## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Ertl v. Ci ty of De

Kalb , 2013 IL App (2d) 110199

Appellate Court Caption RUSS EL L J

. ERTL
, Plaintiff -A ppellee, v. THE CI TY OF DE KAL B, and THE BO ARD OF P OLI CE AND FI RE COMMI SSI ONERS, Def endants-A

ppellants (The Board of Trustee s of the De Kalb Fire fig hters’ Pension F und, Def endant)

.

District & N o. Second District Docke t No. 2-11-0199

Filed Rehea ring denied Marc h 19, 2013

April 18, 2013

Held (Not e: Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n protrac ted leg al proce edings t h at started with a complaint seeking plaintiff’s reinstatement t o his position as a firef ighte r and back wa ges, included an ap p ea l from an awa rd of back wag es and a mandate by the appellate court direc ting the trial court on rema nd to reinstate plaintiff, and resulted in the trial court allowing the awa rd of back wag es to stand without order ing plaintiff reinstated, the trial court err ed in failing to find that a second suit filed by plaintiff seeking reinstateme nt and back wag es

was barr ed by res judicata, since the trial court, on rema nd from the first
appea l, did not order plaintiff reinstated but, rathe r, simply let the initial

awa rd of back wag es stand, the appellate court aff irmed that judgme nt, and based on plaintiff’s forf eiture of his rig ht to reinstateme nt by failing
to pursue that relief in the trial court or in an appea l, his second suit was barr ed.

Dec ision Under
Review Appea l from the Circuit Court of De Kalb County
, No. 02-L -86; the Hon. Kurt P. Klein, J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Yvette A. Heintzelman and Be njamin E. Gehr t, both of Clark Ba ird Smit h L L P, of Rosemont, for appe llants.

J ames T. Har

rison and Kristen J

. Fa

rr, both of Har

rison L aw Offic es, P.C., of W oodstock, for a ppellee.

Panel PRES I DI NG J USTI CE BU RKE d e li v e r e d th e judgme nt of the court, with opinion.
J ustice B irkett specia lly

concur red, w ith opinion.
J ustice McL are n dissented, with opinion.

OP INION

¶ 1 T h i s matter has been pending betwee n the parties for many y ear s. Plaintiff, Ru s s el l J

. Ertl, was hired by the City of De Kalb as a firef ighte r in 1995 and terminated in 1996 without

a hear ing and without formal char g es. On April 1, 1997, plaintiff filed the orig inal case , seeking reinstateme nt and b ac k wag es based on brea ch of contra ct and the rules and
regulations of the boar d of police and f ire c ommissi oners ( Boa

rd). The trial court a

war ded plaintiff back pay and plaintiff appea led. We rema nded, inter alia
, with an order to reinstate plaintiff as a firef

ighte r. Ertl v. City of

De Kalb
, 303 I ll. App. 3d 524, 530 (1999) ( Ertl I ). On

rema nd, plaintiff petitioned for a rule to show ca u s e, asking for reinstateme nt. I nstead of ruling on plaintiff’s filing, the case proce eded to tr ial on count I for brea ch of contra ct, and the trial court there afte r awa rded plaintiff damag es on the brea ch-of -contra ct cla i m and allowed the awa

rd of back pay to stand. The trial court did not order that plaintiff be

re i nstated. Plaintiff appea led and the City cross-a ppeale d. Howeve r, this court dismi s s ed plaintiff’s appe al af

ter he failed to file a timely appellate brief. On May 8, 2002, this court rende red its decision on the City ’s cross-a ppeal and aff

irmed the judgme nt of the trial court. Ertl v. City of

De Kalb
, No. 2-01-0145 (2002) (unpublished order under Supreme Court Rule 23) ( Ertl II ). ¶ 2 On Aug ust 26, 2002, plaintiff filed a second lawsuit, ag ainst the City
, the Boa rd, and the board of trustees o f t h e De Kalb Fire fig hters’ Pension Fund. As in the orig inal lawsuit, 1 plaintiff sued the City and the Boa rd (collec tively
, the City ) for, inter alia
, reinstateme nt and back wages. The City arg ued that principles of res judicata and laches prec luded plaintiff from re- litigating this lawsuit. The trial court disag ree d and, following a bench trial, awa rded plaintiff damag es, attorne y fee s, and pre

judgme nt interest on plaintiff’s br eac h-of- contra ct

T he boa rd of trust ees of the De K al b Fir ef ighte rs ’ Pens ion Fund is not a par ty to the app eal

. 1

-2-claim. The City argues on appea l that the trial court err ed in finding that plaintiff’s amende d

complaint was not bar

red by res judicata or laches . We ag ree with the City and re verse

.

¶ 3 I . BA CKGROUND ¶ 4 Plaintiff was a firef ighte r for the C ity from October 10, 1995, to April 19, 1 996, when he was terminated following his arr est for unlawful use of wea pons (720 I L CS 5/24-1(a) (4) (West 1996)) and disorde rly conduct ( 720 I L CS 5/ 26-1(a )(1) (West 1996) ), and his fa ilure
to repor t fo r duty at the presc ribed time the day afte r his arr est. Although notified of the termination and the rea sons there for, the Boa rd did not co n d u ct a hear ing on plaintiff’s termination. Ertl I

, 303 I ll. App. 3d at 526. ¶ 5 P l ai n t i ff fi l ed h i s fi rs t s u i t seeking reinstateme nt and back wag es, a thre e-co u n t complaint, on April 1, 1997. After a stipulation of fac ts, pla intiff was a war ded bac k pay

of $1,928.31 on his alleg ation that the Boa rd had violated its rules and regulations. Id. Plaintiff
appea led the damag es awa rd and the trial court’s dismiss al of his brea ch-of -contra ct count. T h i s court reve rsed in part, ag ree ing with plaintiff t hat “he should be reinstated unt i l s u ch time, if ever , that he is proper ly discharg ed,” a

nd rema nded the c ause: “for t he reinstateme nt of count I [breach of contra ct], plaintif f’s reinstatement as a fire f i g h t er , the awa

rding of any additional damag es that may be appropr iate, and for further proce eding s consistent with this opi nion.” (Emphasis adde d.) Id. at 530. ¶ 6 On rema

nd, plaintiff filed a petition for a rule to show cause why the City should not be held in contempt of court for failing to reinstate him as a firef ighte r. Although a hear ing date was set, and the City was ordere d to file a written response t o the petit i on, no hear ing was

