Rule 23 order filed 2015 IL App (5th) 140105
February 25, 2015;
Motion to publish granted NO. 5-14-0105
March 31, 2015.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
DUANE HASSEBROCK and ) Appeal from the
EVELYN HASSEBROCK, ) Circuit Court of
) Marion County.
Plaintiffs-Appellants, )
)
v. ) No. 11-L-47
)
DEEP ROCK ENERGY CORPORATION, ) Honorable
) Michael D. McHaney,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE SCHWARM delivered the judgment of the court, with opinion.
Presiding Justice Cates and Justice Chapman concurred in the judgment and
opinion.
OPINION
¶1 BACKGROUND
¶2 In October 1999, the plaintiff, Duane Hassebrock, 1 and the defendant, Deep Rock
Energy Corporation, as the owners of several Marion County oil and gas leases covering
1
The record indicates that Duane's wife, Evelyn, is a named party in this case
because in January 2011, Duane assigned to her half of his interest at issue. In the
proceedings below, the defendant disputed whether Duane's assignment to Evelyn had
ever been properly recorded and noticed. It is undisputed, however, that Evelyn was not
1
various tracts of land south of Stephen A. Forbes State Park (the Omega leases), entered
into a letter agreement with Ceja Corporation (Ceja), an oil and gas exploration and
development company headquartered in Tulsa, Oklahoma. Under the terms of the letter
agreement, Ceja agreed to perform a seismic survey of the land covered by the Omega
leases in exchange for a 25% working interest in the leases. The agreement further
provided that should the results of the seismic survey warrant drilling and development
on the Omega leases, Ceja would operate the wells, and the parties would enter into a
separate agreement regarding Ceja's operations.
¶3 It is undisputed that the parties never entered into an operating agreement with
respect to the Omega leases. It is further undisputed that the defendant later obtained
numerous oil and gas leases to various tracts of land in and around Stephen A. Forbes
State Park (the Forbes leases) and that the defendant and Ceja developed working oil
wells pursuant to those leases, without the plaintiff.
¶4 In May 2002, the plaintiff filed a "Notice of Claim of Interest" with the Marion
County clerk and recorder of records (the notice). The notice alleged that the plaintiff
had a claim of interest in the Forbes leases and specifically named the defendant and Ceja
as parties to the notice. Further alleging that the plaintiff, the defendant, and Ceja had
a party to the events underlying the present cause of action against the defendant and that
her status as interest-holder is not relevant to any of the issues on appeal. For simplicity,
we will thus refer to Duane as "the plaintiff" and to his and Evelyn's combined interest as
his interest.
2
entered into a joint venture agreement with respect to the Omega leases and the Forbes
leases (the venture agreement), the notice suggested that the defendant and Ceja had
violated the terms of the venture agreement by not giving the plaintiff his proportional
interest in the Forbes leases, as "was understood and agreed between all joint venture
members."
¶5 In Marion County case number 02-MR-63, the defendant subsequently sued the
plaintiff to remove the notice as a cloud on its title to the Forbes leases. The plaintiff, in
turn, filed a counterclaim against the defendant seeking to enforce the alleged terms of
the venture agreement.
¶6 On December 3, 2004, the plaintiff and the defendant entered into a settlement
agreement resolving their respective disputes in No. 02-MR-63 (the settlement
agreement). Pursuant to the terms of the settlement agreement, the plaintiff and the
defendant released each other from all claims arising from the venture agreement, and the
defendant gave the plaintiff $2.5 million. The plaintiff also assigned to the defendant all
of his right, title, and interest in and to the Forbes leases, and the defendant assigned to
the plaintiff a 1% carried working interest in the "oil produced and saved" from the
leases. Notably, the defendant's assignment to the plaintiff did not require the defendant
to directly pay the plaintiff on his 1% interest.
¶7 In February 2011, in the circuit court of St. Clair County, the plaintiff filed a
complaint against the defendant alleging that it had breached the terms of the settlement
agreement by failing to pay him for his entire 1% interest in the oil harvested from the
3
Forbes leases. The plaintiff subsequently filed a first amended complaint alleging
additional counts against Ceja for breaching the terms of the venture agreement.
¶8 In March 2011, the defendant and Ceja filed motions to transfer venue from St.
Clair County to Marion County. In July 2011, the circuit court of St. Clair County
granted the motions, and the cause was transferred to Marion County, where it was
assigned case number 11-L-47.
¶9 In September 2011, arguing that the plaintiff's claims regarding the venture
agreement were improperly joined with his claims regarding the settlement agreement,
Ceja filed a motion to dismiss the counts against it and to dismiss it as a party in
No. 11-L-47. At the same time, with respect to the plaintiff's claims against the
defendant, the defendant filed a motion to dismiss the plaintiff's first amended complaint
as improperly pled (see 735 ILCS 5/2-615 (West 2012)). In November 2011, finding that
the plaintiff's attempted joinder of Ceja was improper under the circumstances, the trial
court granted Ceja's motion to dismiss. The trial court also granted the defendant's
motion to dismiss and granted the plaintiff leave to file a second amended complaint.
