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Cases handed down September 1-December 31, 1998
CIVIL CASES
2-1401 PETITION
Malkin v. Malkin, No. 1-96-3893 (1st Dist. 11/10/98). Cook Co. Rev'd.
Where wife knowingly and deliberately waived right to hearing on attorneys' fees under § 508 of Illinois Marriage and Dissolution of Marriage Act, made only conclusory allegation that her attorneys' fees were excessive, and failed to show undue influence, other breach of attorneys' fiduciary duties, or due diligence, circuit court should not have vacated portion of judgment for dissolution of marriage.
S. C. Vaughn Oil Co. v. Caldwell, Troutt, et al. -rec'd. 11/26/96, No. 5-95-0335 (5th Dist. 10/23/98). Marion Co. Rev'd and remanded.
While not a model of clarity, plaintiffs' 2-1401 petition was sufficient to survive motion to dismiss; however, circuit court abused discretion in failing to hold evidentiary hearing where parties' affidavits were in substantial conflict on whether plaintiffs exercised due diligence.
2-615
Scott v. Aldi, Inc., No. 1-97-1616 (1st Dist. 11/13/98). Cook Co. Rev'd and remanded.
Trial court erred in dismissing civil conspiracy count of complaint where plaintiff alleged that defendant's involvement in conspiracy caused her to travel in unlawfully operated, uninsured for-hire vehicle; plaintiff's use of word "indemnify" did not render complaint deficient.
ADMINISTRATIVE REVIEW
Carver v. Adams County Sheriff, No. 4-98-0180 (4th Dist. 10/20/98). Adams Co. Aff'd.
Where plaintiff failed to have summonses issued within 35 days of Sheriff's Merit Commission's serving its decision upon her, as required by 735 ILCS 5/3-103 and 3-113 (West 1996), court properly dismissed complaint; Administrative Review Act allows for review of administrative decisions only when part seeking review strictly complies with its procedures, and neither her attorney's assumption that circuit clerk would issue summonses for her nor Commission's failure to notify her of her appeal right tolled statutory limitations period.
Hamwi v. Zollar, No. 1-96-2972 (1st Dist. 10/9/98). Cook Co. Aff'd.
Department of Professional Regulation's denial of plaintiff's petition to expunge prior disciplinary action, based on criminal conviction in state of Ohio that later was expunged, was not arbitrary or capricious.
Maun v. Department of Professional Regulation, No. 4-98-0069 (4th Dist. 9/3/98 nunc pro tunc). Sangamon Co. Aff'd.
§ 22(A)(25) of Medical Practice Act of 1987, 225 ILCS 60/22(A)(25), is not unconstitutional for vagueness in that terms "gross," "wilful," "continued," and "overcharging" are not ill-defined and rather have commonly understood meanings sufficient to inform physicians what conduct is prohibited, nor is it unconstitutional delegation of legislative authority; nor was Department required to enact rules establishing standard of conduct of statutory standard for standard to be enforceable; nor was Department's decision that physician violated statute against manifest weight of evidence.
Petersen v. Chicago Plan Commission, No. 1-97-4085 (1st Dist. 12/28/98). Cook Co. Aff'd.
Because plaintiffs had no constitutionally protected property interest in hearing before Plan Commission on museum expansion, which was fact-gathering proceeding and not full adversarial hearing, all aspects of due process protection were not required, and inability to conduct cross-examination did not constitute denial of due process; Commission's minutes of meeting setting forth its decision about museum's application constituted written determination within meaning of Chicago Municipal Code § 16-4-100(e) (12/11/91); Commission was not estopped from considering museum's application by condition it imposed on museum 12 years earlier; evidence supported Commission's finding that museum's application complied with municipal ordinance for protection of city's lakefront.
Schmeier v. Chicago Park District No. 1-96-3054 (1st Dist. September 30, 1998)
Although order of defendant's Personnel Board commuting plaintiff's termination to suspension contained no factual findings and did not state what provisions of defendant's Code of Conduct it determined plaintiff had violated, nor pursuant to which provision of defendant's guidelines for discipline discipline was imposed, Administrative Procedure Act (5 ILCS 100/1-1 et seq.), which imposes requirement of factual findings in agency's decision, does not apply to defendant because defendant is a unit of local government and is therefore specifically exempted from APA's provisions; while inferring findings of fact from result would be improper, the only possible factual finding which would have sufficed to uphold discipline imposed by Board, plaintiff's alleged threats against coworkers, was against manifest weight of evidence, so that Board's order suspending plaintiff and imposing other discipline was abuse of discretion.
AGENCY
Brandt v. Time Insurance Co., Nos. 1-97-2913, 1-98-0143 (cons.) (1st Dist. 12/10/98). Cook Co. No. 1-97-2913--aff'd; No. 1-98-0143--rev'd and remanded.
Because insurer had no duty under Illinois law to investigate truthfulness of answers given to questions asked on application for insurance, plaintiff might not base claims for fraud on allegation that insurer engaged in post-claim underwriting, so that trial court's dismissal of those counts was proper; question of fact was apparent on record as to whether insurance broker who completed application with false information acted as insurer's agent, and, thus, whether his knowledge of misrepresentation could be imputed to insurer, so that trial court erred in entering summary judgment on breach of contract and Insurance Code violation counts in insurer's favor; version of 215 ILCS 5/154 prior to effective date of P.A. 89-413, which eliminated requirement that copy of application be attached to insurance policy before a misrepresentation contained therein could be asserted as a basis to avoid the policy, applied to plaintiff's pre-1996 cause of action for violation of Insurance Code, and trial court's application of amended version of statute was erroneous.
James v. Ingalls Memorial Hospital No. 1-97-2422 (1st Dist. September 30, 1998) Cook Co. Aff'd.
Where patient's consent to treatment form stated that physicians on staff at defendant hospital are not employees or agents or hospital, but independent medical practitioners permitted to use hospital facilities, plaintiff failed to show that hospital or its agent acted in manner that would lead reasonable person to conclude that doctor was employee or agent of hospital, thus failing to establish first element of action under doctrine of apparent authority; plaintiff also failed to establish burden of establishing reliance because she did not in fact rely on any representations of hospital or doctor in going to hospital.
Solo Sales, Inc. v. North America OMCG, Inc., No. 2-97-1151 (2d Dist. 11/5/98). Winnebago Co. Aff'd.
Record evidence demonstrated that plaintiff manufacturer's representative was entitled to recover sales commissions received after termination of agency relationship under equitable procuring cause rule.
AMENDMENT OF PLEADINGS
Miller v. Pinnacle Door Co., Inc., No. 4-98-0183 (4th Dist. 11/25/98). McLean Co. Aff'd.
Trial court did not abuse discretion in allowing defendant garage door opener installer to amend answer on 2nd day of trial to allege that plaintiff was contributorily negligent in operating release cord, where amendment arose from plaintiff's own testimony on first day of trial and therefore could not have been surprised by amendment.
APPEALS
(no link available) Cambridge Investment Group v. First Chicago Bank of Ravenswood, No. 1-96-1475 (1st Dist. 11/10/98). Cook Co. Appeal dismissed.
Where bankruptcy court determined that property constituted property of debtor's estate, appellant's motion to reconsider judgment that property tax sale was sale in error and notice of appeal were filed in violation of automatic stay of § 362(a)(3) of Bankruptcy Code and were therefore void, requiring dismissal of appeal.
City of Chicago Heights v. Living Word Outreach Full Gospel Church and Ministries, Inc., Nos. 1-97-4627 and 1-98-0929 (cons.) (1st Dist. 12/16/98). Cook Co. Vacated in part; rev'd.
1. Trial court's order finding that city's denial of church's special use permit application was not proper was final and appealable order despite court's failure to mention counterclaim or rule on constitutional claims.
2. Trial court erred in finding that city improperly denied church's special use permit application to locate in B-2 commercial zone, since church has no constitutional right to be free from reasonable zoning regulations, and arguable minimal burden on church's exercise of its religion was justified by broad public interest in maintaining sound tax system.
Corsi v. Corsi, No. 1-97-4233 (1st Dist. 12/15/98). Cook Co. Aff'd in part, rev'd in part; remanded.
1. Where trial court dismissed all four counts of plaintiffs' second amended complaint with prejudice, judgment was final, so that appellate court lacked jurisdiction due to plaintiffs' failure to file posttrial motion as to all counts or to file timely notice of appeal.
2. Trial court erred in dismissing third amended complaint alleging breach of trust and inadequacy of accountings; such allegations were sufficient to support motion to compel an accounting.
Environmental Control Systems, Inc. v. Long, No. 5-97-0690 (5th Dist. 12/9/98). Madison Co. Aff'd in part, rev'd in part, remanded.
By abandoning implied indemnity claims in 3rd amended complaint after trial court had dismissed those counts, plaintiffs waived objections to dismissal order as to those counts; date of accrual of plaintiffs' cause of action for legal malpractice was not clear-cut on record, leaving question of fact, so that summary judgment was improper; in any event, defendant attorneys were equitably estopped from raising statute of limitations defense because their statements to plaintiffs that there was a "good chance of success" and "reasonable opportunity to prevail on the merits" on appeal and "good chance that the Supreme Court will take the case" after appeal was lost amounted to continuous representations of appeal's likelihood of success, lulling plaintiffs into false sense of security.
Habitat Company v. McClure, Nos. 1-96-4145, 1-97-0295, 1-97-1972 (cons.) (1st Dist. 11/20/98). Cook Co. Aff'd in part, rev/d in part, and atty's fees vacated.
Court lacked jurisdiction over appeal No. 1-96-4145 because plaintiff's timely petition for fees rendered judgment appealed from nonfinal; defendant's notice of appeal, which referred only generally to order, sufficed to preserve issue of whether he was entitled to jury trial; defendant was not entitled to jury trial on counterclaim to eviction under Illinois Human Rights Act; trial court's ruling against defendant on handicap claim under Human Rights Act was not against manifest weight of evidence; defendant's mere failure to carry burden of proof at trial was not sanctionable and did not warrant award of attorney's fees.
McCarthy v. Denkovski No. 1-96-2344, 1-96-3712 (Cons.) (1st Dist. September 30, 1998) Cook Co. Dismissed.
Plaintiff's notice of appeal in case no. 1-96-2344 was premature and of no effect, having been filed prior to disposition of Rule 303 post-trial motion; amended notice of appeal was not filed until 75 days after entry of order disposing of post-trial motion and was therefore also untimely, requiring dismissal of appeal for lack of jurisdiction.
Defendants' brief contained only arguments in response to plaintiff's brief and contained no argument or authority regarding issues raised in cross- appeal, warranting dismissal of cross-appeal based on failure to comply with SCR 341 and 343.
In Re T.M., J.M., K.C., and S.C., No. 1-98-2318 (1st Dist. 12/14/98). Cook Co. Appeal dismissed for lack of jurisdiction.
Supervised visitation order modifying prior supervised visitation order in juvenile court proceeding failed to meet standards of finality under SCR 303 or 307(a)(1), so that SCR 306(a)(5) required dismissal.
Robertson v. Winnebago Co. Forest Preserve District, Nos. 2-97-1160, 2-97-1161 (cons.)(2d Dist. 11/20/98). Winnebago Co. Dismissed in part; aff'd in part.
