NOTICE 2022 IL App (5th) 210151-U NOTICE Decision filed 03/22/22. The This order was filed under text of this decision may be NO. 5-21-0151 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
RICK STUMEIER, as Assignee of ) Appeal from the Scott Lankford, ) Circuit Court of ) Effingham County. Plaintiff-Appellant, ) ) v. ) No. 19-L-19 ) HOWARD JANIS, ) Honorable ) Jeffrey A. DeLong, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting summary judgment in favor of the defendant is affirmed where the plain language of an indemnification provision contained in a timber cutting agreement entered into between the defendant and a third party indicated it was inapplicable when the defendant relied on the third party to mark the boundary lines between his and the plaintiff’s property instead of marking those boundary lines himself.
1 ¶2 The plaintiff, Rick Stumeier, as assignee of Scott Lankford, 1 appeals the circuit
court of Effingham County’s order granting summary judgment in favor of the defendant,
Howard Janis. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Janis and Stumeier were neighbors. On April 3, 2013, Janis entered into a timber
purchase agreement (agreement) with Timber Marketing Service (Timber Marketing) in
which Timber Marketing agreed to cut certain timber from Janis’s property. Lankford
signed the contract on behalf of Timber Marketing. The indemnity provision of the
agreement stated as follows:
“[Janis] agrees to designate by stakes or other markers appropriately placed, the boundary lines of property on which said timber is located. [Janis] agrees to indemnify and save harmless [Lankford] from any claims of third parties for damages resulting from errors in location of said boundary lines.”
¶5 Janis did not mark the property’s boundary lines with stakes or any other markers.
Lankford removed trees from Janis’s property but also mistakenly removed trees from
Stumeier’s property. Thereafter, Stumeier secured a judgment against Lankford (case No.
15-L-38) in the amount of $324,953.70. After the judgment was entered, Stumeier
accepted an assignment of Lankford’s right of indemnity, which was based on the
agreement between Lankford and Janis.
¶6 In May 2019, Stumeier filed a complaint against Janis, seeking indemnity for the
$324,953.70 that Lankford was ordered to pay in the previous case; Stumeier argued that
1 The captions of the parties’ appellate briefs say Langford, but, throughout the record, he is referred to as both Langford and Lankford. Since the assignment that he signed identifies him as Lankford, that is the name we will use in this decision. 2 his right to bring a lawsuit against Janis was through Lankford. In September 2019, the
trial court entered an order dismissing the complaint. Thereafter, in April 2020, this court
vacated the trial court’s order of dismissal and remanded for further proceedings. Stumeier
v. Janis, 2020 IL App (5th) 190405-U.
¶7 After remand, on December 7, 2020, Stumeier filed a first amended complaint,
arguing that the $324,953.70 judgment had not been paid; the judgment was entered for
damages resulting in errors in locating the boundary lines of Stumeier’s property; Stumeier,
as an assignee of Lankford, made a demand upon Janis for indemnity pursuant to the
agreement, but Janis refused; and Janis’s failure to indemnify Lankford and Stumeier was
a breach of the agreement.
¶8 On March 15, 2021, Janis filed a motion for summary judgment, contending that
Lankford never asked Janis to indemnify him, and Lankford’s failure to request
indemnification prevented Stumeier, as Lankford’s assignee, from seeking
indemnification. Janis also argued that the indemnification provision dealt specifically
with errors made by Janis in marking the property’s boundaries. Thus, had Janis
incorrectly marked the property’s boundaries, and Lankford was found liable, Janis would
be required to indemnify Lankford. However, as Janis did not mark any of the property’s
boundaries, the indemnity clause was inapplicable.
¶9 In support of this argument, Janis pointed to Lankford’s evidence deposition
testimony where Lankford indicated the following: (1) it was not Janis’s responsibility to
provide any plats or other diagrams noting the property’s lines; (2) Lankford’s father used
the plat books and aerials of the property to determine the boundaries of Janis’s property; 3 (3) from the beginning, Janis and Lankford agreed that Lankford and his father would mark
the boundaries; and (4) Lankford and his father never relied on the property owner’s
identification of the property lines. Therefore, Janis contended that, despite the language
of the agreement, he and Lankford intended that Lankford would be responsible for
marking the boundaries, and they acted on this intent when Janis did not mark any of the
boundaries and relied on Lankford to determine the property lines.
