By Steven R. Merican

Following are summaries of selected opinions recently issued by the Illinois Supreme Court:

IRMO Collingbourne, 2003 Ill. Lexis 780, Docket No. 94677 (5/22/03). Custodial parent does not have to show a "direct benefit" to the child in order to prevail on a petition to remove the child to another jurisdiction. Several years after her divorce from Geoff, Soryia wanted to remarry and move to Massachusetts with her son, Tyler. The parties’ marital settlement agreement gave them joint custody of Tyler; Soryia was the custodial parent. After hearing detailed testimony, the circuit court granted the petition to remove Tyler to Massachusetts.

The appellate court reversed, finding insufficient evidence that the move would provide Tyler a substantial direct benefit. The appellate court acknowledged that Tyler may receive an indirect benefit by virtue of the benefits his mother would experience from the move. But the appellate court concluded that those indirect benefits were outweighed by Tyler’s interest in maintaining a close relationship with his father and his extended family in Illinois.

The supreme court reversed, and upheld the circuit court’s ruling that allowed the removal petition. A substantial part of the opinion centered on the nature of the custodial parent’s evidentiary burden to show that removal is in the child’s best interest. The parties, and the appellate court, focused on whether a "direct benefit" to the child must be proven, or whether "indirect benefits" were sufficient. The supreme court stated that the distinction was "not particularly helpful," and "may divert focus from the real issue of whether the child’s general quality of life will be enhanced by the move."

The court stated that "some deference is due to the custodial parent who has already determined the best interests of her child." Quoting from a prior opinion, the court reiterated that the "best interest of children cannot be fully understood without also considering the best interest of the custodial parent." The court stated that giving deference to the custodial parent reflected the reality of divorce: "Adjustments and accommodations must be made as a result of the divorce, the whole point of which was to permit each parent to go on his or her own way. Within reason, both parties must be permitted to do so, and the child’s best interests must be served within that context."

Stephens v. Taylor, 2003 Ill. Lexis 1406, Docket No. 94597 (6/19/03). Party who was granted a new trial cannot appeal from issues raised in the first trial. Agnes Stephens sued defendants for malicious prosecution, intentional infliction of emotional distress, and violation of civil rights. A jury award in her favor of $150,000 was set aside, and a judgment was entered for defendants, because the court found that the jury’s award was inconsistent with a special interrogatory. Stephens filed a posttrial motion that requested (1) defendants’ judgment be vacated and her $150,000 verdict be reinstated, or (2) she be granted a new trial.

Stephens was granted a new trial. She also sought an appeal under Supreme Court Rule 306(a)(1), which authorizes permissive appeals from an order granting a new trial. The appellate court denied Stephens’s Rule 306 petition. A second trial resulted in a jury verdict in favor of defendants. Stephens then appealed from the final judgment, and argued that the first trial court committed error when it set aside her favorable verdict and granted a new trial.

The appellate court agreed, and rejected defendants’ argument that Stephens was precluded from raising issues that were the subject of the Rule 306 petition. Stephens maintained that she could not be precluded because she never had appellate review of the first trial court’s decision to set aside her verdict.

The supreme court disagreed that this was an "issue preclusion" case. Instead, the court framed the issue as "whether a party who requests a new trial and receives it can then challenge that ruling." Answering in the negative, the court reversed the appellate court and affirmed the result of the second trial, which Stephens lost.

The supreme court explained that Stephens’s conundrum was her own doing, and she therefore could not resurrect the first appeal. "While Stephens is correct that the verdict-inconsistency issue was never addressed on the merits, this is the case because there had not yet been a final judgment when she sought appellate review. And, more importantly, there was not yet a final judgment because Stephens requested and was granted a new trial. Her tactical decision to request a new trial precluded appellate review."

Brandt v. Boston Scientific Corp., 2003 Ill. Lexis 785, Docket No. 93982 (6/5/03). No cause of action against hospital for breach of warranty of merchantability for a defective product that was surgically inserted. Plaintiff suffered from incontinence. She was admitted to the Sarah Bush Lincoln Health Center for treatment. At the Health Center, plaintiff had a ProteGen Sling surgically inserted. Serious complications ensued, and ultimately the sling was removed. About a month after the sling was inserted, the manufacturer issued a voluntary recall because a significant number of patients had unacceptable complications.

Plaintiff sued the hospital for breach of warranty of merchantability. The appellate court affirmed a dismissal because the transaction between plaintiff and the Center was primarily for services, not goods, so the UCC’s warranty of merchantability did not apply.

The supreme court affirmed. Article 2 of the UCC applies only to transactions in goods. The court viewed the transaction between plaintiff and the Center as a mixed contract for goods and services – i.e., the Center "provided both medical services, such as an operating room, and goods, such as the sling, to facilitate treatment of plaintiff’s medical condition." Thus, the warranty would apply only "if the contract is predominantly for goods and incidentally for services."

The court reviewed the Center’s billing, and found that more than half of the charges were for services, not goods. Further the court inferred from the complaint that plaintiff "went to the Health Center for medical treatment for her urinary incontinence, rather than merely to buy a sling as one buys goods from a store." The court held that the transaction between plaintiff and the Center was predominantly a transaction for services, so article 2 of the UCC and the warranty of merchantability did not apply.

In re James E., 2003 Ill. Lexis 784, Docket No. 93608 (5/22/03). Patient admitted voluntarily to a private mental health facility is subject to an emergency involuntary commitment even absent a request by the patient for discharge. A patient who was suffering from substance-induced psychotic disorder was voluntarily admitted to St. Clare’s Hospital, a private institution. The patient was transferred to Alton Mental Health Center after St. Clare’s executed a petition for involuntary admission under the Mental Health and Developmental Disabilities Code. The State then filed a petition to have the patient involuntarily admitted to Alton. The petition asserted that because of the patient’s mental illness, "he was reasonably expected to inflict serious physical harm upon himself or another in the near future, and that he was in need of immediate hospitalization to prevent such harm."

A problem arose because the Mental Health Code authorizes a petition for involuntary admission only after the patient requests to be discharged. And the supreme court had held that a written request for discharge was a condition for a petition for emergency involuntary commitment. In this case, the patient did not request discharge.

The court affirmed the ruling that this patient was subject to involuntary admission. But the supreme court struggled to reconcile the result here with its prior holding requiring the written discharge request. The court preserved the general requirement that a written request for discharge must precede emergency involuntary commitment proceedings against voluntarily admitted patients, and announced a "narrow exception to this requirement … when a nonstate hospital can no longer adequately administer psychiatric treatment to a voluntarily admitted patient."