Young v. Cerniak

Page 658 The plaintiff, Orchard Shopping Center, Inc., brought this action to recover unpaid rent in the amount of $16,300 and attorney fees and costs from the defendants Michael Campo and John Rimar. The action was based on a written lease agreement between the plaintiff as lessor and Michael Campo and Gerald Hillyard as lessees. Gerald Hillyard died prior to the commencement of the suit. The plaintiff alleged in its first amended complaint that Gerald Hillyard and Michael Campo had assigned their interest to John Rimar. Following a bench trial the trial court found that there had been an oral modification of the lease between plaintiff and defendant Campo, which had resulted in a rescission of the lease agreement. The trial court found further that plaintiffs actions estopped their claim regarding defendant Campo. The court found the defendant Rimar liable for damages during the period in which he was in possession of the estate. The court entered judgment against plaintiff in favor of defendant Campo and in favor of plaintiff against the defendant Rimar in the amount of $1,300 and denied the plaintiffs claim for attorney fees. The trial court also entered judgment in favor of the defendant Rimar against the defendant Campo on the counterclaim of the latter. The defendant Rimars post-trial motion for modification of the judgment, by crediting him with a $650 deposit, was denied. The plaintiff brought this appeal raising three issues: (1) whether the trial courts findings that defendant Campo was released from liability and that plaintiff was estopped from its claim against him was against the manifest weight of the evidence; (2) whether the trial court erred in finding defendant liable only for the time he was in possession of the property because, the plaintiff urges, the agreement with Rimar was an assignment Page 659 rather than a sublease; and (3) whether the denial of attorney fees and costs was erroneous. No appeal has been taken concerning the part of the judgment dealing with the counterclaim.