Hassebrock v. CEJA Corporation

2015 IL App (5th) 140037

• Court: Appellate Court of Illinois
• Decided: April 1, 2015
• Docket: 5-14-0037
• Status: Unpublished

Opinion

Rule 23 order filed 2015 IL App (5th) 140037 February 25, 2015; Motion to publish granted NO. 5-14-0037 March 31, 2015. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

DUANE HASSEBROCK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Marion County. ) v. ) No. 12-L-56 ) CEJA 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, Deep Rock Energy Corporation (Deep Rock) and the plaintiff,

Duane Hassebrock, as the owners of several Marion County oil and gas leases covering

various tracts of land south of Stephen A. Forbes State Park (the Omega leases), entered

into a letter agreement (the letter agreement) with the defendant, Ceja Corporation, an oil

and gas exploration and development company headquartered in Tulsa, Oklahoma.

Under the terms of the letter agreement, the defendant agreed to perform a seismic survey

of the land covered by the Omega leases in exchange for a 25% working interest in the 1 leases. The agreement further provided that should the results of the seismic survey

warrant drilling and development on the Omega leases, the defendant would operate the

wells, and the parties would enter into a separate agreement regarding the defendant's

operations. The agreement gave the defendant 120 days after the completion of the

seismic survey to submit a proposed operating agreement. The letter agreement stated

that its terms would "remain in full force and effect for a term coextensive with any

operating agreement."

¶3 It is undisputed that the parties never entered into an operating agreement with

respect to the Omega leases. It is further undisputed that Deep Rock 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 Deep Rock and the defendant 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 Deep Rock and the

defendant as parties to the notice. Further alleging that the plaintiff, the defendant, and

Deep Rock had entered into a joint venture agreement with respect to the Omega leases

and the Forbes leases (the venture agreement), the notice suggested that Deep Rock and

the defendant 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, Deep Rock subsequently sued the 2 plaintiff to remove the notice as a cloud on its title to the Forbes leases. The plaintiff, in

turn, filed a counterclaim against Deep Rock seeking to enforce the alleged terms of the

venture agreement. In his pleadings, the plaintiff asserted, among other things, that the

parties had "orally agreed" to acquire and develop the Forbes leases.

¶6 In December 2004, the plaintiff and Deep Rock 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 Deep

Rock released each other from all claims arising from the venture agreement, and Deep

Rock gave the plaintiff $2.5 million. Deep Rock also assigned to the plaintiff a 1%

carried working interest in the oil "produced and saved" from the Forbes leases, and the

plaintiff assigned to Deep Rock all of his right, title, and interest in and to the leases.

Pursuant to the terms of his assignment to Deep Rock, the plaintiff warranted that the

assigned title to his interests in the Forbes leases was free and clear of all adverse claims,

and he forever released and disclaimed all claims described in the notice. He further

released and disclaimed "all claims, rights, titles[,] and interest in oil and gas leases in,

off setting[,] or adjoining Steven [sic] Forbes State Park."

¶7 In February 2011, in the circuit court of St. Clair County, the plaintiff filed a

complaint against Deep Rock alleging that it had breached the terms of the settlement

agreement. The plaintiff subsequently filed a first amended complaint alleging additional

counts against the defendant for breaching the terms of the venture agreement.

¶8 In March 2011, the defendant and Deep Rock filed motions to transfer venue from

St. Clair County to Marion County. In July 2011, the circuit court of St. Clair County 3 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,

the defendant filed a motion to dismiss the counts against it and to dismiss it as a party in

No. 11-L-47. In November 2011, finding that the plaintiff's attempted joinder of the

defendant was improper under the circumstances, the trial court granted the defendant's

motion to dismiss.

¶ 10 The plaintiff subsequently filed a second amended complaint that again combined

his claims against Deep Rock and the defendant. The defendant and Deep Rock

responded with motions to dismiss the plaintiff's second amended complaint, noting that

the complaint had failed to cure the defects that had resulted in the first complaint's

dismissal. In February 2012, stating that the plaintiff's cause of action against Deep Rock

was "separate and distinct" from his cause of action against the defendant, the trial court

entered an order striking all references to the defendant and the venture agreement from

the plaintiff's second amended complaint.

¶ 11 The plaintiff subsequently filed a third amended complaint that again combined

his claims against Deep Rock and the defendant. In response, the defendant and Deep

Rock filed motions to dismiss the third amended complaint for failure to comply with the

trial court's previous order. In June 2012, noting that the plaintiff's third amended

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 Deep 4 Rock 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 the defendant was assigned case number 12-L-56.

¶ 12 In No. 12-L-56, the plaintiff subsequently filed a "fourth amended complaint"

against the defendant. The complaint alleged, among other things, that the defendant and

Deep Rock had violated the terms of the venture agreement by "failing to share the

benefits" of the developed Forbes leases. The complaint sought compensatory damages

from the defendant as a result of the alleged violation.

¶ 13 In October 2012, the defendant filed a motion to dismiss the plaintiff's fourth

amended complaint as improperly pled (see 735 ILCS 5/2-615 (West 2012)). The trial

court granted the defendant's motion in part, striking numerous portions of the complaint.

A fifth amended complaint followed, which the defendant also moved to dismiss as

improperly pled. In August 2013, the trial court granted the defendant's motion to

dismiss the plaintiff's fifth amended complaint "in its entirety."

