text:
    Thelma Mae WALSTAD, Special Administrator for Rebecca Hess, Deceased, Plaintiff-Appellee, v. Charlotte Kathryn KLINK, as Executor of the Estate of Robert Flores, Deceased, and d/b/a Flores Properties Inc.; The City of Chicago, a Municipal Corporation; and Charlotte K. Flores, a/k/a Charlotte K. Klink, Individually, Defendants
    (Charlotte Kathryn Klink, as Executor of the Estate of Ronald Flores, Deceased, Defendant-Appellant).
    No. 1-17-0070
    Appellate Court of Illinois, First District, FIRST DIVISION.
    May 21, 2018
    William F. Zieske, of Zieske Law & Fine Arts Legal, of Harvard, for appellant.
    No brief filed for appellee.
   JUSTICE HARRIS delivered the judgment of the court with opinion.

¶ 1 Defendant, Charlotte Kathryn Klink, as executor of the estate of Ronald Flores, appeals the order of the circuit court entering judgment on the jury's verdict in favor of plaintiff, Thelma Mae Walstad, as special administrator for Rebecca Hess. On appeal, defendant contends that the trial court erred in allowing plaintiff to amend her complaint and assert claims against the estate of Ronald Flores more than two years after Flores's death, in contravention of section 18-12(b) of the Probate Act of 1975 (Probate Act) ( 755 ILCS 5/18-12(b) (West 2016) ). For the following reasons, we affirm.

¶ 2 JURISDICTION

¶ 3 The trial court entered judgment on the jury's verdict in favor of plaintiff on December 5, 2016. Defendant filed a notice of appeal on January 4, 2017. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. May 30, 2008), governing appeals from final judgments entered below.

¶ 4 BACKGROUND

¶ 5 The following facts are relevant to the issues on appeal. On August 18, 2004, Rebecca Hess was on the rear porch of an apartment in a residential building located at 2050-2052 West Summerdale Avenue in Chicago, Illinois. Hess fell from the porch and suffered injuries, including a spinal cord injury that resulted in paralysis. The property was owned and managed by Ronald Flores and his wife, Klink. On October 25, 2004, Hess filed a personal injury and premises liability complaint against Flores, individually and d/b/a Flores Properties Inc., and against the City of Chicago. Klink was added as a defendant by amendment on January 25, 2006. The complaint alleged negligence as well as willful and wanton conduct on the part of defendants regarding the installation, safety, and maintenance of the rear porch system. The City of Chicago filed a motion for summary judgment, which the trial court granted, and the city was dismissed as a defendant.

¶ 6 Hess's case was stayed while the dismissal was on interlocutory appeal. Meanwhile, Hess died on January 4, 2009, and her mother, Thelma Mae Walstad, was appointed special administrator of her estate. Ronald Flores died on November 29, 2010, and Klink filed a small estate affidavit on January 15, 2011, in lieu of opening an estate in his name. On May 24, 2011, this court affirmed the summary judgment and dismissal in Hess v. Flores , 408 Ill. App. 3d 631, 350 Ill.Dec. 571, 948 N.E.2d 1078 (2011), and the case was returned to the circuit court.

¶ 7 On June 6, 2011, a second-amended complaint was filed, which substituted Walstad as plaintiff. The second-amended complaint continued to name Ronald Flores and Klink as defendants. As in Hess's prior complaints, the second-amended complaint alleged counts of negligence and willful and wanton conduct against defendants regarding the installation, safety, and maintenance of the rear porch system at the West Summerdale Avenue property. However, the second-amended complaint also included a count for wrongful death and listed decedent's surviving next-of-kin as Walstad and decedent's sister, Deborah Hess.

¶ 8 On November 21, 2012, Klink opened the estate of Ronald Flores in order to file a medical malpractice and wrongful death claim on his behalf. Flores's will was entered into probate on November 27, 2012, and Klink was named independent executor of the estate. Plaintiff filed a motion to substitute the estate of Ronald Flores for Flores on March 5, 2013. At the hearing on the plaintiff's motion, the trial court found that Flores's death was not properly spread of record and ordered that his death be spread of record on the next court date. Klink produced Flores's death certificate on July 31, 2013, and his death was spread of record on September 6, 2013. On September 13, 2013, plaintiff filed a third-amended complaint naming the estate and Klink as defendants. This complaint contained essentially the same allegations against defendants as plaintiff made in the second-amended complaint.

¶ 9 On October 11, 2013, defendants filed a motion to dismiss the third-amended complaint pursuant to section 2-619(a)(1), (2), and (5) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2012) ). Defendants alleged that plaintiff's complaint "is not properly subject to the jurisdiction of [the] Court due to the lapse of two years since [Ronald's] death" and "[n]o estate for Ronald Flores has ever been opened [by plaintiff]." Defendants argued that because plaintiff "failed to file any claim pursuant to the Probate Act, or to open an estate, within the two-year period following Flores' death," section 18-12(b) of the Probate Act barred consideration of the complaint.

¶ 10 In her answer to the motion to dismiss, plaintiff alleged that the case was on the appellate stay calendar when Flores died, and plaintiff had no knowledge of his death. Also, Klink did not spread his death of record or open an estate on his behalf. Instead, Klink filed a small estate affidavit on behalf of Flores and stated under oath "that there were no contested claims against the decedent, despite the fact that [Flores and Klink] had been defendants in this matter since 2004." Citing Tulsa Professional Collection Services, Inc. v. Pope , 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), and Rose v. Kaszynski , 178 Ill. App. 3d 266, 127 Ill.Dec. 455, 533 N.E.2d 73 (1988), plaintiff argued that actual notice is required in this situation, and since she did not get it, she may amend her complaint to substitute the estate for Flores even though more than two years have passed since his death. Plaintiff also argued that section 2-616(d) of the Code ( 735 ILCS 5/2-616(d) (West 2016) ) allows a party under these circumstances to substitute an estate for a defendant, and the amended complaint is not considered untimely because it relates back to the originally filed complaint. The trial court denied defendants' motion to dismiss and pretrial proceedings continued in the matter.

¶ 11 On January 9, 2015, Klink filed for bankruptcy and requested that plaintiff's case be stayed during the proceedings. Plaintiff's case was placed on the bankruptcy stay calendar on January 12, 2015. That same day, plaintiff filed a motion to substitute Klink as executor of Flores's estate as a defendant. The bankruptcy court granted Klink an order of discharge on May 28, 2016, rendering plaintiff's claims against her as an individual nonactionable. On July 13, 2016, plaintiff's case was removed from the bankruptcy stay calendar and placed on the active trial calendar. The case went to trial before a jury, and the jury returned a verdict in favor of plaintiff and against the estate of Flores in the amount of $2,514,849. Klink, as executor of the estate, filed this timely appeal.

¶ 12 ANALYSIS

¶ 13 Initially we note that plaintiff did not submit an appellee brief. However, given that "the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief," we will consider the merits of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976). We further note that the record does not contain a transcript of the proceedings below on plaintiff's motions to amend, defendant's motion to dismiss, or on any motions to substitute parties-proceedings relevant to this appeal. As appellant, Klink has the duty to present a complete record of the proceedings so that this court is fully informed of what occurred below. Rosestone Investments, LLC v. Garner , 2013 IL App (1st) 123422, ¶ 31, 377 Ill.Dec. 616, 2 N.E.3d 532. "Where the record is incomplete, we resolve any doubts against the appellant and presume that the order entered by the trial court conformed both to the law and to the facts of the case." Id.

¶ 14 Klink contends that section 18-12(b) of the Probate Act bars consideration of plaintiff's claim against the estate. Section 18-12(b) provides that all claims against an estate are "barred 2 years after decedent's death, whether or not letters of office are issued upon the estate of the decedent." 755 ILCS 5/18-12(b) (West 2016). This section is a grant of jurisdiction, and as such, the trial court has no power or jurisdiction to hear a claim against the estate after the statutory period has passed. In re Marriage of Epsteen , 339 Ill. App. 3d 586, 596, 274 Ill.Dec. 379, 791 N.E.2d 175 (2003). Klink does not dispute that Hess's original complaint against Flores was timely filed. However, after Flores's death, the proper party became the estate of Flores, which is a distinct legal entity from Flores the individual. See Vaughn v. Speaker , 126 Ill. 2d 150, 159, 127 Ill.Dec. 803, 533 N.E.2d 885 (1988). Klink argues that since Flores died on November 29, 2010, and plaintiff filed her third-amended complaint against his estate almost three years later on September 13, 2013, the trial court had no jurisdiction to consider plaintiff's complaint and should have granted defendants' section 2-619 motion to dismiss.

¶ 15 As support, Klink relies primarily on two cases. These cases, however, are factually distinct from the case at bar. In Polly v. Estate of Polly , 385 Ill. App. 3d 300, 301, 324 Ill.Dec. 564, 896 N.E.2d 350 (2008), the plaintiff filed a complaint for the first time after the two-year period expired whereas here, plaintiff timely filed her original complaint and filed her second-amended complaint within two years of Flores's death. In the other case, In re Estate of Worrell , 92 Ill. 2d 412, 414, 65 Ill.Dec. 900, 442 N.E.2d 211 (1982), the estate did not have knowledge of the claim until after the statutory period expired. Unlike the defendant in Worrell , Klink, as administrator of the estate, knew of plaintiff's claims because she was also a defendant in the prior, timely-filed complaints. These distinctions are significant in resolving this appeal.

