text:
    ANEKOM, INC., an Illinois corporation, Plaintiff, v. ESTATE OF Richard A. DEMITH, Maywood-Proviso State Bank, as Trustee Under Trust Agreement dated 3/14/73 and known as Trust No. 3155, Joette LaValley, Individually, and as Independent Executor of the Estate of Richard A. Demith, E Trinity Construction, LLC, and Carpentry By Connor Construction, INC., Defendants.
    Carpentry by Connor Construction, Inc., and E Trinity Construction, LLC, Defendants and Counterplaintiffs-Appellees, v. Estate of Richard A. Demith, Joette LaValley, as Independent Executor of the Estate of Richard A. Demith, Defendants and Counterdefendants-Appellants.
    Appeal No. 3-16-0554
    Appellate Court of Illinois, Third District.
    Opinion filed March 28, 2018
    J. Mark Lukanich, of Palos Heights, for appellants.
    Scott M. Hoster, of Castle Law, of Joliet, for appellees.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 The Estate of Richard A. Demith (Estate) appeals the trial court's orders granting summary judgment to Carpentry by Connor Construction, Inc. (Connor), and E Trinity Construction, LLC (E Trinity), on their respective complaints to foreclose their mechanic's liens. We affirm.

¶ 2 FACTS

¶ 3 I. The Parties

¶ 4 Anekom is a general contractor. Connor and E Trinity are subcontractors. The Estate is the owner of the subject property located in Mokena, Illinois. Joette LaValley is the independent executor of the Estate. Connor and E Trinity contracted with Anekom to complete work on the Estate's property. Anekom is not a party to this appeal.

¶ 5 II. The Original Contract and the Parties' Performance

¶ 6 On May 11, 2013, Anekom entered into a contract with LaValley, in her capacity as independent executor of the Estate, to demolish the Estate's fire-damaged structure and construct a new house in its place. Pursuant to the contract, Anekom agreed to complete the work within 180 days according to the plans and specifications provided by the Estate in exchange for payment of $414,000.

¶ 7 On May 16, 2013, Anekom subcontracted with E Trinity to install footings, basement floor base, and a garage floor. E Trinity completed its work under the subcontract on September 12, 2013.

¶ 8 On September 21, 2013, Anekom subcontracted with Connor for carpentry work. Connor completed its work under the subcontract on October 21, 2013.

¶ 9 On October 28, 2013, the Estate terminated the contract with Anekom after it determined the construction of the new house was not on schedule to be completed within the contractual 180-day term.

¶ 10 On April 29, 2014, the Estate entered into a contract with a second general contractor, Peak Construction and Remodeling, Inc. (Peak). The contract provided that "Peak Construction & Remodeling will be taking over and completing the LaValley residence" for a total cost of $280,633.

¶ 11 III. Claims for Mechanic's Liens

¶ 12 On November 22, 2013, Connor filed a notice and claim for mechanic's lien against Anekom and LaValley, in her capacity as independent executor of the Estate, in the amount of $63,500. On November 27, 2013, E Trinity filed a notice and claim for mechanic's lien against the Estate and Anekom in the amount of $38,070. On January 14, 2014, Anekom filed an original contractor's claim for lien against Maywood-Proviso State Bank as trustee, the Estate, and LaValley in her capacity as independent executor of the Estate.

¶ 13 IV. Anekom's Complaints

¶ 14 On April 8, 2014, Anekom filed a six-count complaint in the circuit court of Will County. In July 2014, Anekom filed an amended complaint, adding E Trinity and Connor as defendants. Counts I, II, and III sought to foreclose its lien against Maywood-Proviso State Bank, the Estate, and LaValley, in her capacity as independent executor of the Estate. Anekom alleged it had "completely performed its obligations under the contract until October 27, 2013, at which time Joette LaValley denied Anekom access to the job and prevented it from completing its work." Anekom asserted that the value of services it performed totaled $179,790 of which $109,000 remained due. Anekom further alleged that it gave notice of its lien on January 14, 2014, and that its lien claim superseded any subsequent liens. Count IV alleged breach of contract against LaValley, individually, and in her capacity as independent executor of the Estate. Count VI advanced a quantum meruit claim. The trial court eventually dismissed Anekom's claims with prejudice for failure to appear.

¶ 15 V. Counterclaims of Connor and E Trinity

¶ 16 In September and November 2014, Connor and E Trinity filed their respective answers to Anekom's amended complaint. They also filed counterclaims against Anekom and the Estate. Connor and E Trinity (1) sought to foreclose their respective mechanic's lien (count I), (2) alleged breach of contract against Anekom (count II), and (3) sought relief from Anekom and the Estate under section 28 of the Mechanics Lien Act (Act) ( 770 ILCS 60/28 (West 2012) ) (count III). Specifically, Connor alleged it entered into a contract with Anekom on September 21, 2013, to perform carpentry work; by the time Connor completed its obligations under the contract on October 21, 2013, it provided labor and materials totaling $63,500 that neither Anekom nor the Estate paid. Similarly, E Trinity alleged it entered into a contract with Anekom on May 16, 2013, to perform concrete work; it provided labor and materials totaling $38,070.10 that neither Anekom nor the Estate paid.

¶ 17 VI. The Estate's Counterclaim

¶ 18 On September 10, 2015, the Estate filed a counterclaim against Anekom, alleging breach of contract and damages "in an amount to be established at trial." The counterclaim alleged, in part, that Anekom "failed to diligently prosecute the work in a timely manner and in accordance with the schedule agreed by the parties." The Estate further alleged that Anekom "failed to perform its work in a reasonably workmanlike manner and in accordance with the plans and specifications, including, but not limited to" failure to (1) properly pour foundation walls, (2) install proper ceiling joists, (3) install hurricane clips and exterior fasteners, (4) properly construct bathroom pocket doors, and (5) construct the dining room archway as specified by the plans. The Estate also sought indemnification from Anekom for E Trinity's and/or Connor's lien claims.

¶ 19 VII. Connor's Motion for Summary Judgment

¶ 20 On October 15, 2015, Connor filed a motion for summary judgment on its claim to foreclose its mechanic's lien. In support of its motion, Connor attached the affidavit of its president, Nicholas Connor, which essentially repeated the counterclaim's allegations. Connor asserted that it sent a 90-day notice of lien to all interested parties and recorded the mechanic's lien within four months of completing its work. Connor maintained that it complied with all procedural requirements of the Act and was entitled to judgment on its lien claim as a matter of law.

¶ 21 The Estate responded that summary judgment was inappropriate because (1) it could not be compelled to pay more for the completion of the residence than the amount of its original contract with Anekom and (2) an issue of fact existed as to the value of Connor's work.

¶ 22 Following a January 13, 2016, hearing, the trial court granted Connor's motion for summary judgment and awarded damages in the amount of $78,131.09, plus court costs. The court subsequently denied the Estate's motion for reconsideration.

¶ 23 VIII. E Trinity's Motion for Summary Judgment

¶ 24 On January 28, 2016, E Trinity filed a motion for summary judgment on its claim to foreclose its mechanic's lien. In support of its motion, E Trinity attached the affidavit of its president, John Flaherty, which essentially repeated the counterclaim's allegations. E Trinity asserted that it sent a 90-day notice of lien to all interested parties and recorded a mechanic's lien within four months of completing its work. E Trinity maintained it complied with all procedural requirements of the Act and was entitled to judgment on its lien claim as a matter of law.

¶ 25 The Estate responded that summary judgment was inappropriate because E Trinity failed to establish compliance with the notice requirements of section 24 of the Act (Id. § 24). The Estate also took issue with the quality of E Trinity's work.

¶ 26 In May 2016, without argument, the trial court granted E Trinity's motion for summary judgment and awarded damages in the amount of $38,070, plus statutory interest.

¶ 27 IX. Default Judgment Against Anekom

¶ 28 In February 2016, the trial court entered a default judgment against Anekom. At an April 2016 prove-up hearing, the Estate sought a judgment of $144,834.20, plus costs. The damages included the amounts of Connor's and E Trinity's lien claims. The court entered judgment against Anekom on the Estate's breach of contract claim in the amount of $144,834.20, plus costs.

¶ 29 X. Subsequent Judgments in Favor of Connor and E Trinity

¶ 30 In August 2016, Connor and E Trinity filed a motion for judgment asking the trial court to enter judgment in their favor on counts II and III of their respective counterclaims. The trial court granted their motions.

¶ 31 This appeal followed.

¶ 32 ANALYSIS

¶ 33 On appeal, the Estate challenges the trial court's grants of summary judgment in favor of Connor and E Trinity. The Estate further contends that the personal judgments entered against it must be reversed because an issue of fact exists as to Connor's and E Trinity's pro rata shares of money due from Anekom.

