January 2, 2014

Ninth Circuit Appellate Practice Guide Posted

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don't make one of these head-shaking mistakes.

Get the whole guide by clicking here.

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January 29, 2013

Lessor’s Affidavit Supporting Reconsideration Request Ignored By Appellate Court

Urban Sites of Chicago leased property to Crown Castle USA and T-Mobile USA. The parties had a disagreement about the terms of the lease, so Urban sued Crown and T-Mobile. Crown and T-Mobile counter-sued Urban.

Crown and T-Mobile asked for summary judgment, which the trial court granted. They argued that the lease had been modified to their benefit. Urban, arguing there was insufficient consideration to support the modification and relying on a company representative’s affidavit, then asked for reconsideration of the summary judgments, which the trial court denied.

Urban appealed. But the First District Illinois Appellate Court agreed with Crown and T-Mobile. The appellate court refused to even consider Urban’s affidavit because it was “submitted … for the first time in its [Urban’s] motion to reconsider … [and] was not part of the summary judgment process and was Urban Sites’ only attempt to present a basis for its lack of consideration argument. We cannot consider this document because the scope of appellate review of a summary judgment motion is limited to the record as it existed when the circuit court ruled on the summary judgment motion.”

Read the whole opinion, Urban Sites of Chicago v. Crown Castle USA, 2012 IL App (1st) 111880 (10/9/12), by clicking here.

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March 31, 2012

Pending Appeal Of Judgment Not A Bar To Adjudication Of Attorney’s Lien; Insufficient Record Dooms Appeal

Richard Moenning was injured when he got off a passenger railroad car. He sued Union Pacifc Railroad Company, the operator of the train, for negligence and for willful and wanton misconduct. Union Pacific got a directed verdict on the willful and wanton claim. But a jury gave Moenning a favorable verdict on the negligence claim -- $250,000, which was reduced to $125,000 because Moenning was 50 percent at fault for his injury.

Moenning then asked for a new trial and for sanctions against Union Pacific for having denied it was negligent. The trial court denied both requests. Unhappy with the result, Moenning appealed the verdict and the denial of his post-trial requests.

Moenning’s lawyer in the trial court was Norman Lerum. Lerum had served an attorney’s lien for one-third of a settlement or judgment payable to Moenning. While Moenning’s appeal was pending, Lerum petitioned the trial court to adjudicate and enforce his lien.

Moenning objected to the lien. But the trial court granted Lerum’s petition. Moenning asked for reconsideration, but he did not ask for a hearing within the 90-day period required by the local rules. So the trial court denied Moenning’s request.

Moenning then appealed the trial court order that enforced Lerum’s lien. Each of his arguments was rejcted by the First District Illinois Appellate Court.

First, the trial court could adjudicate Lerum’s lien even though Moenning’s appeal from the judgment still was pending. The appellate court found the attorney’s lien was collateral to the judgment, so the trial court did not lose power to consider the lien despite the pending appeal from the judgment. Here’s how the appellate court analyzed the issue:

In this case, plaintiff [Moenning] had filed a notice of appeal from the judgment entered in his personal injury suit and the denial of his posttrial and sanctions motions. In his brief, plaintiff argued error as to the jury’s finding that he was 50% at fault and the directed verdict as to his wilful and wanton claim. The petition to adjudicate the attorney’s lien did not address these issues or challenge the judgment, which was subject to the earlier notice of appeal. The circuit court’s orders granting the petition to adjudicate the attorney’s lien and denying the motion to reconsider did not affect or alter the issues that were then on appeal.

Second, Moenning argued that the trial court did not have subject-matter jurisdiction to enforce Lerum’s lien because it had not been properly perfected. But Moenning did not file a transcript of the hearing in the trial court or a bystander’s report of the proceeding. So the appellate court rejected Moenning’s argument because it was his responsibility to provide a sufficient record on appeal. The appellate court explained:

We do not have a record of the issues that were addressed or the arguments and evidence that were presented or considered by the trial court in granting the petition to adjudicate the lien and in making its finding that the lien was properly perfected. Under these circumstances, and based on the record on appeal, we cannot conclude that the trial court’s December 2, 2009 order [enforcing the lien] was in error.

