Michelmann Steel Construction Co v. Link Media Midwest, LLC
CourtAppellate Court of Illinois
Date FiledOctober 26, 2026
Docket4-25-1262
StatusUnpublished
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Full Opinion
NOTICE 2026 IL App (4th) 251262-U
This Order was filed under
FILED
Supreme Court Rule 23 and is October 26, 2026
not precedent except in the NO. 4-25-1262 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
MICHELMANN STEEL CONSTRUCTION ) Appeal from the
COMPANY, an Illinois Corporation, ) Circuit Court of
Plaintiff-Appellee and Cross-Appellant, ) Adams County
v. ) No. 19L32
LINK MEDIA MIDWEST, LLC, a Delaware Limited )
Liability Company, ) Honorable
Defendant-Appellant and Cross-Appellee. ) Scott Douglas Larson,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices DeArmond and Grischow concurred in the judgment.
ORDER
¶1 Held: (1) Unless the lease agreement provides the tenant a reasonable time after
termination of the lease for removal of trade fixtures and other personal property
of the tenant, the tenant must remove such personal property while the tenant is in
possession of the premises in the character of a tenant during the original lease
term, a renewed lease, or a successive lease, and if the tenant fails to do so, the
property becomes the landlord’s property.
(2) Absent a demonstration by citation to relevant authorities that the replacement
value of the property, as opposed to its fair market value, is a valid measure of
damages for conversion, plaintiff failed to prove the damages resulting from the
conversion and, consequently, was entitled to only nominal damages for the
conversion.
(3) Because plaintiff makes no reasoned argument, supported by relevant
authorities, regarding its claim of tortious interference with business relationships,
plaintiff has forfeited the issue of whether the circuit court erred by finding
against plaintiff on that claim.
(4) As plaintiff elected to treat defendant as a holdover tenant, there was a new
lease for the original one-year term, subject, however, to the other provisions in
the original lease agreement, including the provision that the lease would continue
beyond the original term, year by year, for five consecutive years, absent a 30-day
written notice of termination.
¶2 In the Adams County circuit court, plaintiff, Michelmann Steel Corporation
(Michelmann), sued defendant, Link Media Midwest, LLC (Link Media), for conversion,
tortious interference with business relationships, and breach of contract—counts I, II, and III of
the complaint, respectively. At the conclusion of a bench trial, in which only documentary
evidence was presented, the court found in Michelmann’s favor on count III but found in Link
Media’s favor on the remaining two counts. Link Media appeals, and Michelmann cross-appeals.
¶3 In our de novo review, we agree with the circuit court’s judgment, except for the
finding against Michelmann on count I. Michelmann proved conversion. Nevertheless, because
Michelmann failed to prove the fair market value of the converted property, it is entitled to only
nominal damages on count I.
¶4 Therefore, we affirm the circuit court’s judgment in part, reverse it in part, and
remand this case with directions. We reverse the judgment insomuch as the court found in favor
of Link Media and against Michelmann on count I. We remand this case with directions to enter
judgment in favor of Michelmann and against Link Media on count I and to award nominal
damages to Michelmann for conversion. Otherwise, we affirm the judgment.
¶5 I. BACKGROUND
¶6 A. The Complaint and the Answer
¶7 In count I of its complaint, Michelmann alleged that on April 19, 2019, Link
Media, the assignee of Michelmann’s previous lessee, Outdoor Graphics, Inc. (Outdoor
Graphics), “dismantled and removed” the “Billboard Structures” on the premises—a lot on 24th
Street in Quincy, Illinois (the lot)—and thereby converted the “Billboard Structures.” In its
answer to count I, Link Media admitted that Outdoor Graphics had assigned its interest in the
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lease to Link Media and that on April 19, 2019, Link Media had the “Billboard Structures”
removed from the lot. Link Media denied, however, that the “Billboard Structures” belonged to
Michelmann and, hence, that the removal of them was a conversion.