¶ 16 Section 2-616 of the Code "permits an amended pleading to relate back to the date of the original pleading if the original pleading was timely and the amendment grew out of the same transaction or occurrence set up in the original pleading." Lawler v. University of Chicago Medical Center , 2017 IL 120745, ¶ 20, 423 Ill.Dec. 1, 104 N.E.3d 1090. This provision is "applicable whether a particular time limitation is regarded as a prescription governing the right to sue or as a statute of limitations." Simmons v. Hendricks , 32 Ill. 2d 489, 494, 207 N.E.2d 440 (1965). In enacting section 2-616, the legislature sought to preserve a cause of action against loss due to "technical default unrelated to the merits." Porter v. Decatur Memorial Hospital , 227 Ill. 2d 343, 355, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). Therefore, courts should liberally construe the provision's requirements "in order to allow the resolution of litigation on the merits and to avoid elevating questions of form over substance." Boatmen's National Bank of Belleville v. Direct Lines, Inc. , 167 Ill. 2d 88, 102, 212 Ill.Dec. 267, 656 N.E.2d 1101 (1995). Although these cases involved section 2-616(b), the underlying purpose and rationale of that subsection also apply to section 2-616(d), which is applicable here. See Wilk v. Wilmorite, Inc. , 349 Ill. App. 3d 880, 888, 285 Ill.Dec. 945, 812 N.E.2d 765 (2004) (noting that section 2-616(d) should be liberally construed "so that cases are decided on their merits rather than on procedural technicalities" (internal quotation marks omitted) ).

¶ 17 Section 2-616(d) allows a plaintiff, in certain circumstances, to amend a pleading and bring a cause of action against a new defendant after the time for filing has passed. It provides:

"(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought * * * against him or her * * * received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, * * * even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2016).

¶ 18 The parties do not dispute that Hess's original complaint against Flores and Klink was timely filed, so the first requirement is satisfied. See Lawler , 2017 IL 120745, ¶ 28, 423 Ill.Dec. 1, 104 N.E.3d 1090 (finding that a timely-filed original complaint satisfies this element of section 2-616 ). Also, plaintiff's claims in all of her complaints arose from the same occurrence: Hess's fall from the back porch of an apartment building located at 2050-2052 West Summerdale Avenue in Chicago. Therefore, the third requirement is satisfied. The issues here are whether Klink, as executor of the estate of Flores, knew or should have known that plaintiff's claim would have been brought against it but for a mistake and whether she had notice of the claim so that it was not prejudiced in maintaining a defense.

¶ 19 The language of section 2-616(d) substantially mirrors that of Rule 15(c) of the Federal Rules of Civil Procedure ( Fed. R. Civ. P. 15(c) ). Thus, we find federal cases interpreting the federal rule persuasive authority regarding the application of section 2-616(d). Owens v. VHS Acquisition Subsidiary Number 3, Inc. , 2017 IL App (1st) 161709, ¶ 27, 413 Ill.Dec. 478, 78 N.E.3d 470. In Krupski v. Costa Crociere S.p.A. , 560 U.S. 538, 548, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the United States Supreme Court determined that under Rule 15(c), the question of mistake "is not whether [the plaintiff] knew or should have known the identity of [the new party] as the proper defendant, but whether [the new party] knew or should have known that it would have been named as a defendant but for an error." Our appellate courts have adopted this analysis in subsequent cases including Owens , 2017 IL App (1st) 161709, 413 Ill.Dec. 478, 78 N.E.3d 470, Mann v. Thomas Place, L.P. , 2012 IL App (1st) 110625, 364 Ill.Dec. 276, 976 N.E.2d 554, Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc. , 2011 IL App (2d) 101257, 356 Ill.Dec. 685, 962 N.E.2d 29, Maggi v. RAS Development, Inc. , 2011 IL App (1st) 091955, 350 Ill.Dec. 939, 949 N.E.2d 731, and Zlatev v. Millette , 2015 IL App (1st) 143173, 397 Ill.Dec. 826, 43 N.E.3d 153. As this court reasoned in Zlatev ,

"[i]f a party is aware of a lawsuit arising out of a set of facts in which he was involved, and if that party knows or should know that the only reason he was not sued was due to a mistake on the plaintiff's part, and if the notice of this lawsuit is sufficient that the party has not been prejudiced in his ability later to defend that suit on the merits, that party is hard-pressed to claim unfair treatment when the plaintiff later discovers the mistake and sues him." Zlatev , 2015 IL App (1st) 143173, ¶ 33, 397 Ill.Dec. 826, 43 N.E.3d 153.

¶ 20 To determine whether a mistake occurred, we examine the allegations in the original complaint and other objective manifestations in the record that establish whom plaintiff intended to sue. Mann , 2012 IL App (1st) 110625, ¶ 17, 364 Ill.Dec. 276, 976 N.E.2d 554. A plaintiff has not made a mistake if the allegations reveal that he or she intended to sue one party for misconduct but, after the time limitation period has passed, decides to add an additional defendant, not contemplated in the original complaint, who may also have been liable. See id. ¶ 21. Rather, section 2-616(d) applies where plaintiff's allegations and the record show that the new defendant was the party responsible for the claimed misconduct in the original complaint. Owens , 2017 IL App (1st) 161709, ¶ 40, 413 Ill.Dec. 478, 78 N.E.3d 470. In such a case, the new defendant should have an understanding that in failing to name the defendant in a prior complaint, plaintiff "made a mistake regarding the proper party's identity." Krupski , 560 U.S. at 548, 130 S.Ct. 2485. We emphasize that the focus of section 2-616(d)'s analysis remains on the defendant's knowledge and that a "plaintiff's intent in filing the original complaint is relevant only to the extent that it sheds light on whether the prospective defendant was reasonable in concluding that the plaintiff had made a mistake." Zlatev , 2015 IL App (1st) 143173, ¶ 37, 397 Ill.Dec. 826, 43 N.E.3d 153.

¶ 21 In the original complaint, Hess alleged that she was injured when she fell from the back porch of a residential building owned and operated by Flores and his wife, Klink. Her complaint contained counts of negligence and willful and wanton conduct against defendants Flores and Klink regarding the installation, safety, and maintenance of the rear porch system at their West Summerdale Avenue property. In 2011, after Hess had died, plaintiff filed a second-amended complaint that contained substantially the same allegations against defendants but included a count for wrongful death. However, unbeknownst to plaintiff, Ronald Flores had died in 2010. The second-amended complaint continued to name Ronald Flores as a defendant instead of his estate or a representative. In 2012, while the case continued in pretrial proceedings, Klink opened an estate on behalf of Flores and plaintiff sought to amend her complaint a third time to substitute the estate as defendant. We find that in her capacities as both defendant in plaintiff's ongoing case and executor of Flores's estate, Klink knew of Hess's allegations against Flores and knew or should have known that after Flores's death, a claim was not made against his estate due to a mistake. "The reasonableness of the mistake is not itself at issue." Krupski , 560 U.S. at 549, 130 S.Ct. 2485.

¶ 22 For these same reasons, Klink had sufficient notice of Hess's claims within the two-year period so that the estate was not prejudiced in maintaining a defense on the merits. See Vaughn , 126 Ill. 2d at 160, 127 Ill.Dec. 803, 533 N.E.2d 885 (finding that section 2-616(d) requires that the substituted defendant have knowledge a complaint had been filed prior to the lapse of the limitations period). Although the original complaint did not contain a count for wrongful death, plaintiff's second-amended complaint was filed in 2011, less than one year after Flores's death, and included a count for wrongful death. Thus, Klink was aware of Hess's death and plaintiff's wrongful death claim well within the two-year period contained in section 18-12 of the Probate Act. As our supreme court has found, "a defendant is not prejudiced if 'his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.' " (Internal quotation marks omitted.) Porter , 227 Ill. 2d at 355, 317 Ill.Dec. 703, 882 N.E.2d 583 (quoting Boatmen's National Bank of Belleville , 167 Ill. 2d at 102, 212 Ill.Dec. 267, 656 N.E.2d 1101 ). Since all three requirements of section 2-616(d) have been met, plaintiff's third-amended complaint relates back to the original complaint and is not barred by section 18-12.

¶ 23 Our determination also furthers the public policy underlying section 2-616(d). The record shows that plaintiff actively pursued Hess's claim from the first filing through the filing of the third-amended complaint, and the allegations made clear she sought recovery for damages stemming from Hess's fall at the West Summerdale Avenue property due to Flores's misconduct. Klink does not dispute that she at all times knew of plaintiff's claim against Flores. To bar the third-amended complaint simply because plaintiff failed to substitute, within two years of Flores's death, a representative of the estate as a defendant, goes against the purpose of section 2-616 to preserve causes of action against loss by reason of technical pleading rules and allow resolution of the litigation on the merits.

¶ 24 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 25 Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deontae CURRY, Defendant-Appellant.
    No. 1-15-3635
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed May 22, 2018
    Michael J. Pelletier, Patricia Mysza, and Pamela Rubeo, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Whitney Bond, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Deontae Curry acted as the getaway driver, while some of his associates robbed a video game store and used pepper spray to incapacitate the store clerk. Curry was convicted of armed robbery (on an accountability theory) and sentenced to 12 years of imprisonment.

