The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Holds Doctrine of Equitable Adoption Doesn’t Apply to Parentage Proceedings

By Kirk Jenkins on April 2, 2015 Posted in Illinois

Two years ago, the Illinois Supreme Court recognized the doctrine of equitable adoption in the context of an estate proceeding. In In re Parentage of Scarlet Z.-D., the Court was presented with the question of whether the doctrine should be extended to a parentage proceeding. In late March, the Court handed down its unanimous decision: No.

The two parties to Scarlett began living together in 1999, and became engaged not long after. In 2003, the mother – a native of Slovakia – met a child during a visit home. The mother and her fiancée decided that the mother would adopt the child (the father had no right to do so since was neither a Slovakian national nor married to the mother). The adoption was finalized under Slovakian law in 2004.

The adult parties never married; nor was the child’s Slovakian adoption domesticated in Illinois. In the summer of 2008, the adult parties’ relationship ended; the mother moved out of the couple’s house, taking the child with her. Not long after, the putative father filed a six-count petition, seeking physical custody of the child, or in the alternative, primary custody with reasonable visitation for the mother; an equitable division of child support; breach of an oral agreement to be equal parents to the child; promissory estoppel, and breach of a contract implied in fact and law. After a bench trial, the trial court concluded that the putative father lacked standing and denied relief on the first two counts.

The Appellate Court initially affirmed. On petition for leave to appeal, the Supreme Court directed the Appellate Court to reconsider in light of the Court’s recent recognition of the doctrine of equitable adoption. On reconsideration, the Appellate Court concluded that the putative father might be able to make out a case for standing under the doctrine of equitable adoption. The Supreme Court granted a second petition for leave to appeal.

On appeal, the putative father argued that the mother should be equitably estopped from challenging his standing. Equitable estoppel involves balancing of several factors: (1) the other party knowingly misrepresented or concealed material facts; (2) the party claiming estoppel didn’t know the representations were untrue when they were heard and acted upon; (3) the other party intended that the representations be acted upon by the party claiming estoppel or by the general public; (4) the party claiming estoppel reasonably relied upon the misrepresentations in good faith to his or her detriment; and (5) the party claiming estoppel has been prejudiced by his or her reliance. The Supreme Court held that the putative father’s claim failed because there was no allegation that the mother had ever suggested that he was the child’s biological or adoptive father, and any promises about future intentions were not actionable. Therefore, the mother’s ultimate termination of the putative father’s relationship with the child was not inconsistent with any factual representation.

The putative father also argued that he could remedy his lack of statutory standing pursuant to various functional parent theories. After thoroughly reviewing the state of the law with respect to such equitable theories, the Court concluded that the putative father’s argument must fail because Illinois does not recognize any functional parent theories.

Finally, the Court turned to the question of whether the putative father could get standing based on the equitable adoption doctrine. The Court pointed out that equitable adoption had been adopted by the Court only in the limited context of facilitating an inheritance from a father who apparently intended to finalize an adoption and had never finalized the proceeding. The Court concluded that there was no basis for expanding the doctrine to a parentage and custody dispute.

The Court concluded its opinion by rejecting the putative father’s common law contract claims, concluding that all of the father’s claims were, at bottom, attempts to end-run his lack of statutory standing to pursue a parentage finding and custody determination.

Image courtesy of Flickr by LukeMN (no changes).

Illinois Supreme Court Holds Captive Insurance Agents Owe Limited Tort Duty to Clients

By Kirk Jenkins on April 2, 2015 Posted in Illinois

Section 2-2201 of the Code of Civil Procedure provides that “[a]n insurance producer . . . shall exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured.” (735 ILCS 5/2-2201).

For many years, Illinois insurance law has distinguished between insurance “brokers” – independent actors who act as a middleman between the insured and the insurer to procure insurance – and “agents” – who sell the insurance of a particular company exclusively. Insurance “brokers” owe their insureds a fiduciary duty. Insurance “agents” don’t. So who’s an insurance “producer” within the meaning of Section 2-2201? That’s the question posed by Skaperdas v. Country Casualty Insurance Company, which the Illinois Supreme Court handed down in the final days of the March term. Our detailed summary of the facts and underlying court decisions in Skaperdas is here. Our report on the oral argument is here.

