Illinois Supreme Court Civil Trial & Appeal Notes Jan 2013

Monthly Civil Trial & Appeal Notes by Retired Judge, Terrence J. Brady

January 2013

Illinois Supreme Court

Subject: Case notes to Feb 13, recent cases and ISBA E-Clips

Civil Traffic Laws, Condo Association’s Right to Stop and Detain Drivers for Rules Violations 3d Dist.

Poris v. Lake Holiday Property Owners Association, 2013 IL 113907 (January 25, 2013) LaSalle Co. (THOMAS) Appellate court reversed in part and affirmed in part; circuit court affirmed. Plaintiff was ticketed, by lake association security officer, for speeding while driving on a road on private lake community grounds. Association was within its authority in establishing and enforcing speed limits on Association property, and security officers were not attempting to unlawfully assert police powers in issuing traffic citations. Officer had probable cause to believe that offense was committed, in clocking Plaintiff’s speed at 34 mph in 25 mph private road; and probable cause is absolute bar to claim for false imprisonment. (KILBRIDE, FREEMAN, GARMAN, KARMEIER, BURKE, and THEIS, concurring.)

Probate, Intentional Interference with Testamentary Expectancy 1st Dist.

Bjork v. O’Meara, 2013 IL 114044 (January 25, 2013) Cook Co.. (FREEMAN) Circuit court reversed; appellate court reversed. Plaintiff filed suit for tort of intentional interference with testamentary expectancy, after having filed citation for discovery in probate proceeding. Probate court erred in denying Plaintiff’s petition to depose personal banker of will beneficiary, and thus reduced the availability of probate relief to Plaintiff to mere speculation. Thus, tort action, in which Plaintiff did not contest the will, was permissible, as Plaintiff had no adequate remedy through probate proceeding. Tort claim was subject to five-year general statute3 of limitations for actions to recover possession of personal property or damages for its detention or conversion, and not the six-month limitation period for will contests. (KILBRIDE, THOMAS, GARMAN, KARMEIER, BURKE, and THEIS, concurring.)

Illinois Appellate Court Legal Malpractice Insurance, Exclusions1st Dist.

American Zurich Insurance Company v. Wilcox and Christopoulos, L.L.C., 2013 IL App (1st) 120402 (January 17, 2013) Cook Co.,6th Div. (FITZGERALD SMITH) Reversed. Insurer filed declaratory judgment action as to its duty to defend law firm and attorney sued for civil conspiracy to open and operate a restaurant/lounge by illegal means. The case was decided on MSJ’s. Policy exclusion for conduct occurring when insured is acting for benefit of a business in which he has a controlling interest applies, so that insurer has no duty to defend law firm or attorney, who was listed as an attorney in firm on day policy was incepted. This is an arguably puzzling case where the law firm and the engaged attorney and his specialty company, which operated to secure liquor licenses, sought to secure a liquor license (albeit via alleged devious means) for a client company in which neither he nor his firm owned any interest. Recommended reading, 23 pages. (LAVIN and EPSTEIN, concurring.)

Domestic Violence Act, Failure of Police to Arrest, Proximate Cause, Expert Witness 1st Dist.

Fenton v. The City of Chicago, 2012 IL App (1st) 111596 (January 17, 2013) Cook Co., 4th Div. (LAVIN) Affirmed.

Police responded to two domestic disturbance calls; mother and her 22-year-old son, who was drunk and acting belligerent and erratic, were fighting; mother’s boyfriend was present in apartment. Evidence presented at trial permitted a finding that boyfriend, who was murdered by his girlfriend’s son after police left, was an abused person within the meaning of Domestic Violence Act, that the reporting police officers’ conduct in leaving the scene and telling son to wait outside in zero-degree weather for his girlfriend to pick him up in an hour, was wilful and wanton, and that their conduct was a proximate cause of victim’s death. Under these unique circumstances, court properly permitted Plaintiff’s expert on police procedures, who was formerly a 911 call taker and domestic violence trainer, to testify as to probable cause to assist the jury. If you represent pl or df in a police arrest case arising from a domestic violence call, this is a must read. (FITZGERALD SMITH and PUCINSKI, concurring.)

Expert Witnesses as “Hired Witness”; Pl Discontinued Treatment Due to Cost 1st Dist.

Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412 (January 10, 2013) Cook Co., 4th Div.

(FITZGERALD SMITH) Affirmed. Jury verdict for $713,601 for Plaintiff for injuries, including head injury, when she was struck by SUV while walking in crosswalk. Court did not err in allowing jury to hear testimony that Plaintiff did not continue with physical therapy treatment because of its cost following repeated cross exam. No denial of right to fair trial in court allowing Plaintiff to comment, in opening statement and closing argument, that Defendant’s retained expert physician was “a hired witness” and “has made a career out of” this. Comments did not cause substantial prejudice, as they were supported by facts in evidence. This case discusses a number of classic evidentiary rulings by the trial court affirmed under trial court discretion, e.g., rebuttal witness, 213 witness, lay witness on observations of pl before and after accident, invited testimony from repeated cross exam. Recommended reading, 31 pages. (LAVIN and EPSTEIN, concurring.)

