Category Archives: Civil Procedure

Betts v. City of Chicago – Trial court was too restrictive on discovery allowed to plaintiff to respond to motion to dismiss

Betts v. City of Chicago, 2013 IL App (1st) 123653 (McBride)

Facts:  Plaintiff was injured in her parked car when an undercover police officer backed into her vehicle while he was trying to pull out of his parking space while on duty in an undercover surveillance.  Defendant presented a motion to dismiss on the basis that section 2-202 of the Tort Immunity Act immunized the officer from a negligence suit because he was in the execution and enforcement of the law at the time of the collision.  Defendant produced an affidavit that merely concluded that the officer was on duty and “in the scope of his duties” at the time of the incident.  The plaintiff requested a limited discovery deposition to develop facts detailing what the officer was actually doing at the time of the occurrence, but the trial court denied the request and instead permitted 5 interrogatories to be submitted to the defendant.  The defendants answers to interrogatories described his activity as conducting surveillance pursuant to a narcotics investigation but, as plaintiff argued, were equivocal and unclear on the specific activities that were underway to determine whether it met threshold for execution and enforcement of the law. The trial court granted defendant’s motion to dismiss based solely upon the affidavit and answers to interrogatories and plaintiff appeals.

Holding:  Trial court lacked sufficient facts to support defendant’s claim that officer was engaged in the execution and enforcement of the law at the time of the accident and plaintiff was entitled to additional discovery to determine whether the Tort Immunity Act applied.

Filed in Trial Book Under:  Tort Immunity – Section 2-202, Execution and Enforcement of Law, Affidavit, SCR 191, 735 ILCS 5/2-619

Commentary:  Although it does not reach any conclusions relating to the facts present in this case, the opinion has a pretty good summary of cases interpreting the law on execution and enforcement of the law.  Not everything that an officer does while on duty is worthy of immunity and the appellate court needs sufficient facts to make a determination of whether the immunity applies or not.  The affidavit provided by the defendant was conclusory in nature and therefore violated SCR 191 and was not considered.  The interrogatory answers provided were equivocal and the appellate court was not able to determine exactly what the officer was doing at the time he backed his vehicle up so they reversed the trial courts dismissal and remanded the case for further development of facts on the issue.  Clearly, a deposition would be the easiest way to ferret out this issue and I’m not sure why the trial court was reluctant to permit it to go forward in the first place.  I have never had a judge not permit a deposition of an affiant on a motion to dismiss, but in the event that happens some time in the future this will be a good case to provide to the court to try to convince them to reconsider.

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Settlement Funding, LLC v. Brenston – Appellate Court Determines Transfer of Structured Settlement Obtained by Fraud Upon the Court and Reverses Transfers

Settlement Funding, LLC v. Brenston, 2013 IL App (4th) 120869 (Cates)

Facts: In 1999, Cathy Brenston obtained a settlement in a medical negligence case that was set up with a structured component wherein she would receive monthly payments over a period of time.  The written settlement agreement contained a provision where claimant (Brenston) “acknowledges that the periodic payments could not be accelerated, deferred, increased or decreased” nor could she have “the power to sell, mortgage, encumber or anticipate the Periodic Payments by assignment.”  The defendant in the medical malpractice case executed two uniform qualified assignments to accomplish the periodic payments, one to Allstate and another to GE.  Each of the qualified assignments contained language that Cathy Brenston was not the owner of the annuity contract, instead she was the secured party, and had no right to sell or assign the contract.

In 2007, Cathy Brenston entered into an agreement with Settlement Funding, LLC whereby she assigned her interest in each of the annuity contracts for a lump sum payment, which not surprisingly were significantly lower than the present cash value of each of the contracts. Settlement Funding, LLC presented petitions to the trial court to have the transfer orders approved pursuant to the provisions of the Structured Settlement Protection Act.  Notably absent from each of the petitions was an expression to the trial court that there were anti-assignment provisions in the annuity contracts and the attachments to the petition did not include copies of any of the documents that would provide the trial court with that information.  The trial court granted the petitions and entered orders permitting the transfers to Settlement Funding, LLC on March 31, 2008 and April 10, 2008.

