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\ IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRdJ, T

OF THE STATE OF ILLINOIS, ADAMS COUNTY FEE~ 2 Q 2015 THE DIOCESE OF QUINCY, et. al, )

) ) ) ) ) ) )

Plaintiffs/Counterdefendants, v.

No.: 09-MR-31 THE EPISCOPAL CHURCH, et al.

Defendants/Counterplaintiffs.

ORDER

"Although we thought the following conclusion was clear from our determination in Altgilbers,

we will make it clear now: plaintiffs won."

The quotation above is taken from an unpublished Rule 23 decision filed on

October 18, 2004 by the Fourth District Appellate Court in Altgilbers, et al v. Citv of

Quincy, General No. 4-04-0105. This quote was from the second Rule 23 decision

issued by the Court, the first having been issued the year before.

This court does not, and indeed cannot, quote from a Rule 23 decision for any

precedential authority, but does quote from this case to illustrate clarity of language.

Like Altgilbers, it appears to this court that the order entered by the Honorable Thomas

J. Ortbal on October 9, 2013 was unambiguous: plaintiffs won.

This cause came before the court on February 17, 2015 for argument on the

Amended Motion to Enforce Judgment and for Sanctions filed on behalf of Bishop

Alberto Morales and the Amended Motion to Enforce Judgment and for Sanctions filed

on behalf of the Plaintiffs and all other Counterdefendants. Morales appeared by his

attorney, Talmadge Brenner, and the Plaintiffs and remaining Counterdefendants

appeared by their attorney, Kent R. Schnack. The Episcopal Church (TEC) appeared by its attorney, Timothy Cassidy.

Counsel agreed that Mr. James M. Crowley, who represents PNC Bank, had

notice of the hearing, waived his presence at the hearing and has taken the position that

the bank will honor the decision of the court regarding the funds.

The Court reviewed all pleadings submitted by the parties together with

attachments, as well as considered the arguments of counsel and, after receiving on

February 18, 2015 a proposed draft of a final order approved by the parties, modifies

that draft to incorporate both case law and specific findings as follows:

1. The Order of October 9, 2013 is clear, unambiguous and not subject to

nuance, interpretation or speculation as to its meaning.

Paragraph "A" states: "That the Diocesan House and any and all disputed funds,

money, endowments and accounts held by National City Bank n/k/a PNC Bank,

National Association are hereby declared to be owned by Plaintiffs without any claim by

Defendants, Counterclaimant or Counterclaimants-in-lntervention". [Emphasis Added]

Paragraph "C" states: "That all requests by Defendants, Counterclaimant and

Counterclaimants-in-lntervention for declarations, injunctive relief and accountings are hereby denied". [Emphasis Added]

This controversy has always been about a single account (Account #21-75-077-4488088), hereinafter "single account", which contained a variety of funds held at PNC Bank. This is how the case was tried at the trial level, this is how the case was

presented at the appellate level and this was the posture of the case as presented for

the Petition for Leave to Appeal to the Illinois Supreme Court.

Only after losing at the trial and appellate level, and then being turned down by

the Supreme Court of Illinois, does TEC now claim that a lesser amount should be

carved out of this single account. Moreover, TEC brings an action in Peoria County

claiming the same thing and goes further to argue that this court has no "jurisdiction" to 2

decide this issue.

The court adopts and incorporates by reference what was said when ruling from

the bench in this case. In the ruling, the court surmised that there may have been a

tactical reason to not raise this issue at trial or appeal. Some advocates argue that

alternate theories claiming a lesser amounts signal a weakness for the main theory for

the whole amount. The court does not know why this approach was taken, but does

know that the approach taken was an "all or nothing" approach.

While TEC attempts to pull excerpts from the voluminous record referencing an

alternate theory for a lesser amount, its claim has always been for the whole account. It

appears to this court that this is an "after the fact" attempt to recover some of the funds.

