# Eychaner v. Gross

> Appellate Court of Illinois · March 30, 2001 · 321 Ill. App. 3d 759

URL: https://www.frixlaw.com/law-library/cases/9721130

## Case

- **Full name:** FRED EYCHANER Et Al., Plaintiffs-Appellants and Counterdefendants-Appellants, v. THEODORE GROSS Et Al., Defendants-Appellees and Counterdefendants-Appellees and Counterplaintiffs-Appellees (Auditorium Theatre Council, Defendant-Appellant and Counterplaintiff-Appellant and Counterdefendant-Appellant)
- **Court:** Appellate Court of Illinois
- **Decided:** March 30, 2001
- **Citations:** 321 Ill. App. 3d 759; 254 Ill. Dec. 557; 747 N.E.2d 969
- **Precedential status:** Published
- **Opinion:** Concurrence by Cahill
- **Judges:** Frossard, Cahill, Wolfson
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Eychaner v. Gross, 202 Ill. 2d 228 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721130

## How later opinions describe it (automated extraction)

- holding that appellate jurisdiction was lacking where the trial court order dismissing counterclaims did not include Rule 304(a) language

## Opinion text

PRESIDING JUSTICE CAHILL, specially concurring:
I concur in the decision to reverse and remand this case for a new trial. Respectfully, I do not agree with the overview of the record set out in the thoughtful dissent. There are too many questions raised by the trial court’s opinion and order to conclude that the trial of this case was fair. The record in this case is not just a mountain of conflicting evidentiary material amassed over the course of a 10-week trial. If that were so, I would agree with the dissent and defer to the able trial judge. I write separately to stress issues discussed in the opinion and to raise one of my own.
In the course of his lengthy opinion and order the trial judge:
(1) Misstated the law governing trusts and misunderstood several arguments made by the plaintiffs based on the law of trusts;
(2) Ignored unrebutted evidence that the Auditorium Theater Council was incorporated in 1981 and so functioned well before and for some time after this lawsuit was filed;
(3) Discounted (inexplicably, in my view) unrebutted evidence that the incorporated Auditorium Theater Council raised money for, restored and operated the theater. The Council entered into contracts in its own name. Nonetheless, the trial court concluded that the Council was nothing more than a committee of Roosevelt University (the dissent calls it an “instrumentality” (321 Ill. App. 3d at 788)) without a life of its own. The conclusion of the trial judge that the Council was incorporated simply for tax purposes ignored substantial evidence to the contrary and was, in my view, against the manifest weight of the evidence. Finally, Roosevelt University never offered a plausible explanation for the statement of one of its lawyer-advisors early on (cited in the opinion (see 321 Ill. App. 3d at 767)) that the Council “ ‘will exist in two legal capacities.’ ” The evidence is persuasive that Roosevelt University chose this murky legal position so that later it could affirm or deny whatever legal label might be advanced to describe the Council. The story about the duck is appropriate here. If the entity is incorporated and behaves like a corporation, it probably is a corporation; and
(4) Midway through his opinion and order the trial judge paused awhile to comment on the character of one of the party plaintiffs and assigned a base motive to the filing of this lawsuit. It is a distressing interlude in an opinion and order that otherwise sticks to the record. The words chosen by the trial court are gratuitous and strident—an editorial that suddenly appears in the middle of a straight news story. There is nothing I can find in the record that supports the trial court’s view that the lawsuit was filed for less than legally sound motives. It may be that the trial court’s remarks were prompted and justified by witness demeanor or other trial circumstances not revealed in a dead cold transcript. (“Yes,” he smirked.)
The problem for a reviewing court is clear—without references to the record, we cannot know whether the trial judge was expressing justified irritation with behavior edging toward the contumacious or trial court bias harbored from the outset. If the latter, I would not hesitate to vote to reverse on that ground alone and remand for a new trial before a new judge. The issue is in doubt based on my reading of the opinion and order. The trial judge is able and distinguished. I hope we will not need to struggle with this issue in the future.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721130. Public record. Not legal advice.