Illinois Appellate Lawyer Blog

An unhappy customer sued an auto dealership, and the dealership’s incorporator. The incorporator moved to dismiss and for sanctions. The dismissal was granted, but the sanctions motion was denied. In affirming the denial of sanctions, the First District Illinois Appellate Court embellished the typical “abuse of discretion” standard. “On review, we must decide whether the trial court's decision was ‘informed, based on valid reasons, and followed logically from the circumstances of the case.’”

The whole case, Dismuke v. Rand Cook Auto Sales, No. 1-06-3000 (12/26/07), is available by clicking here.

A medical malpractice case raised the question of the correct standard of review of a ruling on whether an amended complaint relates back to the original complaint. In this case, the trial court ruled the amendment did not relate back, and thus was late under the statute of limitations.

Larry Porter sued his doctor and Decatur Memorial Hospital for malpractice in connection with his treatment for a spinal cord injury. After some discovery, Larry tried to file an amended complaint that added a new count against another doctor at the hospital.

Over objection by the hospital, the trial court first granted Larry’s motion for leave to amend. After it was filed, the hospital moved to dismiss the amended complaint because it was filed after the statute of limitations expired. The hospital argued that the amendment did not relate back to the original complaint. This time, the trial court agreed with the hospital, and granted the motion to dismiss the amendment.

Larry then moved to reconsider the dismissal of the amendment. The trial court denied that motion, and also decided that the original order allowing the amendment to be filed was inconsistent with the order that dismissed the amendment. So the trial court revised its earlier ruling to show a denial of leave to amend.

Larry appealed the orders granting the hospital’s dismissal motion and denying his motion to reconsider. The appellate court affirmed the trial court.

Larry took the case to the Illinois Supreme Court. The first question was the proper standard of review. The appellate court used an “abuse of discretion” standard, “apparently believing that because the trial court revised its earlier ruling that had granted leave to amend to be consistent with its later ruling to grant the section 2-619 [statute of limitations] dismissal, it was not actually reviewing a section 2-619 dismissal, but was instead reviewing a routine denial of a motion for leave to amend.”

The Supreme Court disagreed, and ruled that the trial court’s action should be reviewed de novo, just like any other statute of limitations motion. “The circumstances of the present case, however, indicate that the only question considered by the trial court with respect to either ruling was whether the new claim in count III of the second amended complaint related back under section 2-616(b) [leave to amend] so as to avoid the affirmative matter of the bar of the statute of limitations. In this situation, we believe that the appropriate standard of review is de novo.”

The Illinois Supreme Court viewed this as a dispute over the motion to dismiss, thus requiring a de novo standard of review. But what would have happened if the trial court just initially denied the motion for leave to amend? The issue would have been the same — whether the amendment related back to the original complaint — but the standard of review may then have been “abuse of discretion,” as the court of appeals saw it.

Read the whole opinion, Porter v. Decatur Memorial Hospital, No. 104441 (1/25/08), by clicking here.

This doesn’t come up often, but the rule is good to keep tucked away for when you need it. In this medical malpractice case, the question on appeal involved the trial court’s actions after an earlier remand from the appellate court. The First District Illinois Court of Appeals stated the scope and standard of review. “After a remand, the circuit court is required to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law that this court reviews de novo.”

Read the whole case, Garley v. Columbia LaGrange Hospital, No. 1-06-2908 (12/5/07), by clicking here.

Ozma Tabassum sued Javed Younis were married in Canada and had one child, Azra. They moved to Illinois, where their relationship took a turn for the worse. Ozma took Azra back to her family in Canada. While in Canada, Ozma and Javed negotiated a postmarital agreement. Ozma agreed not to file for divorce. In return, Javed agreed to end his extra-marital affair. Javed also agreed that if Ozma did file for divorce — which would happen if Javed did not uphold his part of the agreement — then Ozma would get the house, and it would be considered nonmarital property.

Ozma sued for divorce in Illinois. But the trial court ruled that the postmarital agreement was invalid and that the house was marital property. In reversing these rulings, the Second District Illinois Court of Appeals considered the questions of procedural and substantive unconscionability of a postmarital contract, and the proper standards of review in the appellate court.

The appellate court first considered procedural unconscionability. “A contract is procedurally unconscionable if an impropriety in the process of forming the contract deprived a party of a meaningful choice … The trial court found that the postmarital agreement was procedurally unconscionable largely on the basis that petitioner was in Canada with Azra while the parties were negotiating the terms of the postmarital agreement, ‘the implicit threat being that unless agreement was reached she and Azra would remain in Canada, reducing if not eliminating [respondent's] ability to meaningfully parent.’ This statement equates to a finding that respondent was under duress during the negotiation of the agreement. Duress may make an agreement between spouses unconscionable.”