They took an "all or nothing" approach at trial and on appeal.

The order of October 9, 2013 expressly denied all of TEC's claims, awarded the

entire account to the Plaintiffs and specifically denied any of TEC's claims for an

"accounting".

TEC filed no motion to reconsider, no motion to correct the judgment, no motion of any type whatsoever to support the contention it now makes in their Response. It

now claims that a portion of the single account was, " ... never the subject matter of this case nor adjudicated in this court's October 9, 2013, Final Order and Judgment. .. " Response p. 1.

If that truly is the case, then certainly TEC should have raised this at the trial

level in 2013 and at the appellate level in 2014. That was not done. The court finds

that TEC has waived and forfeited any claim to now try and come back to claim a

percentage of the single account.

In Boumenot v. North Community Bank, 226 Ill. App. 3d 137, 590 N. E. 2d 126, 3

168 Ill. Dec. 804 (1st Dist. 1991) the Plaintiff tried to enjoin a bank from selling his

beneficial interest in a land trust. The Plaintiff testified at trial that he and his family

resided in property held by the Trust. At the time he pledged his interest in the Trust to

the bank, Illinois did not recognize a homestead claim regarding personal property in a

land trust. The law changed and, by the time of trial, there was a homestead

exemption.

The Appellate Court in Boumenot ruled that even if he could claim that interest at

trial, the Plaintiff failed to do so. However, he did bring it up for the first time in his

Motion to Vacate, Reconsider or Modify the trial court's judgment. The Court found that

raising this for the first time after trial was improper and that he had waived his right to

assert this exemption.

The present case is even more extreme than the facts presented in Boumenot.

In Boumenot the Plaintiff did try to raise the issue post-trial, so the trial court could

consider it. In the present case, that was not done.

This court notes there are certain exceptions to the forfeiture or waiver rule in

cases where issues not raised in the trial court are not fatal. From the court's review,

this line of cases involves issues different from the issues presented in this case.

One example would be where the correct statute of limitations was not raised in

either the trial court or on appeal. See Ballinger v. The City of Danville, 2012 IL App (4th

(4th) 110637, 966 N.E. 2d 594 at 597, 359 Ill. Dec. 273 at 276 wherein the Fourth

District stated,

"Our supreme court has noted '[a] reviewing court may, in the furtherance of its responsibility to provide a just result and to maintain a sound and uniform body of precedent, override considerations of waiver that stem from the adversarial nature of our system.' Filan, 216 Ill. 2d at 664, 297 Ill. Dec. 471, 837 N.E. 2d at 930."

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This court finds that this case is not one where the forfeiture or waiver rule should

be disregarded in order to maintain a sound and uniform body of precedent. The

special concurrence in Ballinger is more applicable:

While the majority notes the importance of maintaining a uniform body of precedent with respect to the applicability of section 8-101 (a), [Statute of Limitations] it seems to me the same can be said of the forfeiture issue.

Parties should be able to rely on a uniform body of precedent regarding forfeiture - if an argument was not made to the trial court and was not made to the appellate court, it is forfeited and should remain forfeited." [Emphasis Added]

Ballinger, 966 N.E. 2d at 599, 359 Ill. Dec. at 278, Special Concurrence, Pope, J.

On November 26, 2014 the Supreme Court of Illinois sent notice that TEC's

Petition for Leave to Appeal had been denied and the mandate would issue to the

Appellate Court on December 31, 2014. Accordingly, the final word on this single

account had been determined. This single account belonged to the Plaintiffs and all

claims by TEC to this account had been denied.

Nevertheless, TEC evidently decided that if it could not get the whole account, it

would then try to carve a portion out of that account. Counsel for TEC sent a letter to

PNC the day before the mandate would issue claiming that "$774,599" of the funds

were property of TEC and subject to a suit which was filed less than one month after the trial court's decision in this case in Peoria County. The Peoria lawsuit was stayed

pending the outcome of TEC's appeal in this case.

