The Second District Illinois Appellate Court recently stated this rule and identified the standard of review when a party refuses to comply with discovery based on privilege. “Berkman's appeal of the contempt order requires us to review the underlying discovery order … On appeal, Berkman challenges the trial court's determination that neither the attorney-client privilege nor the fifth amendment privilege shielded the requested documents from discovery. Although discovery orders are generally reviewed for abuse of discretion, we review the trial court's determination of whether a privilege applies de novo …”

The whole case, Mueller Industries v. Berkman, No. 2-09-0134 (3/23/10), is available here.

Section 2-621 directs the dismissal of the seller, unless the seller had knowledge of the product defect or participated in the design of the product. But it also allows for the seller to be brought back into the case if an action against the manufacturer would be, as the court stated, “impossible or unavailing.”

Because the seller was subject to being reinstated, the dismissal order did not dispose of the rights of the parties. The order therefore was not final, and not appealable at that time. “Until plaintiff files and the [trial] court rules on a motion for vacation of the order dismissing plaintiff's strict liability claims against Air 1st [product seller] and reinstatement of those claims pursuant to section 2-621, we have no jurisdiction to consider the court's dismissal of those claims.”

Read the whole case, South Side Trust and Savings Bank of Peoria v. Mitsubishi Heavy Industries, No. 1-09-0148 (3/31/10), by clicking here.

Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit.

The trial court gave summary judgment to the three defendants, and made a finding under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the judgment). Within the 30-day deadline, Daniel asked the trial court to reconsider the summary judgment. His reconsideration request raised only the statute of limitations issue, and not the immunity question. The trial court denied Daniel’s request.

Daniel appealed within 30 days of the time the trial court denied the request for reconsideration. The appeal asked for reversal of the immunity and the statute of limitations rulings.

The three defendants asserted that the appellate court did not have jurisdiction to hear the appeal of the immunity issue. They argued that Daniel’s appeal of the immunity ruling was late because (1) he did not address it in his reconsideration request, so the time to appeal it was not tolled, and (2) the appeal was filed more than 30 days after the trial court issued the summary judgment, making it late. The guts of the argument was that the immunity ruling and the statute of limitations ruling were separate orders that required individual notice of appeal, even though both were contained in a single order.

The Third District Illinois Appellate Court disagreed the three defendants. The appellate court ruled that Daniel’s one notice of appeal covering both issues was timely because the reconsideration request applied to the entire summary judgment ruling. Here’s how the appellate court explained it:

[T]he single order granting the motion for summary judgment on both issues says, "This ruling is final and appealable pursuant to Supreme Court Rule 304(a) … The Rule 304(a) language is unambiguous. Defense counsel drafted the order that he argues is really two separate orders. Defense counsel cannot argue that it means something other than what it says. Plaintiff filed a single motion to reconsider a single order granting summary judgment. This tolled the time for filing a notice of appeal with respect to the order … We conclude that this court has jurisdiction to hear plaintiff's appeal.

The appellate court acknowledged “we would have a different case” had the trial court “entered summary judgment on each issue separately, each with its own Rule 304(a) finding.” Read the whole case, Hemminger v. Nehring, No. 3-08-0751 (4/6/10), by clicking here.

City Segway asked the trial court for summary judgment based on a release Jill signed before taking the tour. Jill opposed City Segway’s request. She also asked for leave to file an amended complaint to allege willful and wanton conduct by City Segway. But Jill did not attach her proposed amended complaint to her request. The trial court gave City Segway summary judgment and denied Jill’s request to file an amended complaint. So Jill appealed.

The First District Illinois Appellate Court affirmed the order denying Jill’s motion to file an amended complaint. The court explained: “… [B]y failing to include the amended complaint in the record on appeal, Hamer has forfeited her right to have this court review the trial court’s denial of her motion for leave to amend her complaint.”

The lesson is: Include the proposed amended pleading in your motion for leave to file it. You risk forfeiting an appeal of an adverse ruling if you do not include the proposed amended pleading in your motion.

The appellate court also affirmed the order granting City Segway summary judgment. Get the whole case, Hamer v. City Segway Tours of Chicago, 1-08-3371 (6/10/10), by clicking here.

The school board did not raise a federal preemption defense in the trial or appellate courts. The Second District Illinois Appellate Court ruled that preemption was subject to forfeiture because “this preemption affects only the applicable law, not the appropriate forum or jurisdiction …”

But in this case, the appellate court ignored the forfeiture because “[W]e believe that the interests of justice and the development of a sound body of precedent require the application of federal common law here … We observe with respect the United States Supreme Court's statements regarding the importance of a uniform body of law in cases involving the interpretation of collective bargaining agreements … Accordingly, throughout this opinion we look to federal law in addressing the substantive issues raised by the parties, although we include citations to Illinois law where the issue is purely procedural or reference to state law may be helpful.”

