June 22, 2013

Appeal Of Class Certification Gets Abuse-Of-Discretion Review

Poolman of Wisconsin services and sells swimming pools, hot tubs, and fireplaces. Through a third-party, the company faxed an unsolicited advertisement to UESCO Industries, a company that manufactures cranes. Angered at Poolman‘s advertising method, UESCO sued Poolman under a federal law that prohibits unsolicited fax advertisements.UESCO asked for class action certification, claiming it could adequately represent all parties that received Poolman’s fax advertisement.

An Illinois trial court granted UESCO’s request for class action status. Poolman appealed.

UESCO and Poolman argued for opposite appellate standards of review. Poolman asserted the appellate court should review the matter de novo (no discretion given to the trial court) “because the issues presented on appeal are ‘purely legal.’” UESCO argued that the trial court should be reversed only if it abused its discretion. The First District Illinois Appellate Court sided with UESCO, and ruled that the trial court gets discretion with one condition.

Here is how the appellate court described it. “Based on our review of the cases cited by defendant and pertinent Illinois authority, our determination here involves whether the circuit [trial] court abused its discretion or applied impermissible legal criteria.”

UESCO won the standard-of-review battle but lost the war. In the end, the appellate court reversed the ruling that allowed class certification. Read the whole opinion, UESCO Industries v. Poolman of Wisconsin, 2013 IL App (1st) 112566 (6/17/13), by clicking here.

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February 20, 2013

Subpoena In Plot-To-Kill-Former-Wife Case Gets Full Appellate Review Despite No Opposing Brief

Carolyn Mahoney sued her former husband, Billy J. Cox, and his lawyer, Marc Gummerson, for plotting to kill her. Cox was in jail, so Mahoney served the Illinois Department of Corrections with a subpoena to find out information about the plot. The DOC asked the trial court to quash the subpoena because the documents Mahoney wanted contained the name of a confidential informant. The DOC argued the informant’s safety could be at risk if his identity were disclosed.

Trial court refused quash the subpoena, and instead compelled the DOC to produce the records. The DOC then asked for an immediate appeal of whether the informant’s identity was privileged under an Illinois statute.

The appeal was allowed, and a question about whether the statute made the informant’s identity confidential was certified. The DOC filed its brief, but neither Mahoney, Cox, nor Gummerson responded. So the issue was how the appellate court should treat an appeal that no one opposed.

The Second District Illinois Appellate Court acknowledged the usual methodology when an opposing brief is not filed: the court considers the merits of the appeal “if the issues and record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant [party appealing] if the appellant establishes a prima facie [on its face; at first blush] case for reversal.”

But the appellate court ruled that the typical method would not work in this case because the court had to decide a certified question of law. Here’s how the court explained it:

“[I]n an appeal that considers certified questions … ruling in favor of the appellant who establishes a prima facie case would entail not ordering a case-specific outcome but, rather, articulating a legal proposition that may or may not be correct… [T]he failure to file an appellee’s brief does not establish or corroborate the answer to a certified question. A certified question is a question of law that is not susceptible to either a default or a prima facie showing of error. Therefore, we address certified questions on their merits, regardless of their simplicity. Our review is de novo [no trial court discretion] because we are presented solely with questions of law.”

Read the whole opinion, Mahoney v. Gummerson, 2012 IL App (2d) 120391 (11/20/12), by clicking here.

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January 23, 2013

Implied-In-Fact Contract Reviewed By Manifest–Weight-Of-The-Evidence

While still married to John, Betsy D’Attomo began developing a bakery. John and Betsy financed the bakery partly with money from a home equity loan. The couple decided to divorce. At the divorce trial, John claimed the money from the home equity loan was a loan to the bakery that must be paid back. Betsy testified that the money was an equity investment. The circuit court sided with Betsy, and ruled that the advance was an investment, not a loan.

John appealed. But other than his own testimony, John did not have any evidence to prove the advance was a loan. He argued that the loan contract was implied in fact. He also argued that the existence of an implied-in-fact contract was a question of law, which the appellate court should review de novo. [No discretion for the trial court decision.]

The First District Illinois Appellate Court disagreed with John on the standard of review. Implied-in-fact contracts are reviewed under a de novo standard if they arise out of a written document. But John did not have a written loan agreement. So the appellate court ruled that the more deferential manifest-weight-of-the-evidence standard applied because “the trial court is in a better position to weigh the testimony adduced at trial.”

In the end, the appellate court went along with the ruling that the home equity money was an investment. Read the whole case, IRMO D’Attomo, 2012 IL App (1st) 111670 (9/26/12), by clicking here.

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March 13, 2012

How The Illinois Appellate Court Reviews Personal Jurisdiction

Here is a nice, concise statement of how the Illinois Appellate Court reviews the personal jurisdiction of the trial court.

When the trial court decides a jurisdictional question solely on the basis of documentary evidence and without an evidentiary hearing, as it did here, then the question is reviewed de novo on appeal. Rosier v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 561, 305 Ill.Dec. 352, 855 N.E.2d 243 (2006). On appeal, any conflicts in the pleadings and affidavits must be resolved in the plaintiff's favor. MacNeil v. Trambert, 401 Ill.App.3d 1077, 1080, 342 Ill.Dec. 314, 932 N.E.2d 441 (2010). “However, well-alleged facts within affidavits presented by the defendant must be taken as true notwithstanding the existence of contrary averments in the plaintiff's pleadings unless the defendant's affidavits are contradicted by affidavits presented by the plaintiff, in which case the facts in the plaintiff's affidavits prevail.” Keller v. Henderson, 359 Ill.App.3d 605, 611, 296 Ill.Dec. 125, 834 N.E.2d 930 (2005). If we determine that plaintiff has made a prima facie case for jurisdiction, we must then determine if there exist any material evidentiary conflicts. Id. If a material evidentiary conflict exists, we must remand the cause for an evidentiary hearing. Id.

Click here for the whole case, Soria v. Chrysler Canada, 2011 IL App (2d) 10123.

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February 7, 2012

De Novo Standard Applies To Contempt For Failure To Produce Privileged Documents

Center Partners v. Growth Head grew out of a complex asset purchase agreement. The question in this opinion concerned whether Westfield, one of the parties involved in the agreement, had waived the attorney-client privilege during negotiations and had to produce documents in connection with the waived subject.

The trial court ruled that Westfield had waived the privilege and had to produce some 1,500 documents that otherwise were subject to the attorney-client privilege. Westfield refused to produce the records, so the trial court held Westfield in contempt.

Westfield appealed the contempt order. The first question was the proper standard of review. Contempt orders generally are reviewed for an abuse of discretion. But the First District Illinois Appellate Court applied a de novo standard [trial court decision gets no discretion]. This case was different than the typical contempt appeal “because a trial court lacks the discretion to compel the disclosure of privileged information, [so] we apply a de novo standard of review in determining the applicability of the attorney-client privilege.”

In the end, the court appellate court ruled that the privilege had been waived. Read the whole case, Center Partners v. Growth Head, 2011 IL App (1st) 11038, by clicking here.

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December 7, 2011

Contempt Order Against Law Firm Reviewed De Novo

Hadley and David Newton were getting divorced. Grund, an attorney had met with David concerning the divorce, and took notes of the conversation with David. Nonetheless, Grund and Leavitt agreed to represent Hadley in the divorce case.

Grund and Leavitt asked the trial court for an award of Hadley’s attorney fees from David, about $250,000. But David asked the trial court to disqualify Grund and Leavitt from representing Hadley because of a conflict of interest from Grund’s representation of David. Before it ruled on the fee request, the trial court disqualified Grund and Leavitt.

A week later the trial court denied the fee request based on the conflict of interest. At the court hearing, the law firm refused to obey the disqualification order, so the trial court found Grund and Leavitt to be in direct contempt of court.

The law firm appealed the contempt order, and the parties fought over the proper standard of review. Grund and Leavitt argued for de novo review (no discretion to the trial court) because, they claimed, the correctness of the contempt order was purely a question of law. David argued for the more lenient abuse-of-discretion standard.

The First District Illinois Appellate Court sided with the law firm. Here is the court’s reason for choosing the abuse-of-discretion standard:

When the facts of a contempt finding are not in dispute, their legal effect may be a question of law, which we review de novo. … "As a general rule, a trial court's decision to award fees is a matter of discretion and will not be disturbed on appeal absent an abuse of discretion." … Here, however, the circuit court indicated its belief that it could not award attorney fees once Grund and Leavitt were disqualified. Meanwhile, Grund and Leavitt argue that, although they were disqualified, they are still entitled to their fees accrued for work performed for Hadley under section 508 of the [Marital Dissolution] Act before the disqualification and assert that nothing in the ethical rules explicitly states that no fees are allowed if an attorney is disqualified. The legal question is thus whether the circuit court properly denied attorney fees from the beginning of Grund's representation of Hadley. Whether a court or administrative agency has the authority to award attorney fees is a question of law that we review de novo. …" Furthermore, whether a party may recover attorney fees and costs pursuant to any specific act is a question of law." … Thus, since the facts of the contempt are not in dispute and since Grund and Leavitt are not appealing the disqualification, we are presented with a question of law and we review this issue de novo.

Grund and Leavitt won the battle over the standard of review, but lost the war. The appellate court affirmed the contempt order, in effect depriving the firm of attorney fees. Read the whole case, IRMO Newton, No. 1-09-0684 (6/30/11), by clicking here.

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September 6, 2011

De Novo Standard For Judge-Candidate’s Appeal Of Successful Ballot Challenge


Chris Ward wanted to be a judge in the state trial court in Will County, Illinois. Circuit court judges are elected by popular vote in Illinois, so Ward filed a candidacy petition to run in the primary. But when he filed, he did not live in the subcircuit he filed in.

Daniel Goodman, husband of one of Ward’s primary opponents, filed an objection to Ward’s candidacy petition. Goodman argued Ward was ineligible to run for judge in a subcircuit he did not live in when the petition was filed.

The Will County electoral board agreed with Ward and ruled that Ward could appear on the election ballot. Goodman appealed the board’s decision to the circuit (trial level) court, which agreed with him, and precluded Ward from the ballot. Ward then took the case to the Illinois Appellate Court, which also agreed with Goodman.

The Illinois Supreme Court took Ward’s appeal. The standard of review was among the preliminary issues. Did the case present a question of law, a question of fact, or a mixed question of law and fact? Each has a different standard of review. The question in this case, the supreme court ruled, was whether the governing law had been interpreted properly given the undisputed facts. Here’s how the Illinois Supreme Court explained it:

As in other administrative review cases, the standard of review we apply to an election board's decision depends on what is in dispute, the facts, the law, or a mixed question of fact and law … In this case there is no argument about the facts. The issue is whether, given those facts, the Will County officers electoral board correctly concluded that Ward's nominating petitions were sufficient under the controlling law to permit his name to appear on the ballot for the February 2, 2010, primary election as a candidate for the Democratic nomination to fill a subcircuit vacancy.

Our court has held that where the historical facts are admitted or established, the controlling rule of law is undisputed and the issue is whether the facts satisfy the statutory standard, the case presents a mixed question of fact and law for which the standard of review is “clearly erroneous.” … We have also held, however, that where the historical facts are admitted or established, but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a purely legal question for which our review is de novo … The matter before us here falls within the latter category. Our review is therefore de novo, a standard we have characterized as “independent and not deferential.”

In the end, the supreme court ruled that Ward did not belong on the election ballot. Read the whole case, Ward v. Goodman, No. 109796 (3/24/11), by clicking here.

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September 3, 2011

Developer’s Financial Finagling Supports Punitive Damages Award

Old Town Development sued a slew of companies for fraud and breach of fiduciary duties in operating Old Town Development. After a bench trial, the trial court awarded Old Town over $1 million compensatory damages and three times that for punitive damages.

The defendant companies appealed. The appellate court’s opinion is instructive on the standards of review for the various aspects of a punitive damages award.

The first part of the punitive damages test was whether “punitive damages were available as a matter of law [under] plaintiff’s cause of action.” The appellate court ruled that its standard of review was de novo (no discretion to the trial court). In this case, the First District Illinois Court of Appeals ruled, a breach of fiduciary duty action could support a claim for punitive damages.

The second part of the test was whether the defendant companies acted with willful and wanton disregard for Old Town’s rights. The appellate court reviewed the “factual determination that defendants acted willfully and that aggravating factors exist under the manifest-weight standard … In applying this standard, we give deference to the trial court as the finder of fact because it is in the best position to observe the conduct and demeanor of the parties and the witnesses … For that reason, we may not substitute our judgment for that of the trial court regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to be drawn.”

In this case, the appellate court affirmed the finding of willful disregard of Old Town’s rights because the trial court “‘was shocked by the nonchalance with which both McLean [defendant] and his accountant * * * described their misconduct in their testimony’ and how any device they could use to deceive Tully was deemed justified because Tully was considered a pest and an impediment to McLean's business interests.”

