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.”

Minimally esteemed author of illinoisappellatelawyerblog.com has been placed on the bloggers’ disabled list. He has been on the shelf since mid-February when a momentary lapse in coordination caused his left typing appendage to fail.

Underwhelmed News Network was first to learn about the injury. Unable to feign a manly attitude, illinoisappellatelawerblog told UNN, “Damn, this hurts a lot.”

Advancing age has lengthened recuperation time, so entries are day-to-day. Illinoisappellatelawyerblog focuses on issues that are important to practitioners in the Illinois appellate courts. “You can’t get enough of this stuff, I know.” the blog said. “I plan to be back in the saddle right soon with regular entries.”

The Dunns sued Lawrence Patterson, their lawyer, claiming estate documents Patterson drafted contained certain provisions that were void because they were against public policy. After the Dunns won a declaratory judgment in the trial court, Patterson appealed.

The Dunns argued that Patterson did not have standing to appeal the declaratory judgment. The Third District Illinois Appellate Court made short work of the argument. The court politely found “this contention to be inconsistent with the fact that plaintiffs named Patterson as the defendant in this suit and obtained a judgment against him.” The appellate court stated the “entry of a judgment itself constitutes legally cognizable damages,” which was sufficient to establish standing.

I can’t say it is a singular example, but I do not recall reading about a plaintiff arguing that a party he sued did not have standing. Patterson got a reversal of the judgment, too. Read the whole case, Dunn v. Patterson, Nos. 3-07-0881, 3-08-0350 (11/18/09), by clicking here.

Marsha Dienstag sued her doctor, Lawrence Margolies, for medical malpractice. She claimed that Margolies did not timely diagnose her cancer. A jury agreed, and gave her a verdict for more than$5.9 million.

Margolies had an “assignment and forbearance” contract with Dienstag. Dienstag agreed not to seek payment of the judgment in excess of Margolies’s malpractice policy limits directly from Margolies. In return, Margolies assigned his claim against his malpractice insurer for “bad faith refusal to settle” within Margolies’s policy limits to Dienstag.

Margolies appealed the judgment. Dienstag pointed to the “forbearance and assignment” agreement and asked the court to dismiss the appeal. She argued that the agreement “renders the instant appeal moot because there is no longer a ‘live controversy’ between the parties.”

Richard Henry, then 89 years old, signed a will in 2004 that overrode all of his previous wills and codicils. The 2004 will left a substantial part of Henry’s estate to Peter Wemple and Mick Zawierucha. Henry’s prior will did not. Wemple was named executor of the 2004 will; Zawierucha was Henry’s caretaker.

About two years later, an Illinois trial court ruled that Henry was disabled, and J.P Morgan Chase Bank was named executor of Henry’s estate. The bank claimed that the 2004 will was procured through Zawierucha’s undue influence, so it asked the trial court for permission to change the terms of the document to reflect Henry’s last-known wishes.

Wemple and Zawierucha objected, but the trial court granted the bank’s request. Wemple and Zawierucha appealed. The bank then asked the appellate court to dismiss the appeal because, it argued, neither Wemple nor Zawierucha had standing to bring the appeal.

Rosa Neal was guardian of a disabled person’s estate. On behalf of her ward, Rosa contracted to sell the ward’s home to Damon Perry. Damon asked for, and received, approval from the probate court of the contract for sale of the property.

The contract had a mortgage contingency clause. Damon asked for a 30-day extension a day before the contingency was set to expire. The estate refused Damon’s request. Damon then said he would waive the contingency and that he intended to purchase the house as planned. But the estate had received a better offer, so its attorney told Damon that his inability to get a mortgage commitment by the contingency deadline rendered the contract null and void.

Damon then asked the probate court to enforce his contract to purchase the house. But the probate court agreed with the estate, and ruled “that the contract was null and void due to the mortgage contingency provision, and, moreover, because of equitable considerations the contract was not in the best interests of the estate.”

Clara George Minch and Ronald George were divorced in 1982. In 2003, Clara learned that Ronald had sold his interest in a company that owned Florida real estate for more than $950,000. She sued George for fraud, asserting that during the divorce proceedings he misrepresented his interest in the stock.

After Clara presented her case, the trial court directed a verdict for George.

The trial court ruled that Clara did not prove fraud and thus failed to meet her burden of proof.

Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo’s appointment went through there was less than 28 months left in Aiello’s term.

Under the Illinois Election Code, a person appointed to fill a vacancy completes the term if less than 28 months remain. If more than 28 months remain in the term, then the person appointed stays in office only until the next election. The next election was in 2008, but the Aiello term did not expire until late 2010. The question was when the clock started ticking – when Aiello passed away or when Biondo was appointed.

The Democratic Party submitted Carolyn Gardner as a candidate to run for the Aiello vacancy in the November 2008 election. Believing Biondo could complete Aiello’s term, and that there should not be an election for the seat until 2010, the Republican Party did not submit a candidate for the office. Nor did Biondo apply to run.

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