Werderman v. Liberty Ventures, LLC

Opinion

Nos. 2--05--1073 & 2--06--0036 cons.filed: 10/19/06 ______________________________________________________________________ ________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________ ________

JEFFREY WERDERMAN and TINA ) Appeal from the Circuit Court WERDERMAN, ) of Du Page County. ) Plaintiffs-Appellants and Cross- ) Appellees, ) ) v. ) No. 03--CH--1258 ) LIBERTY VENTURES, LLC, BRIAN ) MARSHALL, EUGENE ROSENDALE, and ) RON MICK, d/b/a The Hometeam Inspection ) Service, ) ) Defendants-Appellees ) ) (Naperville Professionals, Inc., d/b/a Re/Max ) Professionals Select, Matthew Bailey, ) Honorable Christian Chase, and Walter Chase, ) Bonnie M. Wheaton, Defendants-Appellees and Cross-Appellants). ) Judge, Presiding. ______________________________________________________________________ ________

JEFFREY WERDERMAN and TINA ) Appeal from the Circuit Court WERDERMAN, ) of Du Page County. ) Plaintiffs-Appellants, ) ) v. ) No. 03--CH--1258 ) LIBERTY VENTURES, LLC, BRIAN ) MARSHALL, EUGENE ROSENDALE, RON) MICK, d/b/a The Hometeam Inspection Service, ) NAPERVILLE PROFESSIONALS, INC., ) d/b/a Re/Max Professionals Select, ) MATTHEW BAILEY, CHRISTIAN CHASE, ) and WALTER CHASE, ) Honorable ) Bonnie M. Wheaton, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________ ________

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiffs, Jeffrey and Tina Werderman, purchased a house that, as soon as they

moved in, exhibited an unsafe and unhealthy mold infestation, the effects of which forced

plaintiffs almost immediately to move out of the house. Plaintiffs sued defendants, Liberty

Ventures, LLC (Liberty Ventures), Brian Marshall and Eugene Rosendale (collectively, the

Liberty Ventures defendants); Ron Mick, d/b/a The Hometeam Inspection Service

(Hometeam); Naperville Professionals, Inc., d/b/a Re/Max Professionals Select (Re/Max),

Matthew Bailey, Christian Chase, and Walter Chase (collectively, the Re/Max defendants),

alleging that defendants had defrauded them by marketing and selling to them a home that

had water damage and mold infestation. Following a joint bench and jury trial, the jury

returned a general verdict in favor of plaintiffs on their claims at law, including common-law

fraud, breach of fiduciary duty, civil conspiracy, breach of contract, negligent

misrepresentation, and professional negligence, against defendants Re/Max, Liberty

Ventures, and Hometeam. The trial court returned a judgment in favor of defendants

Re/Max and Liberty Ventures and against plaintiffs on plaintiffs' claims under the Illinois

Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS

505/10a, 10b (West 2002)) and the Residential Real Property Disclosure Act (Disclosure

Act) (765 ILCS 77/55 (West 2002)). On appeal in case No. 2--05--1073, plaintiffs contend

that the trial court's judgment on their statutory claims cannot stand in light of the jury's

verdict on their common-law claim. On cross-appeal in that case, the Re/Max defendants

contend that the trial court erred by allowing plaintiffs to amend their complaint to allege Nos. 2--05--1073 & 2--06--0036 cons.

punitive damages and that the jury verdict awarding compensatory and punitive damages

awards was against the manifest weight of the evidence. We affirm. On appeal in case

No. 2--06--0036, plaintiffs contend that the trial court erroneously dismissed their petition

for costs due to lack of jurisdiction. We reverse and remand.

As an initial matter, this opinion involves issues of first impression as well as issues

that are not precedential. Accordingly, we have denominated portions of the opinion

nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23), including most of the

detailed recitation of facts. In order to provide context for the publishable portion of this

opinion, we provide a brief summary of the salient facts.

