Berry v. Chade Fashions, Inc.

• Court: Appellate Court of Illinois
• Decided: June 30, 2008
• Docket: 1-07-0639 Rel
• Status: Published

Opinion

THIRD DIVISION JUNE 30, 2008

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AUREEN BERRY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant and Cross-Appellee, ) Cook County. ) v. ) No. 01 L 5934 ) CHADE FASHIONS, INC., ) Honorable ) Allen S. Goldberg, Defendant-Appellee and Cross-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the opinion of the court:

The plaintiff, Aureen Berry, filed a complaint in the circuit court of Cook County against the

defendant, Chade Fashions, Inc. (Chade Fashions), for breach of contract and violation of the Illinois

Right of Publicity Act (765 ILCS 1075/30 (West 2000)) (the Act). The trial court entered a partial

summary judgment for the plaintiff as to liability under the Act. The issues of damages and breach

of contract under the Act went to trial. When the plaintiff concluded her case, Chade Fashions filed

a motion for a directed verdict and a motion to vacate the partial summary judgment. The trial court

granted both motions. The plaintiff subsequently filed a motion to reconsider that ruling arguing that

Chade Fashions’ motion to vacate the partial summary judgment was untimely. The trial court

agreed with the plaintiff and issued a final judgment finding that Chade Fashions’ motion to vacate

the partial summary judgment as untimely. The court reinstated the previous partial summary

judgment for the plaintiff under the Act, as to liability only. The trial court awarded the plaintiff

$1,000, the statutory minimum in damages under the Act.

On appeal, the plaintiff argues that the trial court erred by awarding the statutory minimum

in damages. On cross-appeal, the defendant, Chade Fashions, argues that the trial court erroneously 1-07-0639

determined that Chade Fashions’ motion to vacate the partial summary judgment was untimely,

thereby erroneously reinstating the partial summary judgment in favor of the plaintiff as to liability.

We reverse the judgment of the circuit court on the issue of the partial summary judgment.

BACKGROUND

Although the plaintiff’s brief is astoundingly devoid of a factual recitation of the case,

including the proceedings in the trial court, we have adduced the following facts from the record, the

defendant’s brief, and oral argument. The defendant hired the plaintiff, Aureen Berry, a professional

model, to be photographed modeling its products. According to the agreement, the intent was to use

her image to sell the defendant’s products. Sung Jae Kim, vice president of Chade Fashions, hired

the plaintiff by contacting her agent and booking the plaintiff for a photo shoot. In his deposition,

Kim stated that he informed the plaintiff’s agent that her image would be used on Chade Fashions’

products. The plaintiff testified in her deposition that her agent never specifically told her how her

image would be used by Chade Fashions. When the photo shoot was completed, the plaintiff signed

a waiver and release that granted Chade Fashions the right to use her image. The release did not

specify how Chade Fashions would or could use the plaintiff’s image. It had boxes denoting

agreement for use of the photographs in the following ways: fashion shows; billboards; point of

purchase; informal; national ads; and product packaging. None of the boxes were checked by the

plaintiff. The plaintiff was paid $750 for the photo shoot. Chade Fashions used the plaintiff’s image

on packages marketed under its Vienna brand of hair products. Chade Fashions has a number of

product lines; however, the plaintiff was only featured on the Vienna line of products.

In early 2001, the plaintiff discovered that her image was printed on various Chade Fashions

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products which had been distributed to stores for sale. The plaintiff filed a lawsuit in the circuit

court of Cook County for breach of contract and damages, claiming that Chade Fashions had violated

the Act (765 ILCS 1075/30 (West 2000)). The plaintiff alleged that Chade Fashions breached the

terms of its contract with her by using her image on its products without her consent. The plaintiff

also alleged that Chade Fashions violated the Act by reproducing her image on its products without

obtaining her prior written consent.

After the discovery process was completed, the plaintiff filed a motion for summary

judgment on the breach of contract claim as well as the claim for violation of the Act. The trial court

granted the plaintiff’s motion for partial summary judgment for liability under the Act. The trial

court explained that summary judgment was proper because Kong Koo Kim, the president of Chade

Fashions, and Sung Jae Kim, vice president of Chade Fashions, admitted during their depositions

that a clause in the plaintiff’s contract provided that her image was authorized for catalog use only.

