November 2024 IICLE® FLASHPOINTS™

In People v. Harvey, 2024 IL 129357, the Illinois Supreme Court held that the state was not required to present corroborating evidence of the defendant’s statement that he did not have a concealed carry license (CCL) in his trial for possessing a firearm on a public street without being issued a CCL in order to prove the corpus delicti of the charge. The court further held that the state proved beyond a reasonable doubt the statutory exception of not being issued a CCL through his admission.

In Harvey, the defendant was a front seat passenger in a van that was pulled over for a traffic violation. The police officers testified that they observed the defendant reach down toward the floorboard area during the stop. The driver and the defendant exited the van at the officers’ request after the officers smelled alcohol and observed cups inside the van. The defendant’s pants were also undone. The police searched the van for alcohol and located a Springfield handgun in the area toward which the defendant had been reaching. 2024 IL 129357 at ¶¶3 – 4.

The defendant told the officers that he did not have a Firearm Owner’s Identification Card or a CCL. 2024 IL 129357 at ¶¶5 – 6. The trial court found the defendant guilty of possessing a firearm on a public street without a CCL, and the appellate court affirmed, but with one justice dissenting. 2024 IL 129357 at ¶¶8 – 9.

In his appeal to the Supreme Court, the defendant conceded that he was in constructive possession of the firearm but argued that the state had to show that he had not been issued a CCL at the time of the stop. 2024 IL 129357 at ¶13.

The Supreme Court noted that the state must prove statutory exceptions beyond a reasonable doubt (in contrast to exemptions, which are not elements and thus do not have to be proven by the State; see People v. Tolbert, 2016 IL 117846, 49 N.E.3d 389, 401 Ill.Dec. 1, holding that invitee language in the aggravated unlawful use of weapons statue was an exemption instead of an exception). 2024 IL 129357 at ¶14. Therefore, the state was required to prove that the defendant was not issued a CCL. 2024 IL 129357 at ¶16.

The Supreme Court next rejected the state’s position that it could prove the concealed carry exception by showing that the defendant did not present his CCL to the officers because the state had to prove the statutory exception in the statute; i.e., that the defendant was not issued a CCL. 2024 IL 129357 at ¶¶15 – 16.

The defendant further argued that the police never asked him if he had been issued a CCL and that no testimonial or evidentiary documents about his lack of a CCL were presented at trial. 2024 IL 129357 at ¶18. However, the Supreme Court stated that the trial court could have reasonably construed the defendant’s answers as amounting to him not being issued a CCL and affirmed his conviction. 2024 IL 129357 at ¶¶20, 29.

The court noted that it was reasonable to assume that, when talking to the police, an innocent person who is aware that his conduct is being challenged would offer an explanation for that conduct if one is available. The defendant had the opportunity to offer an explanation but did not. 2024 IL 129357 at ¶20.

The Supreme Court next rejected the defendant’s argument that the state did not prove the corpus delicti (i.e., the commission of the offense) of his charge. 2024 IL 129357 at ¶21. The corpus delicti generally cannot be proven only by a confession, and the state must provide corroborating evidence that the crime occurred. 2024 IL 129357 at ¶22. The court noted that the defendant confessed to only one element of the offense — i.e., that he did not possess a CCL — as opposed to confessing to all of the elements of the offense. 2024 IL 129357 at ¶24. The court further emphasized that its precedent had previously rejected the defendant’s contention that all out-of-court admissions must be independently proven. Id.

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 experience 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 October 17, 2024, the Seventh Circuit Court of Appeals affirmed summary judgment in favor of Western Illinois University (WIU) on an alleged denial of tenure claim under the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327. Schoper v. Board of Trustees of Western Illinois University, 119 F.4th 527 (7th Cir. 2024).

Background

In January 2015, Sarah Schoper (Schoper), a tenure-track assistant professor at WIU, suffered a traumatic brain injury resulting in high-functioning mild aphasia — a condition that causes difficulty in retrieving words and other physical disabilities. Despite her condition, she returned to teaching in May 2015 because her neurologist told her that complex intellectual activities would hasten her recovery. WIU granted her requested accommodations, which included allowing her to teach the same course she had previously taught and refrain from serving on committees. 119 F.4th at 529.

