Illinois Official Reports

Appellate Court

Schweihs v. Chase Home Finance LLC, 2021 IL App (1st) 191779

Appellate Court 

Caption

MELINDA SCHWEIHS, Plaintiff-Appellant, v. CHASE HOME 

FINANCE LLC, Successor by Merger to Chase Manhattan Mortgage 

Corporation, Successor by Merger With Chase Mortgage CompanyWest, f/k/a Mellon Mortgage Company; SAFEGUARD 

PROPERTIES, LLC; TODD GONSALEZ; and EDILFONSO 

CENTENO, Defendants-Appellees.

District & No. First District, Second Division 

No. 1-19-1779

Filed

Rehearing denied

June 29, 2021

July 22, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 17-L-6030; the 

Hon. James N. O’Hara and the Hon. Elizabeth M. Budzinski, Judges, 

presiding.

Judgment Affirmed.

Counsel on

Appeal

Edward T. Joyce and Jennifer L. Doherty, of Law Offices of Edward 

T. Joyce & Associates, P.C., and Joan M. Mannix, of Joan M. Mannix, 

Ltd., both of Chicago, for appellant.

Darcy L. Proctor, of Tressler LLP, of Chicago, for appellee Chase 

Home Finance LLC.
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Jeffrey S. Pavlovich and Gerard C. Fosco, of Leahy, Eisenberg & 

Fraenkel, Ltd., of Joliet, for other appellees.

Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the 

judgment of the court, with opinion.

Justices Lavin and Cobbs concurred in the judgment and opinion. 

OPINION

¶ 1 This appeal involves tort claims of trespass, negligent trespass, and assault. It arises from 

an incident on June 22, 2010, when defendants, Todd Gonsalez and Edilfonso Centeno, went 

to the home of the plaintiff, Melinda Schweihs, on a work order issued by defendant Safeguard 

Properties, LLC (Safeguard), to change the locks and “winterize” the house if it was found to 

be vacant. Acting on the incorrect belief that the house was vacant, Gonsalez and Centeno 

removed the lock on the back door, and Gonsalez entered the house. The plaintiff, who was in 

fact residing in the house, was present at the time. She became quite startled and distressed by 

the defendants’ entry into her home, demanded they immediately leave, and called her lawyer 

and the police. 

¶ 2 At the time of the incident, the plaintiff had fallen behind on her monthly mortgage 

payments owed to the defendant, Chase Home Finance LLC, successor by merger to Chase 

Manhattan Mortgage Corporation, successor by merger with Chase Mortgage Company-West, 

f/k/a Mellon Mortgage Company (Chase), and Chase had filed foreclosure proceedings against 

the plaintiff. The plaintiff’s mortgage contained the following provision: 

“7. Protection of Lender’s Rights in the Property. If Borrower fails to perform the 

covenants and agreements contained in this Security Instrument, or there is a legal 

proceeding that may significantly affect Lender’s rights in the Property *** then 

Lender may do and pay for whatever is necessary to protect the value of the Property 

and Lender’s rights in the Property. Lender’s actions may include paying any sums 

secured by a lien which has priority over this Security Instrument, appearing in court, 

paying reasonable attorney’s fees and entering on the Property to make repairs. 

Although Lender may take action under this paragraph 7, Lender does not have to do 

so.” (Emphases added.) 

Also, four weeks prior to the incident at issue, Chase had obtained a judgment of foreclosure 

against the plaintiff through an order that included the following provision:

“In order to protect and preserve the mortgaged real estate, it has or may also 

become necessary for [Chase] to pay fire and other hazard insurance premiums on the 

real estate or to make such repairs to the real estate as may reasonably be deemed 

necessary for the proper preservation thereof.” 

However, the plaintiff was within the statutory redemption period and had the right to full use 

and enjoyment of her house as of that time. See 735 ILCS 5/15-1603(b)(1)(ii) (West 2010). 
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¶ 3 The Federal National Mortgage Association (Fannie Mae) also had an interest in the 

plaintiff’s loan, and Chase was the loan servicer on behalf of Fannie Mae.1 Fannie Mae issues 

certain requirements and procedures for the servicing of mortgages that are delinquent or in 

foreclosure, including a requirement that a mortgage servicer perform property maintenance 

functions on mortgaged property throughout the process of a foreclosure, which “includes 

securing the property, *** winterizing the property, etc.”2 Under these requirements, a loan 

servicer must “[s]ecure a vacant property, by changing exterior locks, securing all windows 

and exterior doors.” To accomplish property maintenance functions such as these, Chase 

contracts with outside companies that perform property inspections and preservation services. 

Here, that company was Safeguard. In turn, Safeguard hires independent local vendors to 

physically go to properties to perform property inspection and preservation services. The local 

vendor that Safeguard hired in this case was A1 Builders, Inc. (A1 Builders), and Gonsalez 

and Centeno were subcontractors hired by A1 Builders.

¶ 4 A master contract exists between Chase and Safeguard that describes the scope of services 

and activities that Chase requires of Safeguard. It provides that when a mortgage is 45 days 

delinquent, Chase automatically issues Safeguard a request to perform a property inspection. 

“Upon receipt of the request, [Safeguard] will promptly perform the Property inspection 

Services in accordance to [Chase’s] investor’s/insurer’s requirements.” The contract goes on 

to provide that when Safeguard performs an inspection and “assesses the Property as 

abandoned,” it shall promptly notify its property preservation department “to begin the 

property preservation process as described below.” (Emphasis added.) The contract then 

provides that, as part of that property preservation process, “[u]pon notification that the 

Property is abandoned as provided above, *** [Safeguard] will assess the repairs or 

maintenance needed, and thereafter schedule the required work in accordance with the 

applicable Requirements.” (Emphasis added.) The contract’s list of activities required to be 

performed by Safeguard includes, under the subheading of “Property Preservation,” changing 

locks, securing, and winterizing. 

¶ 5 Chase also had an internal policy and procedure for property inspection and preservation, 

which states that its property inspection vendors send a report of property inspection results to 

Chase on a daily basis indicating one of five occupancy statuses for a property: 

“Occupied—The property is occupied based on visual observations, such as 

vehicles parked in the driveway, utility meters running, furniture being visible, and/or 

occupants being present. 

Vacant—The property is vacant based on the absence of the personal items on or 

in the property. 

Unknown—Vendor was unable to determine the vacancy due to no one home to 

verify and could not see if personals were on site.

Occupied By Unknown—Personals are present but no one is available to verify 

who is living there. 

1

The parties dispute whether Fannie Mae should be considered the owner of the plaintiff’s mortgage 

or merely an investor. However, they agree that Fannie Mae had an interest in it and that Chase’s 

servicing of the mortgage was subject to Fannie Mae’s loan servicing guidelines. 

2Winterizing a property generally refers to shutting off the water supply to the property and 

removing water from toilets, hot water heaters, etc., to avoid any issues associated with freezing. 
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1st Time Vacancy—The property is reported as vacant for the 1st time since 

monthly property inspections commenced.” 

The policy and procedure also states that Chase’s business practices require the performing of 

property preservation work on “vacant properties,” which includes securing the property, 

winterizing it, and cutting the grass. It states that Chase requires property preservation vendors 

to secure a property immediately upon notification of a “vacancy,” which they do by changing 

door locks, among other things.

