Illinois Lawyer Blog

Is the right to timely amend a complaint absolute? The provisions of 735 ILCS 5/2-616 of the Illinois Code of Civil Procedure seem to suggest that it is, by noting in subsection [a] that "...at any time before final judgment amendments may be allowed on just and reasonable terms...."

Additionally, subsection [c] notes that "A pleading may be amended at any time, before or after judgement to conform the pleadings to the proofs".

Until fairly recently defense lawyers very rarely challenged my efforts to timely amend complaints. That era of detente however, seems to have ended. Recently, defense lawyers have been objecting to my attempts to timely amend complaints, even when I am not adding new causes of action. The objections typically cite "suprise" or "prejudice", even if the desired amendments are simply adding facts to the complaint that have been discussed extensively in depositions. Defense objections probably are not motivated by actual suprise. Instead they are likely trying to preemptively get a ruling that certain facts can't be discussed at trial.

I expect rulings on several motions to amend in the very near future. I will find out then if I have to tweak my understanding of 5/2-616.

Recently read a decision from the First Appellate District that sends a clear message to lawyers electing to take voluntary dismissals - PROCEED WITH CAUTION!!!!

In Kiefer v. Rust-Oleum, plaintiff Colin Kiefer filed a complaint in the Circuit Court of Cook County against Rust-Oleum, an Illinois corporation. Kiefer, a resident of British Columbia, alleged that he was seriously injured when a can of aerosol spray paint sold by Rust-OIeum exploded. The incident happened while Kiefer was working for a company located in British Columbia. The complaint was in two counts, strict product liability and negligence. The case was then transferred to Lake County, pursuant to forum non conveniens motion.

While the case was pending, Rust-Oleum moved to dismiss, arguing that the law of British Columbia governed the claim, and British Columbia does not recognize the law of strict product liability. On November 5, 2003, the trial court agreed, and dismissed those counts based upon strict liability. Leave was given to plaintiff to file a second amended complaint. There was no reference to the order being "with prejudice" or "without prejudice".

Kiefer ultimately did file amended pleadings, sounding in negligence. There were additional motions filed but plaintiff got past them. Just a few weeks before trial, plaintiff voluntarily dismissed his remaining negligence claims pursuant to 5/2-1009 of the Illinois Code of Civil Procedure.

In August, 2006, Keifer refiled his negligence claims in Cook County against Rust-Oleum and U.S. Can. Both defendants moved to dismiss, arguing the claims were barred by res judicata. The trial court agreed, and dismissed both counts "with prejudice" on September 28, 2008, applying the Supreme Court's recent ruling in Hudson. Plaintiff appealed.

The Appellate Court first looked at the Hudson decision which held that where a plaintiff asserts multiple claims arising from the same set of operative facts in a single action and one of those claims is dismissed on the merits, res judicata will bar the plaintiff from not only refiling those claims but also any claims the could have been determined as part of that action.

The Court then considered, but dismissed Kiefer's arguments that his claims were not barred - with some pretty broad language that trial lawyers should remember. Kiefer's arguments that he was given leave to amend and that the order was not "with prejudice" made little impact. The Court noted that "...a trial court's description of a final judgment as being "without prejudice" or "with prejudice" is not determinative. The Court emphasized that the res judicata impact of the November 5, 2003 order extends "...not only to every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that first suit." Negligence claims could have been raised, and in fact were raised in the initial complaint. As a result, they were barred by res judicata

Moral of the story - res judicata is broader than you might think. Be afraid. Be very afraid.

The First District Appellate Court recently handed down an opinion precluding lawyers from signing Requests to Admit responses for their clients, even if the client can't be found. In Brookbank v. Olson, counsel for the plaintiff, Lauren Brookbank, served Requests to Admit regarding the reasonableness of Ms. Brookbank's medical bills on the defendant, Katie Ann Olson. Under Illnois Supreme Court Rule 216, a party may serve another party with a list of facts seeking admission of those facts. The concept behind the Request to Admit is to narrow the roster of contested issues. The party[i.e. the client] served with a Request to Admit Facts must respond within 28 days, with a signed statement denying the the matters for which admission is sought, or setting forth in detail the reasons he cannot truthfully admit or deny those matters. If the served party fails to do so, the matters set forth in the Request are deemed admitted. Brookbank's lawyers issued the Request to Admit in an effort to have the reasonableness of the medical bills admitted before trial. If they were admitted, then the bills could simply be introduced at trial with no foundation necessary.

