ILLINOIS OFFICIAL REPORTS

Appellate Court

Ertl v. City of De Kalb, 2013 IL App (2d) 110199

Appellate Court

Caption

RUSSELL J. ERTL, Plaintiff-Appellee, v. THE CITY OF DE KALB,

and THE BOARD OF POLICE AND FIRE COMMISSIONERS,

Defendants-Appellants (The Board of Trustees of the De Kalb

Firefighters’ Pension Fund, Defendant).

 District & No. Second District

Docket No. 2-11-0199

Filed

Rehearing denied

March 19, 2013

April 18, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In protracted legal proceedings that started with a complaint seeking

plaintiff’s reinstatement to his position as a firefighter and back wages,

included an appeal from an award of back wages and a mandate by the

appellate court directing the trial court on remand to reinstate plaintiff,

and resulted in the trial court allowing the award of back wages to stand

without ordering plaintiff reinstated, the trial court erred in failing to find

that a second suit filed by plaintiff seeking reinstatement and back wages

was barred by res judicata, since the trial court, on remand from the first

appeal, did not order plaintiff reinstated but, rather, simply let the initial

award of back wages stand, the appellate court affirmed that judgment,

and based on plaintiff’s forfeiture of his right to reinstatement by failing

to pursue that relief in the trial court or in an appeal, his second suit was

barred.

Decision Under 

Review

Appeal from the Circuit Court of De Kalb County, No. 02-L-86; the Hon.

Kurt P. Klein, Judge, presiding.

Judgment Reversed.
Counsel on

Appeal

Yvette A. Heintzelman and Benjamin E. Gehrt, both of Clark Baird

Smith LLP, of Rosemont, for appellants.

James T. Harrison and Kristen J. Farr, both of Harrison Law Offices,

P.C., of Woodstock, for appellee.

Panel PRESIDING JUSTICE BURKE delivered the judgment of the court, with

opinion.

Justice Birkett specially concurred, with opinion.

Justice McLaren dissented, with opinion.

OPINION

¶ 1 This matter has been pending between the parties for many years. Plaintiff, Russell J.

Ertl, was hired by the City of De Kalb as a firefighter in 1995 and terminated in 1996 without

a hearing and without formal charges. On April 1, 1997, plaintiff filed the original case,

seeking reinstatement and back wages based on breach of contract and the rules and

regulations of the board of police and fire commissioners (Board). The trial court awarded

plaintiff back pay and plaintiff appealed. We remanded, inter alia, with an order to reinstate

plaintiff as a firefighter. Ertl v. City of De Kalb, 303 Ill. App. 3d 524, 530 (1999) (Ertl I). On

remand, plaintiff petitioned for a rule to show cause, asking for reinstatement. Instead of

ruling on plaintiff’s filing, the case proceeded to trial on count I for breach of contract, and

the trial court thereafter awarded plaintiff damages on the breach-of-contract claim and

allowed the award of back pay to stand. The trial court did not order that plaintiff be

reinstated. Plaintiff appealed and the City cross-appealed. However, this court dismissed

plaintiff’s appeal after he failed to file a timely appellate brief. On May 8, 2002, this court

rendered its decision on the City’s cross-appeal and affirmed the judgment 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 August 26, 2002, plaintiff filed a second lawsuit, against the City, the Board, and the

board of trustees of the De Kalb Firefighters’ Pension Fund. As in the original lawsuit, 1

plaintiff sued the City and the Board (collectively, the City) for, inter alia, reinstatement and

back wages. The City argued that principles of res judicata and laches precluded plaintiff

from re-litigating this lawsuit. The trial court disagreed and, following a bench trial, awarded

plaintiff damages, attorney fees, and prejudgment interest on plaintiff’s breach-of-contract

The board of trustees of the De Kalb Firefighters’ Pension Fund is not a party to the appeal.

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claim. The City argues on appeal that the trial court erred in finding that plaintiff’s amended

complaint was not barred by res judicata or laches. We agree with the City and reverse.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff was a firefighter for the City from October 10, 1995, to April 19, 1996, when

he was terminated following his arrest for unlawful use of weapons (720 ILCS 5/24-1(a)(4)

(West 1996)) and disorderly conduct (720 ILCS 5/26-1(a)(1) (West 1996)), and his failure

to report for duty at the prescribed time the day after his arrest. Although notified of the

termination and the reasons therefor, the Board did not conduct a hearing on plaintiff’s

termination. Ertl I, 303 Ill. App. 3d at 526.

¶ 5 Plaintiff filed his first suit seeking reinstatement and back wages, a three-count

complaint, on April 1, 1997. After a stipulation of facts, plaintiff was awarded back pay of

$1,928.31 on his allegation that the Board had violated its rules and regulations. Id. Plaintiff

appealed the damages award and the trial court’s dismissal of his breach-of-contract count.

This court reversed in part, agreeing with plaintiff that “he should be reinstated until such

time, if ever, that he is properly discharged,” and remanded the cause:

“for the reinstatement of count I [breach of contract], plaintiff’s reinstatement as a

firefighter, the awarding of any additional damages that may be appropriate, and for

further proceedings consistent with this opinion.” (Emphasis added.) Id. at 530.

