the

lawsuit if an additional $35,541.66 were paid, and the defendant subsequently paid (and the

plaintiff acknowledged receiving) that amount; and (3) accepted payment of the most recent

monthly rent, thereby bringing the defendant’s account current.          The plaintiff’s response

acknowledged that these payments had been made, but argued that the payments were accepted

in order to mitigate the plaintiff’s damages rather than in waiver of the plaintiff’s legal right to

proceed with the lawsuit.

¶5     Thereafter, despite a flurry of discovery and motions by both parties for the imposition of

sanctions, the parties began to engage in settlement talks. Agreed orders were entered in April

and June 2017, postponing the hearing on the cross-motions for summary judgment in light of

“continuing attempts to resolve the outstanding issues.”

¶6     On July 10, 2017, one week before the scheduled hearing date, the plaintiff filed a motion

to voluntarily dismiss its case pursuant to section 2-1009 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-1009 (West 2016)). The motion noted that no trial date had been set and stated

that, if the voluntary dismissal was granted, the plaintiff would pay the defendant’s court costs as

required by section 2-1009. The motion stated that the plaintiff sought a dismissal without

prejudice.




                                               -2­
2018 IL App (2d) 170904


¶7     On July 17, 2017, the scheduled date for hearing the cross-motions for summary

judgment, the court first addressed the plaintiff’s motion to voluntarily dismiss the case. The

defendant objected to such a dismissal on the grounds that there were pending dispositive

motions which could provide it with a judgment on the merits, and that, if a dismissal without

prejudice were entered, the plaintiff could again bring suit against it. The plaintiff’s attorney

stated that his request for a dismissal without prejudice was inadvertent and that the plaintiff had

meant to seek a dismissal with prejudice. The plaintiff’s attorney argued that there was no

substantive difference between such a dismissal and any outcome that the defendant could

achieve, even if the cross-motions for summary judgment were heard:

                 “If you grant the motion for involuntary [sic] dismissal that I have filed, what is

       going to be the end result? The end result is that the tenant, which manages the Tanna

       Farms Golf Course, will remain as the tenant and will continue operating under the terms

       of the lease agreement, which is attached to our complaint, which is clear and which goes

       on for years. If you grant the defendant’s motion for summary judgment after denying

       our motion for involuntary [sic] dismissal, what’s going to happen? The tenant is going

       to stay at the property and the tenant is going to continue to operate under the terms of the

       lease agreement between the parties, which is clear and which is in effect for many

       years.”

The plaintiff’s attorney later alluded to “facts and circumstances that have arisen at the golf

course since we filed this case” that had allayed the concerns that had given rise to the lawsuit,

with the result that the plaintiff was “very comfortable with proceeding with the tenancy.”

Accordingly, the plaintiff would be willing to include a statement in the dismissal order to the

effect that, as of now, there were no existing violations of the lease. The trial court granted the



                                                -3­
2018 IL App (2d) 170904


motion for a voluntary dismissal. The written order entered that day stated that the plaintiff’s

motion to voluntarily dismiss the case with prejudice was granted, and that “judgment for costs

for Defendant is entered pursuant to 735 ILCS 5/9-114.” 1

¶8      On August 18, 2017, the defendant filed a motion for attorney fees and costs, asserting

that it was the prevailing party in the litigation and was thus entitled to recover not only “costs”

of $1918.97 (an amount greater than the defendant’s court costs, which had already been

tendered by the plaintiff) but also attorney fees of $85,831 pursuant to section 2.14 of the lease

between the parties. That provision stated:

                 “In the event that it becomes necessary for either party hereto to employ legal

        counsel and bring legal proceedings to enforce any provision of this Lease Agreement,

        the prevailing party in such proceedings shall be paid all costs and all reasonable

        attorney’s fees by the non-prevailing party.”

The plaintiff argued that its voluntary dismissal did not make the defendant the “prevailing

party” under the lease. The trial court agreed and denied the defendant’s motion for attorney

fees:

                 “I find that the defendant in this instance, in these facts, is not a prevailing party.

        I believe that the time that I ruled on the plaintiff’s motion to voluntary [sic] nonsuit with

        prejudice, that that did not set in motion the switch which then put the defendant as a

        prevailing party.”




        1
            That section requires that, when a plaintiff voluntarily dismisses a claim under the Act,

“judgment for costs shall be entered in favor of the defendant.” 735 ILCS 5/9-114 (West 2016).



                                                  -4­
2018 IL App (2d) 170904


Although issues relating to sanctions motions remained pending in the trial court, the trial court

found that there was no reason to delay immediate enforcement or appeal of its order denying

attorney fees. This appeal followed.

