{ "id": 5594546, "name": "MARIE A. PILAT, Plaintiff-Appellant, v. THOMAS F. LOIZZO, Defendant-Appellee", "name_abbreviation": "Pilat v. Loizzo", "decision_date": "2005-09-21", "docket_number": "No. 2\u201405\u20140080", "first_page": "1062", "last_page": "1065", "citations": [ { "type": "official", "cite": "359 Ill. App. 3d 1062" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "357 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136611 ], "year": 2005, "pin_cites": [ { "page": "453", "parenthetical": "\"the trial court gave plaintiffs three chances to plead a viable cause of action ***, which we consider ample opportunity\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0435-01" ] }, { "cite": "356 Ill. App. 3d 300", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3748824 ], "year": 2005, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0300-01" ] }, { "cite": "149 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461640 ], "year": 1986, "pin_cites": [ { "page": "213", "parenthetical": "\"incapacity to contract *** is a defense to [a] breach of contract action\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0193-01" ] }, { "cite": "356 Ill. App. 3d 590", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3750064 ], "year": 2005, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0590-01" ] }, { "cite": "329 Ill. App. 3d 271", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472326 ], "year": 2002, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0271-01" ] }, { "cite": "308 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261301 ], "year": 1999, "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0220-01" ] }, { "cite": "318 Ill. App. 3d 552", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279543 ], "year": 2001, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0552-01" ] }, { "cite": "315 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980731 ], "year": 2000, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0522-01" ] }, { "cite": "109 Ill. App. 3d 824", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5449983 ], "year": 1982, "pin_cites": [ { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0824-01" ] } ], "analysis": { "cardinality": 392, "char_count": 5597, "ocr_confidence": 0.786, "pagerank": { "raw": 5.4627839988701474e-08, "percentile": 0.3429381404089582 }, "sha256": "c4129b988b51836f6260175a42cb52a32c904d0c58b8e5c7a31a3b6b3dc06eb2", "simhash": "1:6a38a70149c1b5f5", "word_count": 916 }, "last_updated": "2023-07-14T16:05:25.227457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARIE A. PILAT, Plaintiff-Appellant, v. THOMAS F. LOIZZO, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nPlaintiff, Marie A. Pilat, appeals the trial court\u2019s dismissal of her third amended complaint against defendant, Thomas E Loizzo. She contends that the court erred in (1) ruling that the third amended complaint failed to state a claim of breach of contract; and (2) dismissing that complaint with prejudice. However, her contentions are waived and, in any event, without merit. Thus, we affirm.\nUnfortunately, plaintiffs waiver is a result of an astonishing lack of effort by her attorney. It is well settled that this court is not \u201ca depository in which the appealing party may dump the burden of argument.\u201d Pecora v. Szabo, 109 Ill. App. 3d 824, 826 (1982). Rather, the appellant must argue the points that he or she raises, or they are waived. 210 Ill. 2d R. 341(e)(7). A mere conclusory assertion, without supporting analysis, is not enough. Chicago School Reform Board of Trustees v. Illinois Educational Labor Relations Board, 315 Ill. App. 3d 522, 532 (2000).\nHere, plaintiffs attorney has submitted a brief devoid of argument. To support his assertion that the third amended complaint stated a claim of breach of contract, he begins by setting out the necessary elements of the claim. Then, however, he simply concludes: \u201cIn the matter at hand, the Third Amended Complaint contained sufficient allegations to carry the burden required.\u201d He leaves it to us to determine how.