¶ 10 The plaintiff subsequently filed a second amended complaint that again combined
his claims against the defendant and Ceja. In his second amended complaint, the plaintiff
alleged, among other things, that in addition to failing to pay him for his entire 1%
interest in the oil harvested from the Forbes leases, the defendant had also failed to pay
him his entire 1% interest in the gas harvested from the leases. The defendant and Ceja
again responded with motions to dismiss. In one of its motions, the defendant argued that
the plaintiff's allegation that he was entitled to a 1% interest in the gas harvested from the
4
Forbes leases should be stricken because under the terms of the settlement agreement, the
plaintiff had never been given such an interest.
¶ 11 In February 2012, stating that the plaintiff's cause of action against the defendant
was "separate and distinct" from his cause of action against Ceja, the trial court entered
an order striking all references to Ceja and the venture agreement from the plaintiff's
second amended complaint. Noting that the defendant's assignment to the plaintiff did
not include a working interest in any gas harvested from the Forbes leases, the court also
struck the plaintiff's allegation that he was entitled to a 1% interest in any such gas.
¶ 12 The plaintiff subsequently filed a third amended complaint that again combined
his claims against the defendant and Ceja. In response, the defendant and Ceja filed
motions to dismiss the third amended complaint for failure to comply with the trial
court's previous order. In June 2012, noting that−although the plaintiff's third amended
complaint did not reallege that he was entitled to a 1% interest in the gas harvested from
the Forbes leases−the complaint was "virtually identical" to his second, the trial court
granted the motions to dismiss and ordered that the plaintiff's causes of action against the
defendant and Ceja be severed. In September 2012, after denying the plaintiff's motion
to reconsider, the trial court entered an order formally severing the causes of actions, and
the plaintiff's case against Ceja was assigned case number 12-L-56.
¶ 13 The plaintiff subsequently filed a fourth amended complaint against the defendant,
realleging that the defendant had failed to pay him the full amounts owed him on his 1%
interest in the oil produced from the Forbes leases. The defendant moved to dismiss the
fourth amended complaint, asserting that under the terms of the settlement agreement, it
5
was not responsible for paying the plaintiff any amounts due on his 1% interest. In
October 2012, construing the defendant's motion to dismiss the plaintiff's fourth amended
complaint as a motion to dismiss pursuant to section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2012)), the trial court entered an order stating that
the plaintiff had failed to plead any facts supporting its conclusion that the defendant was
required to pay the plaintiff "any sum of money regarding the one percent (1%) carried
working interest." The court noted that the settlement agreement required the defendant
to pay the plaintiff $2.5 million and to merely assign the 1% interest. The court thus
granted the defendant's motion to dismiss and granted the plaintiff leave to file an
amended complaint.
¶ 14 In November 2012, the plaintiff filed his fifth and final amended complaint. The
complaint was substantially similar to the plaintiff's previous complaint and again alleged
that the defendant had breached the terms of the settlement agreement by failing to pay
him the full amounts due on his 1% interest. The record indicates that in November
2012, the plaintiff also mailed the defendant a discovery request in the form of a "First
Request for Production of Documents and First Interrogatories," a copy of which is not
included in the record on appeal.
¶ 15 In December 2012, the defendant filed a motion for summary judgment (see 735
ILCS 5/2-1005 (West 2012)), arguing that in light of the trial court's previous
determination that the defendant was not obligated to make payments to the plaintiff on
his 1% interest, the defendant was entitled to judgment in its favor as a matter of law.
The defendant also filed a motion for extension of time to respond to the plaintiff's
6
discovery request. On January 7, 2013, the plaintiff filed a motion in opposition to the
defendant's request for summary judgment, in which he noted that the defendant had yet
to respond to his discovery request. The record indicates that on January 9, 2013, the
defendant mailed the plaintiff its response to his "First Request for Production of
Documents and First Interrogatories."
¶ 16 In April 2013, the cause proceeded to a hearing on the defendant's motion for
summary judgment, where the defendant reiterated its position that it was not obligated to
pay the plaintiff any money on the 1% interest that had been assigned to him pursuant to
the settlement agreement. The defendant maintained that while the plaintiff's right to
receive money from the proceeds of the oil harvested from the Forbes leases arose from
the assignment, the defendant was not responsible for ensuring that such money be paid.
In response, the plaintiff complained that there had been "absolutely no discovery" and
that there was "no affidavit in support of [the defendant's] motion." The plaintiff asserted
that whether the defendant was somehow involved in divvying up the money at issue was
therefore unknown.
