On November 25, 2019, The Illinois Supreme Court issued an order permitting the use of electronic devices during oral argument under limited circumstances.  The order allows counsel or litigants to use electronic devices, including laptops, tablets, or cell phones, for referencing notes, taking notes, or searching the internet during oral argument.  

Electronic devices may not be used for posting on social media, texting, emailing, phone calls, recording oral arguments, or taking pictures, and spectators are still prohibited from using electronic devices.  Those intending to use electronic devices must give the clerk of the Court at least seven days' notice.   

The order can be found here.

By:  Carson Griffis*

In Lakeshore Centre Holdings, LLC v. LHC Loans, 2019 IL App (1st) 180576, a divided panel of the Illinois Appellate Court, First District, held that a finding pursuant to Illinois Supreme Court Rule 304(a) — which allows an appeal from a final judgment entered as to fewer than all parties or all claims in a case — triggers the 30-day time limit to file a sanctions motion under Illinois Supreme Court Rule 137.

The plaintiff filed suit over the defendant’s alleged failure to perform under an option contract.  The defendant filed a counterclaim, alleging that the plaintiff had breached the contract.  The circuit court dismissed the plaintiff’s complaint in its entirety, disposing of all of the plaintiff’s claims, and entered a finding under Rule 304(a) because the defendant’s counterclaim was still pending.  Rule 304(a) provides that, when a case involves multiple claims or parties, a final judgment as to at least one of those claims or parties, but not all of them, is appealable if the circuit court finds “that there is no just reason for delaying either enforcement or appeal or both.”

The plaintiff appealed from the circuit court’s dismissal of its complaint, and the appellate court ultimately affirmed the dismissal.  While the plaintiff’s appeal was pending, and about five months after the circuit court made its Rule 304(a) finding, the defendant filed a Rule 137 sanctions motion against the plaintiff alleging that it made false allegations in its complaint.  The circuit court granted the sanctions motion in part and awarded the defendant some of its attorney fees.  Both parties cross-appealed from the circuit court’s judgment on the sanctions motion.

After ordering supplemental briefing on the issue of the circuit court’s jurisdiction over the sanctions motion, the appellate court vacated the circuit court’s order.  It noted that Rule 137 requires that a sanctions motion be filed within “30 days of the entry of final judgment.”  The appellate court then emphasized that Rule 304(a) judgments are final judgments, even though they do not dispose of all claims against all parties.  And the court noted that timely Rule 137 motions toll the time for filing a notice of appeal.  Because a notice of appeal may be filed from a Rule 304(a) judgment within 30 days, the appellate court stressed that it would make sense that only a Rule 137 motion filed within 30 days would toll the time to file that notice of appeal.  Finally, the appellate court found that the defendant's pending counterclaim did not change its analysis because its sanctions motion was not related to any pleadings, motions, or documents relevant to the counterclaim.  Because the defendant's sanctions motion was not filed within 30 days of the Rule 304(a) finding, the circuit court lacked jurisdiction to consider it.

Justice Mikva dissented, asserting that, because the case as a whole was still pending when the defendant filed its sanctions motion, it was timely.  Justice Mikva noted that Rule 137 requires a sanctions motion to be filed in the same “civil action” in which the allegedly sanctionable conduct occurred.  Because the civil action was still pending while the defendant’s counterclaim remained pending, the sanctions motion could be filed until all claims against all parties had been disposed of.

*Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

The Illinois Supreme Court’s November Term begins Tuesday, November 12, 2019, with oral arguments scheduled for November 13, 14, 19, and 20. A total of 14 cases will be heard – 8 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

November 14

Lewis v. Atlantic Richfield Co.

November 19

Johnson v. Illinois State Police

Hess v. State Auto Insurance Companies

November 20

In re: Elena Hernandez

Joiner v. SVM Management, LLC

West Bend Mutual Insurance Company v. TRRS Corporation

Below is a summary for one of these cases, Lewis v. Atlantic Richfield Co. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

Lewis v. Atlantic Richfield Co.

This case involves the question of whether parents have standing to bring a claim for their minor child’s routine blood lead screening test, where the parents did not pay for the Medicaid-covered test, and where the child has no personal injury; but where the parents are liable for the expenses of their minor child under the Family Expense Act, 750 ILCS 65/15.   

Mary Lewis and Tashwan Banks were the lead plaintiffs in a class action brought against Defendants Atlantic Richfield Company, ConAgra Grocery Products, Inc., NL Industries, Inc., and The Sherwin-Williams Company.  They sought to recover the costs of blood lead screening their children underwent as required under the Illinois Lead Poisoning Prevention Act, 410 ILCS 45/1.  Their children were not injured and the tests were paid for entirely by Medicaid.  Defendants moved for summary judgment based on lack of standing, where Lewis and Banks incurred no expenses for the testing and their claims were solely for economic loss.  Lewis and Banks argued that they had standing because, under the Family Expense Act, they were responsible for the medical expenses of their minor children, and the collateral source rule gave them the right to recover for the lead toxicity testing.  The circuit court agreed with Defendants and granted them summary judgment.

