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"The Brief" - The ALA Blog

  • January 17, 2014 2:24 AM | Anonymous member (Administrator)

    In Zamora v. Montiel, 2013 IL App (2d) 130579, the Illinois Appellate Court held that a notice of appeal must be filed within 30 days of the trial court’s resolution of a motion to reconsider, following a dismissal order with a finding pursuant to Illinois Supreme Court Rule 304(a), even though the trial court had already granted the defendants leave to file a third-party action. The reviewing court emphasized that the third-party claim, though allowed to be filed at the time of reconsideration, had not been filed until more than 30 days had passed after the trial court's denial of the motion to reconsider.

    The case involved a complex procedural history. On August 31, 2009, the plaintiff filed a complaint sounding in negligence against certain defendants, including the “Payne defendants.” Id. ¶ 3. On March 24, 2010, the trial court dismissed the plaintiff’s complaint with respect to the Payne defendants, while including a finding of finality and appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Zamora, 2013 Il App (2d) 130579, ¶ 3. On April 23, 2010, the plaintiff filed a timely motion to reconsider the March 24, 2010, dismissal order. However, on June 29, 2010, and while the plaintiff's motion to reconsider was still pending, the trial court granted the defendants leave to file a third-party complaint for contribution. Id.

    On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider. Id. Although the trial court had granted the defendants leave, no third-party complaint had yet been filed. On August 25, 2010, more than 30 days since the trial court denied the plaintiff's motion to reconsider, the defendants filed their third-party claim. Id. On July 11, 2012, the trial court dismissed the third-party contribution claim. Also on that date, the plaintiff requested a “new” Rule 304(a) finding with respect to the trial court's earlier March 24, 2010, dismissal order. The trial court entered that finding. Id.

    On July 24, 2012, the plaintiff filed a notice of appeal from the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider. However, on December 12, 2012, the Appellate Court dismissed the plaintiff’s initial appeal for lack of jurisdiction. Id.

    On December 28, 2012, the plaintiff returned to the trial court and sought a “renewal” of the March 24, 2010, Rule 304(a) finding, but on March 20, 2013, the trial court denied that motion. Id. On May 14, 2013, the trial court dismissed all remaining causes of action directed against all defendants. On June 5, 2013, the plaintiff filed a notice of appeal seeking reversal of both the March 24, 2010, dismissal order, and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding. Id.

    The defendants moved to dismiss the appeal. The defendants contended that, after the trial court entered its July 7, 2010, order denying the plaintiff's motion to reconsider, the plaintiff had 30 days to appeal from the trial court's March 24, 2010, dismissal order that contained a Rule 304(a) finding. Id. ¶ 5. The plaintiff countered that on June 29, 2010, when the trial court granted the defendants leave to file their third-party complaint, “the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of the plaintiff’s claim against the defendants, was rendered ineffective.” Id.

    The court in Zamora first undertook a discussion of appealability pursuant to Rule 304(a), concluding that, once a court has made a Rule 304(a) finding, it is unnecessary for the court to make another such finding when it denies a timely motion to reconsider. Id. ¶ 6 (citing McCorry v. Gooneratne, 332 Ill. App. 3d 935, 941 (2002)). This is because, the Zamora court noted, the denial of a motion to reconsider is not a judgment and is not appealable in itself. Zamora, 2013 IL App (2d) 130579, ¶ 6.

    Citing Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the Zamora court was “reluctant to attach jurisdictional significance to the fact the Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion to reconsider.” Zamora, 2013 IL App (2d) 130579, ¶12. Any other determination, the court reasoned, would result in a “cumbersome rule of procedure indeed,” and the reviewing court asked a series of hypothetical questions to highlight the ambiguity such a ruling could create. Id. ¶ 13.

    The court in Zamora thus decided to adhere to a simple rule: merely obtaining leave to file a claim did not trigger the need for a new Rule 304(a) finding. Id. Relying on the plain language of Rule 304(a) that " 'an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims,' " the court held the Rule contemplated additional claims must actually be pending at the time of the finding. (Emphasis in original.) Id. (quoting Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).

    In closing, the reviewing court recognized that, "on some rare occasions," allowing a party to proceed with an appeal after another party seeks leave to add a claim might itself result in a piecemeal appeal being taken. Zamora, 2013 IL App (2d) 130579, ¶15. Nonetheless, the court in Zamora noted, "it is equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a) finding with every change in circumstances." Id.