On October 28, 2011, Cathy Brenston filed a 2-1401 petition to vacate the orders entered in 2008 and declare them void because the Structured Settlement Protection Act and the anti-assignment clauses in the settlement agreement and qualified assignments prevented the trial court from exercising jurisdiction. Settlement Funding moved to dismiss the petition on the grounds that it was time barred as result of being filed over 2 years after the order was entered, which the trial court granted and dismissed the petitions.  Cathy Brenston appealed the trial court’s denial of her 2-1401 petition.

Holding: Because of the anti-assignment clause in the settlement agreement and annuity contract, the trial court was without authority to approve Settlement Funding, LLC’s petitions under the Structured Settlement Protection Act. Further, the underlying transfer orders were procured by a fraud on the trial court and are void ab initio and therefore are not time-barred by 2-1401.

Filed in Trial Book Under: Structured Settlement Protection Act, Fraud Upon the Court, 735 ILCS 5/2-1401, Judgment – Void Ab Initio

Commentary:  The attorney for Settlement Funding has really gotten himself into some hot water in this case.  The same attorney had handled prior cases where the appellate court established its precedent that anti-assignment clauses would serve to prohibit the trial court from having authority to enter a transfer order.  As a result, this appellate court panel was convinced that the attorney deliberately excluded documents that would reveal to the trial court that there had been such language in the original settlement agreements and found an outright fraud upon the court.  Because the orders were obtained by fraud, they were void ab initio and could be attacked at any time and the trial courts dismissal of the 2-1401 petition was reversed.  This is an equitable result, particularly because the appellate court has ordered that a hearing be held to restore the plaintiff to her original position, less the money she received so that there is no windfall.  It’s too bad that we permit these types of companies to exist.  They prey on the poor and unsophisticated for a profit that is simply unconscionable.

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Kilburg v. Mohiuddin – First District Reverses Trial Court on Dismissal of Spoliation of Evidence Claim

Kilburg v. Mohiuddin, 2013 IL App (1st) 113408 (Palmer)

Facts:  Plaintiff was seriously injured while riding as a passenger in a taxi cab that slammed into a tree.  The cab driver claimed shortly after the collision that there was a “sudden acceleration” of the vehicle. The cab was first towed by the police to the Chicago auto pound and then towed from the pound to a lot operated by a company affiliated with the taxi company.  The vehicle was equipped with an event data recorder that should be able to rule in or out a sudden acceleration that could potentially serve as the basis for a products liability claim so the Plaintiff’s attorneys sent a preservation letter to the taxi driver, the owner of the vehicle and “Checker Taxi Company, Inc” three (3) days after the collision on October 9, 2009.  Then on October 15, 2009, the plaintiff filed a complaint against those three defendants and then had an order of protection entered by the court on October 17, 2009 directing those three defendants to preserve the taxi cab.  “Checker Taxi Company, Inc” was a non-existent entity; the involved taxi cab company was Wolley d/b/a Checker Taxi Affiliation, Inc.  On November 9, 2009, the plaintiff attempted to inspect the vehicle with its consultants and found that the event data recorder was missing.  This gave rise to the complaint being amended to include a spoliation claim against the defendants.  By the sixth amended complaint, the plaintiff had a spoliation counts against the taxi driver, the vehicle owner, Wolley and Taxi Medallion, who operated the storage lot, and Taxi Affiliation who paid rent for the storage lot.  The allegations against the corporate entities inferred knowledge of the preservation letter as a result of their relationships with the other defendants, but did not allege that each of these companies received the preservation letter, complaint or order of protection during the probative time period.  The defendants all moved to dismiss the spoliation claims on the basis that there is no duty to preserve evidence.  The trial court granted the motion as to all defendants and plaintiff appealed.

