2023 IL App (1st) 220908-U FIRST DISTRICT, FIRST DIVISION July 17, 2023
No. 1-22-0908
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
) ) PURE’S FOOD SPECIALTIES, LLC, Appeal from the ) Circuit Court of ) Plaintiff-Appellee, Cook County, Illinois. ) v. ) No. 2020 M5 1470 ) FOX VENDING, INC., ) Honorable ) Defendant-Appellant. Kathleen M. Burke, ) Judge Presiding. )
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Lavin and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: The judgment of the trial court denying defendant’s motion to dismiss is reversed where plaintiff’s complaint for declaratory judgment is moot. The subsequent orders granting judgment on the pleadings and attorney fees in favor of plaintiff are vacated.
¶2 On March 1, 2017, plaintiff Pure’s Food Specialties, LLC (Pure’s) and defendant Fox
Vending, Inc. (Fox) entered into an agreement for defendant to provide vending machine
equipment and services in plaintiff’s employee cafeteria for an initial term of 36 months. The No. 1-22-0908
agreement would automatically renew for an additional 36 months at the end of the initial term,
absent notice of intent to non-renew or terminate the agreement by either party. On November
26, 2019, plaintiff sent a termination letter to defendant via email. Defendant refused to accept
plaintiff’s notice of termination because it was not sent via certified mail (as required by the
agreement) and considered the agreement to have renewed.
¶3 On February 26, 2020, plaintiff filed a complaint for declaratory judgment, seeking a
declaration that the agreement “expired on March 1, 2020, as a result of [defendant’s] actual
receipt of written notice of termination ***,” the removal of defendant’s vending equipment, and
attorney fees. Defendant removed its vending equipment two days after the complaint was filed.
Defendant moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil
Procedure (Code) (735 ILCS 2-619(a)(9) (West 2020)), arguing that the action is moot because
defendant removed its vending equipment, allowing the agreement to terminate. The trial court
denied defendant’s motion to dismiss.
¶4 The parties filed cross-motions for judgment on the pleadings. The trial court granted
plaintiff’s motion, denied defendant’s motion, and granted plaintiff’s petition for attorney fees.
On appeal, defendant argues that the trial court erred in denying its motion to dismiss because
the removal of its vending equipment rendered plaintiff’s complaint moot. For the following
reasons, we reverse in part and vacate in part.
¶5 BACKGROUND
¶6 The record on appeal does not contain a report of proceedings. The following background
is adduced from our review of the common law record. Plaintiff is a cookie and baked snacks
manufacturer. Defendant supplies and services vending machine equipment. On March 1, 2017,
the parties entered into a “Service Location Agreement” (agreement), providing that defendant
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would install and service vending equipment in plaintiff’s employee cafeteria. Plaintiff granted
defendant the “exclusive right to maintain all automatic vending machines in the premises.”
¶7 Section 7 of the agreement provides that the agreement’s initial term is 36 months and
“shall renew itself automatically for like periods, and the same terms and conditions, unless
either party first gives the other written notice, sent by Certified Mail, of its intention to ‘non-
renew’ said AGREEMENT, prior to sixty (60) days of the expiration” of the agreement. Section
8 gives “[e]ither party *** the right to terminate this Agreement immediately upon written notice
to the other party,” under certain circumstances. One of those circumstances being: “At the
conclusion of the initial term of 36 months and in absence of a new agreement, the LOCATION
shall have the right to terminate this agreement for any reason upon 90 days prior written
notice.” The agreement further provides that “[t]he prevailing party in any action filed related to
this AGREEMENT shall be entitled to recover its costs and expenses from the other party,
including, without limitation, reasonable attorney fees.”
¶8 As plaintiff’s workforce grew, it became “dissatisfied” with defendant’s inventory,
stocking, maintenance, and customer service. On November 26, 2019, plaintiff sent defendant a
“termination letter” via email, stating, “[P]lease allow this letter to serve as a termination of the
contract ending on March 1, 2020.” Plaintiff also requested that defendant “finalize the details
regarding vending removal.”
¶9 In response, defendant’s President, Jennifer Fox, requested a meeting to discuss the issue.
Plaintiff responded that “the decision has been made to move forward with another vendor,” and
asked defendant to coordinate the pickup of the vending machines. On December 9, 2019,
representatives of both parties met to discuss the matter.