¶ 17 In May 2013, the trial court entered a docket-entry order denying the defendant's
motion for summary judgment, stating that the plaintiff had pled a sufficient cause of
action for breach of contract. The order further stated that if after discovery, the
defendant established that the plaintiff had received all monies due on his 1% interest or
that some other entity was responsible for making the payments, the defendant could then
request that summary judgment be entered in its favor.
7
¶ 18 In June 2013, the defendant filed an answer and a first defense to the plaintiff's
fifth amended complaint, and the parties deposed Ellen Cassidy, a paralegal title analyst
employed by Bi-Petro, Inc., a crude oil purchaser headquartered in Springfield. Cassidy
testified that she was familiar with Bi-Petro's purchasing practices and that Bi-Petro was
the "first purchaser" of the oil harvested from the Forbes leases. See 765 ILCS 520/10(b)
(West 2012). She further testified that Bi-Petro directly distributes the proceeds of its
purchases of the oil harvested from the Forbes leases and "physically" makes the
payments to the leases' numerous interest-holders, including the plaintiff. Cassidy
indicated that on one occasion in 2006, however, the defendant had directly distributed
funds earned from the sale of oil from the Forbes leases. She further indicated that there
had otherwise never been an agreement under which the defendant had assumed that
responsibility. Cassidy stated that the defendant had nothing "to do with computing the
amounts of money that Bi-Petro pays to the various interest[-]holders, including [the
plaintiff]." Cassidy produced numerous division orders, distribution reports, and 1099
forms collectively showing that from 2004 through 2012, Bi-Petro had paid the plaintiff
nearly $1.1 million on his 1% interest in the Forbes leases. Cassidy testified that Bi-Petro
was not holding any funds in escrow that would otherwise be payable to the plaintiff and
that to the best of her knowledge, the plaintiff had been paid all amounts due him on his
1% interest. Cassidy stated that she was not aware of any agreement between Bi-Petro
and the defendant with respect to the Forbes leases, other than their original sales
contract, but that Bi-Petro's vice president would know if any other agreements existed.
Cassidy indicated that the plaintiff's attorney had never requested that Bi-Petro provide
8
him with any information regarding the oil proceeds from the Forbes leases but that she
would be able to provide the plaintiff's attorney with a copy of the defendant's sales
contract with Bi-Petro if requested. Cassidy stated that she did not know if Bi-Petro
purchased all of the crude oil produced by the defendant, noting that the defendant "could
have wells that they're selling to other companies." Cassidy testified that Bi-Petro does
not purchase natural gas. The record indicates that in addition to a copy of the
deposition, the plaintiff was also provided with copies of all of the documents referred to
at the deposition.
¶ 19 On August 12, 2013, the defendant filed objections to the plaintiff's "second set of
interrogatories," claiming that they pertained to natural gas and that the plaintiff had not
been assigned any interest in gas. A copy of the second set of interrogatories is not
included in the record on appeal. On August 21, 2013, the defendant's president, Ben
Webster, executed an affidavit attesting, among other things, that "[a]t all times during
and subsequent to December 3, 2004, all of the oil produced from the [Forbes leases had
been] purchased by Bi-Petro, Inc." Webster further attested that the defendant "has
nothing to do with the computation of the amounts paid by Bi-Petro, Inc.[,] to the various
interest[-]holders" of the Forbes leases. Webster indicated that on one occasion in 2006,
the defendant had distributed the proceeds of oil produced from the Forbes leases because
of a pending title dispute but had otherwise never agreed to distribute such funds.
Webster further indicated that after the title dispute had been settled, the defendant had
paid the plaintiff his 1% share of the remaining proceeds. Webster attested that "[t]he
only other arguable proceeds from oil produced from the [Forbes leases was] money
9
derived from marketable oil extracted from tank bottoms amounting to a total of
$7,524.47." Webster did not believe that the plaintiff was entitled to a 1% share of those
funds, however, as they had "been treated as a credit to the cost[-]bearing interest[-
]holders as a partial reimbursement for the cost of disposing of the tank bottoms."
¶ 20 On August 27, 2013, the defendant filed a second motion for summary judgment,
which included, among other things, a transcript of Cassidy's deposition, copies of the
documents referred to at her deposition, and a copy of Webster's affidavit. Arguing that
there was no material question of fact regarding whether the defendant was obligated to
pay the plaintiff on his 1% interest in the Forbes leases, the motion alleged that Bi-Petro
had been the only purchaser of the oil harvested from the leases and that other than the
one occasion involving the 2006 title dispute, the defendant had never assumed the
responsibility of distributing the proceeds from its sales of the oil.
