Category Archives: Appeal

Williams v. BNSF Railway Co. – Railroad failed to file its appeal within 30 days of trial court’s oral order denying its post-trial motion

Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901 (Mason)

Facts:  Plaintiff obtains verdict against the defendant and third party defendant in an F.E.L.A. case.  The defendant files a post-trial motion raising 45 different substantive basis as to why the verdict should be overturned or modified and also a 46th point seeking a set-off for taxes that would be paid for future wage loss.  On April 18, 2012, the trial court denied the defendant’s motion on the 45 different substantive bases in an oral ruling but took the “taxation” issue under advisement and indicated it would issue a ruling in the future.  On May 31, 2012, the defendant brought an emergency motion seeking leave to file supplemental authority relating to a remittitur claim that had been previously denied.  The trial court reiterated that the only issue under advisement was the taxation issue but made a comment that it was appropriate for the defendant to bring new case law to the court’s attention.  The trial court asked the parties to come back on June 6, 2012 and at the hearing on that date distinguished the case law that defendant provided and denied the defendant’s motion.  The parties then fought over the wording in the order, with the defendant seeking language that made it appear as if the order related to all aspects of the post-trial motion and the plaintiff seeking the order to reflect a ruling limited only to the disability payment remitittur and taxation issue.  The trial court sided with the plaintiff on the language in the order.  On June 29, 2012, the defendant filed its notice of appeal.

Holding:  The defendant’s request for a set off only serves to satisfy, not modify, the judgment and therefore did not serve to toll the time for filing the notice of appeal on the other grounds of the post-trial motion and because more than 30 days elapsed before the defendant filed it notice of appeal it was not timely and the appeal was properly dismissed.  The fact that the trial court did not issue a written order denying the post trial motions does not make the oral ruling of April 18, 2012 any less final.

Filed in Trial Book Under:  Notice of Appeal, Set-Off, SCR 272, Final and Appealable Order

Commentary:  The defendant’s attorney is likely in hot water with the client over this case.  This was a seven figure verdict and with 45 different grounds for new trial raised in the post-trial motion, the defendant clearly believed that they had a bad trial.  In light of the claimed confusion over the finality of the oral ruling on April 12, 2012, it was incumbent upon the defendant’s attorney to get a clarification relating to the impact of the oral ruling.  The opinion cites the recent case of Hernandez v. Pritikin on the issue that its a movant’s responsibility to obtain a ruling on his motion of he is to avoid forfeiture on appeal.  I’m surprised that on a case of this magnitude that a written order wasn’t required by the trial judge, or at least requested by the defendant’s attorney.  Making a clear and easy to understand record is a good practice to adopt and this case is a great example of the perils of permitting confusion to prevail without asking for clarification.

Useful Rules/Language from the Opinion:

Set-Offs:  “As our supreme court has noted, a request for a setoff seeks to satisfy, not modify, the judgment entered by the trial court. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000)…..Because the request is not a motion directed against the judgment, it is not subject to the 30-day time limit applicable to post-trial motions.” (Emphases in original.) Star Charters, 192 Ill. 2d at 48-49.

Final and Appealable Orders and SCR 272:  “Finally, the fact that the trial court did not issue a written order denying the posttrial motions does not make the oral ruling of April 18 any less final. Illinois Supreme Court Rule 272 provides that if, at the time of announcing final judgment, the judge requires the submission of a written order or if a circuit court rule requires the prevailing party to submit a draft order, the judgment is not final until the signed judgment is filed. Ill. S. Ct. R. 272 (eff. Nov. 1, 1990). However, Rule 272 further provides that if no such signed judgment is to be filed, the judgment is entered at the time it is entered of record.

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Zamora v. Montiel – A Party Merely Obtaining Leave to File a 3rd Party Claim Did Not Trigger the Need for a New SCR 304(a) Finding

Zamora v. Montiel, 2013 IL App (2d) 130579 (Hudson)