¶ 6 Prior to June 17, 2010, Safeguard’s vendors had conducted monthly inspections of the 

plaintiff’s property pursuant to Chase’s requests, all of which had indicated that the plaintiff’s 

residence was occupied. However, on June 17, 2010, Safeguard received a report from a vendor 

named John Albert stating that the property was vacant for the first time. The report indicated 

that the gas had been shut off, that the electric and water were on, that the grass had been 

mowed and was three inches high, and that no for-sale sign was posted. It recommended 

maintenance to the property in the form of changing the locks and winterizing it. In response 

to Albert’s report, a Safeguard representative requested that he clarify what he saw on site that 

led him to believe that the home was vacant. In response, Albert communicated the following:

“The property looks like it belonged to a hoarder, there was never an answer 

anytime I have been at the property[.] This past inspection, the same thing, but I did 

notice that the gas meter is turned off, electricity and water are still? [sic] on, and there 

is a dumpster in front of property, indicating that someone is trying to clean property. 

I spoke to the neighbor to the left? [sic] and across the street of the property, and they 

also verified that they have seen people at property, but not fully occupied??” 

¶ 7 Based on Albert’s report, a Safeguard representative then issued a work order to A1 

Builders to change the locks and winterize the property, tasks which were assigned to Gonsalez 

and Centeno to perform on June 22, 2010. The work order stated that they were to complete 

the work only “[i]f property is vacant.” It also stated, “If property is occupied, report how 

verified and do no work.” Additionally, it stated that if the property was posted for sale, they 

were to make two attempts to contact the realtor to confirm that the property was not being 

maintained prior to doing any work. 

¶ 8 Gonsalez and Centeno went to the plaintiff’s residence the same day. Gonsalez testified 

during his discovery deposition that when they arrived, he and Centeno conducted a visual 

inspection of the property. He observed that the grass on the property was uncut and the trees 

were overgrown. Gonsalez knocked on the front door but did not receive an answer. He also 

checked the gas meter and the water spout and determined that the water and gas utilities were 

off. He observed a “for sale” sign at the property, along with a dumpster and a car parked in 

the driveway.

¶ 9 Gonsalez spoke with a neighbor who lived across the street from plaintiff’s home. Gonsalez 

testified that the neighbor told him that the house was not occupied but a woman would come 

and go on occasion, and there were no lights on at the home at night. He also testified that the 

neighbor told him she had never seen the car that was in the plaintiff’s driveway before, but 

that people from the school down the street would sometimes park there “knowing it was a 

vacant property.” 

¶ 10 Centeno testified during his discovery deposition that he did not talk with any neighbors 

but that he recalled that Gonsalez told him the neighbor stated that “they come and go. And 

sometimes they leave their vehicle there.”
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¶ 11 After speaking with the neighbor, Gonsalez again knocked on plaintiff’s front door, 

without a response. He testified that he and Centeno spent in excess of 45 minutes determining 

if the house was occupied. It is undisputed, however, that they never called the realtor listed 

on the “for sale” sign posted on the property, and nobody called the attorney who was 

representing the plaintiff in the foreclosure case. They entered the backyard through a latched 

gate of the home’s six-foot security fence. Gonsalez testified that through the sliding glass door 

he saw boxes of what appeared to be garbage piled “like a trashed house, which I see often.” 

He contacted management at A1 Builders, relayed the above information, and was told to 

proceed with the work order.

¶ 12 To secure the premises, Gonsalez had to remove one of the secondary locks on the property. 

He removed the lock to the back door. Because of the boxes and debris blocking the entrance, 

Gonsalez could only open the door about a foot and had to climb over them to enter the home. 

Centeno remained at the back door and never entered the home. Once inside, Gonsalez noticed 

that something was also leaking from the ceiling onto the top of the debris. He testified that 

when he was about four or five feet inside the house, he was confronted by the plaintiff. Both 

parties were startled. The plaintiff said that she wanted them out of her house and that she was 

calling her lawyer. Gonsalez responded he was with the mortgage company and asked her to 

come to the front door to speak with him. Gonsalez then left and went around to the front and 

knocked on the front door, but the plaintiff did not answer. Gonsalez and Centeno then waited 

for the police to arrive.

¶ 13 The plaintiff was a 58-year-old single woman who was living alone. She testified during 

her discovery deposition that her home was in foreclosure; however, she anticipated selling 

her home while it was still in the redemption period. The plaintiff testified that when she placed 

the house for sale, she informed the realtor that the realtor was to accompany anybody that 

came to the property. She also testified that she was not showing the interior of the house 

because of the “mess” and “stuff everywhere” in piles and in boxes. She described herself as a 

“packrat” and testified she was in the process of packing her belongings, which were in 

disarray.

¶ 14 The plaintiff heard knocking on the front door while she was in the basement; however, 

she was on the phone and did not respond. After the phone call, she went to the second floor 

of her home to continue packing. She stated that she heard the flap drop on the metal mailbox 

attached to her house, at which time she looked out a second-floor window. She testified that 

she saw two men standing in her driveway, along with a green truck facing the street, without 

any markings except for a “Harley” decal on the back window. The plaintiff thought that they 

may have been potential buyers looking at the house, and she decided to continue to pack.

¶ 15 A short time later, the plaintiff heard noises coming from the back of the house. She went 

downstairs to identify the noise and encountered Gonsalez in the family room. She testified 

that Gonsalez was not wearing a uniform but was in street clothes with tattoos exposed. 

Centeno was in the open back doorway. The plaintiff testified that she spoke first and asked, 

“Who are you and what are you doing in my home?” Although neither man verbally threatened 

her, their presence blocked the back door to her house. They were standing close to the plaintiff 

and stated in a “forceful way” that Chase had sent them to secure and winterize the house and 

that she needed to come outside to talk with them. When she first saw Gonzalez, he moved a

little toward her and had his arms out. Based on the presence of the two men in her house and 

their appearance and movements, the plaintiff testified that she feared she was going to be 
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attacked or raped. She told them to leave and immediately called her attorney and the police. 

She stayed on the phone with the police dispatcher until the police arrived. The police 

investigated, speaking with plaintiff, Gonsalez, Centeno, and the neighbor with whom 

Gonsalez had spoken. No arrests were made. Gonsalez offered to replace the back-door lock 

with a new lock and key, but the plaintiff declined.

¶ 16 The plaintiff testified that after the incident she was afraid while in her home and fearful 

that she may be attacked. On the same day of the incident, plaintiff went to the hospital because 

she “didn’t feel right.” Subsequently, she sought treatment, therapy, and medication from 

multiple doctors for issues with sleeping, post-traumatic stress, anxiety, and depression. The 

plaintiff stated that she felt anxiety when approaching her home and that at times she stayed in 

hotels because of her fear of subsequent break-ins. She was inhibited from packing and 

preparing her home for sale because of this fear. Additionally, she alleged that she sought 

temporary leave from her employment due to the incident but that her request was denied and 

she was instead terminated.

