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03/14/89 Richard Turner, v. Cosmopolitan National Bank

March 14, 1989

RICHARD TURNER, PLAINTIFF-APPELLEE

v.

COSMOPOLITAN NATIONAL BANK, TRUSTEE, DEFENDANT (SAM LANE ET AL., DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

536 N.E.2d 806, 180 Ill. App. 3d 1022, 129 Ill. Dec. 756 1989.IL.320

Appeal from the Circuit Court of Cook County; the Hon. Walter B. Bieschke, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. EGAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendants raise the following issues on appeal: (1) whether the court erred in vacating its order of summary judgment based upon its determination that the action was time barred; (2) whether the court erred in voiding a release executed by plaintiff in favor of defendants; and (3) whether the court erred in not directing a verdict in favor of defendants and against plaintiff. We affirm.

On November 10, 1974, plaintiff slipped and fell in the vestibule of a multi-unit apartment building owned by defendants. The outer door of the vestibule could not be kept shut and would repeatedly blow open; as a result, water, ice and snow accumulated on the vestibule floor. Plaintiff slipped and fell on this accumulation, thereby fracturing his left fibula just above the ankle.

On November 10, 1976, plaintiff filed this action against Cosmopolitan National Bank as trustee. On December 21, 1976, pursuant to its motion, the bank was dismissed, and plaintiff, after being granted leave, amended his complaint to add Sam and Evelyn Lane as defendants. On March 25, 1982, plaintiff voluntarily dismissed his action and refiled it on May 21, 1982. Defendants filed their answer on October 21, 1982, without asserting therein the statute of limitations as an affirmative defense.

Thereafter, numerous pleadings and motions were filed, voluminous discovery was had, and the case was placed on the trial call for November 13, 1984. Defendants did not raise the issue of the statute of limitations until March 31, 1986, when they filed a motion for summary judgment. By that time the matter had been called for trial nine different times, but had been continued each time at the request of defense counsel. On April 10, 1986, after hearing the arguments of counsel and reviewing the documents filed in support of their respective positions, Judge Berman denied defendants' motion. Just as the case was to proceed to trial before Judge Bieschke, on January 15, 1987, defendants filed another motion for summary judgment, and the Judge granted it on that same day.

Thereafter, counsel for the parties entered into settlement negotiations, pursuant to which defendants made a settlement offer of $3,500. On January 28, 1987, plaintiff's counsel discussed the offer with his client in a phone conversation, during which plaintiff was advised that outstanding costs and expenses in the approximate amount of $1,800 had been advanced on his behalf in the case and that this sum would have to be reimbursed out of the settlement, but that counsel would waive his fee. As a result of this conversation, it was plaintiff's counsel's understanding that he should attempt to negotiate the best possible settlement for his client, but that in any event he had authority to settle the case for $3,500.

Accordingly, plaintiff's counsel resumed settlement negotiations with the attorney for the defendants, Larry Wikoff. Ultimately, plaintiff's attorney advised Mr. Wikoff that his client agreed to a settlement of $3,500. On February 10, 1987, plaintiff's counsel confirmed this in a letter to his client, enclosing a release to be signed by him. On February 13, 1987, when plaintiff's attorney had not yet received the release signed by his client, he filed a motion to reconsider the court's awarding summary judgment and scheduled it for a hearing on February 23, 1987. On February 16, 1987, plaintiff's attorney sent a letter to his client informing him that he had filed the motion to reconsider. On that same day, plaintiff's counsel received a telephone call from Reverend Smith, a friend of plaintiff, of whom plaintiff had previously informed the attorney. Reverend Smith desired information in behalf of plaintiff concerning the settlement and the background of the case, which plaintiff's counsel supplied. Reverend Smith indicated to the attorney that plaintiff expected to receive a larger portion of the settlement, but that he would relay the information to plaintiff. On February 17, 1987, plaintiff's counsel received an executed release signed by plaintiff and witnessed by Lavonne Essex. Plaintiff's attorney dated the release based upon the accompanying postmark of February 16, 1987, and on February 19, 1987, he delivered the executed release to Mr. Wikoff. Later that same day, plaintiff's attorney received a telephone call from his client, who said that he had thought he would be receiving a net amount of $2,500 if the case was settled for $3,500. Plaintiff's attorney promptly advised Mr. Wikoff of problems with the release, and they agreed to reset the hearing on the motion for reconsideration for March 9, 1987.

At the hearing on plaintiff's motion to reconsider on March 9, 1987, defendants brought the signed release to the court's attention. Judge Bieschke heard testimony from plaintiff, and pursuant to leave of court, both attorneys filed affidavits relating to the circumstances surrounding the execution and delivery of the release.

After Judge Bieschke held a hearing on March 30, 1987, regarding the issues presented by the release and by plaintiff's motion for reconsideration, he held that fundamental equities required that the release be set aside and predicated the ruling on his opportunity to hear and observe the plaintiff first hand and on plaintiff's inability to comprehend adequately the nature of the matter before the court.

The court then dictated an opinion from the bench granting plaintiff's motion for reconsideration and instructed counsel to agree upon a trial date. Trial began on June 1, 1987, and resulted in a jury verdict and judgment in favor of the plaintiff in the sum of $25,000. Defendant's post-trial motion was ...


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