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¶ 10 On February 12, 2020, plaintiff asked defendant for a “target date for the removal of [its]
equipment.” On February 13, 2020, defendant sent a letter via email to plaintiff, indicating that
“[b]ecause Fox Vending never received the required notice of cancellation[,] the machines will
remain in place.” Quoting section 7 of the agreement, defendant maintained that plaintiff needed
to “give written notice via Certified Mail, prior to sixty days of the expiration of said
agreement,” and that because it did not receive adequate notice of non-renewal, it considered the
agreement to be renewed “through February 2023.”
¶ 11 On February 26, 2020, plaintiff filed a complaint for declaratory judgment, seeking a
declaration that the agreement “expired on March 1, 2020, as a result of [defendant’s] actual
receipt of written notice of termination on November 26, 2019 ***.” Plaintiff also requested that
the court direct defendant to remove its vending equipment because plaintiff “executed a vending
services contract with a new vending provider” and “[defendant] has refused to confirm it will
remove its Vending Equipment.” Plaintiff alleged that the parties had “adverse, legal tangible
interest in the current state of the Agreement” and that requiring it “to be bound by the
Agreement for an additional three (3) year term would cause Pure’s to suffer an undue hardship,
by subjecting [it] to *** continued substandard servicing and other performance deficiencies
***.” 1
¶ 12 On August 26, 2020,2 defendant filed a motion to dismiss plaintiff’s complaint pursuant
to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2020)), arguing that plaintiff’s
1 Plaintiff attached various email correspondence between the parties to its complaint, including: the November 26, 2019 termination letter; emails between Ms. Fox and plaintiff’s representative following receipt of the termination letter; plaintiff’s February 12, 2020 email requesting a “target date” for the equipment’s removal; and defendant’s February 13, 2020 letter in response. 2 On June 10, 2020, plaintiff filed a motion for order of default against defendant. On August 4, 2020, defendant moved to file its appearance and vacate any and all technical defaults. The trial court’s rulings on these motions are not in the record on appeal. -4- No. 1-22-0908
action for declaratory judgment was “premature” since the agreement “had not yet expired and
Fox was required to remove its vending equipment from Plaintiff’s property on March 1, 2020.”
Defendant also argued that the action was moot because following the removal of the vending
equipment, it was “impossible for Pure’s to be contractually bound to an additional three year
term ***.” Therefore, the agreement “expired by its own terms *** and substantive claims
relating to the parties’ Agreement requiring adjudication by this court no longer exist.”
Defendant asserted that it was entitled to attorney fees as the prevailing party if it prevailed on its
motion. In support of the motion, defendant attached a February 28, 2020 email from plaintiff’s
counsel stating, “I am advised that notwithstanding Pure’s offer to allow the vending equipment
to remain in place through March 1, the equipment will be picked up today. I am glad that at
least one component of this dispute was able to be resolved amicably.” Counsel also informed
defendant that plaintiff’s complaint was “presently out for service on [its] registered agent.”
¶ 13 In response, plaintiff argued that the action was not premature because plaintiff was not
obligated to, “at its peril, expose itself to injury by waiting for the Agreement to renew.” Plaintiff
also argued that the removal of the vending equipment did not moot the action because its
complaint also sought “an adjudication of whether it properly terminated the Agreement,” and
the removal of the equipment “does not foreclose any potential claims of damages for breach of
contract by [defendant].” Relying on Kern v. Chicago & Eastern Illinois Railroad Co., 44 Ill.
App. 2d 469 (1963), plaintiff also asserted that the action was not moot because “there is no
indication that [defendant] would have removed its equipment in the absence of [plaintiff’s]
complaint,” and defendant “still vigorously argues that it considers [plaintiff’s] termination
improper and that it had no obligation to remove its equipment.” 3
3 Defendant did not file a reply. -5- No. 1-22-0908
¶ 14 On December 1, 2020, the trial court denied defendant’s motion to dismiss. Defendant
filed its answer on March 10, 2021.
¶ 15 On March 29, 2021, defendant filed a motion for judgment on the pleadings pursuant to
section 2-615(e) of the Code (735 ILCS 5/2-615), arguing, inter alia, that plaintiff’s termination
letter was ineffective notice of intent to “non-renew” the agreement because it was not sent via
certified mail. Defendant also asserted that plaintiff’s termination letter was “sent prematurely
before the conclusion of the initial term of 36 months.” In a footnote, defendant reasserted that
“Plaintiff’s complaint became moot the moment Fox removed its machines thereby permitting
another commercial vendor to utilize the space of Plaintiff.”
