                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court



                           Ertl v. City of De Kalb, 2013 IL App (2d) 110199




Appellate Court              RUSSELL J. ERTL, Plaintiff-Appellee, v. THE CITY OF DE KALB,
Caption                      and THE BOARD OF POLICE AND FIRE COMMISSIONERS,
                             Defendants-Appellants (The Board of Trustees of the De Kalb
                             Firefighters’ Pension Fund, Defendant).


District & No.               Second District
                             Docket No. 2-11-0199


Filed                        March 19, 2013
Rehearing denied             April 18, 2013


Held                         In protracted legal proceedings that started with a complaint seeking
(Note: This syllabus         plaintiff’s reinstatement to his position as a firefighter and back wages,
constitutes no part of       included an appeal from an award of back wages and a mandate by the
the opinion of the court     appellate court directing the trial court on remand to reinstate plaintiff,
but has been prepared        and resulted in the trial court allowing the award of back wages to stand
by the Reporter of           without ordering plaintiff reinstated, the trial court erred in failing to find
Decisions for the            that a second suit filed by plaintiff seeking reinstatement and back wages
convenience of the           was barred by res judicata, since the trial court, on remand from the first
reader.)
                             appeal, did not order plaintiff reinstated but, rather, simply let the initial
                             award of back wages stand, the appellate court affirmed that judgment,
                             and based on plaintiff’s forfeiture of his right to reinstatement by failing
                             to pursue that relief in the trial court or in an appeal, his second suit was
                             barred.


Decision Under               Appeal from the Circuit Court of De Kalb County, No. 02-L-86; the Hon.
Review                       Kurt P. Klein, Judge, presiding.


Judgment                     Reversed.
Counsel on                      Yvette A. Heintzelman and Benjamin E. Gehrt, both of Clark Baird
Appeal                          Smith LLP, of Rosemont, for appellants.

                                James T. Harrison and Kristen J. Farr, both of Harrison Law Offices,
                                P.C., of Woodstock, for appellee.


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




                                                   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 (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


                1
                    The board of trustees of the De Kalb Firefighters’ Pension Fund is not a party to the appeal.

                                                       -2-
     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.

¶3                                     I. BACKGROUND
¶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.

                                               -3-
       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

                                                   -4-
            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 reinstated. *** The Appellate Court ordered
       him reinstated. The Appellate Court doesn’t need me to say that they were right and he
       should be reinstated.”
¶ 13        The City filed a motion for reconsideration, which the trial court denied on February 1,
       2011. This timely appeal followed.

¶ 14                                         II. ANALYSIS
¶ 15                                          Res Judicata
¶ 16        The City first contends that plaintiff’s claims were barred by the doctrine of res judicata.
       According to the City, the trial court’s judgment of January 5, 2001 (on remand from this
       court’s judgment in Ertl I), and this court’s subsequent affirmance of that judgment in Ertl
       II, ended plaintiff’s litigation involving his termination from the fire department, and neither
       the trial court nor this court ordered that plaintiff be reinstated; all that was required was the
       execution of the judgment, which the City paid.
¶ 17        “Under the doctrine of res judicata, a final judgment on the merits rendered by a court
       of competent jurisdiction acts as a bar to a subsequent suit between the parties involving the
       same cause of action.” River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998).
       The bar extends to what was actually decided in the first action, as well as those matters that
       could have been decided in that suit. La Salle National Bank v. County Board of School
       Trustees, 61 Ill. 2d 524, 529 (1975). For the doctrine of res judicata to apply, the following
       three requirements must be satisfied: “(1) there was a final judgment on the merits rendered
       by a court of competent jurisdiction; (2) there is an identity of cause of action; and (3) there
       is an identity of parties or their privies.” Downing v. Chicago Transit Authority, 162 Ill. 2d
       70, 73-74 (1994). As res judicata involves a question of law, we will give this issue de novo
       review. City of Chicago v. St. John’s United Church of Christ, 404 Ill. App. 3d 505, 512
       (2010).
¶ 18        The parties do not dispute the first and third requirements. Rather, they take issue over
       whether an identity of cause of action exists. To determine whether an identity of cause of
       action exists (as to the breach-of-contract claims) such that res judicata applies, we apply the

