Appeals panel remands man's suit on fraud claim over beer promotion

By Andrew Thomason | Sep 23, 2013


A man who claims he was denied a $1 million prize stemming from a contest promoting Miller beer may still pursue his common law fraud allegation, an appeals panel ruled.

In a Sept. 19 unpublished order, the First District Appellate Court affirmed in part and reversed in part Cook County Circuit Court Judge Irwin Solganick’s decision in the suit, remanding the matter for further proceedings.

Justice Nathaniel Howse Jr. delivered the court’s order. Justices Stuart Palmer and William Taylor concurred.

The case originated from Evan Evashenk’s visit to Coach’s Corner bar in Orland Park in June 2007.

The bar was hosting a promotion for the co-defendant, Miller Brewing Co., called “See the Lite.” The promotion was operated by co-defendant Team Enterprises Inc.

Evashenk testified that he was asked by an employee of Team Enterprises (during that specific promotion the employees were called Miller Girls) if he would like to win a prize.

He responded yes and the Miller Girl handed him a sticker with an obscured message and a decoder to read what his prize would be.

The sticker read “this summer I want to” above the coded area and “win a million dollars” inside the coded area, according to testimony from Team Enterprises employees and Evashenk.

Evashenk testified he believed the sticker meant he won $1 million and asked the Miller Girl about it. She told Evashenk he received the ticket in error because it was for a different promotion.

The Miller Girl’s supervisor testified that she told Evashenk she created the sticker for a different promotion and that he had not actually won $1 million.

Evashenk filed his initial complaint in November 2007, claiming breach of contract, violation of the Deceptive Practices Act, specific performance, equitable estoppel, common law fraud, negligent misrepresentation and battery.

He filed for partial summary judgment and the defendants filed for summary judgment.

The court granted the defendants' request for summary judgment regarding Evashenk's battery, negligent misrepresentation and Deceptive Practices Act claims, and denied summary judgment for the breach of contract and common law fraud claims.

Evashenk voluntarily dropped the specific performance and equitable estoppel claims and amended his complaint to only include the breach of contract and common law fraud claims.

The day before the trial was set to begin, the defendants filed a joint motion to dismiss to the claims, or in the alternative, have Evashenk choose which claim he wanted to pursue.

“Since there's no axiom in the law that you cannot sue for contract and tort on the same cause of action, the motion to dismiss is granted ... the plaintiff can elect which they wish to sue under,” Solganick, the trial judge, concluded in ruling in the defendants’ favor.

Evashenk chose to pursue the breach of contract claim for the alleged $1 million prize, on which Solganick eventually granted the defendants a directed verdict.

The appeals court agreed with the lower court’s directed verdict decision, but reversed and remanded for further proceedings on its decision to force Evashenk to elect a remedy.

Solganick determined in his directed verdict ruling that Evashenk never met the burden of proof for his breach of contract claim, finding that Evashenk’s proof that a contract was ever formed insufficient.

In the appellate court’s order that upheld Solganick’s decision to grant a directed verdict to the defendants, Howse wrote that Evashenk “never provided any consideration in receipt of the sticker. He merely accepted the sticker in exchange for nothing. Nothing cannot legally be considered consideration.”

The panel further held that Solganick erred in his decision to force Evashenk to choose between pursuing his breach of contract claim and his common law fraud claim.

Solganick’s decision for the election of remedies revolved around section 2-615 of the Code of Civil Procedure, but Howse wrote that sections 2-604 and 2-613(b) of the Code of Civil Procedure “permit alternative pleading, even where the counts are contradictory or inconsistent.”

Evashenk did not claim inconsistent remedies, Howse goes on to write in the court’s order.

“Rather, plaintiff claimed money damages--the million dollars plus costs associated with bringing the lawsuit--under different theories of liability, breach of contract and fraud.” Howse wrote.

“As such,” he added, “if the jury found in favor of plaintiff under either of the conflicting theories, it would then be asked to determine what money damages plaintiff is entitled to receive.”

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