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SIXTH DIVISION     
August 30, 2002      

This case is before us a second time. In United StatesFidelity & Guaranty Co. v. Old Orchard Plaza Limited Partnership,284 Ill. App. 3d 765 (1996) (USF&G I) we held, inter alia, that theallegations in Brunswick Corporation's (Brunswick) second-amendedcomplaint alleged facts sufficient to state a claim that JerryBurin, a court-appointed receiver (Reciever), adopted a lease underwhich Brunswick was a lessee and, according to Brunswick, underwhich it was entitled to a $2 million termination payment. Wereversed the trial court's dismissal of the complaint and remandedfor a trial on the issue of whether Burin in fact adopted thelease.

On remand, Brunswick amended its complaint to substitute OldOrchard LP in lieu of Burin based upon an April 5, 1995, unopposedorder entered by the trial court which discharged Burin and which,according to Brunswick, assigned to Old Orchard LP the lease atissue. After a two-day bench trial, the trial court entered judgment in favor of Brunswick and against Old Orchard LP for the $2million termination payment, less amounts for real estate taxesowed by Brunswick, together with prejudgment interest for a totaljudgment of $2,459,981.06. The trial court also awarded Brunswicka judgment for attorney fees and costs of $521,708.91.

Old Orchard LP filed a timely notice of appeal. The following issues are before the court: (1) whether the trial court'sconclusion that the Receiver adopted the lease was clearly erroneous; (2) whether the trial court's finding that Old Orchard LPassumed the Receiver's liability pursuant to the April 5, 1995,order was an abuse of discretion; and (3) whether the trial court'saward of prejudgment interest and attorney fees was an abuse ofdiscretion. For the reasons that follow, we affirm.

Because the facts preceeding our decision in USF&G I arerelevant to the issues now before us, we restate them here inpertinent part.

On December 14, 1956, the United States Steel & CarnegiePension Fund (the Fund) leased 32 acres of land and existingimprovements, commonly known as Old Orchard Plaza (the Property),to International Minerals & Chemical Corporation (IMC). The leasewas to expire on December 20, 2023, if all options to extend itwere exercised.

On September 1, 1971, Brunswick acquired the leasehold estatefrom IMC. On April 27, 1983, Brunswick entered into a contract tosell its leasehold estate to Equity Associates (Equity). As consideration for the sale of the leasehold, Equity agreed to leasethe office space Brunswick occupied at the time back to Brunswickat a below market rate pursuant to a sublease (the Lease). TheLease provided that Brunswick would occupy the office space throughApril 1993, at which point it would have an option to extend theterm. The Lease further provided that if Brunswick vacated thepremises without having exercised the option, Equity would payBrunswick a termination payment of $2 million (the TerminationPayment). The Termination Payment is the subject of the instantappeal.

On December 5, 1985, Equity acquired fee simple title to theProperty from the Fund. The Lease with Brunswick remained ineffect. In 1987, Equity sold the Property to LP Equity. A shorttime later, LP Equity sold the Property to Old Orchard PlazaLimited Partnership (OOPLP). Equity, LP Equity, and OOPLP areaffiliates created and controlled by LaSalle Partners.

Sometime prior to October 5, 1988, OOPLP sought a mortgageloan on the Property from United States Fidelity and GuarantyCompany (USF&G). On October 5, 1988, USF&G received a letter fromits real estate consulting firm, Piedmont Realty Advisers, statingthat if Brunswick vacated the premises in April 1993, the landlordwould be liable for the Termination Payment.

On November 30, 1988, Brunswick executed a letter, at USF&G'srequest, certifying that upon any foreclosure sale or conveyance inlieu thereof, Brunswick would recognize the purchaser as itslandlord under the Lease as if such purchaser were the originallandlord, "provided, however, that such purchaser shall in no waybe liable or responsible for any alleged default by the Landlordpertaining to any period prior to the time that the purchaseracquires actual possession or control of the Property, or anyportion thereof."

