Justice GORDON delivered the opinion of the court:
Defendants, E. Terrell & Associates, Inc. (E. Terrell) and Ronald S. Samuels (Samuels), appeal from a judgment entered against them after a jury trial on a breach of contract claim in favor of plaintiff, Zirp-Burnham, LLC (Zirp-Burnham). We affirm.
E. Terrell, a law firm, entered a lease for office space at 111 W. Washington Avenue (Burnham Center) in Chicago dated August 1, 1996; the lease was to run through August 31, 1998. Under that lease, the landlord was identified as "American National Bank and Trust Company of Chicago, not personally, but solely as Trustee under Trust Agreement dated May 18, 1983 and known as Trust Number 57803." American National Bank had
"Rent" under the lease included proportionate shares of the utility bills, operating costs and taxes for the building. In the event of a default by the tenant, the lease provided:
On November 19, 1997, E. Terrell executed a first amendment to the initial lease. The first amended lease generally kept the terms of the initial lease, but moved E. Terrell to a different office suite, adjusted the amount of rent, and extended the term to November 30, 2000. Samuels also signed this lease for E. Terrell and signed a reaffirmation of his original guaranty.
American National Bank and LaSalle National Bank Association subsequently filed a "Notice of Successor Land Trustee" on April 20, 2000 with the Cook County recorder of deeds. That notice stated, in pertinent part:
Over the course of October and November, 2000, Orix, the on-site property manager for the Burnham Center, gave E. Terrell forms for a second amendment to the lease. Samuels signed one of these forms. On that form, the typed text of the introduction to the second amendment continued to identify American National Bank as the landlord and trustee of trust number 57803. However, at some point, a hand-written asterisk was inserted adjacent to American National Bank, directing the reader to text stamped on the page reading "LaSalle Bank National Association, successor trustee." A similar modification, replacing American National with LaSalle Bank, appeared on the signature page for the second amendment. On the unsigned forms, which remained in E. Terrell's possession, there was never any mention of LaSalle. Like the first amendment, this purported second amendment
On July 9, 2001, LaSalle Bank transferred ownership of the Burnham Center to Zirp-Burnham via a trustee's quitclaim deed. On July 14, 2001, LaSalle and Zirp-Burnham entered into an agreement by which LaSalle assigned all of the leases in the building to Zirp-Burnham.
Starting in May 2002, E. Terrell stopped paying rent. In October 2002, Zirp-Burnham provided E. Terrell with a notice of default, giving it five days in which to pay the rent past due. Zirp-Burnham then filed a complaint for breach of the lease and for enforcement of the guaranty on November 19, 2002, and a first amended complaint on April 18, 2003. Prior to the filing of the first amended complaint, E. Terrell moved out of Burnham Center. The amended complaint alleged that E. Terrell's rent still remained unpaid through April 2003 and sought damages from E. Terrell and Samuels consisting of the rent and penalties in the amount of $79,237.56, as well as attorney fees, as provided for in the lease. E. Terrell and Samuels apparently answered, denying the complaint's allegations, though we do not find their responsive pleadings in the record, as the case was set for trial.
Lamb testified about Zirp-Burnham's acquisition of the Burnham Center and the assignment to it of the preexisting leases in the building. He identified E. Terrell's as one of the leases that were identified by the previous owners and assigned to Zirp-Burnham. Lamb testified that letters were sent to the Burnham Center tenants advising them of the change of ownership, which stated in pertinent part:
Lamb further testified about the leases and guaranties for E. Terrell that Zirp-Burnham took possession of, and kept as business records, when it purchased the building. Lamb testified that he recognized Samuels' signature on the various documents through seeing the same signature
Lamb testified that, after E. Terrell moved out, Zirp-Burnham immediately attempted to find a new lessee for E. Terrell's former office suite. He testified that Zirp-Burnham's in-house leasing agents began to market the suite to outside brokers and that prospective tenants were shown the office space. He testified that Zirp-Burnham initially encouraged E. Terrell to find subtenants, but ultimately denied its sublease proposal because E. Terrell wanted its rent to abate while it searched for subtenants. Lamb testified that, at the time his company ceased to be property manager for Burnham Center, E. Terrell already owed between $57,000 to $58,000.