                                                  -5-
       transactional analysis. See River Park, 184 Ill. 2d at 310-11. Under this analysis, we look to
       the facts that give rise to plaintiff’s right to relief; separate claims are considered the same
       cause of action for res judicata purposes if they arise from a single group of operative facts,
       regardless of whether they assert different theories of relief. Id.
¶ 19        The City contends that there is an identity of cause of action. Both the original complaint
       and the present complaint sound in breach of contract stemming from plaintiff’s termination
       of employment on April 19, 1996. Plaintiff asserts that there is no identity of cause of action.
       Plaintiff argues that Ertl I covered a different period of time than the current lawsuit because
       he now seeks to recover additional contract damages that he incurred after the January 5,
       2001, final judgment. Plaintiff notes that the present complaint alleges additional facts about
       plaintiff’s court-ordered reinstatement and the City’s noncompliance with that order, which
       caused different damages than those covered in the original suit and established the City’s
       intentional breach in the present suit because of its alleged “defiance of the Appellate Court’s
       reinstatement of the Plaintiff.” Plaintiff believes that, had the City reinstated him, as this
       court had ordered, the damages that he seeks herein would not have arisen.
¶ 20        The problem with plaintiff’s argument, however, is twofold. Initially, it rests on
       plaintiff’s, as well as the trial court’s, incorrect interpretation of this court’s mandate
       regarding plaintiff’s reinstatement. The second problem is plaintiff’s abandonment of his
       right to secure reinstatement.
¶ 21        “The mandate of a court of review is the transmittal of the judgment of that court to the
       circuit court, and revests the circuit court with jurisdiction.” PSL Realty Co. v. Granite
       Investment Co., 86 Ill. 2d 291, 304 (1981). Where the reviewing court’s directives are
       specific, the court to which a cause is remanded is under a positive duty to enter an order or
       decree in accordance with the directions contained in the mandate; precise and unambiguous
       directions in a mandate must be obeyed. Bond Drug Co. of Illinois v. Amoco Oil Co., 323 Ill.
       App. 3d 190, 196 (2001). “[I]t is not required that a reviewing court state specific directions
       in an order reversing a judgment and remanding a cause. In such a case, it is then the duty
       of the court to which the cause is remanded to examine the reviewing court’s opinion and to
       proceed in conformity with the views expressed in it. [Citations.] ‘[T]hen, of course, the
       content of the opinion is significant.’ PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d
       291, 308 (1981).” Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 353 (2002). If
       specific directions are not given, the trial court should examine the opinion to determine
       what further proceedings would be consistent with the opinion. Fleming v. Moswin, 2012 IL
       App (1st) 103475-B, ¶ 28. Any other order issued by the trial court is outside the scope of
       its authority and void for lack of jurisdiction. Id. When the trial court’s action on remand is
       inconsistent with the reviewing court’s mandate, it is subject to reversal on appeal. Keefe-
       Shea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 56 (2005). When a reviewing
       court reverses and remands a cause with a specific mandate, the only proper issue on a
       second appeal is whether the trial court’s order is in accord with the mandate. Quincy School
       District No. 172 v. Illinois Educational Labor Relations Board, 366 Ill. App. 3d 1205, 1210
       (2006).
¶ 22        The mandate in Ertl I stated:


                                                 -6-
            “BE IT REMEMBERED, that, to wit: On the 18th day of March, 1999, a Decision of the
            aforementioned Court was entered of record and in accordance with the views expressed
            in the attached Decision the judgment of the trial court is Reversed and Remanded with
            Directions.”
       The mandate itself did not contain specific directions; therefore, the trial court was required
       to examine the opinion to determine what further proceedings would be consistent with the
       opinion. See Fleming, 2012 IL App (1st) 103475-B, ¶ 28. Within the opinion, we stated that
       we agreed “with plaintiff that he should be reinstated until such time, if ever, that he is
       properly discharged”; and “[t]he judgment of the circuit court of De Kalb County is reversed
       in part, and the cause is remanded for *** plaintiff’s reinstatement as a firefighter ***.
       Reversed in part and remanded with directions.” Ertl I, 303 Ill. App. 3d at 530.
¶ 23        We have no difficulty interpreting this straightforward direction. In construing the
       language, matters that are implied may be considered embraced by the mandate. PSL Realty,
       86 Ill. 2d at 308. Although we agreed that plaintiff should be reinstated until such time, if
       ever, that he is properly discharged, at no time did we enter a self-enforcing order reinstating
       plaintiff as a firefighter or order the City to reinstate plaintiff. Rather, we remanded the case
       to the trial court to order plaintiff’s reinstatement as a firefighter and to hold further
       proceedings to determine whether any additional damages should be awarded. Ertl I, 303 Ill.
       App. 3d at 529. In fact, we repeated this order in Ertl II, when we stated that “this court
       remanded the case for reinstatement of count I, for plaintiff’s reinstatement as a firefighter,
       and for the award of any additional damages.” (Emphasis added.) Ertl II, slip op. at 1.
       Contrary to the dissent’s suggestion, we are not adding language not present in the opinion.
       In Ertl I, we remanded the case to the trial court for further action. We did not remand the
       case to the City for further action. Even plaintiff’s attorney acknowledged during oral
       argument that our order did not state that the City was to reinstate plaintiff instanter and
       instead remanded the cause to the trial court to enter an order to reinstate plaintiff. (Indeed,
       on no fewer than five occasions during oral argument, plaintiff’s attorney conceded that the
       trial court was ordered to reinstate plaintiff. This is hardly “cherry picking” statements that
       we wish to highlight.) If we had entered a self-enforcing order of reinstatement, why would
       we then deny plaintiff’s petition for a rule to show cause that sought relief for the City’s
       failure to reinstate him? Once we agreed that plaintiff should be reinstated, this established
       the law of the case: plaintiff had the right to be reinstated. It was the responsibility of the trial
       court to follow the specific directions of our mandate. When the trial court failed to include
       an order of reinstatement in its judgment order, plaintiff should have appealed and raised the
       issue of whether the trial court complied with our mandate. The fact that the City reinstated
       plaintiff in February 2011 was simply its attempt to mitigate its damages following the trial
       court’s rulings.
¶ 24        However, this does not end the problem, because, regardless of whether plaintiff had the
       right to be reinstated, or even if we had entered a self-enforcing order of reinstatement or had
       ordered the City to reinstate plaintiff, plaintiff filed a petition for a rule to show cause against
       the City for its failure to reinstate him, but he never attempted to have it heard. Plaintiff then,
       for whatever reason, never requested reinstatement at trial, in a posttrial motion, or in an
       appeal. These actions were contrary to the dissent’s bald statement that plaintiff acted as

                                                   -7-
       though the City was required to reinstate him pursuant to Ertl I. Perhaps plaintiff never
       sought reinstatement because he had gained new employment with the Prairie View fire
       department at the time, which we presume he found preferable. Whatever the case, Ertl II
       contained no discussion of the trial court’s failure to carry out this court’s mandate, and
       clearly plaintiff abandoned or forfeited his attempt to secure his right to reinstatement. Since
       plaintiff abandoned his right to be reinstated or forfeited that right, we agree that res judicata
       bars plaintiff’s suit.
¶ 25        Plaintiff contends that the present suit covers a different period of time, from the original
       judgment for plaintiff on January 5, 2001, until the final judgment on August 26, 2010.
       Plaintiff alleges that the City’s continuing noncompliance with our mandate to reinstate
       plaintiff gave rise to plaintiff’s subsequent claims for additional damages when the mandate
       was not followed. We fail to see how plaintiff could assert that he was entitled to additional
       damages. The City paid plaintiff damages up to January 5, 2001, to remedy his wrongful
       termination. Plaintiff alleges that the City failed to reinstate him and that he was entitled to
       damages from January 5, 2001, through August 26, 2010. However, plaintiff has not been
       harmed and there has been no breach of contract, because plaintiff never attempted to enforce
       his right to reinstatement. Plaintiff is trying to equate wrongful termination with the trial
       court’s failure to reinstate him. See Doherty v. Schipper & Block, 250 Ill. 128, 134 (1911)
       (“an action for the breach of the contract of employment growing out of the wrongful
       discharge of the appellant *** all damages resulting from such breach must be recovered in
       one action, and that after one recovery has been had that recovery is a bar to all future actions
       based upon the contract of employment”).
¶ 26        We also reject plaintiff’s argument that there is no identity of cause of action as plaintiff
       alleges new facts based on the City’s “intentional breach of contract” because of its
       “defiance” of this court’s reinstatement order. As we previously held, the City did not defy
       this court’s reinstatement order; rather, the trial court did not adhere to our remand
       instruction. Regardless, plaintiff never appealed the trial court’s omission of a reinstatement
       order, called his petition for rule for a hearing, or appealed what he believed was the City’s
       failure to reinstate him. This is a matter that could have been decided in Ertl II. Plaintiff
       failed to protect his right to reinstatement when he failed to file a timely brief appealing the
       trial court’s judgment in Ertl II. In passing, we observe also that fault is irrelevant in a
       breach-of-contract claim. See J.F. Equipment, Inc. v. Owatonna Manufacturing Co., 143 Ill.
       App. 3d 208, 220 (1986). Because we find as a matter of law that the elements of res judicata
       apply, the trial court erred by failing to dismiss plaintiff’s lawsuit.

