                                  2019 IL App (1st) 181170
                                        No. 1-18-1170
                                 Opinion filed March 29, 2019

                                                                  FOURTH DIVISION

                                           IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


     EDWARD MICHAEL LICEAGA,                   )      Appeal from the Circuit Court
                                               )      of Cook County.
          Plaintiff-Appellant,                 )
                                               )
          v.                                   )
                                               )
     ISABEL BAEZ,                              )      No. 2017 CH 2383
                                               )
          Defendant-Appellee.                  )      The Honorable
                                               )      Neil H. Cohen,
                                               )      Judge, presiding.


                 JUSTICE GORDON delivered the judgment of the court, with opinion.
                 Justices Reyes and Burke concurred in the judgment and opinion.




                                        OPINION

¶1             Plaintiff Edward Michael Liceaga appeals the trial court's grant of

       defendant Isabel Baez's motion to dismiss and the subsequent denial of his

       motion to reconsider. For the following reasons, we affirm.
     No. 1-18-1170

¶2                                     BACKGROUND

¶3             On February 16, 2017, plaintiff filed a verified one-count complaint for

        replevin alleging that he was the rightful owner of, and entitled to the

        possession of, a diamond engagement ring. He alleged that he gave the ring to

        defendant on October 15, 2015, in contemplation of their marriage, and that she

        had "unlawfully retained it" since December 23, 2016.

¶4             Attached to the complaint was a form entitled "Insurance Replacement

        Appraisal," from a jeweler who estimated the ring's value to be $100,000,

        described the ring and included a photo. 1

¶5             In his brief to this court, plaintiff acknowledges that he was the one who

        broke off the parties' engagement and that, after defendant refused to return the

        ring, he filed this replevin action.

¶6             Since one of the issues in the appeal before us is whether plaintiff raised

        new arguments for the first time on a motion to reconsider, we describe in some

        detail the parties' extensive motion practice in the court below.

¶7             On May 1, 2017, defendant moved to dismiss the action pursuant to

        section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2016).

        The motion alleged that plaintiff and defendant became engaged on October 15,


           1
            The form was signed, but it was not submitted under penalty of perjury and
     was not an affidavit.
                                               2
       No. 1-18-1170

         2015, and plaintiff broke off the engagement in December 2016. The motion

         argued that an engagement ring is a gift in contemplation of marriage, that it is

         a gift conditional on the subsequent marriage and that, under well-established

         Illinois precedent, the party who fails to perform the condition has no right to

         the property. The motion argued that defendant intended to marry plaintiff, that

         plaintiff failed to perform and that defendant, thus, has a superior interest in the

         ring.

¶8               In his response to the motion, plaintiff acknowledged that he presented

         the engagement ring to defendant in contemplation of a marriage that did not

         occur. Plaintiff's response claimed that, after an argument, defendant moved

         out of their Chicago apartment and she asked plaintiff to pay her moving

         expenses from Chicago to San Diego. Plaintiff claims that he agreed to pay the

         moving expenses in exchange for the ring. However, defendant did not return

         the ring and moved to San Diego. Plaintiff made no claims that he paid the

         moving expenses.

¶9               In her reply, defendant observed that plaintiff did not plead that she, "at

         any time[,] breached her promise of marriage" or "defaulted on her promise or

         commitment."

¶ 10             On September 5, 2017, the trial court issued a two-page memorandum

         order addressing the arguments that both parties raised in their briefs. The trial

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         court observed that plaintiff filed a one-count replevin action and that replevin

         is a statutory cause of action. Section 19-104 of the Code of Civil Procedure

         provides in relevant part that "[a]n action of replevin shall be commenced by

         the filing of a verified complaint which describes the property to be replevied

         and states that the plaintiff in such action is the owner of the property so

         described, or that he or she is then lawfully entitled to the possession thereof,

         and that the property is wrongfully detained by the defendant." 735 ILCS 5/19-

         104 (West 2016).