¶ 21 In September 2013, the plaintiff filed a motion in opposition to the defendant's
second motion for summary judgment. Referencing Cassidy's acknowledgment that she
did not know if Bi-Petro purchased all of the crude oil produced by the defendant, the
plaintiff argued that it was not clear whether Bi-Petro was the only purchaser of the oil
harvested from the Forbes leases. Referencing Cassidy's acknowledgment that she did
not know if the defendant and Bi-Petro had entered into any agreements other than their
original sales contract, the plaintiff further argued that he had not "been afforded the
opportunity to explore all of the agreements between [the defendant] and Bi-Petro, as
well as any additional possible agreement between [the defendant] and others who are
purchasing oil from [the Forbes leases]." Asserting that he had 1% interest in the natural
10
gas harvested from the Forbes leases, the plaintiff also complained that the defendant had
"refused to respond to [his] discovery requests associated with this issue."
¶ 22 On October 1, 2013, the trial court held a hearing on the defendant's second
motion for summary judgment. At the hearing, referencing Webster's "uncontradicted
affidavit *** that Bi-Petro is the only buyer of the oil produced from [the Forbes leases],"
the defendant argued that although it had "other wells" that produced oil that was sold to
purchasers other than Bi-Petro, those wells were "not involved in this lawsuit." The
defendant further acknowledged that although it had proven that the plaintiff had not
been denied any payments due on his 1% interest, there arguably remained a question of
fact as to whether the plaintiff was entitled to a 1% share of the $7,524.47 obtained from
the sale of the "salvaged oil" that had been extracted from the tank bottoms during the
drilling process. The defendant thus suggested that its motion for summary judgment be
treated as a motion for summary judgment as to the "major issue rather than a summary
judgment for the whole thing." In response, the plaintiff maintained that even assuming
that Bi-Petro was the only purchaser of the oil harvested from the Forbes leases, the
defendant "still may owe [him] money for the gas." 2 The plaintiff also complained that
the defendant had failed to comply with his discovery requests.
2
The record indicates that at some point, natural gas had been harvested from the
Forbes leases. Because the associated expenses "became so overwhelming," however,
the practice "wasn't economically feasible" and was thus apparently discontinued.
11
¶ 23 In a letter dated October 3, 2013, the defendant's attorney wrote the trial court
clarifying the defendant's arguments and reiterating its position regarding the possible
entry of an order granting partial summary judgment. The letter was accompanied by a
proposed order and a copy of the statute governing summary judgments (735 ILCS 5/2-
1005 (West 2012)). It is undisputed that the defendant's attorney failed to
contemporaneously forward a copy of the correspondence and proposed order to the
plaintiff's attorney.
¶ 24 On October 7, 2013, using the defendant's proposed order, the trial court granted
partial summary judgment in favor of the defendant. The court determined that under the
terms of the settlement agreement, the defendant was not obligated to pay the plaintiff on
his 1% interest in the oil harvested from the Forbes leases and that the defendant's
assignment to the plaintiff "did not carry with it any interest in gas." The court also noted
that by statute, Bi-Petro was responsible for distributing the proceeds derived from its oil
purchases. The court further determined that "with two exceptions," Bi-Petro had paid
the leases' interest-holders their shares of monies obtained from the sales of the harvested
oil. The court identified the two exceptions as the aforementioned occasion involving the
2006 "title dispute" and the defendant's sale of the "salvaged oil" referenced in Webster's
affidavit. Refusing to grant summary judgment with respect to those exceptions, the
court stated that there may be remaining questions of fact as to whether the defendant had
properly distributed the funds following the title dispute and whether the plaintiff was
entitled to any of the proceeds from the sale of the salvaged oil.
12
¶ 25 In an accompanying docket entry, observing that it appeared that the plaintiff had
not been provided with a copy of the defendant's letter to the court, the court directed the
circuit clerk to send the plaintiff's attorney a copy of the letter along with a copy of the
order granting partial summary judgment. Indicating that the letter had not influenced the
court's ruling, the docket entry further noted that the letter was a summation of the
defendant's arguments and did not include anything that had not already been addressed.
The record indicates that the defendant's attorney subsequently also sent the plaintiff's
attorney a copy of the correspondence to the court, accompanied by a letter explaining
that his failure to previously do so had been unintentional.
¶ 26 In a letter dated October 22, 2013, the plaintiff's attorney advised the defendant's
attorney that he suspected that the defendant "never intended" to provide the plaintiff
with a copy of its letter to the court until after the order granting partial summary
judgment had been entered. The plaintiff further indicated that it would be moving to
vacate the trial court's judgment order in light of the ex parte communication.
¶ 27 On October 23, 2013, the plaintiff filed a motion to vacate the trial court's order
granting partial summary judgment in light of the defendant's ex parte communication
with the court. As an appendix, the motion to vacate included a copy of the plaintiff's
October 22, 2013, correspondence to the defendant's attorney.
¶ 28 At a hearing held December 17, 2013, the plaintiff's motion to vacate the trial
court's order granting partial summary judgment was addressed. Plaintiff's counsel
argued that whether the defendant's failure to provide him with a copy of the October 3,
2013, correspondence had been "a mistake or not," the correspondence was nonetheless
13
an improper ex parte communication to which the plaintiff was entitled to respond.