Symonds testified that his company, Cushman Wakefield, took over as property manager for the Burnham Center on February 1, 2003. According to Symonds, E. Terrell's former office suite was vacant when Cushman Wakefield took over the building, and his company continued to attempt to relet the space through direct mailings to brokers, a posting on a real estate world-wide-web system called Co-Star, as well as advertisements in the Black Guide, a real estate professionals publication, and the Chicago Daily Law Bulletin. Symonds stated that he and co-workers had shown E. Terrell's old office suite to between 10 and 12 prospective tenants, but none had ultimately decided to lease the premises. Symonds testified that Cushman Wakefield's records indicated that E. Terrell owed Zirp-Burnham $101,435.60, including base rent, electricity, tax and operating expenses, plus late fees and interest.
After the denial of its motion for a directed verdict, E. Terrell and Samuels presented the brief testimony of Sims. Sims testified that he was an attorney and tenant at the Burnham Center, that his firm became financially distressed, that he approached Samuels about becoming a subtenant, but that he and Samuels never reached an agreement. Samuels then testified himself in narrative form.
Samuels introduced himself to the jury as a lawyer of 30 years, practicing in the area of real estate. Samuels testified that he signed a lease for office space at the Burnham Center because of its proximity to the Daley Center, City Hall and the Cook County building, and because he already had a good working relationship with the landlord, American National Bank.
According to Samuels, E. Terrell initially did very well and required additional office space which was provided in the first
Samuels testified that the proposed second amended lease provided to him, which he signed, continued to list American National Bank as the landlord, and he introduced E. Terrell's unsigned copies into evidence. Samuels stated that it was only on a copy later returned to him that LaSalle National Bank had been substituted as the landlord. Samuels claimed that, at that point, he informed the building's management that he did not agree to have a lease with LaSalle National Bank, or to proceed under that lease because LaSalle was "held generally in disrepute," but the management told him that it was "going to go ahead anyway."
As business continued to go poorly, Samuels testified that E. Terrell ran out of money with which to pay rent. He claimed to have tried to negotiate a change of office space, the addition of subtenants, and payment plans to allow E. Terrell to stay in the building and to minimize Zirp-Burnham's losses, but to no avail.
On cross-examination, Samuels admitted that, during the time American National Bank was the trustee/landlord, he never actually interacted with the bank since day-to-day operations were handled by a property management company, with which E. Terrell and the other tenants had a contentious relationship. Samuels admitted that, while E. Terrell remained in Burnham Center for roughly another two years, he never informed the property managers in writing that no lease was in effect and that, for a time, E. Terrell, in fact, paid the rent that was called for under the second amended lease. Samuels also acknowledged writing a letter to the property management in which he thanked it "for the return of the office lease" and asked it to apply a $10,000 credit, to which he claimed he was entitled under the second amended lease, toward his upcoming rent. When confronted with this letter, Samuels contended, however, that he was merely "testing" LaSalle to see "what kind of people he was dealing with" by seeing if they would apply his credit toward his rent, which, he testified, it did not.
In its summation, Zirp-Burnham argued: "I think your common sense tells you there was a lease and E. Terrell Associates (inaudible) integrity to enter into an agreement and did so when it signed the lease, when it took possession, when it paid rent, when it had to call the management for a light bulb because the light bulb needed to be fixed." Samuels on behalf of himself and E. Terrell countered that Zirp-Burnham was "money grubbing," and asked the jury to return a verdict of no liability based on what he characterized as LaSalle's "sharp practice" and "willful misrepresentation" as to who the trustee/landlord was in the lease and guaranty, from which he contended Zirp-Burnham should not benefit. In rebuttal, Zirp-Burnham countered that defendants could not claim to have been defrauded or taken advantage of through a sharp practice when the returned lease showed that LaSalle was the successor trustee/landlord. Zirp-Burnham then went on to argue:
After deliberating, the jury returned a verdict in favor of Zirp-Burnham in the amount of $101,435.60.
E. Terrell and Samuels argued this point at the hearing on the motion, but also contended that the guaranty was unenforceable because the parties had changed from when he signed it, as American National Bank had ceased to be the landlord and briefly argued that Zirp-Burnham could not collect for future rent. The circuit court denied the motion for judgment notwithstanding the verdict, and defendants appealed.
On appeal, defendants contend that the second amended lease is unenforceable because they never agreed to enter into a lease with LaSalle, reasserting their claim that the handwritten and stamped modifications presenting LaSalle as the landlord occurred only after they had already signed the second amendment. Defendants similarly further contend that the guaranty is unenforceable because the second reaffirmation lists only American National Bank as the landlord, but they also contend that it is unenforceable because
Our review of this case is limited since E. Terrell and Samuels elected, post-trial, only to pursue a judgment notwithstanding the verdict. "While a motion for a new trial may preserve, on review, * * * matters concerning the trial's outcome where specifically raised in the motion [citation], a motion for judgment notwithstanding the verdict preserves only a question as to whether, in consideration of all of the evidence presented, there is any evidence which tends to support the verdict." (Emphasis added.) Forrester v. Patrick, 167 Ill.App.3d 105, 109-10, 117 Ill.Dec. 837, 520 N.E.2d 1188, 1192 (1988).
"When reviewing a court's denial of a motion for judgment n.o.v., the reviewing court should apply the same standard that was applied at the trial level, and not reweigh the evidence." Ficken v. Alton & Southern Ry. Co., 291 Ill.App.3d 635, 639, 226 Ill.Dec. 187, 685 N.E.2d 1, 5 (1996). See also Langston v. Chicago & Northwestern Ry. Co., 330 Ill.App. 260, 263, 70 N.E.2d 852, 854 (1946) ("The scope of the inquiry on this review is restricted, as it was in the trial court * * * to whether * * * there is any evidence tending to prove any cause of action stated in the complaint. * * * [T]he weight and credit to be attached to [the trial victor's evidence] * * * are questions of fact for the jury"); Vasquez v. Jacobs, 23 Ill.App.2d 457, 462, 163 N.E.2d 230, 232 (1960) ("In ruling upon defendant's motion for judgment notwithstanding the verdict, the court must determine if there is evidence, or reasonable inferences from that evidence, which, taken in the light most favorable to the plaintiff, sustains his complaint. If there is, the motion must be denied irrespective of contrary evidence or the weight of the evidence" (emphasis added)). Moreover, "all of the evidence favorable to the [nonmoving party] upon the issues involved should be considered as true." Victor v. Dehmlow, 405 Ill. 249, 256, 90 N.E.2d 724, 728 (1950). Thus, the "single question presented under such motions is whether there is any evidence which, standing alone and taken with all its intendments most favorable to the [nonmoving party,] * * * fairly tends to support the cause of action so that the jury might reasonably have found for the plaintiff." (Emphasis added.) Wolford Morris Sales, Inc. v. Weiner, 75 Ill.App.2d 238, 246, 221 N.E.2d 308, 312 (1966).
Zirp-Burnham presented two claims in its complaint: breach of the lease by E. Terrell, and breach of the guaranty by Samuels. To recover for the breach of a contract, a party must establish the following elements: "(1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff." Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill.App.3d 15, 27, 256 Ill.Dec. 488, 752 N.E.2d 33, 43 (2001). Included in the formation of a valid contract are offer and acceptance, consideration, and definite and certain terms. See Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill.App.3d 929, 940, 284 Ill.Dec. 868, 810 N.E.2d 658, 669 (2004).