On January 6, 1989, OOPLP received two mortgage loans on theproperty from USF&G totalling $23.5 million. On March 1, 1992,OOPLP defaulted on the mortgages by failing to pay real estatetaxes, as required under the loan documents. On May 8, 1992, USF&Gaccelerated OOPLP's total indebtedness. On May 12, 1992, Brunswicksent Equity and LaSalle Partners written notice that it intended tovacate the office space on April 30, 1993. The notice furtherdemanded payment of $2 million upon its vacation.

On July 7, 1992, USF&G filed a complaint in the chancerydivision of the circuit court of Cook County against OOPLP, LPEquity, Equity, and LaSalle Partners (the LaSalle Partner defendants) alleging various fraudulent transfers of funds. The com-plaint sought assignment of rents and appointment of a Receiver. It specifically stated that USF&G does not seek a foreclosure "atthis time." On August 5, 1992, the circuit court appointed JerryBurin as Receiver, and from that date until he was discharged,Burin demanded and received rents and managed the Property. Brunswick later sent letters demanding the Termination Payment toUSF&G and Burin. All parties denied liability.

On March 8, 1993, Brunswick obtained leave to intervene andfiled an intervenor's complaint against the LaSalle Partner defendants, USF&G, and Burin. The complaint sought declaratoryjudgments that the Termination Payment provision was a covenant running with the land, that Brunswick had an equitable vendor's lienon the Property for the unpaid purchase price which took priorityover any mortgage liens, that Burin had implicitly adopted theLease, that the Termination Payment was an ordinary operatingexpense of Receivership, and that USF&G was a mortgagee in possession.

On April 26, 1993, USF&G settled its claim against the LaSallePartner defendants and agreed to the following terms: (1) USF&Gwould dismiss the claim; (2) of the nine parcels constituting theProperty, USF&G would release its interest in parcels 1 through 6and foreclose only on parcels 7 through 9, which contained theBrunswick office space; (3) the LaSalle Partner defendants wouldassert no defense and consent to the foreclosure; (4) if OOPLP wentinto bankruptcy, it would consent to lift the automatic stay on theforeclosure; and (5) USF&G reserved indemnity and subrogationrights against the LaSalle Partner defendants for the TerminationPayment. On April 30, 1993, Brunswick vacated the premises. OnJuly 15, 1993, USF&G filed its complaint for foreclosure of parcels7 through 9.

On May 21, 1993, Brunswick and the Receiver entered into astipulation which provided in part:

"3. Brunswick asserts its claim againstthe Receiver only in his official capacity,and thus seeks to recover from the Receiveronly to the extent that the Receiver has rentor other monies in his possession from hisoperation of Old Orchard Plaza or has controlor possession of the real estate which is thesubject of the lease or other property whichcan be used to satisfy Brunswick's claim.

4. Brunswick and the Receiver stipulateand agree that the Receiver's right and dutyto use any property in his possession andcontrol to satisfy Brunswick's claim is conditioned upon the Court entering ordersdirecting the Receiver to use said property in suchmanner.

5. Brunswick does not seek a money judgment against either the Receiver in hispersonal capacity, or against his agent, TheJohn Buck Management Group arising out of anyof the acts or circumstances alleged in Intervenor's Complaint."

On August 6, 1993, Brunswick amended its complaint to addrequests for declaratory judgments that it has a vendor's lienagainst parcels 7 through 9, which is superior to USF&G's mortgageinterest, and against parcels 1 through 6. USF&G filed a motion todismiss for failure to state a claim. On August 25, 1993, the circuit court granted the motion, finding (1) the Termination Paymentprovision was not a covenant running with the land because it didnot touch and concern the Property and there was no privity betweenBrunswick and USF&G; (2) Brunswick was not entitled to a vendor'slien; (3) USF&G was not a mortgagee in possession; and (4) Brunswick was estopped from asserting a claim for the TerminationPayment against USF&G by its letter of November 30, 1988. On September 22, 1993, Brunswick filed its first notice of appeal.