In the end, the teachers’ summary judgment was affirmed. Read the whole opinion, Haake v. Board of Education for Township High School Glenbard District 87, No. 2-09-0103 (3/15/10), by clicking here.

Brad sued Rose for the money. The case was tried to a judge without a jury. After Brad put on his evidence, Rose asked for a “directed verdict.” The court granted Rose’s request because, it ruled, Brad did not prove the elements of a cause of action for breach of contract. Brad appealed.

The appellate court ruled that a “directed verdict” in this case was “impossible,” because there was no jury. The real motion defendant should have made was “for a judgment in her favor at the close of plaintiff's case, pursuant to section 2-1110 of the Code of Civil Procedure.” The difference was not “merely quibbling over nomenclature.” The kind of motion determines the kind of analysis the trial and appellate courts make, and the standard of review the appellate court applies.

An order granting a directed verdict in a jury trial is reviewed de novo (no discretion to the trial judge’s opinion). But appellate review of an order granting a defendant’s request for judgment after plaintiff’s evidence in a jury trial is reviewed under one of two standards. The Fourth District Illinois Appellate Court explained:

… If the court granted the motion … finding a total lack of evidence on one or more of the elements of the prima facie case, our standard of review is de novo …; for the trial court was in no better position than we are to determine the mere presence or absence of evidence … If, however, the trial court granted the motion … by weighing the evidence and assessing the credibility of witnesses, we ask whether the ruling is against the manifest weight of the evidence … The ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary, or not based on any evidence or only if the opposite conclusion is clearly evident from the evidence in the record …

In this case, the appellate court reviewed the case under a manifest-weight-of-the-evidence standard, “Because the [trial] court found that plaintiff had failed to carry his ultimate burden of proof, as distinct from his burden of initially going forward with some evidence in support of each element of his prima facie case, we infer that the court granted defendant's motion on the basis of its weighing of the evidence, not because of a failure on plaintiff's part to present any evidence at all on one or more of the elements of the cause of action.”

Ultimately, the trial court’s decision was reversed, and the case was sent back for full trial. The appellate opinion contains informative discussion of standards at trial for requests for a directed verdict and for judgment at the close of plaintiff’s evidence at a jury trial. Read the whole opinion, Barnes v. Michalski, No. 4-09-0450 (3/23/10), by clicking here.

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.

… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief, or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record …

An appellee — at least one with the resources to do so — has to be pretty nervy to decide not to file a response brief. Why would you consciously decide not to file a response? I see only two legitimate reasons: (1) you can’t afford it or (2) the appellant’s positions are so lacking in merit that a response is not necessary.

Don’t delude yourself with respect to the latter. We’ve all seen dead-bang-winners turn into something else. The conceit that comes with winning in the court below can be dangerous.

Falcon and Elgin both asked the trial court for a summary judgment. The court denied Elgin’s request, and gave Falcon summary judgment, disconnecting the property.

Elgin appealed, and raised equitable estoppel [reliance by one party — here, the city — on the word or conduct of another so that the party (city) changes his position and subsequently suffers harm] as an affirmative defense to Falcon’s request for disconnection. Falcon argued that Elgin forfeited its equitable estoppel argument because the city had not specifically stated it as an affirmative defense to the complaint. Elgin asserted the argument was not forfeited because it was raised as a defense to Falcon’s summary judgment request.

The Second District Illinois Appellate Court ruled there was no forfeiture, even though Elgin had not stated it in its response to Falcon’s complaint. The court stated that “… a challenge to the sufficiency of the pleading of any affirmative defenses can be raised in a response to a summary judgment motion. There is also authority suggesting that a defective pleading may be brought to the trial court's attention for the first time in a posttrial motion and that the assertion of such error is not forfeited on appeal.”

Elgin won the forfeiture battle, but lost the substance of the appeal. In the end, the appellate court affirmed the disconnection because Elgin did not prove all of the elements of equitable estoppel. Read the whole opinion, Falcon Funding v. City of Elgin, No. 2-09-0367 (3/11/10), by clicking here.

Pence appealed. The first question was the proper standard of review to apply to the summary judgment the railroad got on reconsideration. The First District Illinois Appellate Court acknowledged that orders from reconsideration requests often get reviewed by the abuse-of-discretion standard. But the order in this case was reviewed de novo [no discretion]. This is how the appellate court explained the ruling:

The purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence which was not available at the time of the hearing, changes in the law or errors in the court's previous application of existing law … As a general rule we review a motion to reconsider for abuse of discretion … "But a motion to reconsider an order granting summary judgment raises the question of whether the judge erred in his previous application of existing law. Whether the court has erred in the application of existing law is not reviewed under an abuse-of-discretion standard … As with any question regarding the application of existing law, we review the denial of such a motion de novo." …

The railroad’s summary judgment was affirmed because, the court ruled, Pence was not an intended user of the area in which he fell. The whole case, Pence v Northeast Illinois Regional Commuter Railroad, No. 1-08-3668 (2/3/10), is available here.

