June 2026 IICLE FLASHPOINTS

In People v. Webster, 2026 IL App (2d) 250185, the Second District Appellate Court held that a defendant’s social media posts that were directed at the protected party of a stalking/no-contact order was prohibited “contact” and affirmed his conviction for violating a stalking/no-contact order.

In Webster, petitioner H.B. was granted a plenary stalking/no-contact order in March 2022. The order prohibited the defendant (respondent) from contact H.B “in any way, directly, indirectly or through third parties, including, but not limited to, phone, written notes, mail, email, or fax.” 2026 IL App (2d) 250185 at ¶3.

During the defendant’s trial after the stalking/no-contact order was granted, H.B., discovered Twitter posts from the defendant’s Twitter profile (which he admitted belonged to him) from May 2022 in which the defendant tweeted in part that he hoped that “I hope you rot in hell.” 2026 IL App (2d) 250185 at ¶5. She also testified about the defendant driving closely behind on her on her way to court in February 2024. H.B. found a post on the defendant’s Twitter page that was a photo of her car that she was driving to court that day.

She testified about seeing Twitter posts from the defendant in February 2024 that had messages criticizing her driving (she had seen the defendant’s car behind her on her way to court that month), telling her to stop lying, and telling her that the case was not over after the plenary order was entered; posts about her new boyfriend; and a post about a bounty being offered for a date with her. 2026 IL App (2d) 250185 at ¶¶5 – 11. H.B. testified that she did not follow the defendant’s Twitter account and discovered the posts after searching for her name. 2026 IL App (2d) 250185 at ¶11.

Defendant testified and admitted that he made the Twitter posts about the case for his Twitter followers or “the void.” 2026 IL App (2d) 250185 at ¶¶12 – 13. A jury found him guilty of violating the stalking/no-contact order, and he appealed. 2026 IL App (2d) 250185 at ¶14.

The appellate court disagreed with the defendant’s argument that his Twitter posts did not constitute “contact” under the Stalking No Contact Order Act, 740 ILCS 21/1, et seq., because the Act’s definition of “contact” included “any contact with the victim, that is initiated or continued without the victim’s consent.” 2026 IL App (2d) 250185 at ¶19. The appellate court noted that the dictionary definition of “contact” means to “get in communication with.” Id.

The appellate court eventually concluded that because several of the defendant’s posts were written in the second person, were clearly directed at H.B., and referenced the stalking/no-contact order, the posts were clearly intended to convey a message to H.B. that she should fear him. 2026 IL App (2d) 250185 at ¶28.

The appellate court further rejected his argument that his posts were only about H.B. because “communicating a message to one person with the expectation that it will be relayed to a third person amounts to indirectly contacting the third person, regardless of whether the speaker takes any additional ‘steps” to ‘convey’ the message.” 2026 IL App (2d) 250185 at ¶29. Since a Twitter post is not just a casual private conversation but is often readily available to the public, it was reasonable to assume that they would come to that person’s attention.

The appellate court also rejected the defendant’s argument that because H.B. sought out the Twitter posts, he could not have contacted her because the court concluded that stalking victims should not be required to endure the anxiety of knowing or not knowing what their stalkers are saying about them on social media. The appellate court held that social media posts that are directed to a stalking victim who could be expected to monitor the stalker’s social media qualified as initiating contact with the victim. 2026 IL App (2d) 250185 at ¶19.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

On May 27, 2026, the U.S. Court of Appeals for the Seventh Circuit upheld a district court’s decision to grant summary judgment for an employer in a sexual harassment claim brought against it by an employee under Title VII of the Civil Rights Act of 1964 (Title VII), Pub.L. No. 88-352, Title VII, 78 Stat. 253, and the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq. The decision, Sanchez v. El Milagro, Inc., No. 24-3250, 2026 WL 1477252 (7th Cir. May 27, 2026), is an important reminder for employers regarding the importance of conducting prompt and thorough internal investigations of employee complaints, particularly those claiming potential workplace harassment.

The defendant, El Milagro, is a manufacturer and distributor of tortillas, operating eight locations across Illinois. The plaintiff, Alma Sanchez, was employed by El Milagro at its manufacturing facility located in Chicago. After beginning employment, Sanchez was granted an accommodation due to her disability and was permitted to work as a “free person.” 2026 WL 1477252 at *1. In this role, Sanchez would serve as a substitute on the tortilla production line and spend the remainder of her work shift performing sweeping and cleaning duties. Because Sanchez was not required to work on the production line for her full shift, a group of other employees expressed discontent about her accommodation and collected signatures to petition El Milagro to terminate Sanchez from employment. Sanchez reported concerns to her supervisor about comments that were made by her coworkers about her accommodation.

