Illinois state bar association May 2016 vol 61 no. 8 Trial Briefs The newsletter of the Illinois State Bar Association’s Section on Civil Practice & Procedure
Attorneys speak, documents Attorneys speak, do not: Pleading standards of Section 2-610 documents do not: Pleading 1 Arbitration clauses in the standards of Section 2-610 context of third-party beneficiary claims: An By Allison M. Huntley issue ripe for corporate consideration and Illinois Illinois Code of Civil Procedure particular allegation).1 Despite this clear Supreme Court review Section 2-610 requires litigants to admit rule, at times, litigants go to great lengths 1 or deny each allegation in a complaint to fashion alternative responses that (unless the litigant avers that she does not neither admit nor deny the allegations in Suing certain governmental have adequate knowledge to respond to a Continued on next page entities for willful and wanton misconduct just became easier—Illinois abandons the public duty rule Arbitration clauses in the 8
The unauthorized practice of context of third-party law: A case study 10 beneficiary claims: An issue ripe for corporate If you’re getting this consideration and Illinois newsletter by postal mail and would prefer electronic delivery, just send an Supreme Court review e-mail to Ann Boucher at [email protected] By Matthew R. Carter
Under Illinois law in general, “only a That said, when two parties enter into a party to a contract, or one in privity with contract there is at least a possibility that a party, may enforce a contract . . . .” Wilde the contract could also lead to a third- v. First Fed. Sav. & Loan Ass’n of Wilmette, party beneficiary claim. “[A] third party 134 Ill. App. 3d 722, 731 (1st Dist. 1985). Continued on page 3 Trial Briefs ▼ May 2016 / vol 61 / no. 8
Attorneys speak, documents do not
Continued from page 1 Trial Briefs
Published at least four times per year. the pleading. This practice violates the plain that one will indeed give voice) – but until Annual subscription rates for ISBA language of Section 2-610 and wastes the some such writing does break its silence, members: $25. parties’ and the Court’s resources. this Court will continue to require pleaders To subscribe, visit www.isba.org or call 217-525-1760. Section 2-610 sets forth the basic to employ one of the three alternatives that requirements for responsive pleadings: are permitted by Rule 8(b) in response to all OFFICE Illinois bar center litigants must specifically admit or deny or allegations about the contents of documents 424 S. Second Street claim lack of knowledge concerning each (or statutes or regulations).4 Springfield, IL 62701 2 PHones: 217-525-1760 OR 800-252-8908 allegation. The Section goes on to state the The Cook County Circuit Court www.isba.org consequences for failing to do so: “[e]very has cited Judge Shadur’s opinion with EDITORS allegation, except allegations of damages, approval. The Court noted: “answering James J. Ayres not explicitly denied is admitted unless the that ‘the document speaks for itself’ is also MANAGING EDITOR / PRODUCTION Katie Underwood party states in his or her pleading that he or improper. A proper answer to a complaint [email protected] she has no knowledge thereof” and submits must contain an explicit admission, 3 CIVIL PRACTICE & PROCEDURE an affidavit to that effect. an explicit denial, or an explicit lack of SECTION COUNCIL While Section 2-610 provides only knowledge assertion, of each allegation in Jessica A. Hegarty, Chair 5 Laura L. Milnichuk,Vice Chair three options for a response, some the complaint.” In Illinois, then, federal P. Shawn Wood, Secretary John J. Holevas, Ex-Officio litigants try to chart a course of their and state courts enforce pleading standards, James J. Ayres own. Consider this situation. Plaintiff and practitioners are well served by George S. Bellas Hon. William J. Borah makes an allegation regarding a document following them. Hon. Barbara L. Crowder that forms the basis of the Complaint: In addition to being improper under Christina E. Cullom Ashley D. DiFilippo “Paragraph 4 of the Contract requires Section 2-610, the response does not move Michael C. Funkey Hon. Richard P. Defendant to send Plaintiff forty widgets the litigation forward. In the example Goldenhersh every three months. A true and correct above, the Complaint and the Answer did Troy E. Haggestad James J. Hagle copy of the Contract is attached hereto and not serve their purpose of narrowing the Robert H. Hanaford incorporated by reference as Exhibit 1.” issues in play,6 and the parties must now Robert J. Handley James S. Harkness Because the Contract sets forth conditions use requests to admit and interrogatories David P. Huber Allison M. Huntley in subsequent paragraphs that affect to learn their opponent’s positions on key Patrick M. Kinnally Defendant’s obligations under Paragraph 4, facts and to authenticate documents already Michael R. Lied Timothy J. Mahoney Defendant answers: “The document speaks incorporated into the pleadings. This wastes Hon. Michael P. for itself and is the best evidence of its the parties’ and the Court’s resources. McCuskey Ronald D. Menna, Jr. terms.” This response is both improper and Accordingly, it is wise to review each Hon. Leonard Murray Robert T. Park unhelpful. response in your answer. If a response does Jeffrey A. Parness Though it appears that Illinois appellate not admit or deny an allegation, consider J. Matthew Pfeiffer Steven G. Pietrick courts have not interpreted Section 2-610 revising it to avoid a deemed admission. In Bradley N. Pollock to bar “the document speaks for itself” the above example, Defendant could admit Nigel S. Smith Stephen Terrance Sotelo response, the United States District Court the allegation and plead an affirmative Richard L. Turner Edward J. Walsh for the Northern District of Illinois has defense or admit only the authenticity of David A. Weder summarily rejected its use under Federal the document and deny the remainder of Albert E. Durkin, Board Co-Liaison Russell W. Hartigan, Board Liaison Rule of Civil Procedure 8(b), the federal the allegation. A carefully drafted response Blake Howard, Staff Liaison counterpart to Section 2-610. Judge Shadur will aid the parties moving forward. Howard E. Zimmerle, CLE Committee Liaison wrote: When analyzing your opponent’s Disclaimer: This newsletter is for subscribers’ personal use only; redistribution is prohibited. Copyright Illinois State Bar Another unacceptable device, used by responsive pleading, determine whether Association. Statements or expressions of opinion appearing lawyers who would prefer not to admit she properly answered each allegation. herein are those of the authors and not necessarily those of the Association or Editors, and likewise the publication of any something that is alleged about a document If certain responses run afoul of Section advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad in a complaint (or who may perhaps be too 2-610, consider filing a motion to deem that there is such approval or endorsement. lazy to craft some appropriate response to those specific paragraphs in the pleading Articles are prepared as an educational service to members of ISBA. They should not be relied upon as a substitute for such an allegation), is to say instead that the admitted. The Court may grant your individual legal research. document “speaks for itself.” This Court has motion, and you will hold a strong position The articles in this newsletter are not intended to be used and may not be relied on for penalty avoidance. been attempting to listen to such written in the case moving forward. Even if the Postmaster: Please send address changes to the Illinois State Bar materials for years (in the forlorn hope Court denies your motion to give the other Association, 424 S. 2nd St., Springfield, IL 62701-1779.
