Illinois Supreme Court Rules

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.

June 26, 2008

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer’s Appeal

by Steven R. Merican

Eclipse Manufacturing apparently was annoyed by receiving unsolicited faxes from United States Compliance. So Eclipse filed a class action case against Compliance. Compliance demanded a defense and indemnification from its insurer, Hartford Insurance. Hartford declined to defend and denied coverage.

Compliance settled with Eclipse, and gave Eclipse an assignment of the Hartford insurance policy benefit. Eclipse proceeded on a third party citation to collect the Hartford policy limits. The trial court ruled that the Hartford insurance policy covered Eclipse’s claim against Compliance, and ordered Hartford to pay the settlement.

The trial court stated its intention to rule for Eclipse in July 2006, and directed Eclipse and Hartford to draft an order based on the court’s comments. But Eclipse and Hartford could not agree on language for the order. Just before 30 days from when the trial court stated it would rule for Eclipse, but before a written order was entered, Hartford filed its notice of appeal.

May 9, 2008

Judgment Creditors Can’t Toll Time To Appeal By Asking For An Interlocutory Appeal

by Steven R. Merican

The D’Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D’Agostinos’s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch.

After all of that was resolved, the D’Agostinos issued citations to Murphy and Bryan Cave, respectively a lawyer and a law firm who had represented Lynch. Their theory was that Lynch, to avoid paying the D’Agostinos, had given the lawyers money. Their motion to compel Murphy and Bryan Cave to turn over the money was denied on November 7, 2007.

Within 30 days, the D’Agostinos filed a “Motion to Amend Memorandum and Judgment.” That motion asked for a finding under Illinois Supreme Court Rule 304(a) (permitting an immediate interlocutory appeal). That motion was granted on December 12, 2007. And within 30 days, the D’Agostinos appealed the denial of the original turnover motion.

March 5, 2008

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

by Steven R. Merican

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.

February 19, 2008

Fourth District Illinois Appellate Strikes Brief For Lack Of Citation To Record Or Authority

by Steven R. Merican

In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff’s reply brief for lack of appropriate citations.

Rejecting plaintiff’s Joycian stream of consciousness style, the court stated:

The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court’s discretion to strike the plaintiff’s brief for failing to comply with Supreme Court Rule 341 … Rule 341(j) , which authorizes an appellant to file a reply brief, provides as follows: “The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument.” 210 Ill.2d R. 341(j). Rule 341(h)(7) requires appellants to give reasons for their contentions “with citation of the authorities and the pages of the record relied on.” 210 Ill.2d R. 341(h)(7). This court has stated that “[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice.” … A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited.

February 11, 2008

Illinois Supreme Court To Review IRMO Gutman. Is Civil Contempt Petition A Separate Claim From Underlying Divorce Case?

by Steven R. Merican

I mentioned IRMO Gutman in my January 3, 2008 entry regarding IRMO Knoerr. In IRMO Knoerr, the Second District Illinois Appellate Court overruled IRMO Gutman, which was only two months old at the time. On January 30, 2008, the Illinois Supreme Court announced it will review IRMO Gutman.

In IRMO Gutman, the Second District ruled that a pending civil contempt petition was a “separate claim” from the underlying divorce lawsuit. As a result, the divorce matters could be appealed while the contempt proceeding was pending without benefit of a Rule 304(a) order (trial court may allow appeal of final order of fewer than all claims). In IRMO Knoerr, another panel of the Second District ruled just the opposite and overruled IRMO Gutman.

Here’s to hoping the Illinois Supreme Court will settle the matter. I’ll keep you informed.

February 8, 2008

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

by Steven R. Merican

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”?

February 3, 2008

Temporary Removal Of Guardian Not Reviewable

by Steven R. Merican

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court’s own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court’s orders did not ‘finally determine, fix and dispose of the parties’ rights’”

January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

by Steven R. Merican

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

December 9, 2007

Illinois Supreme Court To Post Oral Arguments On Web

by Steven R. Merican

Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.

Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.

Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.