Faculty could apply for tenure in their sixth year of employment. The tenure process was governed by a collective-bargaining agreement between WIU and the faculty association. There were multiple steps in the tenure evaluation process, including peer recommendation and Department Chair and Department Dean recommendation. If at either step tenure was denied, two additional committees were convened, the College Personnel Committee and the University Personnel Committee. After these steps, the University President, the Academic Vice President, and the Provost decided whether to recommend tenure to the Board of Trustees. Faculty not recommended for tenure received a terminal contract for the following year. The tenure process also included a “stop-the-clock” provision that allowed an individual to request an extra year to apply for tenure due to significant illness. Id.

Reviews under the tenure process considered teaching and primary duties, professional activities, and service. Student evaluations were considered as part of the teaching and primary duties category. Averages above 4.0 were preferred by the Department for tenure candidates, though other criteria should also be considered. Prior to her injury, Schoper’s averages stayed above 4.0. 119 F.4that 530.

In Fall of 2015, Schoper began her sixth year of teaching at WIU. Although she was recommended for retention after her return in May 2015, a member of her Department asked if she had considered taking time off work. Schoper said she had not because taking time off would have been inconsistent with her neurologist’s instructions. Id.

In October 2015, Schoper’s Department Chair approached her about some student complaints with her teaching skills. Id. This was reflected in the student evaluation scores she received in January 2016, when her score dropped from a 4.6 to a 3.8. 119 F.4th at 531. Students also left negative written comments in her evaluation. She was advised to make some adjustments based on the feedback. Id.

Schoper did not request to stop her tenure clock. Rather in January 2017, she submitted her application for tenure to the Department Committee. They recommended that she not receive tenure based on her teaching scores and representative student comments. Schoper requested reconsideration and submitted a note from her neurologist recommending that she be reconsidered for tenure and allowed to continue working. The Department Committee affirmed its prior decision. Id.

The Department Chair also recommended that she not be awarded tenure based on her poor teaching evaluations. Schoper requested reconsideration, but the Chair affirmed his decision. She then asked for more time to achieve tenure. The Chair did not have that authority under the collective-bargaining agreement and suggested that she explore long-term disability benefits. Id.

Schoper’s application for tenure continued to be processed. While the College Personnel Committee agreed with the Department and Chair, the University Personnel Committee recommended tenure on the basis that the most recent student evaluations were given undue weight.However, neither the Dean nor the President recommended tenure, and Schoper was given a terminal contract. 119 F.4th at 532.

Schoper filed a lawsuit alleging disability discrimination and failure to accommodate under the ADA. The U.S. District Court for the Central District of Illinois granted summary judgment in favor of WIU. The court found that Schoper could not prove that her disability was the but-for cause of her negative tenure recommendation. Additionally, the court ruled that Schoper failed to show how her requested accommodation — additional time to meet tenure criteria — would enable her to perform the essential functions of her job. Id.

The Seventh’s Circuit’s Decision

The Seventh Circuit reviewed the case de novo. The court affirmed the district court’s decision, holding that Schoper was not a qualified individual under the ADA because her teaching evaluations did not meet WIU’s tenure requirements. The court also found that her request for more time to achieve tenure was not a reasonable accommodation, as it essentially sought a second chance rather than a modification to enable her to perform her job. The court noted that Schoper made the conscious decision to return to teaching quickly to hasten her recovery, taking the risk that her teaching scores could fall until she fully recovered. 119 F.4th at 534.

In addition, the court concluded that no reasonable jury could find that Schoper's disability was the but-for cause of WIU 's decision to deny her tenure, given the multiple layers of review and the lack of evidence showing discriminatory intent by the reviewers and lack of a causal connection between the comments about taking time off and looking into long-term disability benefits and the tenure decision. 119 F.4th at 535 – 536.

Key Takeaways

The employer’s actions were key in this case. The employer honored the employee’s return to work request, granted all accommodations noted by the doctor, followed the tenure process outlined in the collective-bargaining agreement, and provided legitimate rationale by those who recommended that tenure not be awarded under the circumstances. Moreover, the employee did not timely afford herself of the contractual provision that would have allowed her to defer tenure by one year.

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.

Catherine R. Locallo, Robbins Schwartz, Chicago

Catherine R. Locallo, a partner at Robbins Schwartz, specializes in labor and employment law with a focus on education and board governance. She provides guidance on employment law, collective bargaining, and compliance with various acts. Catherine started as a paralegal, joined Robbins Schwartz in 2004, and became a partner in 2017. She holds a J.D. from The John Marshall Law School and a B.S. from Southern Illinois University. Notably, she is also involved in multiple professional organizations and community activities, including the Glenview Stars Hockey Association.

