Illinois Appellate Lawyer Blog

April 18, 2008

Relation Back Of Amendment A Limitations Issue, So Illinois Supreme Court Rules De Novo Standard Applies

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.

April 16, 2008

Illinois Supreme Court Distinguishes “Waiver” From “Forfeiture”

by Steven R. Merican

This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal. The Illinois Supreme Court ruled that the failure to raise it in the petition for leave to appeal resulted in forfeiture of the issue.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party’s failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.

April 12, 2008

Possession Order Not Moot Even Though Tenant Vacated And Apartment Re-Rented

by Steven R. Merican

This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment.

Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges. When she missed the first payment, Circle moved for immediate possession of the apartment. The trial court granted Circle’s motion as a sanction for violating the agreed order. The court also stayed the case to give Beverly time to pay the use and occupancy charges and thereby purge the possession order.

Beverly appealed the possession order. But she also moved out of the apartment, and Circle rented it to another party. The first issue was whether the appeal was moot. If so, the appellate court would refuse to decide the case. The First District Illinois Court of Appeals acknowledged the general mootness doctrine. “A case becomes moot where it is impossible to render effective relief to the appealing party.”

April 11, 2008

Appellate Court Reviews Trial Court’s Actions On Remand De Novo

by Steven R. Merican

This doesn’t come up often, but the rule is good to keep tucked away for when you need it. In this medical malpractice case, the question on appeal involved the trial court’s actions after an earlier remand from the appellate court. The First District Illinois Court of Appeals stated the scope and standard of review. “After a remand, the circuit court is required to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law that this court reviews de novo.”

Read the whole case, Garley v. Columbia LaGrange Hospital, No. 1-06-2908 (12/5/07), by clicking here.

April 6, 2008

Procedural Unconscionability Reviewed By Manifest Weight; Substantive Unconscionability Reviewed De Novo

by Steven R. Merican

Ozma Tabassum sued Javed Younis were married in Canada and had one child, Azra. They moved to Illinois, where their relationship took a turn for the worse. Ozma took Azra back to her family in Canada. While in Canada, Ozma and Javed negotiated a postmarital agreement. Ozma agreed not to file for divorce. In return, Javed agreed to end his extra-marital affair. Javed also agreed that if Ozma did file for divorce — which would happen if Javed did not uphold his part of the agreement — then Ozma would get the house, and it would be considered nonmarital property.

Ozma sued for divorce in Illinois. But the trial court ruled that the postmarital agreement was invalid and that the house was marital property. In reversing these rulings, the Second District Illinois Court of Appeals considered the questions of procedural and substantive unconscionability of a postmarital contract, and the proper standards of review in the appellate court.

The appellate court first considered procedural unconscionability. “A contract is procedurally unconscionable if an impropriety in the process of forming the contract deprived a party of a meaningful choice … The trial court found that the postmarital agreement was procedurally unconscionable largely on the basis that petitioner was in Canada with Azra while the parties were negotiating the terms of the postmarital agreement, ‘the implicit threat being that unless agreement was reached she and Azra would remain in Canada, reducing if not eliminating [respondent’s] ability to meaningfully parent.’ This statement equates to a finding that respondent was under duress during the negotiation of the agreement. Duress may make an agreement between spouses unconscionable.”

March 29, 2008

Accident Victim Can Appeal Her Lawyer’s “Good Cause” To Widthdraw

by Steven R. Merican

Victoria McGill hired Friedman & Solmor to represent her in her auto accident case. The law firm represented Victoria on a contingent fee arrangement until about one month before trial was scheduled. The firm withdrew as a result of a dispute with Victoria over whether to accept a settlement offer.

Victoria got new counsel, who went to trial and got a verdict in excess of $180,000. Friedman & Solmar notified Victoria about a lien it had earlier served. Victoria in turn petitioned to adjudicate the lien. Her petition was denied, and F&S was granted a $20,500 quantum meruit judgment. Victoria appealed that judgment.

Victoria’s Notice of Appeal stated she was appealing from the judgment granting fees; it did not identify the order stating F&S had good cause to withdraw. Nonetheless, Victoria asserted that F&S did not have good cause to withdraw. F&S argued that the appellate court lacked jurisdiction to rule on the question of good cause because the order was not listed in Victoria’s notice of appeal.

March 27, 2008

First District Illinois Appellate Court Says Coadministrator Of Estate Cannot Appeal As An Individual

by Steven R. Merican

This wrongful death and survival action was filed on behalf of the estate of Rashidi Walker. Rashidi died during football practice at Northwestern University. His mother, Linda, and his father, George Wheeler, Jr., were coadministrators of Rashidi’s estate.

After lengthy litigation, the trial court approved a settlement of $16 million. Linda appealed the settlement approval. Although she sued only as administrator of Rashidi’s estate, she appealed as administrator and individually as an heir of the estate. Northwestern and George Jr. objected to Linda’s standing to appeal as an individual.

The First District Illinois Appellate Court sided with George Jr. and Northwestern. The court ruled that Linda did not have standing to appeal as an individual. Only the administrators of the estate were allowed to sue in the first place. The appellate court stated: “[I]f they [Linda and two other members of Rashidi’s estate who appealed as individuals] in their individual capacities were not parties to the underlying cause, they in their individual capacities cannot be parties to the instant appeal. Therefore, we find that they do not have standing and we dismiss their appeals.”

March 24, 2008

Urgent Reminder! Appellate Law Seminar In DuPage County, Illinois On March 31, 2008

by Steven R. Merican

Earn continuing legal education hours and hear a terrific panel of speakers on appellate law and practice by attending “A Blue Ribbon Panel On Appellate Advocacy.” Sponsored by the DuPage County Bar Association, the seminar will take place at noon on March 31, 2008 at the Attorney Resource Center at the DuPage County, Illinois courthouse.

A most excellent panel will speak and take questions:

• Judge William J. Bauer, U.S. Court of Appeals for the 7th Circuit, speaking on, “Preserving the Record for Appeal”

March 24, 2008

Summary Judgment Sustained On Argument Trial Court Did Not Consider

by Steven R. Merican

Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany’s favor because she “had probable cause as a matter of law to initiate the underlying civil proceedings against Howard.”

The First District Illinois Appellate Court disagreed with that conclusion, but affirmed the summary judgment because Glen could not show that he suffered “special injury,” an element of a cause of action for malicious prosecution.

Even though the trial court did not rule on the “special injury” question, it was proper for the appellate court to consider. “Although the trial court did not rule on this argument, Firmand did raise special injury in her motion for summary judgment. The issue is properly before the [appellate] court … [A]ppellee may advance any argument in support of the judgment on appeal regardless of whether the trial court ruled on that argument, so long as the factual basis for the argument was before the trial court.”

March 20, 2008

Violation Of Discovery Rule Deemed A Question Of Law

by Steven R. Merican

In Boyd v. City of Chicago, No. 1-06-0358 (12/5/08), the trial court precluded testimony of a fact witness. In Boyd’s appeal of an adverse jury verdict, he claimed the trial court improperly precluded his witness’s testimony as a discovery sanction.

The appellate court identified the standard of review: “ Whether a party violated a discovery rule is an issue of law that we review de novo”. But is this really a question of law? The determination about a violation of a statute seems like a question of fact. The appellate court identified the considerations to impose a sanction, and all six of them are fact questions. So whether a party violated the discovery rule should be a question of fact reviewed under a discretionary standard.