On October 5, 1993, Brunswick received an invoice from Burindemanding payment for Brunswick's alleged share of 1992 real estatetaxes on the Property. On December 7, 1993, Brunswick filed asecond-amended complaint against the LaSalle Partner defendants andBurin, containing two counts. Count I sought declaratory judgmentsthat the LaSalle Partner defendants were each personally liable forthe Termination Payment and that Brunswick had a vendor's lienagainst the Property. Count II sought declaratory judgments thatBurin had adopted the Lease and was liable for the TerminationPayment as successor to the landlord's interest, that the Termination Payment was an ordinary operating expense of Receivership, andthat Burin's nonpayment of the Termination Payment was a materialbreach of the lease that entitled Brunswick to set off any of itsfurther obligations.

The circuit court granted USF&G leave to intervene as defendant. On December 28 and 29, 1993, USF&G, the LaSalle Partnerdefendants and Burin each filed motions to dismiss Brunswick'ssecond-amended complaint. On March 23, 1994, the circuit courtgranted USF&G's and Burin's motions in their entirety. The courtfound that Burin never adopted the Lease or succeeded the landlordin interest, and that nonpayment of the Termination Payment did notexcuse Brunswick from paying real estate taxes. With respect tothe LaSalle Partner defendants' motion, the circuit court grantedBrunswick leave to file a third-amended complaint instanter, in whichcount I alleged a vendor's lien and count II alleged personalliability for the Termination Payment. The court then dismissedcount I, citing its earlier ruling on the vendor's lien issue, andsustained count II. The next day, Burin filed a counterclaimagainst Brunswick for unpaid real estate taxes due under the Lease.

Also, on March 24, 1994, Brunswick filed its second notice ofappeal. On May 23, 1994, this court entered an order consolidatingthe two appeals.

In the meantime, with Brunswick's appeal pending, USF&G proceeded with the foreclosure. The trial court entered judgment offoreclosure on March 23, 1994. A sheriff's sale of the Propertytook place on November 9, 1994. USF&G was the bidder and for a$6,750,000 bid received the certificate of sale. On December 20,1994, USF&G assigned the notes, mortgage, loan documents and claimsand defenses in the litigation to Old Orchard Park FidelityAssociates Limited Partnership (Old Orchard LP). On January 6,1995, the court entered its order confirming the sheriff's reportof sale and ordering execution of a deed to Old Orchard LP.

As of March 1995, Burin had completed his final report and theReceiver's estate consisted of $8,184.09. On March 27, 1995, OldOrchard LP filed a motion to discharge the Receiver. On April 5,1995, the court entered an order drafted by Old Orchard LP'scounsel and agreed to by Old Orchard LP, Brunswick and the Receiver(the April 5 Order).

The April 5 Order provided in pertinent part:

(d) Jerry Burin is hereby authorized toassign to Old Orchard LP all leases enteredinto by the Receiver in connection with theProperty;

(e) Jerry Burin is hereby authorized toenter into an assignment with Old Orchard LP,which shall be legally valid and binding forall purposes, assigning any and all claims byor against the Receiver relating to the Property, including but not limited to:

(i) the Receiver's Counterclaimagainst Brunswick Corporation for unpaid rent,filed herein on April 13, 1994[.]

(ii) any and all other claims,rights, interests, or causes of action relating to the Property."

At the same time they submitted the April 5 Order, Old OrchardLP's counsel moved for Old Orchard LP to be substituted for USF&Gin the circuit court. Substitution was allowed on April 5, 1995,and, in May 1995, Old Orchard LP was substituted for USF&G in thethen-pending appeal.

In October 1996, we delivered our opinion in the consolidatedappeal. USF&G I, 284 Ill. App. 3d 765. With respect to Brunswick's claims against USF&G, we affirmed the dismissal. Beforedoing so, however, we addressed the issue of whether Brunswickwaived its claims against USF&G when it executed the November 30,1988, letter, which provided:

"Upon any foreclosure sale or conveyancein lieu thereof, *** [Brunswick] shall attornto and recognize the purchaser of the Property, or any portion thereof as its landlordunder the Lease as if such purchaser were theoriginal landlord thereunder, provided, how-ever, that such purchaser shall in no way beliable or responsible for any alleged defaultby the landlord pertaining to any period priorto the time that the purchaser acquires actualpossession or control of the Property or anyportion thereof."