¶ 11           Based on the case of Carroll v. Curry, 392 Ill. App. 3d 511, 514 (2009),

         which both parties cited, the trial court found:

                   "Defendant contends that the Complaint does not allege facts showing

               Plaintiff's right to return of the engagement ring. An engagement ring is

               a gift in contemplation of a marriage. Carroll, 392 Ill. App. 3d at 514.

               'Gifts given in contemplation of marriage are deemed conditional on the

               subsequent marriage of the parties, and the "party who fails to perform on

               the condition of the gift has no right to property acquired under such

               pretenses." ' " Id. [(quoting Harris v. Davis, 139 Ill. App. 3d 1046, 1048

               (1986)).]

                   The Complaint alleges the conclusion that Defendant wrongfully

               retained the engagement ring but, despite Plaintiff's claims to the

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       No. 1-18-1170

                 contrary, does not actually allege that the marriage did not take place or

                 that it was Defendant who ended the engagement."

          The trial court granted defendant's motion to dismiss but without prejudice, and

          granted plaintiff leave to amend his complaint.

¶ 12             Plaintiff then filed an amended verified one-count complaint for replevin,

          which alleged that he purchased the ring "for the sole purpose of encouraging

          [defendant] to marry him," that he "ended the engagement due to irreconcilable

          differences," that the marriage did not take place, that he asked for the ring

          before filing suit, and that defendant had not returned the ring. Plaintiff argued

          that the question is "whether or not the marriage occurred, not why it did not

          occur or because of whom."        (Emphases in original.). In support of this

          propositions, plaintiff relied exclusively on Carroll v. Curry, 392 Ill. App. 3d

          511, 514 (2009).2

¶ 13             On October 19, 2017, defendant once again moved to dismiss plaintiff's

          complaint but this time she moved pursuant to section 2-619(c), rather than 2-

          615, of the Code of Civil Procedure. 735 ILCS 5/2-619(c) (West 2016). In

          some ways similar to a summary judgment motion, a section 2-619(c) motion

          provides a court the means to dispose of issues of law or easily proved issues of

             2
               While providing solely cites to Carroll, plaintiff noted in parentheticals
       that Carroll also cited Harris v. Davis, 139 Ill. App. 3d 1046, 1048 (1986), and
       National Bond & Investment Co. v. Zakos, 230 Ill. App. 608 (1923).
                                                 5
       No. 1-18-1170

          fact at the outset of a case. See Lipscomb v. Sisters of Francis Health Services,

          Inc., 343 Ill. App. 3d 1036, 1040 (2003). Defendant argued that no genuine

          issue of material fact existed, since plaintiff admitted in his verified complaint

          that he ended the engagement and that he was the one "who failed to perform

          on the condition of the gift."

¶ 14             In a verified response, plaintiff admitted that he ended the engagement

          but argued that this was irrelevant to the underlying matter. Plaintiff argued

          that Carroll was "the semin[al] and relevant case for the instant matter," and

          criticized defendant for citing a case that was "subsequently negatively

          discussed by Carroll." Plaintiff claimed that, under Carroll, "fault is no longer

          an inquiry" in which courts engage.

¶ 15             On January 12, 2018, at the same time that plaintiff filed his response to

          defendant's motion to dismiss, he also filed his own motion for summary

          judgment which was based on the same grounds as his complaint and his

          response to the motion to dismiss. 3 In her reply, defendant reiterated the same

          grounds that she had set forth in her motion to dismiss.

¶ 16             On February 14, 2018, the trial court issued a two-page written order that

          found in relevant part:
             3
               Included with his motion for summary judgment was an affidavit which
       averred the additional fact that, "despite the ended engagement, [defendant] has
       continued to pursue a relationship with [plaintiff] and we have continued to see
       each other since the technical end of our engagement."
                                                6
       No. 1-18-1170

                  "In a replevin action involving an engagement ring, the correct inquiry

               in deciding which party is entitled to possession of the ring is which

               party's act conclusively ended the engagement. Carroll, 392 Ill. App. 3d

               at 518-19. A court does not consider why an engagement ended, i.e. the

               underlying fault for the relationship's breakdown, but only which party

               performed the act actually ending the engagement. Carroll, 392 Ill. App.