¶ 14 In September 2013, the plaintiff filed a sixth amended complaint against the

defendant. Consistent with his previous pleadings, the plaintiff's complaint sounded in

breach of contract and breach of fiduciary duty. The complaint alleged that in 1999, the

plaintiff, the defendant, and Deep Rock had orally agreed to acquire and develop the

Forbes leases pursuant to the joint venture agreement, but he had ultimately been denied

the opportunity to benefit from the leases. The plaintiff thus sought damages from the

defendant for its failure to share with him the benefits of the Forbes leases.

¶ 15 In October 2013, the defendant filed two motions to dismiss the plaintiff's sixth 5 amended complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS

5/2-619 (West 2012)). In its first motion to dismiss, the defendant argued that the

plaintiff's claims were barred by the five-year statute of limitations applicable to

unwritten contracts. See 735 ILCS 5/2-619(a)(5) (West 2012) (allowing for dismissal

where "the action was not commenced within the time limited by law"). In its second

motion, the defendant argued that the plaintiff's claims were barred by the terms of the

release and the assignment that Deep Rock obtained pursuant to the settlement

agreement. See 735 ILCS 5/2-619(a)(6) (West 2012) (allowing for dismissal where "the

claim set forth in the plaintiff's pleading has been released, satisfied of record, or

discharged in bankruptcy").

¶ 16 In his responsive pleadings in opposition to the defendant's motions to dismiss, the

plaintiff argued that because the defendant was not a named party to the release, it could

not claim protection by its terms. The plaintiff also argued that the 10-year statute of

limitations applicable to written agreements was applicable to his cause of action. He

further suggested that the "continuing" nature of his "injury" rendered any statute-of-

limitations argument "meritless." Notably, the plaintiff did not address or acknowledge

the defendant's argument that his claims were barred by the assignment.

¶ 17 In December 2013, the cause proceeded to a hearing on the defendant's motions to

dismiss pursuant to section 2-619. Although the defendant argued all three grounds set

forth in its motions as reasons to dismiss the plaintiff's cause of action, the plaintiff only

directly addressed the arguments regarding the statute of limitations and the release.

¶ 18 The trial court subsequently entered an order granting the defendant's section 2- 6 619 motions and dismissing the plaintiff's cause of action in the present case with

prejudice. The court's order did not specify on which grounds the motions had been

granted, but it did state that both "motions to dismiss [were] granted." In January 2014,

the plaintiff filed a timely notice of appeal in the present case. In February 2014, the trial

court entered an order granting partial summary judgment in favor of Deep Rock in No.

11-L-47. In the same order, the trial court stated, without elaboration, that it was

recusing itself from all future proceedings in either case.

¶ 19 DISCUSSION

¶ 20 On appeal, the plaintiff argues that the trial court erred in granting the defendant's

motions to dismiss because his claims against the defendant are not time-barred and

because the defendant was not a named party to the release. He further argues that the

defendant is judicially estopped from claiming that it is entitled to the benefits of the

release. 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.

¶ 21 Plaintiff's Statement of Facts

¶ 22 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 7 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).

¶ 23 Section 2-619 and Standards of Review

¶ 24 A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of a

plaintiff's complaint but asserts an affirmative defense or other matter that avoids or

defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). "Dismissal

pursuant to section 2-619 is warranted only where it clearly is apparent that no set of facts

can be proved that would entitle a plaintiff to recover." Thornton v. Shah, 333 Ill. App.

3d 1011, 1018 (2002).

¶ 25 "Section 2-619 motions present a question of law, and we review rulings thereon

de novo." Burciaga, 223 Ill. 2d at 59. The construction of a contract, settlement

agreement, or assignment; the applicability of contract principles; and the applicability of

a statute of limitations to a cause of action are matters of law that are also reviewed de

novo. See Carr v. Gateway, Inc., 241 Ill. 2d 15, 20 (2011); 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); Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d

461, 466 (2008); Whirlpool Corp. v. Certain Underwriters at Lloyd's London, 278 Ill.

App. 3d 175, 179 (1996).

¶ 26 "When a trial court grants a motion to dismiss without specifying on which

ground, all grounds raised by the movant are placed before the reviewing court." Costa 8 v. Stephens-Adamson, Inc., 142 Ill. App. 3d 798, 801 (1986). Additionally, when

reviewing a section 2-619 dismissal, we can affirm the trial court's judgment "on any

basis present in the record." Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d

248, 261 (2004).

¶ 27 Statute of Limitations

¶ 28 "The primary purpose of limitation periods is to require the prosecution of a right

of action within a reasonable time to prevent the loss or impairment of available evidence

and to discourage delay in the bringing of claims." Tom Olesker's Exciting World of

Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 132 (1975). "Under section 2-

619(a)(5) of the Code, a defendant is entitled to a dismissal if the 'action was not

commenced within the time limited by law.' " Lamar Whiteco Outdoor Corp. v. City of

West Chicago, 355 Ill. App. 3d 352, 359 (2005) (quoting 735 ILCS 5/2-619(a)(5) (West

2002)). The statute of limitations for unwritten contracts and breach-of-fiduciary-duty

claims is 5 years (735 ILCS 5/13-205 (West 2012); Fuller Family Holdings, LLC v.

Northern Trust Co., 371 Ill. App. 3d 605, 618 (2007)), while the statute of limitations for

written contracts is 10 years (735 ILCS 5/13-206 (West 2012)). A cause of action

accrues for statute-of-limitations purposes "when the plaintiff 'knew or reasonably should

have known that it was injured and that the injury was wrongfully caused.' " Lubin v.

Jewish Children's Bureau of Chicago, 328 Ill. App. 3d 169, 171-72 (2002) (quoting

Superior Bank FSB v. Golding, 152 Ill. 2d 480, 488 (1992)).

