August 2024 IICLE FLASHPOINTS

In Majerle v. Winona, 1302 LLC, 2024 IL App (1st) 231339-U, when a condominium board of directors sued a developer and others for construction defects on a newly constructed six-unit condominium building and a unit owner then brought his own action against the same defendants, the appellate court affirmed dismissal of the unit owner’s later-filed lawsuit.

Facts

In May 2020, the board of a newly constructed six-unit condominium building sued the developer and others for construction defects. In June 2022, one of the unit owners sued the same defendants for essentially the same claims. 2024 IL App (1st) 231339-U at ¶2. The defendants moved to dismiss the unit owner’s action pursuant to §§2-619(a)(3) and 2-619(a)(9) of the Code of Civil Procedure. The trial court dismissed the lawsuit as a “prior pending action,” and the appellate court affirmed. 2024 IL App (1st) 231339-U at ¶2.

After the defendants filed a motion to dismiss pursuant to §2-619(a)(3), the court granted the defendants’ motion to consolidate the two actions, and the plaintiff’s motion for substitution of judge as a matter of right was granted. 2024 IL App (1st) 231339-U at ¶9. The trial court then dismissed the unit owner’s lawsuit pursuant §2-619(a)(3) because the plaintiff’s “interest[s] are represented by the board’s lawsuit and defending against the [plaintiff’]’s action would cause multiplicity and vexation.” 2024 IL App (1st) 231339-U at ¶10. In denying the plaintiff’s motion for reconsideration, the trial court rejected the plaintiff’s arguments that under the ruling a unit owner with standing could never bring his or her own action if the association filed first and the court’s ruling would not create a race to the courthouse in condominium cases. 2024 IL App (1st) 231339-U at ¶11.

Analysis

As the appellate court recognized here, generally dispositions by motions to dismiss are given de novo review. 2024 IL App (1st) 231339-U at ¶14. However, as here, when the appellate court reviewed the trial court’s consideration of several factors on an inherently procedural motion to dismiss, such as a §2-619(a)(3) motion, the trial court’s decision is reviewed under an abuse of discretion standard. 2024 IL App (1st) 231339-U at ¶14, citing Overnite Transportation Co. v. International Brotherhood of Teamsters, 332 Ill.App.3d 69, 73, 773 N.E.2d 26, 265 Ill.Dec. 664 (1st Dist. 2002). “An abuse of discretion occurs where the trial court’s ruling is ‘arbitrary, fanciful, or unreasonable, or where no reasonable person would take the same view.’ ” 2024 IL App (1st) 231339-U at ¶14, citing People v. Illgen, 145 Ill. 2d 353, 583 N.E.2d 515, 165 Ill.Dec. 599 (5th Dist. 1991).

The appellate court observed that “[s]ection 2-619(a)(3) provides for dismissal where ‘there is another action pending between the same parties for the same cause.’ ” 2024 IL App (1st) 231339-U at ¶15, citing 735 ILCS 2-619(a)(3). This section of the Code is “to avoid duplicative litigation and is to be applied to carry out that purpose.” 2024 IL App (1st) 231339-U at ¶15, quoting Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428, 493 N.E.2d 1045, 1053, 98 Ill. Dec. 24 (1986). The “same parties” requirement may be satisfied if the litigants’ interests are similar; the number and names of the parties do not need to exactly match. The “same cause” requirement is satisfied when the relief requested arises from substantially the same set of facts. 2024 IL App (1st) 231339-U at ¶16. “[T]he crucial inquiry is whether both [lawsuits] arise out of the same transaction or occurrence, not whether the legal theory, issues, burden of proof, or relief sought materially differs between the two actions.” 2024 IL App (1st) 231339-U at ¶16, quoting Performance Network Solutions, Inc. v. Cyberklix US, Inc., 2012 IL App (1st) 110137, ¶31, 966 N.E.2d 396, 359 Ill.Dec. 75, and Jackson v. Callan Publishing, Inc., 356 Ill.App.3d 326, 337, 826 N.E.2d 413, 292 Ill.Dec. 272 (1st Dist. 2005).

No dispute existed that the two cases involved the same parties and causes. 2024 IL App (1st) 231339-U at ¶17. Without giving any specifics, the plaintiff unit owners argued that his interests could vary greatly from that of the board and the vision of success in outcome and case handling could vary. 2024 IL App (1st) 231339-U at ¶18. The appellate court noted that satisfying the same parties and same causes prongs are not automatically dispositive. 2024 IL App (1st) 231339-U at ¶19. As discussed in Kellerman, there are other factors to consider including (a) comity; (b) prevention of multiplicity, vexation, and harassment; (c) the likelihood of obtaining complete relief in a foreign jurisdiction; and (d) the res judicata effect of a foreign judgment in a local forum. 2024 IL App (1st) 231339-U at ¶19.

In comparing the actions filed, the appellate court reached the conclusion that the trial court did not abuse its discretion in dismissing the plaintiff’s lawsuit as duplicative. 2024 IL App (1st) 231339-U at ¶20. Furthermore, the appellate court noted that §9.1(b) of the Illinois Condominium Property Act empowered the board of directors to have standing and the power to act in a representative capacity on behalf of the unit owners for any claims involving the common elements or more than one unit. 2024 IL App (1st) 231339-U at ¶21, citing 765 ILCS 605/9.1(b). The appellate court also noted that if the board failed to represent an owner’s interests in its lawsuit, the unit owner can sue the board of directors in a derivative claim. 2024 IL App (1st) 231339-U at ¶22. While this last statement by the appellate court may not be entirely correct, the gist of what the appellate court is saying is plain enough.