               3d at 519-20.

                  Plaintiff unequivocally alleges in his verified Amended Complaint

               that it was his act that ended the engagement with Defendant (Am.

               Compl. ¶ 9). Therefore, Plaintiff has no legal right to possession of the

               engagement ring under Illinois law and cannot maintain an action for

               replevin."

         The trial court then granted defendant's motion to dismiss with prejudice.

¶ 17           On March 12, 2018, plaintiff retained new counsel, who is the same

         counsel on this appeal, and he moved to reconsider in the trial court. Previously

         both parties had agreed that Carroll was the controlling law and argued solely

         over its meaning; and plaintiff, again in this motion, argued that Carroll was in

         his favor. However, for the first time, on this motion to reconsider, plaintiff

         argued that, if the court did not find for him under Carroll, then it should

         abandon Carroll, citing "new" Illinois legislation enacted in 2016 and decisions

                                               7
       No. 1-18-1170

         from other states between 1987 and 2007. Plaintiff also made new policy

         arguments for the first time.

¶ 18           On March 19, 2018, the trial court entered an order directing, among

         other things, that:

                   "4. Counsel for Defendant shall tender, within 14 days, any and all

               documents in their client's possession relating to the sale of the

               engagement ring, including those evincing when the ring was sold, the

               sale price, the date of sale, and the location of the sale proceeds.

                   5. Defendant shall on or before April 16, 2018, deposit the full

               amount of the sale proceeds with the Clerk of the Circuit Court or in her

               counsel's client trust account where said funds shall remain pending

               further order of Court."

¶ 19           On April 16, 2018, defendant brought an emergency motion to vacate the

         trial court's March 19, 2018, order because the ring was sold in January 2017,

         for $36,000, and plaintiff had used the proceeds for her "expenses." The ring

         was sold after plaintiff broke off the engagement in December 2016, but before

         February 16, 2017, when he filed this action. On April 17, 2018, the trial court

         granted defendant's emergency motion and vacated its March 19, 2018, order.

¶ 20           On April 23, 2018, defendant responded to plaintiff's motion to

         reconsider, observing that plaintiff was raising new arguments for the first time.

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       No. 1-18-1170

          Defendant observed that the purpose of a motion to reconsider was to apprise

          the court of newly discovered evidence or changes in the law, and not to raise

          new legal theories.

¶ 21             At the hearing on the motion to reconsider, plaintiff argued that one

          could not reconcile Carroll with the repeal in 2016 of statutes permitting suits

          for a breach of a promise to marry and alienation of affection (the "heart-balm"

          statutes), and that Carroll should not be allowed to stand.         Rejecting this

          argument, the trial court observed that the purpose of a motion to reconsider

          was to bring to the court's attention newly discovered evidence or changes in

          the law. However, the court found that plaintiff "offers no newly discovered

          evidence or changes in the law since the rendering of this Court's decision" two

          months earlier. The changes argued by plaintiff happened years earlier. The trial

          court found, first, that plaintiff's argument was "a new argument that cannot be

          raised on a motion to reconsider" and that, second, even if it could be raised, it

          had "no merit" because, while the Illinois legislature passed an act repealing

          alienation of affection and breach of promise to marry, this act said nothing

          about replevin actions.4 Lastly, plaintiff argued that the trial court's decision



             4
               Illinois had previously permitted suits for the actual damages sustained as
       the result of a broken engagement (740 ILCS 15/2 (West 2012)), or due to
       "alienation of affection" (740 ILCS 5/2 (West 2012)). However, as of January 1,
       2016, the Illinois legislature eliminated causes of action for a breach of a promise
                                                 9
       No. 1-18-1170

          created bad policy, but the trial court found that it was not creating policy but

          rather following well-established Illinois case law.