¶ 2 At a posttrial hearing, Curry's counsel told the trial court that Curry alleged that counsel was ineffective for failing to move to suppress Curry's statement to police based on Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court did not ask any further questions of Curry or his counsel to discern the claim's factual basis, so we remand for an adequate preliminary inquiry. We reject, however, Curry's request for a new sentencing hearing on the grounds that he was guilty of robbery, but not armed robbery, because we find that the pepper spray used on the store clerk was a "dangerous weapon."

¶ 3 Background

¶ 4 As Alonzo Mitchell worked behind the counter at a Game Stop store, three men entered wearing hooded sweatshirts. One man approached the counter and sprayed Mitchell with pepper spray, another man went behind the counter and tackled Mitchell, and the first man sprayed Mitchell again. The men took Mitchell's store keys and stole several video game systems.

¶ 5 Meanwhile, a coworker who had been hiding in the store's break room called police. A nearby police officer heard the radio call and saw individuals come out of the store and get into a silver Pontiac. The officer pursued the Pontiac, which was later found unoccupied and parked on a residential street. The backseat and trunk of the Pontiac contained several video game systems, as well as Mitchell's store keys. On the sidewalk nearby lay a hooded sweatshirt and a can of pepper spray. The car's registration revealed that a woman owned the car; she gave police the name of a potential suspect, Terry Johnson.

¶ 6 Johnson told police that he and some friends robbed the Game Stop store while Deontae Curry acted as getaway driver in the silver Pontiac. Curry told police that his friends had planned only to shoplift while he waited in the car.

¶ 7 The trial court found Curry guilty (under an accountability theory) of armed robbery, with the pepper spray being a "dangerous weapon." Curry's counsel then filed a motion for a new trial. During argument, counsel mentioned that Curry wanted to raise a claim of ineffective assistance of counsel: "There was not a motion to suppress and my client wishes to state that it was an error for-to fail to file a motion with respect to that statement." The trial court asked, "Based on what?" Counsel responded, "Based on Miranda versus Arizona ." The trial court asked no other questions about the issue, either to Curry or his counsel; found credible the police officer's testimony that Curry had been advised of his rights before making a statement; and stated that it would not have ruled differently if a motion had been filed. Curry received a prison sentence of 12 years.

¶ 8 ANALYSIS

¶ 9 Inadequate Krankel Inquiry

¶ 10 Curry argues that the trial court erred in its inquiry into his posttrial claim of ineffective assistance under People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). When a defendant makes a claim of ineffective assistance of counsel, either orally or in writing, the trial court must address the claim so as to potentially limit the issues on appeal. People v. Willis , 2016 IL App (1st) 142346, ¶ 17, 403 Ill.Dec. 227, 53 N.E.3d 281. The trial court's first step involves an inquiry into the factual basis underlying the claim. People v. Ayres , 2017 IL 120071, ¶ 11, 417 Ill.Dec. 580, 88 N.E.3d 732 (quoting People v. Moore , 207 Ill. 2d 68, 79, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003) ). To accomplish this, the trial court may ask trial counsel about the facts underlying the claim; discuss the claim with the defendant; or base its evaluation on its own knowledge of counsel's trial performance. People v. Jolly , 2014 IL 117142, ¶ 30, 389 Ill.Dec. 101, 25 N.E.3d 1127. Whether the trial court conducted an adequate preliminary inquiry presents a question of law we review de novo . Id. ¶ 28.

¶ 11 Curry's counsel offered an elementary description of the alleged ineffectiveness: failure to move to suppress his statement. The trial court asked just one question as to the basis of the claim, and Curry's counsel named Miranda without elaboration. The trial court did not ask any questions underlying the claim before immediately ruling. This falls far short of " 'determin[ing] the factual basis of the claim.' " Ayres , 2017 IL 120071, ¶ 11, 417 Ill.Dec. 580, 88 N.E.3d 732 (quoting People v. Banks , 237 Ill. 2d 154, 213, 343 Ill.Dec. 111, 934 N.E.2d 435 (2010) ); cf. Willis , 2016 IL App (1st) 142346, ¶ 20, 403 Ill.Dec. 227, 53 N.E.3d 281 (trial court's inquiry was adequate where it discussed claim with defendant and evaluated claim based on its knowledge of defense counsel's performance and facial insufficiency of claim). The trial court did not ask counsel or Curry whether he was alleging that he had not been given Miranda warnings at all, whether the warnings were inadequate, whether he did not understand them, or whether he initially waived but later decided to assert his rights. As perhaps the most well-known case in the history of American criminal jurisprudence, the word " Miranda " is totemic to a layman criminal defendant, and its use, without detail, does not yield enough to inform a trial court as to the claim's factual basis. This mystery could have been solved within a few minutes simply by asking counsel or Curry to elaborate. The trial court would then have been able to pursue or reject the claim based on its knowledge of the trial. Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631 (following adequate preliminary inquiry, pro se motion may be denied where claim lacks merit or pertains only to matter of trial strategy).

¶ 12 Under Krankel and its progeny, the trial court had a duty to ascertain the bare facts underlying the claim. Ayres , 2017 IL 120071, ¶ 11, 417 Ill.Dec. 580, 88 N.E.3d 732 (trial court must conduct " 'adequate inquiry * * * sufficient to determine the factual basis of the claim' " (quoting Banks , 237 Ill. 2d at 213, 343 Ill.Dec. 111, 934 N.E.2d 435 ) ); People v. Mourning , 2016 IL App (4th) 140270, ¶ 23, 402 Ill.Dec. 370, 51 N.E.3d 1122 (remanding for Krankel inquiry where trial court "did not engage in any questioning to uncover the underlying factual basis of that claim"). The trial court did not do so, and so the case must be remanded for an adequate preliminary inquiry.

¶ 13 Is Pepper Spray a "Dangerous Weapon"?

¶ 14 Curry also argues that he should have been found guilty of robbery, rather than armed robbery, because the pepper spray used on Mitchell was not a "dangerous weapon" within the meaning of the armed robbery statute. See 720 ILCS 5/18-2(a)(1) (West 2014) (person commits armed robbery if he or she commits a robbery and carries, or is otherwise armed with, "a dangerous weapon other than a firearm").

¶ 15 The term is not defined in the armed robbery statute, but is derived from common law. People v. Hernandez , 2016 IL 118672, ¶ 12, 402 Ill.Dec. 42, 51 N.E.3d 794. Curry suggests that we should look to the armed violence statute for a definition of "dangerous weapon," but our supreme court has already rejected that strategy. Id. ¶ 16. Contrary to Curry's contention, what constitutes a "dangerous weapon" presents a question of fact, not law. People v. Ligon , 2016 IL 118023, ¶ 21, 400 Ill.Dec. 367, 48 N.E.3d 654. So we will review the claim under the familiar sufficiency of the evidence standard. See People v. Wheeler , 226 Ill. 2d 92, 114, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007) (when reviewing sufficiency of evidence, court considers whether, viewing evidence in light most favorable to State, any rational trier of fact could have found essential elements of crime beyond reasonable doubt).

¶ 16 "Dangerous weapon" includes "any object sufficiently susceptible to use in a manner likely to cause serious injury." Ligon , 2016 IL 118023, ¶ 21, 400 Ill.Dec. 367, 48 N.E.3d 654 (citing People v. Skelton , 83 Ill. 2d 58, 66, 46 Ill.Dec. 571, 414 N.E.2d 455 (1980) ). This comprises not just objects that are per se dangerous, but objects that can be used in a dangerous manner. Hernandez , 2016 IL 118672, ¶ 12, 402 Ill.Dec. 42, 51 N.E.3d 794 ; see also People v. Dwyer , 324 Ill. 363, 365, 155 N.E. 316 (1927) (distinguishing between objects "made for the purpose of destroying life" with "the question depends upon the manner of its use").

¶ 17 Pepper spray would not qualify as "per se dangerous," as a loaded handgun would. Rather, pepper spray falls into the category of objects that can be used in a dangerous manner, so it is for the trier of fact to determine whether the pepper spray actually was used that way on Alonzo Mitchell. See People v. Ross , 229 Ill. 2d 255, 276, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008) (reviewing cases and concluding that "the trier of fact may make an inference of dangerousness based upon the evidence"). The trial court determined that the pepper spray was used in a dangerous manner, noting that the robbers used it to immobilize Mitchell from the beginning of the robbery. This determination is consistent with precedent finding that the effects of pepper spray are "disabling" and "temporarily incapacitate[ ]" its victims. (Internal quotation marks omitted.) People v. Lampton , 385 Ill. App. 3d 507, 514-15, 325 Ill.Dec. 633, 898 N.E.2d 680 (2008) ; see also People v. Elliott , 299 Ill. App. 3d 766, 234 Ill.Dec. 303, 702 N.E.2d 643 (1998). That Mitchell did not suffer a long-term injury from the pepper spray is of no moment. See People v. Brown , 87 Ill. App. 3d 368, 370-71, 42 Ill.Dec. 586, 409 N.E.2d 81 (1980) (effects of incapacitating, unidentified spray were temporary, but whether weapon was "dangerous" for resolution by trier of fact). We must defer to the trier of fact on this issue.

¶ 18 We remand this case to the trial court to conduct an adequate preliminary inquiry into Curry's ineffective-assistance claim.