Read the whole case, Moenning v. Union Pacific Railroad Co., 2012 IL App (1st) 101866, 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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November 10, 2011

Texas Painting Buyers Allowed To Argue Lack Of Personal Jurisdiction In Illinois Court

Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.

The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.

The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.

Patricia appealed. She argued that Anna’s affidavit should not be considered by the appellate court because the affidavit could have been presented in the Roughtons’s original request for dismissal.

But the Second District Illinois Appellate Court disagreed. The appellate court ruled that Patricia forfeited the argument because she raised it only in her reply brief, not her original appellate brief. Plus, Patricia did not submit a transcript of the reconsideration hearing into the appellate record, so the appellate court assumed there was sufficient basis to accept Anna’s affidavit. This is how the appellate court explained it:

In her reply brief, Patricia contends for the first time that we should not consider Anna's affidavit, because there was no showing that it could not have been provided as an exhibit with the Roughtons' original motion. However, points not argued in the appellant's brief are forfeited. … Here, without a transcript of the hearing on the motion to reconsider or a substitute, we assume that Patricia did not object, that the affidavit was accepted at the hearing as newly discovered evidence, or that the trial court otherwise had ample grounds to support its determination about the affidavit. This is particularly appropriate when the motion for reconsideration was based in part on the court's indications that it would be open to learning of additional facts that arose, and when new case law arose during the pendency of the proceedings. Accordingly, we consider Anna's affidavit.

In the end, the appellate court ruled the Roughtons did not have the minimum contacts required for an Illinois court to exercise personal jurisdiction. Read the whole case, Wiggen v. Wiggen, 2011 IL App (2d) 10098, by clicking here.

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October 9, 2011

Railroad’s Appeal Doomed For Incomplete Appellate Record

Harry Balough was injured in his work maintaining a railroad car. So he sued his employer, the railroad company. A jury awarded him damages of $500,000, but also found he was 40 percent responsible for his injury. So Balough’s award was reduced to $300,000.

Balough then asked the trial court to reinstate the $500,000 verdict. He argued that the statute he sued under did not allow for reduction of a verdict because of his own contributory fault. The trial court agreed, and entered a verdict for the larger amount.

The Railroad appealed, but did not put the facts for the jury’s finding nor for the trial court’s legal ruling into the appellate record. The First District Illinois Appellate Court agreed with trial court’s legal ruling that Balough’s contributory fault could not serve to reduce his full damage award. The appellate court also ruled that presumptions of fact fell in Balough’s favor because it was the Railroad’s burden, as the party appealing, to assure there was an adequate appellate record. Here’s how the appellate court explained it:

[B]ecause Metra [Railroad] failed to present an adequate record, we must presume the trial court's determination was correct. Metra failed to include in the record the following: the jury instructions on the LIA; instructions regarding the two different general verdict forms; the alternative verdict form A; a transcript or bystander's report of any discussion during the jury conference regarding the special interrogatories; and a transcript or bystander's report of any explanation or discussion by the court regarding the special interrogatories and verdict forms before the jury. In the absence of a more complete record regarding the basis for the court's order denying defendant's motion, we must presume that the court's action "was in conformity with the law and was properly supported by evidence," and that any doubts arising from an incomplete record should be resolved against the appellant …

We note that Metra offers no explanation for its failure to include a report of proceedings of the trial court's reading of the instructions to the jury or of any explanation or discussion of the special interrogatories and verdict forms before the jury." An issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding.

You can read the whole opinion, Balough v. Northeast Illinois Regional Commuter Railroad Corp., No. 1-09-3053 (5/19/11), by clicking here.

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September 23, 2011

Insured’s Second Appeal Dismissed For Lack Of Jurisdiction

This case involved John Crane, Inc.’s claim for insurance coverage, and the insurers’ counterclaim against Crane. The insurers persuaded the trial court to dismiss Crane’s complaint. Two days later, Crane appealed the dismissal.

Then CNA, one of the insurers, asked the trial court to vacate or modify the dismissal order and for leave to amend its counterclaim against Crane. The trial court ruled (1) against CNA and would not allow the judgment to be vacated or modified, (2) for CNA and allowed amendment of the counterclaim against Crane.