Sanchez subsequently claimed that one of the employees petitioning for her discharge sexually harassed her by inappropriately touching her buttocks on three separate occasions. The court noted, however, that there was “significant ambiguity” in Sanchez’s allegations about these encounters when considering a written statement that Sanchez initially provided to HR and her deposition testimony, as well as the operative complaint. 2026 WL 1477252 at *2. Specifically, there was inconsistency in the timing of these alleged incidents, the accounts of the actual physical touching, and what was verbally reported by Sanchez to the supervisor.

In considering Sanchez’s sexual harassment claims and the district court’s grant of summary judgment to El Milagro, the court first considered whether, under the circumstances, a factfinder could reasonably conclude that the alleged physical intrusions changed the conditions of Sanchez’s employment. The court concluded that a reasonable factfinder could find that these particular facts of alleged sexual harassment amounted to a hostile work environment in violation of Title VII and the IHRA. The court noted that it could be found that the misbehavior toward Sanchez was motivated by an intent to force her out of El Milagro because of displeasure with the accommodations she had been granted. According to the court, a reasonable factfinder could conclude that each event, “egregious in itself,” was part of a “long-haul campaign of attrition to make [Sanchez’s] time at El Milagro miserable.” 2026 WL 1477252 at *5.

However, in affirming the grant of summary judgment, the court confirmed that El Milagro was not negligent in addressing Sanchez’s complaints about the incidents. The court noted that El Milagro could only be found liable if it was negligent in controlling the working conditions at its facility, and that Sanchez must prove that El Milagro had knowledge of the harassment and failed to take prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring. Here, the court held that a reasonable jury could not conclude, from Sanchez’s deposition testimony and other evidence, that Sanchez gave her supervisor enough information to make a reasonable employer think there was some probability that she was being sexually harassed. As described in Sanchez’s deposition, what she told her supervisor led him to believe she was complaining of accidental touching that occurred because the employees worked in close proximity to each other while on the production line.

However, when Sanchez reported the third alleged incident to her supervisor and the supervisor submitted a written report reflecting the same, HR conducted an investigation, which included interviews with Sanchez and the accused coworker. After review, HR determined that the events alleged by Sanchez could not be substantiated. HR, however, told the coworker that he was required to immediately change his behavior toward Sanchez. The court noted that an employer’s prompt investigation is the “hallmark of a reasonable corrective action” with respect to a claim of sexual harassment. 2026 WL 1477252 at *8. In this case, El Milagro’s investigation showed that it took the alleged harassment seriously and took appropriate steps to bring the harassment to an end. As such, the court found that a jury could not reasonably conclude that El Milagro was negligent in fulfilling its responsibilities in responding to the situation and affirmed the judgment of the district court.

Employers should take close note of the court’s ruling, particularly with respect to the importance and weight given to the internal investigation that was conducted by El Milagro’s HR Department. Even if Sanchez’s claims of coworker misconduct rose to the level of actionable sexual harassment, the fact that El Milagro conducted a prompt investigation into those claims when put on notice operated as evidence that it took reasonable corrective action in response, which the court relied on in upholding summary judgment in El Milagro’s favor. Employers should continue to be vigilant in promptly responding to employee complaints, documenting the steps taken to investigate, and, if appropriate, remediating the complained-of conduct.

For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, focusing on labor and employment law. He counsels public and private sector employers on workplace issues, including investigations, disciplinary actions, and collective bargaining. Tom previously worked as a labor relations attorney for the Cook County Health System and with the U.S. Equal Employment Opportunity Commission. He holds a J.D. from Chicago-Kent College of Law and a B.A. with honors from Michigan State University. Tom is admitted to practice in Illinois and is a member of the Chicago Bar Association.

In In re Marriage of Escamilla, 2026 IL App (4th) 250366, a dissolution of marriage action, the husband asserted that the wife was barred from seeking maintenance under the terms of a premarital agreement. The wife contested this assertion and filed a motion for temporary relief seeking various remedies, including temporary maintenance. The husband subsequently filed a petition for declaratory judgment asking the court to find the agreement valid and enforceable with respect to the wife’s waiver of maintenance. The agreement had been drafted by the wife, who was a paralegal at a law firm at the time of its execution. After a hearing, the trial court ruled that the agreement barred both parties from seeking maintenance from the other, and the wife appealed. The Fourth District reversed, holding that maintenance is a significant and explicit statutory right under the Illinois Marriage and Dissolution of Marriage Act that may be waived only through an express and unambiguous intent to waive. The court emphasized that while the Illinois Uniform Premarital Agreement Act permits parties to modify or eliminate spousal support, a generalized waiver of rights to a spouse’s “property” or “estate” does not suffice to waive statutory maintenance. The language of the agreement was silent on the issue of maintenance, contained no reference to any related term such as spousal support or alimony, and contained only a waiver of any interest in the “property” and “estate” of the husband acquired by reason of marriage. Further, the agreement did not define “property.” Therefore, the court held no valid waiver existed, reversed the trial court’s ruling, and remanded for further proceedings.

In a postjudgment action, all parties including the minor children had left Illinois, but the mother filed a petition for rule to show cause and a motion to modify child support in Illinois, the last and only state to enter a child support order after the entry of judgment of dissolution of marriage. In re Marriage of Cox, 2026 IL App (1st) 242290. The trial court ultimately granted both of the mother’s petitions, and the father appealed, contesting the court’s ability to hear the matter because neither party nor the minor children remained in Illinois and the parties had not consented for Illinois to retain jurisdiction over the matter. The appellate court affirmed the trial court’s orders and held that the trial court retained the authority to adjudicate the parties’ child support dispute despite all parties having relocated out of Illinois. The court clarified that the “continuing, exclusive jurisdiction” language in §205 of the Uniform Interstate Family Support Act (UIFSA), 750 ILCS 22/205, does not deal with subject-matter jurisdiction, which is constitutionally conferred, but instead governs when a court may exercise authority as a matter of statutory compliance and personal jurisdiction to modify a support order. The court further held that the father waived any objection to personal jurisdiction and independently consented to Illinois’ continued jurisdiction over the matter by filing an appearance, submitting responsive pleadings, and actively participating in the litigation. The court also noted the distinction between modification (governed by UIFSA §205) and enforcement (governed by UIFSA §206), holding that the statutory limitations applicable to modifications do not restrict a trial court’s ability to enforce an existing support order.

In Cox, the father appealed the trial court’s order, which he alleged failed to enforce the “true-up” provision of the child support order. Specifically, he alleged that the mother failed to provide her tax returns, which were required for the parties to perform the annual “true-up” to determine whether child support had been overpaid or underpaid. When addressing the true-up provision, the trial court determined that the parties could perform annual support reconciliations without exchanging tax returns. The appellate court ruled that this determination constituted a permissible, albeit “slight,” modification of the judgment rather than mere interpretation, but that child support provisions, including mechanisms like income verification, may be modified upon a showing of a substantial change in circumstances and that the trial court retains broad discretion to adjust the mechanics of child support administration. In the absence of a complete record, the court presumed the trial court’s findings were supported by the evidence.

The father also appealed the trial court’s order modifying his monthly child support amount, and the appellate court affirmed. Despite the father’s arguments that the trial court failed to consider the children’s needs and considered only his income, a substantial change in circumstances may be based solely on the obligor’s increased income. Further, a guideline support award carries a rebuttable presumption of correctness. There was no abuse of discretion when the trial court applied statutory guidelines and made express findings regarding changed circumstances and the parties’ respective incomes. The court again restated that absent a record demonstrating otherwise, reviewing courts will presume the trial court properly considered the statutory factors, including the children’s needs.

For more information about family law, see ADOPTION LAW (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

In Hayes v. Board of Education of the City of Chicago, 2026 WL 1488048 (7th Cir. 2026), the plaintiff, Kathleen Hayes, was a college administrator who worked with Chicago Public Schools to place student teachers. While employed by the college, Hayes made several disparaging comments on social media about the school district and the district’s leadership. 2026 WL 1488048 at *1. At least one district administrator viewed Hayes’s social media posts and shared them with the district’s chief talent officer, Matthew Lyons. Lyons subsequently sent an email to Hayes’s direct supervisor and the dean of the college’s school of education regarding her social media activity. Id. In the email, Lyons stated that the posts were interfering with the work of both the district and the college, while acknowledging Hayes’s undisputed right to express her views.The email further stated, “I will leave this in your hands to address as you believe appropriate.” Id. Shortly thereafter, the college terminated Hayes’s employment. 2026 WL 1488048 at *2.

