Budget Rent-A-Car System, Inc. v. Cleveland ( 2020 )

Rule 23 order filed 2020 IL App (5th) 170458December 2, 2020.
Motion to publish granted NO. 5-17-0458
December 18, 2020.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
BUDGET RENT-A-CAR SYSTEM, INC., ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 15-AR-634
)
SHANIKA CLEVELAND, ) Honorable
) Thomas B. Cannady,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court, with opinion.
Justice Moore concurred in the judgment and opinion.
Justice Cates specially concurred, with opinion.
OPINION
¶1 Plaintiff, Budget Rent-A-Car System, Inc. of St. Louis, Missouri (Budget), filed a breach
of contract action against defendant, Shanika Cleveland, seeking to recover damages from a car
accident involving a rental car it had leased to Cleveland. Following a jury trial in St. Clair
County, a judgment was entered in favor of Budget. On appeal, Cleveland argues that the circuit
court erred in denying her posttrial motion for judgment notwithstanding the verdict (JNOV).
Alternatively, Cleveland requests a new trial to submit her affirmative defense that Budget paid
as a volunteer, because, according to Cleveland, Budget was not legally obligated to pay the
claimed damages. For the following reasons, we reverse the judgment and remand for a new trial
consistent with this opinion.
1
¶2 I. Background
¶3 On May 16, 2010, Cleveland rented a vehicle from Budget and signed a one-page “Rental
Document Jacket” that incorporated the rental agreement. The rental agreement contained all
rental terms and conditions, as well as the following notice: “NO ADDITIONAL DRIVERS
ARE AUTHORIZED OR PERMITTED WITHOUT BUDGET’S PRIOR WRITTEN
APPROVAL ***.” As such, Cleveland was the only authorized driver of the rental car per the
rental agreement. On May 22, 2010, Sammy Morning, Cleveland’s boyfriend, was driving the
rental car in East St. Louis, Illinois, without a valid driver’s license, when he was involved in a
car accident that allegedly caused damage to two other automobiles and injured four occupants.
¶4 The rental agreement also defined prohibited uses of the vehicle and contained an
indemnity clause. The relevant sections at issue are paragraphs 14, 15, and 18. With regard to the
prohibited uses of the rental car, paragraph 14 provided the following:
“14. Prohibited Use of the Car: Certain uses of the car and other things you or a
driver may do, or fail to do, will violate this agreement ***. A VIOLATION OF THIS
PARAGRAPH, WHICH INCLUDES USE OF THE CAR BY AN UNAUTHORIZED
DRIVER, WILL AUTOMATICALLY TERMINATE YOUR RENTAL, VOID ALL
LIABILITY PROTECTION AND ANY OPTIONAL SERVICES THAT YOU HAVE
ACCEPTED, INCLUDING SUPPLEMENTAL LIABILITY INSURANCE,
PERSONAL ACCIDENT & EFFECTS INSURANCE, EMERGENCY SICKNESS
PROTECTION AND LOSS DAMAGE WAIVER. IT ALSO MAKES YOU LIABLE
TO US FOR ALL THE PENALTIES, FINES, FORFEITURES, LIENS AND
RECOVERY AND STORAGE COSTS, INCLUDING ALL RELATED LEGAL
EXPENSES, FEES AND COSTS.
It is a violation of this paragraph if:
A. You *** permit the car to be used: 1) by anyone other than an authorized driver,
as defined in paragraph 15 below *** or
B. You or an additional driver, authorized or not: 1) fail to properly report any
damage in or loss of the car when it occurs or when you learn of it and provide us
with a written accident/incident report or fail to cooperate fully with our
investigation ***. *** 3) leave the car and fail to remove the keys or close and
2
lock all doors, close all windows and the truck and the car is stolen or
vandalized.”
Next, paragraph 15 provided the following:
“15. Who May Drive the Car: Except where otherwise specifically authorized
by applicable law, only you, your spouse, or domestic partner *** may drive the car, but
only with your permission. The other driver must be at least 25 years old and must be a
capable and validly licensed driver ***.”
Lastly, paragraph 18 provided the following indemnification clause:
“18. Indemnification and Waiver: You agree to indemnify us, our parent and
affiliated companies, for and hold us harmless from any loss, liability and expense that
we incur arising out of the use of the car, including reasonable attorney’s fees: *** (b)
which results from any unauthorized use or prohibited operation of the car.”
¶5 On July 10, 2015, Budget filed a verified complaint against Cleveland, suing as the
owner of the rental car, not the insurer. Budget alleged that Cleveland had breached the rental
agreement by engaging in “unauthorized and/or prohibited use of the rented vehicle, namely
negligence, gross negligence” and for allowing an “unauthorized person, Sammy Morning, to
operate the vehicle owned by Budget and rented by Cleveland.” In addition, Budget asserted
that, as a result of the accident, it had reimbursed the third parties for damages suffered to their
persons and vehicles in the amount of $36,462.48. Budget claimed that it was entitled, pursuant
to the “Indemnification and Waiver” provision, to be reimbursed for the payments it made to the
third parties.
¶6 On August 6, 2015, Cleveland filed a motion to dismiss, pursuant to section 2-606 of the
Code of Civil Procedure (735 ILCS 5/2-606 (West 2014)), claiming that the rental agreement
had not been attached to Budget’s complaint. Shortly thereafter, on August 21, 2015, after
Cleveland received a copy of the complete contract from Budget’s attorney, Cleveland withdrew
her motion to dismiss. That same day, Cleveland filed a verified answer to Budget’s complaint,
attaching the “Rental Document Jacket” that had been referenced in Budget’s complaint and a
3
complete copy of the “Rental Terms and Conditions.” 1 Cleveland asserted an affirmative
defense, denying liability for any damages as a result of the accident, because Morning had taken
the rental car without her permission. As such, Cleveland argued she was not liable to Budget
under the indemnity clause.
¶7 The case was set for mandatory arbitration on January 13, 2016. Pursuant to Illinois
Supreme Court Rule 90(c) (eff. July 1, 2008), Budget disclosed the Agreement, the police report
prepared on May 22, 2010, and Budget’s incident report, also prepared on May 22, 2010, by
Cleveland. Additionally, Budget disclosed an affidavit from Scott Seemann, an investigator who
had been hired by Budget to look into the cause of the collision and to assist in resolving claims
by those who claimed property loss or personal injuries, “establishing damages of $36,462.48,”
and a statement from Rosie Marshall. The arbitration proceeding did not result in a resolution of
the dispute, and the case was set for trial.
