text:
    Richard MACHNICKI, Kathy Machnicki, and Zbigniew Kurowski, Plaintiffs, v. Mariusz KUROWSKI and Unknown Owners, Defendants
    (Richard Machnicki and Zbigniew Kurowski, Plaintiffs and Counterdefendants-Appellants;
    Mariusz Kurowski, Individually and on Behalf of Kurowski Sausage Shop & Rich's Bakery, Inc., Counterplaintiff-Appellee).
    No. 1-17-1077
    Appellate Court of Illinois, First District, SECOND DIVISION.
    June 26, 2018
    Alexander Lacherbauer-Lynn, of Chicago, for appellants.
    Glen J. Dunn Jr., of Glen J. Dunn Jr. & Associates, Ltd., and Marcy M. Labedz, of Law Offices of Kurowski-Labedz, LLC, both of Chicago, for appellee.
   JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs-counterdefendants, Richard Machnicki and Zbigniew Kurowski (collectively, plaintiffs), appeal from the trial court's order directing them to pay $339,000 in attorney fees and expenses to defendant-counterplaintiff, Mariusz Kurowski (defendant) pursuant to section 12.60(j) of the Business Corporation Act of 1983 (Corporation Act) ( 805 ILCS 5/12.60(j) (West 2016) ). Plaintiffs contend on appeal that, in violation of the plain language of section 12.60(j), the trial court considered alleged acts by plaintiffs that occurred outside of the litigation when awarding said fees and expenses to defendant. For the reasons that follow, we disagree that reversible error occurred and affirm the trial court's judgment.

¶ 2 BACKGROUND

¶ 3 The facts relevant to the present dispute are essentially undisputed by the parties. In 1998, the parties opened a Polish delicatessen and bakery called Kurowski Sausage Shop & Rich's Bakery, Inc. (Kurowski's) in Chicago's "Avondale" neighborhood. Claiming a change in the local demographic, plaintiffs later opened a new delicatessen and bakery-Pulaski Polish Deli & Bakery-in Chicago's "Dunning" neighborhood but did not invite defendant to join them in the new venture. In August 2012, plaintiffs filed a complaint for the partition of the real property (property) out of which Kurowski's was operated and that was jointly owned by the parties and Kathy Machnicki as individuals but was not an asset of the corporation.

¶ 4 In October 2012, defendant filed a counterclaim in response. His third amended counterclaim contained six counts: count I alleged breach of fiduciary duty, count II alleged breach of contract, count III alleged violation of the Illinois Trade Secrets Act ( 765 ILCS 1065/1 et seq. (West 2012) ), count IV alleged violation of the Uniform Deceptive Trade Practices Act ( 815 ILCS 510/1 et seq. (West 2012) ), count V alleged tortious interference with a business expectancy, and count VI alleged unjust enrichment. Counts I and II sought relief for plaintiffs' alleged breaches under section 12.56 of the Corporation Act.

¶ 5 Following the confirmation of the court-ordered sale of the property, the matter was transferred from the chancery division to the law division of the circuit court for a jury trial on defendant's counterclaim. The jury found in favor of defendant and against plaintiffs and rendered an advisory verdict on counts II and V. In addition to following the jury's advice on counts II and V, the trial court also entered judgment on count I pursuant to section 12.56 of the Corporation Act. In sum, the trial court entered judgment in favor of defendant and against plaintiffs as follows: (1) plaintiffs were to purchase defendant's shares in Kurowski's for the sum of $152,272 plus $17,980.61 in prejudgment interest, (2) additional joint and several compensatory damages against both plaintiffs in the amount of $18,618.90, (3) punitive damages against Richard Machnicki in the amount of $15,454.54, and (4) punitive damages against Zbigniew Kurowski in the amount of $8,181.81. Defendant voluntarily dismissed count VI without prejudice, and counts III and IV were dismissed by the trial court prior to trial.

¶ 6 Thereafter, defendant filed a petition for attorney fees and expenses pursuant to section 12.60(j) of the Corporation Act. In it, defendant argued that he was entitled to an award of attorney fees and expenses because plaintiffs had engaged in actions that were arbitrary, vexatious, and not in good faith when they attempted to squeeze him out of Kurowski's for less than fair market value, misused Kurowski's funds, and engaged in misconduct during discovery. Defendant also argued that by ordering the sale of defendant's shares in Kurowski's pursuant to section 12.56, the trial court must necessarily have found that plaintiffs committed shareholder oppression, wasted corporate assets, or otherwise breached their fiduciary duties, and that such findings justified an award of attorney fees and expenses under section 12.60(j).

¶ 7 Among other things, plaintiffs argued in response that the arbitrary, vexatious, or not in good faith actions that would justify an award of attorney fees and expenses under section 12.60(j) must take place within the litigation at issue and, because the actions relied upon by defendant occurred primarily outside of the litigation, they could not serve as a basis for an award. In addition, plaintiffs argued that the fees and expenses sought by defendant were unreasonable because some of the fees sought were not associated with claims subject to section 12.60(j) or were not a direct result of the allegedly arbitrary, vexatious, or bad faith actions of plaintiffs.

¶ 8 Following a hearing on the matter, the trial court issued an order denying defendant's fee petition. In the order, relying on the case of Abreu v. Unica Industrial Sales, Inc. , 224 Ill. App. 3d 439, 166 Ill.Dec. 703, 586 N.E.2d 661 (1991), the trial court held that the actions alleged by defendant did not fall within the scope of section 12.60(j) because they did not occur within the subject litigation.

¶ 9 Defendant filed a motion to reconsider, arguing that Abreu did not govern because it dealt with a fee provision of the Corporation Act that was no longer in existence and that contained different language than section 12.60(j). Defendant also argued that plaintiffs did commit arbitrary, vexatious, and not in good faith acts within the scope of the litigation. The trial court granted defendant's motion to reconsider and entered two separate orders in that regard. In the first order, the trial court apparently agreed with defendant's argument that the alleged misconduct did not need to occur during the legal proceedings to be considered under section 12.60(j), stating that it would "consider actions related which were vexatious (not in good faith)." The trial court also stated, "This trial court does not find in presiding over the law division jury case illegality, vexatious, otherwise arbitrary conduct in bad faith in this proceeding. This court cannot verify the resistance by [plaintiffs] & non-compliance re: discovery." The trial court ended the order by stating that it would review the billing statements submitted by defendant to arrive at an appropriate amount. In the second order, entered the same day, the trial court stated that it had reviewed all 93 pages of billing statements submitted by defendant and having taken "thoughtful consideration of the history of the LLC meeting, and the partition suit and the actions concerning discovery according to the interpretation of [defendant]," it awarded defendant attorney fees and expenses in the amount of $339,000.

¶ 10 Plaintiffs filed a motion to alter or amend the trial court's award to defendant, again arguing that an award of attorney fees and expenses for the conduct alleged by defendant was not supported by section 12.60(j) and that the amount awarded was excessive. Following a hearing on the matter, the trial court denied plaintiffs' motion.

¶ 11 Plaintiffs then instituted this appeal.

¶ 12 ANALYSIS

¶ 13 On appeal, plaintiffs argue that in determining whether a party is entitled to an award of attorney fees and expenses under section 12.60(j) of the Corporation Act, the trial court may only consider vexatious, arbitrary, or otherwise not in good faith acts that occurred within the section 12.56 litigation, i.e. , the offender's actions must be some kind of procedural or litigation misconduct. Thus, according to plaintiffs, the trial court erred in awarding defendant attorney fees and expenses based on actions that took place outside of the 12.56 litigation. In addition, plaintiffs argue that the trial court abused its discretion in the amount of fees and expenses it awarded, because some of the awarded fees and expenses were associated with claims that were not subject to section 12.60(j) or were not the direct result of the arbitrary, vexatious, or not in good faith actions. We conclude that neither of these contentions warrants reversal.

¶ 14 Conduct to Be Considered

¶ 15 Plaintiffs' first contention-that the allegedly vexatious, arbitrary, or otherwise not in good faith actions must occur within the litigation to justify attorney fees and expenses under section 12.60(j) of the Corporation Act-requires us to construe the language of section 12.60(j). Such questions of statutory interpretation are subject to a de novo standard of review. People ex rel. Madigan v. Illinois Commerce Comm'n , 231 Ill. 2d 370, 377, 326 Ill.Dec. 10, 899 N.E.2d 227 (2008). We note that this is a matter of first impression, and there are no other cases interpreting the language of section 12.60(j).

¶ 16 The primary goal in statutory construction is to ascertain the intent of the legislature. The best indicator of this intent is the language of the statute, which must be given its plain and ordinary meaning. People ex rel. Madigan v. Bertrand , 2012 IL App (1st) 111419, ¶ 20, 365 Ill.Dec. 426, 978 N.E.2d 681. In interpreting a statute, we must view the statute as a whole, making sure not to read any of its language in isolation. Board of Education of Woodland Community Consolidated School District 50 v. Illinois State Charter School Comm'n , 2016 IL App (1st) 151372, ¶ 38, 406 Ill.Dec. 205, 60 N.E.3d 107. We must avoid any interpretation that would render any portion of the statute superfluous, meaningless, or void. Sylvester v. Industrial Comm'n , 197 Ill. 2d 225, 232, 258 Ill.Dec. 548, 756 N.E.2d 822 (2001). Just as we may not read out any portion of the statute, we may not alter the plain meaning of a statute's language by reading into it exceptions, limitations, or conditions not expressed by the legislature. Board of Education , 2016 IL App (1st) 151372, ¶¶ 34, 38, 406 Ill.Dec. 205, 60 N.E.3d 107.

