Illinois Appellate Lawyer Blog

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.

A couple of quick hits today.

In a medical malpractice case, the Fifth District Illinois Appellate Court had this to say about the waiver rule: “’It is well established that both an objection at trial and a written post[ ]trial motion raising the issue are necessary to preserve an alleged error for review.’ … ‘Application of the waiver rule, however, is less rigid where the basis for the objection is the trial judge's conduct.’"

In the same case, the court addressed the propriety of plaintiff’s ex parte communication with the trial judge. Ruling there was no reversible error, the appellate court stated: “In the present case … a reversal is unnecessary because there is no suggestion of bias or prejudice on the part of the trial judge, i.e., there is no suggestion that there was any outside influence or that the case was decided on any basis other than the evidence presented in the case. Accordingly, there was no appearance of impropriety. We therefore conclude that, under the circumstances of this case, any error committed by the trial court by conducting this brief ex parte communication was harmless.”

See the whole case, Bauer v. Memorial Hospital, No. 5-06-0291 (11/27/07), by clicking here.

And in a personal injury action, the First District Illinois Appellate Court reiterated the rule that: “While we cannot determine whether the trial court reviewed this document, this court cannot consider documents that were not included in the record.” You can have the whole case, Babich v. River Oaks Toyota, No. 1-05-3728 (11/8/07), by clicking here.

Midwest Builder Distributing, supplied cabinets and appliances to Lord and Essex, a homebuilder. Midwest sued Lord and Essex for nonpayment of goods delivered. The case was tried, and Midwest got a judgment against Lord and Essex.

Lord and Essex appealed, but there was a big procedural problem in the appellate court. The transcript of testimony for the first day of trial was unavailable. The parties were unable to stipulate to a bystander’s report. Neither party could get certification from the trial judge, who retired after the judgment was rendered. To boot, the related trial exhibits had been discarded.

Relying on the general law that requires appellant to provide a complete record, Midwest argued that the appellate court “lack[ed] the ability to meaningfully assess the merits of the case and therefore [has] no choice but to affirm [Midwest’s judgment].” Lord and Essex argued that the appellate court only needed to decide questions of law, which did not require the testimony or exhibits. The First District Illinois Appellate Court ruled that “to the extent that the decision may be impacted by testimony or documentary exhibits that have not been brought before us, the contents of such omitted portions of the record will be presumed to favor Midwest.”

Lord and Essex blamed Midwest’s failure to negotiate for the absence of a stipulated bystander’s report. But the appellate court said that didn’t matter because, “Even if this contention were true, it would have no effect on our ruling. Diligence and lack of fault are not excuses for an appellant’s failure to present an adequate record on appeal.”

Despite no certification or stipulation, the appellate court accepted Midwest’s bystander’s report to the extent it established facts contrary to Midwest’s position. “Therefore, we shall feel free to use Midwest’s account of the first day’s events to the extent that it assures us that the issues are sufficiently preserved in the remaining record for us to reach the merits of the case without necessitating any reference to the first day’s proceedings … In this case, Midwest’s bystander’s report contains the testimony of its own president … [T]hat testimony, even if taken as true, would not have any bearing upon our ultimate determination … We are persuaded based on Midwest’s own bystander’s report that the first day’s proceeding, as described by Midwest, would have no bearing upon this court’s resolution of the issues raised in this appeal.”

Nonetheless, the appellate court found that the missing trial exhibits did in the appeal. “[T]hese exhibits might have been quite significant to our decision, because they could very well have shed light on the course of performance between the parties, which is crucial to the ultimate issue of liability … [T]he gap in the documentary record is sufficiently serious that we cannot fully reach the merits of the case, and thus our only proper course is to affirm on the issue of liability.”

The whole opinion, Midwest Builder Distributing v. Lord and Essex, No. 1-06-1233 (11/9/07), is available by clicking here.

Fritz Redelmann was a custodian for the Rolling Meadows Park District. He sued the Park District and a number of chemical and product manufacturers, claiming that he sustained neurological problems from exposure to their products while he was on the job.

After Redelmann filed an eighth amended complaint, three of the manufacturers filed a bill of particulars to determine when, where, and how plaintiff was exposed to their products. Redelmann did not respond to two bills of particulars, and his response to the third was inadequate. The manufacturers moved for sanctions. The trial court granted the sanctions motions, and struck certain of the counts and allegations in the eighth amended complaint. Plaintiff’s motion for reconsideration was denied, and the trial court permitted an interlocutory appeal.

The First District Illinois Appellate Court affirmed. One of the procedural issues concerned Redelmann’s failure to submit a sufficient record for the appellate court to assess. “Plaintiff’s failure to provide the reports of proceedings is fatal to the plaintiff’s claim because ‘to support a claim of error, the appellant has the burden to present a sufficiently complete record.’ … ‘Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.’ … ‘Without an adequate record preserving the claimed error, the reviewing court must presume the circuit court had a sufficient factual basis for its holding and that its order conforms with the law.’ … Therefore, ‘[w]here the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding.’ … Accordingly, without the reports of proceedings to review, we are unable to find that the trial court abused its discretion when it exercised its inherent authority and sanctioned the plaintiff, pursuant to Rule 219(c), by dismissing the counts in the eighth amended complaint …”

The whole case, Redelmann v. K. A. Steel Chemicals, No. 1-06-2371 (11/29/07), is available by clicking here.

Katherine Adams claimed that defendants negligently removed her gallbladder, so she sued them. She got a jury verdict for more than $560,000. After their motions for a new trial were denied, defendants appealed. They claimed it was an abuse of discretion for the trial court to refuse to allow certain parts of expert’s testimony.

