No. 1-14-2051 Fifth Division August 19, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

) JAMES MILLER, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) No. 13 CH 473 v. ) ) The Honorable

STANLEY E. LAWRENCE and SHARI E. ) Diane J. Larsen,

LAWRENCE, ) Judge Presiding.

)

Defendants-Appellees. )

)

______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from the dismissal of plaintiff James Miller’s complaint for

conversion, which plaintiff filed against defendants Stanley and Shari Lawrence based on

their actions after the death of defendants’ mother, for whom plaintiff had been a caregiver.

The trial court dismissed the complaint with prejudice after (1) granting defendant Stanley

Lawrence’s motion for summary judgment and (2) granting defendant Shari Lawrence’s

combined motion to dismiss the complaint pursuant to sections 2-615 and 2-619(a)(6) of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(6) (West 2012)). Plaintiff

appeals, arguing that (1) his lawsuit was not barred by the doctrine of res judicata and (2) his No. 1-14-2051

lawsuit was not encompassed by a release plaintiff had previously executed. For the reasons

that follow, we affirm the trial court’s judgment.

¶2 BACKGROUND

¶3 On January 8, 2013, plaintiff filed a verified complaint against defendants, in which he

alleged that he had been the caretaker of Frances J. Lawrence, defendants’ mother, for

approximately 15 years prior to her August 21, 2009, death. Frances had an annuity and a life

insurance policy, both of which named plaintiff as the sole beneficiary. Frances also had a

bank account that listed plaintiff as the beneficiary.

¶4 The complaint alleges that in April 2009, 1 Frances signed a power of attorney for

property appointing defendant Shari Lawrence as her agent. On April 15, 2009, Shari used

the power of attorney to remove plaintiff as beneficiary of the annuity and life insurance

policies and substitute herself and Stanley as beneficiaries. Additionally, on July 15, 2009,

Shari used the power of attorney to remove plaintiff as the beneficiary of the bank account,

close the account, and withdraw the proceeds. Frances died on August 21, 2009, and

defendants collected the funds from the annuity and life insurance policies.

¶5 The complaint alleges that Shari’s use of a power of attorney in this manner was

improper and further alleges that the funds collected by defendants were wrongfully

converted by defendants and should be returned to plaintiff.

¶6 Attached to the complaint was a copy of the power of attorney, which named Shari as

Frances’ agent and named Stanley as successor agent. The power of attorney was signed by

“Frances Lawrence by Stanley Lawrence,” and also contained a handwritten “X” next to the

signature line. Immediately preceding the signature was a statement that, “[b]ecause of my

1 While the complaint alleges the power of attorney was signed in April 2009, the power of attorney attached to the complaint is dated March 10, 2009. 2

No. 1-14-2051

disability (gout in both hands), I am asking my son, Stanley Lawrence, to sign this power of

attorney on my behalf and at my request.”

¶7 On March 6, 2014, Shari filed a combined motion to dismiss plaintiff’s complaint

pursuant to sections 2-615 and 2-619(a)(6) of the Code (735 ILCS 5/2-615, 2-619(a)(6)

(West 2012)). In support of a dismissal pursuant to section 2-619(a)(6), the motion claimed

that plaintiff had previously filed a case in federal district court against Shari and Stanley,

which resulted in a settlement agreement that released any claims that could have been raised

in the federal case. In support of a dismissal pursuant to section 2-615, the motion claimed

that plaintiff could not state a cause of action for conversion, as the subject matter of the

litigation was monetary funds and not chattel.

¶8 On March 24, 2014, Stanley filed a motion for summary judgment also claiming that

plaintiff’s claims against him were barred by a release that plaintiff executed on June 10,

2013, in connection with a settlement of the prior federal court action. The motion claimed

that at the time plaintiff executed the release, plaintiff had litigated state law claims in the

federal lawsuit “and was aware of the [instant] pending lawsuit.” The motion additionally

claimed that plaintiff’s claims were barred by the doctrine of res judicata because the claims

alleged in the state court case could have been raised in the federal court case.