¶8 Count II of the complaint was an action against Link Media for tortious
interference with prospective business relationships. In that count, Michelmann alleged it had
“possessed a reasonable expectation of entering valid business relationships in regards to the
Billboard Structures” and that, “[b]y willfully and maliciously removing the Billboard Structures
from Michelmann’s property,” Link Media had “intentionally acted in such a manner so as to
disrupt, destroy[,] and interfere with” Michelmann’s “prospective business opportunities” to rent
the “Billboard Structures” to “prospective customers.” Because Link Media disputed
Michelmann’s ownership of the “Billboard Structures,” Link Media disputed it had committed
this tort as well.
¶9 The remaining count of Michelmann’s complaint, count III, was an action against
Link Media for breach of contract in that Link Media allegedly had breached the lease agreement
by failing to pay rent to Michelmann in return for its permission to engage in billboard
advertising on the lot. In its answer to count III, Link Media admitted that, “at one point in time,
Link Media’s predecessors in interest agreed to pay Michelmann [$400] per year for the lease of
land beginning on May 1, 1987[,] with annual increases in rent in the amount of [10%]”, but
Link Media denied it had defaulted on that obligation to pay rent.
¶ 10 B. Evidence at the Bench Trial
¶ 11 1. Lease Agreements
¶ 12 There was a bench trial, and the parties tried the case solely on written
submissions. The documentary evidence was essentially as follows, beginning with a series of
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lease agreements between Michelmann and various lessees.
¶ 13 On May 8, 1956, for $50 a year, Michelmann granted to Quincy Outdoor
Advertising Co. (Quincy Outdoor) “sole and exclusive permission” to “build and maintain two
Standard Poster Panels to be used for advertising” on the lot. This lease agreement was to “hold
good” until Michelmann sold the lot or erected a permanent building on it, “in which event thirty
days[’] notice, in writing,” was to be given to Quincy Outdoor. However, Quincy Outdoor might
terminate the lease “at any time” by giving Michelmann 30 days’ written notice. Michelmann
agreed that, upon the lease’s being “terminated at any time,” it would “refund all monies
advanced, pro rata, for the unexpired part of the current year” and would allow “the removal of
all boards, etc., the property of” Quincy Outdoor.
¶ 14 In a request for admission pursuant to Illinois Supreme Court Rule 216 (eff. July
1, 2014), Michelmann requested that Link Media admit that Link Media did “not know when the
billboard structures, formerly located on the Premises and removed by Link [Media] in 2019,
were erected.” Link Media answered, “Deny. The original billboard would have been
constructed after May 8, 1956[,] and before July 8, 1968, according to the leases.”
¶ 15 The next lease in the record was to Busby Outdoor, Inc. (Busby). On July 8, 1968,
Michelmann and Busby agreed that, for $80 a year, Michelmann would lease to Busby “space
for two (2) standard poster panels” on the lot. This lease was to be for an original term of one
year, but there was an automatic renewal provision. “After the original term hereof,” the lease
agreement provided,
“this lease shall continue in force from year to year for a period of five (5)
consecutive years unless terminated at the end of the original term, or any
additional year thereafter, upon written notice of termination to [Michelmann] by
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[Busby], served not less than thirty (30) days before the end of such term or
additional year.”
As long as Busby was its tenant, Michelmann “guarantee[d] to [Busby] free access to and use of
any part of any structure on said premises as may be necessary for [Busby] to hang scaffolds, or
construct, post, paint, illuminate, repair or remove its advertisements and structures.” The parties
further agreed that “[a]ll structures, materials[,] and equipment placed upon said premises by
[Busby] shall always remain [Busby’s] personal property and may be removed by [Busby] at any
time up to a reasonable time after the termination of this lease.”
¶ 16 On March 31, 1969, Busby again leased from Michelmann “space for two (2)
standard postal panels” on the lot. The parties used the same preprinted lease agreement as
before, including the provision regarding automatic renewal, year by year, for five consecutive
years, absent service of a 30-day written notice of termination upon Michelmann. The lease
agreement also included the same guarantee of Busby’s right to remove structures, materials, and
equipment within a reasonable time after termination of the lease.
