Quick Takes on Illinois Supreme Court Opinions Issued Thursday, September 19, 2019
The Illinois Supreme Court handed down four opinions on Thursday, September 19. In Accettura v. Vacationland, Inc., the court clarified the distinction between rejection and revocation of acceptance for purposes of the Illinois version of the Uniform Commercial Code. In Carmichael v. Union Pacific Railroad Co., the court provided instruction on what is a proper counterclaim under section 2-608 of the Code of Civil Procedure and explained that a counterclaim is an independent, substantive cause of action that seeks affirmative relief and must stand or fall on its own merits. In People v. Custer, the court considered whether to extend the procedures established in Krankel and its progeny to proceedings commenced under the Post-Conviction Hearing Act and declined to do so. In People v. Smith, the court upheld the convictions of two defendants for aggravated battery of a senior citizen.
By Michael T. Reagan, Law Offices of Michael T. Reagan
Plaintiffs purchased a recreational vehicle from defendant in late April. In June, they discovered water leaking into the vehicle from an emergency exit window. They returned the vehicle, and it was repaired. In July, during a rainstorm, the RV leaked extensively. Defendant, unable to repair the defect itself, and the manufacturer, who was to undertake a repair, could not provide an estimate as to how long the repair would take. On August 2, plaintiffs verbally revoked acceptance of the RV, which was confirmed by letter from plaintiffs’ counsel in late September after the RV was repaired.
Plaintiffs filed suit on four theories; defendant moved for summary judgment on all of them, primarily arguing that plaintiffs’ failure to give it a reasonable opportunity to cure was fatal to all claims. Summary judgment was granted on the basis argued by defendant. Plaintiffs appealed, but only on the theory of revocation of acceptance under the UCC, 810 ILCS 5/2-608(1)(b).
Section 2-608 of the UCC provides that the buyer may revoke his acceptance when a “non-conformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that it’s non-conformity would be cured and it has not been seasonably cured; or (b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or the seller’s assurances.” Because these plaintiffs were unaware of any defect at the time they accepted it, the court stated that subsection (a) cannot apply because by its plain language it contemplates a buyer who accepted a good she knew to be non-conforming on the assumption that it’s non-conformity would be cured. The court then turned to interpretation of subsection (b), and stated that the issue is one of first impression. The arguments advanced by plaintiffs’ counsel appear to have been finely honed to this case, and the court agreed, reversing the entry of summary judgment. Plaintiff argued that a buyer who knows of a non-conformity at the time of purchase must give the seller a reasonable time to cure, but the buyer who is not aware of the non-conformity can return the product to the seller and revoke acceptance, as long as the leak substantially impairs the value of the item.
Justice Garman’s opinion for a full and unanimous court is a model of concision. Because the plain language of the statute was found to control, and because of the clarity of the opinion, any attempt to summarize it would be both unwise and unnecessary. The essence of the court’s holding is as follows: “Defendant’s argument ignores the distinction between rejection and revocation of acceptance. A buyer may reject goods if they ‘fail in any respect to conform to the contract.’ (2-601) Once the buyer accepts the goods, however, he may only revoke that acceptance if the ‘non-conformity substantially impairs its value to him.’ (Section 608(1)) When a buyer rejects non-conforming goods, the seller may have a right to cure. In the case of a revocation, however, … ‘the seller, in turn, loses the right to cure, but gains the benefit of the higher substantial impairment standard for revocation.’”
The opinion contains an interesting discussion of the treatment of the issue on a national basis, in that the Illinois version of the UCC is in keeping with the code. The court makes clear, though, that its lodestar throughout is the words of the statute, without an overlay of policy considerations.
By Joanne R. Driscoll, Forde Law Offices LLP
Rather than answer the issues addressed by the circuit and appellate courts, the supreme court turned its attention to a more basic procedural question, giving elementary instruction on what is a proper counterclaim under section 2-608 of the Code of Civil Procedure (735 ILCS 5/2-608 (West 2010)). As the court explained in a unanimous opinion written by Justice Burke, a counterclaim is an independent, substantive cause of action that seeks affirmative relief. It must stand or fall on its own merits. A counterclaim that requests no affirmative relief and only seeks to defeat the plaintiff’s claims, as was the case here, is an affirmative defense, not a counterclaim, and must be stricken.