Next was the whether it was proper to award punitive damages in view of its legal purpose ― punishment and deterrence. The appellate court gave the trial court lots of latitude on this question, and ruled the standard of review was abuse-of-discretion.

The company defendants argued that the court was biased, and thus the punitive damages award was not made to punish or deter. But the appellate court again referred to McLean’s nonchalance, “which was well within the scope of the [trial] court’s consideration. There is nothing to show the court’s decision to award punitive damages was the result of the court’s bias against defendants …”

The appellate court also considered whether the amount of the punitive damage award was appropriate. The appellate court did not state a standard of review on this question, but it did “review the [trial] court’s computation of the amount of punitive damages award to determine whether the amount was excessive or the result of passion, partiality, or corruption.” The defendant companies argued that a three-to-one punitive-to-compensatory ratio was too harsh because there was no intention to hurt Old Town.

But the appellate court ruled that didn’t matter. “The fact that defendants may not have intended to harm plaintiffs does not take away from the fact that they were fully aware of and ignored the impact their ‘on demand loans’ [taken out of Old Town] would have on Old Town … OTD [Old Town] was harmed by the transfers in that it couldn’t meet its financial obligations and was charged late fees and penalties as a result. It was also unable to use its own funds or earn interest thereon during the period the interest-free loans were outstanding.”

The defendant companies also challenged the punitive damages award as violating their due process rights under the U.S. Constitution. Reviewing the constitutional argument under a de novo standard of review, the appellate court ruled there was no due process violation.

Read this most interesting opinion, Tully v. McLean, No. 1-09-2976 (4/26/11), by clicking here.

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July 9, 2011

Defamation Plaintiff’s Punitive Damages Verdict Reviewed By Manifest-Weight-Of-The Evidence

Wallace Leyshon was fired from his job for cause by Diehl Controls North America. Leyshon sued Diehl for, among other things, defamation. A jury awarded Leyshon $2 million in compensatory damages and $10 million in punitive damages. Diehl asked the trial court to lower the punitive damages verdict, which it did, to $6 million.

Still unhappy, Diehl appealed. One of Diehl’s positions on appeal was that the punitive damages award was excessive. The question was whether Leyshon had sufficient facts at trial to support the punitive damages verdict. The First District Illinois Appellate Court first considered the standard of review: “As the jury’s determination of the amount of punitive damages is predominately a factual issue, the [appellate] court will not reverse the award unless it is against the manifest weight of the evidence.”

In this case, there was evidence that Diehl’s actions were premeditated. So the appellate court affirmed the punitive damages award. Read the whole case, Leyshon v. Diehl Controls North America, No. 1-09-1848 (12/27/10).

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June 19, 2011

Cigarette-Smoking Firefighter’s Pension Decision Reviewed Under Manifest Weight Of The Evidence Standard

Firefighter Edward Lindemulder suffered from permanent, irreversible chronic obstructive pulmonary disease. The City of Naperville, Illinois put Lindemulder on medical leave because his COPD prevented him from performing the essential functions of his job.

Lindemulder applied for line-of-duty or occupational disease disability benefits. He claimed his COPD was caused or exacerbated by his exposure to diesel fumes at the fire station or to fire smoke.

The board denied Lindemulder’s request, but did award a non-duty pension. The board ruled “that any alleged on-duty incidents or exposures did not cause or contribute to plaintiff’s [Lindemulder’s] disability, which instead was caused by cigarette smoking.” Lindemulder requested review of the board’s decision. But the trial court agreed with the board, so Lindemulder appealed.

Lindemulder and the board quarreled over the correct standard of review in the appellate court. Lindemulder argued for a “clearly erroneous” standard; the board argued its decision should stand unless it was against the manifest weight of the evidence. The Second District Illinois Appellate Court agreed with the board because the appeal required review of questions of fact. Here’s how the appellate court explained it:

The applicable standard of review depends upon whether the issue is one of fact, one of law, or a mixed question of law and fact … We will reverse a ruling on a question of fact if it is against the manifest weight of the evidence … We review questions of law de novo and mixed questions of law and fact under the "clearly erroneous" standard … The examination of the legal effect of a given set of facts is what requires review under the "clearly erroneous" standard … Here, in finding that plaintiff's disability was the result of cigarette smoking and that no on-duty incidents or exposures caused or contributed to his disability, the Board ruled on questions of fact. Accordingly, our review is whether the Board's decision was against the manifest weight of the evidence.

In the end, the appellate court affirmed the decision of the board. Read the whole case, Lindemulder v. Board of Trustees of the Naperville Firefighters’ Pension Fund, No. 2-10-0063 (3/8/11).

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June 14, 2011

Estate’s Prima Facie Evidence Defeats French Manufacturer’s Jurisdiction Dismissal

Michael Russell died in a helicopter crash. His estate sued SNFA, a French company that manufactured the part of the helicopter the estate claimed was defective and caused the crash. SNFA claimed the trial court did not have personal jurisdiction over the company, and so asked the court to dismiss the case.

The trial court agreed, and ruled the estate “failed to meet its burden of showing continuous and systematic presence in Illinois” and that the accident “did not arise out of an Illinois activity.” But the First District Illinois Appellate Court reversed and sent the case back to the trial court for a decision on the merits.

The appellate court discussed the proper standard of review of a decision to dismiss for lack of jurisdiction.

“The plaintiff bears the burden of establishing a prima facie basis upon which jurisdiction over an out-of-state resident may be exercised." … "If jurisdictional facts remain in controversy, then the court must conduct a hearing to resolve those disputes." … "When the circuit court decides a jurisdictional question solely on the basis of documentary evidence" and without an evidentiary hearing, as it did in this case, then "the question is addressed de novo [trial court ruling gets no discretion] on appeal." … On appeal, we must "resolve in favor of the plaintiff any conflicts in the pleadings and affidavits." … If we find that plaintiff has made a prima facie case for jurisdiction, we must then determine if any material evidentiary conflicts exist … If a material evidentiary conflict exists, we must remand the case to the trial court for an evidentiary hearing …

In this case, the appellate court ruled: SNFA had sufficient minimum contacts with Illinois to establish jurisdiction; it was reasonable for an Illinois court to exercise jurisdiction over the French company; it was reasonably foreseeable that SNFA could be required to answer a claim in an American court.

Read the whole case, Russell v. SNFA, No. 1-09-3012 (3/31/11), by clicking here.

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February 18, 2011

Claimant’s Award In Shell Oil Gasoline Pipeline Class Action Case Reviewed For Abuse Of Discretion

Shell Oil Company’s pipeline leaked thousands of gallons of gasoline onto the Danhausen Farm in Kankakee County, Illinois. The lawsuit against Shell turned into a class action.

After Shell and the class reached a settlement, the trial court appointed a former judge as Settlement Administrator to recommend an allocation of the settlement funds among the class members.

The Administrator awarded the Danhausen Estate $120,489. But the Estate wanted more than $4.6 million. The Estate objected to the award, the trial court accepted the $120,489 recommendation, so the Estate appealed.

The first dispute was the proper standard of review of the order accepting the Administrator’s recommendation. The Estate argued that the order should be treated like an administrative review order, which would require a manifest-weight-of-the-evidence standard. The Third District Illinois Appellate Court disagreed. The appellate court saw a similarity between the order allocating settlement monies and an order approving a class action settlement, and thus chose an abuse-of-discretion standard. This is how the appellate court explained it:

… [T]his was a settlement of a class action, and a class action is a statutory creature .… A court order approving the distribution of funds in a class action settlement is an outgrowth of the final approval of the settlement agreement … Indeed, it appears that a distribution plan is often included in a settlement agreement and approved as a part of it … We conclude, therefore, that the appropriate standard of review in this case is the standard applied to appeals of court orders approving a class action settlement … In Illinois, decisions concerning final approval of class action settlements are reviewed for an abuse of discretion.

The appellate court ultimately affirmed the lower, recommended amount. Click here to get the whole opinion, Quick v. Shell Oil, 3-09-0987 (9/22/10).

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January 31, 2011

De Novo Review For Compliance With Illinois Rule Requiring Health Care Report In Medical Malpractice Case

What is the standard of review for a dismissal with prejudice for failure to file a report from a health care professional within 90 days of filing of the complaint? The Second District Illinois Appellate Court requires de novo review.

Although we typically review the dismissal of a complaint with prejudice (as opposed to without prejudice) under an abuse of discretion standard … we determine that a de novo standard of review applies here, because the trial court's decision was based on whether plaintiff complied with section 2-622 [Illinois Code of Civil Procedure], which involves statutory interpretation …

In this case, the appellate court reversed the dismissal of the case and remanded to the trial court to determine whether the deadline should have been extended for another 90 days. Read it all, Knight v. Van Matre Rehabilitation Center, No. 2-09-1127 (9/29/10), by clicking here.

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January 28, 2011

De Novo Standard Of Review For Attorney Fee Award, Abuse Of Discretion For Reasonableness Of Award

Shoreline Towers Condominium Association sued Debra Gassman, claiming she “waged a campaign of harassment and intimidation against Shoreline.” Gassman had sued Shoreline, and had filed complaints with government agencies, asserting the association had engaged in religious discrimination. The dispute arose when Shoreline removed a mezuzah Gassman placed at the doorpost at the entrance of her apartment.

Gassman asked the trial court to dismiss Shoreline’s case because, she argued, it was prohibited by the Illinois Citizen Participation Act. The trial court agreed in large part, and dismissed most of Shoreline’s case. The court ruled that the Participation Act required Shoreline to pay Gassman’s attorney fees incurred in asking for the dismissal.

The dispute is backdrop for the appellate court’s rulings on the standard of review for an award of attorney fees, which Shoreline appealed. The First District Illinois Appellate Court distinguished between review of the order awarding the fees and of the amount of the award.

There are two orders at issue here. The first … determined that an award of attorney fees was proper [under the Act] … Our review of this order is de novo …Our review of the second order at issue, the final fee order which determined the dollar amount of the award, is abuse of discretion … Accordingly, we will reverse the amount of attorney fees only if no reasonable person would make the same decision as the trial court.
In the end, the appellate court agreed that certain of Shoreline’s claims were properly dismissed, and that the award of attorney fees was proper. Read the whole case, Shoreline Towers Condominium Association v. Gassman, Nos. 1-08-2438, 1-09-2180 (9/30/10), by clicking here.

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December 12, 2010

Recent Opinions On Standards Of Review In Illinois Appellate Courts: Substantial Compliance With Statute; New Trial; Damages; Mistrial

Writing an appellate brief? Here are some helpful excerpts from recently published opinions regarding standards of review in the Illinois appellate courts.

(1) Figueroa v. Deacon, No. 1-09-1844, First District Illinois Appellate Court (8/25/10). Re substantial compliance with a statute: “Whether there is substantial compliance with a statutory provision is a question of law and our standard of review is de novo.”

(2) Union Planters Bank v. Thompson Coburn, No. 5-08-0497, Fifth District Illinois Appellate Court (6/3/19). Re appeal of an order for a new trial and damages assessed a jury:

"It is well established that, in an appeal from a jury verdict, a reviewing court may not simply reweigh the evidence and substitute its judgment for that of the jury." … "Indeed, a reviewing court may reverse a jury verdict only if it is against the manifest weight of the evidence." … "A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence."
"The determination of whether a new trial should be granted rests within the sound discretion of the trial court, whose ruling will not be reversed unless it reflects an abuse of that discretion." … " 'If the trial judge, in the exercise of his discretion, finds that the verdict is against the manifest weight of the evidence, he should grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.' " … "In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial." … "Verdicts are to be liberally construed, however, and may be amended to conform to the pleadings and evidence contained in the record whenever the intention of the jury is clear."
"Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine … and that great weight must be given to the jury's decision.” … "Indeed, a court reviewing a jury's assessment of damages should not interfere unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered." … "If a jury's award falls within the flexible range of conclusions reasonably supported by the evidence, it must stand." … "Illinois has long recognized the applicability, in questions of damages, of the doctrine of avoidable consequences, which prevents a party from recovering damages for consequences which that party could reasonably have avoided." … In making this determination, we consider the record as a whole.


(3) Jackson v. Reid, No. 3-09-0512, Third District Illinois Appellate Court (6/29/10). Standard of review for an order re mistrial:

"The decision to deny a motion for a mistrial is committed to the sound discretion of a circuit court … " 'A mistrial should be declared only as the result of some occurrence of such character and magnitude that a party is deprived of its right to a fair trial, and the moving party must demonstrate actual prejudice as a result of the ruling or occurrence.' " … This court has previously ruled that in order for a "violation of an order in limine to be the basis of a new trial, the order must be specific and the violation clear. Where the likelihood of prejudice is great, the violation is reversible error."

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October 14, 2010

Manifest-Weight-Of-The-Evidence Standard For Review Of Denial Of Request To Vacate Judgment

Clarence Domingo sued the builder of his house, Vito Guarino, for breach of contract and violation of the Illinois consumer fraud act. Clarence got a default judgment, which Vito tried to get vacated under Illinois Code of Civil Procedure § 2-1401. The trial court held an evidentiary hearing on Vito’s request, then refused to vacate the judgment. So Vito appealed.