¶ 17 On May 8, 1970, Michelmann leased to Mid-States Communications (Quincy),
Inc. (Mid-States), “space for two (2) standard poster panels” on the lot, using the same preprinted
fill-in-the-blank lease agreement as in Busby’s lease.
¶ 18 On May 8, 1971, Michelmann again leased to Mid-States “space for two (2)
standard poster panels” on the lot, again reusing the same preprinted lease agreement.
¶ 19 On May 6, 1981, Michelmann leased to Outdoor Graphics, for an original term of
one year, “the existing structures” on the lot. Again, there were to be year-by-year automatic
renewals for five consecutive years, which could be cut off by a 30-day written notice of
termination “to [Michelmann] by [Outdoor Graphics] or”—and here was something new—“to
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[Outdoor Graphics] by [Michelmann].” Outdoor Graphics had the same right as before to place
structures, materials, and equipment on the lot and to remove the structures, materials, and
equipment within a reasonable time after termination of the lease.
¶ 20 On May 1, 1987, Michelmann again leased to Outdoor Graphics, “for an original
term of 1 year,” beginning on that date, “the existing structures” on the lot. Because this lease
agreement is the one that Michelmann sued Link Media for breaching as an assignee of Outdoor
Graphics, we will quote its germane provisions at somewhat greater length:
“After the original term hereof this lease shall continue in force from year to year
for a period of five (5) consecutive years unless terminated at the end of the
or[i]ginal term, or any additional year thereafter upon written notice of
termination to [Michelmann] by [Outdoor Graphics] or to [Outdoor Graphics] by
[Michelmann], served not less than thirty (30) days before the end of such term or
additional year.
*** [Michelmann] will not permit [Outdoor Graphics’s] signs to be
obstructed. [Michelmann] guarantees to [Outdoor Graphics] free access to and use
of any part of any structure on said premises as may be necessary for [Outdoor
Graphics] to hang scaffolds, or construct, post, paint, illuminate, repair, or remove
its advertisements and structures.
All structures, material[,] and equipment placed upon said premises by
[Outdoor Graphics] shall always remain [Outdoor Graphics’s] personal property
and may be removed by [Outdoor Graphics] at any time up to a reasonable time
after the termination of this lease.
***
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Neither [Outdoor Graphics] nor [Michelmann] is bound by any stipulation,
representation[,] or agreement not printed or written in this lease. This lease shall
inure to and be binding on the personal representatives, successors[,] and assigns
of the parties hereto.”
¶ 21 2. Depositions
¶ 22 Michelmann took the discovery deposition of a representative individual from
Link Media, Evie Conrad, and Link Media took the discovery deposition of a representative
individual from Michelmann, Laura Ehrhart. The parties stipulated to the admission of these two
discovery depositions.
¶ 23 a. Conrad
¶ 24 Conrad testified she was the “general manager of the Link Midwest
Illinois/southeast Iowa market.” She and Michelmann’s attorney had the following discussion
regarding succession of ownership:
“Q. Do you know if Busby *** became Outdoor Graphics or if they were
separate? Do you have any idea?
A. [W]hen Don Brown created Outdoor Graphics, he did it by putting
together several smaller companies, and I believe [Mid-States] was the last
version of this particular location before it became Outdoor Graphics. It started as
Quincy Outdoor *** and then that divested its assets to Busby *** who divested it
to [Mid-States] who divested to Outdoor Graphics, then to Key Outdoors, and
then to Link Media.”
According to Conrad’s testimony, then, there was an assignee in between Outdoor Graphics and
Link Media: Outdoor Graphics assigned its interest to Key Outdoors, which later assigned its
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interest to Link Media. (In its answer, by contrast, Link Media agreed it was the assignee of
Outdoor Graphics.) The dialogue continued:
“Q. *** [E]ach company has been acquired all the way down to Link
[Media]?
A. Yes.
Q. And are you basing that on conversations with Mr. Brown or how do
you know that?
A. I am basing that on the historic lease file that was housed in my office
in Quincy, and I have copies of all of those leases.”
