{ "id": 2484434, "name": "ELZA GROVE et al., Plaintiffs-Appellants, v. STANLEY WINTER et al., Defendants-Appellees", "name_abbreviation": "Grove v. Winter", "decision_date": "1990-04-26", "docket_number": "No. 5\u201488\u20140069", "first_page": "406", "last_page": "414", "citations": [ { "type": "official", "cite": "197 Ill. App. 3d 406" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "452 N.E.2d 1361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 284", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481676 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0284-01" ] }, { "cite": "538 N.E.2d 898", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 1037", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620236 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/1037-01" ] }, { "cite": "420 N.E.2d 567", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3117051 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0818-01" ] }, { "cite": "529 N.E.2d 1138", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3553707 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0607-01" ] }, { "cite": "203 P.2d 80", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "opinion_index": 0 }, { "cite": "90 Cal. App. 2d 486", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2272520 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/cal-app-2d/90/0486-01" ] }, { "cite": "405 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202359 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0512-01" ] }, { "cite": "481 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637666 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/1020-01" ] }, { "cite": "4 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "364 Ill. 467", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587786 ], "opinion_index": 0, "case_paths": [ "/ill/364/0467-01" ] } ], "analysis": { "cardinality": 684, "char_count": 16139, "ocr_confidence": 0.74, "pagerank": { "raw": 8.15038600084883e-08, "percentile": 0.4745446549200359 }, "sha256": "816e00638d873d881eb8e6aeff813a04bc014cc4eb11c7d2de642dd66d497971", "simhash": "1:5d257efaaecaff11", "word_count": 2580 }, "last_updated": "2023-07-14T17:08:36.740176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELZA GROVE et al., Plaintiffs-Appellants, v. STANLEY WINTER et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nPlaintiffs, Elza and Rosemarie Grove, own 60 acres of land in Shelby County, Illinois. Plaintiffs entered into a lease mining agreement with defendants, Stanley and Virgil Winter, giving defendants the right to mine and remove limestone from plaintiffs\u2019 land for 30 years, in return for a royalty for the limestone mined. During the mining operation, defendants removed overburden from plaintiffs' land and used it for defendants\u2019 benefit.\nPlaintiffs filed suit against defendants for breach of contract seeking damages for conversion of overburden and for failure to pay royalties for the limestone mined. Both defendants and plaintiffs moved for summary judgment as to: (1) the right of defendants to remove, and their duty to restore, the overburden; and (2) the effect of certain language which defendants placed on the back of the royalty checks. The circuit court of Shelby County denied plaintiffs\u2019 motion for summary judgment and granted summary judgment for defendants. Plaintiffs appeal. We affirm in part, reverse in part and remand.\nI.\nUSE OF OVERBURDEN AND DUTY TO RESTORE PLAINTIFFS\u2019 LAND\nA.\nUSE OF OVERBURDEN\nParagraph one of the lease mining agreement states:\n\u201cThe excavation, digging, removing and processing of said limestone rock by [defendants] shall be at their sole expense and said work shall be done in a workmanlike manner and insofar as possible the overburden or soil resting on top of said rock shall be replaced upon the area from which the same is removed after the operation is finished, all in accordance with State and Federal regulations.\u201d (Emphasis added.)\nPlaintiffs argue that when defendants removed the overburden from plaintiffs\u2019 land and used it for defendants\u2019 own benefit, defendants breached the express terms of the lease mining agreement. Plaintiffs conclude that defendants\u2019 actions constitute a conversion.\nHere, it is uncontroverted that defendants removed overburden from plaintiffs\u2019 land and used it for defendants\u2019 own benefit. The record establishes that defendant Stanley Winter gave away several tons of plaintiffs\u2019 overburden and applied it to another person\u2019s driveway. While Stanley and Virgil Winter stated in their affidavits that they intended to return the overburden to plaintiffs\u2019 land at the end of the 30-year lease, Elza Grove\u2019s counteraffidavit stated that Stanley had told Elza that Stanley never intended to return the removed overburden. Further, in its order, the circuit court stated \u201cdefendants in their mining operation have removed the overburden from plaintiffs[\u2019] lands and intermingled it with other lands.