¶ 16 On April 19, 2021, plaintiff filed a combined response to defendant’s motion, and a
cross-motion for judgment on the pleadings. Plaintiff argued that defendant received “actual
notice” of plaintiff’s intent not to renew the agreement, and that it sent proper notice of
termination more than 90 days prior to the end initial contract term. Plaintiff also responded to
the mootness argument, asserting that defendant “still vigorously argues that it considers
[plaintiff’s] termination improper.”
¶ 17 On September 22, 2021, following full briefing and oral argument on the parties’ cross-
motions for judgment on the pleadings, the trial court denied defendant’s motion and granted
plaintiff’s motion for “the reasons stated on the record.”
¶ 18 On October 13, 2021, plaintiff filed a petition for attorney fees. 4 Defendant filed a motion
for an evidentiary hearing on the fee petition, which was granted, and an evidentiary hearing was
held on May 5, 2022. On May 18, 2022, the trial court entered a final order granting plaintiff’s
fee petition and awarding plaintiff $46,741.89 in attorney fees and costs.
4 Defendant filed a response to plaintiff’s fee petition, but it is not in the record on appeal. -6- No. 1-22-0908
¶ 19 ANALYSIS
¶ 20 On appeal, defendant argues that the trial court erred in denying its motion to dismiss
because plaintiff’s claim is moot. Section 2-619(a)(9) of the Code permits involuntary dismissal
where “the claim asserted against defendant is barred by other affirmative matter avoiding the
legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9). A section 2-619 motion to
dismiss admits the legal sufficiency of the complaint but asserts that an affirmative defense or
other matter defeats the plaintiff’s claim. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367
(2003). When ruling on a section 2-619 motion to dismiss, the court “ ‘must interpret all
pleadings and supporting documents in the light most favorable to the nonmoving party.’ ” Id. at
367-68 (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). We review the trial
court’s ruling on a section 2-619 motion to dismiss de novo. Id. at 368.
¶ 21 Sufficiency of the Record
¶ 22 Initially, plaintiff argues that we must affirm the judgment of the trial court because the
record on appeal does not contain a report of proceedings, certified bystander’s report, or agreed
statement of facts. See Ill. S. Ct. R. 323(c), (d) (eff. July 1, 2017) (if no report of proceedings is
available, appellant may prepare a bystander’s report or agreed statement of facts). It is well
established that the appellant has the burden to present a sufficiently complete record of the
proceedings below to support a claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984). In
the absence of a sufficient record on appeal, “it will be presumed that the order entered by the
trial court was in conformity with the law and had a sufficient factual basis.” Id. at 392. Any
doubts arising from the incomplete record will be construed against the appellant. Lytle v.
Country Mutual Insurance Co., 2015 IL App (1st) 142169, ¶ 28 (citing Foutch, 99 Ill. 2d at 392).
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¶ 23 However, “whether there is an affirmative matter defeating a claim [is a] question[ ] of
law that we review de novo, without showing deference to the trial court’s reasoning.” Bezanis v.
Fox Waterway Agency, 2012 IL App (2d) 100948, ¶ 11. Since our review is de novo and because
we have the benefit of reviewing defendant’s motion to dismiss and plaintiff’s response, the
absence of a report of proceedings does not preclude our review of defendant’s claim of error.
See Midstate Siding Window Co., Inc. v. Rogers, 204 Ill. 2d 314, 319 (2003) (the “lack of a
complete record” did not bar the court’s review because the issue on appeal was a question of
law); see also Candice Co., Inc. v. Ricketts, 281 Ill. App. 3d 359, 362 (1996) (considering issues
raised on appeal absent a report of proceedings because the report of proceedings “would contain
only the arguments of counsel and the remarks of the judge, none of which would be controlling
in our determination of a question of law”).
¶ 24 Mootness
¶ 25 “The declaratory judgment procedure allows the court to take hold of a controversy one
step sooner than normally—that is, after the dispute has arisen, but before steps are taken which
give rise to claims for damages or other relief. The parties to the dispute can learn the
consequences of their action before acting.” (Internal quotation marks omitted.) Beahringer v.