Two weeks later, the trial court entered a final judgment on all of the remaining claims except CNA’s counterclaim.

About two weeks after that, the appellate court dismissed Crane’s appeal for want of prosecution because the company did not file the record on appeal within the time allowed by the rules. Rather than file a petition for rehearing of the dismissal of the appeal, Crane filed a whole new appeal. Crane’s second appeal asked for the same relief as the first one.

Allianz Underwriters, another of Crane’s insurers, asked the appellate court to dismiss the second appeal. Allianz argued the appellate court had jurisdiction when it dismissed the first appeal; because Crane did not ask for a rehearing, that dismissal ended the proceeding. Crane argued the second appeal was proper because CNA’s motion to modify the judgment meant the “first appeal never became effective,” and there never was appellate jurisdiction over that appeal.

The First District Illinois Appellate Court agreed with Allianz. Crane’s first appeal became effective, the appellate court said, after the trial court ruled against CNA’s request to modify the judgment. Then the dismissal of the first appeal rendered the appellate court without jurisdiction to consider Crane’s second appeal. Here is how the appellate court explained the ruling:

John Crane’s first appeal was the effective appeal from both the November 13, 2009 [final judgment], and the March 10, 2009 [dismissal of Crane’s complaint] … and this court had jurisdiction when we dismissed its [Crane’s] first appeal … for want of prosecution … John Crane did not file a petition for rehearing within 21 days. When an appeal of a final order is dismissed for want to prosecution and no petition for rehearing is filed within 21 days, the dismissal becomes final and the appellate court loses jurisdiction to consider additional arguments stemming from the initial order.

The whole opinion, John Crane, Inc. v. Admiral Insurance, 2011 IL App (1st) 093240 (August 30, 2011), is available by clicking here.

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December 5, 2010

Dismissal Of Election Law Complaint Remanded To Board For Lack Of Fact Findings

Mark Thompson filed a complaint in the Illinois State Board of Elections against Elizabeth Gorman. Thompson claimed Gorman filed false reports concerning loans and financing of a campaign for elected office.

After a closed preliminary hearing, the Board examiner “recommended that petitioner’s [Thompson] complaint be found not to have been filed upon justifiable grounds and that the matter not proceed to a public hearing.” The Board adopted the examiner’s recommendation and dismissed Thompson’s complaint.

The examiner issued a written report. But the Board did not make findings of fact in support of its ruling. The Board stated only that its ruling was based on a reading of the examiner’s report and the recommendation of the Board’s general counsel. (The general counsel’s report was not in the record on appeal.)

That was not sufficient to dismiss the complaint. The First District Illinois Appellate Court ruled that “[a] decision of an administrative agency must contain findings so as to make judicial review of that decision possible … [T]he Board did not enter any findings from the evidence to support its conclusion that petitioner’s [Thompson] complaint was not filed on justifiable grounds, and we therefore remand the matter to the Board for a statement of reasons as to why it reached that conclusion.”

Read the whole case, Thompson v. Gorman, 1-10-0885 (11/18/10), by clicking here.

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August 17, 2010

$2 Million Punitive Damages Award In Defamation Case Reduced To $81,600 On Appeal

Jerry Slovinski sued James Elliot, the CEO of Slovinski’s former employer, for defamation. Slovinski claimed that disparaging and untrue remarks were made about him by Elliot to one of the company’s suppliers.

A jury awarded Slovinski $81,600 for compensatory damages, and $2 million for punitive damages. The trial court thought the punitive damages verdict was too high, so it remitted it to $1 million. Slovinski appealed the remittitur, but the appellate court lowered the punitive damages verdict even more, to $81,600.

Slovinski appealed to the Illinois Supreme Court. He argued that the original $2 million verdict should stand because neither the trial court nor the appellate court stated specific reasons for lowering the verdict.

But the Illinois Supreme Court disagreed, and affirmed the lowered punitive damages verdict of $81,600. The supreme court ruled that neither the trial court nor the appellate court were required to give specific reasons for lowering the verdict. All that mattered was that the trial court record supported the remittitur. Here’s what the supreme court said: “For purposes of our review, it is irrelevant whether the appellate court articulated with sufficient clarity the reasons it had for reaching its decision. The issue for this court is simply whether the appellate court erred in holding that the circuit court should have reduced the jury's award further.”

