Opinion
1-22-1119
09-29-2023
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. CHICAGO TITLE LAND TRUST COMPANY, as Trustee Under Trust Agreement Dated September 30, 1996, Known as Trust No. 1103184;THE COOK COUNTY TREASURER; UNKNOWN OWNERS; and NONRECORD CLAIMANTS, Defendants v. (Chicago Title Land Trust Company, as Trustee Under Trust Agreement Dated September 30, 1996, Known as Trust No. 1103184, Defendant-Appellant).
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 15 L 50611 The Honorable Daniel P. Duffy, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Pucinski and Coghlan concurred in the judgment.
ORDER
FITZGERALD SMITH, PRESIDING JUSTICE
¶ 1 Held: Trial court's dismissal of petition to vacate final judgment is affirmed where eminent domain defendant forfeited its right to jury trial by failing to file jury demand in the manner required by statute.
¶ 2 The defendant, Chicago Title Land Trust Company, as trustee under a trust agreement dated September 30, 1996, known as trust No. 1103184, appeals from the trial court's order dismissing its petition to vacate a final judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2020)). For the reasons that follow, we affirm.
¶ 3 BACKGROUND
¶ 4 This court has previously set forth the facts of this case in Illinois State Toll Highway Authority v. Chicago Title Land Trust Co., 2021 IL App (1st) 200813. We restate here only those facts necessary to an understanding of the issue in this appeal.
¶ 5 On August 25, 2015, the Illinois State Toll Highway Authority (Toll Highway Authority) filed a complaint for condemnation to acquire, through the quick-take procedure of the Eminent Domain Act (735 ILCS 30/20-5-5 et seq. (West 2014)), a parcel of land owned by the defendant. The Toll Highway Authority filed a jury demand with its complaint. The defendant was served the following day. The first appearance on behalf of the defendant was filed on January 11, 2016, by the law firm of Foran, O'Toole &Burke, LLC. A second appearance was apparently also filed on the defendant's behalf by the law firm of Rock Fusco &Connelly, LLC, although this filing does not appear in the record. These two law firms represented the defendant until September 17, 2019, when the trial court granted them leave to withdraw. It is undisputed that no jury demand was ever filed and that no jury fee was ever paid on behalf of the defendant at any time.
¶ 6 In July 2019, while the defendant was represented by the above two law firms, the case was set for trial commencing February 10, 2020. This was set as a jury trial, pursuant to the jury demand filed by the Toll Highway Authority. On December 12, 2019, a new appearance was filed on behalf of the defendant by the Law Office of Arnold H. Landis, P.C. On February 7, 2020, an additional appearance was filed on the defendant's behalf by a second law firm, Neal &Leroy, LLC.
¶ 7 On February 10, 2020, attorneys Richard F. Friedman, from the law firm of Neal & Leroy, and Arnold H. Landis appeared in court on the defendant's behalf. The events occurring in court that day are detailed in this court's earlier opinion. In summary, the day began when the defendant's attorneys sought to present a motion in limine to bar the testimony of the Toll Highway Authority's valuation witnesses based on their purportedly improper use of the date of the complaint's filing, as opposed to the date of the taking of the defendant's property, as the operative date for determining just compensation. The trial court denied that motion as untimely filed and presented. The defendant's attorneys then indicated that they wanted to consult with their client about whether the defendant wished to seek certification of a question of law to the appellate court. This resulted in further discussion of the issue and the trial court's denying the request for a certified question.
¶ 8 The trial court then asked the attorneys whether they were ready to proceed to trial, and the defendant's attorneys expressed confusion about the fact that the trial was set to commence that day. A lengthy discussion followed, in which the trial court and attorneys discussed the various orders referencing February 10 as the start-date of the trial. The trial judge reiterated a distinct memory of stating to Landis in court on January 21, 2020, that the case was going to jury trial on February 10. The trial judge also referenced a discussion that the court's clerk had with a different attorney from Landis's law firm reiterating that the case was set for jury trial February 10, notwithstanding that the case had also been given a date on the trial-setting call later in February by the presiding judge of the law division.
¶ 9 The defendant's attorneys next informed the trial court that the defendant's expert witness, Neil Renzi, was out of town, and they requested a continuance of the trial to a date when he was available. The trial court clarified with them that the reason for his unavailability was not a family emergency or trip for which he had purchased nonrefundable tickets. The trial court stated that it did not understand why the defendant's attorneys had not anticipated having Renzi present, as the case was set for trial that day. It denied the motion for continuance, which we held in our earlier opinion was not an abuse of discretion. Id. ¶ 49.
