The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

The Illinois Supreme Court has announced that on the morning of Thursday, October 27, it will file opinions in two civil cases [pdf]:

• A.B.A.T.E. v. Giannoulias, No. 110611 -- Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.
   
• Sierra Club v. Illinois Pollution Control Board, No. 110882 -- (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

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This afternoon the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the September term, and the Court will hear oral argument in ten civil cases. The cases, with the issue or issues presented in each, are:

September 20:

Simpkins v. CSX Corporation, No. 110662 -- Does an employer owe a tort duty of due care to the immediate family of its employees? See Tort Law.

The Forest Preserve District of Du Page County v. First National Bank of Franklin Park, No. 110759 & 110760 -- (1) Has a plaintiff negotiated in good faith prior to filing a complaint for condemnation where it fails to offer the full amount of the highest appraisal it receives, fails to attach an appraisal to its offer letter and adds a short time-frame for acceptance to its offer? (2) Are clauses in Annexation Agreements providing that zoning and Special Use Designations survive the expiration of the agreement contrary to Illinois law? (3) Is Section 7-121 of the Eminent Domain Act, which provides that fair market value in a condemnation proceeding shall be determined as of the date the action was filed, unconstitutional as applied under Kirby Forest Industries v. United States, 467 U.S. 1 (1984)? See Government Law.

Wisnasky-Bettorf v. Pierce, No. 111253 -- Under Section 7-61 of the Illinois Election Code, 10 ILCS 5/7-61, must an established political party timely file a resolution with the appropriate official in order to fill a vacancy in nomination when no candidate appeared on the primary ballot for that party or ran as a write-in candidate? See Election Law.

September 21:

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A. – Nos. 111286 & 111304 -- Does either the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01 et seq., and/or the Water Use Act of 1983, 525 ILCS 45/1, permit a private right of action for enforcement? See Civil Procedure.

Sandholm v. Kuecker – No. 111443 -- (1) Is the Illinois Citizen Participation Act, 735 ILCS 110/1, unconstitutional, either on its face or as applied? (2) Is the attorneys fees provision of the Act limited to fees incurred in moving to dismiss under the Act?  See Constitutional Law.

The Township of Jubilee v. The State of Illinois – No. 111447 -- Does the State’s filing of a counterclaim, after its motion to dismiss has been denied, waive a claim of sovereign immunity? See Government Law.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corporation – No. 111611 -- (1) Are claims brought under Section 4(d)(6) of the Franchise Act, 815 ILCS 710/4(d)(6), within the exclusive jurisdiction of the New Motor Vehicle Review Board? (2) Did the plaintiff otherwise state claims for relief under the Franchise Act? See Contract Law.

September 22:

Santiago v. E.W. Bliss Company – No. 111792 -- When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Nowak v. The City of Country Club Hills – No. 111838 -- May an injured public employee simultaneously collect the benefits provided under the Public Employee Disability Act, 5 ILCS 345/1, as well as the health benefit provided by Section 10(a) of the Public Safety Employee Benefits Act, 820 ILCS 320/10(a)? See Government Law.

Reliable Fire Equipment Co. v. Arredondo – No. 111871 -- What is the appropriate standard for determining whether an employer has a protectable interest in its customer list such that a non-compete clause in an employment agreement is enforceable? See Employment Law.

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The Illinois Supreme Court has announced that on the morning of Thursday, June 16, it will file opinions in four civil cases [pdf]:

• Studt v. Sherman Health Systems, No. 108182-- Does the Illinois pattern jury instruction on professional negligence (Civil No. 105.01) correctly state the applicable standards? See Tort Law.
   
• Sheffler v. Commonwealth Edison Co., No. 110166-- Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.
   
• Genius v. County of Cook, No. 110239-- Does the Cook County Employee Appeals Board have jurisdiction to decide disciplinary charges against an officer based on abolished rules? See Government Law.
   
• Snyder v. Heidelberger – No. 111052 -- Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

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 The Illinois Supreme Court has announced that on the morning of Thursday, May 19th, it will file opinions in four civil cases (pdf):

• General Motors Corporation v. Pappas, No. 108893-- (1) Does the 2005 amendment to the Property Tax Code, 35 ILCS 200/23-20, providing for the payment of interest on property tax refunds at the lower of 5% or the percentage increase in the urban CPI for the previous year, apply prospectively only? (2) Did trial court retain jurisdiction to grant judgment interest after the notice of appeal was filed? See Taxation.
   
• O'Brien v. O'Brien, No. 109039 -- (1) Does the standard set in 735 ILCS 5/2-1101(a)(3) for a motion for substitution of a judge for cause, which requires a showing of actual prejudice, survive the due process standard set forth in Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009)? (2) If so, where a party alleges that a judge has had ex parte communications with a party, does the statutory standard apply, or is the objective appearance of impropriety standard set forth in Rule 63(c)(1) of the Judicial Code applicable? See Civil Procedure.
   
• The Board of Education of Auburn Community Unit School District No. 10 v. The Illinois Department of Revenue, No. 110395 & 110422 -- Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.
   
• Bell v. Hutsell – No. 110724 -- (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

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On Friday the Illinois Supreme Court published its Call of the Docket [pdf] for the May term, and the Court will hear oral argument in five civil cases. The cases, with the issue or issues presented in each, are:

May 11:

Palm v. 2800 Lake Shore Drive Condominium Association,No. 110505 – Are the provisions of the Chicago Condominium Ordinance giving the right to compel production of documents, and authorizing interim awards of attorneys' fees, preempted by purportedly conflicting state law? See Civil Procedure.

May 17:

Sierra Club v. Illinois Pollution Control Board, No. 110882 – (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

Petersen v. Petersen, No. 110984 – Where a judgment of marital dissolution, ordering the payment of child support, expressly reserves the issue of each party's obligation to contribute to the college or other education expenses of the parties' children, is a subsequent order allocating such expenses a "modification" of the child support order within the meaning of the Marriage and Dissolution of Marriage Act, 750 ILCS 5/510, such that only sums incurred on the notice date of the petition and afterwards may be awarded? See Domestic Relations.

City of Chicago v. Stubhub! Incorporated, No. 111127 – May municipalities such as the City of Chicago require electronic intermediary services to collect and remit amusement taxes on resold tickets? (Certified by the United States Court of Appeals for the Seventh Circuit, Case No. 09-3432, 624 F.3d 363.

Wirtz v. Quinn, No. 111903 – Does Public Act 96-34 violate the single subject rule of the Illinois Constitution?  See Government Law.

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The Illinois Supreme Court has announced that on the morning of Thursday, March 24^th, it will file opinions in five civil cases (pdf):

• Williams v. Board of Review, No. 109469--Was terminated employee entitled to a good cause extension of the statutory deadline requiring that an eligible worker must enroll in an approved training program within a certain time in order to be eligible for federally funded trade adjustment assistance benefits? See Employment Law.
   
• Goodman v. Ward, No. 109796 -- Is a candidate for a judgeship in a particular judicial subcircuit required to be a resident of that subcircuit on the date the candidate petitions to have his or her name placed on the primary ballot? See Election Law.
   
• Barber v. American Airlines, Inc., No. 110092 -- Did airline’s unilateral refund of passenger’s baggage fee, after passenger filed putative class action complaint, constitute an attempted “pick off” which did not moot passenger’s complaint? See Civil Procedure.
   
• Howell v. Dunaway – Nos. 110199, 110200 -- Is a hospital’s statutory lien for services, filed pursuant to the Health Care Services Lien Act, 770 ILCS 23/1, subject to a reduction under the common fund doctrine for attorney fees incurred by the injured plaintiff? See Tort Law.
   
• Vincent v. Alden Park Strathmoor, Inc., No. 110406 -- Does a claim for common law punitive damages pursuant to the Nursing Home Care Act survive the death of the nursing home patient? See Punitive Damages.

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This afternoon, the Illinois Supreme Court published its Call of the Docket [pdf] for the March term, and the Court will hear oral argument in six civil cases. The cases, with the issue or issues presented in each, are:

March 16:

Sheffler v. Commonwealth Edison Co.,No. 110166 – Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.

Italia Foods, Inc. v. Sun Tours, Inc.,No. 110350 – (1) Does the federal Telephone Consumer Protection Act require that the Illinois legislature enact enabling legislation before private claims under the TCPA can be heard in state courts? (2) Are TCPA claims "statutory penalties" within the meaning of state law, and if so, are the claims assignable, and what is the applicable statute of limitations? (3) If the claim is not assignable, were absent class members' claims tolled when, for a twenty-seven month period, no class representative with proper standing was present before the court? See Civil Procedure.

The Board of Education of Auburn Community Unit School Dist. No. 10 v. The Illinois Dept. of Revenue, No. 110395/110422 – Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.

March 22:

ABATE of Illinois, Inc. v. Giannoulias, No. 110611 – Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.

