Illinois Supreme Court Civil Trial & Appeal Notes Dec 2012

Monthly Civil Trial & Appeal Notes by Retired Judge, Terrence J. Brady December 2012

Illinois Supreme Court

Attorney-Client Privilege 1st Dist.
Center Partners, Ltd. v. Growth Head GP, LLC., 2012 IL 113107 (November 29, 2012) Cook Co. (GARMAN) Judgments reversed; remanded.
As to privileged attorney-client communications which are disclosed, subject matter waiver does not apply to disclosures made in an extrajudicial context when those disclosures are not thereafter used by the client to gain a tactical advantage in litigation. Deposition testimony of corporate officers did not waive attorney-client privilege so as to allow application of subject matter waiver to certain attorney-client communications

Administrative Law, Statutory Fees 1st Dist.
Rodriquez v. The Department of Financial and Professional Regulation, 2012 IL 113706 (November 29, 2012) Cook Co. (GARMAN) Appellate court reversed; circuit court affirmed.
Statutory fees available for invalidating an administrative rule must be requested while the court invalidating the rule retains jurisdiction over the underlying issue. Thus, fee petition per Section 10-55(c) of Illinois Administrative Procedure Act must be filed with the initial complaint or brought while the circuit or appellate court retains jurisdiction. (KILBRIDE, FREEMAN, THOMAS, KARMEIER, BURKE, and THEIS, concurring.)

Class Actions, Decertification 1st Dist.
Mashal v. The City of Chicago, 2012 IL 112341 (December 13, 2012) Cook Co. (THOMAS) Appellate court affirmed; remanded.
Chicago taxi drivers filed class action suit challenging City’s practice of issuing “fly-by” traffic citations, issued by mail rather than by attempted service at scene of violation. A “decision on the merits” is a complete determination of liability on a claim based on facts disclosed by the evidence, and which establishes a right to recover in at least one class member, but is short of a final judgment. Grant of partial summary judgment, and court order which made no finding of liability, was not a decision on the merits and did not preclude decertification. (KILBRIDE, GARMAN, KARMEIER, BURKE, and THEIS, concurring; FREEMAN, specially concurring.) 

Res Judicata, Need for Final Definitive Orders 1st Dist.
Hernandez v. Pritikin, 2012 IL 113054 (December 13, 2012) Cook Co. (KARMEIER) Appellate court affirmed; remanded.

The trial court dismissed pl’s action on the basis of res judicata. The Appellate Court reversed the trial court. The basic reasoning of the Supreme Court in affirming the Appellate Court was that a party claiming res judicata bears the burden of showing that res judicata applies, and thus has a duty to clarify the record so as to clearly demonstrate their entitlement to application of res judicata. A party cannot use oral pronouncements of the court which are ambiguous indicators of the court’s intent to explain otherwise unambiguous written orders. This case is instructive for both counsel and the trial court on issues of definitive court orders for purposes of res judicata; case is a short read in 17 pages, with insightful analysis beginning on p 13. (KILBRIDE, FREEMAN, THOMAS, GARMAN, BURKE, and THEIS, concurring.)

Res Judicata, Need for Final Orders 2d Dist.
Wilson v. Edward Hospital, 2012 IL 112898 (December 13, 2012) Du Page Co. (GARMAN) Appellate court reversed; remanded.
Trial court denied dismissal on basis of res judicata, but certified question to Appellate Court on issues of actual agency and apparent agency for purposes of res judicata. Appellate Court answered question in manner that res jucdicata would bar the refiled suit. Supreme Court reversed Appellate Court, holding that res judicata did not bar the refiled suit. The Supreme Court found that the trial court’s summary judgment order (original case) finding that defendant doctors were not actual agents of hospital was not a final judgment on the merits for purposes of res judicata, as it did not dispose of the rights of the parties on a separate branch of the controversy. Actual agency and apparent agency are not separate and distinct causes of action, for purposes of res judicata, but are part of the duty analysis. Thus, Plaintiffs are not barred from asserting allegations of apparent agency in their refiled action. (KILBRIDE, FREEMAN, THOMAS, KARMEIER, BURKE, and THEIS, concurring.)

Illinois Appellate Court

Medical Studies Act, Confidentiality Provisions 1st Dist.
Tunca v. Painter, 2012 IL App (1st) 110930 (November 9, 2012) Cook Co., 5th Div. (TAYLOR) Affirmed.
(Court opinion corrected 11/30/12.) Court properly granted summary judgment for Defendant on allegation that Defendant vascular surgeon’s statement to other doctors about Plaintiff gynecological oncology surgeon’s performance violated confidentiality provisions of Medical Studies Act. That Act was enacted to benefit the general public, who stand to gain from higher quality health care, not physicians in peer performance review. Any benefit that physicians may derive from confidentiality provisions of the Act is incidental. Defendant’s statements were not information of a peer review committee, and were made in week after surgery, though peer review committee meeting did not occur until 8 months later. (McBRIDE and PALMER, concurring.) 

Negligence, Slip and Fall, Open and Obvious 1st Dist.
Ballog v. The City of Chicago, 2012 IL App (1st) 112429 (October 22, 2012) Cook Co.,6th Div. (GARCIA) Affirmed.
Court opinion corrected 11/29/12.) Plaintiff fractured her foot when she tripped as she stepped from portion of street that had been excavated, refilled with concrete, but not resurfaced, and then she fell, landing on the connecting sidewalk. Court properly granted summary judgment to Defendant City, as condition was open and obvious as a matter of law and the deliberate encounter exception to the doctrine did not apply. (LAMPKIN and HALL, concurring.) 

Insurance, Clear Policy Language 1st Dist.
Area Erectors, Inc. v. Travelers Property Casualty Company of America, 2012 IL App (1st) 111764 (December 7, 2012) Cook Co., 5th Div. (HOWSE) Affirmed.
Court properly entered judgment on the pleadings, and properly found that actual cash value was the proper valuation, under the policy, for the loss of a construction crane. Bona fide coverage dispute existed, as other insurer contended that replacement value was the proper method of valuation. Thus, court properly denied claims for Section 155 penalties on the crane claim. (PALMER and TAYLOR, concurring.)