1 1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 2 COUNTY DEPARTMENT - LAW DIVISION 3 4 PAUL R. DULBERG and THE PAUL ) 5 R. DULBERG REVOCABLE TRUST, ) ) 6 Plaintiff, ) ) 7 vs. ) No. 2022 L 010905 ) 8 KELLY N. BAUDIN, et al, ) ) 9 Defendants. ) 10 11 Zoom video conference of the Hearing 12 held before the HONORABLE MICHAEL F. OTTO, 13 Courtroom 1407, taken pursuant to notice, commencing 14 at 11:15 a.m., Thursday, September 21, 2023. 15 16 17 18 19 20 21 22 Reported by: Connie L. James, CSR 23 License No. 084.002510 24 2 1 A P P E A R A N C E S: 2 ALL PARTIES APPEARING VIA ZOOM VIDEO CONFERENCE: 3 4 FOR PLAINTIFF: 5 ALPHONSE TALARICO LAW OFFICES BY: MR. ALPHONSE TALARICO 6 707 Skokie Boulevard - Suite 600 Northbrook, Illinois 60062 7 (312) 808-1410 8 FOR DEFENDANT ALLSTATE: 9 AMUNDSEN DAVIS BY: MS. MICHELLE TINAJERO 10 150 N. Michigan Avenue - Suite 3300 Chicago, Illinois 60601 11 (312) 894-3200 12 FOR DEFENDANTS OLSEN, WILLETTE & YALDEN: 13 LEWIS BRISBOIS BISGAARD & SMITH, LLP BY: MR. JASON JOCHUM 14 550 W. Adams Street - Suite 300 Chicago, Illinois 60661 15 (312) 345-1718 16 17 18 19 20 21 22 23 24 3 1 I N D E X 2 3 HEARING ON MOTION FOR SUMMARY JUDGMENT: 4 5 Arguments: 6 By Ms. Tinajero...............................Pg. 5 By Mr. Talarico...............................Pg. 7 7 By Ms. Tinajero...............................Pg. 14 By Mr. Talarico...............................Pg. 16 8 9 Court's Ruling on the Motion..................Pg. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 1 THE COURT: Good morning. Would everyone please 2 identify themselves for the record? 3 MR. TALARICO: Good morning, Your Honor. 4 Alphonse Talarico. I represent the Plaintiffs. 5 MS. TINAJERO: Good morning, Judge Otto. My name 6 is Michelle Tinajero. I represent Allstate Property 7 and Casualty Insurance Company. 8 THE COURT: Thank you. 9 Mr. is it Mr. Jochum? 10 MR. JOCHUM: Jochum, Your Honor. Sorry. 11 THE COURT: All right. Good morning. 12 MR. JOCHUM: Jason Jochum representing what we 13 refer to as the Olsen Defendants, Joseph Olsen, Craig 14 Willette and Raphael Yalden. They were dismissed 15 earlier, but I'm just observing because we're still on 16 appeal. 17 THE COURT: Thank you. I see we are also joined 18 by Mr. Dulberg, individually, as well as Thomas Kost, 19 K O S T, who is identified in his Zoom window as, the 20 quote, full trustee of Paul R. Dulberg Revocable Trust, 21 unquote. 22 We're up today for hearing on Allstate's 23 Motion For Summary Judgment, which has been fully 24 briefed. Anything to discuss before we move forward 5 1 with that hearing? 2 Mr. Talarico for the Plaintiff? 3 MR. TALARICO: Judge, no, nothing. 4 THE COURT: Ms. Tinajero, ready? 5 MS. TINAJERO: Yes, Your Honor. 6 THE COURT: Okay. You'll have the first and last 7 word. 8 I will say for the record I have read the 9 briefs, I have, of course, reviewed the exhibits as 10 well as the authority that the parties have cited. So 11 no within should feel that they need to read their 12 brief to me, but I will, of course, give both sides an 13 opportunity to be heard. 14 Ms. Tinajero, it's your motion, you'll have 15 the first and last word. 16 MS. TINAJERO: Thank you, Your Honor. I will 17 keep it brief this morning since you have gone through 18 the briefs. 19 ARGUMENT BY 20 MS. TINAJERO: 21 The arguments set forth in our Motion For 22 Summary Judgment are very straight forward. You know, 23 as to the unsigned agreement, the position Plaintiffs 24 have taken that a party is bound by and, therefore, can 6 1 breach an unsigned, undated agreement is a legally 2 flawed position. Simply put, Allstate cannot be bound 3 by an unsigned agreement. 4 As to the binding mediation agreement, which 5 is the only executed valid agreement between the 6 parties, which is undisputed, to the extent terms were 7 modified and/or admitted between the unsigned agreement 8 and the executed binding mediation agreement, it is not 9 alleged Allstate does not maintain that it played any 10 role in drafting anything about the mediation 11 agreement. And, importantly, such amendments were made 12 before the binding mediation was executed. 