¶ 27                                           Laches
¶ 28       Although we need not reach this issue, we agree with the City that the doctrine of laches
       also could have barred plaintiff from pursuing the equitable remedy of reinstatement. The
       doctrine of laches is an equitable doctrine based on the maxim that “equity aids the vigilant
       and not those who slumber on their rights.” Tower Oil & Technology Co. v. Buckley, 99 Ill.
       App. 3d 637, 645 (1981). In order to invoke the doctrine, it is necessary to establish “lack of
       due diligence by the party asserting the claim and prejudice to the opposing party.” Van


                                                  -8-
       Milligan v. Board of Fire & Police Commissioners, 158 Ill. 2d 85, 89 (1994). Principles of
       laches are applied when a party’s failure to timely assert a right has caused prejudice to the
       adverse party. Tully v. State, 143 Ill. 2d 425, 432 (1991).
¶ 29        The City would suffer prejudice if ordered to reinstate plaintiff at this juncture, as the
       record indicates that plaintiff was replaced by the City several years ago. As stated above,
       following plaintiff’s first appeal on his 1997 complaint, we reversed the dismissal of the
       breach-of-contract count of the complaint and remanded the case for reinstatement of
       plaintiff. That opinion was issued on March 18, 1999. Nineteen months later, plaintiff filed
       a petition for a rule to show cause in the trial court, requesting the trial court to hold the City
       in contempt of court for failure to reinstate plaintiff. However, in the trial court, plaintiff
       never noticed the petition for hearing. Notwithstanding, the trial court entered an order
       requiring the City to file a written response to the petition. The trial court also set a hearing
       date on the petition. However, no hearing on the petition was held and the trial court entered
       an order setting the matter for a bench trial. The matter was eventually tried on January 4,
       2001. At trial, plaintiff did not present any evidence or make any argument regarding the
       issue of his reinstatement or his petition for a rule to show cause. He requested only
       monetary damages as his chosen remedy. The trial court thereafter entered a judgment order
       only for monetary damages in favor of plaintiff on January 5, 2001. The order did not address
       the issue of plaintiff’s reinstatement or plaintiff’s petition for a rule to show cause. Plaintiff’s
       appeal from that order was dismissed because he failed to file a brief after having received
       more than one extension to do so. Although plaintiff did file a petition for a rule to show
       cause with this court, requesting that the City be held in contempt for failure to reinstate him,
       by the time he did so he had forfeited that right.
¶ 30        Plaintiff had ample opportunity to enforce his right to reinstatement as a firefighter.
       Plaintiff did not seek the equitable remedy of reinstatement until 1½ years after our initial
       opinion in Ertl I. He then failed to notice the petition for hearing. He failed to raise the issue
       at trial. He failed to file a brief in the second appeal, where he could have raised the issue of
       reinstatement. Plaintiff could have avoided the present lawsuit if he had asked the trial court
       on remand from Ertl I to amend its January 5, 2001, judgment to include an order of
       reinstatement or had pressed his appeal of that judgment. Instead, he sat on his rights. By the
       time that we decided Ertl II, there was no indication that plaintiff had any interest in
       reinstatement. Plaintiff had already started working as a fireman elsewhere. The City had
       paid the judgment and thought the litigation had ended. Yet, on August 26, 2002, six years
       after his termination, plaintiff filed the present case, his second lawsuit against the City for
       a breach of contract, which had already been determined.
¶ 31        Plaintiff’s unjustifiable delay prejudiced the City. If plaintiff had diligently pursued his
       rights or made an effort to be reinstated in the weeks or months following the judgment in
       Ertl I, the City and the taxpayers of De Kalb could have avoided the judgment and costs in
       this case. See Bill v. Board of Education, 351 Ill. App. 3d 47, 57 (2004).
¶ 32        The dissent’s entire position is predicated on the proposition that this court in Ertl I
       entered a self-effectuating order to the City to reinstate plaintiff as opposed to remanding the
       cause to the trial court to enter such an order. The fact that the dissent’s view of the order
       differs from ours does not necessarily make our decision absurd, inexplicable, or a perversion

                                                   -9-
       of any legal concept. Invective and hyperbole are no substitute for sound legal analysis.
¶ 33       For these reasons, the judgment of the circuit court of De Kalb County is reversed.

