Solimini v. Thomas

No. 2--97--0092
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

PAULA T. SOLIMINI, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff, )
) Nos. 94--L--1382
v. ) 94--L--1725 cons.
)
JOAN F. THOMAS, MARIA J. )
KALAMARAS, R.C. TOPSOIL, and )
ANTHONY M. CARNEY, )
)
Defendants )
)
(Joan F. Thomas, Plaintiff- )
Appellee; R.C. Topsoil, Anthony )
M. Carney, Defendants- ) Honorable
Appellants; Maria J. Kalamaras, ) Charles F. Scott,
Defendant). ) ) Judge, Presiding.
_________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:
This appeal is from a trial court order which denied a
contribution claim brought pursuant to the Joint Tortfeasor
Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq.
(West 1996)). The primary question raised in the appeal is whether
a plaintiff and a tortfeasor in a personal injury case made a good-
faith settlement which discharged the settling tortfeasor from
liability for contribution to a nonsettling tortfeasor.
On September 29, 1994, Paula Solimini sought recovery for
injuries she suffered in an automobile accident by filing a
negligence action (Solimini's case) against defendants Joan F.
Thomas (Thomas), Maria J. Kalamaras (Kalamaras), Anthony M. Carney
(Carney), and, on a theory of respondeat superior, Carney's
employer, R.C. Topsoil (Topsoil). Thomas also suffered injuries in
the same accident and brought a separate negligence action (Thomas'
case) against Kalamaras, Carney, and Topsoil. The circuit court
consolidated the two cases and tried them together. Prior to the
trial, all the defendants in the Solimini case filed counterclaims
for contribution against each other. On July 1, 1996, the jury
returned verdicts in the consolidated cases.
With respect to Solimini's case, the jury's verdict was in
favor of Solimini and awarded her total damages of $2,450,000.75.
The jury acquitted Kalamaras and apportioned 30% of the liability
to Thomas and 70% of the liability to Carney and Topsoil
(hereinafter sometimes collectively referred to as Topsoil).
With respect to Thomas' case, the jury's verdict was in favor
of Thomas and found that the total damages were $180,000. The jury
acquitted Kalamaras and apportioned 30% of the liability to Thomas
and 70% of the liability to Topsoil. After reducing Thomas' total
damages by the percentage of her negligence, the jury awarded
Thomas recoverable damages of $126,000.
While the jury was deliberating, attorneys for Solimini and
Thomas orally agreed to settle Solimini's claims against Thomas
(the Thomas settlement) for $50,000, which was purportedly the
limit of Thomas' insurance coverage. On July 12, 1996, Solimini
executed a release which stated that in consideration of $50,000
"in hand paid" Solimini released and discharged Thomas from all
claims against Thomas related to the Solimini case.
The record does not show whether Solimini ever actually
received the $50,0000 payment from Thomas or her insurer. However,
Solimini's attorney indicated in deposition testimony that his
office may have received a check from Thomas' insurer, but, if
received, the check was returned to the insurer because it included
lienholders among the payees which was not acceptable to Solimini.
On September 4, 1996, Solimini agreed to settle her claims
against Carney and Topsoil (the Topsoil settlement). On the same
date, Carney, Topsoil, and Topsoil's insurer obtained a release
from Solimini (the Topsoil release). The Topsoil release
discharged Carney, Topsoil, and the insurer from all claims arising
from Solimini's case in return for $2 million and acknowledged
receipt of that amount. On the same date, Solimini also executed
a "Release and Satisfaction of Judgment" (the Topsoil satisfaction
of judgment), which stated that it fully released "the judgment
entered on July 1, 1996 against defendants R.C. Topsoil and Anthony
M. Carney in the amount of TWO MILLION FOUR HUNDRED FIFTY THOUSAND
DOLLARS AND SEVENTY-FIVE CENTS ($2,450,000.75), plus costs and
statutory interests." On September 6, 1996, pursuant to the terms
of its settlement agreement, Topsoil delivered checks totalling $2
million to Solimini's attorney.
