March 2025 IICLE FLASHPOINTS

The Second District of the Appellate Court recently affirmed the dismissal of breach of fiduciary duty claims asserted by a condominium association against First American Bank and three of its employees who served on the association’s board of directors after the 2008 real estate market collapsed. The trial court found that the bank’s employee’s and former director’s affidavit, deposition transcript, and the supporting documents, including a reserve study later done, all shifted the burden to the plaintiff association to overcome the business-judgment rule. Fountain Square on the River Condominium Ass’n v. First American Bank, 2024 IL App (2d) 230076-U.

Facts

The condominium association was composed of 93 units in Elgin that were constructed between 2005 and 2008 by Novak Construction Company (Novak). 2024 IL App (2d) 230076-U at ¶4. Almost immediately upon the construction’s completion, water infiltration problems arose and the lender on the project, First American Bank, Novak, and the developer entered into a settlement agreement. The agreement called for substantial punch list work to be performed in exchange for settlement on amounts owed to Novak of $775,000, to be paid upon remediation of the water infiltration problem and completion of all the punch list work. 2024 IL App (2d) 230076-U at ¶5.

Wiss, Janney, Elstner Associates, Inc. (Wiss) was employed to inspect the improvements and certify that the water infiltration problems were corrected. Id. Portions of Wiss’ report were quoted in part in the opinion. The quoted text from the report, prepared in July 2009, raised questions that the water infiltration problem was likely to recur because of the water barrier design of the exterior walls. The report suggested that within 7 to 12 years the sealants would again deteriorate and fail under normal weather conditions. 2024 IL App (2d) 230076-U at ¶6. During August 2009, through a deed in lieu of foreclosure, the bank acquired ownership of 58 unsold units of the 93 units in the building. 2024 IL App (2d) 230076-U at ¶8. In December 2009, Wiss signed off, after sealants were replaced and field tests were conducted, that the water infiltration repairs had been completed in satisfaction of the settlement agreement. 2024 IL App (2d) 230076-U at ¶9.

When the bank took title to the majority of the units, it appointed three of its employees as the directors of the association. 2024 IL App (2d) 230076-U at ¶8. Braeside Condominium Management (Braeside) was hired as the property manager. Braeside promptly retained a firm to perform a reserve study that, when completed in 2010, projected that the building’s windows would need to be caulked in 2017, 2027, and 2037 to guard against water infiltration. 2024 IL App (2d) 230076-U at ¶10. In November 2010, control of the association was turned over to the unit owners although two of the bank’s employees remained on the board. 2024 IL App (2d) 230076-U at ¶11.

Four years later, the bank conveyed 58 units, 2 commercial units, and 72 parking spaces to a Canadian firm for $5.6 million. 2024 IL App (2d) 230076-U at ¶12. The sale was conducted “as is.” Id. At the time of the sale the association had $300,000 in its reserves. Id.

By 2015, residents were again reporting water leaks. 2024 IL App (2d) 230076-U at ¶13. In March 2016, the association hired Wiss to provide services for the building. Id. A consultant was also retained to investigate the cause of water leaks. It was determined that the building needed repairs and replacements to correct both design and construction defects affecting barrier walls and balconies, similar to the admonitions in Wiss’ 2009 report. 2024 IL App (2d) 230076-U at ¶14. The total repair costs for the building would exceed $1.7 million. Id.

Litigation ensued. In November 2018, the association filed a 17-count second amended complaint against the bank and its three employees who had served as directors alleging that they breached fiduciary duties by failing to address the window defects in the building. 2024 IL App (2d) 230076-U at ¶16. These breach of fiduciary duty counts also included claims for constructive fraud. Additional claims included violations of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/2, and common-law fraud. Id. Other defendants were included in the action who were dismissed, but the focus in this opinion is the fiduciary duty claims against the bank and its employees.

The defendants moved to dismiss pursuant to §2-619(a)(9) of the Code of Civil Procedure. 2024 IL App (2d) 230076-U at ¶17. The motion to dismiss asserted the business-judgment rule as an affirmative matter to defeat the claims. It was supported by a detailed affidavit from one of the bank employees who had served several years on the association’s board. Id. The employee’s deposition was also taken in 2022. 2024 IL App (2d) 230076-U at ¶18.