Without objection, the trial court agreed, vacated its previously entered order, and stated
that it would give the plaintiff whatever time he deemed necessary to prepare a response.
¶ 29 On December 27, 2013, the trial court entered an order granting the defendant's
motions to dismiss the plaintiff's case against Ceja in No. 12-L-56. The plaintiff
subsequently filed a timely notice of appeal in No. 12-L-56.
¶ 30 On January 14, 2014, the plaintiff filed a surreply in opposition to the defendant's
second motion for summary judgment in the present case, which was virtually identical to
his September 2013 pleading in opposition to the motion. The record indicates that on
February 19, 2014, the trial court held a final hearing on "[a]ll pending motions" in the
case. Notably, a transcript of the proceedings is not included in the record on appeal.
¶ 31 On February 25, 2014, the trial court entered a written order reinstating its
previously vacated order granting partial summary judgment in favor of the defendant. In
the order, the court specifically stated that its judgment was "[b]ased solely on the record
and [the] case law submitted." After making an express written finding that there was no
just reason for delaying either enforcement or appeal of the judgment pursuant to Illinois
Supreme Court Rule 304(a) (eff. Feb. 26, 2010), the trial court further stated, without
elaboration, that it was recusing itself from all future proceedings in the instant case and
in the plaintiff's case against Ceja in No. 12-L-56. On March 7, 2014, the plaintiff filed a
timely notice of appeal.
14
¶ 32 DISCUSSION
¶ 33 On appeal, the plaintiff argues that the trial court erred in granting partial summary
judgment in favor of the defendant. The plaintiff maintains that doubts remain as to
whether Bi-Petro is the only purchaser of the oil harvested from the Forbes leases and
whether the defendant and Bi-Petro have ever entered into agreements with respect to the
leases other than their original sales contract. He further maintains that the trial court
erroneously concluded that his assigned 1% interest in the leases did not include any
interest in natural gas. The plaintiff also suggests that it was improper for the trial court
to enter judgment in the defendant's favor and then recuse itself without stating why.
¶ 34 Plaintiff's Statement of Facts
¶ 35 At the outset, the defendant complains that the plaintiff's statement of facts
violates Illinois Supreme Court Rule 341(h)(6), which requires that an appellant's brief
include a statement of facts "which shall contain the facts necessary to an understanding
of the case, stated accurately and fairly without argument or comment, and with
appropriate reference to the pages of the record on appeal." Ill. S. Ct. R. 341(h)(6) (eff.
Feb. 6, 2013). The defendant argues that the plaintiff's statement of facts is
argumentative, includes few citations to the record, and further includes numerous
assertions that "are not even in the record at all." We agree and will accordingly ignore
those portions of the plaintiff's brief that fail to comply with Rule 341(h)(6). See
Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1058 (1999); Finance America
Commercial Corp. v. Econo Coach, Inc., 95 Ill. App. 3d 185, 186 (1981).
15
¶ 36 Summary Judgment and Standards of Review
¶ 37 "A motion for summary judgment should only be granted when the pleadings,
depositions, and affidavits demonstrate that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law." Jackson v. TLC
Associates, Inc., 185 Ill. 2d 418, 423 (1998). "The purpose of summary judgment is not
to try a question of fact, but to determine if one exists." Robidoux v. Oliphant, 201 Ill. 2d
324, 335 (2002). "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. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). "Although a plaintiff is not
required to prove his case at the summary judgment stage, in order to survive a motion
for summary judgment, the nonmoving party must present a factual basis that would
arguably entitle the party to a judgment." Robidoux, 201 Ill. 2d at 335. Our review of a
trial court's order granting summary judgment is de novo. Outboard Marine Corp., 154
Ill. 2d at 102. The interpretation of a settlement agreement or assignment, both of which
are governed by contract principles, is a matter of law that we also review de novo. Blum
v. Koster, 235 Ill. 2d 21, 33 (2009); Cincinnati Insurance Co. v. American Hardware
Manufacturers Ass'n, 387 Ill. App. 3d 85, 99 (2008).
¶ 38 Gas
¶ 39 The plaintiff suggests that the trial court erroneously determined that the
assignment he obtained pursuant to the terms of the settlement agreement did not include
an interest in any natural gas harvested from the Forbes leases. Noting that the
assignment and settlement agreement are fraught with references to "oil and gas," the
16
plaintiff contends that although "the assignment itself only references a working interest
in 'oil produced,' *** the parties clearly contemplated both oil and natural gas." We
disagree.
¶ 40 "The cardinal rule of contract interpretation is to discern the parties' intent from
the contract language." Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 308
(2008). "Where the contract language is unambiguous, it should be given its plain and
ordinary meaning." Id.
¶ 41 Here, the defendant's assignment to the plaintiff assigned "a one percent (1%)
carried working interest more particularly described below in and to [the Forbes leases]."
