Justice STEIGMANN delivered the judgment of the court with opinion.
¶ 1 In April 2005, plaintiff, Navistar Financial Corporation (Navistar), entered into an "Interlocking Guaranty" with defendants Capitol Ready-Mix, Inc. (Capitol); and Curry Ice and Coal, Inc. (Curry); as well as defendants Curry Ready-Mix & Builders' Supply, Inc.; Curry Ready Mix of Carlinville, Inc.; Curry Ready Mix of Gillespie, Inc.; Curry Ready Mix of Peoria, Inc.; Curry Ready Mix of Pawnee, Inc.; Curry Ready Mix of Jacksonville, Inc.; Curry Ice & Coal of Carlinville, Inc.; Curry Ice & Coal of Springfield, Inc.; Curry Ice & Coal of Illiopolis, Inc.; Curry Ice & Coal of Perrysville, Inc.; Curry Ice & Coal of Ottawa, Inc.; Curry Ice & Coal of Peoria, Inc.; Troy Ready Mix Concrete, Inc.; Consolidated Ready Mix of Mason City, Inc.; Lippold & Arnett, Inc.; M-C Transfer, Inc.; Lippold & Arnett Transportation Services, Inc.; and Bruce Garner. At issue in this appeal is the interlocking guaranty between Navistar and Capitol, in which Capitol agreed to be a guarantor for any then-existing or future debt Curry owed to Navistar. (The remaining defendants are not parties to this appeal.)
¶ 2 In July 2013, Navistar sued Capitol, claiming that Capitol breached the interlocking guaranty by refusing to reimburse Navistar for Curry's default of several financial loans between Curry and Navistar.
¶ 3 In July and November 2014, Navistar and Capitol, respectively, filed cross-motions for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014)). In December 2014, the trial court entered an order granting summary judgment in Navistar's favor and awarding Navistar $506,567.
¶ 4 In May 2015 — after the trial court denied Capitol's motion to reconsider — Capitol timely filed a notice of appeal. In August 2015, the court granted Navistar's "motion to add fees and costs to judgment order," adding an additional $36,174 to the $506,567 sum the court awarded Navistar.
¶ 5 Capitol appeals, arguing that the trial court (1) erred by granting summary judgment in Navistar's favor (case No. 4-15-0419) and (2) lacked jurisdiction to award Navistar additional fees and costs after Capitol filed its notice of appeal (case No. 4-15-0646). We affirm.
¶ 7 The following undisputed information was gleaned from the parties' pleadings, depositions, affidavits, and other supporting documents filed in the trial court.
¶ 8 As a condition of entering into leases or extending financing, Navistar required companies to enter into an interlocking guaranty. In April 2005, Navistar and Capitol signed an interlocking guaranty in which Navistar and Capitol (among others) agreed, in part, to the following contractual provision:
¶ 9 Between July 2005 and December 2008, Navistar executed eight contracts with Curry, which were entitled, "Commercial Loan and Security Agreement" (hereinafter, commercial loans). The financing Navistar extended under the eight commercial loans assisted Curry in acquiring transportation assets for its trucking business.
¶ 10 In July 2013, Navistar sued Capitol (as well as the other identified defendants), claiming, in pertinent part, that Capitol "failed to pay all sums due and owing" for Curry's default of the eight commercial loans. Navistar's suit explained that after Curry's default, Navistar repossessed the equipment Curry purchased and later sold those assets at a public auction, but an outstanding balance of $307,293 remained on the commercial loans. In its prayer for relief, Navistar requested reimbursement of the outstanding balance plus interest, fees, costs, and other equitable relief the trial court deemed just.
¶ 11 In July 2014, Navistar filed a motion for summary judgment pursuant to section 2-1005 of the Code. Appended to Navistar's summary judgment motion was its July 2013 complaint for breach of contract against Capitol, which contained (1) the three-page interlocking guaranty executed between Navistar and Capitol and (2) the eight commercial loans executed between Navistar and Curry. In addition, Navistar appended the affidavit of Lynn Roy, Navistar's retail operations specialist. In November 2014, Capitol filed (1) a motion to strike Roy's affidavit and (2) a cross-motion for summary judgment in which Capitol appended the affidavit of its president, Louis Marcy.
¶ 12 Later that month, the trial court conducted a hearing on the parties' respective motions and, thereafter, took the matter under advisement. In December 2014, the court entered the following order:
¶ 13 In May 2015 — after the trial court denied Capitol's motion to reconsider — Capitol timely filed a notice of appeal. In August 2015, the court granted Navistar's "motion to add fees and costs to judgment order," adding an additional $36,174 to the $506,567 sum the court awarded Navistar.