The first issue on appeal was the proper standard of review. The Second District Illinois Appellate Court acknowledged a split among courts on the question, then threw its hat on the side of the manifest-weight-of-the-evidence standard.

The whole opinion, Domingo v. Guarino, No. 2-09-0852 (6/25/10), is available by clicking here.

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September 5, 2010

Anonymity of Internet Posters Reviewed De Novo

This is an important Illinois case inasmuch as it has generated one of just a handful of appellate opinions that deal directly with the law as applied to internet use and political speech.

Donald Maxon claimed he was defamed by comments posted by unidentified members of the public on a web version of the Times, a newspaper published by Ottawa Publishing Company. Certain unedited comments, Maxon felt, accused him of bribing city council members in return for a favorable vote on a city ordinance.

Ottawa Publishing knew the identities of the commenters, who wrote anonymously on the internet page. Maxon wanted to sue the commenters. To find out whom they were, Maxon filed a petition under Illinois Supreme Court Rule 224 [allowing pre-trial discovery “for the sole purpose of ascertaining the identity of one who may be responsible in damages …”] demanding Ottawa Publishing to identify the commenters.

The trial court denied Maxon’s petition. It ruled that the petition as a matter of law did not defeat the right of the commenters to speak anonymously on the internet, and that the comments were non-actionable opinions. Maxon appealed.

Maxon and Ottawa fought over the standard of review in the appellate court. Appellate review of most rulings on Rule 224 petitions is by the abuse-of-discretion standard, just like review of a typical discovery ruling. But the Third District Illinois Appellate Court ruled that a de novo standard applied in this case. The appellate court used the heightened review standard because “[w]here a trial court's exercise of discretion relies upon a conclusion of law, our review is de novo.”

In the end, a split appellate court reversed and allowed Maxon’s petition to force disclosure of the commenters’ identities. Read the whole opinion, Maxon v. Ottawa Publishing, No. 3-08-0805 (6/1/10).

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August 18, 2010

De Novo Review For Appeals Under Illinois Foreclosure Law

The standard of review of an appeal under the Illinois Foreclosure Law is de novo. But “it is foreseeable that in a case in which a trial court has held a full evidentiary hearing on a motion to appoint a receiver, this court could find that an abuse of discretion standard or a manifest weight of the evidence standard would be appropriate to review the lower court’s judgmental decision.”

Bank of America v. 108 N. Retail, No. 1-09-3523 (1st Dist. Illinois Appellate 3/31/10).

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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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July 27, 2010

Claim Of Privilege In Discovery Dispute Reviewed De Novo

Discovery orders in Illinois generally are not immediately appealable. But a party can get an immediate appeal by refusing to comply with the order and then being held in contempt of court for doing so. The contempt order is immediately appealable.

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.

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June 27, 2010

Order Dismissing Personal Loan Dispute After Plaintiff’s Evidence Reviewed By Manifest Weight

Brad Barnes gave Rose Michalski $27,000. He said the money was a loan and he wanted repayment. She said the money was a gift, and refused to pay.

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.

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June 10, 2010

Railroad’s Summary Judgment, Granted On Reconsideration, Reviewed De Novo

Donald Pence tripped as he walked across the railroad tracks, and fractured his wrist and shoulder. He sued the railroad for poorly maintaining the area. The railroad asked the trial court for summary judgment. The court denied the request, but on reconsideration gave the railroad summary judgment.

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.

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June 8, 2010

Supreme Court Rule Reviewed De Novo

I get this question a lot: What is the standard of review for interpretation of a state supreme court rule?

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.

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June 8, 2010

Doctor In Malpractice Case Gets De Novo Review In Venue Dispute

In this medical malpractice case, the appellate question is what standard of review applies to an order denying a request to change venue.

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.

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April 24, 2010

Two-Part Standard Of Review For Suppression Of Evidence In Entry And Detainer Case

Michael Head, a resident at a public housing apartment in Chicago, was arrested for possession of marijuana. His apartment lease prohibited him from participating in illegal drug-related activity. The Chicago Housing Authority was allowed to terminate the lease if Head was in violation.

The police took the evidence against Head illegally, so the State eventually dropped the charge. But the property management company filed suit against Head for possession of the apartment under the Illinois Forcible Entry and Detainer Act. Head countered by asking the court to suppress the evidence of his alleged crime under the exclusionary rule [illegally obtained evidence can’t be used]. He also asked the trial court to dismiss the property manager’s case.

The trial court agreed with Head. The court suppressed the illegally obtained evidence. Without that evidence, the management company could not prove its case, so the court dismissed.

The management company appealed, and argued that the evidence should not have been suppressed. The court identified the standard of review for suppression of evidence.

In reviewing an appeal from a circuit court's ruling on a motion to suppress, we apply a two-part standard of review … First, the circuit court's factual findings are reviewed for clear error and will only be reversed if they are against the manifest weight of the evidence … Second, the circuit court's ultimate decision as to whether suppression is warranted is reviewed de novo … In this case, neither party challenges any of the circuit court's factual determinations. Accordingly, the sole issue before this court is plaintiff's legal challenge to the circuit court's application of the exclusionary rule, which we review de novo.

These kinds of definitions are confusing. The first part of the test is for “clear error” only to be reversed if against the manifest weight of the evidence. So which is it? Clear error or manifest weight?

In either event, the First District Illinois Court of Appeals in this case ruled the evidence should not have been suppressed, and the case should not have been dismissed. Read the whole case, U.S. Residential Management and Development v. Head, No. 1-08-3531 (12/18/09), by clicking here.

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April 20, 2010

Dead Man’s Act Testimony Reviewed For Abuse Of Discretion

Howard Agins died of cancer. His estate sued his doctor for failure to evaluate, diagnose, and treat the condition. During trial, the circuit court ruled the Estate waived its right to bar certain of the doctor’s testimony under the Illinois Dead Man’s Act, which ordinarily would prohibit the doctor from testifying about conversations he had with Agins. After a jury returned a verdict in favor of the doctor, the Estate appealed the waiver rulings.

The parties fought over the standard of review. The Estate argued for de novo review because “the appeal involves application of a statute.” The doctor argued for a tougher “abuse of discretion” standard, claiming these were typical evidentiary rulings.

The First District Illinois Appellate Court ruled in favor of the doctor. The “abuse of discretion” standard applied because the “issues on appeal involve the admissibility of conversations between decedent [Agins] and [Defendant] Dr. Schonberg and do not involve statutory construction.”

In the end, the doctor’s verdict was affirmed. Read the whole case, Agins v. Schonberg, No. 1-08-3207 (12/23/09), bny clicking here.

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April 19, 2010

Contractor’s Statutory Compliance Reviewed De Novo

A construction contractor sued a homeowner for labor and materials used in remodeling work. The homeowner defended by claiming the contractor did not comply with the Illinois Home Repair and Remodeling Act: there was not a signed contract; the contractor did not give the homeowner the required consumer-rights brochure. Those facts were not disputed.

The contractor won a bench trial. The substantive question on appeal was whether the contractor substantially complied with the Act. The Fourth District Illinois Appellate Court used a de novo standard of review. Because the facts were not disputed, the court had to decide only whether the contractor’s actions amounted to substantial compliance with the Act. And “[w]hether there is substantial compliance with a statutory provision is a question of law, and our standard of review is de novo.

The appellate court ultimately ruled that the contractor did substantially comply with the Act. Read the whole case, Behl v. Gingerich, No. 4-08-0974 (12/21/09), by clicking here.

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April 19, 2010

De Novo Review Standard For Validity of Trust Document

Back from the DL. Let’s catch up.

Answering a question of first impression, the Illinois Supreme Court established the standard of review “on the question of whether a provision in a trust document or will is void as a matter of public policy.” The court ruled that a de novo standard applied.

“It is clear, however, that such findings are subject to de novo review, because public policy is necessarily a question of law … This conclusion is consistent with the well-established principle that whether a provision in a contract, insurance policy, or other agreement is invalid because it violates public policy is a question of law, which we review de novo.”

The whole case, Estate of Feinberg, No. 105982 (9/24/09), is available right here.

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February 9, 2010

Order Upholding Guardian’s Refusal To Sell Ward’s House Reviewed For Abuse Of Discretion

Rosa Neal was guardian of a disabled person’s estate. On behalf of her ward, Rosa contracted to sell the ward’s home to Damon Perry. Damon asked for, and received, approval from the probate court of the contract for sale of the property.

The contract had a mortgage contingency clause. Damon asked for a 30-day extension a day before the contingency was set to expire. The estate refused Damon’s request. Damon then said he would waive the contingency and that he intended to purchase the house as planned. But the estate had received a better offer, so its attorney told Damon that his inability to get a mortgage commitment by the contingency deadline rendered the contract null and void.

Damon then asked the probate court to enforce his contract to purchase the house. But the probate court agreed with the estate, and ruled “that the contract was null and void due to the mortgage contingency provision, and, moreover, because of equitable considerations the contract was not in the best interests of the estate.”

Damon appealed. The parties argued over the correct standard of review. Damon wanted a de novo standard; the estate wanted review by a manifest weight of the evidence.

The First District Illinois Appellate Court chose a third ground. Because the probate court’s decision was “rooted on equitable grounds,” the appellate court chose to review the decision with an “abuse of discretion” standard. Here’s the court’s thinking:

Our reference to the [Illinois] Probate Act of 1975 … does not reflect a clear statement of the standard of review to be applied to probate court orders generally. Although de novo review would be proper if we were interpreting the Probate Act, here we are not presented with a matter of statutory interpretation … While issues concerning the construction, interpretation, or legal effect of contracts are subject to de novo review, it has long been recognized that decisions rooted on equitable grounds should only be disturbed when there is a clear abuse of discretion in the judgment rendered by the lower court … Where a party seeks confirmation of an offer to purchase the assets of an estate, the court, as de facto vendor, may enter or withhold consent, in its discretion … Accordingly, we will review the decision in the case sub judice under that standard.

In the end, Damon’s contract was tossed. Read the whole opinion, Perry v. Estate of Carpenter, No. .1-09-0312 (11/13/09), by clicking here.

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January 23, 2010

Husband’s Directed Finding In Post-Dissolution Fraud Case Reviewed By Manifest Weight Standard

Clara George Minch and Ronald George were divorced in 1982. In 2003, Clara learned that Ronald had sold his interest in a company that owned Florida real estate for more than $950,000. She sued George for fraud, asserting that during the divorce proceedings he misrepresented his interest in the stock.

After Clara presented her case, the trial court directed a verdict for George.
The trial court ruled that Clara did not prove fraud and thus failed to meet her burden of proof.

Clara appealed, and the parties disagreed about the proper standard of review. Clara said the appellate court should use a de novo review [trial court gets no deference]. George said the directed verdict should be affirmed unless it was against the manifest weight of the evidence.

The First District Illinois Appellate Court agreed with George. The appellate court explained when each standard is used when a directed verdict is considered on appeal.

If the trial court finds that the plaintiff has failed to present a prima facie case as a matter of law, the appellate standard of review is de novo … If the trial court moves on to consider the weight and quality of the evidence, finding no prima facie case remains, the appellate standard of review is the deferential “manifest weight of the evidence” standard.

In this case, the appellate court found two factors persuasive. (1) The trial court did not state its ruling was “due to the wife’s failure to make a prima facie showing of the husband’s fraud, as a matter of law.” And (2), the appellate court’s review of the record showed it was clear the trial court weighed the evidence.

In the end, George’s directed verdict was affirmed as not against the manifest weight of the evidence. This opinion also sets out the methodology a trial court should follow in ruling on a motion for a directed verdict. Read the whole case, Minch v. George, No. 1-08-1826 (10/30/09), by clicking here.

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December 24, 2009

Punitive Damages Verdict Against Broadcaster Affirmed; Court Uses Two-Pronged Standard Of Review

Jerri Blount sued Jovon Broadcasting. She claimed the company fired her because she agreed to testify for another employee who alleged racial and sexual discrimination against the company. After a trial, a jury awarded Blount $3,082,350, $2.8 million of which was for punitive damages. Jovon appealed, and among other things, argued that the punitive damages award was excessive.

The First District Illinois Appellate Court affirmed the verdict. The court indicated the standard of review for the propriety of a punitive damages verdict has two levels of analysis. First, the “amount of a punitive damages award will not be reversed unless it is so excessive that it must have been a result of passion, partiality, or corruption.” The appellate court also used the more familiar “manifest weight” standard: “Because a jury’s determination of the amount of punitive damages is a predominately factual issue, we will not reverse a jury’s determination as to the amount of punitive damages unless it is against the manifest weight of the evidence.”

So to get a reversal, an appellant must show by a manifest weight of the evidence that a punitive damages verdict was the result of passion, partiality, or corruption.