Olson's attorneys, hired by her insurer, advised the Court they could not find their client, even after they sent an investigator out to look for her. Brookbank's counsel then moved to have the matters deemed admitted, but Olson's lawyers asked the trial court if they could sign and verify the request for their client. The Court allowed them to do so, but then directed that the issue of whether lawyers could sign for their clients be reviewed by the Appellate Court.

The Appellate Court reversed the trial court. The Court noted that the plaint language of Rule 216 calls for the sworn statement to be made by the party. The Court noted that without any client contact, the attorney's sworn statement is meaningless, as there is no indication the party signed off on the responses. The defendant did raise a good point - most clients have no idea about the reasonableness of medical bills and would have to rely on their attorney. The Appellate Court acknowledged that the ruling would leave lawyers faced with a Request to Admit in a tricky position if they can't locate their client. That issue however, they decided to leave for the Illinois Supreme Court to decide. As it stands now, lawyers can't sign for their clients.

Recently completed a case where my client was involved in a rear end collision with a large truck on a local highway. The case was tried to a judge and at the conclusion of my case the defense, as they always do, argued for a directed verdict. What I did not know at the time[but do now]is that the standard for a directed verdict motion in a bench trial is somewhat different than the standard utilized in a jury trial.

In a jury trial, the court views the evidence in the light most favorable to the plaintiff, pursuant to Pedrick v. Peoria & Eastern R.R. Co. (Ill.1967), 37 Ill.2d 494, 229 N.E.2d 504. In a bench trial setting however, the standard as explained in 735 ILCS 5/2-1110, is a bit different. Section 5/2-1110 provides

2-1110. Motion in non-jury case to find for defendant at close of evidence. In all cases tried without a jury, defendant may, at the close of plaintiff's case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived.
735 ILCS 5/2-1110

Essentially, as explained in Kokinis v. Kotrich (Ill.1980) 81 Ill.2d 151, 40 Ill.Dec. 812, 407 N.E.2d 43, in a bench trial setting, the court follows a two step process. First, the Court must determine if the plaintiff has established his prima facie case. If not, the motion for directed finding should be granted. If the Court finds the plaintiff has established his prima facie case, the court must then weigh all the evidence, including evidence which favors the defendant. After weighing all the evidence, the court then applies the standard of proof required for the underlying cause to determine if sufficient proof remains to sustain the prima facie case. If the court decides the defendant's evidence has negated any evidence necessary for plaintiff to prevail, the motion should be granted. If the defense has not negated any portion of the plaintiff's case the motion should be denied.

Thankfully, the court denied the motion and ultimately a significant six figure verdict was entered for my client. The case is presently on appeal.

Illinois personal injury lawyers have their own version of the Five Day Notice.

Pursuant to 815 ILCS 640/1, the Personal Injury Representation Agreement Act, any plaintiff who retains counsel to represent him/her in a personal injury case, WITHIN 5 DAYS OF THE INCIDENT, may, within 10 days after the occurrence, avoid the contract by notifying the attorney, in writing of the decision to terminate the contract, via certified or regular mail.

In addition, the attorney who signs a client up within 5 days of the event leading to the injury must provide to that client a copy of the contract; an address to which the notice avoiding the contract may be sent; a copy of the Act and a written acknowledgement of receipt from the plaintiff. In addition, the 10 day period does not begin to run until the lawyer provides the documents noted.

According to the legislative history, the Act is designed to shield recently injured parties who hastily sign legal contracts without due consideration of all the relevent facts.

I have been practicing for over 2 decades and was completely unaware of this Act. So you may indeed learn something new every day.

The Illinois Supreme Court recently came down with a decision that should make make Illinois trial attorneys think twice about taking voluntary dismissals of their cases. The Hudson v. City of Chicago case involved allegations that the City failed to properly respond to a life-threatening situation. In November of 1998, George Hudson Jr., just three years old, was having trouble breathing. His mother called 911 and advised the operator about George's breathing difficulties.
Nonetheless, the City responded with a fire engine that didn't have the proper advanced life support equipment. The proper equipment didn't arrive for another 15 minutes. Unfortunately, the child died.

