                                  Illinois Official Reports

                                         Appellate Court



                  Hajicek v. Nauvoo Restoration, Inc., 2014 IL App (3d) 121013




Appellate Court              JOHN       HAJICEK,        Plaintiff-Appellant,    v.     NAUVOO
Caption                      RESTORATION, INCORPORATED, an Illinois Not-for-Profit
                             Corporation, Defendant-Appellee (Corporation of the President of the
                             Church of Jesus Christ of Latter-Day Saints, a Utah Corporation,
                             Corporation of the Presiding Bishop of the Church of Jesus Christ of
                             Latter-Day Saints, a Utah Not-for-Profit Corporation; and Intellectual
                             Reserve, Inc., a Utah Nonprofit Corporation, Defendants).



District & No.               Third District
                             Docket No. 3-12-1013


Filed                        March 27, 2014



Held                         In an action for breach of contract and specific performance arising
(Note: This syllabus         from plaintiff’s donation of a religiously significant painting to
constitutes no part of the   defendants in exchange for plaintiff being allowed to take possession
opinion of the court but     of 10 to 20 Nauvoo Temple stones, the trial court erred in entering
has been prepared by the     summary judgment for defendants based on the theory of rescission
Reporter of Decisions        and in dismissing plaintiff’s action with prejudice, since the theory
for the convenience of       was raised for the first time in defendant’s motion to reconsider;
the reader.)                 therefore, the cause was remanded for further proceedings.




Decision Under               Appeal from the Circuit Court of Hancock County, No. 04-L-2; the
Review                       Hon. David F. Stoverink, Judge, presiding.


Judgment                     Reversed and remanded.
     Counsel on               Talmadge G. Brenner, of Law Office of Talmadge Brenner PC, of
     Appeal                   Quincy, and James K. Horstman (argued), of Cray Huber Horstman
                              Heil & VanAusdal LLC, of Chicago, for appellant.

                              Joshua G. Vincent (argued), of Hinshaw & Culbertson LLP, of
                              Chicago, and Ambrose V. McCall, of Hinshaw & Culbertson LLP, of
                              Peoria, for appellee.



     Panel                    JUSTICE O’BRIEN delivered the judgment of the court, with
                              opinion.
                              Justice McDade concurred in the judgment and opinion.
                              Justice Wright specially concurred, with opinion.



                                               OPINION

¶1         In an action for breach of contract and specific performance regarding some historic
       Mormon stones, the circuit court initially ruled in favor of the plaintiff, John Hajicek, denying
       the motion of the defendants, Nauvoo Restoration, Inc., Corporation of the President of the
       Church of Jesus Christ of Latter-Day Saints, Corporation of the Presiding Bishop of the
       Church of Jesus Christ of Latter-Day Saints, and Intellectual Reserve, Inc., for summary
       judgment. However, after granting the defendants’ motion for reconsideration, the circuit court
       granted summary judgment in favor of the defendants, dismissing the plaintiff’s action with
       prejudice. The plaintiff appealed.

¶2                                                 FACTS
¶3         The plaintiff, John Hajicek, is a collector of historical Mormon artifacts. The defendants,
       Nauvoo Restoration, Inc. (NRI), Corporation of the President of the Church of Jesus Christ of
       Latter-Day Saints (COP), and Corporation of the Presiding Bishop of the Church of Jesus
       Christ of Latter-Day Saints, are affiliates and conduct business under the organization known
       as the Church of Jesus Christ of Latter-Day Saints. A fourth defendant, Intellectual Reserve,
       Inc., was dismissed and is not a party to this appeal.
¶4         On February 4, 2000, the plaintiff donated a religiously significant painting to COP, which
       was memorialized in an acquisition agreement dated February 4, 2000. In exchange,
       memorialized in a memorandum dated the same day, the plaintiff was to “select your choice of
       ten to twenty stones for your personal use from the surplus Nauvoo Temple stones.” The italics
       and the cross-out were handwritten changes to the memorandum by Glen Leonard, the director
       of a museum owned and operated by COP, made without approval by anyone at NRI. When
       the plaintiff went to pick up the stones, NRI denied him access, saying that there were still
       questions regarding which stones he could have. In March 2000, COP returned the painting to
       the plaintiff. The plaintiff signed a receipt dated March 4, 2000, acknowledging receipt of the