On September 10, 1996, Solimini's attorney signed a document
entitled "Release (Satisfaction) of Judgment." This document
stated that it released the judgment of $735,000.23 (30% of
$2,450,000.75) entered on July 1, 1996, against Thomas.
On November 12, 1996, Topsoil motioned for judgment on its
counterclaim for contribution against Thomas. The motion sought a
judgment of $234,999.46 against Thomas. This figure was based on
Topsoil's assertion that it had paid $284,999.46 in excess of its
pro rata share of the damages in the Solimini case. Topsoil
arrived at the figure of $234,999.46 by allowing $50,000 for the
amount Thomas had purportedly paid Solimini pursuant to the Thomas
settlement. In the alternative, Topsoil indicated that it was
willing to accept a full satisfaction from Thomas of the $126,000
judgment against Topsoil in the Thomas case.
After conducting a hearing on the matter, the trial court
entered a written order on December 18, 1996. The order stated,
inter alia, the following:
"IT IS HEREBY ORDERED:
A. On the judgment entered on the verdict of
$2,450,000.00 in favor of Plaintiff SOLIMINI, that R.C.
TOPSOIL and CARNEY shall recover of Defendant THOMAS the sum
of $735,000.00 on their counterclaim;
B. The Court further finds that the settlement
entered into between Plaintiff SOLIMINI and Defendant THOMAS
was in good faith, pursuant to 740 ILCS 100/2(c) and (d),
and further holds that the right to pursue contribution on
the counterclaim of R.C. TOPSOIL and CARNEY is barred and
extinguished by nature of that good-faith settlement,
pursuant to 740 ILCS 100/2(c) and (d)."
Topsoil and Carney subsequently filed a timely notice of appeal.
On appeal, Topsoil contends that the trial court erred when it
ruled that the Thomas settlement was a good-faith settlement.
Before we reach the merits of the appeal, we must address the
motion Thomas filed with this court to dismiss the appeal on the
ground that it is moot. We ordered the motion and the objections
to it taken with the case.
Thomas contends that Topsoil's appeal is moot because section
2(e) of the Contribution Act (740 ILCS 100/2(e) (West 1996))
precludes Topsoil from seeking contribution from Thomas. Section
2(e) provides that a tortfeasor who makes a good-faith settlement
with a claimant "is not entitled to recover contribution from
another tortfeasor whose liability is not extinguished by the
settlement." 740 ILCS 100/2(e) (West 1996). Thomas maintains that
Topsoil's settlement with Solimini did not extinguish Thomas'
liability to Solimini and therefore, under section 2(e), Topsoil
was not entitled to seek contribution from Thomas. Thomas argues
that the question of whether her own settlement with Solimini was
made in good faith is therefore moot.
Topsoil first responds that Thomas is barred from making her
section 2(e) argument in this court because she did not file a
cross-appeal. Topsoil asserts that the section 2(e) argument
Thomas makes in her motion in this court to dismiss the appeal is
the same argument that she made in the trial court. Topsoil
further asserts that the trial court expressly ruled against Thomas
with respect to her section 2(e) argument. Topsoil maintains that,
on the basis of its rejection of Thomas' section 2(e) argument, the
trial court entered a $735,000 contribution judgment against
Thomas. Topsoil argues that, when a decision contains a specific
adverse finding to an appellee, such as the trial court's ruling on
Thomas' section 2(e) argument, the appellee must file a cross-
appeal in order to raise the issue on appeal. In Topsoil's view,
because Thomas did not file a cross-appeal, she is barred from
raising the section 2(e) argument in her motion with this court and
has waived the argument for appeal.
Trial court findings adverse to an appellee do not require the
appellee's cross-appeal if the trial court judgment was not at
least in part against the appellee. Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 387 (1983). A party cannot
complain of error which does not prejudicially affect it, and one
who has obtained by judgment all that has been asked for in the
trial court cannot appeal from the judgment. Geer v. Kadera, 173 Ill. 2d 398, 413 (1996).
In this case, Thomas obtained all that she was asking for with
respect to Topsoil's motion for judgment on its counterclaim for
contribution. Thomas wanted a judgment that barred Topsoil's
contribution claim. The judgment did exactly that. It is true
that Thomas made two distinct arguments in the trial court that the
contribution claim was barred. The first argument was based on
section 2(e) of the Contribution Act and on Topsoil's settlement.