For more information about condominium law, see CONDOMINIUM LAW: DAILY OPERATION CHALLENGES (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth A. Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In Smith v. Arizona, 602 U.S. ___, ___ L.Ed.2d ___, 144 S.Ct. 1785 (2024), the U.S. Supreme Court ruled that when an expert witness conveyed an absent analyst’s statements in support of the expert’s opinion, and the statements from the absent analyst provided support for the expert witness’s opinion only if true, then the statement comes in for the truth of the matter asserted. The Court stated that if those statements are testimonial, then the Confrontation Clause will bar their admission. 144 S.Ct. at 1788.

In Smith, the defendant was charged with possession methamphetamine and cannabis for sale. The drugs were analyzed by forensic scientist Elizabeth Rast at a state laboratory. Rast concluded that the substances contained methamphetamine and cannabis. Rast documented her testing procedures in her notes. Id.

The state called another lab scientist, Greggory Longoni, to testify about Rast’s work at trial because Rast had left the crime laboratory. Longoni reviewed Rast’s notes and report in preparation for the trial. Longoni testified about what Rast conveyed about her testing (i.e., that that the substances contained methamphetamine and cannabis), and Longoni offered his own opinion that the substances contained methamphetamine and cannabis. The defendant was convicted at trial. 144 S.Ct. at 1796.

The defendant argued on appeal that his Confrontation Clause rights were violated because Rast did not testify at trial. Id.

The Supreme Court first determined that the defendant’s argument would only succeed if Rast’s statements came into evidence for their truth because the Confrontation Clause only applies to testimonial hearsay. The Clause does not bar the use of testimonial statements that are used for other purposes than establishing the truth of the matter asserted. Therefore, a court must identify the role of the of the out-of-court statements (like Rast’s statements used at trial) during the trial. 144 S.Ct. at 1797.

The defendant argued that Rast’s statements were conveyed through Longoni to establish that what happened in the lab actually happened, i.e., that she used certain procedures that identified the substances. The state argued that Rast’s statements did not come into evidence for their truth but instead showed the basis of Longoni’s independent opinion about the substances. The state emphasized throughout the appeals and to the U.S. Supreme Court that Arizona’s Rules of Evidence (just like Illinois Rule of Evidence 703) permit statements like from Rast for that purpose. 144 S.Ct. at 1797.

The Smith Court rejected the notion that evidentiary rules control whether a statement is being offered for their truth. 144 S.Ct. at 1797. The Court stated that “[i]f an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of the matter of what it asserts.” The defendant does not have an opportunity to challenge the veracity of the out-of-court assertions that were doing much of the work. 144 S.Ct. at 1799.

The Smith Court concluded that Rast’s statements came into evidence for their truth because they were admitted to show the basis of Longoni’s expert opinions, which were predicated on the truth of Rast’s factual statements. Longoni’s opinion that the substances contained methamphetamine and cannabis were based only on his acceptance of the truth of what Rast had reported about her lab work, i.e., that she performed certain tests and received certain results. Because Rast was not in the courtroom, the defendant was unable to ask her questions. 144 S.Ct. at 1811.

The Smith Court further stated that if it accepted the state’s argument, then every testimonial lab report could come into evidence through a trained surrogate, however remote from the case. This would leave defendants unable to cross-examine the testing analysts about their work and whether their results should be trusted. 144 S.Ct. at 1802.

However, the Confrontation Clause still allows experts like Longoni to testify from personal knowledge about lab standards, practices, procedures, and chain of custody. Longoni could also have been asked hypothetical questions like “[i]f or assuming some out-of-court statements were true, what would follow from it?” The state would have to separately prove the thing assumed. 144 S.Ct. at 1800.

The Smith Court remanded the case back to the state court of appeals to determine if Rast’s statements were testimonial. This inquiry focuses on the primary purpose of the statement and how it relates to future criminal proceedings. Courts must identify the out-of-court statement and the principal reason it was made given all relevant circumstances. 144 S.Ct. at 1801.

In conclusion, the Smith Court made it clear that “[a] State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her.” 144 S.Ct. at 1802.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His expertise includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

On July 31, 2024, Illinois Governor J.B. Pritzker signed into law P.A. 103-0722, referred to as the Worker Freedom of Speech Act. Effective January 1, 2025, the Act prohibits Illinois employers from mandating their employees to attend what are commonly referred to as “captive audience meetings.” Such meetings are generally held by an employer for the purpose of discouraging employees from organizing or joining a labor union. While “captive audience meetings” remain permissible under federal law, Illinois has now joined six other states that have banned these meetings.

Under the Act, an employer (or the employer’s agent, representative, or designee) may not discharge, discipline, penalize, or take any adverse employment action (or threaten the same) against an employee if the employee declined to attend or participate in an employer-sponsored meeting, or declined to receive or listen to communications from the employer, if the meeting or communication is to communicate the opinion of the employer about religious or political matters. Employers are similarly prohibited from threatening an adverse employment action against an employee as a means of inducing attendance or participation in such a meeting or communication. “Religious matters” are defined as those “relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.” P.A. 103-0722, §10. “Political matters” are defined as those “relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization.” Id.