Following her termination, Hayes filed a four-count complaint against the board of education and Lyons, alleging that the defendants (1) retaliated against her for exercising her First Amendment rights; (2) conspired to violate her First Amendment rights; (3) tortiously interfered with her prospective economic gain; and (4) conspired to commit tortious interference. Id. The defendants moved for summary judgment on all counts.

District Court

The district court granted the defendants’ motion for summary judgment on the latter three counts. However, it denied summary judgment on the First Amendment retaliation count, finding a genuine issue of material fact as to whether Lyons possessed final policymaking authority under Monell v. Department of Social Services, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). 2026 WL 1488048 at *2. The district court also found a triable issue regarding whether Lyons’s email constituted an actionable retaliatory threat. Id.

Additionally, the district court held that Lyons was not entitled to qualified immunity because the law clearly established that an individual’s constitutional rights are violated by the sending of a threatening email to the individual’s employer seeking to chill the individual’s speech. The defendants appealed only the district court’s denial of qualified immunity. Id.

Appellate Court

The appellate court addressed two jurisdictional issues. First, it considered whether it had jurisdiction over an interlocutory appeal of an order denying qualified immunity. Second, it considered whether the board of education was a proper party to the appeal.

On the first issue, the appellate court acknowledged that while it was true that denials of summary judgment were generally not subject to appeal in interlocutory orders, a denial of qualified immunity could be immediately appealed if the denial turned solely on issues of law. Id. The appellate court further explained that because the appeal accepted Hayes’s version of the facts and exclusively raised legal issues, it properly held jurisdiction. 2026 WL 1488048 at *3. In response, Hayes asserted that because the district court found issues of material fact on the retaliation claim, the matter of qualified immunity was not a purely legal issue. However, the appellate court found that the district court’s denial of qualified immunity was based exclusively on caselaw and not on any issue of fact. Id.

As to the second jurisdictional issue on appeal, the appellate court addressed whether the board was a proper party to the appeal, given that qualified immunity is a personal defense unavailable to governmental entities like the board. 2026 WL 1488048 at *4. The board argued that its participation was necessary to avoid inconsistent verdicts and because it could be subject to indemnification obligations arising from any judgment against Lyons. Id. The appellate court disagreed, finding that Hayes’s claim against the board was based on Lyons’s actions in his capacity as policymaker. Consequently, even if Lyons was entitled to qualified immunity, that determination would not affect the board’s potential liability for unconstitutional actions taken by a policymaking employee. Id. Accordingly, the appellate court rejected the board’s argument regarding the risk of inconsistent verdicts. 2026 WL 1488048 at *5. The appellate court ultimately rejected the board’s assertion that the qualified immunity claim was “inextricably intertwined” with Hayes’s claims against the board, determined that the board’s claim of potential indemnification obligations was insufficient to establish jurisdiction, and dismissed the board from the appeal. Id.

The appellate court then addressed the qualified immunity claim on its merits by invoking the two-pronged standard set forth in Ashcroft v. al-Kidd, 563 U.S. 731, 179 L.Ed.2d 1149, 131 S.Ct. 2074 (2011). Under the first prong, a plaintiff must clearly identify a constitutional right that was violated; under the second prong, the right must be clearly established by existing precedent. Hayes asserted, and the district court agreed, that individuals “enjoy a First Amendment right to be free from a public official’s retaliatory speech. . .intimating that punishment, sanction or adverse regulatory action will imminently follow.” 2026 WL 1488048 at *5. Lyons did not contest the district court’s interpretation of the facts and instead focused on whether existing precedent clearly established that his conduct violated Hayes’s constitutional rights. 2026 WL 1488048 at *6. The appellate court in turn assumed without deciding that the emails could be construed as a violation of the plaintiff’s First Amendment right to free speech. Id. In determining whether it was “sufficiently clear that a reasonable official would understand that what he [was] doing violated [the plaintiff’s] right,” the appellate court found the situation required comparing the facts of the complaint to the established law. Id., quoting Anderson v. Creighton, 483 U.S. 635, 97 L.Ed.2d 523, 107 S.Ct. 3034, 3039 (1987). Citing the standard set forth in Zorn v. Linton, 146 S. Ct. 926, 930 (2026), the appellate court established that “[t]he relevant precedent must define the right with a ‘high degree of specificity’ so that ‘every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.’ ” 2026 WL 1488048 at *6. The appellate court further explained that this meant that the caselaw had to be so clear that if Lyons read it before sending the email, he would have no doubt that his actions were unconstitutional. The court distinguished Lyons’s email from Hayes’s cited precedent, noting that those cases involved direct threats of government punishment or sanctions, whereas Lyons’s email expressly left any responsive action to the college. 2026 WL 1488048 at *7. Therefore, the appellate court concluded that existing precedent did not clearly establish that the email violated Hayes’s rights under the First Amendment, and it reversed the district court’s denial of qualified immunity.

