June 27, 2010

Order Dismissing Personal Loan Dispute After Plaintiff’s Evidence Reviewed By Manifest Weight

Brad Barnes gave Rose Michalski $27,000. He said the money was a loan and he wanted repayment. She said the money was a gift, and refused to pay.

Brad sued Rose for the money. The case was tried to a judge without a jury. After Brad put on his evidence, Rose asked for a “directed verdict.” The court granted Rose’s request because, it ruled, Brad did not prove the elements of a cause of action for breach of contract. Brad appealed.

The appellate court ruled that a “directed verdict” in this case was “impossible,” because there was no jury. The real motion defendant should have made was “for a judgment in her favor at the close of plaintiff's case, pursuant to section 2-1110 of the Code of Civil Procedure.” The difference was not “merely quibbling over nomenclature.” The kind of motion determines the kind of analysis the trial and appellate courts make, and the standard of review the appellate court applies.

An order granting a directed verdict in a jury trial is reviewed de novo (no discretion to the trial judge’s opinion). But appellate review of an order granting a defendant’s request for judgment after plaintiff’s evidence in a jury trial is reviewed under one of two standards. The Fourth District Illinois Appellate Court explained:

… If the court granted the motion … finding a total lack of evidence on one or more of the elements of the prima facie case, our standard of review is de novo …; for the trial court was in no better position than we are to determine the mere presence or absence of evidence … If, however, the trial court granted the motion … by weighing the evidence and assessing the credibility of witnesses, we ask whether the ruling is against the manifest weight of the evidence … The ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary, or not based on any evidence or only if the opposite conclusion is clearly evident from the evidence in the record …

In this case, the appellate court reviewed the case under a manifest-weight-of-the-evidence standard, “Because the [trial] court found that plaintiff had failed to carry his ultimate burden of proof, as distinct from his burden of initially going forward with some evidence in support of each element of his prima facie case, we infer that the court granted defendant's motion on the basis of its weighing of the evidence, not because of a failure on plaintiff's part to present any evidence at all on one or more of the elements of the cause of action.”

Ultimately, the trial court’s decision was reversed, and the case was sent back for full trial. The appellate opinion contains informative discussion of standards at trial for requests for a directed verdict and for judgment at the close of plaintiff’s evidence at a jury trial. Read the whole opinion, Barnes v. Michalski, No. 4-09-0450 (3/23/10), by clicking here.

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June 20, 2010

What Happens If Appellee Does Not File An Opposition Brief?

Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.


… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief, or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record …

An appellee — at least one with the resources to do so — has to be pretty nervy to decide not to file a response brief. Why would you consciously decide not to file a response? I see only two legitimate reasons: (1) you can’t afford it or (2) the appellant’s positions are so lacking in merit that a response is not necessary.

Don’t delude yourself with respect to the latter. We’ve all seen dead-bang-winners turn into something else. The conceit that comes with winning in the court below can be dangerous.

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June 13, 2010

Elgin’s Estoppel Defense To Property Owner’s Disconnection Case Not Forfeited

Falcon Funding owned land in Elgin, Illinois. Elgin agreed to annex the land in 1991. The property never was developed. In 2005, Falcon asked the trial court to order the property disconnected from Elgin.

Falcon and Elgin both asked the trial court for a summary judgment. The court denied Elgin’s request, and gave Falcon summary judgment, disconnecting the property.

Elgin appealed, and raised equitable estoppel [reliance by one party — here, the city — on the word or conduct of another so that the party (city) changes his position and subsequently suffers harm] as an affirmative defense to Falcon’s request for disconnection. Falcon argued that Elgin forfeited its equitable estoppel argument because the city had not specifically stated it as an affirmative defense to the complaint. Elgin asserted the argument was not forfeited because it was raised as a defense to Falcon’s summary judgment request.

The Second District Illinois Appellate Court ruled there was no forfeiture, even though Elgin had not stated it in its response to Falcon’s complaint. The court stated that “… a challenge to the sufficiency of the pleading of any affirmative defenses can be raised in a response to a summary judgment motion. There is also authority suggesting that a defective pleading may be brought to the trial court's attention for the first time in a posttrial motion and that the assertion of such error is not forfeited on appeal.”

Elgin won the forfeiture battle, but lost the substance of the appeal. In the end, the appellate court affirmed the disconnection because Elgin did not prove all of the elements of equitable estoppel. Read the whole opinion, Falcon Funding v. City of Elgin, No. 2-09-0367 (3/11/10), by clicking here.

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June 10, 2010

Railroad’s Summary Judgment, Granted On Reconsideration, Reviewed De Novo

Donald Pence tripped as he walked across the railroad tracks, and fractured his wrist and shoulder. He sued the railroad for poorly maintaining the area. The railroad asked the trial court for summary judgment. The court denied the request, but on reconsideration gave the railroad summary judgment.