The whole case, Blount v. Stroud, Nos. 1-06-2428, 1-06-2968 (10/6/09), is available by clicking here.

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November 15, 2009

De Novo Standard Of Review For Petition To Vacate Dismissal When Trial Court Does Not Take Testimony

Christopher Mills sued Ryan McDuffa. Mills claimed he was injured when his car was rear ended by McDuffa. Two of Mills’s attorneys withdrew, and when Mills did not appear for a court hearing his case was dismissed for want of prosecution.

About four months later, a new lawyer for Mills filed a petition under Illinois Rule of Civil Procedure 2-1401 (relief from judgments more than 30 days old) to vacate the dismissal order. The trial court read the parties’ briefs and heard oral argument, but did not take live testimony from witnesses. The court then granted Mills’s petition.

McDuffa appealed. Their conclusions were opposite, but both McDuffa and Mills suggested that the standard of review was abuse-of-discretion. Nevertheless, the Second District Illinois Appellate Court ruled that the standard of review was de novo. The trial court’s decision to vacate the dismissal received no discretion because “the parties’ filings with the [trial] court were functionally equivalent to cross-motions for summary judgment, and the court’s disposition of Mills’s section 2-1401 petition was functionally equivalent to a grant of summary judgment to Mills. We review grants of summary judgment de novo.”

In the end, Mills’s order vacating the dismissal was reversed and sent back to the trial court for an evidentiary hearing. The whole case, Mills v McDuffa, No. 2-08-0305 (7/21/09), is available by clicking here.

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October 5, 2009

No Deference For Trial Court In Review Of Insurer’s Declaratory Judgment Case

Pekin Insurance Company and Hallmark Homes disputed insurance coverage for a personal injury lawsuit filed by Bremer, the employee of another contractor at a construction site. Bremer sued Hallmark and MC Builders. Hallmark was named as an additional insured on MC’s insurance policy with Pekin.

Hallmark asked Pekin to defend Hallmark in Bremer’s case. Pekin refused, sued Hallmark, and asked the trial court for a judgment declaring that Pekin did not have to defend the case. Hallmark counterclaimed, seeking the opposite conclusion. Pekin asked for summary judgment, but the trial court instead ruled the insurance company had a duty to defend Hallmark in Bremer’s lawsuit. Pekin appealed.

The parties disputed the appellate standard of review. Hallmark argued that an “abuse of discretion” standard applied to rulings on declaratory judgment motions. Pekin asserted that the “law is unclear on this point, with different cases stating that a declaratory judgment received review ranging from the deferential standard of “abuse of discretion” to the nondeferential de novo standard.”

The Second District Illinois Appellate Court agreed that “Pekin is correct that the case law regarding the proper standard of review for declaratory judgments is full of contradictory statements and is ‘disturbingly rich in … misapplications of sound precedent.’”

The appellate court acknowledged that trial courts get greater deference on matters that are within their “special competence” — e.g., admissibility of evidence, credibility determinations, and the weighing of conflicting evidence. But the facts concerning the application of the insurance policy to Hallmark were not disputed. The appellate court was left with a question of law, for which the trial court got no deference. Here’s how the appellate court explained it:

Here, the sole basis for the trial court's declaratory judgment was the legal arguments raised by the parties in the course of supporting or responding to Pekin's motion for summary judgment. No factual determinations were involved. Accordingly, we review the trial court's decision de novo.

In the end, the appellate court ruled that Pekin had a duty to defend and affirmed the judgment in favor of Hallmark. Read the whole case, Pekin Insurance Company v. Hallmark Homes, No. 2-08-0380 (6/23/09), by clicking here.

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October 5, 2009

No Deference For Trial Court In Review Of Insurer’s Declaratory Judgment Case

Pekin Insurance Company and Hallmark Homes disputed insurance coverage for a personal injury lawsuit filed by Bremer, the employee of another contractor at a construction site. Bremer sued Hallmark and MC Builders. Hallmark was named as an additional insured on MC’s insurance policy with Pekin.

Hallmark asked Pekin to defend Hallmark in Bremer’s case. Pekin refused, sued Hallmark, and asked the trial court for a judgment declaring that Pekin did not have to defend the case. Hallmark counterclaimed, seeking the opposite conclusion. Pekin asked for summary judgment, but the trial court instead ruled the insurance company had a duty to defend Hallmark in Bremer’s lawsuit. Pekin appealed.

The parties disputed the appellate standard of review. Hallmark argued that an “abuse of discretion” standard applied to rulings on declaratory judgment motions. Pekin asserted that the “law is unclear on this point, with different cases stating that a declaratory judgment received review ranging from the deferential standard of “abuse of discretion” to the nondeferential de novo standard.”

The Second District Illinois Appellate Court agreed that “Pekin is correct that the case law regarding the proper standard of review for declaratory judgments is full of contradictory statements and is ‘disturbingly rich in … misapplications of sound precedent.’”

The appellate court acknowledged that trial courts get greater deference on matters that are within their “special competence” — e.g., admissibility of evidence, credibility determinations, and the weighing of conflicting evidence. But the facts concerning the application of the insurance policy to Hallmark were not disputed. The appellate court was left with a question of law, for which the trial court got no deference. Here’s how the appellate court explained it:

Here, the sole basis for the trial court's declaratory judgment was the legal arguments raised by the parties in the course of supporting or responding to Pekin's motion for summary judgment. No factual determinations were involved. Accordingly, we review the trial court's decision de novo.

In the end, the appellate court ruled that Pekin had a duty to defend and affirmed the judgment in favor of Hallmark. Read the whole case, Pekin Insurance Company v. Hallmark Homes, No. 2-08-0380 (6/23/09), by clicking here.

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August 23, 2009

First District Illinois Appellate Court States Levels Of Appellate Review Of Punitive Damages Verdict

A group of townhome owners sued Carriageway Builders, the company that built the townhouse, and Carriageway’s owner, Wayne Johnson. Unfortunately, the foundation of the townhouse settled up to 10 inches, causing all sorts of damage to the building. A jury awarded the owners more than $1.3 million. A separate, non-jury hearing was held on a statutory consumer fraud action, and the trial court awarded punitive damages to the owners.

The builder appealed. Among other things, the builder claimed the punitive damages verdict should be reversed. The First District Illinois Appellate Court affirmed the punitive damages verdict. The opinion is notable because it identifies the three levels of appellate review the court used to assess the propriety of the punitive damages award under the consumer fraud act. Here is the analysis:

In reviewing a trial court's decision to award punitive damages, we take a three-step approach, considering (1) whether punitive damages are available for the particular cause of action, using a de novo standard, (2) whether, under a manifest weight of the evidence standard, the defendants acted fraudulently, maliciously or in a manner that warrants such damages, and (3) whether the trial court abused its discretion in imposing punitive damages.

The whole case, Linhart v. Bridgeview Creek Development, No. 1-07-2712 (5/20/09), is available b y clicking here.

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June 27, 2009

No Discretion For Bank’s Post-Trial Appeal Over Dishonored Cashier’s Check

MidAmerica Bank sued Charter One Bank for failing to honor a $50,000 cashier’s check purchased at Charter. The check was payable to Essential Technologies of Illinois. David Hernandez was president of Essential. Mary Christelle, David’s mother, purchased the cashier’s check with money from her account at Charter.

Essential deposited the check into its account at MidAmerica. Four days later, Mary instructed Charter to stop payment on the check. Charter issued a stop-payment order, and refused to honor the check when MidAmerica presented it for payment. When the check was returned to MidAmerica with a “stop payment” stamp, MidAmerica sent it back to Essential and deducted $50,000 from MidAmerica’s account.

The opinion does not state what happened between MidAmerica and Essential, except that the bank did not discover a fraudulent scheme involving Essential. But MidAmerica sued Charter for $50,000 plus attorney fees and interest for dishonoring the check.

The banking issue was whether Charter had the right to stop payment on a cashier’s check. After a bench trial, the trial court said “No,” but did not award fees or interest. The appellate court disagreed and ruled that Charter could stop payment.

MidAmerica appealed to the Illinois Supreme Court. The first issue for the supreme court was the proper standard of review. Even though the case went through a bench trial, the trial court’s decision got no discretion. The dispute was reviewed de novo by the supreme court because “the issue on appeal is limited to application of the law to the undisputed facts …”

In the end, the Illinois Supreme Court ruled that Charter wrongfully dishonored the cashier’s check. Read the whole opinion, MidAmerica Bank v. Charter One Bank, No. 106804 (3/19/09), by clicking here.

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June 8, 2009

Paschen and Chicago Water Reclamation District Get Deferential Standard Of Review In Walsh’s Try To Prevent Bid Award

Walsh Construction Company and II In One Contractors formed a joint venture to bid on a contract being offered by the Metropolitan Water Reclamation District of Greater Chicago. The Walsh joint venture bid on the contract, but did not sign the required D-3 sheet. Although Walsh’s bid was about $10 million less than any other bid, the contract was awarded to a joint venture led by F. H. Paschen.

Walsh sued, and asked for a preliminary injunction to prevent the contract award to Paschen. After a two-day trial, the trial court denied Walsh’s request for an injunction and granted Pashen’s and the Water District’s request for a directed finding.

Walsh appealed, and the parties argued about the proper standard of review. Walsh asserted the trial court’s decision entailed legal issues only, so the proper review standard was de novo, which gives the trial court decision no deference. Paschen and Water District argued for “a manifest weight of the evidence” standard, noting that the [trial] court indeed considered the weight of the testimony and evidence presented in making its decision and did not, as Walsh insists, simply deny the request for preliminary injunction as a matter of law.”

The First District Illinois Appellate Court agreed with Paschen and the Water District. The appellate court acknowledged that a de novo standard would apply had the trial court ruled that the party asking for the injunction failed to offer at “least some evidence on the essential elements of its cause of action.”

But in this case, “contrary to its [Walsh’s] assertions, it is evident that the court made credibility findings and, in particular, weighed the quality of the evidence … [The trial court] made this decision [granting the directed finding for Paschen and the Water District] as a fact finder after considering the totality and quality of the evidence presented and drawing reasonable inferences therefrom, thus meriting deferential [manifest weight of the evidence] review.”

Get the whole case, Walsh/II In One Joint Venture III v. Metropolitan Water Reclamation District of Greater Chicago, No. 1-08-3167 (3/20/09), by clicking here.

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May 21, 2009

De Novo Standard Of Review For Judgment Based On Contract Construction

Jeffrey Covinsky was CEO of Hannah Marine Corporation. He sued the company after it refused to pay him pursuant to a “golden parachute” clause in his employment contract. In turn, Hannah counterclaimed against Covinsky for breach of fiduciary duty. The trial court gave Covinsky summary judgment on his claim. Hannah appealed.

The First District Illinois Appellate Court analyzed the proper standard of review of a summary judgment in a contract action. The appellate court acknowledged the usual review standard for summary judgments is de novo (circuit court ruling gets no deference). However, “Whether a breach of contract has occurred generally is not a legal question subject to de novo review, but rather a question of fact which will not be disturbed unless the finding is against the manifest weight of the evidence.”

In this case, the trial court’s ruling was based only on an interpretation of the contract, and no question of fact was involved. So the appellate court chose the de novo standard. Here’s the court’s explanation:

“[W]here only the construction of a contract is at issue, the legal effect and interpretation of the contract is a question of law, and summary judgment is proper." … The parties disputed whether Covinsky resigned or was involuntarily terminated but, given the court's decision that paragraph 7(g) applied regardless of whether Covinsky voluntarily resigned or was involuntarily terminated, the court determined that it did not need to make this factual determination and resolved the case by construing the parties' employment contract. We review the court's grant of summary judgment de novo.

Read the whole opinion, Covinsky v. Hannah Marine Corp., No. 1-08-0695 (2/17/09), by clicking here.

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May 14, 2009

Re-Opening Estate Decided Under Manifest Weight Standard

Kathleen Savio’s death in 2003 first was ruled by the coroner to be an accident. But after her body was exhumed and additional autopsies conducted in 2007, the coroner ruled that Kathleen’s death likely was a homicide. Kathleen’s father and siblings then asked the court to reopen Kathleen’s estate, to have the executor removed, and to name the father and one of the siblings as new executors. The trial court granted that request.

Kathleen’s former husband, Drew Peterson, and the executor, James Carroll, appealed. The parties argued over the proper standard of appellate review. Peterson and Carroll asserted that the trial court’s ruling should get no deference on appeal.