¶9 Attached to the motion for summary judgment was a copy of a release, signed by plaintiff

on June 10, 2013. The release is entitled “Release of All Claims Against Stanley Lawrence”

and provides, in pertinent part:

“In consideration of the payment of One Hundred Two, Seven Hundred Fifty

Thousand Dollars ($102,750), Plaintiff, JAMES MILLER, does hereby release

Defendant, STANLEY LAWRENCE, and all of his heirs, relatives, executors,

3

No. 1-14-2051

administrators, successors, assigns, agents, employees, insurance carriers, of and from

any causes of action and claims for wrongful eviction, malicious prosecution,

intentional infliction of emotional distress, personal injuries, property loss, will

contests, demands, costs, loss of services, expenses, compensation, damages, and any

other claims or causes of action whether or not presently known, direct or vicarious,

pending or threatened, which he now has or may have hereafter on account of, arising

out of or relating to any of the matters alleged or which could have been alleged and

tried in the lawsuit entitled JAMES MILLER v. STANLEY LAWRENCE, filed in

the United Stated District Court for the Northern District of Illinois as Case No. 11 C

01520, including without limitation, any demand, claim, or cause of action on account

of, arising out of, or relating to the property located at *** South Wabash, Chicago,

Illinois and JAMES MILLER’s removal from it. ***

***

This Release contains the ENTIRE AGREEMENT between the parties hereto,

and the terms of this Release are contractual and not a mere recital. The undersigned

have CAREFULLY READ this release, fully understand it, and sign this as the free

and voluntary act of the undersigned.”

¶ 10 Also attached to the motion for summary judgment were the original and fifth amended

complaints in the federal case referenced by the motion and release. The fifth amended

complaint named Stanley, Shari, and three Chicago police officers as defendants and alleged

that plaintiff began living at a residence on South Wabash Avenue (Wabash property) in

Chicago in April 1993 with the permission of Frances, the owner of the residence. Plaintiff

resided at the residence for over 16 years and provided care for Frances, who battled cancer

4

No. 1-14-2051

near the end of her life. According to the complaint: “[d]uring that time, Frances Lawrence

established a strong friendship with Plaintiff. Frances Lawrence exhibited a great amount of

trust by granting Plaintiff Power of Attorney. Plaintiff was also designated as the recipient of

[the residence] in a will prepared by Frances Lawrence.”

¶ 11 The federal complaint alleged that on March 10, 2009, Frances “allegedly executed a

Revocation of such Power of Attorney, which then appointed her daughter, Shari Lawrence,

as her new Power of Attorney and named her son, Stanley Lawrence, as successor agent.”

Additionally, “Nannette Fabi, M.D., a physician licensed in the State of Illinois, certified in a

letter dated March 19, 2009, that after examining Frances Lawrence it was found that she had

severe gout in both hands rendering her unable to write.”

¶ 12 The federal complaint alleged that on April 2, 2009, Frances allegedly executed a quit

claim deed, conveying her Wabash property to Shari and Stanley. Thereafter, on April 15,

2009, Shari and Stanley “attempted to serve” plaintiff with a five day notice, which was

“improperly served by being placed on the front porch of the property.” Shari and Stanley

subsequently filed a pro se forcible entry and detainer complaint and, on May 16, 2009,

asked the Chicago police department to “enforce the 5 day notice by having Plaintiff arrested

for Criminal Trespass to Residence.” On the same day, plaintiff was arrested and charged

with criminal trespass to residence “by a criminal complaint of Stanley Lawrence.” On

December 28, 2009, the charge was nol-prossed by the State. However, Stanley would not

permit plaintiff to retrieve his personal property from the residence.