Although the Act generally outlawed employer-mandated meetings pertaining to religious or political matters, the Act expressly stated that it does not:

1. prohibit communications of information that the employer is required by law to communicate, but only to the extent of the lawful requirement;
2. limit the rights of an employer to conduct meetings involving religious or political matters, so long as attendance is voluntary, or to engage in communications so long as receipt or listening is voluntary;
3. limit the rights of an employer from communicating to its employees any information necessary for performance of their required job duties;
4. prohibit an employer from requiring its employees to attend any training intended to foster a civil and collaborative workplace or reduce or prevent workplace harassment/discrimination;
5. prohibit an institution of higher education from conducting meetings or participating in any communications with its employees concerning any coursework, symposia, research, publication, or an academic program at the institution;
6. prohibit a political organization, political party organization, caucus organization, a candidate’s political organization, or a not-for-profit organization from requiring its employees to attend an employer-sponsored meeting or participate in any communication with the employer for the purpose of communicating the employer’s political tenets or purposes;
7. prohibit the General Assembly or a State or local legislative or regulatory body from requiring their employees to attend an employer-sponsored meeting or participate in any communication with the employer for the purpose of communicating the employer’s proposals to change legislation, proposals to change regulations, or proposals to change public policy; or
8. prohibit a religious organization from requiring its employees to attend an employer-sponsored meeting or participate in any communication with the employer for the purpose of communicating the employer’s religious beliefs, practices, or tenets. Id.

The Act defines “voluntary” as an action that is not (1) incentivized by a positive change in any employment condition (e.g., compensation or other employment benefit); and (2) taken under threat of negative change in any employment condition for non-attendance (e.g., negative performance evaluations). Id.

Under the Act, an aggrieved employee may bring a civil action within one year from the date of the alleged violation. A court may award a prevailing employee “all appropriate relief,” which includes injunctive relief, reinstatement to the employee’s former position (or an equivalent position), backpay, re-establishment of any employee benefits that the employee would have been eligible for had the employer’s violation not occurred (e.g., seniority), and any other relief deemed necessary to make the employee “whole.” A court shall also award a prevailing employee reasonable attorneys’ fees and costs. P.A. 103-0722, §20.

In addition to providing aggrieved employees with a right of action, the Illinois Department of Labor is required to inquire into any alleged violations of the Act brought to its attention by an interested party. The Act defines an “interested party” as an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements. P.A. 103-0722, §10. If a complaint is submitted to the Department by an interested party, the named party alleged to have violated the Act will be notified and provided an opportunity to either contest or cure the alleged violation. The Department may issue a notice of right to sue to the interested party if (1) the named party has cured the alleged violation to the satisfaction of the Department’s Director of Labor; (2) the Director has determined the allegation is unjustified or the Department does not have jurisdiction; or (3) the Director has determined that the allegation is justified or has not made a determination, and either has decided not to exercise jurisdiction over the matter or has concluded administrative enforcement. P.A. 103-0722, §25. Any claim filed with the Department must be made within three years after the alleged conduct resulting in the complaint (plus any period for which the limitations period was tolled). In addition to the relief available to a prevailing employee in a civil action, an employer deemed to have violated the Act will be assessed a civil penalty of $1,000 for each violation, payable to the Department, and each employee who is subject to a violation shall constitute a separate violation. An interested party that prevails in a civil action against an employer shall also receive 10 percent of any statutory penalties assessed, as well as any attorneys’ fees and expenses. Id.

Within 30 days of the Act’s effective date, employers will be required to post and keep posted a notice of employee rights under the Act where employee notices are customarily placed. P.A. 103-0722, §30.

For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, where he advises public and private sector employers on labor and employment law. He specializes in workplace investigations, disciplinary actions, contract disputes, and compliance issues, and has extensive experience in traditional labor matters like union organizing and collective bargaining. Garretson also defends employers in discrimination, harassment, and retaliation claims in court and before administrative agencies. He holds a J.D. from Chicago-Kent College of Law and a B.A. from Michigan State University.

Illinois is the first state in the United States to enact P.A. 103-556 to protect child influencers. Effective July 1, 2024, vloggers who feature minors in their social media content must compensate the minors so long as the minor is featured in 30 percent or more of the content over a 30-day period, and the content is generating a revenue of at least ten cents per view. 820 ILCS 205/2.6(a). The minor, anyone under the age of 16, is deemed to be featured in a vlog and is considered engaged in the work of vlogging when at least 30 percent of the vlog includes the minor’s likeness, name, or photograph. The percentage is measured by the amount of time the likeness, name, or photograph of the minor visually appears or is the subject of an oral narrative in a video segment as compared to the total length of the vlog. Id.

The statute defines “vlog” as “any content shared on an online platform in exchange for compensation.” 820 ILCS 205/0.5. A “vlogger” is defined as an “individual or family that creates video content, performed in Illinois, in exchange for compensation, and includes any proprietorship, partnership, company, or other corporate entity assuming the name or identity of a particular individual or family for the purposes of that content creation.” Id. A vlogger does not include minors under the age of 16 who create their own vlogs.

Online Influencers Who Feature Minors Are Required To Compensate the Minors through a Trust Fund that Becomes Available to the Minors Upon Turning 18

Vloggers who feature minors in their vlogs as specified above are required to set aside gross earnings on the video content including the likeness, name, or photograph of the minor in a trust account that shall be available to the minor engaged in the work of vlogging. 820 ILCS 205/12.6. Said trust account shall be held by a bank, corporate fiduciary, or trust company, and the funds in the account shall become available to the minor upon the minor attaining the age of 18 or until the minor is declared emancipated. 820 ILCS 205/12.6(b). The trust account must also meet the requirements of the Illinois Uniform Transfers to Minor Act, 760 ILCS 20/1, et seq.

If there is only one minor who meets the content threshold as specified above, the percentage of total gross earnings on any video segment including the minor’s likeness, name, or photograph is equal to or greater than half of the content percentage that includes the minor. 820 ILCS 205/12.6(a)(1).

If there is more than one minor who meets the content threshold as specified above (30 percent or more), the percentage for all minors in any segment must be equally divided between the minors, regardless of differences in percentage of content provided by the individual minors. 820 ILCS 205/12.6(a)(2).