But the Third District Illinois Appellate Court sided with the father and sibling, and ruled that the proper standard of review of an order to reopen an estate is “the manifest weight of the evidence.” Here’s the court’s analysis:

Peterson and Carrol argue that a de novo standard of review should be applied because this issue involves a question of statutory interpretation … and because the trial court's ruling was not the result of an evidentiary hearing. Savio's father and siblings, on the other hand, argue that a manifest weight of the evidence standard is appropriate and cite general case law regarding the removal of an executor to support that conclusion … Although we have reviewed the case law in this area, we have found no clear statement of the standard of review that should be applied to a trial court's decision on a petition to reopen a decedent's estate. We note, however, that contrary to the argument of Peterson and Carrol, the issue before this court in the present case does not involve an interpretation of the probate law in Illinois. Rather, the issue involves the application of that law to the facts of the present case and a factual determination of whether the possible wrongful death claim is a newly discovered asset … Therefore, we will apply a manifest weight of the evidence standard of review to this issue and will not reverse the trial court's decision on this issue unless it is against the manifest weight of the evidence. A trial court's ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary and not based on evidence, or when the opposite conclusion is clearly evident from the record …

In the end, the trial court’s ruling was affirmed. Read the whole opinion, In re Estate of Savio, No. 3-08-0294 (2/4/09), by clicking here.

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May 5, 2009

Rules After Remand; Jurisdiction Over Fee Petition After Appeal Notice Is Filed

Two important rulings arise from this landlord-tenant dispute.

After remand from the appellate court — which did not include instructions for how to proceed — the tenant asked the trial court for leave to amend its complaint to add a new item of damages. The trial court denied the tenant’s request because, it said, it did not have jurisdiction to do so.

Must the appellate court give specific directions to the trial court in an order of remand? The First District Illinois Appellate Court said “No.” Then what is the trial court’s authority and obligation after the appellate court sends the case back to the trial court? Here’s how the appellate court answered the question, complete with the standard of review:

Following a remand, the circuit court is obligated to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law, and a reviewing court decides that legal question de novo …

A reviewing court is not required to provide specific directions in an order reversing a judgment and remanding a cause … In such a case, the circuit court is required to examine the reviewing court's decision and to proceed in a manner that conforms with the views expressed therein. … Where a cause has been remanded without particular instructions, the circuit court is not precluded from allowing the plaintiff to amend or supplement his pleadings, as long as the amendment is not inconsistent with the legal principles expressed by the reviewing court …

In this case, our prior decision did not include specific instructions, nor did it indicate that the cause was remanded for the limited purpose of resolving the two identified factual questions. Rather, we held that judgment on count IV could not be granted as a matter of law while those questions remained unanswered … A plaintiff is permitted to amend its pleadings to specifically state a damage claim, provided the amendment was not proscribed by the reviewing court's decision … This court's general remand order did not restrict the court's jurisdiction to allow amendment of the pleadings, and Suburban's proposed amendment seeking recovery of rent was not inconsistent with the our prior ruling. Therefore, we find that the circuit court erred in determining that it lacked jurisdiction to permit Suburban's proposed second amended complaint.

The second issue was whether the trial court had jurisdiction over a fee petition that was filed within 30 days of the final judgment, but after the notice of appeal was filed. The trial court ruled it did not have jurisdiction to hear the fee petition because the tenant already appealed. But the appellate court disagreed. Here is the appellate court’s thinking:

A circuit court retains jurisdiction for 30 days after its entry of a final order or judgment … A circuit court has jurisdiction to entertain a petition for fees filed within 30 days of the entry of a final judgment without regard to a previously filed notice of appeal … In addition, a circuit court has jurisdiction to address a timely-filed fee petition regardless of whether the fee request is considered to be part of the original action or collateral to the original claim … The filing of a postjudgment petition for fees renders a prior notice of appeal premature …

In this case, Associated's [Landlord] petition for fees was timely filed within 30 days of the entry of summary judgment in its favor. The filing of Associated's fee petition rendered Suburban's [Tenant] December 17, 2007, notice of appeal premature. Therefore, Suburban's first notice of appeal did not deprive the circuit court of jurisdiction to rule on the petition for fees …

Read the whole case, Suburban Rebuilders v. Associated Tile Dealers Warehouse, No. 1-07-3531 (2/10/09), by clicking here.

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April 26, 2009

Illinois Supreme Court: Clear Error Standard For Election Board’s Justifiable Grounds Decision

We pick up today with the second part of the Illinois Supreme Court’s opinion in Republican Party v. Illinois State Board of Elections. (The entry directly below explains the important facts and the court’s ruling that it has power to review tie votes rendered by the Board.)

The supreme court also ruled on the correct standard of review of the Board’s decision: “clearly erroneious.”

Arguments over the standard of review ran to both ends of scale − the Republicans arguing the Board should get no discretion, the Board arguing that its decision should be reviewed for “abuse of discretion.” Here is how the court described the parties’ positions: “The Party argues that the dismissals should be reviewed de novo because the Board did not make a decision that may be granted deference. Conversely, the Board argues that the dismissals should be reviewed for abuse of discretion. According to the Board, the "justifiable grounds" standard grants it discretion to dismiss complaints after preliminary investigations.”

The Illinois Supreme Court ruled that Board’s inquiry involved a mixed question of law and fact, which called for a standard of clear error. This is how the supreme court saw it:

We agree that the statutory standard of "justifiable grounds" [for filing the complaint before the Board] focuses on the complaint's factual and legal sufficiency. The essential inquiry is whether the complaint is factually and legally justified. A decision based on those factors does not require the exercise of discretion. Rather, the Board is only required to apply the Election Code provisions to the facts presented at the closed preliminary hearing to determine whether the complaint was filed on justifiable grounds.

In our view, this inquiry presents a mixed question of fact and law. As noted, an agency's decision on a mixed question of fact and law is reviewed for clear error … The standard of review is deferential, providing for reversal only when the reviewing court has a definite and firm conviction that a mistake has been made.

The whole case, Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09), is available by clicking here.

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February 15, 2009

Huskie’s Owner Confuses Manifest Weight Standard Of Review With Burden Of Proof At Trial

Molly, a dachshund, was mauled by Cosmo, a Siberian Huskie. Mark and Mindy Leith, Molly’s owners, sued Andrew Frost, Cosmo’s owner, for tortious damage to property. After a bench trial, a judge awarded nominal damages to Mark and Mindy. They thought they should have been awarded the several thousand dollars they paid a veterinarian who treated Molly. So Mark and Mindy appealed.

The case is important for appellate practitioners because it points out a common mistake in stating the correct standard of review. Andrew argued that “the manifest weight of the evidence did not show that Cosmo was the dog that attacked Molly.” But Andrew’s statement of the standard of review was exactly the opposite of correct one. The party appealing has to show that the court’s conclusion was against the manifest weight of the evidence, not that the winner in the trial court failed to prove his case by the manifest weight. The Fourth District Illinois Appellate Court explained:

This argument [Andrew’s] misstates the standard of review. If we asked whether the manifest weight of the evidence supported the trial court's factual findings, our standard of review would be de novo. Instead, we are to ask a deferential question: whether the court's factual findings or conclusions are against the manifest weight of the evidence … A conclusion is against the manifest weight of the evidence if the opposite conclusion is apparent from the record … A finding is against the manifest weight of the evidence if the finding is unreasonable, arbitrary, or not based on evidence … The court concluded that plaintiffs had proved, by a preponderance of the evidence, that Cosmo attacked Molly. The opposite conclusion--that plaintiff failed to so prove--is not apparent from the record. The court found that Cosmo attacked Molly. That finding is not unreasonable, arbitrary, or lacking in any evidentiary basis. Plaintiffs and defendant had been next-door neighbors for three weeks. Mindy Leith testified she had looked over the fence and had seen Cosmo. She testified she stood over Cosmo as Cosmo mauled Molly.

Andrew’s statement of the law would place an increased burden on tort plaintiffs in the trial court. By Andrew’s interpretation of the law, a tort plaintiff would have to prove his case by a manifest weight of the evidence, not the more common “preponderance of the evidence” standard. The common mistake here was confusing “burden of proof” in the trial court with the “standard of review” in the appellate court.

In the end, the appellate court awarded Mark and Mindy compensation for the veterinary fees. Read the whole case, Leith v. Frost, No. 4-07-0964 (12/31/08), by clicking here.

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February 4, 2009

Fact Findings On Summary Judgment Get No Deference On Appeal

Two children died after they were trapped by a “quick” condition at an excavation pit. They became stuck in sand and clay at the pit, and died of hypothermia or drowning. The children’s estates sued the owner of the excavation pit, who tendered the claims to his insurer. The insurer offered the estates a policy limit settlement, but calculated the policy limit on the basis that there had been only one policy “occurrence.” The estates argued there were two separate “occurrences.” The insurer sued the estates, and asked for a declaration that there had been only one “occurrence.”

The trial court agreed with the estates, and on summary judgment ruled in their favor. The insurance company appealed, and a sympathetic appellate court reversed and ruled in favor of the insurer. The estates then appealed to the Illinois Supreme Court.

The first issue for the Illinois Supreme Court was the proper standard of review in the appellate court. The parties agreed that the construction of “occurrence” was a contract question that was subject to de novo (no deference to the trial court) review.

They disagreed about the standard to be applied to the trial court’s factual findings. The insurer argued that the appellate court should give no deference to the trial court’s factual findings. The estates asserted that the trial court’s fact findings should get some deference. They argued that the trial court’s fact findings should be reversed only if they were against the “manifest weight of the evidence.”

The supreme court ruled that the trial court’s fact findings get no deference. In this case, the trial court ruled exclusively on papers submitted on summary judgment motions. There was no live testimony, and thus no reason to give the trial court deference. Here’s what the supreme court said:

In this case, the trial court heard no live testimony. Both parties acknowledged at oral argument that all testimony was submitted by admitting discovery depositions into evidence. The trial court was not required to gauge the demeanor and credibility of witnesses. … Instead, the trial court made factual findings based upon the exact record presented to both the appellate court and to this court. Without having heard live testimony, the trial court was in no superior position than any reviewing court to make findings, and so a more deferential standard of review is not warranted. Thus, although this court has not done so recently, we reiterate that where the evidence before a trial court consists of depositions, transcripts, or evidence otherwise documentary in nature, a reviewing court is not bound by the trial court’s findings and may review the record de novo.

In the end, the Illinois Supreme Court ruled in favor of the children’s estates, and found there had been two “occurrences.” Read the whole case, Addison Insurance Co. v. Fay, No. 105752 (1/23/09), 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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December 3, 2008

Trial Court’s Abuse Of Discretion Not Enough To Reverse Medical Malpractice Judgment

Sandra Downey sued her doctor, Gary Dunnington, for medical malpractice when a mastectomy and reconstruction he performed resulted in permanent disfigurement. After a jury trial, judgment was entered for Dunnington.

On appeal, Sandra argued that it was reversible error to admit evidence that Dunnington’s father was a minister and his mother was a stay-at-home-mom. The Fourth District Illinois Court of Appeals agreed that the evidence was “wholly irrelevant to the issues in this trial, and the use of such evidence constitutes an aberrant practice that should not be tolerated.”

Despite the trial court’s abuse of discretion in allowing the evidence, the appellate court ruled it was not bad enough to reverse the defense judgment.

To reverse the verdict, we would have to attribute to the jury a simplemindedness and even a viciousness that are implausible. We would have to infer that the jury considered Dunnington to be a paragon of virtue because, decades ago, he was raised by a father who was a minister and a mother who was a housewife. We also would have to infer that, in its verdict, the jury punished plaintiff because, compared to Dunnington, she had an unfortunate childhood. We choose to believe better of the jury. We conclude that the prejudice was not great enough to have affected the verdict.

The appellate court also took exception to Downey’s argument against a “rigid” application of the “harmless error doctrine.”

It is unclear what plaintiff means by applying the doctrine "rigidly." There is no question of rigidity or flexibility. Either the error is harmless or not. Either the error changed the result, or it did not … Either the error "substantially prejudiced a party and affected the outcome below," or it did not … And the burden is on the party seeking reversal to establish such prejudice … The logic of incentives is undeniable, but the alternative to the plain-error doctrine would be requiring perfect trials. That alternative is impracticable.

Get the whole opinion, Downey v. Dunnington, No. 4-07-0681, modified on 8/21/08, by clicking here.

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November 19, 2008

Car Buyer’s Compliance With Pre-Suit Dispute Resolution Procedure A Question Of Law

Edmond Jones sued Nissan because, he claimed, the car he bought was a lemon. The purchase agreement required Jones to submit his claim to an automotive complaint resolution program before he was allowed to sue in court. He did that twice, and twice his claim was dismissed. It was dismissed the first time because he missed the scheduled vehicle inspection time. It was dismissed the second time because, it having been repossessed, he no longer owned the car.

Jones then filed a lawsuit against Nissan. Nissan asked the court to dismiss the case because Jones did not comply with Nissan’s the informal dispute settlement procedure. The trial court agreed and dismissed the lawsuit. Jones then appealed.

Jones and Nissan first argued about the proper standard of review in the appellate court. Jones argued for a de novo standard of review, which is typical when an appellate court considers whether a motion to dismiss a complaint was properly granted. Nissan stated that the trial court’s dismissal should get more deference, and argued for an abuse of discretion standard.

The Second District Illinois Appellate Court sided with Jones because, it said, it was confronted with a question of law. “… [T]he trial court’s … finding that noncompliance with Auto Line’s eligibility requirements [the informal resolution procedure] can bar plaintiff from filing suit under Magnuson-Moss is a determination of law, not a factual finding. Where the question presented is one of law, our review is de novo.”