Footnoting the standard of review, the appellate court ruled, “Where procedural unconscionability is based on contract terms and the disparity of bargaining power between the contract's drafter and the party claiming unconscionability, the issue is reviewed de novo … However, because the procedural unconscionability in this case rests on the issue of duress, we use the manifest weight standard.

The appellate court also ruled that the agreement was not substantively unconscionable. “Substantive unconscionability is based on the fairness and obligations of the contract's terms, and it can be shown by "'contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.'" … We review this issue de novo. … However, to the extent that we consider factual findings in our analysis, we will use a manifest weight of the evidence standard.”

Read the whole opinion, which includes a good discussion of the nature of contractual unconscionability, IRMO Tabassum, No. 2-06-0843 (12/7/08), by clicking here.

In Boyd v. City of Chicago, No. 1-06-0358 (12/5/08), the trial court precluded testimony of a fact witness. In Boyd’s appeal of an adverse jury verdict, he claimed the trial court improperly precluded his witness’s testimony as a discovery sanction.

The appellate court identified the standard of review: “ Whether a party violated a discovery rule is an issue of law that we review de novo”. But is this really a question of law? The determination about a violation of a statute seems like a question of fact. The appellate court identified the considerations to impose a sanction, and all six of them are fact questions. So whether a party violated the discovery rule should be a question of fact reviewed under a discretionary standard.

Heather Addis sued Exelon for retaliatory discharge. Unhappy with the jury’s defense verdict, Addis moved for judgment notwithstanding the verdict and for a new trial. After those motions were denied, Addis appealed.

The First District Illinois Appellate Court ruled that the two issues had different standards of review on appeal. A motion for judgment notwithstanding the verdict is reviewed de novo. A motion for a new trial, the court stated, is reviewed for a clear abuse of discretion. In this case, Addis’s appellate brief argued only for judgment notwithstanding the verdict. Even though she appealed from the order denying her motion for a new trial, her failure to argue that position in her appellate brief resulted in waiver of her new trial position.

This opinion muddies the “abuse of discretion” standard by defining it with “manifest weight” language. The court stated: “In determining whether the trial court abused its discretion, we consider whether the jury’s verdict was against the manifest weight of the evidence.” So which is it − abuse of discretion or manifest weight?

In the end, the confusion may not have mattered in this case. The court ruled that there was plenty of evidence for the jury to conclude in Exelon’s favor. “… [W]hen viewing the evidence in the light most favorable to defendant, we cannot find that the evidence so overwhelmingly favors plaintiff that no contrary verdict could stand. Therefore, we conclude that the circuit court properly denied plaintiff's motion for judgment notwithstanding the verdict.” That sounds like a de novo review, which is what the court called for on the motion for judgment notwithstanding the verdict.

Read the whole opinion, Addis v. Exelon Generation Co., No. 1-06-2732 (12/26/07), by clicking here.

Affirming certification of a class of plaintiffs who allegedly were overcharged by a moving company, the First District Illinois Court of Appeals stated the standard of review for class certification: “‘The trial court has broad discretion to determine whether a proposed class satisfies the requirements for class certification and should err in favor of maintaining class [certifications].’ … ‘The trial court's certification of a class will be disturbed only upon a clear abuse of discretion or an application of impermissible legal criteria.’"

The court described “abuse of discretion” (“arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view”), but did not state whether “clear abuse of discretion” called for anything more.

Get the whole opinion, Ramirez v. Midway Moving and Storage, Inc., No. 1-07-0997 (12/11/07), by clicking here.

Michelle Townsend brought a product liability case Sears Roebuck on behalf of her minor son Jacob. Jacob was badly injured when he was run over by a lawn tractor operated in his yard. Sears allegedly designed and manufactured the tractor.

The accident happened in Michigan, where Michelle and Jacob resided. But Sears was domiciled in Illinois and made certain design and marketing decisions in Illinois. The parties fought over whether Illinois or Michigan law applied.

The trial court ruled that Illinois law applied. Pursuant to Illinois Supreme Court Rule 308, the trial court certified the question of the proper choice of law for immediate interlocutory appeal. The appellate court accepted the appeal, and affirmed the decision to apply Illinois law.

Sears appealed to the Illinois Supreme Court, which reversed and ruled that Michigan law should be applied to liability and damages issues.

The parties disputed the proper standard of review. Sears argued for de novo review, the usual standard for certified questions of law. But Michelle claimed that the choice of law issue presented questions of law and fact. She asserted therefore that a more deferential standard of review — manifest weight of the evidence — should be applied to a choice of law determination.

