The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court to Issue Final Four Civil Opinions on Friday Morning

By Kirk Jenkins on Posted in Illinois

This morning, the Illinois Supreme Court announced that it will issue four more civil opinions on Friday morning to close out 2012. The upcoming decisions deal with issues as diverse as res judicata and absolute immunity, foreclosure judgments and appealability, domestic relations property settlements and forum non conveniens in tort actions. The four cases are:

  • Cooney v. Rossiter, No. 113227 – (1) Was the plaintiffs’ action barred pursuant to res judicata by the earlier Federal action, even though the earlier Federal action was a class, rather than an individual claim? (2) Did a court-appointed psychological evaluator in a custody hearing have absolute immunity from suit for alleged misconduct in connection with his opinions? For our preview of the case, see here. For our report on the oral argument, see here.
     
  • EMC Mortgage Corp. v. Kemp, No. 113419 – (1) Is a judgment of foreclosure final and appealable, or must an appeal await a final order approving the sale and distributing the proceeds? (2) Is an order of foreclosure immediately appealable when standing is challenged on the grounds that the order is void? For our preview of the case, see here. For our report on the oral argument, see here.
     
  • Mathis v. Mathis, No. 113496 – In a bifurcated dissolution proceeding, when a grounds judgment has been entered, and when there is a lengthy delay between the date of entry of the grounds judgment and the hearing on ancillary issues, is the appropriate date for valuation of marital property the date of dissolution or a date as close as practicable to the date of trial of the ancillary issues? For our preview of the case, see here. For our report on the oral argument, see here.
  • Fennell v. Illinois Central Railroad Co., No. 113812 – Did the trial court err by denying defendant’s motion for dismissal pursuant to forum non conveniens of an asbestos injury claim brought by a non-resident of Illinois? For our preview of the case, see here. For our report on the oral argument, see here.

Our reviews of the final four civil decisions of the year will begin Friday afternoon. In the meantime, happy holidays to all.

Can the Cook County Commission on Human Rights Award Punitive Damages?

By Kirk Jenkins on Posted in Illinois, Punitive Damages

Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term conclude with Crittenden v. Cook County Commission on Human Rights [pdf]. Crittenden involves a question of administrative law which, depending on the breadth of the Court’s ultimate decision, could have broad implications: when can an administrative board award punitive damages?

Crittenden arises out of a sexual harassment claim. A bartender working at a Cook County bar filed a police report against her supervisor, resulting in a criminal trial at which he was acquitted. Shortly thereafter, the alleged victim filed a complaint with the Cook County Commission on Human Rights, alleging that her supervisor’s alleged conduct violated the Cook County Human Rights Ordinance. After a contentious hearing on the complaint, a hearing officer recommended that the employee receive an award of lost wages, compensatory and punitive damages. The Commission adopted the hearing officer’s recommended order.   The supervisor and the bar filed a petition for writ of certiorari with the Circuit Court, seeking administrative review of the Commission’s decision. The Court denied the writ, affirming the Commission’s decision on liability and compensatory and punitive damages.

The Appellate Court (First District, Sixth Division) affirmed the Commission in most respects. The appellants – the supervisor and the bar – argued that the Commission’s determination that the complainant was more credible that the appellants’ witnesses was against the manifest weight of the evidence. The Appellate Court rejected the argument, concluding that the appellants were essentially asking the Court to reweigh the evidence and substitute its assessment of credibility on a cold record for that of the hearing officer and Commission. The Appellate Court also found no reason to disturb the decision of the hearing officer, confirmed by the Commission, to allow the complainant to contradict her complaint with respect to the date of the principal events at issue.

The appellants also claimed that the hearing officer and Commission had erred by considering hearsay – testimony that the employee’s son had accompanied her to the bar the day after the principal events and damaged the bar in a fit of anger. The Appellate Court disagreed, pointing out that the rules of evidence didn’t apply to Commission proceedings, and any error in considering the expressive acts of the son was harmless anyway. The Court also concluded that there was sufficient evidence in the record to support the award of compensatory damages, and that the appellants hadn’t proven that the plaintiff failed to mitigate her damages.