¶ 25 Conrad testified she did not understand how Michelmann had come to the
conclusion that it “owned the structure.” Not only was that conclusion at odds with
correspondence in which Michelmann proposed buying the billboards from Link Media, but it
was at odds with Conrad’s understanding that the billboards had been passed along, via
successive assignments, from the billboard company that originally built them to Link Media.
She testified:
“The billboard company built it, and every lease after that transferred the
ownership of the structure, the assets, to the next billboard company. And I know
that there is a lease where it goes to Outdoor Graphics where it says existing
structure, but that does not mean that any ownership of the unit was ever
transferred to Michelmann. That means that the structure was existing, not one
being built.”
In other words, when the lease agreement of May 1, 1987, between Michelmann and Outdoor
Graphics stated that “Michelmann *** AS Lessor hereby leases to OUTDOOR GRAPHICS ***,
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Lessee the existing structures” on the lot, Conrad did not understand that language as meaning
that Michelmann owned the “existing structures” on the lot. Rather, she understood it as meaning
merely that some structures already existed on the lot, as distinct from structures that Outdoor
Graphics might build.
¶ 26 In Conrad’s view, the billboards belonged to the billboard company because that
was how the business of billboard advertising typically worked—a contrary state of affairs
would have been implausible to her. Billboard companies preferred to build their own billboards,
Conrad explained, so that, if need be, they could remove unprofitable billboards as their own
property instead of leaving them behind for competitors to use.
¶ 27 The billboards on the lot had proved unprofitable to Link Media. They generated
only $2,456 a year in revenue, compared to the “lease amount of $2,960” plus a 10% increase in
rent per year. “So, without any expense of posting repair, electrical, anything else that went
along with it, we were already at negative $504 to keep this board standing,” she testified.
“That’s what would have precipitated a takedown.”
¶ 28 Michelmann’s attorney asked Conrad if she knew the value of the billboards that
Link Media had taken down. She answered that she was unable to provide any such estimate.
“You are asking for the actual physical asset?” Conrad asked. “Correct,” Michelmann’s attorney
responded, “I am asking about the billboard structure, *** what you would ask for it.” Conrad
mused:
“Well, we replaced two months of faces on it and the physical cost of the
faces was about $6,000 and it was four I-beams and two catwalks beyond that. So,
if we are talking about the nuts and bolts physical cost of the billboard, my guess
would be that [$15,000] would be a bit low.”
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Rather, Conrad’s “best guess” was that “that four I-beams, two faces, two sets of brains, two
lights and two catwalks would be in that 20-ish thousand dollar range for just those pieces of
used equipment at that point in time.”
¶ 29 After Link Media made those additions to the billboards, it decided to “tear down
the billboard structure.” If the billboards had been “a performing asset,” Link Media “would
have renewed the lease,” but they were not “a performing asset,” so “[y]ou end the lease” and
“remove” the structure to avoid “creat[ing] competition for yourself.”
¶ 30 Michelmann’s attorney asked Conrad if Link Media had “sen[t] any
correspondence to Michelmann stating that they were terminating the lease or ending the lease or
getting out of the lease.” Conrad answered that she possessed a copy of correspondence dated
April 16, 2019, addressed from Michele Dennis to Michelmann, and reading, “ ‘This letter is to
inform you that we are terminating our lease agreement effective May 6, 2019, due to the poor
performance of the sign and the decline in value for advertising ***. We will be removing it.’ ”
Conrad did not know, however, if that letter was sent to Michelmann. In fact, the copy that
Conrad possessed was “a deleted file”—it had been retrieved from “the electronic trash.”
¶ 31 b. Ehrhart
¶ 32 Ehrhart, the president of Michelmann, testified that the company had existed since
1865 and that she joined it 1991 as vice president when her father, William F. Gerdes III, was the
president. Gerdes had been the company officer “interfacing with the billboard companies.”
Between 1991 and 2009, Ehrhart had no interaction with the billboard companies, and she
assumed it was Gerdes who interacted with them during those years. He left the company in
2009. The first time that Ehrhart ever had a conversation with a billboard company “[o]n this
particular location” was when Link Media “contacted [Michelmann] wanting to renegotiate their
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rent.”