13 Additionally, the monetary parameters set 14 forth in the agreement remains the same in both the 15 unsigned agreement and the executed binding mediation 16 agreement. 17 The damage that Dulberg identifies in the 18 complaint, you know, in an amount in excess of $261,000 19 do not flow from any breach complained of as against 20 Allstate. And it's our position that there are no set 21 of facts under which Dulberg can prove a breach of an 22 unsigned agreement or the executed binding mediation 23 agreement. 24 7 1 Further, Dulberg executed a release, which is 2 attached to our Motion For Summary Judgment. The terms 3 of the release are clear, certain, free from doubt and 4 Dulberg admits to signing the release in his reply to 5 Allstate's affirmative defenses. That's all I have, 6 Your Honor. 7 THE COURT: Thank you, Tinajero. 8 Mr. Talarico? 9 ARGUMENT BY 10 MR. TALARICO: 11 I think I would like to start in reverse 12 order. I would like to address, Judge, the release. 13 Mr. Dulberg -- I filed on behalf of 14 Mr. Dulberg, he signed a counter-affidavit, which was 15 sent to the Court and I believe it's actually been 16 delivered personally to your courtroom today. It was 17 filed yesterday. Mr. Dulberg had been sick for a few 18 days and he couldn't cooperate or give me any of his 19 time, but I filed it yesterday and it's in opposite to 20 the release, the reasons why the release is not 21 effective. His reasoning is that he was forced to do 22 this against his will. 23 In his counter-affidavit he indicated, and I 24 think copied transcripts of e-mails that he received 8 1 from his own attorney forcing -- telling him that if he 2 didn't sign the release, the Judge would hold him in 3 contempt and he would be jailed, different than the 4 general terms of contract by signing a release, which 5 is a contract, under those terms cannot be enforced 6 against the person that's being threatened with jail, 7 and/or being held in contempt. Plus, that particular 8 release makes no sense, Judge. 9 If you really think about all of the things 10 they talk about in their motion and affidavit, 11 especially the affidavit. 12 I would like to bring up the fact that the 13 statement, the affiant says the money was paid and then 14 the releases were sent out to be signed. Judge, I 15 would ask you to take judicial notice that insurance 16 companies do not pay first and then send out releases. 17 Furthermore, since this matter was already 18 adjudicated and an order was entered by the arbitration 19 judge, there was no need for a release; that Allstate 20 had paid, according to their own affidavit, and now 21 they're trying to enforce and ask for and force 22 Mr. Dulberg to sign a release. I think that brings up 23 a considerable amount of questionable contrary facts 24 just on its own, Judge. 9 1 So I would hope that you would contemplate 2 what I'm saying and see that summary judgment is so 3 inappropriate, that's just one of hundreds of things 4 that we are at different ends of the spectrum on. And 5 I think that's all been supplied to Your Honor, but, 6 most importantly, this release issue, it is contrary to 7 the logic that the money was paid first and released. 8 In my practice, Judge, but I've never settled with an 9 insurance company that would pay first and then ask for 10 a release. That's all I have to say today, Judge. 11 Thank you. 12 THE COURT: Okay. Mr. Talarico, the only 13 argument you want to make today is a brand new argument 14 based on, I believe, duress that did not appear 15 anywhere in your response brief. It is based 16 exclusively on an affidavit that was filed yesterday 17 and hand delivered to the Court minutes before this 18 proceeding began. 19 That's the only argument you want to make? 20 You don't want to address anything that Ms. Tinajero 21 spelled out in the motion or the reply regarding the 22 enforceability of an unsigned agreement, which is the 23 entire basis of Count 5? I just want to make sure that 24 you have a full opportunity to make whatever arguments 10 1 you wish. 2 FURTHER ARGUMENT 3 BY MR. TALARICO: 4 First, I would like to get back to the 5 release. The release was filed yesterday, Your Honor. 