¶8 Several motions were filed in anticipation of trial. Cleveland filed a “Trial
Memorandum” that included her affirmative defense, and raised, for the first time, the defense
that “Budget was not obligated to pay other drivers and passengers and therefore paid as a
volunteer.” Cleveland’s attorney also submitted a proposed jury instruction based upon “I.P.I.
700.09V, 700.07V, 700.3V, 700.16V, 700.12VC and 700.18V (Modified).” This burden of proof
instruction included Cleveland’s affirmative defenses and provided as follows:
“If you find that each of the above elements has been proved, then you must consider:
Shanika Cleveland’s claim of an affirmative defense.
Shanika Cleveland claims and has the burden of proving the following affirmative
defense:
1
The term “Agreement,” as used hereafter, refers to both the “Rental Document Jacket” and the
“Rental Terms and Conditions.”
4
That Budget Rent-A-Car System, Inc. paid the other drivers and passengers in the
automobile accident as a volunteer, when it was not obligated to pay.
Budget Rent-A-Car System, Inc. denies Shanika Cleveland’s affirmative defense.”
Therefore, when Cleveland’s attorney submitted her Trial Memorandum on December 8, 2016,
the affirmative defense alleged that Budget had not been obligated to pay for the losses suffered
by the third parties as a result of Morning’s use of the rental vehicle. Simply put, Cleveland
alleged that Budget voluntarily paid the damages claimed by the third parties without any legal
obligation to do so.
¶9 On May 2, 2017, the circuit court ordered the parties to submit a stipulation regarding
evidence that the parties agreed would be introduced at trial. Following the rescheduling of the
final pretrial hearing, originally set for June 29, 2017, Budget’s attorney filed stipulations,
although the record does not contain a proof of service indicating whether Cleveland received the
proposed stipulations prior to that date. Specifically, Budget stipulated that Cleveland had rented
a vehicle from Budget and, per Seemann’s affidavit, Cleveland, the only person authorized to
operate the rental car, had failed to report the rental car stolen and refused to provide any
information following the accident. Also, the stipulation indicated that the accident on May 22,
2010, occurred while the rental car was being driven by Morning, an unauthorized driver. As a
result of the accident, Budget made payments, totaling $36,462.48, for property damages and
personal injuries. 2 Attached to Budget’s stipulations were two exhibits—Exhibit A, a copy of the
Agreement, and Exhibit B, the affidavit of Seemann.
2
The record does not contain a report of proceedings or a bystander’s report for the June 29,
2017, proceedings. The report of proceedings for the July 10, 2017, trial does reference that the court file-
marked the stipulations and assumed that both parties had agreed to them. As discussed, hereafter,
counsel for Cleveland was not present at the June 29, 2017, hearing due to scheduling issues, and did not
agree to the stipulations tendered by Budget.
5
¶ 10 On July 10, 2017, prior to jury selection, the circuit court entertained several pretrial
matters. The circuit court first addressed Budget’s stipulations, file-marked June 29, 2017.
Cleveland’s attorney indicated to the court that he had not agreed to the stipulations filed by
Budget’s attorney. Although he had no objection to the admissibility of Exhibit A, Cleveland’s
attorney objected to Exhibit B. Budget’s attorney agreed that Budget could read Seemann’s
affidavit to the jury, in lieu of live testimony, but Cleveland was not stipulating to the truth of the
facts stated in the affidavit and reserved the right to rebut the facts set forth in Seemann’s
affidavit.
¶ 11 After considering the parties’ arguments, the circuit court set aside the previously file-
marked stipulations. The court indicated that Exhibit A would be admitted and go to the jury.
With regard to Exhibit B, the court offered Budget’s attorney the right to continue trial and call
Seemann as a live witness, rather than rely on the affidavit. Budget’s attorney declined and
indicated that she wanted to proceed to trial on the affidavit alone, even though Cleveland had
not agreed to the facts set forth in the affidavit.
¶ 12 The circuit court then reiterated that Budget’s cause of action was based upon a breach of
contract, and, as such, the evidence was expected to be presented in a manner “only ***
pertaining to an alleged breach of written contract. No other cause of action has been alleged and
no other cause of action is going to be presented by [Budget].” Cleveland’s attorney sought
further clarification, stating that Budget “wears two hats,” first as a self-insured company under
section 9-105 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/9-105 (West 2014)),
which required Budget “to provide liability insurance that covers their customer or anyone
driving the rented vehicle with their customer’s express or implied consent.” Cleveland’s
attorney believed Budget was suing in its “capacity as the lessor of the rental car, not as the
6
insurer,” thus, Budget had “to show that *** in its capacity as lessor [it] was legally obligated to
make the payments to the people injured in the accident, and at least we have the defense that
they paid as a volunteer.”
¶ 13 The circuit court reiterated that Budget had brought a cause of action against Cleveland
as the owner of the rental vehicle, not as the insurer, and that Budget would have to prove
Cleveland breached the Agreement. The court then concluded that section 9-105 of the Vehicle
Code was irrelevant to the breach of contract cause of action. Following jury selection, the
parties presented opening statements. Budget’s attorney stated the following:
“In that contract there is a clause for indemnification, which is just a fancy word,
is if we have to spend money you have to pay us back.
***
[Morning] didn’t have a valid license, and he’s unauthorized. Unauthorized
doesn’t mean [Cleveland] authorized him, it means—according to the contract he wasn’t
supposed to be driving the car. He was driving the car. It got into an accident. Because of
that accident Budget paid out money.
***
The evidence will show we tried to get ahold of Ms. Cleveland. She wasn’t
cooperating with us. This car was never reported stolen. So we pay out to protect
ourselves and our company, our car, our car that caused the damage.”
¶ 14 Next, Cleveland’s attorney gave his opening statement. He asserted that Morning drove
the rental car without Cleveland’s permission; therefore, Cleveland “wasn’t liable for the
accident. She wasn’t driving. She didn’t allow Sammy Morning to take the car.” Further,
Cleveland’s attorney explained that Cleveland had asserted an affirmative defense, and that she
was not obligated under the contract to indemnify Budget where Budget chose to make
payments, despite no legal obligation on its part to do so. No objection was raised to Cleveland’s
argument.