Medical Malpractice, 2-622 Sanctions 2d Dist. Stoelting v. Betzelos, 2013 IL App (2d) 120651 (January 14, 2013) McHenry Co. (SCHOSTOK) Reversed and remanded.

Medical malpractice plaintiff’s noncompliance with Section 2-622 attorney affidavit requirement did not require dismissal with prejudice. Court had discretion to grant Plaintiff additional time, beyond the initial 90-day period, to comply with attorney affidavit requirement. (HUTCHINSON and BIRKETT, concurring.) 10 year Construction Statute of Repose 5th Dist. Schott v. Halloran Construction Company, Inc., 2013 IL App (5th) 110428 (January 10, 2013) St. Clair Co. (WELCH) Reversed; judgment entered. (Court opinion corrected 1/18/13.) Plaintiff, a village police officer, sued construction company for injuries sustained when he fell or stepped off unguarded retaining wall while on patrol. Plaintiff’s claims related to original 1990 construction of retaining wall (which was “an improvement to real property”) are barred by 10-year construction statute of repose. Work done to rebuild retaining wall after it collapsed in 1994 does not constitute “construction of an improvement to real property” within meaning of statute of repose, but was mere repair of an existing structure, and rebuilding of wall did not add anything to property but returned it to its condition prior to damage from heavy rain.(SPOMER, concurring; CHAPMAN, dissenting.)

Defamation, Libel and Slander 1st Dist. Coghlan v. Beck, 2013 IL App (1st) 120891 (January 22, 2013) Cook Co.,1st Div. (DELORT) Affirmed.

Court properly dismissed breach of contract claim which was negated by Plaintiffs’ verified allegations in complaint and attached exhibits. Court properly dismissed claim of libel per se and slander per se as factual allegations were conclusory and statements at issue were not defamatory per se and were subject to a qualified privilege that Plaintiffs failed to overcome or were subject to an innocent construction. Court properly dismissed claim of civil conspiracy as Plaintiffs failed to properly allege underlying tort, and because factual allegations were conclusory. This is a fact intensive case involving statements such as “corruption, crook, fraud”, arising from a business relationship. The opinion reads like a treatise on the subject of defamation. (31 pages) (HOFFMAN and CUNNINGHAM, concurring.)

Arbitration, Judicial Review of Arbitrator’s Interlocutory Ruling 1st Dist. Klehr v. Illinois Farmers Insurance Company, 2013 IL App (1st) 121843 (January 22, 2013) Cook Co., 2d Div. (CONNORS) Affirmed.

If a valid arbitration agreement exists and the parties have begun but not completed the arbitration process, neither party can obtain judicial review of the arbitrators’ interlocutory ruling on a discovery issue subject to the arbitration agreement by filing a declaratory judgment action in circuit court. Judicial review cannot be obtained on issues subject to the arbitration agreement until after the arbitration process is complete. (HARRIS and QUINN, concurring.)

Foreclosures, Unconscionability of Judicial Sale 1st Dist. NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147 (January 22, 2013)

Cook Co.,1st Div. (DELORT) Affirmed. (Court opinion corrected 1/24/13.)

Sale price of $20,000, generated at a forced judicial sale of an undivided half-interest in a single-family home, even when compared to $120,000, which is one-half the full appraised value of the property, is not unconscionably low. Inadequacy of sale price alone is not sufficient reason to deny confirmation of judicial sale. Sale was just, as no defects in sale process were alleged, and fair sale price of a one-half interest in a single-family home must be significantly discounted from amount calculated by dividing in half value of entire property. (HOFFMAN and ROCHFORD, concurring.)

Oral Contracts, Purchase of Real Estate 1st Dist. Gagnon v. Schickel, 2012 IL App (1st) 120645 (December 21, 2012) Cook Co.,1st Div. (HOFFMAN)

Affirmed in part and reversed in part; remanded with directions. Parties agreed to purchase property together and to share in costs and profits, but Defendant never filed quitclaim deed conferring Plaintiff interest in property. Plaintiff stated in “gift letter” (exhibit to complaint) that monetary gift was a bona fide gift with no obligation to repay sum at any time. As letter contradicted an essential term of alleged oral contract, Plaintiff failed to sufficiently allege an oral contract and cannot sustain claim for unjust enrichment. (CUNNINGHAM and DELORT, concurring.)

Condominiums, Condo Association Taking Possession 1st Dist. Gotham Lofts Condominium Association v. Kaider, 2013 IL App (1st) 120400 (February 5, 2013) Cook Co., 2d Div. (CONNORS) Reversed and remanded.

Process of condo association taking possession of condo after condo owner fails to pay assessments is a powerful remedy but is under firm statutory control. Court must confine its inquiry to issue of possession, in hearing on motion to vacate judgment of possession. Issues of condo association’s duties as to lease and property manager’s negligence are not germane to possession and cannot be considered in limited context of forcible entry and detainer action.(HARRIS and SIMON, concurring) End.