6 It was filed and it was accepted. I sent it out to 7 Your Honor this morning at about 6:00 a.m. with the 8 attached exhibits and all the other counsel of record. 9 What response I got was please send a hard copy from 10 your support staff. So I had a hard copy delivered to 11 the courtroom today, but this was filed yesterday. 12 Judge, this was filed pursuant to, and I 13 think it's clear there, Subsection C of the Motion For 14 Summary Judgment. I'm allowed to do that, Your Honor. 15 And I just complied with the statute, 735 5 -- Well, 16 you know, Judge, better than I know. But 105 17 Subsection C says I can file counter-affidavits up to 18 the time of hearing and I did that. 19 So I don't think I violated anyone and I 20 tried -- I sent a message to everybody that if anybody 21 objects, they want more time to review, they want more 22 time to respond, we have no objection. And I also -- 23 counsel suggested the reason why Mr. Dulberg is here 24 because if the Court wants to examine him as to the 11 1 affidavit, he's more than willing to answer questions 2 of the Court. 3 THE COURT: This is not an evidentiary hearing. 4 MR. TALARICO: You're right, Your Honor. I just 5 made that option. 6 THE COURT: The other question I asked you, and, 7 again, you focused exclusively on this 11th hour 8 affidavit, which only addresses the effectiveness of 9 the release, I want to make sure that you've had the 10 opportunity to address today, if you choose, because I 11 didn't see anything really in your brief that addresses 12 why the draft agreement attached as Exhibit 6B to the 13 complaint would be enforceable? 14 MR. TALARICO: Why it wouldn't be enforceable? 15 Is that what you said? I'm sorry. 16 THE COURT: Why it would be enforceable because 17 that's your claim. Count 5 is for breach of contract. 18 MR. TALARICO: Yes, Judge. 19 THE COURT: The breach that you claim in 20 Paragraph 106 is that Defendant breached the contract 21 by not following the terms regarding amending the 22 contract, but the only amendments that you cite are the 23 changes between Exhibit 6B and Exhibit 11. So for 24 there to possibly be a breach of contract, Exhibit 6B 12 1 must have been enforceable, otherwise you can't 2 possibly have a claim for its breach. And Ms. Tinajero 3 on behalf of Allstate has argued in the motion and the 4 reply that because Exhibit B was unsigned it was not 5 enforceable. 6 THE COURT: Judge, Exhibit B was the only exhibit 7 permitted by the bankruptcy court. It was presented to 8 the bankruptcy judge as unsigned and the bankruptcy 9 judge, Judge Lynch, said to the trustee "sign the 10 contract and you can go forward." Trustee never signed 11 it. They refused to sign -- They didn't actually 12 refuse to sign it, but he didn't. Then another 13 contract appeared. 14 One of the things we said, Judge, is that 15 this matter -- this binding mediation agreement had 16 been already presented to the trial court judge maybe 17 6 months before. So there's all of these issues of 18 what's the valid contract, names are changing from the 19 Defendant being liable, the contract now says a 20 relative of the Dulbergs is liable to Paul, but there's 21 a person, David Dulberg, he exists. 22 Again, the bankruptcy judge saw an unsigned 23 contract and told and instructed his trustee to sign 24 it. 13 1 We have an enforceable contract, I believe. 2 And I think that the fact that all of these things were 3 done -- and forgive me, Judge, because I don't practice 4 bankruptcy -- but in violation of the stay that had 5 been in effect that whole time. I think that with all 6 of those issues I should be allowed as representative 7 of the Plaintiff to do some discovery upon to see 8 really what the truth of the matter is, we've had 9 allegations back and forth. 10 THE COURT: You said that the bankruptcy court 11 directed the trustee to sign the agreement. So what 12 possible relevance can any prior alleged violations of 13 the stay have to do with Allstate's liability under any 14 contract? 