Find Legal Information

SECOND DIVISION
June 11, 2002

This is the third appeal arising from breach of contract claims brought by three plaintiffsagainst defendant Mundelein College. The facts that underlie this present appeal are set out in Grayv. Loyola University of Chicago, 274 Ill. App. 3d 259, 264, 652 N.E.2d 1306 (1995) (Gray I), and Gray v. Mundelein College, 296 Ill. App. 3d 795, 695 N.E.2d 1379 (1998) (Gray II). A final orderconforming to the two appellate opinions was filed on January 11, 1999. No one appealed the order,which finally determined that Mundelein was liable for contract damages through 1996 in the caseof plaintiffs Gray and Hasty, and that Mundelein had breached its contract with Myers. Myers hadnever sought damages.

Subsequently, on June 23, 1999, Gray and Hasty filed a motion asking for damages for theyears 1997 and 1998. Myers field a motion under section 2-701(c) of the Illinois Code of CivilProcedure (Code) (735 ILCS 5/2-701(c) (West 2000)), asking for damages dating back to 1996. Thechancery division judge who heard these motions denied them, finding that he no longer hadjurisdiction. Gray and Hasty did not appeal this order. Myers moved for reconsideration, and afterdenial, filed an appeal.

Gray and Hasty meanwhile filed a new complaint in chancery. This complaint alleged thatGray and Hasty were tenured faculty members entitled to lifetime employment by Mundelein, anobligation Mundelein breached. Copies of the chancery court's order and our decision in Gray IIwere attached as exhibits. The complaint alleged that damages incurred through December 31, 1996,had been awarded. The complaint sought a declaration that Gray and Hasty were entitled to damagesfor lost earnings from January 1, 1997, to the present. Mundelein moved to dismiss the complaintunder section 2-615 of the Code. 735 ILCS 5/2-615 (West 2000). Mundelein argued that thecomplaint failed to state a claim amenable to declaratory judgment relief but, rather, was an actionat law. The trial court dismissed the complaint under section 2-615. The trial court concluded that"plaintiffs have an action at law for further damages incurred due to the breach which is only properin the Law Division."

Gray and Hasty argue on appeal that the dismissal of their declaratory judgment action wasin error because there is an actual controversy between the parties arising from Mundelein's refusalto concede liability for future lost earnings caused by its breach of contract.

Myers' appeal challenges the denial of her motion in the original chancery action foradditional relief under section 2-701(c) of the Code. Myers claims that the trial court has the powerand the duty to grant monetary relief under section 2-701(c) of the Code.

Mundelein responds that Gray and Hasty's future damage claims are not cognizable underthe declaratory judgment act because only legal, not equitable, relief is sought. Mundelein contendswith respect to Myers that her claim for damages is barred by our decision in Goldberg v. ValveCorp. of America, 89 Ill. App. 2d 383, 233 N.E.2d 85 (1967). Mundelein alternatively argues thatMyers' claim for damages is barred by the law of the case, based on our statement in Gray II thatMyers was entitled only to declaratory and injunctive relief. Gray II, 296 Ill. App. 3d at 809-10.

We entered an order consolidating the appeals. As to Gray and Hasty, we must determinewhether the claim may proceed in the chancery division as a declaratory judgment action or must bepursued in the law division as a complaint for damages arising out of a breach of contract. As toMyers, we must determine whether section 2-701(c) entitled her to make a present claim for moneydamages where she failed to seek them in the original action.

Gray and Hasty argue that whether they are entitled to future damages is uncertain underIllinois law, giving rise to an actual controversy that "can only be solved through a declaratoryjudgment." We disagree.

Gray and Hasty claim that a federal district case, Lewis v. Loyola University of Chicago, No.87 C 6329 (N.D. Ill. 1988), aff'd, Lewis v. Loyola University of Chicago, 872 F.2d 424 (7th Cir.1989), interpreted Illinois law to bar a second claim for damages from a breach of contract for whichdamages had already been awarded. Gray and Hasty contend that, if they had filed an action at lawseeking damages, Mundelein would have made the same arguments as those in Lewis and that "thesearguments, and the dispute about [Gray and Hasty's] entitlement to posttrial damages, present an'actual controversy' that is appropriately resolved in a declaratory judgment action." The contentionoverlooks a well-settled rule that a declaratory judgment action should not be used to secure advisoryopinions or legal advice with respect to future litigation. Messenger v. Edgar, 157 Ill. 2d 162, 170,623 N.E.2d 310 (1993). The actual controversy requirement ensures that a court will not passjudgment on abstract propositions of law. Messenger, 157 Ill. 2d at 170-71. We find Slack v. Cityof Salem, 31 Ill. 2d 174, 201 N.E.2d 119 (1964), analogous.

In Slack, the plaintiff filed a complaint to restrain the holding of a referendum to approve ordisapprove the issuance of revenue bonds. The plaintiff also sought a declaration that the statuteauthorizing the referendum was unconstitutional. Slack, 31 Ill. 2d at 175. Our supreme court foundthat, until the voters approved the referendum to issue the bonds, "there is no controversy that is ripefor a declaratory judgment." Slack, 31 Ill. 2d at 178. Similarly here, a court cannot make a findingon the effect of the Lewis case on Gray and Hasty's claim for damages unless and until the issue israised by Mundelein.

