{ "id": 3570955, "name": "THE CITY OF CHICAGO, Plaintiff, v. JOHN A. DICKEY et al., Defendants (Cosmopolitan National Bank of Chicago, as Trustee of the marital trust under the will of Nathan Weitzman, Deceased, Defendant and Counterplaintiff-Appellant; John A. Dickey et al., Defendants and Counterdefendants-Appellees)", "name_abbreviation": "City of Chicago v. Dickey", "decision_date": "1986-08-12", "docket_number": "No. 85\u20142610", "first_page": "734", "last_page": "739", "citations": [ { "type": "official", "cite": "146 Ill. App. 3d 734" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "456 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 195", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629985 ], "weight": 2, "pin_cites": [ { "page": "208" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0195-01" ] }, { "cite": "474 N.E.2d 376", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 167", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493517 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0167-01" ] }, { "cite": "405 N.E.2d 1051", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3206302 ], "weight": 2, "pin_cites": [ { "page": "798" }, { "page": "798-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0791-01" ] }, { "cite": "462 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 226", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677218 ], "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0226-01" ] }, { "cite": "392 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268766 ], "year": 1984, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0089-01" ] }, { "cite": "457 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593062 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0138-01" ] }, { "cite": "466 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598809 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "423" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0419-01" ] }, { "cite": "240 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 146", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323744 ], "pin_cites": [ { "page": "149-50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0146-01" ] }, { "cite": "344 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2633940 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0433-01" ] } ], "analysis": { "cardinality": 663, "char_count": 13064, "ocr_confidence": 0.769, "pagerank": { "raw": 1.2092026499124566e-07, "percentile": 0.5955246811686704 }, "sha256": "8be07837e40be244b671053ab2362598ab3ce4e8b4b9940582c91b6196426fa9", "simhash": "1:ee757f3d3faf5610", "word_count": 2086 }, "last_updated": "2023-07-14T14:35:17.515999+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITY OF CHICAGO, Plaintiff, v. JOHN A. DICKEY et al., Defendants (Cosmopolitan National Bank of Chicago, as Trustee of the marital trust under the will of Nathan Weitzman, Deceased, Defendant and Counterplaintiff-Appellant; John A. Dickey et al., Defendants and Counterdefendants-Appellees)." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nThe instant case addresses the propriety of the circuit court\u2019s decision to grant John and Dorothy Dickey, appellees, summary judgment on the question of whether they were personally liable on a note they signed as co-makers, which note was secured by a trust deed encumbering certain parcels of real estate. The note was held by appellant, Cosmopolitan National Bank of Chicago.\nThe properties which are the subject of the instant case are 905-13 East 61st Street and 6101-03 South Drexel, both of Chicago (hereinafter referred to as the properties), and both of which were initially owned by Nathan Weitzman, as the sole beneficiary of a land trust executed on January 11, 1974. Exchange National Bank of Chicago was the land trustee holding title to the properties; Exchange was succeeded in that capacity during the course of this litigation by La Salle National Bank.\nOn January 14, 1977, appellees entered into a contract with Weitzman, whereby they would purchase the properties from him for $80,000, with the sale to close on April 25, 1977. In the interval between the execution of the contract and the closing, Weitzman passed away. The closing proceeded, however, with Weitzman\u2019s estate transferring the properties and taking back a note for $55,000, which note, as has been already indicated, was secured by a trust deed on the properties. Exchange National Bank was the maker of that note, and appellees were denominated \u201cco-makers\u201d of the note. Weitzman\u2019s estate was later closed, and the note secured by the trust deed was distributed to Cosmopolitan, appellant herein, as marital trustee under Weitzman\u2019s will.\nAppellees signed both the note and the trust deed as co-makers, that term having been inserted on the printed form in place of the term \u201cguarantor.\u201d Both documents contained the following clause, also typewritten onto the printed form:\n\u201cThe undersigned, as co-makers hereof, hereby agree to be bound by the terms and conditions herein set forth.\u201d\nElsewhere on the form, Exchange National Bank, as maker of the note, had explicitly limited its liability under the note as follows:\n\u201c[N]othing herein or in said note contained shall be construed as creating any liability on [Exchange] personally to pay the said note or any interest that may accrue thereon, or any indebtedness accruing hereunder, *** the owner or owners of any indebtedness accruing hereunder shall look solely to the premises hereby conveyed for the payment thereof ***.