¶ 10 Further discussions ensued, in which the defendant's attorneys stated that they wanted to ask the presiding judge to clarify the effect of the trial-setting order on the February 10 trial date. The attorney for the Toll Highway Authority objected that this was a delay tactic to avoid picking a jury and starting trial that day. She suggested the possibility that the Toll Highway Authority could waive its jury demand under the circumstances, stating that "we could be done with the trial today." Friedman then asked for some time to talk with the attorney for the Toll Highway Authority, and a recess was taken to allow this to occur. Thereafter, Friedman informed the court that the defendant's attorneys had called their client, who had requested that they seek clarification from the presiding judge. The trial court responded that they could do this during the lunch break but that the court intended to have jurors present to begin jury selection at 1:30 p.m.
¶ 11 When court reconvened following the lunch break, Friedman indicated that confusion about the trial-setting order had been resolved. The trial court asked what this meant for the posture of the case, and Friedman responded, "So we would like to proceed without a jury." The trial court then asked if the Toll Highway Authority also wished to procced without a jury, and its attorney responded that she had requested approval from those persons with the necessary authority to waive its jury demand. She characterized it as an "extraordinary thing" for the Toll Highway Authority to waive a jury demand, but she stated that she believed it would be possible due to the defendant having no witness to present in the case. Approval was obtained soon thereafter, and the Toll Highway Authority's attorney informed the trial court that it would agree to waive its jury demand and proceed to a bench trial.
¶ 12 Prior to starting the bench trial, the trial court again confirmed with Friedman that the defendant was in agreement to proceed by a bench trial, not a jury trial. The court stated, "But if you want to go to jury, nobody is keeping you from doing that." Friedman responded, "I understand, Judge." He stated that, although the defendant objected to starting trial at all that day, it was "definitely correct" that the defendant was choosing "to go by way of bench."
¶ 13 A bench trial thereafter proceeded, with the Toll Highway Authority presenting only one witness on valuation. On February 25, 2020, the trial court entered its final judgment order, in which it determined that $870,000 was full and final just compensation for the acquisition of the defendant's property. The defendant filed a posttrial motion, which the trial court denied on June 12, 2020. On July 10, 2020, the defendant filed its notice of appeal. On November 2, 2021, this court issued a decision affirming the trial court's denial of the defendant's motion to bar witnesses and of the motion for continuance of trial.
¶ 14 On September 28, 2020, while the first appeal was pending, the defendant filed the instant petition to vacate the trial court's judgment pursuant to section 2-1401 of the Code (735 ILCS 2/1401 (West 2020)). That petition alleged that the trial court's order following the bench trial was "manifestly unjust because it was predicated on an unauthorized waiver of the [defendant's] constitutional right to have a jury hear evidence and determine just compensation within the range of such evidence." It was supported in pertinent part by the affidavit of Michael Wellek, who stated that he held power of direction with respect to the defendant land trust. Wellek's affidavit averred that on the afternoon of February 10, 2020, he received a call from attorneys Friedman and Landis. Friedman told him that they were in court and that the trial judge had refused to grant a continuance of the jury trial to enable Renzi to travel back to Chicago to testify to his opinions on valuation of the property. Prior to this call, Wellek had been unaware that Renzi was unavailable to testify at trial. Friedman discussed waiving a jury trial because he did not want to upset the trial judge. However, Wellek told Friedman not to waive a jury trial, and he did not authorize anyone to do so. Wellek told him instead to try to do something to give Renzi the chance to try to return to Chicago from Florida to testify. An affidavit by Landis was also attached to the petition, averring that he was a party to that phone call and corroborating Wellek's statement of its contents.
¶ 15 The Toll Highway Authority responded to the above petition by filing a motion to dismiss it under section 2-615 of the Code (id. § 2-615). That motion raised multiple grounds for dismissal, one of which was that the defendant had never filed or paid for a jury demand. It argued that, because of the defendant's failure to do this, even if the defendant had sought leave to file a late jury demand after the Toll Highway Authority waived its jury demand, there was no guarantee that this would have been granted. It also argued that the defense raised in the petition was not one that would have precluded entry of the judgment.
