2014 IL App (2d) 140023

No. 2-14-0023

Opinion filed August 18, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

GAIL THEMAS, ) Appeal from the Circuit Court

) of Carroll County.

Plaintiff-Appellant, )

)

v. ) No. 08-L-15

)

GREEN’S TAP, INC., )

)

Defendant and Third-Party Plaintiff )

) Honorable

(Mt. Carroll Insurance Agency, Inc., ) Daniel A. Fish,

Third-Party Defendant-Appellee). ) Judge, Presiding.

______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶ 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 
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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 (1979) (quoting 

Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)).
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¶ 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 (1990), which Mt. Carroll cites in its argument on 

the merits, states that the defendants, who on appeal argued that they were denied their right to a 

jury trial, appealed “from the judgment entered against them” following a bench trial. Id. at 1074. 

We entertained the appeal. Thus, we conclude that, because an appeal from the final judgment 

entered following a bench trial is a proper way for plaintiff to appeal the denial of a jury trial, the 

notice of appeal here is proper.

¶ 8 Turning to the merits, the Illinois constitution guarantees the right to a jury trial. 

Hernandez v. Power Construction Co., 73 Ill. 2d 90, 94 (1978) (citing Ill. Const. 1970, art. I, § 13). 

Because the right is constitutional, courts liberally construe statutes regulating its exercise. Id. at 

95; Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1091 (1993). A party is entitled to a jury trial 

and cannot be deprived of that right by any act of the adverse party or the trial court without an 

actual waiver of the right. North American Provision Co. v. Kinman, 288 Ill. App. 414, 417 

(1937); see also Aetna Screw Products Co. v. Borg, 116 Ill. App. 3d 206, 213-14 (1983) (defendant 

who filed jury demand on issues of law could not be deprived of jury trial absent waiver or 

decision that equitable issues were res judicata of legal issues). Section 2-1105 of the Code of 

Civil Procedure provides that a plaintiff who desires a jury trial “must file a demand therefor with 

the clerk at the time the action is commenced.” 735 ILCS 5/2-1105(a) (West 2012). The failure 

to do so waives a jury trial. Id.
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¶ 9 The issue here is whether plaintiff’s jury demand filed with her initial complaint applies to 

the assigned claim against Mt. Carroll. Mt. Carroll insists that, because plaintiff stepped into the 

shoes of Green’s Tap, she must take the case as she found it, and she found it without Green’s Tap

having filed a jury demand. We disagree. To demonstrate why, we first consider the nature of 

the assignment of a claim.

¶ 10 A potential claim for damages such as the one here is a chose in action. See Black’s Law 

Dictionary 258 (8th ed. 2004) (defining “chose in action” as: “A proprietary right in personam,

such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in 

tort”). Choses in action are generally assignable. An assignment transfers title in the chose in 

action to the assignee, who becomes the real party in interest. 6 Am. Jur. 2d Assignments § 44 

(2008). The assignee may sue in his or her own name. 735 ILCS 5/2-403(a) (West 2012).

¶ 11 Although we have found no case addressing the precise issue presented here, two things 

seem apparent from the foregoing. First, the chose in action that is assigned consists of the claim 

for damages, not the lawsuit filed in pursuit of that claim. Second, the assignee becomes the 

owner of the claim and may pursue it in her own name like any other claim she might have. From 

this, we conclude that plaintiff’s jury demand covered the subsequently-assigned claim. Saying 

that the assignee steps into the shoes of the assignor means only that the assignment removes some 

legal impediment, such as lack of privity, to the assignee pursuing the claim. It does not mean 

that the assignee takes the existing court case exactly as she finds it.

¶ 12 Baldassari, on which Mt. Carroll chiefly relies, does not compel a different result. There, 

the plaintiff sued the defendants, alleging fraudulent misrepresentation and breach of contract in 

connection with a limited partnership agreement. The defendants filed a third-party complaint 

against Irving Federal Savings & Loan Association, alleging the breach of a commitment to loan 
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them $2 million. The plaintiff and the defendants eventually settled, with the plaintiff 

withdrawing his jury demand. The defendants then sought to file a jury demand but the trial court 

struck it as untimely. Baldassari, 195 Ill. App. 3d at 1074. We affirmed. Id. at 1077.

¶ 13 Mt. Carroll insists that Baldassari stands for the proposition that a third-party complaint is 

a separate action requiring a separate jury demand. We disagree. In Baldassari, the defendants

never timely filed a jury demand, either when they answered the original complaint (although one 

was not necessary at that time because the plaintiff had already filed one) or when they filed their 

third-party complaint. Indeed, after the plaintiff withdrew his jury demand, the defendants waited 

more than a month before filing their own. We held that the trial court properly struck it as 

untimely. Thus, Baldassari holds only that the defendants never filed a timely jury demand. Id.

at 1076-77; see also Drovers National Bank of Chicago v. Ferrell, 14 Ill. App. 3d 389, 393 (1973) 

(defendant did not file jury demand with third-party complaint). Baldassari did not involve the 

assignment of the third-party claim to a party who already had a jury demand on file and thus does 

not support Mt. Carroll’s contention that a third-party claim is a separate action to which a 

previously filed jury demand does not apply.

¶ 14 The judgment of the circuit court of Carroll County is reversed, and the cause is remanded 

for further proceedings.

¶ 15 Reversed and remanded.