2 side a chance to amend her response, your Avoid using “creative” responses that 3. 735 ILCS 5/2-610(b) (emphasis added). motion will accomplish the important goal miss the mark. When your opponent uses 4. State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). of obtaining clear, succinct responses from phrases like “the document speaks for 5. Wells Fargo Bank v. Brown, 2012 WL your opponent. The outcome will narrow itself,” consider bringing this to the Court’s 3058670, n. 2 (Ill. Cir. Ct.) (Trial Order) (citing the issues in discovery and eventually for attention. It very well may help you win 735 ILCS 5/2-610(a); State Farm Mut. Auto. Ins. trial, thereby lowering costs for all parties your case. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)). 6. See, e.g., People ex rel. Fahner v. Carriage involved. ______Way W., Inc., 88 Ill. 2d 300, 307-308 (1981) In summary, at the pleading stage of 1. 735 ILCS 5/2-610(a), (b). (discussing purpose of pleadings). litigation, use Section 2-610 as your guide. 2. Id.
Arbitration clauses in the context of third-party beneficiary claims
Continued from page 1 beneficiary may sue for breach of a contract affirmatively named, the direct parties to obtain the benefit of an agreement as made for his benefit . . . when the benefit a contract do not always consider how a third-party beneficiary is required to is direct to him.” Id.; Advanced Concepts their contract could lead to third-party arbitrate his or her claim pursuant to a valid Chicago, Inc. v. CDW Corp., 405 Ill. App. 3d beneficiary claims. Instead, the direct arbitration clause within that agreement. 289, 293 (1st Dist. 2010) (“It is well settled parties frequently focus only on the rights One line of cases appears to broadly suggest in Illinois law that if a contract is entered and obligations amongst themselves—the that a claimed third-party beneficiary into for the direct benefit of a third party actual signatories of the contract. This is a cannot be compelled to arbitrate pursuant who is not a party to the contract, such mistake, particularly where the contract at to a valid arbitration clause within the third party is entitled to sue for breach of issue includes an arbitration clause which agreement from which the beneficiary that contract. The test is whether the benefit the parties to the contract want to enforce seeks to benefit. See, e.g., City of Peru v. to the third party is direct or incidental.”) in all circumstances—including against any Illinois Power Co., 258 Ill. App. 3d 309, 313 (citations omitted). claimed third-party beneficiaries. (3d Dist. 1994) (“[P]ersons who are not The key question in analyzing a third- This mistake is exacerbated by the parties to an arbitration agreement cannot party beneficiary claim is whether “the fact that the effect and interpretation of be compelled to participate in arbitration”) parties to the contract intended to confer arbitration clauses in contracts susceptible (emphasis in original); Royal Indem. Co. a direct benefit on the purported third- to third-party beneficiary claims is unclear v. Chicago Hosp. Risk Pooling Program, party beneficiary.” Bank of Am. Nat. Ass’n under Illinois law. For example, does the 372 Ill. App. 3d 104, 110 (1st Dist. 2007) v. Bassman FBT, L.L.C., 2012 IL App (2d) arbitration clause apply to third-party (citing City of Peru for the same); Brooks v. 110729 (2012) ¶ 27 (emphasis in original). beneficiaries? If the parties intend that Cigna Prop. & Cas. Cos., 299 Ill. App. 3d 68, Answering this question requires courts it does, what language is required? The 72 (1st Dist. 1998) (“[A] nonparty to the to “look at the terms of the contract and answers to these questions are not clear contract or a third-party beneficiary cannot the circumstances surrounding the parties under current Illinois law. be compelled to arbitrate.”). at the time of its execution.” Advanced This article discusses the current state of By contrast, a second line of cases Concepts, 405 Ill. App. 3d 293. Importantly, the law in Illinois considering arbitration appears to suggest that third-party the direct benefit conferred “does not have clauses and third-party beneficiary claims. beneficiaries seeking to enforce contracts to be for the sole benefit of the third party The article suggests that there is a conflict containing arbitration provisions may be as long as it is for its direct or substantial in Illinois law related to this issue ripe for bound to arbitrate contractual disputes benefit.”Id. Moreover, while the intent to Supreme Court review. Further, the article as if they were parties to the agreements benefit the third party must affirmatively proposes an approach to consider for at issue. See, e.g., Dannewitz v. Equicredit appear from the language of the contract, resolving this conflict. Finally, the article Corp. of Am., 333 Ill. App. 3d 370, 373 (1st it need not be express and may be implied recommends certain steps that attorneys Dist. 2002) (“The third-party beneficiary so long as the implication is strong. City of should consider in drafting arbitration doctrine applies to arbitration agreements. Yorkville ex rel. Aurora Blacktop Inc. v. Am. clauses in their contracts. Where it is shown that the signatories to the S. Ins. Co., 654 F.3d 713, 716–17 (7th Cir. agreement intended that the nonsignatories 2011) (citing cases). I. Alleged Third Party were to derive benefits from the agreement Because a party’s status as a third- Beneficiaries and Arbitration and where the arbitration clause itself party beneficiary is thus a matter of Clauses—A Conflict in Illinois Law is susceptible to this interpretation, then contractual interpretation expansive Illinois law appears split regarding arbitration is proper.”) (citations omitted enough even to include third parties not whether a non-signatory who seeks to and emphasis added); Johnson v. Noble, 240
3 Trial Briefs ▼ May 2016 / vol 61 / no. 8
