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02/23/87 Clarence Jeanblanc, As v. Dale Mellott

February 23, 1987

JEANBLANC, PLAINTIFF-APPELLANT

v.

DALE MELLOTT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

CLARENCE JEANBLANC, as Guardian of the Estate of LeRoy

504 N.E.2d 990, 152 Ill. App. 3d 801, 105 Ill. Dec. 705 1987.IL.221

Appeal from the Circuit Court of Lee County; the Hon. Thomas E. Hornsby, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, Clarence Jeanblanc, guardian of the estate of LeRoy Jeanblanc (LeRoy), brought suit against the defendant, Dale Mellott, to recover compensation for the use of LeRoy's farmland by the defendant. Following a bench trial, judgment was entered in favor of the plaintiff and against the defendant in the amount of $17,400. Defendant filed a post-trial motion in which he requested that the trial court grant a setoff against the judgment in the amount of the balance due on a promissory note made by LeRoy to the defendant. The setoff was granted. Plaintiff then filed a post-trial motion seeking correction of the amount of the setoff based upon the defense of usury and the erroneous computation of the interest owed. The trial court denied plaintiff's supplemental post-trial motion, and he appeals.

On November 24, 1984, the plaintiff, as guardian of the estate of LeRoy Jeanblanc, filed suit against the defendant to recover compensation for the use and occupancy by the defendant of certain farmland in which LeRoy had a life estate. The defendant denied the allegations in the complaint, but did not allege any affirmative defenses, nor did he file a counterclaim. During the trial, both plaintiff and defendant introduced into evidence a promissory note in the amount of $10,000 made by LeRoy and payable to the defendant.

On August 1, 1985, the trial Judge issued a memorandum decision and order awarding the plaintiff the sum of $17,400. Defendant's attorney wrote a letter to the trial Judge, pointing out that the decision made no reference to the setoff for the note. Plaintiff's attorney also wrote to the trial Judge asking for clarification of the same point. In his letter of August 12, 1985, the trial Judge stated as follows:

"In regard to the amount due on the note as a set off [ sic ], I will need either a stipulation from you as to interest and principal due or a proveup. Since the note was admitted into evidence, any questions as to its genuiness [ sic ] or validity would be res judicata."

On August 27, 1985, defendant filed a post-trial motion which requested, inter alia, that the trial court reduce the amount of the judgment awarded to plaintiff by the balance due on the promissory note executed by LeRoy to the defendant, plus any interest to date. On September 3, 1985, plaintiff filed an answer to defendant's post-trial motion in which the promissory note was discussed, but no objection to the rate of interest was raised.

On October 11, 1985, the trial court conducted a hearing on defendant's post-trial motion. During the course of the hearing, the following colloquy occurred:

"THE COURT: Do you want another hearing on the question of the note, Mr. Reck? Do you want to go through another trial or what do you want to do with the note?

MR. RECK [plaintiff's attorney]: No, but I'm assuming the note is perfectly valid but shouldn't the Court look at the terms on it of a fifth year as well as face value?

THE COURT: Well, you know what the cardinal rule is in the practice of law, and that also includes Judges, is that you never assume anything. Now, it seems to me --

MR. RECK: I don't think I'm assuming anything.

THE COURT: Well, I can't assume payments were made and credited against the note if there is no evidence to that. The only thing I can go on is the basis of the evidence submitted. Now, it seems to me that you fellows have a choice here. The reason I didn't rule on the note was because it wasn't a part of the pleadings. Okay. There was no request for a setoff in the pleadings.

MR. RECK: I know this.

THE COURT: We can go through the trial again, have the court reporter type the transcript as far as the introduction. I can take judicial notice of the fact that this note was admitted into evidence, it's a proper document, and rule on the note in a separate proceeding or you can agree if you wish for the purposes of the note issue at lease [ sic ] that I can rule on that issue. It's up to you. I mean, do you want to argue this note issue at a separate hearing and then I can incorporate by reference all the testimony that's already introduced because it's a matter of record?

MR. RECK: No. I assume, reading the Court's memorandum opinion -- I have here before me -- that the memorandum decision and order, that the note was considered in the decision and --

THE COURT: No, the note wasn't considered. The note was considered in the decision only to the effect as to proof, and I thought I made that clear as to the fact that the note was evidence of a payment of cash rent in the year -- on December 1st of 1982. Now, that's the only notation, as I recall, on the note and this note was dated July 27, 1977.

MR. RECK: '77. Right.

THE COURT: So, I mean, if he would have -- if you want to argue that point if he would have paid a fifth of that note a year -- I mean, obviously he would have had it paid off before he made the payments on December 1st of 1982 because a fifth of $10,000.00 is $2,000.00. That would be '78, '79, '80, '81, '82. Right there is $10,000.00.

MR. RECK: I'm fully in accord with the Court's thinking. The only thing I was suggesting in my argument was that because there was, in fact, evidence of a payment made in '82 doesn't necessarily prove that there weren't other payments made.

THE COURT: No. I know that. What I am saying to you is that there is one of two ways to do this. Since it was not made part of the original pleadings, since the pleadings, I don't think, were amended subsequent after all the evidence was introduced --

MR. RECK: No. There were no amendments.

THE COURT: -- there was nothing in either the complaint or the answer relative to this issue in terms of a request of the Court to determine the amount of the -- what was due and owing on the note, I didn't consider it. Now, I considered the note only as to the effect it had on establishing that a cash rent payment was made in the year 1982. Then I considered -- and that was introduced by you on direct examination.

MR. RECK: Absolutely.

THE COURT: As long as those cash receipts for those years -- that's how I arrived at my opinion so that still left at issue the question of the note indebtedness as far as the balance is concerned.

MR. RECK: Agreed.

MR. DIXON [defendant's attorney]: Your Honor has correctly analyzed the situation. We, the Defendant, would ask that the Court determine the validity of the remainder due on the payment of the note in this proceeding rather ...


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