¶ 16 Multiple rounds of briefing and supplemental briefing occurred. Relevant to this appeal, the defendant's position was that, despite its not filing a jury demand, section 2-1105(a) of the Code (id. § 2-1105(a)) gave it the right to rely on the jury demand that had been filed by the Toll Highway Authority. It argued that section 2-1105(a) required that the defendant (meaning Wellek personally) be given notice of the fact that the Toll Highway Authority was waiving its jury demand after it occurred, so that the defendant could thereafter assert its right under that statute to demand a jury upon the payment of proper fees. It argued that this noncompliance with section 2-1105(a) rendered the jury waiver invalid and was grounds for vacating the judgment under section 2-1401. By contrast, the position of the Toll Highway Authority was that, under section 10-5-5(a) of the Eminent Domain Act (735 ILCS 30/10-5-5(a) (West 2020)), the defendant was required to have filed its own jury demand if it wanted a jury trial and had no right to rely on a demand filed by the opposing party.
¶ 17 On June 23, 2022, the trial court granted the Toll Highway Authority's motion to dismiss, concluding that the defendant's section 2-1401 petition failed to state a claim upon which relief may be granted. It found that section 2-1105(a) of the Code (735 ILCS 5/2-1105(a) (West 2020)) is a general statute that does not apply in eminent domain cases, where the issue of jury demands is governed by the more specific provisions of section 10-5-5(a) of the Eminent Domain Act (735 ILCS 30/10-5-5(a) (West 2020)). Section 10-5-5(a) includes no language, analogous to section 2-1105(a), granting a defendant that has not filed its own jury demand the right to do so after receiving notice of a jury waiver by the plaintiff. The court noted that the defendant had never filed a jury demand, and there was no allegation that it had attempted to do so or been denied leave to do so. It further found that the defendant had "pleaded itself out of court" by affirmatively alleging in its petition that its attorney had waived whatever right the defendant may have had to a jury trial and did so before the Toll Highway Authority had waived its jury demand. It thus dismissed the section 2-1401 petition with prejudice, and this appeal followed.
¶ 18 ANALYSIS
¶ 19 On appeal, the defendant argues that the trial court erred by dismissing its section 2-1401 petition, which, it contends, sufficiently alleged facts showing that the jury waivers accepted by the trial court as the basis for conducting a bench trial were invalid and void as a matter of law. It argues that the Toll Highway Authority's waiver of its jury demand minutes before the jury trial was to commence was ineffective and invalid, because section 2-1105(a) of the Code required notice of this waiver be given to Wellek, to enable him to decide whether to assert the defendant's statutory right to demand a jury after the waiver by the Toll Highway Authority. 735 ILCS 5/2-1105(a) (West 2020). Further, it argues that Friedman's agreement to proceed with a bench trial was invalid and void because Wellek had not granted him the authority to waive the right to a jury trial, and he lacked the authority to do so without client authorization. The defendant contends these facts present appropriate grounds for relief under section 2-1401.
¶ 20 By contrast, the Toll Highway Authority argues that the trial court's dismissal of the defendant's section 2-1401 petition was proper on the basis that it failed to raise a meritorious defense that would have prevented entry of judgment. This is so, the Toll Highway Authority contends, because as a matter of law, the defendant had waived its right to a jury trial from nearly the outset of this case by failing to file a timely jury demand of its own as required by section 10-5-5(a) of the Eminent Domain Act (735 ILCS 30/10-5-5(a) (West 2020)), or to seek leave to file a late jury demand at any point thereafter. The Toll Highway Authority contends that section 2-1105(a) of the Code is inapplicable in eminent domain cases, and therefore the defendant's reliance upon that statute as the basis for its purported entitlement to a jury trial was unjustified.
¶ 21 In its reply brief, the defendant argues for the first time that, if we accept the argument that section 2-1105(a) of the Code does not apply in eminent domain cases, then the Toll Highway Authority's waiver of its jury demand was invalid because no statutory authority allowed for it. It argues that the statutory right to withdraw a jury demand exists by implication only within section 2-1105(a) of the Code, whereas section 10-5-5(a) of the Eminent Domain Act contains no language allowing a party to withdraw a jury demand.
