Articles Posted in Standard of Review

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.

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.

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.

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.”

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.

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.”

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

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

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

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

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