These consolidated appeals arise out of several real estate transactions involving a

three-bedroom, two-bathroom, ranch home located at Boat Lane in Oswego, Illinois. Late

in 2001, the home had been foreclosed by the Department of Veterans Affairs (VA) and,

while it stood vacant, had experienced flooding and water filtration. The VA cleaned up the

property by removing debris, but did not check for mold or take steps to remedy any

potential mold infestation. The VA offered the property for sale "as is." During that time,

neighbors observed water damage and mold damage to the property. The VA eventually

sold the home "as is" to the Re/Max defendants.

The Re/Max defendants offered easily repaired properties for sale to investors.

Their business plan was to purchase such a property and immediately sell it to an investor.

The Re/Max defendants would suggest persons who could accomplish the repairs, list and

sell the property for the investor, and earn a commission on the sale. The investor would

earn profit through flipping the property after completing the repairs.

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Before purchasing the Boat Lane property, the Re/Max defendants, along with the

Liberty Ventures defendants, inspected the property several times. The Liberty Ventures

defendants observed that the floor had been warped and buckled as a result of water

infiltration. The Liberty Ventures defendants testified at trial that they believed the water

damage was due to a burst pipe. The Re/Max defendants consistently denied that, at any

time relevant, they had observed any water damage or mold infestation. Immediately upon

their purchase, the Re/Max defendants sold the property to the Liberty Ventures

defendants. The Liberty Ventures defendants repaired the property and painted it. The

Re/Max defendants listed the property for sale. While listed with the Re/Max defendants,

interested realtors and buyers who toured the property observed what they believed to be

mold in the basement and an overwhelming moldy or musty smell in the house. One

realtor called Walter Chase and explained that a client's lowball offer was the result of

mold. Chase replied that the client did not know what he was talking about and that

everyone knows that bleach and water will clean up mold. During his testimony, Chase

denied that this conversation occurred. Ultimately, plaintiffs purchased the Boat Lane

property.

Before completing the purchase, plaintiffs toured the property and had it inspected.

Plaintiffs did not discover mold or other damage. Plaintiffs were not informed that water

damage had been repaired in the property. After they moved in, plaintiffs discovered

extensive mold infestation in the property and experienced adverse health effects as a

result of the presence of mold. Plaintiffs sued defendants, alleging common-law fraud and

consumer fraud under the Consumer Fraud Act, based on defendants' failure to disclose

the presence of water damage and mold in the property.

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Following the presentation of evidence, the jury returned a general verdict in favor of

plaintiffs, and against Re/Max, Liberty Ventures, and Hometeam, on all of the claims

submitted to the jury, including common-law fraud, breach of fiduciary duty, civil conspiracy,

breach of contract, negligent misrepresentation, and professional negligence. The jury

awarded plaintiffs $71,545 in compensatory damages and awarded $69,175 in punitive

damages against Re/Max only. The jury hand-wrote its allocation of compensatory

damages on the verdict form, attributing $9,100 to Liberty Ventures, $62,160 to Re/Max,

and $285 to Hometeam. On July 22, 2005, the court entered judgment on the jury's verdict,

and the judgment order was filed on July 26, 2005.

On August 2, 2005, the trial court entered judgment in favor of the Re/Max

defendants and the Liberty Ventures defendants and against plaintiffs on plaintiffs' statutory

claims under the Consumer Fraud Act and the Disclosure Act. The trial court's order was

entered nunc pro tunc to July 25, 2005. 1 The parties filed posttrial motions, which, on

1 We are puzzled by the trial court's decision to employ a nunc pro tunc order here.

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Nunc pro tunc orders are used to correct clerical errors in written orders or to otherwise

conform the orders to the court's actual judgment; however, a nunc pro tunc order cannot

be used to alter the court's judgment. In re Marriage of Morreale, 351 Ill. App. 3d 238, 241

(2004); In re Jessie B., 327 Ill. App. 3d 1084, 1089 (2002). Here, the trial court rendered its

judgment on plaintiffs' statutory claims on August 2, 2005. It was improper to backdate the

judgment via a nunc pro tunc order; further, we see no reason to have done so. As no

issue arises from the trial court's action, we address it no further.

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August 30, 2005 (the Re/Max defendants' motion), and September 22, 2005 (plaintiffs' and

the Liberty Ventures defendants' motions), were denied. Plaintiffs' timely appeals and the

Re/Max defendants' timely cross-appeal in case No. 2--05--1073 followed.