The Illinois Supreme Court agreed with Sears, and applied the de novo standard of review. “The circuit court did not hold an evidentiary hearing, weigh the testimony or assess the credibility of witnesses; the record consists solely of documents. Where the circuit court does not hear testimony and bases its decision on documentary evidence, the rationale underlying a deferential standard of review is inapplicable and review is de novo … In any event, while the methodology of the Second Restatement of Conflict of Laws may raise factual issues, the task of evaluating and balancing the choice-of-law principles embodied in the Second Restatement, as they apply to the facts, is a matter of law rather than fact and one that is more properly left to the judge … Because these issues ‘involve the selection, interpretation, and application of legal precepts,’ review is de novo…”

Read the whole case, Townsend v. Sears, Roebuck and Co., No. 103858 (11/29/07), by clicking here.

Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified. Later, the Illinois court entered a provisional order certifying a national class.

Blockbuster moved to decertify the Illinois class based on new case law authority. The Illinois trial court denied the motion, but certified its order for appeal under Illinois Supreme Court Rule 308 (allowing interlocutory appeal of an order that involves “a question of law as to which there is substantial ground for difference of opinion and [when] … an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

This case is interesting because of the confused standard of review analysis. The First District Illinois Court of Appeals stated that the standard of review for a Rule 308 appeal is de novo. But then the appellate court identified the issue as: “[W]hether it was an abuse of discretion for the trial court to apply judicial estoppel to bar Blockbuster from challenging the propriety of certifying a national litigation class due to its previous position in a similar class action in which it agreed to class certification for settlement purposes.” So is it “de novo” or “abuse of discretion”?

In this case, anyway, the appellate court stuck with the “abuse of discretion” standard. The court ruled “that the circuit court abused its discretion when it imposed the equitable doctrine of judicial estoppel to bar Blockbuster from challenging certification of a national litigation class in Illinois …”

This time, the difference between the standards of review probably did not matter. Blockbuster appealed, and showed abuse of discretion to the appellate court’s satisfaction. But should Blockbuster have been held to the stricter standard? And what if it’s the other way around next time? Should the consumer have to show abuse of discretion by the trial court? Or should the appellate court review the question de novo – i.e., without giving discretion to the trial court’s ruling.

Read the whole case, Cohen v. Blockbuster Entertainment, 1-06-2863 (9/26/07), by clicking here.

While assisting an arrest, Police Officer Lawrence Wade got into a scuffle with the prisoner. Wade injured his knee, which required surgery. Ultimately, his doctor declared that Wade could not return to full patrol duty. The Police Department did not have an inside position for him, so Wade’s options were to retire or apply for a disability pension.

Officer Wade applied for the pension. But the City of North Chicago Police Pension Board denied Wade a line-of-duty pension, ruling essentially that one doctor’s opinion [Milgram] that Wade “did not incur a disability from the performance of an act of duty” was more persuasive than the four whose opinions were otherwise.

The circuit court confirmed the board, and the court of appeals affirmed. The first time the Illinois Supreme Court got the case, it issued a supervisory order for the appellate court to reassess in view of recent supreme court rulings. The appellate court again affirmed the denial of the pension, although it did rule that Milgram’s opinion was not credible. The Illinois Supreme Court reversed, and sent the matter back to the pension board to award Officer Wade a pension.

The appellate issue concerned the standard of review of the Milgram testimony and the sufficiency of his evidence. The supreme court reiterated the standards for review of decisions of an administrative board. “Rulings on questions of fact will be reversed only if they are against the manifest weight of the evidence … ‘An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident’ … In contrast, we review questions of law de novo … and a mixed question of law and fact is reviewed under the clearly erroneous standard … That standard [manifest weight] applies here as well.”

The Illinois Supreme Court agreed that Milgram’s opinion was not credible. The court used the occasion to remind the pension board of its responsibility. “We feel compelled at this juncture to remind Board members that, under the Pension Code, a pension board owes a fiduciary duty toward its participants and beneficiaries … Even under the manifest weight standard applicable in this instance, the deference we afford the administrative agency's decision is not boundless. We hold, as did the appellate court, that the Board's decision was against the manifest weight of the evidence.”

Read the whole opinion, Wade v. City of North Chicago Police Pension Board, No. 101265 (11/1/07), by clicking here.

A pension fund sued a partnership under the Multiemployer Pension Plan Amendments Act, an amendment to ERISA, to recover an outstanding liability. The pension fund obtained summary judgment, and the partnership appealed.

The standard of review was brought into question. Typically, summary judgments, including in ERISA cases, are reviewed de novo. But the Seventh Circuit has “held that the clearly erroneous standard of review applies when the only issue before the district court is the characterization of undisputed subsidiary facts and where a party does not have the right to a jury trial.”

In this case, the appellate court ruled that the partnership was not entitled to a jury trial under the MPPAA, so the correct standard of review was the more deferential “clearly erroneous.”