Bell v. Hutsell, No. 110724 – (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

Snyder v. Heidelberger, No. 111052 – Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

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This afternoon, the Illinois Supreme Court published its Call of the Docket for the November term, and the Court will hear oral argument in fifteen civil cases. The cases, with the issue or issues presented in each, are:

November 10:

General Motors Corp. v. Pappas, No. 108893 – (1) Does the 2005 amendment to the Property Tax Code, 35 ILCS 200/23-20, providing for the payment of interest on property tax refunds at the lower of 5% or the percentage increase in the urban CPI for the previous year, apply prospectively only? (2) Did trial court retain jurisdiction to grant judgment interest after the notice of appeal was filed? See Taxation

Illinois Department of Healthcare and Family Servs. v. Wiszowaty, No. 109151 – Did the 1987 amendments to Section 12-109 of the Code of Civil Procedure and Section 505 of the Illinois Marriage and Dissolution of Marriage Act make simple interest mandatory on past-due child support payments? See Civil Procedure.

Cookson v. Price, No. 109321 – Where plaintiff in a health care malpractice action failed to file a complying certificate, signed by a qualifying health care professional within the statutory period, attesting to the merit of the action, may the trial court give leave to file a replacement certification by another professional outside the statutory period?  See Civil Procedure.

November 16 –

Carr v. Gateway, Inc., No. 109485 – Where a commercial arbitration provision specifies a particular forum, which is no longer available when the dispute arises, is the entire arbitration provision rendered unenforceable? See Arbitration.

Ries v. City of Chicago, No. 109541 – (1) Are the defendants entitled to immunity from liability pursuant to Section 106(b) of the Tort Immunity Act for their alleged conduct in failing to terminate pursuit of an escaped prisoner? (2) If so, does the statutory exception allowing liability for willful and wanton behavior , found in Section 202 of the Act, apply to Section 4-106(b) immunity? See Government Law.

Johnston v. Weil, No. 109693 – Whether evaluations, communications, reports and information relating to a mental health professional’s independent evaluation in connection with custody dispute are confidential pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”), 740 ILCS 11/1 et seq.? See Domestic Relations.

In re Application of the County Collector of DuPage County for Judgment for Taxes for the Year 1999, No. 109711 – Does the Pension Code require a Forest Preserve District to pass an appropriation ordinance setting the amount of its mandatory contribution to the Illinois Municipal Retirement Fund before the District may validly enact a tax to pay for that contribution? See Taxation.

Kaufmann v. Jersey Community Hospital, No. 109738 – Where the defendant doctor allegedly committed a "deviant act of sex" upon the plaintiff during an allegedly unnecessary examination, did the patient's injury "aris[e] out of patient care," meaning that the two-year statute of limitations found in 745 ILCS 10/8-101(b) applied, or did the one-year statute found in Section 101(a) of the statute apply? See Government Law.

Follow me below the jump for the last two days of the Court's docket.

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In Illinois, as in many states, a defendant can't include settled defendants on the verdict form, seeking an apportionment of fault.

So is there a way to make a settled defendant's conduct admissible?

Last week, the Illinois Supreme Court answered "yes."

Ready v. United/Goedecke Services arose from the death a construction worker in an accident at a power plant. The decedent's administrator sued the general contractor and the scaffolding subcontractor, and the defendants cross-claimed against the decedent's employer. The administrator settled with the general contractor and the employer, and went to trial against the subcontractor.

The subcontractor alleged as an affirmative defense that the accident was caused in whole or in part by others.

Plaintiff moved in limine to keep out all evidence of the settling defendants' conduct. The Appellate Court held that a defendant's fault should be assessed under 735 ILCS 5/2-1117 compared to all other defendants, including settled defendants, so evidence of their conduct was relevant and admissible. In 2008, the Supreme Court reversed, holding that settling defendants could not be apportioned liability under 735 ILCS 5/2-1117. The Court remanded for consideration of the defendant's sole proximate cause defense.

On remand, the Appellate Court sent the case back to the trial court, holding that the Circuit Court erred by excluding evidence of the defendants' conduct, and the Supreme Court once again allowed an appeal.

The Supreme Court reversed. The Court held that the Circuit Court should have permitted evidence of the settled defendants' conduct with respect to the defendant's sole proximate cause defense, and instructed the jury on the defense. Nevertheless, the Court declined to order a new trial, finding the error harmless.

The lesson for Illinois defense lawyers: just because your co-defendants have settled out doesn't mean that an empty chair defense is unavailable.

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The Illinois Supreme Court announced this afternoon that on the morning of Thursday, October 21, it will file opinions in four civil cases:

• J. P. Morgan Chase Bank, N.A. v. Earth Foods, Inc., No. 107682 -- Does Section 1 of the Sureties Act, 740 ILCS 155/1, also apply to guarantors?
   
• In re Estate of Wilson, No. 108487 -- Does 735 ILCS 5/2-1001(a)(3) of the Code of Civil Procedure permit a judge to make an initial determination of whether a petition to substitute judges for cause makes a threshold showing of prejudice before transferring the matter to another judge for decision?
   
• Ready v. United/Goedecke Services, Inc., No. 108910 -- Where a defendant has denied liability, may defendant introduce evidence regarding the conduct of other defendants who have settled in good faith pre-trial for the purpose of showing that one or more of the settling defendants were the sole proximate cause of plaintiff’s injuries?  
   
• Wright Development Group, LLC v. Walsh, No. 109463 -- (1) Where the Citizens' Participation Act gives a defendant successfully moving to dismiss an action a right to an award of attorneys' fees and costs incurred in connection with the motion (735 ILCS 110/25), was defendant's appeal from denial of his motion to dismiss mooted by the subsequent dismissal of the action on other grounds?  (2) If not, was defendant entitled to dismissal of the defamation action pursuant to the Act?

For further details on these four cases, click our Illinois Supreme Court Update, and then Surety, Civil Procedure, Tort, and Civil Procedure, respectively.

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Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases. They are:

• Sheffler v. Commonwealth Edison Co., 399 Ill.App.3d 51 (1^st Dist., 2010), which involves the question of whether a complaint seeking injunctive and damages relief in connection with defendant’s alleged failure to give priority, in restoring power after storms, to customers dependent on electric life support system, fell within the exclusive jurisdiction of the Illinois Commerce Commission;
   
• Genius v. County of Cook, 398 Ill.App.3d 321 (1^st Dist 2010), which involves the question of whether the Cook County Employee Appeals Board had jurisdiction to decide disciplinary charges against officer based upon abolished rules;
   
• Italia Foods, Inc. v. Sun Tours, 399 Ill.App.3d 1038 (2^nd Dist., 2010), which involves the question of whether federal Telephone Consumer Protection Act required that Illinois legislature enact enabling legislation before private claims under the TCPA could be heard in state courts;
   
• Board of Education of Auburn Community Unit School Dist. No. 10 v. Illinois Department of Revenue, 398 Ill.App.3d 629 (4th Dist. 2010), which involves the question of whether the Property Tax Extension Limitation Law applied to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL;
   
• Vincent v. Alden-Park Strathmoor, Inc., 399 Ill.App.3d 1102 (2^nd Dist. 2010), which involves the question of whether a claim for common law punitive damages pursuant to the Nursing Home Care Act survives the death of the patient;
   
• Palm v. 2800 Lake Shore Drive Condominium Association, 401 Ill.App.3d 868 (1^st Dist. 2010), which involves the question of whether provisions of the Chicago Condominium Ordinance requiring production of documents were preempted by purportedly conflicting Illinois state law;
   
• A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 401 Ill.App.3d 326 (4^th Dist. 2010), which involves the question of whether statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violated the takings clause of either the federal or state constitutions; and
   
• Phoenix Insurance Co. v. Rosen, [Rule 23 Order] (1^st Dist. 2010), which involves the question of whether the provision permitting trial de novo following arbitration was void and unenforceable pursuant to public policy.

For further details on all of these cases, click the "Illinois Supreme Court Update" to the right of this page.

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An insurance policy required that the insured "immediately record the specifics of the claim" and "see to it that we receive written notice of the claim . . . as soon as practicable."

The insured waited 27 months before giving its insurer written notice of a defamation suit.

The Appellate Court held that the insured had breached the written notice clause, and that the presence or absence of actual notice had no bearing on the issue.

But last week, a divided Illinois Supreme Court reversed. West American Insurance Co. v. Yorkville National Bank, [pdf] No. 108285.

The plaintiff offered testimony of several casual contacts with representatives of the insurer following the filing of the lawsuit.

The president of the insured told an insurance agent "in passing" that the insured had "a defamation suit in Ottawa" -- the suit was in Joliet -- and it was a "he said/she said sort of thing." The president said nothing about when the alleged defamation took place, nor did he provide the agent with a copy of the complaint, nor did he offer to send any additional information. The agent said the suit was "probably not" covered, but the president never pursued the matter.

Later, the president met another insurance agent. He vaguely referred to a defamation suit and asked whether the policy would cover it. The agent gave "basically the same response."

Finally, the defamation suit was briefly mentioned at three meetings of the bank board of directors, although apparently no information was recounted about where the suit was filed, when the incident allegedly took place, or who the parties to the lawsuit were.

