February 28, 2008

Fifth District Illinois Appellate Court Looks At Waiver, Ex Parte Communication, And Trial Judge Misconduct. First District Appellate Court Reviews Completeness Of Appellate Record

A couple of quick hits today.

In a medical malpractice case, the Fifth District Illinois Appellate Court had this to say about the waiver rule: “’It is well established that both an objection at trial and a written post[ ]trial motion raising the issue are necessary to preserve an alleged error for review.’ … ‘Application of the waiver rule, however, is less rigid where the basis for the objection is the trial judge's conduct.’"

In the same case, the court addressed the propriety of plaintiff’s ex parte communication with the trial judge. Ruling there was no reversible error, the appellate court stated: “In the present case … a reversal is unnecessary because there is no suggestion of bias or prejudice on the part of the trial judge, i.e., there is no suggestion that there was any outside influence or that the case was decided on any basis other than the evidence presented in the case. Accordingly, there was no appearance of impropriety. We therefore conclude that, under the circumstances of this case, any error committed by the trial court by conducting this brief ex parte communication was harmless.”

See the whole case, Bauer v. Memorial Hospital, No. 5-06-0291 (11/27/07), by clicking here.

And in a personal injury action, the First District Illinois Appellate Court reiterated the rule that: “While we cannot determine whether the trial court reviewed this document, this court cannot consider documents that were not included in the record.” You can have the whole case, Babich v. River Oaks Toyota, No. 1-05-3728 (11/8/07), by clicking here.

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February 24, 2008

Employer’s Failure To Sufficiently Raise Position In Trial Court Results Waiver On Appeal

In a lawsuit in Missouri, Cambridge Engineering got an injunction against a former employee from engaging in sales-related activity for his new employer, Mercury Partners. Cambridge then sued Mercury in Illinois for tortious interference with contract.

The trial court (1) entered judgment notwithstanding the verdict against Mercury and (2) directed a verdict in favor of Mercury on Cambridge’s claim for punitive damages.

Cambridge appealed. One of the issues was whether a nonsolicitation clause in Cambridge’s contract with its former employee provided a ground for recovery. The First District Illinois Court of Appeals ruled that Cambridge waived the argument because it was not argued in the trial court.

The rule that failure to raise a claim for recovery in the trial court results in waiver of the position on appeal is well known. This opinion is notable because it digs a little deeper than most and provides the underlying policy for the waiver rule.

Underlying the doctrine of waiver is a desire to "to preserve finite judicial resources by creating an incentive for litigants to bring to trial courts' attention alleged errors, thereby giving trial courts an opportunity to correct their mistakes." … Another key purpose of the waiver doctrine is to prevent unfair prejudice to an opposing party: If one party neglects to raise an argument at the trial level, the adversary may be forestalled from presenting evidence in rebuttal, and thus it is proper to bar the first party from springing the argument at the appellate level where the presentation of evidence is no longer possible.
Cambridge did mention the nonsolicitation clause in the complaint. But that passing reference was not enough to avoid waiver. The court ruled that Cambridge did not present the nonsolicitation clause as a separate ground for relief, as it argued in the appellate court.

Read the whole case, Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., No. 1-06-0789 (12/7/07).

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February 21, 2008

No Forfeiture Of Appeal Where Plaintiff’s Amended Complaint Does Not Include Defendant-Appellees

Plaintiff was arrested for shoplifting at a Wal-Mart. After his arrest by the Forest Park Police, he committed suicide in his jail cell. His estate sued the police department and one of the police officers, as well as Wal-Mart and a number of its employees.

The police department and the officer were granted summary judgment. The estate then filed an amended complaint that did not include counts against the department or the officer. More motions ensued, resulting in summary judgment for the remaining defendants.

The estate then appealed the summary judgment granted to the police department and the officer. They in turn moved to dismiss the appeal, arguing that the estate forfeited the right to appeal because the amended complaint did not include them.

The First District Illinois Appellate Court rejected the argument. The court pointed out that waiver is an admonition to the parties, not a limitation on the court. Because (1) there was no “surprise or disadvantage” to the police department or the officer, and (2) “it appears that the trial court required the plaintiff to remove the counts decided by summary judgment from her fourth amended complaint,” the appellate court chose to allow the appeal to proceed.

Get the whole case, Luss v. Village of Forest Park, Nos. 1-06-0731, 1-06-2839 (11/5/07), by clicking here.

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February 19, 2008

Fourth District Illinois Appellate Strikes Brief For Lack Of Citation To Record Or Authority

In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff’s reply brief for lack of appropriate citations.

Rejecting plaintiff’s Joycian stream of consciousness style, the court stated:

The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341 … Rule 341(j) , which authorizes an appellant to file a reply brief, provides as follows: "The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument." 210 Ill.2d R. 341(j). Rule 341(h)(7) requires appellants to give reasons for their contentions "with citation of the authorities and the pages of the record relied on." 210 Ill.2d R. 341(h)(7). This court has stated that "[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." … A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited.

Read the whole case, Crull v. Sriratana, No. 4-06-0952 (10/11/07), by clicking here.

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February 14, 2008

Special Representative Gets Bonus Time To Appeal

LeRoy Voga sued his son, Lyle, to collect on a defaulted promissory note. After LeRoy got a judgment, Lyle’s former wife, Teresa, , intervened to quiet title to real property she had been awarded in her divorce proceeding with Lyle, seeking to prevent LeRoy from levyng on the property.

Teresa was granted summary judgment. Soon after, LeRoy died. Before a special representative for the estate was named, LeRoy’s attorney moved to vacate the summary judgment. After a special representative was appointed, the trial court denied the motion to vacate.