The underlying insurer issued an automobile insurance policy to the plaintiff. Plaintiff’s fiancée was involved in an accident while driving one of his vehicles. The insurer agreed to cover the loss on the condition that the plaintiff would add his fiancée as an additional insured. Although the plaintiff apparently met with his captive insurance agent, the change wasn’t made – the driver was identified as “female” on the new policy, but the plaintiff’s fiancée wasn’t an additional insured.

Not long after, the fiancee’s minor son was injured in an accident. When the driver’s policy didn’t fully cover the son’s damages, the plaintiff filed a claim for underinsured motorist coverage. The insurer denied the claim on the grounds that neither the fiancée nor her son was a named insured. The plaintiff sued the insurer and his agent for negligence, reformation of contract, a declaration of insurance coverage and respondeat superior. The Circuit Court granted the defendants’ motion to dismiss the negligence and respondeat claims, but the Appellate Court reversed.

In a unanimous opinion by Justice Kilbride, the Supreme Court affirmed. The Court turned first to Black’s Law Dictionary, concluding that an “insurance producer” could be plausibly understood as both an agent and a broker. The defendants argued that defining an “insurance producer” as meaning either an agent or a broker rendered the later provisions of the statute regarding fiduciary claims surplusage, but the Court disagreed, concluding that the statute effectively limited fiduciary claims regardless of whether captive agents were defined as “insurance producers.”

The Court placed considerable weight on the definition of “insurance producer” found in the Insurance Code: “a person required to be licensed under the laws of this State to sell, solicit, or negotiate insurance.” (215 ILCS 5/500-10.) Even though Section 5/500-10 wasn’t adopted until five years after the statute at issue, the Court concluded that the legislature’s decision not to differentiate between “brokers” and “agents” in defining “insurance producer” should be given “substantial weight.” Nobody suggested that there was a difference between brokers and agents in the legislative debate either.

Ultimately, the Court held that Section 2-201 imposed a limited duty on insurance agents as well as brokers. An agent was not required to find the best possible coverage for his or her insured – even if that coverage was with another company – the Court said. If need be, the agent could fulfill his or her duty by telling the insured to seek coverage elsewhere. Nor was a non-specific request to “make sure I’m covered” sufficient to trigger the defendant’s duty of care. But reading Section 5/500-10 together with Section 2-201, the Court concluded that when faced with a specific request for coverage, even a captive insurance agent had a duty of due care in connection with the request. Therefore, the Court affirmed the Appellate Court’s reversal with respect to the agent. The Court also affirmed the court’s reversal with respect to the insurer, holding that respondeat superior was sufficient to potentially find the insurer liable.

Image courtesy of Flickr by Chris Yarzab (no changes).

Florida Supreme Court Overturns Directed Verdict for Defendant in Negligent Security Case

By Erin E. Dardis on April 2, 2015 Posted in Florida

On February 12, 2015, the Florida Supreme Court quashed the Fourth District Court of Appeal’s decision in Sanders v. ERP Operating Limited Partnership, 96 So.3d 929 (Fla. 4th DCA 2012) and held that evidence of lapses in security raised a fact issue for the jury as to whether those failures allowed assailants to more easily gain access to the decedents’ apartments, thus facilitating their murders. The Court reviewed the case based on certified conflict with one of its prior decisions and with a decision of the Third District Court of Appeal.

To read the opinion, here.

In late 2004, two young adults moved into an apartment complex marketed as a “gated community” with a gated front entrance. A year after they moved in, the tenants were shot to death by unknown assailants inside their apartment. While there was no sign of forced entry, cash and other valuables were stolen from the apartment. The plaintiff, as personal representative of the decedents’ estates, sued the property owner alleging that its negligence was the proximate cause of the deaths.

During the trial, evidence revealed that the defendant had a manual providing that a notice to residents was recommended when a “significant crime” occurred on the property, especially a violent crime or forced-entry burglary. No notices were sent to the residents regarding twenty criminal incidents occurring in the three years before the murders. Moreover, there were two criminal incidents where the gate had been broken and perpetrators followed the residents onto the premises. One of these incidents resulted in an armed robbery and the other resulted in an assault. The entrance gate was broken for approximately two months before the murders.

The defendant’s expert, a security consultant, testified that the murders were not foreseeable, as none of the crimes that occurred on the premises in the three years before the murders were violent. The expert opined that the security measures on the premises were more than reasonable and met or exceeded the industry standard for complexes in the location. He further testified that there was no sign of forced entry and that he believed that the door was opened to the person that committed the murders.