For more information about government law, see SCHOOL LAW: PERSONNEL AND STUDENT ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Laura earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

Excerpted from §§10.3 – 10.6 of Katie E. Ngo, Ch. 10, Hospital Districts, of SPECIAL DISTRICTS (IICLE^®, 2026)

The Hospital District Law, 70 ILCS 910/1, et seq., allows for the creation, incorporation, and management of a “hospital district,” which is defined as “a municipal corporation created and established under Section 4 of [the Law].” 70 ILCS 910/3(e). Following its creation and incorporation pursuant to the Law, a hospital district may “exercise the powers . . . granted [by the Law] or necessarily implied.” 70 ILCS 910/4. Hospital districts “may include municipalities or territory not in municipalities or both or territory in one or more counties” in counties with one million or fewer inhabitants. Id. “The territory of any municipality shall not be divided and the territory contained within the corporate limits of an existing Hospital District shall not be incorporated in another Hospital District.” Id.

Voting Requirements and Procedure

In order to present a petition for creation of a hospital district to the voters, certain procedural steps must be followed. First, a petition requesting the formation of a hospital district is filed with the circuit clerk. The petition must be signed by a minimum of 2,500 voters or ten percent of the voters residing within the area of a proposed hospital district, whichever number is greater. The petition is addressed to the circuit court of the county. 70 ILCS 910/5. There are additional requirements when the proposed area for the district straddles the border of one or more counties or townships. Id.

Once a petition is filed, the circuit court then sets the petition for hearing no less than 30 days and no more than 40 days after the date of filing. Notice of the hearing is to be published on 3 separate days in 1 or more newspapers having a general circulation within the territory proposed to be incorporated as a hospital district. The first publication must be at least 20 days prior to the date set for the hearing. If there is no such newspaper, the notice must be posted in 10 of the most public places in such territory. Id.

If the requirements of the Hospital District Law are met following the hearing, the circuit court must enter an order submitting the matter to referendum vote in accordance with the general election law. 70 ILCS 910/6.

Section 7 of the Law provides that the proposition to create a hospital district shall be in substantially the following form:

If a majority of the voters approve the petition, the district is established and the Secretary of State issues a certificate of incorporation to be recorded in the office of the county recorder. 70 ILCS 910/8, 910/9.

A district may be expanded by annexation. A petition for annexation of land to a hospital district must be signed by not less than 10 percent of the voters, or 50 voters, whichever is fewer, residing within the territory. 70 ILCS 910/10. Here too, if the requirements of the law are met, the court shall certify the proposition to the proper election officials, who in turn shall submit the question to the vote at the election in accordance with the general election law. Id. A majority vote is required to pass the annexation measure. Id.

Section 10 of the Law provides that the proposition for annexation shall be in substantially the following form:

Additionally, land that was previously annexed into the district, or some portion thereof, may be detached from the district if (1) within 60 days after the entry of the order establishing the district, at least 50 percent of the legal voters residing in the proposed area file a petition with the circuit court; (2) following a hearing, the court determines the petition is sufficient and submits the matter to voters; and (3) a majority of voters approve the petition. Id.

Section 10 provides that the proposition for detachment shall be in substantially the following form:

Board of Directors

A hospital district is governed by a board of directors with nine members, who are appointed by the presiding officer of the county board with the advice and consent of the county board. 70 ILCS 910/11. If the hospital district is located in more than one county, the number of directors who are residents of a county should be proportionate to the number of residents in the district who reside in that county, as near as practicable. Id.