Online Influencers Who Feature Minors Are Required To Maintain Records that Must Be Provided to the Minors on an Ongoing Basis

To ensure accountability, the law requires maintenance and disclosure of records. Specifically, vloggers whose content features minors under the age of 16 and are engaged in the work of vlogging shall maintain records of the previous 12-month period containing the following:

1. name and documentary proof of the age of the minor engaged in the work of vlogging;
2. number of vlogs that generated compensation;
3. total number of minutes of the vlogs that vlogger received compensation for;
4. total number of minutes each minor was featured in vlogs;
5. total compensation generated from vlogs featuring a minor; and
6. amount deposited in the trust account for the benefit of the minor featured in the vlog.

If the vlogger fails to maintain the records as required by law, the minor may file a lawsuit to enforce said requirement. 820 ILCS 205/2.6(c), 205/2.6(d).

“Kidfluencers” May File a Lawsuit Against Online Influencers for Knowing or Reckless Violation of this Law

The amendments to the Child Labor Law empower minors to take legal action against vloggers who knowingly or recklessly violate this law. The minors may seek enforcement of the sections regarding maintenance of records and trust accounts. If the minor prevails, courts may award the minor actual damages, punitive damages, and court costs and attorney fees.

Takeaways

Social media is ubiquitous. When social media started, it was mostly used to preserve memories by way of sharing narratives, photos, and videos. Then it eventually became a tool for celebrities to share snippets of their personal lives with their fans. When companies saw the reach of social media, they took the opportunity to start monetizing. Soon enough, social media gave rise to online influencers who started profiting from their social media content. It did not take long for parents and other family members to begin featuring minors in their social media content. It seems natural to assume that the initial intent was to share the memories with the minors and preserve them in such a way to look back at significant moments. However, it is undeniable that there are parents and online influencers who monetize social media content that features minors. Sometimes, the minors themselves amass their own followers. Illinois legislature aims to ensure that the profits of these children are preserved to guarantee that upon reaching the age of majority, they are able to enjoy their earnings.

Online influencers should watch out for when this law becomes applicable to them. As pointed out in the definitions above, only minors under the age of 16 are covered by this statute. As for vloggers, only those who create video content performed in Illinois are affected by this law. These parameters regulate and specify when the law becomes applicable. That said, online influencers should be cautious about their social media content when they feature their children or any minors. The law is enacted for the benefit of these minors and online influencers should make sure to follow the law when it becomes applicable to them or there may be consequences if legal action is taken against them.

For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Alyana Abellar, Blacha Law Office, LLC, Naperville

Alyana Abellar is an associate attorney at Blacha Law Office, specializing in family law, including divorce, child custody, and support matters. She earned her J.D. magna cum laude from Michigan State University and has prior experience in complex divorce cases, criminal law, and probate. Before joining Blacha Law, Alyana served as an Assistant State Attorney in Kane County, focusing on child support issues. She is committed to providing compassionate and effective representation for her clients.

In a postjudgment parenting action where the parties had joint decision-making of their two grade school aged children and the father had the majority of the parenting time, the father filed a petition to modify parenting time, and the mother filed a counterpetition. In re Marriage of Gualandi, 2024 IL App (5th) 240238. Both petitions sought primary physical custody of the children. The trial court held a lengthy hearing with multiple witnesses, including the guardian ad litem (GAL), who switched their recommendation mid-hearing. The allegations and testimony at trial included questionable environments at both parents’ homes, with the father’s home allegedly being dangerously close to having DCFS called for uncleanliness and the mother’s home being unstable due to alleged fights between her and her then-boyfriend. At the conclusion of the hearing, the trial court entered a document entitled “Agreed Parenting Plan and Judgment,” which was submitted as the mother’s proposed judgment, thereby granting her counterpetition and giving her primary physical possession of the children in Indiana. The appellate court reversed. The trial court abdicated its duties by signing a form judgment that indicated the parties had agreed to modify the parenting plan, when, in fact, there had been a contested hearing. 2024 IL App (5th) 240238 at ¶67. Further, the trial court needed to find that a substantial change of circumstances had occurred and to make a determination that it was in the best interests of the children to modify the parenting plan. The mother also failed to follow the Illinois Marriage and Dissolution of Marriage Act’s requirements before relocating out of state to Indiana, thereby preventing the father from objecting to her out-of-state move. By bypassing this requirement and ordering that the children reside primarily with the mother, the trial court failed to consider the reason for the mother’s relocation from Illinois, as well as the mother’s alleged history of not exercising her parenting time as provided for under the original judgment. Because she was the parent relocating, she had the burden of demonstrating that the relocation was in the best interest of the children. The appellate court vacated and remanded.

Trial Court’s Judgment Modifying Parenting Time Reversed, and Appellate Court Suggested GAL Might Need To Be Replaced

In a highly litigious and contentious postjudgment parenting case (see above), which included multiple cross-allegations of each parent’s home being a questionable living environment for the parties’ two children, a GAL was appointed to investigate the facts of the case. Gualandi, supra. The GAL filed a report and testified to that underlying report, but facts that they were previously unaware of came to light during the hearing, which caused them to change their recommendation mid-hearing. The appellate court noted in its decision that, at the time of the hearing, the parties lived over three hours away from each other and in different states, and it was concerning that the GAL’s report focused solely on the living conditions at the father’s home and not the mother’s. The GAL did not contact DCFS or complete a case history search regarding any claims of domestic violence regarding the mother and her boyfriend. The court further found that the GAL’s report did not adequately address the best interest factors in 750 ILCS 5/602.7, did not address the home environment in Indiana the children would be living in, and did not address the school environment the children would be relocated to with a move to Indiana, among other items. The court stated that the trial court on remand should consider whether a new GAL should be appointed, and, if the current GAL remained, an updated report should be presented that contained a complete investigation of the facts.

