Themas v. Green's Tap, Inc. ( 2014 )

2014 IL App (2d) 140023No. 2-14-0023
Opinion filed August 18, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
GAIL THEMAS, ) Appeal from the Circuit Court
) of Carroll County.
Plaintiff-Appellant, )
)
v. ) No. 08-L-15
)
GREEN’S TAP, INC., )
)
Defendant and Third-Party Plaintiff )
) Honorable
(Mt. Carroll Insurance Agency, Inc., ) Daniel A. Fish,
Third-Party Defendant-Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Zenoff and Hudson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Gail Themas, appeals a judgment in favor of third-party defendant, Mt. Carroll
Insurance Agency, Inc. (Mt. Carroll). She contends that the trial court erred by disregarding her
jury demand and proceeding to a bench trial after she received the assignment of the original
defendant’s claim against Mt. Carroll. We reverse and remand.
¶2 Plaintiff initially sued defendant, Green’s Tap, Inc., alleging that a fan at defendant’s bar
severed the tip of her finger. The complaint included a jury demand. Green’s Tap filed a
third-party complaint against Mt. Carroll, alleging that Mt. Carroll undertook to provide all
necessary insurance for the bar business but provided only dramshop insurance and not general
2014 IL App (2d) 140023liability coverage. The third-party complaint did not contain a jury demand. Mt. Carroll
answered and filed a jury demand.
¶3 Plaintiff and Green’s Tap eventually settled, with Green’s Tap agreeing to pay plaintiff a
small cash settlement and assign her its claim against Mt. Carroll. Mt. Carroll then moved to
withdraw its jury demand and to set the matter for a bench trial. Plaintiff objected, arguing that
her jury demand filed with the original complaint covered the assigned claim against Mt. Carroll.
The latter responded that plaintiff took the assigned claim as she found it and that Green’s Tap had
not filed a jury demand with the third-party complaint. The trial court agreed with Mt. Carroll
and set the matter for a bench trial.
¶4 Following the bench trial, the court entered judgment for Mt. Carroll. Plaintiff timely
appeals.
¶5 Plaintiff contends that the trial court erred by proceeding with a bench trial. She argues
that her jury demand covered the later-assigned claim against Mt. Carroll and was unaffected by
Mt. Carroll’s later withdrawal of its own jury demand.
¶6 Mt. Carroll initially contends that we lack jurisdiction of this appeal. It notes that
plaintiff’s notice of appeal does not specify the granting of Mt. Carroll’s motion to withdraw its
jury demand as the order being appealed. Illinois Supreme Court Rule 303(b)(2) (eff. May 30,
2008) provides that a notice of appeal “shall specify the judgment or part thereof or other orders
appealed from.” A notice of appeal is deemed to include an unspecified interlocutory order if the
earlier order was “a ‘step in the procedural progression leading’ to the judgment specified in the
notice of appeal.” Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435 (1979) (quoting
Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)).
-2-
2014 IL App (2d) 140023¶7 Plaintiff responds that her notice of appeal correctly states that she is appealing from the
judgment entered following a trial without a jury, and she adds that the earlier order allowing Mt.
Carroll to withdraw its jury demand was at most a step in the procedural progression leading to the
final judgment. We agree. The order allowing Mt. Carroll to withdraw its jury demand is
relevant only as a procedural step leading to the final judgment. Baldassari v. Chelsa
Development Group, Inc., 195 Ill. App. 3d 1073 (1990), which Mt. Carroll cites in its argument on
the merits, states that the defendants, who on appeal argued that they were denied their right to a
jury trial, appealed “from the judgment entered against them” following a bench trial. Id. at 1074.
We entertained the appeal. Thus, we conclude that, because an appeal from the final judgment
entered following a bench trial is a proper way for plaintiff to appeal the denial of a jury trial, the
notice of appeal here is proper.
¶8 Turning to the merits, the Illinois constitution guarantees the right to a jury trial.
Hernandez v. Power Construction Co., 73 Ill. 2d 90, 94 (1978) (citing Ill. Const. 1970, art. I, § 13).