The second argument was based on sections 2(c) and 2(d) of the
Contribution Act and on Thomas' own settlement with Solimini. The
trial court rejected the section 2(e) argument and accepted the
argument based on sections 2(c) and 2(d). Nonetheless, Thomas
obtained what she wanted in the judgment. Therefore, under the
above principles, Thomas was not required to cross-appeal in order
to raise the section 2(e) argument on appeal.
Topsoil's contrary argument is not persuasive. Topsoil
asserts that part of the judgment was adverse to Thomas because the
judgment provided that Topsoil could recover $735,000 on its
counterclaim from Thomas. Topsoil asserts that the trial court
made this adverse part of the judgment after rejecting Thomas'
section 2(e) argument, the same argument Thomas now seeks to raise
on appeal. However, the transcript of the hearing on Topsoil's
counterclaim shows that the trial court did not make its ruling
that Topsoil could recover $735,000 from Thomas on the basis of its
rejection of Thomas' section 2(e) argument. Rather, the trial
court stated that the judgment in the Solimini case, as previously
entered, was incomplete and should have incorporated the
percentages of liability determined by the jury. It was on that
basis, rather than on the basis of its rejection of Thomas' section
2(e) argument, that the trial court entered the part of the
judgment adverse to Thomas.
For these reasons, we conclude that no part of the judgment
that was adverse to Thomas was based on her section 2(e) argument.
Consequently, Thomas was not required to cross-appeal in order to
raise the section 2(e) argument on appeal. We now turn to Thomas'
section 2(e) argument which is the basis of her motion to dismiss
the appeal.
Thomas' section 2(e) argument is premised on her view that the
Topsoil release did not release her. Thomas argues that because
she was not released Topsoil was not entitled to recover
contribution from her under section 2(e).
Topsoil counters that Thomas' section 2(e) argument fails
because it does not distinguish between a "release" and a
"satisfaction of judgment." Topsoil concedes that, by itself, the
release did not specifically identify Thomas and therefore did not
extinguish Thomas' liability to Solimini under section 2(e).
However, Topsoil contends that the satisfaction of judgment
Solimini executed as part of the Topsoil settlement extinguished
any liability Thomas had to Solimini, even though it did not
mention Thomas. Topsoil reasons that because the satisfaction of
judgment was for the full amount of the judgment it extinguished
the entire judgment and therefore also extinguished any liability
Thomas had to Solimini.
We agree with Topsoil. Section 2(e) plainly prohibits
contribution from another tortfeasor to a settling tortfeasor only
if the settlement in question did not extinguish the other
tortfeasor's liability. 740 ILCS 100/2(e) (West 1996). In this
case, the satisfaction of judgment that was part of the Topsoil
settlement acted to extinguish Thomas' liability to Solimini even
though it did not mention Thomas because it was for the full
judgment amount. See Meyer v. First American Title Insurance
Agency of Mohave, Inc., 285 Ill. App. 3d 330, 339 (1996) (proper
satisfaction of judgment bars any further attempts by judgment
creditor to enforce judgment). Because the satisfaction of
judgment extinguished Thomas' liability to Solimini, section 2(e)
of the Contribution Act did not prohibit Topsoil's contribution
claim against Thomas, and, the trial court correctly ruled against
Thomas' section 2(e) argument. For the same reasons, the section
2(e) argument Thomas makes in her motion in this court does not
render Topsoil's appeal moot. Accordingly, Thomas' motion to
dismiss the appeal on the ground of mootness is denied.
We now turn to the merits of Topsoil's appeal. Topsoil
contends that the trial court erred when it ruled that Thomas'
settlement was a good-faith settlement and therefore discharged
Thomas from contribution liability to Topsoil. Topsoil
acknowledges that under sections 2(c) and 2(d) of the Contribution
Act (740 ILCS 100/2(c), 2(d) (West 1996)) a good-faith settlement
between a tortfeasor and a claimant discharges the settling
tortfeasor from contribution liability to other tortfeasors.
