January 23, 2012

Illinois Appellate Lawyer Blog Launches “Two Tips”

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.

We start now.

These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.

Tip One
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.

One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.

Tip Two
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.

In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.

Remember the old saying: Trial courts look for justice. Appellate courts look for error.

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January 21, 2012

Debtors’ Victory Affirmed; Creditor Forfeits Procedural Argument

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:

According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants' Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.
The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.

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January 17, 2012

Hospital’s Summary Judgment Denial Considered By Illinois Supreme Court

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

When the case reached the Illinois Supreme Court, Children’s Memorial appealed the trial court’s decision to deny the summary judgment while the first amended complaint was pending. But the Clarks argued that the denial of a summary judgment request, generally neither final nor appealable, was not properly before the court. The Illinois Supreme Court disagreed because (1) the dismissal of the third amended complaint was a final order, and (2) Children’s had preserved the issue at each step of the litigation. Here’s how the supreme court explained it:

Ordinarily, the denial of summary judgment is not appealable, because such an order is interlocutory in nature. However, we have recognized an exception to this rule in certain circumstances, as when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied. Because the order disposes of all issues in the case, review of the denial of summary judgment may be had … Our appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted …


Here, the circuit court's order dismissing plaintiffs' third amended complaint with prejudice was final and appealable. Because the circuit court's order disposed of all issues in the case, and because defendants have properly preserved the issue at each stage of this litigation, we reject plaintiffs' argument that defendants' statute of limitations defense is not properly before us and, in the interest of judicial economy, we review the issue. For the reasons that follow, we hold that the circuit court correctly found that there existed a question of material fact that precluded entry of summary judgment.

The Clarks lost the battle over whether the trial court’s summary judgment denial could be heard in the supreme court. But they won on the substance; the court ruled it was correct to deny the hospital summary judgment. The Clarks also prevailed on the other substantive questions: they were allowed to pursue claims for negligent infliction of emotional distress, and they were allowed to recover expenses for Timothy’s postmajority care.

Read the whole opinion, Clark v. Children’s Memorial Hospital, 2011 IL 10865, by clicking here.

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January 9, 2012

Medical Malpractice Appeal Forfeited For Lack Of Complete Record

Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.

The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:

An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.

In any event, the appellate court assessed Gerald’s appeal based on the limited record. The appellate court agreed that Gerald “failed to show that the VA’s conduct was the proximate cause of his injury.” Read the whole case, Morisch v. U.S.A., No. 09-3953 (7/29/11), by clicking here.

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