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Ertl v. City of De Kalb

Court of Appeals of Illinois, Second District

March 19, 2013

RUSSELL J. ERTL, Plaintiff-Appellee,
THE CITY OF De KALB, and THE BOARD OF POLICE AND FIRE COMMISSIONERS, Defendants-Appellants The Board of Trustees of the De Kalb Firefighters' Pension Fund, Defendant

Appeal from the Circuit Court of De Kalb County. No. 02-L-86. Honorable Kurt P. Klein, Judge, Presiding.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justice Birkett specially concurred, with opinion. Justice McLaren dissented, with opinion.



[¶1] This matter has been pending between the parties for many years. Plaintiff, Russell J. Ertl, was hired by the City of De Kalb as a firefighter in 1995 and terminated in 1996 without a hearing and without formal charges. On April 1, 1997, plaintiff filed the original case, seeking reinstatement and back wages based on breach of contract and the rules and regulations of the board of police and fire commissioners (Board). The trial court awarded plaintiff back pay and plaintiff appealed. We remanded, inter alia, with an order to reinstate plaintiff as a firefighter. Ertl v. City of De Kalb, 303 Ill.App.3d 524, 530, 708 N.E.2d 574, 236 Ill.Dec. 988 (1999) ( Ertl I ). On remand, plaintiff petitioned for a rule to show cause, asking for reinstatement. Instead of ruling on plaintiff's filing, the case proceeded to trial on count I for breach of contract, and the trial court thereafter awarded plaintiff damages on the breach-of-contract claim and allowed the award of back pay to stand. The trial court did not order that plaintiff be reinstated. Plaintiff appealed and the City cross-appealed. However, this court dismissed plaintiff's appeal after he failed to file a timely appellate brief. On May 8, 2002, this court rendered its decision on the City's cross-appeal and affirmed the judgment of the trial court. Ertl v. City of De Kalb, No. 2-01-0145 (2002) (unpublished order under Supreme Court Rule 23) ( Ertl II ).

[¶2] On August 26, 2002, plaintiff filed a second lawsuit, against the City, the Board, and the board of trustees of the De Kalb Firefighters' Pension Fund.[1] As in the original lawsuit, plaintiff sued the City and the Board (collectively, the City) for, inter alia, reinstatement and back wages. The City argued that principles of res judicata and laches precluded plaintiff from re-litigating this lawsuit. The trial court disagreed and, following a bench trial, awarded plaintiff damages, attorney fees, and prejudgment interest on plaintiff's breach-of-contract claim. The City argues on appeal that the trial court erred in finding that plaintiff's amended complaint was not barred by res judicata or laches. We agree with the City and reverse.


[¶4] Plaintiff was a firefighter for the City from October 10, 1995, to April 19, 1996, when he was terminated following his arrest for unlawful use of weapons (720 ILCS 5/24-1(a)(4) (West 1996)) and disorderly conduct (720 ILCS 5/26-1(a)(1) (West 1996)), and his failure to report for duty at the prescribed time the day after his arrest. Although notified of the termination and the reasons therefor, the Board did not conduct a hearing on plaintiff's termination. Ertl I, 303 Ill.App.3d at 526.

[¶5] Plaintiff filed his first suit seeking reinstatement and back wages, a three-count complaint, on April 1, 1997. After a stipulation of facts, plaintiff was awarded back pay of $1,928.31 on his allegation that the Board had violated its rules and regulations. Id. Plaintiff appealed the damages award and the trial court's dismissal of his breach-of-contract count. This court reversed in part, agreeing with plaintiff that " he should be reinstated until such time, if ever, that he is properly discharged," and remanded the cause:

" for the reinstatement of count I [breach of contract], plaintiff's reinstatement as a firefighter, the awarding of any additional damages that may be appropriate, and for further proceedings consistent with this opinion." (Emphasis added.) Id. at 530.

[¶6] On remand, plaintiff filed a petition for a rule to show cause why the City should not be held in contempt of court for failing to reinstate him as a firefighter. Although a hearing date was set, and the City was ordered to file a written response to the petition, no hearing was ever held. Instead, the remanded cause was set for a bench trial. During the bench trial, the following colloquy took place:

" THE COURT: As I read this [ Ertl I ] and read before I came out here again, I interpreted that I have no right to substitute my judgment for whether [plaintiff] was rightfully or wrongfully terminated. That's the judgment, as I interpret it, of the Board of Police and Fire commissioners of the City of De Kalb. I'm only looking for if they did it okay?
MS. ELY [City counsel]: So what you're saying is that we are trying today--for purposes of Count I, are we trying liability on Count I or are we just trying damages?
THE COURT: I can't--you have to tell me if he was--I do not know. I expected to hear today whether he was terminated, whether there was a notice given and a hearing held and whether he was terminated.
MS. ELY: Well--
THE COURT: I have a sinking feeling in my stomach that that never occurred; am I right?"