Holding: Trial court erred in dismissing the spoliation counts against the taxi driver and vehicle owner because plaintiff pleaded sufficient facts to support a special circumstance giving rise to a duty to protect the evidence because these defendants had knowledge of the importance of the evidence, were in receipt of the preservation letter, complaint and order of protection.  The corporate defendants were properly dismissed because there were insufficient facts to establish the same special circumstance as to them.

Filed in Trial Book Under:  Spoliation of Evidence; Motion to Dismiss – 2-615

Commentary:  This case is a step in the right direction for spoliation claims.  Under the “relationship” prong the plaintiff must establish an agreement, contract, statute, special circumstance, or voluntary undertaking that gives rise to a duty to preserve the evidence.  There is very rarely an agreement, contract or statute at issue, so the battle lines on most of these cases are seen with claims by the plaintiff that there exists a special circumstance or voluntary undertaking that gives rise to the duty.  The court has rejected the claim that knowledge of the accident and potential importance of certain evidence alone is sufficient to give rise to a special circumstance.  However, that knowledge when coupled with the receipt of the preservation letter and the complaint and the order of protection was sufficient to the appellate court to give rise to a duty as a special circumstance in this case because the plaintiff also alleged that the defendants exercised possession or control over the vehicle during the critical time.  I don’t know if the plaintiff will ultimately have enough facts developed to show when the event recorder went missing such that it fits within the actionable time period, but I certainly hope so.  It’s also too bad that one of the corporate entities was not given the appropriate notice of the need to preserve the evidence such that they could be included in the spoliation count.  Instead, the plaintiff is left with only the driver and owner of the cab.  It seems to me that the notice to “Checker Cab” was simply a misnomer and  would be sufficient to tie in Wolley, similar to a relation back claim on a filed complaint, but this issue was not raised in the opinion so I’m not sure if it was raised or not.  An important take away from this case is to be careful on how you identify corporate entities so that you name the correct party and also be sure to serve anyone and everyone that you can think of that could exercise some control of the vehicle with the preservation letter and the order of protection.  It might have also been a good idea to get an order for immediate access to the vehicle merely to document the existence of the event recorder prior to

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Delatorre v. Safeway Insurance Co. – Sub-Standard Defense Results in Excess Judgment Against Sub-Standard Insurer

Delatorre v. Safeway Insurance Company, 2013 IL App (1st) 120852 (Hyman)

Facts: Plaintiff was injured in a car accident in September 1991 while a passenger in a vehicle.  The driver and passenger of the other vehicle were also injured, resulting in 3 claims against plaintiff’s driver, who carried a policy of insurance with defendant Safeway Insurance Company with limits of $20,000 per person and $40,000 per occurrence.  Like all insurance policies, the Safeway policy required the carrier to defend its insured in the event of a claim or lawsuit brought against its insured.  Plaintiff made a policy demand in December 1991, which was refused by defendant. Plaintiff then filed suit against the driver of his vehicle and after its insured was served Safeway agreed to defend under a reservation of rights and informed its insured that it retained attorney I.R. Strizak to defend the case.  Strizak filed an appearance and answer on December 15, 1992, and then apparently did nothing further. On October 4, 1994, the plaintiff obtained sanctions against the defendant driver for his failure to answer discovery and an order of default was entered by the trial court.  Plaintiff forwarded the default order to Safeway Insurance Company who in return forwarded a copy to Strizak, and then did nothing to follow-up on whether the default was being addressed by Strizak. In November 1995, the plaintiff obtained a default judgment against the driver for $250,000.00.

Concurrently with the personal injury case set forth above, a declaratory judgment action was also pending whereby Safeway claimed that the policy was void as a result of the driver misrepresenting his marital status on his insurance application. The trial court granted summary judgment against Safeway, finding that the carrier was bound by the actual knowledge of its agent who knew that the driver was married at the time the policy was issued. Safeway appealed this ruling and lost its appeal on March 20, 1998.  Several days after the appellate court ruling, Safeway attempted to tender its limits to plaintiff, which was rejected.  Safeway then paid its policy limits to the remaining 2 claimants.  In the meantime, plaintiff received an assignment from the Safeway insured and filed suit against Safeway, which was non-suited and then later re-filed.