\nNext, to support his assertion that the trial court erred in dismissing the third amended complaint with prejudice, counsel begins with three statements of the law, which are nearly alike, that pertain to dismissals. Then, purporting to apply that law to the present case, he submits only this: \u201cWhile it remains Plaintiffs position that the Third Amended Complaint stated a cause of action for breach of contract, Plaintiff could have, in the alternative, based upon the facts presented, plead [sic] unjust enrichment or accounting, an action seeking rescisi\u00f3n [sic] of the contract and restitution of money paid.\u201d He does not see fit to explain why any of these claims would have been valid, or why the trial court should have given him a fifth opportunity to raise them.\nIn sum, beyond its general statements of law, the substance of plaintiffs brief consists of two conclusory sentences. We are at a loss as to how counsel could think that this effort would persuade us to reverse the trial court\u2019s judgment. He has obviously waived his contentions, but he has done more than that. He has performed a disservice to plaintiff.\nOur common practice is to admonish attorneys for their conduct but to nevertheless address the merits of their appeals. See, e.g., Stewart v. Jones, 318 Ill. App. 3d 552, 557 (2001); Cincinnati Insurance Co. v. Guccione, 308 Ill. App. 3d 220, 223 (1999). It is important, however, that they understand precisely why we do this. We do so not to relieve them of their deficiency, and certainly not to encourage them to repeat it. Instead, we do so simply to minimize the degree to which their conduct prejudices their clients. Plaintiff is not directly responsible for her attorney\u2019s actions. Thus, to the extent possible, she should have her day in this court, even though her counsel has done virtually nothing to obtain it. For that reason alone, we will briefly address the merits of plaintiffs contentions.\nUnfortunately for plaintiff, those contentions are without merit. She first asserts that the third amended complaint stated a claim of breach of contract. Our review is de novo. Hoopingarner v. Stenzel, 329 Ill. App. 3d 271, 277 (2002). As her brief notes, the first element of a claim of breach of contract is the existence of a valid and enforceable contract. Zirp-Burnham, LLC v. E. Terrell Associates, Inc., 356 Ill. App. 3d 590, 600 (2005). However, in the third amended complaint, plaintiffs appellate counsel, who was also trial counsel, alleged that defendant \u201cwas incapable of entering into a contract with Plaintiff.\u201d Thus, instead of alleging a valid and enforceable contract, plaintiffs attorney alleged just the opposite. See Local 165, International Brotherhood of Electrical Workers, AFL-CIO v. Bradley, 149 Ill. App. 3d 193, 213 (1986) (\u201cincapacity to contract *** is a defense to [a] breach of contract action\u201d). As a result, the trial court properly determined that the third amended complaint failed to state a claim of breach of contract.\nPlaintiff next contends that the trial court erred in dismissing the third amended complaint with prejudice. We will not disturb the court\u2019s ruling unless the court abused its discretion. Hull v. Southern Illinois Hospital Services, 356 Ill. App. 3d 300, 305 (2005). After dismissing the second amended complaint, the court told counsel that the third amended complaint (the fourth overall) would be his \u201cfinal opportunity.\u201d If he had alternative claims to raise, he should have raised them then. He failed to do so, and we cannot say that the court abused its discretion in keeping its word. See Schiller v. Mitchell, 357 Ill. App. 3d 435, 453 (2005) (\u201cthe trial court gave plaintiffs three chances to plead a viable cause of action ***, which we consider ample opportunity\u201d).\nThe judgment of the circuit court of McHenry County is affirmed.\nAffirmed.\nO\u2019MALLEY, PJ., and CALLUM, J., concur.", "type": "majority", "author": "JUSTICE KAPALA" } ], "attorneys": [ "Wesley R. Fribla, of Woodstock, for appellant.", "Thomas E Loizzo and Dane J. Loizzo, of Loizzo & Loizzo, of Woodstock, for appellee." ], "corrections": "", "head_matter": "MARIE A. PILAT, Plaintiff-Appellant, v. THOMAS F. LOIZZO, Defendant-Appellee.\nSecond District\nNo. 2\u201405\u20140080\nOpinion filed September 21, 2005.\nWesley R. Fribla, of Woodstock, for appellant.\nThomas E Loizzo and Dane J. Loizzo, of Loizzo & Loizzo, of Woodstock, for appellee." }, "file_name": "1062-01", "first_page_order": 1080, "last_page_order": 1083 }