The whole case, McDougall v. Pioneer Ranch Ltd. Partnership, No. 06-3757 (7/12/07), is available by clicking here.

Katherine Bergman’s baby died during child birth. She sued the doctor and the hospital for medical malpractice. Katherine got a verdict for more than $1.5 million. The doctor appealed, and among other things, claimed he was entitled to judgment notwithstanding the verdict (jnov). The First District Illinois Appellate Court affirmed the judgment.

This opinion points to an important inconsistency in appeals from jury verdicts. The court identified the standard of review of a denial of a motion jnov: de novo review.

On his motion jnov, the doctor asserted “that there was no basis for plaintiff’s theory that the standard of care required Dr. Kelsey [defendant doctor] to give plaintiff antibiotics upon admission to the hospital.” There was conflicting expert testimony on this issue. Affirming the jury verdict, the appellate court stated: “This conflicting evidence regarding the standard of care for administering antibiotics was properly submitted to the jury, and this court will not usurp the function of the jury and substitute its judgment for that of the jury.”

So while stating that the standard of review was de novo — requiring the appellate court to make its own assessment of the evidence — the court gave deference to the jury verdict. But de novo review is inconsistent with giving deference to the jury. If you’re deferring to the judgment of the jury, then you’re not doing a fresh assessment − i.e., doing a de novo review.

You can read the whole opinion (which does not consider this problem), in Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.

In this trip and fall case, a customer, Matthews, sustained injuries when he tripped over a piece of metal that was jutting out of a fuel pump island at a gas station. The First District Illinois Appellate Court ruled on a few appellate issues. The two most significant have to do with the “plain error doctrine” and the requirement that each issue in an appeal must have its own statement of the standard of review.

After he was zeroed at trial, Matthews appealed. One of his arguments on appeal relied on the “plain error doctrine.” Matthews claimed that the trial judge made faulty and misleading statements to the jury. However, his attorney did not object when the statements were made. So on appeal, Matthews argued that the court’s statements were grounds for reversal because they constituted “plain error.”

The First District Appellate Court disagreed. The court stated that the use of the “plain error doctrine” in civil cases was “exceedingly rare.” “This doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.”

The appellate court also reiterated the rule that each of Matthews’s claims required a statement of the standard of review. “A standard of review applies to an individual issue, not to an entire appeal.” The court tweaked the parties a bit because neither discussed the standard of review for Matthews’s first argument, which concerned a claim that the verdict was inconsistent with the jury’s answer to a special interrogatory. (De novo review.)

Get the whole case, Matthews v. Avalon Petroleum Co., No. 1-05-2606 (6/29/07), by clicking here.

Shane Kolody was traveling on Amtrak with $280,000 in small bills. The government seized the money, then sued to keep it pursuant to the Illinois Drug Forfeiture Act. Kolody’s motion to dismiss the State’s amended complaint was denied. But his motion for reconsideration, based on misapplication of the forfeiture law, was granted.

The State appealed from the order granting reconsideration and dismissing the complaint. Kolody and the State agreed that the standard of review was “abuse of discretion.” But the appellate court disagreed, and applied the less deferential “de novo” standard. “When reviewing a motion to reconsider that was based only on the trial court's application (or purported misapplication) of existing law, as opposed to a motion to reconsider that is based on new facts or legal theories not presented in the prior proceedings, our standard of review is de novo … 'Where a party's motion for reconsideration merely asks the trial court to reexamine its earlier application of existing law,' this court's review is de novo …”

The whole case, People v. $280,020 United States Currency, 1-04-3633 (4/20/07), is available by clicking here.

A referendum was held to determine whether the voters wanted liquor to be sold at retail in their precincts. The ballots were printed in English, Spanish, and Chinese. These consolidated lawsuits considered whether the translation of “sale at retail” to Chinese was substantial compliance with the statutory requirements of the Illinois Election Code.

The supreme court applied different standards of review to different parts of the question. “We again note that different standards of review apply to the factual and legal components of this issue. While the ultimate legal question of whether the use of the character xiao shou was in substantial compliance with the Act is reviewed de novo, the underlying factual matters will be reviewed under a manifest weight of the evidence standard.”

This method of analysis makes more sense than — as I suspect other courts would have done — using the “mixed question of law and fact” standard of review. That standard, which looks more and more to represent a failure to face the more difficult analysis posed by the dual standards of review the court used here, asks whether the trial court’s decision was “clearly erroneous.”

In the end, the Illinois Supreme Court allowed the referendum results to stand. You can read the whole opinion in Samour, Inc. v. Board of Election Commissioners of the City of Chicago, Nos. 101902, 102227 (1/19/07), by clicking here.