Thirsty Whale litigation seeks $133K from former Algonquin business' owner

Last month, Thirsty Whale Bar and Grill, 1700 S. Randall Road, was added to the list of Algonquin Commons businesses that have closed their doors in the past few years.

But although the doors are locked, a lawsuit in Kane County against the business and previous owner, Huntley Trustee Niko Kanakaris, persists.

Acting as court-appointed receiver for the Algonquin Commons shopping center, Matthew D. Mason filed a complaint July 7, 2017, accusing Thirsty Whale of breaching its lease and accusing Kanakaris of breaching guaranty, which could leave the trustee on the hook for more than $133,000 in unpaid rent and other expenses.

In September 2009, Kanakaris signed a lease to operate Thirsty Whale out of 6,480 square feet of space within Algonquin Commons. Kanakaris also entered a guaranty of lease, according to the complaint, which is a promise from the owner of a business that if a lease agreement were breached, the owner would make good on tenant promises.

Under the terms of the lease, the tenant agreed to pay late fees and interest charges should rent not be paid.

Kanakaris said the business was sold in 2013 to Joe Condo. Kanakaris’ lawyer, Troy Owens of Lake in the Hills-based Owens Law LLC, said he has formal statements on file that Kanakaris sold the business five years ago and all assets and liabilities were settled under an asset purchase agreement.

“I disagree that there’s a legal conclusion [Kanakaris] is liable for any of the alleged damages,” Owens said. “Any way you slice it, he does not own anything involving Thirsty Whale over the last five years.”

Rent payments allegedly were not made from July to November 2016 and April to June 2017.

As of the date the complaint was filed, more than $133,000 – plus late fees and interest – are owed.

In February 2017, Kanakaris and Condo were sent a five days’ notice regarding the unpaid rent, according to the complaint.

Mason claims that under the terms of the guaranty of lease, Kanakaris is personally liable for any and all amounts under the lease despite not owning the business anymore.

Additionally, Kanakaris had filed for bankruptcy in 2013, but because he did not include the guaranty among his bankruptcy schedules, the plaintiff claims he still is liable.

“As it pertains to the bankruptcy conclusion, I think there is a gap in logic,” Owens said.

A case management conference, where all parties in the suit will meet with the judge to discuss how to proceed, is scheduled for 9 a.m. Sept. 12.

Pat Griffin of Geneva-based Griffin Williams LLP, who represents the current owner of Thirsty Whale, said there are no plans for a new business in the Algonquin Commons space.

Condo could not be reached for comment Friday.

A number of business have come and gone at Algonquin Commons in the past few years, including Charming Charlie, Gymboree, Family Christian, Kirkland’s, Stride Rite and PetSmart.

Several of the closures were part of wide-scale store shutdowns because of poor sales performances, while others were caused by relocation.