We held that because USF&G was not a "purchaser" that took controlof the Property pursuant to a "foreclosure sale," the letter didnot constitute a waiver of Brunswick's claims.

Thereafter, we nevertheless affirmed the trial court's findingin USF&G's favor. We held (1) Brunswick failed to state a claimagainst USF&G based on a vendor's lien; (2) Brunswick failed tostate a claim that USF&G was a mortgagee in possession; and (3)Brunswick failed to state a claim that the Termination Payment isa covenant running with the land.

We also considered the trial court's dismissal of Brunswick'sclaims against the Receiver and reversed. We held that the allegations were sufficient to state a claim that Burin adopted theLease. We also found that Brunswick had a stated claim that, underthe material breach doctrine, Burin's failure to make theTermination Payment excused Brunswick from having to pay furtherreal estate taxes. Accordingly, we remanded the case for furtherproceedings.

On March 26, 1998, Brunswick filed its fourth-amended com-plaint for declaratory judgment. Count I alleged that OOPLP andthe other LaSalle Partner defendants, as the owners of the Propertyand successor to the landlord's interest, were obligated to makethe Termination Payment that had been due on April 30, 1993. CountII was against Old Orchard LP. It alleged that the Receiver hadadopted the Lease and was responsible for the Termination Payment. Brunswick further alleged that by reason of the April 5 Order discharging the Receiver, Old Orchard LP was the successor to theReceiver and was personally liable for the Termination Payment.

Old Orchard LP moved to dismiss Brunswick's fourth-amendedcomplaint for failure to state a claim, that motion was denied onOctober 13, 1998. Old Orchard LP answered and set forth additionaldefenses to the complaint. Brunswick moved for summary judgmentagainst OOPLP and Old Orchard LP, that motion was denied onFebruary 15, 2000.

On June 8, 1999, Brunswick filed its fifth-amended complaintthat added as parties the LaSalle Partner defendants, together withOOPLP. The claims against Old Orchard LP remained unchanged. OnAugust 1, 2000, the court allowed Brunswick's motion to enter anagreed dismissal order as to OOPLP and the LaSalle Partner defendants. Pursuant to a "confidential settlement agreement," thecourt dismissed with prejudice Brunswick's claims against OOPLP andthe LaSalle Partner defendants.

A bench trial as to Brunswick's remaining claims against OldOrchard LP took place on August 7 and 8, 2000. The two disputedissues for trial were (1) whether the Receiver adopted the Lease;and (2) the meaning and effect of the April 5 Order. Brunswickcalled one witness, its assistant general counsel, ElizabethMcGrail. Brunswick also read into the record excerpts from theevidence deposition of the Receiver. Old Orchard LP called twowitnesses, Richard Fenton and Carolyn Van Horn, attorneys whorepresented USF&G and Old Orchard LP. Their testimony referred tothe communications between the parties through their respectivecounsel before and after the April 5 Order discharging the Receiver.

On August 8, 2000, the trial judge ruled. He concluded thatthe Receiver adopted the Lease. He then stated "that the entiredetermination of the rights of the parties here is dependententirely on the wording of the April 5^th order." The court concluded that the order was unambiguous and assigned to Old OrchardLP all claims by or against the Receiver. The court then enteredjudgment against Old Orchard LP for the $2 million TerminationPayment, less $188,771 for Brunswick's share of the real estatetaxes. The judgment also included an award of $648,952.06 forprejudgment interest for a total judgment of $2,459,981.06. Inaddition, on January 3, 2001, the court awarded Brunswick attorneyfees and costs of $521,708.91.

On September 20, 2000, and on January 17, 2001, Old Orchard LPfiled its respective notices of appeal from the trial judgment andthe award of attorney fees and costs. The appeals were consolidated by this court.