Qualifications, Terms of Office, and Removal of Directors

Directors are appointed to three-year terms, must reside within the hospital district, and “should be selected because of [their] particular interest in the field of public health.” 70 ILCS 910/11. Directors may not be “in any manner financially interested” directly or indirectly in any contract or work on which they may be required to vote. 50 ILCS 105/3. See 70 ILCS 910/13(a). However, at least one member of the board of directors may be a member of a district hospital medical staff (e.g., a physician who has privileges at the hospital). 70 ILCS 910/13(a-5).

If the county board or other appointing authority for any director has reason to believe that they may be disqualified, guilty of misconduct or malfeasance in office, or unwilling or unable to act, then the appointing authority shall send a notice to the director to show cause why they should not be removed from office. 70 ILCS 910/13(b). If a hearing given by the circuit court results in a finding that the charge should be sustained, then the court shall remove the director from office. Id.

Katie E. Ngo, Tressler LLP, in Bolingbrook

Katie E. Ngo is Senior Counsel at Tressler LLP, in Bolingbrook, where she concentrates her practice in local government, labor and employment, and school districts. She is a member of the Labor and Employment Relations Association, the Illinois Municipal League, and the Illinois Council of School Attorneys. She received her B.A. from Angelo State University and her J.D. from Chicago-Kent College of Law.

In a hot real estate market with low inventory, such as the one many of us are presently experiencing, the sales price that buyers are willing to pay can quickly soar above recent comparable sales, leaving transactions vulnerable to failure due to appraised values coming in lower than the agreed purchase price. Typically, an appraisal contingency allows buyers to walk away from a deal rather than cover the gap between the appraised value and the contract purchase price. However, in a hot market, parties often negotiate an appraisal gap clause in which buyers agree to pay the difference between a low appraised value and the agreed purchase price, essentially waiving an appraisal contingency up to a specific dollar amount in order to cover any gap. Such a clause protects both sides from a deal falling through and makes a buyer’s offer significantly more attractive in multiple-offer bidding wars.

This month the Second District in Wolff v. Edidin, 2026 IL App (2d) 250316-U, analyzes what happens when a seller, seemingly acting in breach of contract and in bad faith, refuses to abide by the agreed terms of an appraisal gap clause, threatening contract termination and forcing the buyer — “under protest” — to close the transaction at a much higher price? In other words, what happens when an appraisal gap clause runs into the merger doctrine?

Facts

Mark A. Wolff agreed to purchase Scott and Marysue Edidin’s home for $10,000 more than its appraised value, capped at $425,000. 2026 IL App (2d) 250316-U at ¶5. For the sake of expediency, the Edidins elected to proceed with a desk appraisal rather than an in-person inspection. Id.The result of this appraisal valued the residence at $380,000. 2026 IL App (2d) 250316-U at ¶6. Under the parties’ agreed appraisal gap clause, Wolff sent the Edidins an addendum setting the purchase price at $390,000, which the Edidins rejected, threatening to terminate the contract. Id.

Wolff’s lender then ordered a second, in-person appraisal, which valued the residence at $405,000. Id. In compliance with the parties’ appraisal gap clause, Wolff sent a second addendum setting the purchase price at $415,000, which the Edidins again rejected. 2026 IL App (2d) 250316-U at ¶7. In response, the Edidins gave Wolff two options: (1) buy the property immediately for $425,000 or (2) wait four months to close and pay $419,000. Id. Wolff elected to close the transaction “under protest” for $425,000. Id.

After purchasing the Edidin’s home, Wolff sued them, alleging that the Edidins had breached the parties’ appraisal gap clause and acted in bad faith by failing to sell him the home for $390,000 following the initial desk appraisal and, as a result, he was entitled to $35,000 in damages, representing the difference between what he believed he should have paid and the final purchase price. 2026 IL App (2d) 250316-U at ¶8.

In response, the Edidins filed their answer and subsequent motion for judgment on the pleadings, raising the merger doctrine as an affirmative defense, arguing that once the sale closed and the deed was delivered, all prior agreements merged into the final deed, leaving no enforceable right to a lower purchase price. 2026 IL App (2d) 250316‑U at ¶¶10 – 11. The trial court ultimately agreed, granting judgment on the pleadings in favor of the Edidins, as well as awarding them $16,368 in fees and costs pursuant to the fee-shifting provision in the sales contract. 2026 IL App (2d) 250316-U at ¶¶13 – 16. Wolff timely appealed. Id.