Although plaintiffs' postjudgment motion was entitled motion for reconsideration, to vacate, and for leave to file amended complaint, motion's substance was no more than motion for leave to file amended complaint, which was not valid postjudgment motion capable of extending time for filing notice of appeal under SCR 303(a)(1), so that appeal filed more than 30 days after order dismissing wrongful death claim with prejudice was dismissed for lack of jurisdiction; consequently, plaintiff's survival claim was barred by res judicata.
ARBITRATION
Father & Sons, Inc. v. Taylor, No. 1-97-0297 (1st Dist. 11/13/98). Cook Co. Aff'd.
Arbitrator did not exceed authority in making determination that plaintiff violated Illinois Consumer Fraud and Deceptive Business Practices Act or in awarding attorney fees in suit on residential construction contract and did not act improperly in barring plaintiff's agent from testifying, where plaintiff had maintained prior to and throughout arbitration hearing that agent was not affiliated with it and was merely independent contractor.
George v. Ospalik No. 3-97-0967 (3d Dist. September 14, 1998) Will Co. Aff'd in part; vacated in part.
1. Plaintiffs were not entitled to voluntary dismissal following arbitration
award without rejecting award under Supreme Court Rule 93(a). 2. Trial court had no authority under Supreme Court Rule 92(c) to enter judgment on arbitration award on own motion, requiring vacation of judgment.
MBNA American Bank, N.A. v. Cardoso, No. 1-98-1112 (1st Dist. 12/31/98). Cook Co. Aff'd.
Because arbitration panel should dispose of all claims and arbitration panel, not the court, possesses direct knowledge necessary to rule on attorney fee requests, defendant in collection action who prevailed on counterclaim under Credit Card Liability Act, 815 ILCS 145/1(b) (West 1996) should have presented claim for attorney fees to arbitration panel, so that circuit court correctly denied defendant fees.
State Farm Insurance Company v. Kazakova, No. 1-97-0125 (1st Dist. 10/14/98). Rev'd.
Trial court erred in barring non-English-speaking defendant from rejecting arbitration award, since her failure to to provide foreign-language interpreter so she could testify at arbitration was not a failure to participate meaningfully and in good faith and violated neither Supreme Court Rules 91(b) nor 237.
ATTORNEY'S FEES
Habitat Company v. McClure, Nos. 1-96-4145, 1-97-0295, 1-97-1972 (cons.) (1st Dist. 11/20/98). Cook Co. Aff'd in part, rev/d in part, and atty's fees vacated.
Court lacked jurisdiction over appeal No. 1-96-4145 because plaintiff's timely petition for fees rendered judgment appealed from nonfinal; defendant's notice of appeal, which referred only generally to order, sufficed to preserve issue of whether he was entitled to jury trial; defendant was not entitled to jury trial on counterclaim to eviction under Illinois Human Rights Act; trial court's ruling against defendant on handicap claim under Human Rights Act was not against manifest weight of evidence; defendant's mere failure to carry burden of proof at trial was not sanctionable and did not warrant award of attorney's fees.
Kaufman, Litwin and Feinstein v. Edgar, No. 1-97-2455 (1st Dist. 12/1/98). Cook Co. Aff'd.
Attorney's fee provisions of Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/501, 503, 508 (West 1996) do not violate separation of powers doctrine, procedural or substantive due process, Commerce Clause, or special legislation prohibition, and are not unconstitutional.
Lee v. Lee, Nos. 1-97-0998 and 1-97-0999 (cons.) (1st Dist. 12/18/98). Cook Co. Rev'd and remanded.
In divorce proceeding, where parties entered into marital settlement agreement providing that each would be responsible for own attorney's fees, but at prove-up wife testified that she had no ability to pay prior attorneys' fees and court refused to consider prior counsels' fee petitions or take any evidence on parties' financial situations and relative ability to pay, agreement was insufficient to deprive prior counsel of right to pursue fee award against husband, and circuit court erred in striking fee petitions; parties might not waive counsels' statutory right to pursue fees claimagainst husband or to waive entitlement to hearing on issue under 750 ILCS 5/508.
In Re Marriage of Lucht No. 1-97-2937 (1st Dist. September 30, 1998)
Attorney may not file a petition for attorney fees in a divorce action after the case has been voluntarily dismissed, even though the petition is filed within 30 days of the dismissal.
5th Dist. In re Estate of Pfoertner, No. 5-97-1041 (9/16/98). St. Clair Co. Aff'd in part, rev'd in part and rem'd w/dir.
"Common fund doctrine" applied to request for fees by atty. who preserved estate for heirs by successfully contesting will; rem'd for introduction of evidence as to appropriate amount of atty. fees and costs. 7 pp.
BREACH OF CONTRACT
Golden v. McDermott, Will & Emery No. 1-97-3799 (1st Dist. September 30, 1998) (Modified on Denial of Rehearing, 11/10/98). Cook Co. Aff'd.
1. While defendant law firm did stand in fiduciary relationship to plaintiff former partner at time of severance agreement, at least for purposes of private accounting, firm's alleged misrepresentations were not material to agreement, nor did firm's giving plaintiff option to resign instead of being fired constitute duress, and in any event plaintiff ratified agreement by retaining consideration for agreement for over 5 years.
2. Plaintiff's noncontract claims would be barred by laches even if not barred by ratification of release because he learned around time of signing agreement, 4 years before filing suit, that proper procedures were not followed in expulsion from partnership.
1st Dist. Hirsch v. Feuer, No. 1-97-4480 (10/16/98). Cook Co. Aff'd in part, rev'd in part.
Complaint set forth basic facts for causes of action for breach of contract and violation of Property Disclosure Act (765 ILCS 77/20 (West 1994)) in spite of mixing conclusions with factual assertions but failed to state cause of action for fraud with sufficient specificity; court did not abuse discretion in refusing to allow plaintiffs to file 6th amended complaint.
2d Dist. Sharon Leasing, Inc. v. Phil Terese Transportation Ltd., No. 3-97-0777 (10/14/98). DuPage Co. Aff'd.
While trial court erred in holding that plaintiff had burden to prove standing as part of prima facie case, court correctly found that plaintiff failed to establish damage element of breach of contract and tortious interference with contract claims.
CHILD CUSTODY
In Re Marriage of Houghton, No. 4-98-0168 (4th Dist. 11/16/98). Adams Co. Rev'd.
Trial court's finding that child's maternal grandmother had standing under 750 ILCS 5/601(b)(2) because father had voluntarily relinquished custody of child was against manifest weight of evidence.
CHILD SUPPORT
In Re Marriage of Heldebrandt, No. 4-98-0225 (4th Dist. 12/2/98). Sangamon Co. Aff'd.
Children's resistance to visitation with father and alleged formation of new family unit with their mother did not justify modification of noncustodial father's child support obligation.
In Re Marriage of Koenigsknecht, No. 1-97-4196 (1st Dist. 12/21/98). Cook Co. Aff'd in part, rev'd in part.
Where original amount of child support was below statutory guideline and court found that children would have enjoyed different standard of living had marriage not been dissolved, and that that fact constituted substantial change in circumstances, court did not abuse discretion in raising child support to conform to statutory percentage; however, where court found that wife's job searching efforts were insufficient, court erred in extending maintenance.
In Re Marriage of Steinberg, No. 1-97-0834 (1st Dist. 11/12/98). Cook Co. Aff'd in part, rev'd in part; remanded.
Because trial court retains continuing jurisdiction over child support matters, court had jurisdiction over claim for child support arrearage made seven years after judgment of dissolution; order entered after respondent filed notice of appeal purporting to declare judgment appealed from "null and void" was entered without jurisdiction and had no effect on judgment or appeal; though court erred in ordering child support to be paid as percentage of income per agreed judgment of dissolution, respondent might not collaterally attack judgment five years later on that basis, and respondent's failure to comply with order properly resulted in contempt finding; trial court erred in ruling that it lacked discretion to award interest; court did not err in denying husband's motion to return half of attorney fee, since agreements to split fees between a lawyer and a nonlawyer are against public policy, despite fact that wife is attorney, since wife performed no services for fee; provision in judgment of dissolution requiring husband to pay for daughter's "special activities" is too vague to support finding of contempt.
CHILDHOOD SEXUAL ABUSE
Ferrer v. Kuhl, No. 2-98-0164 and 2-98-0179 (cons.) (2d Dist. 12/18/98). Kane Co. Rev'd and remanded.
Discovery rule should apply to childhood sexual abuse cases where victim represses memories of abuse, so that trial court erred in dismissing complaints which alleged that plaintiff victims first realized that childhood sexual encounters caused their injuries and were filed within 2 years of those realizations.
COLLATERAL SOURCE RULE
First Springfield Bank and Trust v. Galman, No. 4-97-0599 (4th Dist. 11/4/98). Sangamon Co. Aff'd. (Dissent)
1. Driver of illegally parked truck, like any driver, had duty of due care to avoid hitting pedestrian, notwithstanding that plaintiff's decedent was jaywalking, which was foreseeable, so that driver's employer was not entitled to directed verdict on contributory negligence issue.
2. Court declines to decide whether Nuisance Act, 720 ILCS 5/47-5(5), gives rise to private cause of action under circumstances of case because even if it does, award should still be reduced due to plaintiff's decedent's contributory negligence.
3. Defendant introduced no evidence to establish that failure to bring French social security agency, who paid benefits to plaintiff's decedent, into suit resulted in agency's waiver of right of recoupment under French law, so that trial court properly refused to reduce award under collateral source rule.
CONSUMER FRAUD
1st Dist. Cahnman v. Agency Rent-A-Car System, Inc., No. 1-97-0148 (9/8/98). Cook Co. Aff'd.
Consumer fraud action against D-car rental agency properly dism'd; 625 ILCS 5/6-305 does not prohibit D from charging add'l driver fee where party renting auto seeks to permit another individual to drive car. 11 pp.
CONTEMPT
In Re Marriage of Almquist, No. 3-97-0811 (3d Dist. 11/16/98) (modified on denial of rehearing). Will Co. Aff'd.
Admission of tape of husband's telephone visitation with daughter was erroneous to extent of taped conversation, which was covered by eavesdropping statute (720 ILCS 5/14-1 et seq.); however, eavesdropping statute did not prohibit admission of tape to extent it recorded background noise consisting of wife's playing different tape of husband's voice for purpose of interfering with visitation; evidence was sufficient for wife's conviction of indirect criminal contempt for failure to provide telephone visitation.
Keuper v. Beechen, Dill and Sperling Builders, Inc., No. 1-97-1263 (2d Dist. 12/28/98). DuPage Co. Rev'd and remanded.
Circuit court lacked authority to award compensatory damages to plaintiffs in civil contempt proceeding to enforce settlement agreement; court rejects Falcon, Ltd. v. Corr's Natural Beverages, Inc., 173 Ill.App.3d 291 (1988) and federal authority to contrary.
Norwest Mortgage, Inc. v. Ozuna, Nos. 1-98-1481, 1-98-1482, and 1-98-1483 (cons.) (1st Dist. 12/28/98). Cook Co. Aff'd in part, vacated in part and remanded.