¶ 17 Section 12.60(j) of the Corporation Act provides as follows:

"If the court finds that a party to any proceeding under Section 12.50, 12.55, or 12.56 acted arbitrarily, vexatiously, or otherwise not in good faith, it may award one or more other parties their reasonable expenses, including counsel fees and the expenses of appraisers or other experts, incurred in the proceeding." 805 ILCS 5/12.60(j) (West 2016).

Based on the plain language of this provision, we conclude that there is no requirement that the arbitrary, vexatious, or otherwise not in good faith actions take place within the litigation. Rather, the plain language of section 12.60(j) identifies three elements that must be satisfied before an award of attorney fees and expenses may be made: (1) the party against whom the fees are sought must be a party to a proceeding under section 12.50, 12.55, or 12.56 of the Corporation Act; (2) that party must have engaged in actions that were arbitrary, vexatious, or otherwise not in good faith; and (3) the fees and expenses sought must have been incurred in the section 12.50, 12.55, or 12.56 proceeding. Plaintiffs point to no language that supports a requirement the alleged actions take place within the proceeding, and we can find no language in section 12.60(j) that imposes any requirements other than those identified above. To impose, as plaintiffs argue we should, the additional requirement that the acts forming the basis of the award occur within the litigation would be to read into section 12.60(j) a requirement that was not included by the legislature. This we cannot do. Board of Education , 2016 IL App (1st) 151372, ¶ 38, 406 Ill.Dec. 205, 60 N.E.3d 107.

¶ 18 Although we conclude that the language of section 12.60(j) could not be any more clear, we note that our reading of section 12.60(j) is also supported by the legislature's amendments to the Corporation Act in 1995. Prior to 1995, section 12.55(h) of the Corporation Act read as follows:

"If the court determines that any party in an action commenced under Section 12.50 has acted arbitrarily, vexatiously, or not in good faith in such action or in connection with any alternative relief provided in this Section , the court may, in its discretion, award attorneys' fees and other reasonable expenses to the other parties to the action who have been affected adversely thereby." (Emphasis added.) 805 ILCS 5/12.55(h) (West 1994).

In 1995, the legislature removed section 12.55(h) and enacted section 12.60(j), which expanded the application of the provision to actions brought under sections 12.50, 12.55, and 12.56. Pub. Act 89-169 (eff. July 19, 1995). In addition, the legislature removed the language that required the arbitrary, vexatious, or not in good faith actions to be "in such action or in connection with any alternative relief provided in this Section." By removing this language that very specifically limited an award of fees to situations where the arbitrary, vexatious, or not in good faith actions occurred in the section 12.50 action or in connection with some alternative relief under section 12.55 and replacing it with a provision that did not contain any such limiting language, the legislature expressed an intent to remove that limitation from future fee awards. See Borden Chemicals & Plastics, L.P. v. Zehnder , 312 Ill. App. 3d 35, 46, 244 Ill.Dec. 477, 726 N.E.2d 73 (2000) (stating that under the "legislative intent" approach, "it is presumed that the legislature intends to effect a change in the law when it enacts a statutory amendment"). Certainly, had the legislature intended fees be awarded only if the arbitrary, vexatious, or not in good faith actions occurred within the action, it would have left the limiting language in section 12.60. In fact, it would have been less work for the legislature to simply leave it. Thus, again, the removal of the specific, limiting language can only represent an intent by the legislature to remove that limitation.

¶ 19 Plaintiffs argue that the language of the former section 12.55(h) and the current section 12.60(j) are "near identical" and that the removal of the language limiting fee awards to situations where the bad acts occurred within the section 12.55 litigation was irrelevant because the placement of the fee provision in section 12.60-a section entitled "Practice in actions under Section 12.50, 12.55, and 12.56"-necessarily limits the fee awards to situations where the alleged conduct occurred within the proceedings. Along this same line, plaintiffs argue that if the legislature intended to allow an award of fees based on actions unrelated to the procedural aspect of the proceedings, it would have included a provision for attorney fees in the remedies sections of each section 12.50, 12.55, and 12.56. We disagree with plaintiffs' logic.

¶ 20 First, the language of sections 12.55(h) and 12.60(j) is not nearly identical; they differ in several important respects. The most important respect, of course, is the fact that the language of section 12.55(h) very specifically limited fee awards to situations where the arbitrary, vexatious, and otherwise not in good faith actions occurred "in such action [under section 12.55] or in connection with any alternative relief provided in this Section." Section 12.60(j) contains no such language or any language even remotely close in meaning.

¶ 21 This brings us to the second reason that we disagree with plaintiffs' logic. Where the legislature had previously demonstrated a clear ability to narrowly limit the actions on which a fee award could be based, absent any indication to the contrary, there can be no conclusion other than that the removal of such limiting language was also intended to remove the limitation. Plaintiffs' contention that the placement of section 12.60(j) in a section dedicated to practice somehow reimposes the limitation the legislature had just removed is nonsensical. Initially, we note that although the title of a statute can provide some interpretive guidance, where the language of the statute contradicts the title, the statutory language controls. Mahoney v. Industrial Comm'n , 218 Ill. 2d 358, 372-73, 300 Ill.Dec. 59, 843 N.E.2d 317 (2006). Here, as discussed, the language of section 12.60(j) is clear and, to the extent that the title of section 12.60 contradicts it, the language of subsection (j) prevails. Moreover, we think the placement of section 12.60(j) is easily explained by the fact that the legislature intended to set out the manner (i.e. , method of practice) by which a party could obtain a fee award and by the fact that the legislature intended to expand the availability of fee awards to litigants in section 12.50, 12.55, and 12.56 matters and section 12.60 governs practice in all through of those sections. We decline plaintiffs' invitation to conclude that the legislature chose to replace very specific limiting language with a vague section title in hopes that litigants and trial courts would somehow understand that the title of the section was to serve as a limitation on fee awards.

¶ 22 Given that we disagree with plaintiffs' contention that there is no substantive difference between the prior section 12.55(h) and the current section 12.60(j), we also disagree that legal authorities interpreting or providing guidance on section 12.55(h) have any relevance to how section 12.60(j) is to be applied. More specifically, plaintiffs' reliance on Abreu is misplaced. In Abreu , the appellate court reversed the trial court's award of attorney fees under section 12.55(h) because "it did not properly base its award of attorney fees upon defendants' actions within the course of the litigation process itself ('in such action')." 224 Ill. App. 3d at 451, 166 Ill.Dec. 703, 586 N.E.2d 661. In so holding, the Abreu court relied on the specific language of section 12.55(h)-the very language that was abandoned by the legislature when it enacted section 12.60(j). See id. ("The language of section 12.55(h) reveals that the authority to award fees is limited to situations in which the court determines that a party in a case commenced under section 12.50 has acted arbitrarily, vexatiously or not in good faith 'in such action.' "). Moreover, the legislature's removal of the specific language relied on by the Abreu court-even after the Abreu decision was issued-further indicates a conscious decision by the legislature to remove the limitation. See Benhart v. Rockford Park District , 218 Ill. App. 3d 554, 558, 161 Ill.Dec. 242, 578 N.E.2d 600 (1991) ("[I]t is presumed that the legislature intended to change the existing law when amending a statute that has been the subject of judicial interpretation.").

¶ 23 Finally, plaintiffs argue that section 12.60(j) is "not dissimilar" from other attorney fees provisions, such as Illinois Supreme Court Rule 137 (eff. July 1, 2013), which permits a trial court to impose sanctions, including attorney fees, on a party who signs a pleading or other document in violation of Rule 137. Plaintiffs point out that to obtain sanctions under Rule 137, a party must demonstrate that their opponent made false allegations without cause and the trial court's decision must be based on the circumstances of the case. According to plaintiffs, these standards were not met in the present case. This argument fails for obvious reasons.

¶ 24 First, plaintiffs make no attempt to explain their very vague and nondescriptive phrase, "not dissimilar." They also do not provide any argument or authority for the proposition that when a statute is "not dissimilar" from a supreme court rule, a party seeking relief under the statute must also meet the standard under the rule, nor do they provide any authority for the proposition that "not dissimilar" statutes and rules have some bearing on the interpretation of the other. For these reasons, plaintiffs have waived this contention. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (providing that an appellant's brief must contain "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"); CE Design, Ltd. v. Speedway Crane, LLC , 2015 IL App (1st) 132572, ¶ 18, 394 Ill.Dec. 53, 35 N.E.3d 1022 ("The failure to provide an argument and to cite to facts and authority, in violation of Rule 341, results in the party forfeiting consideration of the issue."). Waiver aside, however, as discussed above, the language of section 12.60(j) is plain and unambiguous. Thus, there is no need for us to consider outside sources to determine the standard defendant was required to meet, regardless of whether those outside sources are "not dissimilar." See NAB Bank v. LaSalle Bank, N.A. , 2013 IL App (1st) 121147, ¶ 10, 368 Ill.Dec. 429, 984 N.E.2d 154 ("When the statutory language is clear and unambiguous, we apply its plain and ordinary meaning without looking to outside sources for aid.").

¶ 25 By our interpretation of section 12.60(j), we do not intend to express any opinion on the wisdom of a fee provision that permits the recovery of fees and expenses based on the opposing party's actions outside of the litigation. Rather, we simply interpret the words of the statute as written by the legislature to identify the legislature's intent. Here, the plain language of section 12.60(j) does not limit fee awards to situations where the offending party acted arbitrarily, vexatiously, or not in good faith within the section 12.56 litigation. Moreover, the legislature's conscious removal of such a limitation from the predecessor to section 12.60(j) reinforces our interpretation that no such limitation was intended. If such a limitation is, in fact, desired by the legislature, it is the legislature's duty to amend section 12.60(j) to clearly reflect that intention; we cannot do it for the legislature. Based on our conclusion that the plain language of section 12.60(j) does not limit fee awards to those situations where the allegedly arbitrary, vexatious, or not in good faith acts took place within the litigation, we find no error in the trial court's consideration of plaintiffs' actions outside of defendant's section 12.56 claim.