¶9                                        II. ANALYSIS

¶ 10   The defendant contends that the trial court erred in finding that it was not the prevailing

party and therefore was not entitled to recover its attorney fees under the lease. We begin by

determining the proper standard of review to be applied.

¶ 11   The defendant argues that, as its appeal relates to a contract term (“prevailing party”), we

should review the trial court’s ruling de novo, as we would any issue of contract interpretation.

See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 129 (2005). But this

argument is incorrect. The de novo standard of review is proper to the extent that the trial court’s

ruling rested on its interpretation of a contract, such as a lease. Peleton, Inc. v. McGivern’s Inc.,

375 Ill. App. 3d 222, 225 (2007). However, when the ruling involves the application of contract

terms to the facts at hand, that is a matter within the sound discretion of the trial court and we

review its ruling only for an abuse of that discretion. Id. at 226. An abuse of discretion occurs

when a ruling is arbitrary, fanciful, or unreasonable, when no reasonable person would take the

view adopted by the trial court, or when the ruling rests on an error of law. People v. Olsen,

2015 IL App (2d) 140267, ¶ 11.

¶ 12   This court has long held that the determination of whether a party qualifies as the

“prevailing party” for the purpose of awarding attorney fees is subject to the abuse of discretion

standard of review. See, e.g., Timan v. Ourada, 2012 IL App (2d) 100834, ¶ 29; Powers v.

Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 515 (2001); Med+Plus Neck & Back Pain

Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853, 861 (2000). As this is the central issue in this



                                                -5­
2018 IL App (2d) 170904


appeal, we apply the more deferential abuse of discretion standard of review to the trial court’s

determination that the defendant was not, under the facts of this case, the prevailing party

entitled to attorney fees.

¶ 13    “A prevailing party, for purposes of awarding attorney fees, is one that is successful on a

significant issue and achieves some benefit in bringing suit.” J.B. Esker & Sons, Inc. v. Cle-Pa’s

Partnership, 325 Ill. App. 3d 276, 280 (2001). “[A] litigant does not have to succeed on all its

claims to be considered a prevailing party.” Peleton, 375 Ill. App. 3d at 227. However, when

both parties have experienced success on various aspects of the litigation, it may be appropriate

to find that neither party is the prevailing party. Id. at 227-28.

¶ 14    The defendant first argues that it must be considered the prevailing party because the

order entered on July 17, 2017, entered “judgment for costs for Defendant.” It contends that, as

it received judgment in its favor, it must be considered the prevailing party. But the July 2017

order granted the defendant a judgment only as to costs, not on any other issue. The payment of

court costs by a party seeking to voluntarily dismiss its claims is a routine matter and one that

was uncontested by the plaintiff, not a significant issue in the litigation between the parties. See

Esker, 325 Ill. App. 3d at 280 (to be a prevailing party, the party must have achieved success on

a significant issue). Thus, the award of costs to the defendant does not show that it was the

prevailing party in the litigation.

¶ 15    The defendant next asserts that it was the prevailing party because it achieved a

substantial benefit in the litigation, as the dismissal with prejudice represented a concession by

the plaintiff that it would not pursue its claims any further. The defendant makes much of the

fact that the voluntary dismissal with prejudice permanently disposed of all of the plaintiff’s

claims, arguing that such a dismissal is for all practical purposes the same as judgment in its



                                                 -6­
2018 IL App (2d) 170904


favor on all claims. Indeed, the plaintiff’s attorney conceded during the July 17, 2017, hearing

that the practical effect of the voluntary dismissal would be the same as if summary judgment

were entered for the defendant. However, the defendant’s argument ignores the reality that the

plaintiff had already achieved success on most of its claims as a result of the litigation. After the

plaintiff filed suit, the defendant paid the past-due rent and real estate taxes that the plaintiff

claimed were due. Although the plaintiff did not obtain the sewer repairs that it sought in its

complaint, it did obtain payment of the two other items (the rent and taxes) that it sought.

¶ 16   As both sides achieved success on some issues, the trial court had a sound basis for its

determination that the defendant was not the prevailing party. See Peleton, 375 Ill. App. 3d at

227-28; see also Powers, 326 Ill. App. 3d at 515 (“when the dispute involves multiple claims and

both parties have won and lost on different claims, it may be inappropriate to find that either

party is the prevailing party and an award of attorney fees to either is inappropriate”).

Accordingly, we cannot find that that determination was an abuse of discretion, i.e., that the

ruling was arbitrary, fanciful, or unreasonable, that no reasonable person would take the view

adopted by the trial court, or that the ruling rested on an error of law. Olsen, 2015 IL App (2d)

140267, ¶ 11.

¶ 17                                    III. CONCLUSION

¶ 18   For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

¶ 19   Affirmed.




                                                -7­