The association countered with copies of the bank employee’s deposition transcript and affidavits from the management company and the association’s president. These affidavits discussed the reserve study that was conducted after the building was turned over and the Wiss report and communications. The affidavits also recounted costs incurred by the association in 2014 in making building repairs. Id. In February 2023, the trial court granted the defendants’ motion to dismiss with prejudice finding that the business-judgment rule served as an affirmative matter to defeat the association’s claims. 2024 IL App (2d) 230076-U at ¶19.

Analysis

The association appealed, arguing that the trial court (1) improperly applied the business-judgment rule as an affirmative matter; (2) erred in finding that the §2-619(a)(9) motion defeated the facts presented in the complaint; (3) incorrectly concluded that the plaintiff failed to rebut defendants’ assertion of the business-judgment rule; and (4) abused its discretion in granting the motion to dismiss with prejudice. 2024 IL App (2d) 230076-U at ¶22. The appellate court applied de novo review. 2024 IL App (2d) 230076-U at ¶23.

Section 2-619(a)(9) motions permit dismissal of a claim that is “barred by other affirmative manner avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9). 2024 IL App (2d) 230076-U at ¶24, quoting 735 ILCS 5/2-619(a)(9). The term “affirmative matter” has been defined as “a type of defense that either negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” 2024 IL App (2d) 230076-U at ¶24, citing Krilich v. American National Bank & Trust Company of Chicago, 334 Ill.App.3d 563, 778 N.E.2d 1153, 1160, 268 Ill.Dec. 531 (2d Dist. 2002). In considering a motion to dismiss under §2-619(a)(9), a trial court may consider matter that is not apparent on the face of the complaint, including pleadings, depositions, and affidavits supporting a defendant’s assertion about the affirmative matter. 2024 IL App (2d) 230076-U at ¶25. “The burden then shifts to the plaintiff who must establish that the affirmative defense asserted either is ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ ” Id., quoting Epstein v. Chicago Board of Education, 178 Ill.2d 370, 687 N.E.2d 1042, 1049, 227 Ill.Dec. 560 (1997), quoting Kedzie 103rd Currency Exchange, Inc, 156 Ill.2d 112, 619 N.E.2d 732, 735, 189 Ill.Dec. 31 (1993). If the trial judge finds that the plaintiff has failed to carry the shifted burden forward the motion to dismiss may be granted. 2024 IL App (2d) 230076-U at ¶25.

“The business judgment rule shields directors who have been diligent and careful in performing their duties from liability for honest errors or mistakes in judgment.” 2024 IL App (2d) 230076-U at ¶26, quoting Miller v. Thomas, 275 Ill.App.3d 779, 656 N.E.2d 89, 95, 211 Ill.Dec. 897 (1st Dist. 1995). As long as the defendants have exercised “due care, adequate information, and good faith in making business decisions,” the business-judgment rule protects corporate directors in how they address problem such as water leakage and window defects in a building. 2024 IL App (2d) 230076-U at ¶26. The appellate court held that the trial court was entirely proper in considering the business-judgment rule in the context of this action. Id.

“The business judgment rule acts to shield directors who have been diligent and careful in performing their duties from liability for honest errors or mistakes of judgment.” 2024 IL App (2d) 230076-U at ¶28, citing Stamp v. Touche Ross & Co., 263 Ill.App.3d 1010, 636 N.E.2d 616, 621, 201 Ill.Dec. 184 (1st Dist. 1993).

Under the business-judgment rule, the judgment of the corporate board enjoys the benefit of a presumption that it was formed in good faith and was designed to promote the best interests of the corporation it serves. Absent bad faith, fraud, illegality, or gross overreaching, courts will not interfere with the exercise of the business judgment by corporate directors. 2024 IL App (2d) 230076-U at ¶28, citing Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶77, 46 N.E.3d 706, 399 Ill.Dec. 387.