Facts:  Plaintiff filed a negligence complaint against defendants Montiel, Newsboy Delivery Systems, Inc. and Unique Distribution (the Employment Defendants) and Cherie and Paul Payne (the Payne defendants).  The Employment defendant moved to dismiss the complaint on the grounds that it was barred by the exclusive remedy provision of the Worker’s Compensation Act and on March 24, 2010 the trial court granted the motion and dismissed the complaint against these defendants and included a 304(a) finding in the dismissal order.  On April 23, 2010, Plaintiff filed a motion to reconsider this order within 30 days.  On June 29, 2010, prior to the hearing on the motion to reconsider, the trial court granted leave to the Payne defendants to file a 3rd party complaint against the Employment defendants.  On July 7, 2010, the trial court denied plaintiff motion to reconsider.  On August 25, 2010, after 30 days had already elapsed since the denial of the motion to reconsider, the Payne defendants filed their 3rd party claims.  On July 11, 2012, more than 2 years after the denial of the motion to reconsider, the trial court dismissed Payne’s 3rd party contribution claim.  Plaintiff requested at this time that the trial court make a new 304(a) finding as to the March 24, 2010 dismissal order, which was granted.  On July 24, 2012, the plaintiff filed a notice of appeal of the March 24, 2010 dismissal order and its related motion to reconsider.  On December 12, 2012, the appellate court dismissed the appeal for lack of jurisdiction.  The plaintiff then moved in the trial court for a “renewal” of the March 24, 2010 304(a) finding which was denied on March 20, 2013.  The trial court then dismissed all remaining causes of action against the Payne defendants on May 24, 2013.  The plaintiff then filed a notice of appeal seeking a reversal of the March 24, 2010 dismissal order and the March 20, 2013 denial of the motion to “review” the previous 304(a) finding.  The Employment defendant moved to dismiss the appeal for lack of jurisdiction.

Holding:  The Plaintiff’s failure to file a notice of appeal within 30 days of the trial court’s resolution of his motion to reconsider the March 24, 2010, dismissal of his claims against the defendant deprives the appellate court of jurisdiction over the appeal.

“We decline to equate obtaining leave to file a claim with actually filing that claim” and “merely obtaining leave to file a claim does not trigger the need for a new 304(a) finding.”

Filed in Trial Book Under:  Appeal; SCR 304(a)

Commentary:  The plaintiff operated under the impression that because the Payne defendants had sought leave to file a 3rd party complaint against the Employment defendants while the motion to reconsider was still pending that it somehow mooted the initial 304(a) finding.  In the time between the denial of the motion to reconsider on July 7, 2010, and the actual filing of the 3rd Party claims on August 25, 2010, the 30 day appeal period elapsed.   Because of the 304(a) language in the initial dismissal order, the appeal needed to be filed by August 7, 2010.  If there is a take away here, it is probably that assumptions are very dangerous.  It doesn’t appear from the recitation of facts in this opinion whether the impact of the Payne defendants seeking leave to 3rd party the employment defendants back into the case was ever addressed with the trial court at the motion to reconsider.  This certainly changed the dimension of the case and could have led to the trial court to reconsider its 304(a) finding.  However, just assuming that the impending 3rd party claims mooted the 304(a) finding without getting an explicit finding from the trial court resulted in the appellate court losing jurisdiction.

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Spears v. Association of Illinois Electric Cooperatives – Appellate Court Refuses to Answer Rule 308 Appeal Because it is Dependent Upon Resolution of Facts and Not a Question of Law

Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289 (Knecht)

Facts:  Plaintiff enrolled in a course for electrical lime maintenance and was injured as she was descending a pole during the pole climbing lessons included in the course.  Prior to the fall, but after she had already enrolled in the course and expended money to purchase equipment, she was presented with an exculpatory release that she signed , but later claimed she had not read or understood its implications.  The defendant raised an affirmative defense based upon the release and the plaintiff moved to strike the affirmative defense on the grounds that the unequal bargaining power between the parties rendered the release unenforceable as a matter of law.  The trial court agreed and granted plaintiff’s motion to strike the affirmative defense.  The defendant moved for an appeal pursuant to Supreme Court Rule 308(a), which was granted and the following certified question was presented to the appellate court: “Does the fact that the Plaintiff was a student at Lincoln Land Community College and the Defendant was the Association of Illinois Electric Cooperatives providing instructional services to community college students in climbing utility poles create an uneven bargaining position thereby militating against the enforcement of th exculpatory release at issue when the economic positions of the parties as well as all other undisputed facts concerning the timing and manner in which such release was presented to Plaintiff by Defendant are taken into consideration?”

Holding:  Since the answer to the certified question would depend upon the resolution of many questions of fact, the Appellate Court declines to answer because Supreme Court Rule 308 only allows the certification of questions of law.