ever held. I nstead, the rema nded cause was set for a bench tr ial. During the bench trial, the following colloquy

took place:
“THE COURT: As I rea d t h i s [ E rtl I ] and rea d befor e I came out here ag ain, I interpre ted that I have no rig ht to substit u t e m y j u d gment for whether [pl aintiff] was rig htfully or wrongf

ully terminated. That’s t he judgment, as I interpre t it, of t h e Boa rd of Police and Fire commissioners of the City of De Kalb. I ’m only looking for if they did it okay ?
MS. EL Y [C ity counsel]: So what y ou’re saying is that we ar e t ry ing today –for purposes of Count I , are we try ing liability

on Count I or ar e we just try ing da mag es?
THE COURT: I can’ t–y ou have to tell me if he was–I do not know. I expected to hear today whether he was t erminate d, whether there was a notice given and a hearing held and whe ther he was ter

minated.
MS. EL Y: Well–
THE COURT: Ihave a

sinking fe eling in my

stomach that that neve r occurre d; am Irig ht? ” ¶ 7 At the bench trial conducte d on rema nd, plaintiff testified that, afte r he was ter minated, he acc epted employ

ment as a firef

ighte r with the Pleasant Vie w f ir e d e p artment on Dec ember 14, 1998. Plaintiff subsequently reje cted an offe r of em p l o y m ent from the Be lvidere fire depar tment beca

use he was alre ady empl o y ed with the Pleasant View fire depar tment.

-3-Following the b en ch trial, the trial court deter mined that plaintiff was entitled to his lost salary and pension contributions for the period of time betwee n his termination in April 1996 and subsequent employ

ment in Dec ember 1998 with the Pleasant View fire depar tment. The trial court awa

rded plaintiff damag es of $79,108.72 on the brea ch-of -contra ct claim, which included $8,047.77 in pension contributions. The trial court’s judgme nt order of J anuar y 5, 2001, did not address re instatement. ¶ 8 Both plaintiff and the City appea led, althoug h plaintiff’s appea l was later dismiss ed for failure to file an appellate brief. The City did not raise the issue of reinstateme nt in its appea l. Plaintiff f iled with this court a petition f or a rule to show cause , reque sting that the City be held in contempt for failure to reinstate him; this petition was denied in September 2001. On October 12, 2001, the City

paid plaintiff the judg ment amount plus postjudgment intere st. ¶ 9 We aff

irmed the trial court’s judgme nt on issues relating to evidenc e, back pay , and lost pension contributions. See Ertl II
, No. 2-01-0145 (2002) (unpublished order under Supreme Court Rule 23). As a final matt er , we noted that, beca use plaintiff’s appea l had been dismiss ed, we lacke d jurisdiction to consider his contention that the trial court should have

awa rded him additional damag es for lost sick leave
, vaca tion pay , and other fring e benef its. Id. at 9-10. ¶ 10 On Aug ust 26, 2002, almost four months afte r this court’s ruling in Ertl II
, plaintiff filed the prese nt, two-count complaint ag ainst the City
, alleg ing brea ch of contra ct and violation of the Boa rd’s rules and regulations. The brea ch-of -contra ct claim soug ht the same reme dies

as the orig inal suit in Ertl I
, in which plaintiff soug ht reinstateme nt and back wag es. Plaintiff also soug ht “additional damag es since the J anuar y 5, 2001[,] judgme nt order .” The City moved to dismiss pursuant to section 2-619(a ) of the Code of Civil Procedur e (735 I L CS 5/2- 619(a) (West 2002)), raising the issues of res judicata and laches

. The trial court denied the motion to dismiss in April 2003. Eventually
, pl aintiff filed an amended complaint, adding the board of t rustees of the De Kalb Firefig hters’ Pension Fund as a defenda nt in count I I I for a violation of the I llinois Pen s i o n C o d e (4 0 I L CS 5/1-101 et seq. (West 2010)), and adding a claim for mandamus (count I V) ag ainst all defe ndants, seeking reinstateme nt, cre dit for a ll creditable service , and bac k pay

. ¶ 11 I n its opening statement at trial, the City addre ssed our opinion in Ertl I by noting “that there had b een an appea l of the matter which ref lected the plaintiff had not been proper ly terminated and order ed the City to reinstate him and, if it chose, to proper ly terminate him.” Following trial, the trial cour t beg an its oral rulingas follows: “This matter comes on for ruling today

. I want to pr efa ce my rema rks by letting me say this: Some think a judge can do whateve r he wants to do. That’s not true. J udg es have
to follow the law. When they don’t, problems are amplified, not resolved and case s drag on costing ever

y body more[,] and emotional distress.
This is a very unconventional case

. I t’s been to the Appellate Court three times. And I ’m the second trial judge assig ned during the past thirteen y ear s that this case is pending

. Ove r elev en years ago the Appellate Co u r t ordered the plaintif f [sic] to reinstate Mr. Ertl wi th back be nefits. To dat e that has not happened.
How can this happen? I don’t know. I don’t understand how a g overnme nt body can

-4-ignor e a mandate from t he Appellate C ourt for over eleven y ear s. This case appea rs t o be driven by persona lities and not by t h e ru l e o f law. I understand that Mr. Ertl’s
persona lity is not appea ling to most people. I understand that Cit y administrators wer e

o f f e nded by defe ndant’s [ sic ] defia nt, unremorse ful, in

- y

o u r

- f a c e a tt it u d e

. H o w e v e r , n o n e of these c onsiderations trump the rule of law.” (Emphasis adde d.) ¶ 12 The trial court found in favor of plaintiff and ag ainst the City on the bre ach- of-c ontrac t cla i m (c o u n t I ), awa

rding $170,540 in damag es, almost $29,000 in attorney fee s, and approximately $62,000 in prejudg ment interest. The trial court dismiss ed counts I I throug h I V as to all defe ndants. The trial court noted in its dismiss al of count I I I that “[p] laintiff had
not been fully reinstated” and that the i ssue raised there in was “not ripe f o r ad j u d i cation.” As to th e mandamus claim (count I V), the trial court’s written order specific ally provided that “the Appellate Court has previously order ed that [p] laintif f b e fu lly reinstated by the [C ity ].” When asked by

plaintiff’s counse l whether it was order ing plaintiff reinstated, the trial court responded, “I am not order i n g him reinstated. *** The Appellate C ourt order ed him reinstated. The Appellate Court doesn’t need me to say that they wer e rig ht and he should be reinstate d.” ¶ 13 The City filed a motion for rec onsideration, which the trial court denied on Fe bruar y 1, 2011. This timely

appea l followed.

