Wheeler Financial, Inc. v. Law Bulletin Publishing Co.
2018 IL App (1st) 171495
Ill. App. Ct.2019Background
- Wheeler Financial purchased a tax lien on property at 1656 N. Winchester and submitted a Take Notice to Law Bulletin Publishing to publish the statutorily required notice for obtaining a tax deed. Wheeler had used Law Bulletin for similar publications for ~15 years.
- Wheeler emailed a text file with hundreds of Take Notices (including Winchester) specifying an October 11, 2013 hearing date; Law Bulletin published the Winchester notice with the incorrect date of October 7, 2013.
- The property owner did not redeem; Wheeler applied for a tax deed but the circuit court denied Wheeler’s application on January 22, 2014, citing the defective published notice.
- Wheeler sued Law Bulletin for breach of (oral and implied) contract, seeking damages for the lost property value. Law Bulletin defended that a 15-year course of dealing required Wheeler (via its intermediary Midwest) to review the first publication and notify Law Bulletin of errors so Law Bulletin could republish within the deadline.
- At trial, testimony and a Midwest Policy Handbook supported Law Bulletin’s claim that Law Bulletin historically delivered the first-run paper to Midwest and would republish corrections free of charge; evidence conflicted about whether the paper was delivered and whether Wheeler/Midwest reviewed it in June 2013.
- The jury found Wheeler failed to perform its contractual obligations (i.e., to review and notify), returned a verdict for Law Bulletin, and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did denial of Wheeler’s motion for partial summary judgment present an appealable legal question? | Denial was error because Law Bulletin breached publishing agreement. | Denial raised factual disputes for trial. | Not appealable: denial involved genuine factual issues and merged into the judgment. |
| Did the trial court err by denying Wheeler’s directed verdict motion on breach of contract? | E‑mail exchanges and submissions created an enforceable contract and undisputed breach by Law Bulletin. | Course of dealing imposed mutual duties (Wheeler/Midwest to review first publication and notify); Wheeler failed to perform. | Denial affirmed: factual disputes and credibility issues meant verdict could stand. |
| Did the court err by giving Law Bulletin’s non‑IPI course‑of‑dealing instruction and rejecting Wheeler’s proposed instruction? | Wheeler: instruction could mislead jurors to accept unilateral understanding. | Law Bulletin: instruction accurately stated Illinois law and required mutual conduct. | Affirmed: instruction correctly tracked precedent and required a party (plural) understanding. |
| Were course‑of‑dealing materials and related in limine evidence (Handbook, masthead disclaimer, evidence about underlying tax‑proceeding service) admissible? | Wheeler: evidence was irrelevant, prejudicial, and functionally an exculpatory clause. | Law Bulletin: evidence was relevant to show long‑standing supplemental obligations and routine practice of republishing corrections. | Affirmed: evidence was relevant and not an implied exculpatory clause; any trial‑within‑a‑trial items were harmless. |
Key Cases Cited
- Davis v. International Harvester Co., 167 Ill. App. 3d 814 (discusses merger doctrine where summary judgment denial merges with later judgment)
- Wald v. Chicago Shippers Ass’n, 175 Ill. App. 3d 607 (course of dealing can give meaning to or qualify an agreement)
- H & H Press, Inc. v. Axelrod, 265 Ill. App. 3d 670 (prior course of dealing may be considered to determine terms of an oral contract)
- Carrico v. Delp, 141 Ill. App. 3d 684 (discusses prior course of dealing under Restatement principles)
- In re Estate of Bontkowski, 337 Ill. App. 3d 72 (parties are limited to recovering on pleaded theories)
- Israel v. National Canada Corp., 276 Ill. App. 3d 454 (standard of review for evidentiary rulings)
- Jewelers Mutual Ins. Co. v. Firstar Bank Illinois, 213 Ill. 2d 58 (exculpatory clauses must be clear; party cannot contractually promise then exempt itself from that promise)