"The Brief" - The ALA Blog

  • October 28, 2019 8:08 PM | Carson Griffis (Administrator)

     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.

  • October 18, 2019 10:11 AM | Louis Manetti (Administrator)

    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/

  • October 08, 2019 3:08 PM | Louis Manetti (Administrator)

    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.

  • September 24, 2019 8:17 PM | Carson Griffis (Administrator)

    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.

  • September 11, 2019 9:44 AM | Carson Griffis (Administrator)

    Congratulations to Justice Anne Burke, who was selected to serve as the next Chief Justice of the Illinois Supreme Court. Her three-year term will begin on October 26, 2019. Justice Burke will be the fifth woman to currently lead a branch of the Illinois judiciary, joining Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit, Chief Judge Rebecca Pallmeyer of the U.S. District Court for the Northern District of Illinois, Chief Judge Sarah Darrow of the U.S. District Court for the Central District of Illinois, and Chief Judge Nancy Rosenstengel of the U.S. District Court for the Southern District of Illinois.

    Justice Burke has served on the Illinois Supreme Court since 2006.  She is the third woman to ever sit on the state's highest court.  From 1995 to 2006, she served as a Justice of the Illinois Appellate Court, First District.  Before that, she served as a Judge to the Court of Claims, as special counsel for Child Welfare Services under Governor Jim Edgar, and as a solo practitioner.  Before embarking on her legal career, Justice Burke worked with mentally disabled children as a physical education teacher with the Chicago Park District and founded the Chicago Special Olympics, which later grew into the International Special Olympics.  Justice Burke is an active member of the American, Illinois State, Chicago, and Women's Bar Associations, and The Illinois Judges' Association.

    The Illinois Supreme Court's order announcing Justice Burke's selection may be found here.

  • September 04, 2019 8:06 PM | Carson Griffis (Administrator)

    Effective October 1, 2019, Justice Melissa A. Chapman of the Illinois Appellate Court, Fifth District, will be retiring from the bench.  Justice Chapman has served on the Appellate Court since 2001.

    Justice Chapman was born in Granite City, Illinois.  She received her bachelor's and master's degrees from Southern Illinois University-Edwardsville, and worked as a mental health counselor for five years before attending law school.

    Justice Chapman earned her Juris Doctor from St. Louis University.   Before her appointment to the Appellate Court, she practiced law for 18 years as a partner in the firm of Morris B. Chapman & Associates, Ltd., in Granite City, where her practice focused on personal injury litigation.   Along with serving on the bench, Justice Chapman served on the Attorney Registration and Disciplinary Commission Review Board from 1998 to 2001 and has served as a member of the Illinois Pattern Jury Instructions Committee-Civil since 1995. 

    The Illinois Supreme Court has appointed Retired Circuit Judge Milton S. Wharton to fill the vacancy left by Justice Chapman's retirement.  Judge Wharton served as an associate judge in St. Clair County from 1976 until his retirement in 2012.  Before serving on the bench, Judge Wharton worked in the St. Clair County Public Defender's Office.  Judge Wharton also founded the Court Appointed Special Advocates of Southwestern Illinois, a nonprofit that advocates for the best interests of abused and neglected children.

  • August 30, 2019 3:12 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s September Term begins Tuesday, September 10, 2019, with oral arguments scheduled for September 10, 11, 12, 17, 18, and 19. A total of 19 cases will be heard – 5 criminal and 14 civil. The following criminal cases are scheduled for argument this Term:

    September 10

    People v. Muhammad Abdullah, No. 123492

    People v. Ashanti Lusby, No. 124046

    People v. Vivian Brown, No. 124100

    People v. Quentin Bates, No. 124143

    September 18

    People v. Conrad Morger, No. 123643  (Godfrey, IL)

    Below is a summary for one of these cases, People v. Vivian Brown. 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. Vivian Brown

    Law enforcement responded to a call from defendant's husband reporting that defendant had fired a gun in their home.  Upon arrival, police found a rifle beside defendant's bed but no evidence that she had fired the gun in the home.  Because defendant did not have a Firearm Owner's Identification card (FOID card), she was charged with possession of a firearm without a FOID card.  According to defendant, she was eligible for a FOID card at the time of her arrest.