As to the alleged breach of the second amended lease, Samuels testified that the property management of Zirp-Burnham gave him a proposed second amendment to the lease. Thus, there is evidence that E. Terrell received an offer. There is no dispute that the lease, which was introduced into evidence, contained definite and certain terms. The second amendment, and the terms of the original lease which it incorporated, contemplated an exchange of promises, such as the promise of rent payments from E. Terrell in exchange for use of office space in the Burnham Center and maintenance services from the landlord. There was testimony from which the jury could conclude that Zirp-Burnham substantially performed its duties under the lease, including Samuels' admissions that E. Terrell did occupy an office suite in the Burnham Center and that maintenance personnel undertook such projects as changing light bulbs in the suite. Finally, there is no dispute that, if the lease was otherwise valid, E. Terrell breached its terms by ceasing to pay rent and Zirp-Burnham suffered damages as a result. The only issue as to liability presented by defendants is whether there was any evidence that they ever accepted a promise from LaSalle and, similarly, whether there was consideration in the form of exchanged promises between E. Terrell and LaSalle. We think there was.
To begin, there was the combination of the alterations identifying LaSalle as successor trustee on the second amendment, bearing Samuels' signature, in conjunction with his letter thanking the property management for the return of the lease. Contrary to Samuels' assertion, this is evidence that could reasonably be construed by the jury as showing that the alterations existed at the time he executed that amendment on behalf of E. Terrell. A reasonable inference for the jury to make would have been that if the alterations to the second amendment were discovered for the first time when the property manager returned a copy to E. Terrell, then E. Terrell would have immediately sent a letter of protest disavowing the lease, rather than a letter thanking the management for returning a copy to him and asking for the application of a credit to rent due for upcoming months covered under the second amended lease. Moreover, we conclude that the evidence would have allowed the jury to accept Zirp-Burnham's arguments that, even if LaSalle did not appear on the second amendment as successor trustee at the time Samuels signed it, E. Terrell subsequently ratified a lease with LaSalle and that the identity of the trustee/landlord was actually immaterial to E. Terrell.
Here, Samuels admitted to being aware that LaSalle claimed to be the successor trustee and landlord shortly after signing a second amended lease form, regardless of whether LaSalle appeared on the form when he signed. As previously mentioned, E. Terrell made no written disclaimer of the lease even after, according to Samuels, the management rebuffed his oral disclaimer. Instead, E. Terrell continued to occupy its office suite and started to pay rent in the amount specified in the second amended lease. We think this is evidence from which the jury could infer E. Terrell's affirmance of the lease. We note the similarity of these facts to the following example presented in the Restatement of a ratification of an otherwise voidable contract:
At trial, E. Terrell attempted to argue that its conduct after the lease was returned merely established the creation of a month-to-month tenancy. However, no month-to-month tenancy was created because "a month to month tenancy is * * * governed by the terms of the original lease" (A.O. Smith Corp. v. Kaufman Grain Co., 231 Ill.App.3d 390, 399, 173 Ill.Dec. 277, 596 N.E.2d 1156, 1163 (1992)), whereas here, E. Terrell paid the increased amount of rent specified in the second amendment. See also Hoefler v. Erickson, 331 Ill.App. 577, 584, 73 N.E.2d 448, 451 (1947) ("it is the holding over and paying the same rent, without further agreement, that creates a tenancy from month to month").
Moreover, the previous lease itself addressed payments due from tenants in the event they remained in possession of office space after the termination of their leases. The lease provided:
Thus, were E. Terrell, in fact, to have disavowed the second amended lease, under the terms of the original lease, it should have paid double rent while continuing to occupy the office suite. However, by paying the amount specified under the second amended lease, it paid less. These facts too would reasonably suggest to a jury that E. Terrell ratified the second amended lease. See George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co., 12 Ill.App.3d 362, 365, 299 N.E.2d 601, 603 (1973) ("Illinois cases are clear that retaining the benefits is tantamount to ratification").
Furthermore, there was evidence to show that the lease should be enforced because it made no difference to E. Terrell who the trustee/landlord was. As Professor Corbin explained:
This principle has not been limited to cash sales, however. In the case of Dunbar v. Weston, 93 F. 472 (N.D.N.Y.1899) a lumber shipper attempted to void its cartage contract when it claimed that it was mislead into believing that a boat's captain was its owner. Dunbar, 93 F. at 473. While the general character of the owner was as good as the captain's, the shipper claimed to know the owner "unfavorably." Dunbar, 93 F. at 473. Reviewing this situation, the Dunbar court determined:
The Dunbar court therefore held that the shipper's cartage contract with the owner was enforceable. Dunbar, 93 F. at 473.