¶ 17 Later that year, the plaintiff filed a five-count complaint against the defendants, alleging 

trespass, negligent trespass, private nuisance, intentional infliction of emotional distress, and 

negligence. Following discovery and motion practice, the defendants filed motions for 

summary judgment as to each count of the plaintiff’s complaint. Before ruling on those 

motions, the trial court granted the plaintiff leave to amend the count alleging negligence to 

one alleging negligent infliction of emotional distress. The trial court then entered summary 

judgment in the defendants’ favor on the plaintiff’s counts alleging private nuisance and 

intentional infliction of emotional distress, dismissed the amended count alleging negligent 

infliction of emotional distress, and made a finding under Illinois Supreme Court Rule 304(a) 

(eff. Feb. 26, 2010) that there was no just reason for delaying the appeal of its order. The trial 

court found that issues of fact prevented the entry of summary judgment on the counts alleging 

trespass and negligent trespass, and it ordered that those two counts be held in abeyance 

pending the appeal of its ruling on the other counts. 

¶ 18 The case was appealed to this court, and a majority affirmed the entry of summary 

judgment on the claims for intentional infliction of emotional distress and private nuisance and 

the dismissal of the claim for negligent infliction of emotional distress. Schweihs v. Chase 

Home Finance, LLC, 2015 IL App (1st) 140683. The supreme court then allowed a petition for 

leave to appeal involving the two emotional distress counts. Schweihs v. Chase Home Finance, 

LLC, 2016 IL 120041. On the claim alleging negligent infliction of emotional distress, the 

supreme court held that the amended complaint failed to allege a cause of action because of 

the plaintiff’s inability to allege that she suffered a contemporaneous physical injury or impact, 

as required for that tort. Id. ¶ 44. In a special concurrence, Justice Garman noted that an 

allegation of a contemporaneous physical impact or injury was not a pleading requirement for 

a plaintiff to recover emotional distress damages as an element of the compensatory damages 

for a tort other than negligent infliction of emotional distress. Id. ¶ 80 (Garman, J., specially 

concurring). Justice Garman further noted that the plaintiff still had other tort claims pending 

(i.e., the two trespass counts) and that it was unknown then whether damages for emotional 

distress were available for those other claims or whether such damages could be proven. Id.

¶ 81. 

¶ 19 On the claim alleging intentional infliction of emotional distress, the supreme court held 

that there was no genuine issue about the fact that the conduct of Gonsalez and Centeno did 
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not rise to the requisite level of being “extreme and outrageous.” Id. ¶¶ 54, 61 (majority 

opinion). In doing so, the court rejected the plaintiff’s argument that the defendants had “no 

legal justification for their entry into the property,” on the basis of the provision in the 

plaintiff’s mortgage allowing Chase to enter the property to make repairs if the plaintiff fell 

into default. Id. ¶ 57. Citing that contractual provision and the provision of the foreclosure 

judgment order that allowed Chase to make such repairs as it reasonably deems necessary for 

the preservation of the real estate, the supreme court stated: “Therefore, we find that Chase had 

the right to enter the property to make reasonable repairs for the preservation of the property. 

Although plaintiff argues that the house was not in need of repairs, she does not explain how 

defendants were to know or determine that.” Id. ¶ 58. 

¶ 20 Following remand, the plaintiff was granted leave to amend her compliant two additional 

times. The operative third amended complaint thus contained counts alleging trespass, 

negligent trespass, and assault. It initially contained a count for negligence also, but that count 

was dismissed and is not at issue in this appeal. The trial court also granted (on reconsideration) 

a motion to dismiss the count alleging assault on the basis that the assault claim was barred by 

the doctrine of res judicata. In the same order in which it dismissed the assault count, the trial 

court also denied motions for summary judgment filed by the defendants on the assault count. 

¶ 21 The case was ultimately assigned for trial on the trespass claims. Various motions in limine 

and other pretrial motions were considered by the trial judge. Three of those are pertinent to 

this appeal. First, the trial court granted a motion in limine barring the plaintiff from presenting 

evidence concerning the emotional distress she suffered as a result of the incident at issue on 

the basis that Illinois law does not permit the recovery of damages for emotional distress on a 

claim of trespass to real property. Second, the trial court denied the plaintiff’s motion for leave 

to amend her complaint to include a prayer for relief seeking punitive damages (see 735 ILCS 

5/2-604.1 (West 2018)), finding that there was no reasonable likelihood that facts could be 

established to support punitive damages. This ruling was based on the extent of the 

investigation that Gonsalez and Centeno undertook to determine whether the plaintiff’s 

property was occupied prior to entering it, as well as the fact that their entry was made 

according to a contractual right under the mortgage. 

¶ 22 Finally, the trial court granted in part a motion in limine to bar the plaintiff from presenting 

evidence on the internal policies and procedures of Chase and Safeguard. That motion in limine 

asserted that Chase, through its agents, had a legal justification to enter the plaintiff’s property 

under the mortgage contract and the judgment of foreclosure and the internal policies and 

procedures of Chase and Safeguard were irrelevant because they did not create or define either 

the scope of the right to enter the plaintiff’s property or any duty or standard of care for 

exercising that right. In the plaintiff’s written response, the plaintiff argued that, despite the 

fact that the mortgage contract gave the lender broad rights to protect its property, Chase still 

had to exercise that right in an appropriate manner, without interfering with the plaintiff’s right 

to uninterrupted use and enjoyment of her home during the redemption period. The plaintiff 

argued that the internal protocols of Chase and Safeguard were relevant because they set forth 

“the standard of care to be exercised by Defendants in making an inspection” and “the 

reasonable manner in which Chase must act.” The plaintiff argued that, under those protocols 

(which, the plaintiff asserted, encompassed and were consistent with Fannie Mae’s rules and 

regulations), the only circumstances in which Chase and its agents had a right to enter the 

plaintiff’s home to change the locks or winterize was if the home was first determined to be 
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“ ‘abandoned.’ ” See supra ¶ 5. The plaintiff argued that the defendants had ignored various 

indications that the home had not been “abandoned” as of the day at issue, including a car and 

dumpster being in the driveway, some of the utilities being on, and the fact that a neighbor said 

that someone comes and goes. The plaintiff argued that it was a fact question for the jury how 

Chase was to implement its right to enter the plaintiff’s home under the mortgage agreement 

and the Chase and Safeguard protocols were relevant on that question. 

¶ 23 At oral argument, the parties made arguments that were largely consistent with those set 

forth in their written materials. The defendants’ attorneys reiterated that it was a trespass case 

in which the defendants’ right to enter the property was governed by the terms of a contract, 

as opposed to a negligence case governed by a standard of reasonable conduct. They argued 

that the internal protocols were not incorporated into the contract and were not provisions upon 

which the plaintiff had any right to rely. The plaintiff’s attorney acknowledged that Chase and 

its agents had a contractual right to determine whether repairs were necessary and could make 

an inspection, but he argued that the critical issue in the case was “how to implement that right” 

to enter the property consistent with the plaintiff’s right to live in the house during the 

redemption period. He argued that it was only appropriate for Chase’s agents to enter if they 

first determined there had been an “abandonment,” as required by the protocols. He argued 

that the internal protocols were evidence of what the standard of care was. 

¶ 24 The trial court ruled that the protocols, policies, and procedures of Chase, Safeguard, and 

Fannie Mae could not be considered by the jury to determine whether a trespass had occurred. 