Plaintiff brought a 3 count complaint against Safeway: one count for breach of contract, one count for vexatious delay and one count for punitive damages.  The breach of contract count alleged that Safeway breached its duty to defend under the contract when it ignored notice that Strizak was not providing its insured with a meaningful defense and that as a result of the inadequate defense, the insured became subject to a default judgment in the amount of $250,000. Plaintiff moved for summary judgment on count I, which was granted, and then filed a supplemental summary judgment motion on the issue of damages.  Safeway filed a cross motion for summary judgment on the damages, arguing that it had exhausted its limits and could not contractually be liable in excess of the limits. The trial court granted plaintiff’s motion and denied defendant’s cross motion and entered judgment against the defendant in the amount of $250,000.

Holding:  “An insurer’s promise to defend entitles the insured to expect that its insurer will retain an attorney who will in fact take action to defend the insured in the face of a default order. The insurer’s duty, after all, is to defend, not merely to provide representation, and is an ongoing duty throughout litigation.”

Filed in Trial Book Under: Insurance Coverage, Duty to Defend

Commentary: One word that will come to mind for many in the plaintiffs bar when reading this opinion is “karma.”  Safeway has ruffled some feathers over the years and I suspect that many attorneys in Chicago and beyond are rejoicing over the result in this case.  Oddly, Safeway may also be one of the victims here because the conduct of the attorney retained to defend the case is really inexcusable.  Although you’ll be hard pressed to find anyone crying for the injustice done to Safeway here, at the end of the day, it would appear that they have a pretty strong malpractice case against Strizak for the handling of the underlying case and they might not be left holding the bag after all, assuming, of course, that the statute of limitations has not tolled on this very old case.  Schadenfreude aside, I think that the appellate court got it right by holding the insurance carrier responsible for its complete failure of oversight in the defense of the case.  The duty to defend is not met simply by hiring an attorney and then burying your head in the sand.  I can understand that the carrier has a right to assume that the attorney they have hired is going to do their job and actually defend the case, but this only flies up to a certain point.  Over the three years between Strizak being retained and the default judgment being entered Safeway received no billing statements from him and he received no payments from them.  This should have raised some red flags and triggered some type of inquiry on the part of the carrier to see what was going on with the defense.  More importantly, the carrier had actual notice that something very unusual had occurred when the plaintiff’s attorney sent them a copy of the default order based upon discovery sanctions.  You would think that the adjustor managing the claim would pick up the phone and find out why the court had taken such a drastic measure.  Still, over one year went by between the initial order of the default and the $250,000 judgment being entered on the default and there was absolutely no inquiry into the status of the defense whatsoever.  This is not fair to the insured and it simply does not meet the obligation of the carrier to defend him.

Another interesting part of the case was the attempted tender of the policy by the carrier after they lost the appeal on their declaratory judgment action. The time to settle the case was when the plaintiff made the initial demand. I think that many insurance carrier’s assume that they can get out of most binds simply by tendering their policy limits.  In many cases, this is probably true, but here, the plaintiff had the resolve to pursue the case fully and was rewarded with a judgment that is over 20 times the policy limits.  It’s cases like these that can serve to change the more indifferent practices of a carrier and the plaintiff’s attorneys that worked on this case should be commended for sticking to their guns and rejecting the late tender of the policy limits.

