Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term that began today, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, March 15-17 and Tuesday, March 22, 2016. A total of 13 cases will be heard – 7 criminal and 6 civil. Here are the civil cases with the dates of oral argument: Carney v. Union Pacific Railroad Co., No. 118984 – March 16
Fattah v. Bim, No. 119365 – March 17
Moline School District No. 40 Board of Education v. Hon. Pat Quinn, No. 119704 – March 17
Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 – March 17
Valfer v. Evanston Northwestern Healthcare, No. 119220 – March 22
J & J Ventures Gaming, LLC v. Wild, Inc., Nos. 119870, 119871, 119872, 119873, 119874 (cons.) – March 22
The Court will hear several cases of interest this term, including Fattah v. Bim involving the implied warranty of habitability and J & J Ventures Gaming, LLC v. Wild, Inc., a case interpreting the Illinois Gaming Act. Below are abbreviated summaries for these two cases. Summaries for all these cases can be accessed by ALA members on the ALA website by clicking on our Cases Pending publication.
CONSTRUCTION LAW – IMPLIED WARRANTY OF HABITABILITY
No. 119365
Fattah v. Bim
The issue presented in this appeal is whether a subsequent purchaser of a home is bound by the initial purchaser’s waiver of the implied warranty of habitability, such that the subsequent purchaser is precluded from suing the developer for latent defects.
Defendants were residential real estate developers and constructed a home for sale. They sold it to the initial purchaser, who executed a waiver and disclaimer of the implied warranty of habitability, which became part of the real estate contract by incorporation. The waiver stated that it was binding on the purchaser and her successors. Several years later, the initial purchaser sold the home to Plaintiff as-is. Four months after Plaintiff moved into the home, the porch collapsed. He sued Defendants asserting, among other things, a breach of the implied warranty of habitability. Following a bench trial, the circuit court found in favor of Defendants, concluding that Plaintiff was bound by the initial purchaser’s waiver of the implied warranty of habitability. Additionally, the court noted that Plaintiff purchased the home as-is.
The Illinois Appellate Court reversed, holding that the initial purchaser’s waiver was not binding on Plaintiff because he had no knowledge of the waiver executed by Defendants and the initial purchaser and was not a party to that agreement. Furthermore, the appellate court held that the as-is provision was an agreement between Plaintiff and the initial purchaser and was not a waiver of the implied warranty of habitability as to Defendants.
Appellate Court Decision: 2015 IL App (1st) 140171, 31 N.E.3d 922. Palmer, J., with McBride and Reyes, JJ., concurring.
No. 119365
Fattah v. Bim
The issue presented in this appeal is whether a subsequent purchaser of a home is bound by the initial purchaser’s waiver of the implied warranty of habitability, such that the subsequent purchaser is precluded from suing the developer for latent defects.
Defendants were residential real estate developers and constructed a home for sale. They sold it to the initial purchaser, who executed a waiver and disclaimer of the implied warranty of habitability, which became part of the real estate contract by incorporation. The waiver stated that it was binding on the purchaser and her successors. Several years later, the initial purchaser sold the home to Plaintiff as-is. Four months after Plaintiff moved into the home, the porch collapsed. He sued Defendants asserting, among other things, a breach of the implied warranty of habitability. Following a bench trial, the circuit court found in favor of Defendants, concluding that Plaintiff was bound by the initial purchaser’s waiver of the implied warranty of habitability. Additionally, the court noted that Plaintiff purchased the home as-is.
The Illinois Appellate Court reversed, holding that the initial purchaser’s waiver was not binding on Plaintiff because he had no knowledge of the waiver executed by Defendants and the initial purchaser and was not a party to that agreement. Furthermore, the appellate court held that the as-is provision was an agreement between Plaintiff and the initial purchaser and was not a waiver of the implied warranty of habitability as to Defendants.
Appellate Court Decision: 2015 IL App (1st) 140171, 31 N.E.3d 922. Palmer, J., with McBride and Reyes, JJ., concurring.