Bryan Dick-Ipsen v. Humphrey, Farrington & McClain, P.C., et al., 2024 IL App (1st) 241043.

Brief Summary

The First District Appellate Court in Illinois affirmed the trial court’s denial of the defendants’ motion to compel arbitration on the basis that the arbitration provision in the “Attorney Client Agreement” entered into with the plaintiff in the underlying personal injury action was procedurally unconscionable. The court held that the plaintiff could not be held to an agreement to arbitrate a legal malpractice claim “without being informed about the scope and effect of the agreement.” 2024 IL App (1st) 241043 at ¶12.

Complete Summary

This case arose from an underlying action in which the plaintiffs, Bryan Dick-Ipsen and his wife, Karen Dick-Ipsen (the plaintiffs), retained the defendant-attorneys, Humphrey, Farrington & McClain, P.C. (the defendants), to represent them in a toxic tort action against chemical manufacturers and suppliers after Bryan developed Parkinson’s disease from years of working as a dry cleaner.

The plaintiffs signed and returned the Attorney-Client Agreement (the Agreement) on May 7th and 8th, 2018, respectively, and the representation commenced soon thereafter. 2024 IL App (1st) 241043 at ¶7. The Agreement described the nature and scope of the work that the defendants would perform and the fees for such work. The Agreement also contained language that defined the parties’ rights and obligations, which included an arbitration clause. The Agreement provided that any claims between the plaintiffs and the defendants must be resolved via mediation or arbitration.

The plaintiffs alleged that the defendants failed to identify all relevant chemical manufacturers in a timely manner and instead only sought recovery from the chemical suppliers. When the defendants later tried to amend the complaint to add additional manufacturers, the claims were ultimately dismissed because they were time-barred. After several motions, the plaintiffs were left with claims against just three defendants in the underlying action. 2024 IL App (1st) 241043 at ¶8. The plaintiffs settled the claims with two of the defendants in the underlying action, and only one of the three claims remained pending by the time this legal malpractice action was commenced. Id.

The plaintiffs alleged numerous failures in the underlying case, including the defendants’ failure to timely appeal decisions on dispositive motions. The defendants also allegedly failed to add Karen’s claim for loss of consortium. The defendants filed a motion to compel mediation or binding arbitration, arguing that the arbitration provision in the Agreement required the parties to mediate the dispute “and, if no agreement could be reached, submit to arbitration.” 2024 IL App (1st) 241043 at ¶10. The plaintiffs argued that the provision should not be enforced because it was procedurally and substantively unconscionable.

The plaintiffs argued that no one at the Humphrey firm ever informed them that any disputes were required to be mediated or arbitrated, or that they would be giving up significant rights by signing the Agreement, such as the right to a jury trial, the right to appeal, and the right to a discovery process typically available in judicial proceedings. The plaintiffs further stated in an affidavit that they were not informed by the defendants that they would be required to travel over 500 miles to Missouri to arbitrate, or that arbitration in Missouri would be decided by a single arbitrator and that the plaintiffs would have to pay half of the costs. 2024 IL App (1st) 241043 at ¶11. According to the plaintiff, no one from the Humphrey firm ever discussed or explained any portion of the arbitration provisions. Id.

The trial court found the arbitration agreement to be procedurally, but not substantively, unconscionable, and thus denied the defendants’ motion to compel arbitration. The trial court concluded that the plaintiffs could not be required to arbitrate without being fully informed about the scope and effect of the agreement. Thus, the trial court found the arbitration provision to be unenforceable.

The appellate court noted that the defendants did not file any counter-affidavits or otherwise contest the evidence submitted by the plaintiff, further supporting the plaintiffs’ positions. See Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill.App.3d 341, 938 N.E.2d 640, 345 Ill.Dec. 201 (1st Dist. 2010). The general rule is that when there is a valid arbitration agreement and the parties’ dispute falls within the scope of that agreement, arbitration is mandatory and the trial court must compel it. See Hollingshead v. A.G. Edwards & Sons, Inc., 396 Ill.App.3d 1095, 920 N.E.2d 1254, 336 Ill.Dec. 664 (5th Dist. 2009). The court stated, however, that an arbitration agreement may be invalidated by state law contract defenses of general applicability, such as fraud, duress, or unconscionability. See Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶18, 976 N.E.2d 344, 364 Ill.Dec. 66.