¶ 33 Correspondence between Michelmann and Link Media ensued. On November 13,
2018, Ehrhart sent Conrad a Facebook message asking her, “Do you still work for the outfit that
owns the billboards on my property on North 24th Street?” When asked, in her deposition, why
she had “identif[ied] Link [Media] as the company that own[ed] the billboards,” Ehrhart
answered that she “didn’t have knowledge of the leases and things at that time” and that she
lacked “a good understanding” at that time “of who owned the billboards.”
¶ 34 Later, in her correspondence with Link Media—specifically, in an e-mail to its
real estate manager, Dennis—Ehrhart passed along an observation by Michelmann’s attorneys
that Link Media’s ownership of the billboards was undocumented. Michelmann’s attorneys had
pointed out to Ehrhart (and she in turn pointed out to Dennis) that “Link [Media] ha[d] not been
able to document that it owns the structure so Michelmann offering any money for it is a
generous concession.” (Emphasis in original.) Michelmann did not want the billboards to be
removed from the lot “now or in the future,” Ehrhart wrote to Dennis, and to settle the
controversy over ownership of the billboards, Michelmann was willing to pay Link Media “a
relatively nominal amount,” as well as “conceding 2/3 of the previous rent under the new
proposed lease.” Ehrhart cautioned that if the parties could not agree on a new lease, the 1987
lease would “renew[ ] automatically,” whereupon they could “address ownership at a later date.”
“If the parties cannot agree to a new lease, the 1987 lease will control the next lease year”—an
outcome that, Ehrhart suggested, would not be in the best interests of either party.
¶ 35 As it turned out, the parties never reached an agreement on a new lease, and on
April 19, 2019, Link Media took apart the billboards and removed them from the lot. Ehrhart
testified that Michelmann had built new billboards on the lot to replace the ones that Link Media
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had taken and that Michelmann was using one of the new billboards and was renting the other
one to Kohl Wholesale.
¶ 36 3. Ehrhart’s Affidavit in Support of Michelmann’s Trial Brief
¶ 37 In an affidavit dated February 2, 2023, which was admitted as plaintiff’s exhibit
Q, Ehrhart averred that, as president of Michelmann, she was familiar with its business records,
including the lease of “billboard structures to Link Media *** and previous lessees.” According
to Ehrhart, the lease agreement of 1987, “to which Link Media assert[ed] it [was the assignee of]
Outdoor Graphics,” was “not a continuation or amendment of any previous lease agreement
involving the Billboard Structures” but, rather, was “a stand-alone lease agreement that totally
supersede[d] any previous lease agreement for the Billboard Structures.”
¶ 38 Ehrhart was “not aware of any previous lessee under the Lease Agreement ever
assert[ed] that it owned the Billlboard Structures.” In fact, on March 21, 2005, in a letter that
Ehrhart attached to her affidavit, Gerdes wrote to Outdoor Graphics, “You are renting (2)
billboards from us on north 24th near the railroad tracks.” Ehrhart saw no indication in the
company records that Outdoor Graphics had contested that statement. Ehrhart remarked in her
affidavit, “I was shocked to learn Link Media had removed the Billboard Structures because I
believed that both parties were still negotiating the terms of a new billboard lease in good faith.”
Link Media “never served written notice of termination of the Agreement to Michelmannand
“never threatened to remove the Billboard Structures or stated its intention to remove the
Billboard Structures”
¶ 39 After Link Media removed the billboards, Ehrhart continued in her affidavit,
Michelmann “sought permission from the City of Quincy to re-erect similar billboard structures
on the Premises.” The city council “ultimately approved Michelmann’s request and passed a
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special ordinance allowing Michelmann permission to re-erect similar billboard structures on the
Premises, but with an additional ten (10) foot setback from the road.” According to Ehrhart,
“Michelmann was unable to rent the Billboard Structures to advertisers from April 2019 (when
Link Media dismantled and removed the Billboard Structures) to September 2021 (when the
replacement billboard structures were completed).” She stated that building new billboards on
the lot cost a total of $68,931.17. She itemized the charges of various contractors and vendors
and attached their invoices to her affidavit. Also, on the basis of her “knowledge and experience
in leasing the billboard structures on behalf of Michelmann,” Ehrhart “estimate[d] the
replacement billboards to be worth at least ten percent (10%) less than the previously existing
Billboard Structures due to the additional ten (10) foot setback from the road.”