Ill. App. 3d 731, 735–36 (1st Dist. 1992) to the arbitration agreements of others,’ v. Houses on the Move, Inc., 177 Ohio App. (same); Equistar Chems., LP v. Hartford including the third-party beneficiary 3d 585, 592 (Ohio Ct. App. 8th Dist. 2008) Steam Boiler Inspection & Ins. Co. of Conn., doctrine.” Cont’l Cas. Co. v. Am. Nat’l Ins. (“[N]onsignatories can be ‘bound to an 379 Ill. App. 3d 771, 778–80 (4th Dist. Co., 417 F.3d 727, 734–35 (7th Cir. 2005) arbitration agreement via the theories of 2008) (recognizing several contract-based (affirming the district court’s dismissal incorporation by reference, assumption, theories, including status as a third-party of case based on third-party beneficiary’s agency, veil-piercing/alter ego, and third- beneficiary, under which a nonsignatory right to enforce mandatory arbitration party beneficiary.’”); InterGen N.V. v. may be bound to the arbitration clause). Similarly, the U.S. District Court Grina, 344 F.3d 134, 146 (1st Cir. 2003) agreements of others and finding that if for the Central District of Illinois, in a case (“[A] third-party beneficiary of a contract a third-party “step[s] into the shoes of” a which ultimately applied Florida law but containing an arbitration clause can be party to a contract, it should be bound to in which the court discussed Illinois law, subject to that clause and compelled to arbitration under that contract to the same explained that enforcing an arbitration arbitrate on the demand of a signatory.”); extent as the original party even where clause with respect to a third-party Bouriez v. Carnegie Mellon Univ., 359 F.3d the agreement itself specifically described beneficiary furthers the interests of justice. 292, 294 (3d Cir. 2004) (“[T]he common its rights in a way that was limited to the The court found that, under Illinois law, a law theories used to bind a non-signatory parties themselves); Tortoriello v. Gerald non-signatory to a contract cannot avoid to an arbitration clause include third Nissan of N. Aurora, Inc., 379 Ill. App. arbitration under its provisions while party beneficiary, agency and equitable 3d 214, 240 (2d Dist. 2008) (“A third- simultaneously attempting to enforce estoppel.”); Cabrera-Morales v. UBS Trust party beneficiary is bound by the terms the contract as an intended third-party Co. of P.R., 769 F. Supp. 2d 67, 72 (D.P.R. of the contract in the same manner as beneficiary.Camp v. TNT Logistics Corp., 2011) (“[A] third-party beneficiary of a the parties are bound. The third-party No. 04-1358, 2006 WL 91318, at *3–4 contract containing an arbitration clause beneficiary doctrine applies to arbitration (C.D. Ill. Jan. 12, 2006); see also Int’l Ins. can be subject to that clause and compelled agreements.”) (citations omitted); Ervin Agency Servs., LLC v. Revios Reinsurance to arbitrate on the demand of a signatory.”); v. Nokia, Inc., 349 Ill. App. 3d 508, 514 U.S., Inc., No. 04 C 1190, 2007 WL Painting Co. v. Weis Builders, Inc., No. 2:08- (5th Dist. 2004) (“Illinois courts have 951943, at *3, 5 (N.D. Ill. Mar. 27, 2007) CV-473, 2009 WL 150674, at *4 (S.D. Ohio found that a nonsignatory can enforce an (recognizing that “a third-party beneficiary Jan. 21, 2009) (holding that third-party arbitration clause if it is determined that of a contract is bound by the contract’s beneficiary had “no more right to avoid the nonsignatory qualifies as a third-party arbitration provision” and granting motion the unequivocal forum choice of the main beneficiary of the agreement.”); see also to compel arbitration under federal law, construction contract in this case than do Caligiuri v. First Colony Life Ins. Co., 318 noting that a plaintiff cannot “hav[e] it the signatory parties” and could not avoid Ill. App. 3d 793, 801, 804 (1st Dist. 2000) both ways” so that if a plaintiff “is going arbitration). (compelling arbitration against a third- to use its relationship to the parties in the This apparent conflict in Illinois law has party beneficiary based on federal law agreements to create standing then it must consequences for litigants. The first line and also noting that “federal courts have also submit to the arbitration provision in of cases—suggesting that alleged third- recognized contract-based theories under the agreement”). Courts in other state and party beneficiaries cannot be compelled which a non-signatory may be bound to federal jurisdictions have found similarly. to arbitrate—could allow a third-party the arbitration agreements of others, such See, e.g., Ex parte Dyess, 709 So. 2d 447, beneficiary to unilaterally decide to try as: (1) incorporation by reference; (2) 451 (Ala. 1997) (holding that a third-party and accept the benefits of a contract while assumption; (3) agency; (4) veil-piercing beneficiary who was attempting to benefit simultaneously avoiding its obligations or alter ego; and (5) estoppel. It would from a policy while avoiding its arbitration (such as an arbitration clause). This, in seem to follow as a corollary that the same clause would have to arbitrate any claim turn, significantly weakens the effect of the types of theories could afford a basis for he had under the policy); Johnson v. Pa. actual contract signatories’ agreement to a non-signatory to invoke an arbitration Nat’l Ins. Cos., 527 Pa. 504, 508–10 (1991) resolve disputes in arbitration rather than agreement signed by others. Indeed, this (holding that “third party beneficiaries the courts. Indeed, while the signatories court has suggested that this is the rule.”) are bound by the same limitations in the may have to resolve disputes between (citation omitted). contract as the signatories of that contract,” themselves in arbitration pursuant to their Federal cases interpreting or including the arbitration clause); Dist. agreement, they could still find themselves considering Illinois law tend to endorse Moving & Storage Co., Inc. v. Gardiner & in traditional in-court litigation brought by this second line of cases. For example, the Gardiner, Inc., 63 Md. App. 96, 102–03 a third-party beneficiary. In other words, Seventh Circuit, interpreting Illinois law, (Md. Ct. Spec. App. 1985) (finding that this first line of cases could impose in-court has stated that while only signatories to a third-party beneficiary is bound by the litigation on terms contractual signatories an agreement can generally file a motion contract’s arbitration clause in the same specifically attempted to avoid. to compel arbitration, “[t]his principle is manner in which the party is bound) aff ’d The second line of cases—suggesting subject to certain ‘contract-based theories sub nom. Dist. Moving & Storage, Inc. v. that alleged third-party beneficiaries may under which a nonsignatory may be bound Fedco Sys., Inc., 306 Md. 286 (1986); Moore be compelled to arbitrate—more broadly