The special representative, Larry, appealed the summary judgment. Teresa moved to dismiss the appeal. She asserted that the motion to vacate the summary judgment was a nullity and therefore did not toll the time to file the Notice of Appeal. Without the tolling period, Teresa argued, the Notice of Appeal was late and did not confer appellate jurisdiction.

Teresa’s nullity argument was based on the fact that the motion to vacate was made before a special representative was appointed. With no representative, Teresa concluded, there was no plaintiff, so the motion to vacate was made without authority.

The Illinois Second District Appellate Court rejected Teresa’s position. The court ruled that the period after LeRoy’s death and before Larry’s appointment — a time the trial court is without jurisdiction over the case — could not be counted toward the time to appeal. Larry had been appointed special representative on January 9, 2007, and he participated in the hearing on the motion to vacate the next day. “Thus, by any reasonable calculation, on January 10, 2007 there was a timely oral postjudgment motion before the trial court. The court denied the motion, and Larry appealed within 30 days of the denial. Therefore, we have jurisdiction to consider the merits of Larry’s appeal.”

Get the whole case, Voga v. Voga, No. 2-07-0176 (12/4/07), by clicking here.

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February 11, 2008

Illinois Supreme Court To Review IRMO Gutman. Is Civil Contempt Petition A Separate Claim From Underlying Divorce Case?

I mentioned IRMO Gutman in my January 3, 2008 entry regarding IRMO Knoerr. In IRMO Knoerr, the Second District Illinois Appellate Court overruled IRMO Gutman, which was only two months old at the time. On January 30, 2008, the Illinois Supreme Court announced it will review IRMO Gutman.

In IRMO Gutman, the Second District ruled that a pending civil contempt petition was a “separate claim” from the underlying divorce lawsuit. As a result, the divorce matters could be appealed while the contempt proceeding was pending without benefit of a Rule 304(a) order (trial court may allow appeal of final order of fewer than all claims). In IRMO Knoerr, another panel of the Second District ruled just the opposite and overruled IRMO Gutman.

Here’s to hoping the Illinois Supreme Court will settle the matter. I’ll keep you informed.

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February 9, 2008

Good Times With Appellate Lawyers In Chicago

The Illinois Appellate Lawyers Association will present Brooks Davis speaking about Abraham Lincoln and Stephen A. Douglas. Here is the Association’s description of the event:

The lifelong rivalry between these Illinois lawyers extended from Mary Todd’s parlor to the floor of the Illinois House of Representatives, across the bench of the Illinois Supreme Court, to the campaigns for U.S. Senator and President. Yet Douglas held Lincoln’s hat at his Inauguration, and Lincoln wept when Douglas died. Come and hear fascinating insights into this complex relationship, with special emphasis on how Lincoln’s and Douglas’s legal training and skills shaped the face of the Nation.

Brooks Davis is a nationally acclaimed expert on both Abraham Lincoln and Stephen A. Douglas. He is past president of the Chicago Civil War Round Table and recipient of its prestigious Nevins Freeman Award for lifetime achievement in the field of Civil War studies, chairman of the Stephen A. Douglas Association, and member of the Advisory Committee of the United States Abraham Lincoln Bicentennial Committee.

The event will be on February 19, 2008 from Noon to 2:00 p.m. at the Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois. $35.00 for members; $45.00 for non-members. Call 847-8852410 for a reservation.

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February 8, 2008

First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified. Later, the Illinois court entered a provisional order certifying a national class.

Blockbuster moved to decertify the Illinois class based on new case law authority. The Illinois trial court denied the motion, but certified its order for appeal under Illinois Supreme Court Rule 308 (allowing interlocutory appeal of an order that involves “a question of law as to which there is substantial ground for difference of opinion and [when] … an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

This case is interesting because of the confused standard of review analysis. The First District Illinois Court of Appeals stated that the standard of review for a Rule 308 appeal is de novo. But then the appellate court identified the issue as: “[W]hether it was an abuse of discretion for the trial court to apply judicial estoppel to bar Blockbuster from challenging the propriety of certifying a national litigation class due to its previous position in a similar class action in which it agreed to class certification for settlement purposes.” So is it “de novo” or “abuse of discretion”?

In this case, anyway, the appellate court stuck with the “abuse of discretion” standard. The court ruled “that the circuit court abused its discretion when it imposed the equitable doctrine of judicial estoppel to bar Blockbuster from challenging certification of a national litigation class in Illinois …”

This time, the difference between the standards of review probably did not matter. Blockbuster appealed, and showed abuse of discretion to the appellate court’s satisfaction. But should Blockbuster have been held to the stricter standard? And what if it’s the other way around next time? Should the consumer have to show abuse of discretion by the trial court? Or should the appellate court review the question de novo – i.e., without giving discretion to the trial court’s ruling.

Read the whole case, Cohen v. Blockbuster Entertainment, 1-06-2863 (9/26/07), by clicking here.

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February 3, 2008

Temporary Removal Of Guardian Not Reviewable

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court's own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court's orders did not 'finally determine, fix and dispose of the parties' rights'”

Glen also tried to invoke jurisdiction through Illinois Supreme Court Rule 304, which permits appeal of an otherwise nonfinal order when the trial court rules there is "no just cause or reason to delay enforcement or appeal."

In this case, the trial court did make a Rule 304 finding. But the appellate court rejected the trial court’s finding, stating, “… [T]he addition of that language did not alter the fact that the court's orders were not final as to any claim or party and were, thus, not subject to Rule 304(a). Such a finding by a trial court is not effective to transform a disposition that is not final in its own right into a final judgment.”

Glen was hardly a sympathetic appellant, but what if was right about the trial court not having authority to temporarily remove guardianship rights? This appellate opinion in effect says the trial court’s action cannot be contested on appeal.

Read the whole opinion, In re Guardianship of J.D., No. 1-06-3069 (9/28/07), by clicking here.

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