\u201d\nThe city of Chicago precipitated the instant proceedings when, on January 22, 1980, it filed a complaint alleging municipal code violations against the properties. Named as defendants in that action were, inter alia, appellees and Weitzman\u2019s estate. Appellant moved to dismiss Weitzman\u2019s estate and to substitute for it as marital trustee under the will, which motion was granted.\nAppellant eventually filed a third-party complaint for foreclosure of the trust deed and for a finding of appellees\u2019 personal liability for any deficiency arising from the foreclosure. Appellees, in their answer, specifically denied the assumption of any personal liability on the note. Rather, appellees noted that Exchange National Bank, the land trustee and maker of the note, had clearly limited the extent of its liability to payments out of the properties only; as co-makers along with Exchange, appellees asserted a parallel limitation on their own liability.\nBoth parties filed what were, in substance though not technically in form, motions for summary judgment. After hearing arguments on April 8, 1985, the circuit court granted appellees\u2019 request for a finding that they were not personally liable on the note. In all other respects, the court granted appeUant\u2019s motion for summary judgment. In reaching this decision, the court relied on the allegation that appellant drafted the instruments at issue and that any ambiguity would have to be resolved against them. The court found that the instruments were ambiguous as to personal liability, and ruled accordingly.\nOn August 2, 1985, the circuit court reaffirmed its decision when it denied appellant\u2019s motion for rehearing of its earlier ruling. Appellant thereafter perfected this appeal, challenging the propriety of the court\u2019s finding that appellees were not personally liable.\nThree issues are raised on appeal, specifically: whether there were still genuine issues of material fact extant when the circuit court granted appellees summary judgment, such as to preclude the award of that remedy; if there were no such issues present, whether the circuit court erred in ruling in favor of appellees rather than appellant on the issue of personal liability; and finally, whether the court abused its discretion when it denied appellant\u2019s request for rehearing of the issue. All three questions are closely interwoven as all turn on the predominant issue: What did the contracting parties intend when they made appellees \u201cco-makers\u201d of the note? It is appellant\u2019s contention that the parties clearly manifested their intent to make the appellees personally liable for any deficiency arising on the note and trust deed. As indicated, appellees posit that as co-makers, their liability was co-extensive with that of the maker, Exchange; that is to say, appellees claim that their liability extends no further than the value of properties themselves.\nThe narrow question posed by this case is whether there were still issues of material fact unresolved when the court truncated the cause by granting summary judgment. We conclude that there were such questions present at that juncture, and remand the cause for further proceedings.\nResolution of the case requires an appreciation of both the office of summary judgment and of basic precepts of contract construction. The remedy of summary judgment has been labelled \u201cdrastic\u201d in nature (Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 344 N.E.2d 29), and hence courts are admonished to employ it with due caution (Ruby v. Wayman (1960), 99 Ill. App. 2d 146, 149-50, 240 N.E.2d 699). The function of this procedure is not to try cases, but to isolate those cases which do not present triable factual issues but only legal questions. (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271; Bultman v. Bishop (1983), 120 Ill. App. 3d 138, 457 N.E.2d 994.) In such cases, there is no need to present evidence to a trier of fact; rather, the court as trier of law may summarily dispose of the legal questions involved. However, so as not to deprive the non-moving party of any rights incident to trial, the court is required to construe all evidence strictly against the movant and liberally in favor of the opponent. (Shockley v. Ryder Truck Rental (1979), 74 Ill. App. 3d 89, 93-94, 392 N.E.2d 675.) It is only when the movant demonstrates that his entitlement to judgment as a matter of law is free from doubt that a case should be so decided. Elliot v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640.\nIn the instant case, we are constrained to find that the circuit court erred in granting appellees summary judgment on the question of their personal liability, thereby depriving appellant of an evidentiary hearing to which it was entitled.\nAt the summary judgment hearing, the following colloquy took place:\n\u201cTHE COURT: What\u2019s the co-maker [the Dickeys] liable for?\n[APPELLANT\u2019S TRIAL COUNSEL]: He is liable personally to the extent he is the, personally liable for monies that are due in\u2014\nTHE COURT: Most respectfully, counsel; you people drew the instrument. If you intended to hold them personally liable you have got to show that they \u2014 spell it out explicitly that they will be personally liable. It\u2019s ambiguous. I\u2019m going to construe it against you.\nI\u2019m going to rule that you cannot get a deficiency against the Dickeys based upon the way the note is written.