4 favors arbitration in general. Furthermore, Instead, “[w]here there is a valid arbitration (1981) (“Where there is a contract, the right it allows the signatories to a contract the agreement and the parties’ dispute falls of a beneficiary is subject to any limitations benefit of their arbitration agreement within the scope of that agreement, imposed by the terms of the contract.”); not only in disputes amongst themselves, arbitration is mandatory and the trial court 12A Illinois Law & Practice Contracts § but also in disputes brought by alleged must compel it.” Id. (emphasis added); see 193 (2016) (“Furthermore, a third-party third-party beneficiaries seeking to assume also First Condo. Dev. Co. v. Apex Const. & beneficiary of a contract may not selectively certain of a contract’s benefits. This second Eng’g Corp., 126 Ill. App. 3d 843, 846 (1st enforce the provisions of the contract, but is line of cases may thus discourage certain Dist. 1984) (“Once a contract containing a subject to the whole contract as formed by claims by ensuring that any alleged third- valid arbitration clause has been executed its parties.”). party beneficiary is forced to bring his or the parties are irrevocably committed to Consistent with these basic rules, her suit in arbitration rather than in his arbitrate all disputes arising under the third-party beneficiaries “must take the or her chosen forum or method (a class agreement.”). Considering this baseline contract as the original parties made it” and action, for example). in favor of arbitration, courts should are “bound by all of its provisions.” L. B. II. Resolving the Conflict Logically presume that arbitration clauses apply Herbst Corp. v. N. Ill. Corp., 99 Ill. App. 2d to alleged third-party beneficiaries. See 101, 105 (2d Dist. 1968) (emphasis added); Resolving the above-described conflict Fahlstrom, 2011 IL App (1st) 103318 at ¶ 12A Illinois Law & Practice Contracts § is important for plaintiffs and defendants 17 (interpreting an arbitration clause and 193 (2013) (same). As such, a third-party alike. Plaintiffs should know whether finding that, in keeping with Illinois policy beneficiary should not be allowed to “take alleging third-party beneficiary claims favoring arbitration, “generic” arbitration those parts of the contract which favor him in litigation will make their lawsuits clauses must be interpreted broadly to and reject those parts which distress him.” susceptible to an arbitration they might include “any dispute that arguably arises L.B. Herbst, 99 Ill. App. 2d 105; see also R otherwise wish to avoid (which could lead under an agreement” containing such a & L Grain Co. v. Chicago E. Corp., 531 F. them to drop their third-party beneficiary clause, and stating that “[a]rbitration clauses Supp. 201, 209 (N.D. Ill. 1981) (noting that, claims in the first place). By the same token, which have been properly characterized under Illinois law, “a third-party beneficiary defendants should know whether they can as ‘generic’ include those demanding to a contract may not selectively enforce force an alleged third-party beneficiary the arbitration of all claims or disputes provisions of the contract, but is subject to into arbitration under any circumstances ‘arising out of’ or ‘arising out of or related the whole contract as formed by the parties and, if so, what contractual language is to’ or ‘regarding’ the agreement at issue”) thereto”). necessary to accomplish that goal. This (emphasis in original and citation omitted). In light of the above, and because they article submits that contractual signatories The same presumption holds under are specifically seeking to read themselves should have the ability to broadly enforce Illinois contract law and the third-party into contracts, alleged third-party their arbitration clauses against alleged beneficiary doctrine. Illinois law requires beneficiaries should find themselves bound third-party beneficiaries and that doing so the interpretation of contracts as a whole. not only to those portions of the contract most faithfully follows general Illinois legal See, e.g., Gallagher v. Lenart, 226 Ill. 2d 208, they like, but also those provisions they principles regarding arbitration, the law of 233 (2007) (“[B]ecause words derive their would rather avoid—including arbitration contract, and the third-party beneficiary meaning from the context in which they clauses. It cannot be, as some courts have doctrine. are used, a contract must be construed as been read to suggest, see, e.g., City of Peru, Illinois courts interpret arbitration a whole, viewing each part in light of the 258 Ill. App. 3d 313, that a person who is clauses broadly and it is well-established others.”). And, as a general rule, third- not a party to an arbitration agreement that arbitration is a favored method of party beneficiaries are subject to all of a may never be compelled to arbitrate. dispute resolution. See Salsitz v. Kreiss, contract’s terms, including terms they may Instead, where the language is susceptible 198 Ill. 2d 1, 13 (2001); Fahlstrom v. Jones, view as limitations. See Midwest Concrete to a construction compelling arbitration, it 2011 IL App (1st) 103318, at ¶ 16 (2011) v. LaSalle Nat. Bank, 94 Ill. App. 3d 394, should be compelled, even if the arbitration (“[A]rbitration is a favored alternative to 397 (1st Dist. 1981) (observing that the clause does not specifically reference litigation by state, federal and common terms of the contract control the rights of a third-party beneficiaries or references only law because it is a speedy, informal, third-party beneficiary and liability cannot the actual parties to the contract at issue. and relatively inexpensive procedure extend beyond those terms); Gallopin v. See, e.g., Dannewitz, 333 Ill. App. 3d 373 for resolving controversies arising out Cont’l Cas. Co., 290 Ill. App. 8, 13 (1st Dist. (“The third-party beneficiary doctrine of commercial transactions.”) (internal 1937) (“[I]t is a well-recognized principle applies to arbitration agreements. Where quotations and citations omitted). Indeed, that where a contract is entered into by two it is shown that the signatories to the where a contract contains a binding parties for the benefit of a third, the third agreement intended that the nonsignatories arbitration provision, Illinois courts person’s rights are subject to the equities were to derive benefits from the agreement recognize that “the decision whether to between the original parties springing out and where the arbitration clause itself compel arbitration is not discretionary.” of the transaction between them.”); accord is susceptible to this interpretation, then Travis v. Am. Mfrs. Mut. Ins. Co., 335 Restatement (2d) of Contracts § 309 cmt. b. arbitration is proper.”) (citations omitted Ill. App. 3d 1171, 1175 (5th Dist. 2002).
