Liceaga v. Baez , 430 Ill. Dec. 594 ( 2019 )

2019 IL App (1st) 181170No. 1-18-1170
Opinion filed March 29, 2019
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
EDWARD MICHAEL LICEAGA, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
)
v. )
)
ISABEL BAEZ, ) No. 2017 CH 2383
)
Defendant-Appellee. ) The Honorable
) Neil H. Cohen,
) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Reyes and Burke concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Edward Michael Liceaga appeals the trial court's grant of
defendant Isabel Baez's motion to dismiss and the subsequent denial of his
motion to reconsider. For the following reasons, we affirm.
No. 1-18-1170
¶2 BACKGROUND
¶3 On February 16, 2017, plaintiff filed a verified one-count complaint for
replevin alleging that he was the rightful owner of, and entitled to the
possession of, a diamond engagement ring. He alleged that he gave the ring to
defendant on October 15, 2015, in contemplation of their marriage, and that she
had "unlawfully retained it" since December 23, 2016.
¶4 Attached to the complaint was a form entitled "Insurance Replacement
Appraisal," from a jeweler who estimated the ring's value to be $100,000,
described the ring and included a photo. 1
¶5 In his brief to this court, plaintiff acknowledges that he was the one who
broke off the parties' engagement and that, after defendant refused to return the
ring, he filed this replevin action.
¶6 Since one of the issues in the appeal before us is whether plaintiff raised
new arguments for the first time on a motion to reconsider, we describe in some
detail the parties' extensive motion practice in the court below.
¶7 On May 1, 2017, defendant moved to dismiss the action pursuant to
section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2016).
The motion alleged that plaintiff and defendant became engaged on October 15,
1
The form was signed, but it was not submitted under penalty of perjury and
was not an affidavit.
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2015, and plaintiff broke off the engagement in December 2016. The motion
argued that an engagement ring is a gift in contemplation of marriage, that it is
a gift conditional on the subsequent marriage and that, under well-established
Illinois precedent, the party who fails to perform the condition has no right to
the property. The motion argued that defendant intended to marry plaintiff, that
plaintiff failed to perform and that defendant, thus, has a superior interest in the
ring.
¶8 In his response to the motion, plaintiff acknowledged that he presented
the engagement ring to defendant in contemplation of a marriage that did not
occur. Plaintiff's response claimed that, after an argument, defendant moved
out of their Chicago apartment and she asked plaintiff to pay her moving
expenses from Chicago to San Diego. Plaintiff claims that he agreed to pay the
moving expenses in exchange for the ring. However, defendant did not return
the ring and moved to San Diego. Plaintiff made no claims that he paid the
moving expenses.
¶9 In her reply, defendant observed that plaintiff did not plead that she, "at
any time[,] breached her promise of marriage" or "defaulted on her promise or
commitment."
¶ 10 On September 5, 2017, the trial court issued a two-page memorandum
order addressing the arguments that both parties raised in their briefs. The trial
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court observed that plaintiff filed a one-count replevin action and that replevin
is a statutory cause of action. Section 19-104 of the Code of Civil Procedure
provides in relevant part that "[a]n action of replevin shall be commenced by
the filing of a verified complaint which describes the property to be replevied
and states that the plaintiff in such action is the owner of the property so
described, or that he or she is then lawfully entitled to the possession thereof,
and that the property is wrongfully detained by the defendant." 735 ILCS 5/19-
104 (West 2016).
¶ 11 Based on the case of Carroll v. Curry, 392 Ill. App. 3d 511, 514 (2009),
which both parties cited, the trial court found:
"Defendant contends that the Complaint does not allege facts showing
Plaintiff's right to return of the engagement ring. An engagement ring is
a gift in contemplation of a marriage. Carroll, 392 Ill. App. 3d at 514.
'Gifts given in contemplation of marriage are deemed conditional on the
subsequent marriage of the parties, and the "party who fails to perform on
the condition of the gift has no right to property acquired under such
pretenses." ' " Id. [(quoting Harris v. Davis, 139 Ill. App. 3d 1046, 1048
(1986)).]
The Complaint alleges the conclusion that Defendant wrongfully
retained the engagement ring but, despite Plaintiff's claims to the
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contrary, does not actually allege that the marriage did not take place or
that it was Defendant who ended the engagement."
The trial court granted defendant's motion to dismiss but without prejudice, and
granted plaintiff leave to amend his complaint.