\u201d\nIn its order, the circuit court stated that \u201c[n]o provision of that [mining] agreement specifically prohibits defendants from removing such overburden from the premises during mining operations under the lease term of 30 years.\u201d Thus, the circuit court concluded that the absence of such a provision from the mining lease showed an intention of parties to permit the removal and use of the overburden by defendants. We find, however, that because the lease did not give defendants the right to remove and use the overburden from plaintiffs\u2019 land, such absence is evidence of plaintiffs\u2019 intention to exclude that right to defendants. See, e.g., Domeyer v. O\u2019Connell (1936), 364 Ill. 467, 4 N.E.2d 830.\nFurther, we find as error the circuit court\u2019s ruling that the lease mining agreement did not require defendants to replace the identical overburden removed, but instead, allowed for the substitution of other soil. The court said:\n\u201cThus, if there is a conversion at the time defendants\u2019 duty to replace it [overburden] arises, the initial inquiry necessarily will be whether it is commercially feasible to put the identical dirt back. If not, then plaintiffs may be entitled to a reclamation with soil of a type of equal or greater productivity than that removed ***.\u201d\nPlaintiffs assert that the circuit court\u2019s ruling is erroneous and that plaintiffs did specifically contract for the replacement of the same overburden as was removed from their land by defendants. We agree.\nThe language contained in paragraph one of the mining agreement stating \u201cand insofar as possible the overburden or soil resting on top of said rock shall be replaced upon the area from which the same is removed\u201d does not seem to allow for the casual discard of that specific overburden in whatever manner defendants see fit, so long as they find some other suitable overburden to use for the reclamation of plaintiffs\u2019 land in 30 years.\nWhen construing a contract, the determinative factor is to ascertain the intention of the contracting parties, and where the terms of the contract are plain and unambiguous, the intent of the parties must be ascertained solely from the words employed in the contract. (Puckett v. Oelze (1985), 134 Ill. App. 3d 1020, 481 N.E.2d 867.) If the language of the contract makes the meaning of the contract clear and unambiguous, the court has no necessity to resort to rules of construction to assist it. (Fox v. Inter-State Assurance Co. (1980), 84 Ill. App. 3d 512, 405 N.E.2d 873.) In the case at bar, we think that the language of the lease mining agreement, as it pertains to what soil should be used to restore plaintiffs\u2019 land, is clear and unambiguous. Therefore, we hold that the circuit court was incorrect in finding that defendants would not be required to put back the same overburden which they removed from plaintiffs\u2019 land \u201cinsofar as possible\u201d pursuant to the lease mining agreement.\nThere may be evidence adduced at trial that the removing of plaintiffs\u2019 overburden and its use for defendants\u2019 benefit is not enough, in this instance, to constitute conversion. The circuit court suggested as much when it stated, \u201c[t]here is a controverted material issue of fact whether plaintiffs, after execution of the agreement, orally consented to defendants^] removal of the overburden from the plaintiffs\u2019 lands and, if so, the extent of that consent.\u201d Clearly, the totality of the circumstances is sufficient to allow a jury to infer that defendants may have converted the overburden of which they have already disposed. Therefore, whether defendants have wrongly converted plaintiffs\u2019 overburden is a genuine issue of material fact and summary judgment for defendants was not proper.\nB.\nDATE TO RESTORE OVERBURDEN\nAs stated previously, the lease mining agreement provided that \u201cthe overburden *** shall be replaced upon the area from which the same is removed after the operation is finished, all in accordance with State and Federal regulations.\u201d In its order, the circuit court stated that \u201cas a matter of law, *** no reclamation is required by the agreement in issue or the statute until the effective cessation of defendants\u2019 mining operation or the end of the lease, whichever first occurs.\u201d Thus, the court held that no conversion by defendants could occur until that time. We find this ruling erroneous for two reasons.