Articles Posted in Standard of Review

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.

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.

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

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.

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.

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.”

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.

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.”

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.

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.