We turn first to the issues raised in plaintiffs' appeals. In case No. 2--05--1073,

plaintiffs contend that, in light of the jury's resolution of their common-law fraud claim

against Re/Max, Liberty Ventures, and Hometeam, the trial court's judgment on the

statutory claim under the Consumer Fraud Act is inconsistent and must be brought into

accord with the jury's verdict. We note that this is the only ground on which plaintiffs

challenge the trial court's judgment. Plaintiffs do not raise an alternative argument that the

trial court's judgment on the statutory claim was against the manifest weight of the

evidence.

We begin with plaintiffs' arguments in case No. 2--05--1073. Plaintiffs first argue that

the inconsistency between the results of the bench trial and the jury trial must be resolved.

Plaintiffs note that the requirements to prevail in an action under the Consumer Fraud Act

are less demanding than those necessary to prevail on a common-law fraud claim. They

then argue that, because the jury found against Re/Max, Liberty Ventures, and Hometeam

on the more stringent claim of common-law fraud, the trial court's judgment on the statutory

claim must give way and be brought into line with the jury's verdict. Plaintiffs base their

argument ultimately on the concept that the jury verdict acts as a collateral estoppel of the

trial court to come to a different result. Additionally, plaintiffs cite to several cases, from

both Illinois and federal courts, that plaintiffs assert support their position. Plaintiffs also

invoke the sanctity of the right to a jury trial on their common-law claims as a further reason

that the trial court's judgment cannot stand.

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Plaintiffs present the interesting issue of when and to what extent the jury's verdict

must bind the trial court's judgment on common factual issues when a joint bench and jury

trial is held. Here, plaintiffs litigated a common-law fraud claim and a statutory fraud claim

under the Consumer Fraud Act, both of which arose out of the same transaction.

Generally, proving a common-law fraud claim also results in proving a consumer-fraud

claim based on the same evidence. E.g., Washington Courte Condominium Association-

Four v. Washington-Golf Corp., 267 Ill. App. 3d 790, 823-24 (1994). Here, however, the

jury found that Re/Max, Liberty Ventures, and Hometeam had committed common-law

fraud but the trial court did not rule that Re/Max or Liberty Ventures had committed

consumer fraud. Plaintiffs contend that such a result cannot be allowed to stand. We

disagree.

There is no right to a jury trial in deciding a consumer-fraud claim. Martin v. Heinold

Commodities, Inc., 163 Ill. 2d 33, 76 (1994). Plaintiffs appear to conflate the right to a jury

under the federal constitution with the right to a jury under the Illinois Constitution. Martin

holds that the rights are different and that the right under the Illinois Constitution is

somewhat more limited than the federal right. Martin, 163 Ill. 2d at 72-73. The right to a

jury trial under the Illinois Constitution is not guaranteed in any action nonexistent at

common-law, even if the action is legal in nature; rather, it continues in all cases where the

right existed at common-law at the time the federal bill of rights was adopted. Martin, 163

Ill. 2d at 72-73. The legislature may, however, create an action unknown at common-law

and provide a right to a jury trial. Martin, 163 Ill. 2d at 73-74. On the other hand, the right

to a jury trial under the federal constitution has been interpreted to extend beyond the

common-law forms recognized at the time the Bill of Rights was adopted, to all actions at

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law. Martin, 163 Ill. 2d at 73. Thus, while plaintiffs' claim that the jury's verdict should

control the trial court's decision on common factual issues may find support in the federal

law, it must be remembered that such support is derived from an entirely different right that

does not translate to Illinois law. Ultimately, as discussed in more detail below, plaintiffs'

argument remains unavailing.

Martin goes another step. In addition to holding that the Consumer Fraud Act

affords no right to a jury trial, it also holds that the legislature intended that an action under

the Consumer Fraud Act be tried without a jury. Martin, 163 Ill. 2d at 76. If plaintiffs'

position were granted and the jury's verdict controlled the disposition of common factual

issues, then plaintiffs would be receiving a de facto jury trial, at least as to the common

factual issues. This would violate the legislative intent behind the Consumer Fraud Act

(see Martin, 163 Ill. 2d at 76) and result in judicial legislation. We may not add language or

a provision to, or add exceptions, limitations, or conditions, or otherwise alter a statute so

as to depart from the plain meaning of the language employed in the statute. Hunter v.