¶ 22            On June 4, 2018, "[f]or the reasons stated on the record," the trial court

          issued an order denying plaintiff's motion to reconsider, and plaintiff filed a

          notice of appeal on the same day which stated that he was appealing "(1) the

          order dated February 14, 2018[,] dismissing this matter with prejudice," and

          "(2) the order dated June 4, 2018[,] denying Plaintiff/Appellant's Motion to

          Reconsider."

¶ 23                                       ANALYSIS

¶ 24            On this appeal, plaintiff raises exclusively the argument that he raised for

          the first time in a motion for reconsideration, namely, that this court should

          decline to follow Carroll. See Carroll, 392 Ill. App. 3d at 514 (the party who

          fails to perform the condition of the gift has no right to it); Harris v. Davis, 139

          Ill. App. 3d 1046, 1048 (1986) (the party who broke the engagement had no

          right to the ring). For the following reasons, we cannot find that the trial court

          abused its discretion in denying his motion for reconsideration and affirm.

¶ 25            The purpose of a motion to reconsider is to bring to a court's attention:

          (1) newly discovered evidence; (2) changes in the law; or (3) errors in the



       to marry (740 ILCS 15/10.1 (West 2016)) and for alienation of affection (740
       ILCS 5/7.1 (West 2016)).
                                                 10
       No. 1-18-1170

         court's previous application of existing law. River Plaza Homeowner's Ass'n v.

         Healey, 389 Ill. App. 3d 268, 280 (2009); North River Insurance Co. v. Grinnell

         Mutual Reinsurance Co., 369 Ill. App. 3d 563, 572 (2006); Chelkova v.

         Southland Corp., 331 Ill. App. 3d 716, 729 (2002). A reconsideration motion is

         not the place to raise a new legal theory or factual argument. River Plaza, 389

         Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572. Trial courts should not

         allow litigants to stand mute, lose a motion and then frantically gather new

         material to show that the court erred in its ruling. River Plaza, 389 Ill. App. 3d

         at 280; North River, 369 Ill. App. 3d at 572; Landeros v. Equity Property &

         Devlopment, 321 Ill. App. 3d 57, 65 (2001). As a result, legal theories and

         factual arguments not previously made are subject to waiver. River Plaza, 389

         Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572-73.

¶ 26           Our standard of review varies with the purpose of the reconsideration

         motion. "Where the motion was based only on the trial court's application or

         misapplication of existing law, we review de novo the trial court's decision to

         grant or deny the motion. [Citation.] But where the motion was based on new

         matters, such as additional facts or new arguments or legal theories not

         presented during the course of the proceedings leading to the order being

         challenged, the abuse-of-discretion standard applies." Spencer v. Wayne, 2017

         IL App (2d) 160801, ¶ 25; In re Estate of Agin, 2016 IL App (1st) 152362, ¶ 18;

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       No. 1-18-1170

         River Village I, LLC v. Central Insurance Cos., 396 Ill. App. 3d 480, 492

         (2009). In the case at bar, it is only the new argument that plaintiff argues on

         appeal; thus, the abuse-of-discretion standard applies.

¶ 27           An abuse of discretion occurs only when the trial court's ruling is

         arbitrary, fanciful, unreasonable or where no reasonable person would take the

         view adopted by the trial court. Thomas v. Weatherguard Construction Co.,

         2018 IL App (1st) 171238, ¶ 53; In re Marriage of Heroy, 2017 IL 120205, ¶

         24.   " '[A] trial court is well within its discretion to deny such a motion [to

         reconsider] and ignore its contents when it contains material that was available

         prior to the hearing at issue but never presented.' " Agin, 2016 IL App (1st)

         152362, ¶ 18 (quoting River Village, 396 Ill. App. 3d at 492-93).