The court relied, in part, on Rule 1.4(b) of the Illinois Supreme Court Rules of Professional Conduct, which states that: “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” S.Ct. Rule 1.4(b). The court further noted that according to the comment to the Rule, there is no general prohibition on a lawyer entering into an agreement to arbitrate legal malpractice claims, but that the client must be fully informed of the scope and effect of the agreement. See S.Ct. Rule 1.8.

The court also rejected the defendants’ argument that the Federal Arbitration Act (FAA), ch. 213, 43 Stat. 883 (1925), codified at 9 U.S.C. §1 et seq., (the Act) preempts a state’s rules of professional conduct if there is any conflict between the two, because under the Act, an arbitration agreement may be set aside on such grounds as exist in law or equity for the revocation of any contract such as fraud, duress, or unconscionability. See 9 U.S.C. §2; See also AT&T Mobility LLC. v. Conception, 563 U.S. 333, 179 L.Ed.2d 742, 131 S.Ct. 1740 (2011).

The court upheld the trial court’s finding of procedural unconscionability. The defendants failed to present any evidence whatsoever to show that plaintiffs knew or should have known the implications of the arbitration clause.

Significance of Case

This decision is important because it shows that to be enforceable, a client must be fully informed about the scope and effect of the agreement, including the forfeiture of the right to a jury trial, the right to appeal, and the right to a discovery process available in judicial proceedings. It would also be prudent to inform the client that he or she has the right to consult with independent counsel before signing the agreement.

For more information about ethics and professional responsibility, see ELEMENTS OF ILLINOIS LAW: PRACTICING ETHICALLY (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.

Terrence P. McAvoy, Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago

Terrence McAvoy is a partner at Hinshaw & Culbertson LLP with over 35 years of experience in civil litigation. He specializes in defending attorneys and law firms in professional liability cases involving malpractice, breach of contract, fiduciary duty, fraud, and more. McAvoy has extensive trial and appellate court experience and previously served as national claims counsel for a professional liability insurance carrier. He has been recognized as a Leading Lawyer and holds the AV® Peer Review Rating for legal ability and ethics.

Katherine G. Schnake, Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago

Katherine G. Schnake is a partner at Hinshaw & Culbertson LLP, specializing in professional liability defense for lawyers and law firms. She provides counsel on ethics and legal responsibility, and her litigation experience includes civil liability cases. Schnake is also a former adjunct professor at the University of Illinois Chicago School of Law. In addition to her legal practice, she is actively involved in civic activities and has a passion for running marathons and equestrian sports.

Ian A. King II, Lawyers for the Profession, Hinshaw & Culbertson LLP, San Francisco, CA

Ian A. King II is an associate at Hinshaw & Culbertson LLP, based in San Francisco. He provides professional liability, malpractice, and risk management counsel to lawyers, medical professionals, directors, and officers. With prior experience representing plaintiffs in New York, Ian brings valuable insights to his clients' cases, handling matters from pre-suit evaluations to settlement or trial. He is a member of the Alameda County Bar Association, California State Bar, Charles Houston Bar Association, and New York State Bar. Ian earned his J.D. from St. John's University School of Law, where he served as Associate Managing Editor of the New York Real Property Law Journal. He also holds a B.S. in Psychology from Pennsylvania State University.

Dear FLASHPOINTS™ Readers,

I would be remiss to publish this month’s article without recognizing the recent passing of my coauthor and former partner, Donald C. Schiller. If you practiced domestic relations law in Illinois, you knew of Don Schiller. He was a legal visionary, brilliant strategist, and tireless advocate. His many achievements and accomplishments are too numerous to list here, as they were vast. I was honored to coauthor FLASHPOINTS™ with him for almost 14 years. His vision was that they would be a useful tool for attorneys who practiced in the trenches each day. And this month I publish them in his honor and remembrance. — Michelle Lawless.