In the end, the appellate court reversed the dismissal. Read the whole case, Jones v. Nissan North America, No. 2-07-0448 (9/11/08), by clicking here.

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November 9, 2008

Medical Studies Act Privilege Assessed By Manifest Weight Of The Evidence

Judy Anderson died while in care of Rush-Copley Medical Center. Her estate sued Rush for medical malpractice. In discovery, Rush refused to turn over two categories of documents: medical journal articles and an Action Plan. Rush claimed the documents were used in connection with a peer review and therefore were privileged under the Illinois Medical Studies Act.

The Second District Illinois Appellate Court identified the proper standard of review. The court distinguished this case from a typical question of whether a legal privilege applied, and decided that the trial court deserved more deference. “Whether a discovery privilege applies is a matter of law, subject to de novo review … However, whether specific materials are part of an internal quality control or a medical study is a factual determination, which will not be reversed on review unless it is against the manifest weight of the evidence.”

In the end, the appellate court ruled that the articles and the plan were privileged and did not have to be disclosed. Read the whole case, Anderson v. Rush-Copley Medical Center, Nos. 2097-0717, 2-07-1272 (8/14/08), by clicking here.

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October 25, 2008

De Novo Review For Steel Company’s Appeal Of Pollution Control Board Ruling

The Illinois Environmental Agency awarded a pollution discharge license to U.S. Steel Corporation. American Bottom Conservancy filed an objection to the award to the Illinois Pollution Control Board. American Bottom objected because the Agency did not hold a public hearing concerning the issuance of the license.

The Illinois Pollution Control Board agreed with American Bottom, and invalidated the license. U.S. Steel appealed the Board’s decision. The parties argued about the proper standard of review by the appellate court and by the Pollution Control Board. Here’s how the Fifth District Illinois Appellate Court framed the issue: “The issue presented to us for our review is whether the Board applied the correct standard of review in reviewing the Agency's decision not to hold a public hearing on the proposed permit.”

U.S. Steel argued for de novo review, stating that only a question of law was before the court. But the Pollution Board argued for a more deferential manifest-weight-of-the-evidence standard of review. The appellate court agreed with U.S. Steel. “The only issue before us on appeal is whether the Board erred as a matter of law in applying the incorrect standard of review in deciding that the Agency erred in failing to hold a public hearing. This presents a question of law, which we review de novo.”

In the end, the appellate court vacated the Board’s decision to invalidate the license. This opinion contains a good discussion of when the various standards of review should be applied. Read the whole case, United States Steel v. Illinois Pollution Control Board, No. 5-07-0285 (7/22/08), by clicking here.

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September 15, 2008

Court’s Application Of Erroneous Legal Criteria To Decertify Class Results In Reversal

Priscilla Rosolowski was the named plaintiff in a class-action lawsuit against Clark Refining and Marketing. The class consisted of residents who lived near Clark’s oil refinery. They claimed the refinery was a nuisance.

A first trial judge certified the class. A second trial judge denied Clark’s motion to decertify the class. Clark tried again for decertification, but a third judge, the one who tried the case, denied Clark’s motion.

A trial resulted in a $120 million verdict against Clark, $40 million of it for punitive damages. Clark then filed motions to vacate the judgment, for a new trial, and for decertification of the class. One year later, the trial court granted Clark’s motions.

Plaintiff appealed. The question of decertification of the class took center stage. The court identified the standard of review for decertification of a class – reversal “only if the trial court abused its discretion or applied erroneous legal criteria.” In this case, the First District Illinois Appellate Court found an abuse of discretion and vacated the decertification because “the trial court applied improper legal criteria by failing to consider whether there had been changed circumstances and a decision on the merits. To the extent that its decision represented an implicit finding of changed circumstances, the trial court abused its discretion. Acting without changed circumstances and after a decision on the merits, the trial court simply lacked the statutory authority to issue the order that it did. As a result, this court must vacate the decertification order.”

Read the whole opinion, Rosolowski v. Clark Refining and Marketing, No. 1-07-0048 (6/16/08), 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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August 12, 2008

Standard Of Review For Dying Declaration: Palpably Contrary To The Manifest Weight Of The Evidence

Howard Berry sued 40-plus companies for his damages from contracting mesothelioma as a result of exposure to asbestos. He died before his discovery deposition was completed and before his evidence deposition was taken. Howard’s wife, Linnie, continued the lawsuit as representative of Howard’s estate.

The companies moved to bar the use of Howard’s discovery deposition at trial. The trial court granted the motion because, with few exceptions, Illinois law does not allow the discovery deposition of a party, even though unavailable, to be read into evidence. The companies then moved for summary judgment on the basis that Howard’s estate could not prove its case without Howard’s testimony. The trial court agreed and entered summary judgment against the estate.

Linnie appealed. The estate argued, among other things, that Howard’s discovery deposition was a “dying declaration,” and could come into evidence as an exception to the hearsay rule. The Fifth District Illinois Appellate Court disagreed. The appellate court stated the standard of review for “determination of whether a particular statement constitutes a dying declaration … [is whether the court’s] findings are palpably contrary to the manifest weight of the evidence.” The discovery deposition was not a dying declaration because the estate did not show that Howard thought his death was imminent at the time he gave the deposition.

Read the whole case, Berry v. American Standard, No. 5-06-0621 (5/19/08), by clicking here.

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July 23, 2008

Reconsideration Motion That Presented New Evidence Reviewed For Abuse Of Discretion

Ricky Compton’s insurer, Country Mutual, had a lien on settlement proceeds Ricky received from the negligent party in an automobile accident. The lien was filed with Founders Insurance, the negligent party’s insurer. Ricky filed a class action complaint against Country Mutual, arguing that the lien filed on Founders was a breach of contract and a violation of the Illinois Consumer Fraud Act.

After the trial court dismissed his complaint, Ricky asked the court to vacate the dismissal or for reconsideration. The trial court denied that request, so Ricky appealed. He claimed that the correct standard of review was “de novo,” and that the appellate court should give his arguments a fresh look. But the First District Illinois Court of Appeals found that Ricky’s reconsideration request was based on evidence that had not been given to the trial court before. The appellate court ruled that the correct standard of review therefore was “abuse of discretion,” not “de novo.” Here’s what the appellate court stated:

The plaintiff [Ricky] asserts that the standard of review applicable to the denial of the motion to vacate or reconsider is de novo … However, where the denial of a motion to reconsider is based on new matters, such as additional facts or new arguments or legal theories that were not presented during the course of the proceedings leading to the issuance of the order being challenged, the abuse of discretion standard applies … In his motion to reconsider, the plaintiff alleged that he could plead facts establishing that the Founders' settlement check exceeded the amount of Country Mutual's lien. Since the motion for reconsideration rested on new factual allegations, the applicable standard of review is abuse of discretion.

Read the whole case, Compton v. Country Mutual Insurance Co., No. 1-06-24 (4/29/08), by clicking here.

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July 13, 2008

Candidate Who Owed Village Money Booted From Ballot; Illinois Supreme Court Defines “Mixed Question Of Law And Fact”

John Cinkus intended to run for village trustee in the Village of Stickney, Illinois in April 2007. But in April 2006, he was cited under the Stickney Municipal Code for disorderly conduct. After a contested hearing, Cinkus was found guilty and ordered to pay a $100 fine. When Cinkus did not appear for a continued hearing, a judgment was entered for the $100 fine. Cinkus was given notice of the judgment in November 2006.

Cinkus tried to pay the fine in February 2007, a few days before he filed his nomination petition. But by then, under the Illinois Municipal Code, the Village could not accept the payment without a hearing.

Cinkus filed his nomination petition to appear on the election ballot. The petition was met with an objection. The objection was based in the Illinois Municipal Code, which states that a person who is in arrears on a debt owed to the municipality is not eligible for elected municipal office. The local election board ruled that Cinkus owed the $100 at the time he filed his nomination petition, and was ineligible for municipal office.

Cinkus appealed the board’s decision to the circuit (trial) court. The circuit court reversed the board. The election board then appealed to the appellate court, which reversed the circuit court and agreed that Cinckus should not appear on the election ballot.

Cinkus then appealed to the Illinois Supreme Court, which affirmed in favor of the election board. The supreme court’s opinion defined the different issues and standards of review that may arise from an election board’s decision, then more broadly analyzed the “mixed question of fact and law” standard of review. This quote from the court is lengthy, but worthwhile if you’re struggling with an appeal from an agency or election board decision, or if you think you’re grappling with a mixed question of law and fact.

[T]his court identified three types of questions that a court may encounter on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of fact and law. As a result, "[t]he applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law." … An administrative agency's findings and conclusions on questions of fact are deemed prima facie true and correct. In examining an administrative agency's factual findings, a reviewing court does not weigh the evidence or substitute its judgment for that of the agency. Instead, a reviewing court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence. An administrative agency's factual determinations are against the manifest weight of the evidence if the opposite conclusion is clearly evident … In contrast, an agency's decision on a question of law is not binding on a reviewing court. For example, an agency's interpretation of the meaning of the language of a statute constitutes a pure question of law. Thus, the court's review is independent and not deferential … Mixed questions of fact and law "are 'questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.' … [T]his court held … that an examination of the legal effect of a given state of facts involves a mixed question of fact and law with a standard of review of "clearly erroneous." … [T]his court [has] explained that an administrative agency's decision is deemed "clearly erroneous" when the reviewing court is left with the "definite and firm conviction that a mistake has been committed.'’

After all that, the supreme court did not state what standard of review it used in this decision. The court stated that “we are left with the sole question” of the correct interpretation of the Illinois Municipal Code. So presumably, this case presented a pure question of law, requiring an independent (de novo) standard of review. The rule of law here was disputed — i.e., the correct interpretation of the statute — so the issue was not a mixed question of law and fact.

The whole case, Cinkus v. Village of Stickney Municipal Officers Electoral Board, No. 104471 (4/23/08), is available by clicking here.

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July 2, 2008

De Novo Review Of Jury Instruction Favors Insurer

This case is another dispute between an insured and his homeowner’s insurer. After his house burned down, Rodney Barth filed a claim with State Farm. State Farm denied the claim because, it argued, Rodney made material misrepresentations during State Farm’s investigation of the fire. A jury found in favor of State Farm, and Rodney appealed.

Rodney argued that the trial court should have instructed the jury that State Farm was required to prove that it reasonably relied to its prejudice on Rodney’s misrepresentation. Instead, the trial court instructed the jury only that Rodney’s misrepresentation had to be “material.”

The Illinois Supreme Court stated the rule for review of jury instruction challenges: “Although jury instructions are generally reviewed for an abuse of discretion, our standard of review is de novo when the question is whether the applicable law was accurately conveyed.”

In this case, the Illinois Supreme Court agreed that the jury only needed to be instructed as to “materiality,” and not on the elements reasonable reliance and prejudice.

Read the whole case, Barth v. State Farm Fire & Casualty, No. 104378 (3/20/08, by ckicking here..

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June 30, 2008

No Abuse Of Discretion In Finding Law Firm Waived Right To Arbitration

Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case. Woods then sued for malpractice.

In the malpractice case, the law firm raised an affirmative defense that its agreement with Woods required arbitration of “[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services …” But the firm also made two motions to dismiss the case, filed a demand for a bill of particulars, served interrogatories on plaintiff, and issued a subpoena for documents to a third-party.

After all that, the firm asked the court to compel arbitration of the dispute. The trial court ruled that the law firm waived its right to compel arbitration because it participated so heavily in Woods’s lawsuit. The law firm appealed the denial of its attempt to compel the arbitration.

The appeal was pursuant to Illinois Supreme Court Rule 307(a), which permits interlocutory appeals as of right from an order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. The First District Illinois Appellate Court ruled that “a motion to compel arbitration is analogous to a motion for injunctive relief," and that the standard of review is “abuse of discretion.”

The appeal evoked three separate opinions from the three-judge panel. Two of the opinions agreed with the trial court so the waiver ruling was affirmed. One judge dissented.

The primary opinion discussed some of the policy considerations involved in waiver of a claim to arbitrate: “Illinois courts disfavor a finding of waiver … However, the right to compel arbitration of a dispute can be waived as with any other contractual right … Illinois courts will find waiver of a party's right to compel arbitration when a party's conduct is inconsistent with an arbitration clause, thus indicating an abandonment of the right to arbitration … Additionally, a party waives its right to arbitrate by submitting arbitrable issues to a court for decision … Illinois courts also consider the delay in a party's assertion of its right to arbitrate and any prejudice the delay caused the plaintiff …”

This opinion stated that overlooking waiver might result in heavier costs for the parties to resolve the dispute; parties would be motivated to take discovery in the lawsuit, to which they might not be entitled in the arbitration, then demand arbitration. All of that would defeat an important purpose of arbitration – saving the costs of litigation.