¶ 14 I I . ANALYSI S ¶ 15 Res Judic ata ¶ 16 The City first contends that plaintiff’s claims wer e barr ed by the doctrine of res judicata

. Acc ording to the City
, the trial court’s judgme nt of J anuar y 5
, 2 001 (on rema

nd from this court’s judgme nt in Ertl I ), and this c ourt’s subsequent aff irmance of that judgme nt in Ertl II
, ended plaintiff’s litigation involving his termination from the fire depar tment, and neither the trial court nor this court order ed that plaintiff be reinstated; all that was require d was the execution of the judg ment, which the City paid. ¶ 17 “Unde r the doc trine of res judicata , a fina l judgment on the merits rende red by a cour t of competent jurisdiction acts as a bar to a subsequent suit betwee n the parties involving the

same cause of action.” River Park, Inc. v. City of Highland Park
, 184 I ll. 2d 290, 302 (1998). The bar extends to what was actua lly decide d in the first action, as well as those matters that

co u l d h ave been decide d in that suit. La Salle National Bank v. County Board of School Trustees
, 61 I ll. 2d 524, 529 (1975). For the doctrine of res judicata to apply
, the following three require ments must be satisfied: “(1) there was a final judgme nt on the merits rende red by a court of competent jurisdiction; (2) there is an identity of cause of action; and (3) there is an identity of parties or their privies.” Downing v. Chicago Transit Authority
, 162 I ll. 2d 70, 73-74 (1994). As res judicata involves a question of law, we will g ive this issue de novo revie w. City of Chicago v. St. John’s United Church o f C h r i s t , 404 I ll. App. 3d 505, 512 (2010). ¶ 18 The pa

rties do not dispute the first and third require ments. Rather, they take issue ove r whether an identity

of ca use of a ction exis ts. To deter mine whether an identit y of cause of action exis ts (as to the brea ch-of -contra ct claims) such that res judicata applies, we apply the

-5-transac tional analy sis. See River Park
, 184 I ll. 2d at 310-11. Under this analy sis, we look to

the fa cts that g ive rise to plaintiff’s right t o relief ; separa te claims ar e conside red the same

cause of action for res judicata purposes if they arise from a single g roup of operative fac ts, reg ardle ss of whethe r they asser t differ ent theorie s of re lief. Id. ¶ 19 The City contends that there is an identity of cause of action. Both the orig inal complaint and the prese nt complaint sound in brea ch of contra ct stemming from plaintiff’s termination of employ ment on April 19, 1996. Plaintiff asser ts that there is no identity of cause of action. Plaintiff argues that Ertl I cover ed a differ ent period of time than the curr ent lawsuit beca use he now seeks to rec over additional contra ct damag es that he incurre d af t er the J anuar

y 5, 2001, final judgme nt. Plaintiff notes that the prese nt complaint alleg es additional fac ts about plaintiff’s court-or dere d reinstateme nt and the City ’s noncompliance with that order
, which

cause d differ ent damag es than those cover ed in the original sui t and established the City ’s intentional brea ch in the prese nt suit beca use of its alleg ed “def

iance of the Appellate Court’s reinstateme nt of the Plaintiff.” Plaintiff believes t h at , had the City reinstated him, as this court ha d order ed, the da

mag es that he se eks her ein would not have a risen. ¶ 20 The problem with plaintiff’s argument, h o we v er , i s t wo fo l d

. I n i t i all y , it rests on plaintiff’s, as well as the trial court’s, incorre ct interpre tation of t h i s co urt’s mandate

re gar d i n g plaintiff’s reinstateme nt. The second problem is plaintiff’s abandonme nt of hi s rig ht to secure reinstateme nt. ¶ 21 “The mandate of a court of revie w is the transmittal of the judgme nt of that court to the circ uit court, and reve sts the circ uit court with jurisdiction.” P S L R ea l t y Co. v. Granite Inve stment Co.
, 8 6 I l l. 2d 291, 304 (1981). Where the revie wing court’s direc tives are specific
, the court to which a cause is rema nded is under a positive duty to enter an order or decr ee in acc ordanc e with the direc tions contained in the mandate; prec ise and unambig uous direc tions in a mandate must be obey ed. Bond Drug Co. of Illinois v. Amoco Oil Co.
, 323 I ll. App. 3d 190, 196 (2001). “[I ]t is not require d that a revie wing court state specific direc tions i n an order reversing a judgment and rema nding a cause. I n such a case , it is then t he duty of the court to which the cause is rema nded to examine the revie wing court’s opinion and to proce ed in confor

mi ty with the views expressed in it. [C itations.] ‘[T] hen, of course , the content of the opi nion is s i gn ificant.’ PSL Realty Co. v. Granit e Investment Co.
, 86 I ll. 2d 2 9 1
, 308 (1981).” Clemons v. Mec hanical Dev ices Co.
, 202 I ll. 2d 344, 353 (2002). I f specific direc t i o n s ar e not g iven, the trial court should examine the opinion to deter mine what further proce eding s would be consistent with the opinion. Fleming v. Moswin
, 2012 I L App (1st ) 103475-B
, ¶ 28. Any other order iss ued by the t rial court is outside the s cope of its authority and void for lack of jurisdiction. Id. When the trial court’s action on rema nd is i nconsistent with the reviewing court’s mandate, it is subject t o reve rsal on appea l. KeefeShea Joint Venture v. C ity of Evanston
, 364 I ll. App. 3d 48, 56 (2005). W hen a revie wing
court reve rses and rema

nds a cause with a specific mandate, the only proper issue on a second appea l is whether the trial court’s order is in acc ord with the mandate. Quincy School District No. 172 v. Illinois Educational Labor Relations Board
, 366 I ll. App. 3d 1205, 1210 (2006). ¶ 22 The mandate in Ertl I stated:

-6-“B E I T REMEMBERED, that, to wit: On the 18th day of Marc h, 1999, a Dec ision of the afor ementioned Court was enter ed of rec ord and in acc ordanc e with the views expressed in the attache d Dec ision the judgme nt of the trial court is Reverse d and Remanded with Direc tions.” The mandate itself did not contain specific direc tions; there fore
, the trial court was require d
to examine the opinion to deter mine what further proce eding s would be consistent with the opinion. See Fleming
, 2012 I L App (1st) 103475-B
, ¶ 28. Wit hin the opinion, we stated that

we ag ree d “with plaintiff that he should be reinstated until such time, if ever, that he is
proper ly discharg ed”; and “[t] he judgme nt of the circ uit court of De Kalb County is reve rsed in part, and the cause is rema nded for *** plaintiff’s reinstateme nt as a firef ighte r ***. Reverse d in part and r emande d with directions.” Ertl I , 303 I ll. App. 3d at 530. ¶ 23 We h av e n o d i ff i cu l t y i n t erpreting this straig htforwa rd direc tion. I n construing the lang uag e, matters that are implied may be considere d embra ced by the mandate. PSL Realty
, 86 I ll. 2d at 308. Although we ag ree d that plaintiff should be reinstated until such time, if

ever , that he is proper ly discharg ed, at no time did we enter a self-e nforc ing order reinstating plaintiff as a firef

ighte r or order the City to reinstate plaintiff. Rather, we rema nded the case to the trial court t o o rd er p l aintiff’s reinstateme nt as a firef ighte r and to hold further
proce eding s to deter

mine whether any additional damag es should be awa rded. Ertl I

, 303 I ll. App. 3d at 529. I n fac t, we repe ated this order in Ertl II
, when we stated that “this court

rema nded the case for reinstateme nt of count I
, for plaintiff’s reinstatement as a firefighter
, an d fo r t h e awa

rd of any additional damag es.” (Emphasis added.) Ertl II
, slip op. at 1. Contrary to the dissent’s sug g estion, we are not adding lang uag e not prese nt in the opinion. I n Ertl I
, we remande d the ca se to the t rial court for further action. We did not rema nd the

case t o t h e C i t y for further action. Even plaintiff’s attorney acknow ledg ed during oral
argument that our order did not state that the City was to re i n s tate plaintiff instanter and instead rema

nded the cause to the trial court to enter an order to reinstate plaintiff. (Indeed,

on no few er than five occa sions during oral arg ument, plaintiff’s attorney conce ded that the trial court was order ed to reinstate plaintiff. This is hardly “che rry picking ” statements that

we wish to highlig ht.) I f we had enter ed a self-e nforc ing order of reinstateme nt, why would

we t h en d en y plaintiff’s petition for a rule to show cause that soug ht relief for the City ’s failure to reinstate him? Once we ag ree d that plaintiff should be reinstated, this established the law of the case : plaintiff had the rig ht to be reinstated. I t was the responsibility of the trial
court to follow the specific direc tions of our mandate. When the trial court failed to include

an order of reinstateme nt in its judgme nt order
, plaintiff should have appea led and raised the issue of whether the trial court complied with our mandate. The fac t that the City reinstated plaintiff in Fe bruar

y 2011 was simply its attempt to mitigate its damag es following the trial court’s r ulings. ¶ 24 Howeve r, this does not end the problem, beca use, reg ardle ss of whether plaintiff had the rig ht to be reinstated, or even if we had enter ed a self-e nforc ing order of reinstateme nt or had order ed the City to reinstate plaintiff, plaintiff filed a petition for a rule to show cause ag ainst the City for its failure to reinstate him, but he never attempted to have it hear d. Plaintiff then, for whateve r rea son, never reque sted reinstateme nt at trial, in a posttrial motion, or in an appea l. These actions wer e contra ry to the dissent’s bald statement t h at p l ai n t i ff acte d as

-7-though the City was require d to reinstate him pursuant to Ertl I

. Perhaps plaintif

f never soug ht reinstateme nt beca use he h ad gai n ed new employ ment with the Prairie View fire depar tment at t he ti me, which we presume he found prefer able. W hateve r t h e ca s e, Ertl II contained no discussion of the trial co u rt ’s failure to car ry out this court’s mandate, and clea rly plaintiff abandone d or forf eited his attempt to secur e his rig ht to reinstateme nt. Since plaintiff abandone d his rig ht to be reinstated or forf eited that rig ht, we ag ree that res judicata bars plaintiff’ s suit. ¶ 25 Plaintiff contends that the prese nt suit cover s a differ ent period of time, from the orig inal judgme nt for plaintiff on J anuar y 5, 20 0 1
, u n t i l the final judgme nt on Aug ust 26, 2010. Plaintiff alleg es that the City ’s contin u i n g noncompliance with our mandate to reinstate plaintiff g ave rise to plaintiff’s subsequent claims for additional damag es when the mandate

was not followed. We fail to see how plaintiff could asser t that he was entitled to additional damag es. The City paid p l ai n t i ff d amage s up to J anuar y 5, 2001, to reme dy his wrong ful termination. Plaintiff alleg es that the City failed to reinstate him and that he was entitled to dam ages from J anuar

y 5, 2001, throug h Aug ust 26, 2010. Howeve r, pl aintiff has not been harme d and there has been no brea ch of contra ct, beca use plaintiff never attempted to enfor ce his rig ht to reinstateme nt. Plaintiff is trying to equate wrong ful t er m i n ation with the trial court’s failure to reinstate him. See Doherty v. Schipper & Block
, 250 I ll. 128, 134 (1911) (“a n action for the brea ch of the contra ct of employ ment g rowing out of the wrong ful discharg e of the appellant *** all damag es resulting from such brea ch must be rec overe d in

one action, and that afte r one rec overy has been had that rec overy is a bar to all future actions based upon the contra ct of e mploy ment”). ¶ 26 We also reje ct plaintiff’s argument that there is no identity of cause of action as plaintiff alleg es new fac ts base d on the City ’s “intentional brea ch of contra ct” beca use of its “def iance ” of this c ourt’s reinstateme nt or der. As we previously held, the City did not defy this court’s reinstateme nt order ; rather, the trial court did not adher e to our rema nd instruction. Reg ardle ss, plaintiff never appea led the trial court’s omission of a reinstateme nt order
, called his petition for rule for a hear ing, or appea led what he believed was the City ’s failure to reinsta t e h i m

. This is a matter that could have been decide d in Ertl II

. Plaintiff failed to protec t his rig ht to reinstateme nt when he failed to file a timely brief appea ling the trial court’s judgme nt in Ertl II

. I n passing
, we observe also that fault is irrele vant in a brea ch-of -contra ct claim. See J.F. Equipment, Inc. v. Owatonna Manufacturing Co.
, 143 I ll. App. 3d 208, 220 (1986). Be cause we find as a matter of law that the elements of res judicata apply , the trial cour

t erre d by failing to dismi ss plaintiff’s lawsuit.