DeFacto Marriage Upheld and Maintenance Terminated Based on Cohabitation

In a postjudgment action in Hunter v. Hunter, 2024 IL App (5th) 230454-U, the trial court terminated a wife’s (the petitioner’s) maintenance based on her continuing cohabitation on a conjugal basis and she appealed the ruling, along with the trial court’s decision that she must reimburse approximately $50,000 in maintenance paid by the husband (the respondent) to the wife during the cohabitation period. 2024 IL App (5th) 230454-U at ¶15. The appellate court affirmed. The wife and her boyfriend were engaged by the time of the hearing, and she had received a $90,000 vehicle from him that was registered in both of their names. 2024 IL App (5th) 230454-U at ¶22. She was also on a health insurance plan through his company as well as his family cell phone plan. Further, she and her fiancé had purchased property together, were in the process of building a home on the property, and held a joint bank account that was primarily used for the construction of their new home. Id. The financial entanglement of the wife and her boyfriend indicated that they were in a de factomarriage since June 2018 and all maintenance payments (with the exception of a few corollary credits) had to be reimbursed to the husband. Id.

Upward Deviation from Guideline Maintenance Amount Upheld

In a postjudgment action in Bartlett v. Quinn, 2024 IL App (1st) 230624-U, a husband (the counter-petitioner) filed a petition to modify or terminate his permanent maintenance obligation in light of anticipated and imminent retirement. The trial court denied his petition, finding that he failed to demonstrate a substantial change in circumstances, and the appellate court reversed. On remand, the trial court upheld the permanent maintenance obligation but modified the award to an above-guideline amount of $807.78. 2024 IL App (1st) 230624-U at ¶3. The trial court further ordered that the husband would receive a credit for the amount he overpaid retroactive to the date of his retirement. Id. The husband appealed, and the case returned to the appellate court. The court acknowledged that it was undisputed that a maintenance award based on the parties’ respective incomes would have yielded a payment of $0 but that the trial court can deviate from guidelines after it considers all §§504(a) and 510(a-5) factors, which it did in this case. The trial court’s award of $807.78 essentially granted the wife (the counter-respondent) her requested maintenance amount. The trial court properly addressed all factors in its decision including but not limited to the wife’s significant medical needs, both parties’ retired status, both parties’ respective assets, and the husband’s good-faith retirement at age 70. 2024 IL App (1st) 230624-U at ¶37. The trial court’s decision to deviate upward to award the wife $807.78 per month, which was her monthly shortfall, was not an abuse of discretion when the husband had significant assets out of which he could pay such support.

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.

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 experience, and dedication to creating better outcomes for families.

Illinois follows the American rule of attorneys’ fees, meaning that a prevailing party is prohibited from recovering its attorneys’ fees from the losing party absent express authorization by statute or by contract between the parties. Although the Uniform Fraudulent Transfer Act (UFTA), 740 ILCS 160/1, et seq., does not expressly allow for an award of attorneys’ fees, the First District in Bremel v. Quedas, Inc., 2024 IL App (1st) 231209, recently held that punitive damages were recoverable under the UFTA in relation to a failed real estate transaction and that such an award might just happen to equal the amount of attorneys’ fees incurred by the prevailing party. In other words, a successful litigant may be able to recover its attorneys’ fees under the guise of punitive damages, notwithstanding the American rule and the provisions of the UFTA.

Facts

Denis Bremel sued Quedas, Inc.; Bronislaw Chmiel, Quedas’ sole shareholder; and Thaddeus Gauza, an attorney and authorized representative of Quedas, for breach of contract and violation of the UFTA in connection with a failed real estate transaction between himself and Quedas. 2024 IL App (1st) 231209 at ¶1.

In April 2012, Chmiel formed Quedas and was its sole shareholder and owner throughout its existence. Additionally, Gauza served as Quedas’ incorporator and was its authorized agent. 2024 IL App (1st) 231209 at ¶5. According to Chmiel, the sole purpose of forming Quedas was for it to serve as the titleholder for a parcel of real property located on Augusta Boulevard in Chicago. Id.

Gauza, as authorized representative of Quedas, entered into an agreement with Bremel to sell the subject property. 2024 IL App (1st) 231209 at ¶6. During the pendency of the transaction, Chmiel, on behalf of Quedas, executed a warranty deed transferring the subject property to himself, individually, while at the same time also voluntarily dissolving Quedas, whose only asset had been the subject property. 2024 IL App (1st) 231209 at ¶8. Shortly thereafter, Gauza informed Bremel that Quedas was not able to proceed with this transaction and attempted to return the earnest money to him. 2024 IL App (1st) 231209 at ¶9. Bremel did not agree to accept the refund of the earnest money, considered the seller’s unilateral termination a breach of contract, and filed his lawsuit. 2024 IL App (1st) 231209 at ¶¶9, 11.