Appellate Court

The appellate court, in its de novo review of the lower court’s proceedings, upheld the judgment in favor of the Edidins. The appellate court first noted that “[t]he merger doctrine is a ‘well established’ doctrine in Illinois providing that ‘all prior agreements between a buyer and a seller are merged in the deed upon its acceptance.’ ” 2026 IL App (2d) 250316-U at ¶25, citing Czarobski v. Lata, 227 Ill.2d 364, 882 N.E.2d 536, 540, 317 Ill.Dec. 656 (2008). “Thus, upon closing a real estate transaction, ‘[t]he deed supersedes the [earlier] provisions of the real estate contract and becomes the only binding instrument between the parties.’ ” Id.

Here, Wolff alleged that the Edidins breached the parties’ appraisal gap clause and acted in bad faith. 2026 IL App (2d) 250316-U at ¶¶26 – 27. In turn, the Edidins raised the merger doctrine as an affirmative defense, arguing that Wolff’s claims of bad faith and duress were not independent of the conveyance and were therefore merged into the deed at closing, thereby rendering them barred and unenforceable once the deed had been delivered to Wolff. Id. Ultimately, the appellate court found as a matter of law that the parties’ intent, as reflected in the plain language of the closing documents, supported merger of Wolff’s claims into the deed he received at closing. Id. The appellate court further noted that the Edidins’ denials concerning Wolff’s claims regarding their “performance, intent, good faith, or otherwise cannot create genuine issues of material fact[ ] because the dispositive issue ultimately turn[ed] on the legal effect of the parties’ closing documents.” [Emphasis added.] Id.

Similarly, the appellate court also found Wolff’s claims of duress also lacked merit, having no basis in the record. 2026 IL App (2d) 250316-U at ¶28. Specifically, while Wolff claimed to have closed the transaction under duress, it was undisputed that he voluntarily entered into negotiations to purchase the home to begin with. 2026 IL App (2d) 250316-U at ¶29. At best, his actions were guided by economic pressure and not any type of actionable duress. Id.

Finally, the appellate court also rejected Wolff’s challenges to the trial court’s handling of its award of attorneys’ fees. 2026 IL App (2d) 250316-U at ¶¶33 – 35. Because Wolff failed to provide a sufficient appellate record — most notably, no report of proceedings — the appellate court presumed the trial court acted correctly and found the remaining arguments forfeited. Id. Emphasizing that it was Wolff’s burden to provide a complete record for review, the appellate court affirmed both the judgment on the pleadings and the fee award in full. Id.

Acknowledging that hindsight is 20/20, it would have been better for Wolff to sue for specific performance or claim breach of contract and not close his transaction with the Edidins once they clearly refused to abide by the parties’ agreement. By closing “under protest,” Wolff essentially waived the protection of the appraisal gap clause and any of his claims, paying $35,000 more than he should have for the property and ending up having to cover another $16,000 in their fees and costs.

For more information about real estate law, see PREDATORY MORTGAGE LENDING AND SERVICING (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

Our June FLASHPOINTS Author Spotlight recognizes Phillip Lenzini, who most recently served as a contributing author of SPECIAL DISTRICTS (IICLE^®, 2026).

Lenzini identified IICLE as a valuable resource early in his 50-year career: “Long before I specialized my practice in Illinois local governments, I recognized the programs, and especially the materials produced by IICLE on a wide range of legal topics, were a critical part of a successful practice.” His firm has shared that view as well, retaining IICLE publications in their law library well before Illinois mandated continuing legal education and as early as Lenzini’s start as an attorney.

Lenzini remarked, “I was pleased when many years ago I was first asked by an IICLE editor to be a contributing author and for every edition I’ve been involved in since. Those resources are of the highest quality and among the most useful and respected materials we have in Illinois in my view.”

Lenzini is Of Counsel at Heyl, Royster, Voelker & Allen, P.C., in Peoria, where he focuses his practice on local government and public libraries. Lenzini is a member of the Illinois State Bar Association and has been the Illinois Library Association’s Library Luminary Honoree. He received his BA magna cum laude from Southern Illinois University and his JD from Southern Illinois University School of Law. His law school later named him Alumnus of the Year and gave him its Alumni Achievement Award.