\u201d\nIn essence, the circuit court acknowledged that it could not divine the contracting parties\u2019 intent from reference to the terms of the instrument itself. The court then turned to the common law doctrine of contra proferentem in an effort to resolve the intent dispute (see Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 798, 405 N.E.2d 1051), and thereby elected to construe the latent ambiguity against appellant as the party purportedly responsible for introducing the ambiguity. This analysis was premature from the standpoint of contract construction and antithetical to the office of summary judgment.\nWhile the construction to be given the terms of a contract presents a question of law in the first instance (Wil-Shore Motor Sales, Inc. v. Continental Illinois Bank (1984), 130 Ill. App. 3d 167, 171, 474 N.E.2d 376), where the terms of the contract are ambiguous factual questions are presented (National Tea Co. v. Commerce & Industry Insurance Co. (1983), 119 Ill. App. 3d 195, 208, 456 N.E.2d 206).\n\u201cWhen an agreement contains material terms capable of being understood in more than one sense and pleadings and affidavits conflict as to their meaning or are insufficient as bases upon which to determine their meaning as a matter of law, the circuit court must resort to an evidentiary hearing, rather than summary judgment proceedings, so that the parties may present their respective positions at trial as to the true intent and agreement they have executed.\u201d (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 424, 466 N.E.2d 1271.)\nHere, the circuit court explicitly found that the instrument was ambiguous on the question of the parties\u2019 intent. This finding necessitated resort, not to the doctrine of contra proferentem or the summary-judgment mechanism, but to an evidentiary hearing on the parties\u2019 intent.\nThe reluctance of courts to rely upon the doctrine as a first resort is simply a recognition of the nature of the doctrine and its limitations. While the doctrine invariably produces a result binding as between the parties, that result is not premised upon any affirmative proof of the parties\u2019 understanding when they consummated the agreement. Rather, the result hinges on the presumption, made in the absence of proof, that had the drafter intended a particular construction, he would have incorporated it in the agreement, and his failure to do so should not inure to his benefit. Clearly, this conjecture is inferior to an unambiguous assertion of the parties\u2019 understanding in the instrument itself, to extrinsic proof of the parties\u2019 agreement, or to other authority revealing that understanding.\n\u201c[Contra proferentem] is \u2018at best *** a secondary rule of interpretation, a \u201clast resort\u201d which may be invoked after all of the ordinary interpretive guides have been exhausted.\u2019 [Citations.] In the instant case, we believe our efforts to ascertain the intent of the parties by means of extrinsic evidence has yielded a convincing result and, accordingly, [we] have no need to utilize this \u2018last resort\u2019 rule of construction.\u201d Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 798-99, 405 N.E.2d 1051. Accord, National Tea Co. v. Commerce & Industry Insurance Co. (1983), 119 Ill. App. 3d 195, 209, 456 N.E.2d 206.\nAs a matter of contract construction, the court erred in applying the doctrine without first permitting the parties an opportunity to present extrinsic evidence bearing on the ambiguity latent in the instrument.\nMoreover, the court\u2019s finding of ambiguity was tantamount to an admission that a genuine issue of material fact was present. There could be no fact more material to an assessment of appellees\u2019 personal liability than the intent of the contracting parties as to that matter. In light of a finding of ambiguity, summary judgment was per se inappropriate, particularly in light of the court\u2019s failure to accord the parties an evidentiary hearing on the matter.\nFinally, we note that a summary judgment motion requires that the court construe all evidence strictly against the moving party. Here, the Dickeys were employing that mechanism to terminate their personal liability under the note. The court, rather than construing the note against the Dickeys as movants, elected to construe the note against appellant, the motion\u2019s opponent. This decision was manifestly incorrect.\nAccordingly, the circuit court\u2019s decision to grant appellees summary judgment on the issue of their personal liability is reversed, and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nSTAMOS and HARTMAN, JJ., concur.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Reif & Rosenbaum, of Chicago (Mark R. Rosenbaum, of counsel), for appellant.", "Benjamin C. Duster, of Chicago, for appellees." ], "corrections": "", "head_matter": "THE CITY OF CHICAGO, Plaintiff, v. JOHN A. DICKEY et al., Defendants (Cosmopolitan National Bank of Chicago, as Trustee of the marital trust under the will of Nathan Weitzman, Deceased, Defendant and Counterplaintiff-Appellant; John A. Dickey et al., Defendants and Counterdefendants-Appellees).\nFirst District (2nd Division)\nNo. 85\u20142610\nOpinion filed August 12,1986.\nReif & Rosenbaum, of Chicago (Mark R. Rosenbaum, of counsel), for appellant.\nBenjamin C. Duster, of Chicago, for appellees." }, "file_name": "0734-01", "first_page_order": 756, "last_page_order": 761 }