The procedural facts are convoluted. Of relevance, the plaintiff (Carmichael) brought a chancery action against Professional Transportation, Inc. (PTI), which operated the transport van in which she was injured while riding as a passenger. She sought a declaration that PTI was liable to her for its failure to obtain uninsured and underinsured coverage in amounts that complied with section 8-101(c) of the Vehicle Code (625 ILCS 5/8-101(c) (West 2010)). PTI answered and raised a number of affirmative defenses, including that section 8-101(c) was unconstitutional and that Carmichael could not assert a private right of action under that provision. PTI also filed a counterclaim against the state of Illinois and Carmichael directed only at the constitutionality of section 8-101(c).
The state moved to dismiss the counterclaim because PTI failed to follow the notice requirements of Supreme Court Rule 19 (eff. Sept. 9, 2006) and, alternatively, on the merits or on nonconstitutional grounds, namely, that section 8-101(c) did not provide a private right of action. Ultimately, the circuit court granted the state’s motion to dismiss the counterclaim with prejudice, finding that each alleged constitutional ground lacked merit. The court also denied PTI’s renewed motion to dismiss Carmichael’s complaint, holding that section 8-101(c) provided an implied right of action.
After Carmichael voluntarily dismissed her complaint without prejudice, PTI filed a notice of appeal seeking review of the order dismissing its counterclaim on constitutional grounds. While the appeal was pending, Carmichael refiled her complaint, and the matter was stayed by the trial court. The appellate court, at PTI’s urging, decided the appeal on nonconstitutional grounds. It held that there was no implied private right of action and that Carmichael’s complaint should have been dismissed. According to the appellate court, this holding rendered the constitutional issues moot.
The supreme court vacated the orders of the circuit and appellate courts, holding that PTI’s counterclaim was improper. As to Carmichael, the counterclaim did not state an independent claim; it was duplicative of PTI’s affirmative defenses. As to the state, the counterclaim was improper because PTI failed to comply with the notice requirements of Supreme Court Rule 19 when raising constitutional challenges to a statute.
The court concluded by criticizing the parties and the lower courts for treating PTI’s counterclaim like a complete, independent cause of action, which led to several procedural irregularities. PTI was able to obtain review of the circuit court’s private right of action ruling made in the context of denying PTI’s motion to dismiss Carmichael’s complaint, a nonfinal order. The appellate court effectively addressed that issue even though Carmichael’s complaint was voluntarily dismissed and subsequently refiled and was pending in the circuit court. Electing not to reward PTI for filing an improper counterclaim and circumventing the normal appellate process, the supreme court refused to exercise its supervisory authority to reach the constitutionality and private right of action issues raised in PTI’s affirmative defenses. The matter was remanded to the circuit court to allow PTI to proceed on its affirmative defenses as if the counterclaim had never been filed.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Krankel, 102 Ill.2d 181 (1984), in which the defendant filed a post-trial motion alleging ineffective assistance of counsel because counsel failed to either investigate or present an alibi defense, the state conceded, and the Illinois Supreme Court held, that the defendant should have been provided different counsel to represent him at the hearing on that motion. The common-law procedure that evolved from Krankel requires trial courts to conduct some type of inquiry into the underlying factual basis, if any, of the defendant’s post-trial claims of counsel’s ineffectiveness and, where the allegations show possible neglect of the case, appoint new counsel. In People v. Custer, the supreme court considered whether to extend the procedures established in Krankel and its progeny to proceedings commenced in the Post-Conviction Hearing Act and declined to do so.
The Post‑Conviction Hearing Act provides a three‑step mechanism for a prisoner to assert that his conviction was obtained through a substantial denial of his constitutional rights. 725 ILCS 5/122-1 et seq. First, the circuit court reviews the post-conviction petition to determine whether it presents the gist of a constitutional claim. If there is, the petition moves to the second stage, during which the circuit court may appoint counsel to represent an indigent petitioner, and counsel is given the chance to amend the pro se petition. The state is required to either answer or move to dismiss the petition; if the petition is not dismissed, the matter advances to the third stage, during which an evidentiary hearing is conducted.