The assignment then specifically states:
"The carried working interest herein assigned shall entitle [the plaintiff] to
receive one percent (1%) of the working interest oil produced and saved from [the
Forbes leases] free and clear of all costs and expenses for drilling, completion[,]
and operation to the tank, but subject to all existing royalty and overriding royalty
obligations."
The assignment further states that the plaintiff's "sole right shall be to receive money
attributable to one percent (1%) of the proceeds of working interest oil produced and sold
from [the Forbes leases]." We note that the assignment also specifically references "oil,"
"oil wells," and "wells producing oil," while the term "gas" only appears when describing
the Forbes leases as "oil and gas leases."
¶ 42 "In construing a contract, the court's primary objective is to ascertain and give
effect to the parties' intent as evidenced by the plain language used in the agreement."
17
Hannafan & Hannafan, Ltd. v. Bloom, 2011 IL App (1st) 110722, ¶ 17. Here, although
the assignment and settlement agreement refer to the Forbes leases as "oil and gas
leases," the assignment's plain and unambiguous language granted the plaintiff a 1%
interest in the "oil produced" from the Forbes leases but did not grant him any interest in
natural gas. The trial court thus properly entered summary judgment in favor of the
defendant on this issue.
¶ 43 Oil
¶ 44 As previously noted, when granting the defendant's motion for partial summary
judgment, the trial court determined that under the terms of the settlement agreement, the
defendant was not obligated to directly pay the plaintiff on his 1% interest in the oil
harvested from the Forbes leases and that with two exceptions, Bi-Petro, as the first
purchaser of the harvested oil, had paid the leases' interest-holders their shares of the
monies obtained from the sales of the oil. On appeal, the plaintiff argues that the trial
court erred in entering summary judgment in favor of the defendant with respect to this
issue because doubts remain as to whether Bi-Petro is the only purchaser of the oil
harvested from the Forbes leases and whether "other agreements" between the defendant
and Bi-Petro exist. He further complains that the trial court "should have permitted [him]
to conduct at least some discovery on this issue prior to granting summary judgment."
¶ 45 As he did below, in support of his contentions that doubts remain, the plaintiff
references Cassidy's testimony that she did not know if Bi-Petro purchased all of the
crude oil produced by the defendant and that she was not aware if Bi-Petro and the
defendant had entered into "any other written agreements" other than the original sales
18
contract pertaining to the Forbes leases. The plaintiff ignores, however, that Webster's
uncontradicted affidavit established that all of the oil produced from the Forbes leases
has been purchased by Bi-Petro and that "courts must accept an affidavit as true if it is
uncontradicted by counteraffidavits or other evidentiary materials." F.H. Paschen/S.N.
Nielsen, Inc. v. Burnham Station, L.L.C., 372 Ill. App. 3d 89, 92-93 (2007). The plaintiff
further ignores that his suggestion that Bi-Petro and the defendant might have entered
into agreements pertaining to the Forbes leases other than their original sales contract is
pure speculation, and "speculation, conjecture, or guess is insufficient to withstand
summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328
(1999). "A defendant moving for summary judgment bears the initial burden of proof"
(Lewis v. Chica Trucking, Inc., 409 Ill. App. 3d 240, 251 (2011)), and a defendant may
meet that burden "by establishing 'that there is an absence of evidence to support the
nonmoving party's case' " (Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)); see also Village of Palatine v.
Palatine Associates, LLC, 406 Ill. App. 3d 973, 978-79 (2010)). Moreover, the record
indicates that Bi-Petro's payments to the plaintiff have always stemmed from the original
sales agreement.
¶ 46 Under the terms of the settlement agreement, the defendant assigned the plaintiff a
1% interest in the oil harvested from the Forbes leases but did not assume the
responsibility of paying the plaintiff any monies due on his interest. Moreover, as the
trial court observed below, by statute, the "first purchaser" of oil is obligated to make
payments to those entitled to the proceeds from any sales, unless the first purchaser and
19
the owner of the right to produce the oil have entered into an arrangement by which the
owner assumes the responsibility of making the payments. 3 765 ILCS 520/10(a), (b)
(West 2012). On appeal, the plaintiff asserts that he "brought suit merely to ensure that
[he is] being paid [his] full one percent for all of the oil harvested under the [Forbes]
leases." As the defendant maintains, however, the plaintiff has "made no showing
whatsoever that the amounts paid to [him] by Bi-Petro are incorrect" or "incomplete" or
"do not account for all of the oil produced from the subject oil wells," other than the two
exceptions described in the trial court's order. We agree, and we cannot conclude that the
court erred in granting the defendant's motion for partial summary judgment.
¶ 47 On appeal, the plaintiff suggests that he was denied the opportunity to conduct
discovery with respect to these matters and that the trial court thus prematurely granted
the defendant's motion for summary judgment. This claim is not supported by the record,
however, and is also forfeited.