\nFirst, we hold that plaintiffs can assert a breach of contract against defendants for defendants\u2019 failure to comply with the Illinois Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1985, ch. 96V2, par. 4501 et seq.). Second, we hold that there is a genuine issue of material fact as to the definition of the term \u201coperation\u201d as contained in the lease agreement.\nAt the time the mining agreement was entered into, the Illinois Surface-Mined Land Conservation and Reclamation Act (hereinafter the Act) provided in part:\n\u201cAll grading provided for hereunder shall proceed in conjunction with surface mining and shall be carried to completion by the operator prior to the expiration of 11 months after June 30 of the fiscal year in which the mining occurred. All other reclamation *** shall be carried to completion by the operator prior to the expiration of S years after June 30 of the fiscal year in which the mining occurred ***.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 961/2, par. 4507(k).\nBesides requiring that reclamation be completed within three years, the Act further requires defendants to file an annual application for a permit for their mining operation. Defendants\u2019 application must include a precise description of the lands to be mined along with a specific reclamation plan. The Act gives the Department of Mines and Minerals the right to inspect the operation and requires the posting of a bond to assure completion of the reclamation plan. (Ill. Rev. Stat. 1985, ch. 961/2, par. 4501 et seq.) Defendants have always followed this procedure, and the Department of Mines and Minerals has always issued permits to defendants for this mining operation. Defendants assert that the State of Illinois has been fully cognizant of the fact that for the past 13 years, defendants have failed to reclaim any portion of plaintiffs\u2019 land.\nThe circuit court stated in its order, and defendants argue on appeal, that because the State has not asserted a violation of any of its regulations during the past 13 years, plaintiffs cannot assert a breach of those regulations either. We disagree.\nThe language contained in paragraph one of the lease mining agreement expressly states that defendants\u2019 conduct will conform to State and Federal law. Specifically, paragraph one incorporates the provisions of the Illinois Surface-Mined Land Conservation and Reclamation Act. Therefore, we hold that plaintiffs can assert a breach of contract against defendants for defendants\u2019 failure to comply with the Act regardless of the activity or inactivity of the government.\nAlso, the circuit court relied on Berry v. Kelly (1949), 90 Cal. App. 2d 486, 203 P.2d 80, to support its holding that the lease mining agreement did not require restoration of plaintiffs\u2019 land until either defendants stopped mining the land or the 30-year lease expired. Berry, however, is easily distinguishable.\nIn Berry, defendants possessed an oil and gas lease on plaintiffs\u2019 land. The lease required defendants to fill all sump holes and other excavations and to clean up plaintiffs\u2019 property \u201cafter the termination of the lease.\u201d While the lease was still in effect, plaintiffs brought an action against defendants for damages due to defendants\u2019 failure to fill in some holes. Because defendants\u2019 duty to fill in and clean up plaintiffs\u2019 land did not arise until after the termination of the lease, the District Court for the Fourth District of California entered judgment for defendants. Berry v. Kelly (1949), 90 Cal. App. 2d 486, 203 P.2d 80.\nHere, the lease mining agreement did not contain a clause so clear as \u201cafter the termination of the lease.\u201d Instead, the agreement required restoration of plaintiffs\u2019 land \u201cafter the operation is finished.\u201d Plaintiffs argue that \u201cafter the operation is finished\u201d refers to and modifies the preceding clause \u201cupon the area from which the same is removed.\u201d Defendants argue, however, that \u201cthe operation\u201d refers to the entire mining operation, which will not conclude for 30 years.\nWe find that the term \u201coperation,\u201d as it appears in the lease mining agreement, is ambiguous. Therefore, whether \u201coperation\u201d refers to the individual segments of land being mined or to the entire 30-year mining project is a genuine issue of material fact. Evidence of prior course of dealing and of usage of trade, not present in the record before us, appears necessary for such a determination. (See Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 529 N.E.2d 1138.) Thus, summary judgment as to defendants\u2019 duty to restore plaintiffs\u2019 land was improper.