The Illinois Appellate Court, First District reversed.  The appellate court explained that the parents had the legal obligation to pay for their children’s medical expenses and, therefore, the right to seek to recover for those medical expenses.  Further, the appellate court noted, that right of action was not affected by the fact that a third party actually paid the expenses.  It made no difference that the claims involved a purely economic injury.  The purpose of the collateral source rule, the appellate court reasoned, was to keep a tortfeasor from realizing a windfall, such as where the economic injury was shifted to a third party.  Here, the appellate court explained, the parents had the legal obligation to pay for lead testing – testing required because of Defendants’ civil conspiracy related to using lead in paint.  Defendants should not benefit from their civil conspiracy where, as here, a third party (and not the parents) paid for that statutorily-mandated testing. 

In their petition for leave to appeal, Defendants argued that the appellate court incorrectly found that Plaintiffs could bring a claim under the Family Expense Act, where they never incurred any obligation under the Act; and that the appellate court improperly extended the collateral source rule to purely economic damages, even if there was no personal injury.

The Illinois Supreme Court’s November Term begins Tuesday, November 12, 2019, with oral arguments scheduled for November 13, 14, 19, and 20. A total of 14 cases will be heard – 8 criminal and 6 civil. The following criminal cases are scheduled for argument this Term:

November 13

People v. Shadwick King, No. 123926

People v. Marshall Ashley, No. 123989

People v. Jonathan Lindsey, No. 124289

People v. Phouvone Sophanavong, No. 124337

November 14

People v. Ryan Roddis, No. 124352

People v. Leslie Moore, No. 124538

November 19

People v. Lanard Gayden, No. 123505

People v. Tavarius Radford, No. 123975

Below is a summary for one of these cases, People v. Lanard Gayden. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Lanard Gayden

Police responded to an apartment building in response to reports of a "man with a shotgun."  An officer arrived and saw, from no more than five feet away, defendant standing in the threshold of the doorway to his apartment, holding a shotgun.  Defendant threw the shotgun down (inside the apartment) and slammed the door.  The officer knocked then forced his way into the apartment and arrested defendant.  Defendant was charged and convicted of unlawful use of a weapon for possessing a shotgun with a barrel less than eighteen inches; he received a two-year prison sentence with a one-year mandatory supervised release term.

On direct appeal, defendant's arguments included that trial counsel was ineffective for failing to file a motion to suppress evidence (the shotgun) because no record evidence established probable cause or exigent circumstances permitting the officer to enter defendant's apartment without a warrant.  The shotgun in question was 17.5 inches long, and defendant asserted that the officer could not determine, from a quick glance from five feet away, that the shotgun was slightly too short.  The appellate court affirmed, concluding that the record lacked information needed to evaluate defendant's ineffective assistance claim so that it had to be raised in a postconviction petition.  Noting that defendant had mentioned in a petition for rehearing that he had recently discharged his sentence, the appellate court noted that defendant had failed to mention that fact in his initial pleadings so that the argument would not be considered.

Before the Illinois Supreme Court, defendant first argues that the appellate court erred in holding that the record was insufficient to evaluate his ineffective assistance of counsel claim and that police lacked probable cause or exigent circumstances to enter his apartment without a warrant.  Alternatively, defendant argues that because he is entitled to a merits decision on his ineffective assistance claim, the supreme court should either: (1) order the appellate court to retain jurisdiction and remand the matter to the circuit court for an evidentiary hearing, or (2) allow defendant to raise his claim in a postconviction petition (despite the fact that he is not imprisoned as required by the Post-Conviction Hearing Act).

In response, the People argue that defendant cannot meet his burden to show ineffective assistance based on the trial record given unanswered questions in the record and the presumption that counsel performed competently, especially given that defendant has not pointed to any potential source of new evidence outside the record.  Moreover, there may have been probable cause to arrest defendant for other crimes, such as aggravated assault of his girlfriend (who submitted a complaint), and the hot pursuit exception or exigent circumstances might also have justified the entry.  With regard to the alternative argument, the People assert that defendant is not entitled to additional opportunities to raise his meritless ineffective assistance claim.  In particular, the People argue that the court may not use its supervisory power to circumvent the terms of the Act.  Further, the People contend that there are no grounds for remanding the matter for an evidentiary hearing, and, in any event, defendant forfeited any right to such a hearing.