Old Orchard LP makes the following arguments on appeal: (1)the November 30, 1988, letter sent by Brunswick to USF&G barsBrunswick from pursuing Old Orchard LP for the Termination Payment;(2) the Receiver did not adopt the Lease and the Termination Payment obligation; and (3) the April 5 Order does not compel apersonal judgment against Old Orchard LP for the following reasons: (a) the Receiver never entered into an assignment with Old OrchardLP; and (b) the May 21 stipulation precludes a personal judgmentagainst Old Orchard LP. Old Orchard LP also argues that the courterred in awarding prejudgment interest, attorney fees, and costs.

Initially, Old Orchard LP argues that Brunswick is estoppedfrom pursuing it for the Termination Payment because Brunswickwaived its right to do so upon execution of the November 30, 1988,letter to USF&G. In the November 30, 1988, letter, Brunswickagreed:

"Upon any foreclosure sale or conveyancein lieu thereof, *** [Brunswick] shall attornto and recognize the purchaser of the Property, or any portion thereof as its landlordunder the Lease as if such purchaser were theoriginal landlord thereunder, provided, how-ever, that such purchaser shall in no way beliable or responsible for any alleged defaultby the landlord pertaining to any period priorto the time that the purchaser acquires actualpossession or control of the Property, or anyportion thereof."

Old Orchard LP argues that because it acquired possession ofthe Property from USF&G, which purchased the Property throughfore-closure, it is not liable for OOPLP's prior default in failing to pay the Termination Payment.

We disagree. Brunswick's claim against Old Orchard LP doesnot arise out of Old Orchard LP's status as a foreclosure salepurchaser of the Property. Brunswick's claim against Old OrchardLP is based on the April 5 Order which, according to Brunswick,assigned all claims against the Receiver to Old Orchard LP. Thus,Old Orchard LP's liability for the Termination Payment arises outof its status as assignee of the Receiver's liability. Therefore,Brunswick's claim against Old Orchard LP is not barred by theletter.

Old Orchard LP's next argument is that the Receiver did notadopt the Lease. Because this issue involves a mixed question oflaw and fact we review it under the clearly erroneous standard. See Carpetland U.S.A., Inc. v. Illinois Dept. of Employment Secur-ity, No. 91564, slip op. at 14 (June 20,2002).

When this case was before us the first time, we were presented with the question of whether Brunswick's complaint stateda claim that Burin adopted the Lease. USF&G I, 284 Ill. App. 3dat 767-68. The complaint alleged as follows: Beginning in August5, 1992, Burin managed and controlled the Property and exercisedall power and control authorized to the lessor; Burin demanded andreceived rent payments from Brunswick through April 1993, when thelease expired; Burin demanded and received Brunswick's allocableshare of real estate taxes, even after the Termination Paymentbecame due; and Burin never cancelled or otherwise repudiated thelease. According to Brunswick's complaint, Burin was in open pos-session and control of the Property for approximately nine monthsbefore the Termination Payment became due.

We applied the standard set forth in Toushin v. Gonsky, 77Ill. App. 3d 508 (1979). We recognized that a Receiver does notbecome liable under a lease by virtue of his appointment, but hasthe right to accept or reject a lease. USF&G I, 284 Ill. App. 3dat 774. We also recognized that acceptance of a lease does nothave to be express; it can arise by implication if the Receiverremains in possession beyond a reasonable time to make theelection. USF&G I, 284 Ill. App. 3d at 774. Applying Toushin, weconcluded that Brunswick stated a claim that Burin adopted theLease and remanded. Thus, on remand, the issue became whetherBrunswick could prove those allegations.

The evidence established that the Receiver reviewed the Leasewhen appointed. There is no question that he was in possessionfor over nine months and that Brunswick paid rent for nine months. He admitted that his monthly reports to the court showed that hecollected $1,375,945.46 from Brunswick. Further, Burin admittedthat he never told Brunswick that he was rejecting the Lease.

Brunswick's witness, Elizabeth McGrail, testified that Burindemanded rent, an allocable share of real estate taxes, and anallocable share of common space expenses under the Lease. Shefurther testified that Burin kept the cafeteria operating andmaintained the landscaping and security on the Property. She alsotestified that during the 10-month period before Brunswick vacatedthe Property, Burin never advised Brunswick he was cancelling theLease.