Southworth Products Corp., 333 Ill. App. 3d 158, 164-65 (2002); Buckellew v. Board of

Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill. App.

3d 506, 511 (1991). The Consumer Fraud Act does not confer the right to a jury trial.

Allowing the jury's verdict to control would be to write into the Consumer Fraud Act the right

to a jury trial where there is an accompanying claim of common-law fraud. That we may

not do, and plaintiffs' argument must fail.

We next consider the specifics of plaintiffs' arguments in support of letting the jury's

verdict govern the trial court's judgment. We turn to the foundation of plaintiffs' contention--

that the doctrine of collateral estoppel binds the trial court to follow the jury's verdict.

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Plaintiffs argue that, where a jury claim exists along with a nonjury claim, the jury's factual

determination reflected in its verdict on issues common to both claims will be binding on the

trial court in rendering a decision on the nonjury claim. According to plaintiffs, trying the

claim to the jury collaterally estops the trial court from independently considering the

common factual issues, especially where the jury claim is resolved first. Plaintiffs contend

that here, because the jury reached a verdict upon which the trial court entered judgment

before the trial court ruled on their statutory claim, collateral estoppel should apply to

preclude the trial court's conflicting judgment. We disagree.

Collateral estoppel "is an equitable doctrine of judicial origin created to prevent

relitigation of previously adjudicated claims and is founded in principles of judicial

economy." Ballweg v. City of Springfield, 114 Ill. 2d 107, 113 (1986). The elements

necessary to the application of collateral estoppel are:

"(1) whether the issue decided in the prior adjudication is identical with the one

presented in the case in question; (2) whether there had been a final judgment on

the merits; and (3) whether the party against whom estoppel is asserted is a party or

in privity with a party to the prior adjudication." Ballweg, 114 Ill. 2d at 113.

Finality, for purposes of the application of collateral estoppel, requires that the "potential for

appellate review must have been exhausted." Ballweg, 114 Ill. 2d at 113.

Here, obviously, the jury's verdict is nonfinal because it is being reviewed on appeal.

Thus, for the purposes of establishing collateral estoppel, there is no final judgment on the

merits with respect to common-law fraud. Further, logically, because the doctrine is rooted

in the idea of preventing relitigation of a claim, the fact that the trial court is considering the

same evidence as the jury at the same time the jury is hearing it does not implicate the

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doctrine of collateral estoppel. Instead, the trial court is fulfilling its function as a concurrent

finder of fact, and only one litigation of the matter has occurred. Definitionally, therefore,

plaintiffs run into trouble because the trial court's judgment is certainly not a relitigation of

any of the issues; at most it is a reconsideration of the issues presented jointly to the trial

court and to the jury simultaneously. For these reasons, collateral estoppel is inapplicable

to the case at hand and cannot bind the trial court to follow the jury's factual determinations

on common factual issues.

In addition to the failure of collateral estoppel as a mechanism to overturn the trial

court's judgment on plaintiffs' statutory claim, plaintiffs' remaining arguments against the

trial court's judgment are also unpersuasive. Plaintiffs cite a number of cases, from federal

and state appellate courts, that they assert are supportive of their argument. We consider

first the federal authority.

It is well settled that federal decisions are not binding on Illinois state courts. Ardon

Electric Co. v. Winterset Construction, Inc., 354 Ill. App. 3d 28, 38 (2004). Despite the

nonbinding nature of federal decisions, they can be considered to be persuasive authority,

and they may be followed if the state court believes the federal analysis to be reasonable

and logical. Ardon Electric, 354 Ill. App. 3d at 38. We now turn to the four federal cases

specifically cited by plaintiffs.