The Court reversed the Commission’s award of punitive damages, however. According to the Court, in an action based on a statutory violation, punitive damages may be awarded either because the statute authorizes them, or the facts of the case support common law punitive damages. The Court concluded that the Cook County Human Rights Ordinance doesn’t authorize punitive damages awards, either expressly or by fair implication. Although the Ordinance states that the enumerated penalties are not an exhaustive list, the Court observed that each of the enumerated penalties is compensatory in nature, rather than a windfall like punitive damages. The Court also thought it was significant that the power to award punitive damages was expressly given in other ordinances, suggesting that if such a power had been intended, the Ordinance would say so.

The Appellate Court acknowledged that Division One of the First District had come to the opposite conclusion in Page v. City of Chicago, holding that the Chicago Human Rights Ordinance does permit an award of punitive damages for acts of sexual harassment and discrimination, but the Court declined to follow Page, noting among other things that the Page Court had failed to adequately address the limited powers of administrative agencies.

Finally, the Court refused to permit a common law award of punitive damages. As an administrative agency, the Commission had no common law authority, the Court held. Moreover, even if the Commission did have such authority, the Court pointed out that the Commission had made no findings that the supervisor’s alleged actions were committed with malice, or any of the other grounds which justify a common law award of punitive damages.

We expect the Supreme Court to decide Crittenden within four to six months.

Illinois Supreme Court to Tackle Public Employees’ Right to Strike

By Kirk Jenkins on Posted in Illinois

Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with The Board of Education of Peoria School District No. 150 v. The Peoria Federation of Support Staff, Security/Policemen’s Benevolent and Protective Association No. 114 [pdf]. Board of Education poses two questions: the constitutionality of a recent amendment to the Illinois Public Labor Relations Act relating to certain public employees’ right to strike, and the identity of the proper state administrative board to take jurisdiction over an unfair labor practice claim.

According to the complaint, the plaintiff is the only school district in Illinois which employs its own security officers (as opposed to securing its schools by coordinating with local police departments). The plaintiff’s officers have been represented by various iterations of a union since 1989. When the latest union contract expired in mid-2010, two disputes arose: one fight over the timing of the negotiations, and another over what state law governed the parties’ discussions.

The Public Labor Relations Act regulates labor relations between most public-sector employees and their employers. School districts and their employees are specifically excluded from the coverage of the Act – they fall, as a general matter, under the Educational Labor Relations Act. But by virtue of a 2010 amendment to the Public Labor Relations Act, “a school district in the employment of peace officers in its own police department in existence on the effective date of this amendatory Act of the 96th General Assembly” is brought back within the coverage of the Act.

Note two things about the language of this “exception to the exception” : first, it only affects the plaintiff in Board of Education – the only school district in the state which employs its own security officers. And second, as written it can never affect anyone else – the class is closed on the effective date of the 2010 amendment. This potentially matters a great deal, since public employees who are subject to the Public Labor Relations Act and are employed as security personnel, peace officers, or firefighters are prohibited from striking – they are required to accept interest arbitration instead.   Employees subject to the Educational Labor Relations Act are, as a general matter, allowed to strike.

The plaintiff filed a two-count complaint, seeking (1) a declaration that the 2010 amendment to the Public Labor Relations Act was unconstitutional special legislation; and (2) that its negotiations with its security officers were governed by the Education Labor Relations Act, rather than the Public Labor Relations Act. The Circuit Court dismissed the complaint for failure to state a claim, but the Appellate Court reversed.

The Illinois Constitution prohibits “special legislation” – meaning statutes which discriminate in favor of a select group on an arbitrary basis. The distinction made by the Public Labor Relations Act between security officers employed by schools and those employed by others wasn’t the problem, the Appellate Court held. The problem was the language of the statute closing the class as of the effective date of the statute. Absent that clause, the distinction might have a rational basis: for example, ensuring that police officers, no matter who employed them, could not strike. But a statutory provision which applied to only one school district and could never apply to anyone else had no apparent rational basis, in the Court’s view. Therefore, the plaintiff’s constitutional challenge to the Public Labor Relations Act was sufficiently viable to go forward.

