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SIXTH DIVISION
October 21, 2005

PRESIDING JUSTICE McNULTY delivered the opinion of thecourt:

The trial court entered judgment on a jury verdict in favorof Mitchell Thomas and against the estate of Ramon Nightengale,but the court limited Thomas's recovery to the policy limits ofapplicable insurance. Thomas cashed a check from the insurer forthe amount the court permitted. The estate appealed, but madeits appeal contingent: it would seek a new trial only if a courtvacated the limitation on its liability or added in any other wayto the recovery the trial court permitted. Thomas cross-appealed, arguing that the trial court should not have limitedhis recovery to the policy limits, and the court allowedinadequate interest on the judgment.

The estate moved to dismiss Thomas's cross-appeal as mootbecause Thomas already accepted the benefits of the judgment henow attacks. We agree and therefore we dismiss the cross-appeal. We also dismiss the estate's contingent appeal because thecontingency that would trigger the appeal has not occurred.

Oralanda Davis gave birth to Thomas in January 1991. In1992 she moved, with her children, into an apartment in abuilding Nightengale owned. A few months later, when a medicalclinic found lead in Thomas's blood, the City of Chicago sent abuilding inspector to determine whether the apartment had leadhazards. The inspector found cracked and peeling paint on thewalls, and he measured dangerous levels of lead. Davis and herchildren promptly moved to a new apartment.

Thomas has a reading disability, an IQ around 70, andbehavioral problems associated with his attention deficithyperactivity disorder. In 1994 Thomas sued Nightengale fornegligently maintaining the apartment with leaded paint peelingoff the walls. He claimed the negligence caused hispsychological problems.

Nightengale died in 1998. Thomas moved for appointment of aspecial administrator of the estate, pursuant to section 2-1008(b)(2) of the Code of Civil Procedure (735 ILCS 5/2-1008(b)(2) (West 1998)) to continue the defense of the estate. The court granted the motion.

Trial began in February 2002. On February 26, 2002, thejury found Nightengale's estate liable to Thomas, and it assesseddamages totaling $1.6 million. The court entered judgment on theverdict.

On February 27, 2002, an attorney for the specialadministrator of Nightengale's estate offered Thomas's attorney acheck for $100,394.52, and demanded a release of judgment. Theadministrator claimed that section 2-1008 limited the estate'sexposure to the insurance policy limits of $100,000, plusinterest from the date of judgment. Thomas offered to accept thecheck as partial payment of liability but refused to sign arelease of judgment.

Thomas moved for assessment of costs on March 25, 2002. Thecourt granted the motion in part on April 19, 2002. The estatefiled a posttrial motion for a new trial or for a limitation onthe amount of Thomas's recovery. By order dated June 27, 2003,the court denied the motion for new trial, but the court foundthat section 2-1008 limited Thomas's recovery to the availableinsurance coverage. The court ordered the parties to take thesteps necessary for release of the judgment.

Thomas moved to compel the estate to assign to him the rightto sue the insurer for its refusal to settle the case beforetrial for the policy limits. Thomas also sought a ruling thatthe estate's tender of the policy limits on February 27, 2002,did not stop interest from accruing on the judgment.

The court found that the estate made a valid tender of theproper amount on February 27, 2002, and therefore, on July 23,2003, the court ordered a release of judgment pro tanto for theamount of the check. Thomas subsequently cashed the check for$100,394.52.

The estate filed a notice of appeal on July 28, 2003, butthe notice made the appeal contingent with the followinglanguage:

"By this appeal, the defendant-appellant *** willask the Appellate Court, in the event *** that thedefendant-appellant's liability is not limited to theproceeds of the insurance policy protecting the estateand that the defendant's previous tender on February27, 2002 was valid, and only in that event, to reversethat portion of the order of June 27, 2003 denyingpost-trial relief, and remand for a new trial."

Thomas filed a "NOTICE OF CROSS-APPEAL/APPEAL" on August 6,2003. In the notice Thomas asked this court to reverse theruling that limited his recovery from the estate to the amount ofthe check tendered on February 27, 2002, and to reverse thefinding that the offer of that check constituted a valid tenderthat stopped interest from accruing further.

The estate moved to dismiss the cross-appeal as moot becauseThomas had accepted the benefits of the trial court's judgmentwhen he cashed the check. We took the motion with the case.

Our supreme court has stated the applicable principles:

"[W]hen a judgment has been voluntarily paid orits benefits accepted the question becomes moot.

***

We believe that it is a salutary rule that a partywho either voluntarily satisfies a judgment under nolegal compulsion or voluntarily accepts the fruitsthereof has waived any error in the proceedings." County of Cook v. Malysa, 39 Ill. 2d 376, 379-81(1968).