7
¶ 15 Following opening statements, the circuit court conducted a hearing outside the presence
of the jury to address the admissibility of the exhibits and jury instructions. Budget tendered
several instructions specifically related to its breach of contract claim. These were identified as
Plaintiff’s Instructions No. 3, No. 6, and No. 7. Cleveland’s attorney objected to Budget’s jury
instructions because none of them had been modified to include Cleveland’s affirmative
defenses. Cleveland’s attorney submitted a modified jury instruction, Defendant’s Instruction
No. 1, which included the following affirmative defenses:
“Shanika Cleveland claims and has the burden of proving the following affirmative
defense:
That Shanika Cleveland did not authorize or permit Sammy morning to use the rental car
at the time of the accident.
That Budget Rent-A-Car System, Inc. paid the other drivers and passengers in the
automobile accident as a volunteer, when it was not obligated to pay.”
¶ 16 In response, the circuit court, once again, reiterated that the breach of contract issue was
“going to the jury on that question of fact.” In addressing Cleveland’s argument that the jury
instructions failed to hypothesize Budget’s obligation to make payments to the third parties, the
court refused to tender Cleveland’s instruction that contained the affirmative defenses. Instead,
the court stated that Budget had “the burden of showing the conditions of the contract *** and
then the breach of such written contract. I am not going to instruct the jury on anything further.
That’s not within the four corners of the contract.”
¶ 17 The jury was then reseated, and Budget called it first witness, Marshall, a driver involved
in the May 22, 2010, accident, who testified to the following details. On May 22, 2010, Morning
rear-ended her vehicle as Marshall attempted to make a left turn, which caused her to veer into
oncoming traffic and collide with another vehicle. As a result of the accident, Marshall suffered
8
back and neck injuries, and her car was declared a total loss. With regard to the payments made
by Budget to Marshall, the following colloquy occurred:
“Q. And your injuries and the damage to your car, that was taken care of,
correct?
A. Yes, it was.
Q. Okay. Do you know how much was paid for that?
A. Well, I think my car was around 4,500 and my insurance, it paid my
hospital bill. That was over 10,000.”
¶ 18 Next, Budget called Cleveland to testify as an adverse witness. Cleveland admitted that
she had signed the Agreement on May 16, 2010, to rent a vehicle from Budget. Following the
accident on May 22, 2010, Cleveland testified that she “called Budget and informed them that
the car was in an accident ***, [w]ent to the accident scene, went to the police station to get the
police report, and went to provide that information to Budget since they asked [her] to just
provide the information on the accident.” On the accident report, identified as Exhibit C,
Cleveland acknowledged Morning as the driver of the vehicle at the time of the accident.
Cleveland testified that Morning only occasionally stayed at her address, and that she had never
allowed Morning to drive the rental car because he was not a validly licensed driver. During the
clarification examination by her own counsel, Cleveland explained that she had contacted
Budget after the accident and was instructed to fill out the accident report that Budget had
identified during her testimony.
¶ 19 Budget then offered into evidence Exhibit B, the affidavit of Seemann. The circuit court
explained that Exhibit B was being admitted as “if Scott Seemann were present, he would testify
as set forth in the affidavit.” The court did not give any sort of limiting instruction that indicated
Cleveland contested the facts set forth in the affidavit. Budget’s attorney then read the contents
of Seemann’s affidavit to the jury, without further objection from Cleveland. At the close of
Cleveland’s testimony, Budget’s attorney moved to admit the exhibits into evidence. Exhibit A,
9
the Agreement, had already been admitted. With regard to Exhibit B, the Seemann affidavit,
Cleveland’s attorney renewed his objection and asked that the jury not be given the affidavit. The
court agreed and admitted Exhibit B only for the testimony contained therein, but not as an
exhibit to be reviewed by the jury. Exhibit C, the accident report completed by Cleveland, was
admitted without objection. Budget then rested its case.
¶ 20 At the close of Budget’s evidence, both parties filed written motions for directed verdict.
Cleveland argued that Budget had not proved that any of the third parties identified in Seemann’s
affidavit, other than Marshall, had suffered any injuries or property damage. In addition,
Cleveland argued that Budget had failed to present any evidence from which the jury could find
that Cleveland had expressly or impliedly consented to Morning’s use of the rental car. 3 In
contrast, Budget, in filing its motion for a directed verdict, argued that the undisputed evidence
demonstrated that Cleveland had breached the contract because Morning was an unauthorized
driver. Budget asserted that there was no question of fact left for the jury to decide. Budget
claimed that, because it had introduced evidence that Morning was an unauthorized user of the
vehicle, Budget had incurred payments to third parties for which it should be indemnified. The
circuit court denied both motions, concluding that whether there had been a breach of contract
presented a question of fact for the jury.
¶ 21 Cleveland then presented her case-in-chief and testified to the following details. In May
2010, Cleveland rented a vehicle from Budget for one week while her own vehicle was being
repaired. When she was not driving the rental car, she parked it at her home or outside of her
3
Cleveland relied upon section 9-105 of the Vehicle Code for her argument that Budget would
only have been obligated to pay third parties if Morning was driving the rental car with Cleveland’s
express or implied consent.
10
work. Cleveland had dated Morning for several months, and he stayed at her home a few nights a
week.
¶ 22 On May 22, 2010, Cleveland went shopping with a relative, leaving the rental car parked
at her home. Cleveland testified that she never authorized or permitted Morning to drive her
rental vehicle at any time. Following the accident, Cleveland claimed that she prepared an
accident report, at Budget’s request, and, contrary to Seemann’s affidavit, had informed an agent
at Budget that the car had been taken without her permission. According to Cleveland, when she
spoke with Seemann, he requested payment for damages from the car accident. Cleveland
informed him, however, that it was not her responsibility to pay for damages when she had never
permitted Morning to drive the rental car.
¶ 23 On cross-examination by Budget’s attorney, Cleveland admitted that she did not report
the car stolen. She explained that she felt reporting the car as stolen was unnecessary because the
police had prepared an accident report, and she had filled out an incident report with Budget.
Cleveland reiterated that she had informed Budget that it had been taken without her permission.