The plaintiff’s expert, a criminology expert, testified that most of the crimes at the complex in the three years before the murders were opportunistic in nature and that the murders occurred in the course of a home invasion, an opportunistic crime. He also testified that the defendant’s personnel training video addressed the importance of repairs to mechanical failures, yet the front gate of the apartment complex had been broken for months before the murders. The training video also discussed the need to minimize crime “through awareness.”
The defendant moved for a directed verdict, arguing that the plaintiff had not established proximate cause. The trial court denied the motion. The jury found the defendant 40% comparatively negligent and awarded damages of $4.5 million dollars, apportioned to various survivors of the decedents. The defendant moved for a new trial and the judgment notwithstanding the verdict, which the trial court denied.

On appeal, the Fourth District reversed the ruling on the defendant’s motion for directed verdict, stating that “without proof of how the assailants gained entry into the apartment, [the plaintiff] simply could not prove causation.” The Florida Supreme Court accepted jurisdiction to determine whether the Fourth District erred in vacating the jury verdict and entering a directed verdict in the defendant’s favor.

The Court began its analysis by stating that whether or not proximate causation exists is a question of fact, involving an inquiry into whether the defendant’s breach of duty foreseeably and substantially contributed to the plaintiff’s injuries. The Court reiterated plaintiffs alleging negligence must meet “the more likely than not standard of causation.” Moreover, in order for a court to remove the case from the trier of fact and grant a directed verdict, there must be only one reasonable inference from the plaintiff’s evidence. An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the non-moving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party.

The Court found that the plaintiff in the instant case raised a reasonable inference that the defendant’s breach of duty (i.e., the inoperable gate), may have contributed to the incident. Despite the defendant’s argument, and the Fourth District’s apparent conclusion, that the decedents opened the door for their assailants, this is something which should have properly been considered by a jury in a comparative negligence analysis and is not the basis for a directed verdict.

Because the plaintiff presented evidence that could support a finding that the defendant more likely than not substantially contributed to the murders in this case, the Court quashed the Fourth District’s decision granting a directed verdict to the defendant.

Justice Polston wrote a dissenting opinion in which he stated that the Court did not have jurisdiction to review the case.

Image courtesy of Flickr by Stan Wiechers (no changes).

Illinois Supreme Court Declines to Recognize Self-Critical Analysis Privilege

By Kirk Jenkins on April 1, 2015 Posted in Illinois

The self-critical analysis privilege – the notion that organizations should be able to take a candid look at their own procedures and performance without fear of being forced to disclose the results in discovery – has been lurking around the periphery of civil litigation for forty-four years, since Bredice v. Doctors Hospital, Inc. in 1970. In that time, the privilege has spawned a lot of commentary without being unequivocally adopted in too many jurisdictions.

In the closing days of the March term, the Illinois Supreme Court declined an invitation to recognize the privilege in Harris v. One Hope United, Inc. Our summary of the underlying facts and lower court opinions is here. Our report on the oral argument is here.

Harris began when the Illinois Department of Children and Family Services received a complaint about alleged neglect of a seven-month old child. DCFS assigned the matter to the defendants to monitor the child and her family. DCFS ordered that the child live with her aunt for a time, but ultimately, the child was returned to her mother. Not long after, the child was drowned when her mother left her unattended while bathing her.

The Cook County Public Guardian, acting as administrator of the child’s estate, sued the defendant for wrongful death, alleging that the child should not have been returned to her mother. During discovery, the executive director of the defendant disclosed that the defendant maintained a continuous quality review department to assess the quality of the defendant’s care, identify “gaps in service delivery” and evaluate whether outcomes were successful or not. The plaintiff moved to compel production of the program report, but the defendant refused, invoking the self-critical analysis privilege. The circuit court granted the motion to compel and – on appeal from an order of friendly contempt – the Appellate Court affirmed.

In an opinion by Justice Karmeier, a unanimous Court affirmed. According to the Ninth Circuit, “if such a privilege exists,” the privilege has four elements: (1) the information must result from a self-critical analysis; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of a type whose free flow would be curtailed if discovery were allowed; and (4) the document was prepared in expectation of confidentiality, and has in fact been kept confidential.

The Court found that recognition of a new common-law privilege involved a decision that a privilege promotes sufficiently important interests to outweigh the need for probative evidence. That was a judgment best left in nearly all cases to the legislature, the Court said. Even in the extremely rare occasions where it might be justified for the Court to act on its own, previous legislative enactments should be carefully considered.