¶ 6 On remand, 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 firefighter. Although a hearing date

was set, and the City was ordered to file a written response to the petition, no hearing was

ever held. Instead, the remanded cause was set for a bench trial. During the bench trial, the

following colloquy took place:

“THE COURT: As I read this [Ertl I] and read before I came out here again, I

interpreted that I have no right to substitute my judgment for whether [plaintiff] was

rightfully or wrongfully terminated. That’s the judgment, as I interpret it, of the Board

of Police and Fire commissioners of the City of De Kalb. I’m only looking for if they did

it okay?

MS. ELY [City counsel]: So what you’re saying is that we are trying today–for

purposes of Count I, are we trying liability on Count I or are we just trying damages?

THE COURT: I can’t–you have to tell me if he was–I do not know. I expected to hear

today whether he was terminated, whether there was a notice given and a hearing held

and whether he was terminated.

MS. ELY: Well–

THE COURT: I have a sinking feeling in my stomach that that never occurred; am

I right?”

¶ 7 At the bench trial conducted on remand, plaintiff testified that, after he was terminated,

he accepted employment as a firefighter with the Pleasant Viewfire department on December

14, 1998. Plaintiff subsequently rejected an offer of employment from the Belvidere fire

department because he was already employed with the Pleasant View fire department.

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Following the bench trial, the trial court determined that plaintiff was entitled to his lost

salary and pension contributions for the period of time between his termination in April 1996

and subsequent employment in December 1998 with the Pleasant View fire department. The

trial court awarded plaintiff damages of $79,108.72 on the breach-of-contract claim, which

included $8,047.77 in pension contributions. The trial court’s judgment order of January 5,

2001, did not address reinstatement.

¶ 8 Both plaintiff and the City appealed, although plaintiff’s appeal was later dismissed for

failure to file an appellate brief. The City did not raise the issue of reinstatement in its appeal.

Plaintiff filed with this court a petition for a rule to show cause, requesting 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 judgment amount plus postjudgment interest.

¶ 9 We affirmed the trial court’s judgment on issues relating to evidence, back pay, and lost

pension contributions. See Ertl II, No. 2-01-0145 (2002) (unpublished order under Supreme

Court Rule 23). As a final matter, we noted that, because plaintiff’s appeal had been

dismissed, we lacked jurisdiction to consider his contention that the trial court should have

awarded him additional damages for lost sick leave, vacation pay, and other fringe benefits.

Id. at 9-10.

¶ 10 On August 26, 2002, almost four months after this court’s ruling in Ertl II, plaintiff filed

the present, two-count complaint against the City, alleging breach of contract and violation

of the Board’s rules and regulations. The breach-of-contract claim sought the same remedies

as the original suit in Ertl I, in which plaintiff sought reinstatement and back wages. Plaintiff

also sought “additional damages since the January 5, 2001[,] judgment order.” The City

moved to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure (735 ILCS 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, plaintiff filed an amended complaint, adding

the board of trustees of the De Kalb Firefighters’ Pension Fund as a defendant in count III

for a violation of the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2010)), and

adding a claim for mandamus(count IV) against all defendants, seeking reinstatement, credit

for all creditable service, and back pay.

¶ 11 In its opening statement at trial, the City addressed our opinion in Ertl I by noting “that

there had been an appeal of the matter which reflected the plaintiff had not been properly

terminated and ordered the City to reinstate him and, if it chose, to properly terminate him.”

Following trial, the trial court began its oral ruling as follows:

“This matter comes on for ruling today. I want to preface my remarks by letting me

say this: Some think a judge can do whatever he wants to do. That’s not true. Judges have

to follow the law. When they don’t, problems are amplified, not resolved and cases drag

on costing everybody more[,] and emotional distress.

This is a very unconventional case. It’s been to the Appellate Court three times. And

I’m the second trial judge assigned during the past thirteen years that this case is pending.

Over eleven years ago the Appellate Court ordered the plaintiff [sic] to reinstate Mr.

Ertl with back benefits. To date that has not happened.

How can this happen? I don’t know. I don’t understand how a government body can

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ignore a mandate from the Appellate Court for over eleven years. This case appears to

be driven by personalities and not by the rule of law. I understand that Mr. Ertl’s

personality is not appealing to most people. I understand that City administrators were

offended bydefendant’s [sic] defiant, unremorseful,in-your-face attitude.However, none

of these considerations trump the rule of law.” (Emphasis added.)

¶ 12 The trial court found in favor of plaintiff and against the City on the breach-of-contract

claim (count I), awarding $170,540 in damages, almost $29,000 in attorney fees, and

approximately $62,000 in prejudgment interest. The trial court dismissed counts II through

IV as to all defendants. The trial court noted in its dismissal of count III that “[p]laintiff had

not been fully reinstated” and that the issue raised therein was “not ripe for adjudication.”

As to the mandamus claim (count IV), the trial court’s written order specifically provided

that “the Appellate Court has previously ordered that [p]laintiff be fully reinstated by the

[City].” When asked by plaintiff’s counsel whether it was ordering plaintiff reinstated, the

trial court responded, “I am not ordering him reinstated. *** The Appellate Court ordered

him reinstated. The Appellate Court doesn’t need me to say that they were right and he

should be reinstated.”

¶ 13 The City filed a motion for reconsideration, which the trial court denied on February 1,

2011. This timely appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Res Judicata

¶ 16 The City first contends that plaintiff’s claims were barred by the doctrine of res judicata.