After hearing the evidence, the trial court declared:

"There is no question in my mind that theReceiver took over the property and operatedit as a landlord, did all of those thingswhich a landlord would do; and by virtue ofthe activity and perhaps even more importantlythe duration thereof, I conclude that theReceiver adopted the lease."

Old Orchard LP does not dispute the court's factual findings;rather, it contends that Toushin is distinguishable because Burin,unlike the Receiver in Toushin, "refused the Termination Paymentand thereby rejected the lease." To support this argument, OldOrchard LP directs the court to a November 12, 1992, letter,wherein counsel for the Receiver informed Brunswick:

"As a court-appointed Receiver, Mr. Burinobviously has no personal liability withrespect to this payment. To date, income fromthe Property has been applied only to paymentof taxes and other ordinary operating expenses, as required by statute. No funds havebeen paid to the mortgagee. Funds on hand nowor in the future will be disbursed in accordance with relevant statutes and courtorders."

The above letter is insufficient to establish that Burinrejected the Lease. The letter does not deny liability withrespect to the Lease; it only denies liability with respect to theReceiver's personal assets. It does not say that the TerminationPayment will not be paid. The letter does not overcome the otherevidence with respect to the adoption of the Lease; that is, thefact that the Receiver collected over $1.3 million from Brunswickduring the nine-month period remaining on Brunswick's lease.

Accordingly, we find that the trial court's conclusion thatBurin adopted the Lease is not clearly erroneous.

After finding that the Receiver adopted the Lease, the trialcourt stated that it appeared "that the entire determination ofthe rights of the parties here is dependent entirely on thewording of the April 5^th Order," which states that the Receiver is"assigning any and all claims by or against the Receiver relatingto the Property." The court held that the order was unambiguous. The court stated, "I don't think that I have heard any evidencethat in any way overcomes the statement that all of the claims, byor against the Receiver, were being assigned." The court thenentered judgment against Old Orchard LP for the TerminationPayment less $188,771 for Brunswick's share of the real estatetaxes.

Old Orchard LP contends that the trial court's conclusionconstitutes an abuse of discretion.

Old Orchard LP asserts that the Receiver never entered intoan assignment with Old Orchard LP. Old Orchard LP argues thatbecause the April 5 Order states that the Receiver "is herebyauthorized to enter into an assignment with Old Orchard LP," theorder merely permits the Receiver to enter into an assignment; theorder itself is not an assignment.

The trial court disagreed with this argument. With respectto the mandatory or permissive nature of the word "authorized," itstated, "I am interpreting the word 'authorized' in the sense ofbeing mandatory." The trial court reasoned that because OldOrchard LP took an assignment of Burin's April 13, 1994, counter-claim against Brunswick for unpaid rent under the April 5 Order(as conceded by Old Orchard LP's attorney), it necessarily took anassignment of "all claims." We agree.

The claim for the unpaid rent (Brunswick's share of the realestate taxes) arose under the 1983 lease agreement that OldOrchard LP assumed pursuant to the April 5 Order. If Old OrchardLP assumed all claims via the Receiver, it should likewise haveassumed all liabilities via the Receiver. As the trial courtreasoned:

"[Y]ou can't take the benefits withouttaking the detriments or the liabilities, ***if in fact this document unequivocally setsforth that the Receiver's counterclaim againstBrunswick for 188,000 plus dollars being a taxobligation was going with this assignment, Icannot possible see how the liability withrespect to the lease Termination Payment didnot also move with this assignment."

Old Orchard LP asserts that even if we accept the trialcourt's conclusion that Old Orchard LP was the successor toBrunswick's claim against the Receiver, we find that Old Orchardalso received the protection against personal liability promisedto the Receiver by Brunswick in the May 21, 1993, stipulation. The stipulation reflected the Receiver's assertion that "he cannotbe held personally liable to Brunswick for the Termination Payment." The stipulation also provided that Brunswick "would notseek a money judgment against either the Receiver in his personalcapacity, or against his agent."

