                                  Illinois Official Reports

                                          Appellate Court



                       Themas v. Green’s Tap, Inc., 2014 IL App (2d) 140023



Appellate Court              GAIL THEMAS, Plaintiff-Appellant, v. GREEN’S TAP, INC.,
Caption                      Defendant and Third-Party Plaintiff (Mt. Carroll Insurance Agency,
                             Inc., Third-Party Defendant-Appellee).


District & No.               Second District
                             Docket No. 2-14-0023


Filed                        August 18, 2014


Held                         Where plaintiff sued defendant tavern for the loss of her fingertip in a
(Note: This syllabus         fan and ask for a jury trial, and then the tavern filed a third-party
constitutes no part of the   complaint against its insurance agency alleging that the agency
opinion of the court but     obtained dramshop insurance for defendant but failed to obtain
has been prepared by the     general liability coverage, the agency answered the third-party
Reporter of Decisions        complaint and demanded a jury trial and the tavern settled with
for the convenience of       plaintiff and assigned her its third-party claim against the agency, the
the reader.)                 trial court’s subsequent judgment for the agency following a bench
                             trial on the third-party complaint, after the agency withdrew its jury
                             demand, was reversed and the cause was remanded for further
                             proceedings on the ground that the trial court erred in disregarding
                             plaintiff’s jury demand and proceeding with a bench trial on the
                             third-party complaint, since the jury demand plaintiff filed with her
                             initial complaint applied to the assigned claim she had against the
                             insurance agency.


Decision Under               Appeal from the Circuit Court of Carroll County, No. 08-L-15; the
Review                       Hon. Daniel A. Fish, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               H. Kent Heller, of Heller, Holmes & Associates, P.C., of Mattoon, for
     Appeal                   appellant.

                              Anthony J. Tunney and Robert E. Elworth, both of HeplerBroom,
                              LLC, of Chicago, for appellee.


     Panel                    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 liability 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



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       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)).
¶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.
¶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


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       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 them $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.




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