With respect to the plaintiff’s second claim, seeking a declaration as to whether its dispute fell under the jurisdiction of the state board administering the Education Labor Relations Act or the separate board administering the Public Labor Relations Act, the state boards argued that the plaintiff’s claim failed for failure to exhaust administrative remedies. The Appellate Court rejected the argument, concluding that the plaintiff’s claim was analogous to a challenge to the board’s jurisdiction, and thus exempt from the exhaustion requirement.

We expect the Supreme Court to decide Board of Education within four to six months.

Municipal Pensions II: Do Survivors’ Pensions Increase Whenever the Salary For the Position Does?

By Kirk Jenkins on Posted in Illinois

 

Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with Hooker v. Retirement Fund of the Firemen’s Annuity and Benefit Fund of Chicago, [pdf]. Hooker poses the question of whether the pensions for firefighter’s survivors should be set for all time pursuant to the salary the firefighter was receiving at the time of his or her death.

Decedent #1 suffered a stroke while responding to a fire in 1985, and was awarded a duty disability benefit. After he died in 1998, his widow was awarded the widow’s minimum annuity pursuant to the Pension Code. 40 ILCS 5/6-141.1. Decedent #2 was injured in 1988 while working for the fire department. He died in 2000, and his widow was awarded the widow’s minimum annuity as well. Both women filed complaints for administrative review and won judgments requiring awards of line of duty benefits.

In 2004, the General Assembly amended the Pension Act to require an award of Duty Availability Pay (DAP) in salaries for some pension and annuity calculations. The widows amended their administrative complaints, arguing that (1) they should have been awarded line-of-duty benefits retroactively to the date of the decedents’ deaths; and (2) they should have been awarded DAP in their pension calculations. Plaintiffs sought leave to bring the DAP claim as a class action, presenting a list of 100 widows who they alleged had the right to such benefits.

The Circuit Court permitted the plaintiffs’ amendment, but stayed the class claims until the line-of-duty benefits claims were resolved. The Court reversed the Board, ordering an award of line-of-duty benefits retroactive to the date of death; the Appellate Court affirmed. On remand, the Board again refused to include DAP in its benefit calculation. The Circuit Court denied the motion to certify a class and granted the Board’s motion for summary judgment.

The Appellate Court reversed. The Court held that under Section 6-140 of the Pension Code, 40 ILCS 5/6-140(a), the amount of a widow’s annuity depended on the current annual salary attached to the decedent’s position, whether or not the firefighter ever actually received that salary. Thus, the widow’s annuity increased whenever the decedent’s pay grade was increased. Accordingly, the Appellate Court held that the Board was required to include DAP in the salary calculation governing the plaintiffs’ pensions.

The Appellate Court reversed the Circuit Court’s denial of the motion to certify a class as well, holding that all of the factors governing certification were satisfied. Despite the limited powers of the Board, the Court held that a class complaint was a "rule[ ], regulation[ ], standard[ ], or statement[ ] of policy" within the meaning of the Appellate Court’s decision in Board of Education of the City of Chicago v. Board of Trustees of the Public Schools Teachers’ Pension & Retirement Fund, rather than a "decision, order or determination of any agency rendered in a particular case," and therefore, a class complaint was not outside the Board’s powers pursuant to the Administrative Review Law.

The Court should decide Hooker within four to six months.

 

Illinois Supreme Court Takes Broad View of Courts’ Power to Decertify a Class

By Kirk Jenkins on Posted in Illinois

Section 2-802(a) of the Illinois Code of Civil Procedure provides that an order certifying a class action “may be conditional and may be amended before a decision on the merits.” 735 ILCS 5/2-802(a).

But what’s a “decision on the merits”? In its third unanimous decision of the day, the Illinois Supreme Court answered that question this morning, giving an appropriately broad construction to trial courts’ power to decertify. The Court affirmed the decision of the First District, Sixth Division in Mashal v. The City of Chicago [pdf]. Our preview of Mashal, discussing the facts and lower court rulings, is here. For our report on the oral argument before the Supreme Court, click here.

Mashal involves allegations that the City of Chicago made a practice of issuing “fly-by” traffic tickets – tickets served by mail, rather than being handed to the driver or placed on the vehicle – to taxi drivers. Plaintiff filed a putative class action in 2000, arguing that the practice violated both the Chicago Municipal Code and the state Vehicle Code. A class was certified in 2002.