¶ 28           Parties cannot spend months litigating on one and only one ground in the

         trial court and then appeal to a reviewing court on a completely different

         ground. The trial court proceeding is not a practice round. In the court below,

         the parties were in complete agreement that Carroll was the controlling law and

         argued only its application to the facts of this case. Then, for the first time, on a

         motion to reconsider, plaintiff argued that the findings in Carroll should be

         abandoned. A motion to reconsider is not the place for the inclusion of new

         arguments that could have been raised earlier. Actions like that simply waste

         everyone's time and money, as they did in this case, for over a year. In his reply

                                                12
       No. 1-18-1170

          brief, both in this court and in the court below, plaintiff argues that the

          argument was really the same, even though he argued on the basis of

          completely different statutes that he had not cited before and completely

          different case law that he had not cited before, including a new list of out-of-

          state cases on the issue. If ever there was a case that cried out for enforcement

          of the judicial policy reasons behind a motion to reconsider, this is it.

¶ 29             As a result, we cannot find that the trial court abused its discretion in

          denying plaintiff's motion to reconsider. Since plaintiff does not argue on

          appeal that the trial court misapplied Carroll and argues only that Carroll

          should be abandoned, and since that argument was not made before the trial

          court's initial order, that argument is waived and we cannot find that the trial

          court erred in issuing the initial order. Village of Arlington Heights v. Anderson,

          2011 IL App (1st) 110746, ¶ 15 ("[t]heories not raised" are waived on review).

¶ 30             Even if we were to consider the issue raised by plaintiff, the facts5

          indicate that this is not the case where we should abandon Carroll and create



             5
               By moving for summary judgment, plaintiff conceded that there was no
       genuine issue of material fact preventing disposition of the case. Likewise,
       plaintiff's motion for dismissal under section 2-619(c) conceded that the case could
       be resolved on the documents in the record. Thus, both parties conceded that the
       relevant facts were established and not in dispute—and those facts are rather
       simple. 735 ILCS 5/2-619(c), 5/2-1005(c) (West 2016). Ruby v. Ruby, 2012 IL
       App (1st) 103210, ¶ 13 (where both parties move for summary judgment, "they
       concede there are no genuine issues of material fact"); Bank of America, N.A. v.
                                                 13
       No. 1-18-1170

          new law. In the case at bar, plaintiff broke off their engagement and defendant

          moved to California from the apartment that they shared in Chicago By his

          own admission, plaintiff proposed to exchange moving expenses for the ring.

          Instead, defendant kept the ring, moved, and sold it herself. A month after it

          was sold, plaintiff sued in replevin for the return of the ring. Huber Pontiac,

          Inc. v. Wells, 59 Ill. App. 3d 14, 19 (1978) (where it is undisputed that

          defendant sold the item and no longer had possession, "replevin, a possessory

          action, could not lie against him"); International Harvester Credit Corp. v.

          Helland, 130 Ill. App. 3d 836, 838 (1985) (plaintiff has the burden in a replevin

          action to prove he is entitled to possess the property and that defendant is

          wrongfully detaining it). See also Carroll, 392 Ill. App. 3d at 514 ("[t]he

          primary purpose of the replevin statute" is to "place the successful party in

          possession of the property"); Carroll, 392 Ill. App. 3d at 515 (replevin action

          was proper, since the defendant had "made no affirmative allegations that

          someone else possessed the ring at the commencement of the instant action").

          Thus, the findings in Carroll and other Illinois precedent do not indicate that

          the trial court erred.

¶ 31             By eliminating the heart-balm statutes, the Illinois legislature chose to

          leave parties after a nonmarital break-up in the position that they decided to

       Carpenter, 401 Ill. App. 3d 788, 795 (2010) ("they concede the absence of a
       genuine issue of material fact").
                                               14
       No. 1-18-1170

          place themselves, in light of the risks that they chose to take under well-

          established precedent.6 If anything, the legislature's action in eliminating the

          heart-balm statutes in 2016 argues against plaintiff's use of replevin in this case,

          not for it.

¶ 32                                     CONCLUSION

¶ 33             For the foregoing reasons, we affirm the trial court's order dismissing the

          action.

¶ 34             Affirmed.




             6
              The legislature stated that the purpose of the repeal was to further "the
       amicable settlement of domestic relations disputes." Public Act 99-90, Section 1-1,
       Findings.
                                                 15