Here’s the answer: “Because Garlock's argument involves the construction of a supreme court rule, our review is de novo … When interpreting a supreme court rule, a reviewing court should apply the same principles of construction that apply to a statute--that is, the reviewing court should ascertain and give effect to the intent of the supreme court in promulgating the rule … The most reliable indicator of that intent is the specific language used in the rule … When the language of a supreme court rule is clear and unambiguous, a reviewing court should apply the language without reference to other interpretive aids …”

The quote is from White v. Garlock Sealing Technologies, No. 4-09-0036 (2/8/10), available here for the clicking.

Margie Kaiser had surgery at St. Joseph’s Hospital in Clinton County, Illinois. She had internal bleeding that did not resolve after the operation. She was transferred to St. Elizabeth’s Hospital in St. Clair County, Illinois, where the doctors stopped the bleeding.

Kaiser sued the doctor who did the initial surgery in Clinton County. But she filed her lawsuit in St. Clair County. The doctor asked the trial court to transfer the case to Clinton County, arguing the facts that gave rise to the injury occurred there, not in St. Clair. The court denied the doctor’s request.

The doctor appealed. She argued for de novo [no deference to trial court] review. She asserted the motion to change venue was based on agreed facts, so the appellate court only needed to decide a question of law. Kaiser argued for the more deferential manifest-weight-of-the-evidence standard. She asserted that the trial court must have made “findings it did not articulate in its order, because whether any portion of the transaction [Kaiser’s injury] occurred in St. Clair County is a factual question on which the parties disagree.”

The Fifth District Illinois Appellate Court agreed with the doctor. Here’s why:

We agree with the defendants [doctor]. At the pleading stage, we take all well-pled facts in the plaintiff's [Kaiser’s] complaint as true … Thus, we assume that the plaintiff received negligent care in Clinton County and postoperative care in St. Clair County. We assume that the plaintiff suffered injuries as a result of blood loss and infection. We assume that the blood loss began, as alleged, during the surgery performed in Clinton County, and we assume it continued, as alleged, until surgeons in St. Clair County were able to locate the source of the bleeding and stop it. The question before us is not whether these allegations are true. Rather, the question is whether the facts that the plaintiffs alleged took place in St. Clair County formed a "part" of the transaction. In other words, we are asked to determine whether the court below correctly determined the legal effect of the facts pled by the plaintiffs. That is a legal question. We will therefore review the defendants' contentions de novo.

In the end, the appellate court ruled that venue was proper in St.Clair County, where Kaiser had post-operative care. Read the whole opinion, Kaiser v. Doll-Pollard, No. 5-08-0247 (2/11/10), by clicking here.

The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused. So Wilbourn appealed. Among her arguments to the appellate court, Wilbourn claimed she was denied a fair trial because of a prejudicial remark by the defense lawyer during his closing argument.

During his closing argument to the jury, Cavalenes’s attorney called Wilbourn’s attorney a “slick lawyer” who tried to twist Dr. Cavalenes’s words. Wilbourn argued that the remark amounted to “plain error.” But the First District Illinois Appellate Court ruled that the comment did not change the outcome of the trial, and affirmed the verdict.

Here’s why the court rejected Wilbourn’s argument.

We cannot disturb the trial court's denial of plaintiff's motion for a new trial based upon defense counsel's isolated reference to plaintiff's attorney as a "slick lawyer trying to twist [Dr. Cavalenes'] words." This reference was made in response to plaintiff's counsel's assertion of his personal opinion as to the credibility of Dr. Cavalenes, and was a response to plaintiff's counsel's personal belief that Dr. Cavalenes was not credible. The trial court was able to observe the effect of the improper comments on the jury, and was in a position vastly superior to determine whether the improper comments denied plaintiff a fair trial. The trial court determined that the comments did not deny plaintiff a fair trial, and based upon the record before us, we cannot disturb that ruling.

The appellate opinion also is remarkable for its discussion of the “plain error” doctrine. The court described application of the doctrine in civil cases as “exceedingly rare.”

Read the whole opinion, Wilbourn v. Cavalenes, No. 1-08-3603 (2/19/10), by clicking here.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

The federal appellate court accepted the first notice of appeal because the coding mistake “was an error of form.” The filing was not “so riddled with errors that it cannot fairly be considered a notice of appeal.”

Read the whole case, Vince v. Rock County, Wisconsin, No. 10-1659 (5/3/10), by clicking here.

Our supreme court has recognized that if a plaintiff's action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater … A DWP becomes a final order only when the section 13-217 period for refiling the action expires … Accordingly, a DWP remains an unappealable interlocutory order until plaintiff's option to refile expires.

The whole case, Jackson v. Hooker, No. 1-08-3042, (1/29/10), is here for the clicking.

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings … Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

The lesson is: Resist the urge to argue in the introductory paragraph. Just because you can throw down the gauntlet at that point doesn’t mean you should. The rules do not instruct you to do so. And most important is that your audience is not looking for your argument in the introduction.