¶ 34       Reversed.

¶ 35       JUSTICE BIRKETT, specially concurring.
¶ 36       The dissent takes issue with our interpretation of this court’s decision and mandate in
       Ertl I. My colleague Justice McLaren was the author in Ertl v. City of DeKalb, 2012 IL App
       (2d) 120514-U (Ertl III), which was decided on July 31, 2012. Justice Bowman and I
       concurred in this court’s order reversing the trial court’s denial of a stay of proceedings
       pending arbitration of certain issues related to Ertl’s reinstatement. In Ertl III we said that
       Ertl I, inter alia, “directed the trial court to order plaintiff’s reinstatement as a firefighter.”
       (Emphasis added.) Ertl III, 2012 IL App (2d) 120514-U, ¶ 3.
¶ 37       Our interpretation of Ertl I is identical to the description in Ertl III. The mandate in Ertl
       I revested the trial court with jurisdiction to carry out this court’s directions, which included
       entering an order directing the City of De Kalb to reinstate Ertl. On August 23, 2012, at oral
       argument in this case, Justice McLaren, in summary, told Ertl’s counsel that if our mandate
       in Ertl I ordered the trial court to do something regarding reinstatement “you’re out of the
       box.” I could not agree more.

¶ 38       JUSTICE McLAREN, dissenting.
¶ 39       I agree that res judicata applies in this case. However, the application of res judicata
       does not prevent Ertl from seeking damages in this case; it prevents the City from claiming
       that it is not required to reinstate Ertl “until such time, if ever, that he is properly
       discharged,” and it prevents Ertl from claiming that the trial court can and should order the
       City to reinstate him. The majority now approves a proposition that no one, including the
       City, approved of when this court ordered Ertl’s reinstatement 14 years ago. Not only was
       the proposition never approved, but when the trial court determined and declared the exact
       opposite proposition, neither party contested that determination on appeal. Therefore, I must
       dissent.
¶ 40       The majority makes the bald assertion that, in Ertl I, “we remanded the case to the trial
       court to order plaintiff’s reinstatement as a firefighter and to hold further proceedings to
       determine whether any additional damages should be awarded.” Supra ¶ 23. However, we
       did not remand the cause for Ertl to apply for reinstatement, or for “consideration of the issue
       of reinstatement of the plaintiff to his previous position” (emphasis added), as the City’s
       counsel asserted at oral argument, or for the trial court to hold a hearing on reinstatement,
       or for the trial court to order someone to reinstate Ertl; we remanded the cause for his
       reinstatement as a firefighter, and, as we explained, that reinstatement was to last “until such
       time, if ever, that he is properly discharged.” Ertl I, 303 Ill. App. 3d at 530. The majority
       claims to have “no difficulty” in “interpreting this straightforward direction” from our
       decision in Ertl I. Supra ¶ 23. However, after acknowledging that the mandate “did not