¶ 29 The plaintiff's cause of action in the present case stems from his assertions that the

defendant breached the venture agreement. It is undisputed, however, that the alleged 9 terms of the venture agreement were never reduced to writing and that whatever plans

had been made with respect to the Forbes leases were oral agreements and

understandings. It is further undisputed that when the plaintiff filed the notice in May

2002, he was fully aware that the defendant and Deep Rock had developed the Forbes

leases without him. The plaintiff commenced his case against the defendant in February

2011, which the trial court rightfully found was well beyond the five-year statute of

limitations applicable to unwritten contracts and breach-of-fiduciary-duty claims.

Accordingly, we affirm the court's judgment granting the defendant's 2-619 motion on the

ground that the plaintiff's cause of action is time-barred.

¶ 30 As he argued below, the plaintiff maintains that the 10-year statute of limitations

applicable to written contracts should govern his claims because they emanate from the

letter agreement. He further maintains that, alternatively, given the "continuing" nature

of his complained-of injury, "the statute of limitations has yet to run." We disagree.

¶ 31 "Illinois courts strictly interpret the meaning of a written contract," and "[a]

contract is considered written for purposes of the statute of limitations if all essential

terms are reduced to writing and can be ascertained from the instrument itself." Toth v.

Mansell, 207 Ill. App. 3d 665, 669 (1990). "If parol evidence is necessary to make the

contract complete, then the contract must be treated as oral for purposes of the statute of

limitations." Id. "In other words, where a party is claiming a breach of a written

contract, but the existence of that contract or one of its essential terms must be proven by

parol evidence, the contract is deemed oral and the five-year statute of limitations

applies." Armstrong v. Guigler, 174 Ill. 2d 281, 287 (1996). "Moreover, the fact that the 10 origin of a cause of action may ultimately be traced to a writing has never been sufficient,

standing alone, to automatically warrant application of the period of limitations

governing written contracts." Id. at 290.

¶ 32 Here, the letter agreement dealt solely with the possible development of the

Omega leases, not the Forbes leases, and the agreement expired by its terms when the

parties failed to enter into an operating agreement with respect to the Omega leases.

Moreover, none of the terms of the venture agreement were reduced to writing, and none

are ascertainable from the letter agreement. Because parol evidence is thus necessary to

prove the existence and terms of the venture agreement, the trial court rightfully rejected

the plaintiff's argument that the 10-year statute of limitations applicable to written

contracts should govern his instant claims.

¶ 33 The trial court also rightfully rejected the plaintiff's suggestion that his "continuing

injury" renders any statute-of-limitations argument irrelevant. In the proceedings below,

the plaintiff cited Kovacs v. United States, 614 F.3d 666 (7th Cir. 2010), in support of this

position. In Kovacs, the court discussed the "continuing violation doctrine" as a "defense

to the statute of limitations," noting that "[t]he doctrine applies when 'a tort involves a

continued repeated injury' and 'the limitation period does not begin until the date of the

last injury or when the tortious act ceased.' " Id. at 676 (quoting Rodrigue v. Olin

Employees Credit Union, 406 F.3d 434, 442 (7th Cir. 2005)); see also Belleville Toyota,

Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 345 (2002) (and cases cited

therein) ("Under the 'continuing violation rule,' embraced by our appellate court, where a

tort involves a continuing or repeated injury, the limitations period does not begin to run 11 until the date of the last injury or the date the tortious acts cease."). Breach of contract is

not a tort (Bass v. SMG, Inc., 328 Ill. App. 3d 492, 504 (2002); Burnet v. Chapin, 274 Ill.

App. 186, 190 (1934)), and "[t]he law in Illinois is that breach of a fiduciary duty is not a

tort," either (Robinson v. LaCasa Grande Condominium Ass'n, 204 Ill. App. 3d 853, 859

(1990)). "The Illinois Supreme Court has regarded the breach of a fiduciary duty as

controlled by the substantive laws of agency, contract[,] and equity." Robinson, 204 Ill.

App. 3d at 859. The trial court thus properly determined that the continuing violation

rule was inapplicable to the plaintiff's cause of action.

¶ 34 On appeal, in addition to arguing the applicability of the continuing violation rule,

the plaintiff also argues that the venture agreement imposed a "continuous duty" on the

defendant's part to share in the profits from the Forbes leases and that each failure to do

so is a separate breach with its own accrual date. He thus argues that his present action is

not time-barred because the defendant continues to profit from the Forbes leases.

Although the plaintiff technically waived this argument by not raising it below (Illinois

Tool Works, Inc. v. Independent Machine Corp., 345 Ill. App. 3d 645, 652 (2003) (noting

that "it has long been held that arguments not raised in the trial court are considered

waived on appeal"), we will nevertheless address its merits.

¶ 35 "An action for breach of contract accrues when the breach of the contractual duty

or obligation occurs" (Newell v. Newell, 406 Ill. App. 3d 1046, 1051 (2011)), and

"[g]enerally, the statute of limitations begins to elapse when 'facts exist which authorize

the bringing of an action' " (Skinner v. Shirley of Hollywood, 723 F. Supp. 50, 54 (N.D.