See also Department of Public Works & Buildings v. Forbeck, 118Ill. App. 2d 231, 234-35 (1969).

Thomas argues that the stated principle does not apply herebecause his cross-appeal does not attack the underlying judgmentand, unlike the appellant in Forbeck, he does not seek a newtrial. The parties have cited no case with similarcircumstances, and our research uncovered no such Illinois case.

However, many other states have adopted principles similarto those stated in Malysa, and some of them have addressedmootness issues in circumstances like those of this case. InWilson v. Fullerton, 332 Ark. 111, 964 S.W.2d 208 (1998), thejury awarded the plaintiff a verdict for damages totaling$150,000. The trial court ordered a remittitur reducing the plaintiff's recovery to less than $31,000. The plaintiffappealed from the remittitur and two of the defendants cross-appealed, seeking a new trial. A third defendant paid theplaintiff its part of the damages the court awarded. Theplaintiff sought execution of the remainder of the $31,000judgment against the other defendants. The defendants moved todismiss the plaintiff's appeal. The court said:

"[A]cceptance of an amount less than appellant contendsis due him is an estoppel against his appeal only when,by seeking to gain more by the appeal, he risks asmaller recovery on reversal. [Citations.]

[The plaintiff] argues that, if we affirm thetrial court's remittiturs, he will be entitled to noless than the reduced judgment. He is in error. In thepresent case, [the plaintiff], by prosecuting hisappeal, incurs the hazard of recovering less than wasawarded him by the judgment appealed from. From theoutset of this litigation, [the defendants] have deniedthey owed [the plaintiff] any damages ***. ***

*** [If the defendants] prevail in their appealand obtain a new trial on the reversal and remand ofthis case, a jury on retrial could well determine nocompensatory damages should be awarded. ***

***

*** [W]hen [the plaintiff] voluntarily acceptedpartial satisfaction of the judgment, and later issueda writ of execution in an effort to satisfy the entirejudgment against [the defendants], he knew there was adispute as to whether he would be entitled to theremitted judgments he had obtained. He knew [twodefendants] had challenged all amounts of damages owed,and was well aware that they intended to continue thatchallenge, since they had filed a cross-appeal. [Theplaintiff], has, therefore, waived his right of appealby virtue of his execution efforts and the satisfactionof judgment against [the third defendant].Consequently, his appeal must be dismissed." Wilson,332 Ark. at 115-17, 964 S.W.2d at 210-11.

Similarly, in White Construction Co. v. DuPont, 423 So. 2d549 (Fla. App. 1982), the court held that the plaintiff'sacceptance of a payment of the judgment against the defendantfollowing a remittitur foreclosed the plaintiff's appeal from theremittitur, even though the plaintiff did not seek a new trialand expressly credited the payment pro tanto.

The court in Basic American, Inc. v. Shatila, 133 Idaho 726,745, 992 P.2d 175, 194 (1999), aptly stated the general rule:

"If the party has collected his judgment, and inseeking to gain more by the prosecution of an appealthereby incurs the hazard of eventually recoveringless, then his appeal should be dismissed. If, on theother hand, the appeal is from such an order orjudgment as that he could in no event recover a lessfavorable judgment and that he incurs no hazard of everreceiving less than the judgment already collected byhim, we see no objection to the prosecution of hisappeal." (Emphasis in original.)

Also, in Schubert v. Reich, 36 Cal. 2d 298, 223 P.2d 242(1950), the trial court granted the plaintiff a new trial oncondition of payment to the defendant of attorney fees. Thecourt held that the defendant, by accepting the payment of thefees, waived appeal from the order granting a new trial.

Here the relief Thomas seeks on appeal would trigger thecontingency in the estate's notice of appeal, opening the entirejudgment, including the amount Thomas has already accepted, toreconsideration. The estate has always disputed Thomas's rightto any recovery. With the limited notice of appeal the estateaccepts liability on the trial court's judgment, but only if theamount of the estate's liability as established in the finaljudgment remains undisturbed. Thus, by seeking to gain from thecross-appeal a recovery greater than the trial court awarded,Thomas incurs the hazard of recovering less, should we grant theestate a new trial on all issues. Under the principle stated inBasic American, as reflected in Wilson, Schubert, and WhiteConstruction, we dismiss Thomas's cross-appeal as moot because hehas accepted the benefits of the trial court's judgment.

As we have dismissed Thomas's cross-appeal, we have nogrounds to address the issue of whether the estate's "liabilityis not limited to the proceeds of the insurance policy," and wewill not review the trial court's finding "that the defendant'sprevious tender on February 27, 2002 was valid." The conditionsspecified in the estate's contingent notice of appeal have notoccurred. Accordingly, we dismiss the estate's appeal as well.

Appeal dismissed.

TULLY and FITZGERALD-SMITH, JJ., concur.