According to the City, the trial court’s judgment of January 5, 2001 (on remand from this

court’s judgment in Ertl I), and this court’s subsequent affirmance of that judgment in Ertl

II, ended plaintiff’s litigation involving his termination from the fire department, and neither

the trial court nor this court ordered that plaintiff be reinstated; all that was required was the

execution of the judgment, which the City paid.

¶ 17 “Under the doctrine of res judicata, a final judgment on the merits rendered by a court

of competent jurisdiction acts as a bar to a subsequent suit between the parties involving the

same cause of action.” River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998).

The bar extends to what was actually decided in the first action, as well as those matters that

could have been decided in that suit. La Salle National Bank v. County Board of School

Trustees, 61 Ill. 2d 524, 529 (1975). For the doctrine of res judicata to apply, the following

three requirements must be satisfied: “(1) there was a final judgment on the merits rendered

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 Ill. 2d

70, 73-74 (1994). As res judicata involves a question of law, we will give this issue de novo

review. City of Chicago v. St. John’s United Church of Christ, 404 Ill. App. 3d 505, 512

(2010).

¶ 18 The parties do not dispute the first and third requirements. Rather, they take issue over

whether an identity of cause of action exists. To determine whether an identity of cause of

action exists (as to the breach-of-contract claims) such that res judicata applies, we apply the

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transactional analysis. See River Park, 184 Ill. 2d at 310-11. Under this analysis, we look to

the facts that give rise to plaintiff’s right to relief; separate claims are considered the same

cause of action for res judicata purposes if they arise from a single group of operative facts,

regardless of whether they assert different theories of relief. Id.

¶ 19 The City contends that there is an identity of cause of action. Both the original complaint

and the present complaint sound in breach of contract stemming from plaintiff’s termination

of employment on April 19, 1996. Plaintiff asserts that there is no identity of cause of action.

Plaintiff argues that Ertl I covered a different period of time than the current lawsuit because

he now seeks to recover additional contract damages that he incurred after the January 5,

2001, final judgment. Plaintiff notes that the present complaint alleges additional facts about

plaintiff’s court-ordered reinstatement and the City’s noncompliance with that order, which

caused different damages than those covered in the original suit and established the City’s

intentional breach in the present suit because of its alleged “defiance of the Appellate Court’s

reinstatement of the Plaintiff.” Plaintiff believes that, had the City reinstated him, as this

court had ordered, the damages that he seeks herein would not have arisen.

¶ 20 The problem with plaintiff’s argument, however, is twofold. Initially, it rests on

plaintiff’s, as well as the trial court’s, incorrect interpretation of this court’s mandate

regarding plaintiff’s reinstatement. The second problem is plaintiff’s abandonment of his

right to secure reinstatement.

¶ 21 “The mandate of a court of review is the transmittal of the judgment of that court to the

circuit court, and revests the circuit court with jurisdiction.” PSL Realty Co. v. Granite

Investment Co., 86 Ill. 2d 291, 304 (1981). Where the reviewing court’s directives are

specific, the court to which a cause is remanded is under a positive duty to enter an order or

decree in accordance with the directions contained in the mandate; precise and unambiguous

directions in a mandate must be obeyed. Bond Drug Co. of Illinois v. Amoco Oil Co., 323 Ill.

App. 3d 190, 196 (2001). “[I]t is not required that a reviewing court state specific directions

in an order reversing a judgment and remanding a cause. In such a case, it is then the duty

of the court to which the cause is remanded to examine the reviewing court’s opinion and to

proceed in conformity with the views expressed in it. [Citations.] ‘[T]hen, of course, the

content of the opinion is significant.’ PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d

291, 308 (1981).” Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 353 (2002). If

specific directions are not given, the trial court should examine the opinion to determine

what further proceedings would be consistent with the opinion. Fleming v. Moswin, 2012 IL

App (1st) 103475-B, ¶ 28. Any other order issued by the trial court is outside the scope of

its authority and void for lack of jurisdiction. Id. When the trial court’s action on remand is

inconsistent with the reviewing court’s mandate, it is subject to reversal on appeal. KeefeShea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 56 (2005). When a reviewing

court reverses and remands a cause with a specific mandate, the only proper issue on a

second appeal is whether the trial court’s order is in accord with the mandate. Quincy School

District No. 172 v. Illinois Educational Labor Relations Board, 366 Ill. App. 3d 1205, 1210

(2006).

¶ 22 The mandate in Ertl I stated:

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“BE IT REMEMBERED, that, to wit: On the 18th day of March, 1999, a Decision of the

aforementioned Court was entered of record and in accordance with the views expressed

in the attached Decision the judgment of the trial court is Reversed and Remanded with

Directions.”

The mandate itself did not contain specific directions; therefore, the trial court was required

to examine the opinion to determine what further proceedings would be consistent with the

opinion. See Fleming, 2012 IL App (1st) 103475-B, ¶ 28. Within the opinion, we stated that

we agreed “with plaintiff that he should be reinstated until such time, if ever, that he is

properly discharged”; and “[t]he judgment of the circuit court of De Kalb County is reversed

in part, and the cause is remanded for *** plaintiff’s reinstatement as a firefighter ***.

Reversed in part and remanded with directions.” Ertl I, 303 Ill. App. 3d at 530.