It reasoned that there was a mortgage contract between the parties that gave Chase the right to 

enter the property to make repairs for the preservation of the property, a right which had been 

specifically found to exist by the supreme court (see Schweihs, 2016 IL 120041, ¶¶ 57-58), and 

that contractual right was not qualified by or made subject to compliance with any internal 

protocols or procedures of Chase, Safeguard, or Fannie Mae. The trial court reasoned that, if 

it found that the internal protocols and procedures were incorporated into the contract, it would 

be changing the terms of the parties’ contract. It reasoned that the case was one for trespass, 

not a case involving the defendants’ duties and obligations regarding implementation of the 

right to enter the plaintiff’s house. 

¶ 25 Following this ruling by the trial court, a discussion occurred at the hearing about whether 

the claims for trespass could still be proven in light of the evidence that the trial court had just 

barred. The plaintiff’s attorney acknowledged that, given that the trial court’s ruling prevented 

him from introducing evidence to prove that the defendants had wrongfully implemented their 

right to enter, “there’s no trespass case to try.” As a result, the trial court entered an order 

dismissing the lawsuit with prejudice. The plaintiff then filed a timely notice of appeal.

¶ 26 ANALYSIS

¶ 27 Trespass Claims

¶ 28 We first address the plaintiff’s argument that the trial court erred when it dismissed the 

plaintiff’s trespass claims with prejudice after barring the plaintiff from introducing evidence 

of the protocols, policies, and procedures of Chase, Safeguard, and Fannie Mae. The plaintiff 

contends that the trial court’s barring of this evidence was error. She argues that she should 

have been allowed to use this evidence to show how the defendants themselves interpreted 

their contractual right to enter the plaintiff’s house during the redemption period and to prove 

that they wrongfully implemented that right by entering her house without determining that it 
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had been abandoned and when there was no indication that repairs or preservation measures 

were needed. 

¶ 29 Preliminarily, it is not clear to this court exactly what documents the plaintiff was barred 

from introducing by the trial court’s order. Although the trial court directed the parties to 

prepare an order setting forth exactly what evidence had been barred, it does not appear that 

such an order was entered. Furthermore, the parties use varying terminology to refer to the 

evidence barred. From the parties’ briefs to the trial court and this court, it appears to us that 

the evidence barred included (1) the master contract between Chase and Safeguard; (2) an 

internal Chase document titled “Property Inspection & Preservation All Products Operating 

Procedure”; and (3) Fannie Mae documents titled “Property Maintenance and Management: 

Property Preservation Matrix and Reference Guide” and “2010 Servicing Guide Update Parts 

VII and Parts VIII.” We note that the plaintiff repeatedly refers without specific citation to 

Fannie Mae’s “rules and regulations,” but it is not our understanding that any of the evidence 

involved is a regulation having the force of law. For simplicity, we will refer to all of these 

documents as “policies and procedures.” 

¶ 30 Furthermore, although the plaintiff’s third amended complaint contains counts for both 

intentional and negligent trespass, the plaintiff’s brief draws no distinction between these two 

theories for purposes of her argument on this issue. As a result, neither do we. A defendant 

commits the tort of trespass by entering onto a plaintiff’s land without permission, invitation, 

or other right. Benno v. Central Lake County Joint Action Water Agency, 242 Ill. App. 3d 306, 

313 (1993). “One is subject to liability for an intentional intrusion on land irrespective of 

whether he causes harm to a legally protected interest.” Dial v. City of O’Fallon, 81 Ill. 2d 548, 

553 (1980) (citing Restatement (Second) of Torts § 158, at 277 (1965)). A plaintiff does not 

need to prove actual harm to recover damages for the intentional tort of trespass, as every 

trespass entitles the plaintiff to at least nominal damages. Chicago Title Land Trust Co. v. JS 

II, LLC, 2012 IL App (1st) 063420, ¶¶ 77, 88. Furthermore, a defendant can be liable in trespass 

not only for his own entry onto the plaintiff’s land but also if he causes a thing or third person 

to enter onto it. Dial, 81 Ill. 2d at 554. It is a defense to an action for trespass that the 

defendant’s entry was permitted by the terms of a valid and lawful contract. 87 C.J.S. Trespass

§ 49 (2021).

¶ 31 In this case, the defendants’ position was that no trespass had occurred when Gonsalez and 

Centeno entered the plaintiff’s property because of the provision in the mortgage giving Chase 

the right, if the plaintiff defaulted or there was a legal proceeding significantly affecting the 

lender’s rights in the property, to “do and pay for whatever is necessary to protect the value of 

the Property and the Lender’s rights in the Property.” They contended that the contract 

specifically contemplated that such “actions may include *** entering on the Property to make 

repairs” but that the actual right granted is much broader than just the right to enter for the 

purpose of making repairs. They asserted that the foreclosure judgment order was a further 

basis of Chase’s right of entry “to make such repairs to the real estate as may reasonably be 

deemed necessary for the proper preservation thereof.” And they asserted that the supreme 

court had already made a specific finding based on the contract and judgment order “that Chase 

had the right to enter the property to make reasonable repairs for the preservation of the 

property.” Schweihs, 2016 IL 120041, ¶¶ 57-58. 

¶ 32 It is the plaintiff’s position on appeal that, although the mortgage provision at issue allows 

the defendants to take steps actually necessary to preserve the property and to make reasonable 
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repairs, it does not give the defendants “unfettered access” to enter the mortgaged property 

regardless of the reason. The plaintiff points out that Gonsalez and Centeno were not sent to 

the plaintiff’s house for the purpose of making repairs, and there is no evidence that any repairs 

were necessary to preserve the property as collateral. Instead, Gonsalez and Centeno were sent 

there for the purpose of changing the locks and winterizing it (in June), and thus, the plaintiff 

argues, the mortgage provision does not control. 

¶ 33 The plaintiff contends that evidence of the policies and procedures of Chase and Fannie 

Mae were proper evidence that these companies did not interpret the mortgage provision at 

issue as providing an unfettered right, following default, to enter the property regardless of any 

need for repairs. The plaintiff asserts that these policies and procedures were designed to ensure 

that nobody entered the property without a right to do so, by providing that entry could be 

made only upon a finding of “abandonment” and by specifying procedures for determining 

whether a property had been “abandoned.” Specifically, the plaintiff cites the provisions of the 

contract between Chase and Safeguard providing that (1) when Safeguard performs an 

inspection and “assesses the Property as abandoned,” it shall promptly notify its property 

preservation department “to begin the property preservation process as described below,” and 

(2) “[u]pon notification that the Property is abandoned *** [Safeguard] will assess the repairs 

or maintenance needed, and thereafter schedule the required work in accordance with the 

applicable Requirements.” She argues that, according to this contract between Chase and 

Safeguard, there must be a finding of “abandonment” before the right to enter the property to 

make necessary repairs or take other property preservation measures is triggered, including 

changing the locks and winterizing a property. Thus, the plaintiff contends, the operative 

question in this trespass case is whether the plaintiff had “abandoned” her property and “not 

whether it was vacant, as Defendants found.” 

¶ 34 Based on the points discussed above, the plaintiff contends that she should have been 

allowed to put on evidence not just of the express language of the mortgage but also of the 

policies and procedures that reflected the defendants’ interpretation of their own right to go 

onto the plaintiff’s property and the way they balanced that right against the plaintiff’s right to 

exclusive and uninterrupted use and enjoyment of her home during the redemption period. The 

plaintiff argues that she should have been allowed to put on evidence that the defendants 

violated the requirements of their own policies and procedures by their actions in this case and 

that a jury should have decided whether the parties’ respective rights were balanced under the 

circumstances of this case.