The majority held that the timeliness of an insured's notice was judged by a five factor test: (1) the specific language of the policy's notice provision; (2) the insured's sophistication in commerce and insurance matters; (3) the insured's awareness of an event that may trigger insurance coverage; (4) the insured's diligence in ascertaining whether policy coverage is available; and (5) prejudice to the insurer.

 The Court held that the first factor weighed in neither direction, and the second and third weighed against a finding of reasonable delay.

However, the Court held that the fourth factor weighed heavily in favor of a finding of reasonableness. An insurer is deemed to have "actual notice," the Court found, where it has sufficient information to locate and defend the suit. The Court held that the casual conversations between officers of the insured and various agents were sufficient for the insurer to "locate and defend" the action, and taken together, the factors weighed in favor of finding the insured's delay in notice reasonable.

Justice Charles Freeman dissented. "[I]t is apparent," Justice Freeman wrote, "that [the insured] breached each and every reporting obligation it agreed to as a condition of coverage."

Justice Freeman strongly condemned the majority's decision:  

By ignoring the settled rules of insurance policy construction . . . the majority redirects the focus of analysis away from compliance with policy provisions to an unworkable and problematic case-by-case examination, requiring swearing contests between the insurer and insured as to whether and when notice was provided . . . today's opinion . . . effectively overrules decades of precedent establishing that notice provisions are conditions precedent to coverage under a policy.

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Last week, the Illinois Supreme Court filed opinions resolving four new civil cases:

• Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, [pdf] No. 109137 -- In a personal injury action, the Court held that the Bi-State Development Agency, which was created by an interstate compact between Illinois and Missouri, is a "local public entity" within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act. Therefore, a one-year statute of limitations applied, and the action was barred.
   
• Hurlbert v. Charles, [pdf] No. 109041 -- In an action for malicious prosecution, the Court held that the doctrine of collateral estoppel did not apply to the finding of probable cause in plaintiff's driver's license statutory summary suspension hearing following a DUI arrest.
   
• Irwin Industrial Tool Company v. The Illinois Department of Revenue, [pdf] No. 109300 -- In a case brought under the Use Tax Act, the Court held that there was a substantial nexus between a corporate airplane and the state of Illinois such as to permit the Department of Revenue to impose a use tax on the sale. The Court further held that the Act's provision of a credit for sales taxes paid in other states satisfied the fair apportionment requirement of the Federal Commerce Clause.
   
• K. Miller Construction Company, Inc. v. Joseph J. McGinnis, [pdf] No. 109156 -- In an action for breach of contract and quantum meruit, the Court held that where a contractor performed home remodeling work in excess of $1,000 value on an oral contract, in violation of the Home Repair and Remodeling Act, the statutory violation did not render the contract unenforceable. The Court held that recovery was also available on a quantum meruit theory.

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The members of the Illinois Supreme Court have selected Supreme Court Justice Thomas L. Kilbride as the new Chief Justice. Justice Kilbride will begin his term on October 26, 2010, following the retirement of Chief Justice Thomas Fitzgerald.

Justice Kilbride received his law degree from Antioch School of Law in Washington, D.C. in 1981. He practiced law for twenty years in Rock Island, handling matters in a variety of areas, including environmental law, labor law, employment, and appellate law. He was elected to the Supreme Court in 2000, and is a candidate for another ten year term on the Court in the November 2010 election.

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The beginning of the Illinois Supreme Court's September docket was overshadowed this week by a surprise announcement from Chief Justice Thomas R. Fitzgerald. Chief Justice Fitzgerald told his colleagues that he had been diagnosed with Parkinson's Disease, and would retire from the Court effective October 25, 2010, rather than running for a full ten-year term.

Chief Justice Fitzgerald's retirement caps a distinguished thirty-four year career in the Illinois judiciary. Chief Justice Fitzgerald was elected as a Circuit Judge in Cook County in 1976 -- at the time, the youngest elected Judge in the county. After eleven years as a trial judge in the Criminal Court, the Chief Justice was assigned as Supervising Judge of Traffic Court. He was assigned as Supervising Judge of Traffic Court in 1989. Chief Justice Fitzgerald was elected to the Supreme Court in 2000.

Acting upon Chief Justice Fitzgerald's recommendation, the Court appointed Justice Mary Jane Theis of the Appellate Court, First Appellate District, to serve the remainder of Chief Justice Fitzgerald's term. Justice Theis served as an Associate Judge and later, a Circuit Judge before being elected to the Appellate Court in 1994. Once Justice Theis takes her seat, three of seven members of the Court will be women for the first time in state history.

Chief Justice Fitzgerald "has served the people of Illinois with honor and integrity," said Governor Quinn in a statement. The retiring Chief Justice "will be greatly missed." According to the Governor, "Justice Theis has demonstrated sound legal judgment and an unwavering commitment to finding truth and upholding the law of the land."

According to Supreme Court spokesman Joe Tybor, the Court will file its order naming one of its members Chief Justice later today.

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The Illinois Supreme Court has announced its oral argument calendar [pdf] for the upcoming September term, and it contains just one civil case. On September 22, 2010, the Court will hear argument in Hossfeld v. Illinois State Board of Elections, No. 109725.  Hossfeld involves the question of whether the appellant was a qualified primary voter for the Republican Party, such that his “Statement of Candidacy” in the February 2010 Republican primary for State Senator was valid, and he was therefore entitled to be on the ballot.  For more information on Hossfeld, click “Election Law” in the Illinois Supreme Court Updates.

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Snow and ice are a fact of life in Chicago during the winter months. So what duties of care do government agencies, individuals and businesses have in relation to dealing with winter conditions? The Illinois Supreme Court addressed this important issue late last week in Krywin v. The Chicago Transit Authority [pdf].

Illinois has long followed the "natural accumulations rule": a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow or water from its property. But it's equally true that because mass transit agencies are "common carriers" under the law, they have a duty to their passengers to exercise the highest degree of care, not only to carry them safely to their destinations, but to provide them with a reasonable opportunity to leave the conveyance safely.

So does the natural accumulations rule apply to mass transit? In Krywin, a divided Supreme Court answered "yes."

Krywin arose from a 2005 accident, when plaintiff slipped on an icy subway platform owned by the Chicago Transit Authority. Plaintiff sued the CTA in a two-count complaint, alleging negligence and willful and wanton conduct. The trial court allowed a limited version of plaintiff's theory to go to the jury, and the jury returned a verdict for plaintiff. The Appellate Court reversed.

Before the Supreme Court, Krywin argued that the natural accumulations rule has always been based on the proposition that it is unfair and unrealistic to require municipalities and businesses to remove snow and ice on an ongoing basis while a storm continues. The Court disagreed, finding that the rule applies regardless of whether a storm is in progress, or how long a natural accumulation has existed. The Court concluded that the natural accumulation rule should apply to plaintiff's claim:

CTA had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation.

Plaintiff's fallback argument was that even if the natural accumulations rule applied to common carriers, the CTA could have met its duty to provide a safe place to alight by stopping under the canopy which covered less than half of the platform. The Court disagreed, finding that it was impractical to require the CTA to evaluate each platform each time a train pulled in to determine what portions of the platform, if any, were the most free of snow and ice.

Justice Freeman dissented, with Justice Kilbride joining. Justice Freeman argued that because the Illinois Legislature had codified the natural accumulations rule in the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-105, but had specifically excluded the CTA from the Act, 745 ILCS 10/2-101(b), the Legislature intended that the natural accumulations rule not apply to the CTA.

Justice Freeman also argued that the majority's holding was contrary not only to the Court's earlier authorities, but also to the weight of authority in foreign jurisdictions. Pointing to decisions of the Alaska and Michigan Supreme Courts, as well as Section 343 of the Restatement (Second) of Torts, Justice Freeman argued that the weight of authority around the country rejected the natural accumulations rule. "I would hold that a common carrier's standard of care trumps the natural accumulation rule," Justice Freeman wrote, arguing that the CTA should be required to warn passengers of icy platforms, and "a jury would have to decide whether the parties acted reasonably."

Ironically, the "take-away" from Krywin comes from Justice Freeman's dissent. "[I]n northern climates, like ours, where ice and snow are a fact of life, people are aware of the hazards posed by such conditions, and it is impractical to require property owners and carriers to remove snow and ice." The Court's decision in Krywin provides a needed dose of common sense for defense counsel to fight suits arising from the difficult winter weather that is a "fact of life" here in Chicago.

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The Illinois Supreme Court announced yesterday afternoon that it will release two opinions [pdf] on the morning of Thursday, July 15^th, including one civil case:

• No. 108888, Krywin v. Chicago Transit Authority, which presents the issue of whether the “natural accumulations rule,” which provides that a business owner generally has no duty to take precautions against natural accumulations of snow and ice, trumps a common carrier’s duty to furnish a passenger an opportunity to safely alight and reach a place of safety?

For full details on Krywin, check our Illinois Supreme Court Update. Krywin can be found under the link for Torts.