However, in Topsoil's view, the Thomas settlement did not discharge
Thomas from contribution liability because it was not a good-faith
settlement.
In support of its position, Topsoil first argues that Thomas
failed to make a prima facie showing that her settlement agreement
with Solimini was a good-faith settlement because she failed to
show that Solimini received any "net consideration" in the
settlement agreement. Topsoil notes that both the Thomas release
and the Thomas satisfaction of judgment recite that Solimini
received $50,000 from Thomas. However, Topsoil asserts that there
is no evidence in the record to show that Solimini actually
received the $50,000 prior to the trial court's good-faith finding.
Topsoil argues that Thomas therefore failed to carry her burden of
establishing a prima facie showing of good faith and that the trial
court erred in its good-faith ruling.
Thomas responds that she showed that her settlement agreement
with Solimini was supported by consideration. Thomas maintains
that it is undisputed that she and Solimini entered an oral
settlement agreement while the jury was deliberating. Thomas
further maintains that the terms of the agreement were a promise by
Solimini to dismiss her claim against Thomas in exchange for a
promise by Thomas to pay Solimini $50,000. Thomas argues that
these mutual promises constituted sufficient consideration to
support the settlement agreement and that any delay by her in
making the actual payment to Solimini was immaterial with respect
to the sufficiency of the consideration.
The Contribution Act does not define the term "good faith"
and a court should therefore consider the totality of the
circumstances surrounding a purported settlement to determine
whether it was made in good faith. In re Guardianship of Babb, 162 Ill. 2d 153, 161-62 (1994). A settlement is considered prima facie
in good faith when the settling tortfeasor establishes that the
settlement was supported by consideration. McDermott v.
Metropolitan Sanitary District, 240 Ill. App. 3d 1, 44 (1992). A
finding as to the good faith of a settlement is within the
discretion of the trial court, and a reviewing court therefore will
not disturb a trial court's good-faith finding absent an abuse of
discretion. Babb, 162 Ill. 2d at 162.
In this case, the gist of Topsoil's contention that Thomas
failed to establish a prima facie good-faith showing is that Thomas
failed to show that Solimini actually received any "net
consideration." Essential to this contention is the proposition
that promised consideration must be actually received before it can
support a good-faith settlement finding.
This proposition is contrary to general contract principles.
Ordinarily, any act or promise which is of sufficient benefit to
one party or disadvantage to the other party constitutes sufficient
consideration to support an agreement. Johnson v. George J. Ball,
Inc., 248 Ill. App. 3d 859, 865 (1993). In addition, mutual and
concurrent promises provide sufficient legal consideration to
support each other. Anderson v. Vrahnos, 149 Ill. App. 3d 251, 255
(1986).
Under these principles the mutual promises exchanged by
Thomas and Solimini would normally be sufficient consideration to
support their settlement agreement. The mutual promises would
therefore support a finding of prima facie good faith regarding the
Thomas settlement.
Topsoil next posits that even if Thomas and Solimini exchanged
mutual promises the promises did not constitute sufficient
consideration to support the settlement agreement because a higher
standard of consideration is required to establish a good-faith
settlement under the Contribution Act. Applying this heightened
standard to this case, Topsoil argues that the only adequate
consideration supporting a good-faith finding for the Thomas
settlement would be that Solimini actually received the $50,000
promised by Thomas.
In support of its position, Topsoil relies on three cases:
Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d 887,
(1995), Alvarez v. Fred Hintze Construction, 247 Ill. App. 3d 811
(1993), and Higginbottom v. Pillsbury Co., 232 Ill. App. 3d 240
(1992). Topsoil focuses on language in these cases such as that in
Halleck which stated: "In order for a settlement to be in good
faith, the plaintiff must receive some net consideration for the
settlement agreement" (Halleck, 269 Ill. App. 3d at 899). Topsoil
argues that this language indicates an intent to heighten the
standard of consideration sufficient to support a settlement
agreement in a contribution case.