Pence appealed. The first question was the proper standard of review to apply to the summary judgment the railroad got on reconsideration. The First District Illinois Appellate Court acknowledged that orders from reconsideration requests often get reviewed by the abuse-of-discretion standard. But the order in this case was reviewed de novo [no discretion]. This is how the appellate court explained the ruling:

The purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence which was not available at the time of the hearing, changes in the law or errors in the court's previous application of existing law … As a general rule we review a motion to reconsider for abuse of discretion … "But a motion to reconsider an order granting summary judgment raises the question of whether the judge erred in his previous application of existing law. Whether the court has erred in the application of existing law is not reviewed under an abuse-of-discretion standard … As with any question regarding the application of existing law, we review the denial of such a motion de novo." …

The railroad’s summary judgment was affirmed because, the court ruled, Pence was not an intended user of the area in which he fell. The whole case, Pence v Northeast Illinois Regional Commuter Railroad, No. 1-08-3668 (2/3/10), is available here.

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June 8, 2010

Supreme Court Rule Reviewed De Novo

I get this question a lot: What is the standard of review for interpretation of a state supreme court rule?

Here’s the answer: “Because Garlock's argument involves the construction of a supreme court rule, our review is de novo … When interpreting a supreme court rule, a reviewing court should apply the same principles of construction that apply to a statute--that is, the reviewing court should ascertain and give effect to the intent of the supreme court in promulgating the rule … The most reliable indicator of that intent is the specific language used in the rule … When the language of a supreme court rule is clear and unambiguous, a reviewing court should apply the language without reference to other interpretive aids …”

The quote is from White v. Garlock Sealing Technologies, No. 4-09-0036 (2/8/10), available here for the clicking.

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June 8, 2010

Doctor In Malpractice Case Gets De Novo Review In Venue Dispute

In this medical malpractice case, the appellate question is what standard of review applies to an order denying a request to change venue.

Margie Kaiser had surgery at St. Joseph’s Hospital in Clinton County, Illinois. She had internal bleeding that did not resolve after the operation. She was transferred to St. Elizabeth’s Hospital in St. Clair County, Illinois, where the doctors stopped the bleeding.

Kaiser sued the doctor who did the initial surgery in Clinton County. But she filed her lawsuit in St. Clair County. The doctor asked the trial court to transfer the case to Clinton County, arguing the facts that gave rise to the injury occurred there, not in St. Clair. The court denied the doctor’s request.

The doctor appealed. She argued for de novo [no deference to trial court] review. She asserted the motion to change venue was based on agreed facts, so the appellate court only needed to decide a question of law. Kaiser argued for the more deferential manifest-weight-of-the-evidence standard. She asserted that the trial court must have made “findings it did not articulate in its order, because whether any portion of the transaction [Kaiser’s injury] occurred in St. Clair County is a factual question on which the parties disagree.”

The Fifth District Illinois Appellate Court agreed with the doctor. Here’s why:

We agree with the defendants [doctor]. At the pleading stage, we take all well-pled facts in the plaintiff's [Kaiser’s] complaint as true … Thus, we assume that the plaintiff received negligent care in Clinton County and postoperative care in St. Clair County. We assume that the plaintiff suffered injuries as a result of blood loss and infection. We assume that the blood loss began, as alleged, during the surgery performed in Clinton County, and we assume it continued, as alleged, until surgeons in St. Clair County were able to locate the source of the bleeding and stop it. The question before us is not whether these allegations are true. Rather, the question is whether the facts that the plaintiffs alleged took place in St. Clair County formed a "part" of the transaction. In other words, we are asked to determine whether the court below correctly determined the legal effect of the facts pled by the plaintiffs. That is a legal question. We will therefore review the defendants' contentions de novo.

In the end, the appellate court ruled that venue was proper in St.Clair County, where Kaiser had post-operative care. Read the whole opinion, Kaiser v. Doll-Pollard, No. 5-08-0247 (2/11/10), by clicking here.

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June 7, 2010

“Slick Lawyer” Remark Not Enough To Reverse Doctor’s Malpractice Verdict

Sonya Wilbourn sued her doctor, Mark Cavalenes, for medical malpractice. Wilbourn claimed Cavalenes inserted the wrong size compression plate when he performed surgery on Wilbourn’s fractured femur.

The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused. So Wilbourn appealed. Among her arguments to the appellate court, Wilbourn claimed she was denied a fair trial because of a prejudicial remark by the defense lawyer during his closing argument.

During his closing argument to the jury, Cavalenes’s attorney called Wilbourn’s attorney a “slick lawyer” who tried to twist Dr. Cavalenes’s words. Wilbourn argued that the remark amounted to “plain error.” But the First District Illinois Appellate Court ruled that the comment did not change the outcome of the trial, and affirmed the verdict.

Here’s why the court rejected Wilbourn’s argument.

We cannot disturb the trial court's denial of plaintiff's motion for a new trial based upon defense counsel's isolated reference to plaintiff's attorney as a "slick lawyer trying to twist [Dr. Cavalenes'] words." This reference was made in response to plaintiff's counsel's assertion of his personal opinion as to the credibility of Dr. Cavalenes, and was a response to plaintiff's counsel's personal belief that Dr. Cavalenes was not credible. The trial court was able to observe the effect of the improper comments on the jury, and was in a position vastly superior to determine whether the improper comments denied plaintiff a fair trial. The trial court determined that the comments did not deny plaintiff a fair trial, and based upon the record before us, we cannot disturb that ruling.

The appellate opinion also is remarkable for its discussion of the “plain error” doctrine. The court described application of the doctrine in civil cases as “exceedingly rare.”

Read the whole opinion, Wilbourn v. Cavalenes, No. 1-08-3603 (2/19/10), by clicking here.

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