Three of the cases cited by plaintiffs are unsatisfactory because they turn on the

particular holdings of the Seventh Circuit Court of Appeals (and indeed, the federal courts

in general) regarding the interaction between Title VII of the Civil Rights Act of 1964 (42

U.S.C. '2000a (1986)) and section 1981 of the Civil Rights Act of 1866 (42 U.S.C. '1981

(1986)). In McKnight v. General Motors Corp., 908 F.2d 104, 113 (7th Cir. 1990), the court

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held that the jury's factual findings on the plaintiff's section 1981 claim bound the trial court

to follow those findings on the plaintiff's Title VII claim. This holding, however, was

premised on the fact that "the rule that makes the jury's verdict on a section 1981 claim

dispositive of any common factual issues presented by the plaintiff's Title VII claim is well

established in this circuit." McKnight, 908 F.2d at 113. McKnight is distinguishable

because this case does not involve the "well established" rule promulgated in the Seventh

Circuit; moreover, it does not involve the legal-equitable interplay exemplified in section

1981 and Title VII claims. As a result, McKnight has very little persuasive force.

In Williamson v. Handy Button Machine Co., 817 F.2d 1290 (7th Cir. 1987), a similar

situation regarding the interplay between section 1981 and Title VII was addressed. The

court held that when legal and equitable actions are tried concurrently, the jury's verdict

governs the common factual issues. Williamson, 817 F.2d at 1293-94. The court grounded

its holding on the federal constitutional right to trial by jury. In order to make sure the right

to trial by jury remains uninfringed, the jury result in the legal action is allowed to control the

trial court's judgment in the equitable action. Williamson, 817 F.2d at 1293-94; see also

Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 934 (11th

Cir. 1983). This concern, however, does not translate to the Illinois courts. As noted

above, Martin, 163 Ill. 2d at 73, held that the Illinois constitutional right to a jury trial differed

from that under the federal constitution. But the issue here is not so much one of

vindicating the right to a jury trial as in Williamson, but fulfilling the legislative intent that a

consumer-fraud action be tried by the bench. Thus, while Williamson may be applicable to

a joint proceeding in which legal actions and equitable actions are tried together, it does not

have application where the statute at issue does not confer the right to a jury trial. Further,

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Williamson appears to follow the well established rule discussed in McKnight. For these

reasons, Williamson is distinguishable.

In the last of the section 1981 and Title VII cases, plaintiffs rely on Artis v. Hitachi

Zosen Clearing, Inc., 967 F.2d 1132, 1137 (7th Cir. 1992), for the proposition that the jury

result must bind the trial court on the bench result. Artis, however, like McKnight and

Williamson, follows the rule observed in the Seventh Circuit of allowing the jury result to

bind the trial court on common factual issues when section 1981 and Title VII claims are

tried simultaneously. Again, this holding is founded on the federal constitutional right to a

jury trial; the right in Illinois differs. Martin, 163 Ill. 2d at 73. The right to a jury trial is not at

issue here; rather, it is the converse, the lack of a right to a jury trial under the Consumer

Fraud Act, that is at issue here. Additionally, as noted in Artis, the holding is based on the

federal rule regarding legal-equitable issues tried jointly in general, and section 1981 and

Title VII claims tried jointly in particular, which is observed in the Seventh Circuit and is

therefore of limited value in the case at hand.

The fourth federal case, Florists' Nationwide Telephone Delivery Network v. Florists'

Telegraph Delivery Association, 371 F.2d 263, 270-71 (7th Cir. 1967), held that the jury trial

portion of a concurrent bench-jury trial must proceed first in order to preserve the party's

right to a jury trial. In reaching this conclusion, the court stated that "in such a case [of legal

and equitable matters together] a trial of either claim before the other raises a collateral

estoppel to the relitigation of those issues essential to the decision which are common to

both claims and are decided in connection with the claim tried first." Florists' Nationwide

Delivery, 371 F.2d at 270. Plaintiffs look to this statement in order to support their

argument. Florists' Nationwide Delivery is distinguishable, however, for two reasons. First,

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it illustrates the legal-equitable rule followed by the Seventh Circuit. As Florists' Nationwide

