March 29, 2008

Accident Victim Can Appeal Her Lawyer’s “Good Cause” To Widthdraw

Victoria McGill hired Friedman & Solmor to represent her in her auto accident case. The law firm represented Victoria on a contingent fee arrangement until about one month before trial was scheduled. The firm withdrew as a result of a dispute with Victoria over whether to accept a settlement offer.

Victoria got new counsel, who went to trial and got a verdict in excess of $180,000. Friedman & Solmar notified Victoria about a lien it had earlier served. Victoria in turn petitioned to adjudicate the lien. Her petition was denied, and F&S was granted a $20,500 quantum meruit judgment. Victoria appealed that judgment.

Victoria’s Notice of Appeal stated she was appealing from the judgment granting fees; it did not identify the order stating F&S had good cause to withdraw. Nonetheless, Victoria asserted that F&S did not have good cause to withdraw. F&S argued that the appellate court lacked jurisdiction to rule on the question of good cause because the order was not listed in Victoria’s notice of appeal.

The First District Illinois Court of Appeals sided with Victoria on this question. The court recognized the general rule that it “acquires no jurisdiction to review other judgments or parts of judgments not specified or inferred from the notice of appeal.” But in this case, “the good-cause finding was clearly a step in the procedural progression leading to the granting of the fee petition. Indeed, the good-cause finding was a necessary prerequisite to awarding F & S fees and costs in quantum meruit. Accordingly, this court has jurisdiction to consider the merits of plaintiff's argument.”

F&S lost that battle, but won the war. The judgment for fees was affirmed. Read the whole case, McGill v. Garza, No. 1-06-3027 (12/13/07), by clicking here.

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March 27, 2008

First District Illinois Appellate Court Says Coadministrator Of Estate Cannot Appeal As An Individual

This wrongful death and survival action was filed on behalf of the estate of Rashidi Walker. Rashidi died during football practice at Northwestern University. His mother, Linda, and his father, George Wheeler, Jr., were coadministrators of Rashidi’s estate.

After lengthy litigation, the trial court approved a settlement of $16 million. Linda appealed the settlement approval. Although she sued only as administrator of Rashidi’s estate, she appealed as administrator and individually as an heir of the estate. Northwestern and George Jr. objected to Linda’s standing to appeal as an individual.

The First District Illinois Appellate Court sided with George Jr. and Northwestern. The court ruled that Linda did not have standing to appeal as an individual. Only the administrators of the estate were allowed to sue in the first place. The appellate court stated: “[I]f they [Linda and two other members of Rashidi’s estate who appealed as individuals] in their individual capacities were not parties to the underlying cause, they in their individual capacities cannot be parties to the instant appeal. Therefore, we find that they do not have standing and we dismiss their appeals.”

Northwestern also argued that Linda waived her right to appeal as coadministrator when she asked the trial court, as an alternative to setting aside the settlement, to compel payment of the settlement plus interest. But the appellate court disagreed, and stated that Linda was properly acting on behalf of the estate, and thus could appeal. “In her coadministrative capacity, Linda, through her motion, was exercising her fiduciary duties to insure that Rashidi's estate would be protected pending her attempts at appeal, i.e., that Northwestern would be made to pay the money it owed as agreed in the settlement and as ordered by the court and that interest would accrue thereon for the Estate's beneficiaries were she to be unsuccessful in future challenges to the validity of the settlement.”

The whole case, Will v. Northwestern University, Nos. 1-06-1566, 1-06-1642, 1-06-1643 (12/14/07), is available by clicking here.

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March 24, 2008

Urgent Reminder! Appellate Law Seminar In DuPage County, Illinois On March 31, 2008

Earn continuing legal education hours and hear a terrific panel of speakers on appellate law and practice by attending “A Blue Ribbon Panel On Appellate Advocacy.” Sponsored by the DuPage County Bar Association, the seminar will take place at noon on March 31, 2008 at the Attorney Resource Center at the DuPage County, Illinois courthouse.

A most excellent panel will speak and take questions:

• Judge William J. Bauer, U.S. Court of Appeals for the 7th Circuit, speaking on, “Preserving the Record for Appeal”

• Justice Robert E. Byrne, Second District Illinois Appellate Court, speaking on, “Appellate Jurisdiction in the State Court”

• Kent Streseman, Professor of Law and Director, Ilana Diamond Rovner Program in Appellate Advocacy, Chicago-Kent College of Law, speaking on, “Persuasive Appellate Brief Writing”

• Judge Diane P. Wood, U.S. Court of Appeals for the 7th Circuit, speaking on, “Appellate Advocacy”

Procrastinators beware! Seats are filling fast. Contact Chris Reed at the DCBA, 630-653-7779, for a reservation.