¶ 22 For the reasons explained below, we agree with the argument advanced by the Toll Highway Authority and the conclusion of the trial court. As a matter of law, the defendant's legal position throughout this case was that of having waived its right to trial by jury, due to its failure to file a timely jury demand of its own or to seek leave to file a late jury demand at any time. Section 2-1105(a) of the Code does not apply in eminent domain cases, and therefore it did not provide the defendant, having filed no jury demand of its own, with an absolute right to a jury trial in the event the Toll Highway Authority later waived its jury demand. Accordingly, section 2-1105(a) was not violated when the trial court accepted the jury waiver by the Toll Highway Authority. Furthermore, when defense attorney Friedman stated to the trial court on the day of trial that the defendant wanted a bench trial, this statement was fully consistent with the legal position in which the defendant had existed for years. This is true, regardless of whether there was any legal or factual misunderstanding on this point or whether the defendant's principal subjectively intended otherwise. As such, we hold that the defense raised in the defendant's section 2-1401 petition was not meritorious and that therefore the petition was properly dismissed by the trial court.
¶ 23 Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2020)) provides a procedure whereby final orders or judgments may be vacated more than 30 days after their entry. Smith v. Airoom, Inc., 114 Ill.2d 209, 220 (1986). The purpose of a section 2-1401 petition is to bring forth facts not of record which, had they been known at the time of judgment, would have precluded its entry. People v. Haynes, 192 Ill.2d 437, 463 (2000). To be entitled to relief from a final judgment under section 2-1401, the petition must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; and (3) due diligence in filing the section 2-1401 petition. Smith, 114 Ill.2d at 220-21.
¶ 24 A petition under section 2-1401 is a pleading that initiates a new action, not a motion for relief in an ongoing case. Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 102 (2002). As such, it is subject to the usual rules of civil practice, including a motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)). Ostendorf v. International Harvester Co., 89 Ill.2d 273, 279 (1982); Blazyk v. Daman Express, Inc., 406 Ill.App.3d 203, 207 (2010). On such a motion, it is considered in the same manner as a civil complaint, with its well-pleaded facts being admitted but its legal sufficiency challenged. Ostendorf, 89 Ill.2d at 280. The motion to dismiss should be granted only where it clearly appears no set of facts could be proved that would entitle the petitioner to relief. Id. A trial court's dismissal of a section 2-1401 petition based upon its legal insufficiency presents a question of law that we review de novo. Blazyk, 406 Ill.App.3d at 206.
¶ 25 The issue in this appeal is the existence of a meritorious defense, which is one aspect of the petition's legal sufficiency. Id. Importantly, this appeal does not present the issue of the defendant's diligence in raising this defense before the trial court in the original action. The trial court did not address the issue of diligence in its order, and the Toll Highway Authority makes no argument for affirmance based on a lack of diligence. We limit our analysis accordingly.
¶ 26 As indicated above, the allegedly meritorious defense here, which the defendant claims would have prevented judgment if it had been known to the trial court, was that the defendant had a right to jury trial that was violated by the trial court's conducting of a bench trial after accepting jury waivers from both parties that it did not realize were invalid. It argues that the Toll Highway Authority's waiver was invalid because Wellek personally was not given notice of it and the opportunity to ensure that the defendant could thereafter demand and receive a jury trial under section 2-1105(a) of the Code. It also argues that the waiver by its own attorney, Friedman, was invalid because it was contrary to Wellek's express direction to him not to waive a jury.
¶ 27 It is undisputed, however, that no jury demand was ever filed on the defendant's behalf. No request for a jury was ever made in any way, nor was a jury fee paid. Instead, the defendant concedes that it was relying for its right to a jury trial on the fact that a jury demand had been filed by the Toll Highway Authority. The defendant argues that it was entitled to this reliance by virtue of the last sentence of section 2-1105(a) of the Code, which provides in pertinent part:
"A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer. Otherwise, the party waives a jury. *** If the plaintiff files a jury demand and thereafter waives a jury, any defendant *** shall be granted a jury trial upon demand therefor made promptly after being advised of the waiver and upon payment of the proper fees, if any, to the clerk." (Emphasis added.) 735 ILCS 5/2-1105(a) (West 2020).