In this particular action, the appellate court affirmed that all of the plaintiff’s claims for breach of fiduciary duties against the defendants were focused on the failure to address water infiltration problems properly and the failure to establish a plan to keep enough financial reserves to fund future repairs to the building. 2024 IL App (2d) 230076-U at ¶29. Although the association argued that in 2009 Wiss had recommended that all the windows be replaced, the board at that time chose to proceed with the alternative of making sealant repairs to the windows. Id. The appellate court noted that the business-judgment rule was designed to preclude this kind of second guessing of the board’s decisions. Id.

The appellate court further rejected the association’s argument that its counteraffidavits sufficiently rebutted the defendants’ evidence that the business-judgment rule barred the breach of fiduciary duty claims. 2024 IL App (2d) 230076-U at ¶40. Relying on Supreme Court Rule 191(a), the appellate court concluded that the association’s affidavits failed to rebut the invocation of the business-judgment rule. 2024 IL App (2d) 230076-U at ¶¶41, 42. The plaintiffs’ affidavits failed to show any expertise or experience in handling water leaks, sealants, or other types of building maintenance and failed to provide a basis for conclusion that the 2009 sealant repairs were simply a “stop gap” measure. 2024 IL App (2d) 230076-U at ¶42.

The appellate court, after reviewing the prima facie case for a private cause of action of the Illinois Consumer Fraud Act or common-law fraud, noted that the record contained no evidence of any deceptive act or practice or any evidence of any statement made by the plaintiff's much less false statements. 2024 IL App (2d) 230076-U at ¶45.

Justice Kennedy of the Appellate Court’s Second District dissented finding that the association’s counteraffidavits were sufficient to minimally raise material facts that should have precluded dismissal of the action at the pleading stage. 2024 IL App (2d) 230076-U at ¶¶51 – 55.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In People v. Hagestedt, 2025 IL 130286, the Illinois Supreme Court held that the police conducted an unlawful search into a defendant’s locked kitchen cabinet during a gas leak investigation.

In Hagestedt, police officers entered the defendant’s townhome to assist a fire department with investigating a gas leak. The fire department determined that the kitchen stove was the source of the gas leak. One of the officers was unsure whether the stove had been shut off. After checking the stove, the officer began exiting the kitchen and saw an upper cabinet that was chained and padlocked. The cabinet door was one inch ajar. The officer used his flashlight to look inside the cabinet and saw suspected cannabis. Another officer arrived and pulled back the chained cabinet doors and saw suspected cannabis inside the cabinet. 2025 IL 130286 at ¶5 – 6.

The police obtained a search warrant for the townhome and recovered cannabis, heroin, cocaine, and fentanyl. The defendant was charged with possession with intent to deliver cannabis and possession of a controlled substance. The trial court denied the defendant’s motion to suppress evidence, and the defendant was convicted of the charges after a stipulated bench trial. The appellate court affirmed. 2025 IL 130286 at ¶¶7 – 10.

The Supreme Court reversed the convictions and held that the defendant had a reasonable expectation of privacy in the kitchen cabinet because he protected his privacy by chaining and locking the cabinet. 2025 IL 130286 at ¶24. The Supreme Court next held that the police conducted a “search” when they opened the doors further and used a flashlight to peer into the cabinet. 2025 IL 130286 at ¶39. The court noted that a “search” has been repeatedly defined by the court, including the U.S. Supreme Court, as “prying into hidden places for that which is concealed . . . while a search does not occur when one observes what is in open view.” 2025 IL 130286 at ¶28. The nature of the opening is a consideration for determining when a search occurs. 2025 IL 130286 at ¶38.

The court concluded that the officer “took deliberate action that was unrelated to his authorized intrusion [to check the gas leak] which constituted an independent search.” 2025 IL 130286 at ¶39. The court noted that although the cabinet was in plain view, its contents were not in plain view because the cabinet doors were padlocked. The officers were unable to see the cabinet’s contents before they pulled the door back and used a flashlight to look inside. There was also no evidence that the cabinet was the source of the gas leak and no evidence that the flashlight was necessary to investigate the gas leak. Id.