¶ 40 In addition to those asserted tort damages, there were damages for breach of
contract. By Ehrhart’s calculation, Link Media owed Michelmann the following amounts of rent:
$2,960.10 for May 2018 to April 2019; $3,256.11 for May 2019 to April 2020; $3,581.72 for
May 20[20] to April 2021; $3,939.89 for May 2021 to April 2022; and $4,333.88 for May 2022
to April 2023, for a total of $15,140.70.
¶ 41 C. The Circuit Court’s Decision
¶ 42 On December 18, 2024, the circuit court found that Michelmann had “failed to
sustain its burden of [proof] that it was the rightful owner of the billboards in question.”
Therefore, the court found in Link Media’s favor and against Michelmann on counts I and II of
the complaint, which alleged conversion and tortious interference with prospective business
relationships. On count III, however, which was the action for breach of contract, the court found
in Michelmann’s favor and against Link Media because Link Media had “failed to present any
proof of written termination of the Agreement.” The court awarded Michelmann a total of
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$19,907.97 in past-due rent. “This amount,” the court explained, “is set forth in plaintiff’s exhibit
Q $15,140.70 plus $4,767.27 for rent due May 2023-April 2024.”
¶ 43 On January 17, 2025, within 30 days after the circuit court’s decision (see 735
ILCS 5/2-1203(a) (West 2024)), Link Media filed a postjudgment motion, in which it argued
that, after the 1987 lease expired at the end of the five-year period of automatic renewals, there
was merely a month-to-month lease agreement between Michelmann and Link Media. Because
“the award of rent tantamount to several years would not have been commensurate with the
parties[’] status as a month-to-month lease,” Link Media requested that the circuit court modify
its damage award on count III to only two months of rent.
¶ 44 Also on January 17, 2025, Michelmann filed a postjudgment motion. Michelmann
requested that the circuit court “modify its judgment to find that Michelmann owned the
billboard structures and award Michelmann damages as set forth in its Trial Brief.”
¶ 45 On October 23, 2025, the circuit court denied the postjudgment motions.
¶ 46 On November 21, 2025, within 30 days after denial of the postjudgment motions,
Link Media filed its notice of appeal. See Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).
¶ 47 On December 1, 2025, within 10 days after Link Media’s service of its notice of
appeal upon Michelmann, Michelmann filed its notice of cross-appeal. See Ill. S. Ct. R.
303(a)(3) (eff. July 1, 2017).
¶ 48 II. ANALYSIS
¶ 49 A. Our Standard of Review
¶ 50 The parties suggest we should be deferential toward the circuit court’s findings of
fact, but the authorities they cite in support of the proposed deference are distinguishable. They
cite Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 859
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(2008), but seemingly overlook that there was live testimony at the bench trial in that case (see
id. at 852-59). Additionally, Link Media cites New Randolph Halsted Currency Exchange, Inc. v.
Regent Title Insurance Agency, LLC, 405 Ill. App. 3d 923, 928 (2010), in which there likewise
was live testimony at the bench trial (see id. at 926-927).
¶ 51 At the bench trial in the present case, there was no live testimony. Instead, the
parties requested that the court decide the case solely on written submissions. Since there was no
occasion for the court to judge the truthfulness of the witnesses from their demeanors or to detect
shades of meaning or significance in the way they spoke, the court was in no better position than
we are to resolve the factual issues in this case. Because we are as well-positioned as the court
was to read the cold print of the record, there would be no reason for us to be deferential toward
the court’s findings of fact. Our standard of review, then, is de novo. See Addison Insurance Co.
v. Fay, 232 Ill. 2d 446, 453 (2009).