5 Trial Briefs ▼ May 2016 / vol 61 / no. 8 and emphasis added). The defendant claimed that the plaintiff reaching its decision compelling arbitration. This article suggests that adopting the was bound because “he was a third-party Illinois law favors arbitration, provides that above-noted approach is the best way beneficiary seeking to enforce rights under claimed third-party beneficiaries are subject to follow general Illinois law regarding the contract.” Id. Ultimately, the Tennessee to contractual benefits and obligations, arbitration, contract, and third-party Supreme Court agreed with the defendant. and requires the interpretation of contracts beneficiaries. Furthermore, it finds support In doing so, it started by noting that as a whole. If and when this issue reaches in persuasive case law outside of Illinois. In arbitration agreements are favored. Id. the Illinois Supreme Court, Benton could Benton v. Vanderbilt Univ., the Tennessee The court then discussed the rights and thus provide a persuasive roadmap for the Supreme Court considered the interplay obligations of third-party beneficiaries. Court’s consideration. between alleged third-party beneficiaries Id. at 618. It noted that a third-party III. Avoiding Issues with Third and arbitration clauses and held that an beneficiary’s rights depend upon and are Party Beneficiaries Now arbitration provision was binding against a measured by the terms of the contract itself. This article suggests that courts third-party beneficiary despite the fact that Id. Further, it noted that “if the beneficiary should presume that alleged third-party the arbitration provision at issue specifically accepts, he adopts the bad as well as the beneficiaries are bound by the terms referenced the parties (and not any alleged good, the burden as well as the benefit.” Id. of broadly worded, general arbitration third-party beneficiaries). 137 S.W.3d 614, (citation omitted). clauses. Illinois courts, however, have 618–19 (Tenn. 2004). Finally, the court considered “whether not consistently adopted that approach. The plaintiff in Benton brought a an arbitration provision in a contract is Instead, Illinois courts appear to parse the third-party beneficiary claim seeking to binding against a third-party beneficiary language of arbitration clauses on a case- enforce rights under a contract between his who brings an action seeking to enforce by-case basis without a presumption in insurer, Blue Cross Blue Shield of Tennessee the terms of that contract.” Id. The court favor of arbitration for claimed third-party (“BCBS of Tennessee”), and the Vanderbilt noted that “[a]lthough this is a question of beneficiaries. Without a presumption, the University Medical Center (“Vanderbilt”), first impression in Tennessee, numerous question becomes how to draft contracts the medical facility that treated him after courts and legal commentators have held as now to include alleged third-party a car accident. Id. at 616–17. Following a general rule that a third-party beneficiary beneficiaries. the Benton plaintiff’s accident, Vanderbilt who seeks to enforce rights under a contract To start, contractual signatories that billed BCBS of Tennessee for the plaintiff’s is bound by an arbitration provision in that seek to ensure arbitration in as broad treatment and was reimbursed at a contract.” Id. (citing Ex parte Dyess, 709 So. a manner as possible need to do more discounted rate pursuant to its contract with 2d 447, 451 (Ala. 1997) and Restatement than rely on stock or boilerplate language BCBS of Tennessee. Id. at 616. Vanderbilt (2d) of Contracts § 309 cmt. b (1981)). The providing arbitration for “any and all later filed a statutory notice of hospital lien court also pointed out that “one leading claims.” This is particularly the case where against any potential monetary recovery the commentator states, ‘where [a] contract the arbitration clause includes terms plaintiff might receive through his lawsuit contains an arbitration clause which is that specifically name the signatories or against the other driver for personal injuries legally enforceable, the general rule is that that delineate and describe the steps that he received in the accident. Id. The facility’s the beneficiary is bound thereby to the those signatories must take as part of any goal was to make up the difference between same extent that the promisee is bound.’” Id. arbitration. In those situations, a court the amount it had received from BCBS of (citing Williston on Contracts § 364 A. (3d might not enforce the arbitration clause Tennessee and the price of its treatment of ed. 1957)). against an alleged third-party beneficiary the plaintiff. Id. After discussing various decisions because the contract names and describes The plaintiff in Benton filed a complaint requiring arbitration under similar the contractual signatories, but does not against Vanderbilt alleging, among other circumstances, the court noted that some include third-party beneficiaries. A court claims, a breach of the contract between the cases, including City of Peru, exempted might reason, for example, that because the medical facility and his insurer. Id. at 616. third-party beneficiaries from arbitration arbitration clause specifically references the Vanderbilt sought to compel arbitration, provisions in contracts by emphasizing parties, only the parties are included, not citing the plaintiff’s alleged status as third- contractual language which limited the third-party beneficiaries. party beneficiary to the contract. Id. The arbitration clause to the parties to the Following from the above, the parties arbitration clause at issue provided for the agreement. Id. at 619. Rejecting these cases, to a contract should specifically and arbitration of disputes arising “between the court found that decisions compelling explicitly delineate that alleged third-party the parties” of the agreement after various arbitration reflected the better-reasoned beneficiariesare bound by arbitration notice provisions were met and in the approach, particularly in light of the support clauses in the same manner as the parties. event the dispute was not resolved prior to provided for such an approach in the The contractual signatories could include arbitration. Id. at 617. Restatement and Williston. Id. terms specifically noting, for example, that The plaintiff asserted that he could not Benton is instructive and Illinois law the arbitration clause applies to any alleged be bound to the arbitration clause because is consistent with all of the general legal third-party beneficiaries to the same extent he was not a “party” to the agreement. Id. principles the Benton court relied on in it applies to the direct parties. Further, to
6 Get This year, Illinois lawyers + law firms got back Your $1.9 Million Efficient operations, careful risk selection & successful investment management have allowed ISBA Mutual to return $18.3 Million Slice in premiums since 2000.
800 473-4722 isbamutual.com
7 Trial Briefs ▼ May 2016 / vol 61 / no. 8 the extent the arbitration clause delineates third-party beneficiaries to an arbitration arising out of commercial transactions.”) and describes certain steps or requirements clause would somehow suggest that the (citations and quotations omitted). But that the signatories must take as part of the contract’s signatories did intend to create contractual signatories might not always arbitration, those terms should likewise third-party beneficiary rights in their consider how courts will construe their describe how the same or other steps and contract. The contract could note, for arbitration clauses in the context of alleged requirements apply in the context of a instance, that while it does not provide, and third-party beneficiary claims, particularly claimed third-party beneficiary. In short, the parties have no intention of providing, where those signatories do not intend to direct contractual parties that wish their third-party beneficiary rights, any claimed create any third-party beneficiary rights. arbitration clauses to cover all potential third-party beneficiary is still required to Ignoring this issue is unwise, particularly claims that might arise under a contract— arbitrate. in Illinois where the law on this topic is unsettled. This article suggests that including any third-party beneficiary Conclusion claims—should ensure that their arbitration broadly-worded arbitration clauses should clauses make that point as explicitly as Arbitration is an increasingly favored presumptively apply to claimed third party possible. method of dispute resolution. Phoenix beneficiaries; however, Illinois law does not Direct parties to a contract might Ins. Co. v. Rosen, 242 Ill. 2d 48, 59 (2011) currently recognize such a presumption. wonder why they should include such (noting Illinois’ public policy in favor Without this presumption, contractual terms in a contract in which they have of arbitration reflected further in the signatories in Illinois should consider no intention of creating third-party legislature’s adoption of the Uniform ensuring that their contracts specifically beneficiary rights in the first place. While Arbitration Act). Sophisticated corporate and explicitly state that alleged third-party this reasoning makes sense, it may not stop contracts frequently include arbitration beneficiaries are covered by their terms. clauses as a means to limit the expense aggressive future litigants from pursuing ______and burden of in-court litigation. Bd. of third-party beneficiary claims anyway. And, Matthew R. Carter is a partner at Winston & in those cases, the contractual signatories Managers of Courtyards at Woodlands Strawn LLP and formerly served as a law clerk would still likely prefer to arbitrate, rather Condo. Ass’n v. IKO Chicago, Inc., 183 Ill. to then Justice, currently Chief Justice, Rita B. Garman of the Supreme Court of Illinois. He than litigate, that dispute. To ensure that 2d 66, 71 (1998) (“It is a well-established principle that arbitration is a favored would like to thank his Winston colleague, Patrick happens, direct contractual parties should R. O’Meara, for his help finalizing the research consider the steps described above. alternative to litigation by state, federal supporting this article and his colleagues David Furthermore, careful drafting should and common law because it is a speedy, E. Dahlquist, Laura B. Greenspan, and former alleviate any concerns that adding alleged informal, and relatively inexpensive colleague, Katherine V. Boyle, for their work on procedure for resolving controversies the matter that inspired this article.