We note that whether Gray and Hasty are entitled to posttrial damages arising fromMundelein's breach of contract does not turn solely on an interpretation of Lewis, but on an analysisof a rule first established in Hamlin, Hale & Co. v. Race, 78 Ill. 422 (1875), that damages for breachof contract beyond the date of trial are barred as speculative. This rule was reaffirmed in MountHope Cemetery Ass'n v. Weidenmann, 139 Ill. 67, 28 N.E. 834 (1891), and later modified in Dohertyv. Schipper & Block, 250 Ill. 128, 95 N.E. 74 (1911), when our supreme court held that all damagesfor breach of contract must be recovered in a single action, barring future actions for damages. Asubsequent appellate case, Corby v. Seventy-One Hundred Jeffery Avenue Building Corp., 325 Ill.App. 442, 60 N.E.2d 236 (1945), did not follow Doherty.

In Corby, the plaintiff entered into an employment contract with the defendant that began onDecember 15, 1938, and ended on July 15, 1948. The plaintiff sued for breach when he wasterminated on September 19, 1940, two years into the 10-year term of employment. Corby, 325 Ill.App. at 445-46. After a December 31, 1942, bench trial, the plaintiff was awarded damages fromSeptember 19, 1940, the date of termination to July 15, 1948, the date of expiration of the contract. Corby, 325 Ill. App. at 455. The damage award was reversed on appeal. The Corby court found that,because the employment might be properly terminated at any time between the date of trial and theexpiration date, damages after the date of trial "would be largely speculative." Corby, 325 Ill. App.at 457. In limiting the plaintiff to accrued damages as of the date of trial, the Corby court, citing toMount Hope, said that the plaintiff could institute future proceedings "from time to time *** fordamages that he may have sustained, or he may wait until the expiration of the contract and recoverfor such damages, if any." Corby, 325 Ill. App. at 457.

These cases make clear that there is a difference between damages for events that have notyet occurred (and may never occur) and a new action for damages that have accrued since theoriginal action was terminated. Illinois law clearly proscribes claims for damages that have not yetoccurred, so-called "future damages." See Schoeneweis v. Herrin, 110 Ill. App. 3d 800, 808, 443N.E.2d 36 (1982); Jackson v. Hammer, 274 Ill. App. 3d 59, 64, 653 N.E.2d 809 (1995) (damagesmay not be speculative, remote or uncertain). But the term "future" damages here is imprecise asto Gray and Hasty, who seek to recover damages that accrued after the first case wasdecided-subsequent lost income as a result of Mundelein's breach of a tenure contract. The facts arenot unlike those in Corby, where the subject matter of the dispute was an employment contract thatextended beyond the date of the trial determining the breach. Allowing such subsequent actions foraccrued damages squares the Mount Hope rule against the award of speculative damages for breachof contract beyond the date of trial with the Corby court's recognition of a plaintiff's right to recoverdamages "from time to time" as they accrue, under a contract that has been held to be enforceablefor its entire term. We note, in passing, that at least one court disagrees. See Munoz v. ExpeditedFreights System, Inc., 775 F. Supp. 1181, 1187 n.6 (N.D. Ill. 1991). Corby, on the other hand, standsfor the proposition that new actions may be brought to recover damages that accrue after the originalaction is terminated. The remedy is appropriate where, as here, a long-term employment contractis implicated. Gray and Hasty's claims for damages are actions at law properly brought in the lawdivision. We reverse dismissal of their complaint and remand with directions that the complaint betransferred to the law division.

We now consider Myers' appeal. Myers contends that section 2-701(c) of the Codeempowers the trial court to assess money damages based on the trial court's earlier declaration thatdefendant breached the tenure contract. Mundelein disagrees, claiming that Goldberg v. Valve Corp.of America, 89 Ill. App. 2d 383, 233 N.E.2d 85 (1967), bars Myers' claim. We disagree.

Goldberg did not address the scope of section 2-701(c) but, rather, considered whether theplaintiff's complaint stated a claim for declaratory relief. Goldberg, 89 Ill. App. 2d at 390. We foundthat the plaintiff's complaint alleged a breach of contract that "is compensable in a traditional actionat law," which action the plaintiff was not "foreclosed from asserting." Goldberg, 89 Ill. App. 2d at391. Applying Goldberg's reasoning here, we conclude that Myers' motion for additional relief undersection 2-701(c) is also "compensable in a traditional action at law."

Mundelein argues that Myers is foreclosed from asserting an action for damages based onthe law of the case doctrine. In Gray II we said:

"But Myers is entitled only to a declaration that Mundelein breached itscontract. In defendant Mundelein's petition for rehearing, Mundelein notes thatMyers did not seek damages or prove damages before the trial court. Myers soughtonly a declaratory judgment and injunctive relief in her complaint.

We remand with directions to enter judgment for plaintiff Myers." Gray II,296 Ill. App. 3d at 809-10.

Mundelein's contention that this directive bars Myers' claim for money damages arising from thebreach of contract overlooks that Myers' entitlement to damages was not at issue in Gray II. All thatMeyers asked for in the case was a declaration that she be allowed to enforce her right toemployment under a tenure agreement. The directive only clarified the instructions to the trial courton remand in this consolidated case. Nor can Myers' option to seek equitable relief be deemed anelection of remedies. If a party has more than one remedy, selecting one of them is not a bar toanother remedy unless the remedies are inconsistent and the other party materially changes hisposition in reliance on the manifestation. Restatement (Second) of Contracts