¶ 34 When this court examined the record in this case, a question arose as to whether the Estate should be precluded from defending Connor's and E Trinity's lien claims since the Estate's judgment against Anekom includes the amount of the lien claims. At oral arguments, we ordered the parties to file supplemental briefs to address this issue. For the following reasons, we find that the Estate is precluded from defending the lien claims at issue. Accordingly, we do not reach the merits of the Estate's contentions on appeal.

¶ 35 In their supplemental briefs, the parties address whether the election of remedies doctrine precludes the Estate from defending against Connor's and E Trinity's mechanic's liens. The election of remedies doctrine precludes a party from pursuing two or more inconsistent remedies for the same injury or cause of action. Lempa v. Finkel , 278 Ill. App. 3d 417, 423, 215 Ill.Dec. 408, 663 N.E.2d 158 (1996) ; Altom v. Hawes , 63 Ill. App. 3d 659, 661, 20 Ill.Dec. 330, 380 N.E.2d 7 (1978). "For one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other." (Internal quotation marks omitted.) Hawes , 63 Ill. App. 3d at 661-62, 20 Ill.Dec. 330, 380 N.E.2d 7. The doctrine's application is generally confined to cases "where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res adjudicata can be applied." (Internal quotation marks omitted.) Id. at 664, 20 Ill.Dec. 330, 380 N.E.2d 7.

¶ 36 On appeal, the Estate asserts the doctrine does not apply because its judgment against Anekom is not inconsistent with its defenses to Connor's and E Trinity's lien claims. Alternatively, the Estate argues no threat of double recovery exists. Connor and E Trinity counter that the threat of double recovery is apparent.

¶ 37 We reject the Estate's contention that its breach of contract claim against Anekom, and the defenses raised regarding Connor's and E Trinity's lien claims, are not inconsistent. After obtaining a default judgment against Anekom for breach of contract, the Estate reduced the judgment to writing following a prove-up hearing in which it sought-and received-damages in the amount of $144,834.20. This award included the amounts of Connor's and E Trinity's lien claims. The record shows that the Estate suffered only one injury here, i.e. , damages in the amount of $144,834.20. Thus, the remedies pursued by the Estate are clearly inconsistent and irreconcilable. As explained further below, the Estate may not obtain a judgment for damages against Anekom, which includes the amounts of the lien claims at issue here, then turn around and contend that the lien claims are invalid.

¶ 38 The Estate also argues that even if we find the remedies inconsistent, its defenses against the lien claims are not barred because (1) double recovery is not implicated, (2) Connor and E Trinity did not change their positions based on the judgment obtained by the Estate against Anekom, and (3) res judicata does not apply.

¶ 39 We agree with the Estate to the extent that neither Connor nor E Trinity changed their positions based on the judgment against Anekom. We also agree that res judicata does not apply. However, based on our review of the record, we conclude that the threat of double recovery in this case is apparent.

¶ 40 On the narrow issue of double recovery, both parties direct our attention to Hawes . In that case, pursuant to a separation agreement, the plaintiff procured exclusive possession of certain furniture in the marital home. Hawes , 63 Ill. App. 3d at 660, 20 Ill.Dec. 330, 380 N.E.2d 7. The plaintiff's estranged husband sold some of that furniture to a family friend for $1500 in violation of the agreement. The trial court subsequently entered judgment against the husband in the amount of $1500 for the value of the furniture. Id. at 661, 20 Ill.Dec. 330, 380 N.E.2d 7. Approximately one month later, the plaintiff filed a complaint in replevin against the defendants, the family friend and his wife, seeking to recover the furniture. Id. at 660, 20 Ill.Dec. 330, 380 N.E.2d 7. The defendants filed a motion for summary judgment, which the court granted. Id. at 661, 20 Ill.Dec. 330, 380 N.E.2d 7.

¶ 41 On appeal, the issue was whether the election of remedies doctrine precluded the plaintiff from recovering the furniture from the defendants. Id. While the Hawes court found that plaintiff pursued inconsistent remedies, it noted that in an effort to ameliorate the harsh results which often flow from a strict interpretation of the doctrine, Illinois courts "endeavor to determine not whether by the nature of the remedies invoked they are inconsistent, but whether the party should be estopped to bring the second action." Id. at 662, 20 Ill.Dec. 330, 380 N.E.2d 7. With that in mind, the court found that the record revealed no threat of double recovery because the plaintiff's $1500 judgment appeared to be uncollectible. Id. at 663, 20 Ill.Dec. 330, 380 N.E.2d 7.

¶ 42 In this case, nothing in the record convinces us that the Estate's judgment against Anekom is uncollectible. Although there is evidence that Anekom dissolved in 2014, its dissolution does not necessarily imply that the judgment is uncollectible; actions may be brought against corporations after their dissolution. See 805 ILCS 5/12.80 (West 2014) ("The dissolution of a corporation * * * shall not take away nor impair any civil remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability accrued or incurred, either prior to, at the time of, or after such dissolution if action or other proceeding thereon is commenced within five years after the date of such dissolution."). The Estate's contention that it is "extremely unlikely" it will be able to collect the judgment against Anekom is pure speculation. The Estate offers no evidence whatsoever that it attempted to collect the judgment. Ultimately, if the Estate prevails on its defenses to the mechanic's liens at issue, it could collect the full judgment against Anekom and avoid paying the subcontractors for the value of the work completed on the Estate's home.

¶ 43 The Estate cites Gluth Brothers Construction, Inc. v. Union National Bank , 192 Ill. App. 3d 649, 139 Ill.Dec. 650, 548 N.E.2d 1364 (1989), in support of its contention that the threat of double recovery is not implicated here "because Anekom would have the right to set off from the Estate's judgment that amount of the Connor and [E Trinity] judgments the Estate was not required to pay." We find the Estate's reliance on Gluth is misplaced.

¶ 44 In Gluth , the plaintiffs obtained a judgment against the defendant bank after the bank improperly set off $195,609.56 in funds deposited by its joint venture with Valley Engineering Company (Valley) in order to satisfy a debt that Valley owed the bank. Id. at 651, 139 Ill.Dec. 650, 548 N.E.2d 1364 ; see also Gluth Brothers Construction, Inc. v. Union National Bank , 166 Ill. App. 3d 18, 20, 116 Ill.Dec. 365, 518 N.E.2d 1345 (1988). Sometime thereafter, Valley filed for bankruptcy; the bankruptcy court distributed more than $180,000 to the plaintiffs as Valley's creditors. Gluth , 192 Ill. App. 3d at 652, 139 Ill.Dec. 650, 548 N.E.2d 1364. At that point, the bank sought a set off based on the bankruptcy distribution the plaintiff's received. Id. The bank argued that a set off would prevent the plaintiffs from receiving a double recovery. Id. at 658, 139 Ill.Dec. 650, 548 N.E.2d 1364. It asserted that if the plaintiffs were permitted to retain the money from the bankruptcy proceeding in addition to the judgment entered against the bank, plaintiffs would receive "a double recovery from the same alleged injury." Id. The appellate court agreed that a double recovery should not be allowed and remanded to the trial court to consider whether a set off was in fact required. Id. The appellate court noted that if the recoveries in both proceedings arose from the same claim, the trial court should award the bank a set off to avoid a double recovery. Id. at 659, 139 Ill.Dec. 650, 548 N.E.2d 1364. Essentially, the Gluth court held that a judgment may be reduced to avoid a double recovery only after a payment is received from the alternate source.

¶ 45 Here, the Estate attempts to compare Anekom to the bank in Gluth by asserting that Anekom can obtain a set off from the Estate's judgment against it in the event the Estate successfully defends the lien claims at issue here. However, whether Anekom may ultimately be entitled to some kind of set off in the event the Estate prevails against the lien claims at issue is irrelevant to this appeal. The Estate chose its remedy when it included the amount of the lien claims in its request for damages against Anekom. As it stands, the Estate could potentially collect its judgment against Anekom tomorrow and, if successful here, also avoid paying the lien claims. Thus, we find that the Estate is precluded from defending the lien claims under the election of remedies doctrine.

¶ 46 Similarly, we find that the doctrine of judicial estoppel also precludes the Estate from defending the lien claims at issue. "Judicial estoppel is an equitable doctrine invoked by the court at its discretion." Seymour v. Collins , 2015 IL 118432, ¶ 36, 396 Ill.Dec. 135, 39 N.E.3d 961. The United States Supreme Court has observed that "the uniformly recognized purpose of the doctrine is to protect the integrity of the judicial process by prohibiting parties from 'deliberately changing positions' according to the exigencies of the moment." Id. (quoting New Hampshire v. Maine , 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ). Judicial estoppel may be invoked when the party to be estopped has "(1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it." Id. ¶ 37.