¶ 27 Laches ¶ 28 Although we need not rea ch this issue, we ag ree with the City that the doctrine of laches also could have barr ed plai ntiff from pursuing the equitable reme dy of reinstateme nt. The doctrine of laches is an equitable doctrine based on the maxi m that “equity aids the vigilant and not those who slumber on their rig hts.” Tower Oil & Technology Co. v. Buck ley
, 99 I ll. App. 3d 637, 645 (1981). I n order to invoke the doctrine, it is nece ssary to establish “lac k of due diligenc e by the party asser ting t h e cl ai m and prejudice to the opposing party .” Van

-8-Milligan v

. Board of F ire & Police Commissioners
, 158 I ll. 2d 85, 89 (1994). Principles of laches are applied when a party ’s failure to timely asser t a rig ht has cause d prejudice to the adver se par

ty

. Tully v. State , 143 I ll. 2d 425, 432 (1991). ¶ 29 The City would suffe r prejudice i f o rd ere d to reinstate plaintiff at this juncture, as the

rec ord i ndicates that plaintiff was repla ced by the C ity sever al y ea rs ago

. As stated above, following plaintiff’s first appea l on his 1997 co m p l ai n t , we reve rsed the dismiss al of the brea ch-of -contra ct count of the complaint and rema nded the ca s e fo r reinstateme nt of plaintiff. That opinion was issued on Marc h 18, 1999. Ninetee n months later, plaintiff filed

a petition for a rule to show cause in the trial court, reque sting the trial court to hold the City in contempt of court for failure to reinstate plaintiff. Howeve r, in the trial court, plaintiff

never noticed the petition for hear ing. No t wi t h s tanding
, the trial court enter ed an order requiring the City to file a written response to the petition. The trial court also set a hear ing date on the petition. Howeve r, no hear ing on the petition was held and the trial court enter ed an order setti ng the m att er fo r a bench t rial. The matter was eventua lly tried on J anuar y 4, 2001. At trial, plaintiff did not prese nt any evidenc e or make any ar g ument reg arding the issue of his reinstateme nt or his p eti tion for a rule to show cause

. He reque sted only monetary damag es as his chosen reme dy

. The trial court there afte r enter ed a judgme nt order only for monetary damag es in favor of plaintiff on J anuar y 5, 2001. The order did not addre ss the issue of plaintiff’s reinstateme nt or plaintiff’s petition for a rule to show cause

. Plaintiff’s
appea l from that orde r wa s dismiss ed beca use he failed to f

ile a brief a fter ha

ving r ece ived

more than one extension to do so. Although plaintiff did file a p et i t i o n fo r a rule to show

cause with this court, reque sting that the City be held in contempt for failure to reinstate him, by the time he did so he ha d forf eited that rig ht. ¶ 30 Plainti ff h ad am p l e o p p o rt unity to enfor ce his rig ht to reinstateme nt as a fire fig hter. Plaintiff d i d not seek the equitable remedy of reinstatement until 11⁄2 y ear s afte r our initial opinion in Ertl I

. He then failed to notice the petition for hear ing. He failed to raise the issue
at trial. He failed to file a brief in the second appea l, wher e he could have raised the issue of reinstateme nt. Plaintiff could have avoided the prese nt lawsuit if he had asked the trial court

on rema nd from Ertl I to amend its J anuar y 5, 200 1
, j u d gm en t to include an order of reinstateme nt or had presse d his appea l of that judgme nt. I nstead, he sat on his rig hts. By the time that we decide d Ertl II
, there was no indication that plaintiff had any i ntere st in reinstateme nt. Plaintiff had alre ady started working as a firema n elsewhe re. The City had paid the judgme nt and thought the litigation had ended. Yet, on Aug ust 26, 2002, six y ear s afte r his te rmination, plaintiff filed the prese nt case , his second lawsuit ag ainst the City for a bre ach of

contra ct, which ha d alre ady been de termined. ¶ 31 Plaintiff’s unjustifiable delay prejudice d the City

. I f plaintiff had diligently pursued his rig hts or made a

n eff ort to be re instated in the weeks or m onths following the j udg ment in Ertl I
, the City and the taxpay ers of De Kalb could have avoided the judgme nt a nd costs in this case. See Bill v. Board of Education , 351 I ll. App. 3d 47, 57 (2004). ¶ 32 The dissent’s entire positi o n i s p re d i ca ted on the proposition that this court in Ertl I
enter ed a self-e ffe ctuating order to the City to reinstate plaintiff as opposed to rema nding the

cause to the trial court to enter such an o rder

. The fac t that the dissent’s view of the order differ s from ours does not nece ssarily make our decision absurd, in e xp li cable
, or a perve rsion

-9-of any leg al conc ept. I nvective a nd hy perbole are no substitut e for sound leg al ana ly sis. ¶ 33 For

these re asons, the judg ment of the c ircuit court of De Ka lb County

is rever sed.

¶ 34 Reverse d.

¶ 35 J USTI CE BI RKETT, spec ially concur ring

. ¶ 36 The dissent takes issue with ou r i nterpre tation of this court’s decision and mandate in Ertl I

. My colleague J ustice McL are n was the author in Ertl v. City of DeKalb
, 2012 I L App (2d) 120514-U (

Ertl III ), which was decide d on J uly 31, 2 0 1 2

. J ustice Bow man and I

concur red in this court’s order reve rsing the trial court’s denial o f a s t ay of proce eding s pending arbitration of certain is sues related t o Ertl’s reinstatem en t

. I n Ertl III we said that Ertl I
, inter alia
, “ directed the trial court to order plaintif f’s reinstatement as a firefighter. ” (Emphasis adde d.) Ertl III , 2012 I LApp (2d) 120514- U, ¶ 3. ¶ 37 Our interpre tation of Ertl I is identical to the descr iption in Ertl III

. The mandate in Ertl I reve sted the trial court with jurisdiction to car ry out this court’s direc tions, which included
enter ing an order direc ting the City of De Kalb to reinstate Ertl. On Aug ust 23, 2012, at oral
argument in this case , J ustice McL are n, in summary , told Ertl’s counsel that if our mandate in Ertl I order ed the trial court to do something reg arding reinstateme nt “y ou’re out o f the box .” I could not ag ree more.