Delivery hews to this rule, it is inapplicable to the case at hand in which the right to a jury

has not been granted. Second, and more importantly, despite the reference to collateral

estoppel, the decision in Florists' Nationwide Delivery does not actually involve the rule of

collateral estoppel. This was recognized in McKnight: in dismissing the collateral estoppel

argument, the court stated that the general rule in which the jury's verdict binds the trial

court in a dual bench-jury trial "is sometimes described as an application of the principle of

collateral estoppel, but it is not, since there is no final judgment when the judge makes his

decision--just a jury verdict on which judgment has yet to be entered." McKnight, 908 F.2d

at 113; see also Ballweg, 114 Ill. 2d at 113 (finality for purposes of collateral estoppel not

achieved until appellate rights exhausted). Florists' Nationwide Delivery is distinguishable

and is unpersuasive. Having reviewed the federal authority upon which plaintiffs rely, we

find it to be distinguishable.

We next turn to the Illinois authority cited by plaintiffs in support of their argument

that the jury's factual findings on common issues must bind the trial court's determination in

a concurrent bench-jury trial. Plaintiffs cite to First National Bank of Hoffman Estates v.

Fabbrini, 255 Ill. App. 3d 99 (1993), for that proposition. Fabbrini, however, is

distinguishable. In Fabbrini, the defendants first filed an action against the plaintiff that

ended up in the law division of the circuit court. Fabbrini, 255 Ill. App. 3d at 100. The

plaintiff answered the defendants' complaint and filed a counterclaim in that action.

Fabbrini, 255 Ill. App. 3d at 100. Later, the plaintiff also filed a separate action, seeking to

foreclose the property at issue. Fabbrini, 255 Ill. App. 3d at 100. The defendants

answered the foreclosure complaint and filed an affirmative defense invoking the pendency

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of their action in the law division of the circuit court. Fabbrini, 255 Ill. App. 3d at 100-01.

Thereafter, the defendants moved to stay the foreclosure proceeding and the trial court

denied the motion leading to the interlocutory appeal of the denial of the motion to stay.

Fabbrini, 255 Ill. App. 3d at 101.

The appellate court held that the denial of the stay was erroneous because it would

have the effect of compromising the defendants' constitutional right to a jury trial. Fabbrini,

255 Ill. App. 3d at 102-03. Significant to its holding, the appellate court stated:

"[The plaintiff] argues that if it filed its foreclosure action as a counterclaim in the law

division action, it would suffer irreparable harm due to the length of time that would

elapse before trial. However true this argument may be, it pales in comparison to

the prejudice to the [defendants'] right to a jury trial if the foreclosure action

proceeded to judgment before the previously filed action between the parties

pending in the law division of the circuit court. The [defendants] have exercised their

constitutional right to a jury trial in the law division action. [Citation.] Because they

do not seek affirmative relief in the foreclosure action, the [defendants] are not

entitled to a jury trial as a matter of right. [Citation.] If judgment was entered in the

foreclosure action before the law division action, the court's determination of the

factual issues common to both actions would, by application of the doctrine of

collateral estoppel, be binding upon the [defendants] in the law division action, thus

depriving them of the right to have those common issues of fact determined by a

jury. The right to a jury trial is of constitutional origin and courts should be inclined

to protect and enforce the right. [Citation.] Because we believe that the issues of

fact common to the [plaintiff's] foreclosure action and its counterclaim in the law

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division action will determine the outcome in both actions, the [defendants'] right to

have these issues determined by a jury is far more compelling than the [plaintiff's]

interest in securing a speedier determination of its foreclosure action." Fabbrini, 255

Ill. App. 3d at 102.

In Fabbrini, therefore, the court was concerned about the order in which two independent

cases were resolved, because one, if resolved earlier than the other, could effectively

preclude the defendants' exercise of their constitutional right to a jury trial. Here, by

contrast, there is only a single action, tried simultaneously to a jury and to the bench.

There is no issue of a final judgment raising the specter of the operation of collateral

estoppel to deprive plaintiffs of their right to a jury trial. Moreover, the jury verdict was

entered first; the trial court's decision in the Consumer Fraud Act claim followed. There

was also, therefore, no concern that the bench trial result would somehow precede the jury

verdict and operate to preclude the trial court from allowing the jury result. In addition, as

noted above, plaintiffs had no right to have the jury consider their consumer-fraud claim.