¶ 35 The defendants respond that the trial court never found that the mortgage provision at issue 

gave them an “unfettered” right to go onto the property, as the plaintiff asserts. Instead, they 

argue, the trial court correctly ruled that their right to enter the plaintiff’s property was 

governed by an express contractual provision and by the foreclosure judgment order and that, 

because their contractual right to enter was not qualified by the terms of any internal policies 

or procedures of the defendants or Fannie Mae, those policies and procedures were not 

relevant. They cite the principles that, “[w]here the law does not impose a duty, one will not 

generally be created by a defendant’s rules or internal guidelines” (Rhodes v. Illinois Central 

Gulf R.R., 172 Ill. 2d 213, 238 (1996)), and “[v]iolation of self-imposed rules or internal 

guidelines *** ‘does not normally impose a legal duty, let alone constitute evidence of 

negligence.’ ” Wade v. City of Chicago, 364 Ill. App. 3d 773, 781 (2006) (quoting Morton v. 

City of Chicago, 286 Ill. App. 3d 444, 454 (1997)). They further argue it would be improper 
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to allow the plaintiff to use their internal policies or procedures to show the defendants’ 

subjective understanding of express contract terms that are not shown to be ambiguous, and 

they argue that the plaintiff is not entitled to rely on the terms of their internal policies or 

procedures because the plaintiff was not a third-party beneficiary of the contract between 

Chase and Safeguard.

¶ 36 After carefully considering all of the parties’ arguments on this issue, we conclude that the 

trial court did not err in determining that the internal policies and procedures of Chase, 

Safeguard, and Fannie Mae were inadmissible for the purpose for which the plaintiff sought to 

use them at trial. Specifically, we do not believe that the plaintiff could use these internal 

policies and procedures to argue or attempt to show that they established a duty or standard of 

care that the defendants had to comply with when entering the plaintiff’s property to secure it 

or winterize it or that the reason the defendants committed a trespass was because they failed 

to comply with them. Allowing their use for this purpose would run afoul of the rule that a 

duty not otherwise imposed by law cannot be established by a defendant’s internal policies and 

procedures. Rhodes, 172 Ill. 2d at 238. 

¶ 37 We are dealing here with a cause of action for trespass, which, as stated above, is the entry 

onto the land of another without permission, invitation, or other right. Benno, 242 Ill. App. 3d 

at 313. “Generally, unlike a claim based in negligence, a trespass claim does not require proof 

of a legal duty or an applicable standard of care.” 87 C.J.S. Trespass § 2 (2021). “It is 

immaterial whether or not the person committing the trespass is in the exercise of due care.” 

(Internal quotation marks and emphasis omitted.) Dial v. City of O’Fallon, 75 Ill. App. 3d 782, 

784 (1979), aff’d, 81 Ill. 2d 548 (1980). Thus, a plaintiff does not have to prove that a 

defendant’s entry onto the plaintiff’s land breached a particular legal duty or standard of care 

to establish a prima facie claim of trespass. 

¶ 38 Rather, in this case, the appropriateness of the defendants’ conduct in entering the 

plaintiff’s property goes to the issue of “permission” or “other right” to enter, specifically 

whether their conduct was consistent with a contractual provision permitting entry. In arguing 

that they had a legal right to enter the plaintiff’s property, the defendants relied upon a 

contractual provision that, in the event the plaintiff defaulted on her mortgage or there was a 

legal proceeding significantly affecting the lender’s rights in the property, Chase or its agents 

“may do and pay for whatever is necessary to protect the value of the Property and the Lender’s 

rights in the Property.” This is a broad contractual right, and we agree with the defendants that 

it is broader than just the right of “entering on the Property to make repairs,” which is simply 

one example given of what the lender’s “actions may include.” However, we also agree with 

the plaintiff that the provision at issue is not so broad as to give the defendants “unfettered 

access” to enter her property. We can hypothesize a variety of situations in which entry onto 

the plaintiff’s land would appear to go beyond doing what is “necessary to protect the value of 

the Property and Lender’s rights in the Property,” for example by entering to perform 

nonemergency, routine work in the middle of the night. 

¶ 39 The point, however, is that the ability of Chase or its agents to enter the plaintiff’s property 

in the event of a mortgage default or a foreclosure lawsuit is a matter to which the parties have 

spoken by contract. Their duties to one another in this regard are therefore defined by the terms 

of that contract. Where defendants are charged with tortious conduct because of their failure 

to perform acts allegedly required by a contract, the question of whether the defendants had a 

duty to perform those acts must be determined by the terms of the contract itself. St. Paul 
- 12 -

Mercury Insurance v. Aargus Security Systems, Inc., 2013 IL App (1st) 120784, ¶ 60. The 

scope of the defendants’ duties may not be expanded beyond what is required by the contract. 

Id.

¶ 40 Because the rights and duties of Chase or its agents in entering the plaintiff’s property were 

controlled by the terms of the mortgage contract, we reject the argument that the internal 

policies and procedures of Chase, Safeguard, or Fannie Mae could serve as a basis for imposing 

additional or different duties on the defendants when entering the plaintiff’s property. It is wellestablished in negligence cases that where the law does not impose a duty, one will not 

generally be created by a defendant’s internal rules or guidelines. Rhodes, 172 Ill. 2d at 238; 

see also Tafoya-Cruz v. Temperance Beer Co., 2020 IL App (1st) 190606, ¶¶ 72-77. This 

principle is no less applicable in cases where the parties’ relationship is governed by a contract 

and the duties they owe to each other and controlled by the terms of that contract. 

¶ 41 In Fichtel v. Board of Directors of the River Shore of Naperville Condominium Ass’n, 389 

Ill. App. 3d 951, 953-54 (2009), the plaintiffs were condominium owners who brought claims 

of fraudulent concealment, breach of fiduciary duty, and negligence against their homeowner’s 

insurance company for the failure of its investigator to disclose to the plaintiffs the fact that he 

had discovered mold in their attic while investigating a claim of water damage. The insurance 

contract between them provided that the insurer had the right, but not the obligation, to conduct 

investigations and report the results to the insured and that it did not make safety inspections 

or warrant that conditions were safe, healthful, or in compliance with laws, regulations, codes, 

or standards. Id. at 954-55. The trial court granted summary judgment in favor of the insurer 

on the basis that its duty to the plaintiffs was limited to the terms of the insurance contract 

between them, which did not include the duty to disclose the presence of the mold. Id. at 956. 

On appeal, the plaintiffs argued that the insurer owed them a duty beyond the terms of the 

contract because, when the insurer exercised its right to investigate, it assumed a duty to do so 

according to the standards of its internal operating guide, which provided that “ ‘[e]vidence of 

mold should be noted and discussed with the insured’ ” and that the insured “ ‘should be 

advised of our investigative findings.’ ” Id. at 959. The court rejected the argument that a duty 

could be imposed based on the standards in the insurer’s internal operating guide, relying in 

part on the principle that where the law does not impose a duty, one will not generally be 

created by a defendant’s internal rules or guidelines. Id.