Ill. 1989) (quoting Kozasa v. Guardian Electric Manufacturing Co., 99 Ill. App. 3d 669, 12 673 (1981))). "Applying the statute of limitations is more difficult, however, with respect

to contracts involving a continuing or repeating condition." Id. "For example, when a

money obligation is payable in installments, the statute of limitations begins to run

against each installment on the date it becomes due." Id.; see also Hi-Lite Products Co.

v. American Home Products Corp., 11 F.3d 1402, 1408-09 (7th Cir. 1993) (and cases

cited therein) ("Contracts requiring continuous performance are capable of being partially

breached on numerous occasions," and "[e]ach partial breach is actionable and is subject

to its own accrual date and own limitation period."). " 'A continuous contract, [however,]

is capable not only of a series of partial breaches but also a single total breach by

repudiation or a material failure of performance.' " Hi-Lite Products Co., 11 F.3d at 1409

(quoting Segall v. Hurwitz, 339 N.W.2d 333, 343 (Wis. Ct. App. 1983)); see also 15

Williston on Contracts § 45:19 (4th ed. 2000) ("[I]t is a general principle of contract law

that a continuing contract is capable not only of a series of partial breaches but also of a

single total breach by repudiation or a material failure of performance."). "If a single

breach occurs, either by repudiation or material failure of performance, the claim accrues

at that time and the statute of limitations begins to run for all claims on that contract."

Hi-Lite Products Co., 11 F.3d at 1409; see also Minidoka Irrigation District v.

Department of Interior, 406 F.3d 567, 572-74 (9th Cir. 2005); In re Chemtura Corp., 448

B.R. 635, 660-65 (Bankr. S.D.N.Y. 2011).

¶ 36 Here, the defendant and Deep Rock materially breached and repudiated the

venture agreement in its entirety when they developed the Forbes leases without the

plaintiff. See InsureOne Independent Insurance Agency, LLC v. Hallberg, 2012 IL App 13 (1st) 092385, ¶ 43 ("[W]hether a breach is 'material' is whether it is 'so substantial and

fundamental as to defeat the objects of the parties in making the agreement[.]' " (quoting

Village of Fox Lake v. Aetna Casualty & Surety Co., 178 Ill. App. 3d 887, 900 (1989)));

Record v. Kempe, 2007 VT 39, ¶ 15 ("A party repudiates a contract when that party

explicitly or implicitly represents that he cannot or will not perform his obligations under

the contract."). Thus, even if we were to construe the venture agreement as constituting a

continuous-performance contract as the plaintiff suggests, the statute of limitations began

to run when the total breach occurred. As previously noted, the plaintiff was fully aware

of the defendant's total breach when he filed the notice in May 2002, and under the

circumstances, he cannot now avail himself of "the general rule that, for statute of

limitations purposes, a party may sit back and wait for each required payment as such

payments come due in the future." In re Chemtura Corp., 448 B.R. at 661.

¶ 37 We lastly address the plaintiff's contention that the defendant "arguably" waived

its statute-of-limitations defense by failing to raise it "until two years into the litigation."

As previously indicated, in February 2011, in the circuit court of St. Clair County, the

plaintiff filed his initial complaint against Deep Rock and his first amended complaint, in

which he added his claims against the defendant. In March 2011, the defendant and Deep

Rock moved to transfer the case to Marion County, which was accomplished in July

2011. From September 2011 through September 2012, the defendant's efforts were

directed at severing the plaintiff's claims against it from his claims against Deep Rock,

which ultimately required attacking the plaintiff's first, second, and third amended

complaints. From October 2012 through July 2013, the defendant attacked the plaintiff's 14 fourth and fifth amended complaints as improperly pled. In August 2013, the trial court

granted the defendant's motion to dismiss the plaintiff's fifth amended complaint. In

September 2013, the plaintiff filed his sixth amended complaint. In October 2013, the

defendant filed its first motion to dismiss the plaintiff's sixth amended complaint, arguing

that the plaintiff's claims were time-barred.

¶ 38 The right to invoke a statute-of-limitations defense can be expressly waived or

waived by conduct inconsistent with an intent to enforce that right. Dever v. Simmons,

292 Ill. App. 3d 70, 74 (1997); Bailey v. Petroff, 170 Ill. App. 3d 791, 798-99 (1988).

Here, however, nothing suggests that the defendant ever intended to waive the defense,

and no such intent can be inferred from the defendant's challenges to the plaintiff's earlier

complaints. Id. We also note that most of the delay that the plaintiff complains of on

appeal was occasioned by his commencement of his action in St. Clair County and his

subsequent failures to comply with the trial court's orders regarding the substance of his

pleadings. Additionally, in his pleadings in the present case, the plaintiff did not

acknowledge that the venture agreement was an unwritten contract until he filed his sixth

amended complaint. Under the circumstances, the defendant timely raised his statute-of-

limitations defense, and the plaintiff's suggestion that the defendant waived the defense is

wholly without merit.

¶ 39 Release and Assignment

¶ 40 Assuming that the plaintiff's claims against the defendant were not time-barred by

the five-year statute of limitations applicable to unwritten contracts and breach-of-

fiduciary-duty claims, we would still have to find that the trial court erred in its 15 determination that the claims were also barred by the release and the assignment that

Deep Rock obtained pursuant to the settlement agreement. Section 2-619(a)(6) allows

for dismissal where "the claim set forth in the plaintiff's pleading has been released,

satisfied of record, or discharged in bankruptcy." 735 ILCS 5/2-619(a)(6) (West 2012).

As previously noted, we can affirm the trial court's judgment on any basis present in the

record. Raintree Homes, Inc., 209 Ill. 2d at 261.