In the end, the Illinois Supreme Court ruled that the trial court abused its discretion by lowering the punitive damages verdict to $1 million because there was “no material evidence to support it.” Read the whole opinion, Slovinski v. Elliot, No. 107146 (4/15/10), by clicking here.

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October 3, 2009

Missing Trial Court Order Sinks Parent’s Appeal Of Parental Termination Ruling

Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child.

The record on appeal contained Hampton’s motion for the independent exam, but not a resulting court order. The Fourth District Illinois Appellate Court rejected Hampton’s argument of error by the trial court because there was no way to establish from the record how, if at all, the trial court ruled. Hampton thus failed her obligation to provide a complete record from which the appellate court could review the trial court’s action. Here’s how the appellate court explained it:

“To determine whether a claimed error occurred, a court of review must have before it a record of the proceedings below." … "The appellant [Hampton] bears the burden to present a sufficiently complete record, and this court will resolve any doubts that arise from an incomplete record against the appellant." … Further, "[a] movant [Hampton] has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal." …

“Here, the record does not contain a ruling by the trial court on respondent's [Hampton] motion. It is unclear whether the record is simply incomplete, in that the court ruled on the motion but the ruling is absent, or whether respondent failed in her duty to bring her motion to the court's attention and no ruling was ever obtained. In either event, we find the court committed no error.”

Get the whole case, In re M.R., No. 4-09-0110 (7/20/09), by clicking here.

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August 9, 2009

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters. While the jury was deliberating, Gloria settled with Campbell for $150,000. The jury returned a verdict for Gloria of $518,000, and found Campbell and Walters each liable for 50 percent.

The court awarded Gloria $259,000 from Walters − his 50 percent of the full $518,000 award. Gloria thought Campbell and Walters were jointly and severally liable for the whole verdict, so she appealed and asked for an award of $368,000 from Walters ($518,000 minus the $150,000 settlement).

Certain of the medical providers held liens against Gloria’s judgment. There was a hearing in the trial court to adjudicate those liens. Walters argued that Gloria’s appeal was barred because she “represented to [the] lienholders that she would accept the judgment.” Walters argued that the doctrines of invited error (“a party cannot complain of error which that party induced the court to make or to which that party consented’”), and judicial estoppel (“a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding”) doomed Gloria’s appeal.

But the First District Illinois Appellate Court disagreed. The appellate court ruled that Walters had not supported his factual assertion about Gloria’s representation to the lienholders with citation to the record on appeal. Here’s what the appellate court stated:

Walters has not provided in his brief specific citations to the record showing plaintiffs affirmative representation in the lien proceedings that she would not challenge the judgment on appeal. To the contrary, the record contains plaintiffs memorandum of law dated more than three months before the adjudication of the liens, arguing that the judgment should have been calculated based on joint and several liability. The trial court was on notice when the liens were adjudicated that plaintiff intended to challenge the judgment. We do not believe the doctrine of invited error, waiver or estoppel bar this appeal. Plaintiff did not affirmatively take a position in the lien proceedings that conflicts with her position on appeal.

In the end, the appellate court affirmed and ruled that joint and several liability did not apply to Gloria’s judgment. Read the whole case, Sakellariadis v. Campbell, No. 1-07-2845 (5/29/09), by clicking here.

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July 18, 2009

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

The Illinois Supreme Court let the forfeiture decision stand. Because the appellate court briefs were not made a part of the record, the supreme court could not determine whether the forfeiture question had been properly decided. Here’s what the supreme court stated:

Before this court, United argues that the appellate court erred by applying the doctrine of procedural default. A review of the appellate court's application of the doctrine would necessarily require that we examine the briefs filed in the appellate court. However, United has failed to utilize Supreme Court Rule 318(c), which provides: "If it is important for the Supreme Court to know the contentions of any party in the Appellate Court, copies of the pertinent Appellate Court briefs certified by the clerk of that court may be filed in the Supreme Court." … Because the briefs filed by the parties in the appellate court are not a part of the record provided to this court, we are unable to review whether the appellate court erred in applying procedural default.