¶ 47 The facts of this case meet all the prerequisites for judicial estoppel. In its breach of contract action against Anekom, the Estate alleged its damages amounted to $144,834.20, which included the amounts of the lien claims at issue here. The Estate succeeded in its breach of contract action by obtaining a judgment against Anekom for the total amount of damages it sought. Now, the Estate attempts to change its position and assert it is not liable to Connor or E Trinity for their lien claims despite having obtained a judgment that includes them. The doctrine of judicial estoppel is designed to protect against this exact situation.

¶ 48 Accordingly, we find that the Estate is precluded from defending Connor's and E Trinity's lien claims.

¶ 49 CONCLUSION

¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 51 Affirmed.

Justices McDade and Wright concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Hollace BARTKOWIAK, Plaintiff-Appellant, v. The CITY OF AURORA, Defendant-Appellee.
    No. 2-17-0406
    Appellate Court of Illinois, Second District.
    Opinion filed March 30, 2018 Rehearing denied April 27, 2018
    Eric Jones, of Tarpey, Jones & Schroeder, LLC, and David R. Nordwall, both of Chicago, for appellant.
    Jennifer L. Turiello, Dominick L. Lanzito, and Thomas J. Condon Jr., of Peterson, Johnson & Murray-Chicago, LLC, of Chicago, for appellee.
   JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Hollace Bartkowiak, brought a negligence action against defendant, the City of Aurora, for injuries that she alleged were caused by a depression located in an asphalt parking lot of the Route 59 Metra train station. The jury rendered a verdict in favor of plaintiff but answered yes to a special interrogatory that asked if the depression had "a vertical difference of 1.5 inches or less." The trial court entered judgment for defendant, finding that the special interrogatory was inconsistent with the general verdict. In its denial of plaintiff's motion to reconsider, the court determined that the special interrogatory resolved the factual question of whether the depression was de minimis and that, because it was de minimis and there were no aggravating factors that could render it actionable, defendant, as a matter of law, owed no duty to guard against hazards created by the depression. Plaintiff contends that the special interrogatory should not have been given, as it was not determinative of an ultimate fact, and that the answer was not irreconcilable with the general verdict. Both issues turn on plaintiff's argument that, even if the depth of the depression was 1.5 inches or less, aggravating factors presented a question of fact as to whether it posed an unreasonable risk. We agree and thus we reverse the trial court's judgment and remand the cause with directions to reinstate the verdict.

¶ 2 I. FACTS

¶ 3 At approximately 5:20 p.m. on December 6, 2011, plaintiff was walking to her parked car in the parking lot of the Route 59 Metra train station, which was owned, managed, controlled, and maintained by defendant, when plaintiff fell. She had caught her toe in a depression located in a pavement seam in a driving aisle as she crossed the aisle to get to her car. Plaintiff suffered a fractured humerus and underwent four surgeries, including a total reverse shoulder replacement, followed by multiple courses of physical therapy.

¶ 4 Plaintiff sued defendant for the injuries she sustained as a result of the fall. She alleged that defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended that defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein.

¶ 5 Defendant denied the material allegations and raised the affirmative defenses of contributory negligence and immunity under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/3-102 (West 2010) ).

¶ 6 Following discovery, defendant filed a motion for summary judgment under section 3-102 of the Tort Immunity Act. Defendant argued that plaintiff failed to establish that defendant had actual or constructive notice of the depression in which she tripped. Defendant also argued that the depression was de minimis . Plaintiff responded that the de minimis rule was inapplicable because she testified during her deposition that she believed that the depression was four inches deep. Plaintiff reiterated her allegation that the parking lot's artificial lighting was insufficient to allow her to spot the depression and avoid her accident. She further argued that at the time of the accident her attention was diverted by pedestrian and vehicular traffic in the parking lot such that the distraction exception to the open-and-obvious doctrine applied.

¶ 7 The trial court denied the motion, finding that a question of material fact existed as to whether the depression was de minimis , based upon plaintiff's deposition testimony that the depression was four inches deep. The court also rejected defendant's open-and-obvious defense, finding a material factual dispute based on plaintiff's deposition testimony regarding the purported insufficiency of the artificial lighting in defendant's parking lot.

¶ 8 After discovery of expert witnesses, defendant filed a motion to reconsider the order denying summary judgment. Defendant noted that plaintiff's and defendant's experts agreed that the lighting in the parking lot was sufficient when the accident occurred and that the depression was de minimis .

¶ 9 Plaintiff maintained that summary judgment was not warranted, due to conflicting testimony about both the depth of the depression and the sufficiency of the lighting. Plaintiff argued that her expert's testimony about the depth of the depression and the sufficiency of the lighting did not defeat her contrary attestations that the depression had a vertical depth of four inches and that the parking lot was inadequately illuminated. Notwithstanding her expert's opinion that the depression appeared shallow, plaintiff noted that he also had opined that the depression constituted an unreasonably dangerous condition.

¶ 10 Plaintiff further argued that, even accepting her expert's testimony that the depression appeared to be 1.5 inches deep, aggravating factors rendered the de minimis rule inapplicable. Plaintiff noted the extremely high volume of pedestrians and that defendant knew about the deteriorated condition of the pavement seam, having previously repaired other openings, cracks, and depressions along the seam.

¶ 11 The trial court granted in part and denied in part the motion to reconsider. The court found that the sufficiency of lighting in a commercial or public setting was a subject requiring expert testimony. Thus, based upon the expert testimony, the court found that no genuine issue of material fact existed as to the adequacy of the lighting in the parking lot and it awarded defendant summary judgment on that issue. As to the depression, defendant argued that it was either de minimis or open and obvious and therefore not actionable. The court found that plaintiff's estimation of the depth of the depression as four inches created a question of fact "as to whether the [depression was] de minimis ." "Similarly, as there is a disagreement as to the physical nature of the condition, summary judgment cannot be entered on the open and obvious issue either."

¶ 12 Thereafter, the trial commenced and the following evidence was presented. The parking lot had approximately 1600 parking spaces and would become congested with people during the evening rush hour. Plaintiff had been using the train to commute to work and had been parking in the lot for more than two years. The lot had only two vehicle exits, which created a bottleneck during the rush hour. Some of the commuters exiting the trains during the rush hour frequently ran to their cars so that they could exit the parking lot quickly.

¶ 13 Defendant had employees who worked at the Route 59 train station, and their duties included inspecting the parking lot for depressions and filling them in with a cold patch compound as needed. The area where plaintiff fell was inspected daily by defendant's employees.

¶ 14 The parking lot included a long line of patchwork down the length of the driving aisle where plaintiff fell. This line of patchwork had existed for years prior to plaintiff's accident and was one of the areas that defendant's employees checked daily.

¶ 15 On the day of the accident, plaintiff's train arrived at the station around 5:20 p.m., during the evening rush hour. It was dark outside and the pavement was dry. The temperature was around 40 degrees, and it was not snowing or raining. Plaintiff exited the train and walked down two flights of stairs separated by a landing and entered an underground pedestrian tunnel to access the south lot where her car was parked. Plaintiff took the most direct route to her car, walking between parked cars as opposed to walking on the sidewalk. Plaintiff walked at a normal pace. Plaintiff testified that the parking lot was a "total madhouse" at the time of the accident. People were running to their cars in an effort to exit the parking lot quickly and avoid waiting in long lines. Because of this, plaintiff had to pay attention to everything that was going on around her.

¶ 16 As plaintiff approached the driving aisle where she fell, plaintiff had to wait for a car to pass and then she had to make sure that there were no other commuters who would run into her. She was standing between parked cars, waiting to cross the driving aisle, which was a two-lane aisle. She had to walk the full width of the driving aisle to get to her car. As she began to walk across the driving aisle, looking forward to see if there was anything that she might run into, the entire front end of her right foot fell into a hole in the patchwork seam. Her body stopped dead and she fell forward. Plaintiff put her arms out in front of her, and her left arm collapsed as her elbow hit the pavement. Plaintiff called the depression a "hole" and testified that her foot got "stuck." Speaking in terms of the specifics of the fall, her counsel asked: "You said your toe got caught?" Plaintiff replied: "My whole toe went in it and it literally stopped me dead." Plaintiff remained on the ground until an ambulance arrived. As she was on the ground, plaintiff canvassed the area and saw the depression.

¶ 17 Several photographs of the parking lot were introduced into evidence. One depicted a long black line of patchwork that ran down the driving aisle where plaintiff fell. A close-up photograph showed the depression, which plaintiff testified "roughly" appeared to be in the same condition as it was when she fell. Plaintiff estimated that the depth of the depression was approximately four inches, but she admitted that she never took any measurements of it.