The entire, unedited video evidence deposition of the expert was in the record. But the trial court struck portions of the evidence deposition, and a final, edited videotape that was presented to the jury was not in the record. Nor was there a reported transcript of the testimony.

The appellate record contained defendants’ dvd of the stricken parts of the expert testimony. But the appellate court did not have the hardware capable of viewing the dvd. A final complication was that defendants did not cite to the unedited videotape for the expert testimony that was presented at trial.

The appellate court pointed out that it was defendants’ (appellants’) obligation to assure there was a record sufficient to inform the court of the pertinent issues. An incomplete record is a violation of Illinois Supreme Court Rule 323, and is grounds for summary affirmance of the verdict.

Despite all of that, the appellate court agreed to address the merits of defendants’ argument concerning this testimony. The court went to the trouble of “piec[ing] together Dr. Stasberg’s [expert] testimony from the line references in the transcript … Since the record contains a reference to the lines of the transcript of Dr. Strasberg’s deposition that were stricken, we can discern Dr. Strasberg’s digitally recorded testimony from the record.”

As it turned out, the appellate court affirmed striking parts of the expert testimony. But defendants were fortunate to have an appellate court that was willing to fight through the unedited deposition transcript to discern what actually was presented at trial. The lesson here: Make sure your appellate record is complete and don’t assume the court has the hardware and software to view the record as you present it. You must go to the trouble of giving the record to the appellate court in a form it can read or watch.

The whole case, Adams v. Sarah Bush Lincoln Center, No. 4-06-0284 (1/23/07), is available by clicking here.

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

The appellate court also ruled that it could take judicial notice of evidence that was not in the record. The court concluded that “the caution against allowing new evidence on appeal via judicial notice is simply a part of the doctrine of waiver,” which is not a limitation on the court’s jurisdiction. The court ruled that “Relaxing the doctrine of waiver here is appropriate because the State did not object to the consideration of the charge and, indeed, incorporated the charge in its own arguments. Further, an ‘argument that an order or judgment is void is not subject to waiver.’”

This opinion also contains good discussion about the legislature’s power to limit trial court jurisdiction in light of Article VI Section 9 of the Illinois Constitution (“Circuit Courts shall have original jurisdiction of all justiciable matters except when the [Illinois] Supreme Court has original and exclusive jurisdiction.”)

You can read the whole opinion, In re Alex T., No. 2-06-0049 (8/15/07), by clicking here.

This case presents a messy insurance dispute over who would pay a judgment arising from an auto accident. The judgment, and thus the amount in dispute, was for $8,400. Plaintiff insurance company brought a garnishment action against the defendant insurance company. Plaintiff’s summary judgment motion was denied, and defendant was discharged from the garnishment proceeding.

Plaintiff insurer appealed. But the defendant did not file a response brief. That didn’t stop the appellate court, which decided to rule without benefit of the brief.

Although a reviewing court is not compelled to serve as an advocate for an appellee, it may sustain the judgment of the trial court based on its review of the record as justice may require . . . In other cases, if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed . . . Where the record is simple and the claimed error is such that the court can easily decide it without the aid of an appellee's brief, a reviewing court will decide the merits of the appeal . . . Here, because the record is simple, we will decide the merits of the appeal without the benefit of the appellees' briefs.

The discharge order was affirmed. Get the whole case, Selective Ins. Co. v. Urbina, No. 1-06-0298 (1/16/07), by clicking here.

Plaintiff bought a car that he claimed had an “unremediated defect.” He appealed after his case was dismissed at trial. The appellate opinion contains a list of horribles in plaintiff’s brief and the record -- misleading Points and Authorities and Issues sections, lack of citation to the record, an incomplete record, to name a few. Despite the numerous transgressions from the Illinois Supreme Court Rules, the court considered the appeal, stating:

Given the deficient brief and record, it would be within our discretion to affirm the sanction [dismissal] order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.

The entire case, Gonzalez v. Nissan North America, No. 1-05-3539 (1st Dist. 12/4/06), is available by clicking here.

Steven Sharp was held in contempt for failure to pay maintenance and child support. He appealed the contempt ruling, and also requested review of the underlying support order. The appellate court affirmed.

Steven’s income was primarily from a trust. He argued that it was a spendthrift trust, and that the trustees refused to distribute assets to him for payment of his maintenance and child support obligations. But Steven did not originally make the trust a part of the appellate record, although it was in the trial court record.

After the appeal was fully briefed, Steven moved to supplement the appellate record with the trust. The appellate court denied the motion, ruling that supplementing the record would unduly prejudice his former wife, Laurie. Laurie was “precluded from citing to the trust provisions in her brief because the trust agreement had not been made part of the record on appeal. Therefore, petitioner [Laurie] was precluded from fully briefing any issue regarding the terms of the trust agreement.”

Laurie moved to strike Steven’s reply brief because he never served it on her. That motion was granted because Laurie was prejudiced by not having the opportunity to assess Steven’s arguments. “[P]etitioner has been prejudiced by respondent's failure to serve her with a copy of the reply brief, as she did not have an opportunity to review respondent's argument or contest any inaccuracies or misstatements in the reply brief. Moreover, it would be improper for this court to consider material that has never been presented to or considered by the opposing party.”

The whole case, IRMO Sharp, No. 2-05-1233 (12/14/06), is available here.

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.
• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider "sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions."
• Standard of review to determine whether the person seeking release has made “sufficient progress” is manifest weight of the evidence.

In the end, the State’s expert evidence, which relied upon the PPG, was allowed. The trial court’s ruling of insufficient progress was affirmed. Get the whole case, In re Commitment of Sandry, 857 N.E.2d 295, No. 2-04-0870 (2006), by clicking here.