¶ 24 Cleveland’s next witness was Morning, who testified to the following details. On May
22, 2010, Morning overheard Cleveland say that she was going shopping with a friend in her
friend’s car. Before Morning left Cleveland’s residence, he unlocked the back door. After he
observed Cleveland leave, he entered her residence through the back door, obtained the keys to
the rental car, and “went for a ride” without Cleveland’s permission. At approximately 4 p.m.
that day, Morning was involved in a car accident while driving Cleveland’s rental car.
¶ 25 On cross-examination, Morning admitted that he had multiple felony convictions and had
been in prison at some point after the May 22, 2010, accident. According to Morning, even
though they had dated for two years prior to the accident, Cleveland was unaware of his criminal
11
history and that his driver’s license had been suspended. Morning indicated he had been “driving
around for a while” in Cleveland’s rental car before the car accident happened. Morning also
admitted that, although he only stayed at Cleveland’s place two or three times per week and he
did not have a key, he used Cleveland’s address as his own. He also indicated that he stayed with
his sister when he was not at Cleveland’s place, and he also used his sister’s address as his own.
At the conclusion of Morning’s testimony, the defense rested.
¶ 26 At the close of evidence, both parties renewed their motions for directed verdict. The
circuit court, once again, denied both motions, concluding that whether Morning was an
authorized driver was a factual question under the contract. In particular, the court stated:
“I don’t think factually it matters if he did or did not have permission of the
defendant. I think the issue is whether or not [Morning] is an unauthorized user. The
contract does not say unauthorized user is someone using the vehicle that—without the
consent of the defendant. It describes who is able to do so.
***
So, with that in mind, I’m not going to make it a factual issue. *** Did Sammy
Morning have consent by the defendant to use the vehicle? I don’t care. I don’t think that
is relevant to these proceedings.
I think almost everyone can agree *** that [Cleveland’s] position is I didn’t give
him permission.
***
I don’t think it’s relevant to these proceedings.”
In light of this, the court denied Cleveland’s affirmative defense “because it’s not relevant. We
are going to be bound on this case to this contract.” The court determined that the question of
fact for the jury was whether Cleveland had breached the written contract. Cleveland’s attorney
then requested that the court consider the affirmative defense that Budget had no “legal liability”
to pay the damages. In response, the court stated:
12
“[L]et us assume [Budget] had no legal obligation to pay these damages. There’s been no
evidence as to whether or not they did or did not. *** Now, I don’t know if they did or
did not have legal obligation to pay. They may have voluntarily paid that, and as I set
forth previously, I am not precluding you from arguing that, but, frankly, I don’t think it
is a condition or a burden that [Budget] must prove.”
The court then refused to modify the jury instructions to include Cleveland’s affirmative defense
of voluntary payment, as requested.
¶ 27 Cleveland’s attorney then supplemented its written motion by again stating that Budget
had failed to prove that anyone, other than Marshall, had sustained damages. The circuit court,
again, denied this oral motion, stating, “I’m not sure that pursuant to the Exhibit A [Agreement]
there has to be a presentation of injuries. It has to be a presentation of damages.” Thereafter, the
court made a record regarding the tendering of the final jury instructions, and the objections
thereto by Cleveland. After doing so, the jury was re-seated, and closing arguments began.
¶ 28 Each party argued the same points of fact and law as had been presented to the circuit
court. At the conclusion of closing arguments, the court instructed the jury. After deliberating,
the jury found in favor of Budget and assessed damages against Cleveland in the amount of
$36,462.48.
¶ 29 On August 1, 2017, Cleveland filed a posttrial motion seeking JNOV, or, alternatively,
requesting a new trial. Cleveland alleged that the circuit court had erred in denying her motion
for a directed verdict because (1) there was no evidence that Budget was legally obligated, or had
a duty, to pay damages to the third parties when Cleveland did not authorize Morning to use the
rental car, as required under paragraph 18 of the Agreement, and (2) Budget had failed to prove
that the third parties, other than Marshall, had suffered actual damages. Alternatively, Cleveland
alleged that she was entitled to a new trial because the court erred in striking her affirmative
13
defense that Budget paid the amounts claimed as a volunteer, which ultimately prohibited her
from defeating Budget’s breach of contract claim.
¶ 30 On October 30, 2017, the circuit court entertained Cleveland’s posttrial motion.
Cleveland’s attorney argued that, as a matter of law, Cleveland was liable to Budget under
paragraph 18 of the indemnity clause, only if Budget was legally obligated to pay the loss
resulting from the unauthorized use of the rental car. Alternatively, Cleveland’s attorney
requested a new trial based on the court’s refusal to permit her tendered jury instruction, which
included the affirmative defense that Budget paid the amounts claimed as a volunteer. The court
subsequently denied Cleveland’s posttrial motion, and Cleveland filed a timely notice of appeal.
¶ 31 II. Analysis
¶ 32 A. JNOV
¶ 33 Cleveland argues that she was entitled to JNOV based on Budget’s failure to present
evidence establishing its legal obligation to pay damages to injured third parties in support of its
breach of contract claim. Cleveland, citing to section 9-105 of the Vehicle Code, claims that the
only scenario that would expose Budget to liability would be if Morning had operated the rental
car with Cleveland’s express or implied consent.
¶ 34 In response, Budget maintains that the contract does not require proof of its obligation to
pay third parties for damages. Instead, Budget asserts that “no were [sic] in the contract does it
read that [Cleveland] is only liable for damages that Budget is legally obligated to pay.”
Therefore, Budget avers that the circuit court properly denied Cleveland’s posttrial motion
because the jury correctly concluded that Cleveland breached the contract, regardless of whether
Cleveland impliedly or expressly permitted Morning’s operation of the rental vehicle. Thus, the
question before this court is whether the rental agreement requires Cleveland to indemnify
14
Budget for payments made to third parties for property damages and personal injuries resulting
from an unauthorized driver.