¶ 18 Defendant's employees assigned to inspect the parking lot admitted that, if they came across a depression like the one depicted in the close-up photograph, it would be patched or otherwise repaired. George Silva, defendant's morning foreman at the parking lot, testified that, if he encountered the depression depicted in that photograph, he would apply the cold patch compound to it. Silva explained that he would do so for safety reasons, to prevent people from getting their feet caught in the depression and injuring themselves. George Wells, defendant's evening foreman at the parking lot, testified that the depression shown was a potential tripping hazard and that he would apply cold patch to it. Ben Moon, defendant's labor supervisor, testified that he periodically inspected the parking lot, looking for depressions, holes, and other tripping hazards. He stated that the depression shown needed cold patch or tar sealant.

¶ 19 Plaintiff's expert witness, John Van Ostrand, and defendant's expert witness, Paul Dorothy, testified that the depression depicted was at least 1.5 inches deep.

¶ 20 During the jury-instruction conference, defendant tendered the following special interrogatory:

"Did the condition that Plaintiff claims to have caused her injuries have a vertical difference of 1.5 inches or less?"

¶ 21 Plaintiff's counsel objected that this special interrogatory did not test the general verdict. In particular, counsel noted the aggravating circumstances that plaintiff's accident happened in an extremely high-volume pedestrian area where commuters were known to dart to their cars. Counsel also noted that defendant's employees responsible for maintaining the lot testified at trial that the depression, as it appeared in plaintiff's photograph, was a tripping hazard. Thus, counsel argued that the jury could determine that the depression was 1.5 inches or less deep, but still find that it was an unreasonably dangerous condition for which defendant should be held liable. The trial court disagreed and allowed the special interrogatory, noting:

"The case law on this has been around for 25, 30 years, and the cases dealing with this we've discussed on the motions for summary judgment, the [ Birck v. City of Quincy , 241 Ill. App. 3d 119, 181 Ill.Dec. 669, 608 N.E.2d 920 (1993) ], case and the others, so I'm well aware of the case law.
What the case law indicates is that certain heights-it's not that * * * that defect doesn't present a tripping hazard, it's that it's not actionable, and those are two different things. And it's not actionable because what they've decided is that in Illinois, because of the weather we have, it is not reasonable to place a duty on a municipality or a property owner to protect against differences in heights of less than certain heights. Most of the case law comes down under two inches.
In this particular case, what I had indicated to you based upon all the testimony that was presented at summary judgment, which is similar, or actually the same as the testimony that's been adduced here at trial, I indicated the only reason I didn't grant summary judgment was because [plaintiff] estimated the difference of height at four inches, which would take it well beyond the realm of the De Minimis Rule."

¶ 22 The jury returned a verdict in plaintiff's favor in the amount of $920,000, reduced by 50% to $460,000 for plaintiff's contributory negligence. The jury also answered yes to the special interrogatory. The trial court found this response to be inconsistent with the general verdict in plaintiff's favor, determined that the depression was de minimis and not actionable as a matter of law, and entered judgment in defendant's favor. Plaintiff filed a posttrial motion seeking to reinstate the general verdict. The trial court issued a memorandum of opinion, explaining as follows:

"The law of this case was determined at the time of Defendant's Motion for Summary Judgment when this Court ruled that those additional factors did not exist and that the only reason Summary Judgment was not granted was a factual dispute as to the size of the alleged defect. Specifically Plaintiff estimated the depth of the defect as being greater than four inches while experts on both sides estimated the depth at around 1.5 inches or less.
The other factors which could render an otherwise slight defect actionable were not found here. Plaintiff testified she was walking between parked cars and then crossing a driving lane taking a direct route to her car when she encountered the defect. She was clearly not walking on a crosswalk or path designated by the landowner. But for the factual dispute as to the size of the alleged defect, no duty would exist.
There is no standard jury instruction or IPI definition of de minimis . The reason is simple. It involves a duty question to be resolved by the court. Consequently the use of the special interrogatory resolved the factual question (the province of the jury) and thereby allowed the court to determine the duty question which ultimately tested the jury's verdict. This was a proper way to resolve the fact question, and once resolved, to allow the court to find that no duty existed. Without the jury's determination of the fact question, the duty question could never be resolved. Consequently Plaintiff's motion is denied." (Emphasis in original.)

¶ 23 Plaintiff timely appeals.

¶ 24 II. ANALYSIS

¶ 25 Plaintiff argues on appeal that the trial court erred in giving the special interrogatory. "A special interrogatory tests the general verdict against the jury's determination as to one or more specific issues of ultimate fact." Simmons v. Garces , 198 Ill. 2d 541, 555, 261 Ill.Dec. 471, 763 N.E.2d 720 (2002). It is proper only if (1) it relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer thereto is inconsistent with some general verdict that might be returned. Id. A trial court's decision on whether to give a special interrogatory is a question of law, which this court reviews de novo . 735 ILCS 5/2-1108 (West 2016) ; see also Garcia v. Seneca Nursing Home , 2011 IL App (1st) 103085, ¶ 35, 353 Ill.Dec. 877, 956 N.E.2d 1005.

¶ 26 Again, defendant asked the trial court to give the following special interrogatory: "Did the condition that Plaintiff claims to have caused her injuries have a vertical difference of 1.5 inches or less?" Defendant claimed at trial and claims on appeal that its duty of care does not extend to repairing a de minimis defect.

¶ 27 Under the de minimis rule, "[i]f a defect is such that a reasonably prudent person would not anticipate some danger to persons walking upon it, it is considered de minimis and is not actionable." Morris v. Ingersoll Cutting Tool Co. , 2013 IL App (2d) 120760, ¶ 12, 376 Ill.Dec. 712, 1 N.E.3d 45. As this court has explained, the de minimis rule originated in cases involving municipalities, "where it was noted that '[m]unicipalities do not have a duty to keep all sidewalks in perfect condition at all times.' " St. Martin v. First Hospitality Group, Inc. , 2014 IL App (2d) 130505, ¶ 13, 381 Ill.Dec. 102, 9 N.E.3d 1221 (quoting Gillock v. City of Springfield , 268 Ill. App. 3d 455, 457, 206 Ill.Dec. 63, 644 N.E.2d 831 (1994) ). "Thus, although a municipality has a duty to keep its property in a reasonably safe condition, it has no duty to repair de minimis defects in its sidewalks." St. Martin , 2014 IL App (2d) 130505, ¶ 13, 381 Ill.Dec. 102, 9 N.E.3d 1221. "This rule stems largely from the recognition that placing such a duty on a municipality would create an intolerable economic burden." Putman v. Village of Bensenville , 337 Ill. App. 3d 197, 202, 271 Ill.Dec. 945, 786 N.E.2d 203 (2003).

¶ 28 "While courts are in marked disagreements as to when the sidewalk irregularity or defect is so slight that the question is one of law, and where it is one of fact for the jury, nevertheless, the decisions recognize that no mathematical standard can be adopted in fixing the line of demarcation, and that each case must be determined upon its own particular facts and circumstances." Arvidson v. City of Elmhurst , 11 Ill. 2d 601, 604, 145 N.E.2d 105 (1957). Illinois courts have found, however, that "liability generally attaches for sidewalk defects approaching two inches in height." Morris , 2013 IL App (2d) 120760, ¶ 13, 376 Ill.Dec. 712, 1 N.E.3d 45 (citing Birck , 241 Ill. App. 3d at 121, 181 Ill.Dec. 669, 608 N.E.2d 920 ). "The de minimis rule generally precludes negligence claims on lesser defects, absent aggravating circumstances ." (Emphasis added.) Morris , 2013 IL App (2d) 120760, ¶ 13, 376 Ill.Dec. 712, 1 N.E.3d 45.

¶ 29 As an initial matter, defendant asserts that plaintiff forfeited her argument. Specifically, defendant notes that plaintiff suggests that, "[i]f the City of Aurora desired a special interrogatory that addressed the de minimis rule, it could have asked the jury if the defect was so minimal that no reasonable person would foresee that it created a danger." Because plaintiff made no such suggestion to the trial court during the jury-instruction conference, defendant concludes that she forfeited any contention of error regarding the special interrogatory. We disagree. Plaintiff expressly objected to defendant's special interrogatory at the jury-instruction conference. She renewed her objection in her posttrial motion. This was sufficient to preserve her argument that the interrogatory was improper. See Lancaster v. Jeffrey Galion, Inc. , 77 Ill. App. 3d 819, 822, 33 Ill.Dec. 259, 396 N.E.2d 648 (1979). Plaintiff presents this alternative language merely to show what might be a proper special interrogatory on the de minimis rule. She does not argue that it should have been given.

¶ 30 Plaintiff presents two contentions in support of her argument that defendant's special interrogatory should not have been given to the jury. She contends that the special interrogatory was not determinative of an ultimate issue of fact upon which the rights of the parties depended. Plaintiff also contends that the answer to the special interrogatory was not inconsistent with the general verdict. These issues turn on plaintiff's argument that, regardless of the depth of the depression, aggravating factors made the depression an unreasonable risk.