¶ 26 Specific Findings

¶ 27 Although the parties do not raise it in their briefs, we pause to address an issue that was discussed during oral arguments. Section 12.60(j) allows for an award of reasonable attorney fees and expenses "[i]f the court finds that a party to any proceeding under Section 12.50, 12.55, or 12.56 acted arbitrarily, vexatiously, or otherwise not in good faith." It is our opinion that the italicized language clearly requires the trial court to make a specific finding of the offending party's arbitrary, vexatious, or otherwise not in good faith actions.

¶ 28 Here, it is questionable whether the trial court made a specific finding that plaintiffs' engaged in arbitrary, vexatious, or otherwise not in good faith behavior-either within or outside the scope of the litigation. In the trial court's first order on defendant's motion to reconsider, the trial court specifically stated that it did not "find in presiding over the law division jury case illegality, vexatious, otherwise arbitrary conduct in bad faith in this proceeding." Nevertheless, in the second order on defendant's motion to reconsider, entered the same day as the first order, the trial court awarded defendant attorney fees and expenses after "thoughtful consideration of the history of the LLC meeting, and the partition suit and the actions concerning discovery according to the interpretation of [defendant]." It is unclear whether the trial court's thoughtful consideration lead it to conclude that "the history of the LLC meeting, and the partition suit and the actions concerning discovery" constituted arbitrary, vexatious, or otherwise not in good faith acts.

¶ 29 In any case, we need not determine whether these arguably contradictory orders contain a sufficient finding of arbitrary, vexatious, or otherwise not in good faith actions on the part of plaintiff, as plaintiff has taken no issue with the sufficiency of the trial court's findings, thereby forfeiting any claim of error in this respect. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (providing that an appellant's brief must contain "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"); CE Design, Ltd. , 2015 IL App (1st) 132572, ¶ 18, 394 Ill.Dec. 53, 35 N.E.3d 1022 ("The failure to provide an argument and to cite to facts and authority, in violation of Rule 341, results in the party forfeiting consideration of the issue.").

¶ 30 Amount of Award

¶ 31 Plaintiffs next argue that the trial court abused its discretion in the amount of fees and expenses that it awarded to defendant. Specifically, plaintiffs contend that the trial court erred in awarding fees that were not incurred within defendant's section 12.56 action and fees that were not a direct result of plaintiffs' arbitrary, vexatious, or not good faith actions. We conclude that although the trial court, as discussed above, was permitted to consider plaintiffs' actions outside of the section 12.56 claim when determining whether to award attorney fees and expenses, the amount of the attorney fees and expenses awarded could not exceed those incurred in the section 12.56 action. Despite generally arguing that the trial court awarded defendant fees and expenses that were incurred outside of the section 12.56 claim, we conclude that plaintiffs have failed to present a sufficient record or sufficient argument to justify a determination that the trial court abused its discretion.

¶ 32 Before discussing whether the amount of the attorney fees and expenses awarded by the trial court constituted an abuse of discretion, we must, once again, examine the language of section 12.60(j) to determine what fees and expenses fall within the trial court's discretion to award. According to plaintiffs, the fees and expenses must be incurred within the scope of a section 12.50, 12.55 or 12.56 claim, and they must be the direct result of the arbitrary, vexatious, or not good faith action. We agree with the former contention, but not the latter.

¶ 33 Section 12.60(j) states that if the trial court finds that a party to a proceeding under section 12.50, 12.55, or 12.56 acted arbitrarily, vexatiously, or otherwise not in good faith, it may award other parties their "reasonable expenses, including counsel fees and the expenses of appraisers or other experts, incurred in the proceeding." This language clearly limits any award to those fees and expenses "incurred in the proceeding," i.e. , the section 12.50, 12.55, or 12.56 proceeding referenced earlier in the provision. Thus, as applied to the present case, the trial court possessed the discretion to award only those attorney fees and expenses that were incurred in the prosecution of defendant's section 12.56 claim.

¶ 34 With respect to plaintiffs second claim-that the fees and expenses must be a direct result of the arbitrary, vexatious, or not good faith actions-we do not find any support for such a proposition within the plain language of section 12.60(j). Rather, section 12.60(j) simply says that the trial court may award the petitioning party's "reasonable expenses, including counsel fees and the expenses of appraisers or other experts." It imposes no requirement that those reasonable expenses be expenses necessitated by the offending party's actions. Thus, any argument by plaintiffs that some or all of the fees and expenses awarded by the trial court in the present case were not a direct result of plaintiffs' actions fails.

¶ 35 Having determined the scope of the trial court's discretion in awarding attorney fees and expenses under section 12.60(j), we turn now to whether the trial court abused its discretion in this case by awarding fees and expenses that were not incurred within the scope of defendant's section 12.56 claim. Attached to defendant's fee petition were 112 pages of billing records from his counsel, evidencing the attorney fees and expenses incurred since the beginning of August 2012, just weeks before plaintiffs filed their partition action and just a couple of months before defendant filed his section 12.56 claim. Also attached to defendant's fee petition was an affidavit from one of his attorneys, attesting that the total fees and expenses incurred by defendant in the litigation was $339,210.82. The record reveals that the trial court, on two separate occasions, stated that it would review the defendant's billing records in detail. Based on those reviews, the trial court awarded defendant a total of $339,000 in attorney fees and expenses.

¶ 36 We are unable to afford plaintiffs any relief from the amount of attorney fees and expenses awarded by the trial court, because plaintiffs' counsel-both in the trial court and on appeal-failed to articulate which expenses and fees were incurred within defendant's 12.56 litigation and which were not. Instead, in the trial court, plaintiffs did not argue that defendant's fee award should be limited to $11,093.75 in fees associated with plaintiffs' discovery noncompliance until plaintiffs filed their motion to alter or amend the award of fees. Even then, plaintiffs only picked out those fees that they believed were a direct result of their arbitrary, vexatious, or not in good faith behavior, which we, as discussed above, conclude is not the appropriate standard. Rather, upon a finding that plaintiffs engaged in arbitrary, vexatious, or not in good faith behavior, defendant is entitled to an award of all reasonable fees and expenses incurred in his section 12.56 action, regardless of whether they are a direct result of plaintiffs' offending behavior.

¶ 37 On that note, although plaintiffs make a general argument that not all of the $339,000 awarded could have been incurred within the scope of defendant's section 12.56 claim, they offer no support-either in terms of legal authority or record evidence-of that position, other than the fact that there were other types of claims pending, including plaintiffs' partition action. Plaintiffs fault the trial court for failing to isolate those expenses that were associated with defendant's section 12.56 claim; yet, their argument on appeal suffers from the same infirmity. Other than conclusively stating that the trial court should have awarded defendant only $11,093.75 in fees associated with plaintiffs' discovery noncompliance, plaintiffs make no attempt to identify and explain which charges related or did not relate to defendant's section 12.56 claim. In addition, plaintiffs do not explain how they reached $11,093.75 as the proper amount or what charges they included in that amount. This failure to develop and support their argument is fatal to plaintiffs' claim on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (providing that an appellant's brief must contain "[a]rgument, which shall contain the contentions of the appellant and the reasons therfor, with citation of the authorities and the pages of the record relied on"); CE Design, Ltd. , 2015 IL App (1st) 132572, ¶ 18, 394 Ill.Dec. 53, 35 N.E.3d 1022 ("The failure to provide an argument and to cite to facts and authority, in violation of Rule 341, results in the party forfeiting consideration of the issue.").

¶ 38 The need for further development and support of plaintiffs' argument is especially apparent in situations such as this. Certainly, the existence of numerous claims other than defendant's section 12.56 claim and the trial court's award of nearly all of defendant's attorney fees and expenses raise questions of whether all of the fees awarded were actually incurred in pursuit of defendant's section 12.56 claim. That being said, however, it appears from the billing records that defendant's attorneys were working to prepare defendant's claims even before the filing of plaintiffs' partition action; thus, without more, there can be no division of fees based on when each claim was filed. In addition, given that all of the parties' claims revolved around the disputes involving Kurowski's, it is entirely possible that many of the same facts that were at issue in defendant's section 12.56 claim were also at issue in the other claims.

¶ 39 As the reviewing court, it is not our duty to review the billing records and parse out which expenses and hours were spent on defendant's section 12.56 claim and which were not. Presumably, the trial court already did that, and plaintiffs have made no effort to identify and explain the specific charges that should or should not have been included in the award. Instead, without any further explanation, plaintiffs simply state, "If the trial court had applied Section 12.60(j) standards to its review of the costs, it should have concluded that the only [sic ] $11,093.75 were incurred as a result of [plaintiffs'] non-compliance in discovery." Had plaintiffs' counsel taken the time to identify and explain fees and expenses that the trial court awarded to defendant but that were not incurred within the scope of his section 12.56 claim, we might have been able to afford some relief to plaintiffs. After all, it is difficult to believe that nearly all of defendant's fees and expenses were incurred within the scope of just one of the six claims he initially brought. That being said, if plaintiffs' counsel is unwilling to develop or support their arguments for reversal, we will not do it for them. Obert v. Saville , 253 Ill. App. 3d 677, 682, 191 Ill.Dec. 740, 624 N.E.2d 928 (1993) ("A reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented [citation], and it is not a repository into which an appellant may foist the burden of argument and research [citation]; it is neither the function nor the obligation of this court to act as an advocate or search the record for error.").

