Themas v. Green's Tap, Inc.
16 N.E.3d 875
Ill. App. Ct.2014Background
- Gail Themas sued Green’s Tap after a fan allegedly severed the tip of her finger; her complaint included a demand for a jury trial.
- Green’s Tap filed a third-party complaint against Mt. Carroll Insurance Agency, alleging the agency failed to obtain general liability insurance (only dramshop coverage). The third-party complaint did not demand a jury; Mt. Carroll answered and filed its own jury demand.
- Themas and Green’s Tap settled: Green’s Tap paid a small cash sum and assigned its claim against Mt. Carroll to Themas.
- After assignment, Mt. Carroll moved to withdraw its jury demand; Themas objected, contending her original jury demand covered the assigned claim. The trial court allowed withdrawal and held a bench trial, entering judgment for Mt. Carroll.
- Themas appealed, arguing the trial court erred by disregarding her jury demand as to the assigned claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Themas’s jury demand on her original complaint covers the claim she received by assignment (third-party claim against Mt. Carroll) | Themas: her timely jury demand filed when the action commenced applies to the assigned chose in action; assignment transfers the claim (not procedural posture) so her demand carries over | Mt. Carroll: Themas stepped into Green’s Tap’s position and must take the case as found; Green’s Tap did not demand a jury on the third-party complaint, so no jury right attaches | The court held Themas’s original jury demand applied to the assigned claim; proceeding to bench trial was error — reversal and remand |
| Whether the notice of appeal was sufficient to challenge the denial of a jury trial | Themas: appealing the final judgment after a bench trial properly challenges denial of a jury trial; earlier order allowing withdrawal was a procedural step | Mt. Carroll: notice did not specify the earlier order allowing withdrawal of the jury demand | The court held the notice of appeal was proper; the withdrawal order was a procedural step leading to the final judgment |
Key Cases Cited
- Burtell v. First Charter Service Corp., 76 Ill. 2d 427 (Ill. 1979) (an earlier interlocutory order may be deemed included in a notice of appeal if it was a procedural step leading to the appealed judgment)
- Baldassari v. Chelsa Development Group, Inc., 195 Ill. App. 3d 1073 (Ill. App. Ct. 1990) (addresses timeliness of jury demands when parties fail to file timely demands; does not control where assignee already has a jury demand)
- Hernandez v. Power Construction Co., 73 Ill. 2d 90 (Ill. 1978) (Illinois Constitution guarantees the right to a jury trial and statutes regulating it are liberally construed)
- North American Provision Co. v. Kinman, 288 Ill. App. 414 (Ill. App. Ct. 1937) (party cannot be deprived of jury trial absent waiver)
- Aetna Screw Products Co. v. Borg, 116 Ill. App. 3d 206 (Ill. App. Ct. 1983) (a party who files a jury demand cannot be deprived of a jury absent waiver or other limiting circumstances)
- Drovers National Bank of Chicago v. Ferrell, 14 Ill. App. 3d 389 (Ill. App. Ct. 1973) (discusses jury demand requirements for third-party complaints)