Illinois Appellate Lawyer Blog

Minimally esteemed author of illinoisappellatelawyerblog.com has been placed on the bloggers’ disabled list. He has been on the shelf since mid-February when a momentary lapse in coordination caused his left typing appendage to fail.

Underwhelmed News Network was first to learn about the injury. Unable to feign a manly attitude, illinoisappellatelawerblog told UNN, “Damn, this hurts a lot.”

Advancing age has lengthened recuperation time, so entries are day-to-day. Illinoisappellatelawyerblog focuses on issues that are important to practitioners in the Illinois appellate courts. “You can’t get enough of this stuff, I know.” the blog said. “I plan to be back in the saddle right soon with regular entries.”

The Dunns sued Lawrence Patterson, their lawyer, claiming estate documents Patterson drafted contained certain provisions that were void because they were against public policy. After the Dunns won a declaratory judgment in the trial court, Patterson appealed.

The Dunns argued that Patterson did not have standing to appeal the declaratory judgment. The Third District Illinois Appellate Court made short work of the argument. The court politely found “this contention to be inconsistent with the fact that plaintiffs named Patterson as the defendant in this suit and obtained a judgment against him.” The appellate court stated the “entry of a judgment itself constitutes legally cognizable damages,” which was sufficient to establish standing.

I can’t say it is a singular example, but I do not recall reading about a plaintiff arguing that a party he sued did not have standing. Patterson got a reversal of the judgment, too. Read the whole case, Dunn v. Patterson, Nos. 3-07-0881, 3-08-0350 (11/18/09), by clicking here.

Marsha Dienstag sued her doctor, Lawrence Margolies, for medical malpractice. She claimed that Margolies did not timely diagnose her cancer. A jury agreed, and gave her a verdict for more than$5.9 million.

Margolies had an “assignment and forbearance” contract with Dienstag. Dienstag agreed not to seek payment of the judgment in excess of Margolies’s malpractice policy limits directly from Margolies. In return, Margolies assigned his claim against his malpractice insurer for “bad faith refusal to settle” within Margolies’s policy limits to Dienstag.

Margolies appealed the judgment. Dienstag pointed to the “forbearance and assignment” agreement and asked the court to dismiss the appeal. She argued that the agreement “renders the instant appeal moot because there is no longer a ‘live controversy’ between the parties.”

The First District Illinois Appellate Court disagreed with Dienstag. The court ruled that Margolies still could be liable to his insurer for an amount in excess of his policy limits, so his appeal was not moot. Here is what the court said:

… [I]t is in Dr. Margolies' interest to seek reversal or reduction of the judgment. Although the terms of the assignment and forbearance agreement would preclude the Dienstags from seeking payment of the excess judgment from Dr. Margolies, he could face financial liability from his insurance carrier if it is required to pay the entire judgment. Moreover, there is nothing contained in the assignment and forbearance agreement that requires Dr. Margolies to drop this appeal. Therefore, we conclude that the present appeal is not moot.

The appellate court ultimately affirmed Dienstag’s judgment. The whole case, Dienstag v. Margolies, No. 1-06-1558 (9/30/09), is available by clicking here.

Richard Henry, then 89 years old, signed a will in 2004 that overrode all of his previous wills and codicils. The 2004 will left a substantial part of Henry’s estate to Peter Wemple and Mick Zawierucha. Henry’s prior will did not. Wemple was named executor of the 2004 will; Zawierucha was Henry’s caretaker.

About two years later, an Illinois trial court ruled that Henry was disabled, and J.P Morgan Chase Bank was named executor of Henry’s estate. The bank claimed that the 2004 will was procured through Zawierucha’s undue influence, so it asked the trial court for permission to change the terms of the document to reflect Henry’s last-known wishes.

Wemple and Zawierucha objected, but the trial court granted the bank’s request. Wemple and Zawierucha appealed. The bank then asked the appellate court to dismiss the appeal because, it argued, neither Wemple nor Zawierucha had standing to bring the appeal.

The First District Illinois Appellate Court agreed with the bank and dismissed the appeal. Wemple and Zawierucha did not have standing because, as yet, they did not have a legally protectable interest in the 2004 will. This is how the appellate court explained the ruling.