¶ 41 Under the terms of the settlement agreement, the plaintiff and Deep Rock released

and fully discharged each other from all claims arising from the venture agreement, and

the plaintiff received $2.5 million. It is undisputed that the defendant was not named or

referenced in the release that Deep Rock obtained pursuant to the settlement agreement,

but in its second motion to dismiss the plaintiff's claims pursuant to section 2-619, the

defendant argued that the release "resulted in the release of all the claims being asserted

by [the plaintiff] against [the defendant] in this case."

¶ 42 Under Illinois law, causes of action premised on breach-of-contract and breach-of-

fiduciary-duty claims arising from a single indivisible injury are subject to the common-

law rule that the unqualified release of one co-obligor operates as a release of all co-

obligors, unless a contrary intent is apparent from the face of the release. See Cherney v.

Soldinger, 299 Ill. App. 3d 1066, 1070-75 (1998); see also Holland v. United States, 621

F.3d 1366, 1380 (Fed. Cir. 2010) ("Under Illinois law, the absolute and unconditional

release of one co-obligor releases all other co-obligors even if the other co-obligors 'were

not a party to the release or specifically identified in the release.' " (Emphasis in

original.) (quoting Cherney, 299 Ill. App. 3d at 1070)); Diamond Headache Clinic, Ltd. 16 v. Loeber Motors, Inc., 172 Ill. App. 3d 364, 369 (1988) ("The law of Illinois is well

established that a full and unconditional release of one of several co-obligors on a joint

obligation also discharges the other co-obligor."). The common-law rule applies

regardless of whether the unidentified co-obligors owed differing duties to the aggrieved

party (Cherney, 299 Ill. App. 3d at 1073-74; In re Doctors Hospital of Hyde Park, Inc.,

494 B.R. 344, 370 (Bankr. N.D. Ill. 2013)), and the intent examined is whether the

release was intended as absolute and unconditional, not whether it was intended to release

all co-obligors (Cherney, 299 Ill. App. 3d at 1074; see also Holland, 621 F.3d at 1380

("The intent at issue is whether the parties intended the agreement to serve as an 'absolute

and unconditional' release of the co-obligor executing the agreement.")). The rule applies

where the aggrieved party's claims against one co-obligor involves a loss that "is identical

to and inseparable from the loss" attributable to the other co-obligor. Cherney, 299 Ill.

App. 3d at 1074; see also In re Doctors Hospital of Hyde Park, Inc., 494 B.R. at 370

(noting that "parties are considered co-obligors where they are liable for a 'single

indivisible injury' " and that the applicable "test *** relates to the releasor's 'single

indivisible injury' "). The purpose of the common-law rule "is to prevent a claimant from

receiving multiple recoveries for a single claim" (Diamond Headache Clinic, Ltd., 172

Ill. App. 3d at 369), as the rule presumes that an unqualified release is "given in full

satisfaction for the injury" at issue (Cherney, 299 Ill. App. 3d at 1070).

¶ 43 Here, the repudiation of the venture agreement resulted in a single indivisible

injury, i.e., the plaintiff's exclusion from the development of the Forbes leases. We note

that in the proceedings below, the plaintiff acknowledged that he had only "suffered one 17 injury as a result of the breach." Moreover, the loss at issue in the present case is

identical to the loss that was at issue in the plaintiff's case against Deep Rock, i.e., the

loss of the profits and benefits that resulted from the plaintiff's exclusion from the

development of the Forbes leases. Additionally, the plaintiff's injury is equally

attributable to both the defendant and Deep Rock as co-obligors. See Holmstrom v.

Kunis, 221 Ill. App. 3d 317, 324 (1991) ("[A]ll joint contractual obligations are also joint

and several obligations," and pursuant to "[s]ection 2-410 of the Code of Civil Procedure

[citation] *** '[a]ll parties to a joint obligation *** may be sued jointly, or separate

actions may be brought against one or more of them.' "). The release that Deep Rock

obtained pursuant to the settlement agreement unconditionally released and fully

discharged Deep Rock from all claims arising from the venture agreement, and no intent

to not release or discharge the defendant is apparent from the face of the instrument.

Accordingly, the common-law rule applies, and the plaintiff's claims against the

defendant were properly dismissed pursuant to section 2-619(a)(6).

¶ 44 On appeal, the plaintiff argues that the defendant cannot use the release to shield

itself from liability, because "Illinois law provides that absent an individual being

specifically named in a release (or falling within one of the categories of the named

releases), the release is obviously of no effect with respect to such individual." As the

defendant notes, however, the cases the plaintiff relies on in support of this contention

addressed the release provision set forth in the Joint Tortfeasor Contribution Act (740

ILCS 100/0.01 et seq. (West 2012)) (see Trexler v. Chrysler Corp., 104 Ill. 2d 26, 29

(1984); Alsup v. Firestone Tire & Rubber Co., 101 Ill. 2d 196, 198-201 (1984); 18 McNamara v. Shermer, 157 Ill. App. 3d 864, 865-67 (1987)), which is inapplicable here

(Cherney, 299 Ill. App. 3d at 1071-72; see also Jackson National Life Insurance Co. v.

Gofen & Glossberg, Inc., 882 F. Supp. 713, 723 (N.D. Ill. 1995) ("[B]reach of a

contractual duty cannot support a claim under the Contribution Act."); People ex rel.

Hartigan v. Community Hospital of Evanston, 189 Ill. App. 3d 206, 213 (1989) ("[A]n

action for breach of fiduciary duty is not a 'tort' for purposes of the Illinois Contribution

Act.")).