    This case is a direct appeal from the order of the White County Circuit Court that declared section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1)) unconstitutional on its face and as applied under the Second Amendment.  The court found two bases for striking the statute.  First, the court held that requiring defendant to fill out a form, provide a picture ID, and pay a $10 fee to obtain a FOID card was an as-applied unconstitutional burden on her Second Amendment rights.  Second, the court found that compliance with the FOID Card Act was impossible within one’s own home, rendering it facially unconstitutional as to those with guns in their homes.

    Before the Illinois Supreme Court, the People first argue that the FOID Card Act is not an impermissible burden on the right to possess firearms in one's home.  Second, the People assert that the circuit court erred by declaring the provision unconstitutional as applied to defendant based on facts other than those in her case.  More specifically, the circuit court had raised two hypothetical scenarios (regarding constructive firearm possession in households with multiple residents) to justify the second basis for its order, neither of which describes defendant's circumstances.

    Defendant argued that the circuit court correctly found that the FOID Card Act violates defendant's rights under the Illinois Constitution and that the People waived any argument to the contrary.  Defendant also asserted that the circuit court's two findings were correct.

    An amicus brief was filed in support of each party.  The Giffords Law Center to Prevent Gun Violence supported the People; supporting defendant was a collection of gun rights groups, professors, and two state's attorneys.

  • August 29, 2019 9:14 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s September Term begins Tuesday, September 10, 2019, with oral arguments scheduled for September 10, 11, 12, 17, 18, and 19. A total of 19 cases will be heard – 5 criminal and 14 civil. The following civil cases are scheduled for argument this Term:

    September 11

    The Robert R. McCormick Foundation v. Arthur J. Gallagher Investment Management Services, No. 123936

    Lakewood Nursing & Rehabilitation Center, LLC v. The Illinois Department of Public Health, No. 124019

    Horsehead Corp. v. Illinois Department of Revenue and Illinois Independent Tax Tribunal, No. 124155

    September 12

    Ammons v. Canadian National Railroad Co., No. 124283

    Andrews v. Metropolitan Water Reclamation District of Greater Chicago, No. 124283

    September 17

    Iwan Ries & Co. v. City of Chicago, No. 124469  

    Rushton v. Illinois Department of Corrections, No. 124552  

    Sanders v. Illinois Department of Corrections, No. 124565  

    Hernandez  v. Lifeline Ambulance, LLC, No. 124610

    September 18

    Dew-Becker v. Wu, No. 124472  

    September 19

    Raab v. Frank, No. 124641

    Zamuido v. Ochoa, No. 124676

    Crim v. Dietrich, No. 124318

    Yakich v. Aulds, No. 123667

    Below is a summary for one of these cases, Crim v. Dietrich. 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.

    Crim v. Dietrich

    This case presents a question of first impression regarding whether an appellate court’s reversal of a partial directed verdict resurrects claims that were tried to a jury but not subject to a post-trial motion or pursued on appeal. 

    Plaintiffs filed suit against Defendant alleging two claims related to the delivery of a child: (1) failure to obtain informed consent, and (2) professional negligence.  The case proceeded to a jury trial.  At the close of the Plaintiffs’ case, Defendant moved for a partial directed verdict on the issue of informed consent.  The circuit court granted the motion and entered a partial directed verdict as to that claim.  The remaining professional negligence claim went to the jury, which ultimately returned a verdict for the Defendant.  Plaintiffs did not file a post-trial motion, but they did file an appeal.  In their brief on appeal, Plaintiffs limited the scope of the appeal to the partial directed verdict on the informed consent claim and did not raise any arguments challenging the jury’s verdict on the professional negligence claim. 

    The Illinois Appellate Court’s opinion, 2016 IL App (4th) 150843 (“Crim I”), was limited to the informed consent issue.  The Illinois Appellate Court, Fourth District reversed and remanded to the circuit court “for such other proceedings as required by order of this court.” 