¶ 40 Absent additional argument, evidence, and authority, we cannot conclude that the trial court abused its discretion in its award of attorney fees and expenses to defendant under section 12.60(j) of the Corporation Act.

¶ 41 CONCLUSION

¶ 42 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 43 Affirmed.

Justices Hyman and Walker concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David F. BALLER, Defendant-Appellant.
    Appeal No. 3-16-0165
    Appellate Court of Illinois, Third District.
    Opinion filed June 27, 2018
    James E. Chadd, Thomas A. Lilien, and Jack Hildebrand, of State Appellate Defender's Office, of Elgin, for appellant.
    James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE WRIGHT delivered the judgment of the court.

¶ 1 Defendant, David F. Baller, appeals from the trial court's order denying his motion for leave to file a successive postconviction petition. On appeal, defendant argues the State erroneously filed an objection to his motion for leave and the court erroneously considered the State's objection in denying defendant leave. We vacate and remand with directions.

¶ 2 FACTS

¶ 3 Defendant entered an open plea of guilty to one charge of aggravated criminal sexual assault ( 720 ILCS 5/12-14(a)(8) (West 2002) ). The trial court admonished defendant that he could receive a potential sentence of 6 to 30 years' imprisonment and the sentence would be served consecutive to the prison sentence defendant was then serving. Defendant indicated he understood the potential sentence. The court sentenced defendant to 30 years' imprisonment. The court ordered the sentence to run consecutively to the sentence imposed in Cook County case No. 05-CR-0778501.

¶ 4 On November 18, 2011, defendant filed a pro se postconviction petition, which raised claims of ineffective assistance of trial and appellate counsel. The court summarily dismissed the petition. On appeal, we affirmed the court's dismissal. People v. Baller , 2014 IL App (3d) 120214-U, 2014 WL 1010205.

¶ 5 On June 19, 2015, defendant filed a pro se motion for leave to file a successive postconviction petition. The State filed a written objection to defendant's motion. At a subsequent court date, when only the State was present, the court denied defendant's motion, stating:

"I've had a chance to review the defendant's petition for leave to file a successive post conviction [sic ]. I also had a chance to read the State's motion to-or your objection, and I'm going to grant your objection. I'm not going to allow him to file a successive petition for post-conviction relief."

Defendant appeals from the trial court's denial of his motion for leave to file a successive postconviction petition.

¶ 6 ANALYSIS

¶ 7 Defendant argues the court impermissibly relied on input from the State before denying defendant's motion for leave to file a successive postconviction petition. Defendant requests a reversal of the order denying his motion for leave and asks this court to remand the matter for the trial court to consider defendant's motion anew, without input from the State. The State agrees the trial court should not have considered the State's position before denying defendant's request to file a successive postconviction petition. However, the State asserts that remand is unnecessary. On appeal, the State requests this court to affirm the trial court's order because defendant's motion did not adequately allege cause and prejudice.

¶ 8 The issue of whether reversible error arises when a trial court takes the State's position into consideration before ruling on a defendant's motion seeking leave to file a successive postconviction petition was recently addressed in People v. Bailey , 2017 IL 121450, 421 Ill.Dec. 833, 102 N.E.3d 114. In Bailey , the supreme court held "it is premature and improper for the State to provide input to the court before the court has granted a defendant's motion for leave to file a successive [postconviction] petition." (Emphasis added.) Id. ¶ 20. Ultimately, the supreme court found section 122-1(f) of the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1(f) (West 2016) ) requires the trial court to conduct an independent inquiry, without input from the State, before determining whether a defendant is entitled to receive the requested leave necessary to file a successive postconviction petition. Bailey , 2017 IL 121450, ¶ 24, 421 Ill.Dec. 833, 102 N.E.3d 114.

¶ 9 In People v. Munson , 2018 IL App (3d) 150544, 422 Ill.Dec. 162, 102 N.E.3d 831, this court had an opportunity to apply Bailey to set aside a trial court's decision granting the State's motion to dismiss the defendant's motion for leave to file a successive postconviction petition. We further found that section 122-1 of the Act expressly contemplates the filing of the petition in the " 'trial court.' " Id. (quoting 725 ILCS 5/122-1 (West 2014) ). Therefore, consistent with the spirit of Bailey and plain language of the Act, we remanded the cause with directions for the trial court to conduct an independent determination pertaining to whether defendant's motion for leave satisfied the requirement of cause and prejudice. Id. ¶ 12.

¶ 10 In this case, the State also opposed defendant's motion for leave to file a successive postconviction petition in the trial court. Here, the court considered the State's opposition before denying defendant's motion. On appeal, both parties agree the trial court's approach was incorrect in light of Bailey . Consequently, we conclude that remand to the trial court for new proceedings on defendant's motion, held without input from the State, is appropriate.

¶ 11 The dissenting justice seems to agree that the trial court erred by considering the State's input but contends a remand in this case is not necessary. Specifically, the dissenting justice declares our approach to remand the matter to the trial court in Munson misconstrues Bailey and was "wrongly decided." Infra ¶ 27. Rather than remanding the matter in the case at bar, the dissent would simply affirm the trial court's incorrect decision. Such an approach by the dissent not only affirms the trial court's erroneous procedures but inexplicably repeats the same error by declaring the motion to be insufficient after adopting the State's position on cause and prejudice, as expressly argued by the State in this appeal.

¶ 12 We recognize that the Bailey court analyzed the contents of Bailey's motion for leave to file a supplemental postconviction petition. Bailey , 2017 IL 121450, ¶¶ 42-46, 421 Ill.Dec. 833, 102 N.E.3d 114. However, unlike this court, the supreme court has been vested with broad supervisory authority by the Illinois Constitution. Ill. Const. 1970, art. VI, § 16. These powers are not limited by any rules or means for their exercise. People v. Salem , 2016 IL 118693, ¶ 20, 400 Ill.Dec. 32, 47 N.E.3d 997.

¶ 13 It appears the dissent bristles at our holding in Munson recognizing our intermediate court of review does not possess the same broad supervisory authority exercised by our supreme court in Bailey. The dissent announces that "[t]here is nothing about a successive postconviction petition that would take it out of the realm of garden-variety appellate review." Infra ¶ 29. The dissent suggests its approach "has nothing to do with supervisory authority but, rather, with our license to affirm for any reason apparent in the record." Infra ¶ 29.

¶ 14 While we acknowledge the generally accepted principle that an appellate court may affirm on any basis found in the record, we conclude this general principle does not apply in the case at bar. The Bailey court expressly held that "the State should not be permitted to participate at the cause and prejudice stage of successive postconviction proceedings." Bailey , 2017 IL 121450, ¶ 24, 421 Ill.Dec. 833, 102 N.E.3d 114. Bailey clearly held the State's participation in the trial court constitutes error. Id. We presume the holding in Bailey precludes the State's discussion of cause and prejudice before any court, including our court of intermediate review.

¶ 15 Here, the State's entire seven-page appellee brief argues that defendant has failed to establish cause and prejudice. Clearly, the appellate prosecutor has thoughtfully participated and expressed the State's views on the question of whether defendant's motion in the trial court established cause and prejudice. Ironically, the dissent relies on the State's argument to the point of adopting, verbatim, the State's rationale that "[d]efendant's ignorance of the law cannot amount to cause sufficient to explain his failure to bring this claim in his initial postconviction proceeding." Infra ¶ 26. This is simply not the isolationist review required by Bailey .

¶ 16 Thus, we emphasize that the procedural posture of the instant case creates an exception to the general principle that an appellate court may affirm on any basis found in the record. The supreme court has expressly held that the Act is entirely a creature of statute and all rights derive only from the statute. People v. De La Paz , 204 Ill. 2d 426, 432, 274 Ill.Dec. 397, 791 N.E.2d 489 (2003). Further, the supreme court has expressly held that review of a motion for leave to file a successive postconviction petition must be conducted in a venue free from State participation. Bailey , 2017 IL 121450, ¶ 24, 421 Ill.Dec. 833, 102 N.E.3d 114. The only way to honor these holdings is to reset the scales of justice and remand the matter to the trial court for an independent evaluation of defendant's motion by expressly ignoring the State's input as expressed both in this court and the trial court.

¶ 17 CONCLUSION

¶ 18 The trial court's order denying defendant's motion for leave to file a successive postconviction petition is vacated, and the matter is remanded with directions for the trial court to conduct a de novo review of defendant's motion prior to allowing any input from the State. Defendant's request to order the motion to be heard by a different judge is denied.

¶ 19 Vacated and remanded with directions.

Justice Holdridge specially concurred, with opinion.

Justice Schmidt dissented, with opinion.

¶ 20 JUSTICE HOLDRIDGE, specially concurring:

¶ 21 While I agree with the majority's reversal and remand of this case, I respectfully deviate from its analysis.

¶ 22 In Bailey , 2017 IL 121450, ¶ 24, 421 Ill.Dec. 833, 102 N.E.3d 114, the supreme court expressly held "that the State should not be permitted to participate at the cause and prejudice stage of successive postconviction proceedings." The supreme court observed that "although the Act does not expressly prohibit the State's input, we find that the Act contemplates an independent determination by the circuit court." Id. The supreme court reiterated this holding throughout the 24 paragraphs that proceeded it. See id. ¶¶ 25, 27, 39, 48. Following this clear delineation of a rule that requires "an independent determination by the circuit court " (emphasis added) ( id. ¶ 24 ), the supreme court curiously proceeded to review Bailey's motion outside of the circuit court and after considering the State's argument that the "defendant's motion is deficient on its face." Id. ¶¶ 41-46.