Therefore, the defendant had an expectation of privacy in the kitchen cabinet. Since the search warrant relied on facts obtained from an unreasonable warrantless search, the search warrant was suppressed and any evidence obtained from the search warrant was suppressed “as fruit of the poisonous tree.” 2025 IL 130286 at ¶46.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

Beneficial Interest Designation on Retirement Account Trumped Marital Settlement Agreement Entitling Ex-Wife to Retirement Account Proceeds upon Ex-Husband’s Death

In Mowen v. Kelly, 2025 IL App 4th 240906, the Fourth District Appellate Court reversed a trial court’s order that had granted summary judgment in favor of a decedent ex-husband’s father, who sought to invalidate the expectancy interest of his deceased son’s ex-wife with respect to the ex-husband’s retirement accounts. The ex-husband had designated his ex-wife as the primary beneficiary and his father as the secondary beneficiary before the divorce. The ex-husband never changed the beneficiary designations after the divorce. The father argued that the judgment for dissolution of marriage implicitly revoked the ex-wife’s beneficiary designation. The appellate court reversed, holding that there was no termination of the ex-wife’s expectancy interest in the retirement accounts. The language of the marital settlement agreement (MSA) awarded the ex-husband his retirement accounts as his sole and separate property but was silent as to the ex-wife’s expectancy or beneficial interest in such accounts. Further, being awarded property in a judgment for dissolution of marriage means gaining the ability to control who will be the new owner after one dies. The court distinguished the case at bar from Herbert v. Cunningham, 2018 IL App (1st) 172135, ¶46, 129 N.E.3d 539, 432 Ill.Dec. 321, which dealt with an MSA that contained specific language “waiv[ing] . . . all property rights and claims which he or she now has or may hereafter have.” [Emphasis in original.] 2025 IL App 4th 240906 at ¶20. Such language in the Herbert MSA extinguished the ex-wife’s expectancy interest in the ex-husband’s 401(k), which was akin to a property right or a claim that the ex-wife “may hereafter have.” [Emphasis in original.] Id. This case underscores the importance of executing revised beneficiary designations post-divorce or including language in the MSA that both parties waive any property rights and claims that either party has at the time of the divorce or that may arise thereafter.

Trial Court’s Ruling Denying Ex-Husband’s Petition To Terminate Maintenance on Basis of Cohabitation Affirmed

The First District Appellate Court affirmed a trial court’s denial of an ex-husband’s amended motion to terminate maintenance, finding that the ex-wife was not in a de facto marriage pursuant to §510(c) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 705 ILCS 5/510(c). In re Marriage of Culm, 2025 IL App (1st) 240566.Applying the Herrin factors originating from In re Marriage of Herrin, 262 Ill.App.3d 573, 575, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994), while the ex-wife and her boyfriend maintained a lengthy romantic dating relationship, they never lived together; they maintained separate finances; and their actions lacked future planning indicative of a marital relationship. The court noted that occasional financial transfers, shared travel, and periodic overnight stays were insufficient to establish a de facto marriage. Because the ex-wife and her boyfriend were not cohabitating within the “common meaning” of the term, §510(c) of the IMDMA did not apply. 2025 IL App (1st) 240566 at ¶100. In addition, four of the six Herrin factors weighed against de factomarriage. Id. Therefore, the trial court’s ruling was not against the manifest weight of the evidence.

For more information about family law, see ADOPTION LAW (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

Facts

Chiquita Mahon and Bobby Binion jointly purchased real estate property. HSBC Bank USA, N.A. v. Mahon, 2025 IL App (1st) 232462-U, ¶2. Although Binion purportedly transferred his interest in the subject property to Mahon through a 2001 warranty deed, he subsequently executed a 2006 mortgage with HSBC Bank USA (HSBC) against that same property. Id. Approximately six months later, Binion defaulted on the mortgage and HSBC filed a foreclosure complaint against him. Id. Mahon intervened, seeking to void the mortgage by claiming that she was the sole owner and that Binion did not have an interest in the property when he executed the 2006 mortgage because he had transferred his interest to Mahon in 2001. Id. HSBC amended its complaint, adding Mahon as a defendant and arguing, in the alternative, that it was entitled to an equitable lien against the property in the event the mortgage was voided. Id. Apparently, HSBC had been paying the real estate taxes and hazard insurance premiums for over ten years following Binion’s default, unjustly enriching Mahon in the process. 2025 IL App (1st) 232462-U at ¶¶2 – 4.