Page, 204 Ill. 2d 363, 372-73 (2003); see 735 ILCS 5/2-701(a) (West 2020). A declaratory
judgment action “determine[s] the rights of the parties so that the plaintiff can alter his future
conduct to avoid liability.” Adkins Energy, LLC v. Delta-T Corp., 347 Ill. App. 3d 373, 348
(2004). An action for declaratory judgment requires: (1) a plaintiff with a tangible legal interest,
(2) a defendant with an opposing legal interest, and (3) an “actual controversy” between the
parties concerning such interests. Id. at 372.
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¶ 26 An “actual controversy” “requires a showing that the underlying facts and issues of the
case are not moot or premature, so as to require the court to pass judgment on mere abstract
propositions of law, render an advisory opinion, or give legal advice as to future events.”
Underground Contractors Ass’n v. City of Chicago, 66 Ill. 2d 371, 375 (1977). “The case must,
therefore, present a concrete dispute admitting of an immediate and definitive determination of
the parties’ rights, the resolution of which will aid in the termination of the controversy or some
part thereof.” Id. A case is moot “if no actual controversy exists or where events occur which
make it impossible for the court to grant effectual relief.” Wheatley v. Board of Education of
Township High School Dist. 205, 99 Ill. 2d 481, 485 (1984). In other words, a case is considered
moot where the plaintiff “secured what he basically sought and a resolution of the issues could
not have any practical effect on the existing controversy.” Hanna v. City of Chicago, 382 Ill.
App. 3d 672, 676 (2008) (citing People ex rel. Newdelman v. Weaver, 50 Ill. 2d 237, 241
(1972)).
¶ 27 Defendant argues that this case is moot because the removal of its vending equipment
“allowed the thirty-six month contract term to expire” and “rendered it impossible for the trial
court to grant effectual relief as to any future contract obligations and rights under the contract.”
Plaintiff sought (1) a declaration that the agreement “expired on March 1, 2020, as a result of
[defendant’s] actual receipt of written notice of termination on November 26, 2019 *** ” (2) the
removal of defendant’s vending equipment from its premises so it could effectuate its contract
with a new vendor, and (3) attorney fees. The parties do not dispute that the agreement
terminated at the end of the initial 36-month term. While defendant initially claimed that the
agreement renewed, defendant removed its vending equipment from plaintiff’s premises on
February 28, 2020, allowing the agreement to terminate. At that point, defendant could no longer
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enforce a renewed contract term against plaintiff. Therefore, plaintiff “secured basically what [it]
sought” and a declaration that plaintiff properly terminated the agreement “could not have any
practical effect on the existing controversy.” See id.
¶ 28 In Wheatley, 99 Ill. 2d at 483, the plaintiffs filed a class action lawsuit on behalf of
themselves and 57 other teachers who were discharged by the Board of Education. The plaintiffs
requested a writ of mandamus directing the Board to rescind the dismissals and a declaratory
judgment that the Board violated a section of the School Code by dismissing them without
holding a public hearing. Id. The trial court dismissed the complaint as moot because “all but
five of the honorably dismissed tenured teachers were either reemployed or offered, but refused,
reemployment by the Board.” Id. at 484. The appellate court reversed, finding that the issues
were not moot as to the teachers who were not offered reemployment. Id. Our supreme court
disagreed, holding that the action was moot because “one month after this action was filed, the
named representative plaintiffs accepted the Board’s offer of employment.” Id. “By virtue of
accepting employment, [plaintiffs] were granted the essential relief demanded,” and there “is no
longer a controversy between them and the Board.” Id.
¶ 29 Similarly, here, plaintiff received the “essential relief demanded”: defendant’s vending
equipment was removed, the agreement was terminated, and plaintiff was free to proceed with its
contract with a new vending service provider. Plaintiff attempts to distinguish Wheatley, arguing
that its complaint “does not merely seek the removal of [defendant’s] Equipment, but also (1) a
declaration the Contract’s operative term ended on March 1, 2020, and (2) an award of attorneys’
fees and costs.” However, defendant does not dispute that the agreement terminated at the end of
the initial term. And plaintiff’s request for attorney fees is “ ‘ancillary to the underlying action’ ”
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and “does not rescue the moot claim[ ].” See Duncan Publishing, Inc. v. City of Chicago, 304 Ill.
3d 778, 782-83 (1999).