The dissent saw the more important policy as encouraging arbitration. The dissent also was concerned that “the plaintiffs are trying to slip out of their contractual duty to arbitrate. We should not let it happen. I believe the trial court abused its discretion when it denied the defendants' motion to compel arbitration.”

Read the whole opinion, Woods v. Patterson Law Firm, No. 1-08-0066 (3/31/08), by clicking here. (The Public Law Library; free account required.)

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June 29, 2008

Motion To Strike Summary Judgment Affidavit Reviewed De Novo

As representative of Stanley Collins’s estate, Lisa Collins sued St. Paul Mercury Insurance for underinsured motorist coverage of the auto accident that killed Stanley. Lisa appealed after the trial court ruled that St. Paul did not owe insurance coverage and awarded the company summary judgment.

Among other things, Lisa complained that her affidavit supporting her opposition to summary judgment should not have been stricken. The First District Illinois Appellate Court identified the proper standard of review as de novo. “When a trial court rules on a motion to strike an affidavit in conjunction with a motion for summary judgment, the appellate court reviews that ruling de novo.”

In this case, the appellate court ruled it was proper to strike the affidavit because it “failed to comply with the requirements of [Illinois Supreme Court Rule 191] in that it contained unsupported assertions, opinions, and conclusions regarding plaintiff's ‘expectations’ about the St. Paul policy's coverage.” Read the whole case, Collins v. St. Paul Mercury Insurance Co., No. 1-06-36-1 (3/25/08), by clicking here.

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June 12, 2008

Children’s Claim For Constructive Trust Gets De Novo Review

After his ex-wife died, Edward Trevino got into a dispute with his children over the disposition of a $100,000 life insurance benefit. Edward was the beneficiary on the policy. But his children pointed to a marital settlement agreement that stated they were to be beneficiaries of any “death benefits.”

The children’s guardian asked for a constructive trust over the life insurance benefit. After the trial court imposed a constructive trust, Edward appealed that order.

The first issue was the standard of review. The Second District Illinois Appellate Court distinguished between review of imposition of a constructive trust and of a marital settlement agreement. “At the outset, we note that, even though the order Edward challenges is one imposing the equitable remedy of a constructive trust … our review is de novo. Typically, the imposition of a constructive trust is a matter for the discretion of the trial court … Here, however, the issue is not whether the trial court abused its discretion in imposing a constructive trust, but whether the marital settlement agreement provided a legal basis for the trial court’s order. Edward has asked us to review only the trial court’s interpretation of the agreement. Our review of a court’s interpretation of a marital settlement agreement is de novo.”

The appellate court ruled that “death benefits,” as used in the marital settlement agreement, included the life insurance benefit, and affirmed the imposition of a constructive trust. Read the whole case, In re Estate of Trevino, No. 2007-0503 (4/7/08), by clicking here.

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April 22, 2008

Dressed Up Abuse Standard For Review Of Sanctions Order

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.

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April 18, 2008

Relation Back Of Amendment A Limitations Issue, So Illinois Supreme Court Rules De Novo Standard Applies

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.

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April 11, 2008

Appellate Court Reviews Trial Court’s Actions On Remand De Novo

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.

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April 6, 2008

Procedural Unconscionability Reviewed By Manifest Weight; Substantive Unconscionability Reviewed De Novo

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.

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March 20, 2008

Violation Of Discovery Rule Deemed A Question Of Law

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.

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March 11, 2008

First District Illinois Appellate Court Defines Standards Of Review For Motion For New Trial And For Judgment Notwithstanding Verdict

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.

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March 7, 2008

First District Illinois Appellate Court States Standard Of Review For Class Certification

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.

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March 5, 2008

Illinois Supreme Court Rules De Novo Standard Of Review Applies To Permissive Review Of Conflict Of Law Question

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.

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February 8, 2008

First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

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.

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January 20, 2008

Illinois Supreme Court Spanks North Chicago Police Pension Board. Doctor’s Evidence Fails Manifest Weight Standard

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.

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January 8, 2008

7th Circuit Reviews Summary Judgment For Clear Error In Non-Jury Case

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.

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October 15, 2007

Medical Malpractice Case Illustrates Tension In Review Of Judgment Notwithstanding Verdict

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.

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September 25, 2007

Plain Error “Exceedingly Rare” In Civil Appeals

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.

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August 11, 2007

First District Illinois Appellate Distinguishes Review Standards For Motions To Reconsider

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.

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July 5, 2007

Illinois Supreme Court Finds Substantial Compliance Of Chinese Language Referendum Despite Inexact Translation

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.

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June 15, 2007

Split First District Appellate Court Rules Clearly Erroneous Standard Applies In Election Law Dispute

In this election law case, the incumbent disputed her challenger’s petition signatures. The incumbent claimed that the challenger sat in her car while others approached voters’ houses and obtained nomination petition signatures. The incumbent signed the petitions as the circulator, who the statute requires to be present when the petition is signed by a voter.

The election board ruled that the challenger satisfied the “presence” requirement. But the circuit court ruled otherwise, and threw out a sufficient number of signatures to disqualify the challenger from being placed on the election ballot. The First District Appellate Court — reviewing the Election Board’s decision, not the circuit court’s, as it is required by statute to do — affirmed the Election Board and restored the challenger to the election ballot.

The appellate court’s majority viewed the dispute as presenting a mixed question of law and fact, prompting a “clearly erroneous” standard of review. The case illustrates the problems courts have defining “mixed question of law and fact.” The court explained that a mixed question of law and fact “asks the legal effect of a given set of facts . . . To resolve a mixed question of law and fact, ‘a reviewing court must determine whether established facts satisfy applicable legal rules.’ . . . Here, we must decide whether the established facts — that Andrade watched from a car while her campaign workers obtained some signatures for her nominating petition —satisfy the presence requirement of section 10-4 of the Code.” The majority stated that the “clearly erroneous” standard applied only to review of administrative agency decisions.

The dissent allowed for no discretion to the Board. It viewed the appellate dispute as a question of law and concluded that a de novo standard of review applied.

The case shows the difficulty courts continue to have with the “mixed question of law and fact” standard of review. And it’s no wonder. In almost every case we are asked the legal effect of a given set of facts. Saying so as if that justifies a lighter standard of review does not advance the analysis. If the courts want to give administrative decisions an added measure of discretion, then they should say so and justify the rule with legal analysis. We could then do away with the unhelpful fiction of “mixed question of law and fact.”

The whole case, Ramirez v. Andrade, No. 1-07-0378 (3/30/07), is available by clicking here.

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June 4, 2007

Illinois Supreme Court Interpreting DOC Rule. Is It De Novo Or Is It Abuse Of Discretion?

A prison inmate filed a class action complaint against the Illinois Department of Corrections. He asserted that a co-payment charged to indigent inmates for non-emergency medical and dental services was improper. The issue was whether the DOC’s definition of “indigent” (unable to pay the co-payment for the entire time of incarceration) conflicted with Illinois’ Unified Code of Corrections.

The circuit court dismissed the complaint. But the appellate court reversed. Affirming the appellate court, the Illinois Supreme Court first considered the standard of review. The Supreme Court acknowledged the typical standard of review of a motion to dismiss is de novo. Further, “Whether plaintiff’s complaint was properly dismissed turns on whether plaintiff sufficiently alleged a certain and clearly ascertainable right that needs protection.’”

The standard of review gets clouded in this case because the Supreme Court also stated that the DOC’s interpretation of the Code of Corrections gets a deferential review. “We acknowledge that where, as here, an agency is charged with the administration and enforcement of the statute, courts will give deference to the agency’s interpretation of any statutory ambiguities.”

That’s “abuse of discretion” language. So the appellate court was reviewed de novo, but the Department of Corrections was reviewed for abuse of discretion. Ultimately, the court affirmed because the DOC’s definition of “indigent” cannot be reconciled with the statute [Code of Corrections].”

The whole case, Hadley v. Illinois Department of Corrections, No. 101979 (2/16/07), by clicking here.

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May 25, 2007

Whether An Individual Is A “Political Committee” A Mixed Question Of Law And Fact

The Illinois State Board of Elections found that Victor Santana violated the state Election Code in connection with his financial support of a judicial candidate in a primary election. Santana did not file appropriate organizational or disclosure statements even though he paid in excess of $3,000 for a campaign mailing.

On direct appeal to the appellate court, Santana disputed that he was required to file the reports. The appellate court identified the standard of review of the Elections Board decision and attempted to define the contours of the standard:

This court reviews the decision of an administrative body as a "mixed question of law and fact," on a "clearly erroneous" standard . . . A mixed question of law and fact involves an analysis of the application of the rule of law to the established facts; the ultimate determination is whether the rule of law is violated . . . The "clearly erroneous" standard is "significantly deferential" to administrative decisions and requires that an agency's determination will be reversed "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed' . . . The decision of an election board is subject to such deference . . .

In this case, the appellate court affirmed the ruling of the Board, finding no clear error.

I continue to have an intellectual problem with the concept of “mixed question of law and fact.” We are always applying facts to law and law to facts. Every case requires it. Pretending that a mixed question of law and fact requires a different standard of review is a convenience, without a logical rationale, that allows courts to invoke the “clearly erroneous” standard of review. Maybe “clearly erroneous” is the best standard to use in review of an administrative decision. If so, then the court should just say so and tell us why. But using the pervasive notion of a mixed question of law and fact as a reason to invoke a “significantly deferential” standard of review brings a true analysis to a screeching halt.

You can see the whole case, Santana v. State Board of Elections, 1-05-1950 (3/15/07), by clicking here.

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April 26, 2007

Class Certification Denied For Late Arrivers To NSYNC Concert

Pierre Petrich had tickets to an NSYNC concert. She arrived quite late because, she said, automobile traffic at and near the concert venue was poorly handled. Angry about missing part of the concert, Petrich filed a class action lawsuit against, it seems, almost everyone who had anything to do with the production of the concert. The gist of her complaint was that defendants “breached their contractual duty to ensure her timely arrival to the Route 66 Raceway concert venue.”

After the trial court denied a class certification motion, Petrich appealed. Affirming the order denying class certification, the court stated the difficult standard of review: “Class certification is entirely within the province of the trial court and its determination will not be disturbed absent a clear abuse of discretion or the application of ‘impermissible legal criteria.’”

The whole case, Petrich v. MCY Music World, No. 1-05-1903 (2/8/07), is available by clicking here.

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April 23, 2007

First District Illinois Appellate Rules De Novo Standard Of Review In Intervention Matter

The City of Chicago and the Chicago Board of Education were denied leave to intervene in a valuation dispute. Reversing the trial court, the First District Appellate Court deviated from the usual standard of review on intervention matters. Here’s the court’s reasoning:

An order denying leave to intervene as of right is generally reviewed for a clear abuse of discretion as to timeliness, inadequacy of representation, and sufficiency of interest . . . In the instant case, however, the trial court did not base its decision upon, nor even address, any of these factors. Rather, the trial court denied the petitions to intervene based upon its decision that the Property Tax Code . . . was a complete and comprehensive statute that enumerates all of the parties who are involved and all of their rights. The trial court concluded that the legislature did not intend to permit taxing bodies to intervene in specific tax objection cases, i.e., cases involving challenges to property assessments (as opposed to rate challenges), because the Property Tax Code does not expressly provide for a right of intervention by taxing bodies in specific tax objection cases. In order to determine whether the trial court applied the correct legal criteria in the exercise of its discretion, we must construe the pertinent statutes. Thus, the issue on appeal involves a question of law and our standard of review is de novo . . .

The case was remanded for a hearing on whether the intervenors met the usual standards. For the whole case, Madison Two Associates v. Pappas, No. 1-04-0911 (2/9/07), click here.

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April 9, 2007

7th Circuit Declines to Decide Appellate Standard For New Sentence Post-Revocation Of Supervised Release

Abraham Flagg was convicted of distributing cocaine and cocaine base, and of conspiracy to distribute. After a plea deal, he received concurrent sentences of 180 months of imprisonment and 60 months of supervised release.

As soon as he began serving it, Flagg violated the terms of his supervised release. He was sentenced to 30 months additional prison time for the violation.

Flagg appealed the additional sentence. He claimed that the standard of review was whether the sentence was “plainly unreasonable.” The issue was whether the U.S. Supreme Court opinion in U.S. v. Booker required a change in the standard of review merely to “reasonableness.” The opinion noted a split among the federal circuits on this question. But the 7th Circuit left the question unanswered, ruling that Flagg’s additional sentence was correct under either standard of review.

The whole case, U.S. v. Flagg, No. 06-3092 (3/23/07) is available by clicking here.

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April 2, 2007

First District Illinois Appellate Rules Abuse Of Discretion Standard On Motion To Vacate Foreclosure

A property owner, Burtley, moved to vacate an order of foreclosure that was entered without an evidentiary hearing. He appealed the trial court’s denial of the motion. The parties disputed the appellate standard of review.