In Custer, the defendant filed a pro se post-conviction petition, in which he alleged that his trial counsel in a 2010 drug case had been ineffective for failing to appeal or move to withdraw his guilty plea. The petition was advanced to the second stage; appointed counsel amended the petition and attached affidavits. The court advanced the case to the third stage, an evidentiary hearing, after which the circuit court took the matter under advisement. Before the circuit court ruled, the defendant wrote a letter to the court and complained that post-conviction counsel was ineffective. The defendant also filed a motion to reconsider the circuit court’s ruling, even though the court had not yet ruled. When the court did rule, it denied the defendant’s post-conviction petition and declined to address the defendant’s motion to reconsider.
Custer appealed, but then moved to dismiss the appeal and requested that the Appellate Court, Third District, order the circuit court to rule on his motion to reconsider. The appellate court dismissed the appeal and remanded for a ruling on the pro se motion to reconsider. When that was denied, the defendant filed a second post-conviction appeal, and argued that the trial court erred in denying his reconsideration request without first conducting a hearing as required by Krankel and its progeny. Although the appellate court acknowledged that the procedures in Krankel had never been extended to post-conviction proceedings, it remanded the matter to the circuit court for a Krankel-like hearing into the defendant’s claims. The Illinois Supreme Court granted the state’s petition for leave to appeal.
Thus, the question presented to the Illinois Supreme Court was whether the holding in Krankel, mandating a preliminary inquiry into the factual basis for a defendant’s pro se claim that trial counsel provided ineffective assistance should be extended to claims involving post-conviction counsel. To answer this question, Justice Kilbride, writing for a unanimous court, first examined the policies and underlying proceedings set forth in the Post-Conviction Hearing Act and noted that the right to counsel set forth in the act is a matter of legislative grace rather than a constitutional right. As a result, it has long been held that post-conviction petitioners are entitled only to a reasonable level of assistance, rather than the standard applicable to trials. This is partly because defendants at trial are presumed innocent, a presumption that no longer applies to post-conviction petitioners.
Nonetheless, the court considered whether extending the procedures established following Krankel should be expanded to post-conviction counsel. The court determined that Krankel-like procedures were not needed to limit issues on appeal—the primary reason for the establishment of such procedures—in post-conviction cases, because the potential appealable issues are far fewer in number in those cases. The court also noted the need for finality when a guilty plea is entered. The matter was remanded, however, so that the appellate court could consider the issues that had not been considered by it given the manner in which it had resolved the case.
By Kerry J. Bryson, Office of the State Appellate Defender
VFW commander William Burtner was on his way to the bank to deposit cash and checks from a fundraiser when he was approached by Smith, struck once, and fell to the ground. Smith ran off with a portion of the money and got into a car driven by Brown. Burtner suffered pain, bruises, and had difficulty breathing. He died three days later of a heart attack.
Smith and Brown were acquitted of felony murder but convicted of robbery and aggravated battery to a senior citizen. The appellate court vacated the aggravated battery conviction under one-act, one-crime principles. The supreme court issued a supervisory order directing the appellate court to reconsider in light of People v. Coats, 2018 IL 121926. The appellate court found Coats distinguishable and upheld its prior conclusion.
The supreme court disagreed with the appellate court. The first issue in one-act, one-crime analysis is to determine whether there was a single physical act or multiple physical acts. An act is any overt or outward manifestation that would support a different offense. Smith and Brown argued that both the aggravated battery and the robbery were accomplished by a single, physical act—punching Burtner.
Under Coats, two offenses can be supported by a common act if the common act is part of both offenses or if the common act is part of one offense and the only act of another. Here, punching Burtner was the only physical act of the aggravated battery and was also the force element of robbery, but the robbery involved the additional act of taking property from Burtner.
The supreme court rejected the defendants’ argument that the robbery was complete when Burtner dropped the money and that therefore the taking of the money was not part of the robbery and therefore was not a separate physical act. While dispossessing a victim of property is the minimum conduct required to complete the offense of robbery, a robbery only ends once the force and taking have ceased. Thus, the taking was a separate physical act here.
The second consideration in one-act, one-crime analysis is whether, considering their statutory elements, one offense is a lesser included of the other. Defendants here made no argument that the aggravated battery was a lesser included offense of robbery, and the supreme court agreed there was no lesser-included offense problem here.