The defendant argues that the trial court erred in concluding that the right afforded by the last sentence of section 2-1105(a) does not apply in eminent domain cases, due to the existence of the more specific statute governing jury demands in such cases. The defendant argues that the last sentence of section 2-1105(a) can be given effect and read in harmony with section 10-5-5(a) of the Eminent Domain Act, which provides:
"Private property shall not be taken or damaged for public use without just compensation and, in all cases in which compensation is not made by the condemning authority, compensation shall be ascertained by a jury, as provided in this Act. When compensation is so made by the condemning authority, any party, upon application, may have a trial by jury to ascertain the just compensation to be paid. A demand on the part of the condemning authority for a trial by jury shall be filed with the complaint for condemnation of the condemning authority. When the condemning authority is plaintiff, a defendant desirous of a trial by jury must file a demand for a trial by jury on or before the return date of the summons served on him or her or on or before the date fixed in the publication in case of defendants served by publication. If no party in the condemnation action demands a trial by jury, as provided for by this Section, then the trial shall be before
the court without a jury." 735 ILCS 30/10-5-5(a) (West 2020).The defendant argues that section 10-5-5(a) simply does not address the situation in which the condemning authority files a jury demand with its complaint, thereby "rendering a jury demand by the defendant superfluous and unnecessary," but later withdraws its demand prior to trial. In such a situation, the defendant contends, the last sentence of section 2-1105(a) can be applied to protect a defendant's right to trial jury trial in an eminent domain case.
¶ 28 This argument implicates issues of statutory interpretation. The cardinal rule of statutory interpretation is to ascertain and give effect to the legislature's intent, the best indication of which is the plain language used in the statutes. First American Bank Corp. v. Henry, 239 Ill.2d 511, 515 (2011). When statutory language is plain and unambiguous, courts may not depart from its terms by reading into it exceptions, limitations, or conditions that the legislature did not express, nor may courts add provisions not found in the statute. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24. However, where two or more statutes relate to the same subject, courts presume that the legislature intended them to be read harmoniously so that no provisions are rendered inoperative. Knolls Condominium Ass n v. Harms, 202 Ill.2d 450, 458-59 (2002). Statutes relating to the same subject must be compared and construed with reference to each other so that, if possible, effect may be given to all the provisions of each statute. Id. at 459. But the use of certain words in one instance and different words in another requires the presumption that the legislature intended different results. Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 37. Further principles of statutory interpretation are that courts presume that the legislature intends a specific statute to govern over a general statute relating to the same subject, and that it intends a more recent enactment to control over an earlier one. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 346 (2008).
¶ 29 In applying these principles here, we recognize also that our state constitution provides that, in eminent domain cases, just compensation "shall be determined by a jury as provided by law." Ill. Const. 1970, art. I, § 15. The phrase "as provided by law" used in that constitutional provision means that "the requirements for jury trials in eminent domain actions are within the General Assembly's authority to determine." Illinois State Toll Highway Authority v. American National Bank &Trust Co., 162 Ill.2d 181, 191-92 (1994). The law enacted pursuant to this authority is section 10-5-5 of the Eminent Domain Act (735 ILCS 30/10-5-5 (West 2020)), under which both the condemning authority and the landowner "have the right to a jury trial if they make a proper demand." Illinois State Toll Highway Authority, 162 Ill.2d at 192. That statute "not only confers the right to a jury trial, it also makes clear that the right to a jury trial may be waived." Id. at 193.
Prior to 2007, this statute was codified as section 7-101 of the Code of Civil Procedure (735 ILCS 30/7-101 (West 2006)). Prior to its codification into the Code in 1982, this statute was codified as section 1 of "An Act to provide for the exercise of the right to eminent domain," approved April 10, 1872 (Ill. Rev. Stat. 1981, chap. 47, § 1).
¶ 30 Consistent with its authority to regulate jury demands and waivers in eminent domain cases, we conclude for several reasons that the General Assembly did not intend section 2-1105(a) of the Code, and specifically its last sentence, to be applied in such cases. First, section 2-1105(a) of the Code and section 10-5-5(a) of the Eminent Domain Act both address the same subject, the time deadlines within which parties must demand a jury or else will be deemed to have waived this right in favor of a bench trial. Section 2-1105(a) sets forth these provisions for civil cases generally, whereas section 10-5-5(a) is specific to eminent domain cases. The enactment of section 10-5-5(a) as a more specific statute to address this same subject gives rise to the presumption that it was intended to control in eminent domain cases. Abruzzo, 231 Ill.2d at 346.