\nFor the above-mentioned reasons, we find that the circuit court erred in granting summary judgment for defendants as to defendants\u2019 use of the overburden and duty to reclaim plaintiffs\u2019 land. Because there are genuine issues of material fact as to these questions, we hold that the court properly denied plaintiffs\u2019 summary judgment motion in that respect. Accordingly, we reverse the decision of the circuit court granting defendants\u2019 motion for summary judgment, and affirm the decision of the circuit court denying plaintiffs\u2019 motion for summary judgment on that issue.\nII.\nLANGUAGE OF ROYALTY CHECKS\nPursuant to the lease mining agreement, plaintiffs received monthly royalty checks from defendants. Plaintiffs assert that when they received and cashed the checks, they believed that they were getting the total amount that was due to them under the terms of the agreement. It was not until a surveyor surveyed plaintiffs\u2019 land and determined the actual tonnage of limestone mined that plaintiffs became aware that there might be some disagreement as to the amount of limestone mined and royalties owed.\nDuring much of the mining operation, the monthly royalty checks carried the following language:\n\u201cEndorsement of this check acknowledged as payment in full of royalties due to the date__\u201d\nDefendants assert that by accepting checks with this language, plaintiffs entered into an accord and satisfaction which bars plaintiffs\u2019 claims for any additional compensation. Both plaintiffs and defendants moved for summary judgment as to whether the restrictive language created an accord and satisfaction. The circuit court denied plaintiffs\u2019 motion for summary judgment, granted defendants\u2019 motion for summary judgment, and held that the language amounted to an accord and satisfaction and a release of defendants as to all royalties paid to the date of the checks. We find these rulings erroneous.\nAn accord is an agreement or settlement of an existing dispute, controversy or demand which presupposes a disagreement as to the amount due. (Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) Satisfaction is the execution or carrying into effect of an accord. (Black\u2019s Law Dictionary, 1509 (4th ed. 1975).) To constitute an accord and satisfaction, the following elements must be present: (1) a bona fide dispute; (2) an unliquidated sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution. Sherman v. Rokacz (1989), 182 Ill. App. 3d 1037, 538 N.E.2d 898.\nHere, because the sums in question were liquidated, the circuit court erred in denying plaintiffs\u2019 motion for summary judgment.\nThe circuit court\u2019s order stated that \u201c[t]he parties agree there is no issue that the amounts in question are liquidated as opposed to unliquidated in character.\u201d The record supports the court\u2019s finding; the amount of each check in question was determined by multiplying the number of tons of limestone mined by 10 cents pursuant to the terms of the mining agreement. Defendants do not allege as error the circuit court\u2019s finding that the amounts in question were liquidated. Therefore, the \u201claw of the case\u201d doctrine binds the circuit court to the finding announced in its order that the sums in question were liquidated. (See Lake Bluff Heating & Air Conditioning Supply, Inc. v. Harris Trust & Savings Bank (1983), 117 Ill. App. 3d 284, 452 N.E.2d 1361.) Because the sums were liquidated, no accord and satisfaction could occur.\nBecause no accord and satisfaction could occur, we find that the circuit court erred in denying summary judgment for plaintiffs as to the effect of the language on the back of the royalty checks. Necessarily, we further find that the circuit court erred in granting summary judgment for defendants on the same issue.\nTherefore, the decision of the circuit court is affirmed in part, reversed in part and remanded.\nAffirmed in part; reversed in part and remanded.\nRARICK and CHAPMAN, JJ., concur.\nOverburden refers to all of the earth and other materials which lie above the limestone deposits and also refers to such earth and other materials which are disturbed from their natural state in the process of surface mining. Ill. Rev. Stat. 1985, ch. 96V2, par. 4503(b).", "type": "majority", "author": "JUSTICE HOWERTON" } ], "attorneys": [ "Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellants.", "James F. Jarrett, of Schniederjon, Weber & Jarrett, of Effingham, for appellees." ], "corrections": "", "head_matter": "ELZA GROVE et al., Plaintiffs-Appellants, v. STANLEY WINTER et al., Defendants-Appellees.\nFifth District\nNo. 5\u201488\u20140069\nOpinion filed April 26, 1990.\nThomas J. Logue, of Glenn & Logue, of Mattoon, for appellants.\nJames F. Jarrett, of Schniederjon, Weber & Jarrett, of Effingham, for appellees." }, "file_name": "0406-01", "first_page_order": 428, "last_page_order": 436 }