Orders of possession obtained in forcible entry and detainer actions were void ab initio only insofar as they concerned defendants generically described therein as "unknown occupants," where record showed that plaintiffs did not substantially comply with 735 ILCS 5/2-413; injunction entered in federal § 1983 case of Rembert v. Sheahan applied only to orders for possession in mortgage foreclosure actions, and not to forcible entry and detainer actions, so that sheriff was not justified in refusing to execute orders for possession in underlying action; contempt judgments vacated because sheriff acted in good faith to obtain review of orders.
CONTRIBUTION
Brock v. Anderson Road Associates, No. 2-97-1282 (2d Dist. 11/17/98). Lake Co. Aff'd.
Policies supporting immunity pursuant to Emergency Medical Services Systems Act, 210 ILCS 50/1 et seq., outweigh those favoring contribution, so that trial court properly dismissed counterclaims for contribution against EMTs and fire department in complaint for negligence.
Cherney v. Soldinger, No. 1-97-3616 (1st Dist. 10/9/98). Cook Co. Rev'd in part.
Unqualified release of one of two parties who caused monetary loss to plaintiffs precludes claim against other party for breach of fiduciary duty.
Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.
Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.
CORPORATIONS
5th Dist. People v. V & M Industries, Inc., No. 5-97-0352 (9/9/98). St. Clair Co. Rev'd and rem'd.
Tr. Ct. erred in refusing to pierce corp. veil in action seeking penalties for violations of 415 ILCS 5/1 et seq. where corp. facade for operation of dominant stockholder as corp. observed no corp. formalities, paid no dividends, and corp. officers and directors nonfunctioning. 16 pp.
CREDIT CARD LIABILITY ACT
MBNA American Bank, N.A. v. Cardoso, No. 1-98-1112 (1st Dist. 12/31/98). Cook Co. Aff'd.
Because arbitration panel should dispose of all claims and arbitration panel, not the court, possesses direct knowledge necessary to rule on attorney fee requests, defendant in collection action who prevailed on counterclaim under Credit Card Liability Act, 815 ILCS 145/1(b) (West 1996) should have presented claim for attorney fees to arbitration panel, so that circuit court correctly denied defendant fees.
DISCOVERY
Avery v. Sabbia, No. 1-97-4166 (1st Dist. 12/1/98). Cook Co. Aff'd.
Trial court did not abuse discretion in granting plaintiff's treating physician's motion for full protective order where it reasonably appeared to court that defendant was abusing discovery process by preserving information not for present case, but for ancillary federal proceeding addressing same issue defendant asserted was relevant to case at bar.
Dufour v. Mobil Oil Corporation, No. 1-97-4187 (11/6/98). Cook Co. (First District) Discovery order aff'd; contempt order vacated.
In Structural Work Act action wherein plaintiff alleged that he could not and did not work as result of injuries, court properly exercised discretion to compel him to comply with discovery requests seeking bank records; conduct of plaintiff's attorney of respectfully refusing to comply with discovery and seeking contempt citation, which was proper procedure to test on appeal court's discovery order, was not contemptuous.
DISCOVERY RULE
Ferrer v. Kuhl, No. 2-98-0164 and 2-98-0179 (cons.) (2d Dist. 12/18/98). Kane Co. Rev'd and remanded.
Discovery rule should apply to childhood sexual abuse cases where victim represses memories of abuse, so that trial court erred in dismissing complaints which alleged that plaintiff victims first realized that childhood sexual encounters caused their injuries and were filed within 2 years of those realizations.
DISQUALIFICATION OF COUNSEL
Hasco, Inc. v. Roche et al. No. 1-97-0837 (1st Dist. September 11, 1998)
Circuit court correctly determined that nature and scope of defendant law firm's representation of plaintiffs were so intertwined with firm's later representation of other parties to raise inference that firm necessarily was privy to confidential information from plaintiffs regarding settlement dispute in litigation, so that firm's continued representation of other parties would constitute violation of Rule 1.9 of Illinois Rules of Professional Conduct.
DISSOLUTION OF MARRIAGE
In Re Marriage of Lucht No. 1-97-2937 (1st Dist. September 30, 1998)
Attorney may not file a petition for attorney fees in a divorce action after the case has been voluntarily dismissed, even though the petition is filed within 30 days of the dismissal.
2d Dist. In Re Marriage of Reppen-Sonneson, Nos. 2-97-1075, 2-97-1197, 2-98-0040, 2-98-0543 cons. (10/14/98). Winnebago Co. Aff'd.Court did not abuse discretion in its apportionment of marital property and wife's attorney fees and determination of child support and maintenance.
DOMESTIC VIOLENCE ACT
Shields v. Fry, No. 4-98-0233 (4th Dist. 11/25/98). Menard Co. Aff'd.
Respondent's conduct of leaving letters on petitioner's car, sending roses to petitioner at work, and leaving messages on petitioner's telephone answering machine professing his love for her, even after petitioner's unequivocal statements to him that she wanted no contact with him, which made petitioner upset and uncomfortable, constituted "harassment" under Domestic Violence Act and supported trial court's order of protection.
DRIVING PRIVILEGES
Freed v. Ryan, No. 1-97-0612 (1st Dist. 11/30/98). Cook Co. Aff'd.
Legislative goals of preventing driving by persons under age of 21 who have consumed alcohol are legitimate and satisfy rational basis test, so that 625 ILCS 5/6-206(a)(10) of Vehicle Code is constitutional as applied to plaintiff who pled guilty to violating local ordinance against representing self as over 21 for purpose of obtaining liquor.
O'Neil v. Ryan, No. 1-98-0082 (1st Dist. 11/12/98). Cook Co. Rev'd.
Plaintiff failed to prove establishment of sufficient ongoing support/recovery program as required by 92 Ill.Admin.Code § 1001.440(b)(3) where he did not attend AA and had only unstructured, sporadic contact with family support group, so that circuit court's reversal of Secretary's denial of petition for reinstatement of driving privileges or RDP was not justified.
EASEMENTS
Independence Tube Corp. v. Radke, No. 3-97-0987 (3d Dist. 11/19/98). LaSalle Co. Aff'd.
Where property buyers were aware of ditches and encroachment when they purchased property, and where encroachment was as old as easement itself, and was open, adverse, continuous and uninterrupted and under claim of right for 20 years, circuit court did not abuse discretion in holding that defendant enjoyed property interest in ditches by virtue of prescriptive easement.
EAVESDROPPING
In Re Marriage of Almquist, No. 3-97-0811 (3d Dist. 11/16/98) (modified on denial of rehearing). Will Co. Aff'd.
Admission of tape of husband's telephone visitation with daughter was erroneous to extent of taped conversation, which was covered by eavesdropping statute (720 ILCS 5/14-1 et seq.); however, eavesdropping statute did not prohibit admission of tape to extent it recorded background noise consisting of wife's playing different tape of husband's voice for purpose of interfering with visitation; evidence was sufficient for wife's conviction of indirect criminal contempt for failure to provide telephone visitation.
ELECTION CODE
Bill v. Education Officers Electoral Board Nos. 1-97-3805, 1-97-3806, 1-97-3807 (cons.) (1st Dist. September 30, 1998) Cook Co. Aff'd.
1. Plaintiffs' failure to name and serve individual members of Board deprived circuit court of subject matter jurisdiction over proceedings.
2. Administrative Review Law does not govern review of Electoral Board decisions, so that petitioners may not amend petition under 735 ILCS 5/3-107(a).
In Re Purported Election of Durkin No. 2-97-0978 (2d Dist. September 25, 1998) Lake Co. Aff'd.
1. Where election authority prepared form absentee ballot applications which did not direct voter to indicate reason for voter's physical incapacity, trial court correctly decided that 185 absentee ballots were legal and should be counted.
2. Where one of major candidates was independent candidate, trial court correctly decided that party affiliation method should not be used to allocate any of illegal votes.
3. Trial court did not abuse discretion in denying petitioner's motion for leave to file first amended petition, where information on which each proposed amendment was based was available to petitioner when he filed previous motions to amend petition and in context of election contest, where matters should proceed with dispatch to conclusion.
ELECTION LAW
5th Dist. Carnell v. Madison County Officers Electoral Board, No. 5-98-0474 (10/16/98). Madison Co. Aff'd.
Board's decision upholding objector's petition, concluding that nomination for State Representative was not made in compliance with Election Code, was supported by law and was not against manifest weight of evidence; Board's failure to adopt clear rules of procedure and definitively identify rules to parties did not violate Code, which does not require any particular procedure, and in any event candidate acquiesced to informal nature of hearing by failure to personally appear and failure of representative to object.
EMERGENCY MEDICAL SERVICES ACT
Brock v. Anderson Road Associates, No. 2-97-1282 (2d Dist. 11/17/98). Lake Co. Aff'd.
Policies supporting immunity pursuant to Emergency Medical Services Systems Act, 210 ILCS 50/1 et seq., outweigh those favoring contribution, so that trial court properly dismissed counterclaims for contribution against EMTs and fire department in complaint for negligence.
EMPLOYMENT
Schmeier v. Chicago Park District No. 1-96-3054 (1st Dist. September 30, 1998)
Although order of defendant's Personnel Board commuting plaintiff's termination to suspension contained no factual findings and did not state what provisions of defendant's Code of Conduct it determined plaintiff had violated, nor pursuant to which provision of defendant's guidelines for discipline discipline was imposed, Administrative Procedure Act (5 ILCS 100/1-1 et seq.), which imposes requirement of factual findings in agency's decision, does not apply to defendant because defendant is a unit of local government and is therefore specifically exempted from APA's provisions; while inferring findings of fact from result would be improper, the only possible factual finding which would have sufficed to uphold discipline imposed by Board, plaintiff's alleged threats against coworkers, was against manifest weight of evidence, so that Board's order suspending plaintiff and imposing other discipline was abuse of discretion.
EMPLOYMENT CONTRACTS
Garibaldi v. Applebaum, No. 1-95-1351 (1st Dist. 11/12/98). Cook Co. Aff'd in part, rev'd in part; remanded.
Hospital bylaws requiring notice to physician of effect of exclusive contract with other physicians on physician's clinical privileges were required to be adopted by 77 Ill.Admin.Code § 250.310(a)(1)(C) and were not analogous to employee handbook, so that hospital disclaimer of contract was ineffective, and hospital breach of bylaws was against public policy.
McTigue v. Personnel Board of the City of Chicago et al. No. 1-97-3893 (1st Dist. September 24, 1998)
Although Board's conclusion that plaintiff violated two subparagraphs of personnel rules was not against manifest weight of evidence, personnel rules created binding contractual obligations, and presence of asterisks before certain subparagraphs of rules were reasonably interpreted as meaning that an employee would be dismissed for first-time violations of those provisions, so that because subparagraphs found to have been violated by plaintiff were not preceded by an asterisk, personnel rules did not provide for plaintiff's discharge for his first-time violations and Board's decision to uphold plaintiff's discharge was reversed.
Knickman v. Midland Risk Services-Illinois, Inc. et al.
No. 4-98-0033 (4th Dist. September 18, 1998)Jury could properly conclude that plaintiff did not breach his employment contract where some evidence was presented that plaintiff had worked hard and no finding of poor performance was placed in plaintiff's personnel record, so that defendant was clearly in breach of its contract with plaintiff when it discharged plaintiff; where defendant's holding company and co-defendant had interlocking relationship with defendant that sufficed to treat it as defendant's alter ego, plaintiff might not recover on tort claim against holding company of unlawful interference with his contract with defendant as well as on contractual claim against defendant.
