By: Leah Bendik

The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following criminal cases are scheduled for argument this Term:

People v. Aaron Jackson   No. 124112   January 14

People v. Jasper McLaurin     No. 124563  January 14

People v. Charles Hill   No. 124595   January 14 

People v. Rory John Swenson  No. 124688  January 14

Below is a summary for one of these cases, People v. Charles Hill. 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. Charles Hill

In May 2017, police pulled over defendant when they thought his passenger matched the description of a wanted fugitive.  It was not the fugitive.  But the officer smelled raw cannabis.  A search of the car found crack cocaine.  Defendant moved to suppress.  The trial court granted suppression on the basis that the stop was not justified because the officer had no corroborating evidence that the passenger was the fugitive.  The State appealed, and the appellate court held that the stop and subsequent search were justified. 

By:  Dodie O'Keefe

As the new year arrives, practitioners and judges must pay heed to changes in the law concerning special interrogatories under section 2-1108 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1108). Previously, the statute required special interrogatories that were in proper form to be submitted to the jury if any party so requested. The trial court’s submission or refusal to submit a special interrogatory was reviewed under the de novo standard. And, where the jury’s answer to a special interrogatory was inconsistent with the general verdict, the former controlled the latter. 

In trials beginning on or after January 1, 2020, parties may still request special interrogatories, but whether to submit them will lie within the discretion of the trial court. Thus, “[s]ubmitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion.” Notably, the statute will also allow parties to explain to the jury the result of a special finding that is inconsistent with the general verdict. To that end, if a special finding is inconsistent with the general verdict, then the trial court must “direct the jury to further consider its answers and verdict.” If the jury is still unable to render a compatible verdict, then the court must order a new trial. 

With that in mind, let us hope these changes bring resolution to this notoriously challenging area of law in the new year.

 By: Linda Boachie-Ansah

  In the movie Forrest Gump, the protagonist observed that,  “life was like a box of  chocolates; you never know what  you’re going to get.” Clarisha Benson and Lorenzo Smith,  plaintiffs in Benson v. Fannie May Confections Brands, Inc., No.  19-1032, 2019 WL 6698082 (7th Cir. Dec. 9, 2019), can attest to that observation. Benson and Smith bought boxes of chocolate from Fannie May stores in Chicago, Illinois. To their displeasure, upon opening the boxes, plaintiffs found less chocolate than they were expecting. Benson and Smith filed a lawsuit against Fannie May on behalf of themselves and a putative class under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), see 815 ILCS  505/1 et seq. Plaintiffs also brought claims of unjust enrichment and breach of implied contract.

According to plaintiffs, Fannie May’s boxes contained unnecessary space that misled consumers into thinking that they would receive more chocolate than they actually would. Had they known there was so much empty space in the boxes, plaintiffs claimed that they would not have purchased the chocolate. Fannie May moved to dismiss the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted its motion, reasoning that plaintiffs had not sufficiently pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), see 21 U.S.C. § 301 et seq., and that the FDCA preempted plaintiffs’ claims under Illinois law.

On appeal, the Seventh Circuit noted that preemption is an affirmative defense. Defendant bears the burden of proving an affirmative defense. Thus, the court held that it was improper for the district court to punish plaintiffs for “failing to anticipate an affirmative defense in [the] complaint and dismissing the action based on FDCA preemption.”

Turning to their claim under the ICFA, the court noted that to prevail, plaintiffs had to plead that (1) the defendant committed a deceptive or unfair act with the intent that others rely on the deception; (2) the act occurred in the course of trade or commerce; and (3) the act caused actual damages. In this case, the outside of the box revealed both the net weight and number of pieces of chocolate inside the box. Nonetheless, the court credited plaintiffs’ assertion that they and other reasonable consumers “attach importance to the size of [the] package.” Overall, the court found that plaintiffs adequately pleaded that Fannie May committed both deceptive and acts.

But plaintiffs also had to show that the deceptive or unfair act caused them to suffer actual damages. And here, where plaintiffs never alleged that the chocolates were worth less than what they paid for them, or that they could have gotten a better price from another company, the court ruled that they could not show a pecuniary loss. The court therefore concluded that plaintiffs’ claim under the ICFA was properly dismissed on the pleadings.

On the remaining claims, the court of appeals found that “there is no stand-alone claim for unjust enrichment” under Illinois law. Thus, plaintiffs’ failure to state a claim under the ICFA necessarily meant that they could not state a claim for unjust enrichment. Plaintiffs also claimed that Fannie May breached an implied contract. But the court observed that the parties had entered “a straightforward, everyday sales contract in which the buyers selected the chocolate and offered to purchase it at the advertised price, at which point Fannie May accepted by taking the plaintiffs’ money in exchange for possession of the chocolate.” The sales receipts that plaintiffs received at the cash register spelled out the terms of the contract. Finding that Illinois law does not recognize an implied contract under these circumstances, the Seventh Circuit concluded that that part of the case was correctly dismissed.

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.