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     painting. The president of NRI, Hugh Pinnock, sent a letter to the plaintiff on April 7, 2000,
     noting that he was not in a position to release any of the Nauvoo Temple stones at the time.
¶5       On February 5, 2004, the plaintiff filed a complaint against the defendants, alleging breach
     of contract and seeking damages and specific performance. On November 21, 2011, the
     defendants filed a motion for summary judgment, asserting four arguments: (1) there was no
     contract, because of a lack of consideration and no meeting of the minds; (2) that if a contract
     existed, the return of the painting constituted an accord and satisfaction; (3) the plaintiff’s
     action was barred by laches; and (4) the plaintiff is not entitled to specific performance. The
     circuit court denied the motion for summary judgment, except as to the fourth defendant. The
     circuit court determined that there were material questions of fact as to: (1) whether the transfer
     of the painting was consideration for the transfer of the temple stones; (2) whether the parties
     had reached an objective meeting of the minds as to which stones were subject to the
     agreement; and (3) whether the plaintiff accepted the return of the painting as substitute
     performance in satisfaction of the defendants’ alleged obligation to deliver the stones. It also
     determined that the plaintiff was not guilty of laches because he filed suit within the statute of
     limitations for contracts. Finally, the circuit court ruled that if the plaintiff could prove his case,
     he would be entitled to specific performance.
¶6       The three remaining defendants filed a motion for reconsideration, seeking to have the
     court reconsider the motion for summary judgment in light of recently disclosed evidence. The
     defendants argued that audio and video recordings that the plaintiff produced after the hearing
     on the motion for summary judgment, all contained on a DVD attached as an exhibit to the
     motion, supported their claims of accord and satisfaction and a new claim, rescission of the
     contract. The first audio file was a conversation with Jerry Goodwin, acting director of NRI,
     when the plaintiff arrived at NRI to pick up the stones. There was also a video of Kent Wood, a
     local church leader, returning the painting to the plaintiff. In that video, Wood indicated that
     negotiations had broken off and he was asked to return the painting to the plaintiff. Other than
     the exhibits related to the recordings, the defendants presented a group exhibit and three
     additional letters. The group exhibit consisted of documents that were already in the record and
     portions of the deposition testimony of the plaintiff and Leonard. As for the letters, all dated in
     April 2000, two had been filed in the case in conjunction with the summary judgment motion.
     The third letter was not previously in the record, but it was addressed to Elder Pinnock, and it
     was dated April 20, 2000. The defendants did not argue that it was newly discovered evidence.
¶7       In their reply memorandum, the defendants included nine additional exhibits. Exhibit 1
     was a February 28, 2000, printout of pages from the plaintiff’s website, which included a
     picture of the subject painting, indicating that it was part of his collection. The defendants were
     aware of, and referenced, the plaintiff’s website in their memorandum in support of their
     motion for summary judgment. Exhibits 2 and 3 were further printouts of pages from the
     plaintiff’s website, dated November 13, 2012. Exhibit 4 was a group exhibit containing email
     exchanges and letters between the plaintiff and book publisher Steven Bule. Those emails and
     letters were dated in 2002 and had previously been disclosed by the plaintiff in discovery. The
     emails indicated that the plaintiff had refused to allow the church to borrow the painting in
     2002 and had sought a sole acknowledgement as the owner of the painting in Bule’s book.
     Exhibit 5 was a portion of the plaintiff’s deposition. Exhibit 6 contained two of the letters that
     were attached to the defendants’ motion for reconsideration and had been provided in
     discovery. Exhibit 7 was an additional letter from Bule to the plaintiff, dated March 21, 2002,