Filed in Trial Book Under:  Supreme Court Rule 308; Exculpatory Releases

Commentary:  For a case that ultimately chooses not to answer the question, the appellate court spent a long time discussing exculpatory clauses in general, and specifically whether or not an exculpatory clause/release could be enforced in the context of an educator/student relationship.  There is currently no Illinois case directly on point at this time, but other states have held that the clauses are unenforceable because they violate public policy.  The crux of the argument is that in the context of education and an educator/student relationship, the bargaining power between the two is weighted unequally and therefore it would be against public policy to permit the enforcement of the exculpatory release.  I like the reasoning there and hope that if this case turns up again on a later appeal that this bright line rule could be set forth in the case law in Illinois.

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Bonhomme v. St. James – Victim of Online Deceit Loses All Her Claims in the Pleading Stage

Bonhomme v. St. James – 2012 IL 112393 (Thomas)

Facts:  The plaintiff, a resident of California, began an on-line relationship with defendant, a resident of Batavia, on an internet chatroom dedicated to the HBO series Deadwood.  The defendant then created another username on the site and posing as a man named Jesse James developed a romantic online relationship with the plaintiff.  Over time, the ruse became more and more elaborate, with the defendant creating approximately 20 fictional online characters that would communicate with the plaintiff and developed friendships with her.  Eventually, the plaintiff had made plans to move in with Jesse James, but when the time came around for the move, the defendant, through one of her fictional online characters, the sister of Jesse James, informed the plaintiff that Jesse had committed suicide.  This news cause plaintiff to go into a depression which manifested itself with several physical symptoms and therapy.  Ultimately, on a trip where the defendant visited the plaintiff at her home in California, the defendant was found out and forced by plaintiff’s friends to confess on videotape.

The plaintiff filed suit against the defendant in Kane County.  The second amended complaint contained 7 counts, including both intentional and negligent infliction of emotional distress, defamation per se and per quod, negligent defamation, fraudulent misrepresentation, and false light.  On defendant’s 2-615 motion to dismiss, the trial court dismissed all of the counts with prejudice expect for the fraudulent misrepresentation count which was dismissed without prejudice.  The plaintiffs subsequent motion to reconsider was denied as well as her later requests for an appeal pursuant to 304(a) and 4 certified questions pursuant to 308.

Plaintiff then withdrew her notice of appeal on the denial of the motion to reconsider and filed a Third Amended Complaint with a single count of fraudulent misrepresentation, which was dismissed with prejudice by the trial court.  Plaintiff appealed both the dismissal of her Third Amended Complaint but also her Second Amended Complaint.  The Appellate Court affirmed the dismissal of the Second Amended Complaint in the grounds that the plaintiff had abandoned those claims by filing a Third Amended Complaint with only one count and not re-alleging or incorporating them somehow into her new complaint.  The Appellate Court then held that Plaintiff had properly alleged a fraudulent misrepresentation count in the Third Amended Complaint.  Both parties appealed to the Supreme Court for review.

Holding:  By filing a Third Amended Complaint with a single count and not re-alleging or incorporating the previously dismissed counts, the Plaintiff effectively abandoned and withdrew those counts and in doing so waived any appellate review of their dismissal.  Also, the tort of fraudulent misrepresentation does not apply to purely personal settings and is limited to a more commercial and transactional context.

Filed in Trial Book Under:  Waiver, Motion to Dismiss – 2-615, Appellate Review, Preserving the Record, Fraudulent Misrepresentation

Commentary:  The underlying facts in this case are very strange and also very sad.  I can’t imagine why someone would put so much effort into screwing with another person’s mind like this.  The facts seem to scream out for a remedy under the infliction of emotional distress theories, particularly an intentional count.  Admittedly, I have not looked at either of those theories in a long, long time (not too many insurers cover the intentional infliction of emotional distress so these claims wouldn’t be the foundation of too many profitable practices), but it seems with the depression and physical symptoms referenced in the facts that there would be some basis for recovery. As for the primary holdings, there are a few practice pointers to take from this case, namely to be sure to properly preserve the dismissal of other counts when you file an amended complaint.  The opinion references a few cases where it’s merely a matter of a simple paragraph or even a footnote in the new complaint that references the prior ruling on the dismissed counts and incorporates them into the new complaint.  It’s too bad that this wasn’t done here because I’d have liked to see this defendant have to defend herself beyond the pleadings stage.

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