¶ 35 A motion for JNOV should only be granted when the evidence and inferences, viewed in
the light most favorable to the nonmoving party, “ ‘so overwhelmingly favors movant that no
contrary verdict based on that evidence could ever stand.’ ” Thornton v. Garcini, 237 Ill. 2d 100,
107 (2010) (quoting Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992)). In other words, a JNOV is
inappropriate if “reasonable minds might differ as to inferences or conclusions to be drawn from
the facts presented.” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178
(2006). As such, if there is any evidence where the assessment of the witnesses’ credibility or the
determination regarding conflicting evidence is decisive to the outcome of the trial, a JNOV may
not be entered. Dunning v. Dynegy Midwest Generation, Inc., 2015 IL App (5th) 140168, ¶ 17
(citing Ford v. Grizzle, 398 Ill. App. 3d 639, 650 (2010)). Because a motion for a JNOV presents
a question of law as to whether there was a complete failure to substantiate a key element of the
plaintiff’s case, the circuit court's ruling on such a motion is subject to de novo review. York, 222
Ill. 2d at 178.
¶ 36 In the present case, Budget brought suit against Cleveland for breach of contract. “To
establish a breach of contract, the plaintiff must show the existence of a valid and enforceable
contract, performance of the contract by the plaintiff, breach of the contract by the defendant,
and resulting injury to the plaintiff.” Sherman v. Ryan, 392 Ill. App. 3d 712, 732 (2009) (citing
Werner v. Botti, Marinaccio & DeSalvo, 205 Ill. App. 3d 673, 680 (1990)). Cleveland concedes
that the Agreement was a valid and enforceable contract between the parties, and she does not
argue that Budget failed to perform its obligations under the contract. Because the parties present
differing interpretations of Cleveland’s contractual obligations, we must first interpret the
15
indemnification clause in the Agreement to determine whether a breach of the contract by
Cleveland occurred.
¶ 37 An indemnity agreement is a contract subject to contract interpretation rules. Virginia
Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). On review, a
court is to assume that every provision in the contract serves a purpose. Central Illinois Light Co.
v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). The primary objective of the court is to
determine and give effect to the intent of the parties as expressed in the language of the contract.
Virginia Surety Co., 224 Ill. 2d at 556; Central Illinois Light Co., 213 Ill. 2d at 153. To ascertain
the intent of the parties and the meaning of the words used in the contract, the court must
construe the contract as a whole, taking into account the type of insurance for which the parties
have contracted, the risks undertaken and purchased, the subject matter that is insured, and the
purposes of the entire contract. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156
Ill. 2d 384, 391 (1993). If the contract language is unambiguous, the contract language should be
given its plain and ordinary meaning. Virginia Surety Co., 224 Ill. 2d at 556 (citing Central
Illinois Light Co., 213 Ill. 2d at 153). Conversely, if the language of the contract is reasonably
susceptible to more than one meaning, it is considered ambiguous and will be construed strictly
against the drafter of the contract and in favor of coverage. Central Illinois Light Co., 213 Ill. 2d
at 153 (citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 119
(1992)).
¶ 38 The provision in the rental agreement at issue reads as follows:
“18. Indemnification and Waiver: You agree to indemnify us, our parent and
affiliated companies, for and hold us harmless from any loss, liability and expense that
we incur arising out of the use of the car, including reasonable attorney’s fees: *** (b)
which results from any unauthorized use or prohibited operation of the car.”
16
Cleveland claims that the language “we incur,” as written above, means “we are obligated to
pay.” Cleveland asserts that Budget was under no legal obligation to pay the injured third parties.
Therefore, Cleveland did not breach the contract by failing to indemnify Budget for its voluntary
payments. To the contrary, Budget maintains that the Agreement required Cleveland to
indemnify Budget because Morning’s use of the rental car, with or without Cleveland’s express
or implied permission, was an unauthorized use, and, additionally, because she failed to
cooperate with the investigation following the accident.
¶ 39 The indemnity clause in the present case states: “You agree to indemnify us *** for and
hold us harmless from any loss, liability and expense that we incur arising out of the use of the
car ***.” (Emphasis added.) We note that the law of indemnity requires some obligation. Dixon
v. Chicago & North Western Transportation Co., 151 Ill. 2d 108, 118-19 (1992). That is, in
general terms, under the principles of indemnification, indemnity is the obligation resting on one
party (indemnitor) to make good a loss or damage another has incurred (indemnitee). Id. at 118.
¶ 40 As the provision is written, if we were to accept Budget’s interpretation of the use of “we
incur” in paragraph 18, Cleveland would essentially be held liable for any and all costs Budget
sustained, regardless of the amount. Thus, the provision would essentially resemble strict
liability, not indemnity, which would allow Budget to pay any amount for damages that would
then bind Cleveland to indemnify Budget, without limitation. However, as discussed in
Enterprise Leasing Co. of St. Louis v. Hardin, 2011 IL App (5th) 100201, ¶ 22, where the
indemnity clause was similar to the one in the present case, this court found the “clause [wa]s
meant to apply to types of losses that would be covered by these forms of insurance—that is,
those losses for which the renter is liable.” Moreover, this court also stated that “[w]hile this
language is very broad, we do not believe it is broad enough to encompass claims for which the
17
defendant cannot be held liable under the law.” Id. Rather, courts “must interpret a contract to be
consistent with the law and public policy of this state.” Id.¶ 41 Additionally, although paragraph 18 does not expressly state “obligated to pay,” the
provision is under the bolded title “Indemnification and Waiver,” and the beginning of the
paragraph states: “You agree to indemnify us ***.” Giving effect to the intent of the parties, it
appears that the parties contracted to allow for indemnification, which is further supported by
paragraphs 14 and 15. As such, when read together, it is clear that our interpretation is consistent
with additional provisions contained in the Agreement, which evidences the parties’ intention
that paragraph 18 is an indemnification clause seeking to have Cleveland indemnify Budget for
any losses it sustained as a result of her own intentional acts in violation of the contract. That is,
her own intentional acts would include her permitting the car to be used “by anyone other than
an authorized driver,” as stated in paragraph 14(A), which can include “your spouse, or domestic
partner *** but only with your permission,” as stated in paragraph 15.
¶ 42 More importantly, paragraph 14(B) explicitly addresses the renter’s liability in the event
the rental car was stolen or vandalized. Specifically, if the renter or an additional driver,
authorized or not, “leave[s] the car and fail[s] to remove the keys or close and lock all doors,
close all windows and the truck and the car is stolen or vandalized,” the renter would be held in
violation of the rental agreement and subject to liability. The construction of paragraph 14(B),
directly following paragraph 14(A), demonstrates that the renter would be liable if the car was
stolen or vandalized because the renter permitted an unauthorized driver, that is, someone who is
not a spouse or domestic partner, to drive the rental car. As such, in refusing to look at one
provision in isolation, but viewing the contract as a whole, the provisions stated above
18
demonstrate a breach of contract when the renter takes some affirmative act or makes some
omission prohibited by the contract which would expose the renter to liability.