This prohibition of the right to have the jury consider the claim, along with the other points

noted above, renders Fabbrini too procedurally inapposite to support plaintiffs' contention.

Plaintiffs also turn to Washington Courte, 267 Ill. App. 3d at 823-24, for the

proposition that a finding of liability for common-law fraud necessarily encompasses the

essential elements required to prove liability for a violation of the Consumer Fraud Act.

There, the plaintiff alleged claims of both common-law fraud and a violation of the

Consumer Fraud Act. Washington Courte, 267 Ill. App. 3d at 796. Following a trial, the

plaintiff prevailed on both claims, and the defendant appealed the sufficiency of the

evidence supporting both the jury's verdict on the common-law fraud claim and the trial

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court's judgment on the Consumer Fraud Act claim. Washington Courte, 267 Ill. App. 3d at

793-94. The appellate court, after carefully reviewing the evidence elicited at trial,

concluded that the jury's verdict on the common-law fraud claim was not against the

manifest weight of the evidence. Washington Courte, 267 Ill. App. 3d at 819. In affirming

the trial court's judgment on the claim under the Consumer Fraud Act, the appellate court

held that "a determination that a plaintiff has established a prima facie case of fraud under

the common-law is sufficient to warrant the conclusion that the same acts violate the

Consumer Fraud Act." Washington Courte, 267 Ill. App. 3d at 823-24.

The posture of the Washington Courte case is key to understanding its applicability

to this case. There, the appellate court was asked to review whether two findings of

liability, one for common-law fraud and one for a violation of the Consumer Fraud Act, were

against the manifest weight of the evidence. In determining that the jury's verdict on the

common-law fraud claim was not against the manifest weight of the evidence, the appellate

court necessarily answered the same question with respect to the Consumer Fraud Act

claim. Here, however, we are faced with a finding of liability for common-law fraud and a

judgment of nonliability under the Consumer Fraud Act. We are asked to hold that a finding

of liability for common-law fraud mandates a finding of a violation of the Consumer Fraud

Act. Washington Courte does not make such a broad claim and cannot be expanded to

encompass such a claim. Only where there are findings of liability as to both common-law

fraud and a violation of the Consumer Fraud Act will Washington Courte come into play to

govern the inquiry of whether the findings are against the manifest weight of the evidence.

Here, plaintiffs do not contend that the trial court's judgment was against the manifest

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weight of the evidence but, rather, that it was mandated by the jury's verdict. Washington

Courte, therefore, does not apply to this situation and does not support plaintiffs' argument.

Plaintiffs also rely on Aetna Screw Products Co. v. Borg, 116 Ill. App. 3d 206 (1983),

for the proposition that where there are factually related legal and equitable claims, the

legal claims must be resolved first by the jury before there is any judicial resolution of the

equitable claims. In other words, plaintiffs appear to suggest that the jury's determination

on a legal claim is binding on the trial court's determination on a factually related equitable

claim. We do not believe that this case involves a legal-equitable dichotomy; both the

common-law fraud claim and the claim under the Consumer Fraud Act involve monetary

damages and would best be viewed as legal claims. While no jury right attaches to the

claim under the Consumer Fraud Act, this alone does not make it an equitable claim.

Plaintiffs' reliance on Aetna Screw is flawed from its inception.

Notwithstanding the faulty reliance, Aetna Screw is also inapposite to this case.

There, the trial court determined that the doctrine of res judicata applied to related legal and

equitable claims such that the invocation of a counterclaim served to waive the defendant's

jury demand. Aetna Screw, 116 Ill. App. 3d at 214. The appellate court reversed, finding

that res judicata did not apply because the claims were not sufficiently related. Aetna

Screw, 116 Ill. App. 3d at 214. Thus, at most, Aetna Screw stands for the proposition that

res judicata could apply to related claims in a manner that would infringe on a party's right

to a jury trial. Here, however, that concern is not implicated, because plaintiffs received a

trial by jury on their claim for common-law fraud. Aetna Screw does not support plaintiffs'

position.