15 MR. TALARICO: Judge, the terms of the contract, 16 we say that the signed contract is a contract. The 17 terms of the contract as accepted and signed by all the 18 parties were -- when I say parties I mean Dulberg 19 denies he signed it, but, anyway, the terms of the 20 contract are sufficient, they say that the breach is 21 that they changed the terms of the contract from the 22 contract they presented to the Court; that the plain 23 language of the contract says if you do this you have 24 to do it, you have to submit hard copies, you have to 14 1 do it in advance, I think it's 2 weeks, you have to get 2 permission by the ADR. None of that was done. And 3 both Baudin and the attorney for Allstate were 4 participants in that. So I believe that's a breach of 5 contract. 6 THE COURT: Mr. Talarico, that assumes that the 7 unsigned contract was enforceable. What factual or 8 legal support do you have for that proposition because 9 I saw not a single case cited in your brief at all? 10 And the extensive factual recitation appears completely 11 irrelevant. So what did you point me to that I 12 overlooked in your brief that provides factual or legal 13 support for the proposition that the unsigned contract 14 is enforceable? 15 MR. TALARICO: Judge, I will rest now. I said 16 what I have to say. What I pointed you to was the fact 17 that the only contract empowered was the unsigned one. 18 So I'm going to stay on that and I'm finished talking. 19 Thank you, Judge. 20 THE COURT: Thank you, Mr. Talarico. 21 Ms. Tinajero, if you wish? 22 FURTHER ARGUMENT 23 BY MS. TINAJERO: 24 Judge, just briefly. I will say as to the 15 1 counter-affidavit that was filed this morning, or at 2 least a courtesy copy of which we only received this 3 morning, it's Allstate's position it should be 4 stricken. 5 A briefing schedule was entered in this case. 6 Dulberg, Plaintiff's counsel received an extension of 7 time to file his response. But, more importantly, 8 procedural matters aside, all the information contained 9 in the counter-affidavit it doesn't create a genuine 10 issue of material fact as to Allstate's breach of an 11 unsigned agreement: 12 Any representations that the Baudin 13 Defendants made or the Olsen Defendants made to Dulberg 14 in the course of the binding mediation proceedings, any 15 execution of the binding mediation agreement or in 16 Dulberg's execution of the release have no bearing on 17 the specific claim against Allstate here, which is 18 breach of an unsigned contract. That's all, Your 19 Honor. 20 MR. TALARICO: Your Honor, may I respond? 21 THE COURT: You had a full opportunity to argue, 22 Mr. Talarico, but in the interest of making a complete 23 record, what did you wish to say, bearing in mind that 24 Ms. Tinajero will have the last word? 16 1 FURTHER ARGUMENT 2 BY MR. TALARICO: 3 Yes. I'm repeating myself but -- 4 THE COURT: Then why are you taking everybody's 5 time if all you're going to do is repeat yourself? 6 MR. TALARICO: One sentence, Judge, will be all I 7 want. 8 I'm allowed to do that pursuant to 735 ILCS 9 5/2-1005(c). Thank you, Judge. 10 THE COURT: All right. You did, indeed, repeat 11 yourself, but I suppose if you wanted to say that a 12 second time for the record, fine. 13 COURT'S RULING 14 ON THE M0TION: 15 Plaintiff's counsel is correct, Section 2 16 1005 of the Illinois Code of Civil Procedure, 735 ILCS 17 5/2-1005, Subparagraph (c), does permit an opposing 18 party to, quote, prior to or at the time of the hearing 19 on the motion file counter-affidavits, unquote. 20 I remain unconvinced of the wisdom of that 21 provision of the Illinois Code of Civil Procedure, but 22 there's nothing unconstitutional about it and judges 23 don't ignore or overlook a statute simply because they 24 can't understand why in the world that would be the 17 1 law. So, yes, there is nothing procedurally improper 2 about launching an affidavit at the opposing parties 3 and the Court hours before a hearing on a fully briefed 4 Motion For Summary Judgment. So I have received the 5 affidavit. 6 The affidavit, as I said, essentially seeks 7 to lay ground work for a claim of duress in executing 8 the release. I don't see anything about duress by 9 Allstate and I don't see anything in the affidavit, nor 10 have I heard anything in counsel's argument today, that 11 would suggest that Allstate was not entitled to rely on 12 the release, but the release issue is only one of the 13 arguments that Allstate makes in support of its Motion 14 For Summary Judgment. 