¶ 23 We have no difficulty interpreting this straightforward direction. In construing the

language, matters that are implied may be considered embraced by the mandate. PSL Realty,

86 Ill. 2d at 308. Although we agreed that plaintiff should be reinstated until such time, if

ever, that he is properly discharged, at no time did we enter a self-enforcing order reinstating

plaintiff as a firefighter or order the City to reinstate plaintiff. Rather, we remanded the case

to the trial court to order plaintiff’s reinstatement as a firefighter and to hold further

proceedings to determine whether any additional damages should be awarded. Ertl I, 303 Ill.

App. 3d at 529. In fact, we repeated this order in Ertl II, when we stated that “this court

remanded the case for reinstatement of count I, for plaintiff’s reinstatement as a firefighter,

and for the award of any additional damages.” (Emphasis added.) Ertl II, slip op. at 1.

Contrary to the dissent’s suggestion, we are not adding language not present in the opinion.

In Ertl I, we remanded the case to the trial court for further action. We did not remand the

case to the City for further action. Even plaintiff’s attorney acknowledged during oral

argument that our order did not state that the City was to reinstate plaintiff instanter and

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

on no fewer than five occasions during oral argument, plaintiff’s attorney conceded that the

trial court was ordered to reinstate plaintiff. This is hardly “cherry picking” statements that

we wish to highlight.) If we had entered a self-enforcing order of reinstatement, why would

we then deny plaintiff’s petition for a rule to show cause that sought relief for the City’s

failure to reinstate him? Once we agreed that plaintiff should be reinstated, this established

the law of the case: plaintiff had the right to be reinstated. It was the responsibility of the trial

court to follow the specific directions of our mandate. When the trial court failed to include

an order of reinstatement in its judgment order, plaintiff should have appealed and raised the

issue of whether the trial court complied with our mandate. The fact that the City reinstated

plaintiff in February 2011 was simply its attempt to mitigate its damages following the trial

court’s rulings.

¶ 24 However, this does not end the problem, because, regardless of whether plaintiff had the

right to be reinstated, or even if we had entered a self-enforcing order of reinstatement or had

ordered the City to reinstate plaintiff, plaintiff filed a petition for a rule to show cause against

the City for its failure to reinstate him, but he never attempted to have it heard. Plaintiff then,

for whatever reason, never requested reinstatement at trial, in a posttrial motion, or in an

appeal. These actions were contrary to the dissent’s bald statement that plaintiff acted as

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though the City was required to reinstate him pursuant to Ertl I. Perhaps plaintiff never

sought reinstatement because he had gained new employment with the Prairie View fire

department at the time, which we presume he found preferable. Whatever the case, Ertl II

contained no discussion of the trial court’s failure to carry out this court’s mandate, and

clearly plaintiff abandoned or forfeited his attempt to secure his right to reinstatement. Since

plaintiff abandoned his right to be reinstated or forfeited that right, we agree that res judicata

bars plaintiff’s suit.

¶ 25 Plaintiff contends that the present suit covers a different period of time, from the original

judgment for plaintiff on January 5, 2001, until the final judgment on August 26, 2010.

Plaintiff alleges that the City’s continuing noncompliance with our mandate to reinstate

plaintiff gave rise to plaintiff’s subsequent claims for additional damages when the mandate

was not followed. We fail to see how plaintiff could assert that he was entitled to additional

damages. The City paid plaintiff damages up to January 5, 2001, to remedy his wrongful

termination. Plaintiff alleges that the City failed to reinstate him and that he was entitled to

damages from January 5, 2001, through August 26, 2010. However, plaintiff has not been

harmed and there has been no breach of contract, because plaintiff never attempted to enforce

his right to reinstatement. Plaintiff is trying to equate wrongful termination with the trial

court’s failure to reinstate him. See Doherty v. Schipper & Block, 250 Ill. 128, 134 (1911)

(“an action for the breach of the contract of employment growing out of the wrongful

discharge of the appellant *** all damages resulting from such breach must be recovered in

one action, and that after one recovery has been had that recovery is a bar to all future actions

based upon the contract of employment”).

¶ 26 We also reject plaintiff’s argument that there is no identity of cause of action as plaintiff

alleges new facts based on the City’s “intentional breach of contract” because of its

“defiance” of this court’s reinstatement order. As we previously held, the City did not defy

this court’s reinstatement order; rather, the trial court did not adhere to our remand

instruction. Regardless, plaintiff never appealed the trial court’s omission of a reinstatement

order, called his petition for rule for a hearing, or appealed what he believed was the City’s

failure to reinstate him. This is a matter that could have been decided in Ertl II. Plaintiff

failed to protect his right to reinstatement when he failed to file a timely brief appealing the

trial court’s judgment in Ertl II. In passing, we observe also that fault is irrelevant in a

breach-of-contract claim. See J.F. Equipment, Inc. v. Owatonna Manufacturing Co., 143 Ill.

App. 3d 208, 220 (1986). Because we find as a matter of law that the elements of res judicata

apply, the trial court erred by failing to dismiss plaintiff’s lawsuit.

¶ 27 Laches

¶ 28 Although we need not reach this issue, we agree with the City that the doctrine of laches

also could have barred plaintiff from pursuing the equitable remedy of reinstatement. The

doctrine of laches is an equitable doctrine based on the maxim that “equity aids the vigilant

and not those who slumber on their rights.” Tower Oil & Technology Co. v. Buckley, 99 Ill.