¶ 31 Defendant responds that the special interrogatory was determinative of an ultimate question and that the answer to the special interrogatory was inconsistent with the general verdict, because the trial court properly had ruled on summary judgment that no aggravating factors existed. As a result, defendant asserts, the only factual issue for the jury to decide was the depth of the depression. In fact, however, the trial court granted summary judgment in favor of defendant only on the issue of the sufficiency of the lighting. Had the trial court granted defendant summary judgment on aggravating circumstances, plaintiff's testimony regarding those circumstances would have been irrelevant. Defendant neither filed a motion in limine to bar such testimony nor objected to it at trial.

¶ 32 We find the recent case of Barrett v. FA Group, LLC , 2017 IL App (1st) 170168, 418 Ill.Dec. 379, 90 N.E.3d 537, instructive. In that case, the plaintiff tripped and fell after she stepped in a pothole in an asphalt parking lot. Id. ¶ 12. The trial court granted summary judgment, basing its decision on the fact that the vertical depth of the hole was less than two inches and on the conclusion that the plaintiff had failed to show the presence of aggravating factors sufficient to overcome the application of the "de minimis doctrine." Id. ¶ 22. The First District Appellate Court reversed, finding that it was the role of the jury to decide whether the defect was actionable because of the existence of aggravating factors.

¶ 33 The appellate court first noted the importance of the plaintiff's allegations as to the actual cause of her fall. The plaintiff did not argue that the depth of the pothole caused her to trip and fall, "despite defendants' focus on the issue of the depth of the pothole." Id. ¶ 33. Rather, the plaintiff maintained that "she stepped in the pothole and her shoe became stuck in either broken pavement or broken asphalt within the pothole, which caused her to jolt forward and fall." Id. The court found the case dissimilar to the sidewalk cases in which the de minimis rule had been applied, which almost uniformly involved the plaintiff tripping as a result of a height deviation between sidewalk slabs and thus were of limited usefulness to cases involving potholes. Id.

¶ 34 Additionally, the court found the surrounding circumstances to be relevant to the determination of whether the defect was de minimis , including that: (1) the injury occurred at night in a dimly lit area, (2) although the depth of the pothole was between half an inch and two inches, the hole contained broken pieces of asphalt such that a shoe could become lodged inside, (3) the pothole as depicted in the photographs was not small, appearing to be up to several feet long and wide, and (4) the pothole was located in an area where there were no designated parking spaces, making it more likely for a pedestrian to encounter it, "especially when walking across a crowded parking lot." Id. ¶ 35.

¶ 35 The court held that, under the de minimis rule, a jury question on the issue of negligence is presented only when the defect is such that a reasonably prudent person should anticipate some danger to persons walking upon it. Id. ¶ 37 (citing Arvidson , 11 Ill. 2d at 605, 145 N.E.2d 105 ). Under the circumstances presented and taking the facts in the light most favorable to the plaintiff as the nonmovant, the court could not say that the defect was de minimis as a matter of law. Id.

¶ 36 Here, as in Barrett , the aggravating circumstances presented on the motion for summary judgment and at trial presented a question of fact on the issue of negligence. The adequacy of the lighting was not at issue, but, as in Barrett , the size of the defect was not insubstantial, it was located in an area where it was likely to be encountered by pedestrians, and it contained broken asphalt and was deep enough for plaintiff's foot to become stuck, causing her to stop dead and fall forward. Furthermore, there was evidence of the parking lot's bottleneck design, the "madhouse" conditions of the congested parking lot when plaintiff was injured, and defendant's employees' testimony that the defect needed to be repaired because it was a tripping hazard.

¶ 37 We are further unpersuaded by the trial court's suggestion that plaintiff should have used the "crosswalk or path designated by the landowner" rather than walking between parked cars and then crossing a driving aisle to take a direct route to her car. As the Barrett court stated: "Here, we cannot say, as a matter of law, that it was not reasonably foreseeable that an individual parking his or her vehicle in the parking lot would choose to walk across the lot instead of using an out-of-the way sidewalk." Id. ¶ 36.

¶ 38 We determine that the trial court erred in holding that there were no aggravating factors that would render the depression, an otherwise de minimis defect, actionable. There were issues of material fact that precluded such a determination as a matter of law. Therefore, the trial court erred in giving the special interrogatory, as it did not relate to an ultimate issue of fact upon which the rights of the parties depended. Further, the answer to the special interrogatory was not inconsistent with the general verdict. See Simmons , 198 Ill. 2d at 555, 261 Ill.Dec. 471, 763 N.E.2d 720. Accordingly, we reverse the judgment of the trial court and remand the cause with directions to reinstate the verdict.

¶ 39 III. CONCLUSION

¶ 40 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and the cause is remanded with directions.

¶ 41 Reversed and remanded with directions.

Justices McLaren and Zenoff concurred in the judgment and opinion.

      We observe that, when discussing the trial court's summary-judgment ruling, defendant states that "the trial court rejected Plaintiff's contention that aggravating factors existed to render the [de minimis ] rule inapplicable." At the summary-judgment stage, the trial court simply held that there was evidence creating a question of fact regarding the depth of the depression. The only citation to the record that defendant provides to support its statement is the posttrial order in which the trial court, in justifying its entry of judgment on the special interrogatory, stated that it previously "ruled that those additional factors did not exist and that the only reason Summary Judgment was not granted was a factual dispute as to the size of the alleged defect." There is no evidence in the record showing that the trial court came to this conclusion at the summary-judgment stage.

      A determination of whether a duty exists is a question of law for the court to decide. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). Clearly, defendant had the duty to maintain its property in a reasonably safe condition for plaintiff, based upon the special relationship between a landowner and an invitee upon the land. See Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, ¶ 20, 358 Ill.Dec. 613, 965 N.E.2d 1092. The nature of the defect and the existence and effect of aggravating circumstances would necessarily turn on the facts of a given case. Thus, a de minimis analysis in the context of whether a duty exists might be another instance where the concepts of duty and breach are conflated. See Stearns v. Ridge Ambulance Service, Inc. , 2015 IL App (2d) 140908, ¶ 13, 392 Ill.Dec. 457, 32 N.E.3d 765.

      Defendant contends in a footnote that plaintiff never argued at trial that the width and length of the defect were aggravating factors and thus has forfeited raising this on appeal. The record shows to the contrary. Accordingly, we reject defendant's argument.


text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellant and Counterdefendant-Appellant, v. Paul DUBROVSKY; Jeff Dubrovsky; and, Seterus, Inc., f/k/a IBM Lender Business Processes, Inc. Services, Defendants,
    (Paul Dubrovsky and Jeff Dubrovsky, Defendants-Appellants;
    Seterus, Inc., Defendant-Appellee and Counterplaintiff-Appellee).
    No. 1-17-0282
    Appellate Court of Illinois, First District, FIRST DIVISION.
    March 30, 2018
    Daniel J. Nolan and Elizabeth M. Bartolucci, of O'Hagan Meyer LLC, of Chicago, for appellant State Farm Fire & Casualty Co.
    Fedor Kozlov, of Schaumburg, for other appellants.
    Ralph T. Wutscher, Ernest P. Wagner, and Coleman J. Braun, of Maurice Wutscher LLP, of Chicago, for appellee.
   JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Plaintiff State Farm Fire & Casualty Company (State Farm) filed this action against defendants Seterus, Inc. (Seterus), Paul Dubrovsky, and Jeff Dubrovsky, seeking a declaration that it owed no coverage under a homeowner's insurance policy issued to Jeff Dubrovsky for a certain property owned by Paul Dubrovsky, subject to a mortgage executed by Paul Dubrovsky, and currently serviced by Seterus as the mortgagee. The circuit court granted summary judgment in favor of Seterus, finding that the policy's standard mortgage clause created a separate and distinct contract, under which Seterus was entitled to coverage. The circuit court also granted summary judgment to Seterus as to the distribution of the insurance proceeds. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. The Parties

¶ 4 Paul Dubrovsky purchased a residential property at 1826 Park Avenue in North Chicago, Illinois (the Property), and executed a mortgage on the Property in 2007. Jeff Dubrovsky is Paul's father and the named insured on the insurance policy, which was issued by State Farm. Seterus is the current mortgagee of the mortgage and loan issued to Paul and secured by the Property.