¶ 23 The instant case presents a scenario that is procedurally similar to Bailey . Following the circuit court's erroneous consideration of the State's objection to the defendant's motion for leave, the State argued against the merits of the defendant's motion in its appellee's brief. In light of the State's continued objection, and out of an abundance of caution, I agree that the case must be remanded for the circuit court to make an independent determination of whether the defendant has shown cause and prejudice. If we affirm the denial of the defendant's motion, it is difficult to say that our decision was not influenced, at least in some respect, by the State's appellate argument against the motion. See id. ¶ 33. Such influence from the State would clearly violate the Bailey rule.

¶ 24 JUSTICE SCHMIDT, dissenting:

¶ 25 I respectfully dissent. I agree with the majority with respect to its determination that the trial court erred in allowing the State to participate in the hearing to determine whether defendant was entitled to leave to file a successive postconviction petition. I part company with the majority when it determines application of Bailey requires reversal and remand. The Bailey court, having found error by virtue of the State's involvement in the trial court's determination to deny leave to file a successive postconviction petition, went on, in the interest of judicial economy, to review defendant's motion. People v. Bailey , 2017 IL 121450, ¶¶ 41-42, 421 Ill.Dec. 833, 102 N.E.3d 114. Because the defendant's motion failed to establish cause and prejudice, the court affirmed the trial court's denial of leave. Id. ¶ 46.

¶ 26 Here, it is clear that defendant has failed to allege facts to support cause. Specifically, defendant alleged:

"2. There is cause for my failure to bring the claim contained in the current petition in my previous post-conviction petition, in that I was unaware of the MSR violation of due process, until my third appeal in January of 2012."

Defendant's ignorance of the law cannot amount to cause sufficient to explain his failure to bring this claim in his initial postconviction proceeding. See People v. Evans , 2013 IL 113471, ¶ 13, 371 Ill.Dec. 168, 989 N.E.2d 1096. There is no need to discuss prejudice. Notwithstanding the error, the trial court properly denied defendant's motion for leave to file a successive postconviction petition. Any remand in this case constitutes an absolute waste of judicial resources. The majority argues that since I, after reviewing the record, came to the same conclusion as did the State, I must have relied upon the State's input. Supra ¶ 15. Not so! Coming to the same conclusion after a review of the record is decidedly different than relying on the State's argument. The defendant's motion is deficient on its face; ignorance of the law is not cause.

¶ 27 The majority relies on People v. Munson , 2018 IL App (3d) 150544, 422 Ill.Dec. 162, 102 N.E.3d 831, for the proposition that we are without power to affirm in light of the error. Supra ¶¶ 9-10. I submit that Munson is wrongly decided. The majority determines that we must remand because, "unlike this court, the supreme court has been vested with broad supervisory authority by the Illinois Constitution." Supra ¶ 12.

¶ 28 The Bailey court's review of the merits of the petition for leave had nothing to do with its supervisory authority. Bailey , 2017 IL 121450, 421 Ill.Dec. 833, 102 N.E.3d 114. We can affirm for any reason apparent in the record. City of Champaign v. Torres , 214 Ill. 2d 234, 241, 291 Ill.Dec. 768, 824 N.E.2d 624 (2005) ; Guzzo v. Snyder , 326 Ill. App. 3d 1058, 1064, 261 Ill.Dec. 94, 762 N.E.2d 663 (2001). Apparent in this record, as it was in Bailey , is the fact that the motion for leave to file a successive postconviction petition is utterly without merit for the reasons set forth above.

¶ 29 The Munson court's train jumped the tracks in paragraph 10. Munson , 2018 IL App (3d) 150544, ¶ 10, 422 Ill.Dec. 162, 102 N.E.3d 831. It simply asserted that to review the record to evaluate whether the trial court's error prejudiced defendant involved an exercise of supervisory authority. It never discussed why that is so. The Munson court noted, "Notably, Illinois Supreme Court Rule 615 does not provide the appellate court with the power to conduct a de novo hearing on defendant's motion for leave to file a successive postconviction petition." Id. There is nothing novel or unique about affirming the trial court in this case without remand, notwithstanding the trial court's error below. We do it all the time. Again, this has nothing to do with supervisory authority but, rather, with our license to affirm for any reason apparent in the record. I need not cite any case authority for the notion that "de novo " is an oft-used standard of review in the appellate court. In plain English, the trial court reviewed and denied defendant's motion for leave to file his successive postconviction petition. The trial court erred in allowing the State to participate in that decision. Notwithstanding the error, the ultimate judgment of the trial court was correct. We should affirm. We do this thousands of times a year in cases not involving successive postconviction petitions. There is nothing about a successive postconviction petition that would take it out of the realm of garden-variety appellate review. That portion of the Munson court's ruling, holding that affirming without remand involves exercise of supervisory authority, appears to be an anomaly in Illinois jurisprudence. As in Bailey , the error below was harmless.

¶ 30 I would affirm the trial court.


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    Nancy R. MALEK, Plaintiff-Appellee, v. GOLD COAST EXOTIC IMPORTS, LLC, Defendant-Appellant.
    No. 1-17-1459
    Appellate Court of Illinois, First District, Third Division.
    Opinion filed June 27, 2018
    Ira M. Levin, Susan M. Horner, Nora E. Flaherty, and Blake A. Roter, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for appellant.
    Fred R. Harbecke, of Chicago, for appellee.
   JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 This appeal arises out of a replevin action, seeking to recover a 2012 BMW 650i automobile. Pursuant to an alleged verbal agreement, the former owner of the BMW, Michel Malek, M.D., transferred possession of the vehicle to Gold Coast Exotic Imports, LLC (Gold Coast), in order to satisfy a debt. At the time that the BMW was transferred to Gold Coast, Michel and plaintiff Nancy Malek were in the midst of a divorce action pending in Cook County.

¶ 2 After Gold Coast obtained possession of the BMW, Nancy filed a motion to assign and transfer title to the vehicle from Michel to her. The divorce court granted Nancy's motion but ordered that she take the BMW subject to any liens on the vehicle. Nancy subsequently sought possession of the BMW from Gold Coast. Gold Coast refused Nancy's demand, claiming it was entitled to possession of the BMW pursuant to its agreement with Michel. Shortly thereafter, Nancy filed a replevin action against Gold Coast in the trial court. Following a bench trial on the matter, the trial court held that Nancy was entitled to the BMW because Gold Coast never recorded its lien on the vehicle.

¶ 3 Gold Coast now appeals from that judgment. Specifically, Gold Coast asserts that it had a perfected security interest in the form of a possessory lien on the BMW pursuant to section 9-313(a) of the Uniform Commercial Code (UCC) ( 810 ILCS 5/9-313(a) (West 2016) ), which preceded Nancy's interest in the vehicle, thus defeating her replevin action. We agree and therefore reverse the trial court's judgment for the reasons set forth below.

¶ 4 BACKGROUND

¶ 5 On August 3, 2013, Gold Coast delivered the BMW to Michel for an agreed upon value of $88,451.81. At that time, Michel did not pay Gold Coast for the vehicle in full, but paid only $6551.20, which represented the sales tax and license and title fees for the vehicle. Title to the BMW was issued in Michel's name only. This transaction was pursuant to a verbal agreement between Michel and Gold Coast, involving multiple vehicles from prior transactions between the parties, which resulted in a credit to Michel that was applied towards the BMW. As part of their agreement, Michel owed Gold Coast a remaining balance of $33,294.18. Michel would either repay that balance or, alternatively, return the BMW to Gold Coast to be sold as satisfaction of his debt.

¶ 6 Some two years later, in September 2015, Michel's balance remained unpaid. Consequently, pursuant to his agreement with Gold Coast, Michel shipped the BMW back to Gold Coast from California, where the vehicle was being used by the couple's son at college. On October 5, 2015, the BMW arrived at Gold Coast. At that time, Michel and Nancy were in the midst of a divorce action, which was pending in the circuit court of Cook County (14-D-4449).

¶ 7 On October 29, 2015, Nancy filed an emergency motion in the divorce action, to immediately assign and transfer title of the BMW from Michel to her. The motion was denied and shortly thereafter, on November 3, 2015, Nancy filed a second emergency motion to immediately assign and transfer title of the BMW. In support, she filed an affidavit attesting that she had visited Gold Coast and was informed that the BMW would be sold. According to Gold Coast, it never received notice of her emergency motions.

¶ 8 On November 3, 2015, the divorce court granted Nancy's second motion and entered an order requiring that title to the BMW be transferred from Michel to Nancy and that Nancy take the vehicle subject to any liens as of that date. Subsequently, Nancy sent a letter as well as a copy of the title transfer order to Gold Coast and its owner, Joseph Perillo, demanding immediate possession of the BMW.

¶ 9 Gold Coast refused and sent a letter to Nancy, stating the terms of its agreement with Michel and claimed that the BMW was in its possession because Michel failed to satisfy his $33,294.18 debt pursuant to their agreement.

¶ 10 Shortly thereafter, Nancy filed an action in replevin against Gold Coast in the trial court (15-L-50794) pursuant to section 19-101 of the Code of Civil Procedure (Code) ( 735 ILCS 5/19-101 (West 2016) ). On June 21, 2016, the trial court entered an order requiring Gold Coast to transfer possession of the BMW to Nancy upon the presentation of a replevin bond. Nancy subsequently obtained a replevin bond and possession of the BMW from Gold Coast. Nancy then sold the BMW to Steve Foley Cadillac, Incorporated, for $36,500.