¶ 52 B. Breach of Contract (Link Media’s Appeal)
¶ 53 1. Review of the Merits Despite the Lack of an Argument by Michelmann
¶ 54 The circuit court awarded Michelmann a total of $19,907.97 in overdue rent:
$15,140.70 for the period of May 2018 to April 2023 plus $4,767.27 for the period of May 2023
to April 2024. Link Media appeals, contesting that amount. While agreeing it owes Michelmann
rent, Link Media disagrees that the amount it owes is as high as $19,907.97. Link Media
maintains that by removing the billboards from the lot on April 19, 2019, it surrendered
possession of the premises and that, consequently, its liability for rent ended on April 30, 2019,
making it indebted to Michelmann for only $2,960.10 in rent for the period of May 1, 2018, to
April 30, 2019.
¶ 55 In its brief, Michelmann offers no response to that argument by Link Media.
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Therefore, in its reply brief, Link Media claims that Michelmann has effectively conceded the
correctness of its challenge to the award of $19,907.97. Link Media points out that, under Illinois
Supreme Court Rule 343(b)(1) (eff. July 1, 2008), the “cross-appellant”—in this case,
Michelmann—is supposed to “file a single brief” not only as “cross-appellant” but also “as
appellee,” meaning that the cross-appellant’s brief should meet the appellant’s arguments and not
just argue in support of the cross-appeal.
¶ 56 Link Media acknowledges that, under First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 131 (1976), the lack of an appellee’s brief (and, by corollary,
the lack of a responsive argument in the appellee’s brief) should not “result in an automatic
reversal of the circuit court’s judgment assessing rent against Link Media.” However, Link
Media focuses on a passage of Talandis in which the supreme court seemed to suggest that,
absent an appellee’s brief, the reviewing court “should decide the merits of the appeal” only if
the record was simple and the case was easy. Id. at 133. In the passage in question, the supreme
court said, “[I]t seems that if the record is simple and the claimed errors are such that the court
can easily decide them without the aid of an appellee’s brief, the court of review should decide
the merits of the appeal.” Id. Link Media asserts that “[t]he record in this case is far from
simple.”
¶ 57 We do not find the record to be dauntingly complex. With respect to the issue of
how much rent Link Media owes Michelmann, the record is rather simple. As to that issue, all
we need to glean from the record is (1) the lease agreement of May 1, 1987, between
Michelmann and Outdoor Graphics; (2) the lack of a written notice of termination; and (3) Link
Media’s admissions that (a) Outdoor Graphics assigned its interest in the lease to Link Media,
(b) Link Media remained in possession of the premises until April 19, 2019; and (c) Link Media
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paid no rent from May 1, 2018, onward. (Conrad testified that Outdoor Graphics divested its
assets to Key Outdoor and that Key Outdoor in turn divested its assets to Link Media. This
discrepancy typifies the vagueness of the successor of ownership theory and its lack of
evidentiary rigor. The supposed chain of assignments was not proven by the presentation of
purchase agreements from Quincy Outdoor all the way down to Link Media.)
¶ 58 In any event, regardless of how complicated the record is, Link Media appears to
agree that the omission in Michelmann’s brief does not absolve Link Media of its own
responsibility, as an appellant, to make a prima facie case for reversal. The supreme court made
it clear in Talandis that the appellate court may never—automatically or otherwise—reverse the
circuit court’s judgment on the ground that the appellee failed to file a brief. Id. at 131. The
supreme court held, “[T]he judgment of a trial court should not be reversed Pro forma for the
appellee’s failure to file its brief as required by rule. A considered judgment of the trial court
should not be set aside without some consideration of the merits of the appeal.” Id. It follows
that, notwithstanding the appellee’s silence, the appellant should prevail only if the appellant
makes “a prima facie showing of reversible error” (id. at 132), a showing supported by relevant
authorities and, wherever evidentiary support is needed, by citations to the relevant pages of the
record (see Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)).