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       which was disclosed as supplemental discovery to the defendants on September 9, 2011.
       Exhibit 8 was a copy of a loan agreement, on the defendants’ letterhead, dated April 19, 2002.
       Exhibit 9 was a collection of pages of the book written by Bule. The defendants were provided
       with a copy of Bule’s book at or before the plaintiff’s deposition.
¶8         The plaintiff filed a motion to strike, or disallow, the new arguments and any arguments
       unrelated to newly discovered evidence. At the hearing on the motion, the plaintiff’s counsel
       argued that the motion raised three new issues: (1) the plaintiff’s rejection of the defendants’
       request to borrow the painting; (2) the plaintiff’s correspondence with Bule; and (3) the
       plaintiff’s promotion of the painting on his website. While the plaintiff’s counsel did not
       specifically mention rescission, all three new issues were raised in the defendants’ reply
       memorandum in support of the defendants’ argument that the plaintiff’s possession of the
       painting was a ratification or rescission. The circuit court allowed all of the evidence that was
       attached to the reply memorandum and denied the motion to strike.
¶9         The circuit court granted the motion for reconsideration, and granted summary judgment in
       favor of the defendants on both the issues of accord and satisfaction and rescission. The circuit
       court viewed the facts in the light most favorable to the plaintiff and found that there was still a
       question of fact whether there was ever a contract, but if there was a contract, the plaintiff’s
       proprietary actions after the return of the painting constituted accord and satisfaction and
       rescission. Specifically, the circuit court relied on the fact that the plaintiff promoted the
       subject painting on the front page of his website, which was evidenced by the printouts from
       the plaintiff’s website, attached as exhibits to the defendants’ reply to their motion for
       reconsideration. Also, the circuit court relied on the fact that the plaintiff sought
       acknowledgement, without reservation, of ownership of the painting in Bule’s book, and he
       refused to allow the church to borrow the painting that it allegedly owned. This finding was
       based upon the letters and emails between the plaintiff and Bule from the year 2002, which
       were also attached as an exhibit to the defendants’ reply to their motion for reconsideration.
       The plaintiff appealed.

¶ 10                                            ANALYSIS
¶ 11        The plaintiff argues that the circuit court abused its discretion in granting the motion to
       reconsider because the defendants did not identify any relevant new law, nor identify errors in
       the circuit court’s application of the law, and the newly discovered evidence did not warrant
       the entry of summary judgment. The defendants argue that the motion was properly granted
       based upon newly discovered evidence.
¶ 12        The purpose of a motion for reconsideration is to appraise a trial court of newly discovered
       evidence, a change in the law, or errors in the court’s application of the law. Farley Metals, Inc.
       v. Barber Colman Co., 269 Ill. App. 3d 104 (1994). The decision whether to grant or deny a
       motion for reconsideration is reviewed for abuse of discretion. In re Marriage of Gowdy, 352
       Ill. App. 3d 301 (2004).
¶ 13        The defendants’ motion was based upon new evidence, specifically, the audio and video
       recordings produced by the plaintiff. The plaintiff acknowledged that the recordings were
       newly discovered, but argued that they were not evidence because they lacked foundation and
       parts constituted hearsay. However, the plaintiff did not make those objections below. See
       Werner v. Botti, Marinaccio & DeSalvo, 205 Ill. App. 3d 673 (1990) (hearsay objections not
       raised at the trial level are waived on appeal); see also Village of Arlington Heights v.

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       Anderson, 2011 IL App (1st) 110748 (failure to make foundation objection on motion for
       summary judgment waives issue for appeal). Thus, we find that the circuit court did not abuse
       its discretion in relying on the recordings. However, we find that the circuit court abused its
       discretion in granting the motion to reconsider. Although the recordings were admittedly
       newly discovered, they did not provide the basis for the circuit court’s decision to reconsider
       its denial of summary judgment. In making its decision, the circuit court specifically relied on
       the printouts of the plaintiff’s website and the letters and emails between Bule and the plaintiff.
       That evidence, however, was not newly discovered. Although the printouts and the emails and
       letters were included as attachments to the defendants’ reply to the motion for reconsideration,
       all of that evidence was available to the defendants at an earlier date. The defendants referred
       to the plaintiff’s website in their motion for summary judgment, and it was never argued that
       the defendants could not access the plaintiff’s website at any time. The letters and emails
       between Bule and the plaintiff had been disclosed to the defendants by the plaintiff in
       discovery.
¶ 14        After granting the motion to reconsider, the circuit court proceeded to grant summary
       judgment to the defendants on two grounds: (1) accord and satisfaction and (2) rescission. The
       plaintiff argues that summary judgment was improper on the defense of accord and satisfaction
       because material questions of fact remained, even if the recordings were considered. The
       defendants argue that the undisputed facts establish each element of accord and satisfaction.
¶ 15        To constitute an accord and satisfaction, there must be: (1) a bona fide dispute, (2) an
       unliquidated sum, (3) consideration, (4) a shared and mutual intent to compromise the claim,
       and (5) execution of the agreement. Saichek v. Lupa, 204 Ill. 2d 127 (2003). The intent of the
       parties is of central importance. Saichek, 204 Ill. 2d at 135. The doctrine of accord and
       satisfaction implies that the parties dispute an amount due on a contract but agree to give and
       accept something other than that which they thought was due in order to settle a claim. Saichek,
       204 Ill. 2d at 136. The plaintiff argues that the record does not unequivocally establish that the
       defendants made a specific offer to the plaintiff or that the plaintiff accepted a specific offer.
¶ 16        It was assumed, for purposes of summary judgment, that there was a contract between the
       parties. For purposes of the appeal, the defendants conceded that there was a contract between
       the parties. Additionally, the facts are undisputed that the painting was returned to the plaintiff.
       It is also undisputed that the plaintiff never received any temple stones. The facts suggested
       that the defendants wanted to renegotiate the contract. However, there is no evidence in the
       record that a new offer was ever presented to the plaintiff. Thus, the doctrine of accord and
       satisfaction was not applicable under the facts, and the circuit court erred in granting summary
       judgment on this basis.
¶ 17        As for the alternate theory of rescission, the plaintiff argues that the circuit court also erred
       in granting the motion on that basis, when that theory was not pled by the defendants nor
       argued until the motion for reconsideration. The defendants argue that the rescission argument
       was based upon the recordings that the plaintiff failed to disclose.
¶ 18        The defendants did not assert the affirmative defense of rescission in their answer. It was
       also not raised in the motion for summary judgment; it was raised for the first time in the
       motion for reconsideration. Although, in his response to the motion for reconsideration, the
       plaintiff argued that there was no rescission, he did not make any argument with respect to the
       defendants’ failure to raise the issue sooner. In the plaintiff’s motion to strike the defendants’
       reply to their motion for reconsideration, however, the plaintiff contended that three arguments