On Thursday, November 7, 2019, Judith Resnick, Arthur Liman Professor of Law at Yale Law School, will present her program, "The Invention and the Fragility of Democratic Courts."  In this program, Professor Resnik will use imagery and data to track the impact of democratic values on courts. Historically, courts were exclusionary venues.  Only in the twentieth century did courts become committed to treating all persons as equals. Yet democracy has not only changed the courts, it has challenged them as well. Professor Resnik will discuss both the emergence of new roles for federal and state courts and the current decline of the public practices that have been a hallmark of adjudication. 

This program is being presented by the Appellate Lawyers Association, along with its cosponsors the Armenian Bar Association, the Hellenic Bar Association, and the Women's Bar Association.  

Date:  November 7, 2019

Time: 12:00 p.m. to 1:30 p.m.

Location:  Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor, Chicago

MCLE:  1 Hour of MCLE credit.  The ALA is an approved MCLE provider.

Cost:  $40 for public-sector ALA, Armenian Bar Association, Hellenic Bar Association, or WBAI members; $50 for private-sector ALA, Armenian Bar Association, Hellenic Bar Association, or WBAI members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions?  Call (630) 416-1166, ext. 303

Register:

1.     Use our online registration system here to register for the event and also pay with a credit card.  Or, if you prefer, you can register online but send a check for payment.  Please note, credit card payments can only be accepted through the online registration process. 

2.     Mail your completed registration form along with a check payable to ALA to: 

Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, Illinois 60563

Cancellations/Refunds:  Cancellations must be received two business days prior to the event in order to receive a full refund.  No refunds will be processed after this time.  Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418.  Additionally, payment is expected from no-shows.

Chief Judge Diane P. Wood announced that the United States Court of Appeals for the Seventh Circuit will have a Memorial Proceeding for Supreme Court Justice John Paul Stevens on Thursday, December 5, 2019, at 9:30 a.m., in the James B. Parsons Ceremonial Courtroom on the 25th Floor of the Dirksen Federal Building at 219 South Dearborn Street, Chicago, Illinois 60604.

Justice Stevens served as a Circuit Judge for the Seventh Circuit Court of Appeals from 1970 to 1975 and then as the Circuit Justice from 1975 to 2010 while serving on the Supreme Court.

All are welcome to attend.

 By:  Kimberly Glasford

 Depending on who’s asking, plaintiff Elena Chernyakova  claims that Dr. Vinaya Puppala either did or did not act  inappropriately during her hospital stay.  Her contrary  positions ultimately led the appellate court to dismiss her  appeal, impose sanctions against her attorneys and notify  the Attorney Registration and Disciplinary Commission (ARDC) of the court’s decision.  Chernyakova v. Puppala, 2019 IL App (1st) 173066.

Chernyakova filed an action against Dr. Puppala, as well as Northwestern Memorial Hospital and McGaw Medical Center of Northwestern University. She alleged that Dr. Puppala accessed her medical chart and posted her photo on social media without consent.  Subsequently, the circuit court entered summary judgment in favor of the Northwestern defendants. 

During trial on Chernyakova’s claims against Dr. Puppala, they entered into a “confidential” settlement agreement before a different judge.  That judge granted the parties’ request to seal the transcript of the hearing wherein the settlement terms were discussed. 

Chernyakova then appealed from the judgment in favor of the Northwestern defendants, who had since obtained information about the settlement terms. Specifically, they learned that Chernyakova had tendered Dr. Puppala a document admitting that she gave him consent to take her photo. 

At the Northwestern defendants’ request, the circuit court unsealed the settlement transcript.  While the appeal was pending, the circuit court entered an agreed order to supplement the record with the settlement transcript.  That transcript showed that in exchange for $250,000, Chernyakova agreed to write letters to various licensing bodies on Dr. Puppala’s behalf, stating that her prior allegations against him were mistaken.

In the appellate court, the Northwestern defendants moved to dismiss Chernyakova’s appeal and impose sanctions (Ill. S. Ct. R. 375 (eff. Feb 1, 1994)).  Before disposing of that motion, the court noted that the Northwestern defendants relied on certain e-mails that were outside the record and were not verified as required by Illinois Supreme Court Rule 361 (eff. Sept. 25, 2019).  The court disregarded those exhibits.

The appellate court also found that Chernyakova’s response to the motion violated Illinois Appellate Court First District Local Rule 4G (July 1, 2008).  The rule states that “in responding to a motion, the party filing the response should not include in the response a new motion or request for its own relief.”  Chernyakova’s response improperly asked the court to reconsider its earlier denial of her motion to strike the supplemental record.