That inquiry was decisive here, the Court found. The defendant relied upon the Medical Studies Act (735 ILCS 5/8-2101) in arguing for recognition of the privilege, but in fact, the Act cut the other way. Given the structure of the Act, the legislature could easily have recognized a self-critical analysis privilege – but it chose not to do so. Nor did the Child Death Review Act (20 ILCS 515/5(3)), also relied upon by the defendant, support finding a privilege. That Act prioritized full and complete disclosure of the circumstances of any child death case, and that interest counseled against recognizing a privilege. Taken together, the Court held that the two Acts were persuasive evidence that the legislature preferred not to recognize a self-critical analysis privilege under such circumstances. Accordingly, the Court affirmed the judgments of the Circuit and Appellate Courts ordering disclosure. The Court also affirmed the Appellate Court’s decision to vacate the contempt finding against the defendant on the grounds that the defendant had acted in good faith.

Image courtesy of Flickr by Woody Hibbard (no changes).

Illinois Supreme Court Holds Accountant is Holder of Privilege, No Testamentary Exception

By Kirk Jenkins on March 31, 2015 Posted in Illinois

Late in the March term, the Illinois Supreme Court handed down its opinion in Brunton v. Kruger, an opinion with potentially significant implications for Illinois accountants. Brunton posed three related questions about the statutory accountant’s privilege (225 ILCS 450/27): who holds it – the accountant or the client; is there an exception for will contests; and how can it be waived? Our detailed summary of the facts and lower court holdings in Brunton is here. Our report on the oral argument is here.

Brunton began when an elderly couple consulted an accounting firm for assistance in estate planning. Ultimately, trust documents and two “pour-over” wills were produced. The underlying action is a will contest brought by the couple’s daughter, who is not a beneficiary of the trusts, against one of their sons, who serves as trustee, and the other son. Both the daughter and the two Estates issued subpoenas to the accountants, seeking production of their file. The accountant provided the information to the Estates, but refused to provide it to the daughter, invoking the accountant’s privilege. The circuit court initially agreed that the estate planning documents were privileged. The daughter then issued deposition subpoenas, again seeking the estate planning documents. The accountants moved to quash the subpoena, but this time, the court held that the privilege had been waived by producing the materials to the Estates.

The Appellate Court affirmed on different grounds, holding that the client, not the accountant, is the holder of the privilege, and the privilege is subject to the same testamentary exception as applies to the attorney-client privilege, making the estate planning documents producible in the will contest.

In an opinion by Chief Justice Garman, the Supreme Court affirmed the Appellate Court, but on substantially different grounds. The court began with the daughter’s argument that the privilege is limited to acts of the accountant in his or her confidential capacity as a licensed or registered CPA. (225 ILCS 450/8.05(a).) The court disagreed, noting that the plain language of the statute provides that accountancy activities “includ[e]” the enumerated acts, such as auditing financial statements – language which suggests that the list is not exhaustive.

The Court then turned to the question of who held the privilege. The defendant argued that it had been settled for many years that the accountant holds the privilege, but the Supreme Court disagreed, finding that the issue was one of first impression. The Court concluded that because Section 27 states that the accountant “shall not be required by any court” to divulge privileged information, the statute unambiguously confers the privilege on the accountant rather than the client. Nevertheless, the Court made it clear that if the client is still living, the client retains the right to voluntarily produce information which would be subject to the privilege in the accountant’s hands.

The Court next turned to the issue of whether the privilege is subject to a testamentary exception. The Court began by noting that the language of the statute itself includes only one exception, for investigations undertaken pursuant to the CPA Act. The Court acknowledged the argument urged by the Estates (and accepted by the Appellate Court) that the search for truth justifies a testamentary exception, but ultimately concluded that carving out such an exception was a job for the legislature, since the privilege was statutory in nature.

The Court finally turned to the question of how the privilege can be waived, and whether the accountants had waived it by producing the materials to the Estates. But first, the Court made an important point about the nature of appellate preservation.

The accountant argued before the Supreme Court that disclosure to the Estates didn’t constitute waiver because the Estates had a common interest with the accountant. The daughter argued that the accountant had forfeited the argument by not raising it at the Circuit Court. The Supreme Court disagreed, pointing out that the accountant had disputed waiver at every stop in the litigation. Not making that argument in terms of common interest didn’t matter: “We require parties to preserve issues or claims for appeal; we do not require them to limit their arguments here to the same arguments that were made below.”