¶ 59 2. A Holdover Tenancy With Link Media as the Tenant
¶ 60 The lease agreement of May 1, 1987, between Michelmann as “Lessor” and
Outdoor Graphics as “Lessee” provided as follows:
“After the original term hereof this lease shall continue in force from year to year
for a period of five (5) consecutive years unless terminated at the end of the
or[i]ginal term, or any additional year thereafter upon written notice of
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termination to Lessor by Lessee or to Lessee by Lessor, served not less than thirty
(30) days before the end of such term or additional year.”
¶ 61 The “original term” was defined as “1 year beginning May 1[,] 1987. Thus, the
original term was May 1, 1987, to May 1, 1988, “excluding the first day and including the last.”
Ill. Rev. Stat. 1985, ch. 1, ¶ 1012; McMahon v. Chicago Mercantile Exchange, 221 Ill. App. 3d
935, 945 (1991) (“The time computation statute is [a] law that could be construed as an
implication of a contract.”). After the original term (which is to say, after May 1, 1988), the lease
would continue year to year for an additional five consecutive years—May 1, 1988, to May 1,
1989; May 1, 1989, to May 1, 1990; May 1, 1990, to May 1, 1991; May 1, 1991, to May 1, 1992;
and May 1, 1992, to May 1, 1993—unless it were terminated at the end of the original term or at
the end of any additional year thereafter by a written notice served on the other party no later
than 30 days before the end of the original term or additional year. The duration of the lease,
then, was one year at the least (the original term) and six years at the most (the original term plus
five consecutive years). The longest the lease could last, under the explicit terms of the lease
agreement, was until May 1, 1993.
¶ 62 The circuit court held that because no written notice of termination was ever
served on Michelmann, the lease continued beyond May 1, 1993 (despite the explicit terms of
the lease agreement) and that Link Media was obligated to pay rent for the period of May 2018
through April 2024.
¶ 63 Link Media maintains, however, that the requirement of serving a written notice
of termination ended when the lease expired on April 30, 1993 (or May 1, 1993, according to the
time computation statute). As Link Media puts it, “[t]here is no provision in the Lease setting
forth the parties’ obligations after the end of the five-year, year to year term, when the lease was
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not terminated.”
¶ 64 By Link Media’s reasoning, “Outdoor Graphics *** and its successors[,]
including Link Media, remained in possession of the leasehold after the lease expired[,] and Link
Media became a tenant at sufferance.” “[A] tenant who remains in possession after the expiration
of his lease becomes a tenant at sufferance” (Ventus Holdings, LLC v. Raddle, 2025 IL App (1st)
241169, ¶ 16), and it is up to the landlord whether to evict the tenant at sufferance as a trespasser
or to accept the tenant at sufferance as a holdover tenant (A.O. Smith Corp. v. Kaufman Grain
Co., 231 Ill. App. 3d 390, 398 (1992)). “A holdover tenancy is created when a landlord elects to
treat a tenant, after the expiration of his lease, as [a] tenant for another term upon the same
provisions contained in the original lease.” Id. “A holdover tenancy will last as long as the
original lease term.” Id. at 399. The landlord’s acceptance of rent after the expiration of the lease
“may by itself indicate the landlord’s election to treat the tenant as a holdover.” Id. at 398.
¶ 65 From those principles of case law, Link Media reasons that, from May 1, 1993, to
April 30, 2018, “there [was] a series of 24 consecutive one-year holdover tenancies,” since
Michelmann was paid rent and accepted rent during that 24-year period. Link Media continues,
however:
“Link Media did not pay, and Michelmann did not accept, rent in 2018
[citations]. Therefore, a new one-year holdover tenancy was not created for the
would[-]be May 1, 2018, to April 30, 2019, lease period. As a result, the last one-
year holdover tenancy ended on April 30, 2018, and Link Media was no longer
leasing the premises. [Citation.] Instead, Link Media became a tenant at
sufferance on May 1, 2018. Link media surrendered its tenancy at sufferance on
April 19, 2019, when it removed its billboard structures from the premises and
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left the property at Michelmann’s disposa