¶ 38 J USTI CE McL AREN, dissenting. ¶ 39 I agr ee t h at res judicata applies in this case

. Howeve r, the application of res judicata does not preve nt Ertl from seeking damag es in this case ; it preve nts the City from claiming that it is not require d to reinstate Ertl “until such time, if ever , that he is proper ly discharg ed,” and it preve nts Ertl from claiming that the trial court can and should order the City to reinstate him. The majority now approve s a proposition that no one, including the Cit y , approve d of when this court ordere d Ertl’s reinstatement 14 y ear s ag o. Not only was the proposition ne ver approve d, but when the trial court deter mined and decla

red the exact opposite proposition, neither party contested that deter mination on appea l. There fore
, I must dissent. ¶ 40 The majority makes the bald asser tion that, in Ertl I

, “we rema

nded the case to the trial

co u rt to order plaintiff’s reinstateme nt as a firef ighte r and to hold further proceed i n gs t o deter mine whether any additional damag es shoul d be awarde d.” Supra ¶ 23. Howe ver, w e did not rema

nd the cause for Ertl to apply for reinstateme nt, or for “ consideration of the issue of reinstatement of the plaintiff to his p re v i o us position” (empha sis added)
, as the City ’s counsel asserted at oral ar g ument, or for the trial cour

t to hold a hearing on reinstateme nt,

or for the trial court to order someone to reinstate Ertl; we rema nded the cause for his reinstateme nt as a firef

ighte r, and, as we explained, that reinstateme nt was to last “until such time, if ever, t h at he is proper ly discharg ed.” Ertl I
, 303 I ll. App. 3d at 530. The majority claims to have “no difficulty ” i n “interpr eting this straig htforwa rd direc tion” from our decision in Ertl I

. Supra ¶ 23. Howeve r, afte r acknow ledg ing that the mandate “did not

-10-contain specific direc tions” and that “the trial court was require d to examine the opinion to

deter mine what further proce eding s would be consistent with the opinion” ( supra ¶ 22), the majority then conclude s that “we rema nded the case to the trial court to order plaintiff’s reinstateme nt as a firef

ighte r” and that “[i] t was the responsibility of the trial court to follow the specific directions of

our mandate .” (Emphasis added.) Supra ¶ 23. First, did the mandate contain clea

r direc tions? I f so, examination of the opinion was unnece ssary

. Second, in any event, neither t he mandate nor the opi nion contained l an gu age o rdering “ the t rial court to order plaintiff’s reinstateme nt a s a firef ighte r and to hold further proce eding s to de termine whether any additional damag es should be awa rded.” (Emphasis added.) See id. Why does the majority

add languag e not pre sent in the opinion and mandate ? ¶ 41 On rema

nd, the trial court understood that the City
, not it, was require d by this court, a nd had the powe r, to reinstate Ertl:
“THE COURT: As I rea d this [ Ertl I ] and rea d befor e I came out here aga i n , I interpre ted that I have no rig ht to substitut e my judgme nt fo r wh et h er [pl aintiff] was rig htfully or wrongf

ully terminated. That’s t he judgment, as I i nterpre t it, of t he Board of Police and Fire commissioners of the City of De Kalb. I ’m only looking for if they did it okay ?
MS. EL Y [C ity counsel]: So what y ou’re saying is that we are t ry i n g t o day –for purposes of Count I , are we try ing liability

on Count I or ar e we just try ing da mag es?
THE COURT: I can’ t–y ou have to tell me if he was–I do not know. I expected to hear
t o day whether he was terminated, whether there was a notice given and a hearing held and whe ther he was ter

minated.
MS. EL Y: Well–
THE COURT: Ihave a

sinking feeling in my

stomach that that neve r occ urre d; am Irig ht? ” Appar ently
, the City ag ree d; during the trial on rema nd, the trial court descr ibed the actions of the City : “So, in fac t, Ms. Ely [C ity counsel], I have said to y ou befor e–if y ou want to bring him back in here –Mr. Mateka itis [form er C i t y counsel] came to me and asked me to continue thi s t ri al last fall, t elling me he needed to conduct a hear ing before the Board of Police and Fire Commi ssioners. May be y ou do n ’t agr ee with what he said, but he

came to me and made that reque st in front of me, M r. Gallag her [Ertl’s counse l] , and I told y ou that a couple of we eks ag o.” Why would the City

reque st a continuanc e of trial in order to conduct a hear ing before the Boa rd of Police and Fire Commi ssioners if it did not believe that it neede d to terminate Ertl? Why would it need to terminate Ertl if he ha d not been r einstated? ¶ 42 That the trial court and the City co n t i n u ed t o u n d erstand the issue in this manner was evidenc ed during the t rial in this case

. The City ’s attorney told the trial court in this case , “The Appellate Court’s opinion said that we wer e supposed to reinstate the plaintiff. We did not do that.” I n the City ’s openingstatement at trial, c ounsel noted “that there ha d been a n appea l of the matter which re fl ec t ed the plaintiff had not been proper ly terminated and

-11-o rdered the City to reinstate him and, if it chose, to proper ly terminate him.” (Em p h as i s

added.) See supra ¶ 11. Afte r trial, the tria l court beg an its oral rulingby stating: “This matter comes on for ruling today

. I want to pref ace my rema

rks by letting me say this: Some think a judge can do whateve r he wants to do. That’s not true. J udg es have
to follow the law. When they don’t, problems are amplified, not resolved and case s drag on costing ever

y body more[,] and emotional distress.
This is a very unconventional case

. I t’s been to the Appellate Court three times. And I ’m the second trial judge assig ned during the past thirteen y ear s that this case is pending

. Ove r elev en years ago the Appellate Court ordered the plaintif f [sic] t o reinstate Mr. Ertl wi th back be nefits. To dat e that has not happened.
How can this happen? I don’t know. I don’t understand how a g overnme nt body can ignor e a mandate from t he Appellate C ourt for over el even y ear s. This case appea rs t o b e d ri v en by persona lities and not by the rule of law. I understand that Mr. E rt l ’s
persona lity is not appea ling to most people. I understand that Cit y administrators wer e

o f f e n d e d b y d e f

e n d a nt’ s [ s ic ] d e f

ia nt, unremorse ful, in-y our-f ace attitude. Howeve r, n o n e of these c onsiderations trump the rule of law.” (Emphasis adde d.) ¶ 43 T h e trial court noted that “[p] laintiff had not been fully reinstated” and, in its written order
, specific ally provided that “the Appellate Court has previously order ed that [p] laintiff be fully reinstated by the [C ity ].” The trial court also informed Ertl’s counsel that “I am not order ing him reinstated. *** The Appellate Court order ed him re i n stated. The Appellate Court doesn’t nee d me to say that they wer e rig ht and he should be r einstated.” ¶ 44 The trial court did not order Ertl reinstated afte r the trial o n re m an d