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Plaintiffs also cite to Howard T. Fisher & Associates, Inc. v. Shinner Realty Co., 24

Ill. App. 2d 216 (1960), for the same proposition as in Aetna Screw. For the reasons given

above, we find Howard T. Fisher to be inapposite as well. We also note that there res

judicata was applied to bar a later suit on the same issues. Here, by contrast, the same

factual issues were tried at the same time in a combined bench-jury proceeding and no

issue of res judicata arises.

We have reviewed the main sources used by plaintiffs to support their argument

regarding the inconsistency of the results between the bench trial and the jury trial. Our

review has demonstrated that the cases relied upon by plaintiffs are inapposite to and

unpersuasive of their claims that the jury's verdict must control the trial court's judgment.

Plaintiffs have failed to carry their burden of persuasion on this point.

Plaintiffs also argue that their right to a jury trial is infringed if the trial court on the

Consumer Fraud Act claim is not bound by the jury's determination on the common-law

fraud claim. This contention is backwards. There is no right to a jury trial in a proceeding

under the Consumer Fraud Act. Martin, 163 Ill. 2d at 76. Requiring the jury's verdict to

determine common issues of fact in the bench trial would render the bench trial a de facto

jury trial. Allowing each finder of fact to come to an independent determination preserves

plaintiffs' right to a trial by jury on their common-law fraud claim and preserves the statutory

scheme of the Consumer Fraud Act, which does not confer a right to a jury trial. Plaintiffs'

contention about the paramount right to a jury trial is unavailing.

Plaintiffs also argue that the jury's verdict on their common-law fraud claim provides

the requisite determinations on common issues of fact to satisfy plaintiffs' claim under the

Disclosure Act. Plaintiffs advance the same reasoning they employed in conjunction with

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the Consumer Fraud Act claim. For the same reasons set forth above in relation to the

Consumer Fraud Act, we reject plaintiffs' arguments pertaining to the preclusive effect of

the jury's verdict over the trial court's judgment on their Disclosure Act claim.

We note that, in the context of legal and equitable claims being presented for trial at

the same time, courts have observed that the independence of the two fact finders, the jury

and the bench, does not necessarily present a problem with the right to a jury trial.

International Financial Services Corp. v. Chromas Technologies Canada, Inc., 356 F.3d

731, 735 (7th Cir. 2004); Perdoni Brothers, Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 (1st

Cir. 1994); Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 n.4 (3d Cir. 1990);

Lincoln, 697 F.2d at 934. Indeed, inconsistent results between the two independent finders

of fact are expected in such a system. Perdoni, 35 F.3d at 5. The decision as to the

binding nature of one joint fact finder over the other, therefore, must be made in the context

of how the joint trial arises. In the federal cases immediately cited above, the right to a jury

trial was vindicated in all circumstances. (Those cases analyzed it as a legal-equitable

issue, and the fact that an action in equity was controlled by a jury result was of no concern

because advisory juries may be empaneled to hear matters in equity. See Hofferkamp v.

Brehm, 273 Ill. App. 3d 263, 270 (1995). Further, no right or statute is being infringed in a

purely legal-equitable environment.) Here, a common-law claim was heard jointly with a

statutory claim. To allow jury participation in the statutory claim would violate the dictates

of the statute. To bind one fact finder by the other's result would infringe on either the jury

right or the statutory scheme. Here, however, the trial court's refusal to be bound by the

jury's result vindicated both plaintiffs' right to a jury trial on the common-law fraud claim and

the statutory scheme in the consumer-fraud claim. Thus, in order to vindicate both the right

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to a jury trial and the statutory command, inconsistency between the fact finders must be

tolerated in this case.

To sum up, we affirm the judgment of the circuit court of Du Page County in matters

relating to the trial of the cause itself in case No. 2--05--1073. In other words, we find no

merit to the arguments presented on appeal or on cross-appeal. We reverse the trial

court's judgment in case No. 2--06--0036, and we remand with directions that the trial court

consider plaintiffs' petition for costs on its merits and noting that defendants are free to file

any pertinent objections thereto.

No. 2--05--1073, Affirmed.

No. 2--06--0036, Reversed and remanded with directions.

BYRNE and CALLUM, JJ., concur.

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