¶ 5 B. The Policy

¶ 6 The relevant policy provision states as follows:

"10. Mortgage Clause. The word 'mortgagee' includes trustee.
a. If a mortgagee is named in this policy, any loss payable under Coverage A shall be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment shall be the same as the order of precedence in the mortgages.
b. If we deny your claim that denial shall not apply to a valid claim of the mortgagee, if the mortgagee:
(1) notifies us of any change in ownership, occupancy, or substantial change in the risk of which the mortgagee is aware;
(2) pays on demand any premium due under this policy, if you have not paid the premium; and
(3) submits a signed, sworn statement of loss within 60 days after receiving notice from us of your failure to do so. Policy conditions relating to Appraisal, Suit Against Us and Loss Payment apply to the mortgagee.
***
d. If we pay the mortgagee for any loss and deny payment to you:
(1) we are subrogated to all the rights of the mortgagee granted under the mortgage on the property; or
(2) at our option, we may pay to the mortgagee the whole principal on the mortgage plus any accrued interest. In this event, we shall receive a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt.
e. Subrogation shall not impair the right of the mortgagee to recover the full amount of the mortgagee's claim."

¶ 7 C. The Present Action

¶ 8 State Farm filed its complaint against the Dubrovskys and Seterus on February 19, 2013. This case was resolved on cross-motions for summary judgment. The following facts were undisputed on summary judgment, except where noted.

¶ 9 Paul purchased and executed a mortgage on the Property on August 21, 2007. Paul had, in the past, obtained an insurance policy for the Property through Country Mutual Insurance Company. Country Mutual insured Paul from August 2007 through September 2009. But, according to State Farm, Paul "submitted multiple claims with Country Mutual" during that time period, and Country Mutual ultimately either "non-renewed or cancelled the policy."

¶ 10 On September 9, 2009, Jeff, Paul's father, applied for a homeowner's insurance policy with State Farm for the Property. State Farm alleged that, as a part of the application, Jeff provided the Property address as his own. Jeff admitted this in his answer, but the application itself does not appear in the record. That same day, State Farm issued Jeff the homeowner's policy at issue in this case for the Property.

¶ 11 It was undisputed that Jeff did not have a mortgage on the Property. There were disputed issues on summary judgment as to whether Jeff had a lease for the Property or had given money to Paul to assist with the down payment and, thus, whether Jeff had an insurable interest in the Property. State Farm presented evidence that it took a statement from Jeff, in November 2012, during which Jeff said that he had lived in Wheeling, Illinois, since 1997; he did not own the Property; and that his son, Paul, owned the Property. State Farm also presented evidence that Paul filed a Chapter 7 individual bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois, in which Paul listed the Property as his own, listed Seterus as being the holder of the first mortgage with a secured claim of $237,603, and did not identify anyone else having an interest in the Property.

¶ 12 On August 27, 2012, Jeff filed two claims: one for an incident of vandalism on August 24, 2012, and one for a fire that occurred on the first floor of the Property on August 25, 2012. On September 17, 2012, State Farm sent a reservation of rights letter to Jeff, via his attorney, stating that it intended to investigate certain coverage questions, including whether Jeff, as the insured, had an insurable interest in the Property. Then, on September 24, 2012, State Farm received a letter from Seterus notifying it that Seterus was the successor mortgage holder on the Property and that the Property might be vacant.

¶ 13 On October 23, 2012, State Farm notified Jeff that it was canceling his insurance policy effective December 4, 2012, and returned to him $855.68 in unearned premiums. In the notice, State Farm indicated it was canceling the policy "because of a material increase in hazard as evidenced by the fact that the residence is not owner occupied as required by [the] policy."

¶ 14 Before the cancelation was effective, on November 12, 2012, Jeff filed another claim with State Farm regarding a November 6, 2012, fire that occurred on the Property's second floor. State Farm sent another reservation of rights letter to Jeff, via his attorney, indicating its intent to investigate certain coverage questions relating to that claim.

¶ 15 In its complaint, State Farm asserted six bases for denying coverage under the policy as to either Seterus or the Dubrovskys, including that (1) the policy was void from its inception because Jeff never had an insurable interest in the Property; (2) Seterus had no mortgage, note, or loan with Jeff secured by the Property at any time; (3) the Property was not a residence premises as required for coverage under the policy; and (4) Jeff had failed to comply with the "Duties After Loss" section of the policy by not submitting certain requested records, documents, and information to State Farm with respect to each of the three claims.

¶ 16 In its affirmative defenses and counterclaim, Seterus asserted that (1) State Farm should have been aware that Jeff did not reside at the Property and was therefore estopped from denying coverage; (2) Seterus was entitled to coverage under the policy's mortgage clause, even if Jeff was not entitled to coverage under the policy; (3) the fire damages claimed by Jeff were covered under the policy; and (4) State Farm was barred from any attempt to rescind the policy. Seterus sought declarations that, even if Jeff made misrepresentations in his policy application, State Farm's attempt to declare the policy void ab initio was invalid; State Farm could not rescind the policy and the policy was not void ab initio ; and State Farm was liable to Seterus for the damages that occurred on the Property.

¶ 17 The Dubrovskys answered State Farm's complaint but did not file any affirmative defenses or counterclaims.

¶ 18 The parties filed cross-motions for summary judgment. The circuit court granted summary judgment in favor of Seterus on its request for a declaration that it was entitled to recover under the policy. The court denied State Farm's and Jeff's motions for summary judgment.

¶ 19 The circuit court explained its reasoning at some length, and the transcript of that ruling is contained in the record. The circuit court noted that if Jeff, as the only named insured, did not have any insurable interest in the property, the policy would be void and not just voidable. The circuit court's view was that a genuine issue of material fact existed as to whether Jeff had an insurable interest in the Property because, although there was no clear evidence that he was either a tenant or an owner, there was some evidence that he had a lease and that he had paid some part of the down payment. But the court determined that, ultimately, it did not matter whether Jeff had an insurable interest. The court concluded that Seterus was entitled to coverage under the policy regardless of Jeff's interest because the standard mortgage clause contained in the policy created a "separate and distinct" insurance contract between Seterus and State Farm that could not be invalidated by any acts or omissions of the named insured, Jeff.

¶ 20 State Farm filed a motion to reconsider the judgment, primarily arguing that the standard mortgage clause should not operate to protect the mortgagee when the mortgagor is not the named insured. After hearing argument from both sides, the circuit court denied the motion and reaffirmed its earlier ruling in favor of coverage for Seterus.

¶ 21 Seterus then filed a second motion for summary judgment seeking damages. Seterus asked for prejudgment interest starting-according to the terms of the policy-30 days after State Farm received a sworn proof of loss from Jeff, on March 10, 2013. With respect to the disbursement of the insurance proceeds, Seterus claimed that the policy incorporated the mortgage agreement and that under the mortgage agreement it was entitled to $92,521.72 in actual cash value, $128,551.01 in replacement cost value, $15,714.82 in prejudgment interest on the actual cash value, and $21,834.39 in prejudgment interest on the replacement cost value.

¶ 22 On December 7, 2016, the circuit court granted in part and denied in part Seterus's motion for summary judgment as to damages. No hearing transcript is included in the record on appeal. The written order on the motion, however, indicates that Seterus's motion was granted "as to the determination that the subject insurance policy incorporates the subject mortgage by reference and that the terms of the mortgage control the disbursement and application of the insurance proceeds." The court ordered that Seterus would receive the proceeds to be applied per the terms of the mortgage. The court found that the stipulated damages were $92,521.72 in actual cash value and $127,551.01 in replacement cost value "to be recovered per [the] terms of the policy." The court only allowed Seterus's request for prejudgment interest starting from August 4, 2016, the date the parties stipulated as to the damages, for a total of $1584.13 on the actual cash value and found there to be factual issues as to whether it was entitled to prejudgment interest for any earlier period.

¶ 23 On January 9, 2017, the circuit court granted State Farm's motion to reconsider in part the damages award, deciding that there were no issues of fact and that Seterus was not entitled to prejudgment interest any time prior to August 4, 2016. The court order of January 9, 2017, states that "there remain no outstanding factual disputes prior to any appeal."

¶ 24 II. JURISDICTION

¶ 25 The circuit court ruled on State Farm's motion to modify judgment and to reconsider judgment as to prejudgment interest on January 9, 2017. The Dubrovskys timely filed a notice of appeal on February 2, 2017, and State Farm timely filed its notice of appeal, joining the Dubrovskys' appeal, on February 8, 2017. Seterus filed a notice of cross-appeal regarding prejudgment interest on February 16, 2017. But the issues raised in the cross-appeal have been resolved by the parties and the cross-appeal voluntarily withdrawn. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1, 2015).

¶ 26 III. ANALYSIS

¶ 27 State Farm's claim in this case was resolved on cross-motions for summary judgment. "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Virginia Surety Co. v. Northern Insurance Co. of New York , 224 Ill.2d 550, 556, 310 Ill.Dec. 338, 866 N.E.2d 149 (2007). When parties file cross-motions for summary judgment, they agree that there are no issues of material fact and that the case disposition turns on the resolution of purely legal issues. Founders Insurance Co. v. Munoz , 237 Ill.2d 424, 432, 341 Ill.Dec. 485, 930 N.E.2d 999 (2010). We review the circuit court's ruling on cross-motions for summary judgment de novo . A.B.A.T.E. of Illinois, Inc. v. Quinn , 2011 IL 110611, ¶ 22, 354 Ill.Dec. 282, 957 N.E.2d 876.