The central issue at trial was whether Binion signed the 2001 warranty deed.2025 IL App (1st) 232462-U at ¶6. Mahon was her only witness as Binion did not testify. Id. HSBC provided expert testimony claiming the 2001 deed was forged, and therefore the 2006 mortgage was valid. Id.

During the trial, Mahon testified that she believed that only her name had been on the title of the subject property since 2001. 2025 IL App (1st) 232462-U at ¶8. She also testified that she had personally observed Binion sign the 2001 warranty deed, remembered the notarization of the deed, and was familiar with Binion’s signature, as she had had a long-standing personal and professional relationship with him. Id. On cross-examination, Mahon was questioned about her prior deposition testimony in which she testified that she was not familiar with Binion’s signature and did not know whether his signature was on the 2001 deed. Id. Mahon explained this discrepancy in her testimony by claiming that because she now had had an opportunity to review the documents, she realized that she was familiar with them. Id. There were other discrepancies in her testimony relating to her relationship with Binion. 2025 IL App (1st) 232462-U at ¶9.

HSBC then called its expert to testify as to whether the signature on the warranty deed was Binion’s. 2025 IL App (1st) 232462-U at ¶11. HSBC’s expert described herself as a forensic document examiner who had testified more than 200 times, had written numerous articles, was a member of several professional organizations, and had undergone extensive professional training. Id. As for the expert’s methodology, she compared known samples of Binion’s signature with the signature on the 2001 deed. Id. After reviewing a “number of fundamental differences that exist between the questioned signature and the known signature,” including “beginning strokes, spacing, letter design, slant, connecting strokes, [and] ending strokes,” the expert concluded that Binion did not sign the 2006 warranty deed. 2025 IL App (1st) 232462-U at ¶12. Mahon took issue with the expert’s use of enlarged photocopies of the signature samples rather than an original sample, claiming that photocopies are not as reliable as originals, and noted the fact that there was variation among the samples that Marsh analyzed.2025 IL App (1st) 232462-U at ¶13.

Ultimately, the trial court ruled in favor of HSBC. 2025 IL App (1st) 232462-U at ¶18. In doing so, the trial court found that Mahon’s testimony was not credible because of the significant inconsistences between her testimony at trial and her prior deposition testimony. 2025 IL App (1st) 232462-U at ¶15. The trial court also found HSBC’s expert to be qualified and her methodology sound. 2025 IL App (1st) 232462-U at ¶¶16 – 17. Mahon filed a timely appeal, arguing that the trial court erred in its determination regarding Mahon’s credibility and the expert’s qualifications and methodology. 2025 IL App (1st) 232462-U at ¶¶6, 19.

Appellate Court

The appellate court upheld the lower court’s decision, finding that it was not against the manifest weight of the evidence and affording the trial court great deference, as it was in the best position to determine and weigh the credibility of the witnesses, observe their demeanor, and resolve conflicts in their testimony. 2025 IL App (1st) 232462-U at ¶24. With respect to Mahon’s claim that her testimony was creditable and uncontroverted, the appellate court disagreed, noting that the record was replete with evidence of her inconsistent testimony and that she was not a disinterested witness, as her liability for damages hinged on whether the 2001 deed was valid. 2025 IL App (1st) 232462-U at ¶¶28 – 30.

Similarly, noting that the decision whether to admit an expert’s testimony is within the sound discretion of the trial court, the appellate court remarked that “[t]here is no predetermined formula for how an expert acquires specialized knowledge or experience and the expert can gain such through practical experience, scientific study, education, training or research.” 2025 IL App (1st) 232462-U at ¶33. Practical field experience may be sufficient, and such an expert’s testimony should be admissible provided that the expert has sufficient knowledge, skill, training, or education and the testimony will assist the trier of fact in understanding the evidence. Id. Mahon’s objections based on the expert’s field of study, her failure to train in any government or laboratory setting, and the fact that two of her certifications were from now defunct organizations were insufficient to disqualify HSBC’s expert. 2025 IL App (1st) 232462-U at ¶¶35 – 39. Indeed, the appellate court noted that Mahon failed to cite any legal authority to support her arguments. 2025 IL App (1st) 232462-U at ¶35.