¶ 30 Plaintiff predominately relies on the state of the controversy before defendant removed
the equipment, arguing that the case is not moot because defendant “threatened to enforce the
Contract for an additional 3-year term and sue [plaintiff] to enforce the additional 3-year term.”
Specifically, plaintiff relies on a February 24, 2020 email from defendant’s counsel, stating,
“Should you advise Pure’s Food to move or remove the equipment of Fox or otherwise dishonor
the exclusive service contract that was bargained for by allowing a competitor of Fox to provide
vending services, then do so at your own peril.”5 While “[a]n expression of intent by one party to
take legal action against another can be the basis of an actual controversy ripe for declaratory
relief” (emphasis added) (Roland Machine Co. v. Reed, 339 Ill. App. 3d 1093, 1095 (2003)),
plaintiff ignores that defendant removed its vending equipment four days after this email was
sent. The fact that plaintiff’s complaint may have presented an actual controversy when initially
filed does not prevent the court from finding that the claim has become moot. See, e.g.,
Wheatley, 99 Ill. 2d at 485; Yu v. International Business Machines Corp., 314 Ill. App. 3d 892,
898 (2000) (case properly dismissed as moot because “[o]nce defendants tendered the requested
relief to plaintiff ***, there was no longer a case or controversy”).
¶ 31 Plaintiff further asserts that because defendant “never assented to [plaintiff’s] termination
of the Contract, *** [defendant], absent the circuit court’s ruling, could have pursued a breach-
of-contract action” against plaintiff. (Emphasis added.) “A declaratory judgment action is not
intended to permit moot or hypothetical cases, or to enable the parties to secure advisory
opinions or legal advice from the court with respect to anticipated future difficulties ***.”
5 This email was attached to defendant’s answer. - 11 - No. 1-22-0908
(Internal quotation marks omitted.) Byer Clinic & Chiropractic, Ltd. v. State Farm Fire &
Casualty Co., 2013 IL App (1st) 113038, ¶ 17. The only practical effect of determining whether
plaintiff properly terminated the agreement would amount to an advisory opinion as to a
potential breach of contract claim that has not been asserted by defendant. See Balmoral Racing
Club, Inc. v. Illinois Racing Board, 151 Ill. 2d 367, 387 (1992) (“Where a decision reached on
the merits cannot result in appropriate relief to the prevailing party, the court has, in effect,
rendered an advisory opinion. *** We do not review cases merely to guide future litigation or to
set precedent.”); see also HealthChicago, Inc. v. Touche, Ross and Co., 252 Ill. App. 3d 608, 610
(1993) (“When a case is rendered moot, a court’s decision on the merits cannot afford either
party relief and any decision thus reached is merely an advisory opinion.”).
¶ 32 Plaintiff relies extensively on Kern v. Chicago & Eastern Illinois Railroad Co., 44 Ill.
App. 2d 468 (1963), to support its argument that this case is not moot. In Kern, a class of
stockholders sued a corporation and its board members for declaratory judgment, alleging that
defendants adopted a bylaw that would dilute the stockholders’ voting rights. Id. at 470. The
defendants revoked the offending bylaw two days after the lawsuit was filed. Id. The defendants
argued that revoking the bylaw mooted the case, but still maintained that the bylaw was valid. Id.
¶ 33 The court considered four factors to determine whether the case was moot: (1)
defendant’s continued assertion of the legality of the discontinued acts; (2) defendant’s
discontinuance of the acts before or after the institution of the suit; (3) defendant’s motive or
intent in discontinuing the acts; and (4) the public interest in having the particular issue
determined. Id. at 475. Based on the defendants’ continued assertion of the validity of the bylaw
and the fact that it was revoked only two days after the lawsuit was filed, the court concluded
that it was the defendants’ “intent at some opportune time to repeal the bylaw.” Id. at 476. There
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was also a “wide general [public] interest in the stability of preferred stock” in the large public
service corporation. Id. The court held that the mootness doctrine “will not be applied where it is
apparent that the controversy is a genuine one concerning valuable rights and where the party
defending maintains that it still has the power to annul those rights and to recreate the condition
as it existed at the time the litigation was commenced.” (Emphasis added.) Id. at 478.
¶ 34 Unlike the defendants in Kern, defendant in this case cannot “recreate the condition as it
existed” when the action was filed (i.e., by reinstalling its vending equipment and holding
plaintiff to a renewed 36-month contract term), because the agreement indisputably terminated.
