Amending Contract Creates Surprising Problem
Joan M. Kubalanza and Kevin J. Clancy, two of Lowis & Gellen's senior litigators and appellate attorneys, have published an article in the March issue of the Illinois Bar Journal that carries a strong admonition for practicing attorneys and business clients. The article discusses the case of Nebel, Inc. v. The Mid-City National Bank of Chicago, decided by the First District of the Illinois Appellate Court. The case dealt with a substantive amendment to an existing contract and the trial court's finding that the act of amending the 99-year lease revived a dormant clause requiring the payment of rent in gold. The legal moral of the story is that attorneys should familiarize themselves with the contract being amended in every instance, and specifically exclude any unwanted provisions from the original contract. Copies of the article can be obtained by contacting Amy Bockman at 312-364-2500.
Client and Community Elated With Outcome
David Grobart, Partner in charge of the firm's Real Estate Practice Group, recently obtained unanimous approval from a suburban Chicago municipality to not only keep, but expand the presence of his client, one of the nation's leading "big-box" retailers, within their principal regional shopping center. Mayor Kyle Hastings of Orland Hills, IL declared the agreement and project to be "one of the biggest economic developments in the village's history." The community will receive the continuing benefits of substantial sales tax and property tax revenues from a revitalized shopping center development and a newly constructed facility with a building containig over 200,000 square feet. The development also currently includes Circuit City, PetSmart and World's Finest Chocolate, as well as outparcel restaurants and other users.
APPELLATE VICTORY
Lowis & Gellen appellate attorneys recently prevailed on behalf of a doctor, his medical practice and his staff, when the First District Court of Appeals affirmed the trial court's ruling that a minor plaintiff's medical malpractice claim was barred by an eight year statute of repose. The claim, brought by parents on behalf of their son, alleged that the boy was injured in utero when his mother ingested a toxic dose of a dietary supplement provided to her by the defendants. Plaintiff alleged that the defendant doctor prescribed L-glutamine protein powder to treat the mother's allergies, but erroneously provided her with Selenium in a bottle marked L-glutamine, which the mother ingested during her pregnancy.
The First District Appellate Court did not allow oral argument on the matter, but relied instead upon the strength of the appellate briefs. Joan Kubalanza and Deborah O'Brien argued in the defendants' brief that the medical malpractice statute of repose, rather than the ordinary negligence statute, applied because the plaintiff's claim arose out of patient care. Defendants argued further that the statute of repose barred the action because the minor plaintiff's mother ingested the allegedly harmful substance more than eight years before the minor's claim was filed.
The appellate court rejected the plaintiff's argument that the minor was under a legal disability sufficient to toll his cause of action while a fetus, holding that the statute of repose was not tolled because the minor was not under any legal disability at the time that his cause of action accrued (at birth).
European Review
Industry experts agree that 2005 was a vintage year for the markets and deal-makers alike. The good news is that many see no reason why this shouldn't contine in 2006.
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Rob Smeltzer Successfully Obtains Temporary Restraining Order
"Rob Smeltzer successfully obtained a temporary restraining order ("TRO") in Cook County Circuit Court on behalf of an insurance brokerage client in a restrictive covenant case. The TRO precludes our client's (an insurance brokerage) former employee from soliciting his former customers. The former employee argued that the insurance brokerage did not have a "protectible interest" in or "near permanent relationship" with the customers that the former employee had brought to the brokerage. The former employee also argued that the restrictive covenant lacked consideration and that the existence of a liquidated damage provision in the employment contract containing the restrictive covenant meant that injunctive relief was inappropriate and that there was an adequate monetary remedy for breach of the covenant. In rejecting this argument, the Court held that the insurance brokerage did have a protectible interest in its confidential information and trade secrets (e.g. premium information, amount of commission, policy expiration and renewal information) concerning those customers, such that the former employee would be able to unfairly compete with the insurance brokerage in the absence of an injunction. The Court further found that the restrictive covenant was narrowly drawn to promote this protectible interest."
Appellate Victory
Lowis & Gellen Appellate Practice attorneys recently prevailed on behalf of three Will County Correctional Officers. A Department of Corrections inmate brought a federal civil rights action against the three officers alleging violations of his civil rights under the First, Fourth, Eighth and Fourteenth Amendments, as well as state law claims of assault and battery. The plaintiff alleged that when he was a pre-trial detainee the defendants illegally searched his mail and used excessive force against him. The trial court dismissed the claims on the basis that the plaintiff had failed to demonstrate that he had exhausted his administrative remedies. The Third District Appellate Court did not allow oral argument on the matter but relied entirely on the strength of the appeal briefs. Joan M. Kubalanza and Melissa Dakich argued in the officers' brief that the plaintiff could not cure on appeal the defects in his underlying complaint and the Court subsequently affirmed the trial court's decision.
