We Rock the Spectrum filed a motion to dismiss a lawsuit alleging it owes an Edwardsville property owner for missed rent payments, arguing that its security deposit covers the payments and that it made partial payments during 180 days of mandated closures due to the COVID-19 pandemic.
“Defendants’s business was mandated by government to cease operations, which mandates were unforeseeable in their issuance and which were re-issued over and over again with no end in sight,” the motion to dismiss states.
On July 12, Amy Bailey of Sivia Law in Edwardsville filed the motion to dismiss on behalf of defendants Michael and Jennifer Range, doing business as We Rock the Spectrum.
The defendants argue that their failure to timely pay rent in full should be “excused by the doctrines of impossibility, commercial frustration of purpose, and/or unconscionability.”
Bailey wrote that the defendants were forced to temporarily close, and eventually permanently close, due to the numerous executive orders issued by Gov. J.B. Pritzker in response to the COVID-19 pandemic.
The property was untenantable for more than 180 days.
“As a result of the closure, defendant was unable to generate revenue in order to pay rent in full,” Bailey wrote. “Defendant made payments each month, despite being unable to pay the full rent payment, even obtaining an EIDL loan to assist with the payment of rent under the lease.”
The defendants also argue that the force majeure provision of their lease with plaintiff R.L.P. Development Co. should apply, excusing their payment of rent during that time because they could not operate.
“Yet, in good faith, defendants made partial payments to plaintiff during the period of other casualty,” Bailey wrote.
Bailey added that the defendants failure to timely pay rent in full was not the result of an “unprofitable business venture or a downturn of economic conditions.”
The motion also states that Jennifer Range paid a security deposit of approximately $7,082.51, which covers the amount of outstanding rent due at the time plaintiff R.L.P. Development Co. terminated the lease. They add that the value of the rent under the lease does not exceed the fair market rental value of the property, so they do not owe the difference.
R.L.P. Development Co. also demands the defendants pay for improvements made to the property. However, the defendants argue in their motion to dismiss that they paid for those improvements themselves and do not owe anything to the plaintiff.
Additionally, the defendants argue that the plaintiff failed to mitigate its damages and is allowing its new tenant to occupy the property rent-free for six months.
Madison County Circuit Judge Sarah Smith scheduled a motion hearing for Sept. 9 at 9 a.m.
R.L.P. Development Co. filed the two-page complaint on May 25 through attorney Katherine Smith of Edwardsville. The plaintiff alleges the defendants rented the 5,029 square foot property on Century Drive in Edwardsville in March 2017 to open the We Rock the Spectrum children’s gym. The lease was set to expire on May 31, 2017.
However, the plaintiff terminated the lease prematurely, alleging the defendants failed to make rent payments. R.L.P. Development Co. alleges the plaintiffs owe $7,564.17 in monthly rent and expenses for the improvements made to the property in addition to interest and late fees.
The complaint fails to point out the time period during which the defendants were unable to make the payments in full. The defendants clarify in their motion to dismiss that the rent payments in controversy were during the global COVID-19 pandemic.
Madison County Circuit Court case number 21-L-625