With respect to the expert’s methodology, the appellate court stated that in Illinois, the Frye standard (i.e., the “general acceptance test”) governs the admission of expert testimony. 2025 IL App (1st) 232462-U at ¶41, citing, in part, Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). Under this standard, it is sufficient that the underlying method used to generate an expert opinion is reasonably relied on by experts in the field. Id.

In reviewing her methodology, the appellate court noted that the expert had reviewed several examples of Binion’s signature from deeds, mortgages, and voter registration records, among others sources, analyzing the signature on the 2001 deed side-by-side with these materials and evaluating them through a number of handwriting characteristics. 2025 IL App (1st) 232462-U at ¶42. Mahon objected to the expert’s use of photocopies for her evaluation, citing the American Board of Forensic Examiners’ guidance that “[p]hotocopies pose an inherent limitation that can interfere with the examination procedure.” 2025 IL App (1st) 232462-U at ¶44. The appellate court countered that while “photocopies can interfere with the examination procedure,” that does not establish that they “inherently do so.” [Emphasis in original.] Id. Because Mahon failed to argue that the photocopies interfered with the examination process or explain how they interfered, she failed to counter the expert’s testimony that the photocopies were clear and very legible. Id. Moreover, the appellate court found Mahon’s objection to the expert’s enlarging the photocopies to be without merit, as the expert testified that she had based her opinions on the actual photocopies themselves and not the enlargements. 2025 IL App (1st) 232462-U at ¶45. Under these circumstances, the appellate court declined to call into question the expert’s use of photocopies in her analysis and called Mahon’s challenge “entirely meritless.” 2025 IL App (1st) 232462-U at ¶¶43 – 45.

Finally, the appellate court rejected Mahon’s challenge based on the expert’s failure to collect or have access to Binion’s current writing samples that were requested for the litigation. 2025 IL App (1st) 232462-U at ¶¶43, 46. Because the record indicated that the expert analyzed more than 30 samples of Binion’s signatures over an extended period of time, including from the time the 2001 deed was executed, the appellate court agreed that she employed a sound methodology in reaching her opinion and that the trial court did not err in admitting her testimony. 2025 IL App (1st) 232462-U at ¶46.

For all of these reasons, the appellate court affirmed the lower court’s judgment, agreeing that the evidence amply supported the trial court’s judgment, which was not against the manifest weight of the evidence. 2025 IL App (1st) 232462-U at ¶¶47 – 50.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

In a case of first impression, the court found a claimant’s pain resulting from repetitive work activity was compensable in Tazewell County v. Illinois Workers’ Compensation Commission, 2025 IL App (4th) 230754WC. The claimant was a full-time dental hygienist for the respondent’s health department. She claimed a repetitive trauma accident of June 24, 2019. 2025 IL App (4th) 230754WC at ¶3. She worked for the respondent from 2005 until 2019. 2025 IL App (4th) 230754WC at ¶6. She would see 12 to 14 patients a day and up to 18 patients on busy days. Id. Appointments were scheduled for 30 to 45 minutes without a break between patients unless there was a cancellation. During a 30-minute appointment, the claimant’s left arm would be in an elevated position for 15 minutes. Id.

The claimant cleaned teeth and operated the dental tools with her right hand. She used her left hand to handle the mirror and stabilize the patient’s head. The arbitrator observed the claimant demonstrate and “stated that the claimant’s elbow appeared to be bent at a 90-degree angle and her wrist was slightly flexed.” 2025 IL App (4th) 230754WC at ¶5.

The claimant noticed problems with her left shoulder in January 2019. 2025 IL App (4th) 230754WC at ¶7. She had pain with her arm elevated and it progressed. At first, her shoulder felt tired at the end of the day, but the symptoms increased into “full-blown pain” that affected her sleep. Id. She worked Monday through Thursday. By Sunday her shoulder felt good; however, the pain returned by Tuesday. She sent an email to her supervisor on April 9, 2019, advising that she needed a cortisone shot. Id.