After motion practice on the pleadings, Bremel filed his second amended complaint, which alleged, in part, a violation of the UFTA, i.e., the transfer of the subject property from Quedas to Chmiel constituted a fraudulent conveyance. 2024 IL App (1st) 231209 at ¶15. Ultimately, the trial court found, in part, that “Quedas was a debtor liable to [Bremel], a creditor; (2) the transfer of the subject property from Quedas to Chmiel was fraudulent in law; and (3) the transfer was fraudulent in fact” and, as a result, “the transfer of the Property from Quedas to Chmiel violated the [UFTA] and is therefore void.” 2024 IL App (1st) 231209 at ¶19. In his petition for damages, Bremel requested, in part, the imposition of punitive damages, claiming that Quedas, Chmiel, and Gauza’s fraudulent conduct had led him to expend over $121,000 in attorneys’ fees to secure his rights and suggested that an award in that amount would be appropriate. 2024 IL App (1st) 231209 at ¶20. The trial court declined to impose punitive damages, noting that “[t]here are very few Illinois cases that discuss punitive damages and the UFTA” and that “punitive damages were unavailable for a breach of contract claim.” 2024 IL App (1st) 231209 at ¶21. Bremel timely appealed. 2024 IL App (1st) 231209 at ¶23.

Appellate Court

On appeal, Bremel contended, in part, that the trial court erred when it declined to impose punitive damages with respect to his UFTA claim. 2024 IL App (1st) 231209 at ¶25. Bremel grounded his claim on the fact that punitive damages are essentially included in the UFTA’s “catch-all” provision that allows a creditor to obtain a number of remedies for a violation, including “any other relief the circumstances may require.” 2024 IL App (1st) 231209 at ¶¶ 29 – 30, citing 740 ILCS 160/8(a)(3)(C). Bremel also claimed, erroneously, that “no Illinois decision discusses” 740 ILCS 160/8(a)(3)(C). 2024 IL App (1st) 231209 at ¶31.

In rendering its decision, the trial court relied heavily on Bank of America v. WS Management, Inc., 2015 IL App (1st) 132551, ¶¶117 – 123, 33 N.E.3d 696, 392 Ill.Dec. 895, which does analyze 740 ILCS 160/8(a)(3)(C) and which, the appellate court noted disapprovingly, Bremel had failed to cite or acknowledge to the court below. 2024 IL App (1st) 231209 at ¶¶ 31 – 32. While Bank of America focused on the availability of attorneys’ fees under the UFTA and found that they were not recoverable per the American rule, the appellate court found that Bremel’s argument on appeal was distinguishable from that prior case in that Bremel argued “(1) that punitive damages are available in UFTA cases and (2) that, in his case, the proper award of punitive damages should equal his attorney fees.” 2024 IL App (1st) 231209 at ¶32.

The appellate court also noted thar the UFTA “is a uniform act and, in fact, expressly provides that ‘[t]his Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.’ ” 2024 IL App (1st) 231209 at ¶33, quoting 740 ILCS 160/12. As such, “[o]pinions of the courts of other jurisdictions are . . . shown greater than usual deference,” although the appellate court’s ultimate decision would be based on its independent interpretation of the Illinois statute. 2024 IL App (1st) 231209 at ¶33, quoting Garver v. Ferguson, 76 Ill.2d 1, 389 N.E.2d 1181, 1183, 27 Ill.Dec. 773 (1979).

After examining the language of the UFTA and the decisions of other jurisdictions, the appellate court determined that punitive damages are allowed under 740 ILCS 160/8(a)(3)(C) and that the broad language of the statute allows a trial court “considerable discretion in fashioning an appropriate remedy based on the particular circumstances before it.” 2024 IL App (1st) 231209 at ¶37. The appellate court further noted that “the UFTA is clear that it is intended to ‘supplement’ the common-law except where it is ‘displaced’ by the provisions of the statute, and [that the Illinois Supreme Court] has interpreted this directive expansively.” Id., quoting 740 ILCS 160/11. The appellate court further noted that “limiting the available remedies in a UFTA claim may have the undesirable result of leaving [Bremel] worse off than he had been before asserting his claim, [essentially leaving Bremel] without a remedy despite a finding of fraud.” 2024 IL App (1st) 231209 at ¶37. Accordingly, the appellate court held that, “in appropriate circumstances, a violation of the UFTA may give rise to an award of punitive damages, as would be the case under the common law.” Id.