Two substantive orders followed. In 2005, the Circuit Court granted plaintiff partial summary judgment finding that fly-bys are indeed illegal. The order did not address whether the City in fact had a practice of issuing fly-bys, or whether fly-bys had been issued to any particular class member. At the same time, the court denied the City’s motion for summary judgment, rejecting a number of affirmative defenses. The following year, the trial court granted the City partial summary judgment, finding that all claims which accrued before September 13, 1995 were time-barred.

In 2008, the Circuit Court granted the City’s motion to decertify the class, holding that in the wake of the 2005 order holding that fly-bys were illegal, common questions no longer predominated. In that order, the court stated that the City was entitled to a trial for each and every one of perhaps as many as 16,000 tickets, given the City’s insistence that it had never issued a “true” fly-by – in every case, either service had been frustrated by the driver, or the wind or some other agency (sometimes the driver) had removed the ticket from the vehicle.

After the Circuit Court denied a motion to certify questions for interlocutory appeal, the Supreme Court intervened with a supervisory order directing the Circuit Court to certify four issues: what was a decision on the merits, and did any of the three substantive orders – partial summary judgment for plaintiff, denial of summary judgment for the City, or the statute of limitations order – qualify as one, thus terminating the court’s power to decertify?

With respect to the foundational question, the Supreme Court relied on Federal law under Rule 23 to affirm the Appellate Court:

A ‘decision on the merits’ is a complete determination of liability on a claim based on the facts disclosed by the evidence, and which establishes a right to recover in at least one class member, but which is something short of a final judgment.

The Court found that its definition was consistent with the purposes and policies underlying the class action provisions of the Code. The authority to decertify exists, the Court wrote, because “it may be beneficial to the orderly administration of justice” to decertify “if clearly changed circumstances or more complete discovery warrant it.” Giving Circuit Courts “the flexibility to revisit certification – before liability is determined – best serves the objectives of the class certification provisions.”

The Court next applied its definition to the orders at issue. The Circuit Court’s partial summary judgment finding that fly-bys were illegal was not a “decision on the merits”; the order neither determined that the City was liable to anyone, nor that the City in fact had a practice of issuing such tickets. Nor was the denial of the City’s initial motion for partial summary judgment, rejecting the City’s affirmative defenses, a “decision on the merits,” since it didn’t foreclose the City from defending each individual claim on the merits, one by one. Finally, citing Downing v. Chicago Transit Authority, the Court held that motions dismissing claims on statute of limitations grounds cannot by definition be a “decision on the merits” for purposes of the statute.

Res Judicata Part II: Always Read What the Order Says (and Doesn’t Say)

By Kirk Jenkins on Posted in Illinois

In its second opinion of the day on the doctrine of res judicata, a unanimous Illinois Supreme Court has affirmed the First District, Fifth Division’s decision in Hernandez v. Pritikin [pdf]. A detailed discussion of the underlying facts and the rulings of the Circuit Court and Appellate Court appears in our pre-argument preview here. Our argument report – in which we predicted affirmance – is here.

The plaintiff in Hernandez developed physical problems in the early 1990s, and was ultimately diagnosed with Parkinson’s disease. The defendants represented plaintiff from early 1999 to late 2002, and pursued a workers’ compensation claim on his behalf. In 2004, now represented by a new law firm, plaintiff sued various companies allegedly involved in the manufacture and sale of various chemicals which he claimed had contributed to his disease. When that action was dismissed as time barred, plaintiff sued the defendants for malpractice.

The plaintiff’s original complaint alleged that defendants had failed to advise him of claims against persons or entities other than his employer, failed to file such claims and/or failed to advise him to hire other counsel to pursue such claims. Defendants moved to dismiss, arguing that the statute of limitations had run on the products claim before they were hired.

At the hearing on the motion to dismiss, the trial judge suggested that the statute of limitations had begun running on the products claim by 1995 at the latest, years before defendant was hired. But – and this is the important part – when the written order was issued, it merely said that the motion to dismiss was “granted,” and plaintiff had 30 days to amend. There was no mention of “with prejudice,” nor any suggestion that the plaintiff was now barred from pursuing any particular facts.