The problem with the accountants’ argument, the Court wrote, was that they misinterpreted the nature of the common interest doctrine. The common interest doctrine wasn’t intended to protect the privilege or defeat a claim of waiver; rather, it was intended to defeat a claim of privilege where the parties on both sides of a lawsuit had a common interest in the materials. Therefore, the doctrine actually favored disclosure to the daughter in these circumstances, since both sides had the same interest in the contents of the accountants’ papers.

Ultimately, the issue was simple, the Court concluded. The accountant had produced the documents to one side in the litigation and was declining to produce to the other side with the same interest. True, the accountant had produced in response to a subpoena, but the accountant “does not assert that the disclosure was involuntary,” according to the Court. Therefore, the initial disclosure waived the privilege, and the documents were properly ordered produced.

Image courtesy of Flickr by Jane (no changes).

Illinois Supreme Court Declines to Apply Environmental Injunction Statute Retroactively

By Kirk Jenkins on March 30, 2015 Posted in Illinois

In July 2004, the Illinois legislature amended the state Environmental Protection Act to authorize the Attorney General to seek “an injunction, prohibitory or mandatory, to restrain violations . . . or to require such other actions as may be necessary to address violations of this Act.” The following year, the Supreme Court held in People ex rel. Ryan v. Agpro, Inc. that the pre-amendment version of the statute permitted only prohibitory injunctions restraining future violations.

So did the 2004 amendment apply retroactively to authorize courts to order cleanups of violations from before its effective date? The Illinois Supreme Court unanimously answered that question earlier this month with its opinion in People ex rel. Madigan v. J.T. Einoder, Inc.: No. Our detailed summary of the facts and lower court holdings in Einoder is here. Our report on the oral argument is here.

The property at issue in Einoder was purchased by the husband defendant in 1993 and placed in a land trust. The property was developed into a construction and demolition resource recovery facility and landfill using leased equipment and operators provided by a closely held corporation, 90% owned by the wife defendant. The site began accepting general construction and demolition debris and clean construction and demolition debris in 1995. In the years that followed, the site was inspected various times, and on multiple occasions, violation citations were issued by the state Environmental Protection Agency.

The Attorney General filed a seven-count complaint in 2000. Five years later, the State filed an amended complaint, adding the individual defendants as parties. A bench trial followed, and the court entered judgment for the State, imposing fines against the corporate and individual defendants. In addition to the fines, the State requested a mandatory injunction requiring the removal of the defendant’s above-grade waste pile, which was at that point a 90-foot grass-covered hill composed of 99.99% clean construction and demolition debris. The trial court granted the injunction. A majority of the Appellate Court affirmed, with one dissenter arguing that the 2004 amendments would not be applied retroactively to authorize a mandatory injunction.

In an opinion by Justice Burke, a unanimous Illinois Supreme Court reversed the Appellate Court with respect to the injunction issue. The Court noted that Illinois follows the approach set forth by the United States Supreme Court in Landgraf v. USI Film Products in determining whether an amended statute can be applied retroactively. The first step of Landgraf is simple: if the legislature has indicated that the amendment is intended to apply retroactively, absent a due process bar, that intent is given effect. If the legislature hasn’t expressed a view, then in the second step of the analysis, the court determines whether applying the amendment in the case at bar would amount to a retroactive application. An application is retroactive if it would impair rights a party possessed when she acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.

In Illinois, the Court observed, Landgraf analysis is made considerably simpler by Section 4 of the Statute on Statutes (5 ILCS 70/4). Section 4 provides a simple black-letter rule: procedural changes apply retroactively, substantive changes don’t.

Nothing in the 2004 amendments themselves gave any indication as to whether the legislature intended a retroactive application or not. So the Court passed to the second step of the analysis: was authorizing mandatory injunctions substantive or procedural? That was an easy one, the Court found – the threat of a mandatory injunction imposed a substantial new liability on the defendants’ past conduct. Therefore, it was a substantive change in the law and could not be applied retroactively pursuant to Section 4 of the Statute on Statutes.

The Court concluded by briefly affirming the Appellate Court as to the wife defendant’s personal liability, noting that the defendant had personally signed numerous contracts authorizing dumping even after she was aware that the landfill had been cited for violating the Act, and after participating in discussions about violation notices.