We disagree. A careful reading of the cases relied on by
Topsoil shows that Halleck and Alvarez merely adopted the "net
consideration" language used in Higginbottom. The Higginbottom
court used the term "net consideration" in the context of
determining whether a settling tortfeasor in that case had promised
anything to the plaintiff in a settlement agreement which would be
a real detriment to the settling tortfeasor. Higginbottom, 232
Ill. App. 3d at 256. The court determined that the settling
tortfeasor's apparent detriment was illusory because the tortfeasor
had not promised to pay anything in the settlement agreement that
it could not recoup and that it therefore had not promised any net
consideration as required by the Contribution Act. Higginbottom,
232 Ill. App. 3d at 256.
Thus, at most, these cases stand for the proposition that a
settling tortfeasor must agree to pay something to the plaintiff
which is a real detriment to the settling tortfeasor in order for
a settlement agreement to be a good-faith settlement. The cases do
not stand for the proposition urged by Topsoil that whatever was
promised must actually be received by the plaintiff before it can
be considered sufficient consideration.
In this case, in their oral settlement agreement, Thomas
promised to pay Solimini $50,000 in return for a release by
Solimini. Topsoil does not argue that the payment which Thomas
promised to make to Solimini would not be a real detriment to
Thomas. Therefore, when Solimini received Thomas' promise of the
$50,000 payment, she received sufficient net consideration from
Thomas to support the settlement agreement.
For these reasons, we conclude that Thomas made a showing of
consideration in support of her settlement agreement with Solimini
which was sufficient to establish a prima facie good-faith
settlement. We therefore reject Topsoil's contention that Thomas
failed to establish a prima facie good-faith settlement.
Topsoil also argues that the Thomas settlement was not a good-
faith settlement because it was only consummated after the Topsoil
settlement by which time Solimini no longer had any claims against
Thomas to be settled. This argument is clearly premised on
Topsoil's position that Solimini did not receive adequate
consideration from Thomas prior to Topsoil's settlement. However,
we have determined that Solimini received sufficient consideration
from Thomas to support their settlement agreement when Solimini
accepted Thomas' promise to pay $50,000 to Solimini. For this
reason, Topsoil's argument that the Thomas settlement was not
consummated prior to a time when there was nothing to be settled
fails.
Topsoil next contends that there was evidence of bad faith
with respect to the Thomas settlement beyond the consideration
issue. Topsoil first asserts that bad faith was somehow shown by
the inconsistence of the Thomas settlement with one of the policies
underlying the Contribution Act, namely, the policy of equitably
apportioning damages among joint tortfeasors. Topsoil notes that
the trial court's finding that the Thomas settlement was a good-
faith settlement not only barred Topsoil from recouping any of the
excess pro rata portion of its payment to Solimini, but also
allowed Thomas to attempt to collect on her $126,000 judgment
against Topsoil. Topsoil asserts that this result will allow
Thomas to make money through her settlement with Solimini because,
after collecting the $126,000 from Topsoil, Thomas will be $76,000
ahead without being required to contribute to Topsoil for its
excess pro rata payment in the Solimini case. Topsoil argues that
such a result is inconsistent with the policy underlying the
Contribution Act of equitable apportionment of damages among
tortfeasors and that the trial court abused its discretion by
allowing this result when it ruled that the Thomas settlement was
a good-faith settlement.
Topsoil's position would require a trial court to take into
account an independent case when deciding whether a settlement
agreement in a contribution action between the same parties
stemming from another case was made in good faith. We can discern
no such requirement either in the language of the Contribution Act
or in the policy underlying the Contribution Act of equitably
apportioning damages among tortfeasors. Topsoil is essentially
arguing for the addition of limitations to the Contribution Act
which are not expressed in the language of the Act or in its
underlying policies. We decline to impose such limitations.
Topsoil next contends that the trial court failed to fulfill
its obligation to conduct an evidentiary hearing as to whether the
$50,000 Thomas promised to pay Solimini was the full limit of
Thomas' insurance coverage. Topsoil asserts that, notwithstanding
the trial court's statement that there was no dispute as to the
amount of Thomas' insurance, there is nothing in the record to show
that Topsoil ever agreed with that finding and that Thomas offered
no proof that $50,000 was the actual limit of her coverage.