The amended complaint restated all the allegations of negligence relating to failure to advise/file the products action, but added further allegations that the defendants should have advised the plaintiff to sue his first law firm, who had represented the plaintiff on his Social Security disability claim. Plaintiff also added factual allegations apparently intended to justify application of the discovery rule to lengthen the statute of limitations on the products claim.

Defendants moved to dismiss again, arguing that if the statute had started running on the products claim by 1995 at the latest, then it followed that any claim against the first attorneys was barred by the time the defendants were hired. At the hearing on the motion, the judge said “I’m not reconsidering [the first judge’s] ruling. That’s not on the table.” But once again, the written order was more cryptic: “Defendant’s Motion to Dismiss the Amended Complaint is denied.” Again, nothing was said about any particular set of factual allegations being in the case or out of it. Later, with defendants’ motion for summary judgment pending, the plaintiffs voluntarily dismissed. When the plaintiff subsequently refiled the action, the Circuit Court dismissed it on res judicata grounds.

The Appellate Court reversed, holding that both actions raised a single claim: for legal negligence. The successive allegations, first for failure to advise about the products claims, and later, for failure to sue the first law firm, were merely differing facts in support of that claim, in the Court’s view. Accordingly, the order dismissing the allegations centered on the products claims did not finally resolve a “claim” for res judicata purposes.

In an opinion by Justice Lloyd A. Karmeier, the Court affirmed the Appellate Court on different grounds. Although the original trial judge had expressed a view about when the statute of limitations began running on the products claim based on the facts then before him, the critical fact was what the written order actually said – and didn’t say. The defendant had the right to amend. There was no suggestion that further allegations on the products claims were barred. Therefore, it necessarily followed that the order finally decided nothing, and res judicata couldn’t apply.

The second hearing, in which the judge commented that the first judge’s ruling was not up for reconsideration, was “even less definitive,” the Court found. The court’s statement was “intended to direct and control the discussion in the course of an ongoing hearing,” the Supreme Court concluded. Besides, the written order merely said “denied.” Nothing was decided, and no facts or theories were removed from the case.

Hernandez is a timely reminder of one of the most important ways to maximize the chances of success on appeal: protecting the record. In the words of the Court: “where the nature of the ruling may be determinative . . . a movant has the responsibility to obtain a definitive ruling.”

Illinois Supreme Court Clarifies “Theories” Versus “Claims” for Res Judicata Purposes

By Kirk Jenkins on Posted in Illinois

The basic rule of res judicata is easy enough to state: a final judgment on the merits by a court with jurisdiction bars any further actions by the parties or their privies on the same claim. But what judgments (or orders) are “final”? And what’s a “claim”? The Illinois Supreme Court delved into those important questions this morning, unanimously reversing the Second District’s decision in Wilson v. Edward Hospital [pdf].

Wilson arose when one of the plaintiffs – then a minor – suffered a brain injury during a routine operation for a broken leg. The plaintiff and his mother sued the doctors involved and the defendant hospital, alleging that the hospital was liable as the principal of the doctors. The hospital moved for summary judgment, which was granted in part: the Circuit Court held that the doctors were not the actual agents of the hospital, but that a question of fact existed as to apparent agency. But then, the plaintiffs voluntarily dismissed their complaint.

The plaintiffs were back a year later, refiling their claims and once again alleging apparent agency. The hospital moved to dismiss on res judicata grounds, arguing that the “final judgment” on the actual agency “claim” barred the new action. The Circuit Court denied the hospital’s motion to dismiss, but certified the question of whether actual and apparent agency were separate claims for purposes of res judicata and the rule against claim splitting. The Appellate Court answered that they were, and the new action was therefore barred. Judge Seminara-Schostok specially concurred in the Appellate Court’s holding, but urged the Supreme Court to grant leave to appeal in order to reconsider the application of res judicata and the rule against claim splitting to voluntarily dismissed actions.

In an opinion by Justice Rita B. Garman, the Supreme Court reversed. Rather than addressing the issue of whether the doctrine of res judicata applies at all to voluntarily dismissals, the Court ruled more narrowly, finding that the traditional elements of res judicata were not present.

