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Themas v. Green's Tap, Inc.

Court of Appeals of Illinois, Second District

August 18, 2014

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

Appeal from the Circuit Court of Carroll County. No. 08-L-15. Honorable Daniel A. Fish, Judge, Presiding.

SYLLABUS

Where plaintiff sued defendant tavern for the loss of her fingertip in a fan and ask for a jury trial, and then the tavern filed a third-party complaint against its insurance agency alleging that the agency obtained dramshop insurance for defendant but failed to obtain general liability coverage, the agency answered the third-party complaint and demanded a jury trial and the tavern settled with plaintiff and assigned her its third-party claim against the agency, the 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.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

Page 876

SCHOSTOK, JUSTICE.

[¶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 specified in the notice of appeal." Burtell v. First Charter Service Corp., 76 Ill.2d 427, 435, 394 N.E.2d 380, 31 Ill.Dec. 178 (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, 553 N.E.2d 98, 142 Ill.Dec. 748 (1990), which Mt. Carroll cites in its argument on the ...


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