The court denied the plaintiff’s motion for summary judgment for breach of contract and damages

under the Act. The court explained that a genuine issue of material fact remained as to whether an

alleged oral contract negotiated by Sung Kim and the plaintiff’s agent should be incorporated into

the original written contract. The court also ruled that summary judgment was not appropriate as

to damages under the Act because the plaintiff’s submission of Chade Fashions’ profits and sales

data was insufficient to prove how Chade Fashions’ profits were derived from the use of her image.

The trial proceeded on the issues of damages and breach of contract.

During the trial, the court allowed the defendant to present parole evidence of the agreement.

Sung Kim testified that he had informed the plaintiff’s agent that her photographs would be used on

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packaged products. He asserted that notwithstanding the lack of a checked box on the release form,

her agent had agreed to the use of her image in the broader spectrum of product sales. At the

conclusion of the plaintiff’s case, Chade Fashions filed a motion for directed verdict on both the

issues of damages under the Act and breach of contract. It also filed a motion to vacate the partial

summary judgment for liability under the Act entered earlier in the case in favor of the plaintiff. The

trial court granted Chade Fashions’ motion for directed verdict on both counts and vacated the partial

summary judgment as to liability.

The court found that the contract between the parties was for photographs to be taken of the

plaintiff and for use in product packaging. The court also found that Chade Fashions did not breach

the contract between the parties. The court explained that Chade Fashions paid the plaintiff for the

use of the photographs and that the plaintiff failed to provide sufficient evidence to prove that

additional compensation was due beyond the amount paid. Additionally, the court found that the

plaintiff failed to establish how Chade Fashions’ profits were derived from the use of her image. The

court explained that the plaintiff’s introduction into evidence of Chade Fashions’ tax returns during

the trial was insufficient to prove damages. Lastly, the court found that its findings regarding the

breach of contract claim was inconsistent with the partial summary judgment which it had entered

earlier.

Thus, the court vacated the partial summary judgment for liability under the Act. The

plaintiff subsequently filed a motion to reconsider. In that motion, the plaintiff argued that the

defendant could not seek to vacate the court’s ruling as to partial summary judgment because more

than 30 days had elapsed since the order was entered. The court took the matter under advisement

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and agreed with the plaintiff’s argument that pursuant to the holding in Beck v. Stepp, 144 Ill. 2d

232, 239, 579 N.E.2d 824, 828 (1991), it had no jurisdiction to vacate the partial summary judgment.

The trial court believed it had no jurisdiction under the ruling in Beck, because the defendant’s

motion to vacate was filed more than 30 days after the partial summary judgment was entered. The

court awarded the plaintiff $1,000 in statutory damages, the minimum allowed pursuant to the Act,

but denied the plaintiff’s motion to reconsider in all other respects. Both parties appealed.

ANALYSIS

On appeal, the plaintiff argues that the trial court erred in awarding her the statutory

minimum of $1,000 in damages. The plaintiff argues that the minimum award shows that the trial

court failed to consider Chade Fashions’ admitted numerous violations of the Act. The plaintiff

contends that the purpose of the Act is to compensate victims and deter violation of the Act. Thus,

the $1,000 minimum is not an effective deterrent against future infringements. Relying on an

unpublished California case,1 the plaintiff argues that she is entitled to $1,000 for every infringement

committed by the defendant. The plaintiff introduced evidence of 15.233 million infringements and

argues that her damages should be calculated based on that number. The plaintiff also argues that

she is entitled to punitive damages because Chade Fashions did not recall the packages when it was

notified of the unauthorized use of her image.

On cross-appeal, Chade Fashions argues that the trial court erred by finding that its motion

1 Pursuant to Illinois Supreme Court Rule 23 (166 Ill. 2d R. 23(e)), “an unpublished order of the court is not precedential and may not be cited by any party.” California’s civil practice rules have a similar provision.

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to vacate the partial summary judgment granted to the plaintiff was untimely. Chade Fashions

contends that an order for partial summary judgment is interlocutory and therefore the trial court may

modify or vacate it before a final judgment is entered. It argues that but for the erroneous

assumption by the trial court that it had no jurisdiction, the court clearly would have vacated its grant

of partial summary judgment to the plaintiff. As to damages, Chade Fashions argues that assuming

that the plaintiff is entitled to any damages, the minimum statutory damages awarded was

appropriate because the plaintiff did not present any evidence establishing her damages.

Specifically, the plaintiff did not present any evidence regarding a correlation between the use of her

image and Chade Fashions’ profits or the numerous infringements which she claimed Chade

Fashions committed.