Read the whole case, Ready v. United/Goedecke Services, No. 103474 (3/23/09), by clicking here.

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April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

The Second District Illinois Appellate Court ruled that it was permitted to take judicial notice of the administrative code, so the taxpayers were allowed to include them in their appendix. However, stating it had no legal basis, the appellate court struck the dictionary excerpt. Here is what the court stated.

We first note that courts are required to take judicial notice of all rules published in the Illinois Administrative Code and the Illinois Register … This court may take judicial notice of rules and regulations even when they are not part of the record on appeal … Thus, while [Illinois] Supreme Court Rule 342(a) [stating the requirements for the appendix] … does not provide for the inclusion in the appendix of such nonrecord material as rules and regulations, we do not find that the inclusion of the Illinois Administrative Code sections is improper, and we deny the motion to strike as it relates to this material. However, the inclusion of the printout of the Internet thesaurus has no legal basis, and it and all references to it are stricken.

Get the whole case, G.I.S. Venture v. Novak, No. 2-07-0934 (2/16/09), 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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January 23, 2009

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

David Naleway and his minor daughter sued the girl’s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners.

During the trial, Naleway tried to introduce a complaint Agnich made about the trial judge to the Judicial Inquiry Board. But the trial judge would not allow the complaint to the JIB into evidence, saying it was a privileged communication.

Naleway appealed that ruling. But the complaint to the JIB was not made a part of the record in Naleway’s defamation case. Agnich argued that the appellate court should not consider the matter because “the transcript of the hearing at which the trial court disallowed plaintiffs' evidence does not specifically identify the document plaintiffs sought to introduce, and … plaintiffs never tendered any document as evidence for the record.”

The Second District Illinois Appellate Court disagreed. The court ruled that discussion on the record in the trial court about the complaint to the Judicial Inquiry Board was sufficient to allow the appellate court to consider Naleway’s appeal, even in the absence of the document.

The parties also fought about the proper standard of review of Naleway’s challenge to the exclusion of the JIB complaint. The usual standard of review for an evidentiary ruling is whether the trial court abused its discretion. But Naleway argued for a de novo standard in which the trial court gets no discretion.

The appellate court agreed with Naleway, ruling that it was a question of law that required the tougher standard of review.

[W]here the issue on appeal is not whether the trial court properly exercised its discretion to exclude evidence but instead whether the trial court misinterpreted the law in excluding evidence, the question presented on appeal is one of law, and our review is de novo. … Because the basis of the trial court's decision to exclude the JIB complaint was its determination that the complaint was privileged as a matter of law, plaintiffs' challenge to that decision presents a legal question, which we review de novo.

Get the whole case, Naleway v. Agnich, No. 2-06-1275 (10/31/08) by clicking here.

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September 12, 2008

Appellate Court Can Look Beyond Record To Assess Admissibility Of Novel Scientific Evidence

Tanisha Ruffin, on behalf of her infant daughter Sonya, sued Dr. Leo Boler for malpractice during Sonya’s delivery. Ruffin claimed Boler’s negligence caused Sonya to be born with an injury to her brachial plexus nerve network located at the shoulder area.

The case was tried to a jury, which ruled in favor of Boler. Ruffin asked for a new trial because Boler’s expert, a biomedical, biomechanical engineer, was allowed to testify. The trial court (a new judge) agreed that Boler’s expert should have been barred, and granted the new trial. Boler appealed.

The admission of novel scientific evidence in Illinois courts is governed by the Frye standard. (“… admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’”)

The First District Illinois Appellate Court ruled it was proper to admit the expert’s testimony. The appellate court considered two federal district court opinions that decided whether this same expert’s evidence was admissible. The court stated it properly could look outside the appellate record for the purpose of determining the propriety of evidence under the Frye standard. “… [O]ur de novo review of Judge Morrissey's [trial court judge] Frye analysis is not limited to the evidence presented at the Frye hearing. We may also consider, ‘where appropriate, sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions.’"

The whole opinion, Ruffin v. Boler, No. 1-06-3437 (6/25/08), is available by clicking here.