App. 3d 637, 645 (1981). In order to invoke the doctrine, it is necessary to establish “lack of

due diligence by the party asserting the claim and prejudice to the opposing party.” Van

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Milligan v. Board of Fire & Police Commissioners, 158 Ill. 2d 85, 89 (1994). Principles of

laches are applied when a party’s failure to timely assert a right has caused prejudice to the

adverse party. Tully v. State, 143 Ill. 2d 425, 432 (1991).

¶ 29 The City would suffer prejudice if ordered to reinstate plaintiff at this juncture, as the

record indicates that plaintiff was replaced by the City several years ago. As stated above,

following plaintiff’s first appeal on his 1997 complaint, we reversed the dismissal of the

breach-of-contract count of the complaint and remanded the case for reinstatement of

plaintiff. That opinion was issued on March 18, 1999. Nineteen months later, plaintiff filed

a petition for a rule to show cause in the trial court, requesting the trial court to hold the City

in contempt of court for failure to reinstate plaintiff. However, in the trial court, plaintiff

never noticed the petition for hearing. Notwithstanding, the trial court entered an order

requiring the City to file a written response to the petition. The trial court also set a hearing

date on the petition. However, no hearing on the petition was held and the trial court entered

an order setting the matter for a bench trial. The matter was eventually tried on January 4,

2001. At trial, plaintiff did not present any evidence or make any argument regarding the

issue of his reinstatement or his petition for a rule to show cause. He requested only

monetary damages as his chosen remedy. The trial court thereafter entered a judgment order

only for monetary damages in favor of plaintiff on January5, 2001. The order did not address

the issue of plaintiff’s reinstatement or plaintiff’s petition for a rule to show cause. Plaintiff’s

appeal from that order was dismissed because he failed to file a brief after having received

more than one extension to do so. Although plaintiff did file a petition for a rule to show

cause with this court, requesting that the City be held in contempt for failure to reinstate him,

by the time he did so he had forfeited that right.

¶ 30 Plaintiff had ample opportunity to enforce his right to reinstatement as a firefighter.

Plaintiff did not seek the equitable remedy of reinstatement until 11⁄2 years after our initial

opinion in Ertl I. He then failed to notice the petition for hearing. He failed to raise the issue

at trial. He failed to file a brief in the second appeal, where he could have raised the issue of

reinstatement. Plaintiff could have avoided the present lawsuit if he had asked the trial court

on remand from Ertl I to amend its January 5, 2001, judgment to include an order of

reinstatement or had pressed his appeal of that judgment. Instead, he sat on his rights. By the

time that we decided Ertl II, there was no indication that plaintiff had any interest in

reinstatement. Plaintiff had already started working as a fireman elsewhere. The City had

paid the judgment and thought the litigation had ended. Yet, on August 26, 2002, six years

after his termination, plaintiff filed the present case, his second lawsuit against the City for

a breach of contract, which had already been determined.

¶ 31 Plaintiff’s unjustifiable delay prejudiced the City. If plaintiff had diligently pursued his

rights or made an effort to be reinstated in the weeks or months following the judgment in

Ertl I, the City and the taxpayers of De Kalb could have avoided the judgment and costs in

this case. See Bill v. Board of Education, 351 Ill. App. 3d 47, 57 (2004).

¶ 32 The dissent’s entire position is predicated on the proposition that this court in Ertl I

entered a self-effectuating order to the City to reinstate plaintiff as opposed to remanding the

cause to the trial court to enter such an order. The fact that the dissent’s view of the order

differs from ours does not necessarilymake our decision absurd, inexplicable, or a perversion

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of any legal concept. Invective and hyperbole are no substitute for sound legal analysis.

¶ 33 For these reasons, the judgment of the circuit court of De Kalb County is reversed.

¶ 34 Reversed.

¶ 35 JUSTICE BIRKETT, specially concurring.

¶ 36 The dissent takes issue with our interpretation of this court’s decision and mandate in

Ertl I. My colleague Justice McLaren was the author in Ertl v. City of DeKalb, 2012 IL App

(2d) 120514-U (Ertl III), which was decided on July 31, 2012. Justice Bowman and I

concurred in this court’s order reversing the trial court’s denial of a stay of proceedings

pending arbitration of certain issues related to Ertl’s reinstatement. In Ertl III we said that

Ertl I, inter alia, “directed the trial court to order plaintiff’s reinstatement as a firefighter.”

(Emphasis added.) Ertl III, 2012 IL App (2d) 120514-U, ¶ 3.

¶ 37 Our interpretation of Ertl I is identical to the description in Ertl III. The mandate in Ertl

I revested the trial court with jurisdiction to carry out this court’s directions, which included

entering an order directing the City of De Kalb to reinstate Ertl. On August 23, 2012, at oral

argument in this case, Justice McLaren, in summary, told Ertl’s counsel that if our mandate

in Ertl I ordered the trial court to do something regarding reinstatement “you’re out of the

box.” I could not agree more.

¶ 38 JUSTICE McLAREN, dissenting.