Suing certain governmental entities for willful and wanton misconduct just became easier—Illinois abandons the public duty rule
By Robert Handley and Grzegorz (Greg) Czubernat, BURKE & HANDLEY, P.C.
Coleman v. East Joliet Fire Creek, an unincorporated area in Will calls from Coretta’s neighbors. Due to Protection District (In re Estate of County, Illinois. The paramedics did not confusion about Coretta’s actual address, Coleman), 2016 IL 117952 enter Coretta’s house because the doors this second ambulance arrived at Coretta’s were locked and no one answered them house 41 minutes after Coretta’s initial 911 Facts from the inside of the house. The 911 call. The crew of the second ambulance On the evening of June 7, 2008, 58-year dispatcher tried calling Coretta back, but entered the house because Coretta’s old Coretta Coleman called 911 because Coretta’ phone line had a busy signal. The husband arrived home just in time to let she was having difficulties breathing. ambulance crew left Coretta’s house five them in. They found Coretta inside the Nine minutes later, the ambulance crew minutes after they arrived. house, but she was unresponsive. Coretta arrived at Coretta’s residence in Sugar A second ambulance was dispatched to died of cardiac arrest soon after the second Coretta’s house after 911 dispatch received crew of paramedics reached her.
8 Procedural history of statutory immunities has rendered the immunity and the public duty rule are not 3 Coretta’s estate filed a wrongful death public duty rule obsolete.” As a result of separate concepts as the Kilbride’s opinion and survival action alleging both negligence this Opinion, Illinois became the seventh concludes because “the public duty rule is and willful and wanton misconduct against state to abolish the public duty rule. firmly rooted in the concept of sovereign 7 numerous defendants. The estate sued the The Illinois Supreme Court removed immunity.” In 1970, the ratification of East Joliet Fire Protection District and the gatekeeping layer for plaintiffs who sue Illinois Constitution “abolished all forms its emergency responders, Will County local governmental entities for willful and of governmental immunity, except where 8 and its 911 operator, and the Orland Fire wanton misconduct. The decision justifies provided for by legislative action.” Thus, Protection District and its dispatcher. All the court’s departure from stare decisis and the public duty rule, the tool that judiciary counts alleging negligence were dismissed abandoning both the public duty rule and had used to evaluate municipal tort by the trial court because of various state its special duty exception with the following liability, disappeared when the legislature, immunity laws. However, the statutory three reasons: as opposed to courts, was vested with immunity asserted by defendants did First, the case law “has been muddled immunity wielding powers. 4 not shield them from willful and wanton and inconsistent” in application of the Justice Thomas, Chief Justice Garman misconduct, the second set of allegations rule. The court explained that the question and Justice Karmeier joined in a dissenting contained in the plaintiff’s complaint. of duty and immunity are two separate opinion. Justice Thomas agreed with the With respect to the willful and wanton issues and the question of whether a lead opinion that this court has repeatedly counts, the trial court reasoned that the defendant owed plaintiff a duty should be held that the public duty rule remained common law public duty rule warrants asked first. However, the duty inquiry was unaffected by the abolishment of sovereign summary judgment in favor of defendants. irrelevant in cases where a statute provided immunity and statutory enactments The public duty rule states that “local immunity from civil liability, and the related to grants of immunity. That is, the governmental entities owe no duty to immunity inquiry was irrelevant when a public duty rule has been used by courts individual members of the general public local governmental entity owed no duty to independently of other developments. to provide adequate government services, begin with. While some courts began the However, according to Justice Thomas, such as police and fire protection.”1 Thus, analysis by asking if there was a duty, other there is no good reason, let alone a the trial court used the public duty rule to courts skipped the duty analysis and first compelling reason, why the court should block the plaintiff’s suit alleging willful and looked to the immunity statute to dispose abolish the public duty rule now and disturb wanton misconduct from going forward, of a case. This, according to court, “unduly the stare decisis. 5 even though the state immunity laws would complicated” the application of concepts of Justice Thomas wrote that the position have permitted recovery. The appellate duty and immunity. taken by Justice Kilbride and the concurring 9 court affirmed. Second, if the state legislature permits a Justices makes “a mockery of stare decisis.” plaintiff to recover from a public entity for Justice Thomas pointed out that the five Illinois Supreme Court analysis willful or wanton misconduct, the judicially Justices of the Illinois Supreme Court did In the plurality opinion, Justice Thomas created public duty rule should not stand not agree with Justice Kilbride’s reasoning. L. Kilbride and three other Justices agreed in the plaintiff’s way. Otherwise, the public In effect, the dissent has support of on the holding, but only one Justice, Anne duty rule would override the scope of more Justices that the lead opinion does. M. Burke, agreed with Justice Kilbride’s statutory immunities and shield from civil Consequently, the lead opinion should reasoning. liability those that legislature decided to not be treated as majority opinion. Justice The issue before the court was the leave exposed. Thomas evaluated all three reasons cited by “continued viability of the public duty Finally, “the determination of public Justice Kilbride for abandoning the public 2 r u l e .” The opinion started with a historical policy is primarily a legislative function duty rule cited in the lead opinion. overview of governmental tort immunity and the legislature’s enactment of statutory First, just because some courts assumed and the public duty rule. The court immunities has rendered the public duty there was a duty and disposed of a case on quoted extensively from Zimmerman v. rule obsolete.”6 The opinion ended with a immunity ground, does not mean that there Village of Skokie, 697 N.E.2d 699 (1998) reminder that if the legislature wants the were any inconsistencies in application of to reinforce the point that this court has public duty rule, it is welcome to reenact it the law. Courts engage in similar ‘“even already ruled that the longstanding public via a statute, just as other states have done. if ”’10 analysis all the time to expedite the duty rule is completely separate from Two Justices, Justice Freeman and review by assuming that some allegations, any concepts of sovereign immunity. Theis, joined in special concurrence. They even if true, will not save the plaintiff’s cause Consequently, the public duty rule was not wanted to abandon the public duty rule of action. According to Justice Thomas, affected by the abolishment of sovereign and its special duty exception, but for “if such practice renders . . . bodies of law immunity in Illinois, and it has coexisted different reasons. Under their analysis, ‘muddled and inconsistent’ to such a degree with the statutory immunity enacted by the public duty rule became obsolete with that the protections of stare decisis no longer the legislature. Nevertheless, the court the abolishment of sovereign immunity. operate, then the common law of Illinois sits determined that “the legislature’s enactment In the view of these Justices, sovereign on the verge of wholesale collapse.”11