Trial Court Affirmed on Extension of Plenary Order of Protection as Facts Established There Was Good Reason To Extend Original Order of Protection

Two married parties (a husband and wife) obtained separate plenary orders of protection against the respondent (the wife’s mother and children’s grandmother). Graham v. Van Rengen, 2024 IL App (2d) 230611. The allegations included that the respondent was mentally unstable and that the petitioners had gone to great lengths to eliminate all contact between the respondent and their family. As the two-year plenary was set to expire, both petitioners sought extensions and alleged that the harassment had not stopped, citing supporting instances of continued harassment. At the hearing, the respondent’s counsel moved for a directed finding, arguing that good cause was required to support an extension but that the petitioners had only shown unchanged circumstances. The trial court denied the motion. At the conclusion of the hearing, the trial court found good cause for the extension and extended the plenary order for another two years. On appeal, the respondent argued that §220(e) of the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq., distinguishes a motion for an extension that is uncontested and for which a petitioner does not seek a modification from any other motion for an extension. Under the respondent’s theory, if the petition to extend a plenary order of protection is contested, the petitioner must show “good cause” for the extension. The appellate court engaged in an extensive statutory construction review of the language of §220(e) and held that while the terms of the second sentence of the statute clearly apply to only those situations where the motion for an extension of an order of protection is uncontested and for which the petitioner does not seek a modification, the court did not agree with the respondent’s argument that the distinction contained varying standards of proof from “no material change in relevant circumstances” to “good cause shown.” 2024 IL App (2d) 230611 at ¶45. Rather, the second sentence of the statute allows a relaxed method of proof where the motion is uncontested and seeks no modification. The court also engaged in an extensive analysis of the third sentence of the statute and its impact on the facts, ultimately concluding that §220(e)’s language was ambiguous and that parties seeking an extension of an order of protection could interpret the statute in different ways depending on the duration and circumstances. Therefore, the court looked to the legislative history of the statute and concluded that the legislature intended to treat contested extensions of plenary orders of protection differently depending on the duration of the extension. If the extension is contested and is to remain in effect until vacated or modified, i.e., of an unspecified duration, the petitioner must establish “good cause” for the extension, in addition to meeting the requirements set forth in §219. 2024 IL App (2d) 230611 at ¶50. Because the plenary orders of protection in the case at bar were of fixed duration not to exceed two years, the petitioners needed to only satisfy the requirements under §219, and nothing within such section prohibited the trial court from extending a plenary order of protection for two years based on the conduct that formed the basis for the initial order. Since the evidence at the hearing showed that the respondent engaged in abuse as defined by the Act and many of the allegations went unrefuted by respondent, the trial court’s order was affirmed.

For more information about family law, see ADOPTION LAW (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton

Donald Schiller is the Chair Emeritus and Of-Counsel at Schiller DuCanto & Fleck LLP. He co-founded the firm in 1981, making it the largest family law practice in the U.S. Known for handling high-profile divorce cases, Schiller has been recognized by numerous publications and has served in significant roles within the Illinois and American Bar Associations. He has also been a lecturer at the University of Chicago Law School and is a well-published author and speaker in the field of family law.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial expertise, and dedication to creating better outcomes for families.

Palmquist v. Livingston, 2024 IL App (2d) 230219, arose from a residential landlord-tenant dispute. Defendant Kathleen Livingston breached her lease with plaintiff Jon V. Palmquist when she moved out after purchasing her own home. 2024 IL App (2d) at ¶2. Palmquist sued Livingston for unpaid rent, attorneys’ fees, and costs and sued Defendants Cindy Andrzejewski and Liberty MC, LLC (Liberty), Livingston’s realtor and related brokerage, in part, claiming that they interfered with Palmquist’s business relationship because they helped Livingston purchase her home. Id.

Livingston entered into a residential lease with Palmquist, which, after renewals, ran up through and including April 30, 2019, with monthly rent at $1,935. 2024 IL App (2d) at ¶7. In May or June 2018, Livingston retained Andrzejewski to help her look for a home to purchase. 2024 IL App (2d) at ¶8. After going under contract, Livingston informed Palmquist that she would be moving out of the rented premises and returned her keys on August 30, 2018. Id. Livingston understood that she had breached her lease. Id.

Palmquist did not rent the property for the remaining eight months of the lease term. 2024 IL App (2d) at ¶9. Although he engaged a realtor who showed the property 37 times, Palmquist was not able to find a tenant who satisfied his financial criteria; he also found it difficult to find a tenant in the late fall and early winter. Id. In October 2018, the Wisners, prospective tenants, initially showed proof that they could afford the monthly rent but had credit scores in the 600s, had recently given a deed in lieu of foreclosure to their lender, and later admitted that the average income reported in the lease application was no longer accurate. 2024 IL App (2d) at ¶10. Nonetheless, Palmquist was willing to rent to them provided their son cosigned the lease, which the Wisners declined. Id. In April 2019, Palmquist considered a different application, which the prospective tenants withdrew because the number of available parking spaces was insufficient for their needs. 2024 IL App (2d) at ¶11. In July 2019, Palmquist rented the property to tenants with credit scores below 700 and, like the Wisners, required them to have a cosignor. 2024 IL App (2d) at ¶10.

