Quick takes on Thursday's Illinois Supreme Court opinions

Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Bonhomme v. St. James and In re Marriage of McGrath and the criminal case People v. Kinney.

CIVIL

Bonhomme v. St. James

By Michael T. Reagan, The Law Offices of Michael T. Reagan

Bonhomme v. St. James, while involving a most unusual set of facts, reaffirms a procedural requirement of longstanding and hews closely to the existing scope of the tort of fraudulent misrepresentation.

The female defendant posed as a man named Jesse James under the user name of Auboy in the internet chatroom dedicated to the television series "Deadwood." The female plaintiff and the ostensibly male Jesse began an online romantic relationship. In inadequate summary, the defendant not only maintained that relationship with plaintiff but also "created a universe of approximately 20 fictional online characters either related to or involved with Jesse," who also communicated with plaintiff. Defendant also communicated with plaintiff in her own name, representing that she knew Jesse. In person meetings were arranged, canceled, and then arranged again in different variations. Plaintiff was told once that Jesse had attempted suicide, and later that "he" had died of cancer. Plaintiff entered a deep depression, engaged in therapy, and lost earnings.

Plaintiff's second amended complaint, with numerous counts, was dismissed in its entirety with prejudice, with the sole exception of a count for fraudulent misrepresentation, which was dismissed without prejudice. Plaintiff filed a third amended complaint which contained the single count of fraudulent misrepresentation, which was subsequently dismissed with prejudice.

The appellate court unanimously affirmed the dismissal of all of the counts other than the one for fraudulent misrepresentation on the ground that those counts had been abandoned in that they were not incorporated in the third amended complaint. However, in a divided opinion, with Justice Schostok dissenting, the court reversed the dismissal of the claim for fraudulent misrepresentation.

The bulk of the supreme court's opinion by Justice Thomas is devoted to explaining the rule that when an amended complaint is filed which neither references nor incorporates the previously dismissed counts, those counts are to be regarded as abandoned, thereby resulting in a waiver of appellate review of their dismissal. The question often arises in day-to-day practice of how preservation of those dismissed counts is to be accomplished. Footnote 1 states that "[A] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff is preserving the dismissed portions of the former complaints for appeal is sufficient.."

There could be no remaining doubt as to how seriously this rule is to be enforced. The opinion states that the result of waiver would obtain even if a trial court (not here) expressly assured the defendant that the unpled counts would be preserved for review. Very usefully, the opinion discusses the practical and policy considerations which underlie this rule. The purpose of the rule "is to ensure that the court and the defendant possess objective means of knowing with certainty which claims the plaintiff is pursuing, as well as to ensure that a cause proceeds to trial only on the claims contained in the final amended complaint."

The supreme court reversed the divided appellate court's reversal of the dismissal of the fraudulent misrepresentation count, stating that the tort does not extend to purely personal matters without a commercial or regulatory component. Even though the court found that the relationship at issue was "built wholly on one party's relentless deceit," it was purely personal. "The veracity of representations made in the context of purely private personal relationships is simply something the state regulates or in which the state possesses any kind of valid public policy interest. The court relied on its 2008 opinion in Doe v. Dilling involving an alleged misrepresentation of the HIV status of a person involved in a relationship.

It is extraordinarily unlikely that the facts of this opinion will serve as a springboard for any future petition for leave to appeal, though the second footnote will be helpful sometime. However, the court nonetheless spoke broadly on the procedural question, the specific tort of fraudulent misrepresentation and the role of the law in human interactions.

In re Marriage of McGrath

By Alyssa M. Reiter, Williams Montgomery & John Ltd.

McGrath addressed a unique family law issue: “whether money that an unemployed parent regularly withdraws from a savings account may be included in the calculation of net income when setting child support under section 505 of the Illinois Marriage and Dissolution of Marriage Act….”  The Supreme Court held that it may not.

Section 505 provides guidelines for setting child support based upon a percentage of the party’s “net income.”  “Net income” is defined as “the total of all income from all sources.”  The Act does not, however, define the term “income.”  The Court applied the ordinary meaning of “income,” which was essentially an “increment or addition” to one’s assets or valuable goods and services “received.”  The Court held that the money withdrawn from a savings account was not an “increment” in assets nor was it “received” because the money already belonged to the account holder.

Accordingly, the regularly withdrawn amounts could not be used as part of the “net income” when calculating the amount of child support based upon the statutory percentage.  However, the Court recognized that there was still room for the trial judge to adjust the amount of child support.  Section 505 allows a court to deviate from the guidelines if it determines that the amount generated is inappropriate.  One consideration for deviating is the financial resources of the non-custodial parent (who, in this case, had “considerable assets”).  Thus, the Court reversed and remanded for a new calculation.

CRIMINAL

People v. Kinney

By Kerry J. Bryson, Office of the State Appellate Defender

The Will County State’s Attorney brought this mandamus action in the Illinois Supreme Court seeking an order directing the circuit court to impose an enhanced DUI sentence based, in part, on a prior uncounseled misdemeanor conviction for DUI.

Michael Drew, faced sentencing for aggravated DUI – a non-probationable, Class 2 felony. The offense was aggravated based on defendant’s having three prior DUI convictions.  One of those prior convictions arose in Bureau County in 2000. Drew argued that the Bureau County conviction, which was a misdemeanor, could not be used to enhance the current offense because he had not been represented by counsel in that matter. Drew relied on People v. Finley, 209 Ill. App. 3d 968 (3d Dist. 1991), where the court had followed Baldasar v. Illinois, 446 U.S. 222 (1980), and held that a prior uncounseled misdemeanor conviction could not be used to enhance a current offense. The State argued that Finley was no longer good law because Baldasar had been overruled by Nicols v. U.S., 511 U.S. 738 (1994). The circuit court judge concluded that he was bound to follow Finley, because it was never expressly overruled, and imposed a term of probation.

In a unanimous decision, the Supreme Court granted mandamus. Because Nicols had expressly overruled Baldasar, the Court expressly overruled Finley. The Court was not persuaded by the argument that Nicols was inapplicable to the instant case because Nicols involved only the potential for imprisonment while the instant offense carries a mandatory term of imprisonment.

By overruling Finley, this case represents a departure from current Illinois law. Uncounseled misdemeanor convictions can now be used to enhance a sentence for a subsequent offense.