The claimant came under the care of Dr. Jill Wirth-Rissman on April 11, 2019, for left shoulder pain that started in February 2019. 2025 IL App (4th) 230754WC at ¶8. Dr. Wirth-Rissman diagnosed acute pain with left rotator cuff tendinosis and administered a corticosteroid injection. After a second injection in May 2019, Dr. Wirth-Rissman ordered an MRI, which revealed multiple findings including severe rotator cuff tendinosis, impingement, a small supraspinatus tendon tear, and acromioclavicular joint arthritis. 2025 IL App (4th) 230754WC at ¶9. An injection was administered in June 2019, and the patient was referred to Dr. Michael Merkley, an orthopedic surgeon. Id.

The claimant saw Dr. Merkley on June 24, 2019. She provided a history of “injury/pain” beginning in February 2019. 2025 IL App (4th) 230754WC at ¶10. She did not indicate where and how it occurred. She further indicated there was no workers’ compensation dispute. Dr. Merkley diagnosed left shoulder pain, partial-thickness rotator cuff tear, ACL arthrosis, bursitis, and biceps tenosynovitis. He recommended surgery and restricted any repetitive use of the left arm with a ten-pound lifting limitation. 2025 IL App (4th) 230754WC at ¶11.

The surgery was performed on August 6, 2019. 2025 IL App (4th) 230754WC at ¶12. The claimant continued to treat with Dr. Merkley following the surgery and had physical therapy. She was ultimately released to work with no restrictions on April 1, 2020. Id.

Dr. Merkley prepared a report for the claimant’s attorney in October 2020. 2025 IL App (4th) 230754WC at ¶13. In it, he described the claimant’s duties using her left arm and that her left shoulder became painful over time. Dr. Merkley did not believe her duties caused the rotator cuff tear, but he did state her repetitive work activities “were a contributory cause of pain at her left shoulder.” Id. He wrote that repetitive activities at shoulder level or waist level can increase the pain in a patient who has preexisting rotator cuff pathology. He provided a further opinion because of the repetitive nature of the activities performed with the left shoulder. It was “reasonable to assume,” he opined, based on the claimant’s history, that there was a causal relationship between her work and “the pain at her left shoulder.” Id.

Dr. Lawrence Li examined the claimant at the respondent’s request. He also reviewed medical records, a job description, and diagnostic films of the claimant’s treatment. His opinion was that the job duties did not cause, aggravate, or accelerate the rotator cuff tear, impingement syndrome, and ACL joint arthritis. He observed that, based on the job description, the claimant’s hands and elbows were always below her shoulder. He also noted that a hygienist could not exert significant force inside an awake patient’s mouth because that would be painful. He concluded that shoulder pain could manifest during the job duties as a result of a rotator cuff tear; however, this would be a temporary aggravation or manifestation of symptoms.

The claimant’s supervisor, a dentist, testified the claimant’s demonstration of how she performed her duties was “a little inaccurate.” 2025 IL App (4th) 230754WC at ¶16. She testified that a hygienist’s elbows should be bent at a 90-degree angle, and the arms should be below shoulder level. Id.

The arbitrator found the claimant failed to prove she sustained an accidental injury. The Commission reversed the decision, relying particularly on Dr. Merkley’s treatment and opinions. “While the tear was pre-existing, the evidence establishes that [the claimant’s] work duties aggravated her condition, which ultimately necessitated the [need for surgery] she eventually received. Therefore, the Commission finds that [the claimant] established that her condition is causally related to her work duties.” 2025 IL App (4th) 230754WC at ¶18.

The issue on appeal was “whether repetitive work activity that results solely in pain from a preexisting non-work-related condition is compensable . . . in the absence of a concomitant worsening of the underlying condition.” 2025 IL App (4th) 230754WC at ¶27. The court’s standard of review was the manifest weight of the evidence. As this was a case of first impression, the court analyzed precedent from other jurisdictions, finding there was a split on the issue.

The court analyzed the issues of accident and causation together. After summarizing cases from other jurisdictions, the court held: “We believe that, when a preexisting condition is asymptomatic and then becomes painful as the result of work-related activity, that symptomatic condition is compensable under the Act as an aggravation of a preexisting condition even in the absence of an organic or structural change in the preexisting condition.” 2025 IL App (4th) 230754WC at ¶31.