    On remand, Defendant filed a motion in limine to preclude Plaintiffs from raising issues related to the professional negligence claim because, according to Defendant, that issue was never appealed.  Plaintiffs, however, argued that the reversal on the informed consent claim changed the tenor of the trial such that both the lack of informed consent and professional negligence claims should go to the jury.  The circuit court denied Defendant’s motion in limine, but certified a question for interlocutory appeal to determine whether the Fourth District’s original reversal and remand for a new trial required a trial de novo on all of Plaintiffs’ claims.  The Fourth District issued an order concluding that, because the mandate and opinion in Crim I used general language, “the entire judgment was abrogated and the trial court is to proceed as if hearing the case for the first time.”  The Fourth District instructed the circuit court “to return to that moment in the trial when that judgment was entered” and “proceed as if no trial had taken place.”

    In its petition for leave to appeal, Defendant argues that the new trial should be limited to the only issue the Plaintiffs appealed in Crim I—the informed consent claim.  The Fourth District’s holding, Defendant maintained, violated the general rule that failure to file a post-trial motion following a jury trial prevents review of the jury’s verdict.  Furthermore, the Fourth District’s mandate in Crim I reversing and remanding the “order on appeal” could not have encompassed the jury verdict because the only order on appeal was the trial court’s directed verdict on the informed consent claim.  The mandate, therefore, could not have revived the professional negligence claim.  Rather, once the 30-day deadline for filing post-trial motions passed, Defendant argued, the jury’s verdict on the professional negligence claim became a final judgment. 

    In their answer, Plaintiffs contend that their notice of appeal encompassed not only the directed verdict, but also all subsequent rulings by the circuit court such that Plaintiffs’ appeal additionally included the jury verdict. Plaintiffs also argue that the Fourth District correctly concluded that the mandate in the original appeal remanded the entire case back to the circuit court as if no trial had occurred, thereby requiring a second trial on Plaintiffs’ professional negligence claim.

  • August 23, 2019 3:05 PM | Carson Griffis (Administrator)

    By Nate Nieman

    Walter Wells was convicted of aggravated criminal sexual assault and aggravated battery in a public place and was sentenced to three years in prison. Wells appealed, arguing that the evidence was insufficient to convict him and that the Sex Offender Registration Act (SORA) violated his rights to substantive and procedural due process.

    In People v. Wells, 2019 IL App (1st) 163247, the First District Appellate Court determined that the evidence was sufficient to convict Wells. Wells also argued that “the broad SORA regulations and restrictions imposed on him as a result of his conviction for a sexual offense violate his substantive due process rights and are facially unconstitutional.”

    However, before reaching this issue, the court had to consider whether it had jurisdiction to review this issue after the State argued that “a defendant cannot raise a constitutional challenge to SORA on direct appeal from the criminal conviction that triggered application of SORA” after the Illinois Supreme Court’s decision in People v. Bingham, 2018 IL 122008.

    Bingham involved a defendant’s challenge to SORA registration that was triggered by a felony theft conviction. The Bingham court held “because the requirement to register under SORA was not encompassed within the trial court’s judgment of guilt on the theft conviction or any order of the trial court in that proceeding, the defendant’s constitutional challenge did not ask the reviewing court to take action available to it under [Ill. S. Ct. R.] 615(b).”

    The Bingham court reasoned that “‘[a]llowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by the state agencies and officials that are not parties to the action.’” Such challenges to SORA could, however, be brought in civil suits or on direct appeal from convictions resulting from violating SORA requirements.

    Finding that Wells’ obligation to register under SORA was a collateral consequence of his conviction that was not embodied in the trial court’s judgment, the court applied Bingham and held that it did not have jurisdiction to consider Wells’ constitutional challenges to SORA. 


  • August 13, 2019 8:37 PM | Carson Griffis (Administrator)

    Lawyers-Lend-A-Hand to Youth, an organization that channels the legal community's resources to promote mentoring and tutoring programs in disadvantaged Chicago communities, is seeking volunteer tutors for its one-on-one tutoring program. The program meets on Tuesdays from 5:30 p.m. to 7:00 p.m. at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois. Tutors will assist children from Chicago's Englewood neighborhood become better readers. Orientation will be held on September 3 and 10.

    For more information, contact Jenna Meyers at (312) 554-2053 or email jmeyers@lawyerslendahand.org.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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