Because the right is constitutional, courts liberally construe statutes regulating its exercise. Id. at
95; Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1091 (1993). A party is entitled to a jury trial
and cannot be deprived of that right by any act of the adverse party or the trial court without an
actual waiver of the right. North American Provision Co. v. Kinman, 288 Ill. App. 414, 417
(1937); see also Aetna Screw Products Co. v. Borg, 116 Ill. App. 3d 206, 213-14 (1983) (defendant
who filed jury demand on issues of law could not be deprived of jury trial absent waiver or
decision that equitable issues were res judicata of legal issues). Section 2-1105 of the Code of
Civil Procedure provides that a plaintiff who desires a jury trial “must file a demand therefor with
the clerk at the time the action is commenced.” 735 ILCS 5/2-1105(a) (West 2012). The failure
to do so waives a jury trial. Id.-3-
2014 IL App (2d) 140023¶9 The issue here is whether plaintiff’s jury demand filed with her initial complaint applies to
the assigned claim against Mt. Carroll. Mt. Carroll insists that, because plaintiff stepped into the
shoes of Green’s Tap, she must take the case as she found it, and she found it without Green’s Tap
having filed a jury demand. We disagree. To demonstrate why, we first consider the nature of
the assignment of a claim.
¶ 10 A potential claim for damages such as the one here is a chose in action. See Black’s Law
Dictionary 258 (8th ed. 2004) (defining “chose in action” as: “A proprietary right in personam,
such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in
tort”). Choses in action are generally assignable. An assignment transfers title in the chose in
action to the assignee, who becomes the real party in interest. 6 Am. Jur. 2d Assignments § 44
(2008). The assignee may sue in his or her own name. 735 ILCS 5/2-403(a) (West 2012).
¶ 11 Although we have found no case addressing the precise issue presented here, two things
seem apparent from the foregoing. First, the chose in action that is assigned consists of the claim
for damages, not the lawsuit filed in pursuit of that claim. Second, the assignee becomes the
owner of the claim and may pursue it in her own name like any other claim she might have. From
this, we conclude that plaintiff’s jury demand covered the subsequently-assigned claim. Saying
that the assignee steps into the shoes of the assignor means only that the assignment removes some
legal impediment, such as lack of privity, to the assignee pursuing the claim. It does not mean
that the assignee takes the existing court case exactly as she finds it.
¶ 12 Baldassari, on which Mt. Carroll chiefly relies, does not compel a different result. There,
the plaintiff sued the defendants, alleging fraudulent misrepresentation and breach of contract in
connection with a limited partnership agreement. The defendants filed a third-party complaint
against Irving Federal Savings & Loan Association, alleging the breach of a commitment to loan
-4-
2014 IL App (2d) 140023them $2 million. The plaintiff and the defendants eventually settled, with the plaintiff
withdrawing his jury demand. The defendants then sought to file a jury demand but the trial court
struck it as untimely. Baldassari, 195 Ill. App. 3d at 1074. We affirmed. Id. at 1077.
¶ 13 Mt. Carroll insists that Baldassari stands for the proposition that a third-party complaint is
a separate action requiring a separate jury demand. We disagree. In Baldassari, the defendants
never timely filed a jury demand, either when they answered the original complaint (although one
was not necessary at that time because the plaintiff had already filed one) or when they filed their
third-party complaint. Indeed, after the plaintiff withdrew his jury demand, the defendants waited
more than a month before filing their own. We held that the trial court properly struck it as
untimely. Thus, Baldassari holds only that the defendants never filed a timely jury demand. Id.
at 1076-77; see also Drovers National Bank of Chicago v. Ferrell, 14 Ill. App. 3d 389, 393 (1973)
(defendant did not file jury demand with third-party complaint). Baldassari did not involve the
assignment of the third-party claim to a party who already had a jury demand on file and thus does
not support Mt. Carroll’s contention that a third-party claim is a separate action to which a
previously filed jury demand does not apply.
¶ 14 The judgment of the circuit court of Carroll County is reversed, and the cause is remanded
for further proceedings.
¶ 15 Reversed and remanded.
-5-