ISBA CASE DIGEST

CIVIL
ACCOUNTANT MALPRACTICE/ COLLATERAL ESTOPPEL / CONTRIBUTORY NEGLIGENCE
1st Dist. Board of Trustees of Community College District No. 508 v. Coopers & Lybrand L.L.P., No. 1-01-2947 (July 29, 2002) 1st div. (COUSINS) Affirmed.
Verdict against accounting firm hired to audit books of city colleges in excess of 23M Dollars reduced by 45% for contributory negligence is not against manifest weight of the evidence. Further, trial court properly allowed evidence of board members that they would have modified investment practices had they been alerted that treasurer was investing outside of prescribed parameters; and instructed jury with regards to statutory restrictions on treasurer. In addition, Texas judgment did not subject city to collateral estoppel; because Texas law requires that same parties be involved in both cases in order for collateral estoppel to apply. With regards to contributory negligence, court correctly applied audit interference doctrine. Finally, breach of contract verdict was neither against manifest weight nor legally insufficient.
Board of Trustees of Community College District No. 508 v. Coopers & Lybrand L.L.P.,

CIVIL
PLEADINGS/ DUE PROCESS
2nd Dist. Delarosa v. Approved Auto Sales, Inc., No. 2-01-0097 (July 30, 2002) Winnebago County (BYRNE) Affirmed in part, reversed in part, remanded
Trial judge abused its discretion when it denied defendant's motion to amend complaint for consumer fraud by adding count for breach of contract prior to trial; and subsequently, after trial sua sponte changed its mind, allowed motion to amend and entered directed finding on added count. The plaintiff's due process rights require that he be allowed to prepare case based on allowed pleadings. He can't be retroactively prejudiced by failing to present evidence on count of complaint that he was not allowed to file prior to trial.
Delarosa v. Approved Auto Sales, Inc.,

CIVIL
SETTLEMENT AGREEMENTS/ SANCTIONS / POST TRIAL MOTIONS
2nd Dist. Magee v. Garreau No. 2-01-0519 (July 30, 2002) Lake County (CALLUM) Affirmed with sanctions imposed.
Although defendant's motion was poorly drafted, the trial court did have jurisdiction to entertain motion to enforce settlement agreement filed within thirty days of entry of judgment on arbitration award. However, motion was properly denied; because affidavits and stipulations fail to establish that there was an enforceable agreement. Plaintiff's counsel clearly specified in letter that proposed settlement amount was only acceptable if payment was tendered to plaintiff by specified date; and defendant failed to comply when it tendered draft late that contained previously undisclosed subrogation payee. Further, court finds that appeal is frivolous and for purpose of delay and imposed sanctions.
Magee v. Garreau

CIVIL
POST DISSOLUTION / CHILD CUSTODY
2nd Dist. In re Marriage of Collingbourne No. 2-01-1079 (July 30, 2002) Kane County (MCLAREN) (BOWMAN, dissent) Reversed and remanded.
Trial court erred when it granted mother's petition to remove child from the State of Illinois to Massachusetts in order to join her fiancé. Because she failed to prove any direct benefit to ten year old son, who told court he was against move because he would miss his father, with whom he had close relationship and who was actively involved in his life, decision was against manifest weight of the evidence.
In re Marriage of Collingbourne

CIVIL
PRODUCT LIABILITY/ PREEMPTION
3rd Dist. Dickey v. Connaught Laboratories, Inc., No. 3-01-0624 (July 25, 2002) Whiteside County (MCDADE) (BRESLIN, dissent) Affirmed.
Defendant, laboratory which prepared DPT vaccine, was entitled to summary judgment dismissing product liability claim because plaintiff failed to file claim under the Vaccine Act within 36 months of first appearance of symptoms; and Vaccine Act preempts state common law claim.
Dickey v. Connaught Laboratories, Inc.,

CIVIL
COMMERCIAL CODE
4th Dist. Harder v. First Capital Bank No. 4-00-1005 (July 29, 2002) McLean County (MYERSCOUGH) .
Trial court correctly found that checks made payable to "EMERGENCY DAMAGE CONTROL CHARLES AND MARSHA HARDER" were ambiguous; and that, therefore, could be endorsed in the alternative by Charles and Marsha Harder or by Emergency Damage Control pursuant to Section 3-310 of UCC. Therefore, plaintiff's complaint against bank for negligent payment upon endorsement of only Emergency Damage Control was subject to 2-619 dismissal.
Harder v. First Capital Bank

CIVIL
PRODUCT LIABILITY/ EXPERTS / DISCOVERY
4th Dist. Bachman v. General Motors Corp. No. 4-01-0237 (July 29, 2002) Woodford County (APPLETON) MYERSCOUGH, partial concurrence, partial dissent.
Verdict in favor of defendant automobile manufacturer in product liability claim alleging the premature deployment of air bag is neither the result of trial court error nor against the manifest weight of the evidence. Defendant provided proper foundation for the testimony of expert witnesses with regards to the air bag crash sensor, properly limited the testimony of similar occurrence witnesses, ruled on appropriate discovery sanctions, and submitted special interrogatory asking jury whether plaintiff's air bag inadvertently deployed on date of occurrence.
Bachman v. General Motors Corp.

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IL-Digests author: Adrienne Albrecht. Pending cases: Michael R. Robinson. These digests are for subscribers' personal use only; redistribution is prohibited. Copyright Illinois State Bar Association.