We find that the stipulation was not assignable to OldOrchard LP. A stipulation must be construed as a contract betweenthe parties to it, giving effect to the intent of the parties. ITT Abrasive Products Co. v. Lewis, 12 Ill. App. 3d 83, 86 (1973). "Where the personal qualities of either party are material to [a]contract, the contract is not assignable without the assent ofboth parties." Martin v. City of O'Fallon, 283 Ill. App. 3d 830,834 (1996). Here, the stipulation was based solely on the "personal qualities" of the Receiver; namely, his legal status asReceiver and his desire to have his personal assets expresslyimmune from claims against his Receivership. We reject OldOrchard LP's argument that because the April 5 Order encompassesthe assignment of "all" rights and interests, it necessarilyincludes the protection against personal liability. Brunswicknever assented to the assignment of the stipulation.

Old Orchard LP also argues throughout its brief thatBrunswick can only recover to the extent of the assets in theReceivership estate. We reject this argument. As argued byBrunswick, the Termination Payment was a full-recourse personalobligation of the landlord. The Termination Payment provisionreads:

"Provided Tenant is not in default underthe terms of this Lease, if Tenant does notelect to renew the term of this Lease for (i)the First Extension Term, then Tenant shallreceive a payment of $2,000,000.00 upon itsvacation of the demised premises ***."

It contains no limiting language. And as Brunswick asserts, thenature of the liability under the Lease never changed. TheReceiver's adoption of the Lease did not change the nature of theexisting contract rights from in personam liability to in remliability.

Next, Old Orchard LP argues that the trial court erred inawarding prejudgment interest because there was no "instrument inwriting" entered into by the Receiver and Old Orchard LP that couldrequire prejudgment interest. We disagree.

Section 2 of the Interest Act provides that "[c]reditors shallbe allowed to receive at the rate of five (5) per centum per annumfor all moneys after they become due on any bond, bill, promissorynote, or other instrument of writing." 815 ILCS 205/2 (West 1998). As Brunswick argues, the "instrument in writing" in this case wasthe Lease. See Montgomery Ward & Co. v. Wetzel, 98 Ill. App. 3d243, 250 (1981) (a lease is an instrument of writing within thecontemplation of the Interest Act). When the Receiver adopted theLease he became bound by its terms and his liability thereunder wasassigned to Old Orchard LP via the April 5 Order.

Accordingly, we find that the trial court correctly awardedBrunswick 5% interest from April 30, 1993.

Finally, Old Orchard LP argues that the trial court erred inawarding attorney fees and costs to Brunswick. Once again, we disagree.

Article 29, section 10, of the Lease provided in part:

"In the event of any litigation or arbitration between Tenant and Landlord to enforceany provision of this Lease or any right ofeither party hereto, the unsuccessful party tosuch litigation or arbitration shall pay tosuccessful party all costs and expenses,included reasonable attorneys' fees, incurredherein."

"[I]n 'fee-shifting' agreement situations or where a contract pro-vision provides for fees, the trial court *** must conduct areasonableness evaluation. It also makes its reasonableness determination based on various factors and its decision will not bedisturbed unless there has been an abuse of discretion." In rePine Top Insurance Co., 292 Ill. App. 3d 597 (1997).

As noted by Brunswick, a fee petition must comply with therequirements of Kaiser v. MEPC American Properties, Inc., 164 Ill.App. 3d 978 (1987). Kaiser requires the party seeking fees toprovide sufficient evidence from which the court can render a decision as to their reasonableness. Kaiser, 164 Ill. App. 3d at 977-78. Brunswick provided all of the attorney time records for thisaction, affidavits, and an affidavit of an independent expert whostated that the fees were reasonable under the circumstances.

The trial court has "broad discretionary powers" in awardingattorney fees (Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill.App. 3d 590 (2000)). There is no basis in the record to concludedthe trial court abused its discretion.

Accordingly, we hereby affirm the trial court's order ofAugust 10, 2000, that entered judgment in favor of Brunswick and weaffirm the trial court's order of January 3, 2001, that awardedBrunswick attorney fees and cost.

Affirmed.

GALLAGHER, P.J., and O'MARA FROSSARD, J., concur.