When you arrive, be sure to say hello to the Appellate Law Committee chair, who I am told has a wonderful personality and is particularly handsome.

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March 24, 2008

Summary Judgment Sustained On Argument Trial Court Did Not Consider

Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany’s favor because she “had probable cause as a matter of law to initiate the underlying civil proceedings against Howard.”

The First District Illinois Appellate Court disagreed with that conclusion, but affirmed the summary judgment because Glen could not show that he suffered “special injury,” an element of a cause of action for malicious prosecution.

Even though the trial court did not rule on the “special injury” question, it was proper for the appellate court to consider. “Although the trial court did not rule on this argument, Firmand did raise special injury in her motion for summary judgment. The issue is properly before the [appellate] court … [A]ppellee may advance any argument in support of the judgment on appeal regardless of whether the trial court ruled on that argument, so long as the factual basis for the argument was before the trial court.”

Read the whole case, Howard v. Firmand, No. 1-06-2019 (12/17/07), by clicking here.

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March 20, 2008

Violation Of Discovery Rule Deemed A Question Of Law

In Boyd v. City of Chicago, No. 1-06-0358 (12/5/08), the trial court precluded testimony of a fact witness. In Boyd’s appeal of an adverse jury verdict, he claimed the trial court improperly precluded his witness’s testimony as a discovery sanction.

The appellate court identified the standard of review: “ Whether a party violated a discovery rule is an issue of law that we review de novo”. But is this really a question of law? The determination about a violation of a statute seems like a question of fact. The appellate court identified the considerations to impose a sanction, and all six of them are fact questions. So whether a party violated the discovery rule should be a question of fact reviewed under a discretionary standard.

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March 17, 2008

Failure To Claim Prejudice Destroys “Plain Error” Argument

In this intercontinental visitation battle, Alixio Khazal claimed “plain error” was grounds for reversal of the trial court’s decision to permit the mother visitation of their child in the United Arab Emirates. The dispute centered on the guardian ad litem’s oral report given at a pretrial conference, which included a recommendation to allow visitation in the UAE. Alixio claimed he was surprised by the guardian ad litem’s oral report, that the report should have been in writing, and that he was thus deprived of the opportunity to cross-examine the guardian. But because the father did not assert an objection at the pretrial conference or request the guardian’s testimony, cross-examination, or written report, the appellate court ruled that those positions were waived on appeal.

Alixio claimed it was “plain error” to allow the guardian ad litem’s oral report and not to allow cross-examination. He argued that the plain error doctrine trumped the waiver rule. The First District Court of Appeals reviewed the use of the plain error doctrine in a civil case.

The plain error doctrine does permit an appellate court to review errors not properly preserved at the trial level … "But this doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process."

Before an error can rise to the level of a plain error, there must first be a "threshold-level showing" of prejudice … The father has not explained what he would have done differently if he had received the guardian's recommendation earlier and in writing. Thus, this court finds both that the father waived this issue for appeal and that it did not rise to the level of a plain error.

Read the whole case, IRMO Saheb, No. 1-06-3304 (11/13/07), by clicking here.

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March 11, 2008

First District Illinois Appellate Court Defines Standards Of Review For Motion For New Trial And For Judgment Notwithstanding Verdict

Heather Addis sued Exelon for retaliatory discharge. Unhappy with the jury’s defense verdict, Addis moved for judgment notwithstanding the verdict and for a new trial. After those motions were denied, Addis appealed.

The First District Illinois Appellate Court ruled that the two issues had different standards of review on appeal. A motion for judgment notwithstanding the verdict is reviewed de novo. A motion for a new trial, the court stated, is reviewed for a clear abuse of discretion. In this case, Addis’s appellate brief argued only for judgment notwithstanding the verdict. Even though she appealed from the order denying her motion for a new trial, her failure to argue that position in her appellate brief resulted in waiver of her new trial position.

This opinion muddies the “abuse of discretion” standard by defining it with “manifest weight” language. The court stated: “In determining whether the trial court abused its discretion, we consider whether the jury’s verdict was against the manifest weight of the evidence.” So which is it − abuse of discretion or manifest weight?