¶ 14 This appeal followed.
¶ 18 "Summary judgment is proper when `the pleadings, depositions, and admissions
¶ 20 Capitol argues that the trial court erred by granting summary judgment in Navistar's favor. Specifically, Capitol contends that (1) the interlocking guaranty was unenforceable because no "meeting of the minds" occurred between Capitol and Navistar, (2) the commercial loans executed between Navistar and Curry superseded the interlocking guaranty between Navistar and Capitol, and (3) Navistar's motion for summary judgment did not sufficiently prove that Navistar and Capitol entered into an interlocking guaranty or establish the damages that the court awarded. We address Capitol's contentions in turn.
¶ 22 Capitol contends that the interlocking guaranty was unenforceable because no "meeting of the minds" occurred between Capitol and Navistar. In support of that contention, Capitol relies on Williams Nationalease, Ltd. v. Motter, 271 Ill.App.3d 594, 207 Ill.Dec. 914, 648 N.E.2d 614 (1995). We conclude that Williams is distinguishable.
¶ 23 In Williams, 271 Ill.App.3d at 595, 207 Ill.Dec. 914, 648 N.E.2d at 615, Ron Motter, president of Motter Enterprises (Motter), decided to lease additional trucks for his business. Ron submitted an "application for credit" to Williams Nationalease (Nationalease), which listed Ron as Motter's "principals: officer or partners," and who was "authorized to purchase." Id. The credit application provided (1) an "approximate monthly purchases anticipated" of $2,000 to $4,000; (2) minimal information as to the trucks Motter already owned; and (3) employment information for Ron's wife, Kathleen. Id. Ron signed the credit application as an "owner or duly authorized officer" of Motter. Id. In addition, Ron and Kathleen signed the credit application in their respective individual capacities under the heading "If Corporation, Individually Guaranteed by." Id. at 596, 207 Ill.Dec. 914, 648 N.E.2d at 615. All signatures were dated June 3, 1992. Id. at 595-96, 207 Ill.Dec. 914, 648 N.E.2d at 615-16.
¶ 24 Five days later, Ron — acting as Motter's president — entered into a "Vehicle Lease and Service Agreement" with Nationalease. Id. at 596, 207 Ill.Dec. 914, 648 N.E.2d at 616. The lease agreement included two schedules, which further outlined limitations and service requirements of the leased vehicles. Id. Kathleen was not mentioned, nor did she sign the lease agreement or schedules. Id. Ron subsequently died, and sometime later, Motter defaulted on its payments to Nationalease. Id. Nationalease later sued Kathleen, claiming that she was a guarantor on Motter's debt. Id.
¶ 25 In affirming the trial court's judgment, which rejected Nationalease's claim that Kathleen was a guarantor, this court stated as follows:
¶ 26 In April 2005 — when Capitol signed the interlocking guaranty — the eight commercial loans between Navistar and Curry did not exist. Capitol correctly notes that Navistar disbursed Curry's first commercial loan in July 2005 — three months after Capitol signed the interlocking guaranty. From this premise, Capitol posits that pursuant to Williams, the interlocking guaranty was unenforceable because no meeting of the minds occurred. We are not persuaded because of the type of guaranty at issue in the instant case.
¶ 27 A guaranty is defined as a promise to pay a debt or perform an obligation — on default of such payment or performance — by a third party who is liable or expected to be liable in the first instance. CCP Ltd. Partnership v. First Source Financial, Inc., 368 Ill.App.3d 476, 482, 305 Ill.Dec. 687, 856 N.E.2d 492, 497 (2006). "A guaranty reduces the lender's risk by shifting the risk to a party who `has a comparative advantage in monitoring or enforcement' of the debtor's duties, while the `lender has a comparative advantage in liquidity.'" Id. (quoting Avery W. Katz, An Economic Analysis of the Guaranty Contract, 66 U. Chi. L.Rev. 47, 113 (1999)).
