The Trusted Adviser February 2010 | Volume 3 • Number 2




Anderson v Klasek, 393 Ill App 3d 219, 913 NE2d 615, 332 Ill Dec 683 (5th D, 2009).

Facts:The Andersons bought a home from Lila Klasek through her real estate agent, Jane Butcher, in 2003. The Andersons alleged that they were damaged by Klasek's failure to disclose termite presence and termite damage in the home and by Butcher's concealment of such information. As a result, the Andersons sued Klasek for a violation of the Residential Real Property Disclosure Act and Butcher for violations of both the Real Estate License Act of 2000 and the Consumer Fraud and Deceptive Business Practices Act.

Before the trial court, Butcher demanded a jury trial; Klasek made no such demand. The Andersons moved to strike the jury demand, arguing that no such right existed for the causes of action present before the court. The trial court denied the motion and the entire matter was tried before the jury. The jury found in favor of both Klasek and Butcher. The Andersons moved to have the jury verdict vacated and a bench trial held; the trial court denied the motion. The Andersons appealed.

Holding:Reversed and remanded. The court based its decision largely on the Illinois Constitutional provision that states that the right to a jury trial is to be preserved in all claims that had such a right attached thereto at common law prior to the enactment of the Constitution. Ill. Const. 1970, art. I, &§13. The court, relying onMartin v Heinold Commodities, Inc, found this to mean that only those previously existing causes of action had a guaranteed right to a jury trial but that novel claims arising after the Constitution could only have a right to a jury trial if so granted by the legislature 643 NE2d 734 (1994). There was no mention of the right to a jury trial in any of the acts under which the claims in this matter arose.

TheMartincourt had specifically concluded that the Consumer Fraud Act did not grant the right to a jury trial because it was meant to be separate and in addition to common law fraud, rather than a codification thereof.Id.The present court further concluded that the Disclosure Act and the License Act also did not give rise to a right to a jury trial. The court rejected the arguments by Butcher and Klasek that the claims arising under the two acts were so similar to common law fraud as to be considered to be codifications of law that existed prior to the Illinois Constitution's ratification. The court rejected those arguments on the grounds that the General Assembly, in both cases, clearly stated a goal to allow actions beyond common law fraud and specifically stated intent not to interfere with common law fraud. Therefore, the court found, they could not be considered to be codifying common law principles of fraud.

Ultimately, though it was reluctant to give the Andersons another bite at the apple, the court found that none of the claims in the suit arose prior to the Constitution, or originated in legislation that had intended to grant the right to a jury trial. As a result, the court reversed the district court's ruling on the motion to vacate and remanded the case for a bench trial.






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[Last update: 1-18-10]