¶ 39 I agree that res judicata applies in this case. However, the application of res judicata

does not prevent Ertl from seeking damages in this case; it prevents the City from claiming

that it is not required to reinstate Ertl “until such time, if ever, that he is properly

discharged,” and it prevents Ertl from claiming that the trial court can and should order the

City to reinstate him. The majority now approves a proposition that no one, including the

City, approved of when this court ordered Ertl’s reinstatement 14 years ago. Not only was

the proposition never approved, but when the trial court determined and declared the exact

opposite proposition, neither party contested that determination on appeal. Therefore, Imust

dissent.

¶ 40 The majority makes the bald assertion that, in Ertl I, “we remanded the case to the trial

court to order plaintiff’s reinstatement as a firefighter and to hold further proceedings to

determine whether any additional damages should be awarded.” Supra ¶ 23. However, we

did not remand the cause for Ertl to apply for reinstatement, or for “consideration of the issue

of reinstatement of the plaintiff to his previous position” (emphasis added), as the City’s

counsel asserted at oral argument, or for the trial court to hold a hearing on reinstatement,

or for the trial court to order someone to reinstate Ertl; we remanded the cause for his

reinstatement as a firefighter, and, as we explained, that reinstatement was to last “until such

time, if ever, that he is properly discharged.” Ertl I, 303 Ill. App. 3d at 530. The majority

claims to have “no difficulty” in “interpreting this straightforward direction” from our

decision in Ertl I. Supra ¶ 23. However, after acknowledging that the mandate “did not

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contain specific directions” and that “the trial court was required to examine the opinion to

determine what further proceedings would be consistent with the opinion” (supra ¶ 22), the

majority then concludes that “we remanded the case to the trial court to order plaintiff’s

reinstatement as a firefighter” 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 clear directions? If so, examination of the opinion was unnecessary. Second, in any

event, neither the mandate nor the opinion contained language ordering “the trial court to

order plaintiff’s reinstatement as a firefighter and to hold further proceedings to determine

whether any additional damages should be awarded.” (Emphasis added.) See id. Why does

the majority add language not present in the opinion and mandate?

¶ 41 On remand, the trial court understood that the City, not it, was required by this court, and

had the power, to reinstate Ertl:

“THE COURT: As I read this [Ertl I] and read before I came out here again, I

interpreted that I have no right to substitute my judgment for whether [plaintiff] was

rightfully or wrongfully terminated. That’s the judgment, as I interpret it, of the Board

of Police and Fire commissioners of the City of De Kalb. I’m only looking for if they did

it okay?

MS. ELY [City counsel]: So what you’re saying is that we are trying today–for

purposes of Count I, are we trying liability on Count I or are we just trying damages?

THE COURT: I can’t–you have to tell me if he was–I do not know. I expected to hear

today whether he was terminated, whether there was a notice given and a hearing held

and whether he was terminated.

MS. ELY: Well–

THE COURT: I have a sinking feeling in my stomach that that never occurred; am

I right?”

Apparently, the City agreed; during the trial on remand, the trial court described the actions

of the City:

“So, in fact, Ms. Ely [City counsel], I have said to you before–if you want to bring

him back in here–Mr. Matekaitis [former City counsel] came to me and asked me to

continue this trial last fall, telling me he needed to conduct a hearing before the Board

of Police and Fire Commissioners. Maybe you don’t agree with what he said, but he

came to me and made that request in front of me, Mr. Gallagher [Ertl’s counsel], and I

told you that a couple of weeks ago.”

Why would the City request a continuance of trial in order to conduct a hearing before the

Board of Police and Fire Commissioners if it did not believe that it needed to terminate Ertl?

Why would it need to terminate Ertl if he had not been reinstated?

¶ 42 That the trial court and the City continued to understand the issue in this manner was

evidenced during the trial in this case. The City’s attorney told the trial court in this case,

“The Appellate Court’s opinion said that we were supposed to reinstate the plaintiff. We did

not do that.” In the City’s opening statement at trial, counsel noted “that there had been an

appeal of the matter which reflected the plaintiff had not been properly terminated and

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ordered the City to reinstate him and, if it chose, to properly terminate him.” (Emphasis

added.) See supra ¶ 11. After trial, the trial court began its oral ruling by stating:

“This matter comes on for ruling today. I want to preface my remarks by letting me

say this: Some think a judge can do whatever he wants to do. That’s not true. Judges have

to follow the law. When they don’t, problems are amplified, not resolved and cases drag

on costing everybody more[,] and emotional distress.

This is a very unconventional case. It’s been to the Appellate Court three times. And

I’m the second trial judge assigned during the past thirteen years that this case is pending.

Over eleven years ago the Appellate Court ordered the plaintiff [sic] to reinstate Mr.

Ertl with back benefits. To date that has not happened.

How can this happen? I don’t know. I don’t understand how a government body can

ignore a mandate from the Appellate Court for over eleven years. This case appears to

be driven by personalities and not by the rule of law. I understand that Mr. Ertl’s

personality is not appealing to most people. I understand that City administrators were

offended bydefendant’s[sic] defiant, unremorseful, in-your-face attitude. However, none

of these considerations trump the rule of law.” (Emphasis added.)

¶ 43 The trial court noted that “[p]laintiff had not been fully reinstated” and, in its written

order, specifically provided that “the Appellate Court has previously ordered that [p]laintiff

be fully reinstated by the [City].” The trial court also informed Ertl’s counsel that “I am not

ordering him reinstated. *** The Appellate Court ordered him reinstated. The Appellate

Court doesn’t need me to say that they were right and he should be reinstated.”