                                                  -10-
       contain specific directions” and that “the trial court was required to examine the opinion to
       determine what further proceedings would be consistent with the opinion” (supra ¶ 22), the
       majority then concludes that “we remanded the case to the trial court to order plaintiff’s
       reinstatement as a firefighter” and that “[i]t was the responsibility of the trial court to follow
       the specific directions of our mandate.” (Emphasis added.) Supra ¶ 23. First, did the mandate
       contain clear directions? If so, examination of the opinion was unnecessary. Second, in any
       event, neither the mandate nor the opinion contained language ordering “the trial court to
       order plaintiff’s reinstatement as a firefighter and to hold further proceedings to determine
       whether any additional damages should be awarded.” (Emphasis added.) See id. Why does
       the majority add language not present in the opinion and mandate?
¶ 41       On remand, the trial court understood that the City, not it, was required by this court, and
       had the power, to reinstate Ertl:
                “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?”
       Apparently, the City agreed; during the trial on remand, the trial court described the actions
       of the City:
                “So, in fact, Ms. Ely [City counsel], I have said to you before–if you want to bring
           him back in here–Mr. Matekaitis [former City counsel] came to me and asked me to
           continue this trial last fall, telling me he needed to conduct a hearing before the Board
           of Police and Fire Commissioners. Maybe you don’t agree with what he said, but he
           came to me and made that request in front of me, Mr. Gallagher [Ertl’s counsel], and I
           told you that a couple of weeks ago.”
       Why would the City request a continuance of trial in order to conduct a hearing before the
       Board of Police and Fire Commissioners if it did not believe that it needed to terminate Ertl?
       Why would it need to terminate Ertl if he had not been reinstated?
¶ 42       That the trial court and the City continued to understand the issue in this manner was
       evidenced during the trial in this case. The City’s attorney told the trial court in this case,
       “The Appellate Court’s opinion said that we were supposed to reinstate the plaintiff. We did
       not do that.” In the City’s opening statement at trial, counsel noted “that there had been an
       appeal of the matter which reflected the plaintiff had not been properly terminated and


                                                 -11-
       ordered the City to reinstate him and, if it chose, to properly terminate him.” (Emphasis
       added.) See supra ¶ 11. After trial, the trial court began its oral ruling by stating:
               “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.)
¶ 43       The trial court noted that “[p]laintiff had not been fully reinstated” and, in its written
       order, specifically provided that “the Appellate Court has previously ordered that [p]laintiff
       be fully reinstated by the [City].” The trial court also informed Ertl’s counsel that “I am not
       ordering him reinstated. *** The Appellate Court ordered him reinstated. The Appellate
       Court doesn’t need me to say that they were right and he should be reinstated.”
¶ 44       The trial court did not order Ertl reinstated after the trial on remand. The trial court
       understood that it did not have the prerogative to reinstate Ertl; both the power and the duty
       to do so rested in the City. This is evident in the court’s pronouncements, rulings, judgment,
       and award of punitive damages. The City was also aware of this fact, as is evidenced by its
       admissions below that it had been ordered to reinstate Ertl. Ertl’s appeal in Ertl II was
       dismissed by this court, and the City’s appeal neither mentioned nor contested the trial
       court’s order regarding reinstatement. Neither Ertl I nor Ertl II was ever reviewed, let alone
       reversed, by our supreme court.
¶ 45       The law-of-the-case doctrine, which applies to issues both of law and of fact, holds that
       such issues decided on a previous appeal are binding on the trial court on remand as well as
       on the appellate court in subsequent appeals. Bjork v. Draper, 404 Ill. App. 3d 493, 501
       (2010). In addition, a final and appealable trial court order that has been left undisturbed by
       the appellate court becomes the law of the case. Ericksen v. Rush-Presbyterian-St. Luke’s
       Medical Center, 289 Ill. App. 3d 159, 168 (1997). This doctrine protects the settled
       expectations of the parties, ensures uniformity of decisions, maintains consistency during the
       course of a single case, effectuates proper administration of justice, and brings litigation to
       an end. Id. The City did not file a petition for leave to appeal our judgment in Ertl I. The trial
       court, which concluded that the City was already required to reinstate Ertl, made its rulings
       and did not order the City to reinstate Ertl. As the law of the case, this court’s order that the
       City reinstate Ertl “until such time, if ever, that he is properly discharged” (Ertl I, 303 Ill.
       App. 3d at 530) was binding in the trial court on remand, on this court in Ertl II, in the trial


