Illinois Appellate Lawyer Blog

June 13, 2010

Elgin’s Estoppel Defense To Property Owner’s Disconnection Case Not Forfeited

Falcon Funding owned land in Elgin, Illinois. Elgin agreed to annex the land in 1991. The property never was developed. In 2005, Falcon asked the trial court to order the property disconnected from Elgin.

Falcon and Elgin both asked the trial court for a summary judgment. The court denied Elgin’s request, and gave Falcon summary judgment, disconnecting the property.

Elgin appealed, and raised equitable estoppel [reliance by one party — here, the city — on the word or conduct of another so that the party (city) changes his position and subsequently suffers harm] as an affirmative defense to Falcon’s request for disconnection. Falcon argued that Elgin forfeited its equitable estoppel argument because the city had not specifically stated it as an affirmative defense to the complaint. Elgin asserted the argument was not forfeited because it was raised as a defense to Falcon’s summary judgment request.

June 10, 2010

Railroad’s Summary Judgment, Granted On Reconsideration, Reviewed De Novo

by Steven R. Merican

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.” …

June 8, 2010

Supreme Court Rule Reviewed De Novo

by Steven R. Merican

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.

June 8, 2010

Doctor In Malpractice Case Gets De Novo Review In Venue Dispute

by Steven R. Merican

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.

June 7, 2010

“Slick Lawyer” Remark Not Enough To Reverse Doctor’s Malpractice Verdict

by Steven R. Merican

Sonya Wilbourn sued her doctor, Mark Cavalenes, for medical malpractice. Wilbourn claimed Cavalenes inserted the wrong size compression plate when he performed surgery on Wilbourn’s fractured femur.

The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused. So Wilbourn appealed. Among her arguments to the appellate court, Wilbourn claimed she was denied a fair trial because of a prejudicial remark by the defense lawyer during his closing argument.

During his closing argument to the jury, Cavalenes’s attorney called Wilbourn’s attorney a “slick lawyer” who tried to twist Dr. Cavalenes’s words. Wilbourn argued that the remark amounted to “plain error.” But the First District Illinois Appellate Court ruled that the comment did not change the outcome of the trial, and affirmed the verdict.

May 19, 2010

Incorrectly Coded Notice Of Appeal Sufficient To Give Federal Appellate Court Jurisdiction

by Steven R. Merican

Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court’s mandatory electronic filing system, Vince’s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed. Vince’s lawyer identified the notice of appeal with the wrong code.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

May 12, 2010

Dismissal For Want Of Prosecution Appealable After Time For Refiling Expires

by Steven R. Merican

The First District Illinois Appellate Court recently stated the rule for when a dismissal for want of prosecution becomes final and appealable.

Our supreme court has recognized that if a plaintiff’s action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater … A DWP becomes a final order only when the section 13-217 period for refiling the action expires … Accordingly, a DWP remains an unappealable interlocutory order until plaintiff’s option to refile expires.

The whole case, Jackson v. Hooker, No. 1-08-3042, (1/29/10), is here for the clicking.

May 6, 2010

Introduction Stricken As Argumentative

by Steven R. Merican

The Illinois Supreme Court rules require appellant’s merits brief to have an introductory paragraph. The introduction normally is described as the “Nature of the Action.” I often see appellant merits briefs that have long and argumentative “Nature of the Action” sections. The Second District Illinois Appellate Court recently struck one that was just too much. Here’s why:

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury’s verdict, and whether any question is raised on the pleadings … Moreover, only the appellants’ brief is required to contain an introductory paragraph. The appellee’s brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants’ introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

May 5, 2010

Voidness Of Judgment Considered Despite Late Appeal

by Steven R. Merican

American Access Casualty Company insured Aaron Hersey. GEICO won a negligence case against Hersey. Trying to satisfy its judgment, GEICO brought a supplemental proceeding to discover the assets of American Access Casualty Company.

The trial court entered a judgment for GEICO against AACC for the amount GEICO won against Hersey. About five months later AACC asked the trial court to vacate the judgment. But the trial court refused. AACC asked again a month later, arguing that GEICO’s judgment was void because (1) AACC’s lawyer was not given notice of the hearing at which the judgment was entered and (2) the judgment was based on a misrepresentati0n. The trial court again refused to vacate the judgment.

AACC appealed, but GEICO asked the appellate court to dismiss it for lack of appellate jurisdiction. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider the merits of AACC’s appeal because neither the request to vacate the judgment nor the appeal were filed within the required 30 days of the judgment.

April 24, 2010

Two-Part Standard Of Review For Suppression Of Evidence In Entry And Detainer Case

by Steven R. Merican

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.