April 28, 2008

Partial Record Sufficient

The party appealing must provide a sufficient record for the appellate court to review, “and in the absence of such a record, the reviewing court will presume that the trial court’s order was in conformity with established legal principles and had a sufficient factual basis.” Without a sufficient record, an appellate court “may dismiss an appeal or, in the alternative, summarily affirm the judgment of the trial court.”

But the appellate court has the last say on what comprises a sufficient record. For example, the First District Illinois Appellate Court ruled that a record was sufficient even though it did not contain a transcript of the trial or a bystander report.

In a dispute over shipping fees, the appellate court stated: "[t]he 'failure to present a report of proceedings does not require automatic dismissal or affirmance where issues can be resolved on the record as it stands.' … We find that dismissal or summary affirmance is not necessary in this case, as the issues on appeal can be resolved on the record as it stands. Included in the record are the parties' stipulations at trial and the trial court's order stating its reasons for finding in favor of defendants and against Marx.”

The whole case, Marx Transport v. Air Express International, No. 1-07-1953 (2/25/08), is available by clicking here.

Appellees often complain that an appellant has left crucial material out of the record. But if that material is important to your defense of an appeal, you had better take action to get into the record – never mind that it was appellant’s obligation to provide a complete record. What is “complete” for an appellant may not be “complete” for the appellee.

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April 23, 2008

Illinois Supreme Court Rule 365 Doesn’t Save Notice Of Appeal Improperly Filed In Appellate Court

Here’s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303. Nor did Rule 365 save the appeal. So the appeal was dismissed.

The Second District Illinois Appellate Court explained:

As pertinent here, Rule 365 states, "If a case is appealed to either the Supreme Court or the Appellate Court, or the wrong district of the Appellate Court, which should have been appealed to a different court, the case shall be transferred to the proper court." … That language simply has nothing to do with this case. Had defendants timely filed their notice of appeal in the trial court but wrongly stated that they were seeking review in the supreme court or in a district of the appellate court other than this one, then Rule 365 would have required the transfer of the case to this court. However, defendants did not appeal to the wrong court. They appealed to the proper court but did not file the notice of appeal in the trial court on time. Rule 365 did not excuse defendants from their obligation under Rule 303(a)(1) to file a timely notice of appeal in the trial court.

The whole case, First Bank v. Phillips, No. 2-07-0130 (2/8/08), is available by clicking here.

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April 22, 2008

Dressed Up Abuse Standard For Review Of Sanctions Order

An unhappy customer sued an auto dealership, and the dealership’s incorporator. The incorporator moved to dismiss and for sanctions. The dismissal was granted, but the sanctions motion was denied. In affirming the denial of sanctions, the First District Illinois Appellate Court embellished the typical “abuse of discretion” standard. “On review, we must decide whether the trial court's decision was ‘informed, based on valid reasons, and followed logically from the circumstances of the case.’”

The whole case, Dismuke v. Rand Cook Auto Sales, No. 1-06-3000 (12/26/07), is available by clicking here.

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April 18, 2008

Relation Back Of Amendment A Limitations Issue, So Illinois Supreme Court Rules De Novo Standard Applies

A medical malpractice case raised the question of the correct standard of review of a ruling on whether an amended complaint relates back to the original complaint. In this case, the trial court ruled the amendment did not relate back, and thus was late under the statute of limitations.

Larry Porter sued his doctor and Decatur Memorial Hospital for malpractice in connection with his treatment for a spinal cord injury. After some discovery, Larry tried to file an amended complaint that added a new count against another doctor at the hospital.

Over objection by the hospital, the trial court first granted Larry’s motion for leave to amend. After it was filed, the hospital moved to dismiss the amended complaint because it was filed after the statute of limitations expired. The hospital argued that the amendment did not relate back to the original complaint. This time, the trial court agreed with the hospital, and granted the motion to dismiss the amendment.

Larry then moved to reconsider the dismissal of the amendment. The trial court denied that motion, and also decided that the original order allowing the amendment to be filed was inconsistent with the order that dismissed the amendment. So the trial court revised its earlier ruling to show a denial of leave to amend.

Larry appealed the orders granting the hospital’s dismissal motion and denying his motion to reconsider. The appellate court affirmed the trial court.

Larry took the case to the Illinois Supreme Court. The first question was the proper standard of review. The appellate court used an “abuse of discretion” standard, “apparently believing that because the trial court revised its earlier ruling that had granted leave to amend to be consistent with its later ruling to grant the section 2-619 [statute of limitations] dismissal, it was not actually reviewing a section 2-619 dismissal, but was instead reviewing a routine denial of a motion for leave to amend.”

The Supreme Court disagreed, and ruled that the trial court’s action should be reviewed de novo, just like any other statute of limitations motion. “The circumstances of the present case, however, indicate that the only question considered by the trial court with respect to either ruling was whether the new claim in count III of the second amended complaint related back under section 2-616(b) [leave to amend] so as to avoid the affirmative matter of the bar of the statute of limitations. In this situation, we believe that the appropriate standard of review is de novo.”

