Articles Posted in Appellate Record

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.