                                                 -12-
       held in this case, and in this appeal. Further, the trial court’s determination that the City, not
       the court, was required to reinstate Ertl was never timely challenged on appeal. The City’s
       claim that this court’s order is not binding on it is meritless.
¶ 46       The law of the case is that Ertl was to be reinstated; it is not, as the majority claims, that
       Ertl “had the right to be reinstated.” (Emphasis added.) Supra ¶ 23. The trial court, the City,
       and Ertl all acted as though the City was required by our opinion in Ertl I to reinstate Ertl
       “until such time, if ever, that he is properly discharged.” This is a reasonable interpretation.
       Pursuant to article IV of the contract between the City and the De Kalb International
       Association of Firefighters, Local 1236, probationary employees may be terminated by the
       “Fire Department,” a phrase that, per the contract, “shall be synonymous with the City of
       De Kalb.” As we noted in Ertl I, “On April 19, [1995], the City terminated plaintiff’s
       employment without explanation.” (Emphasis added.) Ertl I, 303 Ill. App. 3d at 526. The
       City terminated Ertl; no one but the City could “un-terminate” or reinstate him. Yet the
       majority finds that “the City did not defy this court’s reinstatement order; rather, the trial
       court did not adhere to our remand instruction.” Supra ¶ 26.
¶ 47       The majority is rather selective in its use of statements by Ertl’s counsel to support its
       conclusion. The majority asserts that “[e]ven plaintiff’s attorney acknowledged during oral
       argument that our order did not state that the City was to reinstate plaintiff instanter and
       instead remanded the cause to the trial court to enter an order to reinstate plaintiff.” Supra
       ¶ 23. Perhaps the majority could also address Ertl’s counsel’s assertion (at approximately
       18:51 to 19:00 of the recorded argument) that, “In this case, it’s fairly clear that Mr. Ertl was
       reinstated by the appellate court in 1999, in its order.” Or counsel’s response (at
       approximately 20:19) to a question as to why no one at the retrial brought up the fact that Ertl
       needed to be reinstated: “Well, that’s because the appellate court had already ruled. The
       appellate court had already ruled on this.” Or Ertl’s assertions on page 16 of his brief that
       “THE CITY WAS ORDERED TO REINSTATE THE PLAINTIFF” and “Although the
       Appellate Court did remand the case, it also clearly ordered Plaintiff’s reinstatement; to
       claim otherwise is to ignore the facts.” Ertl’s counsel made contradictory and, at times,
       unclear statements regarding reinstatement (“My argument to you, Judge, is that the appellate
       court reinstated Mr. Ertl, issued a mandate to the trial court, which the trial court failed to
       abide by, parties failed to abide by, and everyone failed to abide by.”), but this court cannot
       cherry-pick so blatantly the statements that it wishes to highlight.
¶ 48       In any event, Ertl’s counsel’s2 characterization of our decision in Ertl I at an oral
       argument more than 13 years after we issued our decision is both irrelevant and a non
       sequitur. The judgment in this case was interpreted years ago by the trial court to require the
       City to reinstate Ertl. Appellate counsel’s arguments now (which are, in any event,
       contradicted by other of his statements) are not judicial admissions that annul Ertl’s claim
       that the City failed to follow this court’s order to reinstate Ertl.
¶ 49       As a matter of law, the City was to reinstate Ertl “until such time, if ever, that he is
       properly discharged.” Implicit in this order is that the City would pay Ertl the wages due to


               2
               I must note that counsel on this appeal was not counsel in Ertl I.

                                                 -13-
       him as a firefighter until, if ever, he was terminated. However, the City failed to reinstate him
       and did not pay him. Ertl had a choice of remedies for the City’s failure. He could have
       petitioned for a rule to show cause, as he did in the trial court (without resolution) and also
       in this court (which was denied), seeking sanctions against the City for its failure to reinstate
       him. He could also, as he did here, seek compensatory damages for the payments that he
       would have received had the City reinstated him. In this case, those damages accumulated
       until the time of trial, as the City did not reinstate him and, consequently, did not terminate
       him. This is not Ertl slumbering on his rights such that laches should apply. This is the City
       sitting on its hands, refusing to comply with the orders of this court and the trial court, such
       that damages should continue to accumulate until the City follows the orders and the
       interpretation of the trial court and gives Ertl a proper hearing to terminate his employment.
       The City has no basis to claim that laches applies. He who seeks equity must do equity.
       Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 60 (2009). “A court of equity
       will not confer its equitable relief upon a party seeking its aid, unless he will acknowledge
       and concede all the equitable rights and dividends justly belonging to the adversary party,
       growing out of or necessarily involved in the subject-matter of the controversy. [Citation.]”
       Wenham v. Mallin, 103 Ill. App. 609, 613 (1902). The City acknowledged on the record
       during trial in this case that this court “ordered the City to reinstate [Ertl]” and that “The
       Appellate Court’s opinion said that we were supposed to reinstate the plaintiff. We did not
       do that.” These acknowledgments came 10 years after our disposition in Ertl I and 7 years
       after Ertl filed his initial complaint in this case. The City acknowledges that it ignored an
       appellate court order for 10 years and the majority finds that the City has acknowledged and
       conceded “all the equitable rights and dividends justly belonging to” Ertl? What “equity” has
       the City done by intentionally ignoring the orders of this court and the trial court? The City
       acknowledges its 10-year delay in following this court’s order and the majority determines
       that, because of Ertl’s “unjustifiable delay,” laches should preclude Ertl’s recovery. Supra
       ¶ 31. The majority’s conclusion that the City’s inequitable delay should assist the City in its
       claim for laches is absurd.
¶ 50        The majority asks, “If we had entered a self-enforcing order of reinstatement, why would
       we then deny plaintiff’s petition for a rule to show cause that sought relief for the City’s
       failure to reinstate him?” Supra ¶ 23. Ertl had chosen and received from the trial court his
       remedy of compensatory damages that had accrued to that point. This court affirmed the
       grant of this remedy in Ertl II; we could not additionally grant him his unchosen remedy of
       sanctions for failing to reinstate him. However, the majority uses its rhetorical question as
       a basis to deny Ertl the relief that he sought and to which he was entitled because he failed
       to seek enforcement of the relief that he had not chosen. In any event, a court’s decision not
       to issue a rule to show cause or find a party in contempt does not mean that the underlying
       order is vacated. If a trial court declines to issue a rule to show cause or to hold a father in
       contempt for his failure to pay child support, the arrearage does not disappear, nor do the
       future obligations cease to accrue. Here, the City’s obligation to reinstate Ertl was not
       vacated or affected in any way by the trial court’s failure to rule on his petition for a rule to
       show cause or this court’s denial of his later petition, nor was the accrual of compensatory
       damages “until such time, if ever, that he is properly discharged.” The majority’s rhetorical