¶ 43 We note that the circuit court found it unnecessary to the breach of contract case to
determine whether Budget had to prove its legal obligation to make payments to the third parties.
Specifically, the court stated the following, with respect to Cleveland’s affirmative defense
regarding voluntary payment:
“THE COURT: *** [L]et us assume they had no legal obligation to pay these
damages. There’s been no evidence as to whether or not they did or did not. You’re going
to have to argue that that is not a breach of contract. Okay? Now, I don’t know if they did
or did not have legal obligation to pay. They may have voluntarily paid that, and as I set
forth previously, I am not precluding you from arguing that, but, frankly, I don’t think it
is a condition or a burden that the Plaintiff must prove.”
We disagree. Having ascertained the intent of the parties and the meaning of the words used in
the contract, that is, one of indemnification and not strict liability, we find, as a matter of law,
that Budget was required to prove that Cleveland’s affirmative act or omission resulted in
Budget’s liability to pay damages. See Enterprise Leasing, 2011 IL App (5th) 100201, ¶ 22.
Accordingly, if the trier of fact were to find that Cleveland permitted Morning to use the rental
car then Budget’s payment of damages as a result of the accident would be “involuntary” under
this test. Conversely, if the trier of fact were to find that Cleveland had no role in Morning’s use
of the car, then, as a matter of law, Budget’s payment of damages would be “voluntary.” Thus, it
is these factual questions, rather than the legal conclusion as to voluntary payment, upon which
the jury should have been instructed. For these reasons, the circuit court erroneously ruled that
these issues of fact had no role to play in the trial.
¶ 44 Despite the foregoing legal errors on the part of the circuit court, we conclude that the
court properly denied Cleveland’s motion for JNOV. After reviewing the transcript of the trial,
we find that, had the jury been properly instructed, it could have reasonably concluded that the
19
testimonies of Cleveland and Morning, specifically, that Morning took the rental car without
Cleveland’s permission, lacked credibility. First, Cleveland testified that she knew Morning did
not have a valid driver’s license on the date of the accident, while Morning testified that
Cleveland did not know his license had been suspended. Next, Cleveland testified that she did
not report the car stolen to police or Budget following the accident. Cleveland also testified that
she did not live with Morning at the time of the accident, although she admitted she had listed
the same address for both herself and Morning on the accident report. Additionally, although
Cleveland filled out the accident report on May 22, 2010, she admitted that she did not comply
with Seemann’s subsequent requests for information regarding the accident. Moreover,
Seemann’s affidavit contained evidence that Cleveland had failed to cooperate with his
investigation. Finally, Morning’s version of events could reasonably be called into question,
given his admission at trial that he had multiple prior felony convictions.
¶ 45 As set forth above, although conflicting evidence was presented on the issue, the jury
could have reasonably concluded that Cleveland allowed Morning to drive the rental car on the
date of the accident. See Dunning, 2015 IL App (5th) 140168, ¶ 17 (citing Ford, 398 Ill. App. 3d
at 650). Accordingly, we cannot conclude that the evidence and inferences so overwhelmingly
favor Cleveland that no contrary verdict based on that evidence could ever stand. See Thornton,
237 Ill. 2d at 107. Thus, the circuit court properly denied Cleveland’s motion for a JNOV.
¶ 46 B. Motion for a New Trial
¶ 47 Next, we note that Cleveland’s motion for a new trial was based on the circuit court’s
denial of her request for a jury instruction regarding her affirmative defense of voluntary
payment. However, as already noted, the circuit court erred in this determination, and we find, as
a matter of law, that Budget was required to prove that Cleveland’s affirmative act or omission
20
regarding the use of the rental car resulted in Budget’s liability to pay damages to third parties.
See Enterprise Leasing, 2011 IL App (5th) 100201, ¶ 22.
¶ 48 It was incumbent upon the court to make this legal determination and to instruct the jury
accordingly, which it refused to do. “ ‘When a case is tried under an incorrect theory of law the
appropriate action is to reverse the judgment and remand for a new trial.’ ” Reliable Fire
Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 46 (quoting Sparling v. Peabody Coal Co., 59
Ill. 2d 491, 496 (1974)). In light of the foregoing, we remand this case for a new trial consistent
with this opinion.
¶ 49 III. Conclusion
¶ 50 For the foregoing reasons, the judgment entered on the jury verdict is reversed and this
cause is remanded for a new trial consistent with this opinion.
¶ 51 Reversed and remanded.
¶ 52 JUSTICE CATES, specially concurring:
¶ 53 I concur with my colleagues that the judgment for Budget should be vacated and that this
matter should be remanded for a new trial. My reasons for this decision, however, are different,
in part, than the analysis of the majority.
¶ 54 First, it is undisputed that Budget brought this breach of contract cause of action as the
owner of the vehicle and sought to recover damages from Cleveland based upon an indemnity
clause in the Agreement. My colleagues have determined that a new trial is warranted because
the jury was improperly instructed on Budget’s burden of proof, and that on retrial the “ultimate
issue” is whether Cleveland had any culpability regarding Morning’s use of the rental car. I agree
21
that the trial court erred in its legal analysis of this claim, and thus erred in instructing the jury on
Budget’s burden of proof. I do not agree that the issue of whether Cleveland voluntarily, or
involuntarily, allowed Sammy Morning to drive the vehicle is a relevant factor in determining
whether Cleveland breached the Agreement.
¶ 55 In this case, there is no dispute that a valid contract was entered into between the parties.
There is no dispute that Budget performed its obligations under the Agreement, at least as that
obligation required it to provide Cleveland with a rental car. There is also no dispute as to the
material terms contained within paragraphs 14, 15, and 18 of the Agreement. The parties simply
disagree on the application of those material terms to the circumstances that occurred when
Morning took the keys to the rental car and drove it without Cleveland’s permission. And it is
irrelevant, in my view, as to whether Cleveland intentionally or unintentionally allowed Morning
access to the vehicle. Under any circumstance, based upon the evidence in this record, Morning
was an unauthorized user. Thus, the only question was what the term “indemnification” meant
under the Agreement.