¶ 11 In February 2017, the trial court held a bench trial on Nancy's replevin action. Nancy filed a motion in limine to exclude certain testimony relating to the verbal agreement between Michel and Gold Coast, arguing that it was hearsay because Michel was unavailable to testify at trial. The trial court denied her motion and heard testimony from Nancy and Joseph Perillo, reflecting the above-stated facts. At trial, Gold Coast argued that the November 3, 2015, title transfer order was void because Gold Coast was never served a copy of the motion. In response, Nancy claimed that Gold Coast was never served a copy of the motion because she was unaware of Gold Coast's security interest in the BMW prior to filing the replevin action since there were no liens recorded on the vehicle.

¶ 12 On May 12, 2017, the trial court issued an order of replevin in favor of Nancy and entered judgment against Gold Coast for the amount of the BMW. The court also ordered that the proceeds from the sale of the BMW be tendered to Nancy and stated that the order was final and appealable. Gold Coast now appeals that judgment.

¶ 13 ANALYSIS

¶ 14 On appeal, Gold Coast challenges the trial court's judgment issuing an order of replevin, finding that Nancy was entitled to immediate possession of the BMW. Gold Coast asserts that the court, in finding that Nancy was entitled to immediate possession of the BMW, misapplied the UCC because it failed to recognize Gold Coast's prior security interest in the form of a perfected possessory lien. Gold Coast asserts that its rights to the vehicle were, therefore, superior to Nancy's subsequent rights obtained in the title transfer order. Gold Coast thus contends that Nancy cannot succeed in the replevin action because she was not entitled to possession of the BMW. Because the action of replevin is a strictly statutory proceeding, our review of the trial court's judgment is de novo . Gunn v. Sobucki , 216 Ill. 2d 602, 609, 297 Ill.Dec. 414, 837 N.E.2d 865 (2005) ; General Motors Acceptance Corp. v. Stoval , 374 Ill. App. 3d 1064, 1072, 313 Ill.Dec. 331, 872 N.E.2d 91 (2007).

¶ 15 The primary purpose of replevin is to determine the right to possession of property, not title. General Motors Acceptance Corp. , 374 Ill. App. 3d at 1072, 313 Ill.Dec. 331, 872 N.E.2d 91. Section 19-101 of the Code states in relevant part:

"Whenever any goods or chattels have been wrongfully distrained, or otherwise wrongfully taken or are wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession." 735 ILCS 5/19-101 (West 2016).

¶ 16 As stated, the trial court found that Nancy was a person entitled to possession of the BMW, and therefore, able to recover the chattel via replevin. Gold Coast contends, nonetheless, that Nancy was not entitled to possession of the BMW. Gold Coast asserts that Nancy's rights to the BMW were subject to its prior security interest in the form of a perfected possessory lien. Gold Coast asserts that when it took possession of the BMW from Michel, its security interest attached to the vehicle in the form of a lien and became perfected. Nancy, on the other hand, asserts that Gold Coast's security interest was not perfected because Gold Coast never recorded its lien as it was never filed with the Illinois Secretary of State.

¶ 17 To address the issue of whether Gold Coast perfected its interest by possession, we must first determine whether a valid security interest was created from the agreement between Michel and Gold Coast. Article 9 of the UCC ( 810 ILCS 5/9-109(a)(1) (West 2016) ) applies to any transaction, regardless of its form, that intends to create a security interest in personal property. General Motors Acceptance Corp. , 374 Ill. App. 3d at 1073, 313 Ill.Dec. 331, 872 N.E.2d 91. A security interest is the secured party's rights in the collateral held by the debtor. Andrews v. Mid-America Bank & Trust Co. , 152 Ill. App. 3d 139, 143, 105 Ill.Dec. 114, 503 N.E.2d 1120 (1987). The creation of a security interest in vehicles that require a certificate of title is solely governed by article 9 of the UCC. Id. ; Laurel Motors, Inc. v. Airways Transportation Group of Companies, Inc. , 284 Ill. App. 3d 312, 316, 219 Ill.Dec. 932, 672 N.E.2d 785 (1996).

¶ 18 As a threshold matter, however, Nancy incorrectly asserts that Gold Coast, in order to perfect its security interest, was required to record its lien on the BMW's certificate of title and file it with the Secretary of State pursuant to article II of Chapter 3 of the Illinois Vehicle Code ( 625 ILCS 5/3-202 (West 2016) ), governing security interests under certificates of title and registration of vehicles. It is true that certain transactions that create security interests otherwise governed by article 9 may, instead, be controlled by other applicable consumer laws or statutes, including article II of Chapter 3 of the Vehicle Code. 810 ILCS 5/9-201(b)(3) (West 2016). Article II, however, does not apply to certain "excepted" liens and security interests. 625 ILCS 5/3-201 (West 2016). Specifically, section 3-201(c) plainly states that article II does not apply to or affect "[a] security interest in a vehicle created by a manufacturer or dealer who holds the vehicle for sale." Id. § 3-201(c). As set forth in more detail below, article II does not apply here because Gold Coast's security interest in the BMW was created when Gold Coast, as an automobile dealer, sold the vehicle to Michel pursuant to their agreement. Accordingly, we will proceed under article 9 of the UCC.

¶ 19 Under section 9-203(b) of the UCC, a security interest is created if (1) value has been given, (2) the debtor has rights in the collateral or the power to transfer such rights to a secured party, and (3) the debtor and the secured party have agreed that a security interest shall attach to the collateral. 810 ILCS 5/9-203(b) (West 2016).

¶ 20 Applying the above-stated factors to this case, we conclude that the agreement between Michel and Gold Coast created a valid security interest. First, value was given because Gold Coast delivered the BMW to Michel for $33,294.18. Second, Michel had rights in the BMW because Gold Coast transferred title and possession of the vehicle to him. Third, Michel and Gold Coast agreed that Gold Coast's security interest would attach to the BMW if Michel failed to satisfy his debt. Michel did not pay the balance owed, and in satisfaction of his debt, he instead returned the vehicle to Gold Coast pursuant to their agreement.

¶ 21 With regard to the third requirement, typically the parties' agreement that a security interest attaches to the collateral is evidenced by a written, authenticated security agreement.

Id. § 9-203(b)(3)(B) ; Andrews , 152 Ill. App. 3d at 143, 105 Ill.Dec. 114, 503 N.E.2d 1120. A secured party may then perfect its security interest by filing a financing statement with the Secretary of State, and this places third parties on notice of that party's interest in the collateral. 810 ILCS 5/9-310(a) (West 2016); Laurel Motors, Inc. , 284 Ill. App. 3d at 317, 219 Ill.Dec. 932, 672 N.E.2d 785. However, the parties' agreement that a security interest attaches to the collateral may also be evidenced by the secured party's actual possession of the collateral, and such possession likewise operates to put third parties on notice of the secured party's interest in the collateral. Laurel Motors, Inc. , 284 Ill. App. 3d at 317, 219 Ill.Dec. 932, 672 N.E.2d 785 ; Edibles Corp. v. West Ontario Street Ltd. Partnership , 273 Ill. App. 3d 550, 554, 210 Ill.Dec. 458, 653 N.E.2d 45 (1995) ; 810 ILCS 5/9-310(b)(6) (West 2016).

¶ 22 Here, Michel and Gold Coast did not have a written security agreement, but Gold Coast satisfied the third factor under section 9-203(b) by taking possession of the BMW. Gold Coast perfected its security interest, even absent a Secretary of State filing, simply by taking possession of the BMW. Likewise, Gold Coast put Nancy on notice of its security interest in the absence of a filed financing statement by taking possession of the BMW because Michel no longer retained the vehicle. In her brief, Nancy concedes that she had notice of Gold Coast's security interest in the vehicle because "[k]nowing that the BMW was at Gold Coast, she asked for it to be turned over." In fact, in her emergency motion, Nancy pleaded such notice of Gold Coast's possession of the BMW as the basis for seeking the title transfer order. Thus, by taking possession of the BMW, Gold Coast perfected its security interest and put Nancy on notice of its interest in the vehicle.

¶ 23 Finally, Gold Coast contends that Nancy's rights in the BMW were subject to Gold Coast's prior superior interest in the form of a perfected possessory lien. We agree.

¶ 24 A lien arises when a secured party's interest attaches to the collateral. 810 ILCS 5/9-203(g), 9-333 (West 2016). Under section 9-203(a) of the UCC, a security interest attaches to the collateral and becomes enforceable against the debtor and third parties with respect to the collateral once the three factors under section 9-203(b) stated above are satisfied. Id. § 9-203. Here, a lien arose on the BMW. As established, Gold Coast satisfied all three factors under section 9-203(b). Thus, Gold Coast's security interest attached to the BMW and became enforceable against Michel as well as other third parties, including Nancy, on October 5, 2015.

¶ 25 Under section 9-202 of the UCC, the debtor's title to the collateral is immaterial with respect to the secured party's rights in the collateral under article 9. Id. § 9-202. Section 9-404(a)(1) of the UCC provides that an assignee's rights in the collateral are subject to the terms of the agreement between the debtor and the secured party as well as any defense or claim arising from the agreement. Id. § 9-404(a)(1). Here, Nancy's title to the BMW was immaterial because, as stated, Gold Coast had a prior superior interest in the vehicle in the form of a perfected possessory lien. Thus, because Nancy's title transfer order assigned Michel's rights in the BMW to Nancy, her rights were subject to the terms of the agreement between Michel and Gold Coast, including Gold Coast's superior claim to possession of the vehicle in the form of a perfected possessory lien. As previously stated, pursuant to the title transfer order, Nancy's rights in the BMW were subject to any liens on the vehicle as of November 3, 2015, and subject to Gold Coast's earlier lien of October 5, 2015.