¶ 10 Janis also argued that, for Lankford to receive indemnity, the indemnity provision
would need to state, in clear and explicit language, that Janis was indemnifying Lankford
for any mistakes that Lankford made in marking the boundaries. However, since the
provision merely provided that Janis would be liable for his own negligence in failing to
properly mark the boundaries, and did not mention anything about indemnifying Lankford
for Lankford’s own negligence, it cannot be enforced against Janis. Thus, Janis had no
duty to indemnify, and summary judgment must be entered in his favor.
¶ 11 On May 6, 2021, Stumeier filed a response to the motion for summary judgment,
arguing that Janis agreed to mark the property lines and indemnify Lankford for any third-
party claims for damages resulting from errors in locating the boundaries. Because Janis
breached the agreement by failing to properly mark the property’s boundaries, he was
required to indemnify Lankford.
¶ 12 On May 20, 2021, the trial court entered an order granting summary judgment in
favor of Janis. In the order, the court found that the indemnity provision in the agreement
was not ambiguous and provided that Janis agreed to stake and mark the appropriate
boundary lines and agreed to indemnify Lankford for any third-party claims for Janis’s 4 errors in locating the aforementioned boundaries. The court noted that the deposition
testimony from both Janis and Lankford was clear; Lankford testified that he and his father
researched and marked the boundary lines themselves while Janis testified that he relied
on Lankford, as the expert, when marking the boundaries. The court found that the
indemnity provision’s two sentences must be read together, and, when doing so, it was
clear that Janis was to indemnify Lankford if Janis erred in identifying the boundary lines.
However, because it was undisputed that Janis never marked the property lines, and the
indemnity provision did not provide for indemnity for any errors in locating the boundaries,
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NOTICE 2022 IL App (5th) 210151-U NOTICE Decision filed 03/22/22. The This order was filed under text of this decision may be NO. 5-21-0151 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
RICK STUMEIER, as Assignee of ) Appeal from the Scott Lankford, ) Circuit Court of ) Effingham County. Plaintiff-Appellant, ) ) v. ) No. 19-L-19 ) HOWARD JANIS, ) Honorable ) Jeffrey A. DeLong, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting summary judgment in favor of the defendant is affirmed where the plain language of an indemnification provision contained in a timber cutting agreement entered into between the defendant and a third party indicated it was inapplicable when the defendant relied on the third party to mark the boundary lines between his and the plaintiff’s property instead of marking those boundary lines himself.
1 ¶2 The plaintiff, Rick Stumeier, as assignee of Scott Lankford, 1 appeals the circuit
court of Effingham County’s order granting summary judgment in favor of the defendant,
Howard Janis. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Janis and Stumeier were neighbors. On April 3, 2013, Janis entered into a timber
purchase agreement (agreement) with Timber Marketing Service (Timber Marketing) in
which Timber Marketing agreed to cut certain timber from Janis’s property. Lankford
signed the contract on behalf of Timber Marketing. The indemnity provision of the
agreement stated as follows:
“[Janis] agrees to designate by stakes or other markers appropriately placed, the boundary lines of property on which said timber is located. [Janis] agrees to indemnify and save harmless [Lankford] from any claims of third parties for damages resulting from errors in location of said boundary lines.”
¶5 Janis did not mark the property’s boundary lines with stakes or any other markers.
Lankford removed trees from Janis’s property but also mistakenly removed trees from
Stumeier’s property. Thereafter, Stumeier secured a judgment against Lankford (case No.
15-L-38) in the amount of $324,953.70. After the judgment was entered, Stumeier
accepted an assignment of Lankford’s right of indemnity, which was based on the
agreement between Lankford and Janis.
¶6 In May 2019, Stumeier filed a complaint against Janis, seeking indemnity for the
$324,953.70 that Lankford was ordered to pay in the previous case; Stumeier argued that
1 The captions of the parties’ appellate briefs say Langford, but, throughout the record, he is referred to as both Langford and Lankford. Since the assignment that he signed identifies him as Lankford, that is the name we will use in this decision. 2 his right to bring a lawsuit against Janis was through Lankford. In September 2019, the
trial court entered an order dismissing the complaint. Thereafter, in April 2020, this court
vacated the trial court’s order of dismissal and remanded for further proceedings. Stumeier
v. Janis, 2020 IL App (5th) 190405-U.