9 Trial Briefs ▼ May 2016 / vol 61 / no. 8
Then, Justice Thomas found two wanton misconduct is just that: a statutory part of Illinois was in the midst of a major problems with the second reason outlined exception dealing with the issue of statutory tornado outbreak and disaster event”15 with in the lead opinion. Namely, if the state immunity and does not reach the issue several EF2 tornadoes “causing injuries and legislature permits a plaintiff to recover of the duty that the common law public widespread damage and destruction.”16 from a public entity for willful or wanton duty rule controls. It appears that Justice He seems to find this “convenient[ly] and misconduct, the judicially created public Thomas was trying to say that the statutory conspicuous[ly]”17 omission of that “highly duty rule should not stand in the plaintiff’s exception does not affect the application of relevant fact”18 very curious. way. the public duty rule because the exception The first problem with this reason is that does not even become relevant until later Conclusion the issue of whether the public duty rule in the analysis once the question of duty is If the state laws do not provide remained viable in Illinois despite statutory resolved. This argument is even stronger immunity from civil liability for willful immunity developments has already been when you take into consideration the lead and wanton misconduct, you do not have decided. This court has recently reiterated opinion’s stance that the question of duty is to worry about the public duty rule which this stance in Harinek v. 161 North Clark completely separate and distinct from the could otherwise prevent the suit absent Street Ltd. Partnership, 692 N.E.2d 1177 question of duty, and that question of duty the applicability of a limited exception. As (1998). For Justice Killbride to hold should precede the immunity analysis. far as municipal or fire district entities are otherwise would require a departure from Lastly, the second part of the third concerned, unless there is action by the the principles of stare decisis. Such departure reason cited by the lead opinion states legislature to enact immunity, they will now requires ‘“articulable reasons’”12 and should that the public duty rule lost its viability be exposed to traditional tort principles. only happen when the court determines due to enactment of statutory immunities. ______it is necessary to ‘“bring its decisions into According to Justice Thomas, this reason is 1. Coleman v. East Joliet Fire Prot. Dist. (In re agreement with experience and newly problematic because in essence it indicates Estate of Coleman), No. 117952, 2016 Ill. LEXIS ascertained facts.”13 There is nothing new that the public duty rule did not survive the 257, at *19 (Ill. Jan. 22, 2016). 2. Id. at *1. with respect to state immunity laws that was enactment of Tort Immunity Act. This is 3. Id. at *32. not there when the Illinois Supreme Court contrary to what Justice Kilbride concedes 4. Id. at *32. decided Harinek. Thus, the lead opinion in his opinion when he writes that the 5. Id. at *33. cannot use legislative’s enactments, which issue of duty and immunity are separate 6. Id. at *35. 7. Id. at *40. predate Harinek, as newly ascertained facts and distinct inquiries and that this court 8. Id. at *37. that warrant departure from stare decisis. has consistently held that “the public duty 9. Id. at *43. In other words, what the lead opinion cites rule survived the abolition of sovereign 10. Id. at *48. as a reason to depart from stare decisis is immunity and passage of the Tort Immunity 11. Id. at *48. not new and had existed when the Harinek Ac t .” 14 12. Id. at *49. 13. Id. at *50. court decided that public duty rule is well Additionally, it is interesting that 14. Id. at *30, *53. and alive. Justice Thomas notes in a footnote that 15. Id. at *63 n.5 The second problem with what the the lead opinion failed to point out that 16. Id. at *63 n.5. lead opinion cites as reason number two is “at the precise time Corretta Coleman 17. Id. at 62 n.5. 18. Id. at *63 n.5. that the statutory carve-out for willful and called the Will County 911 operator, this
The unauthorized practice of law: A case study
By Patrick M. Kinnally
In late 2010, after several years on to employ “the land patent process” to 205/1), which was declined. Undeterred, I the Board of Directors, I happened to avoid foreclosure by filing liens with plowed ahead, pro bono, for the KCBA. Not become the President of the Kane County Kane County Recorder, Sandy Wegman. to do so was not a choice. Practicing law Bar Association (“KCBA”). At that time, See, 2010 K 081645 (12/1/10). And, as is a privilege earned which provides those Dean Frieders, who was on the Board, Attorney Frieders would later testify, he we serve with the protections of our rule brought to the KCBA’s attention that a man was accepting money for such advice. The of law. named Robert Sperlazzo (“Sperlazzo”) KCBA asked me to look into the matter. I On March 3, 2011, on behalf of the was practicing law without a license to requested the Kane County State’s Attorney KCBA, I filed a verified civil injunction do so. He was advising persons who were bring a complaint against Sperlazzo for the complaint against Sperlazzo to prohibit his in real estate foreclosure proceedings unauthorized practice of law (705 ILCS unauthorized practice of law (“UPL”) (2011
10 MR 118). recognized that minimum levels of would anyone do that? So he could Sperlazzo was served with summons. education, training, and character are discuss the Magna Carta? So he might The case was assigned to Judge Thomas required to be earned before the Supreme gain notoriety for himself and portray Mueller in the Kane County Circuit Court will confer a license to practice the trial court as a spectacle; request the Court’s Chancery Division. After evidence law. This is for protection of the public. investigation of the Honorable Thomas E. was taken by Attorney Frieders on the See, Chicago Bar Association v. Quinlan Mueller; and, as some putative court hold Verified Complaint, an injunction was and Tyson, Inc., 34 Ill.2d 116 (1966). The Judge Mueller in contempt; and, then issue issued by Judge Mueller on March 21, purpose of such an injunction against a “warrant” for Judge Mueller’s arrest at 2011, prohibiting Sperlazzo, a non-lawyer, UPL is to protect the public from the his home? All of these facts and exhibits from practicing law. I never envisioned hazards and potential injury that can result were included in Sperlazzo’s First Amended this rather uncomplicated claim would from those who are not trained with the Declaration. consume over 150 hours of my time in knowledge and responsibility of a licensed For governmental defendants, the ensuing two plus years. In the end, attorney. See, also, King v. First Capital Sperlazzo’s claims may seem specious it became a testament to the KCBA, our Financial Services, 215 Ill.2d 1 (2005). bravado. They were. But for private Judiciary, the Kane County State’s Attorney, Next, on December 16, 