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Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases.  They are:

• Uldrych v. VHS of Illinois, Inc., Williams v. Board of Review, 2010 WL 743894 (1^st Dist., 2010), which involves the question of whether implied indemnity actions are subject to the four-year statute of repose governing actions which “aris[e] out of patient care”;
   
• Barber v. American Airlines, Inc., 2010 WL 546359 (1^st Dist., 2010), which involves the question of whether and when a defendant’s tender of the relief sought by a class representative prior to class certification moots the action;
   
• Lemmenes v. Orland Fire Protection District and Gaffney v. Board of Trustees of the Orland Fire Protection District, 2010 WL 1133028 (Lemmenes) and 397 Ill.App.3d 679 (Gaffney), 2010 (Lemmenes) and 2009 (Gaffney) decisions from the First District, consolidated by the Supreme Court, which involve the question of under what circumstances a firefighter injured while participating in a training exercise “reasonably believes” that he or she is responding to an emergency for purposes of being entitled to continued payment of health insurance premiums for the firefighter and his or her family;
   
• Howell v. Dunaway, 924 N.E.2d 1190 (5^th Dist. 2010), which involves the issue of whether various hospitals’ statutory liens for services under the Health Care Services Lien Act were properly reduced by a share of attorneys’ fees incurred by the injured parties pursuant to the common fund rule;
   
• LaSalle Bank National Association v. Cypress Creek, 398 Ill.App.3d 592 (3^rd Dist. 2010), which involves several questions relating to allocation of foreclosure proceeds where both a mortgagee and mechanics’ lien claimants are present;
   
• Thompson v. Gordon, 398 Ill.App.3d 538 (2^nd Dist. 2009), which involves the question of whether expert witness testimony created genuine issues regarding duty, breach and causation in a negligence action arising from a contract to design a replacement for a bridge deck; and
   
• Jablonski v. Ford Motor Company, 398 Ill.App.3d 222 (5^th Dist. 2010), which involves several issues respecting whether plaintiffs’ multiple theories of negligence and claim for punitive damages were properly submitted to the jury.

For further details about all eight cases, check Appellate Strategist's database of civil issues pending at the Illinois Supreme Court.

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This afternoon, the Illinois Supreme Court published its May docket for oral arguments, and the Court’s docket includes nine civil cases. The cases, with the issue or issues presented in each, are:

May 13:

• Hurlbert v. Charles, No. 109041: “Under the Supreme Court's decision in People v. Moore, 138 Ill.2d 162 (1990), does a finding of probable cause in a drivers' license summary suspension hearing arising from a DUI arrest collaterally estop the driver from relitigating the issue in a subsequent civil action?

May 18:

• In re Estate of Mary Ann Wilson, No. 108487: “Does 735 ILCS 5/2-1001(a)(3) of the Code of Civil Procedure permit a judge to make an initial determination of whether a petition to substitute judges for cause makes a threshold showing of prejudice before transferring the matter to another judge for decision?
   
• Vancura v. Peter Katris, et al., No. 108652: “(1) Was notary’s employer liable under the Notary Public Act, 5 ILCS 312/7-102, where notary authenticated forged signature on mortgage assignment, based on a theory that employer either expressly or impliedly consented to notary’s alleged misconduct? (2) Is the Notary Public Act the exclusive statement of the standard of care in an action for negligence against a notary? (3) Did notary’s employer breach any applicable duty to train and/or supervise?”
   
• State Building Venture v. O’Donnell, No. 108673: “(1) Was the action of a tenant in a state-owned office building against a state department on its lease barred by either sovereign immunity or collateral estoppel? (2) If not, did the enabling statute 20 ILCS 405/405-315(a)(s), unambiguously permit leases with automatic renewal periods?”
   
• Ready v. United/Goedecke Services, Inc., No. 108910: “Where a defendant has denied liability, may defendant introduce evidence regarding the conduct of other defendants who have settled in good faith pre-trial for the purpose of showing that one or more of the settling defendants were the sole proximate cause of plaintiff’s injuries?”

May 19:

• Millennium Park Joint Venture, LLC v. Houlihan, No. 108923: “Are the remedies set forth in the Property Tax Code, 35 ILCS 200/23-5, 23-10, 23-15, a taxpayer’s sole avenue for arguing that an assessed property tax is ‘unauthorized by law’?”
   
• Hubble v. Bi-State Development Agency, No. 109137: “Is the defendant, an agency formed pursuant to an interstate compact, a “local public entity” within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101, and therefore subject to the one-year statute of limitations set forth in the Act.”
   
• Irwin v. Department of Revenue, No. 109300: “(1) Did corporate aircraft hangared in different state have substantial nexus to Illinois sufficient to permit Illinois to impose use tax on purchase price of plane? (2) If so, was Illinois statute's system of credits for tax paid other states sufficient to satisfy Interstate Commerce clause without further apportionment?”
   
• Wright Development Group, LLC v. Walsh, No. 109463: “(1) Where the Citizens’ Participation Act gives a defendant successfully moving to dismiss an action a right to an award of attorneys’ fees and costs incurred in connection with the motion (735 ILCS 110/25), was defendant’s appeal from denial of his motion to dismiss mooted by the subsequent dismissal of the action on other grounds? (2) If not, was defendant entitled to dismissal of the defamation action pursuant to the Act?”

Decisions in these cases will be filed later in the year.

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Many states have enacted statutes automatically invalidating, under one set of circumstances or another, contracts which seem to require mandatory arbitration of disputes. In a 5-0 decision today (with two justices not participating), the Illinois Supreme Court cast such statutes in doubt, holding that two clauses of the Illinois Nursing Home Care Act were preempted by the Federal Arbitration Act. Carter v. SSC Odin Operating Company.

Plaintiff's decedent and plaintiff herself, as special administrator, executed contracts providing that disputes over decedent's care while she lived in the defendant's nursing home would be decided in arbitration. After decedent's death, plaintiff sued for wrongful death and violations of the Nursing Home Care Act. The defendant moved to compel arbitration, relying upon section 2 of the Federal Arbitration Act.

At first glance, the Illinois Nursing Home Care Act would seem to have required the Circuit Court to deny defendant's motion. The Act invalidates any waiver by a resident or his or her legal representative of the right to sue under the Act, and also invalidates any waiver of the right to trial by jury for an action under the Act. But not so fast: according to the Federal FAA, mandatory arbitration terms are valid "save upon such grounds as exist at law or in equity for the revocation of any contract."

So was the Nursing Home Care Act's language grounds equally applicable to revocation of any contract? No, according to the Illinois Supreme Court.

The sort of defense Congress had in mind, the Court wrote, was fraud or lack of consideration -- general defenses that had nothing specifically to do with arbitration. But the FAA strips the states of any power to invalidate arbitration clauses per se. According to the unanimous Court, that national policy is to be applied in broad terms: any statute requiring that a dispute be resolved in court is invalid if the underlying contract had a mandatory arbitration clause.

The lesson for defense counsel is clear. If a statute forbids waiver of a cause of action, or requires a jury trial, and the contract at issue contains an arbitration clause, the underlying statute is probably preempted. Under the Court's reasoning, a statute apparently aimed at protecting a certain class of plaintiffs -- whether nursing home residents, or seniors, or consumers -- from mandatory arbitration clauses will almost never prevail against the FAA. 

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Today, the Illinois Supreme Court affirmed a punitive damage award that had been drastically reduced by the trial judge, and cut still more by the intermediate appellate court, to slightly over $80,000, or 1:1.  The State high court affirmed the punitives as reduced to 1:1.  This may sound like just another case applying the Campbell federal due process guidelines regarding excessive awards.  It isn’t. 

In Slovinski v. Elliott (pdf), plaintiff sued his former employer for defamation.  The jury awarded him $81,600 in emotional distress damages and $2 million in punitives.  The trial judge cut that number to $1 million; the appellate court chopped it down still more,  to 1:1.  The Illinois Supreme Court, with one dissenter, affirmed the reduction to $81,600.  In the process it provided some insight into Illinois procedure for “remitting” –  that’s appellate-speak for cutting –  punitive awards, and the propriety of the amount under Illinois state law.

Procedural challenges. Plaintiff argued that the reductions by the trial and appellate courts were procedurally improper for a number of reasons, e.g., that “specific findings” were required in order to cut, and the failure to make findings meant plaintiff should get his $2 million reinstated.  The answer to that one was “no.”  Courts are simply required to explain why a reduction is necessary, and why they think the trial judge or jury got it wrong, not to jump through meaningless hoops.  A refreshing, common sense approach.

Substantive challenge.   The Supreme Court began by noting that a punitive damage award never compensates the plaintiff, who has been made whole by the compensatory award.  Thus, the focus should be on whether the defendant’s conduct justifies the award.  After that, the court had no trouble concluding that $81,600 in punitives was ample punishment, noting:

• Defendant’s intent.  The jury heard no evidence that defendant had an intentional, premeditated scheme to harm the plaintiff.  At most, defendant consciously disregarded its employee’s rights. “This places defendant’s conduct on the low end of the scale for punitive damages, far below those cases involving a defendant’s deliberate attempt to harm another person.”