Burtley asserted review should be de novo “or what he labels an ‘ends of justice’ standard.” He argued that a motion to vacate should be reviewed by the same de novo standard as a motion to dismiss.

The bank argued that the standard of review was ”whether the trial court abused its discretion by failing to promote substantial justice between the parties . . .”

The appellate court sided with the bank. “We review a trial court’s decision to deny a motion to vacate for an abuse of discretion . . . [W]e determine whether the trial court’s decision to deny a motion to vacate ‘was a fair and just result, which did not deny [the moving party] justice.” The court also rejected Burtley’s position to establish an “ends of justice” standard.

The whole opinion, Deutsche Bank National v. Burtley, No. 1-04-3470 (2/9/07), is available by clicking here.

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March 28, 2007

Tax Dispute Evokes Clearly Erroneous Standard

Mead Corporation’s tax dispute with the Illinois Department of Revenue led to this appeal in the Illinois First District. Although there was substantial testimonial and documentary evidence, the chief facts were not disputed. The issue in this appeal concerned an application of those facts to the Illinois Income Tax Act, resulting in an intermediate standard of review.

. . . [W]here the fact finder examines the legal effect of a given set of facts, it decides a mixed question of law and fact which is subject to an intermediate standard of review . . . Under such circumstances, the decision is based on fact-finding that is inseparable from the application of law to fact and is reviewed under a clearly erroneous standard . . .. This standard is largely deferential to the decision maker.

Under the clearly erroneous standard, a finding of the lower court may be reversed only if, after careful review of the entire record in light of the applicable rule of law, the reviewing court is left with the " 'definite and firm conviction' " that the finding is in error.

How to discern a mixed question of law and fact is a continuing problem. Very few appeals involve pure questions of law. We’re always applying law to facts. You just as easily could say that fact-finding is inseparable from the application of law to fact in almost every summary judgment case. But summary judgments generally are reviewed de novo. This question requires clearer definition from the court.

Get the whole opinion in Mead Corp. v. Dept. of Revenue, No. 1-03-1164 (1/12/07), by clicking here.

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March 15, 2007

De Novo Review For Jurisdictional Motion Made On The Papers Says Second District Illinois Appellate

An Illinois resident, unhappy with the boat he purchased, sued the Florida boat manufacturer for breach of contract. The manufacturer moved to dismiss based on lack of jurisdiction by the Illinois trial court. That motion, decided solely on the papers, was granted. On appeal, the Second District Illinois Appellate Court ruled that in cases in which “the trial court decides the issue of personal jurisdiction based solely on documentary evidence, our review is de novo.”

In this case, even after viewing the conflicting documentary evidence in favor of plaintiff, the appellate court agreed that the Florida manufacturer did not have minimum contacts sufficient for jurisdiction in Illinois.

The whole case, Bolger v. Nautica International, No. 2-06-0578 (1/11/07), is available by clicking here.

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March 12, 2007

First District Illinois Appellate Sets “Abuse Of Discretion” Standard For Section 155 Fee Claim

The trial court ruled in favor of the insured on cross-motions for summary judgment in an insurance coverage dispute. The insured then moved for costs and attorney fees under Section 155 of the Illinois Insurance Code. The trial court denied that motion.

Both parties appealed. The insured argued that the standard of review for the denial of its fee motion was “de novo,” just like for the review of its summary judgment motion. But the appellate court ruled that the proper standard of review was “abuse of discretion” because the Section 155 sanctions motion “did not involve purely legal issues and was presented to the trial court after the court ruled on the parties” summary judgment motions.”

The whole case, Baxter International v. American Guarantee and Liability Ins. Co., No. 1-05-3231 (12/26/06), is available right here. http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/December/1053231.pdf

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March 9, 2007

Illinois Supreme Court Establishes Manifest Weight Of The Evidence As Standard Of Review In Spousal Abuse Case

The Illinois Supreme Court has ruled that the standard of review for a finding of abuse under the Illinois Domestic Violence Act is the “manifest weight of the evidence.”

In this case, the trial court found abuse by the preponderance of the evidence. The appellate court affirmed, but used an “abuse of discretion” standard of review. The supreme court acknowledged that the “abuse of discretion” standard was commonly used in the appellate courts. “However, the ‘mere repetition of a purported rule of law does not establish its validity.’”

The whole case, Best v. Best, No. 101135 (9/21/06), is available by clicking here.

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March 1, 2007

Illinois Supreme Court Identifies Standard Of Review For Class Certification Dispute

Plaintiff sought class certification for persons who were exposed to toxic chemicals when a train derailed. The trial court certified the class, and was affirmed by the appellate court. The Illinois Supreme Court reversed on the basis that common issues of proximate cause and damages did not predominate. The supreme court’s opinion states the standard of review for decisions concerning class certification. “Decisions regarding class certification are within the discretion of the trial court and will not be disturbed on appeal unless the trial court abused its discretion or applied impermissible legal criteria . . . However, " '[a] trial court's discretion in deciding whether to certify a class action is not unlimited and is bounded by and must be exercised within the framework of the civil procedure rule governing class actions.' "

The entire case, Smith v. Illinois Central R.R., No. 102060 (11/30/06), is available by clicking here.

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February 12, 2007

Second District Illinois Appellate Rules No Abuse Of Discretion (Or Maybe Manifest Injustice) In Granting Grandmother Visitation

Over Alice’s objection, the trial court granted Cindy’s (paternal grandmother) petition for visitation with Alice’s child. Although the appellate standard of review was not an issue in the dispute, the appellate opinion raises the question of the correct standard.

The court first says: “A trial court's determination regarding visitation is within its sound discretion, and this court will not disturb such a finding absent a showing of manifest injustice.” This opinion does not define “manifest injustice.”

However, the Second District Appellate Court affirmed because it could not find an abuse of discretion. “We can find no error in the trial court's finding that Alice's denial of visitation was harmful to E.H.'s mental, physical, or emotional health, and we find no abuse of discretion in the court's order granting visitation.”

So is the right standard of review “manifest injustice” or “abuse of discretion?” In view of the court’s holding, you’d have to go with “abuse of discretion.” But a cautious brief writer has to work the “manifest injustice” idea into the argument as well. (Note -- A dissent found an abuse of discretion, and did not discuss "manifest injustice.")

Get the whole case, Flynn v. Henkel, No. 2-06-0573 (11/27/06), right here.

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February 11, 2007

Manifest Abuse Of Discretion Required In Illinois To Reverse Order Denying Leave To Amend Complaint

The Third District Illinois Appellate Court reversed a trial court’s order denying leave to amend a complaint. The case is Gurnitz v. Lasits- Rohline Service. The appellate court stated the standard of review: “The decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court . . . Therefore, the trial court's decision will stand absent a manifest abuse of discretion.” The court left no word on what a “manifest” abuse of discretion is. Is it any different than a plain old abuse of discretion? Any more strict?

The Third District cited the Illinois Supreme Court for the “manifest” abuse of discretion standard. And indeed the supreme court did use that exact language in Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill.2d 263, 273-74, 166 Ill.Dec. 882, 586 N.E.2d 1211, 1216 (1992). No word in Loyola Academy either defining the term.

Loyola Academy lists the factors that determine the propriety of a motion for leave to amend. The first factor is whether the proposed amendment would cure the defect in the original pleading. That sounds like a question of law, which should require de novo review, not abuse of discretion. The analyses in Loyola Academy and in Gurnitz support the idea that this factor is a question of law. Neither opinion mentions the standard of review in discussing this factor.

So I am puzzled. What is a “manifest” abuse of discretion? Why use that standard for what is clearly a question of law? Stay tuned as your humble editor explores the depth of these mysteries.

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January 22, 2007

7th Circuit Rules No Asylum For Alien Whose House And Business Are Burned Down.

The Bocis’ request for political asylum was denied by an immigration judge. The Board of Immigration Appeals affirmed. The 7th Circuit Court of Appeals denied a request for review.

There was evidence that the Boci home and business in Albania were burned down because of the Bocis' political affiliation. But the 7th Circuit said that did not “satisfy a heavy evidentiary burden. Indeed, our standard of review is ‘difficult to meet without powerful and moving evidence.’” Nor did fear of future persecution, which the court termed as "subjective," lay a basis for asylum.

The Bocis also asked for “withholding of removal” to Albania under the Convention Against Torture. The court denied that request because the Bocis did not demonstrate a clear probability they would face persecution in Albania. “Because the Bocis have provided little, if any, evidence of torture as defined by federal regulations [“severe pain or suffering, whether physical or mental”], the record does not compel granting them relief under CAT.”

The case, Boci v. Gonzales, No. 05-3231 (1/12/07), is available here – free account required.

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January 6, 2007

Illinois Supreme Court Reiterates Standard Of Review For Motions To Vacate, Identifies An Exception.

On complicated facts involving pension funds and bankruptcy, the Illinois Supreme Court was confronted with the proper standard of review on a Section 2-1401 motion to vacate a judgment. Here are the rules that emerged:

• “… [T]he disposition of a petition seeking relief from judgment under section 2-1401 … will be disturbed on review only if the trial court abused its discretion.”
• When a 2-1401(f) (void judgment) petition to vacate is “dependent on the legal effect of a violation of one of this court’s own rules,” then a de novo standard of review applies.

The court rejected the idea that the abuse of discretion standard is “rubber-stamping the lower courts’ rulings.” The supreme court ruled that the appellate court “must consider both the legal adequacy of the way the trial court reached its result as well as whether the result is within the bounds of reason.” I read this as a call for greater intellectual honesty by trial courts in the exercise of discretion and of appellate courts reviewing trial courts’ discretionary actions.

Only four justices decided this case -- Thomas, Freeman, and Burke took no part. This case, Paul v. Gerald Adelman & Associates, 223 Ill.2d 85, No. 100383 (10/19/06), also contains interesting discussion about the invited-error doctrine, and you can get all of it here.

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January 4, 2007

Illinois Fifth District Appellate Examines Standard Of Review Of Venue Orders. Venue Improper In Vioxx Class Action.

On remand from federal court, plaintiff’s Vioxx class-action complaint landed in St. Clair County, Illinois, a venue known nationwide for big verdicts and class action cases. Defendant moved to transfer venue to Cook County. (Cook is no bargain for defendants, either. That gives you some measure for St. Clair.)

Relying on a 2005 Illinois Supreme Court opinion, the appellate court identified the standard of review for change of venue orders. “[P]roper venue determinations involve separate questions of fact and law … Questions of fact are reviewed for manifest error, and questions of law are reviewed de novo … When there is no dispute concerning the facts relied upon by the court, a de novo standard of review is proper.”

In this case, buying and ingesting the Vioxx in St. Clair County did not overcome the lack of direct dealings between the parties in St. Clair. Venue was not proper in St. Clair County, and the case was transferred to Cook County. See the whole case, Rensing v. Merck and Co., Inc., by clicking here. And here is Corral v. Mervis Industries, the Illinois Supreme Court case Rensing relied on.

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January 3, 2007

First District Appellate Defines Abuse Of Discretion And Says Plaintiff Should Have Been Allowed To Cross Expert On Personal Practices

So what is an abuse of discretion? The definition bears repeating:

A trial court abuses its discretion only if it “act[s] arbitrarily without the employment of conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles of law … or if no reasonable person would take the position adopted by the court.”

In a medical malpractice case, plaintiff wanted to cross-examine the defense expert on his personal practices. The appellate court ruled that it was error for the trial court to preclude that cross-examination. The opinion did not state it was an abuse of discretion, but that’s the upshot. Take a look at Schmitz v. Binette, No. 1-05-2710 (10/13/06).

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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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December 19, 2006

De Novo Review For Illinois Claim That Punitive Damages Are Unconstitutional

Eighteen years of litigation culminated in a dispute over punitive damages in the Illinois Supreme Court. An excavating company was picketed by the union. The excavating company claimed the picketers spread false information about the company. So the company sued for libel, tortious interference with contract, and the like. At a bench trial, the company won a modest compensatory award, but rang the bell on punitives.

At a bench trial, the company won $4,680 in compensatory damages and $525,000 in punitive damages. The appellate court lowered the punitives to $325,000.

In the Supreme Court, the question was the propriety of the punitive damage award. The first question was the proper standard of review. The company argued for abuse of discretion; the union argued for de novo review.

The Union won that battle. Relying on United States Supreme Court precedent, the Illinois court ruled that de novo review would “unify precedent” and “stabilize the law.” It made no difference, the court stated, that punitive damages in this case were awarded by a judge after a bench trial.

De novo review puts the result in the hands of the appellate court, and takes it away from juries and trial judges. So you like this opinion if you believe in the wisdom of an appellate panel over juries and trial judges.

(Caesura – This opinion must have resulted in some disappointed faces. The trial court awarded $525,000 in punitives. The appellate court reduced it to $325,000. The Illinois Supreme Court reduced it to $50,000. The compensatory damages were $4,680. So after 18 years of litigation, the total take was less than $55,000.)

Get the whole opinion in International Union of Operating Engineers v. Lowe Excavating Co. here.

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