The Court began with the issue of whether or not a “final” judgment had been entered in the first action, a necessary prerequisite to res judicata. The Court held that because actual agency and apparent agency were not separate claims, no final judgment had been entered, overruling Williams v. Ingalls Memorial Hospital, a year-old decision of the Appellate Court which had reached the opposite result on similar facts. A single cause of action can give rise to several different theories of recovery, the Court emphasized. The Court cited with approval to the definition of a “claim” found in Black’s Law Dictionary: “[t]he aggregate of operative facts giving rise to a right enforceable by a court.” Accordingly, the plaintiffs in Wilson had a single cause of action against the hospital for negligence, and the Circuit Court’s initial order had merely eliminated certain legal conclusions pled in support of that claim, rather than wiping out an entire claim.

Illinois Supreme Court to Resolve Municipal Pension Dispute

By Kirk Jenkins on Posted in Illinois

Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with Prazen v. Shoop [pdf], a dispute about the politically charged issue of public employee pensions.

Prazen relates to an Early Retirement Incentive (ERI) plan adopted by a city pursuant to section 7-141.1 of the Pension Code. At the end of 1998, the plaintiff retired from his position as superintendant of the city electric department, purchasing five years “age-enhancement credit” pursuant to the ERI to do so. Less than two weeks before his retirement became effective, the plaintiff incorporated a business which he had run as an unincorporated entity for some time – Electrical Consultants, Ltd.

Three days after it was incorporated, ECL and the city entered into a management and supervision agreement for the operation of the city’s electric department, effective one day after plaintiff’s retirement. Pursuant to the agreement, ECL agreed to provide a full time person to perform its duties with the electric department. The agreement was extended a number of times, until ECL finally terminated it in early 2009. ECL was voluntarily dissolved several months later. Throughout the life of the company, ECL employed no more than three people: plaintiff, his wife and their daughter.

The potential problem here is Section 7-141.1(g) of the Pension Code:

An annuitant who has received any age enhancement or creditable service under this Section and thereafter accepts employment with or enters into a personal services contract with an employer under this Article thereby forfeits that age enhancement and creditable service . . .

In the years immediately following his 1998 retirement, the plaintiff sought assurances on three occasions from the Illinois Municipal Retirement Fund that his contract with the city didn’t imperil his pension. In 1998, an IMRF representative allegedly told the plaintiff’s lawyer that a former employee could contract with an IMRF employer as an independent contractor (which is what the contract between the City and the plaintiff’s ECL corporation was). In early 2002, IMRF representatives confirmed that everything said in 1998 still applied. In late 2002, an IMRF representative confirmed that an “early out” employee could work for a corporation – even one he owned – doing work for his former employer, so long as the corporation wasn’t merely a guise to evade the statute.

Nevertheless, in 2010, IMRF staff informed the plaintiff that his continued relationship with the city had run afoul of Section 7-141.1(g) of the Pension Code after all. The plaintiff appealed the decision to the IMRF benefit review committee. Concluding that the IMRF had the power to “make administrative decisions concerning participation and coverage and to carry out the intent of the Fund,” the committee determined that the plaintiff’s corporation was a “guise” to evade the return-to-work provisions of the statute and ordered the plaintiff to repay the portion of his pension annuity attributable to his early retirement incentive. The IMRF Board of Trustees later affirmed the staff determination and adopted the committee’s conclusions as its own. The Circuit Court affirmed.

The Appellate Court (Fourth District) reversed. The Court held the Board of Trustees had the power to order return of benefits in only two circumstances: when an employee had accepted “employment with” or entered into a “personal services contract with” his former employer. The Board made neither determination here. If the Board were permitted to expand its general power to make “administrative decisions on participation and coverage” into authority to order return of benefits under additional circumstances not specified by the statute, then Section 7.141.1(g) would be rendered superfluous, the Court found. The Board’s finding that the plaintiff’s corporation was a “guise” for evading the statute amounted to an equitable determination to pierce the corporate veil, according to the Appellate Court. If the legislature wanted to grant such power to the Board, it would have said so, in the Court’s view.

What Happens if the Defendant Dies Before the Complaint is Filed?