Image courtesy of Flickr by Elliott Brown (no changes).

Illinois Supreme Court Holds Circuit Court Clerk Had No Duty to Confirm Accuracy of Jail Credits

By Kirk Jenkins on March 27, 2015 Posted in Illinois

When a defendant is convicted of a criminal offense and sentenced to prison time, the Unified Code of Corrections requires the Circuit Court clerk to transmit to the Department of Corrections the total time the defendant served prior to entry of final judgment so that the the defendant’s credits for “time served” can be calculated. The clerk gets that total number of days from the sheriff. (730 ILCS 5/5-4-1(e)(4)). What happens if the total the Department receives is wrong, and as a result the prisoner is detained longer than he should have been? Does the prisoner have a cause of action against the clerk? That was the question posed by Cowper v. Nyberg, decided last week by the Illinois Supreme Court. Our detailed summary on the facts and underlying court opinions in Cowper is here. Our report on the oral argument is here.

The plaintiff pleaded guilty on criminal charges in 2011 and was sentenced to 27 months imprisonment. The judgment entered in the criminal case said he was entitled to 275 days’ credit for time served. Three weeks after the judgment was entered, the plaintiff filed a motion to recalculate his time served. Four months later, the defendant was released by the Department of Corrections. A month after that, the State finally responded to the plaintiff’s motion, conceding that his time served credits had been incorrectly calculated. The circuit court entered an order asking the State to prepare an amended mittimus, and an amended judgment was entered.

In early 2012, the plaintiff filed a two-count complaint, naming the sheriff and the Circuit Court clerk as defendants. Plaintiff’s theory was because the incorrect number of days had been transmitted to the Department of Corrections, he was overdetained by 137 days. The defendants moved to dismiss, and the trial court granted the motion. With respect to the clerk, the court held that the statute merely required the clerk to transmit whatever data was received from the sheriff – there was no duty to independently verify the numbers. As for the sheriff, the court held that Section 5/5-4-1(e)(4) didn’t create an express or implied right of action. The Fifth District Appellate Court reversed, holding that the Code did, in fact, create an implied right of action.

In an opinion by Justice Thomas, the Court affirmed in part and reversed in part. The defendants raised two issues: (1) the plaintiff pled no breach, since the clerk was merely required to transmit whatever number he received from the sheriff, not to independently verify its accuracy; and (2) Section 5/5-4-1(e)(4) did not create an express right of action. The Court found that the second issue wasn’t before the Court. The Appellate Court had gotten off on the wrong track, the Court found, by looking for an implied right of action – the plaintiff hadn’t pled one. The plaintiff’s claims were simple common-law negligence. Only the duty purportedly came from the statute.

The Court agreed that court clerks could be held liable in negligence for breaches of purely ministerial duties. Indeed, the Court wrote, the defendants didn’t seem to seriously question that proposition. The plaintiff’s problem was his allegations about the nature of the clerk’s ministerial duty. The complaint alleged that the clerk had a statutory duty to transmit the accurate number of days’ credit, regardless of what the clerk got from the sheriff. But that’s not what the statute says – the clerk is merely required to pass along the number received from the sheriff. So the complaint was properly dismissed with respect to the clerk, but the Court concluded that dismissal should be without prejudice. The Court thus reversed the Appellate Court’s order reversing the dismissal with respect to the clerk.

The sheriff, however, was a different matter. The Court agreed that the statute imposed a ministerial duty on the sheriff to calculate the accurate amount of time served credits, and that the complaint had adequately pled breach of that duty. So the Court affirmed the Appellate Court’s decision reversing with respect to the sheriff.

Image courtesy of Flickr by Sean Hobson (no changes).

Illinois Supreme Court Holds Custody Order Not Void Despite Custody Act Non-Compliance

By Kirk Jenkins on March 27, 2015 Posted in Illinois

The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) includes various provisions for determining where a custody and parentage dispute should be litigated when multiple states are involved. But what happens when the Circuit Court enters a custody order even though the UCCJEA appears to say the dispute belonged somewhere else? Last week, the Illinois Supreme Court answered that question in McCormick v. Robertson: the resulting judgment might be subject to challenge on appeal, but it was not subject to challenge four years later on grounds of voidness. Our report on the oral argument in McCormick is here.