Palmquist brought suit against Livingston for breach of lease and against Andrzejewski and Liberty, in part, for interfering with his business relationship with Livingston. 2024 IL App (2d) at ¶16. All parties moved for summary judgment. 2024 IL App (2d) at ¶21. Palmquist argued that he took all reasonable efforts to mitigate damages but that the Wisners “did not meet the income verification, credit scores and other issues, regarding the creditability of their application to meet the criteria to rent the Premises” and that he was entitled to $21,450.39 in damages plus his costs and attorneys’ fees. Id.

Livingston, while acknowledging that she had breached her lease, argued that Palmquist had failed to mitigate his damages when he unreasonably declined to rent to the Wisners, as the wife’s income alone was sufficient to cover the $1,935 per month rent and that Palmquist’s recovery of his costs, expenses, and attorneys’ fees was capped at $2,500, per the terms of the lease. 2024 IL App (2d) at ¶¶22 – 24. In their motion, Andrzejewski and Liberty argued that Palmquist failed to prove that they were responsible for inducing Livingston into breaching the lease.2024 IL App (2d) at ¶25.

The trial court agreed with Livingston, finding that Palmquist had failed to mitigate his damages by not renting to the Wisners and cutting off his damages as of November 15, 2018, the date the Wisners would have commenced their lease.2024 IL App (2d) at ¶26. Within this framework, the trial court determined the measure of damages by Livingston to Palmquist from the date of the breach through November 15, 2018, less a $1,900 credit to Livingston for her security deposit, totaled $6,050.18, which included $2,500 for attorneys’ fees and costs.2024 IL App (2d) at ¶32. The trial court also agreed with Andrzejewski and Liberty, finding that Palmquist had not demonstrated any evidence that Andrzejewski and Liberty intentionally interfered in the contractual relationship between Palmquist and Livingston or that anything they had done was the cause of the breach of the lease. 2024 IL App (2d) at ¶27.

Palmquist filed a timely notice of appeal.2024 IL App (2d) at ¶33.

Appellate Court

The appellate court, in its de novo review of the interpretation of the lease, quickly disposed of Palmquist’s argument that his attorneys’ fees and costs were not capped at $2,500 based on the clear language of the lease. 2024 IL App (2d) at ¶¶40 – 43. Palmquist urged the appellate court to ignore the lease and lift the cap, arguing that Livingston had breached the lease and therefore was not in a position to insist on enforcement of the lease’s terms, citing MHM Services, Inc. v. Assurance Co. of America, 2012 IL App (1st) 112171, 975 N.E.2d 1139, 363 Ill.Dec. 830. Id. The court found that this case was distinguishable and not controlling, as it involved a plaintiff seeking damages while also being in breach whereas Livingston was a defendant who sought no damages from Palmquist but, rather, sought only to limit his recovery based on the lease’s clear language. Id.

The appellate court then addressed whether Palmquist had failed to mitigate his damages, noting that 735 ILCS 5/9-213.1 requires a landlord to take “reasonable measures to mitigate the damages recoverable against a defaulting lessee” and not simply let a premises stand vacant and attempt to collect lost rent as damages. 2024 IL App (2d) at ¶45, citing Danada Square, LLC v. KFC National Management Co., 392 Ill.App.3d 598, 913 N.E.2d 33, 42, 332 Ill.Dec. 438 (2d Dist. 2009). Failing to take reasonable steps to mitigate damages results in a landlord’s damages recovery being reduced by the losses that could have reasonably been avoided. Id., citing St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill.App.3d 285, 695 N.E.2d 503, 509, 230 Ill.Dec. 1013 (1998).

The appellate court found that Palmquist had failed to reasonably mitigate his damages when he insisted on a cosignor for the Wisners’ lease and they were ready, willing, and able to enter into a lease starting November 15, 2018. Id. While Palmquist was entitled to exercise his business judgment in insisting that the Wisners’ son cosign the lease, he could not compel Livingston to bear the costs of his decision when those costs could have been avoided altogether by accepting the Wisners as tenants without requiring a cosigner. Id.

Notwithstanding the above, it’s worth noting that Palmquist may have been able to establish the reasonableness of his actions because the Wisners’ joint monthly debt made their actual ability to cover $1,935 in rent highly doubtful, if not impossible, and that this was a material consideration in Palmquist’s decision to require a cosignor. Id. The problem for Palmquist on appeal was the fact that he did not raise this as part of his decision-making in the lower court but, instead, argued that it was error by the trial court to not require Livingston to prove that the Wisners were actually capable of making the payments, thereby flipping the burden of proof entirely on Livingston. Id. As it was his burden to prove compliance with his statutory duty to mitigate and as the appellate court was bound by the record before it, Palmquist’s consideration of the Wisners’ joint monthly debt in his decision-making was not taken into account by the appellate court and, therefore, the trial court’s ruling against him was allowed to stand. Id.

Finally, turning its attention to Palmquist’s claims against Andrzejewski and Liberty, the appellate court found that he failed to establish that they induced or caused Livingston to breach her lease. 2024 IL App (2d) at ¶64. In rendering its decision, the appellate court noted that to support a cause of action for tortious interference with a contractual relationship, Palmquist had to show, in part, that that Andrzejewski and Liberty intentionally and unjustifiably induced Livingston to breach her lease and that the subsequent breach was caused by Andrzejewski and Liberty’s wrongful conduct. Id., citing HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill.2d 145, 545 N.E.2d 672, 676, 137 Ill.Dec. 19 (1989). Such inducement requires “active persuasion, encouragement, or inciting that goes beyond merely providing information in a passive way.” Id.