¶ 26 Based on the foregoing, Nancy's replevin action fails because she was not entitled to possession of the BMW. To prevail in replevin, a plaintiff must be entitled to immediate possession of the property; thus, in turn, replevin is defeated when a plaintiff has no right to possession of the property. General Motors Acceptance Corp. , 374 Ill. App. 3d at 1072, 313 Ill.Dec. 331, 872 N.E.2d 91.

¶ 27 It should also be noted that Nancy's assertion that the trial court improperly admitted certain hearsay testimony from Joseph Perillo regarding Gold Coast's agreement with Michel is without merit, and Illinois law is well-settled to the contrary. "[T]he prohibition against hearsay does not preclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement." Werner v. Botti, Marinaccio & DeSalvo , 205 Ill. App. 3d 673, 678, 151 Ill.Dec. 41, 563 N.E.2d 1147 (1990). In Werner , the trial court properly admitted the plaintiff's testimony over hearsay objections because the testimony consisted primarily of matters that were discussed between him and the other party to the agreement, who was unavailable as a witness during the trial. Id. at 679, 151 Ill.Dec. 41, 563 N.E.2d 1147 (stating that "[t]he law is well established that where, as here, a declarant himself testifies as to prior out-of-court declarations he has made, and is therefore present in court and subject to cross-examination, the basis for excluding hearsay is removed, and no hearsay objection is appropriate").

¶ 28 Furthermore, we disagree with Nancy's assertion that Gold Coast is precluded from presenting evidence of its lien because it failed to raise the existence of its lien as an affirmative defense. Nancy relies on section 2-613(d) of the Code, which states that a defendant must set forth any ground or defense in its answer or reply if such ground or defense would be likely to take the plaintiff by surprise. 735 ILCS 5/2-613(d) (West 2016).

¶ 29 Here, Gold Coast was not required to raise its lien as an affirmative defense because Nancy was aware of Gold Coast's interest in the BMW; thus, Gold Coast's assertion of its lien on the vehicle could only come as no surprise to Nancy. Nonetheless, in its answer to Nancy's complaint in replevin, Gold Coast denied that Nancy was the owner of the BMW and also denied that the vehicle was wrongfully detained by Gold Coast. Gold Coast, in denying Nancy's right to possess the BMW, adequately asserted that possession of the vehicle was in dispute. We find that Gold Coast, therefore, sufficiently pleaded a defense to Nancy's replevin action because, as stated, replevin is an action involving one's right to possession of property. Id. § 19-101 ; General Motors Acceptance Corp. , 374 Ill. App. 3d at 1072, 313 Ill.Dec. 331, 872 N.E.2d 91.

¶ 30 CONCLUSION

¶ 31 We conclude that Nancy was not entitled to possession of the BMW and, therefore, cannot succeed in replevin. Furthermore, because Nancy was not entitled to the BMW or its proceeds, judgment should be entered in favor of Gold Coast for the return of the proceeds from the sale of the BMW in the amount $33,294.18 to satisfy Michel's debt. See 735 ILCS 5/19-123 (West 2016) (stating, "[i]f the plaintiff in an action of replevin obtains an order for replevin and the right of property is adjudged against the plaintiff, judgment shall be entered for a return of the property"). Accordingly, judgment should be entered in favor of Gold Coast in the amount of $33,294.18.

¶ 32 For the reasons stated, we reverse the trial court's order of replevin and judgment against Gold Coast for the value of the BMW and remand this cause to the trial court with instructions to enter judgment against Nancy for the value of the BMW.

¶ 33 Reversed and remanded.

Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the judgment and opinion.

      Section 9-102(a)(74) of the UCC defines a "security agreement" as "an agreement that creates or provides for a security interest." 810 ILCS 5/9-102(a)(74) (West 2016). Furthermore, official comment 3(b) under section 9-102, states that the term "security agreement," which was formerly used in the colloquial sense under article 9, referring to a document or writing that contained the debtor's security agreement, has since been eliminated under 9-102. U.C.C. § 9-102, cmt. 3(b) (Am. Law Inst. 2010).

      We note that section 9-313(b) of the UCC, governing possession of goods covered by certificate of title does not apply here because, as established, article II of Chapter 3 of the Vehicle Code does not apply to Gold Coast's security interest in this matter.


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    CREDIT UNION 1, Plaintiff-Appellee, v. Yolanda CARRASCO a/k/a Yolanda C. Carrasco a/k/a Yolanda Martinez; Alejandro Martinez a/k/a Alejandro C. Martinez; Citibank (South Dakota) N.A.; Unknown Heirs and Legatees of Yolanda Carrasco a/k/a Yolanda C. Carrasco a/k/a Yolanda Martinez, if any; and Unknown Owners and Non-record Claimants; Defendants
    (Yolanda Carrasco, Defendant-Appellant).
    No. 1-17-2535
    Appellate Court of Illinois, First District, Fourth Division.
    June 28, 2018
    Carla Sherieves, of CMS Law, LLC, of Chicago, for appellant.
    R. Elliott Halsey, of Walinski & Associates, P.C., of Chicago, for appellee.
   JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 The instant appeal arises from a foreclosure action filed by plaintiff Credit Union 1 against defendant Yolanda Carrasco with respect to a single family home in Calumet City. The trial court granted summary judgment in plaintiff's favor and, after the property was sold, entered an order approving the report of sale and distribution. Defendant appeals, arguing that plaintiff never established that it sent an acceleration notice as required under the terms of the mortgage, meaning that plaintiff did not have the right to initiate the foreclosure action. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 On February 26, 2014, plaintiff filed a complaint for foreclosure of a single family home in Calumet City, alleging that defendant had failed to make payments due under the mortgage and note beginning in February 2011, leaving a current unpaid principal balance of $132,961.37. Attached to the complaint was a copy of the mortgage. As relevant to the instant appeal, section 15 of the mortgage was entitled "Notices" and provided, in relevant part:

"All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

¶ 4 Additionally, section 22 was entitled "Acceleration; Remedies" and provided:

"Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument * * *. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence."

¶ 5 On February 23, 2015, defendant filed an appearance through counsel and, on August 28, 2015, filed an answer and affirmative defenses; none of defendant's defenses concerned the notice of acceleration. On October 16, 2015, plaintiff filed a motion to strike defendant's affirmative defenses, which was denied on February 26, 2016, without prejudice. On March 31, 2016, plaintiff filed another motion to strike defendant's affirmative defenses and for partial summary judgment on the affirmative defenses. On April 25, 2016, the trial court granted plaintiff's motion and dismissed defendant's affirmative defenses without prejudice and granted defendant 21 days to file amended affirmative defenses; defendant did not do so.

¶ 6 On November 23, 2016, plaintiff filed a motion for default judgment against all other defendants, since no other defendants had filed an appearance, and also filed a motion for summary judgment against defendant. The motion for summary judgment claimed that defendant's answer did not present any facts to refute the allegations contained in plaintiff's complaint and contained merely general denials of the allegations. An affidavit of proveup attached to the motion for summary judgment indicated that the total amount due from defendant was $239,923.13.

¶ 7 On February 3, 2017, defendant filed a response to the motion for summary judgment. As relevant to the instant appeal, the response claimed that defendant denied receiving an acceleration notice pursuant to section 22 of the mortgage. Attached to defendant's response was a certification sworn by defendant pursuant to section 1-109 of the Code of Civil Procedure (Code) ( 735 ILCS 5/1-109 (West 2016) ), which provided, in relevant part:

"I am the only person responsible for retrieving the mail at [the property address in Calumet City].
I retrieve my mail on a daily basis from the mailbox.
I have never had any problems receiving mail from the United States Post Office.
I have never received a letter of acceleration that was required to be sent to me in Paragraph 22 of my mortgage.
On information and belief, the Plaintiff never sent a letter of acceleration that was required to be sent to me pursuant to Paragraph 22 of the mortgage."

¶ 8 On February 16, 2017, plaintiff filed a reply in support of its motion for summary judgment. With respect to the issue of notice, plaintiff argued that defendant claimed not to have received the acceleration notice but acknowledged receipt of plaintiff's grace period notice, which had been sent to the same address. Additionally, plaintiff argued that the mortgage provided that notice was deemed given when plaintiff mailed the acceleration notice, not when defendant received it, making defendant's claim that she never received it "completely irrelevant." Plaintiff argued that "[t]he only relevant inquiry is whether the Acceleration Notice was mailed, which it was."

¶ 9 Attached to the reply were three documents, all under the heading "Exhibit A." The first was a letter dated October 4, 2013, from defendant to plaintiff's counsel, which provided, in relevant part:

"I received a grace period notice dated September 20, 2013 on September 26th, 2013."

The second document was a letter dated September 18, 2013, from plaintiff's counsel to defendant, which was entitled "NOTICE OF INTENT TO ACCELERATE." Above the address block of the letter were the words: "Via Certified U.S. Mail and via regular 1st class U.S. mail." The third document was a letter dated September 20, 2013, from plaintiff's counsel to defendant at the same address listed on the prior letter's address block. The letter was entitled "GRACE PERIOD NOTICE" and above the address block were the words: "Via regular 1st class U.S. mail."

¶ 10 On March 7, 2017, the trial court entered an order granting plaintiff's motion for summary judgment, and also entered a judgment of foreclosure and sale. The property was sold at a judicial sale on June 8, 2017, and on June 23, 2017, plaintiff filed a motion for an order approving the report of sale and distribution, for an in personam deficiency judgment, and for possession. On September 8, 2017, the trial court entered an order approving the report of sale, entered an in personam deficiency judgment against defendant in the amount of $174,656.91, and entered an order of possession.

¶ 11 Defendant filed a timely notice of appeal, and this appeal follows.