In the end, the confusion may not have mattered in this case. The court ruled that there was plenty of evidence for the jury to conclude in Exelon’s favor. “… [W]hen viewing the evidence in the light most favorable to defendant, we cannot find that the evidence so overwhelmingly favors plaintiff that no contrary verdict could stand. Therefore, we conclude that the circuit court properly denied plaintiff's motion for judgment notwithstanding the verdict.” That sounds like a de novo review, which is what the court called for on the motion for judgment notwithstanding the verdict.

Read the whole opinion, Addis v. Exelon Generation Co., No. 1-06-2732 (12/26/07), by clicking here.

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March 7, 2008

First District Illinois Appellate Court States Standard Of Review For Class Certification

Affirming certification of a class of plaintiffs who allegedly were overcharged by a moving company, the First District Illinois Court of Appeals stated the standard of review for class certification: “‘The trial court has broad discretion to determine whether a proposed class satisfies the requirements for class certification and should err in favor of maintaining class [certifications].’ … ‘The trial court's certification of a class will be disturbed only upon a clear abuse of discretion or an application of impermissible legal criteria.’"

The court described “abuse of discretion” (“arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view”), but did not state whether “clear abuse of discretion” called for anything more.

Get the whole opinion, Ramirez v. Midway Moving and Storage, Inc., No. 1-07-0997 (12/11/07), by clicking here.

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March 5, 2008

Illinois Supreme Court Rules De Novo Standard Of Review Applies To Permissive Review Of Conflict Of Law Question

Michelle Townsend brought a product liability case Sears Roebuck on behalf of her minor son Jacob. Jacob was badly injured when he was run over by a lawn tractor operated in his yard. Sears allegedly designed and manufactured the tractor.

The accident happened in Michigan, where Michelle and Jacob resided. But Sears was domiciled in Illinois and made certain design and marketing decisions in Illinois. The parties fought over whether Illinois or Michigan law applied.

The trial court ruled that Illinois law applied. Pursuant to Illinois Supreme Court Rule 308, the trial court certified the question of the proper choice of law for immediate interlocutory appeal. The appellate court accepted the appeal, and affirmed the decision to apply Illinois law.

Sears appealed to the Illinois Supreme Court, which reversed and ruled that Michigan law should be applied to liability and damages issues.

The parties disputed the proper standard of review. Sears argued for de novo review, the usual standard for certified questions of law. But Michelle claimed that the choice of law issue presented questions of law and fact. She asserted therefore that a more deferential standard of review — manifest weight of the evidence — should be applied to a choice of law determination.

The Illinois Supreme Court agreed with Sears, and applied the de novo standard of review. “The circuit court did not hold an evidentiary hearing, weigh the testimony or assess the credibility of witnesses; the record consists solely of documents. Where the circuit court does not hear testimony and bases its decision on documentary evidence, the rationale underlying a deferential standard of review is inapplicable and review is de novo … In any event, while the methodology of the Second Restatement of Conflict of Laws may raise factual issues, the task of evaluating and balancing the choice-of-law principles embodied in the Second Restatement, as they apply to the facts, is a matter of law rather than fact and one that is more properly left to the judge … Because these issues ‘involve the selection, interpretation, and application of legal precepts,’ review is de novo…”

Read the whole case, Townsend v. Sears, Roebuck and Co., No. 103858 (11/29/07), by clicking here.

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March 4, 2008

For A Really Good Time With Appellate Lawyers In DuPage County, Illinois . . .

Attend the DuPage County Bar Association Appellate Law and Practice Committee Luncheon Seminar on March 31, 2008, Noon to 2:00 p.m. (Full Disclosure: I chair this committee.) The luncheon will feature: A Blue Ribbon Panel On Illinois Appellate Advocacy.

There will be an excellent group of speakers:

• Judge William J. Bauer, U.S. Court of Appeals for the 7th Circuit, speaking on, “Preserving the Record for Appeal”

• Justice Robert E. Byrne, Second District Illinois Appellate Court, speaking on, “Appellate Jurisdiction in the State Court”

• Kent Streseman, Professor of Law and Director, Ilana Diamond Rovner Program in Appellate Advocacy, Chicago-Kent College of Law, speaking on, “Persuasive Appellate Brief Writing”

• Judge Diane P. Wood, U.S. Court of Appeals for the 7th Circuit, speaking on, “Appellate Advocacy”

The Program will qualify for up to 2 hours of CLE credit

It will be at the Attorney Resource Center at the DuPage County Courthouse, 505 N. County Farm Rd., Wheaton, Illinois. Members $45.00; Non-Members $60.00. Walk-ins are welcome, but to guarantee lunch and written materials, make a reservation by calling Chris Reed at the DCBA, 630-653-7779.

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