15 Even if I were to find that there were an 16 issue of material fact as to the enforceability of the 17 release, Allstate is entitled to summary judgment on 18 Count 5 of the complaint as pled because the only 19 breach of contract that the Plaintiff alleges is 20 failure to follow, quote, the terms regarding amending 21 the contract. But the only amendments of the contract 22 that the Plaintiff identifies are changes from an 23 unsigned version of the contract to the final signed 24 version of the contract. 18 1 The Plaintiff provides no authority to 2 support the proposition that the unsigned contract was 3 binding on Allstate or anyone else. And if the 4 contract, itself, was not binding, definitionally the 5 terms regarding amending the contract, quote, unquote, 6 cannot have been bind. There is no other breach pled. 7 So Allstate ask entitled to summary judgment. 8 In addition, even if hypothetically, because 9 I understand Mr. Talarico's point, that the unsigned 10 version of the contract was the version presented to 11 the bankruptcy judge in advance, even if theoretically 12 there might be some potential claim for hoodwinking the 13 bankruptcy judge, or something like that, I don't know 14 what it would be, even if hoodwinking the bankruptcy 15 judge, quote, unquote, were a basis for finding a 16 contract enforceable, even so the breaches that the 17 Plaintiff claims did not cause any injury. 18 Mr. Talarico notes that there were a few 19 changes and one does appear to have introduced a 20 typographical error in terms of the individual who 21 would be responsible to the Plaintiff, but both 22 contracts, the unsigned and the signed, were identical 23 as far as Allstate's obligation and there is no 24 suggestion, there is not even any suggestion, let alone 19 1 an issue of material fact that Allstate paid the full 2 amount that it was obligated to pay under either 3 version of the contract. 4 So Allstate is entitled to summary judgment 5 not only on the grounds that there was no breach, but, 6 even if there were a breach, there was no injury. 7 The motion for summary judgment is granted in 8 its entirety. 9 And the parties will have to remind me, I 10 don't believe there are any other parties remaining, 11 but, perhaps, I'm overlooking someone. 12 Mr. Talarico, to your knowledge are there any 13 other party defendants remaining in the case? 14 MR. TALARICO: Not at this moment, Your Honor. 15 There are no more, you've already released everyone. 16 THE COURT: Okay. So then today's order will be 17 final and appealable. 18 Ms. Tinajero, I'll ask you to draft a short 19 written order. It doesn't need to say anything more 20 than that the parties appearing on Allstate's Motion 21 For Summary Judgment, Court having heard argument of 22 both sides, having considered all briefs and all 23 exhibits, including the recent affidavit by Plaintiff 24 Paul Dulberg grants summary judgment for the reasons 20 1 stated on the record. This is a final and appealable 2 order. 3 Thank you, everybody. Have a good day. 4 We're in recess. 5 MS. TINAJERO: Thank you, Judge. 6 MR. TALARICO: Thank you, Your Honor. 7 (Whereupon the hearing concluded at 11:40 a.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 21 1 REPORTER'S CERTIFICATE 2 3 I, CONNIE L. JAMES, CSR No. 084.002510, 4 Certified Shorthand Reporter, certify: 5 6 That the foregoing proceedings were taken before 7 me at the time and place therein set forth; 8 That all statements made at the time of the 9 hearing were recorded stenographically by me and were 10 thereafter transcribed; 11 That the foregoing is a true and correct 12 transcript of my shorthand notes so taken; 13 I further certify that I am not a relative 14 or employee of any attorney of the parties, nor 15 financially interested in the action. 16 I declare under penalty of perjury under the Laws 17 of Illinois that the foregoing is true and correct. 18 Dated this 25th day of September, 2023. 19 <%27558,Signature%> 20 CONNIE L. JAMES, CSR No. 084.002510 21 22 23 24