¶ 12 Plaintiff then filed an amended verified one-count complaint for replevin,
which alleged that he purchased the ring "for the sole purpose of encouraging
[defendant] to marry him," that he "ended the engagement due to irreconcilable
differences," that the marriage did not take place, that he asked for the ring
before filing suit, and that defendant had not returned the ring. Plaintiff argued
that the question is "whether or not the marriage occurred, not why it did not
occur or because of whom." (Emphases in original.). In support of this
propositions, plaintiff relied exclusively on Carroll v. Curry, 392 Ill. App. 3d
511, 514 (2009).2
¶ 13 On October 19, 2017, defendant once again moved to dismiss plaintiff's
complaint but this time she moved pursuant to section 2-619(c), rather than 2-
615, of the Code of Civil Procedure. 735 ILCS 5/2-619(c) (West 2016). In
some ways similar to a summary judgment motion, a section 2-619(c) motion
provides a court the means to dispose of issues of law or easily proved issues of
2
While providing solely cites to Carroll, plaintiff noted in parentheticals
that Carroll also cited Harris v. Davis, 139 Ill. App. 3d 1046, 1048 (1986), and
National Bond & Investment Co. v. Zakos, 230 Ill. App. 608 (1923).
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No. 1-18-1170
fact at the outset of a case. See Lipscomb v. Sisters of Francis Health Services,
Inc., 343 Ill. App. 3d 1036, 1040 (2003). Defendant argued that no genuine
issue of material fact existed, since plaintiff admitted in his verified complaint
that he ended the engagement and that he was the one "who failed to perform
on the condition of the gift."
¶ 14 In a verified response, plaintiff admitted that he ended the engagement
but argued that this was irrelevant to the underlying matter. Plaintiff argued
that Carroll was "the semin[al] and relevant case for the instant matter," and
criticized defendant for citing a case that was "subsequently negatively
discussed by Carroll." Plaintiff claimed that, under Carroll, "fault is no longer
an inquiry" in which courts engage.
¶ 15 On January 12, 2018, at the same time that plaintiff filed his response to
defendant's motion to dismiss, he also filed his own motion for summary
judgment which was based on the same grounds as his complaint and his
response to the motion to dismiss. 3 In her reply, defendant reiterated the same
grounds that she had set forth in her motion to dismiss.
¶ 16 On February 14, 2018, the trial court issued a two-page written order that
found in relevant part:
3
Included with his motion for summary judgment was an affidavit which
averred the additional fact that, "despite the ended engagement, [defendant] has
continued to pursue a relationship with [plaintiff] and we have continued to see
each other since the technical end of our engagement."
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No. 1-18-1170
"In a replevin action involving an engagement ring, the correct inquiry
in deciding which party is entitled to possession of the ring is which
party's act conclusively ended the engagement. Carroll, 392 Ill. App. 3d
at 518-19. A court does not consider why an engagement ended, i.e. the
underlying fault for the relationship's breakdown, but only which party
performed the act actually ending the engagement. Carroll, 392 Ill. App.
3d at 519-20.
Plaintiff unequivocally alleges in his verified Amended Complaint
that it was his act that ended the engagement with Defendant (Am.
Compl. ¶ 9). Therefore, Plaintiff has no legal right to possession of the
engagement ring under Illinois law and cannot maintain an action for
replevin."
The trial court then granted defendant's motion to dismiss with prejudice.
¶ 17 On March 12, 2018, plaintiff retained new counsel, who is the same
counsel on this appeal, and he moved to reconsider in the trial court. Previously
both parties had agreed that Carroll was the controlling law and argued solely
over its meaning; and plaintiff, again in this motion, argued that Carroll was in
his favor. However, for the first time, on this motion to reconsider, plaintiff
argued that, if the court did not find for him under Carroll, then it should
abandon Carroll, citing "new" Illinois legislation enacted in 2016 and decisions
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No. 1-18-1170
from other states between 1987 and 2007. Plaintiff also made new policy
arguments for the first time.
¶ 18 On March 19, 2018, the trial court entered an order directing, among
other things, that:
"4. Counsel for Defendant shall tender, within 14 days, any and all
documents in their client's possession relating to the sale of the
engagement ring, including those evincing when the ring was sold, the
sale price, the date of sale, and the location of the sale proceeds.
5. Defendant shall on or before April 16, 2018, deposit the full
amount of the sale proceeds with the Clerk of the Circuit Court or in her
counsel's client trust account where said funds shall remain pending
further order of Court."
¶ 19 On April 16, 2018, defendant brought an emergency motion to vacate the
trial court's March 19, 2018, order because the ring was sold in January 2017,
for $36,000, and plaintiff had used the proceeds for her "expenses." The ring
was sold after plaintiff broke off the engagement in December 2016, but before
February 16, 2017, when he filed this action. On April 17, 2018, the trial court
granted defendant's emergency motion and vacated its March 19, 2018, order.