So too here, there was evidence from which a jury could conclude that the identity of the trustee/landlord was unimportant in E. Terrell's decision to enter into the second amended lease. Samuels testified that the Burnham Center was considered to be a prime location for law firms because of its close proximity to courthouses and other government facilities and that he signed a lease on behalf of E. Terrell for space there for that reason. While he also claimed that his knowledge that American National was the landlord influenced that decision, and his decision to renew the lease on two occasions, these assertions were belied by his testimony
Turning then to the guaranty, we first note that Samuels has waived any challenge to its validity that is independent of the validity of the second amended lease. An appellant must present his contentions with specificity in a posttrial motion to preserve them for review. See 735 ILCS 5/2-1202(b) (West 2002); 155 Ill.2d R. 366(b)(2)(iii); Brown v. Decatur Memorial Hospital, 83 Ill.2d 344, 47 Ill.Dec. 332, 415 N.E.2d 337 (1980). "Illinois courts have continued to find issues waived if not raised in a posttrial motion." Johnson v. Transport International Pool, Inc., 345 Ill.App.3d 471, 474, 280 Ill.Dec. 704, 802 N.E.2d 1225, 1228 (2003). Posttrial motions must be in writing. Welch v. Ro-Mark, Inc., 79 Ill.App.3d 652, 656, 34 Ill.Dec. 910, 398 N.E.2d 901, 904 (1979) ("The defendants' oral motion, seeking a ruling by the court on the reserved motion for a directed verdict[,] * * * was insufficient because it was not presented in a written motion"). Here, in the written motion for judgment notwithstanding the verdict contained in the record, the only challenge was to the validity of the second amended lease; no mention was made of the guaranty. See Daniel v. Elgin, Joliet & Eastern Railway Co., 58 Ill.App.2d 414, 419, 208 N.E.2d 311, 313-14 (1965) ("Defendant * * * maintains that the court erred in not granting its motion for a judgment notwithstanding the verdict. It claims that plaintiff was guilty of contributory negligence * * *. The jury in answering a special interrogatory found that plaintiff was not * * *. * * * [D]efendant did not object in its post-trial motion to the answer to the interrogatory, and therefore the question was not properly preserved for review"). However, even in the absence of waiver, we would still agree with Zirp-Burnham that the guaranty is enforceable.
Samuels argues that he is relieved from personal liability based on the erroneous listing of American National as trustee and landlord on the second reaffirmation of the guaranty. Thus, he asks for us to find that the second reaffirmation was voidable. Halla v. Chicago Title & Trust Co., 412 Ill. 39, 47, 104 N.E.2d 790, 795 (1952) ("a contract induced by fraud is not void but only voidable at the election of the party claiming to have been defrauded"); Watt v. Cecil, 368 Ill. 510, 518, 15 N.E.2d 292, 296 (1938) ("an act done or contract made under a mistake as to a material fact is voidable"). A voidable contract may be ratified and therefore requires the party seeking to prevent its enforcement to have promptly sought rescission of the contract. Illinois State Bar Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill.App.3d 156, 165-167, 290 Ill.Dec. 394, 821 N.E.2d 706 (2004). "Where a contract is rescinded, the rights of the parties under that contract are vitiated or invalidated" and the parties are returned to their initial status prior to execution of the contract. Coregis, 355 Ill.App.3d at 165, 290 Ill.Dec. 394, 821 N.E.2d 706.