¶ 28 A different type of guaranty — referred to as a continuing guaranty — "`is a contract pursuant to which a person agrees to be the secondary obligor for all future obligations of the principal obligor to the obligee.'" TH Davidson & Co. v. Eidola Concrete, LLC, 2012 IL App (3d) 110641, ¶ 11, 362 Ill.Dec. 108, 972 N.E.2d 823 (quoting Restatement (Third) of Suretyship and Guaranty § 16 (1996)). The contractual language of the agreement effectuates the intention of the parties to enter into a continuing guaranty. See 20 Ill. L. and Prac., Guaranty § 15, at 369-70 (2010) ("Whether a guaranty is a continuing one will depend on the language of the contract, interpreted according to the intention of the parties as manifested by their writings."). "Where by the terms of [the] written guaranty it appears that the parties look to a future course of dealing or to a succession of credits," it is generally considered a continuing guaranty. Id. at 369 (citing Aetna Plywood & Veneer Co. v. Robineau, 340 Ill.App. 418, 92 N.E.2d 206 (1950), and other cases; see also Scovill Manufacturing Co. v. Cassidy, 275 Ill. 462, 467, 114 N.E. 181, 184 (1916)). Continuing guaranties of future obligations are valid, binding, and have a long history in Illinois. See Mamerow v. National Lead Co., 206 Ill. 626, 634, 69 N.E. 504, 507 (1903) (although a guarantor may limit their undertaking in a continuing guaranty, limitations to the duration and sum of a future guaranty are not required as it may guaranty both an unlimited duration and sum).
¶ 29 In this case, the record clearly shows that Capitol and Navistar entered into an interlocking guaranty that contemplated a future course of dealing. Simply put, the plain meaning of the language of the interlocking guaranty between Capitol and Navistar shows that the parties entered into a continuing guaranty — that is, that Capitol agreed that Navistar could
¶ 30 Despite Capitol's reliance, Williams does not pertain to the continuing guaranty between Capitol and Navistar. In Williams, this court declined to conclude that the application for credit under scrutiny was a guaranty because it did not involve a promise to pay a specific debt or perform a specific obligation at the time the credit application was signed. Williams, 271 Ill.App.3d at 597, 207 Ill.Dec. 914, 648 N.E.2d at 616. As we have noted, a continuing guarantee necessarily contemplates an unknown future obligation. Thus, applying the holding of Williams to the instant case to overturn the trial court's judgment, as Capitol urges, would defeat the fundamental purpose of a continuing guaranty, which we decline to do.
¶ 32 Capitol contends that the commercial loans executed between Navistar and Curry superseded the interlocking guaranty between Navistar and Capitol. We disagree.
¶ 33 Capitol premises its contention on the following contractual language, which appears just above the signature page of each of the eight commercial loans:
¶ 34 Focusing on the clause, "supersedes all previous agreements, except as to agreements between borrower and lender," Capitol claims the following:
¶ 35 We note that Capitol does not cite any pertinent authority for the conclusion it now urges this court to adopt — that is, that the responsibilities of a guarantor subject to the provisions of a continuing guaranty can be nullified by language contained in a separate financial contract in which the guarantor is not a party thereof. According to Capitol's theory, Navistar required Curry and other businesses to enter into a written contract that Navistar created — that is, a continuing guaranty — in exchange for access to its financial liquidity and then further created loan documents that immediately invalidated those respective guaranties.
¶ 36 We note further that under Capitol's overly broad interpretation, any subsequent commercial loan Navistar executed with any guarantor would have superseded all other prior agreements between Navistar and the remaining guarantors. We reject such an absurd stance. Instead, we conclude that the aforementioned commercial loan provision pertained only to the specific transaction between Navistar and Curry and did not
¶ 38 Capitol contends that Navistar's motion for summary judgment did not sufficiently prove that Navistar and Capitol entered into a continuing guaranty or establish the damages that the trial court awarded. Specifically, Capitol takes issue with the affidavit provided by Roy in support of Navistar's July 2014 motion for summary judgment. We first set forth the pertinent portion of Roy's affidavit, as follows:
¶ 39 As we have previously noted, in November 2014, Capitol filed a motion to strike Roy's affidavit, arguing that Roy's assertions therein were conclusory. Capitol also noted that although Roy claimed that a spreadsheet was attached to her affidavit to substantiate the damages Navistar was requesting, no such spreadsheet was provided. (In its brief to this court, Navistar acknowledges that the spreadsheet at issue was "inadvertently omitted" from Roy's affidavit.) That same month, Capitol also filed a combined (1) answer to Navistar's July 2014 motion for summary judgment and (2) cross-motion for summary judgment. Attached to that pleading was Marcy's affidavit, in which Capitol's president made the following assertions:
¶ 41 Capitol posits that summary judgment in Navistar's favor was improper because Roy's affidavit did not comply with the requirements of Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013). We disagree.