EMPLOYMENT DISCRIMINATION
Bowne of Chicago, Inc. v. Human Rights Commission, No. 1-97-3843 (11/5/98). (First District) Cook Co. Aff'd.
Term "cause of action" in 775 ILCS 5/7A-102(H) (West 1996) means "charge" filed with Department of Human Rights, not "complaint" filed with Human Rights Commission, so that Department's having filed complaint more than 365 days after complainant filed pre-1/1/96 charge did not violate time limits of P.A. 89-370, which are prospective.
Illinois J. Livingston Co. v. Illinois Human Rights Commission, No. 1-97-2526 (1st Dist. 12/4/98). Human Rights Comm'n. Rev'd.
Although trier of fact could reasonably conclude both that complainant established prima facie case of age discrimination and that respondent employer's proffered reasons for discharging him were pretextual, absence of factual findings supporting discriminatory intent other than ALJ's disbelief of employer's articulation required reversal of Commission's decision in favor of complainant.
Harton v. City of Chicago, Nos. 1-97-4138 and 1-97-4139 (cons.) (1st Dist. 11/12/98). Human Rights Commission (direct review). Vacated in part; remanded.
Where Commission found that blind complainant could not have performed duties of job she applied for with City even with accommodation, despite City's failure to consider accommodation issue in making hiring decision, Commission had no power under Human Rights Act to award relief and should have dismissed complaint.
Peyton v. Department of Human Rights No. 4-97-0207 (4th Dist. September 18, 1998)
Chief Legal Counsel of Illinois Department of Human Rights is merely employee of Department, not separate agency, and is not necessary party to appeal from denial of request for review of Department's dismissal of petitioner's charge of discrimination; fact that male petitioner was removed from his position after complaints of females regarding alleged unfairness to women of qualifications for job, and job was reposted, ultimately leading to hire of different male, created no inference of sex discrimination.
Stone v. Department of Human Rights No. 4-98-0054 (4th Dist. September 18, 1998)
Whipple v. Department of Rehabilitation Services, 269 Ill.App.3d 554 (1995), in which court held that decision to dismiss charge of unlawful discrimination after investigation of Department of Human Rights must be based on insufficiency of prima facie case alone, and may not take into consideration respondent's articulation and whether pretext could be shown, was incorrectly decided, so that Department and Human Rights Commission may properly consider second and third prongs of traditional employment discrimination analysis as well in determining whether substantial evidence of civil rights violation exists; female petitioner failed to show that respondent's reasons for hiring male comparatives instead of her as full-time police officers were pretexts for sex discrimination and also failed to show prima facie case of retaliation because actions petitioner viewed as adverse were applied to all officers and in any event were not of such magnitude that a reasonable person would resign her position.
Page v. City of Chicago Commission on Human Relations No. 1-97-1621 (1st Dist. September 30, 1998)
Illinois Human Rights Act, 775 ILCS 5/1-101 et seq., does not preempt City of Chicago's home rule power to prohibit sexual discrimination and harassment by employers with fewer than 15 employees; because home rule unit draws its powers from Illinois Constitution, independent of any statute, City Commission had authority to interpret ordinance calling for such "relief as may be appropriate" to include punitive damages; Commission's decision in favor of complainant on sexual harassment claim was not against manifest weight of evidence, and Commission did not abuse discretion in awarding attorney fees to complainant.
EMPLOYMENT LAW
Fisher v. Lexington Health Care, Inc., No. 2-98-0072 (2d Dist. 12/9/98). DuPage Co. Rev'd and remanded.
Nursing Home Care Act, 210 ILCS 45/3-608, impliedly creates private cause of action for nursing home employees acting as whistleblowers, even though retaliatory conduct of employer may consist of harassment and demotion and stop short of actual discharge.
Village of Fox River Grove v. Pollution Control Board, No. 2-98-0053 (2d Dist. 11/5/98). Pollution Control Board. Aff'd.
IPCB correctly determined that wastewater treatment facility's hydraulic, not organic, rating should be used in determining "population equivalents" for purposes of determining applicability of stricter effluent limits under Environmental Protection Act's associated regulations, 35 Ill.Admin. Code § 304.120(b).
EXTRADITION
Cohen v. Sheahan No. 1-97-1750 (1st Dist. September 30, 1998)
Where neither rendition warrant nor evidence in record specified that petitioner had been charged with a crime in the demanding state, rendition warrant was silent as to whether a copy of any document charging petitioner with a crime was presented with demanding state's demand for extradition, and record contained no documents showing that demanding state substantially charged petitioner with a crime, rendition warrant and evidence in record were legally insufficient to support petitioner's extradition; where respondent failed to proffer any evidence during habeas corpus proceedings indicating that petitioner was charged with a crime in demanding state, evidence was insufficient to establish that petitioner was a fugitive, requiring his release from custody.
FORCIBLE ENTRY AND DETAINER
Burnham Management Co. v. Davis, No. 2-98-0082 (2d Dist. 12/31/98). Kane Co. Aff'd.
Despite plaintiff landlord's testimony that it would not have accepted rent and recertified defendant lessee's rent under HUD guidelines because eviction proceeding was in progress, defendant's duty to report income from new job was not excused, so that interim recertification was properly retroactively made; landlord's 10-day notice demanding payment of incorrect amount as rent did not deprive trial court of subject matter jurisdiction, nor did notice's demand of more than plaintiff was entitled to invalidate notice.
Norwest Mortgage, Inc. v. Ozuna, Nos. 1-98-1481, 1-98-1482, and 1-98-1483 (cons.) (1st Dist. 12/28/98). Cook Co. Aff'd in part, vacated in part and remanded.
Orders of possession obtained in forcible entry and detainer actions were void ab initio only insofar as they concerned defendants generically described therein as "unknown occupants," where record showed that plaintiffs did not substantially comply with 735 ILCS 5/2-413; injunction entered in federal § 1983 case of Rembert v. Sheahan applied only to orders for possession in mortgage foreclosure actions, and not to forcible entry and detainer actions, so that sheriff was not justified in refusing to execute orders for possession in underlying action; contempt judgments vacated because sheriff acted in good faith to obtain review of orders.
FORECLOSURE
BCGS, L.L.C. v. Jaster No. 3-97-0784 (2d Dist. September 18, 1998)
Trial court did not abuse discretion in confirming judicial sale where manifest weight of evidence showed that plaintiff lienholder had notice of sale, and where defendant's purchase of property occurred after expiration of redemption period and, therefore, could not be considered a redemption; defendant's knowledge of plaintiff's lien did not distinguish him from other potential purchasers of property; trial court did not err in ruling on confirmation of sale issue prior to motion to affirm plaintiff's lien, since confirmation issue was dispositive; however, trial court should not have waited until after confirmation of sale to determine distribution of surplus proceeds and then deny plaintiff any interest in surplus based on fact that confirmation of sale had extinguished its lien, requiring partial reversal and remand for further proceedings on issue of whether plaintiff's lien entitled it to surplus.
FORUM NON CONVENIENS
Ferguson v. Bill Berger Associates, Inc., No. 1-97-2991 (1st Dist. 12/8/98). Cook Co. Aff'd.
Appellate court had no authority under SCR 306 to grant leave to appeal from trial court's nonfinal order denying defendant's motion to dismiss on grounds that proceedings violated contractual forum selection clause; trial court's denial of defendant's motion to dismiss on forum non conveniens grounds was not abuse of discretion.
Pre Fab Transit Company v. Fontaine Trailer Company No. 4-97-1140 (4th Dist. September 28, 1998) DeWitt Co. Rev'd and remanded.
Where forum non conveniens issue was raised without being formally pleaded or by written or pronounced court order, record showed that plaintiff had not had fair opportunity to respond, requiring reversal and remand for new hearing on issue.
FRAUD
Brandt v. Time Insurance Co., Nos. 1-97-2913, 1-98-0143 (cons.) (1st Dist. 12/10/98). Cook Co. No. 1-97-2913--aff'd; No. 1-98-0143--rev'd and remanded.
Because insurer had no duty under Illinois law to investigate truthfulness of answers given to questions asked on application for insurance, plaintiff might not base claims for fraud on allegation that insurer engaged in post-claim underwriting, so that trial court's dismissal of those counts was proper; question of fact was apparent on record as to whether insurance broker who completed application with false information acted as insurer's agent, and, thus, whether his knowledge of misrepresentation could be imputed to insurer, so that trial court erred in entering summary judgment on breach of contract and Insurance Code violation counts in insurer's favor; version of 215 ILCS 5/154 prior to effective date of P.A. 89-413, which eliminated requirement that copy of application be attached to insurance policy before a misrepresentation contained therein could be asserted as a basis to avoid the policy, applied to plaintiff's pre-1996 cause of action for violation of Insurance Code, and trial court's application of amended version of statute was erroneous.
Golden v. McDermott, Will & Emery No. 1-97-3799 (1st Dist. September 30, 1998) (Modified on Denial of Rehearing, 11/10/98). Cook Co. Aff'd.
1. While defendant law firm did stand in fiduciary relationship to plaintiff former partner at time of severance agreement, at least for purposes of private accounting, firm's alleged misrepresentations were not material to agreement, nor did firm's giving plaintiff option to resign instead of being fired constitute duress, and in any event plaintiff ratified agreement by retaining consideration for agreement for over 5 years.
2. Plaintiff's noncontract claims would be barred by laches even if not barred by ratification of release because he learned around time of signing agreement, 4 years before filing suit, that proper procedures were not followed in expulsion from partnership.
1st Dist. Hirsch v. Feuer, No. 1-97-4480 (10/16/98). Cook Co. Aff'd in part, rev'd in part.
Complaint set forth basic facts for causes of action for breach of contract and violation of Property Disclosure Act (765 ILCS 77/20 (West 1994)) in spite of mixing conclusions with factual assertions but failed to state cause of action for fraud with sufficient specificity; court did not abuse discretion in refusing to allow plaintiffs to file 6th amended complaint.
GRANDPARENT VISITATION
People ex rel. Farina v. Sensor No. 2-97-1141 (2d Dist. October 5, 1998) McHenry Co. Reversed and remanded.
1. Order terminating petitioner grandmother's visitation was not final determination on merits, but rather reflected suspension of grandmother's separate visitation because child was then residing with her. 2. Order for grandparent visitation is available in cases brought under Parentage Act.
GUARDIANSHIP
In Re Marriage of Burgess, No. 1-97-4311 (1st Dist. 12/22/98). Cook Co. Rev'd and remanded.
Plenary guardian may not continue dissolution of marriage action originally filed by ward prior to time ward was found disabled.
In re Schmidt, No. 2-97-0757 (2nd Dist. 9/1/98). McHenry Co. Aff'd.
Tr. Ct. did not err in appointing disabled person's husband (over her sister) as plenary guardian under 755 ILCS 40/1 et seq. Notwithstanding fact that Act silent as to preference for appt. of spouse, ct. may consider public policy expressed in related Probate Acts in guiding its decision. 20 pp.
HEIRSHIP
1st Dist. Morris v. William L. Dawson Nursing Center, Inc., No. 1-97-3321 (10/30/98). Cook Co. Aff'd in part, rev'd in part; remanded.