Here, the appellate court remarked that Palmquist provided no evidence that (1) Andrzejewski and Liberty induced Livingston to breach her lease or (2) Livingston made her decision to buy a home and breach the lease based on Andrzejewski and Liberty’s inducement or (3) their actions somehow caused Livingston to breach her lease. 2024IL App (2d) at ¶66. Instead, the record showed that (1) Livingston was determined to buy a home, (2) she located Andrzejewski through an Internet search and (3) if Andrzejewski had not helped her find a home, she would have found another realtor. Id. Livingston also testified that there was nothing stopping her from buying her home while still paying the rent due on the lease. Id. Ultimately, without any facts to establish inducement and causation, the appellate court held that the trial court properly entered judgment in Andrzejewski and Liberty’s favor.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

The appellate court found the Illinois Workers’ Compensation Commission’s findings were not against the manifest weight of the evidence in Faruzzi v. Illinois Workers’ Compensation Commission, 2024 IL App (1st) 231896WC-U. The claimant, a firefighter for the Village of Alsip for 28 years, claimed as of January 16, 2015, that his heart disease was caused by the hazardous tasks he performed during the years he worked as a firefighter/paramedic. The tasks included emergency conditions involving strenuous exertion during fires, exposure to smoke and heat, cramped conditions, and being subjected to emotional and psychological stress.

On January 16, 2015, the claimant underwent a fitness-for-duty examination performed by Dr. Terence Moisan. Before this, he had undergone 13 examinations and was found fit for duty. 2024 IL App (1st) 231896WC-U at ¶5. Dr. Moisan noted an abnormal electrocardiogram, referred the claimant to a cardiologist, and placed him on off-work status.

The claimant’s past medical history was noteworthy for instances of shortness of breath with exertion in 2014. He had a history of smoking cigarettes for ten years but stopped in 1994. Id. Medical records from Dr. Amit Joshi, his primary care physician, confirmed elevated cholesterol levels, for which he took Lipitor, from 2000 through 2014. He underwent echocardiography in 2004 due to chest pains. He reported a family history of heart problems. Id.

The claimant saw Dr. Yogesh Tejpal, a cardiologist, on January 22, 2015. The results of cardiac catheterization were abnormal, and a stent was placed in an artery due to a 95-percent blockage. 2024 IL App (1st) 231896WC-U at ¶8. Dr. Tejpal felt the claimant’s recovery allowed him to return to full duty on February 26, 2015. Dr. Moisan, after consulting with Dr. Tejpal, determined the claimant should be placed in a three-month period of cardiac rehab. 2024 IL App (1st) 231896WC-U at ¶10. Following the rehab program, Dr. Tejpal allowed the claimant to return to work at full duty. On June 13, 2015, Dr. Moisan provided a written note stating the increased risk of returning to work and requested the claimant, Dr. Tejpal, and the village all agree to his return to work. The claimant returned to work on June 15, 2015.

On July 15, 2015, the claimant experienced shortness of breath during a training session. Dr. Moisan again placed him on off-duty status. In August 2015, Dr. Tejpal diagnosed the claimant with dyspnea and coronary disease due to complaints of shortness of breath and ordered a stress echocardiogram. The claimant saw Dr. Joshi in September 2015. The notes reflect complaints of shortness of breath with heavy exertion. The chest X-ray was normal.

The village had Dr. Marlon Everett, a cardiologist, examine the claimant on September 29, 2015. Dr. Everett found the claimant had coronary artery disease, possibly caused by high cholesterol, smoking, and family history. He felt the coronary artery disease was unlikely to be related to his occupation. Based on his examination, Dr. Everett found the claimant had not reached maximum medical improvement (MMI).

Dr. Kathia Ortiz-Cantillo, a pulmonologist, evaluated the claimant on October 15, 2015, as a referral from Dr. Joshi and ordered a walk test and pulmonary function study. Following the studies, the claimant returned to her on November 18, 2015, complaining of shortness of breath. After reviewing the studies, Dr. Ortiz-Cantillo diagnosed coronary artery disease and shortness of breath. Dr. Ortiz-Cantillo wrote to Dr. Joshi stating the pulmonary studies were normal and that she found no pulmonary limitation for his symptoms.

The village had Dr. Claude Lawrence Zanetti, a pulmonologist, examine the claimant and review all records on September 16, 2016. In addition, Dr. Zanetti ordered pulmonary tests. Dr. Zanetti’s report diagnosed coronary artery disease, a history of smoking, hypertension, hyperlipidemia, and dyspnea with exertion and stated that the claimant had not reached MMI. Dr. Zanetti testified the pulmonary function tests were normal and that the claimant did not suffer from pulmonary dysfunction or any pulmonary limitations to his activities.

Dr. Everett examined the claimant again on September 27, 2016. In his report, he stated that a causal relationship between coronary artery disease and the claimant’s employment was speculative. He felt the condition was more likely related to high cholesterol, smoking, and genetic disposition. In his testimony, he found the shortness of breath due to deconditioning and that this was not related to the claimant’s cardiac condition. He testified that the coronary artery disease was unrelated to firefighter duties but that the cause was unknown. He disagreed with a National Institute for Occupational Safety and Health report that stated exposures to fire smoke can cause or contribute to the development of coronary artery disease and that increased heart rates and heavy physical exertion to which firefighters are exposed can also cause or contribute to the disease. On cross-examination, however, he agreed firefighting duties were stressful and such stress can lead to coronary artery disease.

Dr. Timothy McDonough, board certified in internal medicine, cardiovascular diseases, and interventional cardiology, performed a pension disability exam, authored a report, and testified. The report noted that the history of high cholesterol, smoking, and family history were typical risk factors for coronary artery disease. He testified he did not think science showed that firefighters are at increased risk of developing coronary artery disease as a result of fire activities. He also admitted he could not say to a reasonable degree of medical certainty that the claimant’s risk factors, including age and gender as well as the firefighting duties, caused the coronary artery disease and agreed he could not rule out that the coronary artery disease developed as a result of firefighting activities.