During the argument on these issues, TEC argued that it did not freeze the

account, PNC did. To say this argument lacks merit would be charitable. While TEC, in

a very literal sense, is correct on "who" froze the account, the "why" is the more

important issue. PNC froze the account because it received a letter from counsel for

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TEC which threatened to hold PNC liable iffunds were disbursed.

The court finds, based upon this record, that the continued threat made to PNC

Bank to hold it accountable if funds were disbursed and the continued attempt to

collaterally attack the clear order of this court dated October 9, 2013 even after this

case had run its course through the appellate process constitutes bad faith, is not

grounded in fact or existing law and has resulted in needless, ongoing and expensive

litigation.

Accordingly, the court grants the request of the Plaintiffs for fees incurred from

December 30, 2014 onward pursuant to Supreme Court Rule 137. The court further

finds that to avoid further litigation on this matter, which has been ruled upon at every

level of the court system in Illinois, to enter the injunctions prayed for. The court makes

these additional findings:

2. TEC attempted to circumvent the Order of October 9, 2013 by

communicating with PNC Bank whereby TEC claimed an interest in a portion of the

funds about which this Court had ruled, when it knew that the entire account had been

awarded to the Plaintiffs and all of its claims to the account had been denied.

3. Further, TEC attempted to collaterally attack and circumvent the Order of

this court (which was affirmed by the Illinois Fourth District Appellate Court and for which the Illinois Supreme Court denied TEC's Petition for Leave to Appeal) by attempting to put the account at PNC at issue in Peoria County, Illinois when it knew

that the issue regarding this single account had been decided.

4. TEC never filed any type of Motion with this court asking that the Order of

October 9, 2013 be reconsidered or clarified to reflect the position that it now takes re:

its claim that a portion of the single account was not involved in this litigation. 6

5. Further, TEC did not attempt to argue that it was entitled to a portion of

the single account at PNC Bank account before the Appellate Court. The Appellate

Court treated this as a single account, as did the trial court.

6. Based upon the foregoing, both Amended Motions to Enforce Judgment

and for Sanctions are hereby granted in full.

Accordingly, it is the Order of this Court that:

A The Judgment in favor of the Plaintiffs/Counterdefendants and against

Defendants/Counterplaintiff/Counterclaimant-in-lntervention is hereby enforced

pursuant to Supreme Court Rule 369(b );

B. Defendants/Counterplaintiff/Counterclaimant-in-lntervention are hereby

directed and ordered to cease and desist in any attempts to prevent the distribution of,

or claim any ownership in or interest to, any of the funds in the single account held by

NATIONAL CITY BANK, a banking corporation, n/k/a PNC BANK, National Association,

for THE DIOCESE OF QUINCY;

C. Defendants/Counterplaintiff/Counterclaimant-in-lntervention are hereby

directed and ordered to cease and desist in any attempts to request the Circuit Court of

Peoria County or any other jurisdiction to modify or overrule the Illinois Fourth District Appellate Court or the final judgment rendered in the above-entitled cause;

D. Defendants/Counterplaintiff/Counterclaimant-in-lntervention are hereby

directed and ordered to cease and desist in any attempts to collaterally attack the final

judgment in the above-entitled cause; E. Defendants/Counterplaintiff/Counterclaimant-in-lntervention are hereby

directed and ordered to pay any and all attorney's fees incurred by Plaintiffs/Defendants

to Counterclaims and Counterclaims-in-Intervention including Bishop Morales from 7

December 30, 2014 forward regarding TEC's purported claim of any ownership interest

in or to any of the funds held in the single account by PNC Bank and

F. The court will set an additional hearing if there is a controversy over the

reasonableness of the fees incurred.

ENTERED: February 20, 2015.

cc: Talmadge G. Brenner Kent R. Schnack Timothy J. Cassidy Mary E. Kostel David Booth Beers James M. Crowley

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