The appellate court dismissed Chernyakova’s appeal and imposed sanctions under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994), which allows a reviewing court to impose sanctions for an appeal or other action taken in bad faith.  The court ordered Chernyakova’s counsel to pay $15,000 in attorney fees and costs to the Northwestern defendants.

In reaching this decision, the reviewing court clarified that the confidential nature of the settlement agreement evaporated when Chernyakova and Dr. Puppala described the settlement terms before the circuit court and the court reporter.  Additionally, while evidence of settlement negotiations is inadmissible to prove liability (Ill. R. Evid. 408(a) (eff. Sept. 25, 2019)), such evidence was nonetheless admissible to prove bad faith.  

The reviewing court acknowledged that it was ordinarily limited to considering matters contained in the record before the circuit court.  But the reviewing court’s obligation to do substantial justice and maintain confidence in the legal system required the court to consider events that occurred after summary judgment was entered in this instance.

The reviewing court found that Chernyakova agreed to state that her recollection concerning Dr. Puppala’s conduct and her lack of consent was mistaken.  “These representations diametrically contradict the factual allegations in her complaint, especially as they relate to the direct and vicarious liability claims made against [the Northwestern] defendants[.]” Chernyakova, 2019 IL App (1st) 173066, ¶ 27. Consequently, the appeal was not “reasonably well grounded in fact.” Ill. S. Ct. R. 375 (eff. Feb. 1, 1994). 

Moreover, Chernyakova’s attorneys were surely aware that her representations were inconsistent.  By urging the reviewing court to consider her appeal, counsel showed a “total lack of respect for the appellate process,” “a disregard for the truth seeking process,” and a failure “to adhere to the standards of professional conduct.”  Chernyakova, 2019 IL App (1st) 173066, ¶ 30.

Finally, the reviewing court directed the clerk of the appellate court to forward its decision to the ARDC due to the conduct of Joel Brodsky, one of Chernyakova’s attorneys.  Brodsky had attempted to prevent the court reporter from giving the Northwestern defendants a copy of the settlement transcript and, while this appeal was pending, the Illinois Supreme Court had suspended his license to practice law.

The Chernyakova decision touches on several important rules of appellate practice, including motion practice in the appellate court.  Above all, however, it serves as a warning not to mislead the appellate court.

The Chicago Bar Association & The Chicago Bar Foundation will provide programs from October 21 - 25 for Pro Bono Week.

To learn more or register for the events, visit https://chicagobarfoundation.org/probonoweek/

The Northern District of Illinois Court Historical Association and Chicago-Kent College of Law are sponsoring "A Symposium to Commemorate the Bicentennial of the Federal District Court in Chicago" on Friday, October 11, 2019, from 9 a.m. to 3:15 p.m. The symposium will examine the issues and cases that have shaped 200 years of justice in the federal court in Chicago. Panels will address Radicalism on Trial; Housing, Schools, and Race; and Policing.

Chicago-Kent College of Law
Marovitz Courtroom
565 W. Adams
Chicago, Illinois

4 hours of Illinois General MCLE

Course provider: Chicago-Kent College of Law

Free and open to the public. 

The registration page for the event can be found here.

By:  Carson Griffis*

A recent decision by the Illinois Appellate Court, First District, clarifies that a timely post-judgment motion that has been stricken by the circuit court does not toll the time to file a notice of appeal even if the same post-judgment motion is refiled with a new notice of motion and ultimately ruled on.  Rather, to toll the time to appeal, the order striking the post-judgment motion must be vacated and the court must rule on the original, timely motion. 

In Joseph v. Evergreen Motors, Inc., 2019 IL App (1st) 180360, the circuit court granted the defendants' motion for summary judgment.  The plaintiff filed a motion to reconsider that decision, but the circuit court struck the motion to reconsider because the plaintiff did not provide the court with a courtesy copy of the motion.  More than 30 days after the court had granted the summary judgment motion, the plaintiff refiled the same motion to reconsider with a new notice of motion.  The circuit court denied the refiled motion to reconsider, and the plaintiff filed a notice of appeal within 30 days of that denial.

The appellate court held that it lacked jurisdiction to consider the plaintiff's appeal.  It first noted that, under Illinois Supreme Court Rule 303(a)(1), a post-judgment motion filed within 30 days of a final judgment will toll the time for filing a notice of appeal until the circuit court disposes of that motion.  But, the court explained, this rule did not apply because the circuit court had stricken the plaintiff's timely motion to reconsider.  The plaintiff's refiled motion, even though it was accompanied by a new notice of motion, was untimely and thus did not toll the time to appeal under Rule 303(a)(1).  The plaintiff should have asked the circuit court to vacate its order striking her motion to reconsider and rule on the merits of the original, timely motion.  Until the order striking the motion had been vacated, the notice of motion had no effect because no timely motion to reconsider was pending. 

*Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.