In addition, Kern dealt with an issue of “wide general [public] interest,” which is inapplicable
here. The “power of the defendants to dilute the voting powers of the Class A stock
distinguishes” Kern from “cases of ordinary mootness,” such as here, “where an event makes the
subject matter of an issue no longer controversial ***.” Id. at 471.
¶ 35 The remaining relief sought by plaintiff, i.e., a declaration that it properly terminated the
agreement, is inconsistent with the purpose of a declaratory judgment action: to “provide ‘relief
against uncertainty’ before the parties change their position” (emphasis in original) (Roland, 339
Ill. App. 3d at 1099), and “determine the rights of the parties so that the plaintiff can alter his
future conduct to avoid liability” (emphasis added) (Adkins, 347 Ill. App. 3d at 378-79). There is
no future conduct for the parties to alter to avoid liability, as the parties’ contractual relationship
ended, and plaintiff contracted with a new vending service provider. Compare Karimi v. 401
North Wabash Venture, LLC, 2011 IL App (1st) 102670, ¶ 10 (affirming dismissal of declaratory
judgment action where “defendants ha[d] already terminated the purchase agreement and sold
the unit to a third party,” so plaintiffs were improperly seeking to enforce their rights “after the
fact”) with Roland, 339 Ill. App. 3d at 1102 (declaratory judgment action proper where
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contractual relationship between the parties “had not been terminated nor were the rights under
the purchase agreement fixed”).
¶ 36 Because we find that defendant’s motion to dismiss should have been granted on
mootness grounds, we need not address defendant’s alternative argument that plaintiff’s
complaint seeks an impermissible declaration of nonliability for past conduct.
¶ 37 For all of these reasons, we reverse the trial court’s judgment denying defendant’s motion
to dismiss. Accordingly, the trial court’s order granting plaintiff’s motion for judgment on the
pleadings is vacated.
¶ 38 Attorney Fees
¶ 39 Defendant argues that the trial court’s award of attorney fees to plaintiff must be vacated,
and that attorney fees should be awarded to defendant as the “prevailing party.” Illinois follows
the “American rule,” which prohibits parties from recovering attorney fees from the losing party,
unless a statutory or contractual provision provides otherwise. Sandholm v. Kuecker, 2012 IL
111443, ¶ 64. We must “strictly construe a contractual provision for attorney fees.” Bright
Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 254
(2010). We review the trial court’s attorney fee award for an abuse of discretion. Powers v.
Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 515 (2001).
¶ 40 A “prevailing party” for the 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 party that receives “judgment in his favor
is usually considered the prevailing party.” Id. “However, when both parties have experienced
success on various aspects of the litigation, it may be appropriate to find that neither party is the
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prevailing party.” Tanna Farms, L.L.C. v. Golfvisions Management, Inc., 2018 IL App (2d)
170904, ¶ 13 (citing Peleton, Inc. v. McGivern’s Inc., 375 Ill. App. 3d 222, 227-28 (2007)).
¶ 41 Plaintiff received “some benefit” in bringing the suit because it received the essential
relief requested through the removal of defendant’s vending equipment.6 However, defendant
has now prevailed on its motion to dismiss. Because both parties “achieved success on some
issues,” neither party is the “prevailing party.” See, e.g., Tanna Farms, L.L.C., 2018 IL App (2d)
170904, ¶¶ 15-16 (neither party was the “prevailing party” where plaintiff voluntarily dismissed
its claim with prejudice, but 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.”).
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we reverse the denial of defendant’s motion to dismiss and
vacate the orders granting plaintiff’s motion for judgment on the pleadings and petition for
attorney fees.
¶ 44 Reversed in part; vacated in part.
6 Relying on Buckhannon Board & Home Care, Inc., 532 U.S. 598, 605 (2001) and Bruemmer v. Compaq Computer Corp., 329 Ill. App. 3d 755, 768 (2002), defendant argues that a prevailing party must “ ‘secure either a judgment on the merits or a court-ordered consent decree.’ ” Defendant has waived this argument by raising it for the first time in its reply brief. See Ill. S. Ct. R. 341 (h)(7) (eff. Oct. 1, 2020). In any event, Buckhannon and Bruemmer construed federal statutory fee-shifting provisions, and not a contractual fee-shifting provision between two private entities under Illinois law. - 15 -