¶ 19 Remanded with directions.

Presiding Justice Neville and Justice Mason concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald PATTERSON, Defendant-Appellant.
    No. 1-10-1573
    Appellate Court of Illinois, First District, SECOND DIVISION.
    May 22, 2018
    Michael J. Pelletier, Patricia Mysza, and Christopher Kopacz, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Noah Montague, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 A jury found Ronald Patterson guilty of aggravated criminal sexual assault, an offense committed when he was 15 years old. The trial court sentenced Ronald, under statutes for the sentencing of adult offenders, to 36 years in prison. Our supreme court has affirmed the conviction and remanded the case to this court for consideration of sentencing issues. We hold that the trial court did not abuse its discretion when it sentenced Ronald, a 15-year-old bipolar child, to 36 years in prison, a sentence near the middle of the statutory range, for aggravated criminal sexual assault.

¶ 2 BACKGROUND

¶ 3 In 2008, E.C. worked for Streamwood Behavioral Health Systems (SBHS). On December 14, 2008, after 5 p.m., E.C. drove an SBHS van to Hinsdale to pick up Ronald at the end of Ronald's visit with his family. E.C. and Ronald returned to the SBHS facility, where Ronald lived, around 6:30 p.m. Once Ronald returned to his living unit, with the doors locked, E.C. told a coworker that Ronald had raped her. E.C. and her coworker called police, who came to SBHS and talked to E.C. An ambulance took E.C. to a hospital where a doctor examined her and photographed her bruises and some areas of scraped skin.

¶ 4 Police arrested Ronald at the SBHS facility that evening. A grand jury charged Ronald with three counts of aggravated criminal sexual assault. The Juvenile Court Act of 1987 required the transfer of the case to criminal court for the trial of Ronald as an adult. 705 ILCS 405/5-130(1) (West 2008).

¶ 5 At trial, E.C. testified that while she was driving Ronald from Hinsdale to the SBHS facility, he grabbed her arm and told her to exit from the highway. Because he weighed much more than twice E.C.'s weight, E.C. decided to take the exit. Ronald directed E.C. to a parking lot near some empty buildings. She opened the van's door and tried to run, but Ronald grabbed her coat. Ronald pushed E.C. against the van's side door, pinning her against the van.

¶ 6 E.C. testified that Ronald slid the door open and pushed E.C. into the van. When she tried to scramble to the door on the other side of the van, Ronald grabbed her feet and pulled her back, saying "Don't make me hurt you." He ripped off her jeans, and then he pulled down his pants and choked her to get her to open her mouth. He put his penis in her mouth for perhaps 30 seconds. He pushed her legs apart and put his tongue in her vagina. He then shoved his penis into her vagina for 30 seconds. When he pulled out, without ejaculating, he laid on top of E.C., hugged her, and told her he loved her.

¶ 7 The doctor who examined E.C. on December 14 testified that he found several bruises on E.C.'s arms and hip.

¶ 8 Ronald testified that E.C. pulled off the highway of her own accord, pulled down Ronald's pants, and performed oral sex briefly. They did not have vaginal intercourse, and he never performed oral sex on her.

¶ 9 The jury found Ronald guilty on all three counts of aggravated criminal sexual assault. The court denied his motion for a new trial

¶ 10 The trial court granted Ronald's motion to have a social investigation performed by the juvenile probation department rather than a presentence investigation performed by the adult probation department. (In prior appeals, the parties and this court referred to the social investigation as a presentence investigation.) The social investigator, writing in 2010, when Ronald was 16, reported that Ronald tested positive for cocaine at birth. A relative of Ronald's mother adopted him at 18 months of age, and he grew up with his adoptive parents until they found they could not protect his siblings from his increasingly violent behavior. He had extensive psychiatric treatment from the time he turned 11. The Department of Children and Family Services took custody of Ronald, at his adoptive parents' request, in 2006, when he was 13. He took Thorazine, Benadryl, Prozac, Trileptal, and Abilify, amongst other medications, to try to control his aggressive behavior and his moods. An IQ test in 2006 resulted in a full-scale score of 72.

¶ 11 School records and records from SBHS showed that Ronald acted somewhat violently on several occasions. He threw hot water on a teacher in 2004, tried to bite SBHS staff members when they restrained him in 2006, threatened to stab a staff member in 2006, and stabbed a staff member with a pencil in 2008. The behaviors led to some loss of privileges at SBHS and other discipline. Records also showed that at times SBHS rewarded Ronald for extended periods of good behavior.

¶ 12 The social investigator said in her report that Ronald had no prior police contacts. According to a printout from the police department, Ronald had one prior arrest, for throwing hot water on a teacher when he was 11, and the arrest resulted in a station adjustment.

¶ 13 A neuropsychological evaluation of Ronald, performed in 2006, found that Ronald "presented with minimal frustration tolerance * * *. * * * [H]e is easily distressed and defensive when talking about his history. He feels guilty over his action, yet has little sense of triggers, precipitants, coping skills or insight into behavior or emotions." Doctors diagnosed Ronald's condition as "Bipolar disorder, mixed, severe [and] Attention Deficit Hyperactivity Disorder." The social investigator reported that an evaluation performed in May 2008 concluded

"Ronald's cognitive style is a major influence in his current social and emotional functioning. His ability to think logically and clearly becomes significantly compromised when Ronald is experiencing intense emotions. His cognitive factors are particularly problematic given he lacks a consistent and clear style of coping. His coping skills are inconsistent and unpredictable. When faced with affective-laden situations or by his own feelings, Ronald is unable to efficiently process his feelings."

¶ 14 After the offense, Dr. Roin Inaba, a psychologist working for the Juvenile Temporary Detention Center, started treating Ronald. Dr. Inaba "report[ed] Ronald has experienced tremendous growth over the past year and his willingness to acknowledge and cope with his emotions has drastically improved. Ronald has had many experiences with rejection by adults and finds it hard to trust." According to Dr. Inaba, "Ronald is a caring and sensitive person. He has a generous heart and will help others," but he "continues to struggle with depression."

¶ 15 The social investigator summarized:

"It is apparent that Ronald Patterson has a long history of mental illness and is in need of continuous psychiatric treatment.
* * * [I]f it is the court's decision to sentence this defendant to the Illinois Department of Corrections it is my hope that he will be sentenced to the Illinois Department of Juvenile Justice. IDJJ offers specialized treatment of adolescents with sexually aggressive behavior problems at Kewanee-IYC. Kewanee-IYC is designated as a specialized treatment facility, focused on the treatment of youth with sexual offending behavior, mental health issues, and substance abuse."

¶ 16 A social worker who worked with Ronald over an extended period of time wrote to the court:

"Ronald is a young man who is intelligent, kind and has a great sense of humor. There were times when Ronald was able to maintain his positive behavior over extended periods of time with the proper motivation.
On the other hand, * * * he has been disruptive, disrespectful and difficult to deal with at times. Why such different opinions of Ronald; because he is a typical teenager. Now combine that with the fact that he has experienced a great deal of pain and loss in his early childhood, with limited parental guidance during his adolescence, and * * * this is a formula for disaster. * * *
Nevertheless, Ronald is a young man with considerable potential for growth and development. It is my hope that the court will take that into consideration and that he will be given every opportunity to become a better person and contribute positively to society."

¶ 17 A child welfare specialist who worked with Ronald wrote:

"I've known Ronald since December 2006. Since that time, I've seen positive changes in this youngster. * * * Ronald appears much older than his actual age. Truly Ronald is a much younger child mentally that needs consistent psychiatric services. He tries to present himself as being normal but he mentally is a child. Ronald is like a child, always seeking acceptance and loving care. * * *
I beg the court to have mercy on this youngster. He definitely continues to need clinical services as long as possible so he can continue to develo[p] into a productive adult. * * * Developmentally and cognitively, Ronald is a child with consistent clinical needs."

¶ 18 At the sentencing hearing, E.C. testified:

"Ronald left me with bruises and abrasions [and] lifelong emotional injuries. No words can explain the horror and terror I experienced that evening. No amount of therapy, medication, or material items in the world can transform me into the person I was prior to being raped.
* * * [O]ne month following the rape * * * I fell to the floor in the kitchen, crying and confused. I had just thrown up, and the nausea wouldn't go away. * * * The suffering doesn't stop.
* * *
* * * Let the punishment match the offense."

¶ 19 The trial court sentenced Ronald to 12 years in prison on each count, with the sentences to run consecutively, for a total sentence of 36 years. Ronald must serve at least 85% of his sentence, for a total of 30 years, 7 months. See People v. Patterson , 2014 IL 115102, ¶ 108, 388 Ill.Dec. 834, 25 N.E.3d 526.

¶ 20 In a prior appeal, the appellate court remanded the case to the juvenile court for a hearing on whether to transfer the case to criminal court for sentencing. People v. Patterson , 2016 IL App (1st) 101573-B, ¶ 32, 409 Ill.Dec. 79, 67 N.E.3d 291. The Illinois Supreme Court vacated the judgment and directed this court to reconsider the case in light of People v. Hunter , 2017 IL 121306, 422 Ill.Dec. 791, 104 N.E.3d 358.