    Recommended Citation: Robert G. Black, A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding, The Brief, (January 17, 2014),

  • January 14, 2014 6:22 AM | Anonymous member (Administrator)

    In BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, the Illinois Appellate Court, in reversing a summary judgment order in favor of the defendants, clarified the rule that a dismissal for want of prosecution does not constitute a final order or an adjudication on the merits because a plaintiff has the absolute right to refile the action against the same party and to reallege the same causes of action pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2008)). In Tandon, the plaintiff mortgagee’s successor by merger filed a five-count complaint against the defendants, the mortgagor and guarantor of a promissory note. Tandon, 2013 IL App (1st) 113152, ¶ 1. Plaintiff subsequently voluntarily dismissed count I (the mortgage foreclosure claim) without prejudice in 2006. Id. ¶ 5. Because the remainder of the case was essentially a breach of contract action, the case was transferred to the Law Division. Id. In February 2008, the trial court entered its fourth order dismissing the remaining counts for want of prosecution (the “DWP Order”). Id. ¶ 6. Unlike the previous orders, the fourth DWP order was never vacated. Id.

    Within one year of the DWP Order, plaintiff filed a new action as permitted by section 13-217, which repeated two of the previously dismissed counts verbatim except for the interest amounts. Id. ¶ 7. Plaintiff did not refile the foreclosure claim (count I of the original action). Id. ¶ 7. Defendants moved for summary judgment on the grounds that res judicata barred the second lawsuit. Id. ¶ 8. The trial court granted the motion, holding as a matter of law that the order voluntarily dismissing count I without prejudice in the first action became final and appealable when the DWP order was not vacated within 30 days, even though plaintiff timely refiled the action under section 13-217. Id. ¶ 10. Therefore, the DWP order was a final judgment as to count I sufficient to bar the second action under res judicata and the rule against claim-splitting as articulated in the oft-cited Illinois Supreme Court decisions of Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).

    Reversing the trial court, the appellate court held that the 2006 order in which plaintiff nonsuited count I without prejudice “is not a final order because it does not terminate the litigation between the parties on the merits. Plaintiff voluntarily decided not to further pursue count I … after discovery revealed the cause of action to be ill-founded.” Tandon, 2013 IL App (1st) 113152, ¶3. The order was “not an involuntary dismissal based on an infirmity in plaintiff’s case, but a voluntary dismissal based on section 2-1009 of the Code” and “the intended voluntary act of plaintiff.” Id. ¶¶ 3, 27. Likewise, the DWP Order dismissing the remaining counts “was not a final order because it did not terminate the litigation between the parties on the merits.” Id. ¶¶ 3, 29. The appellate court went on to hold that plaintiff’s proper and timely statutory refiling of the second action under section 13-217 “did not alter the [2006] order’s interlocutory nature,” particularly when the refiled action did not contain the dismissed foreclosure count. Id. ¶¶ 3, 30. Citing to a handful of Supreme Court and appellate court decisions dating back to 1982, the appellate court reiterated the rule that an order dismissing a case for want of prosecution “only becomes a final order after the one-year right to refile expires.” Id. ¶ 30. Therefore, the reviewing court concluded that neither res judicata nor the rule against claim-splitting was implicated.

    Recommended Citation: Katherine A. Grosh, Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled, The Brief, (January 14, 2014),

  • January 11, 2014 5:33 AM | Anonymous member (Administrator)

    Failing to properly preserve an evidentiary objection before a lower court may result in that objection being waived on appeal. Thus, a thorough understanding of the waiver doctrine is essential for trial and appellate practitioners alike. In Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156, the Appellate Court provided a by-the-book application of the waiver doctrine in the context of preserving a challenge to the admissibility of expert testimony.

    In Sheth, the reviewing court considered cross appeals brought by the parties to a legal slugfest over a variety of claims, including breach of contract and fraud, arising from the parties' dealings in used machinery. Id. ¶¶ 1-2. Following a trial in which a jury decided certain claims and the court ruled on others, the First District scrutinized the judgment entered on the jury's verdict and a number of the trial court's rulings, including the dismissal of certain counts on the pleadings. All withstood challenge, with the exception of the trial court's denial of the defendants' request for prejudgment interest; the plaintiff's liability for fraudulent misrepresentation entitled the defendants to an interest award. Id. ¶¶ 2-3.

    With respect to waiver, the defendants did not succeed in persuading the appellate panel to consider whether the trial court had botched its rulings in admitting the testimony of an expert witness for the plaintiff as to subjects including foreign regulations and the existence of an oral agreement. The defendants contended that these issues were beyond the expertise of the witness and were not properly the subject of opinion testimony. Id. ¶ 109. Although the defense had presented and lost a motion in limine raising these issues, they failed to renew the objections when the expert witness testified. Id. ¶ 112. Instead, the defendants objected at trial only to the foundation of the expert's testimony. Therefore, the evidentiary challenges raised in the defendants' pretrial motion in limine were waived for appellate review. Id. In addition, the defendants' foundation objection raised during trial was also waived because the defendants failed to raise that objection in a posttrial motion. Id. 