Because weight of authority interprets term "next of kin" as set forth in Wrongful Death Act (740 ILCS 180/2) as being persons who would qualify as beneficiaries according to laws of intestate descent and distribution as provided in Probate Act, trial court erred in finding that plaintiff's decedent's siblings were "next of kin;" rather, decedent's two grandchildren were entitled to recover all wrongful death proceeds to exclusion of all others.
HIV
Doe v. Noe, No. 1-96-3791 (1st Dist. 12/31/98). Cook Co. Aff'd in part; rev'd in part.
Plaintiff failed to state claim for negligent infliction of emotional distress for defendant surgeon's having known he was HIV positive when he performed 2 surgeries on plaintiff but failed to disclose HIV condition to plaintiff prior to operations since complaint contained no allegations of actual exposure to HIV; despite appellate court's prior finding in same case, whether HIV positive physician has duty to disclose status to patient remains unresolved in light of Majca v. Beekil, 193 Ill.2d 407 (1998).
HUMAN RIGHTS ACT
Habitat Company v. McClure, Nos. 1-96-4145, 1-97-0295, 1-97-1972 (cons.) (1st Dist. 11/20/98). Cook Co. Aff'd in part, rev/d in part, and atty's fees vacated.
Court lacked jurisdiction over appeal No. 1-96-4145 because plaintiff's timely petition for fees rendered judgment appealed from nonfinal; defendant's notice of appeal, which referred only generally to order, sufficed to preserve issue of whether he was entitled to jury trial; defendant was not entitled to jury trial on counterclaim to eviction under Illinois Human Rights Act; trial court's ruling against defendant on handicap claim under Human Rights Act was not against manifest weight of evidence; defendant's mere failure to carry burden of proof at trial was not sanctionable and did not warrant award of attorney's fees.
Szkoda v. Illinois Human Rights Commission, No. 1-96-3051 (1st Dist. 12/16/98). Cook Co. Aff'd in part, rev'd in part, remanded.
Same elements of proof as set forth in Fair Housing Amendments Act of 1988, 42 U.S.C. § 3504(b), are necessary to establish sexual harassment violation of 775 ILCS 5/7B-3-102(B); despite Commission's erroneous analysis, ultimate decision in complainant's favor on sexual harassment claim in housing context was not contrary to manifest weight of evidence; damages award of $6,000 for "humiliation, embarrassment and mental distress" was in error because complainant sought damages only for humiliation and not for embarrassment; Commission abused its discretion in imposing maximum $10,000 civil penalty for violation that was neither ongoing nor repeated over extended period of time.
IMMUNITY
Courson v. Danville School Dist. No. 118, No. 4-97-1020 (4th Dist. 12/18/98). Vermilion Co. Rev'd and remanded.
School district was not entitled to summary judgment on issue of negligent failure to provide saw guard in shop class wherein student plaintiff's fingers were cut off, since record did not establish whether failure to provide saw guard was exercise of discretion, was oversight, or was act or omission in determining policy.
Johnson v. Decatur Park District, No. 5-97-0978 (4th Dist. 11/25/98). Macon Co. Aff'd in part, rev'd and remanded in part.
Municipal park district and tumbling coach were absolutely immune from prosecution for ownership of mini trampoline and coaching of tumblers group and were therefore entitled to summary judgment on negligence complaint; because YWCA exists for benefit of members, not for benefit of public at large, YWCA is not public entity entitled to immunities and defenses of Local Governmental and Governmental Employees Tort Immunity Act and therefore was not entitled to summary judgment.
INJUNCTION
Village of Westmont v. Lenihan, No. 2-98-1038 (2d Dist. 12/28/98). DuPage Co. Aff'd.
Illinois Municipal Code and village ordinances authorize only mayor to appoint village attorney and do not permit village board of trustees to unilaterally employ outside attorney, but require mayor and board to act together in contracting for outside legal consulting services; plaintiffs raised fair question as to alleged impropriety of trustees' unilateral contract for legal services; remaining requirements for preliminary injunction were met, so that trial court did not abuse discretion in entering preliminary injunction against enforcement of resolution approving board's unilateral contract for legal services and preserving status quo.
INSURANCE
Bituminous Casualty Corp. v. Royal Insurance Co. of America, No. 3-98-0183 (3d Dist. 11/25/98). Rock Island Co. Rev'd.
Neither "other insurance" clause, "transfer of rights" clause, nor doctrine of equitable contribution empowered insurer notified by insured to provide exclusive coverage to seek contribution from other primary insurer.
Brandt v. Time Insurance Co., Nos. 1-97-2913, 1-98-0143 (cons.) (1st Dist. 12/10/98). Cook Co. No. 1-97-2913--aff'd; No. 1-98-0143--rev'd and remanded.
Because insurer had no duty under Illinois law to investigate truthfulness of answers given to questions asked on application for insurance, plaintiff might not base claims for fraud on allegation that insurer engaged in post-claim underwriting, so that trial court's dismissal of those counts was proper; question of fact was apparent on record as to whether insurance broker who completed application with false information acted as insurer's agent, and, thus, whether his knowledge of misrepresentation could be imputed to insurer, so that trial court erred in entering summary judgment on breach of contract and Insurance Code violation counts in insurer's favor; version of 215 ILCS 5/154 prior to effective date of P.A. 89-413, which eliminated requirement that copy of application be attached to insurance policy before a misrepresentation contained therein could be asserted as a basis to avoid the policy, applied to plaintiff's pre-1996 cause of action for violation of Insurance Code, and trial court's application of amended version of statute was erroneous.
John Burns Construction Company v. Indiana Insurance Company No. 1-97-1806 (1st Dist. September 11, 1998)
An insurer to whom litigation is tendered may seek contribution from another insurer whose policy is applicable, where insurer to whom tender is made has an "other insurance" clause in its policy, even though such action is contrary to wishes of insured.
Chandler v. Doherty, No. 4-98-0078 (4th Dist. 11/4/98). Champaign Co. Aff'd. (Dissent)
Insurer had duty to defend despite fact that car involved in accident was not insured under policy until 3 months after accident; insurer's failure to defend or to bring declaratory judgment action resulted in its being estopped from raising policy defenses in subsequent garnishment proceedings.
M.H. Detrick company v. Century Indemnity Company
No. 1-97-0027 (1st Dist. September 25, 1998) Where an insurer has properly exhausted its policy limits by the payment of judgments and/or settlements, it is no longer obligated to defend or indemnify the insured, whether such actions are pending at the time of exhaustion or commenced thereafter.
Alcan United, Inc. v. West Bend Mutual Insurance Company No. 1-98-0748 (1st Dist. September 30, 1998) Cook Co. Aff'd in part; rev'd in part.
Insured had right to deactivate coverage with one insurer and select other insurer to defend and indemnify claim; however, sophisticated insured has duty to make actual tender of suit for defense to insurer, so that tender occurred on date plaintiff filed declearatory judgment action against insurer and not when third-party claims adjuster for other insurance company sent insurer letter purporting to tender suit for defense but containing no indication adjuster was acting at insured's request.
Farmers Automobile Insurance Association v. Hunt No. 3-98-0021 (3d Dist. September 14, 1998) Peoria Co. Aff'd in part; rev'd in part.Broad language of insurance policy, including phrase "resulting from," was to be construed against drafter insurance company and required coverage for insured who drove covered vehicle while towing uninsured trailer; however, circuit court erred in prematurely granting summary judgment on indemnification issue.
Liberty Mutual Insurance Company v. Westfield Insurance Company, No. 1-97-3476 (1st Dist. 11/3/98). Cook Co. Aff'd.
Where subcontractor's insurer refused to settle or try case or present evidence to challenge reasonableness of settlement amount, conduct was inconsistent with any intention other than waiving rights to contest settlement; uncontested facts showed that contractor's liability for injury arose out of sub's work where endorsement named general contractor as additional insured with respect to liability "arising out of" sub's work for general, since phrase "arising out of" is broad and vague; trial court did not abuse discretion in awarding prejudgment interest in action by one insurer against another insurer, despite existence of good-faith defense.
Pekin Insurance Company v. Willett, No. 2-98-0248 (2d Dist. 12/28/98). Lake Co. Rev'd in part, aff'd in part; motion for attys' fees denied.
Plain language of insurance policy excluded coverage for pool service's alleged negligence and resulting injury to swimming pool, so that trial court erred by granting summary judgment to defendants and in denying plaintiff insurance company's motion for judgment on pleadings.
Schanowitz v. State Farm Mutual Automobile Insurance Co., No. 2-97-1015 (2d Dist. 11/2/98). Lake Co. Rev'd.
Legislature did not intend to invalidate household exclusions in which child of insured is injured, not does mandatory insurance law, 625 ILCS 5/7-601, invalidate household exclusions at issue in this case, so that trial court erred in expanding Cates v. Cates, 156 Ill.2d 76 (1993) to invalidate household exclusions for insured's relatives.
Wallace v. Metropolitan Pier and Exposition Authority, No. 1-98-1956 (1st Dist. 12/23/98). Cook Co. Aff'd.
Recreational nature of Navy Pier is sufficient to confer immunity under Tort Immunity Act, 745 ILCS 10/3-106, despite fact that pier also has nonrecreational, commercial use, so that because complaint failed to allege any wilful and wanton conduct on behalf of MPEA, trial court correctly entered summary judgment in MPEA's favor on plaintiff's personal injury claim.
Western States Insurance Company v . Weller No. 4-98-0243 (4th Dist. September 30, 1998) Macoupin Co. Vacated.
Where trial court entered default judgment order in declaratory judgment action stating that plaintiff was relieved of any obligation to provide coverage or defense to defendant driver, or to make any payment on driver's behalf to injured defendant or to any other person, judgment was final resolution of dispute, and court had no jurisdiction to enter order nearly 2 years later attempting to modify order.
1st Dist. Brooks v. Cigna Property & Cas. Cos., No. 1-97-4260 (9/1/98). Cook Co. Aff'd and rem'd.
American Family Mut. Ins. Co. v. Chiczewski, No. 2-97-1228 (2nd Dist. 9/14/98). DuPage Co. Aff'd.
P not obligated to defend or indemnify its insured for his active participation in act of physical abuse of minor. Policy excluded coverage for bodily injury arising from "claims or suits seeking damages, including defense of same, to any person who actively participates in any act of sexual molestation or physical or mental abuse of a minor." 4 pp.
Under provisions of 215 ILCS 5/143a, parties in uninsured motorist claims must submit to mandatory arbitration. 9 pp.
1st Dist. American Family Mutual Insurance Co. v. Savickas, Nos. 1-96-4428, 1-97-0026 cons. (10/20/98). Cook Co. Rev'd and remanded. Allegation of negligence in underlying wrongful death action created duty to defend on part of insurer; complaint on its face does not allege conflicting facts sufficient to relieve insurer of duty, despite jury finding of guilty in related murder trial and policy exclusion for bodily injury "expected or intended" by insured.
JURY INSTRUCTIONS
Pryor v. National Railroad Passenger Corporation, No. 5-97-0915 (5th Dist. 12/9/98). Madison Co. Rev'd and remanded.