¶ 31 Second, section 10-5-5(a) is the later-enacted statute. The pertinent provisions of what is now section 2-1105(a), including its last sentence, have existed since 1933 when it was enacted as section 64(1) of the Civil Practice Act, which provided:
"A plaintiff desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing appearance; otherwise such party shall be deemed to have waived a jury. If the plaintiff files a jury demand and thereafter waives such demand, the defendant shall be granted a jury trial upon motion made at the time of such waiver and upon payment of the proper fees to the clerk." Ill. Rev. Stat. 1933, ch. 110, § 188(1).
By contrast, it was in 1957 that the statutory predecessor to section 10-5-5(a) was amended to address the topic of deadlines for the filing of jury demands in eminent domain cases. See Ill. Rev. Stat. 1957, ch. 47, § 1. It was again amended in 1969 to provide that, if no party to the condemnation suit demanded trial by jury as provided by that section, then trial shall be before the court without a jury. See Ill. Rev. Stat. 1969, chap. 47, § 1. Thus, it is evident that by the time of these amendments in 1957 and 1969, the General Assembly's intent was not that section 64(1) of the Civil Practice Act served to supply the default rules for the times when jury demands must be filed or jury trials waived in eminent domain cases. Accordingly, if the General Assembly had intended then to provide a defendant in an eminent domain case that had not filed its own jury demand with the absolute right to do so later if the plaintiff waived its demand, the General Assembly certainly knew how to include this kind of language in the statute. It did not do so, and we discern no legislative intent to have one sentence of section 64 of the Civil Practice Act (now section 2-1105(a)) apply in such cases, while the rest of the section does not. Rather, we conclude that the General Assembly's omission of this kind of provision from the statutory predecessor of section 10-5-5(a) evinces a deliberate decision not to provide an eminent domain defendant with an absolute right of this nature. See Singer, Sutherland Statutes &Statutory Construction § 51:2, p. 214 (7th ed. 2012) (" 'where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed' "); accord Chicago Teachers Union, Local No. 1 v. Board of Education of City of Chicago, 2012 IL 112566, ¶ 24; Mohica, 2013 IL App (1st) 111695, ¶ 37.
¶ 32 We find support for this statutory interpretation in People v. Miller, 2014 IL App (1st) 122186. There, this court addressed a nearly identical argument with respect to section 35(c) of the Sexually Violent Persons Commitment Act, which provides:
"The person who is the subject of the petition [for commitment], the person's attorney, the Attorney General or the State's Attorney may request that a trial under this Section be by a jury. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under Section 30 of this Act. If no request is made, the trial shall be by the court. The person, the person's attorney or the Attorney General or the State's Attorney, whichever is applicable, may withdraw his or her request for a jury trial." 725 ILCS 207/35(c) (West 2006).
The state had filed a timely jury demand within 10 days of a probable cause hearing on its petition to commit the respondent, but the respondent did not file a jury demand of his own. The trial court later denied the respondent's request for a jury trial after the state waived its demand. The respondent argued on appeal that, as the proceeding at issue was a civil proceeding, he was entitled as a matter of right under section 2-1105(a) of the Code to be granted a jury trial upon the state's waiver of its jury demand. Miller, 2014 IL App (1st) 122186, ¶ 12. Similar to the defendant's argument here, the respondent argued that because section 35(c) does not address the situation in which a party that has not filed its own demand is faced with a waiver by the opposing party, the rule provided in section 2-1105(a) should be deemed to control. Id. ¶ 15.
¶ 33 This court rejected the respondent's arguments. It cited the fact that both section 35(c) of the Sexually Violent Persons Commitment Act and section 2-1105(a) of the Code addressed the same issue, namely the time for filing jury demands. Id. ¶ 18. It noted that the last sentence of section 2-1105(a), allowing a defendant to file a late jury demand after the plaintiff or another defendant withdraws its own demand, was not a distinct statutory provision; rather, it was part of the section setting forth deadlines for filing jury demands in civil proceedings. Id. By contrast, section 35(c), which governed the deadlines for filing jury demands in commitment proceedings, did not include a similar exception allowing a late filing when another party withdraws its timely-filed demand. Id. This court concluded that the omission of such an exception from section 35(c), as compared to the explicit language of section 2-1105(a), indicated that the legislature did not intend to allow a respondent in a commitment proceeding the right to file a late jury demand after the state withdraws its own. Id. Rejecting the argument that effect could be given to both statutes, the court stated, "Since the rules governing jury demands under the [Sexually Violent Persons Commitment] Act differ from those under the Code, section 2-1105(a) is inapplicable." Id. ¶ 20.