¶ 21 ANALYSIS

¶ 22 The decision in Hunter clarifies that this court cannot remand this case to the juvenile court. "A discretionary transfer hearing in the juvenile court is no longer feasible because the juvenile court may not exercise jurisdiction over" Ronald because he is now 24 years old. Hunter , 2017 IL 121306, ¶ 38, 422 Ill.Dec. 791, 104 N.E.3d 358. We address the only remaining issue in the case: did the trial court abuse its discretion when it sentenced Ronald to 36 years in prison?

¶ 23 Our supreme court, in People v. Fern , 189 Ill. 2d 48, 53-56, 243 Ill.Dec. 175, 723 N.E.2d 207 (1999), set out the applicable principles:

"Although the legislature has prescribed the permissible ranges of sentences, great discretion still resides in the trial judge in each case to fashion an appropriate sentence within the statutory limits. [Citations.] The trial court must base its sentencing determination on the particular circumstances of each case, considering such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citations.] A reviewing court gives great deference to the trial court's judgment regarding sentencing because the trial judge, having observed the defendant and the proceedings, has a far better opportunity to consider these factors than the reviewing court, which must rely on the 'cold' record. [Citations.] In considering the propriety of a sentence, the reviewing court must proceed with great caution and must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently. * * *
* * *
* * * The sentencing judge is to consider 'all matters reflecting upon the defendant's personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding.' People v. Barrow , 133 Ill. 2d 226, 281, 139 Ill.Dec. 728, 549 N.E.2d 240 (1989). In reviewing a claim that a sentence within statutory limits is excessive, the court must consider whether, given the particular facts of the case, the sentence is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense."

¶ 24 The sentencing court's discretion "is not totally unbridled." People v. Streit , 142 Ill. 2d 13, 19, 153 Ill.Dec. 245, 566 N.E.2d 1351 (1991). The trial court and this court must comply with the constitutional requirement that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. Thus, "[t]he trial court must balance the goals of retribution and rehabilitation of the defendant when determining a sentence." People v. Brown , 2015 IL App (1st) 130048, ¶ 41, 391 Ill.Dec. 660, 31 N.E.3d 336.

¶ 25 Here, the trial judge had before her the social investigation which reported Ronald's childhood traumas and his struggles with mental illness. His record at various institutions showed several instances of violent conduct and substantial periods of good conduct and progress. The record includes recommendations from a social worker and a child welfare specialist who asked the court to impose a lenient sentence. Ronald's psychologist noted improvement in Ronald's behavior. We cannot say that the judge ignored this evidence.

¶ 26 A number of cases decided after the court sentenced Ronald have emphasized the special concerns for sentencing juveniles because of their "diminished culpability and heightened capacity for change." Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). "Neuroscience research suggests that the human brain's ability to govern risk and reward is not fully developed until the age of 25. [Citation.] Social science research has shown that most criminals, including violent ones, mature out of lawbreaking before reaching middle age."

Brown , 2015 IL App (1st) 130048, ¶ 46, 391 Ill.Dec. 660, 31 N.E.3d 336.

¶ 27 The reasoning of People v. Gipson , 2015 IL App (1st) 122451, 393 Ill.Dec. 359, 34 N.E.3d 560, applies here. The Gipson court said:

"To be sure, this was a serious offense. * * * [The victim's] injuries were severe. * * * [T]he record does not indicate that the incident was planned long before it occurred; rather, it appears to have resulted from rash decision making. The record also shows that as a juvenile with mental illness, defendant was prone to impulsive behavior. * * *
* * * [D]efendant's impaired ability to process information may have affected his judgment. These factors diminish both defendant's culpability and the need for retribution. Furthermore, the record suggests that defendant's mental health has improved in the more recent past, at least to some degree. Thus, defendant may yet be rehabilitated and restored to useful citizenship." Gipson , 2015 IL App (1st) 122451, ¶¶ 73-74, 393 Ill.Dec. 359, 34 N.E.3d 560.

¶ 28 The trial court here apparently gave little weight to the opinions of the professionals who worked most closely with Ronald. We must defer to the trial court's weighing of the evidence concerning the sentencing factors. See Fern , 189 Ill. 2d at 53-56, 243 Ill.Dec. 175, 723 N.E.2d 207. The law in effect at the time of sentencing mandated prosecution of Ronald in criminal court, despite his age, and it mandated adult sentencing. The trial court imposed a sentence near the middle of the statutory range. We cannot say that the trial court abused its discretion in sentencing Ronald.

¶ 29 Ronald, like Gipson, should have an opportunity to show that he has worked to rehabilitate himself and control his violent impulses with sufficient time to make his life one of useful citizenship. Other states have enacted legislation giving almost all juvenile offenders the opportunity to petition for parole. The California Penal Code provides,

"When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing." Cal. Penal Code § 1170(d)(2)(A)(i) (West 2018).

Missouri statutes similarly provide that

"Any person sentenced to a term of imprisonment for life without eligibility for parole before August 28, 2016, who was under eighteen years of age at the time of the commission of the offense or offenses, may submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole." Mo. Rev. Stat. § 558.047 (2016).

The Supreme Court of New Jersey helpfully collected other authorities in a footnote:

"See, e.g., Cal. Penal Code §§ 1170(d)(2)(A)(i) (allowing juveniles sentenced to life without parole to petition court for resentencing after 15 years), 3051(b) (2016) (providing parole eligibility for juveniles after 15, 20, or 25 years, depending on length of original sentence); Del. Code. Ann. tit. 11, § 4204A(d)(1)(2) (2016) (providing for judicial review of sentence for juvenile offenders after 30 years for first-degree homicide and after 20 years for other offenses); Fla. Stat. § 921.1402 (2016) (providing for judicial review of sentences for juvenile offenders of at least 15 years after 15, 20, or 25 years, depending on length of original sentence, and establishing right to counsel); Mont. Code Ann. § 46-18222(1) (2016) (exempting juvenile offenders from sentences of life without parole and restrictions on parole eligibility); N.C. Gen. Stat. § 15A-1340.19A (2016) (providing parole eligibility after 25 years for juvenile offenders convicted of first-degree murder); Wash. Rev. Code § 9.94A.730(1) (2016) (allowing juvenile offenders to petition sentence review board for release after 20 years); W. Va. Code § 61-11-023(b) (2016) (providing parole eligibility after 15 years for juvenile offenders sentenced to more than 15 years); Wyo. Stat. Ann. § 6-10-301(c) (2016) (providing parole eligibility after 25 years for juvenile offenders sentenced to life in prison)." State v. Zuber , 227 N.J. 422, 152 A.3d 197, 215 n.4 (2017).

¶ 30 The Illinois General Assembly should consider similar legislation to permit juveniles subjected to lengthy sentences to show rehabilitation.

¶ 31 CONCLUSION

¶ 32 The trial court sentenced Ronald, a 15-year-old bipolar child, to 36 years in prison for three acts of aggravated criminal sexual assault, where the three acts occurred in the course of two or three minutes. Because the sentence falls near the middle of the statutory sentencing range, we find no abuse of discretion. Accordingly, we affirm the trial court's judgment.

¶ 33 Affirmed.

Justices Pierce and Griffin concurred in the judgment and opinion.


text:
    The ILLINOIS INSURANCE GUARANTY FUND, Plaintiff-Appellee, v. Israel P. NWIDOR, Individually; Phillip Carrington, as Guardian of the Estate of James Carrington, a Disabled Person; and Chicago Carriage Cab Corporation, d/b/a Chicago Taxi Association, Inc., an Illinois Corporation, Defendants
    (Chicago Carriage Cab Corporation, Defendant-Appellant).
    No. 1-17-1378
    Appellate Court of Illinois, First District, Third Division.
    May 23, 2018
    Jeffrey J. Scolaro and Lisa M. Roccanova, of Daley Mohan Groble, P.C., of Chicago, for appellant.
    Bryan G. Schumann, of Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appellee.
   PRESIDING JUSTICE COBBS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, the Illinois Insurance Guaranty Fund (IIGF), brought a declaratory judgment action in the circuit court of Cook County against defendants, which included the Chicago Carriage Cab Corporation, d/b/a Chicago Taxi Association, Inc. (Chicago Cab). IIGF sought a determination of Chicago Cab's insurance coverage in an underlying lawsuit. Finding that Chicago Cab was not covered, the trial court granted summary judgment in favor of IIGF. On appeal, Chicago Cab contends (1) waiver or estoppel barred IIGF from asserting lack of coverage, (2) the trial court erred in granting summary judgment in favor of IIGF, and (3) the trial court abused its discretion in denying Chicago Cab's motion to reconsider. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Underlying Carrington Action

¶ 4 On October 5, 2011, Israel P. Nwidor, a Chicago Cab employee, was driving a 2007 Ford Crown Victoria taxi, owned by Chicago Cab. The taxi collided with a motorcycle being operated by James Carrington. In April 2012, Phillip Carrington, as guardian of the estate of James, brought a personal injury action against Chicago Cab and Nwidor. Chicago Cab owned a commercial automobile liability insurance policy, No. 11UCC2060, issued by the Ullico Casualty Company (Ullico). Chicago Cab tendered its defense to Ullico, which retained defense counsel. An appearance on behalf of Chicago Cab was filed in August 2012. In January 2013, Carrington filed the instant amended complaint against Nwidor, Chicago Cab, and related corporate entities. Carrington alleged that Nwidor and Chicago Cab negligently owned, operated, and maintained the subject taxi, which proximately resulted in James's severe and permanent injuries.