¶ 42 Rule 191(a) provides as follows:
¶ 43 In its brief to this case, Capitol couches its claim regarding Roy's affidavit by stating that Navistar "predicated its motion for summary judgment upon the affidavit of * * * Roy[,] which did not comply with the requirements of * * * Rule 191." Specifically, Capitol claims that with regard to Roy's contractual allegations, she attached neither the April 2005 interlocking guaranty nor the commercial loan documents upon which her claims were based. In addition, Capitol also claimed that Roy's statements regarding damages Navistar incurred were conclusions without any factual support.
¶ 44 Despite Capitol's characterization, our review here does not concern the weight that Navistar placed on Roy's affidavit, but instead, the propriety of the trial court's ruling, which granted summary judgment in Navistar's favor as a matter of law. Our review of the record shows the following undisputed facts based on the parties' properly admitted evidence: (1) in April 2005, Capitol entered into a contractual agreement with Navistar by admittedly signing the interlocking guaranty; (2) between July 2005 and December 2008, Navistar executed eight commercial loans with Curry; (3) Curry subsequently defaulted on the eight commercial loans; (4) by virtue of the plain language of the interlocking guarantee, Capitol was jointly and severally liable for Curry's default; and (5) Navistar suffered a sum certain in damages by virtue of Curry's default. Thus, we reject Capitol's contention that Navistar's summary judgment motion was deficient so as to preclude the court's award of summary judgment in Navistar's favor.
¶ 45 In so concluding, we note that Capitol attempts to create a genuine issue of material fact by claiming that it was unaware of the specifics requirements of the interlocking guaranty despite its agent's authorizing signature. However, a person is under a duty to learn or know of the contents of a written contract and the obligations that are undertaken by its execution before affixing an authorizing signature.
¶ 47 As we have previously noted, in May 2015 — after the trial court denied Capitol's motion to reconsider — Capitol timely filed a notice of appeal. In August 2015, the court granted Navistar's "motion to add fees and costs to judgment order," adding additional $36,174 to the $506,567 sum the court awarded Navistar. Capitol argues that the court lacked jurisdiction to award Navistar additional fees and costs after Capitol filed its notice of appeal. We disagree.
¶ 48 Generally, "[o]nce the notice of appeal is filed, the appellate court's jurisdiction attaches instanter, and the cause of action is beyond the jurisdiction of the circuit court." General Motors Corp. v. Pappas, 242 Ill.2d 163, 173, 351 Ill.Dec. 308, 950 N.E.2d 1136, 1142 (2011). However, the circuit court retains jurisdiction to determine matters "collateral or incidental to the judgment." Id. at 173-74, 351 Ill.Dec. 308, 950 N.E.2d at 1142. "`Collateral or supplemental matters include those lying outside the issues in the appeal or arising subsequent to delivery of the judgment appealed from.'" Moenning v. Union Pacific R.R. Co., 2012 IL App (1st) 101866, ¶ 22, 359 Ill.Dec. 122, 966 N.E.2d 443 (quoting Town of Libertyville v. Bank of Waukegan, 152 Ill.App.3d 1066, 1073, 105 Ill.Dec. 787, 504 N.E.2d 1305, 1310 (1987)). Further, collateral or incidental matters "d[o] not affect or alter the issue[.]" from which the notice of appeal was filed. General Motors, 242 Ill.2d at 174, 351 Ill.Dec. 308, 950 N.E.2d at 1142-43.
¶ 49 In this case, Navistar's motion to add fees and costs to the judgment order was predicated on a fee-shifting provision contained within the interlocking agreement between the parties, which provided that "[i]n the event of the enforcement of this Guaranty by Navistar, Navistar shall be entitled to collect from Guarantors, Navistar's costs of collections and enforcement, including without limitation, reasonable attorney's fees."
¶ 50 We conclude that Navistar's motion to add fees and costs to the judgment was collateral and incidental to the summary judgment ruling that Capitol appealed. The trial court therefore had jurisdiction to address Navistar's motion. Accordingly, we conclude that the court had jurisdiction to hear and decide Navistar's motion despite Capitol having timely filed a notice of appeal.
¶ 52 For the foregoing reasons, we affirm the trial court's judgment.
¶ 53 Affirmed.
Presiding Justice KNECHT and Justice HOLDER WHITE concurred in the judgment and opinion.