¶ 20 On April 23, 2018, defendant responded to plaintiff's motion to
reconsider, observing that plaintiff was raising new arguments for the first time.
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No. 1-18-1170
Defendant observed that the purpose of a motion to reconsider was to apprise
the court of newly discovered evidence or changes in the law, and not to raise
new legal theories.
¶ 21 At the hearing on the motion to reconsider, plaintiff argued that one
could not reconcile Carroll with the repeal in 2016 of statutes permitting suits
for a breach of a promise to marry and alienation of affection (the "heart-balm"
statutes), and that Carroll should not be allowed to stand. Rejecting this
argument, the trial court observed that the purpose of a motion to reconsider
was to bring to the court's attention newly discovered evidence or changes in
the law. However, the court found that plaintiff "offers no newly discovered
evidence or changes in the law since the rendering of this Court's decision" two
months earlier. The changes argued by plaintiff happened years earlier. The trial
court found, first, that plaintiff's argument was "a new argument that cannot be
raised on a motion to reconsider" and that, second, even if it could be raised, it
had "no merit" because, while the Illinois legislature passed an act repealing
alienation of affection and breach of promise to marry, this act said nothing
about replevin actions.4 Lastly, plaintiff argued that the trial court's decision
4
Illinois had previously permitted suits for the actual damages sustained as
the result of a broken engagement (740 ILCS 15/2 (West 2012)), or due to
"alienation of affection" (740 ILCS 5/2 (West 2012)). However, as of January 1,
2016, the Illinois legislature eliminated causes of action for a breach of a promise
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No. 1-18-1170
created bad policy, but the trial court found that it was not creating policy but
rather following well-established Illinois case law.
¶ 22 On June 4, 2018, "[f]or the reasons stated on the record," the trial court
issued an order denying plaintiff's motion to reconsider, and plaintiff filed a
notice of appeal on the same day which stated that he was appealing "(1) the
order dated February 14, 2018[,] dismissing this matter with prejudice," and
"(2) the order dated June 4, 2018[,] denying Plaintiff/Appellant's Motion to
Reconsider."
¶ 23 ANALYSIS
¶ 24 On this appeal, plaintiff raises exclusively the argument that he raised for
the first time in a motion for reconsideration, namely, that this court should
decline to follow Carroll. See Carroll, 392 Ill. App. 3d at 514 (the party who
fails to perform the condition of the gift has no right to it); Harris v. Davis, 139
Ill. App. 3d 1046, 1048 (1986) (the party who broke the engagement had no
right to the ring). For the following reasons, we cannot find that the trial court
abused its discretion in denying his motion for reconsideration and affirm.
¶ 25 The purpose of a motion to reconsider is to bring to a court's attention:
(1) newly discovered evidence; (2) changes in the law; or (3) errors in the
to marry (740 ILCS 15/10.1 (West 2016)) and for alienation of affection (740
ILCS 5/7.1 (West 2016)).
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court's previous application of existing law. River Plaza Homeowner's Ass'n v.
Healey, 389 Ill. App. 3d 268, 280 (2009); North River Insurance Co. v. Grinnell
Mutual Reinsurance Co., 369 Ill. App. 3d 563, 572 (2006); Chelkova v.
Southland Corp., 331 Ill. App. 3d 716, 729 (2002). A reconsideration motion is
not the place to raise a new legal theory or factual argument. River Plaza, 389
Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572. Trial courts should not
allow litigants to stand mute, lose a motion and then frantically gather new
material to show that the court erred in its ruling. River Plaza, 389 Ill. App. 3d
at 280; North River, 369 Ill. App. 3d at 572; Landeros v. Equity Property &
Devlopment, 321 Ill. App. 3d 57, 65 (2001). As a result, legal theories and
factual arguments not previously made are subject to waiver. River Plaza, 389
Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572-73.
¶ 26 Our standard of review varies with the purpose of the reconsideration
motion. "Where the motion was based only on the trial court's application or
misapplication of existing law, we review de novo the trial court's decision to
grant or deny the motion. [Citation.] But where the motion was based on new
matters, such as additional facts or new arguments or legal theories not
presented during the course of the proceedings leading to the order being
challenged, the abuse-of-discretion standard applies." Spencer v. Wayne, 2017
IL App (2d) 160801, ¶ 25; In re Estate of Agin, 2016 IL App (1st) 152362, ¶ 18;
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No. 1-18-1170
River Village I, LLC v. Central Insurance Cos., 396 Ill. App. 3d 480, 492
(2009). In the case at bar, it is only the new argument that plaintiff argues on
appeal; thus, the abuse-of-discretion standard applies.