¶ 5 On May 30, 2013, Ullico went into liquidation. In a letter dated June 7, 2013, IIGF notified Chicago Cab of the liquidation. The letter informed Chicago Cab that IIGF would assume responsibility for Ullico's obligations to its Illinois policyholders and claimants, subject to the limitations and conditions of the Illinois Insurance Guaranty Fund, codified as article XXXIV of the Illinois Insurance Code ( 215 ILCS 5/532 et seq. (West 2014) ). The letter advised Chicago Cab that it had to satisfy certain prerequisites before IIGF could "proceed to investigate, adjust, compromise, settle and pay covered claims as provided for, and in accordance with our governing statutory requirements" (emphasis added). The letter also included the following:

"IIGF specifically asserts and maintains a reservation of rights related to any payments it may make in respect to your company. IIGF also asserts and maintains an absolute reservation of rights in respect to any policy related issues which may be discovered or disclosed. IIGF reserves the right to seek reimbursement from you for any and all payments * * * that IIGF may make in respect of your company if, because of * * * any pertinent statutory or policy limitation or condition, it is discovered or decided that the relevant claims were not 'covered claims.' "

In a June 24, 2013, letter, IIGF requested information from Chicago Cab and repeated the above-quoted language.

¶ 6 In a third letter, dated September 26, 2013, IIGF informed Chicago Cab that the Ullico liquidator had provided IIGF with "initial computerized data references, and in some but not all instances, file materials as well," but that it was still "missing critical information necessary for us to process claims." The letter also noted as follows:

"In addition to any prior reservation of rights issued by Ullico Insurance Company, IIGF is conducting the handling of the above referenced matter under a full and complete reservation of rights under the terms and conditions of the Ullico insurance policy. * * * Nothing in this letter should be viewed as a waiver of any rights or defenses IIGF may have under the Illinois Insurance Code, under the pertinent insurance policies or otherwise which rights and defenses are hereby reserved."

¶ 7 In a fourth letter, dated May 6, 2014, IIGF informed Chicago Cab that IIGF had obtained the Ullico policy, which included "endorsement number 11," in effect at the time of the accident. Generally, the policy provided coverage only for covered automobiles, and endorsement No. 11 deleted coverage for the subject taxi, vehicle identification number (VIN) 2FAFP71W67X124521. The letter explained: "since it appears that the policy affords no coverage for the deleted auto due to endorsement number 11 and the general policy provisions," IIGF "fully reserves all rights under the policy and Illinois law * * * to deny any obligation to pay for any defense or indemnity" on behalf of Chicago Cab or Nwidor. The letter further explained that the IIGF provisions of the Insurance Code obligate IIGF to pay only a "covered claim," which refers to a loss within the coverage of a liability insurance policy, and any loss outside of such coverage is not a covered claim. For these reasons, and for any additional reasons as the investigation continued, IIGF would continue to pay for the defense of Chicago Cab and Nwidor but under a reservation of rights, including the right to file a declaratory judgment action. The underlying Carrington action was and remains stayed.

¶ 8 B. Instant Declaratory Judgment Action

¶ 9 On May 23, 2014, IIGF filed the instant complaint for declaratory relief, with the Ullico policy attached. The Ullico policy shows coverage for the subject taxi bearing City of Chicago Taxicab Medallion No. 2975. Endorsement No. 11 shows that on September 22, 2011, that vehicle was removed from coverage and replaced with a different vehicle (VIN 1FMCU4K3XCKA59559) bearing the same medallion. Endorsement No. 11 had an effective date of September 30, 2011. IIGF alleged that the subject taxi was deleted from coverage under the Ullico policy prior to the October 5, 2011, accident. IIGF further alleged that since the Ullico policy provides no liability coverage for the subject taxi, there consequently could be no "covered claim" as defined by the IIGF provisions in the Insurance Code. 215 ILCS 5/534.3(a) (West 2014). Accordingly, IIGF sought a declaration that it did not have a duty to defend or indemnify Chicago Cab or Nwidor in the underlying action, and that IIGF was entitled to reimbursement from Chicago Cab for defense costs.

¶ 10 Chicago Cab filed an answer and three affirmative defenses. The answer denied the complaint's salient allegations. In its first affirmative defense, Chicago Cab asserted that the subject taxi was still covered under the Ullico policy on the day of the underlying accident. Chicago Cab alleged as follows. Ullico insured Chicago Cab's fleet of taxis, including the subject taxi affixed with medallion No. 2975. Without mentioning endorsement No. 11, Chicago Cab alleged that, based on City of Chicago regulatory custom and practice, the City of Chicago taxicab medallion license card (Hard Card) was not issued to the replacement vehicle until October 7, 2011, two days after the underlying accident. Therefore, according to Chicago Cab, the subject taxi was still covered at the time of the accident. Consequently, Chicago Cab presented a covered claim.

¶ 11 In its second affirmative defense, Chicago Cab posited that 25 months elapsed from the April 2012 filing of the original complaint in the underlying action to May 6, 2014, when IIGF issued a reservation of rights letter. Chicago Cab alleged that Ullico and IIGF waived a lack of coverage by waiting 25 months before IIGF issued a reservation of rights letter or filed a declaratory judgment action of any kind. In its third affirmative defense, Chicago Cab alleged that it detrimentally relied on the actions of Ullico and IIGF and, consequently, IIGF and Ullico should be estopped from asserting a lack of coverage.

¶ 12 In August 2016, IIGF filed a motion for summary judgment, in which it argued that, as a matter of law, insurance coverage for the subject taxi was removed on September 30, 2011, the effective date of endorsement No. 11 of the Ullico policy. Therefore, according to IIGF, the subject taxi was not covered at the time of the October 5, 2011, underlying accident. IIGF also argued that it did not waive denial of coverage or is estopped from asserting lack of coverage.

¶ 13 In its response, Chicago Cab asserted that "[t]he policy and endorsement language only tells a part of the story, and clearly does not reflect the true rights, duties, and obligations contemplated by the Contracting Parties." Chicago Cab contended that IIGF ignored the regulatory procedures, past negotiations, business practices, and mutual contractual intent of the contracting parties and of the taxi insurance industry in general. Chicago Cab argued that there were "myriad issues of fact as to how and when" insurance coverage was transferred from the subject taxi to the replacement vehicle. According to Chicago Cab, these material issues of fact precluded summary judgment. Chicago Cab also argued that its affirmative defenses of waiver and estoppel raise questions of material fact that preclude summary judgment.

¶ 14 On January 5, 2017, at the close of a hearing, the trial court granted IIGF's motion for summary judgment. Chicago Cab filed a motion to reconsider, which the trial court denied. Chicago Cab timely appeals. Additional pertinent background will be discussed in the context of our analysis of the issues.

¶ 15 II. ANALYSIS

¶ 16 This matter is before us on the grant of summary judgment in favor of IIGF. Summary judgment is appropriate only where "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 5/2-1005(c) (West 2014). A trial court's entry of summary judgment and the construction of an insurance policy are both reviewed de novo . Rich v. Principal Life Insurance Co. , 226 Ill. 2d 359, 370-71, 314 Ill.Dec. 795, 875 N.E.2d 1082 (2007).

¶ 17 A. Waiver and Estoppel

¶ 18 In the trial court, Chicago Cab directed this contention at both Ullico and IIGF. Chicago Cab contended that the 25-month period between the filing of the original complaint and IIGF's fourth reservation of rights letter constituted waiver of and estoppel from asserting a lack of coverage under the policy. However, before this court, Chicago Cab directs this contention solely at IIGF. Chicago Cab now argues that, based on the 11-month period between Ullico's liquidation and IIGF's fourth reservation of rights letter, (1) IIGF has waived a lack of policy coverage and (2) IIGF should be estopped from asserting a lack of coverage.

¶ 19 At the outset, we note IIGF's contention that there was no delay on its part at all. According to IIGF, it issued its first reservation of rights letter to Chicago Cab on June 7, 2013, which was only within one week of Ullico's liquidation. IIGF argues that it "properly reserved all of its rights from the very beginning while it continued to investigate the matter."

¶ 20 This contention lacks merit. A reservation of rights must adequately inform the insured of the rights which the insurer intends to reserve. "Accordingly, bare notice of a reservation of rights is insufficient; the notice must make specific reference to the policy defense which ultimately may be asserted * * *." Royal Insurance Co. v. Process Design Associates, Inc. , 221 Ill. App. 3d 966, 973, 164 Ill.Dec. 290, 582 N.E.2d 1234 (1991). In the case at bar, IIGF's first three reservations of rights letters each contained a bare, boilerplate declaration of an "absolute" or a "full and complete" reservation of rights "in respect to any policy related issues which may be discovered or disclosed." It was not until IIGF's fourth reservation of rights letter, dated May 6, 2014, that IIGF informed Chicago Cab of the coverage issue for the subject taxi. Therefore, we will analyze Chicago Cab's contentions based on the alleged 11-month delay.

¶ 21 In the context of insurance law, the doctrines of "waiver" and "estoppel" are closely akin and may often coexist. However, waiver and estoppel are two separate and distinct doctrines. Salloum Foods & Liquor, Inc. v. Parliament Insurance Co. , 69 Ill. App. 3d 422, 427-28, 26 Ill.Dec. 399, 388 N.E.2d 23 (1979). Waiver consists of an express or implied voluntary and intentional relinquishment of a known right. In contrast, estoppel refers to an abatement, by operation of law, of the insurer's rights where it would be inequitable to permit their assertion. National Discount Shoes, Inc. v. Royal Globe Insurance Co. , 99 Ill. App. 3d 54, 59, 54 Ill.Dec. 263, 424 N.E.2d 1166 (1981). Normally, waiver and estoppel are questions for the trier of fact. However, where there is no dispute as to the material facts and only one inference can be drawn therefrom, summary judgment is appropriate. See, e.g. , Aetna Casualty & Surety Co. v. Oak Park Trust & Savings Bank , 168 Ill. App. 3d 1000, 1004, 119 Ill.Dec. 649, 523 N.E.2d 117 (1988) ; Florsheim v. Travelers Indemnity Co. , 75 Ill. App. 3d 298, 307, 30 Ill.Dec. 876, 393 N.E.2d 1223 (1979).

¶ 22 Absent a reservation of rights, an insurer waives all questions of policy coverage when it assumes an insured's defense and " 'recognizes the continued validity of the policy.' " American States Insurance Co. v. National Cycle, Inc. , 260 Ill. App. 3d 299, 306, 197 Ill.Dec. 833, 631 N.E.2d 1292 (1994) (quoting Kenilworth Insurance Co. v. McDougal , 20 Ill. App. 3d 615, 620, 313 N.E.2d 673 (1974) ). However, an insurer cannot assert a policy defense until it is aware of the facts giving rise to that defense, and an insurer will not be found to have waived rights of which it was unaware. American States Insurance Co. , 260 Ill. App. 3d at 307, 197 Ill.Dec. 833, 631 N.E.2d 1292. Moreover, an insurer who wishes to reserve its rights under a policy must notify the insured without delay or with reasonable promptness. A long delay without explanation in asserting a policy defense is an element in determining the reasonableness of an insurer's conduct. However, such a delay alone is normally not enough to constitute a waiver. In determining whether a "delay" is reasonable, it is implicit that some part of the time, reasonable in relation to the status of the pending litigation, must be allowed to the insurer to evaluate its position and determine what route it will follow. Id. at 306, 197 Ill.Dec. 833, 631 N.E.2d 1292. Since waiver is based on the unilateral conduct of the insurer, prejudicial reliance by the insured is not required. Id. ; Salloum Foods , 69 Ill. App. 3d at 428-29, 26 Ill.Dec. 399, 388 N.E.2d 23.

¶ 23 Applying these principles to the case at bar, we conclude that IIGF did not waive denial of coverage under the policy. In its June 7, 2013, letter, IIGF notified Chicago Cab that it would assume responsibility for Ullico's obligations. At that time, however, IIGF obviously was unaware of the facts pertaining to policy coverage. Consequently an intention to waive does not follow. Further, the entire 11-month period cannot be considered a "delay." In its September 26, 2013, letter, IIGF informed Chicago Cab that it still lacked necessary information to process the claim. It was not until May 6, 2014, that IIGF stated that the liquidator had "[r]ecently" provided it with endorsement No. 11. Thus, in light of the factual posture of this case, we do not believe that the approximate seven months between IIGF's September 26, 2013, letter and its May 6, 2014, reservation of rights letter was an unreasonable delay. We fail to see how IIGF's conduct constituted an intentional relinquishment of a known right.

¶ 24 Turning to estoppel, Chicago Cab alleged in its third affirmative defense that it "relied on [IIGF's] representation that it would be defended and indemnified and, therefore, did not take an active part in the defense of the Carrington Action." Chicago Cab further alleged that it was prejudiced by the inability "to be involved in decisions related to the defense of the Carrington Action," and "to monitor the potential economic impact that the Carrington Action might have." Chicago Cab alleged that IIGF's actions also prejudiced its "potential ability to settle the Carrington Action."

¶ 25 Generally, where a complaint against the insured alleges facts within or potentially within the coverage of the insurance policy and when the insurer takes the position that the policy does not cover the complaint, the insurer must (1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that there is no coverage. If the insurer fails to take either of these actions, it will be estopped from later raising policy defenses to coverage. State Farm Fire & Casualty Co. v. Martin , 186 Ill. 2d 367, 371, 238 Ill.Dec. 126, 710 N.E.2d 1228 (1999). In these circumstances, proof of prejudice is not required. Employers Insurance of Wausau v. Ehlco Liquidating Trust , 186 Ill. 2d 127, 157-58, 237 Ill.Dec. 82, 708 N.E.2d 1122 (1999).

¶ 26 However, "a different form of equitable estoppel * * * arises once an insurer actually assumes an insured's defense without reserving its rights." Id. at 158, 237 Ill.Dec. 82, 708 N.E.2d 1122 (collecting cases). Where, as in this case, the insurer initially undertakes the duty to defend but later reserves rights or files a declaratory judgment action, the insurer will not be estopped from asserting lack of coverage unless prejudice exists. Maryland Casualty Co. v. Peppers , 64 Ill. 2d 187, 195, 355 N.E.2d 24 (1976) ; United Farm Family Mutual Insurance Co. v. Frye , 381 Ill. App. 3d 960, 969, 320 Ill.Dec. 639, 887 N.E.2d 783 (2008). Typically, the insured asserts prejudice on the ground that it surrendered the right to control its defense and completely relied for its entire defense upon the insurer. American States Insurance Co. , 260 Ill. App. 3d at 308, 197 Ill.Dec. 833, 631 N.E.2d 1292. However, "[p]rejudice will not be conclusively presumed from the mere entry of appearance and assumption of the defense." Peppers , 64 Ill. 2d at 196, 355 N.E.2d 24. The insured has the burden of establishing prejudicial reliance by clear, concise, and unequivocal evidence. Frye , 381 Ill. App. 3d at 969-70, 320 Ill.Dec. 639, 887 N.E.2d 783 ; American States Insurance Co. , 260 Ill. App. 3d at 308, 197 Ill.Dec. 833, 631 N.E.2d 1292.

¶ 27 In the case at bar, we fail to see how Chicago Cab was prejudiced by IIGF's representation and assertion of lack of coverage. Chicago Cab does not complain that IIGF's representation was defective. Also, Chicago Cab has not offered any evidence to show how it was injured by IIGF's alleged delay in reserving its rights. Indeed, the underlying action was and remains stayed. There is nothing in the record other than Chicago Cab's bare assertion that it was prejudiced by surrendering its defense to IIGF. This is merely a legal conclusion and not a statement of fact. We conclude that Chicago Cab failed to establish prejudice. See Mid-State Savings & Loan Ass'n v. Illinois Exchange, Inc. , 175 Ill. App. 3d 265, 272, 124 Ill.Dec. 715, 529 N.E.2d 696 (1988) ; American States Insurance Co. , 260 Ill. App. 3d at 310, 197 Ill.Dec. 833, 631 N.E.2d 1292 ; Old Mutual Casualty Co. v. Clark , 53 Ill. App. 3d 274, 279, 11 Ill.Dec. 151, 368 N.E.2d 702 (1977). We hold that IIGF is not estopped from asserting lack of policy coverage.

¶ 28 B. "Covered Claim"

¶ 29 We agree with Chicago Cab that the crux of this case turns on the date that coverage under the Ullico policy was transferred from the subject taxi to the replacement vehicle. Chicago Cab contends that coverage was transferred on October 7, 2011, and, therefore, the subject taxi was still covered under the policy at the time of the October 5, 2011, accident. IIGF contends that coverage was transferred on September 30, 2011, and, therefore, the subject taxi was not covered at the time of the accident. At the least, according to Chicago Cab, a genuine issue of material fact exists as to this issue.

¶ 30 When construing an insurance policy, a court's primary objective is to ascertain and give effect to the intentions of the parties as expressed by the words of the policy. Rich , 226 Ill. 2d at 371, 314 Ill.Dec. 795, 875 N.E.2d 1082 ; Crum & Forster Managers Corp. v. Resolution Trust Corp. , 156 Ill. 2d 384, 391, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993). "An insurance policy, like any contract, is to be construed as a whole, giving effect to every provision, if possible, because it must be assumed that every provision was intended to serve a purpose." Central Illinois Light Co. v. Home Insurance Co. , 213 Ill. 2d 141, 153, 290 Ill.Dec. 155, 821 N.E.2d 206 (2004). The court must take into account the type of insurance provided, the nature of the risks involved, the overall purpose of the contract ( Rich , 226 Ill. 2d at 371, 314 Ill.Dec. 795, 875 N.E.2d 1082 ; Crum & Forster , 156 Ill. 2d at 391, 189 Ill.Dec. 756, 620 N.E.2d 1073 ), and the particular factual setting in which the policy was issued. Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd. , 223 Ill. 2d 407, 417, 307 Ill.Dec. 626, 860 N.E.2d 280 (2006). If the words in the policy are unambiguous, they must be given their plain and ordinary meaning, and the policy will be applied as written, unless it contravenes public policy. Rich , 226 Ill. 2d at 371, 314 Ill.Dec. 795, 875 N.E.2d 1082. A policy term is not considered ambiguous "merely because the parties can suggest creative possibilities for its meaning. Rather, ambiguity exists only if the term is susceptible to more than one reasonable interpretation." Nicor , 223 Ill. 2d at 417, 307 Ill.Dec. 626, 860 N.E.2d 280 ; see Young v. Allstate Insurance Co. , 351 Ill. App. 3d 151, 157-58, 285 Ill.Dec. 921, 812 N.E.2d 741 (2004).

¶ 31 In the case at bar, the Ullico policy was in effect from January 1, 2011, to January 1, 2012. Endorsement No. 1, dated January 1, 2011, lists the 813 taxis covered under the policy. Each taxi is identified by medallion number, year, make, and VIN. Each month thereafter, an endorsement labelled "Policy Change" listed, by medallion number, taxis identified by VIN that were removed from coverage and replaced with different vehicles. According to IIGF, endorsement No. 11 clearly shows that on September 22, 2011, coverage for the subject taxi was transferred to the replacement vehicle. Further, the "change effective" date was September 30, 2011.

¶ 32 However, Chicago Cab contends that "IIGF's position ignores the understanding" between Chicago Cab and Ullico. Chicago Cab points to taxi rules promulgated by the City of Chicago Department of Business Affairs and Consumer Protection (BACP). Chicago Cab argues that it could not operate the replacement vehicle until it completed the change of equipment (COE) administrative and inspection process, and was issued a Hard Card to be placed in the vehicle. It was only after the issuance of the Hard Card could Chicago Cab physically remove the metal medallion from the subject taxi and bolt it on the replacement vehicle. According to Chicago Cab, endorsement No. 11 "was processed 'early' (i.e. , September 22, 2011)" so that Chicago Cab "would have it in hand to submit to the BACP prior to the October 7, 2011 COE inspection. Coverage of the [subject taxi] continued until it was replaced on October 7, 2011-the date when the BACP issued the 'Hard Card' for the [replacement vehicle]."

¶ 33 We cannot accept this argument. It is quite established that evidence of custom and usage is only admissible to explain uncertain or ambiguous terms of a contract. When contract terms are clear, those terms alone determine the obligations of the parties. Gray v. Mundelein College , 296 Ill. App. 3d 795, 805, 231 Ill.Dec. 260, 695 N.E.2d 1379 (1998) ; Bielecki v. Painting Plus, Inc. , 264 Ill. App. 3d 344, 358, 202 Ill.Dec. 318, 637 N.E.2d 1054 (1994). "Usage or custom is admissible to explain or make clear what a contract means but not to contradict a meaning obvious on the face of the instrument." Hufford v. National Retailer-Owned Grocers, Inc. , 16 Ill. App. 2d 1, 7-8, 147 N.E.2d 437 (1957). One will not be permitted to prove a custom or usage that would effectively add to an express agreement a condition or limitation that is inconsistent with the agreement itself. Ambarann Corp. v. Old Ben Coal Corp. , 395 Ill. 154, 164, 69 N.E.2d 835 (1946).

¶ 34 In endorsement No. 11, Ullico and Chicago Cab plainly and unambiguously agreed that coverage for medallion No. 2975 would transfer on September 22, 2011, effective September 30, 2011. Further, there is no reason to ignore the integration provision in the policy, which provides that the policy contains "all of the agreements" between Ullico and Chicago Cab "concerning the insurance afforded," and that the "policy's terms can be amended or waived only by endorsement issued by [Ullico] and made a part of this policy." See Air Safety, Inc. v. Teachers Realty Corp. , 185 Ill. 2d 457, 464, 236 Ill.Dec. 8, 706 N.E.2d 882 (1999) (stating that "where parties formally include an integration clause in their contract, they are explicitly manifesting their intention to protect themselves against misinterpretations which might arise from extrinsic evidence"). Chicago Cab's argument would render meaningless the policy's monthly endorsements that identify when coverage begins and ends for any of the swapped taxis. "[A] court will not rewrite a contract to suit one of the parties, but will enforce the terms as written. [Citation.] There is a strong presumption against provisions that easily could have been included in the contract but were not." Wright v. Chicago Title Insurance Co. , 196 Ill. App. 3d 920, 925, 143 Ill.Dec. 576, 554 N.E.2d 511 (1990). Chicago Cab's invocation of custom and usage is unavailing.

¶ 35 We note that Chicago Cab raised an alternative contention in its response to IIGF's motion for summary judgment: that "a mutual mistake of fact" occurred when endorsement No. 11 was written. At the hearing on IIGF's motion for summary judgment, the trial court found: "There is in my view no legal or factual support for the argument that there was a mutual mistake of fact." Before this court, Chicago Cab asks for reformation of endorsement No. 11 "to reflect the true intent of the contracting parties."

¶ 36 The party seeking reformation of a written instrument must establish that there had been a meeting of the minds resulting in an actual agreement between the parties; however, when the agreement was reduced to writing, some agreed-upon provision was omitted or one not agreed upon was inserted, either through a mutual mistake or through mistake of one party and fraud by another. Great American Federal Savings & Loan Ass'n v. Grivas , 137 Ill. App. 3d 267, 274, 91 Ill.Dec. 870, 484 N.E.2d 429 (1985) ; Sheldon v. Colonial Carbon Co. , 116 Ill. App. 3d 797, 800, 72 Ill.Dec. 289, 452 N.E.2d 542 (1983). " '[T]he action is to so change the instrument as written as to conform it to the contract agreed upon, by inserting the provisions omitted or striking out the one inserted by mutual mistake.' " Suburban Bank of Hoffman-Schaumburg v. Bousis , 144 Ill. 2d 51, 58-59, 161 Ill.Dec. 289, 578 N.E.2d 935 (1991) (quoting Harley v. Magnolia Petroleum Co. , 378 Ill. 19, 28, 37 N.E.2d 760 (1941) ). There is a presumption that a written instrument conforms to the intention of the parties thereto. Therefore, in an action for reformation, the proponent's burden of proof is clear and convincing evidence. Bousis , 144 Ill. 2d at 59, 161 Ill.Dec. 289, 578 N.E.2d 935 ; Grivas , 137 Ill. App. 3d at 274, 91 Ill.Dec. 870, 484 N.E.2d 429 ; Sheldon , 116 Ill. App. 3d at 800, 72 Ill.Dec. 289, 452 N.E.2d 542.

¶ 37 Chicago Cab essentially argues that the "real" agreement between it and Ullico provided that the effective coverage transfer date for replaced taxis was not the effective date plainly identified on the monthly endorsements but rather was the date on which BACP chose to issue a Hard Card for any particular taxi. The trial court rejected this contention, as do we. Chicago Cab subsequently proffered affidavit testimony, which we discuss below, that the Hard Card date of issuance customarily governs the date of coverage. However, this affidavit testimony does not establish that this alleged custom and practice was reduced to a writing that would constitute a prior contract. We uphold the trial court's grant of summary judgment in favor of IIGF.

¶ 38 C. Motion to Reconsider

¶ 39 Chicago Cab filed a motion to reconsider based on newly discovered evidence. The trial court denied the motion, and Chicago Cab assigns error. The purpose of a motion to reconsider is to bring to the trial court's attention newly discovered evidence that was not available at the time of the hearing, changes in the law, or errors in the trial court's previous application of existing law. Where the motion to reconsider is based on new evidence, facts, or legal theories not presented in the prior proceedings, our standard of review is abuse of discretion. Horlacher v. Cohen , 2017 IL App (1st) 162712, ¶¶ 79-80, 420 Ill.Dec. 353, 96 N.E.3d 438 ; Compton v. Country Mutual Insurance Co. , 382 Ill. App. 3d 323, 330-31, 320 Ill.Dec. 734, 887 N.E.2d 878 (2008).

¶ 40 Chicago Cab attached to its motion to reconsider affidavits from two taxi associations and an insurer of Chicagoland taxis. In its motion, Chicago Cab asserted that the affidavits "testify to the custom and practice of the hard card governing the date of coverage for taxis in Chicago." Before this court, Chicago Cab contends that each affiant "unequivocally swears that custom and practice in the industry is that the 'hard card' date of issuance dictates the policy change."

¶ 41 We must first determine whether this information qualifies as newly discovered evidence. In the context of this case, newly discovered evidence is evidence that was not available prior to the hearing on the motion for summary judgment. A trial court should not allow a litigant to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling. Horlacher , 2017 IL App (1st) 162712, ¶¶ 82, 84, 420 Ill.Dec. 353, 96 N.E.3d 438 ; Compton , 382 Ill. App. 3d at 331, 320 Ill.Dec. 734, 887 N.E.2d 878 ; Landeros v. Equity Property & Development , 321 Ill. App. 3d 57, 65, 254 Ill.Dec. 351, 747 N.E.2d 391 (2001).

¶ 42 This is precisely what Chicago Cab attempts to do here. Before this court, Chicago Cab asserts that the affiants "were not willing to be involved in the litigation, as they believed the trial court would uphold the custom and practice of the taxicab industry that [Chicago Cab] had followed. It was only after the adverse summary judgment ruling that [Chicago Cab] could obtain these affidavits." Thus, by Chicago Cab's own admission, its proffered affidavits are not "newly discovered evidence." We cannot say that the trial court abused its discretion in denying Chicago Cab's motion to reconsider.

¶ 43 III. CONCLUSION

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

¶ 45 Affirmed.

Justices Howse and Lavin concurred in the judgment and opinion.