¶ 44 The trial court did not order Ertl reinstated after the trial on remand. The trial court

understood that it did not have the prerogative to reinstate Ertl; both the power and the duty

to do so rested in the City. This is evident in the court’s pronouncements, rulings, judgment,

and award of punitive damages. The City was also aware of this fact, as is evidenced by its

admissions below that it had been ordered to reinstate Ertl. Ertl’s appeal in Ertl II was

dismissed by this court, and the City’s appeal neither mentioned nor contested the trial

court’s order regarding reinstatement. Neither Ertl I nor Ertl II was ever reviewed, let alone

reversed, by our supreme court.

¶ 45 The law-of-the-case doctrine, which applies to issues both of law and of fact, holds that

such issues decided on a previous appeal are binding on the trial court on remand as well as

on the appellate court in subsequent appeals. Bjork v. Draper, 404 Ill. App. 3d 493, 501

(2010). In addition, a final and appealable trial court order that has been left undisturbed by

the appellate court becomes the law of the case. Ericksen v. Rush-Presbyterian-St. Luke’s

Medical Center, 289 Ill. App. 3d 159, 168 (1997). This doctrine protects the settled

expectations of the parties, ensures uniformityof decisions, maintains consistencyduring the

course of a single case, effectuates proper administration of justice, and brings litigation to

an end. Id. The City did not file a petition for leave to appeal our judgment in Ertl I. The trial

court, which concluded that the City was already required to reinstate Ertl, made its rulings

and did not order the City to reinstate Ertl. As the law of the case, this court’s order that the

City reinstate Ertl “until such time, if ever, that he is properly discharged” (Ertl I, 303 Ill.

App. 3d at 530) was binding in the trial court on remand, on this court in Ertl II, in the trial

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held in this case, and in this appeal. Further, the trial court’s determination that the City, not

the court, was required to reinstate Ertl was never timely challenged on appeal. The City’s

claim that this court’s order 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 acted as though the City was required by our opinion in Ertl I to reinstate Ertl

“until such time, if ever, that he is properly discharged.” This is a reasonable interpretation.

Pursuant to article IV of the contract between the City and the De Kalb International

Association of Firefighters, Local 1236, probationary employees may be terminated by the

“Fire Department,” a phrase that, per the contract, “shall be synonymous with the City of

De Kalb.” As we noted in Ertl I, “On April 19, [1995], the City terminated plaintiff’s

employment without explanation.” (Emphasis added.) Ertl I, 303 Ill. App. 3d at 526. The

City terminated Ertl; no one but the City could “un-terminate” or reinstate him. Yet the

majority finds that “the City did not defy this court’s reinstatement order; rather, the trial

court did not adhere to our remand instruction.” Supra ¶ 26.

¶ 47 The majority is rather selective in its use of statements by Ertl’s counsel to support its

conclusion. The majority asserts that “[e]ven plaintiff’s attorney acknowledged during oral

argument that our order did not state that the City was to reinstate plaintiff instanter and

instead remanded the cause to the trial court to enter an order to reinstate plaintiff.” Supra

¶ 23. Perhaps the majority could also address Ertl’s counsel’s assertion (at approximately

18:51 to 19:00 of the recorded argument) that, “In this case, it’s fairly clear that Mr. Ertl was

reinstated by the appellate court in 1999, in its order.” Or counsel’s response (at

approximately 20:19) to a question as to why no one at the retrial brought up the fact that Ertl

needed to be reinstated: “Well, that’s because the appellate court had already ruled. The

appellate court had already ruled on this.” Or Ertl’s assertions on page 16 of his brief that

“THE CITY WAS ORDERED TO REINSTATE THE PLAINTIFF” and “Although the

Appellate Court did remand the case, it also clearly ordered Plaintiff’s reinstatement; to

claim otherwise is to ignore the facts.” Ertl’s counsel made contradictory and, at times,

unclear statementsregarding reinstatement (“Myargument to you, Judge, is that the appellate

court reinstated Mr. Ertl, issued a mandate to the trial court, which the trial court failed to

abide by, parties failed to abide by, and everyone failed to abide by.”), but this court cannot

cherry-pick so blatantly the statements that it wishes to highlight.

¶ 48 In any event, Ertl’s counsel’s characterization of our decision in Ertl I at an oral

2

argument more than 13 years after we issued our decision is both irrelevant and a non

sequitur. The judgment in this case was interpreted years ago by the trial court to require the

City to reinstate Ertl. Appellate counsel’s arguments now (which are, in any event,

contradicted by other of his statements) are not judicial admissions that annul Ertl’s claim

that the City failed to follow this court’s order to reinstate Ertl.

¶ 49 As a matter of law, the City was to reinstate Ertl “until such time, if ever, that he is

properly discharged.” Implicit in this order is that the City would pay Ertl the wages due to

I must note that counsel on this appeal was not counsel in Ertl I.