Circuit court erred by giving jury instructions that did not follow case law under Federal Employers' Liability Act, that tracked Missouri instructional format instead of Illinois format, and that tried to place Missouri gloss on Illinois format by overly emphasizing concept of actual and constructive knowledge in context of foreseeability, requiring reversal of judgment entered in defendant's favor and remand for new trial.
Reed v. Wal-Mart Stores, Inc., No. 4-98-0115 (4th Dist. 9/4/98). Coles Co. Rev'd and rem'd.
Tr. Ct. abused discretion by den'g Ps' instruction and requiring them to prove D had actual or constructive knowledge of board with nail that P stepped on in D's store where little doubt that board related to D's business. 10 pp.
White v. Stevens, No. 2-98-0298 (2d Dist. 12/18/98). Winnebago Co. Rev'd and remanded. Trial court abused discretion in denying defendant's posttrial motion for new trial where in closing argument plaintiff's counsel told jury to make sure that its answer to a special interrogatory was consistent with its verdict.
JURY WAIVER
5th Dist. Gibbs v. Lewis & Clark Marine, Inc., No. 5-97-1071 (9/11/98). Madison Co. Certified question answered.
P had right to waive jury trial in Jones Act, 46 USC section 688, case and D had no right to choose otherwise. 13 pp.
JUVENILE LAW
In Re J.L.R., No. 2-97-0689 (2d Dist. 12/9/98). Boone Co. Remanded with directions.
SCR 605(b) applies to juvenile delinquency adjudications, so that cause was remanded to trial court for SCR 605(b) admonitions to respondent and opportunity for respondent to then withdraw guilty plea.
In the Interest of J.R. and T.J., Nos. 1-96-0782 and 1-96-0979 (cons.) (1st Dist. 12/4/98). Cook Co. Aff'd.
Transfers of juveniles under age 13, found delinquent for committing first- degree murder, to JDOC pursuant to 730 ILCS 5/3-10-11 as amended by P.A. 88-680, eff. 1/1/95, did not violate ex post facto prohibition of Illinois and U.S. Constitutions; amendment is properly viewed as security classification provision, not as increase in punishment.
In re K.B., No. 1-98-0090 (1st Dist. 12/4/98). Cook Co. Rev'd and remanded.
Expulsion from school of respondent minor for her acknowledged drug activity was remedial, not punitive, so that double jeopardy did not apply to petition for adjudication of wardship and circuit court erred in dismissing petition.
LABOR LAW
1st Dist. Chicago Transit Authority v. Amalgamated Transit Union, No. 1-97-3162 (10/26/98). Illinois Local Labor Relations Board. Aff'd.
Board correctly found that employer breached its duty to bargain in good faith with union in violation of 5 ILCS 315/7, where Board applied balancing test set forth in Central City Education Ass'n v. IELRB, 149 Ill.2d 496 (1992) and 5 ILCS 315/4 to find that although job reclassification itself was not mandatory subject of bargaining, because reclassification had impact on wage rates for new position and resulted in removal of dual-rating system, employer nevertheless had duty to bargain.
City of Markham v. State and Municipal Teamsters, Chauffeurs and Helpers, Local 726No. 1-96-4351 (1st Dist. September 25, 1998) Non-home-rule municipality such as City cannot avoid its statutory obligations by contracting with a labor union such as defendant; additionally, City is precluded under Illinois Public Labor Relations Act, 5 ILCS 315/7 (West 1996)) from bargaining over matters such as police officer discipline that are covered by Illinois Municipal Code, so that labor arbitrator had no authority to impose on City a collective bargaining agreement allowing police officers to submit final disciplinary decisions of City's Board of Fire and Police Commissioners to arbitration as grievances.
County of Cook v. Illinois Local Labor Relations Board, Nos. 1-96-0465 (Illinois Local Labor Relations Board) and 1-97-2612 (Cook Co.) (cons.) (1st Dist. 12/28/98). Rev'd.
Decision whether to file complaint before Merit Board seeking to decertify employee of Sheriff's Office need not be bargained over under Illinois Local Labor Relations Act, 5 ILCS 315/10, since Merit Board's authority to void illegal certifications and appointments is reasonably necessary to execute investigatory and enforcement provisions of Counties Code, so that Sheriff did not violate statute by refusing to relinquish confidential information; circuit court erred in substituting its judgment for that of Merit Board as to Board's imposition of discharge as sanction.
Illinois Fraternal Order of Police Labor Council v. Town of Cicero, No. 1-97-3376 (1st Dist. 11/17/98). Cook Co. Rev'd.
Where defendant Town is home rule municipality, and because language of collective bargaining agreement, though ambiguous, supported interpretation requiring arbitration, Town had duty to arbitrate police officers' grievances relating to residency requirements.
3d Dist. Metropolitan Alliance of Police v. Illinois State Labor Relations Board, No. 3-97-0865 (10/9/98). Illinois State Labor Relations Board; aff'd.
Plain language of Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq. (West 1996) shows that it is inapplicable to Village of Coal City because City employs fewer than 35 employees; Act is not unconstitutional because it does not violate equal protection clause of U.S. Constitution or special legislation clause of Illinois Constitution.
LACHES
Golden v. McDermott, Will & Emery No. 1-97-3799 (1st Dist. September 30, 1998) (Modified on Denial of Rehearing, 11/10/98). Cook Co. Aff'd.
1. While defendant law firm did stand in fiduciary relationship to plaintiff former partner at time of severance agreement, at least for purposes of private accounting, firm's alleged misrepresentations were not material to agreement, nor did firm's giving plaintiff option to resign instead of being fired constitute duress, and in any event plaintiff ratified agreement by retaining consideration for agreement for over 5 years.
2. Plaintiff's noncontract claims would be barred by laches even if not barred by ratification of release because he learned around time of signing agreement, 4 years before filing suit, that proper procedures were not followed in expulsion from partnership.
LEGAL MALPRACTICE
Butler v. Mayer, Brown and Platt, No. 1-97-4639 (1st Dist. 11/25/98). Cook Co. Rev'd and remanded.
Genuine issue of material fact remained as to when plaintiff should have known his injury was wrongfully caused and statute of limitations began to run in legal malpractice suit, so that summary judgment in defendant's favor was reversed and cause remanded; logical extension of equitable estoppel rule is that where, after defendant ends conduct of lulling plaintiff into inaction, "ample time" for bringing suit does not remain under statute of limitations, plaintiff will be allowed reasonable period, not a full limitations period, to bring suit.
Environmental Control Systems, Inc. v. Long, No. 5-97-0690 (5th Dist. 12/9/98). Madison Co. Aff'd in part, rev'd in part, remanded.
By abandoning implied indemnity claims in 3rd amended complaint after trial court had dismissed those counts, plaintiffs waived objections to dismissal order as to those counts; date of accrual of plaintiffs' cause of action for legal malpractice was not clear-cut on record, leaving question of fact, so that summary judgment was improper; in any event, defendant attorneys were equitably estopped from raising statute of limitations defense because their statements to plaintiffs that there was a "good chance of success" and "reasonable opportunity to prevail on the merits" on appeal and "good chance that the Supreme Court will take the case" after appeal was lost amounted to continuous representations of appeal's likelihood of success, lulling plaintiffs into false sense of security.
Lucey v. Law Offices of Pretzel & Stouffer, No. 1-96-2659 (1st Dist. 11/12/98). Cook Co. Aff'd as modified.
Trial court properly dismissed as premature action for legal malpractice filed after plaintiff was sued after following defendant's legal advice but before any adverse resolution of litigation, since cause of action for legal malpractice does not accrue until plaintiff incurs damages; however, dismissal should not have been with prejudice.
5th Dist. Renshaw v. Black, No. 5-97-0884 (10/16/98). Jackson Co. Rev'd and remanded.
Trial court erred in granting defendant attorney summary judgment on basis that plaintiffs could not utilize defendant's own expert opinions in field of education law abecause they failed to disclose her as SCR 213(g) opinion witness; SCR 213(g) was not intended to preclude use of professional malpractice defendant's own admissions, and such a defendant should not be heard to argue surprise when confronted by own previously expressed opinions.
LEGAL SERVICES
Village of Westmont v. Lenihan, No. 2-98-1038 (2d Dist. 12/28/98). DuPage Co. Aff'd.
Illinois Municipal Code and village ordinances authorize only mayor to appoint village attorney and do not permit village board of trustees to unilaterally employ outside attorney, but require mayor and board to act together in contracting for outside legal consulting services; plaintiffs raised fair question as to alleged impropriety of trustees' unilateral contract for legal services; remaining requirements for preliminary injunction were met, so that trial court did not abuse discretion in entering preliminary injunction against enforcement of resolution approving board's unilateral contract for legal services and preserving status quo.
LIENS
A.G. Phillips v. DeCarlo, No. 2-97-1307 (2d Dist. 12/18/98). DuPage Co. Rev'd and remanded.
Circuit court erred in entering judgment on physician's lien without first determining whether charges sought by physician under Physicians Lien Act, 770 ILCS 80/6, were reasonable; 770 ILCS 80/1 protects physician in form of lien only for reasonable amount of charges.
LONG-ARM JURISDICTION
1st Dist. Gaidar v. Tippecanoe Distribution Service, Inc., No. 1-97-3372 (10/28/98). Cook Co. Aff'd in part, rev'd in part, remanded.
Indiana trucking company's business in Illinois was sufficiently regular to satisfy 735 ILCS 5/2-209(b)(4)'s requirements for Illinois court to exercise jurisdiction over accident occurring in Indiana; trial court's dismissal of defendant driver was proper, since fact that truck had traveled in Illinois before entering Indiana was immaterial, and cause of action did not arise from transaction of any business within Illinois as required by 735 ILCS 5/2-209(a)(1) but rather from alleged negligent driving in Indiana.
Hoekstra v. Bose, No. 1-98-0039 (1st Dist. 12/28/98). Cook Co. Aff'd.
Defendant's mere possession of Illinois driver's license indicating Illinois address while actually living in another state was too attenuated a fact to require him to litigate personal injury action stemming from auto accident in Michigan.
MAINTENANCE
In Re Marriage of Kaufman No. 1-97-4553 (1st Dist. September 29, 1998)
Award of interest on dissolution judgments, including maintenance, is within trial court's discretion; neither 735 ILCS 5/2-1303 nor 750 ILCS 5/505(d) mandate interest on dissolution awards.
In Re Marriage of Koenigsknecht, No. 1-97-4196 (1st Dist. 12/21/98). Cook Co. Aff'd in part, rev'd in part.
Where original amount of child support was below statutory guideline and court found that children would have enjoyed different standard of living had marriage not been dissolved, and that that fact constituted substantial change in circumstances, court did not abuse discretion in raising child support to conform to statutory percentage; however, where court found that wife's job searching efforts were insufficient, court erred in extending maintenance.
MARITAL PROPERTY
In Re Marriage of Blunda, No. 2-97-1227 (2d Dist. 11/2/98). DuPage Co. Aff'd in part, rev'd in part, remanded.
Trial court erred in finding that husband was entitled to reimbursement for loan which was almost completely repaid at time of dissolution and where marital property was not used for collateral, and in finding that wife dissipated certain marital funds; court properly held that increase in value of wife's stock was also nonmarital property, in certain rulings regarding dissipation of estate by wife, and in finding that husband dissipated certain marital assets.