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       were unrelated to the newly discovered evidence. All three arguments were raised in the
       defendants’ brief in support of their argument that the plaintiff’s possession of the painting
       constituted a ratification or a rescission. We find that, while the plaintiff did not specifically
       mention rescission, he did raise an objection to new arguments being raised in the motion to
       reconsider. Thus, the argument was not waived. See Benson v. Stafford, 407 Ill. App. 3d 902
       (2010) (an argument that has not been raised in the trial court cannot be raised for the first time
       on appeal). We conclude that the circuit court erred in granting summary judgment in favor of
       the defendants on a theory that was not pled and was not raised until reconsideration. See Barth
       v. Kantowski, 409 Ill. App. 3d 420 (2011) (a litigant may not raise a new legal theory for the
       first time in a motion to reconsider). Since we have found the grant of summary judgment in
       favor of the defendants to be in error, we remand for further proceedings consistent with this
       opinion.

¶ 19                                       CONCLUSION
¶ 20      The judgment of the circuit court of Hancock County is reversed.

¶ 21      Reversed and remanded.

¶ 22       JUSTICE WRIGHT, specially concurring.
¶ 23       I agree with the majority’s holding and write separately to emphasize the procedural
       history of this case. The trial court denied the request for summary judgment, finding, in part,
       an accord and satisfaction had not been established by undisputed material facts contained in
       the pleadings. After the court agreed with plaintiff that summary judgment was not in order,
       plaintiff produced preexisting recordings as part of ongoing discovery. Clearly, as noted by the
       majority, the tapes constituted newly discovered evidence but did not conclusively
       demonstrate a mutual intent to compromise as required for an accord and satisfaction.
¶ 24       I write separately because it appears to me that after defendants actually reviewed the
       sluggishly produced recordings, a new theory to defeat plaintiff’s lawsuit based on rescission
       became apparent to defendants for the first time. Rather than file another motion for summary
       judgment advancing a new theory unavailable at the time of the original motion, defendants
       simply injected the new legal theory into a motion to reconsider the original pleading.
¶ 25       The well-established case law provides a party seeking reconsideration of a ruling on an
       original pleading cannot raise a new legal theory omitted from that motion. Barth v.
       Kantowski, 409 Ill. App. 3d 420, 426 (2011). Thus, regardless of whether plaintiff objected to
       this new theory or not, the trial court has no authority to consider a new legal theory omitted
       from the original pleading subject to reconsideration. I agree the matter should be remanded to
       the trial court to allow plaintiff to proceed to attempt to prove the allegations set forth in his
       complaint including, but not limited to, whether there was a sufficient meeting of the minds to
       give rise to an enforceable contract at all.




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