¶ 13 The federal complaint alleged a section 1983 (

(2006)) claim against the

police officers for false arrest and imprisonment. The complaint additionally stated state-law

claims against Stanley for false imprisonment and malicious prosecution and state-law claims

5

No. 1-14-2051

against Stanley and Shari for intentional infliction of emotional distress and wrongful

eviction.

¶ 14 Finally, attached to the motion for summary judgment was a copy of the federal district

court’s March 30, 2013, memorandum opinion and order in the federal case, in which the

district court granted the police officers’ motion for summary judgment, granted Shari’s

motion for summary judgment, and denied Stanley’s motion for summary judgment. In the

opinion, the district court noted:

“The events at issue in this case took place in March and April 2009. [Plaintiff]

was fifty-nine years old at the time. Frances was in an extended care facility

following treatment in a hospital for cancer. [Plaintiff] contends that Stanley and

Shari, Frances’s children, took advantage of her and obtained from her a revocation

of the power of attorney that Frances had granted to [plaintiff], as well as a new

power of attorney naming Shari with Stanley as her successor and a quitclaim deed

conveying her home to Shari and Stanley. [Plaintiff] questions the authenticity of

Frances’ purported signature on these documents (the signature is an ‘X’).”

Additionally, after noting that it was granting summary judgment on the section 1983 claim,

which was the only federal claim in the case, the district court stated that it would retain

jurisdiction over the state-law claims and proceed to trial on those claims. The motion for

summary judgment then contained a “notification of docket entry” dated May 29, 2013,

indicating that the case was dismissed with prejudice pursuant to a settlement agreement

between the parties.

¶ 15 On June 6, 2014, the trial court entered an order granting Stanley’s motion for summary

judgment and Shari’s motion to dismiss, finding that “[t]he Release at issue in the motions

6

No. 1-14-2051

governs Plaintiff’s claim” and dismissing the complaint with prejudice. On July 7, 2014,

plaintiff filed a notice of appeal, 2 and this appeal follows.

¶ 16 ANALYSIS

¶ 17 On appeal, plaintiff argues that (1) his lawsuit was not barred by the doctrine of res

judicata and (2) his lawsuit was not encompassed by a release plaintiff had previously

executed. We address plaintiff’s argument concerning the release first, as the release serves

as a basis for both Shari’s motion to dismiss and Stanley’s motion for summary judgment.

¶ 18 As an initial matter, defendants ask us to strike plaintiff’s brief and affirm the trial court’s

judgment due to plaintiff’s lack of compliance with applicable supreme court rules governing

the contents of briefs on appeal. “Supreme court rules are not advisory suggestions, but rules

to be followed.” In re Marriage of Hluska,

(citing In re

Estate of Michalak,

(2010)). In the case at bar, defendants are correct

that plaintiff’s brief fails to comply with the supreme court rules governing appellate briefs,

and we may, within our discretion, dismiss his appeal for that reason. In re Marriage of

Hluska,

. However, “striking an appellate brief, in whole or in

part, is a harsh sanction and is appropriate only when the violations of procedural rules

hinder our review.” Hall v. Naper Gold Hospitality LLC,

(citing In re Detention of Powell,

(2005)). Here, we understand the

issues raised in plaintiff’s brief, so we choose not to dismiss plaintiff’s appeal. Accordingly,

we proceed to the merits of plaintiff’s arguments on appeal. 2 Since July 6, 2014, the thirtieth day following the trial court’s order, was a Sunday, plaintiff’s notice of appeal, filed on Monday, July 7, 2014, was timely. See 5 ILCS 70/1.11 (West 2012) (“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday or Sunday ***, and then it shall also be excluded.”); People v. Lesure,

(2011) (“Because the thirtieth day following the trial court’s order was a Sunday, defendant’s notice of appeal was timely filed as provided in the Statute on Statutes.”). 7