¶ 48 The record indicates that the plaintiff never requested that Bi-Petro provide him
with any information regarding the sales of the oil from the Forbes leases in addition to
that which the defendant apparently tendered. It further appears that the plaintiff made
3
We note that Cassidy and Webster both indicated that such an arrangement had
been made with respect to the one occasion in 2006 when the defendant had directly
distributed funds earned from the sale of oil from the Forbes leases. They also stated that
there had never been any other agreements under which the defendant had assumed that
responsibility.
20
no efforts to depose Webster or Bi-Petro's vice president. The plaintiff argues that the
defendant did not "fully comply" with his discovery requests, but as previously noted,
none of his discovery requests are included in the record on appeal. The record also
indicates that the only request that the defendant objected to was the plaintiff's second set
of interrogatories, which apparently pertained to natural gas. In any event, at the hearing
on the defendant's second motion for summary judgment, although the plaintiff
complained about a lack of discovery and intimated that he wanted to depose Webster, he
never requested a continuance, nor did he ever file an affidavit pursuant to Illinois
Supreme Court Rule 191(b) (eff. Jan. 4, 2013) attesting that he needed to conduct
additional discovery in order to respond to the defendant's request for summary
judgment. As a result, the plaintiff has "forfeited any argument that the granting of the
summary judgment motion in this case was premature." Kleiber v. Freeport Farm &
Fleet, Inc., 406 Ill. App. 3d 249, 261 (2010); see also Cordeck Sales, Inc. v. Construction
Systems, Inc., 382 Ill. App. 3d 334, 377 (2008) ("As a rule, a party cannot argue on
appeal that a summary judgment order must be reversed because it required additional
discovery if it failed to request additional discovery and attach a Rule 191(b) affidavit to
its summary judgment pleadings."); Giannoble v. P&M Heating & Air Conditioning,
Inc., 233 Ill. App. 3d 1051, 1064 (1992) ("Failure to comply with Rule 191(b) defeats an
objection on appeal that insufficient time for discovery was allowed.").
¶ 49 The Trial Court's Recusal
¶ 50 Although not specifically raised as an argument (see Vancura v. Katris, 238 Ill. 2d
352, 370 (2010)), in the present appeal and on appeal from the trial court's judgment in
21
his case against Ceja in No. 12-L-56, the plaintiff seemingly takes issue with the timing
of the trial court's recusal. The plaintiff maintains that the trial court's decision to recuse
itself after entering judgment in the present case and in No. 12-L-56, without explanation,
is "curious[ ]" and "strange[ ]." At oral argument, plaintiff's counsel suggested that the
trial court acted inappropriately. We note that the defendant's attorney was and is also
Ceja's attorney, and that the plaintiff is and has been represented by the same attorney in
the instant case and in No. 12-L-56.
¶ 51 Pursuant to Illinois Supreme Court Rule 63(C)(1), "[a] judge shall disqualify
himself or herself in a proceeding in which the judge's impartiality might reasonably be
questioned," including instances where "the judge has a personal bias or prejudice
concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary
facts concerning the proceeding." Ill. S. Ct. R. 63(C)(1)(a) (eff. July 1, 2013).
Additionally, "Rule 63(C)(1)'s direction to judges to voluntarily recuse themselves where
their 'impartiality might reasonably be questioned' [citation] includes 'situations involving
the appearance of impropriety.' " In re Marriage of O'Brien, 2011 IL 109039, ¶ 43. Rule
63 does not mandate that a trial court state its reason for recusal on the record or in its
recusal order, unless the court seeks a waiver of its disqualification. See Ill. S. Ct. R.
63(C), (D) (eff. July 1, 2013).
¶ 52 "Whether a judge should recuse himself is a decision in Illinois that rests
exclusively within the determination of the individual judge, pursuant to the canons of
judicial ethics found in the Judicial Code." (Emphasis in original.) In re Marriage of
O'Brien, 2011 IL 109039, ¶ 45. Nevertheless, "under existing law, a party may seek
22
relief on appeal on the alternative ground that a trial judge should have recused himself or
herself under Rule 63(C)(1)." Id. ¶ 147 (Karmeier, J., specially concurring). "When
reviewing a trial judge's recusal decision, we must determine whether the decision was an
abuse of the judge's discretion." Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d
163, 175 (2008).
¶ 53 Here, to the extent that the plaintiff suggests that the timing of the trial court's
recusal should be viewed as an indication of possible bias, "[a]llegations of judicial bias
must be viewed in context and should be evaluated in terms of the trial judge's specific
reaction to the events taking place." People v. Jackson, 205 Ill. 2d 247, 277 (2001).
Here, the circumstances suggest that the trial court's decision to recuse itself might have
stemmed from its ex parte communication with the defendant's attorney, even though it is
undisputed that the trial court properly dealt with the situation. See Kamelgard v.