In Re Marriage of Raad, No. 2-98-0139 (2d Dist. 12/31/98). DuPage Co. Aff'd in part, rev'd in part.
Trial court erred in classifying petitioner wife's IRA as marital and nonmarital property, since item must be one or the other, and additionally erred in its calculation of value subject to marital estate's right of reimbursement; trial court did not abuse discretion in requiring petitioner to bear bulk of cost of children's medical expenses.
In Re Marriage of Steinberg No. 1-96-3420 (1st Dist. September 30, 1998)
Accounts receivable from husband's medical practice are subject to reimbursement under 750 ILCS 5/503(c)(2); however, marital estate in instant case was not entitled to reimbursement from nonmarital accounts receivable, nor was marital estate entitled to reimbursement from medical practice's corporate checking account which increased in value over course of marriage, because husband's income had already adequately compensated marital estate.
MECHANICS' LIENS
Thomas Hake Enterprises, Inc. v. Betke, No. 2-98-0021 (2d Dist. 11/13/98). Kane Co. Aff'd in part; rev'd in part.
Complaint seeking to impose mechanics' liens was not frivolous, vexatious, or harassing, so that award of SCR 137 sanctions and sanctions under Mechanics Lien Act (770 ILCS 60/17(c)) was abuse of discretion; sanctions awards under 770 ILCS 60/17(c) may be awarded only to property owners.
MEDICAL MALPRACTICE
Adami v. Belmonte, No. 1-97-4661 (1st Dist. 11/23/98). Cook Co. Aff'd.
Jury verdict against plaintiff was not against manifest weight of evidence where both expert witnesses acknowledged that perforated small intestine may happen during surgery even in absence of negligence; trial court correctly determined that plaintiff's disclosure of opinion witness 2 weeks prior to trial was untimely under SCR 213 and 218 and quashed subpoena; trial court properly refused to give missing witness instruction of IPI Civil 3d No. 5.01, since adverse inference was not warranted for defendant's failure to call favorable expert to testify; court cured any prejudice from defense's improper reference to dismissal of prior complaints by sustaining plaintiff's objection and giving detailed instruction to jury to disregard question.
Cammon v. West Suburban Hospital Medical Center, No. 1-97-3625 (1st Dist. 11/25/98). Cook Co. Aff'd in part, rev'd in part; remanded.
Although negligence alleged in amended complaint against corporate defendant involved different conduct by different persons than was alleged in original complaint, defendant was on notice from outset of litigation, prior to passage of applicable limitations period, of substance of plaintiff's claims, so that relation-back provision of 735 ILCS 5/2-616(b) was triggered; plaintiff's failure to attach physician's report to amended complaint pursuant to 735 ILCS 5/2-622 warranted dismissal, but not with prejudice; because damages sought in count V of amended complaint arose as consequence of defendant's alleged breach of duty to preserve evidence and not as result of breach of medical standard of care, time limitation was governed by 5-year period of 735 ILCS 5/13-205, so that dismissal of count V was erroneous.
Ingold v. Irwin, No. 4-98-0308 (4th Dist. 12/31/98). McLean Co. Aff'd. Trial court did not abuse discretion in dismissing medical malpractice complaint with prejudice where plaintiffs filed written report from doctor never licensed to practice medicine which thus did not substantially comply with 735 ILCS 5/2-622(a)(1), which defect could not be cured by granting plaintiffs leave to amend, and where plaintiffs' counsel filed false affidavit stating that doctor did possess qualifications required by statute and that counsel had consulted with doctor.
James v. Ingalls Memorial Hospital No. 1-97-2422 (1st Dist. September 30, 1998) Cook Co. Aff'd.
Where patient's consent to treatment form stated that physicians on staff at defendant hospital are not employees or agents or hospital, but independent medical practitioners permitted to use hospital facilities, plaintiff failed to show that hospital or its agent acted in manner that would lead reasonable person to conclude that doctor was employee or agent of hospital, thus failing to establish first element of action under doctrine of apparent authority; plaintiff also failed to establish burden of establishing reliance because she did not in fact rely on any representations of hospital or doctor in going to hospital.
Jones v. Chicago HMO, Ltd., No. 1-97-3821 (1st Dist. 11/12/98). Cook Co. Aff'd in part, rev'd in part, remanded.
HMO's aggressive marketing and statements to plaintiff describing doctor as "Chicago HMO personal doctor" and "Chicago HMO primary care physician" created issue of material fact concerning apparent authority of doctor to act for HMO, requiring reversal of summary judgment on apparent agency count of complaint for medical negligence.
Mueller v. North Suburban Clinic et al. No. 1-97-2986 (1st Dist. September 30, 1998) Cook Co. Aff'd in part, reversed in part, and remanded.
Plaintiff complied with requirements of 735 ILCS 5/6-22 as to claim against one individual physician defendant in that physician's report specifically concluded that defendant breached standard of care in his advice, explained why advice constituted breach of care, and cited adverse effects suffered by plaintiff as result of breach, so that dismissal of complaint against that physician, clinic, and hospital was reversed; apparent inconsistency of 3rd and 4th physician's reports was matter for trial or summary judgment.
Winger v. Franciscan Medical Center No. 3-97-0680 (3d Dist. September 24, 1998) Rock Island Co. Rev'd and remanded.
1. Second suit filed more than 4 years after decedent's death but within 1 year after voluntary dismissal of first suit, containing more expansive allegations of negligence, was sufficiently identical to first suit to satisfy 735 ILCS 5/13-217 requirements.
2. Where mental health care professional has assumed custody or control of an individual, whether by voluntary or involuntary commitment, and is treating individual and knows of individual's suicidal tendencies, professional assumes patient's duty of self-care and must act reasonably to prevent self-inflicted harm; liability will not be absolved merely because patient is not bereft of reason and appreciates severe consequences of his actions.
1st Dist. Wojcik v. City of Chicago, No. 1-97-3117 (10/27/98). Cook Co. Aff'd.
Where defendants denied that they were even partly a proximate cause of plaintiff's injuries, general denial of liability even without affirmative defense, counterclaim or third-party action was sufficient to permit them to present evidence in support of their position that injury to plaintiff was result of another cause, and comparative fault was not an issue for decision; court did not err in tendering long version of IPI Civil 3d No. 12.04 to jury.
MENTAL HEALTH
People v. Chiakulas, No. 1-97-4195 (1st Dist. 12/2/98). Cook Co. Aff'd.
NGRI acquittee's motion for review of mental health treatment plan, in which he failed to request hearing on plan, required circuit court only to explicitly state in its order that it had reviewed defendant's treatment plans, pursuant to 730 ILCS 5/5-2-4(b) and 405 ILCS 5/3-814 and found them to be "adequate and necessary" and did not require court to grant hearing.
In Re Timothy H., No. 2-97-0910 (2d Dist. 12/28/98). Kane Co. Rev'd.
Fairness of trial on question of involuntarily administering psychotropic medication to respondent was compromised by trial court's failure to instruct jury on definition of "clear and convincing evidence."
Mandziara v. Canulli et al. No. 1-97-4644 (1st Dist. September 24, 1998)
Plaintiff, who at one point had received mental health services, whose ex- husband's attorney served subpoena duces tecum on mental health service provider's records custodian without first obtaining court order to serve subpoena on provider as required by 740 ILCS 110/10(d), has right of action against attorney under Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. (West 1994).
In Re Miller, No. 4-98-0185 (4th Dist. 12/31/98). Vermilion Co. Aff'd.
A respondent alleged to be subject to administration of psychotropic medication against his will cannot make informed waiver of his right under 405 ILCS 5/2-107.1(a)(1) to have at least 10 days' notice prior to hearing on petition for same, nor may trial court attempt to conduct "separate hearings" during same hearing and enter separate findings on each petition, as occurred in instant case; however, trial court's decision would be affirmed because of absence of any prior such explicit holding by any reviewing court and because of trial court's scrupulous job of trying to assure that waiver was in respondent's best interests; petition's failure to state that petitioner made good-faith attempt to determine whether respondent had executed power of attorney for health care or declaration for mental health treatment and to obtain copies of any such instruments was harmless error because neither record nor respondent on appeal indicated that such instruments actually existed; failure of trial court's order to strictly comply with 405 ILCS 5/2-107.1(a)(1) by including specific medications and authorized range of dosages and designation of persons authorized to administer medication did not require reversal because of respondent's failure to object at trial level, evidence showing that attending physician was intimately familiar with respondent's treatment protocol, and respondent's failure to contend that omissions prejudiced him.
In Re Moore, No. 4-97-1083 (4th Dist. 12/18/98). Macon Co. Aff'd.
Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-113 and 1-114, recognizes that there may be sections within a hospital devoted to treatment of mentally ill patients, which sections, not entire hospital, are mental health facilities for purposes of involuntary admission provisions of Code, so that where respondent was not examined by psychiatrist within 24 hours of his admission to hospital but was so examined within 24 hours of admission to seventh-floor psychiatric unit, facility complied with involuntary admission standards of 405 ILCS 5/3-610; State proved by clear and convincing evidence that respondent was subject to involuntary admission.
MORTGAGE
2nd Dist. BCGS v. Jaster, No. 3-97-0784 (9/18/98). DuPage Co. Aff'd in part, rev'd in part and rem'd.
D's purchase of subject matter property not considered redemption merely because he occupies status of mortgagor. Once expired, right of redemption shall not be revived. D thus free to purchase at judicial sale in attempts to extinguish jr. lien holder's interest. (Dissent filed.) 22 pp.
MORTGAGE INSURANCE
Perez v. Citicorp Mortgage, Inc., No. 1-98-0930 (1st Dist. 11/13/98). Cook Co. Aff'd. Trial court properly dismissed complaints alleging that mortgage lender failed to disclose to plaintiff borrowers circumstances under which borrowers could terminate payment of PMI, since mortgage was obtained prior to effective date of Mortgage Insurance Limitation and Notification Act (765 ILCS 930/1 et seq., eff. 7/1/98) and and following terms of mortgage contract which required life-of-loan PMI is not a deceptive or unfair practice, nor was lender thereby unjustly enriched.
MUNICIPAL LAW
Mr. B's, Inc. v. City of Chicago, Nos. 1-97-2149 and 1-97-2279 (1st Dist. 12/28/98). Cook Co. Aff'd in part, rev'd and remanded in part.
City's amusement tax ordinance does not constitute an occupational or service tax because tickets to amusements and sporting events are tangible personal property, so that home rule powers as well as 635 ILCS 5/11-42-1 (West 1994) authorize tax; record was insufficient to permit review of issue of whether tax was unconstitutional as an extra-territorial exercise of municipal authority.
Village of Westmont v. Lenihan, No. 2-98-1038 (2d Dist. 12/28/98). DuPage Co. Aff'd.
Illinois Municipal Code and village ordinances authorize only mayor to appoint village attorney and do not permit village board of trustees to unilaterally employ outside attorney, but require mayor and board to act together in contracting for outside legal consulting services; plaintiffs raised fair question as to alleged impropriety of trustees' unilateral contract for legal services; remaining requirements for preliminary injunction were met, so that trial court did not abuse discretion in entering preliminary injunction against enforcement of resolution approving board's unilateral contract for legal services and preserving status quo.