[A] will confers no rights upon a legatee until the death of the testator …

Consequently, the dispository provisions of the 2004 will cannot provide standing for appellants: since appellants enjoyed no vested rights under the 2004 will, they cannot claim any injury in fact from the granting of the estate's petition. Our adjudication of this appeal would not result in an "immediate and definitive determination" of appellants' [Wemple and Zawierucha] rights, as is required for standing …

The appellate court stated that Wemple’s and Zawierucha’s recourse would be to file a will contest at the proper time. Read the whole opinion, In re Estate of Henry, Nos. 1-08-3398, 1-08-3479 (10/16/09), by clicking here.

Rosa Neal was guardian of a disabled person’s estate. On behalf of her ward, Rosa contracted to sell the ward’s home to Damon Perry. Damon asked for, and received, approval from the probate court of the contract for sale of the property.

The contract had a mortgage contingency clause. Damon asked for a 30-day extension a day before the contingency was set to expire. The estate refused Damon’s request. Damon then said he would waive the contingency and that he intended to purchase the house as planned. But the estate had received a better offer, so its attorney told Damon that his inability to get a mortgage commitment by the contingency deadline rendered the contract null and void.

Damon then asked the probate court to enforce his contract to purchase the house. But the probate court agreed with the estate, and ruled “that the contract was null and void due to the mortgage contingency provision, and, moreover, because of equitable considerations the contract was not in the best interests of the estate.”

Damon appealed. The parties argued over the correct standard of review. Damon wanted a de novo standard; the estate wanted review by a manifest weight of the evidence.

The First District Illinois Appellate Court chose a third ground. Because the probate court’s decision was “rooted on equitable grounds,” the appellate court chose to review the decision with an “abuse of discretion” standard. Here’s the court’s thinking:

Our reference to the [Illinois] Probate Act of 1975 … does not reflect a clear statement of the standard of review to be applied to probate court orders generally. Although de novo review would be proper if we were interpreting the Probate Act, here we are not presented with a matter of statutory interpretation … While issues concerning the construction, interpretation, or legal effect of contracts are subject to de novo review, it has long been recognized that decisions rooted on equitable grounds should only be disturbed when there is a clear abuse of discretion in the judgment rendered by the lower court … Where a party seeks confirmation of an offer to purchase the assets of an estate, the court, as de facto vendor, may enter or withhold consent, in its discretion … Accordingly, we will review the decision in the case sub judice under that standard.

In the end, Damon’s contract was tossed. Read the whole opinion, Perry v. Estate of Carpenter, No. .1-09-0312 (11/13/09), by clicking here.

Clara George Minch and Ronald George were divorced in 1982. In 2003, Clara learned that Ronald had sold his interest in a company that owned Florida real estate for more than $950,000. She sued George for fraud, asserting that during the divorce proceedings he misrepresented his interest in the stock.

After Clara presented her case, the trial court directed a verdict for George.
The trial court ruled that Clara did not prove fraud and thus failed to meet her burden of proof.

Clara appealed, and the parties disagreed about the proper standard of review. Clara said the appellate court should use a de novo review [trial court gets no deference]. George said the directed verdict should be affirmed unless it was against the manifest weight of the evidence.

The First District Illinois Appellate Court agreed with George. The appellate court explained when each standard is used when a directed verdict is considered on appeal.

If the trial court finds that the plaintiff has failed to present a prima facie case as a matter of law, the appellate standard of review is de novo … If the trial court moves on to consider the weight and quality of the evidence, finding no prima facie case remains, the appellate standard of review is the deferential “manifest weight of the evidence” standard.

In this case, the appellate court found two factors persuasive. (1) The trial court did not state its ruling was “due to the wife’s failure to make a prima facie showing of the husband’s fraud, as a matter of law.” And (2), the appellate court’s review of the record showed it was clear the trial court weighed the evidence.

In the end, George’s directed verdict was affirmed as not against the manifest weight of the evidence. This opinion also sets out the methodology a trial court should follow in ruling on a motion for a directed verdict. Read the whole case, Minch v. George, No. 1-08-1826 (10/30/09), by clicking here.

Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo’s appointment went through there was less than 28 months left in Aiello’s term.

Under the Illinois Election Code, a person appointed to fill a vacancy completes the term if less than 28 months remain. If more than 28 months remain in the term, then the person appointed stays in office only until the next election. The next election was in 2008, but the Aiello term did not expire until late 2010. The question was when the clock started ticking – when Aiello passed away or when Biondo was appointed.

The Democratic Party submitted Carolyn Gardner as a candidate to run for the Aiello vacancy in the November 2008 election. Believing Biondo could complete Aiello’s term, and that there should not be an election for the seat until 2010, the Republican Party did not submit a candidate for the office. Nor did Biondo apply to run.

Margie Mullins, the County Clerk, sided with Biondo and refused to place Gardner on the ballot. So Gardner sued for a writ of mandamus to direct Mullins to do so.

The trial court agreed with Gardner and directed Mullins to put Gardner on the ballot. Biondi then entered the lawsuit and asked the trial court to direct that his name be placed on the ballot. But the trial court disagreed with Biondo, who then asked the court to reconsider and for a temporary restraining order to prevent the election for Aiello’s seat. The trial court denied both of Biondo’s requests.

Biondo appealed under Illinois Supreme Court Rule 307 [allowing interlocutory appeals of orders refusing restraining orders as of right]. Gardner asked the appellate court to dismiss the appeal for lack of jurisdiction. One day before the election, the appellate court ruled in favor of Biondo, and stated his name should be on the election ballot. But by then it was too late to change the ballot. The election proceeded with Gardner as the only name of the ballot for the Aiello seat.

Gardner then appealed to the Illinois Supreme Court. Her first argument was that Biondo’s appeal should have been thrown out for lack of jurisdiction. The supreme court agreed that Rule 307 was not the correct rule for Biondo to appeal under. Rule 307 applies only to interlocutory orders. But “Biondo filed a motion for a temporary restraining order after final judgment on the case had been entered [i.e., the order that was entered before Biondo intervened in the case]. Contrary to Biondo's argument, the filing of a motion to reconsider has no effect on the finality of an otherwise final judgment … Because final judgment had been entered, Biondo's appeal under Rule 307 was inappropriate as it was not interlocutory in nature.”

But Biondo’s error was not fatal to the appeal. The judgment Biondo contested, the supreme court stated, was final and appealable, so even though he used the wrong rule, there was appellate jurisdiction. Here’s how the Illinois Supreme Court explained it.

The appellate court has jurisdiction to hear appeals of final judgments … Because this appeal is from a final judgment, Biondo's appeal would have been proper if brought pursuant to Rule 301, as an appeal as of right … Further, instead of filing for a temporary restraining order, Biondo could have properly moved to stay the circuit court's judgment pending appeal pursuant to Rule 305 … Though the appellate court would have been well within its authority to dismiss Biondo's appeal for failing to cite the appropriate rule, his error was not sufficient to divest the appellate court of jurisdiction where the court otherwise had jurisdiction.

So Biondo got his day in court. But to no avail, because the Illinois Supreme Court ruled that the time begins to run when the vacancy occurs, not when it is filled. Read the whole opinion, Gardner v. Mullins, No. 107707 (9/24/09), by clicking here.

Alex Pajic was injured while driving a truck for his employer. Alex contended that another vehicle caused the accident, but left the scene and never was identified. Alex’s lawsuit against his employer’s insurer, Old Republic Insurance, asked for reformation of the underinsured and the uninsured motorist coverages, and for an award of the limits of those coverages. Alex complained that, contrary to the Illinois Insurance Code, Old Republic did not make a “meaningful offer” of the coverages to the employer.

The trial court ruled that Old Republic complied with the Code, so it gave the insurance company summary judgment. Alex appealed.

The case turned on the interplay among two Illinois Supreme Court cases and a 1990 amendment to the Insurance Code. Alex argued that comments by the Illinois Supreme Court about the amended statute were dictum, and were not controlling, because the case it was deciding involved the pre-1990 amended Code.

The First District Illinois Appellate Court rejected Alex’s argument. The court defined the types of dictum, and their precedential value.