There was no dispute that the claimant’s preexisting conditions were not caused by her work duties. The only evidence was that she suffered pain from repetitive work activity. The Commission found the claimant sustained a repetitive trauma injury arising out of and in the course of her employment. Based on the holding, the court concluded the Commission’s decision was not against the manifest weight of the evidence.

The court further found the Commission’s reliance on Dr. Merkley’s opinions that the repetitive activities were a contributing cause of the pain in the claimant’s left shoulder satisfied the claimant’s burden of proving a causal relationship to her employment. The court found no basis to conclude that an opposite conclusion was apparent. Thus, the Commission’s determination on causation was not against the manifest weight of the evidence.

Justice Mullen dissented and did not believe that, in this case, pain alone was sufficient. The dissent notes the majority acknowledged that the issue of whether the preexisting condition was aggravated by the work duties was outside the knowledge of lay persons. As such, medical evidence was required to establish causation and the aggravation or acceleration of the preexisting condition. Justice Mullen did not find that the claimant presented any medical evidence that the repetitive activities accelerated or aggravated the preexisting condition, noting that Dr. Merkley never said the work activities aggravated or accelerated the preexisting condition in the claimant’s left shoulder.

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I have had the privilege of writing the Workers’ Compensation FLASHPOINTS since 2000 and it is time for a change. Going forward, Kisa Sthankiya and Jigar Desai, my partners when I was at Rusin & Maciorowski, will provide workers' compensation articles after this edition. I am grateful to everyone at IICLE and the FLASHPOINTS subscribers for their support and help. Please consider volunteering to write for IICLE so that it continues to provide excellent continuing legal education. Thank you. — Joseph P. Basile

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Joseph P. Basile

Joseph P. Basile, Chicago, concentrates his practice in workers’ compensation and civil litigation. He is a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program, has been a faculty member at annual IICLE® workers’ compensation seminars, and is the author of the monthly workers’ compensation column for IICLE®’s FLASHPOINTS™. He is a member of the Chicago and Illinois State Bar Associations. Mr. Basile received his B.S. from St. Louis University and his J.D. with distinction from the University of Illinois Chicago School of Law, where he was a member of The John Marshall Law Review.

Our March 2025 FLASHPOINTS Author Spotlight recognizes Nrupa Patel, who most recently worked on CHILD WELFARE LAW: NEGLECTED, ABUSED, AND DEPENDENT MINORS (IICLE^®, 2024) as a contributing author. Patel has also served as an author for ELEMENTS OF ILLINOIS LAW: DOMESTIC RELATIONS AND JUVENILE LAW (IICLE®, 2023) and as a speaker for IICLE programs and the IICLE podcast Cornered: Out of Court.

Patel is passionate about juvenile law and found the opportunity to help educate others on the subject through IICLE. “I filled out a form online . . . that I was interested in writing or presenting CLE materials. A couple months later, I got an email from IICLE indicating that they needed someone to help with updates on a book pertaining to juvenile law, so I jumped right in.”

IICLE’s commitment to furthering the professional development of Illinois attorneys aligned with Patel’s own values as well. “[E]ducating other professionals is important to me. I was a juvenile prosecutor at my previous job, so I lived and breathed juvenile law full time and got pretty good at it. I found out that not many private attorneys are well-versed in juvenile law. Even seasoned public defenders end up running across some new and unusual situations in juvenile court. I have always had some role in my life as a teacher. Before I became an attorney, I worked as a private tutor for kids for several years. I have trained other attorneys and legal assistants after I became an attorney myself, and I don't think I could ever stop teaching others.”

“I use IICLE resources frequently in my juvenile, divorce, and criminal defense practice. I also enjoy writing . . . as I end up learning something new with each publication and it keeps me informed of any changes in the statutes or caselaw.”

Patel is a Partner at Bolen Robinson & Ellis, LLP, in Decatur and focuses her practice on family law, criminal defense, DCFS administrative appeals, and orders of protection. Patel is a 2019 recipient of the Russel D. Hoerbert Pro Bono Award and a member of the Decatur and Illinois State Bar Associations. She graduated cum laude from Northern Illinois University College of Law and magna cum laude from Bradley University.