By Kirk Jenkins on Posted in Illinois

Our previews of the civil cases granted review at the end of the November term by the Illinois Supreme Court continue with Relf v. Shatayeva [pdf]. Relf involves a simple question: what happens if you sue somebody who’s died?

The plaintiff filed a personal injury complaint against the defendant, alleging that he had negligently operated a motor vehicle, leading to her injuries. Some months after the complaint was filed, the plaintiff learned that the defendant had died only three months after the accident, long before the complaint was filed. Plaintiff filed a motion to spread defendant’s death of record, and for leave to appoint a special administrator. The motion was granted, and the plaintiff filed an amended complaint, naming the special administrator as the defendant.

Ultimately, the defendant moved to dismiss on the grounds that the action hadn’t named the decedent’s personal representative, and hadn’t been filed within six months of decedent’s death. Accordingly, the defendant argued, the complaint was void pursuant to 735 ILCS 5/13-209(b).

After a hearing, the Circuit Court granted the motion to dismiss.

The Appellate Court (First District, Second Division) reversed. On appeal, the defendant argued that subsection (b) was applicable, since an estate had, in fact, been opened. Nevertheless, the Court held that the action was governed not by Section 13-209(b), but by Section 13-209(c):

If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, the action may be commenced against the deceased person’s personal representative if all of the following terms and conditions are met:

(1) after learning of the death, the party proceeds with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant

(2) the party proceeds with reasonable diligence to serve process upon the personal representative.

The court held that the legislature enacted subsection (c) specifically to address situations where a plaintiff is unaware, at the time of filing, that the defendant is dead. Because the plaintiff had properly proceeded under subsection (c), dismissal was erroneous. Subsection (b) did not apply because it did not contemplate that the plaintiff was unaware of the defendant’s death.

Relf will likely be decided within the next four to six months.

Three New Civil Opinions Coming From the Illinois Supreme Court Thursday

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court has announced that on Thursday morning, it will file opinions in three new civil cases. They are:

  • Mashal v. The City of Chicago, No. 112341 – (1) What is a ‘decision on the merits’ under 735 ILCS 5/2-802 that would preclude the entry of a class decertification order? (2) Whether, in a class action case challenging defendants’ practice of issuing parking or standing violations to taxicab drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a prior Judge’s ruling that the defendants’ ‘practice of sending a second notice of a parking or standing violation prior to an initial notice being either hand delivered to the driver of the vehicle or affixed to the vehicle is violative of the plain language of the statute and the ordinances’ constitutes a decision on the merits under section 2-802 of the Code such that a subsequent judge presiding in the case lacks the authority to decertify the class? (3) Whether, in a class action case challenging defendants’ practice of issuing parking or standing violations to taxicab drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a prior Judge’s ruling that denied the defendants’ motion for partial summary judgment on the application of their affirmative defenses of failure to exhaust administrative remedies, res judicata, the collateral attack doctrine, and the voluntary payment doctrine constitutes a decision on the merits under section 2-802 such that a subsequent Judge presiding in the case lacks the authority to decertify the class? (4) Whether, in a class action case challenging defendants’ practice of issuing parking or standing violations to taxicab drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a Judge’s ruling that granted in part the defendants’ motion for summary judgment on the application of the statute of limitations constitutes a decision on the merits under section 2-802 such that a subsequent Judge presiding in the case lacks the authority to decertify the class. For our preview of the case, see here. For our report on the oral argument, see here.
     
  • Wilson v. Edward Hospital, No. 112898 – Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting set forth by the Supreme Court in Hudson v. City of Chicago, 228 Ill.2d 462 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), so that summary judgment entered on the actual agency claims in plaintiffs’ initial suit bars plaintiffs’ apparent agency claims in a refiled suit, even in the face of a ruling that there is a question of fact as to the apparent agency claims?
  • Hernandez v. Bernstein, No. 113054 — (1) Is an action for legal malpractice based on one factual theory one claim for purposes of res judicata, or two? (2) Does a plaintiff’s voluntary dismissal of the remainder of his claim render the trial court’s order dismissing one of plaintiff’s factual theories final for purposes of res judicata? For our preview of the case, see here. For our report on the oral argument, see here.
LexBlog