¶ 28 When interpreting the provisions of an insurance policy, the court's primary objective is "to ascertain and give effect to the intentions of the parties as expressed by the language of the policy." Valley Forge Insurance Co. v. Swiderski Electronics, Inc. , 223 Ill.2d 352, 362, 307 Ill.Dec. 653, 860 N.E.2d 307 (2006). If the policy's language is unambiguous when given its plain and ordinary meaning, it must be applied as written. Id. at 363, 307 Ill.Dec. 653, 860 N.E.2d 307. Any ambiguous language in the policy will be construed against the insurer. Id.

¶ 29 We consider the arguments of State Farm and the Dubrovskys separately.

¶ 30 A. State Farm's Arguments on Appeal

¶ 31 State Farm presents three reasons why this court should reverse the circuit court's grant of summary judgment in favor of Seterus: (1) the policy was void ab initio because Jeff, the only named insured, had no insurable interest in the Property, (2) Seterus did not have a mortgagor/mortgagee relationship with Jeff and therefore should not be protected by the mortgage clause in the insurance policy between Jeff and State Farm, and (3) Seterus was not entitled to coverage because certain conditions precedent to receiving coverage under the policy were not met.

¶ 32 Seterus responds that (1) the mortgage clause created an independent contract between Seterus and State Farm, providing coverage protection to Seterus even if the policy between Jeff and State Farm was void ab initio , (2) Seterus was protected by the policy's standard mortgage clause, regardless of whether any mortgage agreement existed between Jeff and Seterus, and (3) State Farm cannot exclude coverage to Seterus as the mortgagee based on the policy's alleged conditions precedent. As an alternative, Seterus also argues that, even if an insurable interest is required, State Farm is not entitled to summary judgment because Seterus presented some evidence that Jeff had an insurable interest in the property.

¶ 33 Before directly addressing the parties' arguments, we first discuss the mortgage provision at issue in this case-referred to as the standard mortgage clause-and the broad manner in which courts have interpreted such clauses in favor of protecting mortgagees.

¶ 34 1. Mortgage Clauses in Contracts of Insurance

¶ 35 The policy provision at issue in this case, the "Mortgage Clause," provides as follows: "If a mortgagee is named in this policy, any loss payable under Coverage A shall be paid to the mortgagee and you, as interests appear." The clause goes on to state, "If we deny your claim that denial shall not apply to a valid claim of the mortgagee," so long as the mortgagee completes certain requirements. This is what is referred to as a "standard mortgage clause."

¶ 36 In Old Second National Bank v. Indiana Insurance Co. , 2015 IL App (1st) 140265, ¶ 20, 390 Ill.Dec. 898, 29 N.E.3d 1168, this court recently explained the difference between such a clause and a "simple," or ordinary, mortgage clause:

"The 'simple' mortgage clause makes the mortgagee merely an appointee who will receive insurance proceeds only to the extent of its interest as stated in the policy, subject to all of the same defenses to coverage as the insured. In such a circumstance, the mortgagee possesses no greater right of recovery than the insured. [Citations.] The 'standard' mortgage clause, more broadly, forms a separate and distinct contract between the insurer and the mortgagee, the effect of which is to shield the mortgagee from being denied coverage based upon the acts or omissions of the insured or the insured's noncompliance with the terms of the policy."

¶ 37 On appeal, the parties do not dispute that the clause at issue here was a standard mortgage clause or that Seterus was the named mortgagee under the policy. What State Farm and Seterus dispute is whether the mortgagee's rights under this policy can be impacted by the named insured's lack of an insurable interest, the named insured's lack of any relationship with the mortgagee, or the failure of conditions precedent for coverage. We address each argument in turn.

¶ 38 2. Insurable Interest

¶ 39 State Farm first argues that the policy in this case was void ab initio because Jeff never had an insurable interest in the Property. According to State Farm, when a policy is void from its inception, "no party may claim rights under it" (emphasis in original) (citing Illinois State Bar Ass'n Mutual Insurance Co. v. Coregis Insurance Co. , 355 Ill.App.3d 156, 164, 290 Ill.Dec. 394, 821 N.E.2d 706 (2004) ). Seterus, on the other hand, argues that its coverage under the insurance policy would not be invalidated even if Jeff lacked an insurable interest in the Property because the standard mortgage clause created a "separate and distinct contract" (emphasis omitted) between State Farm and Seterus.

¶ 40 Although it viewed the record as creating a question of fact as to whether Jeff had an insurable interest in the Property, the circuit court agreed with Seterus that this did not matter, as the standard mortgage clause covered Seterus regardless of Jeff's interest. In reaching this conclusion, the circuit court largely relied on Wolfram Partnership, Ltd. v. LaSalle National Bank , 328 Ill.App.3d 207, 262 Ill.Dec. 404, 765 N.E.2d 1012 (2001). In that case, the lessee of the subject building subleased the building to a corporate entity, and the owner of that company obtained insurance for the building in his individual capacity, naming the trustee-owner of the building as an additional insured. Id. at 211, 220, 262 Ill.Dec. 404, 765 N.E.2d 1012. In determining that the lessee did not breach its lease agreement by failing to obtain insurance protecting the trust itself, the Wolfram court explained:

"We find the question of whether [the named insured] possessed an insurable interest during the period in question is of no consequence in determining [the lessee's] compliance under [the lease] since the record unequivocally demonstrates that the trust's interests in the Premises have, at all relevant times, been adequately protected by [the named insured's] insurance. The Trust has been included as an additional insured under all policies of insurance obtained and in effect during the time period in question. Clearly, the Trust, as owner of the Premises and the structures thereupon, had an insurable interest under [the named insured's] policies.
While a lack of insurable interest will ordinarily render a policy of insurance void and unenforceable on public policy grounds [citations], '[w]here there are several insureds under a policy, and all do not have the requisite insurable interest, the policy is invalid only as to those lacking [an] insurable interest.' " Id. at 220-21, 262 Ill.Dec. 404, 765 N.E.2d 1012 (quoting 3 Couch on Insurance 3d § 41:2, at 41-8 (1995) ).

¶ 41 We agree with the circuit court that, based on Wolfram and cases such as Old Second that recognize a standard mortgage clause creates a separate and distinct contract between the mortgagee and the insurer ( Old Second , 2015 IL App (1st) 140265, ¶ 20, 390 Ill.Dec. 898, 29 N.E.3d 1168 ), Jeff's possible lack of an insurable interest does not bar Seterus from coverage under the policy. This holding is consistent with the way most, if not all, other jurisdictions have interpreted standard mortgage clauses. See, e.g. , BankAmerica Housing Services v. Allstate Insurance Co. , 771 So.2d 1218, 1221 (Fla. Dist. Ct. App. 2000) ; Norwest Mortgage, Inc. v. Nationwide Mutual Fire Insurance Co. , 718 So.2d 15, 17 (Ala. 1998) ; Great American Insurance Co. of New York v. Southwestern Finance Co. , 297 P.2d 403, 404-05 (Okla. 1956) ; see also 4 Couch on Insurance 3d § 65:50, at 65-97 (rev. ed. 2011) ("The mortgagee may *** recover for his or her loss from a collision although the policy was void as to the mortgagor ab initio for want of an insurable interest."). But see id . § 65:12, at 65-25 ("if the insured has no interest in the property, so that the policy is void as against public policy, his or her mortgagee acquires no rights against the insurer by reason of a loss-payable clause").

¶ 42 Therefore, State Farm cannot deny coverage to Seterus based upon the possibility that Jeff, as the named insured, did not have an insurable interest.

¶ 43 3. Mortgagee-Mortgagor Relationship

¶ 44 State Farm's second argument is that Seterus is not entitled to recover because there was no mortgagor-mortgagee relationship between Jeff and Seterus. State Farm argues that a mortgagor-mortgagee relationship by which the named insured agrees to carry insurance on behalf of the mortgagee "is what gives rise to the 'secondary' contractual relationship between a mortgagee and the insurer." In support of this argument, State Farm relies primarily on language from Allen v. St. Paul Fire & Marine Insurance Co. , 167 Minn. 146, 208 N.W. 816 (1926), a case in which the Minnesota Supreme Court positively quoted language from an Eighth Circuit case concluding that " 'the effect of the [standard] mortgage clause, when attached to a policy of insurance running to the mortgagor , is to make a new and separate contract between the mortgagee and the insurance company.' " (Emphasis added.) Id. at 818 (quoting Syndicate Insurance Co. v. Bohn , 65 F. 165, 178 (8th Cir. 1894) ).