In McCormick, the parties had a brief relationship, which resulted in the birth of a child in 2009. In early 2010, the father filed a claim in Champaign County – his home jurisdiction at the time – pursuant to the Illinois Parentage Act, seeking an order establishing parentage and awarding joint custody. The parties ultimately presented a joint agreement to the court, which it approved.

Following entry of the judgment, the father entered the Marine Corps, ultimately serving tours in Okinawa, Japan and Afghanistan. In November 2012, the mother moved to Las Vegas with her parents, taking the child with her. The father responded by returning to court in Champaign County and moving for an order to show cause why the mother shouldn’t be held in contempt for moving the child, which the father argued effectively precluded him from visiting. After the court declined to enter an OSC, the father moved for sole custody. The mother responded with her own action in Nevada, arguing that the Champaign County order had been entered despite the court lacking “jurisdiction” under the UCCJEA, and was therefore void. At the same time, the mother filed a motion in Champaign County asking the court to vacate its now four-year-old custody order on grounds of voidness. The Circuit Court agreed and vacated the order, but the Appellate Court reversed.

Although the matter was still in some doubt at the time of the argument, the result in McCormick became pretty much a foregone conclusion in late February with the Court’s decision in LVNV Funding. There, the Court held that failure to comply with statutory prerequisites could never deprive a trial court of subject matter jurisdiction, since the subject matter jurisdiction of Illinois courts flows solely from the state constitution. But the only way that the 2010 custody order in McCormick could validly have been set aside four years after it was entered is if it was void.

The Court unanimously affirmed in an opinion by Justice Karmeier. The Court explained that whether a case presented a justiciable matter was decided case-by-case. The standards are quite similar to federal law – the issues have to be definite and concrete, not moot or premature, and not calling for an opinion on an abstract proposition of law. Compliance with statutory prerequisites involves “an altogether different set of values,” the Court wrote. Non-compliance could certainly render a decision subject to reversal on appeal, but because the subject matter jurisdiction of the courts is entirely outside of the legislature’s control in Illinois, non-compliance does not make a judgment void.

The 2010 litigation had involved both a parentage determination and a custody issue, the Court pointed out. The UCCJEA had nothing to say about parentage determinations, so there was no possible argument for why that part of the judgment should be void. Since the custody issue was clearly justiciable, that part of the judgment wasn’t void either. Since the 2010 order wasn’t void, there was no basis for vacating it in 2014, and the Supreme Court affirmed the Appellate Court’s judgment.

Image courtesy of Flickr by Ken Lund (no changes).

Florida High Court Rules that Exculpatory Clauses Need Not Reference Negligence to Bar Negligence Claims

By Erin E. Dardis on March 19, 2015 Posted in Florida

On February 12, 2015, the Florida Supreme Court affirmed the Fifth District Court of Appeal’s decision in Sanislo v. Give Kids the World, Inc., 98 So. 3d 759 (Fla. 5th DCA 2012) and held that an exculpatory clause was effective to bar a negligence action, despite the absence of express language in the clause releasing the defendant for its own negligence. The Court reviewed the case based on certified conflict with decisions of the First, Second, Third, and Fourth District Courts of Appeal.

Give Kids the World, Inc. (“GKTW”) is a non-profit organization that provides free vacations to seriously ill children and their families at its resort. Stacy and Eric Sanislo are the parents of a young girl with a serious illness who wished to participate in GKTW’s program. The Sanislos executed a liability release in connection with a “wish request” that benefitted their daughter. The release provided, in pertinent part:

By my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind . . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.

During the family’s stay at the resort, Mrs. Sanislo was injured. The Sanislos sued GKTW, alleging that Mrs. Sanislo’s injuries were caused by GKTW’s negligence. GKTW moved for summary judgment, raising its affirmative defense of the release. The Sanislos also filed a motion for partial summary judgment on GKTW’s affirmative defense of the release. The trial court granted the Sanislos’ motion and denied GKTW’s motion. Following a jury verdict, judgment was entered in favor of the Sanislos.

On appeal, GKTW argued that the lower court erred by denying its motion for summary judgment because the release was unambiguous and did not contravene public policy. The Fifth District reversed the trial court’s denial of summary judgment, holding that the exculpatory clause barred the negligence action, despite the lack of a specific reference to “negligence” or “negligent acts.” The Fifth District reasoned that exculpatory clauses are effective if the wording of the exculpatory clause is clear and understandable so that an ordinary and knowledgeable person would know what he or she is contracting away.