Because the trial court incorrectly held that punitive damages were not available under the UFTA, it never addressed whether Quedas, Chimel, and Gauza’s fraudulent behavior warranted the imposition of punitive damages and, if so, the proper amount of such an award. 2024 IL App (1st) 231209 at ¶¶39 – 40. The appellate court remanded the case to the trial court with instructions to consider whether punitive damages were appropriate under the circumstances of the case. Id. In doing so, the appellate court “express[ed] no opinion on the question of whether punitive damages are warranted or the proper amount of such damages, including [Bremel’s] arguments concerning attorney fees as a measure of damages.” 2024 IL App (1st) 231209 at ¶40.

It is worth noting that Justice Van Tine filed a specially concurring opinion, agreeing with the majority that the UFTA allows for the imposition of punitive damages and that attorneys’ fees, per the American rule, are not recoverable under the Act. 2024 IL App (1st) 231209 at ¶¶51 – 54. Justice Van Tine further remarked that the American rule “extends to a scenario where, as in this case, a UFTA plaintiff seeks ‘punitive damages’ that are actually attorney fees” and that a court may not award attorneys’ fees “under the guise of a punitive damages award.” 2024 IL App (1st) 231209 at ¶¶55, quoting International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill.2d 456, 870 N.E.2d 303, 325, 312 Ill.Dec. 238 (2006). While he acknowledged that, “in assessing punitive damages, a trial court may consider the amount of attorney fees,” it did not mean that “an award of punitive damages can simply be an award of attorney fees under a different label,” which is what Bremel essentially sought in the case. 2024 IL App (1st) 231209 at ¶55. As such, Justice Van Tine found Bank of America, supra, to be directly on point and that the trial court “cannot award ‘punitive damages’ that are just attorney fees by another name.” 2024 IL App (1st) 231209 at ¶59.

It will be interesting to see whether the lower court allows Bremel to recover his attorneys’ fees under the guise of punitive damages. In any event, this First District opinion appears to open the door to indirect recovery of attorneys’ fees in claims under the UFTA moving forward, notwithstanding the American rule.

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.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

The Workers’ Compensation Commission Division of the Illinois Appellate Court upheld a majority decision of the Illinois Workers’ Compensation Commission in Helping Hands Center v. Illinois Workers’ Compensation Commission, 2024 IL App (1st) 240057WC-U. The claimant, a medical assistant for the respondent, was injured June 19, 2017, while decorating an office for her supervisor’s birthday party. 2024 IL App (1st) 240057 at ¶3. She was standing on a desk to hang decorations from the ceiling when she lost her balance and fell, resulting in injuries to her right foot and the right side of her body. Id.

As a medical assistant, the claimant answered telephones, scheduled appointments, took vitals, assisted the doctor, made house calls, and performed other tasks. It was customary to celebrate birthdays and other special occasions, and the claimant had decorated the office in the past. One week before the accident, the claimant’s supervisor instructed her to decorate the office for a nurse who was leaving. 2024 IL App (1st) 240057 at ¶6. The supervisor told the claimant to purchase party decorations for the occasion, for which she was reimbursed. The claimant was using the same decorations when she fell.

The claimant testified that no one ordered her to decorate and that she did so voluntarily. It was customary to decorate for special occasions, and no one instructed her to stand on the desk to hang the decorations. Her supervisor testified that during her employment she never instructed any employee to decorate for a party. She testified that decorating was voluntary. She also testified that, while it was not a policy, the office was frequently decorated for parties and other events.

The claimant was taken off work and was treated by Dr. Robert Miklos, who diagnosed a Lisfranc fracture of the first and second metatarsal of the right foot and a fracture of the fourth metatarsal base of the right foot. 2024 IL App (1st) 240057 at ¶12. Dr. Miklos performed an open reduction and internal fixation of the Lisfranc fracture with a screw placed in the second metatarsal base. Dr. Miklos released the claimant December 5, 2017, but she continued to experience pain in the right foot. 2024 IL App (1st) 240057 at ¶13.