No. 1-14-2051

¶ 19 I. Standard of Review

¶ 20 In the case at bar, we are considering the trial court’s grant of both a motion to dismiss

and a motion for summary judgment. A motion to dismiss under section 2-619 3 admits the

legal sufficiency of all well-pleaded facts but allows for the dismissal of claims barred by an

affirmative matter defeating those claims or avoiding their legal effect. Janda v. United

States Cellular Corp.,

(citing DeLuna v. Burciaga,

(2006)). When reviewing a motion to dismiss under section 2-619, “a court must

accept as true all well-pleaded facts in plaintiffs’ complaint and all inferences that can

reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, Inc. v. Blagojevich,

(2008). Additionally, a cause of action should not be dismissed under section 2-619 unless it

is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.

Feltmeier v. Feltmeier,

(2003). For a section 2-619 dismissal, our

standard of review is de novo. Solaia Technology, LLC v. Specialty Publishing Co.,

(2006); Morr-Fitz, Inc. v. Blagojevich,

(2008). De novo

consideration means we perform the same analysis that a trial judge would perform. Khan v.

BDO Seidman, LLP,

(2011). Additionally, even if the trial court

dismissed on an improper ground, a reviewing court may affirm the dismissal if the record

supports a proper ground for dismissal. Raintree Homes, Inc. v. Village of Long Grove,

(2004) (when reviewing a section 2-619 dismissal, we can affirm “on any

basis present in the record”); In re Marriage of Gary,

(2008) (“we

3 We note that, although it did not specify it in the order itself, the trial court granted Shari’s motion to dismiss under section 2-619, which was based on the release. The trial court’s order did not address Shari’s claim under section 2-615, which was based on the failure to state a cause of action for conversion. 8

No. 1-14-2051

may affirm on any basis supported by the record, regardless of whether the trial court based

its decision on the proper ground”).

¶ 21 With respect to summary judgment, a trial court is permitted to grant summary judgment

only “if the pleadings, depositions, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). The trial court

must view these documents and exhibits in the light most favorable to the nonmoving party.

Home Insurance Co. v. Cincinnati Insurance Co.,

(2004). We review a

trial court’s decision to grant a motion for summary judgment de novo. Outboard Marine

Corp. v. Liberty Mutual Insurance Co.,

(1992). Again, de novo

consideration means we perform the same analysis that a trial judge would perform. Khan,

.

¶ 22 “Summary judgment is a drastic measure and should only be granted if the movant’s right

to judgment is clear and free from doubt.” Outboard Marine Corp.,

.

However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

judgment.” Sorce v. Naperville Jeep Eagle, Inc.,

(1999). The party

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung,

(2007). The movant may meet his burden of proof either by affirmatively

showing that some element of the case must be resolved in his favor or by establishing “ ‘that

there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas,

(quoting Celotex Corp. v. Catrett,

(1986)). “ ‘The purpose

of summary judgment is not to try an issue of fact but *** to determine whether a triable

issue of fact exists.’ ” Schrager v. North Community Bank,

(2002)

9

No. 1-14-2051

(quoting Luu v. Kim,

(2001)). As with a motion to dismiss, we may

affirm on any basis appearing in the record, whether or not the trial court relied on that basis

or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp.,

(1992).

¶ 23 II. Release

¶ 24 As noted, we first consider plaintiff’s arguments concerning the release, as the release

served as a basis for both Shari’s motion to dismiss and Stanley’s motion for summary

judgment. In the case at bar, the trial court found that the release executed by plaintiff as part

of the settlement of the federal case encompassed the claims raised in the instant state case.

We agree with the trial court.