[¶7] At the bench trial conducted on remand, plaintiff testified that, after he was terminated, he accepted employment as a firefighter with the Pleasant View fire department on December 14, 1998. Plaintiff subsequently rejected an offer of employment from the Belvidere fire department because he was already employed with the Pleasant View fire department. Following the bench trial, the trial court determined that plaintiff was entitled to his lost salary and pension contributions for the period of time between his termination in April 1996 and subsequent employment in December 1998 with the Pleasant View fire department. The trial court awarded plaintiff damages of $79,108.72 on the breach-of-contract claim, which included $8,047.77 in pension contributions. The trial court's judgment order of January 5, 2001, did not address reinstatement.

[¶8] Both plaintiff and the City appealed, although plaintiff's appeal was later dismissed for failure to file an appellate brief. The City did not raise the issue of reinstatement in its appeal. Plaintiff filed with this court a petition for a rule to show cause, requesting that the City be held in contempt for failure to reinstate him; this petition was denied in September 2001. On October 12, 2001, the City paid plaintiff the judgment amount plus postjudgment interest.

[¶9] We affirmed the trial court's judgment on issues relating to evidence, back pay, and lost pension contributions. See Ertl II, No. 2-01-0145 (2002) (unpublished order under Supreme Court Rule 23). As a final matter, we noted that, because plaintiff's appeal had been dismissed, we lacked jurisdiction to consider his contention that the trial court should have awarded him additional damages for lost sick leave, vacation pay, and other fringe benefits. Id. at 9-10.

[¶10] On August 26, 2002, almost four months after this court's ruling in Ertl II, plaintiff filed the present, two-count complaint against the City, alleging breach of contract and violation of the Board's rules and regulations. The breach-of-contract claim sought the same remedies as the original suit in Ertl I, in which plaintiff sought reinstatement and back wages. Plaintiff also sought " additional damages since the January 5, 2001[,] judgment order." The City moved to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619(a) (West 2002)), raising the issues of res judicata and laches. The trial court denied the motion to dismiss in April 2003. Eventually, plaintiff filed an amended complaint, adding the board of trustees of the De Kalb Firefighters' Pension Fund as a defendant in count III for a violation of the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2010)), and adding a claim for mandamus (count IV) against all defendants, seeking reinstatement, credit for all creditable service, and back pay.

[¶11] In its opening statement at trial, the City addressed our opinion in Ertl I by noting " that there had been an appeal of the matter which reflected the plaintiff had not been properly terminated and ordered the City to reinstate him and, if it chose, to properly terminate him." Following trial, the trial court began its oral ruling as follows:

" This matter comes on for ruling today. I want to preface my remarks by letting me say this: Some think a judge can do whatever he wants to do. That's not true. Judges have to follow the law. When they don't, problems are amplified, not resolved and cases drag on costing everybody more[,] and emotional distress.
This is a very unconventional case. It's been to the Appellate Court three times. And I'm the second trial judge assigned during the past thirteen years that this case is pending. Over eleven years ago the Appellate Court ordered the plaintiff [sic] to reinstate Mr. Ertl with back benefits. To date that has not happened.
How can this happen? I don't know. I don't understand how a government body can ignore a mandate from the Appellate Court for over eleven years. This case appears to be driven by personalities and not by the rule of law. I understand that Mr. Ertl's personality is not appealing to most people. I understand that City administrators were offended by defendant's [ sic ] defiant, unremorseful, in-your-face attitude. However, none of these considerations trump the rule of law." (Emphasis added.)

[¶12] The trial court found in favor of plaintiff and against the City on the breach-of-contract claim (count I), awarding $170,540 in damages, almost $29,000 in attorney fees, and approximately $62,000 in prejudgment interest. The trial court dismissed counts II through IV as to all defendants. The trial court noted in its dismissal of count III that " [p]laintiff had not been fully reinstated" and that the issue raised therein was " not ripe for adjudication." As to the mandamus claim (count IV), the trial court's written order specifically provided that " the Appellate Court has previously ordered that [p]laintiff be fully reinstated by the [City]." When asked by plaintiff's counsel whether it was ordering plaintiff reinstated, the trial court responded, " I am not ordering him ...

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