¶ 45 In his reply brief, the plaintiff further argues that "Illinois courts have modified the

common[-]law rule governing the release of co-obligors" so that "[n]ow[,] the

determination of whether the release of one obligor releases any remaining obligors is

based on the intent expressed in the language of the release when read in the light of the

circumstances surrounding the transaction." The plaintiff also suggests that the common-

law rule should be deemed inapplicable here, because his cause of action against the

defendant alleged a breach-of-fiduciary-duty claim that was not brought against Deep

Rock. Referencing section 2-410 of the Code of Civil Procedure (735 ILCS 5/2-410

(West 2012)), the plaintiff further asserts that the common-law rule should be deemed

inapplicable, because Deep Rock and the defendant are jointly and severally liable on the

venture agreement, and "their violations of the agreement are [thus] the equivalent of the

breach of two independent contracts." Although "points raised and argued for the first

time in a reply brief are waived" (Lustig v. Horn, 315 Ill. App. 3d 319, 329 (2000)), we

will address these contentions.

¶ 46 We recognize that in some instances, the circumstances surrounding the execution 19 of a release can defeat the strict application of the common-law rule. Here, however, no

such circumstances exist, and the plaintiff's cited cases are readily distinguishable.

¶ 47 In Diamond Headache Clinic, Ltd., 172 Ill. App. 3d at 368-70, for instance, the

plaintiff sued two defendants for separate and different injuries arising from independent

acts. Because the defendants were thus not co-obligors jointly and severally liable for a

single injury, the common-law rule was deemed inapplicable to the plaintiff's release. Id.

at 369. Moreover, the "release" at issue was a "stipulation to dismiss" as to only one of

the two defendants, and the release was executed while the litigation against both was

still pending. Id. at 366-67. The plaintiff's intent not to release the remaining defendant

was also apparent from the trial court's order entered on the stipulation to dismiss, which

specifically indicated that only those matters involving the released party had been settled

and that the plaintiff's cause continued as to the remaining defendant. Id. at 367.

¶ 48 Similarly, in In re Estate of Constantine, 305 Ill. App. 3d 256, 258-59 (1999), the

release at issue was executed in conjunction with the entry of an agreed order that

specifically stated that the release was effective as to only one of three obligors and did

not release the remaining two. Under the circumstances, the "release" was thus deemed a

covenant not to sue. Id. at 260.

¶ 49 Here, nothing suggests that the release at issue was executed in conjunction with

an entered order limiting its effect or otherwise reserving any rights as to the defendant or

any other third party. Additionally, when the release was executed, there was no

litigation pending against the defendant. The release was executed in December 2004,

and the plaintiff did not seek to recover damages from the defendant for violating the 20 venture agreement until February 2011. The release unconditionally released Deep Rock

from all claims arising from the venture agreement, and no intent not to release the

defendant is apparent from the face of the release. Additionally, the repudiation of the

venture agreement resulted in a single injury attributable to both the defendant and Deep

Rock, and the loss claimed in the instant case is the same as that claimed in the plaintiff's

case against Deep Rock. Although the plaintiff now claims that it was not his intent to

release the defendant, that is not a relevant consideration. As previously indicated, under

the common-law rule, an absolute and unconditional release of one co-obligor must be

construed as a release of all co-obligors liable for the plaintiff's loss, whether or not the

plaintiff was "ignorant that this would be its legal effect." Cherney, 299 Ill. App. 3d at

1074-75.

¶ 50 The plaintiff also suggests that the common-law rule should be deemed

inapplicable here, because his cause of action against the defendant alleged a breach-of-

fiduciary-duty claim that was not brought against Deep Rock. As indicated above,

however, the common-law rule applies regardless of whether the co-obligors to an

agreement owed differing duties to the aggrieved party, and the applicable test is whether

the aggrieved party's claims against one co-obligor stem from a loss that "is identical to

and inseparable from the loss" attributable to the other co-obligor. Cherney, 299 Ill. App.

3d at 1074; In re Doctors Hospital of Hyde Park, Inc., 494 B.R. at 370.

¶ 51 Referencing section 2-410, the plaintiff further asserts that because Deep Rock and

the defendant are jointly and severally liable on the venture agreement, "their violations

of the [venture] agreement are the equivalent of the breach of two independent contracts." 21 The plaintiff thus suggests that his instant cause of action on the venture agreement is not

barred by operation of the common-law rule. Again, we disagree.

¶ 52 Section 2-410 provides that "[a]ll parties to a joint obligation *** may be sued

jointly, or separate actions may be brought against one or more of them" and that "[a]

judgment against fewer than all the parties *** does not bar an action against those not

included in the judgment or not sued." 735 ILCS 5/2-410 (West 2012). It further

provides, however, that "[n]othing herein permits more than one satisfaction" (id.), which

is precisely what the plaintiff is seeking here. As noted above, the common-law rule

presumes that an unqualified release is given in "full satisfaction" for the underlying

injury (Cherney, 299 Ill. App. 3d at 1070), and the purpose of the rule "is to prevent a

claimant from receiving multiple recoveries for a single claim" (Diamond Headache

Clinic, Ltd., 172 Ill. App. 3d at 369). Although section 2-410 arguably allows a party to

sue on a joint obligation as though multiple contracts exist, it does not allow for multiple

recoveries for a single injury. As such, there is no inconsistency or conflict between the

common-law rule and section 2-410.