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June 18, 2008

Lack of Hearing Transcripts Makes For Insufficient Record To Reverse Good Faith Of Settlement

A building owned by the Jesuit church collapsed during demolition of the building next door. The church’s insurer paid the church’s insurance claim, and they both sued a number of the contractors involved in the demolition. When the church and the insurer settled with most of the defendants, the non-settling defendants contested the good faith of the settlement.

The trial court ruled that the settlement was made in good faith, thus extinguishing the non-settling defendants’ claims for contribution against the settlors. The non-settlors then appealed the good faith finding. A number of hearings on the motion for good faith finding were held in the trial court, but transcripts of those hearings were not a part of the appellate record.

The First District Illinois Appellate Court affirmed the good faith finding. The appellate ruling was made in part because the non-settlors failed to provide a record sufficient to find an abuse of discretion. Here is the appellate court’s rationale:

… [A] reviewing court’s starting point is the view voiced by the trial court … In the case at bar, we have no idea what view of the trial court voiced because the appellate record is missing numerous transcripts where the trial court may have voiced its view. At least half a dozen hearings took place concerning the good-faith motion prior to the trial court’s ruling … Instead of providing the transcripts in the record, appellants chose to spend several pages of their brief arguing to this court what the missing transcripts might have “possibly” said. This type of speculation has been explicitly forbidden by our supreme court.

So the lesson is: Get a court reporter and include the hearing transcript in the record. Read the whole case, The Chicago Province of the Society of Jesus v. Clark and Dickens, No. 1-07-0960, 1-07-1003 ( 6/9/08), by clicking here.

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June 1, 2008

Failure To Proffer Proposed Amended Pleading Forfeits Right To Appeal

Members of an insurance pool were sued for failure to pay extraordinary assessments. The pool members in turn brought a third-party complaint against a number of parties alleging breach of contract and numerous torts. The trial court dismissed a significant part of the third-party complaint with prejudice and without leave to file an amended pleading.

The Fourth District Illinois Appellate Court refused to rule on the members’ argument that they were entitled to amend their third-party complaint. The court ruled that the members’ failure to proffer the amended third-party complaint to the trial court resulted in forfeiture of the question. “The pool members did not include a proposed amended complaint with supporting facts in the trial court. The failure to do so ‘significantly diminishes our ability to determine whether the proposed amendment’ would provide them with a viable theory against RMA and Murray [third party defendants] … The failure to tender the proposed amendment forfeits review of the trial court's decision.”

So the lesson is: to assure there is a complete record for appeal, always proffer your proposed amended pleading to the trial court. Failing to do so may be a forfeiture of an argument on appeal that you improperly were not allowed leave to amend.

You can read the whole case, Illinois Non-Profit Risk Management Assn. v. Human Service Center of Southern Metro-East, No. 4-07-0472 (1/9/08), by clicking here.

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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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February 28, 2008

Fifth District Illinois Appellate Court Looks At Waiver, Ex Parte Communication, And Trial Judge Misconduct. First District Appellate Court Reviews Completeness Of Appellate Record

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.

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December 11, 2007

No Transcript, No Worry. But Lack Of Exhibits Kills Appeal.

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.

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December 5, 2007

Appeal Doomed For Lack Of Trial Court Transcript

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.

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November 10, 2007

Fourth District Appellate Court Pieces Together Inadequate Record

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.

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October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

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.

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March 23, 2007

No Brief Doesn’t Matter. First District Illinois Appellate Still Affirms Judgment For Appellee.

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.

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February 25, 2007

Appeal Stands Despite Litany Of Deficiencies In Brief

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.

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February 13, 2007

Leave To Supplement Appellate Record Denied By Second District Illinois Appellate; Reply Brief Stricken For Lack Of Service

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.

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January 11, 2007

No Mootness, No Waiver, No Rehearing In Psychotropic Drug Case

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.

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December 20, 2006

Illinois Second District Appellate Court: (1) No Objection, No Matter, No Waiver. (2) Appellate Court Not Restricted By Record In Frye Assessment. (3) Standard Of Review Manifest Weight In Release of Sexually Violent Person.

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.

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