• No recidivism.  Defendant did not repeat the defamatory statements, but made them only once, and only those present at the meeting heard them.

• Minimal harm to plaintiff.  The jury’s compensatory damages verdict showed “limited harm to plaintiff.”  There was no damage award for loss of reputation or lost wages.  And on the emotional distress award, there was no evidence of any physical harm to plaintiff, no visits to a doctor or therapist, no evidence that plaintiff missed work, no evidence of any alteration in his daily work activities.

This is Illinois State law we’re talking about.  All of this analysis sounds reminiscent of the federal guidepost considerations used to determine when a punitive award is excessive under the due process clause.  But this court was not using a Campbell-BMW analysis.  Slovenski decided this as a matter of Illinois State law.  

This reduced verdict was affirmed because under Illinois law, “an award of punitive damages must be remitted to the extent that there is no material evidence to support it.”  Even in cases of defamation per se, the  malicious conduct necessary to support an award of punitive damages may not be presumed, but must be proved by competent evidence.”  (Emphasis added.)  The trial court thus abused its discretion is remitting the award to only $1 million because there is no basis in the record to support such an award. 

Trial judges take note: whether you cut or not, abuse of discretion won’t necessarily be a shield.

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The Illinois Supreme Court announced this afternoon that it will release seven opinions [pdf] on the morning of Thursday, April 15th, including two civil cases:

• No. 106511, Carter v. SSC Odin Operating Company, LLC, which presents the issue of whether the clauses of the Illinois Nursing Home Care Act invalidating any contractual provision limiting a resident's cause of action under the Act, or waiving jury trial, are preempted by the Federal Arbitration Act?
   
• No. 107146, Slovinski v. Elliott, which presents the following issues: (1) Must a Circuit Court make findings of fact and conclusions of law before it may set aside a jury's award of punitive damages?  (2) What standard of review applies to an Appellate Court's power to review a punitive damages award? and (3) May a party attack a punitive damages award based on lack of evidence, when the party declined to produce that evidence in discovery? 

For full details on these cases, click our Illinois Supreme Court Update.  These cases can be found under the links for Arbitration, Punitive Damages, and Civil Procedure, respectively.

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This afternoon, the Illinois Supreme Court allowed petitions for review in eight new civil cases.  They are:

• Williams v. Board of Review, 395 Ill.App.3d 337 (1st Dist., 2009), which involves review of a decision by the Board of Review of the Department of Employment Security to deny a terminated employee's application for a Federally-funded trade readjustment allowance;
   
• In re County Collector of Du Page Co., 2009 WL 3970918 (2nd Dist., 2009), a case involving the scope of the power to tax on behalf of a forest preserve district to pay for the district's contribution to the Municipal Retirement Fund;
   
• In re Torski C., 395 Ill.App.3d 1010 (4th Dist., 2009), which involves the question of whether the definition of "dangerous conduct" found in the involuntary commitment statute is void for vagueness;
   
• Ries v. City of Chicago, 396 Ill.App.3d 418 (1st Dist., 2009), a personal injury suit involving the scope of a city's immunity from liability for the conduct of a police officer during the pursuit of a stolen police vehicle;
   
• Johnston v. Weil, 336 Ill.Dec. 285 (1st Dist., 2009), which involves the question of whether the Confidentiality Act applies to communications during an evaluation made by a court-appointed independent evaluator with respect to custody and visitation issues;
   
• Kaufman v. Jersey Community Hospital, 396 Ill.App.3d 729 (4th Dist., 2009), which involves the construction of Section 8-101 of the Tort Immunity Act, 745 ILCS 10/8-101, providing limitations periods governing (a) claims against local entities or their employees; and (b) claims against such entities arising out of patient care;
   
• Goodman v. Ward, 2010 WL 184081 (3rd Dist., 2010), which involves the question of whether a candidate for a judgeship in a particular subcircuit must be a resident of that subcircuit on the date of his ballot petition; and
   
• Hossfeld v. Illinois State Board of Elections, 2010 WL 743877 (1st Dist., 2010), which involves the meaning of the requirement that a candidate for state Senate in a primary election must be a "qualified primary voter" of his or her party.

We will update Appellate Strategist's database of civil issues pending at the Illinois Supreme Court shortly with our analysis of these new cases.

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The Appellate Strategist was the first blog to offer a comprehensive, regularly-updated database of civil issues -- broken down by category and subject matter -- that the California Supreme Court has agreed to hear and decide.

We are proud to announce two new features.

1. Since this "preview of coming attractions" has been one of our most popular features, we have expanded our reach to track and report on civil issues pending before the Texas Supreme Court and the Illinois Supreme Court.
    
2. In the coming months, we will be adding Florida, New York and New Jersey to our coverage of state Supreme Courts. 

We welcome your comments.

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If a business evicts a patron on the grounds that he's intoxicated, puts him in his car and requires him to drive away, does the business have a tort duty to persons the patron injures?  According to the Illinois Supreme Court, the answer is "yes."  Simmons v. Homatas, No. 108108(.pdf).

Defendant Homatas visited a strip club.  Because the club featured nude dancing, it was barred from holding a liquor license.  However, the club encouraged patrons to bring their own liquor into the club, and defendant did so.  When Homatas was discovered vomiting in the restroom, club employees ejected him from the club, instructed the valet service to bring his car to the front door, put him in the car and required him to drive away.  Not long after, Homatas collided with another car, killing three passengers.

Because the club didn't sell Homatas liquor, the plaintiffs couldn't recover under the Dram Shop Act.  But that wasn't the end of it, according to the Court.  The Dram Shop Act only preempts claims based on the act of selling or providing alcoholic beverages; it doesn't necessarily preclude liability for conduct independent of providing alcohol which led to a plaintiff's injuries.  The club argued that it had no duty to determine whether Homatas was intoxicated, but the Court held it wasn't imposing one -- club employees had voluntarily concluded that the defendant was intoxicated and taken it upon themselves to force him to get in his car and drive away.

The Court held that plaintiffs' complaint alleged enough facts to give the club a common law duty within the meaning of Section 876 of the Restatement of Torts, which imposes liability on those who give substantial assistance or encouragement to someone's tortious conduct.  Justices Freeman and Burke dissented, concluding that plaintiffs' factual allegations weren't sufficient for liability to attach.  Their opinion is a good road map to defense counsel arguing that plaintiffs' allegations aren't "substantial" enough to satisfy Section 876.

The majority took pains to discourage anyone wanting to interpret its holding expansively.  The case presented "special circumstances," the Court wrote:

We do not hold today that restaurants, parking lot attendants or social hosts are required to monitor their patrons and guests to determine whether they are intoxicated.  We hold only that where . . . a defendant is alleged to have removed a patron for being intoxicated, places the patron into a vehicle and requires him to drive off, such facts are sufficient to state a common law negligence cause of action.

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The Illinois Supreme Court has published its docket book for the March term, and the Court’s docket call will be heavy on civil matters this month in Springfield. 

On March 10, the Court will hear argument in Founders Insurance Co. v. Munoz, which involves the entitlement exclusion in personal automobile insurance policies, and Speed District 802 v. Warning, which involves an unfair labor practices charge arising out of the termination of a teacher’s contract.  The next day, the Court hears Pekin Insurance Co. v. Wilson, which presents issues of the scope of evidence relevant to an insurer’s duty to defend, Krywin v. Chicago Transit Authority, which relates a common carrier’s potential duty to clear away natural accumulations of snow and ice, and Clerk v. The Children’s Memorial Hospital, which involves the scope of Illinois’ cause of action for wrongful birth.

On March 16, the Court will hear argument in Baumgartner v. Baumgartner.  There, the principal issue is whether incarceration is an act of self-emancipation terminating the support obligation in a divorce decree.  The Court will also hear K. Miller Construction Co. v. McGinnis, which involves the construction of the Home Repair and Remodeling Act.  Finally, on March 17, the Court hears Cwik v. Giannoulias, a putative class action alleging that the state’s practice of not paying over interest or income earned by reclaimed property while in the state’s custody is an unconstitutional taking of property without compensation.

Decisions in each of these cases should come later in the year.

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[UPDATED THROUGH JUNE 6, 2011]

Goodman v. Ward

Supreme Court Case Number: 109796

Appellate Court: Third District

Appellate Court Case Number: 3-09-1031

Issue Presented: Is a candidate for a judgeship in a particular judicial subcircuit required to be a resident of that subcircuit on the date the candidate petitions to have his or her name placed on the primary ballot?

Appellate Court Opinion Summary: Petitioner challenged the listing on the primary ballot of a candidate for Circuit Court Judge of the Twelfth Judicial Circuit, Fourth Subcircuit. Petitioner argued that the candidate’s lack of residency within the subcircuit made him ineligible as a candidate pursuant to Article VI, Section 12 of the Illinois Constitution, which requires that a candidate be a “resident of the unit which selects him.” Following Thies v. State Board of Elections, 124 Ill.2d 317 (1988) and Maddux v. Blagojevich, 233 Ill.2d 508 (2009), the court held that when a judgeship concerns a portion of a circuit, a candidate must be a resident in that portion at the time of filing his or her nomination papers. Justice Wright dissented.