¶ 42 The same result is warranted in this case. The right of Chase or its agents to enter the 

plaintiff’s property in certain situations is a matter of contract, and the terms of that contract 

must control the duties owed by Chase or its agents to the plaintiff in that regard. As was the 

case with the internal operating guide in Fichtel, here the internal policies and procedures of 

Chase, Safeguard, and Fannie Mae cannot be used to impose additional duties not set forth in 

the contract, or to alter or enlarge the existing duties as the contract defines them. These 

policies and procedures are not incorporated into the mortgage contract between Chase and the 

plaintiff. There is no indication here that the plaintiff relied upon them at the time when she 

entered into the mortgage or that their provisions are something she is entitled to enforce. It 

would similarly be impermissible to allow their use by the plaintiff as evidence of the 

defendants’ own “understanding” of their duties under the mortgage contract, as evidence of a 

“standard of care” with which the defendants must comply in implementing their contractual 

duties or as extrinsic evidence that would allow the jury to resolve ambiguous language of the 

mortgage contract.
- 13 -

¶ 43 Based on our conclusion that the trial court was correct in barring the plaintiff from 

presenting evidence of the internal policies and procedures of Chase, Safeguard, and Fannie 

Mae, we turn to the plaintiff’s argument that the trial court erred in dismissing the trespass 

claims with prejudice, which it did upon barring this evidence. On appeal, the plaintiff makes 

no argument that she could still have proven her trespass claims if evidence of the policies and 

procedures was barred. Rather, the plaintiff argues that the basis of the trial court’s dismissal 

of her claims was its conclusion that the mortgage provision at issue gave the defendants an 

“unfettered” right to enter the plaintiff’s property that was so extensive as to preclude a claim 

for trespass. The defendants contend that the plaintiff is overstating the trial court’s actual 

ruling. They contend that the trial court’s ruling was merely that their internal policies and 

procedures were not admissible as evidence of the duty or standard of care owed by the 

defendants in entering the plaintiff’s property and it was the plaintiff’s counsel who took the 

position that there was no trespass case to be tried if the policies and procedures were excluded 

as evidence. 

¶ 44 Based on our review of the record, we agree that the plaintiff is mischaracterizing the trial 

court’s ruling by stating that it interpreted the mortgage provision to allow Chase or its agents 

“unfettered” access to the plaintiff’s property or to preclude a trespass claim as a matter of law. 

Instead, it appears that the plaintiff’s counsel acquiesced to the dismissal after the trial court 

ruled that the internal policies and procedures of Chase, Safeguard, and Fannie Mae could not 

be used to prove the defendants had wrongfully implemented their right to enter the property. 

¶ 45 After the trial court ruled that the policies and procedures were inadmissible, the court 

asked the plaintiff’s counsel where that left the case for trespass. Counsel responded that 

nothing was left “since you’re concluding that right was so extensive that there couldn’t be a 

trespass, there’s no trial.” An extensive colloquy then followed, during which the trial court 

pressed the plaintiff’s counsel multiple times about the fact that the plaintiff was not contesting 

that the contract gave the defendants a right to enter the property, that the case that the 

plaintiff’s counsel wanted to try was the defendants’ wrongful implementation of that right, 

and that his position was that he could not prove the case that he wanted to try if he was barred 

from using the policies and procedures. That colloquy concluded as follows:

“THE COURT: The Court has said that there’s—I’m not going to allow you to use 

the policies and procedures and to try before the jury the implementation of the right to 

enter. And because of that, all the parties have agreed, I think the record is clear, Mr. 

Joyce said that the contract gives you the right to enter. The Supreme Court said there 

was a right to enter. There’s no trespass case. And I will enter judgment in favor of the 

defendant. *** 

MR. JOYCE [(PLAINTIFF’S COUNSEL)]: Just so it’s clear, I’m agreeing that 

based on the contract, the mortgage—they have the right to enter. I’m totally 

disagreeing that that right is unfettered by a reasonable approach. 

But because I can’t get in the documents that would go to what’s reasonable, 

because you just said that’s not appropriate, then there’s nothing left to talk about. ***

* * *

MS. GOULD [(CHASE’S COUNSEL)]: So under the facts and circumstances of 

this case, is there a dispute over just looking to the contract language and not going 

beyond it that there’s a trespass or not?
- 14 -

Because what I’m worried about is that he’s suggesting maybe there is an issue that 

would go to the jury for this case that remains, and I just want to be clear that’s not the 

case.

THE COURT: I think Mr. Joyce has made it clear—let me see if I can state it a 

different way—but because I have barred the use of the policies and procedures of 

Chase, Safeguard, Fannie Mae, that he has no evidence to present regarding the trespass 

issue because the evidence that he has is that Chase wrongly implemented their right 

to enter.

MR. JOYCE: And you’ve concluded, as a matter of law, they had the absolute right 

to go on the property and enter. So that’s the basis for the motion.

* * *

THE COURT: *** Yes, because I have looked at the contract, Paragraph 7, where 

it says, [‘e]ntering on the property to make repairs[,’] goes what the rights of the lender 

are, and one of them is entering the property to make repairs. It’s not qualified by any 

rules, regulations, policies or procedures of Chase, Fannie Mae, or Safeguard. They 

have the right to enter to make repairs. And the Supreme Court has ruled that they had 

the right to enter the premises.

So there’s no trespass claim.

MS. GOULD: Okay.

THE COURT: Because I barred the evidence that he wants to present for his 

trespass claim. So he’s going to say, I’m wrong, those should have been allowed to 

proceed on the trespass claim.” (Emphases added.) 

¶ 46 Two days later, the parties returned for entry of the judgment order, and further discussion 

on the same matter occurred. During that discussion, the plaintiff’s counsel again clarified his 

position that, while he disagreed with the trial court’s ruling barring admission of the policies 

and procedures, “based on your ruling there is nothing left to try.” The trial court also explained 

that the plaintiff’s counsel was incorrect in characterizing its ruling as being that no trespass 

occurred as a matter of law because the defendants had the contractual right to go onto the 

plaintiff’s land. 

¶ 47 It is evident from the record that the plaintiff’s counsel was clear about the fact that the 

trespass case he wanted to try involved using the internal policies and procedures to show that 

the defendants had wrongfully or unreasonably implemented their contractual right to enter the 

plaintiff’s house. And, while the plaintiff’s counsel disagreed with the trial court’s rulings 

barring admission of the policies and procedures for this purpose, counsel accepted the 

consequences of that ruling for the case as he wanted to try it. During the discussion, the trial 

court gave the plaintiff’s counsel multiple opportunities to avoid dismissal and proceed to 

attempt to prove a trespass claim without using the policies and procedures. However, the 

plaintiff’s counsel declined the opportunity to proceed if he could not put on the case in the 

way he believed was appropriate. 

