February 25, 2009

Lawsuit To Prevent Spending For Stem Cell Research Moot On Appeal

Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor’s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose. The trial court ruled that the case presented a political question, not a question of law that the court could legitimately decide. So the trial court dismissed the case.

Caro appealed, but before the appellate court considered the case, the Director awarded more than $9 million in grants for stem cell research. Caro wanted the appeal heard anyway, “to work out the appropriate corrective remedy.” The Director wanted the appeal dismissed. He argued that the case was moot because the money already had been disbursed.

The First District Illinois Appellate Court agreed that the case was moot. The appellate court ruled that it could not give Caro what he wanted. Here’s what the court said:

Here, in our view, it is not possible for this court to grant the plaintiff the relief requested on appeal. We cannot reverse the trial court's dismissal and remand this case for further proceedings on a complaint that sought … to prevent the defendant, Dr. Whitaker [Director], from awarding the research grants. As the defendant states and the plaintiff concedes, the grants were awarded in 2006. Simply put, "[a] court cannot prevent what has already been done."

Caro argued that the case fell under the “public interest” exception to the mootness doctrine. But the appellate court disagreed because "this is not a case where "the magnitude or immediacy of the interests involved warrant[s] action by the court."

Nor was this the kind of case in which “the situation presented … is likely to recur.” The appellate court explained: “There is no indication in this record that the Governor has or intends to use executive orders in the future to create another new agency within the Department for the same purpose as in this case. Therefore, there is little likelihood that the precise circumstances that gave rise to the plaintiff’s instant complaint would recur, requiring us to intervene.”

So the appellate court dismissed Caro’s appeal. Read the whole case, Caro v. Whitaker, No. 1-06-1243 (11/4/08), by clicking here.

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February 21, 2009

Trial Court’s “Final And Appealable” Order Not Necessarily So

This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it’s not necessarily so.

GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage. Michele did not timely enter an appearance in the trial court, so a default judgment of foreclosure was entered against her. She asked the court to vacate the default and to quash service of the lawsuit. In turn, GMB asked the court to strike Michele’s motion. The trial court granted GMB’s motion to strike, and stated that its order was “final and appealable.” Later, the trial court confirmed GMB’s sale of the property.

Michele appealed both trial court rulings. Her Notice of Appeal was filed within 30 days of the court’s order that approved the sale of the property, but more than 30 days after the trial court made its “final and appealable” order granting GMB’s request to strike the motion to quash service.

GMB argued that there was no appellate jurisdiction for the court to review the order that struck Michele’s motion. GMB claimed that the order was “final and appealable,” so Michele should have filed her Notice of Appeal within the 30-day deadline to properly secure appellate jurisdiction.

The Second District Illinois Appellate Court disagreed, and ruled that the trial court’s “final and appealable” order wasn’t really final and appealable. Here’s what the appellate court said:

As a preliminary matter, plaintiff argues that we have no jurisdiction over the order granting the motion to strike, because the trial court designated the order as final and appealable yet defendant did not appeal within 30 days of the order … The trial court's characterization of the order as final and appealable did not make it so … By its nature the order did not have the requisite finality. “A judgment ordering the foreclosure of a mortgage is not final and appealable until the court enters orders approving the sale and directing the distribution." … The grant of the motion to strike was an intermediate order in a process that did not culminate for purposes of appeal until the January 9, 2007, order confirming the sale. Defendant appealed well within 30 days of the January 9 order, and therefore we have jurisdiction to review the prior order granting the motion to strike.

In the end, the trial court’s order confirming the sale of the property was affirmed. Read the whole case, GMB Financial Group v. Marzano, No. 2-07-0047 (10/17/08) by clicking here.

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February 15, 2009

Huskie’s Owner Confuses Manifest Weight Standard Of Review With Burden Of Proof At Trial

Molly, a dachshund, was mauled by Cosmo, a Siberian Huskie. Mark and Mindy Leith, Molly’s owners, sued Andrew Frost, Cosmo’s owner, for tortious damage to property. After a bench trial, a judge awarded nominal damages to Mark and Mindy. They thought they should have been awarded the several thousand dollars they paid a veterinarian who treated Molly. So Mark and Mindy appealed.

The case is important for appellate practitioners because it points out a common mistake in stating the correct standard of review. Andrew argued that “the manifest weight of the evidence did not show that Cosmo was the dog that attacked Molly.” But Andrew’s statement of the standard of review was exactly the opposite of correct one. The party appealing has to show that the court’s conclusion was against the manifest weight of the evidence, not that the winner in the trial court failed to prove his case by the manifest weight. The Fourth District Illinois Appellate Court explained:

This argument [Andrew’s] misstates the standard of review. If we asked whether the manifest weight of the evidence supported the trial court's factual findings, our standard of review would be de novo. Instead, we are to ask a deferential question: whether the court's factual findings or conclusions are against the manifest weight of the evidence … A conclusion is against the manifest weight of the evidence if the opposite conclusion is apparent from the record … A finding is against the manifest weight of the evidence if the finding is unreasonable, arbitrary, or not based on evidence … The court concluded that plaintiffs had proved, by a preponderance of the evidence, that Cosmo attacked Molly. The opposite conclusion--that plaintiff failed to so prove--is not apparent from the record. The court found that Cosmo attacked Molly. That finding is not unreasonable, arbitrary, or lacking in any evidentiary basis. Plaintiffs and defendant had been next-door neighbors for three weeks. Mindy Leith testified she had looked over the fence and had seen Cosmo. She testified she stood over Cosmo as Cosmo mauled Molly.