. T h e trial court understood that it did not have the prer og ative to reinstate Ertl; both the power and the duty
to do so rested in the City

. This is evident in the court’s pronounce ments, ruling s, judgme nt, and awa rd of punitive da

mag es. The City was also awa re of this fa ct, as is e vidence d by its admissions below that it had been order ed to reinstate Ertl. Ertl’s appea l in Ertl II was dismiss ed by this court, and t h e City ’s appea l neither mentioned nor contested the trial court’s order reg arding reinstateme nt. Neither Ertl I nor Ertl II was ever revie wed, let alone

reve rsed, by

our supre me cour

t. ¶ 45 The law-of

-the-c ase doctrine, which applies to issues both of law and of fac t, holds that such issues decide d on a previous appea l are binding on the trial court on rema nd as well as

on the appellate court in s u b s eq u ent appea ls. Bjork v. Draper
, 404 I ll. App. 3d 493, 501 (2010). I n addition, a final and appea lable trial court order that has been left undisturbed by the appellate court beco m es the law of the case

. Erickse n v. Rush-Presby terian-St. Luke’s Medic al Center
, 289 I ll. App. 3d 159
, 1 6 8 (1 9 9 7 ). This doctrine protec ts the settled expectations of the parties, ensure s uniformity of decisions, maintains consistency during the

course of a single case , eff ectuates proper administration of justice, and bring s litigation to

an end. Id. The City did not file a petition for leave to appea l our judgme nt in Ertl I

. The trial court, which conclude d that the City was alre ady require d to reinstate Ertl, made its ruling s and did not order the City to reinstate Ertl. As the law of the case , this court’s order that the City reinstate Ertl “unti l s u ch time, if ever , that he is proper ly discharg ed” ( Ertl I
, 303 I ll. App. 3d at 530) was binding in the trial court on rema nd, on this court in Ertl II
, in the trial

-12-held in this case , and in this appea l. Fur ther, the trial court’s deter mination that the City
, not the cour t, was re quired to reinstate Ertl was ne ver timely challeng ed on appe al. The City ’s claim that this court’s orde r is not binding on it is meritless. ¶ 46 The law of the case is that Ertl was to be reinstated; it is not, as the majority claims, that Ertl “had the right to be reinstated.” (Emphasis added.) Supra ¶ 23. The trial court, the City
, and Ertl all acte d as t houg h the C ity was required by our opi nion in E r t l I t o re i nstate Ertl “until such time, if ever , that he is proper ly discharg ed.” This is a rea sonable interpre tation. Pursuant to article I V of the contra ct betwee n the City and the De Ka l b I n t ernational Association of Fire fig hters, L ocal 1236, probationar y employ ees may

be ter minated by the “F ire Depart m en t , ” a phrase that, per the contra ct, “shall be sy nony mous with the City of De Kalb.” As we noted in Ertl I
, “On April 19, [ 1 9 95], the City terminated plaintiff’s employ ment without explanation.” (Emphasis add ed .) Ertl I
, 303 I ll. App. 3d at 526. The City terminated Ertl; no one but the City co u l d “u n -t erminate ” or reinstate him. Yet the majority finds that “the City did not defy this cou rt ’s reinstateme nt order ; rathe r, the trial court did not adhe re to our r emand instruction.” Supra ¶ 26. ¶ 47 The majority is ra t h er s el ec t i ve in its use of statements by Ertl’s counsel to support its conclusion. The majority asser ts that “[e]ven plaintiff’s attorney acknow ledg ed during oral
argument that our order did not state that the City was to re i n s t ate plaintiff instanter and instead remanded the cause to the t rial court to enter an order to reinstate pla intiff.” Supra ¶ 23. Perhaps t h e majority could also addre ss Ertl’s counsel’s asser tion (at approximately 18:51 to 19:00 of the rec orded argument) that, “In this case , it’s fairly clea r that Mr. Ertl was reinstated by the appellate court in 1999, in its orde r. ” Or counsel’s response (at approximately 20:19) to a question as to why no one at the retria l broug ht up the fac t that Ertl

n eeded to be reinstated: “Well, that’s beca use the appellate court had alre ady ruled. T h e appellate co u rt had alre ady ruled on this.” Or Ertl’s asser tions on pag e 16 of his brief that “THE CI TY WAS ORDERED TO REI NSTATE T HE PL AI

NTI FF ” and “Althoug h the Appellate Court did rema nd the ca s e, i t also clea

rly order ed Plaintiff’s reinstateme nt; to claim otherwise is to i g nore the fac ts.” Ertl’s counsel made contra dictory and, at times, unclea r statement s r e g a

r d ing reinstateme nt (“My argument to y ou, J udg e, is that the appellate court reinstated Mr. Ertl, is s u ed a m andate to the t rial court, which the trial court failed t o abide by
, parties failed to abide by
, and ever y one failed to abide by .”), but this court cannot cher ry -pick so blatantly

the statements that it wishes to highlig ht. ¶ 48 I n an y event, Ertl’s counsel’s char acte rization of our decision i n E r t l I at an o ra l 2
argument more than 13 y ear s afte r we i s sued our decision is both irrele vant and a non sequitur

. The judgme nt in this case was interpre ted y ear s ag o by the trial court to require the City to reinstate Ertl. Appellate counsel’s arguments now (which are, i n any event, contra dicted by other of h is statements) are not judicial admissions that annul Ertl’s claim that the City

failed to follow this court’ s order to reinstate Er

tl. ¶ 49 As a m at t er o f l aw , t h e City was to reinstate Ertl “until such time, if ever , that he is
proper ly discharg ed.” I mplicit in this order is that the City would pay Ertl the wag es due to

I m ust not e t hat cou nse l o n t his app eal was not cou nse l i n Ert l I

. 2

-13-him as a firef ighte r until, if ever , he was terminated. Howeve r, the City failed to reinstate him and did not pay him. Ertl had a choice of reme dies for the City ’s failure

. He could have petitioned for a rule to show cause , as he did in the trial court (without resolution) and also in this court (which was denied)
, seeking sanctions ag ainst the City for its failure to reinstate him. He could also, as he did here
, seek compensatory damag es for the pay ments that he would have rec eived had the C ity reinstated him. I n this case , those damag es ac cumulated until the time of trial, as the City did not reinstate him a nd, conseque ntly
, did not terminate him. This is not Ertl slumbering on his rig hts such that laches should apply

