Justia Lawyer Rating for Robert D. Kreisman

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The Illinois Appellate Court has affirmed the dismissal of a 42-count fourth amended complaint for damages arising from an automobile accident in December 2009. The case involved injuries to the wife and son of Nicholas Skridla — Margaret and Maxamillian. The appeal pertains only to the claim of spoliation of evidence against defendant Auto Owners Insurance Co. (Auto Owners). The claims against Auto Owners were added in the fourth amended complaint when Auto Owners was joined as a defendant. The other counts of this product-liability and personal-injury action remained pending in the trial court in Winnebago County, Ill.

The plaintiff alleges that the trial court was wrong in dismissing the spoliation counts with prejudice pursuant to Section 2-615 of the Illinois Code of Civil Procedure on the grounds that plaintiff did not plead sufficient facts to establish that Auto Owners owed plaintiff a duty to preserve the evidence at issue.

Auto Owners argued that the dismissal was proper under Section 2-615 and also maintains that the spoliation count should have been dismissed pursuant to Section 2-619 of the Code (735 ILCS 5/2-619) for the additional reason that they were untimely, as Auto Owners argued in its combined Section 2-619.1 motion. Auto Owners argued that the spoliation counts were statutorily time-barred.

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Cook County Judge William Gomolinski ruled that the language in the Illinois Constitution, Section 1, Article 13, “The right to trial by jury as heretofore enjoyed shall remain inviolate,” prevails and thus the law adopted for 6-person juries is unconstitutional. What the judge wrote in his opinion was that the right to a jury as it existed in 1970, with 12 jurors, cannot be changed without a constitutional amendment. That does not mean that the parties, should they agree, could not limit the jury size to a smaller number. However, litigants — according to Judge Gomolinski’s opinion — have a constitutional right to demand a 12-person jury in their cases.

The change to the Illinois jury system was proposed and passed during the last days of former Gov. Patrick J. Quinn’s second term in office. The law went into effect June 1, 2015.

In this particular case, a medical-malpractice case filed in Cook County on June 30, 2015, the defense counsel filed an appearance on behalf of his defendant clients, a doctor and a neurosurgery professional corporation, and requested a 12-person jury. A motion was filed for leave to file a 12-person jury demand with the court. The motion was assigned by the presiding judge in the law division to Judge Gomolinski. The opinion of Judge Gomolinski referred to the 1870 Illinois constitutional convention when a 12-person jury was a given right although the parties as now could waive their rights to a 12-person jury if they agreed on a smaller jury size.

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Generally the law in Illinois states that a guarantor is entitled to assert the same defenses that would be available to the principal obligor. W.W. Merck White Lead Co. v. McGahey, 159 Ill.App. 418 (1st Dist. 1911).

“Under Illinois law, ‘the liability of a guarantor is limited by and is no greater than that of the principal debtor and . . . if no recovery could be had against the principal debtor, the guarantor would also be absolved of liability.’ ‘Although the language of a guaranty agreement ultimately determines a specific guarantor’s liability, the general rule is that discharge, satisfaction or extinction of the principal obligation also ends the liability of the guarantor.’” Riley Acquisitions v. Drexler, 408 Ill.App.3d 392, 402 (1st Dist. 2011), quoting Edens Plaza Bank v. Demos, 277 Ill.App.3d 207, 209 (1st Dist. 1995).

In the Riley case, the guarantors were two joint obligations to the bank. The bank released one of the obligors. The other obligor was a dissolved corporation. Under the applicable state law, the five-year post-dissolution time period for collecting against the dissolved corporation had expired.

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The Rev. Timothy O’Malley and William O’Malley were two of Eileen O’Malley’s sons. In 1996, Eileen O’Malley experienced the first signs of dementia. The same year, Eileen and Timothy opened a joint checking account with First Midwest Bank Corp.

Eileen instructed that the account statements be sent to the Palos Country Club, a family asset managed by William O’Malley. Timothy never saw the account statements and so had no way of knowing that it contained almost $5 million in February 2004 and that by February 2009, there was less than $100,000 in the account. William had withdrawn the rest.

William, with two of his siblings, developed a plan “to defraud their 8 siblings and Eileen so that [they] would control Eileen’s assets.” To accomplish that, they had Eileen sign documents, including “wills, trust agreements and checks which did not reflect Eileen’s wishes.”

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On Oct. 28, 2013, Robert Skahill signed a contract with Metropolitan Properties & Development Inc. The contract called for him to buy the property from Metropolitan for $3.1 million.