¶ 25 The release in the federal case was signed by plaintiff on June 10, 2013. The release is

entitled “Release of All Claims Against Stanley Lawrence” and provides, in pertinent part:

“In consideration of the payment of One Hundred Two, Seven Hundred Fifty

Thousand Dollars ($102,750), Plaintiff, JAMES MILLER, does hereby release

Defendant, STANLEY LAWRENCE, and all of his heirs, relatives, executors,

administrators, successors, assigns, agents, employees, insurance carriers, of and from

any causes of action and claims for wrongful eviction, malicious prosecution,

intentional infliction of emotional distress, personal injuries, property loss, will

contests, demands, costs, loss of services, expenses, compensation, damages, and any

other claims or causes of action whether or not presently known, direct or vicarious,

pending or threatened, which he now has or may have hereafter on account of, arising

out of or relating to any of the matters alleged or which could have been alleged and

tried in the lawsuit entitled JAMES MILLER v. STANLEY LAWRENCE, filed in

the United Stated District Court for the Northern District of Illinois as Case No. 11 C

10

No. 1-14-2051

01520, including without limitation, any demand, claim, or cause of action on account

of, arising out of, or relating to the property located at *** South Wabash, Chicago,

Illinois and JAMES MILLER’s removal from it. ***

***

This Release contains the ENTIRE AGREEMENT between the parties hereto,

and the terms of this Release are contractual and not a mere recital. The undersigned

have CAREFULLY READ this release, fully understand it, and sign this as the free

and voluntary act of the undersigned.”

¶ 26 A release “ ‘is the abandonment of a claim to the person against whom the claim

exists.’ ” Thornwood, Inc. v. Jenner & Block,

(2003) (quoting Hurd v.

Wildman, Harrold, Allen & Dixon,

(1999)); Fuller Family Holdings,

LLC v. Northern Trust Co.,

(2007). It is a contract and is therefore

governed by contract law. Farm Credit Bank of St. Louis v. Whitlock,

(1991) (citing Polo National Bank v. Lester,

(1989)). Where a

contract is clear and explicit, a court must enforce it as written, and the meaning of the

contract, as well as the intention of the parties, must be gathered from the document without

the assistance of extrinsic aids. Rakowski v. Lucente,

(1984); Fuller Family,

; Shultz v. Delta-Rail Corp.,

(1987). However, a

release will not be construed to include claims that were not within the contemplation of the

parties. Carlile v. Snap-On Tools,

(1995) (citing Carona v. Illinois

Central Gulf R.R. Co.,

(1990)). “ ‘[N]o form of words, no matter

how all encompassing, will foreclose scrutiny of a release [citation] or prevent a reviewing

court from inquiring into surrounding circumstances to ascertain whether it was fairly made

11

No. 1-14-2051

and accurately reflected the intention of the parties.’ ” Carlile,

(quoting Ainsworth Corp. v. Cenco, Inc.,

(1982)).

¶ 27 In the case at bar, plaintiff argues that the claims asserted in the instant state suit were not

encompassed by the release executed in the federal suit. He claims that the release was

limited to “ ‘all claims arising out of the Federal Suit,’ ” and argues that “[s]ince all parties

were aware *** of the pending state claims regarding the insurance policies and the bank

account, a reasonable person could argue that those claims in another court were excepted

from the Release.” We do not find this argument persuasive.

¶ 28 First, despite plaintiff’s contention, the language of the release was not limited to “ ‘all

claims arising out of the Federal Suit.’ ” Instead, the release released Stanley and his

relatives 4 “from any causes of action *** whether or not presently known, direct or vicarious,

pending or threatened, which he now has or may have hereafter on account of, arising out of

or relating to any of the matters alleged or which could have been alleged and tried in the

[federal lawsuit], including without limitation, any demand, claim, or cause of action on

account of, arising out of, or relating to the property located at *** South Wabash, Chicago,

Illinois and JAMES MILLER’s removal from it.” (Emphasis added.) Plaintiff admits, as he

must, that the cause of action alleged in the instant state lawsuit was “presently known” at the

time of the June 10, 2013, execution of the release, given that he had filed the state lawsuit

on January 8, 2013, five months before the execution of the release. Thus, so long as the

conversion claim alleged in the state lawsuit was “on account of, arising out of or relating to

any of the matters alleged or which could have been alleged and tried” in the federal lawsuit,

4 Plaintiff does not dispute that the release was also applicable to Shari, as Stanley’s relative. 12

No. 1-14-2051

such a claim would have been encompassed by the release. We agree with defendants that it

was.