Topsoil acknowledges that Thomas' attorney argued in a trial court
brief that $50,000 was the limit of Thomas' insurance, but Topsoil
considers these arguments as nothing more than unsubstantiated
allegations not sufficient to support a good-faith finding.
Thomas responds that the trial court properly accepted the
statement of her attorney as to the amount of her insurance.
Thomas also asserts that whether the $50,000 actually constituted
her coverage limits was not determinative of good faith because the
$50,000 amount, in view of the circumstances surrounding the
settlement agreement, was sufficient to show that the settlement
was a good-faith settlement.
The Contribution Act does not specify the type of proceedings
necessary to determine whether a settlement was a good-faith
settlement. See Pritchard v. SwedishAmerican Hospital, 199 Ill.
App. 3d 990, 996 (1990) (good-faith determination left largely to
trial court discretion based on arguments of counsel, affidavits,
depositions, other discovery material, or evidence received at
hearing). It has been said that a court should not enter a good-
faith finding without conducting an evidentiary hearing. Muro v.
Abel Freightlines, Inc., 283 Ill. App. 3d 416, 419 (1996).
However, the type of evidentiary hearing required is within the
discretion of the trial court. Muro, 283 Ill. App. 3d at 419.
In this case, the trial court addressed the question of the
amount of Thomas' insurance limit during the hearing on Topsoil's
contribution claim. At that hearing, Thomas' attorney plainly
stated that the $50,000 Thomas agreed to pay Solimini was the limit
of her insurance coverage. More than once during the hearing, the
trial court indicated a willingness to conduct a further
evidentiary hearing on the matter if Topsoil wanted such a hearing.
Topsoil did not request such a hearing. On this record, it was not
an abuse of discretion for the trial court to make its good-faith
finding without an additional evidentiary hearing.
We also agree with Thomas that whether $50,000 was the actual
limit of her insurance coverage was not necessarily determinative
of the good faith of her settlement with Solimini. When Thomas
settled with Solimini, the jury was still deliberating and it was
therefore unknown whether the jury would find Thomas liable at all.
Under these circumstances and in view of the facts pertaining to
Thomas' culpability, Thomas and Solimini could reasonably agree in
good faith to settle with each other for $50,000, regardless of the
limits of Thomas' insurance coverage.
Finally, Topsoil contends that the good-faith finding as to
the Thomas settlement was both procedurally and substantively
defective because the trial court made its finding at an improper
time and in an improper context. Topsoil bases its contention on
the fact that Thomas did not seek a good-faith finding regarding
her settlement agreement with Solimini before Topsoil sought the
entry of a contribution judgment against Thomas. Topsoil argues
that the trial court erred when it allowed Thomas to seek a de
facto good-faith finding during the hearing on Topsoil's motion to
seek contribution from Thomas.
Topsoil is arguing that a tortfeasor who enters a settlement
agreement with a plaintiff in a case involving multiple tortfeasors
must immediately obtain a good-faith finding in order for the
settlement agreement to be a good-faith settlement. Topsoil made
this same argument in the trial court at the hearing on its motion
to seek a contribution judgment against Thomas. The trial court
considered the argument and rejected it on the ground that the
Contribution Act does not require a good-faith finding, but only
requires that a settlement be in good faith.
We agree with the trial court's reasoning. We find nothing in
the language of the Contribution Act which requires that a
tortfeasor immediately seek a good-faith finding after entering a
settlement agreement. We therefore conclude that Thomas' decision
not to seek an immediate good-faith finding was not inconsistent
with the Contribution Act.
Topsoil's argument that it was prejudiced by the delay in
Thomas seeking a good-faith finding does not change our conclusion.
There is nothing in the record to show that Topsoil made any
inquiries as to the possibility of other settlements in the
Solimini case before it entered its settlement with Solimini.
Consequently, Topsoil was itself responsible for any prejudice it
might have suffered from not knowing that Thomas had already
settled when it entered its settlement agreement with Solimini.
Based on the foregoing, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
THOMAS and RATHJE, JJ., concur.