Citation to Opinion: 2010 WL 184081

Jackson v. The Board of Election Commissions of the City of Chicago

Supreme Court Case Number: 111928

Appellate Court: First District, Division Four

Appellate Court Case Number: 1-11-0361

Issue Presented: Are property taxes a "tax or other indebtedness due to the municipality" within the meaning of 65 ILCS 5/3.1-10-5(b), which provides that certain facts disqualify a candidate for an elective municipal office?

Appellate Court Opinion Summary: Appellee filed nominating papers to run as a candidate for Chicago City alderman. An objector's petition charged that appellee was not eligible to run because she was in arrears for back property taxes, and thus owed a "tax or other indebtedness due to the municipality" within the meaning of 65 ILCS 5/3.1-10-5(b). Relying upon a letter from the city of Chicago indicating that the city did not find a record of certain outstanding debts, the hearing officer overruled the objection, and the Board of Elections agreed. The objector appealed to the Circuit Court, which affirmed the Board of Elections. The Appellate Court found that the Electoral Board's decision was clearly erroneous and reversed. On appeal, appellee argued that because the city of Chicago would have no standing to enforce a judgment for unpaid property taxes, there was no "indebtedness due" to the city of Chicago. The Appellate Court disagreed, finding that the plain language of the statute provided that although property taxes were collected by the Cook County collector, the money was due to the city. The Court held that the city would have standing to enforce payment of its property taxes. The letter received by appellee from the city was not dispositive, the Court held, because city property taxes were collected through the county collector.

Appellate Court Opinion

Wisnasky-Bettorf v. Pierce

Supreme Court Case Number: 111253

Appellate Court: Fifth District

Appellate Court Case Number: 05-10-0265

Issue Presented: Under Section 7-61 of the Illinois Election Code, 10 ILCS 5/7-61, must an established political party timely file a resolution with the appropriate official in order to fill a vacancy in nomination when no candidate appeared on the primary ballot for that party or ran as a write-in candidate?

Appellate Court Opinion Summary: In February 2010, the three established political parties in Illinois – Republican, Democratic, and Green – held primary elections to determine their candidates for the November general elections. No candidate appeared on the ballot for the Republican nomination for St. Clair County Board of Review, and no candidate was nominated as a write-in candidate. In late March, the Republican Central Committee for St. Clair County nominated the petitioner as the party’s candidate, and shortly thereafter, the party filed a “resolution/certificate of appointment” with the county clerk in an attempt to perfect the petitioner’s nomination. An objector filed a petition, seeking that the candidate’s name be stricken from the ballot on the grounds that no timely resolution had been filed. The board allowed the objection, and the Circuit Court affirmed its decision. The Appellate Court affirmed. Section 7-61 of the Code was amended, effective 2010, to require that a nominee designated by the appropriate committee of his or her party must file nominating petitions with the required number of signatures, similarly to candidates wishing to be placed on the ballot. Appellant argued that the 2010 amendments had created an alternative way of achieving nomination which did not include the requirement of a timely-filed party resolution. The Appellate Court disagreed. Justice Spomer dissented.

Appellate Court Opinion

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[UPDATED THROUGH DECEMBER 24, 2011]

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[UPDATED THROUGH DECEMBER 24, 2011]

In re Torski C.

Supreme Court Case Number: 109623

Appellate Court: Fourth District

Appellate Court Case Number: 4-08-0952

Issue Presented: Is the definition of "dangerous conduct" found in the involuntary commitment statute void for vagueness?

Appellate Court Opinion Summary: Respondent was involuntarily committed to a mental health facility pursuant to Sections 1-104.5 and 1-119 of the Mental Health and Developmental Disabilities Code.  405 ILCS 5/1-104.5, 1-119.  Section 1-119 permits the involuntary commitment of any individual who is reasonably expected to engage in "dangerous conduct" which might include either threatening behavior or conduct that places the person or another in reasonable expectation of being harmed.  Section 1-104.5 defines "dangerous conduct" as including conduct placing another individual in "reasonable expectation of being harmed," or a person's inability to guard himself or herself from serious harm because of his or her inability to provide for his or her basic physical needs.  The Appellate Court held that the "reasonable expectation" language was unconstitutionally vague because it could be interpreted to apply to conduct that does not justify the deprivation of a liberty interest.  This was so because, as written, the statute arguably applied to "the entire gamut of psychological, emotional, or financial harm, regardless of severity," and because the statute "poses a risk of arbitrary application to mentally ill individuals engaging in merely unusual or annoying behavior."  The statutory definition for involuntary commitment was also problematic because -- inasmuch as the commitment standard was looser than the one applying to involuntary administration of psychotropic medications -- the statute created the possibility of an individual who could be admitted, but not treated.

Citations to Opinion: 395 Ill.App.3d 1010, 335 Ill.Dec. 405, 918 N.E.2d 1218

Wilson v. Cook County

Supreme Court Case Number: 112026

Appellate Court: First District, Division Three

Appellate Court Case Number: 1-08-1202

Issue Presented: Is Cook County's Blair Holt Assault Weapons Ban unconstitutional?

Appellate Court Opinion Summary: Plaintiffs sought a declaration that the Blair Holt Assault Weapons Ban, Cook Co. Ordinance No. 06-O-50 (Nov. 14, 2006) was unconstitutional. The trial court dismissed plaintiffs' complaint, finding that the ordinance was not unconstitutionally vague or overbroad, nor did the ordinance violate article I, section 22 of the Illinois Constitution or the Second Amendment of the United States Constitution. Following the Appellate Court's affirmance, the Supreme Court entered a supervisory order directing the court to reconsider its ruling in light of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). The Appellate Court did so, and once again affirmed. The court held that the statute was did not bar the possession of weapons which were traditionally used for defense in the home; that the statute was neither vague nor overbroad, rejected the plaintiffs' equal protection claim, and held that the plaintiffs had waived their argument that the ordinance violated article I, section 22 of the Illinois Constitution.

Appellate Court Opinion

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[UPDATED THROUGH DECEMBER 24, 2011]

Simpkins v. CSX Transportation

Supreme Court Case Number: 110662

Appellate Court: Fifth District

Appellate Court Case Number: 5-07-0346

Issue Presented: Does an employer owe a tort duty of due care to the immediate family of its employees?

Appellate Court Opinion Summary: Plaintiff sued various defendants for personal injuries, alleging she had contracted mesothelioma due to exposure to asbestos brought home on husband’s body and work clothes during their marriage. One defendant successfully moved for dismissal, alleging that as a matter of law, an employer owes no duty of care to the families of its employees. The Appellate Court reversed. The existence of a tort duty, the Court held, depended on a balancing of four factors: (1) the foreseeability of risk of harm; (2) the likelihood of injury; (3) the magnitude of the burden involved in protecting against the harm; and (4) the consequences of placing on the defendant the duty to protect against the harm. Following decisions of the Tennessee and New Jersey Supreme Courts, the court found that these factors weighed in favor of finding a duty of care.

Appellate Court Opinion

Howell v. Dunaway

Supreme Court Case Numbers: 110199, 110200

Appellate Court: Fifth District

Appellate Court Case Number: 5-09-0071, 5-09-0072

Issue Presented: Is a hospital’s statutory lien for services, filed pursuant to the Health Care Services Lien Act, 770 ILCS 23/1, subject to a reduction under the common fund doctrine for attorney fees incurred by the injured plaintiff?

Appellate Court Opinion Summary: Both plaintiffs were injured in motor vehicle accidents, and sued the tortfeasors. The hospitals filed liens against any recovery pursuant to the Health Care Services Lien Act, 770 ILCS 23/1. After settling the personal injury actions, the plaintiffs filed petitions to adjudicate the liens, seeking to apply a one-third reduction in the amount of the liens to account for attorney fees incurred. The Circuit Court agreed with plaintiffs, applied the common fund reduction, and entered judgment, and the hospitals appealed. On appeal, the hospitals argued that the common fund rule was inapplicable to liens under the Act pursuant to the Supreme Court’s decision in Maynard v. Parker, 75 Ill.2d 73 (1979), on the grounds that plaintiffs’ debt to the hospitals was not dependent on the creation of the fund. The Appellate Court affirmed the judgment, holding that the Supreme Court had expanded the common fund rule to lienholder hospitals in a later decision, Bishop v. Burgard, 198 Ill.2d 495 (2002).

Citations to Opinion: 924 N.E.2d 1190, 338 Ill. Dec. 664

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[UPDATED THROUGH FEBRUARY 26, 2011]

Brooker v. Madigan

Supreme Court Case Number: 108244

Appellate Court: First District, Division 1

Appellate Court Case Number: 1-07-1876

Issue Presented: Does language of the Illinois Estate and Generation-Skipping Transfer Tax Act, defining an estate's tax liability as the maximum credit "allowed" pursuant to an earlier version of Federal law, permit the estate to avoid state estate taxes by claiming no credit on its Federal return?