“Obiter dictum is a statement of law made by a court for purposes of illustration, argument, or analogy, or it is a remark uttered "by the way" on some collateral point not directly concerning the question before the court … Obiter dictum is a statement that " 'could have been deleted without seriously impairing the analytical foundations of the holding * * * [and] being peripheral, [it] may not have received the full and careful consideration of the court that uttered it.' " … "On the other hand, an expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause, if dictum, is judicial dictum." … Judicial dictum "is entitled to much weight, and should be followed unless found to be erroneous." … The supreme court's statements about the 1990 law were more than passing remarks on a collateral point, they were the analytical foundation for its judgment … The supreme court gave full and careful consideration to the points being raised here … "[E]ven obiter dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence of a contrary decision of that court."

Whether judicial or obiter dictum, the appellate court affirmed Old Republic’s summary judgment. Read the whole opinion, Pajic v. Old Republic Insurance Company, No. 1-08-2782 (9/30/09), by clicking here.

Neil Ehlers worked as a salesman for Sunbelt Rentals, a seller and renter of industrial equipment. After about five years, Ehlers left Sunbelt and went to work for Midwest Aerials & Equipment, a company that competed with Sunbelt. Sunbelt sued Ehlers and Midwest to enforce restrictive covenants in Sunbelt’s employment agreement with Ehlers. Sunbelt got a preliminary injunction against Ehlers and Midwest, who then appealed.

One of the issues on appeal was whether the trial court properly followed the “legitimate business interest” test when it analyzed the propriety of the restrictive covenants. That test had been used by Illinois appellate courts for more than 30 years.

But the Fourth District Illinois Appellate Court ruled that it didn’t matter because the “legitimate business interest” test had been “spun out of whole cloth” and never had been adopted by the Illinois Supreme Court. The appellate court ruled it was not constrained to abide a standard set by other state appellate courts despite 30 years of acceptance and use. Here’s the court’s rationale:

[E]ven assuming that Ehlers and Midwest are correct that the trial court was bound by appellate court precedent to apply the "legitimate-business-interest" test and failed to do so, we decline to reach the merits of their argument because, unlike the trial court, this court is not required to follow the decisions of its sister districts or, for that matter, our own prior decisions … ("[T]he opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels".) Thus, having repudiated the validity of the "legitimate-business-interest" test earlier in this decision--assuming it was ever valid--we need not address the argument of Ehlers and Midwest that the trial court was bound by precedent to apply it in this case. Any error by the trial court in this regard simply no longer matters at this stage of proceedings.

This opinion is important to appellate practitioners as a reminder not to take the “long-established black letter law” for granted. Maybe it’s not so established. In this case, the appellate court referred to the “legitimate business interest” test as “nothing more than a judicial gloss incorrectly applied to this area of law by [other] … appellate courts.”

In the end, the appellate court affirmed the preliminary injunction. Read the whole case, Sunbelt Rentals v. Ehlers, No. 4-09-0290 (9/23/09), by clicking here.

Jerri Blount sued Jovon Broadcasting. She claimed the company fired her because she agreed to testify for another employee who alleged racial and sexual discrimination against the company. After a trial, a jury awarded Blount $3,082,350, $2.8 million of which was for punitive damages. Jovon appealed, and among other things, argued that the punitive damages award was excessive.

The First District Illinois Appellate Court affirmed the verdict. The court indicated the standard of review for the propriety of a punitive damages verdict has two levels of analysis. First, the “amount of a punitive damages award will not be reversed unless it is so excessive that it must have been a result of passion, partiality, or corruption.” The appellate court also used the more familiar “manifest weight” standard: “Because a jury’s determination of the amount of punitive damages is a predominately factual issue, we will not reverse a jury’s determination as to the amount of punitive damages unless it is against the manifest weight of the evidence.”

So to get a reversal, an appellant must show by a manifest weight of the evidence that a punitive damages verdict was the result of passion, partiality, or corruption.

The whole case, Blount v. Stroud, Nos. 1-06-2428, 1-06-2968 (10/6/09), is available by clicking here.