¶ 56 The relevant indemnification language was set forth in paragraph 18 and provided as
follows:
“18. Indemnification and Waiver: You agree to indemnify us, our parent and
affiliated companies, for and hold us harmless from any loss, liability and expense that
we incur arising out of the use of the car, including reasonable attorney’s fees: *** (b)
which results from any unauthorized use or prohibited operation of the car.”
¶ 57 Under the terms of this clause in the Agreement, the indemnitee, Budget, was required to
prove that it suffered a loss related to the unauthorized use of the car. Thus, there were two
issues. First, there was the issue of whether Budget suffered a loss, which included questions
regarding the nature of the damages suffered by Budget. Second, was the issue of whether
Cleveland was obligated to indemnify Budget for the monies Budget paid to third parties. In that
22
regard, the law of indemnification required Budget to prove that it was legally obligated to pay
the damages. 4
¶ 58 There was no issue of fact that Morning “used” the rental car, and no issue of fact that he
was the driver when the rental vehicle was involved in an accident on May 22, 2010.
Nevertheless, Budget remained obligated to prove that the sums paid for personal injuries and
property damages were related to the accident resulting from the unauthorized use of its vehicle,
and that there was “a reasonable basis for computation of those damages.” (Emphasis added.)
Schoeneweis v. Herrin, 110 Ill. App. 3d 800, 808 (1982).
¶ 59 Here, the measure of damages for breach of contract was the amount that would have
compensated the aggrieved party for the losses that resulted from the breach, or the losses that
would have been prevented had the contract been fulfilled. Bowman v. Zimny, 256 Ill. App. 3d
386, 390-91 (1993). In support of its proof of loss, Budget offered the affidavit of Scott
Seemann. Cleveland objected to the introduction of this affidavit. After some discussion between
the parties and the court, the affidavit was admitted into evidence with the stipulation that it
represented the testimony that Seemann would have given, if called as a witness. The affidavit,
alone, was nothing more than proof of amounts paid, and Cleveland’s counsel was very clear
with the court that the affidavit was not to be construed as an admission of disputed facts. The
court then attempted to further clarify the limited purpose of the affidavit for Budget’s counsel,
stating:
“But you understand that as to a question of fact, you [Budget’s counsel] understand that
if there’s still a question of fact, the defendant is not agreeing to the question of fact being
determined by this affidavit. It just is the testimony of this witness, Scott Seemann. You
understand that?”
4
An example of a legal obligation to pay would be if a lawsuit had been filed by one of the third
parties against Budget, and a verdict was rendered in favor of that third party, or the circuit court
approved a settlement of a case.
23
¶ 60 The record reflects an acknowledgement by Budget’s counsel that the Seemann affidavit
would “be as if Scott Seemann testified in front of the jury and that is how he [Cleveland’s
counsel] would like to handle it.” Even after this exchange, the court offered examples of how
the information in the Seemann affidavit would be used, and further indicated it was willing to
continue the matter to allow Budget’s counsel to call Seemann as a live witness in light of the
objection by Cleveland’s counsel. In short, the trial court did a good job of explaining the limited
purpose for which the affidavit could be used. Budget, nevertheless, declined to continue the
case and agreed to offer the Seemann affidavit for that limited purpose.
¶ 61 Scott Seemann’s affidavit simply indicated that Budget paid money to certain third
parties “as a result of the May 22, 2010 accident.” In paragraph 10 of the affidavit, Seemann
averred:
“As a result of the May 22, 2010 accident involving the Hyundai Sonata rented by
Defendant, Shanika Cleveland, Budget Rent-A-Car Systems, Inc. made the following
payments for property damages and personal injuries:
a. $3,141.73 paid to Ebony Jimerson for personal injuries suffered as a result of the
May 22, 2010 accident. Ms. Jimerson was the operator of a 1993 Mercury Grand
Marquis.
b. $285.00 paid to Shantell Williams, as a parent of Dominic Scott, for personal
injuries suffered by Mr. Scott as a result of the May 22, 2010 accident. Mr. Scott
was a passenger in the 1993 Mercury Grand Marquis operated by Ms. Jimerson.
c. $615.00 paid to Touchette Regional Hospital for treatment rendered to Dominic
Scott for personal injuries suffered as a result of the May 22, 2010 accident.
d. $8,200.00 paid to Carl Sheard for personal injuries suffered as a result of the May
22, 2010 accident. Mr. Sheard was a passenger in the 1993 Mercury Grand
Marquis operated by Ms. Jimerson.
e. $1,864.00 paid to Shantell Williams for property damage to her 1993 Mercury
Grand Marquis as a result of the May 22, 2010 accident.
24
f. $16,333.33 paid to Rosie Marshall for personal injuries suffered as a result of the
May 22, 2010 accident. Ms. Marshall was the operator of a 1997 Chevrolet
Lumina.
g. $6,666.67 paid to Allstate Insurance for personal injuries suffered by Ms.
Marshall as a result of the May 22, 2010 accident.
h. $3,648.88 paid to Rosie Marshall for property damage to her 1997 Chevrolet
Lumina as a result of the May 22, 2010 accident.
i. $708.75 paid to Allstate Insurance for property damage to the 1997 Chevrolet
Lumina as a result of the May 22, 2010 accident.”
¶ 62 Although the Seemann affidavit listed the dollars paid to third parties, Budget could not
rely solely on those figures to prove that the losses were related to the unauthorized use of the
vehicle. Further, the Seemann affidavit alone did not prove the nature and extent of the property
damages or establish a reasonable basis for computing the property losses incurred by the third
parties. Significantly, nothing within the Seemann affidavit qualified Scott Seemann as either an
expert witness with specialized knowledge in the assessment of personal injury or property
damage claims resulting from motor vehicle accidents, or as a lay witness who had sufficient
personal knowledge of the condition and the value of the specific vehicles involved. State Farm
General Insurance Co. v. Best in the West Foods, Inc., 282 Ill. App. 3d 470, 483-84 (1996). Even
if Budget had attempted to qualify Seemann as a lay witness who could give such an opinion,
Seemann would have had to aver that he had a sufficient basis of facts within his personal
knowledge from which he could offer such an opinion. Id. at 484. The Seemann affidavit is
devoid of any facts that would have allowed Budget to rely on the affidavit alone to prove its
claims.