PLA Allowed: 09/30/15
Oral Argument: 03/17/16
SUBJECT MATTER JURISDICTION – ILLINOIS GAMING ACT
Nos. 119870, 119871, 119872, 119873, 119874 (cons.)
J & J Ventures Gaming, LLC v. Wild, Inc.
This consolidated appeal concerns the circuit court’s subject matter jurisdiction over contract disputes arising out of the operation of video gaming terminals.
Under the Illinois Gaming Act (the “Act”) (230 ILCS 40/1 et seq.), the operation of a video gaming terminal is governed by a written use agreement between the owner of the terminal license and the owner of the establishment. Plaintiff J & J Ventures Gaming claimed to have an exclusive right to operate video gaming terminals at various establishments pursuant to its written use agreement with those establishments. Accel Entertainment Gaming, LLC likewise claimed that it had the right to operate video gaming terminals at those establishments under written use agreements it acquired by assignment. Plaintiff filed lawsuits in the circuit court against five establishments seeking a declaration that it was entitled to operate the video gaming terminals in those establishments. Accel Entertainment Gaming moved to intervene in each of those lawsuits. Following the decision in Triple 7 Illinois, LLC v. Gaming & Entertainment Management-Illinois, LLC, 2013 IL App (3d) 120860, the circuit court found in favor of Plaintiff.
On appeal, the Illinois Appellate Court, Fifth District, declined to follow Triple 7 and instead determined sua sponte that the Act granted the Illinois Gaming Board exclusive authority to decide the question of which written use agreement was controlling as a matter of administrative law. Accordingly, the appellate court determined that the circuit court lacked subject matter jurisdiction over Plaintiff’s declaratory judgment actions, vacated the circuit court’s orders, and dismissed the appeals. The appellate court then issued a certificate of importance in each case pursuant to Supreme Court Rule 316, allowing them to be heard by the Illinois Supreme Court.
Nos. 119870, 119871, 119872, 119873, 119874 (cons.)
J & J Ventures Gaming, LLC v. Wild, Inc.
This consolidated appeal concerns the circuit court’s subject matter jurisdiction over contract disputes arising out of the operation of video gaming terminals.
Under the Illinois Gaming Act (the “Act”) (230 ILCS 40/1 et seq.), the operation of a video gaming terminal is governed by a written use agreement between the owner of the terminal license and the owner of the establishment. Plaintiff J & J Ventures Gaming claimed to have an exclusive right to operate video gaming terminals at various establishments pursuant to its written use agreement with those establishments. Accel Entertainment Gaming, LLC likewise claimed that it had the right to operate video gaming terminals at those establishments under written use agreements it acquired by assignment. Plaintiff filed lawsuits in the circuit court against five establishments seeking a declaration that it was entitled to operate the video gaming terminals in those establishments. Accel Entertainment Gaming moved to intervene in each of those lawsuits. Following the decision in Triple 7 Illinois, LLC v. Gaming & Entertainment Management-Illinois, LLC, 2013 IL App (3d) 120860, the circuit court found in favor of Plaintiff.
On appeal, the Illinois Appellate Court, Fifth District, declined to follow Triple 7 and instead determined sua sponte that the Act granted the Illinois Gaming Board exclusive authority to decide the question of which written use agreement was controlling as a matter of administrative law. Accordingly, the appellate court determined that the circuit court lacked subject matter jurisdiction over Plaintiff’s declaratory judgment actions, vacated the circuit court’s orders, and dismissed the appeals. The appellate court then issued a certificate of importance in each case pursuant to Supreme Court Rule 316, allowing them to be heard by the Illinois Supreme Court.
Appellate Court Decision: 2015 IL App (5th) 140092, 38 N.E.3d 194. Stewart, J., with Goldenhersh and Schwarm, JJ., concurring.
Certified cases – Supreme Court Rule 316: 09/23/15
Oral Argument: 03/22/16
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