. This is the City sitti ng on its hands, ref

using to comply with the order s of this court and the trial court, such that damag es should continue to acc umulate until the City follows the order s and the interpre tation of the trial court and g ives Ertl a proper hear ing to terminate his employ ment. The City has no basis t o cl ai m t h at laches applies. He who seeks equity must do equity

. Gambino v. Boulevard Mortgage Corp. , 398 I ll. App. 3d 21, 60 ( 2009). “A court of equity will not confer its equitable relief upon a par

ty seekingits aid, unless he will acknowle dg e and conce de all the equitable rig hts and dividends justly belon g ing to the adver sary party , g rowing out of or nece ssarily involved in the subject-matter of the controve rsy

. [C itation.] ” W enham v. Mallin
, 103 I ll. App. 609, 61 3 (1 9 0 2). The City acknow ledg ed on the rec ord during trial in this case that t h i s co urt “orde red the City to reinstate [Ertl] ” and that “The Appellate Court’s opinion sa id that w e wer e supposed to reinstate the plaintiff. We did not do that.” These acknowledg ments came 10 y ear s after our disposition i n Ertl I and 7 y ear s afte r Ertl filed his initial complaint in this cas e. The City acknow ledg es that it ignor ed an appellate court order for 10 y ear s and the majority finds that the City has acknow ledg ed and

conce ded “all the equitable rig hts and dividends justly belong ing to” Ertl? What “equity” has the City done by intentionally ignor ing the order s of this court and the trial court? The City acknow ledg es its 10-year delay in f ollowing this c ourt’s order and the majority deter mines that, beca use of Ertl’s “unjustifiable dela y ,” laches should preclude Ertl’s re cover y

. Supra ¶ 31. The majority ’s conclusion that the City ’s inequitable delay should assist the City in its claim for laches is absurd. ¶ 50 The majority asks, “I f we had enter ed a self-e nforc ing order of reinstateme nt, why would

we then deny plaintiff’s petition for a rule to show cause that soug ht re l i ef fo r the City ’s failure to reinstate him? ” Supra ¶ 23. Ertl had chosen and rece ived from the t rial court his

reme dy of compensa

tory damag es t h at h ad acc rued to that point

. This court aff irmed the
g rant of this reme dy in Ertl II ; we could not additionally g rant him his unchosen reme dy of sanctions for failing to reinstate him. Howeve r, t he majority uses i ts rhetorica l question as

a basis to deny

Ertl the re lief that he soug ht and to which he was entitled beca use he failed
to seek enfor ceme nt of the relief that he had not chosen. I n any event, a court’s decision not to issue a rule to show cause or find a pa rty in contempt does not mean that the underlying order is vacated. I f a trial court declines t o issue a rule to show cause or t o hold a father in
contem p t fo r his failure to pay child support, the arr ear ag e does not disappea r, nor do the fut ure obliga

tions cea se to acc rue. Her e, the City ’s obligation to reinstate Ert l wa s n o t

vacated or aff

ecte d in a ny way by the trial court’s failure to rule on his petition for a rule to show ca use or this court’ s denial of his later pe tition, nor was the ac crua l of compensatory damag es “until such time, if ever , that he is proper ly discharg ed.” The majority ’s rhetoric al

-14-question is a red he rring

.

¶ 51 I n o t e that the City attempted to reinstate Ertl in 2010 and did, in fac t, notify Ertl o n Fe bruar y 4, 2011, that he was to be reinstated on Fe bruar y 10 of that y ear

. See Ertl III
, 2012 I L App (2d) 120514-U. I s this not consistent with the trial court’s interpre tation of the Ertl I mandate? How can the City argue that it wa s n o t required to reinstate Ertl and that res judicata and laches apply to preve nt Ertl’s claims when the City has, in fac t, reinstated him? ¶ 52 The inability of any party o t h er t h an t h e C i ty to reinstate Ertl is demonstrated by the
proce eding s in Ertl III
, which involve d questions reg arding Ertl’s pay and status (probationary versus non-probationary ) upon reinstateme nt. See id. ¶ 4. I f the trial court wer e require d to order Ertl’s reinstateme nt, appar ently it would have been require d to make such decisions and include them in its order

. Fur ther, the majority addre sses only half of the Ertl I direc tive; it never addre sses “until such time, if ever , that he is proper ly discharg ed.” L og ic would dictate t h at wh o ev er was order ed to reinstate Ertl would also be char g ed with the authority to “prope rly discharg e” him. Ag ain, logic would dictate that this party would be the City

. The trial court is just as ill-suited to this project a s it wa s to r einstatement. What ty pe of proce eding would be employ ed to discharg e Ertl–dec l ar at o ry judgme nt? At best, the majo ri t y can be rea d to provide an oblique hint at its interpre tation of the discharg e require ment: by not obtaining a ruling on his petition for a ru le to show cause in the trial court, Ertl abandone d the petit ion an d
, i n es sence , discharg ed him self such that no further damag es would acc rue. Howeve r, such a theory makes no sense in light of the actua l law and fac ts of this case. ¶ 53 The majority finds that “the trial court did not adher e to our rema nd instruction.” Supra ¶ 26. I t appea

rs that, reg ardle ss of what the trial court did, the majority fails to follow the law of the case and fails to enfor ce a trial court order that has not been appea led as err oneous. For the majority to do so at this juncture is a perve rsion of the conce pt of res judi ca t a

. I t is inexpl icable how

the majority

can c laim, in light of the rec ord and in the fac e of the City ’s admi s s i o n s , that the City did not know or understand that it was the party require d to reinstate Ertl and that the burden was, inst ead, on Ertl. The major i t y i s re wa rdi ng the C ity despite its steadfa st ref

usal to even attempt to reinstate Ertl until 2010. Until such time as the City demande d t h at E rt l re turn to work, he was entitled to the relief that he soug ht. The majority ’s deter

mination that Ertl was require d to seek other forms of relief or lose his rig ht to compensatory

damag es is both unprec edente d and wr ong

. ¶ 54 I would also like to point out that, if the City had diligently followed this court’s opinion and the tria l court’s interpretation there of and made an eff ort to reinstate Ertl in the wee ks

or months following the judgme nt in Ertl I
, the City and the taxpay ers of De Kalb could have avoided the judg ment and costs in this case.

-15-