    The analysis in Sheth is clear: a contemporaneous objection to the foundation of the expert witness's testimony did not preserve evidentiary objections to the testimony raised in a pretrial motion in limine. To preserve the objections, a party should raise the evidentiary objections again at trial and in a posttrial motion. Id. ¶¶ 111-12. Notably, the appellate court shut the door without an alternative analysis on the merits, which frequently follows a waiver ruling.

    Recommended Citation: Karen Kies DeGrand, Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony, The Brief, (January 11, 2014),

  • January 10, 2014 7:11 PM | Anonymous member (Administrator)

    Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

    Illinois Supreme Court Rule 138 governs personal identity information. On December 24, 2013, the state's high court amended the rule in various respects.

    The amendment removed language from subsection (a)(2), which had provided that the rule would not apply to petitions filed pursuant to section 11a-8 of the Probate Act of 1975 (755 ILCS 5/11a-8 (West 2012)). The amendment added language to subsection (d). That subsection now provides that personal identity information properly filed under subsection (c) shall be available to government agencies, legal aid agencies, bar associations, and pro bono groups; and litigants may prepare documentation to financial institutions "and other entities or persons which require such documents." The amendment further added language to subsection (e) providing that, if a clerk becomes aware of noncompliance with the rule, he or she may bring it to the court's attention. However, a court shall not order a clerk to review documents or exhibits for compliance with the rule.

    The bulk of the amendment affects subsection (c), which specifies what information can be included in a redacted filing. Effective January 1, 2014, such redacted information may include the year of an individual's birth date and a minor's initials.

    Importantly, the procedure for filing redacted personal identity information, as originally provided in subsection (c), has been expanded. Where personal identity information is required, a litigant shall file the document in redacted form and separately file the personal identity information in a protected form. The committee comment for subsection (c) provides an appended form titled "Notice of Personal Indentity Information Within Court Filing." The committee comment clarifies that "[T]he filing of a separate document without redaction is not necessary or required because the personal identity information will be available to authorized persons by referring to the 'Notice of Personal Identity Information Within Court Filing' form."

    Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rule 138, The Brief, (January 10, 2014),

  • December 12, 2013 7:21 AM | Anonymous member (Administrator)

    The Association recently had the privilege of cosponsoring a luncheon honoring Chief Justice Rita B. Garman of the Illinois Supreme Court. The other hosts of the event were the Chicago Bar Association, the Illinois State Bar Association, and the Women's Bar Association of Illinois. Judges and attorneys alike came together to celebrate Garman's legendary career, which began as an assistant State's Attorney in a central Illinois county courthouse and culminated in her recent appointment as the state's most-senior jurist.

    Chicago Bar Association president and past ALA president J. Timothy Eaton welcomed the guests, which included distinguished members from both the federal and state judiciary, and many of Chief Justice Garman's colleagues on the Illinois Supreme Court. Following lunch, Paula H. Holderman, president of the Illinois State Bar Association, Steven F. Pflaum, vice president of the ALA; Michelle M. Kohut, president of the Women's Bar Association of Illinois; and Eaton provided remarks. Vice President Pflaum discussed the unique role of the chief justice in the Illinois judiciary and remarked that, long after her tenure has ended, scholars will continue to study the initiatives put forth by the Garman court.

    Thereafter, the Honorable Benjamin K. Miller, who served on the state's high court from 1984 to 2001, and as chief justice from 1991 to 1994, introduced Chief Justice Garman. Justice Miller discussed Garman's remarkable career, which included being the first women to serve as an assistant State's Attorney in Vermilion County; the first woman to serve as an associate and circuit court judge in the Fifth Judicial Circuit; the first woman to serve as a justice in the Fourth Appellate Court District; and the first woman to serve on the Illinois Supreme Court from downstate Illinois.

    Chief Justice Garman opened her remarks by thanking the various bar associations and a number of guests in attendance, including her husband. The Chief Justice noted that, while she does not have a specific agenda, she has certain priorities that she will emphasize during her tenure. These priorities include promoting civility, ensuring that courts promptly resolve disputes, increasing legal education programs for practitioners and the public, incorporating new technology into the judicial process, and transparency. Chief Justice Garman noted that new technology - such as cameras in the courtroom - can help to increase transparency to the public, but that alone is not enough. Chief Justice Garman encouraged attorneys to be proactive in discussing the legal system within their communities by, for example, writing letters to the editor in local news publications.