¶ 53 Even if we were to conclude that the common-law rule regarding the unqualified

release of one co-obligor were somehow inapplicable in the present case, we would still

have to find that the plaintiff's claims against the defendant were not barred by the terms

of the assignment that Deep Rock obtained pursuant to the settlement agreement. As

previously noted, in his responsive pleadings in opposition to the defendant's motions to

dismiss, the plaintiff did not address or acknowledge the defendant's argument that his

claims were barred by the assignment. On appeal, the only argument that the plaintiff 22 makes with respect to the assignment consists of cursory statements included in his reply

brief. Although the point is waived and arguably conceded, we will nevertheless

examine the assignment's legal effect on the plaintiff's instant cause of action.

¶ 54 Pursuant to the assignment that Deep Rock obtained under the terms of the

settlement agreement, the plaintiff assigned to Deep Rock "all his right, title[,] and

interest in and to" the Forbes leases. The plaintiff further warranted that his title to the

interests was "free and clear from all liens, encumbrances[,] and adverse claims." The

assignment also included a release provision stating that the plaintiff forever released and

disclaimed "all claims, rights, titles[,] and interest in oil and gas leases in, off setting[,] or

adjoining Steven [sic] Forbes State Park." The assignment's release provision also

specifically released and disclaimed all the "claims, rights, titles[,] or interests described"

in the notice. As previously indicated, the notice specifically named Deep Rock and the

defendant as parties to the notice and suggested that they had violated the terms of the

venture agreement by not giving the plaintiff his proportional interest in the Forbes

leases.

¶ 55 "An assignment is the transfer of some identifiable property, claim, or right from

the assignor to the assignee." YPI 180 N. LaSalle Owner, LLC v. 180 N. LaSalle II, LLC,

403 Ill. App. 3d 1, 5 (2010). "Once made, an assignment puts the assignee into the shoes

of the assignor" (Collins Co. v. Carboline Co., 125 Ill. 2d 498, 512 (1988)), and the

assignor no longer has any rights in the thing assigned (People v. Wurster, 97 Ill. App. 3d

104, 106 (1981)).

¶ 56 Here, the plaintiff unequivocally assigned to Deep Rock all of his rights, title, and 23 interests in and to the Forbes leases. As part of the assignment, he further released and

disclaimed all claims, rights, titles, and interests described in the notice. The defendant

was a named party to the notice, and the plaintiff's release was necessary to effectuate his

guarantee that the title that he was assigning was free and clear of all adverse claims. See

Newcastle Properties, Inc. v. Shalowitz, 221 Ill. App. 3d 716, 728 (1991) (when

construing an agreement, a court must give effect to the intent of the parties). Under the

circumstances, we agree with the defendant's observations that the assignment "clearly

describes the interests which form the basis for [the plaintiff's] claims against [the

defendant]" and that the plaintiff "cannot now seek to enforce his rights in the very

interests which he assigned away in 2004." As a result, even if the plaintiff's present

cause of action were not barred by the five-year statute of limitations applicable to

unwritten contracts or by operation of the common-law rule regarding the unqualified

release of one co-obligor, summary judgment was properly entered pursuant to section 2-

619 in light of the assignment that Deep Rock obtained in No. 02-MR-63.

¶ 57 We lastly address the plaintiff's suggestion that the defendant is judicially

estopped from asserting any right of protection flowing from the settlement agreement.

The plaintiff maintains that because the defendant emphasized that it had not been a party

to the settlement agreement when successfully moving to sever the instant case from the

plaintiff's cause against Deep Rock, the defendant should not now be allowed to claim

that it is entitled to the benefits of the agreement.

¶ 58 "Under the doctrine of judicial estoppel, a party who takes a particular position in

a legal proceeding is estopped from taking a contrary position in a subsequent legal 24 proceeding." Maniez v. Citibank, F.S.B., 404 Ill. App. 3d 941, 948 (2010).

¶ 59 "Our courts have identified five elements necessary for judicial estoppel to apply:

(1) the party must have taken two positions; (2) the positions must be factually

inconsistent; (3) the positions were taken in separate judicial or quasi-judicial

proceedings; (4) the person intended the trier of fact to accept the truth of the facts

alleged; and (5) the party succeeded in the first proceeding and received some benefit

therefrom." Id.

¶ 60 "Judicial estoppel applies to statements of fact and not to legal opinions or

conclusions." Id. at 949; see also McNamee v. Sandore, 373 Ill. App. 3d 636, 649 (2007)

("The doctrine does not apply to all types of inconsistency, but only inconsistency in

assertions of fact.").

¶ 61 In No. 11-L-47, the plaintiff's complaints against Deep Rock alleged that it had

breached the terms of the settlement agreement by failing to make full payment on the

1% interest in the Forbes leases that Deep Rock assigned to the plaintiff. The plaintiff's

instant cause of action against the defendant, on the other hand, stems from the

defendant's violation of the venture agreement. When successfully arguing that the two

causes should be severed, the defendant's attorney, who was and is also Deep Rock's

attorney, consistently maintained that the actions were separate and distinct, that the

alleged injury involved in each case was different, and that Deep Rock and the defendant

had no interest in the other's litigation.