Link to Oral Argument audio

Appellate Court Opinion Summary:  As part of a 2001 statute gradually eliminating Federal estate taxes, Congress began phasing out a credit allowed on federal returns for state taxes. Illinois responded by setting the amount of estate tax due as the full credit which would have been computed and allowed under the previous version of Federal law. Decedent died not long after her parents. Decedent's Federal estate tax return claimed no credit for state taxes paid upon the death of her parents because other factors had nearly eliminated any liability. The Circuit Court held that since the estate had claimed no state tax credit on its federal return, the language of the Illinois statute meant no state tax was due. The Appellate Court reversed, holding that the tax due was the maximum credit which could have been claimed. 

Citations to Opinion:       388 Ill.App.3d 410, 327 Ill. Dec. 860, 902 N.E.2d 1246

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[UPDATED THROUGH FEBRUARY 26, 2011]

Vincent v. Alden Park Strathmoor, Inc.

Supreme Court Case Number: 110406

Appellate Court: Second District

Appellate Court Case Number: 2-09-0625

Issue Presented: Does a claim for common law punitive damages pursuant to the Nursing Home Care Act survive the death of the nursing home patient?

Appellate Court Opinion Summary: Plaintiff sued as the legal representative of the estate of a deceased nursing home patient, seeking compensatory damages under the Nursing Home Care Act. In his complaint, plaintiff expressly reserved the right to seek an award of common law punitive damages. Defendant moved to strike the reservation on the grounds that any claim for punitive damages did not survive the decedent's death. The trial court granted the motion to strike and certified the survival issue for interlocutory appeal. The Appellate Court reversed. The Court found that there was no specific statutory authority for such an award. The plaintiff also argued that equitable considerations weighed in favor of survival, but the Court held that even if such an exception existed, equitable considerations did not support permitting survival in the case before it.

Citation to Opinion: 399 Ill.App.3d 1102, 928 N.E. 2d 115, 340 Ill. Dec. 396

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[UPDATED THROUGH AUGUST 11, 2011] 

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A.

Supreme Court Case Number: 111286 & 111304

Appellate Court: Fifth District

Appellate Court Case Number: 05-09-0207

Issue Presented: Does either the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01 et seq., and/or the Water Use Act of 1983, 525 ILCS 45/1, permit a private right of action for enforcement?

Appellate Court Opinion Summary: A not-for-profit citizens group sued, seeking injunctive relief to require defendant to remove and properly dispose of slurried coal production waste allegedly leaching into a community drinking water supply. Four counts of the complaint charged violations of the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01. An additional count alleged violations of the Water Use Act of 1983, 525 ILCS 45/1. Defendants’ motions to dismiss were granted, and plaintiff appealed. The Appellate Court affirmed in part and reversed in part. The Appellate Court held that the four counts of the complaint directed at the Surface Coal Mining Land Conservation and Reclamation Act challenged the defendant’s compliance with its regulatory permits, not the issuance of the permits themselves. Thus, those counts sounded in enforcement rather than regulation. The Court held that such a private action was permitted under Section 8.05 of the Act, 225 ILCS 720/8.05. Similarly, the Court held that a private right of action existed for enforcement under the Water Use Act. The dismissal of an additional claim directed against the Illinois Environmental Protection Agency was affirmed on the grounds that certain elements of the claim were a collateral attack on issuance of the permits, rather than an enforcement action.  

Appellate Court Opinion

Downtown Disposal Services, Inc. v. The City of Chicago

Supreme Court Case Number: 112040

Appellate Court: First District, Division Four

Appellate Court Case Number: 1-10-0598

Issue Presented: Must a corporation's complaint be automatically dismissed where it is signed and filed by a non-attorney, contrary to 735 ILCS 5/2-619(a)(9), or does the Circuit Court have discretion to decide whether dismissal would serve the purposes of the nullity rule?

Appellate Court Opinion Summary: Between 2007 and 2008, the city Department of Transportation issued appellant four administrative notices for violating City ordinances pertaining to dumpsters. When appellant failed to appear, the Department of Administrative Hearings issued default judgments. Subsequently, appellant's president filed motions to set aside the default judgments for lack of notice. The administrative law officer denied relief, and the appellant's president signed and filed four fill-in-the-blank pro se complaints for administrative review in the Circuit Court. The City moved to dismiss the complaints pursuant to 735 ILCS 5/2-619(a)(9), arguing that the appellant was a corporation and its complaints were impermissibly filed by the corporate president, who was not a licensed attorney. Appellant filed motions for leave to file amended complaints signed by a licensed attorney, arguing that this cured a merely technical defect in the original filings. The Circuit Court dismissed, denying the motions for leave to amend, on the grounds that dismissal was automatic under the "nullity rule" -- filings by an unlicensed person purporting to represent a corporation are null and void. The Appellate Court reversed. Based in part upon the Supreme Court's description of the nullity rule in Applebaum v. Rush University Medical Center, 231 Ill.2d 429 (2008), the court held that the application of the nullity rule was not automatic; rather "courts must consider whether under the specific facts presented, application of the rule would serve its purposes." The Court concluded that no purpose would be served by applying the nullity rule on the facts presented. 

Appellate Court Opinion

Palm v. 2800 Lake Shore Drive Condominium Association

Supreme Court Case Number: 110505

Appellate Court: First District, Division 5

Appellate Court Case Number: 1-08-2436

Issue Presented: Are the provisions of the Chicago Condominium Ordinance giving the right to compel production of documents, and authorizing interim awards of attorneys' fees, preempted by purportedly conflicting state law?

Appellate Court Opinion Summary: Plaintiff requested access to certain condominium association records, alleging various improprieties and deviations from association bylaws. When the association denied plaintiff's request, plaintiff filed suit, seeking an order compelling production. The trial court entered summary judgment in plaintiff's favor and ordered production. Subsequently, the court entered an order granting plaintiff interim attorneys fees. On appeal, the association argued that the Chicago Condominium Ordinance upon which plaintiff based his demand for production was preempted by state law, which provided a different standard for compelling production of documents. The Appellate Court disagreed, holding that the legislature must expressly state its intent to preempt home rule powers in order for state law to trump ordinances in home rule jurisdictions. The Court declined to follow the Second District's decision in Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill.App.3d 506. Similarly, the Court held that the provision in Chicago's Condominium Ordinance authorizing an award of interim attorneys' fees was valid and enforceable, since it was not expressly preempted by state law.

Citation to Opinion: 401 Ill. App.3d 868, 929 N.E.2d 641, 340 Ill. Dec. 990

Santiago v. E.W. Bliss Company

Supreme Court Case Number: 111792

Appellate Court: First District, Second Division

Appellate Court Case Number: 1-10-0796, 1-10-0780

Issues Presented: When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing?

Appellate Court Opinion Summary: Plaintiff filed a tort action alleging injuries sustained while using a punch press. The complaint identified the plaintiff by what would later prove to be a fictitious name, and did not disclose that the plaintiff had ever been known by any other name. Plaintiff filed a First Amended Complaint, and later verified interrogatory answers, under the false name. After plaintiff disclosed his real name during deposition, plaintiff was given leave to file a Second Amended Complaint substituting his real name, but defendants then moved to dismiss as a sanction for committing a fraud on the court, or because the statute of limitations had run and the new complaint did not “relate back.” The Appellate Court affirmed. The Court found that while the misconduct at issue did not warrant the use of the contempt power, sanctions could be justified either for violation of Supreme Court Rule 137 or Supreme Court Rule 213, or under the court’s inherent authority to control its docket. The Court held that although dismissal is not a mandatory sanction under the circumstances, it is a permissible one, subject to the sound discretion of the trial court. Finally, because the original complaint was a nullity, the Court held that the second complaint could not relate back to it for statute of limitations purposes, and therefore, the action could be dismissed pursuant to the statute of limitations.

Appellate Court Opinion

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[UPDATED THROUGH FEBRUARY 26, 2011]

American Economy Insurance Co. v. Holabird & Root

Supreme Court Case Number: 106517, 106831

Appellate Court: First District, Division 6

Appellate Court Case Number: 1-05-0403

Issue Presented: Must an insurer consider relevant allegations contained in a third-party complaint in order to determine the existence or non-existence of a duty to defend the principal complaint?

Appellate Court Opinion Summary: Plaintiff filed a claim for personal injuries allegedly arising from the selection and installation of fluorescent light fixtures and lights in a new building.  The contractor tendered defense of the suit to the insurer of the project's electrical subcontractor.  The insurer sought a declaratory judgment on no duty to defend, pointing out that the complaint had neither named the subcontractor as a defendant nor alleged any negligence on the subcontractor's part.  The contractor argued that a duty to defend was triggered because a third-party complaint in the action specifically alleged negligence by the insured.  The Appellate Court held that the insurer was obligated to consider the allegations of the third-party complaint in assessing whether it had a duty to defend the underlying complaint against the contractor.