    The ALA congratulates Chief Justice Garman on her appointment and looks forward to helping to implement her vision for the Illinois courts.

  • December 09, 2013 4:36 PM | Anonymous member (Administrator)

    Consistent with the ALA's goal of promoting appellate seminars throughout the state, the Association recently co-hosted a seminar with the Peoria County Bar Association at the Spalding Pastoral Center in Peoria. Held on November 4, 2013, the event began with ALA President Brad Elward welcoming the attendees and introducing the speakers. The speakers included Justice William E. Holdridge of the Illinois Appellate Court, Third District, and Michael Scodro, Illinois Solicitor General and ALA Secretary.

    Scodro, who recently argued before the United States Supreme Court, presented a discussion on preparing for oral argument. Scodro gave advice on various techniques, including analyzing case law, how to organize an argument, and the advantages of having a moot court. Thereafter, Justice Holdridge provided his insights on oral argument from the bench’s perspective. Justice Holdridge discussed the court's views on oral argument and went through a list of tips that ranged from when to arrive at the court and how to answer questions posed by the justices.

    The seminar also featured a panel discussion consisting of Justice Holdridge, Scodro, and past ALA president Craig Unrath. Natalie Thompson, an ALA and PCBA member, moderated this discussion. The audience was given the opportunity to question the panel members on their views regarding oral argument practice.  

    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.

  • December 09, 2013 4:35 PM | Anonymous member (Administrator)

    For almost two years now, the Illinois Supreme Court has been implementing its e-filing initiative. On October 21, 2013, the Association presented a luncheon program in Chicago that focused on updates to the e-filing system. The program featured Illinois Appellate Court Justice Ann B. Jorgensen (Second District); Clerk of the Illinois Supreme Court Carolyn Taft Grosboll; and Chief Deputy Clerk Melissa Roth.

    Justice Jorgensen updated the members and guests with the e-filing program in the counties. Deputy Clerk Roth also provided a live e-filing demonstration. Clerk Grosboll addressed the Association by discussing a brief history on the position of the Illinois Supreme Court Clerk and the operations of the Supreme Court Clerk’s office. Grosboll noted that her father was the last elected Clerk of the Supreme Court and served from 1968 to 1975. Clell Woods was the first appointed Clerk, and Juleann Hornyak served the office for more than 28 years before her retirement. Grosboll has been the Clerk since January 2011.

    In addition to tracking the Court’s case filings, Grosboll’s office maintains the master roll of attorneys, processes the licensing of all attorneys in Illinois, and oversees the registration of the law firms doing business in Illinois.

    With respect to the e-business initiative in the courts, Grosboll explained that the Supreme Court began the e-filing pilot project in January 2012. After the pilot program was successful, the Court expanded e-filing of all cases on the Court’s general and MR dockets. Grosboll noted that, since the Clerk’s office began the program, it has successfully e-filed approximately 1,200 documents. The Clerk’s office is also in the process of creating a new case management system for all of the Illinois courts of review. Grosboll anticipated that the new system will go live in March 2015 in the Supreme Court, and the entire process will be completed in 2016.

  • December 09, 2013 4:35 PM | Anonymous member (Administrator)

    For the second consecutive year, the Association co-sponsored an appellate practice seminar with Southern Illinois University School of Law. Held on October 23, 2013, the afternoon seminar followed a morning session of oral argument of the Illinois Appellate Court of Illinois, Fifth District, at the law school in Carbondale.  

    The seminar focused on "Professionalism and Appellate Practice." SIU School of Law Dean Cynthia Fountaine began the seminar with comments on the challenges faced by the profession. A panel discussion on ethics immediately followed. Past ALA president Bill Hardy, of Hinshaw & Culbertson, L.L.P., moderated a panel that gave perspectives from the appellate court, the circuit court, and the Attorney Registration and Disciplinary Commission. Justice Richard P. Goldenhersh of the Illinois Appellate Court, Fifth District; Judge Christy W. Solverson of the First Judicial Circuit Court; and Peter Rotskoff, Chief of Litigation & Professional Education for the ARDC, participated in the panel discussion.