Dr. Danial Samo, board certified in emergency medicine and experienced in the practice of occupational medicine, performed a pension disability exam, reviewed records, issued a report, and testified. He testified that he did not believe the coronary artery disease was related to firefighting. He did not know what caused the claimant’s shortness of breath. He testified there were no signs of asthma, chronic emphysema, or chronic obstructive pulmonary disease and that he did not know the pulmonary side to it. He testified that firefighting does not cause coronary artery disease but that it can cause a cardiac event, which the claimant did not have. A cardiac event would be a heart attack, arrhythmia, or death.

Dr. Moisan testified he is board certified in internal medicine, occupational medicine, and respiratory diseases. His position with the village is unpaid, and he performs fitness-for-duty examinations. He summarized his exam of the claimant and Dr. Tejpal’s treatment. He did not know whether firefighting caused or contributed to the coronary artery disease but said he could not exclude it. He also said the claimant could not return to work because of the shortness of breath, which he did not think was related to the coronary artery disease.

The arbitrator issued a decision under §19(b) of the Workers’ Compensation Act (820 ILCS 305/19) finding the claimant’s coronary artery disease arose out of and in the course of the employment. The Commission reversed that determination, relying on the opinions of Dr. Everett, Dr. Samo, and Dr. McDonough. The Commission found that Dr. Moisan’s causation opinion supported the opinions of Dr. Samo and Dr. McDonough. The Commission found that none of the three physicians could either rule in or rule out that the claimant’s duties were a causative factor.

On appeal from the circuit court, the claimant argued the Commission erred and failed to properly apply the rebuttable presumption contained in 820 ILCS 305/6(f). Section 6(f) of the Act allows for a rebuttable presumption of causation between heart disease and the risks and exposures of firefighting.

The court’s opinion sets forth the effect of the rebuttable presumption that creates a prima facie case as to causation. It does not shift the burden of proof but requires the party against whom the presumption operates to introduce evidence to meet the presumption. Once evidence contrary to the presumption is introduced, it no longer operates, and causation is determined based on the evidence. Johnson v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC, 80 N.E.3d 573, 414 Ill.Dec. 430.

The Faruzzi opinion points out that the village “was required to produce evidence that the claimant’s coronary artery disease was not causally connected to his duties as a firefighter, not merely that his personal risk factors may have also been a cause.” 2024 IL App (1st) 231896WC-U at ¶35. The existence of personal risk factors does not, standing alone, negate the presumption in §6(f).

The court noted the Commission’s finding that Dr. Moisan, Dr. Everett, Dr, Samo, and Dr. McDonough could neither rule in nor rule out the claimant’s duties as a causative factor. The court found the Commission’s observation was not correct as to Dr. Samo, who testified that the claimant’s coronary artery disease was not related to his work as a firefighter. Dr. Samo held to his opinion.

The court then turned to the opinion of Dr. Zanetti, who testified that there was no objective evidence that the claimant suffered from pulmonary dysfunction and that the claimant had no pulmonary limits to his activities. He offered no opinion as to causation of the coronary artery disease

The court found the village rebutted the presumption with Dr. Samo’s opinion and that the causation was to be decided based on the evidence as if no presumption existed. The court determined that the opinions of Dr. Moisan and Dr. Everett, which the claimant relied on in support of causation, were at best equivocal and at worst internally contradictory. Dr. Samo’s opinion was unequivocal. It was for the Commission to resolve conflicts in the medical testimony. The Commission’s determination on the issue of causation was not against the manifest weight of the evidence.

The court also rejected the claimant’s argument that Dr. Moisan made a judicial admission when he stated that firefighting contributed in part to the coronary artery disease because of his position as medical director for the village’s fire department. To have a judicial admission, the testimony must be unequivocal. Dr. Moisan’s opinion was not.

The court also rejected the claimant’s argument that the Commission abused its discretion by allowing testimony of four “professional witnesses.” Dr. Everett, Dr. Zanetti, Dr. Samo, and Dr. McDonough practiced in different specialties, and their testimonies were relevant because they examined the claimant. 2024 IL App (1st) 231896WC-U at ¶42.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Joseph P. Basile

Joseph P. Basile, Chicago, concentrates his practice in workers’ compensation and civil litigation. He is a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program, has been a faculty member at annual IICLE® workers’ compensation seminars, and is the author of the monthly workers’ compensation column for IICLE®’s FLASHPOINTS™. He is a member of the Chicago and Illinois State Bar Associations. Mr. Basile received his B.S. from St. Louis University and his J.D. with distinction from the University of Illinois Chicago School of Law, where he was a member of The John Marshall Law Review.

For this month’s Spotlight, we recognize our Criminal Law FLASHPOINTS author Matthew R. Leisten of the Ogle County State’s Attorney’s Office in Oregon. In addition to his regular FLASHPOINTS contributions, He has also contributed to CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2021).

Leisten developed an interest in writing after reading one of his law school professors’ materials. “I enjoyed reading short legal articles from my criminal procedure professor in law school and afterwards,” he says. “I wanted to contribute to the legal profession in the same way that my professor did.” Leisten is drawn to “new opinions that reflect changes in Illinois criminal statutory law or caselaw, technology, and evidence,” and his own writings reflect that interest as he focuses on “opinions that can influence how a criminal case is prosecuted or defended in the present day. He finds IICLE® publications helpful, particularly with petitions to seal or expunge and motions in limine.