¶7 After remand, on December 7, 2020, Stumeier filed a first amended complaint,
arguing that the $324,953.70 judgment had not been paid; the judgment was entered for
damages resulting in errors in locating the boundary lines of Stumeier’s property; Stumeier,
as an assignee of Lankford, made a demand upon Janis for indemnity pursuant to the
agreement, but Janis refused; and Janis’s failure to indemnify Lankford and Stumeier was
a breach of the agreement.
¶8 On March 15, 2021, Janis filed a motion for summary judgment, contending that
Lankford never asked Janis to indemnify him, and Lankford’s failure to request
indemnification prevented Stumeier, as Lankford’s assignee, from seeking
indemnification. Janis also argued that the indemnification provision dealt specifically
with errors made by Janis in marking the property’s boundaries. Thus, had Janis
incorrectly marked the property’s boundaries, and Lankford was found liable, Janis would
be required to indemnify Lankford. However, as Janis did not mark any of the property’s
boundaries, the indemnity clause was inapplicable.
¶9 In support of this argument, Janis pointed to Lankford’s evidence deposition
testimony where Lankford indicated the following: (1) it was not Janis’s responsibility to
provide any plats or other diagrams noting the property’s lines; (2) Lankford’s father used
the plat books and aerials of the property to determine the boundaries of Janis’s property; 3 (3) from the beginning, Janis and Lankford agreed that Lankford and his father would mark
the boundaries; and (4) Lankford and his father never relied on the property owner’s
identification of the property lines. Therefore, Janis contended that, despite the language
of the agreement, he and Lankford intended that Lankford would be responsible for
marking the boundaries, and they acted on this intent when Janis did not mark any of the
boundaries and relied on Lankford to determine the property lines.
¶ 10 Janis also argued that, for Lankford to receive indemnity, the indemnity provision
would need to state, in clear and explicit language, that Janis was indemnifying Lankford
for any mistakes that Lankford made in marking the boundaries. However, since the
provision merely provided that Janis would be liable for his own negligence in failing to
properly mark the boundaries, and did not mention anything about indemnifying Lankford
for Lankford’s own negligence, it cannot be enforced against Janis. Thus, Janis had no
duty to indemnify, and summary judgment must be entered in his favor.
¶ 11 On May 6, 2021, Stumeier filed a response to the motion for summary judgment,
arguing that Janis agreed to mark the property lines and indemnify Lankford for any third-
party claims for damages resulting from errors in locating the boundaries. Because Janis
breached the agreement by failing to properly mark the property’s boundaries, he was
required to indemnify Lankford.
¶ 12 On May 20, 2021, the trial court entered an order granting summary judgment in
favor of Janis. In the order, the court found that the indemnity provision in the agreement
was not ambiguous and provided that Janis agreed to stake and mark the appropriate
boundary lines and agreed to indemnify Lankford for any third-party claims for Janis’s 4 errors in locating the aforementioned boundaries. The court noted that the deposition
testimony from both Janis and Lankford was clear; Lankford testified that he and his father
researched and marked the boundary lines themselves while Janis testified that he relied
on Lankford, as the expert, when marking the boundaries. The court found that the
indemnity provision’s two sentences must be read together, and, when doing so, it was
clear that Janis was to indemnify Lankford if Janis erred in identifying the boundary lines.
However, because it was undisputed that Janis never marked the property lines, and the
indemnity provision did not provide for indemnity for any errors in locating the boundaries,
the court found no genuine issue of material fact and granted summary judgment in favor
of Janis. Stumeier appeals.
¶ 13 II. ANALYSIS
¶ 14 The purpose of summary judgment is to determine whether a genuine issue of
material facts exists, not to resolve a question of fact. Williams v. Manchester, 228 Ill. 2d
404, 417 (2008). An order granting summary judgment is proper when the pleadings,
affidavits, depositions, and admissions of record show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Colvin
v. Hobart Brothers, 156 Ill. 2d 166, 169 (1993). This relief is an appropriate tool to employ
in the expeditious disposition of a lawsuit, but it should only be allowed when the right of
the moving party is clear and free from doubt. Id. at 169-70. Our review of an order
granting summary judgment is de novo. Rettig v. Heiser, 2013 IL App (4th) 120985, ¶ 30.