    Thereafter, past ALA President J. Timothy Eaton, who currently serves as president of the Chicago Bar Association, lectured on "Tips on Appellate Practice: From the Notice of Appeal to Petition for Rehearing." The seminar concluded with a judicial panel discussion on appellate practice. ALA President Brad Elward, of Heyl, Royster, Voelker & Allen, P.C., moderated the panel.  Justices Judy Cates, Melissa A. Chapman, and Bruce D. Stewart of the Illinois Appellate Court of Illinois, Fifth District, served on the panel along with the Clerk of the Court John J. Flood.
  • December 09, 2013 4:37 AM | Anonymous member (Administrator)

    On December 2, 2013, the Association sponsored the "Illinois Supreme Court Criminal Law Update" brown bag luncheon. The event offered guests an opportunity to gain insight and hear colorful commentary on recent developments in criminal law from justices on the Illinois Appellate Court and experienced appellate practitioners.

    Justice Daniel L. Schmidt answers a question during the Illinois Supreme Court Criminal Law Update brown bag luncheon held in Chicago.

    ALA President Brad Elward welcomed guests and thanked Jenner & Block for hosting the event. President Elward then turned to ALA Secretary and Illinois Solicitor General Michael Scodro, who moderated the panel. Scodro introduced the distinguished panel, which included Justice Patrick J. Quinn of the Illinois Appellate Court, First District; Justice Daniel L. Schmidt of the Illinois Appellate Court, Third District, and Patricia Unsinn, Deputy Illinois Appellate Defender. 

    The panel discussed a range of issues related to criminal law, including the second amendment, double jeopardy, mandatory life sentences for juveniles, searches and seizures under the fourth amendment, direct criminal contempt, and corpus delecti. The panel discussed developments related to double jeopardy in light of the United States Supreme Court's holding in Evans v. Michigan, 133 S. Ct. 1069 (2013), that a midtrial acquittal resulting from a trial court erroneously adding an additional statutory element resulted in jeopardy attaching. The panel also discussed People v. Martinez, 2013 IL 113475, where the court held that jeopardy did not attach when charges against the defendant were dismissed after a directed verdict finding where the State presented no evidence against the defendant to support a conviction.  With respect to direct criminal contempt, Justice Quinn discussed  People v. Geiger, 2012 IL 11318, where the Illinois Supreme Court reversed the appellate court's determination to uphold the imposition of a 20-year sentence on a defendant who refused to testify as a State's witness during a murder trial. Justice Schmidt, who was on the appellate court panel, graciously shared his thoughts while offering witty commentary resulting from his years serving as a police officer in Peoria. 

    The ALA thanks the panel members for an insightful and detailed discussion. 

    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.
  • December 09, 2013 4:36 AM | Anonymous member (Administrator)

    Each year, the Association gathers during the first weekend in November to host its annual moot court competition. The competition furthers the ALA's tradition of fostering and encouraging the highest professional and ethical standards in appellate advocacy by providing law students an opportunity to write an appellate brief and to present oral arguments before distinguished reviewing court jurists and appellate practitioners.  

    A participant addresses the bench during the Association's annual moot court competition.

    This year's competition kicked off on Friday, November 1st at the Dirksen federal building in Chicago. As in the past, the competition drew teams from Texas to New York, as well as from many local schools. During the preliminary rounds, participants presented oral arguments before ALA members, who served as judges. After the preliminary rounds, Sidley Austin LLP generously hosted a reception. Association President Brad Elward provided welcoming remarks while ALA members and participants mingled over cocktails and hor d'oeuvres. Thereafter, the moot court committee announced the teams advancing to the semi final round.

    The competition continued the next day, in which Florida Coastal School of Law bested Benjamin N. Cardozo in the final round. Justice William E. Holdridge of the Illinois Appellate Court, Third District, presided over the final bench.  Justice Donald Hudson of the Illinois Appellate Court, Second District, and Illinois Solicitor General and ALA Secretary Michael Scodro joined Justice Holdridge.

    Justice William E. Holdridge presiding over the final argument.

    The problem asked the participants to argue, from both the appellant's and appellee's perspective, a complex problem involving the federal Computer Fraud and Abuse Act. Specifically, the issue involved whether an employee acted “without authorization” when he accessed confidential and proprietary business information from his employer’s computer that he had permission to access, but then used that information in a manner inconsistent with the employer’s interests, and where the employee intended to use the information in that manner at the time of access. Participants also argued whether the electronic discovery costs were recoverable by the prevailing party under Rule 54(d)(1) of the Federal Rules of Civil Procedure, when those costs included electronic data storage, extracting metadata, hard-drive imaging, file conversion, and other e-discovery.

    The ALA congratulates all students who participated in the program; and thanks the Appellate Court justices and ALA members who served as judges, the competition's sponsors, and the moot court committee for another successful competition.

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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