¶ 48 We thus reject the plaintiff’s characterization that the trial court dismissed the case because 

it concluded that the mortgage provision at issue gave the defendants an “unfettered” right to 

enter the plaintiff’s property or that the right was so extensive as to preclude a claim for trespass 

as a matter of law. As stated above, we do not interpret that provision to give Chase or its 

agents an “unfettered” right to enter the plaintiff’s property, and our review of the record does 
- 15 -

not indicate that the trial court interpreted the provision this way either. The trial court 

specifically stated that this was not its ruling, and it explained that the reason “there’s no 

trespass claim” was “[b]ecause I barred the evidence that [the plaintiff’s counsel] wants to 

present for his trespass claim.” Although there may have been ways in which the plaintiff could 

have gone to trial and attempted to prove a claim for trespass without using the policies and 

procedures, it is clear from the record that the plaintiff’s counsel declined all opportunities 

offered by the trial court to do that. Thus, contrary to the plaintiff’s assertion on appeal, the 

plaintiff was never prohibited from proceeding on the argument that the reasons the defendants 

entered the property (i.e., to secure and winterize it) were beyond the scope of what was 

permitted by the mortgage provision itself. Likewise, the plaintiff far overstates the trial court’s 

ruling by asserting that the trial court “excluded all evidence that Defendants entered Plaintiff’s 

home on June 22, 2010, without notice, and without her invitation or permission, to change 

locks and winterize her home” and “excluded evidence that Defendants ignored all indicia that 

Plaintiff’s home had not been abandoned.” The plaintiff was never barred from using this 

evidence to attempt to prove a trespass claim but simply declined to do so after the trial court 

ruled that the policies and procedures were inadmissible. 

¶ 49 Based on our conclusion that the trial court correctly determined that the policies and 

procedures were inadmissible for the purpose for which the plaintiff wanted to use them and 

the plaintiff’s counsel’s representation that without this evidence he could not establish the 

case for trespass that he wanted to try, we find no error in the trial court’s dismissal of the 

plaintiff’s trespass claims with prejudice. See McMath v. Katholi, 191 Ill. 2d 251, 255 (2000) 

(a party cannot complain of error which he induced to the court to make or to which he 

consented). Based upon this determination that the counts for trespass were properly dismissed, 

we have no reason to consider the issues involving the elements of damages that would have 

been warranted on those claims.

¶ 50 Assault Claim

¶ 51 The plaintiff’s next argument on appeal is that the trial court erred in dismissing the claim 

for assault pled in the third amended complaint. The trial court’s basis for dismissing the assault 

claim was its finding that the claim was barred by the doctrine of res judicata. The plaintiff 

argues that the doctrine of res judicata is inapplicable in this case because there has been no 

final judgment on the merits or an attempt to split claims into more than one lawsuit. Instead, 

the plaintiff points out that she was allowed to take an appeal under Illinois Supreme Court 

Rule 304(a) (eff. Feb. 26, 2010) of the order granting summary judgment on her claims for 

intentional infliction of emotional distress and nuisance and dismissing her claim for negligent 

infliction of emotional distress, and upon remand the trial court granted her leave to amend her 

complaint to add a claim for assault. Thus, she argues, this is not a circumstance in which 

res judicata applies. 

¶ 52 After first denying the motion to dismiss, on reconsideration the trial court dismissed the 

plaintiff’s assault claim pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 

5/2-619 (West 2018). Our review of the dismissal of an action under section 2-619 is de novo. 

Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 18. Section 2-619(a)(4), which allows 

for dismissal where a “cause of action is barred by a prior judgment” (735 ILCS 5/2-619(a)(4) 

(West 2018)), contemplates dismissal where an action is barred by the doctrine of res judicata.

Richter, 2016 IL 119518, ¶ 20. “Res judicata bars a second adjudication of the parties’ disputes 
- 16 -

where there has been or could have been a former adjudication on the merits and there is an 

identity of cause of action and parties or their privies in the two lawsuits.” Lehman v. 

Continental Health Care, Ltd., 240 Ill. App. 3d 795, 801 (1992). It is an equitable doctrine 

designed to prevent multiple lawsuits between the same parties where the facts and issues are 

the same. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 44. The three requirements that must be 

satisfied for res judicata to apply are (1) the rendition of a final judgment on the merits by a 

court of competent jurisdiction, (2) the existence of an identity of cause of action, and 

(3) identity of the parties or their privies. Id.

¶ 53 Although the parties’ arguments focus primarily on the question of whether the order 

appealed under Rule 304(a) was a “final” judgment for purposes of res judicata, it appears to 

us that the more significant problem with applying the doctrine of res judicata is that all of the 

plaintiff’s claims against the defendants have been presented within the context of a single 

lawsuit. The defendants’ briefs make no response to the plaintiff’s assertion that res judicata

is inapplicable because she did not split her claims into separate lawsuits. Instead, they rely on 

the transactional test applied to determine whether an identity of cause of action exists, in 

which “separate claims are considered the same cause of action if they ‘arise from a single 

group of operative facts, regardless of whether they assert different theories of relief.’ ” A&R 

Janitorial v. Pepper Construction Co., 2018 IL 123220, ¶ 18 (quoting River Park, Inc. v. City 

of Highland Park, 184 Ill. 2d 290, 311 (1998)). They assert that the emotional distress and 

nuisance claims involved in the Rule 304(a) appeal arose from the same group of operative 

facts as the assault claim that the trial court allowed the plaintiff to plead following remand.

¶ 54 In Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1037 (2001), this court held 

that the doctrine of res judicata was inapplicable because the requirement of an “identity of 

causes of action” did not exist where a plaintiff had not filed a second, separate lawsuit but 

instead sought relief in collateral proceedings in a single lawsuit. The same is true in this case. 

Here, the supreme court issued an opinion affirming dismissal of the count for negligent 

infliction of emotional distress and entry of summary judgment in defendants’ favor on the 

count for intentional infliction of emotional distress, remanding the case to the trial court “for 

further proceedings consistent with this opinion.” Schweihs, 2016 IL 120041, ¶ 65. Directions 

requiring a trial court to proceed consistent with the views expressed by the reviewing court in 

its opinion are general in nature. Merrill v. Drazek, 58 Ill. App. 3d 455, 458 (1978). Where a 

cause is remanded without particular instructions, a trial court is not precluded from thereafter 

allowing a plaintiff to amend a complaint and has the discretion to do so, provided the 

amendment is not inconsistent with the decision of the reviewing court. Suburban Auto 

Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81, 95-96 (2009) 

(citing Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 352-53 (2002), Golf v. Henderson, 

376 Ill. App. 3d 271, 281 (2007), and Merrill, 58 Ill. App. 3d at 458).

¶ 55 Here, it was within the trial court’s discretion following remand to allow the plaintiff to 

amend her complaint to plead a count for assault, as proceeding on such a claim is not 

inconsistent with the legal principles expressed in the supreme court’s opinion. Although it 

may be true that the trespass, emotional distress, nuisance, and assault claims all arose from a 

single group of operative facts, the plaintiff has nevertheless presented them all within a single 

lawsuit. Thus, because there was only one lawsuit, the res judicata requirement of an identity 

of causes of action between two lawsuits is absent here. Longo, 318 Ill. App. 3d at 1037. 

Similarly, the policy concern of preventing multiple lawsuits between the same parties on the 
- 17 -

same facts and issues is not present in this case. See Lutkauskas, 2015 IL 117090, ¶ 44. The 

trial court therefore erred in dismissing the count for assault on the basis of res judicata. 

¶ 56 However, this does not end our inquiry involving the count for assault. Chase argues on 

appeal that even if the count for assault was not barred by res judicata, the trial court’s 

judgment may be affirmed on any basis supported by the record (see Jandeska v. Prairie 

International Trucks, Inc., 383 Ill. App. 3d 396, 398 (2008)), and the alternative bases Chase 

raised in its motion for summary judgment warrant judgment in its favor of the assault claim. 