¶ 45 In response, Seterus argues that the plain language of the standard mortgage clause in this case "does not impose any restrictions on the term 'mortgagee,' " does not require any specific relationship between a named insured and a named mortgagee, and "instead merely provides that '[i]f a mortgagee is named in this policy, any loss payable under Coverage A shall be paid to the mortgagee and [the insured].' " Seterus insists that the language State Farm relies on to argue to the contrary is "mere surplusage, as demonstrated by the abundance of modern case law that entirely omits th[at] language, or indeed, any reference to a requirement that the mortgagee be in privity with the insured to benefit under the policy."

¶ 46 The circuit court agreed with Seterus, noting that the language relied upon by State Farm-"when attached to a policy of insurance running to the mortgagor"-was "not essential" to the holdings in either Allen or Bohn . The court considered the language to be dicta and was not persuaded by it that an insurance policy must run to the mortgagor to entitle the mortgagee to protection under a standard mortgage clause.

¶ 47 We, again, agree with the circuit court that Jeff not being the mortgagor does not provide a basis for State Farm to deny coverage to Seterus.

¶ 48 We recognize that, as State Farm argues, the court's language in Bohn was quoted by some of the earlier cases that recognized that a standard mortgage clause creates a separate contract of insurance between the mortgagee and the insurer. See, e.g. , Ohio Farmers' Insurance Co. v. Hull , 45 Ohio App. 166, 186 N.E. 823, 824-25 (Ohio Ct. App. 1932) ; National Union Fire Insurance Co. v. Short , 32 F.2d 631, 632-33 (6th Cir. 1929) ; Fayetteville Building & Loan Ass'n v. Mutual Fire Insurance Co. of West Virginia , 105 W.Va. 147, 141 S.E. 634, 635-36 (1928). However, this language cannot support State Farm's "privity" argument-that a mortgagee's rights under the mortgage clause are dependent on the named insured being the mortgagor-for a number of reasons.

¶ 49 First, as the circuit court noted, it does appear that the language State Farm relies on in the Bohn case is not necessary to that court's analysis. There was no issue in Bohn or in the cases following Bohn as to whether the named insured was also the mortgagor. As is often the case, in those cases the named insured and the mortgagor were the same party, and the court's reference to the "mortgagor" could have been changed to refer to the "named insured" without a change in the court's reasoning.

¶ 50 Second, there is no language in the mortgage clause before us in this case or anywhere in the policy that suggests that the named insured must be the mortgagor. The policy language is "[i]f a mortgagee is named in this policy," when it could say, ever so easily, "if your mortgagee is named in this policy."

¶ 51 In construing an insurance policy, as with any contract, we begin with the plain language of the policy itself and "will not search for ambiguity where there is none." Swiderski , 223 Ill.2d at 363, 307 Ill.Dec. 653, 860 N.E.2d 307. There is simply no construction of the language in the State Farm policy before us that supports State Farm's argument that protection for the mortgagee only exists if the named insured is the mortgagor.

¶ 52 Third, the Bohn case is over 100 years old and is not controlling authority. See Kostal v. Pinkus Dermatopathology Laboratory, P.C. , 357 Ill.App.3d 381, 395, 293 Ill.Dec. 150, 827 N.E.2d 1031 (2005) (noting that court decisions from other jurisdictions are not binding on this court, but may be considered as persuasive authority). And, as Seterus points out, more recent cases, including our recent decision in Old Second , 2015 IL App (1st) 140265, ¶ 20, 390 Ill.Dec. 898, 29 N.E.3d 1168, speak in terms of the "named insured," without necessarily equating that person with the mortgagor.

¶ 53 Fourth, but perhaps most importantly, the policy language that the court was construing in Bohn was different and stated in relevant part: "It is agreed that this insurance, as to the interests of the above-named mortgagee or beneficiary, or its assigns, only, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured." Bohn , 65 F. at 167. Under that language, in contrast to the policy language here, an argument could be made that the insurance policy contemplated the named insured was the mortgagor, or at least the owner of the property.

¶ 54 Fifth, as Seterus noted persuasively in oral argument, there are situations in which the insurer has every reason to cover the mortgagee, although the policy holder is not the mortgagor. For example, a wife may be the mortgagor, while the husband is the named insured, and they are both owners of the insured home.

¶ 55 Finally, we are persuaded by the cases that Seterus cites in which a loss payee is someone other than a mortgagee. These cases are Posner v. Firemen's Insurance Co. , 49 Ill.App.2d 209, 199 N.E.2d 44 (1964), and Stonegate Insurance Co. v. Hongsermeier , 2017 IL App (1st) 151835, 411 Ill.Dec. 181, 72 N.E.3d 869, both of which recognize that the separate contract between insurer and the loss payee is generally not dependent on privity or any specific relationship between the named insured and the loss payee. We are not persuaded that the rule needs to be different when the loss payee is the mortgagee.

¶ 56 In short, we do not agree that Seterus's coverage was dependent on the named insured holding the mortgage. We turn now to State Farm's final contention that Seterus should be denied coverage because certain conditions precedent for coverage had not occurred.

¶ 57 4. Conditions Precedent

¶ 58 State Farm lastly contends that Seterus should be denied coverage because certain conditions precedent for coverage had not occurred at the time the claims were filed, specifically referring to the policy's condition that the insured premises be used as a residence premises. The insurance policy provided that State Farm would "cover the dwelling used principally as a private residence on the residence premises shown in the declarations" and defined a "residence premises" as "the one, two, three or four-family dwelling, other structures and grounds," or "that part of any other building" "where [the insured] resides and which is shown in the Declarations."

¶ 59 According to State Farm, for any party to recover under the policy, whether the named insured or the mortgagee, that party must show that the residence premises shown in the policy's declarations is a dwelling where the named insured resided. State Farm argues that because this residence premises requirement is a condition precedent to coverage, its absence "negates any conclusion that there can be coverage under the Policy," as "the insuring provisions of the Policy were not met."

¶ 60 As State Farm points out, the court in Old Second acknowledged a difference between conditions precedent and subsequent in an insurance policy, stating: "While conditions precedent concern the very attachment of risk in the first instance, a condition subsequent applies to conditions which must be maintained or met after the risk has attached in order that the policy remain in full force and effect." (Internal quotation marks omitted.) Old Second , 2015 IL App (1st) 140265, ¶ 28, 390 Ill.Dec. 898, 29 N.E.3d 1168. But, in upholding coverage to the mortgagee under a standard mortgage clause on the facts before it, the Old Second court also observed that certain jurisdictions had found that "to best effectuate the language and purpose underlying the standard mortgage clause, the mortgagee must not be refused coverage as long as the loss did not result from its own breach of policy." Id. ¶ 25. Although the court in Old Second cited those cases favorably, it did not need to consider whether a mortgagee would be protected regardless of any act of the named insured, including those in which the named insured failed to adhere to a condition precedent to coverage.

¶ 61 Here, however, we have fallen in with that line of cases, holding that the standard mortgage clause protects the mortgagee even if there is no coverage for the named insured and the policy is void as to the named insured. This broad protection for the mortgagee includes situations where conditions precedent to coverage under the policy have not been met by the named insured. See, e.g. , Wells Fargo Bank, N.A. v. Null , 304 Mich.App. 508, 847 N.W.2d 657, 673-30 (2014) (finding that where the named insured did not reside in the insured premises, as required for coverage by the subject policy's residence premises provision, the mortgagee could still be afforded protection under the standard mortgage clause "even when the act or neglect of the insured occur[red] before the issuance of the policy"). Accordingly, Seterus is entitled to coverage regardless of whether Jeff actually used the Property as his residence premises.

¶ 62 B. The Dubrovskys' Arguments on Appeal

¶ 63 The Dubrovskys' notice of appeal focuses exclusively on the circuit court orders finding that the proceeds of the insurance policy were to be distributed subject to the terms of the mortgage. In their appellate brief, however, they do not discuss the distribution of the proceeds, instead focusing on the need for a determination as to Jeff's insurable interest in the Property and whether State Farm could rescind the policy more than three years after it had been issued. Thus they have forfeited any argument as to the distribution. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017) (stating that "points not argued" in a party's brief as forfeited).

¶ 64 The arguments that the Dubrovskys do make in their brief are moot in light of our affirming the circuit court's ruling that Seterus is entitled to coverage. The presumptions of the circuit court in awarding coverage were that Jeff might have an insurable interest-but whether he did would not affect whether Seterus was entitled to coverage-and that recession was inapplicable. The only possible arguments the Dubrovskys could have now on appeal go to distribution of proceeds if either of them were entitled to any payment under the policy, and as noted, those arguments are forfeited.

¶ 65 IV. CONCLUSION

¶ 66 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 67 Affirmed.

Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.