¶ 34 As stated, we find that the reasoning of Miller supports our interpretation that the General Assembly did not intend to give defendants in eminent domain cases that have not filed a timely jury demand the absolute right to be granted a jury trial upon the condemning authority's waiver of its jury demand. Specifically, it supports our interpretation that the omission from section 10-5-5(a) of language analogous to the last sentence of section 2-1105(a) indicates that the legislature did not intend to provide eminent domain defendants that have not filed jury demands the guaranteed right to a jury trial if the condemning authority withdraws its demand.
¶ 35 The only basis upon which the defendant attempts to distinguish Miller is that the language of section 35(c) of the Sexually Violent Persons Commitment Act specifically allows a party to "withdraw his or her request for a jury demand." See 725 ILCS 207/35(c) (West 2006). This causes the defendant to change tack in its reply brief argument to repeatedly emphasize that section 10-5-5(a) of the Eminent Domain Act contains no similar language authorizing the withdrawal of a jury demand in eminent domain cases. It therefore contends that the Toll Highway Authority's waiver of its jury demand was invalid because no statutory authority existed to authorize it. This argument that the Toll Highway Authority's jury waiver was invalid as lacking statutory authorization is different than any argument raised in the defendant's opening brief, and, as far as we can tell, it was not raised in the trial court either. We therefore conclude that the defendant has forfeited this argument by raising it for the first time in its reply brief. Ill. S.Ct. R. 341(h)(7) (Oct. 1, 2020) ("Points not argued [in an appellant's opening brief] are forfeited and shall not be raised in the reply brief'); McGinley Partners, LLC v. Royalty Properties, LLC, 2018 IL App (1st) 172976, ¶ 26 ("It is well settled that a party may not raise an issue for the first time in its reply brief."). We decline to address an argument of statutory interpretation that has not been briefed by the Toll Highway Authority or presented to the trial court for ruling.
¶ 36 We emphasize, however, that our conclusion in this case pertains only to the absolute right to a jury trial which the last sentence of section 2-1105(a) provides to a defendant that has not filed its own jury demand when faced with a jury waiver by the plaintiff. An eminent domain defendant facing a jury waiver by the condemning authority can always request and receive leave to file a late jury demand. The legal authority for obtaining this relief, however, exists under section 21007 of the Code (735 ILCS 5/2-1007 (West 2020)) and Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011). See Hernandez v. Power Construction Co., 73 Ill.2d 90, 94-95 (1978); In re Estate of Stewart, 274 Ill.App.3d 298, 302 (1995); Miller, 2014 IL App (1st) 122186, ¶ 22. Relief under these provisions is not automatic, but rather it requires a showing of good cause and is discretionary with the trial court. See Stewart, 274 Ill.App.3d at 302.
¶ 37 Returning to the facts of this case, our analysis above shows that, as of the date of trial in this case, the defendant's legal position was that of having waived its right to a jury trial. This had been its legal position since September 2015, when it did not "file a demand for a trial by jury on or before the return date of the summons served on [it]." See 735 ILCS 30/10-5-5(a) (West 2014). And at no time thereafter did it seek leave to file a late jury demand under section 2-1007 of the Code (735 ILCS 5/2-1007 (West 2020)) or Supreme Court Rule 183 (eff. Feb. 16, 2011). Thus, regardless of whether Wellek had a subjective desire to have a jury trial premised on the Toll Highway Authority's demand, the defendant's attorneys failed to take any of the steps necessary to apprise the court of this desire. See Roszell v. Gniadek, 348 Ill.App. 341, 344 (1952) (purpose of statute establishing deadlines for filing jury demands is to "establish[ ] an orderly method for a party to a lawsuit to inform the court of his desire to have his case tried by a jury").
¶ 38 Accordingly, on February 10, 2020, when Wellek told attorneys Friedman and Landis not to waive a jury trial, this reflected a misunderstanding of the defendant's legal position. There was no jury demand by the defendant to be waived. And given that section 2-1105(a) of the Code had no applicability here, the defendant's attorneys had no ability to control whether a jury trial occurred if the Toll Highway Authority waived its jury demand. At best, they could have sought to demand a jury for the first time, which would have been within the trial court's discretion to allow. But the defendant had no absolute right to have a jury trial under the facts of this case, and for this reason we hold that the trial court's conducing of a bench trial instead of a jury trial is not a meritorious defense for purposes of the defendant's section 2-1401 petition.