¶ 27 An abuse of discretion occurs only when the trial court's ruling is
arbitrary, fanciful, unreasonable or where no reasonable person would take the
view adopted by the trial court. Thomas v. Weatherguard Construction Co.,
2018 IL App (1st) 171238, ¶ 53; In re Marriage of Heroy, 2017 IL 120205, ¶
24. " '[A] trial court is well within its discretion to deny such a motion [to
reconsider] and ignore its contents when it contains material that was available
prior to the hearing at issue but never presented.' " Agin, 2016 IL App (1st)
152362, ¶ 18 (quoting River Village, 396 Ill. App. 3d at 492-93).
¶ 28 Parties cannot spend months litigating on one and only one ground in the
trial court and then appeal to a reviewing court on a completely different
ground. The trial court proceeding is not a practice round. In the court below,
the parties were in complete agreement that Carroll was the controlling law and
argued only its application to the facts of this case. Then, for the first time, on a
motion to reconsider, plaintiff argued that the findings in Carroll should be
abandoned. A motion to reconsider is not the place for the inclusion of new
arguments that could have been raised earlier. Actions like that simply waste
everyone's time and money, as they did in this case, for over a year. In his reply
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No. 1-18-1170
brief, both in this court and in the court below, plaintiff argues that the
argument was really the same, even though he argued on the basis of
completely different statutes that he had not cited before and completely
different case law that he had not cited before, including a new list of out-of-
state cases on the issue. If ever there was a case that cried out for enforcement
of the judicial policy reasons behind a motion to reconsider, this is it.
¶ 29 As a result, we cannot find that the trial court abused its discretion in
denying plaintiff's motion to reconsider. Since plaintiff does not argue on
appeal that the trial court misapplied Carroll and argues only that Carroll
should be abandoned, and since that argument was not made before the trial
court's initial order, that argument is waived and we cannot find that the trial
court erred in issuing the initial order. Village of Arlington Heights v. Anderson,
2011 IL App (1st) 110746, ¶ 15 ("[t]heories not raised" are waived on review).
¶ 30 Even if we were to consider the issue raised by plaintiff, the facts5
indicate that this is not the case where we should abandon Carroll and create
5
By moving for summary judgment, plaintiff conceded that there was no
genuine issue of material fact preventing disposition of the case. Likewise,
plaintiff's motion for dismissal under section 2-619(c) conceded that the case could
be resolved on the documents in the record. Thus, both parties conceded that the
relevant facts were established and not in dispute—and those facts are rather
simple. 735 ILCS 5/2-619(c), 5/2-1005(c) (West 2016). Ruby v. Ruby, 2012 IL
App (1st) 103210, ¶ 13 (where both parties move for summary judgment, "they
concede there are no genuine issues of material fact"); Bank of America, N.A. v.
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No. 1-18-1170
new law. In the case at bar, plaintiff broke off their engagement and defendant
moved to California from the apartment that they shared in Chicago By his
own admission, plaintiff proposed to exchange moving expenses for the ring.
Instead, defendant kept the ring, moved, and sold it herself. A month after it
was sold, plaintiff sued in replevin for the return of the ring. Huber Pontiac,
Inc. v. Wells, 59 Ill. App. 3d 14, 19 (1978) (where it is undisputed that
defendant sold the item and no longer had possession, "replevin, a possessory
action, could not lie against him"); International Harvester Credit Corp. v.
Helland, 130 Ill. App. 3d 836, 838 (1985) (plaintiff has the burden in a replevin
action to prove he is entitled to possess the property and that defendant is
wrongfully detaining it). See also Carroll, 392 Ill. App. 3d at 514 ("[t]he
primary purpose of the replevin statute" is to "place the successful party in
possession of the property"); Carroll, 392 Ill. App. 3d at 515 (replevin action
was proper, since the defendant had "made no affirmative allegations that
someone else possessed the ring at the commencement of the instant action").
Thus, the findings in Carroll and other Illinois precedent do not indicate that
the trial court erred.
¶ 31 By eliminating the heart-balm statutes, the Illinois legislature chose to
leave parties after a nonmarital break-up in the position that they decided to
Carpenter, 401 Ill. App. 3d 788, 795 (2010) ("they concede the absence of a
genuine issue of material fact").
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No. 1-18-1170
place themselves, in light of the risks that they chose to take under well-
established precedent.6 If anything, the legislature's action in eliminating the
heart-balm statutes in 2016 argues against plaintiff's use of replevin in this case,
not for it.
¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, we affirm the trial court's order dismissing the
action.
¶ 34 Affirmed.
6
The legislature stated that the purpose of the repeal was to further "the
amicable settlement of domestic relations disputes." Public Act 99-90, Section 1-1,
Findings.
15