Articles Posted in Standard of Review

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.

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.

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.

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.” …

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.

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.

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.

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.”

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.

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.”

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