The Florida Supreme Court began its analysis by stating that while the Fifth District reaffirmed its position that exculpatory clauses are not unenforceable to bar negligence actions simply because they do not contain express language referring to the release of the defendant for negligence, the First, Second, Third, and Fourth Districts, relying on the decision in University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973), regarding indemnity agreements, have held the opposite.

The Florida Supreme Court has held that an indemnity agreement only indemnifies the indemnitee for his or her own negligence if the agreement contains a specific provision protecting the indemnitee from liability caused by his or her own negligence. The Court, however, stated that the principles underlying its opinions regarding indemnity agreements are not applicable to exculpatory clauses. Generally, indemnification provides a party the right to claim reimbursement for his or her actual damage, loss, or liability from the responsible party. Indemnification serves the purpose of holding the indemnified party harmless by shifting the entire loss or damage incurred by the indemnified party – who is without active negligence or fault and has been obligated to pay because of some vicarious, constructive, or technical liability – to the responsible party who should bear the cost because it was that party’s wrongdoing for which the indemnified party is held liable. These contracts are typically negotiated at arms length between sophisticated business entities and can be viewed as an effort to allocate the risk of liability. Thus, it would not be apparent that a party has agreed to indemnify a party for liability incurred due to that party’s own negligent conduct based on general language in an indemnification agreement.

An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his right to recover damages suffered due to the negligent act of the other contracting party. Although indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the injured party, Florida courts recognize a distinction between the two.

Because indemnification agreements allocate the risk of liability for injuries to an unknown third party, specificity is required so that the indemnitor is well aware that it is accepting liability for both its negligence and the negligence of the indemnitee. Exculpatory clauses, however, primarily release a party from liability for his own negligence, and not vicarious liability. Accordingly, the Court held that University Plaza did not control in this case.

The Court noted that many other states have expressly rejected the requirement that an exculpatory clause contain an explicit provision releasing a party from liability for his or her own negligence. While it may be better practice to expressly refer to “negligence” or “negligence acts” in an exculpatory clause, the Court found persuasive the reasoning employed by these courts that looked at the parties’ intent in interpreting the contract. Thus, the Court stated it was reluctant to hold that all exculpatory clauses that are devoid of the terms “negligence” or “negligent acts” are ineffective to bar a negligence action, despite otherwise clear and unambiguous language indicating an intent to be relieved from liability in such circumstances.

The Court stressed that its holding was not intended to render general language in a release of liability per se effective to bar negligence actions, as exculpatory contracts are disfavored in the law and are only enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what she or he is contracting away.

With its decision, the Court stated that it was rejecting the Sanislos’ invitation to extend University Plaza to exculpatory clauses. Accordingly, it approved the lower court’s decision and disapproved the decisions of the First, Second, Third, and Fourth Districts.

Justice Lewis wrote a dissenting opinion in which he stated that he disagreed with the decision of the majority that an explicit warning regarding what the signing party is contracting away is required for a valid indemnity agreement, but not for combined releases, indemnification, and hold harmless agreements, such as the document in the instant case, as exculpatory clauses that protect a party from his or her own negligence are disfavored.

Image courtesy of Flickr by Matt Spence (no changes).

Chief Justice Invites New Governor, Legislature to Rare Evening Oral Argument

By Kirk Jenkins on March 17, 2015 Posted in Illinois

This evening will bring an event likely not seen in Illinois in more than a century – an evening session of the Illinois Supreme Court.

Last Friday, the Court announced that People v. Richardson, one of the three cases docketed to be argued on the morning of March 17, would be rescheduled for a special evening session.

The Chief Justice invited new Governor Bruce V. Rauner and the entire Illinois Legislature to attend the session. The argument “affords a window into how our constitutional system operates and the balance among the executive, legislative, and judicial branches,” the Chief Justice said. In a letter to the Governor, legislative leaders and the members of the General Assembly, the Chief Justice explained that attorneys from the offices of the Attorney General and the State Appellate Defender would be participating in the argument. “Thus,” the Chief Justice wrote, the political leaders “will have the opportunity not only to see the Court at work, but also to observe these valuable public employees performing their vital functions on behalf of the people of the State of Illinois.”

The Chief Justice’s invitation comes while the Court has under submission an appeal from the Circuit Court order striking down SB-1, the Illinois public pension reform bill enacted by the General Assembly and signed into law by then-Governor Pat Quinn in 2013.

Image courtesy of Flickr by Dan Hodgett (no changes).