Safeguard, Gonsalez, and Centeno have filed a cross-appeal in which they argue that, if this 

court finds the assault count was not barred by res judicata, then the trial court nevertheless 

erred in denying their two motions to dismiss and their summary judgment on the assault count. 

All of the defendants’ motions for summary judgment asserted that they were entitled to 

summary judgment on the count for assault because there was no evidence that Gonsalez or 

Centeno acted with the intent required to commit the tort of assault. More specifically, they 

argued that there was no evidence that Gonsalez or Centeno intended to place the plaintiff in 

reasonable apprehension of receiving an immediate battery. Because we agree with this 

argument and find the issue to be dispositive, we address this argument first. 

¶ 57 Summary judgment is appropriate where “the pleadings, depositions, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-

1005(c) (West 2018). The purpose of summary judgment is not to try an issue of fact but to 

determine whether one exists. Monson v. City of Danville, 2018 IL 122486, ¶ 12. A genuine 

issue of material fact precluding summary judgment exists where the material facts are 

disputed or, if the material facts are undisputed, reasonable persons might draw different 

inferences from the undisputed facts. Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. In 

determining this question, the evidence in the record must be construed strictly against the 

parties moving for summary judgment and liberally in favor of the party opposing it. Id. A 

plaintiff seeking to defeat a motion for summary judgment does not need to prove her case, but 

she must present some factual basis that would arguably entitle her to a judgment. Bruns v. 

City of Centralia, 2014 IL 116998, ¶ 12. This includes presenting some evidence to support 

each element of the plaintiff’s cause of action. Id. This court reviews a trial court’s summary 

judgment ruling de novo. Monson, 2018 IL 122486, ¶ 12.

¶ 58 Assault is an intentional tort. Rosenberg v. Packerland Packing Co., 55 Ill. App. 3d 959, 

963 (1977). “With respect to civil liability, an assault can be defined as an intentional, unlawful 

offer of corporal injury by force, or force unlawfully directed, under such circumstances as to 

create a well-founded fear of imminent peril, coupled with the apparent present ability to 

effectuate the attempt if not prevented.” Parrish v. Donahue, 110 Ill. App. 3d 1081, 1083 

(1982). Older cases hold that “[t]he intention to do harm is the essence of an assault.” (Internal 

quotation marks omitted.) Gilmore v. Fuller, 198 Ill. 130, 143 (1902). The Restatement 

(Second) of Torts provides that establishing the tort of assault requires proof that the defendant 

acted with the intent to cause either a harmful or offensive contact with the plaintiff’s person 

(or the person of a third party) or an imminent apprehension of such a contact. Restatement 

(Second) of Torts § 21(1) (1965). An action that is not done with this intent will not make the 

defendant liable to the plaintiff for an apprehension caused thereby, even if the defendant’s act 

involves an unreasonable risk of causing it and therefore would be negligent or reckless if the 

risk threatened bodily harm. Id. § 21(2). “ ‘There is, properly speaking, no such thing as a 
- 18 -

negligent assault.’ ” Rosenberg, 55 Ill. App. 3d at 963 (quoting Prosser and Keeton on the Law 

of Torts § 10, at 41 (W. Page Keeton et al. eds., 4th ed. 1971)).

¶ 59 The defendants argue that there is no evidence in this case with which the plaintiff can 

prove that Gonsalez or Centeno acted with the intent to cause the plaintiff an imminent 

apprehension of suffering harmful or offensive contact with her person (i.e., a battery). Instead, 

they contend that the evidence shows that the two men went to great lengths to confirm that 

nobody was present at the plaintiff’s house before they went inside it. They cite Gonsalez’s 

deposition testimony that he was startled when he saw the plaintiff inside the house. They point 

to the plaintiff’s deposition testimony that when she encountered the men and asked them why 

they were in her house, one of them responded that they had been sent by Chase to winterize 

the house and do some other work, and, when she instructed them to leave her house, they 

immediately did so. They further cite her testimony that neither of the men threatened her.

¶ 60 In response, the plaintiff argues that there is at least a question of fact about whether the 

defendants intended to place the plaintiff in apprehension of receiving an immediate battery. 

She cites to her testimony that although the men asked her to come outside with them, she was 

afraid to go outside into her fenced back yard with the two strange men she found inside her 

home. She asserts that their statement to her that Chase had sent them was not believable 

because neither man was dressed in a uniform, had a name tag, appeared to have been sent by 

Chase or any other professional company, or carried documentation reflecting an affiliation 

with Chase. Instead, she states, they were wearing “scruffy clothing, including cut-off shorts, 

an unbuttoned shirt with tattoos exposed, and had messy hair.” She points to her testimony that 

the men looked strong and that one was blocking the opened doorway. She cites her testimony 

that she had no idea what the men, who had just broken through her locked back door and had 

no justifiable reason to be inside her house, could or would have done with her if she had exited 

the home with them into her back yard. She further relies on the following testimony from her 

deposition: 

“When you find two guys in your house, no papers, looking like they did *** 

[Gonsalez] had an open shirt with tattoos and muscles showing, he’s moving a little 

bit. And I’m thinking am I gonna be attacked, beaten up, am I gonna be raped. What 

am I gonna do? I can’t feel a way to get out of the situation. He was pretty close to me. 

I couldn’t get to the front door fast enough, I couldn’t get downstairs fast enough. I 

couldn’t get to that other door with [Centeno] over there. ***

* * *

[Gonsalez and Centeno] came through a big back gate, they broke through the storm 

door, they broke into the wooden door. They’re in my house, they’re approaching me. 

They’re ordering me to go outside with them. Yeah, I see no escape out of there. I 

thought I could be raped or beaten up or killed or robbed. I didn’t know what was gonna 

happen.”

¶ 61 We agree with the defendants that the evidence relied upon by the plaintiff fails to 

demonstrate a genuine issue of material fact about whether Gonsalez or Centeno acted with 

the intent required to be liable for the tort of assault. Specifically, there is no evidence that 

either defendant acted with the intent to cause either (1) a harmful or offensive contact with 

the plaintiff’s person or (2) an imminent apprehension of such contact. The evidence is 

undisputed that the two men conducted an investigation to determine that the house was vacant 

before entering it, and they entered it only after concluding, albeit mistakenly, that nobody was 
- 19 -

inside. When the plaintiff asked the men to leave, they immediately did so. Neither the men’s 

physical appearance nor the fact that Gonsalez was “moving a little bit” or was “approaching” 

the plaintiff constitute sufficient circumstantial evidence to justify the inference that their acts 

were intended to cause an immediate apprehension of harmful or offensive contact with the 

plaintiff’s person. The evidence relied upon by the plaintiff shows, at most, that she 

apprehended being personally injured by the defendants’ presence in her house, but proof of 

such apprehension without proof that the defendants intended to cause it is insufficient to 

impose liability for the tort of assault. Restatement (Second) of Torts § 21(2) (1965). 

¶ 62 As the plaintiff failed to demonstrate the existence of a genuine issue of material fact on 

an essential element of her assault claim, summary judgment in favor of all defendants is 

appropriate on count IV of the plaintiff’s third amended complaint. Because this issue is 

dispositive of the plaintiff’s claim for assault, no reason exists to address any other issues raised 

in the defendants’ cross-appeal.

¶ 63 CONCLUSION

¶ 64 For the reasons discussed above, the judgment of the trial court is affirmed. 

¶ 65 Affirmed.