Andrew’s statement of the law would place an increased burden on tort plaintiffs in the trial court. By Andrew’s interpretation of the law, a tort plaintiff would have to prove his case by a manifest weight of the evidence, not the more common “preponderance of the evidence” standard. The common mistake here was confusing “burden of proof” in the trial court with the “standard of review” in the appellate court.

In the end, the appellate court awarded Mark and Mindy compensation for the veterinary fees. Read the whole case, Leith v. Frost, No. 4-07-0964 (12/31/08), by clicking here.

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February 11, 2009

Objection To Expert Waived Where “Speculation” Argument Not Asserted During Testimony

Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler’s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed.

At trial, William and Ramona’s expert testified that Linnea probably approached Gambler’s “kick zone,” an area directly behind the horse that the horse instinctively kicks when surprised. In the appellate court, Linnea argued that the expert’s testimony was inadmissible because it was speculative. William and Ramona asserted that the “speculation” argument had been waived because it was not properly preserved in the trial court.

The First District Illinois Appellate Court agreed with William and Ramona. Although Linnea made a pre-trial objection based on speculation, she did not assert the “speculation” objection during the expert’s testimony at trial. Here’s what the court said:

Initially, we find that plaintiffs have waived their argument that Jahiel's [expert’s] testimony was improperly admitted because it was based on speculation. Plaintiffs asserted five objections during the course of Jahiel's testimony. At no time in the trial court did plaintiffs object to Jahiel's testimony based on the purported speculative basis of her testimony … Although plaintiffs filed a motion in limine seeking to prevent Jahiel from "[d]irectly or indirectly disclosing, discussing or suggesting in any manner … that the horse Gambler was provoked since [she] does not know what the plaintiff was doing at the time of the kick," plaintiffs failed to object to Jahiel's testimony on the grounds of speculation at trial and thus failed to properly preserve this issue for appeal

Linnea got a new trial nonetheless because the trial court mistakenly allowed the jury to consider whether she was guilty of comparative fault. Read the whole case, Johnson v. Johnson, Nos. 1-06-2759, 1-07-0029 (11/5/08), by clicking here.

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February 7, 2009

Car Dealership Waives Fraud Argument Because Of Insufficient Record

Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car.

Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury gave Traci a favorable verdict for the common law fraud action. The court, without the jury, gave Traci a favorable verdict under the Consumer Fraud Act. Rohrman appealed.

One of Rohrman’s issues was that the common law fraud action was against the manifest weight of the evidence. Traci argued that Rohrman waived the argument for appeal because the dealership did not file a motion in the trial court attacking the common law verdict. Rohrman argued that it “clearly attacked the sufficiency of the common law fraud judgment and asked for a judgment not withstanding the verdict on the common law fraud claim” in other pleadings in the trial and appellate courts, including a response to Traci’s motion to strike the appeal.

But Rohrman’s assertions were not supported by the appellate record, which, as the party appealing, it was responsible to file. So the First District Illinois Appellate Court sided with Traci and ruled that Rohrman had waived the argument of insufficient evidence on the common law fraud claim.

After a thorough review of the record, however, we have found no indication that plaintiff [Traci] filed a motion to strike this appeal or a response from defendant [Rohrman] to that motion to strike. Furthermore, defendant failed to include such documents in the appendix to its brief and did not cite to these documents within its reply brief. Because “an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error.” We find that defendant, as appellant, has failed to meet his burden.

Read the whole case, Hanson-Suminski v. Rohrman Midwest Motors, Inc., No. 1-07-0755 (11/7/08), by clicking here.

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February 4, 2009

Fact Findings On Summary Judgment Get No Deference On Appeal

Two children died after they were trapped by a “quick” condition at an excavation pit. They became stuck in sand and clay at the pit, and died of hypothermia or drowning. The children’s estates sued the owner of the excavation pit, who tendered the claims to his insurer. The insurer offered the estates a policy limit settlement, but calculated the policy limit on the basis that there had been only one policy “occurrence.” The estates argued there were two separate “occurrences.” The insurer sued the estates, and asked for a declaration that there had been only one “occurrence.”

The trial court agreed with the estates, and on summary judgment ruled in their favor. The insurance company appealed, and a sympathetic appellate court reversed and ruled in favor of the insurer. The estates then appealed to the Illinois Supreme Court.

The first issue for the Illinois Supreme Court was the proper standard of review in the appellate court. The parties agreed that the construction of “occurrence” was a contract question that was subject to de novo (no deference to the trial court) review.

They disagreed about the standard to be applied to the trial court’s factual findings. The insurer argued that the appellate court should give no deference to the trial court’s factual findings. The estates asserted that the trial court’s fact findings should get some deference. They argued that the trial court’s fact findings should be reversed only if they were against the “manifest weight of the evidence.”

The supreme court ruled that the trial court’s fact findings get no deference. In this case, the trial court ruled exclusively on papers submitted on summary judgment motions. There was no live testimony, and thus no reason to give the trial court deference. Here’s what the supreme court said:

In this case, the trial court heard no live testimony. Both parties acknowledged at oral argument that all testimony was submitted by admitting discovery depositions into evidence. The trial court was not required to gauge the demeanor and credibility of witnesses. … Instead, the trial court made factual findings based upon the exact record presented to both the appellate court and to this court. Without having heard live testimony, the trial court was in no superior position than any reviewing court to make findings, and so a more deferential standard of review is not warranted. Thus, although this court has not done so recently, we reiterate that where the evidence before a trial court consists of depositions, transcripts, or evidence otherwise documentary in nature, a reviewing court is not bound by the trial court’s findings and may review the record de novo.

In the end, the Illinois Supreme Court ruled in favor of the children’s estates, and found there had been two “occurrences.” Read the whole case, Addison Insurance Co. v. Fay, No. 105752 (1/23/09), by clicking here.

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