We will first address Chade Fashions’ cross-appeal since its disposition is crucial to the

resolution of the entire appeal. At issue is whether a trial court may vacate or modify an order for

partial summary judgment more than 30 days after entry. Section 2-1005 of the Code of Civil

Procedure is instructive. It states in pertinent part: “A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone although there is a genuine issue as to the

amount of damages.” 735 ILCS 5/2-1005 (West 2002). Established case law further illuminates the

analysis regarding this issue. “An interlocutory order may be modified or vacated at any time before

final judgment.” Leopold v. Levin, 45 Ill. 2d 434, 446, 259 N.E.2d 250, 257 (1970); Winters v.

Kline, 344 Ill. App. 3d 919, 928, 801 N.E.2d 984, 991 (2003). Although the trial court should

carefully consider vacating a prior order, it may do so in order to correct an error. Leopold v. Levin,

45 Ill. 2d at 446, 259 N.E.2d at 257.

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In the case before us, the trial court relied on Beck v. Stepp, 144 Ill. 2d 232, 238, 579 N.E.2d

824, 827 (1991), in determining that it could not vacate its earlier order for partial summary

judgment because Chade Fashions filed its motion to vacate the order more than 30 days after the

order was entered. We disagree. The facts of Beck are distinguishable from the facts of this case.

In Beck, the court granted the defendant’s motion for summary judgment and stated in the order that

there was “ ‘NO JUST CAUSE TO PREVENT APPEAL (APPEA[LA]BLE ORDER).’ ” Beck,

144 Ill. 2d at 237, 579 N.E.2d at 825. More than four months later, the trial court amended the order

nunc pro tunc to deny the motion for summary judgment. Beck, 144 Ill. 2d at 236, 579 N.E.2d at

825. The Illinois Supreme Court explained that “[i]n general, a trial court loses jurisdiction to vacate

or modify its judgment 30 days after entry of judgment *** unless a timely post-judgment motion

is filed.” Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827. In the instant case, the trial court relied on this

language from Beck to deny Chade Fashions’ motion to vacate its earlier order. However, what the

court misapprehended is that the rule applies only to final and appealable orders. In Beck, the order

was intended to be final and appealable.

In the case before us, the partial summary judgment order was neither final nor appealable.

No language in the order indicates that the trial court intended for the partial summary judgment to

be final and appealable. See generally 210 Ill. 2d R. 304. Our supreme court in Towns v. Yellow

Cab Co., 73 Ill. 2d 113, 120, 382 N.E.2d 1217, 1220 (1978), explains that a judgment that fails to

dispose of all claims is not final and is subject to revision before entry of a final judgment “that does

in fact adjudicate all the claims and liabilities of the parties.”

In the case at bar, the partial summary judgment which the trial court granted was done prior

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to the start of trial. All other matters remained pending to be resolved by trial. At the close of the

plaintiff’s case, the trial court had an opportunity to review the evidence and assess its earlier ruling

granting partial summary judgment. At that point, the trial court had the right to correct any earlier

erroneous rulings which it had made. The granting of partial summary judgment was clearly

erroneous, since the evidence showed no breach of contract and no violation of the Act. As the trial

court noted, allowing the partial summary judgment to remain in place even after the plaintiff failed

to provide evidence to support her underlying claims yielded an inconsistent and irreconcilable

result. If the defendant did not breach the contract or violate the Act, then clearly it could not be

liable for damages. Yet, allowing the partial summary judgment to remain in place resulted in the

trial court awarding statutory damages of $1,000, although no damages were due.

This is clearly a result that flies in the face of established legal principles. Thus, the trial

court had the discretion to vacate its previous order for partial summary judgment and correct any

error in light of the evidence presented during the trial. We reverse the trial court’s February 9, 2007

order which denied, as untimely, Chade Fashions’ motion to vacate the court’s earlier grant of partial

summary judgment in favor of the plaintiff on the issue of liability only. Further, there is nothing

in the record or the briefs presented by the parties that would require or support a reversal of the

directed verdicts entered in favor of Chade Fashions on the issues of breach of contract and violation

of the Act. Accordingly, we reverse the judgment of the trial court on the issue of partial summary

judgment, vacate the court’s award of $1,000 in statutory damages and affirm the trial court’s ruling

on the directed verdicts in favor of Chade Fashions.

Affirmed in part and vacated in part; cause reversed in part.

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GREIMAN and THEIS, JJ., concur.