2

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him as a firefighter until, if ever, he was terminated. However, the City failed to reinstate him

and did not pay him. Ertl had a choice of remedies 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 against the City for its failure to reinstate

him. He could also, as he did here, seek compensatory damages for the payments that he

would have received had the City reinstated him. In this case, those damages accumulated

until the time of trial, as the City did not reinstate him and, consequently, did not terminate

him. This is not Ertl slumbering on his rights such that laches should apply. This is the City

sitting on its hands, refusing to comply with the orders of this court and the trial court, such

that damages should continue to accumulate until the City follows the orders and the

interpretation of the trial court and gives Ertl a proper hearing to terminate his employment.

The City has no basis to claim that laches applies. He who seeks equity must do equity.

Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 60 (2009). “A court of equity

will not confer its equitable relief upon a party seeking its aid, unless he will acknowledge

and concede all the equitable rights and dividends justly belonging to the adversary party,

growing out of or necessarily involved in the subject-matter of the controversy. [Citation.]”

Wenham v. Mallin, 103 Ill. App. 609, 613 (1902). The City acknowledged on the record

during trial in this case that this court “ordered the City to reinstate [Ertl]” and that “The

Appellate Court’s opinion said that we were supposed to reinstate the plaintiff. We did not

do that.” These acknowledgments came 10 years after our disposition in Ertl I and 7 years

after Ertl filed his initial complaint in this case. The City acknowledges that it ignored an

appellate court order for 10 years and the majority finds that the City has acknowledged and

conceded “all the equitable rights and dividends justly belonging to” Ertl? What “equity” has

the City done by intentionally ignoring the orders of this court and the trial court? The City

acknowledges its 10-year delay in following this court’s order and the majority determines

that, because of Ertl’s “unjustifiable delay,” laches should preclude Ertl’s recovery. 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, “If we had entered a self-enforcing order of reinstatement, why would

we then deny plaintiff’s petition for a rule to show cause that sought relief for the City’s

failure to reinstate him?” Supra ¶ 23. Ertl had chosen and received from the trial court his

remedy of compensatory damages that had accrued to that point. This court affirmed the

grant of this remedy in Ertl II; we could not additionally grant him his unchosen remedy of

sanctions for failing to reinstate him. However, the majority uses its rhetorical question as

a basis to deny Ertl the relief that he sought and to which he was entitled because he failed

to seek enforcement of the relief that he had not chosen. In any event, a court’s decision not

to issue a rule to show cause or find a party in contempt does not mean that the underlying

order is vacated. If a trial court declines to issue a rule to show cause or to hold a father in

contempt for his failure to pay child support, the arrearage does not disappear, nor do the

future obligations cease to accrue. Here, the City’s obligation to reinstate Ertl was not

vacated or affected in any way by the trial court’s failure to rule on his petition for a rule to

show cause or this court’s denial of his later petition, nor was the accrual of compensatory

damages “until such time, if ever, that he is properly discharged.” The majority’s rhetorical

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question is a red herring.

¶ 51 I note that the City attempted to reinstate Ertl in 2010 and did, in fact, notify Ertl on

February 4, 2011, that he was to be reinstated on February 10 of that year. See Ertl III, 2012

IL App (2d) 120514-U. Is this not consistent with the trial court’s interpretation of the Ertl

I mandate? How can the City argue that it was not required to reinstate Ertl and that res

judicata and laches apply to prevent Ertl’s claims when the City has, in fact, reinstated him?

¶ 52 The inability of any party other than the City to reinstate Ertl is demonstrated by the

proceedings in Ertl III, which involved questions regarding Ertl’s pay and status

(probationaryversus non-probationary) upon reinstatement. See id. ¶ 4. If the trial court were

required to order Ertl’s reinstatement, apparently it would have been required to make such

decisions and include them in its order. Further, the majority addresses only half of the Ertl

I directive; it never addresses “until such time, if ever, that he is properly discharged.” Logic

would dictate that whoever was ordered to reinstate Ertl would also be charged with the

authority to “properly discharge” him. Again, logic would dictate that this partywould be the

City. The trial court is just as ill-suited to this project as it was to reinstatement. What type

of proceeding would be employed to discharge Ertl–declaratory judgment? At best, the

majority can be read to provide an oblique hint at its interpretation of the discharge

requirement: by not obtaining a ruling on his petition for a rule to show cause in the trial

court, Ertl abandoned the petition and, in essence, discharged himself such that no further

damages would accrue. However, such a theorymakes no sense in light of the actual law and

facts of this case.

¶ 53 The majority finds that “the trial court did not adhere to our remand instruction.” Supra

¶ 26. It appears that, regardless of what the trial court did, the majority fails to follow the law

of the case and fails to enforce a trial court order that has not been appealed as erroneous. For

the majority to do so at this juncture is a perversion of the concept of res judicata. It is

inexplicable how the majority can claim, in light of the record and in the face of the City’s

admissions, that the City did not know or understand that it was the party required to

reinstate Ertl and that the burden was, instead, on Ertl. The majority is rewarding the City

despite its steadfast refusal to even attempt to reinstate Ertl until 2010. Until such time as the

City demanded that Ertl return to work, he was entitled to the relief that he sought. The

majority’s determination that Ertl was required to seek other forms of relief or lose his right

to compensatory damages is both unprecedented and wrong.

¶ 54 I would also like to point out that, if the City had diligently followed this court’s opinion

and the trial court’s interpretation thereof and made an effort to reinstate Ertl in the weeks

or months following the judgment in Ertl I, the City and the taxpayers of De Kalb could have

avoided the judgment and costs in this case.

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