¶ 63 The Seemann affidavit indicated that property damage payments were made for two
vehicles, a 1997 Chevrolet Lumina and a 1993 Mercury Grand Marquis. There seemed to be no
question that these two vehicles were involved in the accident. The owner of the 1993 Mercury
25
Marquis was not called as a witness to describe the damage to the vehicle. The Seemann
affidavit provided no evidence regarding the nature and extent of the damage sustained by the
1993 Mercury Marquis as a result of the accident. There was no evidence as to why the sum of
$1864 was paid—was it for a total loss or for repairs? There was no evidence as to valuation of a
total loss or the fair and reasonable value of any repair costs. Budget could have attached an
invoice or some proof of payment that would have allowed the finder of fact to determine the
basis for the payment, yet no such information was proffered. Without some evidence, Budget
failed to carry its burden of proof regarding damages as to the payments for the 1993 Mercury
Marquis.
¶ 64 Budget also failed to offer sufficient evidence regarding the payments made for the 1997
Chevrolet Lumina owned by Rosie Marshall. Marshall testified that her vehicle was totaled and
that she was paid around $4500 for the vehicle. Marshall was not asked to describe the damage
to her vehicle, and she was not asked to authenticate an appraisal or any other document
identifying or describing the valuation of the totaled vehicle. According to the Seemann
affidavit, Marshall received $3648.88 for her vehicle, and Allstate received $708.75, totaling
$4357.63. Budget offer no evidence to explain why Allstate was paid any monies for Marshall’s
property damage. It offered no evidence to explain how the property damages were evaluated,
and no evidence that the amounts paid were fair and reasonable for the damages caused by the
accident. Budget’s failure to offer any evidence regarding these payments could not support an
award for property damage.
¶ 65 With regard to the payments made for the alleged personal injuries, the absence of proof
is even more striking. The Seemann affidavit offered no evidence regarding the specific nature of
the injuries alleged to have been suffered by Ebony Jimerson, Dominic Scott, and Carl Sheard.
26
According to the Seemann affidavit, Jimerson, Scott, and Sheard were in the 1993 Mercury
Marquis at the time of the accident. The Seemann affidavit offered no explanation as to the
nature and extent of the injuries suffered by the occupants of the 1993 Mercury Marquis, and
none of the occupants testified at trial. According to the Seemann affidavit, Ebony Jimerson
received $3141.73, and Carl Sheard received $8200. The affidavit, however, did not identify or
describe the injuries to Jimerson or Sheard. It did not indicate whether either received treatment
for their injuries, or whether they incurred medical bills. It did not indicate how the sums paid for
personal injuries were evaluated and whether those payments were fair and reasonable for the
injuries sustained. Likewise, the Seemann affidavit provided no evidence of the nature of the
injuries sustained by Dominic Scott. There is no explanation as to why Shantell Williams was
paid $285 for injuries to Dominic Scott or why Touchette Regional was paid $615 for treatment
rendered to Dominic Scott. The Touchette Regional Hospital bill was not attached to the
affidavit or otherwise introduced into evidence. Had the bill been identified, the amount paid
would have been prima facie evidence of its reasonableness. Arthur v. Catour, 216 Ill. 2d 72, 82
(2005).
¶ 66 Rosie Marshall testified that she was taken to the hospital for a problem with her neck
and back, and that her hospital bill was $10,000. She also testified that she went to physical
therapy for awhile. The Seemann affidavit indicated that Marshall was paid $16,333.33 for
personal injuries and that Allstate Insurance was paid $6666.67 for personal injuries suffered by
Marshall. Nothing in the Seemann affidavit indicated that a payment was made for a hospital bill
or physical therapy bill. Marshall was not asked to identify a paid bill for either the hospital or
physical therapy. Moreover, Marshall was not asked about the extent of her injuries or her
recovery from those injuries at the time of trial. Marshall was not asked to explain why Allstate
27
Insurance had been paid any sums of money for her personal injuries. Clearly, the insurance
company did not suffer a personal injury. Thus, the record is silent with regard to why this
payment was made. Budget failed to offer evidence to establish the extent of Marshall’s damages
or a basis for its computation of the sums paid to Marshall, and thus did not meet its burden of
proof on this contract claim.
¶ 67 In sum, Budget, not Cleveland, had the burden to prove that the amounts paid for
property damage and personal injuries were related to the unauthorized use of the rental car, and
that there was a reasonable basis for computation of the amounts paid. While Budget identified
sums paid to third parties in the Seemann affidavit, it failed to offer any evidence that the
payments were related to the unauthorized use of the vehicle, and failed to provide a reasonable
basis for having made those payments. Further, had the correct jury instructions been given, the
jury would have been charged with the responsibility of determining whether Budget met its
burden of proving that its losses arose out of the unauthorized use of the car, and, that the
amounts paid were fair and reasonable. Finally, the jury was not allowed to consider the question
of whether Budget was obligated to pay the amounts identified in the Seemann affidavit, or
whether it payed those amounts voluntarily.
¶ 68 This was a simple breach of contract case. The trial court indicated that it would not
instruct the jury on any matter “[t]hat’s not within the four corners of the contract,” but then
failed to allow an instruction on indemnification. The indemnification clause was, indeed, within
the four corners of the Agreement, and was deserving of an instruction. The trial court’s failure
to allow Cleveland to present the affirmative defense of indemnification was error and is the
basis for a new trial.
28
¶ 69 Accordingly, I agree that the judgment entered on the verdict must be vacated and that
this case should be remanded for a new trial.
29
No. 5-17-0458
Cite as: Budget Rent-A-Car System, Inc. v. Cleveland, 2020 IL App
(5th) 170458Decision Under Review: Appeal from the Circuit Court of St. Clair County, No. 15-AR-
634; the Hon. Thomas B. Cannady, Judge, presiding.
Attorney David Maxwell Duree of David M. Duree & Associates, P.C., for
for appellant.
Appellant:
Attorney Laura Kristin Beasley of Baker, Sterchi, Cowden & Rice, LLC,
for for appellee.
Appellee:
30