After Eleanor Miller died, Melodee Miller-Hanson became the successor trustee of Eleanor’s trust. Melodee got into a dispute with the other beneficiaries of the trust, and they ended up suing each other. The beneficiaries wanted Melodee removed as trustee; Melodee wanted the beneficiaries disinherited.

Melodee’s counterclaim was dismissed. And with “a few specific exceptions that were to be assessed against Melodee’s final distribution share,” the trial court ruled against the beneficiaries in their claim against Melodee. Melodee later asked the court to grant her litigation expenses, which the court largely denied.

Under Illinois Supreme Court Rule 304(b)(1) [allowing an interlocutory appeal from a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party], Melodee appealed a number the trial court’s rulings in connection with her requests for fees and costs. But she filed her notice of appeal before the court ruled on a final distribution of the assets of the trust.

Arguing that the appeal was premature, the beneficiaries asked the Second District Illinois Appellate Court to dismiss the appeal. The appellate court agreed that Melodee’s appeal did not invoke appellate jurisdiction: there was no final order from which to appeal because the rights of the parties had not been established. Here is the court’s explanation:

… [T]he rights of the parties to the distribution of the trust assets had not been established by order of the court. While Melodee’s trustee fees had been set by the court, none of the beneficiaries, including Melodee, knew in what proportions the remaining trust assets would be divided … Clearly, no party’s rights regarding the trust were finalized …

To allow Melodee’s appeal at this point is to encourage piecemeal appeals; if we were to address this appeal and affirm the judgment, the execution [of the judgment] would not be the only thing remaining to be done … There was no final judgment from which to appeal, and no provision of Supreme Court Rule 304 applies. Therefore, we grant the plaintiff beneficiaries’ motion to dismiss …

The appellate court also ruled that Illinois Supreme Court Rule 304(b)(1) did not apply to this case because the trial court’s “limited activity falls well short of the type of oversight involved in comprehensive proceedings like estate or guardianship proceedings.” Read the whole case, In re The Living Trusts of George C. Miller and Eleanor Miller, 2-07-0773 (12/14/09), by clicking here.

K4 Enterprises sued Grater, Inc. and James Zavacki During the trial, the parties met with the judge, but without attorneys, to discuss settlement of the case. The case was settled, at least everyone thought so at the time. But over the following weeks, the parties could not agree on the terms of a written agreement.

K4 asked the trial judge to enforce the oral agreement made during the settlement discussions in the court’s chambers. Grater and Zavacki opposed the motion, and asked for an evidentiary hearing. They wanted to question the judge as a witness to the settlement negotiations. The judge denied the request for an evidentiary hearing, and said he would not give testimony. Instead, the judge ruled that Grater and Zavacki could make an offer of proof to show what their other witnesses would say. Grater and Zavacki declined to make the offer of proof, saying they were unable to do so without the testimony of the trial judge. The court then granted K4’s request to enforce the oral settlement agreement.

On appeal, Grater and Zavacki claimed the trial court was wrong to refuse to hold an evidentiary hearing. But the First District Illinois Appellate Court disagreed, and ruled that Grater and Zavacki forfeited the argument by declining to make an offer of proof. Here’s how the appellate court explained it:

Generally, when a trial court refuses evidence, no appealable issues remain unless a formal offer of proof is made … The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced … An adequate offer of proof is the key to preserving a trial court’s error in excluding evidence.

… The trial judge stated that he would not be a witness, but offered defendants an opportunity to make an offer of proof regarding the testimony of other witnesses … Defense counsel had an opportunity to place on the record, for review by this court, what other witnesses, namely, his client, James Zavacki, would testify to with regard to what occurred during the oral settlement negotiations in the judge's chambers. Defense counsel refused to do so and cannot now be heard to complain that the trial court's recollection of those settlement negotiations was inaccurate. Therefore, because defendants refused to make an offer of proof when given the opportunity to do so, we find that they forfeited their objection to the trial court's denial of an evidentiary hearing …

The appellate court affirmed the order to enforce the settlement, a sum of $2 million plus interest. Read the whole case, K4 Enterprises v. Grater, Inc., No. 1-07-2792 (8/19/09), by clicking here.