¶ 15 An indemnity agreement is a contract subject to contract interpretation rules.
Charter Bank v. Eckert, 223 Ill. App. 3d 918, 925 (1992). The fundamental rule of contract 5 construction is to give effect to the parties’ intent, as discerned from the contract language.
Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556, (2007).
When construing an indemnification agreement, the agreement must be given a fair and
reasonable interpretation based upon a consideration of all the language and provisions.
Bates v. Select Lake City Theater Operating Co., 78 Ill. App. 3d 153, 155 (1979). The
interpretation of any indemnity agreement depends on the particular language of the
agreement and the factual setting of the case. Svenson v. Miller Builders, Inc., 74 Ill. App.
3d 75, 88 (1979). Unless the indemnity agreement is ambiguous, its meaning will be
determined from the words used. Montgomery Ward & Co. v. Wetzel, 98 Ill. App. 3d 243,
251 (1981). The contractual language is not ambiguous just because the parties disagree
as to its interpretation. Midway Park Saver v. Sarco Putty Co., 2012 IL App (1st) 110849,
¶ 13. It is well settled that indemnity contracts are strictly construed and will not be
construed as indemnifying against a party’s own negligence unless such a construction is
required by the clear and explicit language of the contract. Bituminous Casualty Corp. v.
Plano Molding Co., 2015 IL App (2d) 140292, ¶ 8.
¶ 16 Here, the sole issue is the interpretation of the indemnity provision in the agreement
entered into between Janis and Lankford. As noted above, the indemnity provision stated
as follows:
“[Janis] agrees to designate by stakes or other markers appropriately placed, the boundary lines of property on which said timber is located. [Janis] agrees to indemnify and save harmless [Lankford] from any claims of third parties for damages resulting from errors in location of said boundary lines.”
6 Therefore, under this indemnity provision, Janis agreed to mark the boundary lines of the
property. However, it was undisputed that Janis did not mark the boundaries. Instead,
Lankford accepted responsibility for marking the boundary lines himself. The question on
appeal is whether, under the above indemnity provision, Janis was required to indemnify
Lankford from any third-party claims from errors in marking the boundary lines when
Lankford, not Janis, marked the boundaries.
¶ 17 Stumeier argues that Janis agreed to indemnify Lankford for any errors in the
location of the boundary lines. In contrast, Janis contends that the indemnity provision was
inapplicable here because Janis did not mark the boundary lines; in other words, the
indemnity provision only applied if Janis marked the boundaries of the property. We find
no ambiguity in the terms of the indemnity provision. Reading the two sentences of the
indemnity provision together, we conclude that a fair and reasonable interpretation is that
(1) Janis agreed to mark the boundary lines himself; and (2) if he incorrectly marked “said
boundary lines,” and Lankford became liable, then he was required to indemnify Lankford.
Thus, the provision, which we must strictly construe, specifically dealt with errors made
by Janis when marking the boundaries; it did not mention anything about Janis assuming
liability for Lankford’s errors in marking the property lines. Because Janis did not mark
the boundary lines, the indemnity provision was not applicable here.
¶ 18 Although Stumeier argues that this interpretation of the indemnity provision makes
the clause meaningless because Janis avoids liability merely by breaching the contract (i.e.,
not marking the lines), we find this argument unpersuasive. The indemnification provision
protects Lankford if Janis does mark the boundary lines, Lankford relies on Janis’s 7 identification of the boundaries, and Lankford is subject to liability. Under our
interpretation of the indemnification provision, if Lankford wanted to avoid liability for
mistakes in the boundary lines, then he should not have accepted responsibility for marking
those lines himself. He lost his protection from liability when he voluntarily decided to
mark the property lines; thus, it was his own actions that rendered the indemnification
provision inapplicable. Accordingly, we find that the trial court properly granted summary
judgment in Janis’s favor.
¶ 19 III. CONCLUSION
¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Effingham
County.
¶ 21 Affirmed.