Appellate Record

August 9, 2009

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters. While the jury was deliberating, Gloria settled with Campbell for $150,000. The jury returned a verdict for Gloria of $518,000, and found Campbell and Walters each liable for 50 percent.

The court awarded Gloria $259,000 from Walters − his 50 percent of the full $518,000 award. Gloria thought Campbell and Walters were jointly and severally liable for the whole verdict, so she appealed and asked for an award of $368,000 from Walters ($518,000 minus the $150,000 settlement).

Certain of the medical providers held liens against Gloria’s judgment. There was a hearing in the trial court to adjudicate those liens. Walters argued that Gloria’s appeal was barred because she “represented to [the] lienholders that she would accept the judgment.” Walters argued that the doctrines of invited error (“a party cannot complain of error which that party induced the court to make or to which that party consented’”), and judicial estoppel (“a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding”) doomed Gloria’s appeal.

July 18, 2009

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

by Steven R. Merican

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

by Steven R. Merican

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

February 7, 2009

Car Dealership Waives Fraud Argument Because Of Insufficient Record

by Steven R. Merican

Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car.

Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury gave Traci a favorable verdict for the common law fraud action. The court, without the jury, gave Traci a favorable verdict under the Consumer Fraud Act. Rohrman appealed.

One of Rohrman’s issues was that the common law fraud action was against the manifest weight of the evidence. Traci argued that Rohrman waived the argument for appeal because the dealership did not file a motion in the trial court attacking the common law verdict. Rohrman argued that it “clearly attacked the sufficiency of the common law fraud judgment and asked for a judgment not withstanding the verdict on the common law fraud claim” in other pleadings in the trial and appellate courts, including a response to Traci’s motion to strike the appeal.

January 23, 2009

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

by Steven R. Merican

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.”

September 12, 2008

Appellate Court Can Look Beyond Record To Assess Admissibility Of Novel Scientific Evidence

by Steven R. Merican

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.’”)

June 18, 2008

Lack of Hearing Transcripts Makes For Insufficient Record To Reverse Good Faith Of Settlement

by Steven R. Merican

A building owned by the Jesuit church collapsed during demolition of the building next door. The church’s insurer paid the church’s insurance claim, and they both sued a number of the contractors involved in the demolition. When the church and the insurer settled with most of the defendants, the non-settling defendants contested the good faith of the settlement.

The trial court ruled that the settlement was made in good faith, thus extinguishing the non-settling defendants’ claims for contribution against the settlors. The non-settlors then appealed the good faith finding. A number of hearings on the motion for good faith finding were held in the trial court, but transcripts of those hearings were not a part of the appellate record.

The First District Illinois Appellate Court affirmed the good faith finding. The appellate ruling was made in part because the non-settlors failed to provide a record sufficient to find an abuse of discretion. Here is the appellate court’s rationale:

June 1, 2008

Failure To Proffer Proposed Amended Pleading Forfeits Right To Appeal

by Steven R. Merican

Members of an insurance pool were sued for failure to pay extraordinary assessments. The pool members in turn brought a third-party complaint against a number of parties alleging breach of contract and numerous torts. The trial court dismissed a significant part of the third-party complaint with prejudice and without leave to file an amended pleading.

The Fourth District Illinois Appellate Court refused to rule on the members’ argument that they were entitled to amend their third-party complaint. The court ruled that the members’ failure to proffer the amended third-party complaint to the trial court resulted in forfeiture of the question. “The pool members did not include a proposed amended complaint with supporting facts in the trial court. The failure to do so ‘significantly diminishes our ability to determine whether the proposed amendment’ would provide them with a viable theory against RMA and Murray [third party defendants] … The failure to tender the proposed amendment forfeits review of the trial court’s decision.”

So the lesson is: to assure there is a complete record for appeal, always proffer your proposed amended pleading to the trial court. Failing to do so may be a forfeiture of an argument on appeal that you improperly were not allowed leave to amend.

April 28, 2008

Partial Record Sufficient

by Steven R. Merican

The party appealing must provide a sufficient record for the appellate court to review, “and in the absence of such a record, the reviewing court will presume that the trial court’s order was in conformity with established legal principles and had a sufficient factual basis.” Without a sufficient record, an appellate court “may dismiss an appeal or, in the alternative, summarily affirm the judgment of the trial court.”

But the appellate court has the last say on what comprises a sufficient record. For example, the First District Illinois Appellate Court ruled that a record was sufficient even though it did not contain a transcript of the trial or a bystander report.

In a dispute over shipping fees, the appellate court stated: “[t]he ‘failure to present a report of proceedings does not require automatic dismissal or affirmance where issues can be resolved on the record as it stands.’ … We find that dismissal or summary affirmance is not necessary in this case, as the issues on appeal can be resolved on the record as it stands. Included in the record are the parties’ stipulations at trial and the trial court’s order stating its reasons for finding in favor of defendants and against Marx.”

February 28, 2008

Fifth District Illinois Appellate Court Looks At Waiver, Ex Parte Communication, And Trial Judge Misconduct. First District Appellate Court Reviews Completeness Of Appellate Record

by Steven R. Merican

A couple of quick hits today.

In a medical malpractice case, the Fifth District Illinois Appellate Court had this to say about the waiver rule: “’It is well established that both an objection at trial and a written post[ ]trial motion raising the issue are necessary to preserve an alleged error for review.’ … ‘Application of the waiver rule, however, is less rigid where the basis for the objection is the trial judge’s conduct.’”

In the same case, the court addressed the propriety of plaintiff’s ex parte communication with the trial judge. Ruling there was no reversible error, the appellate court stated: “In the present case … a reversal is unnecessary because there is no suggestion of bias or prejudice on the part of the trial judge, i.e., there is no suggestion that there was any outside influence or that the case was decided on any basis other than the evidence presented in the case. Accordingly, there was no appearance of impropriety. We therefore conclude that, under the circumstances of this case, any error committed by the trial court by conducting this brief ex parte communication was harmless.”