Miller v. Lawrence

2016 IL App (1st) 142051
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
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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,

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

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 (42 U.S.C. § 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

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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

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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, 2011 IL App (1st) 092636, ¶ 57 (citing In re

Estate of Michalak, 404 Ill. App. 3d 75, 99 (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, 2011 IL App (1st) 092636, ¶ 57. 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, 2012 IL App (2d) 111151, ¶ 15

(citing In re Detention of Powell, 217 Ill. 2d 123, 132 (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, 408 Ill. App. 3d 12, 13 (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.”).
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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., 2011 IL App (1st) 103552, ¶ 83 (citing DeLuna v. Burciaga, 223 Ill.

2d 49, 59 (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, 231 Ill. 2d 474, 488

(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, 207 Ill. 2d 263, 277-78 (2003). For a section 2-619 dismissal, our

standard of review is de novo. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.

2d 558, 579 (2006); Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). De novo

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

BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (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, 209

Ill. 2d 248, 261 (2004) (when reviewing a section 2-619 dismissal, we can affirm “on any

basis present in the record”); In re Marriage of Gary, 384 Ill. App. 3d 979, 987 (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., 213 Ill. 2d 307, 315 (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., 154 Ill. 2d 90, 102 (1992). Again, de novo

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

408 Ill. App. 3d at 578.

¶ 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., 154 Ill. 2d at 102.

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

judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.

App. 3d 618, 624 (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, 374 Ill.

App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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, 328 Ill. App. 3d 696, 708 (2002)

No. 1-14-2051

(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (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., 230 Ill. App. 3d 40, 50 (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: