Wheeler Financial, Inc. v. Law Bulletin Publishing Co. , 2018 IL App (1st) 171495 ( 2019 )

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Appellate Court Date: 2019.07.25
14:13:54 -05'00'
Wheeler Financial, Inc. v. Law Bulletin Publishing Co.,
2018 IL App (1st) 171495Appellate Court WHEELER FINANCIAL, INC., Plaintiff-Appellant, v. LAW
Caption BULLETIN PUBLISHING COMPANY, Defendant-Appellee.
District & No. First District, Fifth Division
Docket No. 1-17-1495
Filed September 14, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-9581; the
Review Hon. Margaret A. Brennan, Judge, presiding.
Judgment Affirmed.
Counsel on Greenberg Traurig, LLP, of Chicago (Gregory E. Ostfeld, Paul J.
Appeal Ferak, and Ian D. Burkow, of counsel), for appellant.
Howard & Howard Attorneys PLLC, of Chicago (Scott C. Frost and
Daniel S. Rubin, of counsel), and Howard & Howard Attorneys
PLLC, of Royal Oak, Michigan (Michael O. Fawaz, of counsel), for
appellee.
Panel PRESIDING JUSTICE ROCHFORD delivered the judgment of the
court, with opinion.
Justices Hall and Lampkin concurred in the judgment and opinion.*
OPINION
¶1 Plaintiff, Wheeler Financial, Inc. (Wheeler), filed a breach of contract action against
defendant, Law Bulletin Publishing Company (Law Bulletin), arising out of Law Bulletin’s
error in publishing a notice containing the wrong hearing date for Wheeler’s application for a
tax deed to certain property at 1656 N. Winchester Avenue (the Winchester property). Wheeler
alleged that Law Bulletin’s error caused the circuit court to deny its tax deed application in a
separate proceeding. A jury returned a verdict in favor of Law Bulletin, finding that Wheeler
had failed to perform all of its obligations under the contract. On appeal, Wheeler argues that
(1) the trial court erred in denying its pretrial motion for partial summary judgment and its
motion at trial for a directed verdict, (2) the trial court erred in admitting evidence of the
parties’ prior course of dealing and instructing the jury thereon, and (3) the trial court erred in
denying certain in limine motions. We affirm.
¶2 I. Background
¶3 A. The Tax Sale Process
¶4 Every year, the Cook County Treasurer’s Office (Treasurer’s Office) conducts an auction
of tax liens on properties with delinquent tax bills (tax sale). After purchasing a tax lien, the tax
buyer pays the Treasurer’s Office the delinquent taxes owed by the property owner.
¶5 Pursuant to the Property Tax Code (35 ILCS 200/21-190 et seq. (West 2016)), the property
owner whose tax lien has been sold at the tax sale can satisfy the lien at any time within the
redemption period by paying the delinquent taxes due, plus certain costs and penalties.
¶6 If the property owner fails to satisfy the tax lien by paying the amounts due within the
applicable redemption period, then the tax buyer may apply to the circuit court for a tax deed
for the property. When a tax deed for the property is acquired and recorded, the tax buyer
obtains fee simple title to the property.
¶7 To acquire a tax deed, the tax buyer must show the court that he gave written notice (Take
Notice) to the property owner that his delinquent property taxes have been sold at the tax sale
and that he must pay the delinquent taxes before the expiration of the redemption period in
order to preserve his property rights. See id. § 22-10. The Take Notice must be “published in a
newspaper as set forth in Section 22-20.” Id. § 22-15. Section 22-20 of the Property Tax Code
requires that the published Take Notice “shall contain (a) notice of the filing of the petition for
tax deed, (b) the date on which the petitioner intends to make application for an order on the
petition that a tax deed issue, (c) a description of the property, (d) the date upon which the
property was sold, (e) the taxes or special assessments for which it was sold and (f) the date on
which the period of redemption will expire.” Id. § 22-20.
*
Justice Hall has listened to a recording of oral arguments, which were heard on August 7, 2018.
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¶8 B. The Complaint
¶9 On September 12, 2014, Wheeler filed a two-count complaint for breach of contract and
breach of implied contract against Law Bulletin. Wheeler alleged that it is a Chicago-based
company that purchases tax liens at county sales and acquires properties associated with those
liens. For more than 15 years, Wheeler has exclusively used Law Bulletin to publish Take
Notices for the tax liens it has purchased at tax sales. Between 2012 and 2014 alone, Wheeler
paid Law Bulletin “hundreds of thousands of dollars in publication costs for Take Notices that
the Law Bulletin published in the Chicago Daily Law Bulletin.”
¶ 10 In each case, Wheeler submitted a publication request for its Take Notices by e-mailing a
text file to Law Bulletin that included the text for each of the Take Notices that Wheeler
wanted to publish. Law Bulletin published the text of the Take Notices provided to it by
Wheeler in exchange for a fee. Law Bulletin “knew that the Take Notices it received from
Wheeler had to be published accurately based on the information Wheeler provided and that if
the publication were inaccurate, Wheeler would be unable to acquire the tax deed associated
with that property.”
¶ 11 In May 2013, Wheeler advised Law Bulletin that it wanted to publish Take Notices for
over 350 different tax liens Wheeler had acquired during the September 2010 tax sale. On May
29, 2013, Wheeler e-mailed Law Bulletin the text file for the Take Notices, including the Take
Notice related to the Winchester property, which stated:
“This notice is also to advise you that a petition has been filed for a tax deed which
will transfer title and the right to possession of this property if redemption is not made
on or before 9/13/2013.
This matter is set for hearing in the Circuit Court of this county, in the Richard J.
Daley Center, 50 W. Washington Street, Courtroom 1704, Chicago, Illinois on
10/11/2013 at 9:30 a.m.”
¶ 12 Law Bulletin accepted Wheeler’s Take Notices for publication and charged Wheeler the
requisite fee. However, the Take Notice for the Winchester property published in the Chicago
Daily Law Bulletin incorrectly stated that the matter was set for hearing on “10/07/2013.”
¶ 13 The owner of the Winchester property did not redeem the tax lien for the property within
the redemption period, and Wheeler subsequently filed an application for the tax deed with the
circuit court.
¶ 14 On January 22, 2014, the circuit court denied Wheeler’s application for a tax deed for the
Winchester property “solely due to the defective Law Bulletin publication” of the wrong
hearing date.
¶ 15 In count I for breach of contract, Wheeler alleged that it had “an enforceable oral contract”
with Law Bulletin, whereby Wheeler agreed to send Law Bulletin the Take Notice for the
Winchester property, and Law Bulletin agreed to publish it as written by Wheeler in exchange
for a fee. Law Bulletin breached the oral contract by publishing the Take Notice with an
incorrect hearing date that caused the circuit court to deny Wheeler’s application for a tax
deed. Wheeler sought damages in excess of $1 million, the estimated value of the Winchester
property.
¶ 16 In count II for breach of an implied contract, Wheeler alleged that it had an enforceable
implied contract with Law Bulletin, whereby Wheeler agreed to send Law Bulletin the Take
Notice for the Winchester property, and Law Bulletin agreed to publish it as written by
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Wheeler in exchange for a fee. Law Bulletin breached the implied contract by publishing the
Take Notice with the wrong hearing date.
¶ 17 Law Bulletin’s defense was that there was a 15-year course of dealing between the parties
that qualified the terms of the contract, pursuant to which the first publication of all Take
Notices was provided to Midwest Real Estate Investment Company (Midwest) to review on
Wheeler’s behalf and Midwest/Wheeler was required to notify Law Bulletin of any errors so
that they could be corrected in a republication within the notice-serving deadline. Law Bulletin
contended that Wheeler failed to abide by the terms of the contract when it failed to have
Midwest review the first publication of the Take Notice for the Winchester property and did
not notify Law Bulletin of the error in the hearing date in time for it to republish a corrected
version.
¶ 18 II. Trial
¶ 19 A. Timothy Gray
¶ 20 Timothy Gray (Mr. Gray) testified that he is Wheeler’s president. Wheeler was formed in
1996, and its main purpose is to purchase tax liens at Cook County tax sales. Midwest provided
legal services to Wheeler that facilitated its purchase of the tax liens, in particular, Midwest
provided Law Bulletin with the Take Notices for publication. Midwest shared office space
with Wheeler and was run by Mr. Gray’s father and brother, David Gray Sr. (Mr. Gray Sr.) and
David Gray Jr. (Mr. Gray Jr.), respectively.
¶ 21 Wheeler (through its intermediary, Midwest) sent Take Notices to Law Bulletin for
publication in the Chicago Daily Law Bulletin two to four times per year for 15 years, and each
batch of publications would include 250 to 400 notices. In other words, Wheeler published
1000 to 1600 Take Notices per year with Law Bulletin, over a period of about 15 years. During
the time that Wheeler was publishing its Take Notices with Law Bulletin, Mr. Gray was never
informed by Law Bulletin that Wheeler needed to review the publication for accuracy or that it
was responsible for any errors that Law Bulletin made during publication of the Take Notices.
Mr. Gray did not have any understanding that Law Bulletin would drop off a copy of the paper
after the first publication of the Take Notices so that Wheeler/Midwest could review it.
¶ 22 Wheeler paid Law Bulletin about $72,000 to publish 315 Take Notices on June 5, 6, and 7,
2013. Mike Phalen, a representative of Midwest, sent Ben Desnoyers, an employee of Law
Bulletin, an e-mail with a text file of the Take Notices, including the Take Notice for the
Winchester property, which stated that the matter was set for hearing in the circuit court on
October 11, 2013. Mr. Gray was not aware of anyone from Wheeler or Midwest subsequently
contacting Law Bulletin to amend the Take Notice to reflect a change in the hearing date.
However, when Law Bulletin published the Take Notice for the Winchester property on June
5, 6, and 7, it contained the wrong hearing date.
¶ 23 During his direct examination, Mr. Gray was shown the masthead of the Chicago Daily
Law Bulletin, which he described as an “introductory paragraph” located on the inside of the
publication. The masthead, which was published to the jury, stated that Law Bulletin was not
responsible for errors in advertisements after the first publication if not advised of the error by
the advertiser. Prior to this litigation, Mr. Gray was unaware of the existence of the masthead
and was never informed by Law Bulletin that it applied to Take Notices.
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¶ 24 B. David Gray Jr.
¶ 25 Mr. Gray Jr. testified that he became President and general counsel for Midwest in 2010,
after his father’s death. Prior to 2013, Frank Dufkis was the Midwest employee who sent the
Take Notices on behalf of Wheeler to Law Bulletin for publication. In February 2013, Mr.
Dufkis left Midwest, and Mr. Gray Jr. took on his work responsibilities.
¶ 26 On May 14, 2013, Mr. Gray Jr. sent an e-mail to Mr. Desnoyers, who was Law Bulletin’s
“point of contact” with regard to Take Notices. The e-mail stated:
“Frank Dufkis has left our office, and I’m preparing to publish Take Notices for
petitions for tax deeds. Would you kindly let me know the information you need, the
form you need it in and any other matters we need to know to process these
publications.”
About an hour later, Mr. Desnoyers responded with an e-mail, stating: “Frank used to email me
a text file with all the notices and delivered a check. We enter them in our system and send you
the receipts. I attached an old file that he sent last year if that helps.”
¶ 27 Mr. Gray Jr. had his employee, Mr. Phalen, e-mail Mr. Desnoyers a text file with the Take
Notices (including the Take Notice for the Winchester property) on May 29, 2013. The May 29
e-mail stated: “Let me know if you need anything else from me.”
¶ 28 No one from Law Bulletin asked Midwest or Wheeler to do anything further with respect to
the publication of the Take Notices.
¶ 29 The Take Notice for the Winchester property e-mailed to Mr. Desnoyers provided for an
October 11, 2013, hearing date. Mr. Gray Jr. specifically checked the text file for accuracy
before it was sent to Law Bulletin. However, the Take Notice published in the Chicago Daily
Law Bulletin on June 5, 6, and 7 incorrectly provided for an October 7, 2013, hearing date.
¶ 30 Mr. Gray Jr. did not check the June 5, 6, and 7 Chicago Daily Law Bulletins to ensure that
the Take Notices had been published accurately because he did not think that it was his job to
do so. No one from Law Bulletin dropped off copies of the Chicago Daily Law Bulletins to his
office or told him that he was required to review the published Take Notices for errors. Also,
no one from Law Bulletin told him that the masthead, which provides that advertisers must
advise Law Bulletin of errors in the advertisement, applies to Take Notices.
¶ 31 A hearing was subsequently held on Wheeler’s application for a tax deed for the
Winchester property on January 22, 2014. The circuit court denied the application due to the
error in Law Bulletin’s publication of the Take Notice with the wrong hearing date.
¶ 32 C. Frank Dufkis
¶ 33 Mr. Dufkis testified that, as a staff attorney at Midwest for about 18 years, he supervised
several paralegals. One of the jobs of the paralegals was to review the published Take Notices
for accuracy.
¶ 34 D. The Midwest Policy Handbook
¶ 35 In reviewing the published Take Notices for accuracy, the paralegals were complying with
the Midwest Policy Handbook (Handbook). The Handbook was promulgated by Mr. Gray Sr.
in 2002. In pertinent part, it set forth in writing Midwest’s policy of reviewing the first
publication of Take Notices for accuracy and reporting any errors. Specifically, the Handbook
stated:
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“Upon receipt of the tear sheets or on the first day of publication, whichever is first
to occur, the Clerk shall verify the accuracy of the Published Notices as to all dates
shown on the notice including date of sale, tax year sold, redemption date and court
date and the spelling of all names. Any inaccuracy must be promptly brought to the
attention of a staff attorney.”
¶ 36 Mr. Gray Jr. testified that, after he became president of Midwest in 2010, he did not use the
Handbook, and he “never had any of the employees there use it.” However, Mr. Gray Jr.
admitted that he was not aware of any writing that formally rescinded the Handbook’s policy
of reviewing the first publication of the Take Notices and reporting any errors.
¶ 37 E. Michael Phalen
¶ 38 Mr. Phalen testified he worked at Midwest for about 10 years. In April 2013, Mr. Gray Jr.
asked him for help in publishing Take Notices in the Chicago Daily Law Bulletin because Mr.
Dufkis, who formerly handled the publication of the Take Notices, had left Midwest. On April
23, 2013, Mr. Phalen sent Mr. Desnoyers an e-mail, asking about the steps that needed to be
taken to ensure publication of the Take Notices. Mr. Desnoyers responded that Mr. Phalen
could either e-mail him the Take Notices or submit them through the Law Bulletin website.
¶ 39 Mr. Phalen then created a text file with over 300 Take Notices, including the Take Notice
for the Winchester property, printed them out, and showed them to Mr. Gray Jr., who reviewed
and approved of them.
¶ 40 On May 29, 2013, Mr. Phalen e-mailed the Take Notices to Mr. Desnoyers and asked if
anything else was needed for publication. Mr. Desnoyers did not respond that anything else
was needed.
¶ 41 On cross-examination, Mr. Phalen admitted that he never specifically asked Mr. Desnoyers
if he needed to review the published Take Notices for accuracy.
¶ 42 F. Ben Desnoyers
¶ 43 Mr. Desnoyers testified he worked for Law Bulletin from March 2000 to February 2014. In
2005, he became the manager of Law Bulletin’s Public Notice Network, an online portal
whereby law firms electronically submitted Take Notices for publication in the Chicago Daily
Law Bulletin.
¶ 44 Mr. Desnoyers supervised several employees who helped process the Take Notices. Mr.
Desnoyers explained that when Take Notices were e-mailed to them for publication, the
employees would copy and paste them into the “publishing system,” “assign the run dates,”
and “hit publish.”
¶ 45 Mr. Desnoyers was familiar with Wheeler because Law Bulletin had been publishing their
Take Notices for many years. Mr. Dufkis, an employee of Midwest, would e-mail Mr.
Desnoyers the Take Notices on behalf of Wheeler. After the Take Notices were copied and
pasted into the system, and then published, Mr. Desnoyers would hand deliver a copy of the
Chicago Daily Law Bulletin to the Midwest offices on the day of the first run so that they could
review the Take Notices on behalf of Wheeler. Mr. Desnoyers testified:
“Q. And who requested that that occur?
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A. Wheeler or Dave [Gray Jr.] or Frank [Dufkis]. Frank Dufkis requested that I
send it over so they could check it and verify. *** So he could look at his notices to
make sure that they were right.
***
Q. And then after that, could you describe what would typically occur, if anything,
between you and Mr. Dufkis?
A. He would go through the newspaper. And if he saw something that he didn’t
like, if it was spacing or if there were dates or changes, he would call or e-mail me to
make changes. And then we would republish them before the deadline.”
¶ 46 Mr. Desnoyers did not charge Wheeler for the republication costs. No other customers
requested that a copy of the Chicago Daily Law Bulletin be delivered to them after the first run
so that the Take Notices could be reviewed for errors.
¶ 47 On cross-examination, Mr. Desnoyers testified that when Mr. Gray Jr. sought help in
publishing the Take Notices after the resignation of Mr. Dufkis, he told Mr. Gray Jr. to send a
text file, deliver a check, and “to look over the paper [and] check it over and let me know if
there’s any errors.”
¶ 48 Mr. Desnoyers further testified that, after the Take Notices (including the Take Notice for
the Winchester property) were published on June 5, 2013, he walked over to the Midwest
office on that day and handed a copy of the Chicago Daily Law Bulletin to Mr. Gray Jr. and
specifically told him to review the Take Notices for accuracy.
¶ 49 Mr. Gray Jr. did not inform him of the incorrect hearing date in the published Take Notice
for the Winchester property until November 2013.
¶ 50 G. Myles Ahearn
¶ 51 Mr. Ahearn testified that he succeeded Mr. Desnoyers as manager of the Public Notice
Network in 2014. Mr. Ahearn made a “guess” that “some bad copying and pasting” resulted in
the wrong hearing date being published in the Take Notice for the Winchester property.
¶ 52 Despite the error, Wheeler continued to publish Take Notices in the Chicago Daily Law
Bulletin in 2014. On April 8, 2014, Mr. Ahearn e-mailed Mr. Gray Jr. and told him he would be
dropping off a copy of the Chicago Daily Law Bulletin so that Mr. Gray Jr., could review the
latest published Take Notices and “make any necessary corrections as soon as possible.” Mr.
Ahearn also stated that Law Bulletin was “instituting a new policy” regarding cutting and
pasting Take Notices and that he would be willing to stop by Mr. Gray Jr.’s office to explain
how to submit the notices. Mr. Gray Jr. e-mailed a response on April 8, stating:
“I will have another group to publish in a few months and we can meet for training
on the new system, which sounds like a great new procedure. For now I assume you
will do them as we have in the past and I, or my team, will proof read the actual paper
when it is ran.”
¶ 53 H. Jury Instructions
¶ 54 During the jury instruction conference, Law Bulletin requested a non-Illinois Pattern Jury
Instruction (non-IPI instruction) on course of dealing. Wheeler objected on the grounds that
Law Bulletin’s proposed instruction was an inaccurate reflection of the law. Wheeler offered
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its own proposed, non-IPI course of dealing instruction. The trial court gave Law Bulletin’s
instruction, which stated:
“A previous course of dealing may give meaning to or qualify an agreement. Where
the terms of a contract are doubtful or uncertain and the parties to it have, by their own
conduct, placed a construction upon it which is reasonable, such construction may be
considered by you.”
¶ 55 We will discuss Law Bulletin’s instruction, which was given to the jury, and Wheeler’s
proposed instruction, which was not given, in greater detail later in this opinion.
¶ 56 III. The Jury Verdict
¶ 57 The jury answered four questions posed in the verdict form. The first question asked: “Did
Wheeler prove there was an offer?” The jury answered, yes.
¶ 58 The second question asked: “Did Wheeler prove there was an acceptance?” The jury
answered, yes.
¶ 59 The third question asked: “Did Wheeler prove there was consideration?” The jury
answered, yes.
¶ 60 The fourth question asked: “Did Wheeler prove it performed its obligations under the
contract?” The jury answered, no.
¶ 61 The jury entered a verdict in favor of Law Bulletin and against Wheeler.
¶ 62 Wheeler appeals.
¶ 63 IV. Analysis
¶ 64 A. The Trial Court’s Denial of Wheeler’s Summary Judgment Motion
¶ 65 First, Wheeler contends that the trial court erred in denying its pretrial motion for partial
summary judgment on the issue of Law Bulletin’s liability. Summary judgment is appropriate
“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 5/2-1005(c) (West 2016).
¶ 66 Generally, when a case proceeds to trial after the denial of a summary judgment motion,
the order denying the motion for summary judgment merges with the judgment entered and is
not appealable. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 42.
The merger doctrine applies in these situations because “the subsequent verdict is necessarily
based on a more complete presentation of the evidence than was the motion for summary
judgment.” Davis v. International Harvester Co., 167 Ill. App. 3d 814, 819 (1988).
¶ 67 An exception exists where the issue raised in the summary judgment motion presents a
question of law and, thus, would not be decided by the jury. Young, 2015 IL App (1st) 131887,
¶ 42. In such a case, the denial of a summary judgment motion does not merge with the
judgment and may be addressed de novo on appeal. Id.¶ 68 Here, the trial court specifically found that the summary judgment motion raised genuine
issues of material fact, not questions of law, regarding Law Bulletin’s publication of the Take
Notice with the incorrect hearing date. Accordingly, it denied the motion, and the cause
proceeded to trial. The order denying the summary judgment motion, based on the presence of
genuine issues of material fact, merged with the judgment entered on the verdict and is not
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appealable. Id.¶ 69 B. The Trial Court’s Denial of Wheeler’s Directed Verdict Motion
¶ 70 Next, Wheeler contends that the trial court erred in denying its motion for a directed verdict
on its breach of contract claim. Verdicts should be directed only in those cases where all of the
evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the
movant that no contrary verdict based on that evidence could ever stand. The Private Bank v.
Silver Cross Hospital & Medical Centers, 2017 IL App (1st) 161863, ¶ 40. “A directed verdict
is improper where there is any evidence, together with reasonable inferences to be drawn
therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility
of the witnesses or the determination regarding conflicting evidence is decisive to the
outcome.” (Internal quotation marks omitted.) Id. ¶ 41. The trial court’s decision to deny a
motion for directed verdict is reviewed de novo. Young, 2015 IL App (1st) 131887, ¶ 44.
¶ 71 To recover for breach of contract, a plaintiff must plead and prove (1) the existence of a
valid and enforceable contract, (2) performance by the plaintiff, (3) breach of contract by the
defendant, and (4) resultant injury to the plaintiff. Burkhart v. Wolf Motors of Naperville, Inc.,
2016 IL App (2d) 151053, ¶ 14.
¶ 72 Wheeler argues on appeal that the e-mail exchanges in April and May 2013 between Mr.
Gray Jr. and Mr. Desnoyers, and between Mr. Phalen and Mr. Desnoyers, constituted a written
contract for Law Bulletin to publish the Take Notices provided to it by Midwest on behalf of
Wheeler. Wheeler contends that the trial evidence shows that Law Bulletin breached the
contract by publishing the Take Notice for the Winchester property with the wrong hearing
date. Therefore, Wheeler argues that the trial court erred by denying its motion for a directed
verdict on its breach of contract claim.
¶ 73 Law Bulletin counters that there was sufficient evidence showing that Wheeler did not
meet its contractual obligation under the 15-year course of dealing to review the published
Take Notice and report the incorrect hearing date so that Law Bulletin could publish a
corrected version within the notice-serving deadline. Thus, Law Bulletin argues, the trial court
did not err in denying Wheeler’s directed verdict motion.
¶ 74 In addressing the parties’ respective arguments, we note that Wheeler pleaded the
existence of an oral (not written) contract, or, in the alternative, an implied contract, as well as
a 15-year business relationship and course of dealing between Wheeler and Law Bulletin.
“The issues in any litigation are determined by the pleadings and an issue cannot be
sustained by evidence absent a corresponding pleading. [Citation.] It is a fundamental
rule, with no exceptions, that a party must recover, if at all, on and according to the case
he has made for himself by his pleadings. He cannot make one case by his averments,
and have judgment on another and different ground, even though the latter is
established by the proof. [Citation.] [A] party cannot plead one cause of action in its
complaint and receive judgment on the basis of a different cause of action.” (Internal
quotation marks omitted.) In re Estate of Bontkowski, 337 Ill. App. 3d 72, 77 (2003).
¶ 75 Having pleaded a cause of action for breach of an oral or implied contract between the
parties that was supplemented by a 15-year course of dealing, Wheeler cannot now argue on
appeal for recovery based on a different theory, i.e., for breach of an express written contract
that was not supplemented or qualified by a course of dealing. We proceed to address whether
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the trial court erred in failing to direct a verdict for Wheeler on its claim for breach of an oral or
implied contract that was supplemented by a prior 15-year course of dealing between the
parties.
¶ 76 1. Course of Dealing Defined
¶ 77 We begin our analysis by addressing the meaning of “course of dealing.” In other cases
addressing course of dealing, we have cited section 223 of the Restatement (Second) of
Contracts. See, e.g., Wald v. Chicago Shippers Ass’n, 175 Ill. App. 3d 607, 620 (1988). The
Restatement (Second) of Contracts states:
“(1) A course of dealing is a sequence of previous conduct between the parties to an
agreement which is fairly to be regarded as establishing a common basis of
understanding for interpreting their expressions and other conduct.
(2) Unless otherwise agreed, a course of dealing between the parties gives meaning
to or supplements or qualifies their agreement.” Restatement (Second) of Contracts
§ 223 (1981).
¶ 78 A prior course of dealing between the parties may be considered when determining the
terms of an oral contract. H&H Press, Inc. v. Axelrod, 265 Ill. App. 3d 670, 677 (1994).
“Further, where the terms of a contract are doubtful or uncertain and the parties to it have, by
their own conduct, placed a construction upon it which is reasonable, such construction will be
adopted by the courts.” Wald, 175 Ill. App. 3d at 620.
¶ 79 2. Course of Dealing Evidence
¶ 80 We consider the evidence at trial regarding the parties’ course of dealing.
¶ 81 Timothy Gray, Wheeler’s president, testified to the 15-year business relationship between
Wheeler and Law Bulletin, whereby Wheeler (through its intermediary, Midwest) published
between 1000 and 1600 Take Notices per year in the Chicago Daily Law Bulletin.
¶ 82 Mr. Desnoyers, the manager of Law Bulletin’s Public Notice Network, also testified to the
15-year business relationship whereby Wheeler published its Take Notices in the Chicago
Daily Law Bulletin. Until 2013, Frank Dufkis was the contact person at Midwest who e-mailed
Mr. Desnoyers the Take Notices on behalf of Wheeler. Employees at Law Bulletin would copy
and paste the Take Notices into the Law Bulletin software and publish them in the Chicago
Daily Law Bulletin.
¶ 83 Mr. Desnoyers testified that at Mr. Dufkis’s request, after the first publication of each batch
of Take Notices, he would hand deliver a copy of the Chicago Daily Law Bulletin to the
Midwest offices. Paralegals at Midwest, who were supervised by Mr. Dufkis, would review the
first publication of the Take Notices in accordance with the dictates of the Handbook and make
sure they were accurate. If any errors were discovered, Mr. Dufkis called or e-mailed Mr.
Desnoyers. Law Bulletin would then republish the Take Notices at no cost to Wheeler within
the notice-serving deadline. Several e-mails between Mr. Dufkis and Mr. Desnoyers from
2008 to 2011 were entered into evidence, corroborating the testimony of Mr. Desnoyers that
Mr. Dufkis e-mailed or called him about any errors in the Take Notices and that Law Bulletin
agreed to republish the corrected Take Notices at no cost to Wheeler.
¶ 84 Mr. Desnoyers followed this procedure with regard to the Take Notice for the Winchester
property, even after Mr. Dufkis had left Midwest’s employ and been replaced by Mr. Phalen.
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Specifically, after Law Bulletin published the batch of Take Notices for the 2010 tax sale
(which included the Take Notice for the Winchester property) on June 5, 2013, Mr. Desnoyers
walked a copy of the Chicago Daily Law Bulletin over to the Midwest office on that same day,
handed it to Mr. Gray Jr., and specifically told him to review the Take Notices for accuracy.
¶ 85 In an April 2014 e-mail to Mr. Ahearn (Mr. Desnoyer’s successor), Mr. Gray Jr.
acknowledged the longtime course of dealing with regard to Midwest/Wheeler’s review of the
published Take Notices, stating: “I, or my team, will proof read the actual paper when it is
ran.”
¶ 86 3. Whether a Course of Dealing Has Been Proved Here
¶ 87 Viewed in the light most favorable to Law Bulletin (The Private Bank, 2017 IL App (1st)
161863, ¶ 40), the testimony of Mr. Gray, Mr. Desnoyers, Mr. Dufkis, and Mr. Ahearn, as well
as the Handbook and the e-mail exchange between Mr. Ahearn and Mr. Gray Jr., shows a
15-year course of dealing that supplemented the contract and created additional contractual
obligations for each party. Id.; Carrico v. Delp, 141 Ill. App. 3d 684, 688 (1986) (discussing
how a previous course of dealing, as defined under section 223 of the Restatement (Second) of
Contracts, may give meaning to or qualify an agreement). Specifically, pursuant to the course
of dealing, Wheeler was contractually obligated to have Midwest check the first publication of
each batch of Take Notices that was dropped off to Mr. Gray Jr., and report any errors to Mr.
Desnoyers, who would republish the corrected Take Notices at no charge to Wheeler within
the notice-serving deadline. Wheeler failed to meet its contractual obligation in this case, as it
did not have Midwest review the June 5, 2013, Chicago Daily Law Bulletin, which contained
the first publication of the Take Notice for the Winchester property, and inform Law Bulletin
of the error in the hearing date. Wheeler’s failure to meet its own contractual obligation defeats
its claim for breach of contract against Law Bulletin. Burkhart, 2016 IL App (2d) 151053,
¶ 14.
¶ 88 Wheeler points to the testimony of Mr. Gray Jr., that the June 5 Chicago Daily Law
Bulletin was not dropped off at his office for review. However, the testimony of Mr. Gray Jr.
was contradicted by the testimony of Mr. Desnoyers. A directed verdict is improper where, as
here, the evidence demonstrates a substantial factual dispute or where the credibility of the
witnesses is decisive to the outcome. The Private Bank, 2017 IL App (1st) 161863, ¶ 41.
¶ 89 Wheeler also points to the testimony of Mr. Gray, Mr. Gray Jr., and Mr. Phalen that they
were unaware (after the departure of Mr. Dufkis in 2013) of the contractual obligation
established during the 15-year course of dealing whereby Wheeler would have Midwest
review the first publication of each batch of Take Notices for accuracy and inform Law
Bulletin of any errors. However, the testimony of Mr. Gray Jr., of his unawareness of the
obligation of checking the published Take Notices for accuracy was arguably belied by the
April 8, 2014, e-mail he sent to Mr. Ahearn, in which he stated, in response to Mr. Ahearn’s
e-mail regarding a new policy for cutting and pasting Take Notices, that “For now I assume
you will do them as we have in the past and I, or my team, will proof read the actual paper
when it is ran.”
¶ 90 Wheeler argues that Mr. Gray Jr.’s April 8, 2014, e-mail was merely responding to an
e-mail earlier that day from Mr. Ahearn that asked him to review the next Take Notices
published in the Chicago Daily Law Bulletin for errors and did not constitute an
acknowledgement of the course of dealing whereby Midwest/Wheeler had been reviewing the
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published Take Notices for errors for the past 15 years. We note, though, a different possible
construction of Mr. Gray Jr.’s e-mail, specifically, that his statement therein that he or his team
would proofread Take Notices “as we have in the past” referenced his knowledge of the
15-year course of dealing. We reiterate that, in reviewing the order denying Wheeler’s motion
for a directed verdict, the evidence is viewed in the light most favorable to the opponent, Law
Bulletin. Id. ¶ 40. As such, we construe Mr. Gray Jr.’s e-mail as referencing his knowledge of
the 15-year course of dealing, which required Midwest/Wheeler to review the Take Notice for
the Winchester property published in the June 5, 2013, Chicago Daily Law Bulletin, and
inform Law Bulletin of the error in the hearing date.
¶ 91 In conclusion, we find that the evidence, viewed in the light most favorable to Law
Bulletin, does not so overwhelmingly favor Wheeler that no contrary verdict could stand.
Therefore, we affirm the denial of Wheeler’s motion for a directed verdict.
¶ 92 C. The Jury Instruction Defining Course of Dealing
¶ 93 Next, Wheeler contends that the trial court erred in giving the jury a non-IPI instruction,
tendered by Law Bulletin, defining “course of dealing” and denying Wheeler’s proposed
instruction.
¶ 94 Generally, the trial court’s decision to grant or deny an instruction is reviewed for an abuse
of discretion, which considers whether, taken as a whole, the instructions fairly and correctly
stated the law and were sufficiently clear so as not to mislead. Eid v. Loyola University
Medical Center, 2017 IL App (1st) 143967, ¶ 56. However, when the question is whether the
applicable law was accurately conveyed, the issue is a question of law reviewed de novo. Id.¶ 95 Illinois Supreme Court Rule 239(a) (eff. Apr. 8, 2013) states:
“Whenever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction
applicable in a civil case, giving due consideration to the facts and the prevailing law,
and the court determines that the jury should be instructed on the subject, the IPI
instruction shall be used, unless the court determines that it does not accurately state the
law. *** Whenever IPI does not contain an instruction on a subject on which the court
determines that the jury should be instructed, the instruction given in that subject
should be simple, brief, impartial, and free from argument.”
¶ 96 The parties here point to no applicable IPI instruction defining “course of dealing.” The
non-IPI instruction given by the trial court stated:
“A previous course of dealing may give meaning to or qualify an agreement. Where
the terms of a contract are doubtful or uncertain and the parties to it have, by their own
conduct, placed a construction upon it which is reasonable, such construction may be
considered by you.”
¶ 97 The language in the non-IPI instruction, tendered by Law Bulletin and given to the jury,
was taken directly from our opinion in Wald, 175 Ill. App. 3d at 620, and was a simple, brief,
and accurate statement of Illinois law. Accordingly, the trial court did not err in giving the
instruction.
¶ 98 We also find that the trial court properly rejected Wheeler’s proposed non-IPI instruction,
which stated:
“A prior course of dealing may not be used to contradict or modify a contract’s express
or written terms. A prior course of dealing applies only when the parties’ conduct
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establishes a common basis of understanding of the agreement between them. A party’s
unilateral understanding or belief of the agreement does not establish course of dealing.
If the express or written terms of the contract and the offered course of dealing cannot
be reconciled, then the express or written terms will control. A course of dealing, if
applicable, may only be used to supplement or qualify existing terms.”
¶ 99 The trial court found that the portion of Wheeler’s proposed non-IPI instruction that stated
that a course of dealing cannot be used to contradict written contractual terms was inapplicable
because the contract at issue was not a written one. We find no error.
¶ 100 Wheeler argues, though, that the rest of its proposed non-IPI instruction should have been
given, as it accurately stated that a course of dealing applies only where there is a common
basis of understanding for interpreting the contract.
¶ 101 Wheeler’s argument is that the non-IPI instruction given by the trial court misled the jury
into thinking that Law Bulletin’s unilateral understanding of the agreement was sufficient to
establish a course of dealing imposing a requirement on Midwest/Wheeler to review all
published Take Notices for errors, even where Midwest/Wheeler did not have that same
understanding. We disagree.
¶ 102 Wheeler’s argument would have merit if the instruction given by the trial court had stated
that one party’s unilateral understanding of the agreement was sufficient to establish a course
of dealing. However, the instruction given by the trial court was stated in the plural, not the
singular, as it informed the jury that a previous course of dealing is shown by the reasonable
construction placed on the contract by the “parties” and by “their” conduct. By expressly
stating that the prior course of dealing consists of the reasonable construction placed on the
contract by the parties (plural), the court indicated to the jury that the course of dealing does
not represent one party’s unilateral understanding of the agreement, but rather is indicative of a
common understanding of both Wheeler/Midwest and Law Bulletin. We find that the trial
court committed no error in the giving of the jury instruction that, as discussed, accurately
tracked the language in Wald.
¶ 103 D. The Admission of Course of Dealing Evidence
¶ 104 Next, Wheeler argues that the trial court erred by admitting the course of dealing evidence
as it was irrelevant, prejudicial, and likely to mislead the jury. The admission of evidence is a
matter within the discretion of the trial court, and evidentiary rulings will not be reversed
absent an abuse of discretion. Israel v. National Canada Corp., 276 Ill. App. 3d 454, 463
(1995).
¶ 105 “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011).
¶ 106 The course of dealing evidence was relevant to Law Bulletin’s defense that the contract
should not be considered in the abstract, but instead must be considered in the context of the
parties’ 15-year business relationship, whereby the first publication of the Take Notices was
provided to Midwest to review on behalf of Wheeler, and Midwest/Wheeler was required to
notify Law Bulletin of any errors so that they could be corrected within the notice-serving
deadline. Law Bulletin contended that Wheeler failed to abide by the terms of the contract, as
qualified by the course of dealing, when it failed to have Midwest review the published Take
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Notice for the Winchester property and did not notify Law Bulletin of the incorrect hearing
date in time for it to republish a corrected version.
¶ 107 As the course of dealing evidence was relevant to Law Bulletin’s defense, the trial court
did not abuse its discretion by admitting it at trial.
¶ 108 Wheeler next argues that Law Bulletin’s course of dealing defense serves to exculpate it
from any liability for publishing an inaccurate Take Notice, in effect creating an implied
exculpatory clause. An exculpatory clause is a “contractual provision relieving a party from
any liability resulting from a negligent or wrongful act.” Black’s Law Dictionary (7th ed.
1999). Wheeler cites case law, holding that an exculpatory clause must be clear and explicit
(see Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585 (1990)), and it
extrapolates that an exculpatory clause must be put in writing and cannot arise only from
course of dealing. Therefore, Wheeler contends that the trial court should not have admitted
the course of dealing evidence.
¶ 109 Wheeler’s argument is unavailing, as the parties’ course of dealing did not create an
implied exculpatory clause, relieving Law Bulletin from any liability for its negligence.
Rather, the parties’ course of dealing created mutual obligations on the parties, whereby
Wheeler was obligated to have Midwest review the first publication of the Take Notices and to
notify Law Bulletin of any errors; in turn, Law Bulletin was to republish the corrected Take
Notices at no charge to Wheeler within the notice-serving deadline. The jury ruled in favor of
Law Bulletin on Wheeler’s breach of contract claim, not because there was an implied
exculpatory clause relieving Law Bulletin of any and all liability for publishing inaccurate
Take Notices, but because Wheeler failed to perform its obligation to have Midwest review the
first publication of the Take Notice for the Winchester property and inform Law Bulletin of the
incorrect hearing date.
¶ 110 E. The Trial Court’s Denial of Wheeler’s Motions In Limine
¶ 111 Wheeler next argues that the trial court erred by denying various in limine motions. The
trial court’s ruling on a motion in limine, addressing the admission of evidence, will not be
disturbed on review absent an abuse of discretion. In re Estate of Andre T., 2018 IL App (1st)
172613, ¶ 34.
¶ 112 First, Wheeler argues that the trial court erred by denying its in limine motion to bar
admission of the course of dealing evidence. Wheeler is essentially rearguing that the course of
dealing evidence was not relevant. For all the reasons discussed earlier in this opinion, we find
that the trial court committed no abuse of discretion in denying the in limine motion and
admitting the course of dealing evidence.
¶ 113 Next, Wheeler argues that the trial court erred by denying its in limine motion to bar
admission of the Handbook. We disagree. The Handbook was promulgated by Mr. Gray Sr. in
2002, and it memorialized the parties’ course of dealing whereby Midwest assumed the
obligation, on behalf of Wheeler, to review the first publication of the Take Notices for
accuracy and inform Law Bulletin of any errors. Thus, the Handbook was relevant and
admissible to support Law Bulletin’s course of dealing defense.
¶ 114 Next, Wheeler argues that the trial court erred by denying its in limine motion to bar
evidence of the disclaimer in the Chicago Daily Law Bulletin’s masthead, which states that
“Publisher is not responsible for errors in advertisements after first publication if not advised
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by the advertiser.” Wheeler contends that “Law Bulletin promised to publish the content it
received from Wheeler accurately, without altering it. Because the masthead disclaimer
purports to exculpate Law Bulletin from liability for altering the Wheeler Take Notice and
publishing the defective content, it is unenforceable as a matter of law.” In support, Wheeler
cites Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 213 Ill. 2d 58, 65 (2004), which
held that a party cannot contract to act in a certain manner and then exculpate itself from
liability for breach of that very promise because otherwise the party’s contractual duties would
be illusory.
¶ 115 Wheeler’s claim of error is without merit. The masthead disclaimer was consistent with the
parties’ contract (supplemented by the 15-year course of dealing) and did not render Law
Bulletin’s contractual duties illusory; Law Bulletin remained obligated under the contract to
publish the Take Notices and to republish them when notified of any errors. Accordingly, we
find no abuse of discretion in the admission of the masthead disclaimer.
¶ 116 Next, Wheeler argues that the trial court erred by admitting evidence that it was not
damaged by Law Bulletin’s alleged contractual error because there was failure of service in the
underlying tax deed proceeding that would have prevented Wheeler from obtaining a deed to
the Winchester property even if Law Bulletin had accurately published the Take Notice.
¶ 117 Wheeler contends that such evidence was “irrelevant, collateral, and created a
trial-within-a-trial.” Error, if any, was harmless where the jury’s verdict was not premised on
the absence of damages due to the failure of service in the underlying tax proceeding; rather, in
its answers to the questions posed in the verdict form, the jury made clear that it was finding in
favor of Law Bulletin, based on Wheeler’s failure to perform its obligation under the contract,
as supplemented by the 15-year course of dealing, to have Midwest review the published Take
Notice for the Winchester property and then timely notify Law Bulletin of the error in the
hearing date.
¶ 118 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 119 Affirmed.
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