The claimant left her employment with the respondent in January 2018. Id. In August 2018, she presented to Dr. Tomasz Szmyd for foot pain and was treated conservatively for six weeks. 2024 IL App (1st) 240057 at ¶14. She was not able to see Dr. Miklos because he no longer accepted her insurance. She returned to Dr. Szymd February 22, 2020, and he administered a trigger point injection to the right foot. Id. The claimant did not seek further treatment due to the risk of COVID until March 2021, when she saw Dr. Ping Chan. 2024 IL App (1st) 240057 at ¶15. Dr. Chan performed surgery on the right foot in November 2021 to excise an exostosis that was at the base of the first metatarsal cuneiform area. Id. The claimant’s final visit with Dr. Chan was December 2, 2021. Id.

The arbitrator found that the claimant was injured due to a risk distinctly associated with her employment, i.e., she was performing a task that she might reasonably be expected to perform incident to her assigned duties as it was a normal practice that she had performed previously. The arbitrator held that §11 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., did not preclude recovery because the claimant was not participating in a party or recreational program since the act she was performing did not involve “stopping work, sharing food and drink, socializing,” or similar activities. 2024 IL App (1st) 240057 at ¶17. The arbitrator also found that based on a chain-of-events analysis, the claimant’s current condition of ill-being was causally connected to the accident. The Commission, in a 2-1 decision, affirmed and adopted the arbitrator’s decision. 2024 IL App (1st) 240057 at ¶18.

The respondent raised three issues on appeal from the circuit court decision confirming the Commission’s decision. Primarily, the respondent argued that §11 of the Act barred any recovery. The respondent also argued that the injury did not arise out of the employment and that the causal connection finding was erroneous. 2024 IL App (1st) 240057 at ¶20.

Section 11 of the Act precludes recovery for “[a]ccidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics” unless the employee was ordered by the employer to participate. 2024 IL App (1st) 240057 at ¶22. The respondent argued that the Commission’s interpretation of “recreational program” was too narrow and that the purpose of decorating was to celebrate these occasions and, therefore, was no less a recreational program than a party. 2024 IL App (1st) 240057 at ¶23.

Because there was no dispute that the claimant voluntarily engaged in the decorating, the court analyzed whether she was engaged in a party or a recreational program. The Commission cited Elmhurst Park District v. Illinois Workers’ Compensation, 395 Ill.App.3d 404, 917 N.E.2d 1052, 334 Ill.Dec. 977 (1st Dist. 2009), and Glassie v. Papergraphics, Inc., 248 Ill.App.3d 621, 618 N.E.2d 885, 188 Ill.Dec. 315 (1st Dist. 1993), which the court summarized in its opinion.

The court determined that the Commission reasonably found a distinction between the claimant’s actions — decorating the office for her supervisor’s birthday — and a party. The Commission was guided by the two cases cited. “Significantly, the claimant was not injured while gathering, socializing, or sharing common food or drink.” 2024 IL App (1st) 240057 at ¶28. At the time of the accident the claimant was alone. Her activities involved decorating the work area of the person being recognized. This did not involve breaking work for a party. This was also not a recreational program. The evidence did not support the notion that the claimant decorated as a means of diversion or to refresh herself. The Commission’s finding that §11 did not bar recovery was not against the manifest weight of the evidence.

The court then addressed the issue of “arising out of” employment. 2024 IL App (1st) 240057 at ¶29. In its analysis, the court discussed the categories of risks. The Commission found the risk was associated with the employment because the claimant was performing an act she might reasonably be expected to perform as incident to her duties. Because it was a routine practice to decorate for birthdays and other celebrations, the Commission could reasonably infer that decorating for special occasions was incident to the fulfillment of the claimant’s duties. Her supervisor had also decorated in the past and had asked the claimant to decorate the office a week before the accident for another event. 2024 IL App (1st) 240057 at ¶36.

The court rejected the respondent’s argument that decorating the office was not incident to the claimant’s duties as a medical assistant or to the nature of the respondent’s business. The opinion points out that the fact that the claimant, her supervisor, and other employees routinely decorated the office for special occasions rendered the activity incident to their job even if decorating for special occasions was not expressly part of their job description.

Concerning the causal connection issue, the respondent argued it was against the manifest weight of the evidence for the Commission to find the claimant’s condition of ill-being causally related after her discharge from Dr. Miklos’ care in December 2017. The court disagreed, noting the Commission found causation based on a chain-of-events theory. The claimant testified that after she was released from Dr. Miklos, she did not have another injury to her right foot but continued to have pain. She sought additional treatment and had a second surgery with Dr. Chan. Based on the record, the Commission’s conclusion was reasonable.

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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.