Skahill was required to put down $50,000 as earnest money of which $5,000 was due on the signing of the contract and the remaining $45,000 to be paid following the Nov. 18 inspection.

He Skahill paid $5,000, but never paid the remaining $45,000 in earnest money.

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On Sept. 10, 2011, Stefan Zlatev was involved in a fight that started in an apartment building and spilled out to the street. During the fight, Zlatev was hit on the head with a brick. He suffered several broken bones to his face.

The big issue in this case was the fact that Zlatev could not identify who hit him. A police report prepared on Nov. 8, 2011 identified Mariyana Lechova as the witness who saw a man walking away from the fight and carrying a brick.

The man was described as “male, white, 22 years old, 5 feet 7 inches to 5 feet 8 inches, 170 pounds, short blond hair and wearing a red shirt.”

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The issue before the Illinois Appellate Court was whether the parties’ high-low agreement was a settlement agreement and if so, whether interest pursuant to Section 2-1303 of the Illinois Code of Civil Procedure accrues on an award that is predetermined by that high-low agreement. Mark Pinske thought he was entitled to 9% post-judgment interest on $100,000 of the $194,000 arbitration award he received against Lawrence White.

The arbitration award was made under a hybrid mediation/arbitration contract that also contained a high-low agreement. Pinske and White’s automobile insurer, Allstate Property & Casualty Insurance Co. agreed that Allstate would pay at least $50,000, but no more than $100,000 for injuries, that Pinske suffered in an automobile crash with White. The agreement asked a retired Cook County judge to mediate and that if the mediation effort failed, then to arbitrate the dispute for a binding result.

When Pinske sued for judgment on the award, he relied on Section 2-1303 of the Illinois Code of Civil Procedure. That section starts by saying “judgments recovered in any court shall draw interest at the rate of 9% per annum until satisfied.” The section also provides that “when judgment is entered upon any award, . . . interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.”

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The Illinois Appellate Court has affirmed a jury’s wrongful death verdict regarding the death of a woman who was hit by a truck as she stood on the side of a road next to her disabled car. The woman’s husband filed a wrongful death lawsuit against the truck driver, the truck’s owner, the trucking company that hired both of them and the logistics company who arranged for the shipping.

The woman’s family was successful at trial against all of the defendants in obtaining a jury verdict. On appeal the defendant’s argument centered on trial errors and agency issues.

The truck involved in the incident was in a supply chain routed for a major automaker. The automaker had arranged a particular supply change to reduce the time it would take to buy and hold parts, getting them only when the parts were needed.

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Richard Yanni appealed from the trial court’s order that imposed a constructive trust on property he owned and awarded attorney fees and punitive damages against him. The appellate court ruled that the trial court was wrong in denying his motion to dismiss. Accordingly, the Illinois Appellate Court vacated the trial judge’s judgment in favor of the petitioner Diana Law, the Kane County Public Guardian, and reversed the trial judge’s denial of Yanni’s motion to dismiss.

In March 2013, an emergency temporary guardianship brought by the daughter of Patricia Yanni ordered that Patricia was a disabled person. In the petition brought by Patricia’s daughter, Kristin Davison, it was alleged that Patricia Yanni was unable to handle personal and financial affairs due to her dementia and physical illnesses.

Davison alleged that Patricia’s son, Richard, who lived with Patricia, “was found to be neglecting his mother.” Patricia had been removed from her home and placed in a skilled nursing facility. Davison wanted to have the public guardian appointed as guardian of her mother’s estate and to have herself appointed as guardian of her mother. The trial judge granted that petition appointing Davison as temporary guardian with leave to place her mother in an appropriate facility. The court appointed Law, the Kane County Public Guardian, as temporary guardian of Patricia Yanni’s estate. The court also appointed a guardian ad litem (GAL).

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The Illinois Appellate Court has ruled in a dispute regarding who should inherit a home in Highland Park, Ill. Although a trust instrument stated the house was part of the trust, there was no separate, formal documentation showing that a transfer of the house had been placed in the trust. The court In re Estate of Mendelson considered whether the house was properly transferred into the trust. The court noted that it could “find no Illinois authority on point.”

The Illinois Appellate Court held that the house was a part of the trust because it was described in it although there was no recorded deed transferring the real estate to the trust.

In the Mendelson case, the chain of title to the house was complex. In 2005, Diane Mendelson executed the deed that placed title to the house in joint tenancy with herself and her son. The deed was never recorded because she enjoyed a property tax benefit as the sole title owner of the property.

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