                                                 -14-
       question is a red herring.
¶ 51        I note that the City attempted to reinstate Ertl in 2010 and did, in fact, notify Ertl on
       February 4, 2011, that he was to be reinstated on February 10 of that year. See Ertl III, 2012
       IL App (2d) 120514-U. Is this not consistent with the trial court’s interpretation of the Ertl
       I mandate? How can the City argue that it was not required to reinstate Ertl and that res
       judicata and laches apply to prevent Ertl’s claims when the City has, in fact, reinstated him?
¶ 52        The inability of any party other than the City to reinstate Ertl is demonstrated by the
       proceedings in Ertl III, which involved questions regarding Ertl’s pay and status
       (probationary versus non-probationary) upon reinstatement. See id. ¶ 4. If the trial court were
       required to order Ertl’s reinstatement, apparently it would have been required to make such
       decisions and include them in its order. Further, the majority addresses only half of the Ertl
       I directive; it never addresses “until such time, if ever, that he is properly discharged.” Logic
       would dictate that whoever was ordered to reinstate Ertl would also be charged with the
       authority to “properly discharge” him. Again, logic would dictate that this party would be the
       City. The trial court is just as ill-suited to this project as it was to reinstatement. What type
       of proceeding would be employed to discharge Ertl–declaratory judgment? At best, the
       majority can be read to provide an oblique hint at its interpretation of the discharge
       requirement: by not obtaining a ruling on his petition for a rule to show cause in the trial
       court, Ertl abandoned the petition and, in essence, discharged himself such that no further
       damages would accrue. However, such a theory makes no sense in light of the actual law and
       facts of this case.
¶ 53        The majority finds that “the trial court did not adhere to our remand instruction.” Supra
       ¶ 26. It appears that, regardless of what the trial court did, the majority fails to follow the law
       of the case and fails to enforce a trial court order that has not been appealed as erroneous. For
       the majority to do so at this juncture is a perversion of the concept of res judicata. It is
       inexplicable how the majority can claim, in light of the record and in the face of the City’s
       admissions, that the City did not know or understand that it was the party required to
       reinstate Ertl and that the burden was, instead, on Ertl. The majority is rewarding the City
       despite its steadfast refusal to even attempt to reinstate Ertl until 2010. Until such time as the
       City demanded that Ertl return to work, he was entitled to the relief that he sought. The
       majority’s determination that Ertl was required to seek other forms of relief or lose his right
       to compensatory damages is both unprecedented and wrong.
¶ 54        I would also like to point out that, if the City had diligently followed this court’s opinion
       and the trial court’s interpretation thereof and made an effort to reinstate Ertl in the weeks
       or months following the judgment in Ertl I, the City and the taxpayers of De Kalb could have
       avoided the judgment and costs in this case.




                                                  -15-