In March of 1999, George Hudson Sr. filed suit on behalf of his son against the City of Chicago, the former City Fire Commissioner and several fire department personnel. Count I of the complaint alleged the City was negligent in responding to the call. Count II alleged the City's response amounted to wilful negligence. The City moved to dismiss Count I of the Complaint, arguing that it had immunity to negligence claims under the Emergency Medical Services Act, 210 ILCS 50/3.150. In October of 1999, the trial court granted that motion.

On July 25, 2002, plaintiffs elected to voluntarily dismiss Count II of the complaint, pursuant to 5/2-1009 of the Illinois Code of Civil Procedure. Under most circumstances[but not always!!!], a party that voluntarily dismisses all or part of a claim may refile within one year.

On July 23, 2003, plaintiffs refiled a single count complaint against the City of Chicago, again alleging wilful and wanton negligence. The City again moved to dismiss, arguing that the refiled action was barred by the doctrine of res judicata. Res judicata is a legal concept that essentially says you can't have two bites of the apple - if a court has ruled on a specific question for a specific party, that party can't refile that action. In order for res judicata to apply, one needs to show: 1) a final judgment on the merits; 2) an identity of cause of action exists[the subsequent claim is the same as the first]; and 3) the parties are identical in both actions. The Circuit Court granted defendant's motion. Plaintiff appealed and the Appellate Court affirmed the lower court decision. The plaintiff then took an appeal to the Illinois Supreme Court.

Plaintiff's argument was seemingly sound - he could't be barred by res judicata because there had never been an adjudication on the merits as to Count II - plaintiff had voluntarily dismissed it. The Supreme Court however, disagreed. Citing Rein v. David A. Noyes & Co. (Ill. 1996), 172, Ill.2ds 325, 216 Ill.Dec. 642, 665 N.E.2d 1199, the Court determined that res judicat did indeed apply. The Supreme Court ruled that if the elements necessary to res judicata are present, res judicata will bar not only every matter that was actually determined in the first case, but also every matter that MIGHT HAVE BEEN RAISED.

In determining if a matter could have been raised in the first action, the Court again looked to the Rein decision. The Supreme Court adopted Rein's holding that if a cause of action arises out of the same set of operative facts as the earlier case, it then could have been litigated in the earlier case, and, as a result, res judicata would apply. In effect, pursuant to Rein, a plaintiff who splits his claim by taking a voluntary dismissal, and then refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense. The Court then ruled that since the wilful and wanton count did arise out of the same set of operative facts as the negligence claim, the plaintiff could have litigated the wilful and wanton claim in the first case. The court ruled that res judicata did indeed bar the second claim, even though there was no adjudication on the merits.

On Monday, September 10, 2007, Governor Blagojevich signed House Bill 1462, which, under certain circumstances will extend the time period rape victims have to sue their attackers for money damages. Effective January 1, 2008, the new law will suspend the statute of limitations when the rape victim has been intimidated into remaining quiet. The new law came about in part, in response to a legal setback suffered by Woodstock, Illinois resident Jacque Hollander. Ms. Hollander says soul singer James Brown raped her at gunpoint in 1998 and threatened to have her killed if she told anyone of the rape. Hollander waited until 2005 to file suit and the case was dismissed as untimely.

If no intimidation has occurred, the victim will continue to have two years to sue.

The Fourth District Appellate Court of Illinois[Champaign County] recently came down with an opinon that will make Illinois personal injury attorneys check their complaints a little more closer. In Grady v. Machini[opinion filed on July 31, 2007] the plaintiff filed a complaint to recover damages for injuries she suffered in an auto accident. The complaint did not have an affadavit, as required by Supreme Court Rule 222, stating whether the damages sought did, or did not exceed $50,000. The case went to trial and the jury awarded $97,700. The defendant brought a post-trial motion to reduce the damages to $50,000. The trial court did so and the plaintiff appealed.

The Appellate Court felt that Rule 222 was very clear - in effect, it requires that a party to attach an affadavit stating whether the damages sought did or did not exceed $50,000. The rule goes on to say any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought do not exceed the $50,000 mark. The court ruled that as plaintiff did not file an affadavit asying she was seeking more than $50,000 she could not recover more than that amount. Ouch.