Citations to Opinion: 382 Ill.App.3d 1017, 320 Ill.Dec. 97, 886 N.E.2d 1166

Steadfast Insurance Co. v. Caremark RX, Inc.

Supreme Court Case Number: 104906

Appellate Court: First District, Division 2

Appellate Court Case Number: 1-06-1221

Issues Presented: (1) Where an insurer pays its insured's defense costs solely in order to comply with a trial court order, may the insurer seek reimbursement of those payments when the order finding a duty to defend is reversed?  (2) Did the Circuit Court abuse its discretion by permitting the insurer to amend its complaint for declaratory judgment after the order on duty to defend is reversed to state a claim for unjust enrichment?

Appellate Court Opinion Summary: The insurer's insured was sued for allegedly conspiring to obtain undisclosed discounts, rebates and kickbacks for favoring certain drugs.  Insurer denied a defense and filed a declaratory judgment action.  The Circuit Court granted the insured's motion for summary judgment, ordered insurer to provide a defense, and refused to stay enforcement of its order pending review.  The Appellate Court reversed, holding that insurer had no duty to defend.  On remand, insurer filed a motion for restitution, seeking to recover defense costs expended between entry of the trial court's order and reversal.  The Circuit Court held that the insurer's declaratory judgment action was the "functional equivalent" of a defense on reservation of rights, and the insurer was therefore barred from recovering defense costs under General Agents Ins. Co. of Am. v. Midwest Sporting Goods Co., 215 Ill.2d 146 (2005).  The Appellate Court affirmed the Circuit Court's denial of the motion for restitution, finding that although the motion was not governed by General Agents, insurer had not stated any cause of action which could support a remedy of restitution.  However, the Appellate Court reversed the Circuit Court's refusal to permit the insurer to amend to state a claim for unjust enrichment.

Citations to Opinion: 373 Ill.App.3d 895, 311 Ill.Dec. 897, 869 N.E.2d 910

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[UPDATED THROUGH DECEMBER 24, 2011] 

Innovative Modular Solutions v. Hazel Crest School District 152.5

Supreme Court Case Number: 112052

Appellate Court: First District, Division Three

Appellate Court Case Number: 1-10-0212, 1-10-0554 and 1-10-0642

Issue Presented: Must the defendant School District pay contractual cancellation fees to the plaintiff where the State has invoked the School Finance Law, 105 ILCS 5/1F-1, creating a School Finance Authority with sole control over the District's finances, and the Authority has both cancelled the leases at issue and given the District no authority to pay the cancellation fees?

Appellate Court Opinion Summary: In July 2002, the District leased certain portable classrooms, with the contract providing for penalty payments for early cancellation. Later, the State invoked the School Finance Law, 105 ILCS 5/1F-1, which gave the Hazel Crest School District Finance Authority sole financial control over the District, including the power to cancel contracts. In February 2004, the Authority cancelled the classroom leases. Plaintiff sued the District and the Authority, seeking a declaratory judgment that the leases could only be cancelled in accord with the cancellation provisions; a judgment striking down the School Finance Law as applied; and damages for breach of contract. The trial court granted partial summary judgment, finding that the Authority's action excused the District's performance based on commercial frustration. Nevertheless, the trial court later held on the dec relief claim that the School Finance Law did not give the Authority the power to cancel the plaintiff's rights under the cancellation clauses. The Appellate Court reversed the declaratory judgment, holding that the trial court's finding that the Authority's action frustrated the District's performance necessarily mooted the dec relief count. The Court then affirmed the judgment on the breach of contract count, finding that the District's performance was rendered legally impossible by the Authority's action.

Appellate Court Opinion

Lemmenes v. Orland Fire Protection District & Gaffney v. Board of Trustees of the Orland Fire Protection District

Supreme Court Case Numbers: 110198, 110012

Appellate Courts: First District, 2^nd Division (Lemmenes); First District, Sixth Division (Gaffney)

Appellate Court Case Numbers: 1-09-1133 (Lemmenes); 1-09-0046 (Gaffney)

Issue Presented: Under what circumstances does a firefighter participating in a training exercise “reasonably believe[ ]” he or she is responding to “an emergency” for purposes of Section 10 of the Public Safety Employee Benefits Act, which provides that firefighters injured under such circumstances are entitled to continued payment of health insurance premiums on behalf of the injured firefighter, his or her spouse, and each dependent child?

Appellate Court Opinions Summary: These cases were consolidated by the Supreme Court when leave to appeal was allowed. In Lemmenes, plaintiff was told to respond in the exercise as if it were an actual emergency, and that a firefighter was trapped inside the building, was running out of air, and his life was in imminent danger. Plaintiff was not informed that the training exercise was designed such that participating firefighters would likely fail, and was intended to demonstrate that rescue techniques for residential settings would be ineffective in an industrial building. The Appellate Court held that plaintiff was injured in responding to what he reasonably believed to be an emergency, affirming the Circuit Court. In Gaffney, the plaintiff was injured during the course of a similar training exercise while trying to free a tangled hose line. The Appellate Court held that Plaintiff was not injured while responding to what he reasonably believed was an emergency, noting that instructions to treat a training exercise as if it were an emergency did not make it one. Justice Gordon dissented.

Citations to Opinions: 2010 WL 1133028 (Lemmenes)

397 Ill.App.3d 679, 921 N.E.2d 778, 336 Ill. Dec. 922 (Gaffney)

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[UPDATED THROUGH DECEMBER 24, 2011]

Williams v. Board of Review

Supreme Court Case Number: 109469

Appellate Court: First District, Division 4

Appellate Court Case Number: 1-08-2227

Issue Presented: Was terminated employee entitled to a good cause extension of the statutory deadline requiring that an eligible worker must enroll in an approved training program within a certain time in order to be eligible for federally funded trade adjustment assistance benefits?

Appellate Court Opinion Summary: Plaintiff was laid off when her employer, a castings company, closed. She was not informed that not long afterwards, the Department of Labor certified her former employer for trade adjustment assistance (TAA) under the Trade Act of 1974 and its 2002 amendments. Plaintiff first discovered the availability of the benefits six months later, and applied, but was denied on the grounds that she had missed the statutory deadline to enroll in an approved training program, a prerequisite for benefits. 19 UCS 2291(a)(5). On administrative review, the circuit court affirmed the review board’s decision. The Appellate Court reversed. The court noted that the enabling regulations specifically provide for a “good cause exception” from the enrollment deadline. The court rejected defendants’ claim that the 2002 amendments to the statute had superseded the regulation, noting that the amendments are silent on that question.

Citations to Opinion: 395 Ill.App. 337, 335 Ill.Dec 30, 917 N.E.2d 1094

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[UPDATED THROUGH December 24, 2011]

Pielet v. Pielet

Supreme Court Case Number: 112064

Appellate Court: Second District

Appellate Court Case Number: 2-09-0210 & 2-09-0242

Issues Presented: (1) Was plaintiff's cause of action for breach of a long-term consulting agreement viable against corporation under the Survival Statute, 805 ILCS 5/12.80, even though the agreement was not breached until five years after dissolution of the corporation? (2) Was the defendant relieved of its obligations under the contract pursuant to the doctrine of novation?

Appellate Court Opinion Summary: Plaintiff sued various entities for breach of contract and related torts, alleging that the defendants had breached a life-time consulting agreement signed by her late husband. The agreement was signed in 1986 with Pielet Bros. Scrap Iron and Metal, Inc. Two years later, the company sold an undivided one-half of its assets to PBS One, which expressly assumed the Consulting Agreement. Three years later, PBS One transferred its share in Pielet to National Material, whose general partner was NM Holding. In 1993, Pielet changed its name to Midwest Metallics, and in 1998, it ceased payments under the agreement. In Count IX, plaintiff alleged that National Material had assumed the obligations of PBS One to the consulting agreement, and NM Holding was liable as the general partner of National Material. In Count X, plaintiff alleged that National Material and NM Holding were liable as the successors to PBS One. Count XI alleged that PBS One remained liable on the agreement even after its dissolution. The Circuit Court entered summary judgment on all three counts, finding that PBS One had assumed Pielet's obligation; that the Survival Statute continued PBS's obligations in force, even though the breach of contract action did not accrue until later, and that National Material was liable on the basis of assumption, and as a "mere continuation" of the earlier entities. On appeal, the Appellate Court held that the fact that plaintiff's claim had not yet accrued was not a barrier to its survival under the Survival Statute, which preserves not merely "claims," but "rights" and "liabilities." The Court further held that plaintiff's contingent right to payment upon her husband's death survived until the statute, even though the husband did not die until later. Nevertheless, the Court reversed the judgment, finding that a triable issue of fact existed on whether a novation occurred by virtue of the formation of Pielet LP, or the husband's continued acceptance of payments from Pielet LP and Midwest Metallics.  

Appellate Court Opinion  

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