¶ 29 As defendants point out, the claims alleged in the instant state lawsuit could have been

raised in the federal lawsuit and were certainly related to the claims in that suit. In the federal

lawsuit, plaintiff raised claims arising from the revocation of his power of attorney and the

subsequent appointment of Shari as Frances’ power of attorney. Specifically, plaintiff alleged

that Shari and Stanley used Shari’s power of attorney to evict plaintiff from Frances’

property, where plaintiff had been living for over 16 years. Similarly, in the state lawsuit,

plaintiff’s allegations also arise from the same revocation of plaintiff’s power of attorney and

the appointment of Shari as Frances’ power of attorney; here, plaintiff is alleging that Shari

and Stanley used Shari’s power of attorney to collect the funds under Frances’ annuity and

life insurance policies and to withdraw funds from Frances’ bank account. Thus, there is no

reason why plaintiff’s current claims could not have been included in the federal lawsuit, and

accordingly, they are encompassed within the terms of the release. 5

¶ 30 We are also not persuaded by plaintiff’s argument that “[s]ince all parties were aware ***

of the pending state claims regarding the insurance policies and the bank account, a

reasonable person could argue that those claims in another court were excepted from the

Release.” As noted, a release will not be construed to include claims that were not within the

contemplation of the parties. Carlile,

(citing Carona v. Illinois

Central Gulf R.R. Co.,

(1990)). However, the fact that a claim is

not specifically listed in a release does not necessarily preclude that claim from having been

within the contemplation of the parties and therefore barred. See, e.g., Rakowski v. Lucente,

5 We note that the federal district court chose to retain jurisdiction over the state-law claims in the federal lawsuit even after summary judgment was granted on the only federal claim. 13

No. 1-14-2051

(1984) (“[t]here is no basis for [the defendants’s] argument that the

release did not include a specific type of action *** because that right was not expressly

enumerated. When employing a release as broad as the one used here, any attempt to list the

specific types of action included in the release might have detracted from its broad and

general scope.”); Gavery v. McMahon & Elliott,

(1996)

(rejecting an argument that the plaintiff’s specific malpractice claims were not within the

contemplation of the parties because he released all claims, which included the malpractice

claims); Chubb v. Amax Coal Co.,

(1984) (finding that the release

barred all claims in existence arising under an insurance policy, whether known or

unknown). “[W]here both parties were aware of an additional claim at the time of signing the

release, courts have given effect to the general release language of the agreement to release

that claim as well.” Farm Credit,

. In the case at bar, both parties were

admittedly aware of the existence of the claims alleged in the instant state lawsuit at the time

that the release was executed. Additionally, the language of the release contains no basis for

interpreting the release to include an “except[ion]” for the claims in this lawsuit, as plaintiff

asks us to find. Accordingly, the language of the release operates to bar those claims, and the

trial court did not err in granting Shari’s motion to dismiss and Stanley’s motion for

summary judgment.

¶ 31 III. Res Judicata

¶ 32 Plaintiff also argues that the instant state lawsuit was not barred by the doctrine of res

judicata. However, as we have determined that the trial court properly granted Shari’s

motion to dismiss and Stanley’s motion for summary judgment based on the language of the

release, we have no need to consider whether the claims were also barred by res judicata.

14

No. 1-14-2051

¶ 33 CONCLUSION

¶ 34 The trial court’s grant of Shari’s motion to dismiss and Stanley’s motion for summary

judgment is affirmed where the language of the release executed in the federal lawsuit

encompasses the claims alleged in the instant state lawsuit and all parties were admittedly

aware of that lawsuit at the time of the execution of the release.

¶ 35 Affirmed.

15