Articles Posted in Evidence

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, 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.

The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you
believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?

Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.

About a year before the trial, Dr. Bakken had been reprimanded by the Illinois Department of Professional Responsibility for not making a proper diagnosis of a different patient’s problem. Charles objected when Dr. DiFiloppo advised the court she intended to examine Dr. Bakken about the reprimand. But the trial court overruled the objection. Charles also objected when the examination of Dr. Bakken’s reprimand began at the trial, and he asked for a side conference with the court to raise the objection again. The court did not allow the side conference, but told Charles he could make his record later.

Charles did not raise the matter again until he appealed after the jury decided in favor of Dr. DiFilippo. Charles argued to the appellate court that the examination of Bakken’s reprimand should not have been allowed. Dr. DiFilippo argued that Charles waived the issue for appeal “by failing to object to the question about the reprimand itself and only interposing an objection after the answer was given and the defense asked the witness about the basis for the reprimand.”

The First District Illinois Appellate Court ruled that the argument was not waived. Here’s the court’s explanation.

Generally, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review … On the other hand, to save a question for review, an objection need not be repeated each time similar matters are presented where the court has previously ruled … Once the court has ruled, a party is entitled to assume that the trial judge will continue to make the same ruling and that he need not repeat the objection.

In this case, during recess of Dr. Bakken’s direct examination, defendant [DiFilippo] advised the circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois Department of Professional Responsibility. Plaintiffs [Charles Cetera] objected at that time and argued the evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr. Bakken whether he received a reprimand. Then during the cross-examination, the circuit court denied plaintiffs’ request for a side bar regarding evidence of the reprimand and the court explained that plaintiffs had “45 minutes on this.” The court concluded by telling plaintiffs to “make your record later.” While plaintiffs did not make a further record after this exchange, based on this record, plaintiffs were entitled to conclude that the circuit court would continue to make the same ruling and were not required to repeat the objection.

Although there was no waiver, the appellate court ultimately ruled the trial court did not abuse its discretion in allowing the examination of Bakken’s reprimand. DiFilippo’s favorable judgment was affirmed. The whole case, Cetera v. DiFilippo, No. 1-09-0691 (8/4/10), is available here for the clicking.

Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler’s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed.

At trial, William and Ramona’s expert testified that Linnea probably approached Gambler’s “kick zone,” an area directly behind the horse that the horse instinctively kicks when surprised. In the appellate court, Linnea argued that the expert’s testimony was inadmissible because it was speculative. William and Ramona asserted that the “speculation” argument had been waived because it was not properly preserved in the trial court.

The First District Illinois Appellate Court agreed with William and Ramona. Although Linnea made a pre-trial objection based on speculation, she did not assert the “speculation” objection during the expert’s testimony at trial. Here’s what the court said:

Initially, we find that plaintiffs have waived their argument that Jahiel’s [expert’s] testimony was improperly admitted because it was based on speculation. Plaintiffs asserted five objections during the course of Jahiel’s testimony. At no time in the trial court did plaintiffs object to Jahiel’s testimony based on the purported speculative basis of her testimony … Although plaintiffs filed a motion in limine seeking to prevent Jahiel from “[d]irectly or indirectly disclosing, discussing or suggesting in any manner … that the horse Gambler was provoked since [she] does not know what the plaintiff was doing at the time of the kick,” plaintiffs failed to object to Jahiel’s testimony on the grounds of speculation at trial and thus failed to properly preserve this issue for appeal

Linnea got a new trial nonetheless because the trial court mistakenly allowed the jury to consider whether she was guilty of comparative fault. Read the whole case, Johnson v. Johnson, Nos. 1-06-2759, 1-07-0029 (11/5/08), by clicking here.