American College of Surgeons, 385 Ill. App. 3d 675, 680 (2008) ("Under Rule 63, the
judge who participates in an ex parte communication must make 'provision promptly to
notify all other parties of the substance of the ex parte communication and allow[ ] an
opportunity to respond.' [Citation.]"). As noted above, in its order reinstating its
previously vacated order granting partial summary judgment, the court specifically stated
that its judgment was "[b]ased solely on the record and [the] case law submitted," which
would be a reasonable response to a suggestion that its judgment had been improperly
influenced by the letter from the defendant's attorney. It is equally plausible that the
court's recusal resulted from a personal bias against one or both of the parties that did not
exist when it initially entered its judgment order. In the absence of an explanation from
23
the trial court and without a transcript of the proceedings immediately preceding its
recusal, however, we can only speculate. Nevertheless, we cannot conclude that the
timing of the court's recusal alone suggests judicial bias or otherwise creates an
appearance of impropriety warranting a reversal of the court's judgment.
¶ 54 "It is well settled that an appellant bears the burden of preserving a sufficient
record for review and any doubts arising from an incomplete record will be resolved
against the appellant." People v. Ranstrom, 304 Ill. App. 3d 664, 672 (1999). "When the
record presented on appeal is incomplete, this court will indulge in every reasonable
presumption favorable to the judgment from which the appeal is taken, including that the
trial court ruled or acted properly." Id. "Trial judges are presumed to be fair and
impartial," and "[a] party alleging judicial bias must overcome this presumption." Lesher
v. Trent, 407 Ill. App. 3d 1170, 1176 (2011). Moreover, to properly assess whether an
appearance of impropriety warranted a judge's recusal, a reviewing court must know and
understand all of the relevant facts. People v. Buck, 361 Ill. App. 3d 923, 932 (2005).
¶ 55 Here, the trial court was in the best position to determine whether it needed to
recuse itself (Kamelgard, 385 Ill. App. 3d at 681), and "it is precisely in situations such
as this, where the cold record suggests an apparent contradiction, that we defer to the
circuit court's discretion" (People v. Shaw, 186 Ill. 2d 301, 317 (1998)). Moreover,
although all of the facts surrounding the trial court's recusal are unclear, nothing suggests
that the court's judgment was based on anything other than the evidence presented for its
consideration. See Kamelgard, 385 Ill. App. 3d at 683; Bauer v. Memorial Hospital, 377
Ill. App. 3d 895, 912 (2007).
24
¶ 56 Under the circumstances, we conclude that the plaintiff has failed to overcome the
presumption that the trial court was fair and impartial. We further conclude that the
timing of the trial court's recusal does not in and of itself create an appearance of
impropriety warranting a reversal of its judgments. We also note that the record does not
indicate that the plaintiff ever sought clarification of the trial court's unexplained recusal,
so the court has not been afforded an opportunity to formally address the matter. Lastly,
although nothing suggests that the trial court's judgments were improperly influenced,
because all of the issues raised in the plaintiff's present appeals are reviewed de novo,
"we perform the same analysis a trial court would perform and give no deference to the
judge's conclusions or specific rationale." Bituminous Casualty Corp. v. Iles, 2013 IL
App (5th) 120485, ¶ 19. "The term 'de novo' means that the court reviews the matter
anew–the same as if the case had not been heard before and as if no decision had been
rendered previously." Ryan v. Yarbrough, 355 Ill. App. 3d 342, 346 (2005).
¶ 57 CONCLUSION
¶ 58 For the foregoing reasons, the trial court's judgment granting partial summary
judgment in favor of the defendant is hereby affirmed.
¶ 59 Affirmed.
25
2015 IL App (5th) 140105
NO. 5-14-0105
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
DUANE HASSEBROCK and ) Appeal from the
EVELYN HASSEBROCK, ) Circuit Court of
) Marion County.
Plaintiffs-Appellants, )
)
v. ) No. 11-L-47
)
DEEP ROCK ENERGY CORPORATION, ) Honorable
) Michael D. McHaney,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
Rule 23 Order Filed: February 25, 2015
Motion to Publish Granted: March 31, 2015
Opinion Filed: March 31, 2015
______________________________________________________________________________
Justices: Honorable S. Gene Schwarm, J.
Honorable Judy L. Cates, P.J., and
Honorable Melissa A. Chapman, J.,
Concur
______________________________________________________________________________
Attorneys Joseph A. Bartholomew, Stephanie A. Brauer, Cook, Ysursa,
for Bartholomew, Brauer & Shevlin, Ltd., 12 West Lincoln Street,
Appellants Belleville, 62220
______________________________________________________________________________
Attorney George C. Lackey, Lackey & Stevenson, P.C., 331 East Broadway,
for P.O. Box 808, Centralia, IL 62801
Appellee
______________________________________________________________________________