Here, however, even if we found the second reaffirmation of the guaranty to be voidable, the result would still be to apply the terms of the original guaranty, as that document's prospective language would have continued to control even in the absence of Samuels' reaffirmations. As noted earlier, the original guaranty provided that Samuels "guarantee[d] the landlords, its successors and assigns, the prompt and full payment of all Rent," "notwithstanding any amendment, addition, assignment, sublease, transfer, renewal,
Samuels argues that we may not credit this forward-looking language as he contends that guaranties may not be assigned as a matter of law. In support of this contention he relies on the nineteenth century case of Second National Bank of Peoria v. Diefendorf, 90 Ill. 396, 1878 WL 10171 (1878). We agree with Zirp-Burnham that that case has no bearing on the case at bar since, in that case, the guaranty never provided that it would extend to successors and assigns. Diefendorf, 90 Ill. at 407 ("The telegram [containing the guaranty] is directed to that bank, and it is a promise only to and for the benefit of that bank. A surety can only be charged where the case is brought within the very terms of his contract. A promise to Diefendorf is not within the terms of this contract * * *"). Here, however, the guaranty specifically provides that it shall inure to the benefit of the landlord's successors and assigns, and, where such language has been present, Illinois courts have enforced guaranties on their behalf. O'Malley, 249 Ill.App.3d at 356, 188 Ill.Dec. 248, 618 N.E.2d at 830; Bairstow, 319 Ill.App. at 636, 50 N.E.2d at 113.
Nevertheless, Samuels still argues that the guaranty is unenforceable because the terms of the guaranteed performance changed with the amendments to the lease. However, that argument ignores the fact that, as already discussed, the guaranty's language provided that the guaranty would remain intact regardless of changes and modifications to the lease including extensions of the lease. Moreover, in any event, there is no basis to presume here that the change was material as a matter of law so as to negate the jury's verdict. For a change to be "material," so as to release a guarantor from his duty, it must expose the guarantor to a "substantial" increase in the risk assumed. Roels v. Drew Industries, Inc., 240 Ill.App.3d 578, 581-82, 181 Ill.Dec. 338, 608 N.E.2d 411, 413-14 (1992). The only change in terms that Samuels advanced below as relieving him of liability was the change in the landlord; as Samuels stated in arguing for a directed verdict, "I believe in guarantee law — the guarantor must agree to any change in the parties." However, contrary to Samuels' argument, the Roels court stated that it "is clear that a mere change in the name of the debtor without a change in legal status does not release a guarantor from liability." Roels,
In light of these determinations, we need not address Zirp-Burnham's argument that the second amended lease and second reaffirmation are valid in any case because defendants always entered their agreements with the trust, which remained constant and was always properly identified, and never with the trustee. However, while Zirp-Burnham does not refer us to precedent explicitly holding that trusts and not trustees enter contracts with third parties surrounding trust property, we do note that the proposition has at least been suggested in some cases. See Eichler v. Plitt Theatres, Inc., 167 Ill.App.3d 685, 688, 118 Ill.Dec. 503, 521 N.E.2d 1196, 1198 (1988) ("a lease agreement * * * was entered into between Urban trust II [a land trust] and defendant"); Bairstow, 319 Ill.App. at 636-37, 50 N.E.2d 111 (holding that a corporate successor trustee could enforce a guaranty, which explicitly granted the right of enforcement to the original trustee, since the power of enforcement was ministerial and not personal).
We conclude with defendants' claim that the jury could not award rent as damages for any period beyond when E. Terrell vacated its office suite, and agree with Zirp-Burnham that this issue does not merit consideration as defendants have failed to cite any authority to support their proposition in their opening brief. See In re Marriage of Winton, 216 Ill.App.3d 1084, 1090, 159 Ill.Dec. 933, 576 N.E.2d 856, 860 (1991) ("A court of review is entitled to have issues clearly defined and to be cited to pertinent authority. [Citation.] The appellate court is not a depository in which the appellant may drop the burden of argument and research. [Citation.] Arguments which do not satisfy the requirements of Supreme Court rule 341(e)(7) [requiring citation to pertinent authorities] do not merit consideration on appeal" [Citation.]). However, were we to fully review defendants' contention, we would adhere to Elliott v. LRSL Enterprises, Inc., which held that where, as here, the lease provides for a tenant's continued payment of rent after terminating possession of the property, but prior to the expiration of the lease, such provisions should be enforced. Elliott v. LRSL Enterprises, Inc., 226 Ill.App.3d 724, 729-30, 168 Ill.Dec. 674, 589 N.E.2d 1074, 1077-78 (1992).
For all the foregoing reasons, we affirm the judgment of the circuit court.
CAHILL, P.J., and McBRIDE, J. concur.