The Illinois Supreme Court viewed this as a dispute over the motion to dismiss, thus requiring a de novo standard of review. But what would have happened if the trial court just initially denied the motion for leave to amend? The issue would have been the same — whether the amendment related back to the original complaint — but the standard of review may then have been “abuse of discretion,” as the court of appeals saw it.

Read the whole opinion, Porter v. Decatur Memorial Hospital, No. 104441 (1/25/08), by clicking here.

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April 16, 2008

Illinois Supreme Court Distinguishes “Waiver” From “Forfeiture”

This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal. The Illinois Supreme Court ruled that the failure to raise it in the petition for leave to appeal resulted in forfeiture of the issue.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party's failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.

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April 12, 2008

Possession Order Not Moot Even Though Tenant Vacated And Apartment Re-Rented

This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment.

Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges. When she missed the first payment, Circle moved for immediate possession of the apartment. The trial court granted Circle’s motion as a sanction for violating the agreed order. The court also stayed the case to give Beverly time to pay the use and occupancy charges and thereby purge the possession order.

Beverly appealed the possession order. But she also moved out of the apartment, and Circle rented it to another party. The first issue was whether the appeal was moot. If so, the appellate court would refuse to decide the case. The First District Illinois Court of Appeals acknowledged the general mootness doctrine. “A case becomes moot where it is impossible to render effective relief to the appealing party.”

But the appellate court decided the case even though Beverly vacated the property and the apartment had been re-rented. The appellate court ruled that this case fell under the “public interest” exception to the mootness rule.

First, the question of whether a trial court may award a landlord possession under the Act as a sanction for the tenant's inability to comply with a use and occupancy order is one of public importance, affecting the rights of countless landlords and tenants in Illinois. Moreover, there is a need for an authoritative determination on this issue. At oral argument, both parties confirmed the accuracy of the statistics cited in the amici curiae brief submitted in this case, which reveal that this particular practice is "prevalent." In addition, the trial court's instruction to Beverly's trial counsel to "take it up to the courts and get us some guidelines" when he challenged this practice indicates a need for an authoritative determination as to the propriety of this practice. Finally, because this current practice is so prevalent, it is likely to continue to recur absent any authority to the contrary.

In the end, the appellate court ruled that it was reversible error to give Circle possession as a sanction against Beverly. Read the whole case, Circle Management v. Olivier, No. 1-07-0621 (12/28/07), by clicking here.

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April 11, 2008

Appellate Court Reviews Trial Court’s Actions On Remand De Novo

This doesn’t come up often, but the rule is good to keep tucked away for when you need it. In this medical malpractice case, the question on appeal involved the trial court’s actions after an earlier remand from the appellate court. The First District Illinois Court of Appeals stated the scope and standard of review. “After a remand, the circuit court is required to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law that this court reviews de novo.”

Read the whole case, Garley v. Columbia LaGrange Hospital, No. 1-06-2908 (12/5/07), by clicking here.

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April 6, 2008

Procedural Unconscionability Reviewed By Manifest Weight; Substantive Unconscionability Reviewed De Novo

Ozma Tabassum sued Javed Younis were married in Canada and had one child, Azra. They moved to Illinois, where their relationship took a turn for the worse. Ozma took Azra back to her family in Canada. While in Canada, Ozma and Javed negotiated a postmarital agreement. Ozma agreed not to file for divorce. In return, Javed agreed to end his extra-marital affair. Javed also agreed that if Ozma did file for divorce — which would happen if Javed did not uphold his part of the agreement — then Ozma would get the house, and it would be considered nonmarital property.

Ozma sued for divorce in Illinois. But the trial court ruled that the postmarital agreement was invalid and that the house was marital property. In reversing these rulings, the Second District Illinois Court of Appeals considered the questions of procedural and substantive unconscionability of a postmarital contract, and the proper standards of review in the appellate court.

The appellate court first considered procedural unconscionability. “A contract is procedurally unconscionable if an impropriety in the process of forming the contract deprived a party of a meaningful choice … The trial court found that the postmarital agreement was procedurally unconscionable largely on the basis that petitioner was in Canada with Azra while the parties were negotiating the terms of the postmarital agreement, ‘the implicit threat being that unless agreement was reached she and Azra would remain in Canada, reducing if not eliminating [respondent's] ability to meaningfully parent.’ This statement equates to a finding that respondent was under duress during the negotiation of the agreement. Duress may make an agreement between spouses unconscionable.”

Footnoting the standard of review, the appellate court ruled, “Where procedural unconscionability is based on contract terms and the disparity of bargaining power between the contract's drafter and the party claiming unconscionability, the issue is reviewed de novo … However, because the procedural unconscionability in this case rests on the issue of duress, we use the manifest weight standard.

The appellate court also ruled that the agreement was not substantively unconscionable. “Substantive unconscionability is based on the fairness and obligations of the contract's terms, and it can be shown by "'contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.'" … We review this issue de novo. … However, to the extent that we consider factual findings in our analysis, we will use a manifest weight of the evidence standard.”

Read the whole opinion, which includes a good discussion of the nature of contractual unconscionability, IRMO Tabassum, No. 2-06-0843 (12/7/08), by clicking here.

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