¶ 39 Despite the defendant's actual legal position of having waived its right to a jury trial years earlier, it is nevertheless clear from the trial court's remarks that it would have conducted the trial by jury if the defendant's attorneys had indicated that the defendant wanted that. The legal authority by which the trial would have been by jury in this hypothetical scenario is not clear, whether it would have been by virtue of the trial court's discretionary grace or by the Toll Highway Authority's rescinding of its jury waiver. What is clear is that, as addressed above, there was no legal authority giving the defendant an absolute entitlement to trial by jury at that point. Nevertheless, the defendant argues that Friedman's agreement at that point to proceed by bench trial was invalid, because it was contrary to Wellek's direction to him not to waive a jury trial.
¶ 40 As we have found section 2-1105(a) of the Code inapplicable, the defendant's primary remaining support for this argument is found in Lyman v. Kaul, 275 Ill. 11 (1916). There, the plaintiff in a will contest was a Utah resident who, upon arriving in Chicago for trial, discovered that his attorney no longer wished to represent him and had, unbeknownst to the client, waived his right to jury trial as a condition for obtaining opposing counsel's agreement to an earlier continuance. Id. at 19. The plaintiff immediately obtained new counsel and filed a motion to set aside the jury waiver, which the trial court denied. Id. A bench trial occurred approximately three weeks thereafter. Id. The supreme court held that the trial court erred by refusing to grant the plaintiff a trial by jury, noting the promptness with which the plaintiff had acted to bring the matter to the attention of the trial court. Id. at 20. In doing so, it made the following statement relied upon by the defendant here:
"While counsel employed to represent a party to a suit have large powers and authority to enter into agreements and stipulations, they have no authority to waive legal rights guaranteed their clients by law, contrary to the express wishes, orders and directions of their clients. While, as a general rule, it is probably true the client accepts his counsel's
advice as to agreements and stipulations in the trial, he is not bound to do so, especially where the agreement is the waiver of a right conferred by law, such as the right of trial by jury." Id.
¶ 41 While we take no issue with the general principles set forth above, we do not find them to be controlling in the present context, wherein the defendant never demanded a jury and Friedman's statement that the defendant would proceed by bench trial was fully consistent with the defendant's actual legal position of having waived the right to jury years before. By contrast, in Lyman, the attorney was waiving an existing right without the client's knowledge or agreement. We point out that at the time Lyman was decided, the law was such that trial by jury was the default practice in civil cases, unless the parties affirmatively agreed that the case be tried by the court. See Ill. Rev. Stat. 1908, chap. 110, § 60; Reese v. Laymon, 2 Ill.2d 614, 618 (1954). This changed in 1933 with the enactment of section 64 of the Civil Practice Act, which required that parties file a jury demand or else be deemed to have waived a jury. Supra ¶ 31. Thus, the modern rule in place since 1933 "requir[es] an affirmative demand in order to obtain a jury trial," which is "the opposite assumption from the former section 60 of the Practice Act of 1907, whereby the parties had to take affirmative action to have matters of fact tried by the court alone." Reese, 2 Ill.2d at 619.
¶ 42 In this context, it is this absence of any affirmative act by the defendant to ever demand a jury that must control. Regardless of whether Wellek possessed a subjective intent of wanting a jury trial, over four and a half years had lapsed by the time of trial without the defendant's attorneys having done what the law required to inform the trial court of this desire, which was to file a timely jury demand or seek leave to file a late one. Thus, when Friedman stated to the trial court that the defendant wanted a bench trial, this statement was fully consistent with the actual legal position that the defendant had been in throughout the case. This is true, whether everyone involved realized it then or not. We therefore hold that the failure to demand a jury had worked a forfeiture of the defendant's right to jury by that time, and the results of the bench trial cannot be invalidated by an after-the-fact claim that Friedman's agreement to it was without authority. A holding to the contrary would render the finality of many civil bench trials vulnerable to the mental states of disappointed litigants, and it would undermine the right of trial courts and opposing counsel to rely upon statements and agreements made by attorneys on their clients' behalf.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, the judgment of the trial court dismissing with prejudice the defendant's petition to vacate the final judgment is affirmed.
¶ 45 Affirmed.