2011, Mr. defendants who seek capital to run their and private lawyers who believe UPL is an Sperlazzo, filed a “mandamus” Complaint businesses, try explaining such a claim to activity which denigrates our legal system. in 11 L 700 against the KCBA; Judges a bank who extends credit to private law When Sperlazzo finally appeared on Mueller, Brawka and Schreiber; the Kane firms to operate their businesses when, at April 29, 2011, the injunction was sought County Sheriff, Patrick Perez; the process that time, the American banking system to be enforced by virtue of a civil contempt server, Robert Murbach; Attorney Dean was on tenterhooks. I had to do just, that. proceeding, yet he claimed not to be Robert Frieders; KCBA’s general counsel, Dan After endless motion practice, delay, and Sperlazzo, but rather Robert Dale of the Whiston, and his law firm; and myself, and the arrival of out of state sovereign citizens House of Sperlazzo. my law firm. Later, for good measure, he who attempted to intervene (11 L 700, Later, he attempted to remove the case added as defendants our Attorney General, March 8, 2012), Judge Brown dismissed to Federal court, which was dismissed on Lisa Madigan, and a private Attorney, Sperlazzo’s claims with prejudice in their its merits (11-cv-7472). Subsequently, on Peter Bastian, who sought to foreclose a entirety. This was based on my second December 9, 2011, Judge Judith Brawka, mortgage for a lender for nonpayment by Motion to Dismiss, which was fully briefed the Presiding Judge of the Kane County Sperlazzo on Sperlazzo’s real estate. The ad and argued. I commend Judge Brown for Civil Division, issued an order asking damnum sought $4 million. his patience, calm demeanor and fairness. the State’s Attorney to review the case for This case was assigned to Judge F. Keith This was so even though he was forced whether criminal contempt proceedings Brown. At this point, since I was now a to quell my advocacy on more than one should be considered. defendant in the “mandamus” declaration occasion. We sparred. He was much better The fact that Sperlazzo practiced (11 L 700), my representation of the than I in entertaining Sperlazzo’s fatuous law was well documented. I discovered KCBA in the pursuit of the civil contempt soliloquies which, frankly, I considered that Sperlazzo had practiced in DuPage proceeding of Sperlazzo in the UPL drivel and a waste of time. For another County and the United States Bankruptcy injunction pending before Judge Brawka example of sovereign citizen employing the Court in the Northern District of Illinois was no longer possible. (Judge Mueller land patent gimmick, see Parkway Bank and acted as “court” in that venue. (Lisle had recused himself.) For some reason, v. Korzen, 2013 IL.Ap. (1st) 130380. Our Savings Bank v. Pajian, 2009 CH 00626; never explained, the KCBA, much to my litigation would drag on until the Appellate US Bankruptcy Court, N. D. Ill. 10-43610). dismay, never pursued the civil contempt Court finally affirmed the dismissal Also, he appeared in a bankruptcy tribunal of Sperlazzo for violation of the UPL of Sperlazzo’s action on June 26, 2013. in the State of Oklahoma. (Talitha Day injunction issued by Judge Mueller. Sperlazzo v. Kane County Bar Assn., Second Sperlazzo v. Wells Fargo Bank, 11-01035-R, He complained in 11 L 700 that the District Appellate Court-No. 2-12-1377. N.D. Oklahoma). And, later that Sperlazzo Court was without jurisdiction over Sperlazzo’s Amended Declaration signed an order as a “judge” in GMAC him. In the first paragraph of the First proffered claims against all defendants Mortgage, LLC v. Kostelny, 2010 CH 3157, Amended Declaration Sperlazzo said he for civil conspiracy, trespass, fraud upon Sixteenth Judicial Circuit, Kane County, was “the de jure original, competent and the court and malfeasance. It covered 218 Illinois, on August 24, 2011. This later fiat one Supreme Court of record.” And, again pages, contained 900 paragraphs of text was after the temporary restraining order in violation of our court’s order he filed his and 226 pages of exhibits. It alleged that I and preliminary injunction were entered own order of default accusing me and the committed “inland piracy”, was involved by Judge Mueller prohibiting him from KCBA of being “enemy alien agents.” in “peonage”, bribery and engaged in some practicing law in 2011 MR 118. Thereafter, as a self-styled judge, conspiracy because Judge Mueller was a The propriety of the injunction was Sperlazzo issued orders which vacated member of the KCBA. unassailable. Our Supreme Court has Judge Mueller’s injunction order. Why Frankly, I have been accused of a
11 Trial Briefs Non-Profit Org. Illinois Bar Center U.S. POSTAGE Springfield, Illinois 62701-1779 PAID Springfield, Ill. May 2016 Permit No. 820 Vol. 61 No. 8
The unauthorized practice of law: A case study
Continued from page 11
lot of things. Irascibility comes to the (1st) 093547-B (1990). This includes the sentencing hearing, Judge Gunnarsson mind of many of my foes; perhaps self- not belittling our system of justice with found Robert Sperlazzo in contempt righteousness. But inland piracy and pleadings which are inane, saying our of court and sentenced him to jail for peonage are firsts. judges were engaged in bribery and six months on November 26, 2013. The On another front, the Kane County operated “kangaroo courts”; entering appeals filed by Sperlazzo from Judge State’s Attorney, through Assistant State’s orders as a purported judge which were Gunnarsson, has been affirmed. People v. Attorney Joe Cullen, entered this fray and false; and, failing to do what Judge Mueller Robert Dale (2015 IL. App (2d) 131252-U) finally got interested and filed a criminal prohibited Sperlazzo from doing, namely, One may wonder whether what complaint for contempt of Court. (12 CC practicing law without a license. transpired beginning on March 3, 2011, 4, 24). The criminal contempt case was tried merited the time, talent and expense of The matter was assigned to Judge before Judge Gunnarsson. Joe Cullen’s what became unfathomable litigation. Such Val Gunnarsson from Carroll County, complaint contained 26 counts. Again, a notion, however, does a disservice to our who heard the case without a jury in the Mr. Sperlazzo attempted to remove the system of justice. UPL maligns what we, as courthouse on Third Street in Geneva, case to Federal Court. This was dashed. lawyers, judges and court actors, uphold Illinois. The criminal contempt proceeding Basically, Joe Cullen would prove that as the rule of law. We must be vigilant in against Sperlazzo increased the possible Sperlazzo’s activity not only in the upholding that principle or we diminish UPL sanctions since a penalty could injunction case, but the mandamus action, its importance. My thanks go to our State’s include incarceration. This is because the were false but undertaken with the aim Attorney through Joe Cullen, our Judiciary, nature of such a proceeding is to preserve of undermining our system of justice private lawyers, and the KCBA for making respect for judges and those involved in through the unauthorized practice of law. paramount why the unauthorized practice our judicial system when they are doing Sperlazzo was represented by counsel. Dan of law has no quarter in Kane County. their jobs. See, People, ex.rel., City of Whitson, as did I, testified at the contempt Hopefully, my involvement helped in some Chicago v. LeMirage, Inc., 2013 IL.App. proceeding before Judge Gunnarsson. At small way.