¶ 12 ANALYSIS

¶ 13 On appeal, defendant argues that summary judgment should not have been granted in plaintiff's favor, and the sale should not have been approved, because plaintiff never established that it sent the acceleration notice required by the mortgage. A trial court is permitted to grant summary judgment only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/21005(c) (West 2016). The trial court must view these documents and exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co. , 213 Ill. 2d 307, 315, 290 Ill.Dec. 218, 821 N.E.2d 269 (2004). We review a trial court's decision to grant a motion for summary judgment de novo . Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP , 408 Ill. App. 3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011).

¶ 14 "Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. , 154 Ill. 2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204. However, "[m]ere speculation, conjecture, or guess is insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc. , 309 Ill. App. 3d 313, 328, 242 Ill.Dec. 738, 722 N.E.2d 227 (1999). The party moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung , 374 Ill. App. 3d 618, 624, 313 Ill.Dec. 448, 872 N.E.2d 431 (2007). The movant may meet his burden of proof either by affirmatively showing that some element of the case must be resolved in his favor or by establishing " 'that there is an absence of evidence to support the nonmoving party's case.' " Nedzvekas , 374 Ill. App. 3d at 624, 313 Ill.Dec. 448, 872 N.E.2d 431 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). " 'The purpose of summary judgment is not to try an issue of fact but * * * to determine whether a triable issue of fact exists.' " Schrager v. North Community Bank , 328 Ill. App. 3d 696, 708, 262 Ill.Dec. 916, 767 N.E.2d 376 (2002) (quoting Luu v. Kim , 323 Ill. App. 3d 946, 952, 256 Ill.Dec. 667, 752 N.E.2d 547 (2001) ). We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp. , 230 Ill. App. 3d 40, 50, 171 Ill.Dec. 824, 594 N.E.2d 1344 (1992).

¶ 15 In the case at bar, defendant claims that plaintiff was not entitled to summary judgment because there was a question of fact as to whether plaintiff had provided the acceleration notice required by the mortgage. We agree. The mortgage at issue required that "Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument," and further imposed requirements as to the contents of that notice. This type of acceleration notice has been held to be a condition precedent to the lender's right to bring suit, meaning that "[i]f [the lender] had not sent an acceleration notice, it would not be entitled to foreclose." CitiMortgage, Inc. v. Bukowski , 2015 IL App (1st) 140780, ¶ 16, 389 Ill.Dec. 405, 26 N.E.3d 495 ; Cathay Bank v. Accetturo , 2016 IL App (1st) 152783, ¶ 33, 408 Ill.Dec. 675, 66 N.E.3d 467 ("A notice of acceleration is a condition precedent to foreclosure under Illinois Mortgage Foreclosure Law."). "A 'condition precedent' is an act that must be performed or an event that must occur before a contract becomes effective or before one party to an existing contract is obligated to perform." Accetturo , 2016 IL App (1st) 152783, ¶ 32, 408 Ill.Dec. 675, 66 N.E.3d 467. "When a contract contains an express condition precedent, strict compliance with such a condition is required [citation], and the contract does not become enforceable or effective until the contract is performed or the contingency occurs. [Citation.]" Accetturo , 2016 IL App (1st) 152783, ¶ 32, 408 Ill.Dec. 675, 66 N.E.3d 467. Thus, as the Accetturo court found when considering an identical acceleration clause, "[b]ecause the mortgage contained an acceleration clause that provided '[plaintiff] shall give notice to [defendant] prior to acceleration,' we find that paragraph [22] is a contractual condition precedent and that [plaintiff] had a mandatory duty to send a notice of acceleration to [defendant] prior to accelerating the mortgage." Accetturo , 2016 IL App (1st) 152783, ¶ 37, 408 Ill.Dec. 675, 66 N.E.3d 467. Plaintiff does not dispute on appeal that the sending of the notice of acceleration was a condition precedent to its right to maintain a foreclosure action.

¶ 16 In the case at bar, then, we must determine whether the record establishes that the notice was properly sent or whether there is a question of fact concerning this issue. Defendant points to the certification she attached to her response to the motion for summary judgment, in which she certified that she had not received a notice of acceleration. However, all that this certification establishes is that defendant did not receive the notice. As plaintiff notes, under the terms of the mortgage, "[a]ny notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means." Thus, if the facts established that plaintiff mailed the notice, summary judgment would be appropriate.

¶ 17 Plaintiff relies on a presumption of receipt, as set forth in Tabor & Co. v. Gorenz , 43 Ill. App. 3d 124, 1 Ill.Dec. 868, 356 N.E.2d 1150 (1976). In that case, the court found: "A letter properly addressed, stamped and mailed is presumed to have been duly received based upon the probability of delivery and the difficulty of proving receipt in any other way." Tabor & Co. , 43 Ill. App. 3d at 129, 1 Ill.Dec. 868, 356 N.E.2d 1150. However, plaintiff does not address the sentences that immediately follow: "To be entitled to the benefit of the presumption there must be proof that the item was contained in the properly addressed envelope with adequate postage affixed and that it was deposited in the mail." Tabor & Co. , 43 Ill. App. 3d at 129, 1 Ill.Dec. 868, 356 N.E.2d 1150. Additionally, "[t]he presumption * * * is a rebuttable one; and if rebutted, receipt becomes a question to be resolved by the trier of fact." Tabor & Co. , 43 Ill. App. 3d at 129, 1 Ill.Dec. 868, 356 N.E.2d 1150.

¶ 18 In the case at bar, defendant claimed in her response to the motion for summary judgment that she never received the acceleration notice, and attached a certification in support. In response, plaintiff submitted three documents: (1) a letter from defendant acknowledging receipt of the grace period notice; (2) a letter purporting to be the acceleration notice; and (3) a letter purporting to be the grace period notice. There was no affidavit attached to any of these documents, nor was there a copy of an envelope or receipt of mailing. In short, nowhere was there "proof that the item was contained in the properly addressed envelope with adequate postage affixed and that it was deposited in the mail." Tabor & Co. , 43 Ill. App. 3d at 129, 1 Ill.Dec. 868, 356 N.E.2d 1150. Thus, we fail to see how plaintiff can argue that it is entitled to a presumption that the notice was properly mailed when plaintiff has wholly failed to comply with the requirements for such a presumption. We note that there is evidence in the record that plaintiff was well able to provide such proof with respect to other mailings-for instance, in support of its claims that it had served the defendants, plaintiff attached certified mail receipts and "Certificate[s] of Mailing" from the postal service bearing the amount of postage paid. However, this type of proof is completely absent with respect to the notice of acceleration.

¶ 19 We also fail to see the significance of defendant's acknowledgement that she received the grace period notice. At most, that demonstrates that her mailing address was accurate. However, there is no claim that the two documents were sent at the same time and, in fact, the two documents bear different dates, suggesting that they were sent separately. Consequently, the fact that defendant received one notice has absolutely no bearing on the question of whether she received the other notice.

¶ 20 We are similarly unpersuaded by plaintiff's attempt to suggest that defendant had failed in some way because she "made no effort to depose the affiant or the author of the letter." However, as noted, there was no affidavit concerning the matter of the acceleration notice. The only affidavits contained in the record on appeal concern other matters, such as defendant's payment history, service, and loss mitigation. Furthermore, there was no requirement that defendant depose "the author of the letter," as the letter itself was produced for the first time in the reply in support of the motion for summary judgment.

¶ 21 In summary, the parties do not dispute that an acceleration notice was required. Defendant has produced a certification stating that she did not receive such a notice. Plaintiff did not submit a counteraffidavit but submitted only a copy of the purported acceleration notice, without any proof that the notice had been mailed. Accordingly, there is a question of fact as to whether this notice was, in fact, provided to defendant as required by the terms of the mortgage. This question of fact means that summary judgment should not have been granted, and we must reverse the trial court's order granting summary judgment.

¶ 22 Additionally, the order approving the report of sale and distribution must likewise be reversed. "The provisions of section 15-1508 [of the Mortgage Foreclosure Law ( 735 ILCS 5/15-1508(b) (West 2016) ) ] have been construed as conferring on circuit courts broad discretion in approving or disapproving judicial sales." Household Bank, FSB v. Lewis , 229 Ill. 2d 173, 178, 322 Ill.Dec. 15, 890 N.E.2d 934 (2008). Accordingly, "[a] court's decision to confirm or reject a judicial sale under the statute will not be disturbed absent an abuse of that discretion."

Lewis , 229 Ill. 2d at 178, 322 Ill.Dec. 15, 890 N.E.2d 934. "When a bank fails to comply with its servicing requirements and does not give notice to the borrower mandated by a provision in its mortgage, and the circuit court ignores the banks' failure to comply with the mortgage's servicing requirements, the circuit court abuses its discretion." Accetturo , 2016 IL App (1st) 152783, ¶ 54, 408 Ill.Dec. 675, 66 N.E.3d 467. In the case at bar, there is a question of fact as to whether notice was properly provided. Until that question of fact is resolved, the trial court cannot properly approve a judicial sale of the property in question.

¶ 23 CONCLUSION

¶ 24 Since plaintiff failed to provide any evidence that would entitle it to a presumption that it had mailed an acceleration notice to defendant, there is a question of fact as to whether plaintiff properly provided notice as required under the mortgage. Consequently, neither summary judgment nor the order approving sale, which was based on the summary judgment order, should have been granted.

¶ 25 Reversed.

Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.

      The motion for default judgment against the other defendants was granted on March 7, 2017.

      We note that only a portion of the judgment of foreclosure and sale is contained in the record on appeal.

      Defendant does not argue on appeal that the substance of the purported notice was deficient, but only argues that proper notice was not given.

      Indeed, we must note that plaintiff's brief on appeal is certainly "brief," spanning fewer than two pages and with no citations to authority or to the record on appeal.