¶ 62 On appeal, the plaintiff argues that the defendant's attorney took two factually

inconsistent positions by first arguing that the defendant and Deep Rock were not jointly 25 liable and that the settlement agreement and the release that Deep Rock obtained pursuant

thereto had nothing to do with the defendant and then later claiming that the defendant

and Deep Rock were co-obligors liable for a single indivisible injury and that the

plaintiff's release of Deep Rock thereby released the defendant. Considered in their

proper context, however, these positions were not factually inconsistent. They pertained

to separate cases involving entirely different issues. Counsel's earlier statements

addressed the dissimilarities between the causes of action arising from the defendant's

violation of the venture agreement and Deep Rock's alleged violation of the settlement

agreement. Counsel's subsequent reliance on the common-law rule regarding the release

of a co-obligor was merely an invocation of the applicable law with respect to the

defendant's liability for its breach of the venture agreement. Counsel rightly observed

that the defendant was neither liable for nor interested in Deep Rock's alleged violation of

the settlement agreement and that Deep Rock, having previously settled its disputes with

the plaintiff arising from its breach of the venture agreement, was neither liable for nor

interested in the plaintiff's claims against the defendant. As previously indicated, by

operation of law, the defendant benefitted from the release and the assignment that Deep

Rock obtained pursuant to the settlement agreement, whether or not the plaintiff and

Deep Rock intended such a result and despite the fact that the defendant was not a party

to the agreement. As an aside, we note that the defendant correctly observes that many of

the statements that the plaintiff points to on appeal to demonstrate the alleged

inconsistency of the defendant's positions "were actually statements made on behalf of

Deep Rock." In any event, judicial estoppel bars "factual inconsistencies, not legal 26 inconsistencies" (Sandore, 373 Ill. App. 3d at 650) or conclusions or opinions that are

only seemingly inconsistent. We accordingly reject the plaintiff's intimation that the

defendant is judicially estopped from asserting any right of protection arising from the

settlement agreement.

¶ 63 The Trial Court's Recusal

¶ 64 In August 2013, Deep Rock filed a motion for summary judgment in No. 11-L-47.

In September 2013, the plaintiff filed a pleading in opposition to the motion.

¶ 65 On October 1, 2013, the trial court held a hearing on Deep Rock's motion for

summary judgment. At the hearing, Deep Rock argued that it had proven that the

plaintiff had not been denied any payments due on his 1% assigned interest in the Forbes

leases with respect to the oil harvested from the leases but conceded that there arguably

remained a question of fact as to whether the plaintiff was entitled to a share of the

monies obtained from the sale of "salvaged oil" that had been extracted from "tank

bottoms" during the drilling process. Deep Rock 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."

¶ 66 In a letter dated October 3, 2013, counsel for Deep Rock wrote the trial court

clarifying its 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 Deep Rock failed to contemporaneously forward a copy of

the correspondence and proposed order to the plaintiff. 27 ¶ 67 On October 7, 2013, using Deep Rock's proposed order, the trial court granted

partial summary judgment in favor of Deep Rock in No. 11-L-47. In an accompanying

docket entry, observing that it appeared that the plaintiff had not been provided with a

copy of Deep Rock'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 Deep Rock's arguments and

did not include anything that had not already been addressed. The record in No. 11-L-47

indicates that Deep Rock subsequently also sent the plaintiff's attorney a copy of its

correspondence to the court, accompanied by a letter explaining that its failure to

previously do so had been unintentional.

¶ 68 In a letter dated October 22, 2013, the plaintiff's attorney advised Deep Rock's

attorney that he suspected that Deep Rock "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.

¶ 69 On October 23, 2013, the plaintiff filed a motion to vacate the trial court's order

granting partial summary judgment in light of Deep Rock'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 Deep Rock's attorney.

¶ 70 On December 17, 2013, at the hearing on the defendant's section 2-619 motions in

the instant case, the plaintiff's motion to vacate the trial court's order granting partial 28 summary judgment in No. 11-L-47 was addressed. Plaintiff's counsel argued that

whether Deep Rock's failure to provide him with a copy of the October 3, 2013,

correspondence had been "a mistake or not," the correspondence was nonetheless 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.

¶ 71 On December 27, 2013, the trial court entered its order granting the defendant's

motions to dismiss in the present case. On January 14, 2014, the plaintiff filed a surreply

in opposition to Deep Rock's motion for summary judgment in No. 11-L-47, which was

virtually identical to his September 2013 pleading in opposition to the motion. The

record in No. 11-L-47 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 in the present case or in the record on appeal from

the trial court's judgment in No. 11-L-47.

¶ 72 On February 25, 2014, the trial court entered a written order reinstating its

previously vacated order granting partial summary judgment in favor of Deep Rock in

No. 11-L-47. 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 No. 11-L-47. On March 7, 2014, the plaintiff filed 29 a timely notice of appeal in No. 11-L-47.

¶ 73 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

No. 11-L-47, 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 both of his causes, without explanation, is "curious[ ]" and "strange[ ]." At

oral argument, plaintiff's counsel suggested that the trial court acted inappropriately.

¶ 74 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).

¶ 75 "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 30 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).

¶ 76 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 Deep Rock'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 in No. 11-L-47, 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 Deep Rock'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 No. 11-L-47. In the absence of an explanation 31 from 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.

¶ 77 "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).

¶ 78 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 law applicable to 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). 32 ¶ 79 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).

¶ 80 CONCLUSION

¶ 81 For the foregoing reasons, we hereby affirm the trial court's judgment granting the

defendant's section 2-619 motions to dismiss.

¶ 82 Affirmed.

33 2015 IL App (5th) 140037

NO. 5-14-0037

IN THE

FIFTH DISTRICT ________________________________________________________________________

DUANE HASSEBROCK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Marion County. ) v. ) No. 12-L-56 ) CEJA 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, Appellant Belleville, IL 62220-2085 ________________________________________________________________________

Attorneys George C. Lackey, Joanne T. Stevenson, Lackey & Stevenson, P.C., for 331 East Broadway, P.O. Box 808, Centralia, IL 62801 Appellee ________________________________________________________________________