NAME CHANGE
In Re Marriage of Charnogorsky, Nos. 1-97-4463 and 1-98-1523 (cons.). 1st Dist. Cook Co. Aff'd.
Evidence supported circuit court's conclusion that parties had neither express nor implied agreement as to minor child's last name, so that court properly entered directed finding to that effect; additionally, circuit court properly dismissed noncustodial father's petition to change child's name under 735 ILCS 5/21-101 (West 1996) for lack of standing; name change statute does not violate equal protection or rational basis test and is not unconstitutional.
NATURAL AREAS PRESERVATION ACT
Pierce Downer's Heritage Alliance v. Village of Downers Grove, No. 2-98-0170 (2nd Dist. 12/28/98). DuPage Co. Aff'd. Neither Illinois Natural Areas Preservation Act, 525 ILCS 30/17, nor regulations of state Department of Natural Resources, required village and Illinois Health Facilities Planning Board to engage in environmental consultation with IDNR where village approved proposed amendment to planned unit development for construction and operation of private health facility.
NEGLIGENCE
Bailey v. Wilson No. 4-98-0031 (4th Dist. September 28, 1998) (Corrected opinion) Vermilion Co. Aff'd.
1. Evidence of plaintiff's prior injury was relevant and admissible, despite lack of expert testimony to establish causal link between past injury and present symptoms, because injuries involved same part of plaintiff's body and because injury was acquired under similar circumstances only 2 years before instant accident and injury.
2. Based on evidence, jury could properly conclude plaintiff was not injured in subject auto accident and therefore not entitled to damages award.
First Springfield Bank and Trust v. Galman, No. 4-97-0599 (4th Dist. 11/4/98). Sangamon Co. Aff'd. (Dissent)
1. Driver of illegally parked truck, like any driver, had duty of due care to avoid hitting pedestrian, notwithstanding that plaintiff's decedent was jaywalking, which was foreseeable, so that driver's employer was not entitled to directed verdict on contributory negligence issue.
2. Court declines to decide whether Nuisance Act, 720 ILCS 5/47-5(5), gives rise to private cause of action under circumstances of case because even if it does, award should still be reduced due to plaintiff's decedent's contributory negligence.
3. Defendant introduced no evidence to establish that failure to bring French social security agency, who paid benefits to plaintiff's decedent, into suit resulted in agency's waiver of right of recoupment under French law, so that trial court properly refused to reduce award under collateral source rule.
Sobczak v. Flaska, No. 1-97-0599 (1st Dist. 12/28/98). Cook Co. Aff'd.
Although defendant should have affirmatively pled employer immunity under Worker's Compensation Act, 820 ILCS 305/5(a), as affirmative defense, waiver was technical only and did not prejudice plaintiff; evidence showed that § 5(a) immunity did not preclude recovery under dual capacity doctrine, since employer routinely used company workers at his home to do jobs unrelated to company business; trial court did not err in refusing to bar or strike expert's testimony regarding OSHA regulation where it was doubtful that testimony affected trial's ultimate outcome and where jury would have been exposed to OSHA provisions even absent expert's testimony; evidence supported jury's verdict in plaintiff's favor on negligence claims.
Wallace v. Smyth, No. 1-97-0467 (1st Dist. 10/21/98). Cook Co. Rev'd and remanded. (Dissent)
Trial court improperly granted defendants' 2-615 motion to dismiss plaintiff's negligence claim for death of child, a ward of the State, on ground that defendants stood in loco parentis to child and were therefore shielded by parental immunity; corporations such as defendant youth home are not statutorily insulated from liability for negligently supervising or disciplining children.
Winger v. Franciscan Medical Center No. 3-97-0680 (3d Dist. September 24, 1998) Rock Island Co. Rev'd and remanded.
1. Second suit filed more than 4 years after decedent's death but within 1 year after voluntary dismissal of first suit, containing more expansive allegations of negligence, was sufficiently identical to first suit to satisfy 735 ILCS 5/13-217 requirements.
2. Where mental health care professional has assumed custody or control of an individual, whether by voluntary or involuntary commitment, and is treating individual and knows of individual's suicidal tendencies, professional assumes patient's duty of self-care and must act reasonably to prevent self-inflicted harm; liability will not be absolved merely because patient is not bereft of reason and appreciates severe consequences of his actions.
NONCOMPETE AGREEMENTS
Sheehy v. Sheehy No. 1-97-3869 (1st Dist. October 6, 1998) Cook Co. Aff'd.
Interpretation of covenant not to compete to preclude defendant's employment by any funeral home having branches within 10-mile restricted zone, or to preclude defendant from attending continuing education classes or business meetings regarding his employment as funeral director, or entering cemeteries within 10-mile radius, would be unreasonable and a restraint on trade.
NOT-FOR-PROFIT CORPORATIONS
Natural Organics Inc. v. Natural Nutritional Foods Association, No. 1-98-0963 (1st Dist. 12/16/98). Cook Co. Aff'd. 805 ILCS 105/107.50 contains no language distinguishing between revocable and irrevocable proxies, nor does it place any limitations on proxies, so that use of both types of proxies are allowed by not-for-profit corporation members and trial court properly dismissed plaintiffs' complaint which sought to declare "irrevocable" proxies void for failure to state claim for relief.
NOTARY PUBLIC ACT
Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.
Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.
NUISANCE ACT
First Springfield Bank and Trust v. Galman, No. 4-97-0599 (4th Dist. 11/4/98). Sangamon Co. Aff'd. (Dissent)
1. Driver of illegally parked truck, like any driver, had duty of due care to avoid hitting pedestrian, notwithstanding that plaintiff's decedent was jaywalking, which was foreseeable, so that driver's employer was not entitled to directed verdict on contributory negligence issue.
2. Court declines to decide whether Nuisance Act, 720 ILCS 5/47-5(5), gives rise to private cause of action under circumstances of case because even if it does, award should still be reduced due to plaintiff's decedent's contributory negligence.
3. Defendant introduced no evidence to establish that failure to bring French social security agency, who paid benefits to plaintiff's decedent, into suit resulted in agency's waiver of right of recoupment under French law, so that trial court properly refused to reduce award under collateral source rule.
NURSING HOME CARE ACT
Fisher v. Lexington Health Care, Inc., No. 2-98-0072 (2d Dist. 12/9/98). DuPage Co. Rev'd and remanded.
Nursing Home Care Act, 210 ILCS 45/3-608, impliedly creates private cause of action for nursing home employees acting as whistleblowers, even though retaliatory conduct of employer may consist of harassment and demotion and stop short of actual discharge.
Parker v. Illinois Masonic Warren Barr Pavilion No. 1-97-2213 (1st Dist. September 29, 1998)
While jury verdict that nursing home's treatment of plaintiff constituted neglect that was proximate cause of plaintiff's injury was not against manifest weight of evidence, trial court erred in allowing disclosure of treating physician's opinion testimony which was never disclosed in interrogatories and fell within scope of order on unopposed motion in limine to exclude any opinion testimony not included in interrogatories; since, absent undisclosed opinion testimony, jury may have eliminated finding in plaintiff's favor, new trial was required; 1995 amendment to section 3-602 of Nursing Home Care Act (210 ILCS 45/3-602)) is related solely to a remedy and does not affect a vested right, so that trial court erred in not applying amendment retroactively.
OPINION TESTIMONY
Hawn v. Fritcher, No. 4-98-0143 (4th Dist. 11/4/98). Coles Co. Rev'd and remanded. (Dissent)Treating physician's direct testimony that accident "might or coule" have caused condition of plaintiff's knees in years following accident established sufficient foundation for admissibility; testimony on cross that his opinion was not conclusive did not render testimony inadmissible, and trial court's ruling to contrary substantially prejudiced plaintiff's ability to prove damages and was reversible error.
PARENTAGE
In Re Parentage of Griesmeyer, No. 1-98-0905 (1st Dist. 12/18/98). Cook Co. Rev'd.
Relitigation of minor child's paternity in parentage petition was barred by prior, uncontested judgment of dissolution where issue of minor's paternity began as disputed, continued through legal process with minor represented by GAL, and ended as uncontested judicial finding, so that circuit court's order denying father's 2-619 motion was reversed.
Villareal v. Peebles No. 1-96-2713 (1st Dist. September 24, 1998)
Defendant's argument that section 11(f) of Parentage Act of 1984 (750 ILCS 45/11 (West 1994)), which declares a CPI of at least 500 to 1 to be "significant" regardless of laboratory protocol used by testing facility, is unconstitutional was waived in that defendant failed to raise argument in trial court and failed to comply with requirements of Supreme Court Rule 19 in not serving appropriate, timely notice on Attorney General of intent to raise constitutional issue; where defendant presented expert witness to dispute testing protocol but expert admitted that majority of experts in field deem protocol to be good and acceptable and defendant cited no scientific articles or cases supporting expert's theory, and where defendant testified that he did not engage in sexual intercourse with plaintiff, defendant failed to present clear and convincing evidence necessary to rebut presumption of paternity resulting from blood test.
PARENTAL RIGHTS
5th Dist. In Re C.C., No. 5-97-0401 (10/20/98). Massac Co. Aff'd.
Trial court did not err in terminating mother's parental rights after 4 years of foster care, where mother failed to make reasonable progress toward children's return in failing to accept fact that one child was sexually abused while in her care and in requesting that children be allowed to move into trailer not fit for human habitation with her fiance whom children did not know.
In Re A.L., No. 3-98-0096 (3d Dist. 11/13/98).Will Co. Aff'd. Respondent father's conviction for first degree murder of minor children's mother, as well as respondent's bigotry and cruelty, was sufficient evidence of depravity and justified termination of parental rights.
2d Dist. In Re W.L.W. III, Nos. 2-98-0245 and 2-98-0246 cons. (10/27/98). Kendall Co. Aff'd.
Respondents' trial attorney was not ineffective for failing to request that court reporter be present for hearing dates which culminated in trial court's judgment terminating their parental rights where respondents did not allege existence of any reversible error that might have been revealed by hearing transcripts.
PARTNERSHIP
Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.
Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.
PATENT INFRINGEMENT
1st Dist. Spectramed Inc. v. Gould Inc., No. 1-97-2263 (10/16/98). Cook Co. Aff'd.
Since under federal patent law, "infringement" occurs when anyone without authority makes, uses or sells any patented invention (35 USCA § 271(a)), contractual "event" giving rise to defendant seller of medical products group's liability was manufacture and distribution of blood pressure transducers containing features previously patented by others; fact that plaintiff purchaser ultimately avoided liability did not relieve seller of contractual obligation to pay liability arising from claim, including legal expenses incurred by purchaser; however, seller was not liable for infringement damages after reexamination certificate was issued.
PENSION CODE
O'Callaghan v. Retirement Board of Firemen's Annuity and Benefit Fund of Chicago, No. 1-98-0068 (1st Dist. 12/17/98). Cook Co. Rev'd and remanded.
Where plaintiff, a newly hired fireman, sustained knee injury during training course, which he failed to complete as a result, injury was an act arising out of and in course of employment, so that Board erred in determining that he was not disabled as result of act of duty under 40 ILCS 5/6-110, requiring remand for new hearing on question of whether petitioner was disabled; where Board's physician/consultant's testimony to effect that petitioner's inability to perform fire duties was