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Filed under Civil Procedure, Insurance Coverage

Flores v. Santiago – Trial Court Erred in Dismissing Complaint Alleging Sexual Assault by Plaintiff’s Physician

Flores v. Santiago, 2013 IL App (1st) 122454 (Delort)

Facts:  Plaintiff was a patient of the defendant doctor who provided treatment for her eyes.  During early office visits, the defendant would flirt with the plaintiff and a sexual relationship between the two developed.  The plaintiff suffered from an underlying drug problem and alleged that the defendant would entice her to participate in sexual acts with the offer of illegal drugs, including marijuana, hash hish and cocaine.  The plaintiff filed suit alleging one count of battery and one count of a violation of the Illinois Gender Violence Act.  The Defendant moved to dismiss the complaint pursuant to 2-615 on the basis that plaintiff failed to allege sufficient facts to show that the contact was non-consensual.  The trial court granted that motion and permitted the plaintiff to re-plead.  Plaintiff filed an amended complaint alleging the same causes of action but with additional facts plead alleging that the defendant was aware of plaintiff’s susceptibility to drug abuse and that his providing drugs to her caused her to relapse back into dependency and permitted him to control her actions.  In short, due to her overriding desire for drugs she was incapable of consent.  The trial court granted the defendant’s 2-615 motion to dismiss the amended complaint and plaintiff appealed.

Holding:  Plaintiff’s amended complaint stated a valid cause of action for both battery and a violation of the Illinois Gender Violence Act and trial court abused its discretion in dismissing the amended complaint.

Filed in Trial Book Under:  Illinois Gender Violence Act, Battery, Sexual Assault, Physician and Patient – Improper Sexual Relationship; 2-615 Motion to Dismiss

Commentary:  Sex and drugs and optometry! The facts in this case are certainly salacious and interesting.  I like cases where I learn about a statutory based cause of action that I’d not been aware of before.  It seems from the opinion that anytime you have a battery in a sexual context, there would be this statutory cause of action as well.  This isn’t the type of case that comes up very often, if ever, but it’s impressive when a plaintiff’s attorney thinks outside of the box and is willing to bring a cause of action that lots of attorneys would simply take a pass.  It has clearly offensive conduct by the defendant but difficult to determine damages for the plaintiff.  It will be interesting to see what happens as this case winds its way back through the trial court.

 

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Stoelting v. Betzelos – Trial Court Reversed for 2-622 Dismissal on Basis That It Incorrectly Believed it Had No Discretion to Allow Plaintiff Additional Time to File Affidavit

Stoelting v. Betzelos, 2013 IL App (2d) 120651 (Schostock)

Facts:  Plaintiff filed a medical malpractice claim against her dentist with an expert’s report attached to the complaint setting forth his opinion that the defendant was negligent but not the attorneys affidavit required by 735 ILCS 5/2-622.  Defendant moved to dismiss the complaint for plaintiff’s failure to comply with 2-622 and further that there was no good faith showing to establish cause for the failure to attach an attorney affidavit.  Plaintiff responded that she attempted in good faith to comply with the Code because her attorney signed the complaint and that if the court should find the signature on the complaint was insufficient then she should be given leave to file an attorney affidavit.  At the initial hearing, the plaintiff’s attorney did not appear, apparently because he was in a different room attending to another matter, and the motion to dismiss was granted.  At a later hearing, the plaintiff’s attorney argued that the trial court should vacate the dismissal order and permit the plaintiff to file an attorney affidavit or dismiss the complaint without prejudice such that plaintiff could refile within one year.  The trial court determined that it did not have the authority to grant any additional extensions because the 90 day period set forth in the Code had already expired and dismissed the complaint with prejudice.  Plaintiff appealed.

Holding:  The trial court incorrectly determined that it had no discretion to grant any additional extensions for plaintiff to file an attorney affidavit and therefore the dismissal with prejudice on that basis was improper.  Reversed and remanded for the trial court to determine any good cause for failure to file an attorney affidavit.

Filed in Trial Book Under:  Medical Malpractice – Affidavit; 735 ILCS 5/2-622

Commentary:  Unfortunately, the plaintiff’s attorney created a predicament here that was unnecessary.  The hard part of the case, i.e. obtaining the expert’s report, was already done, and it was just the pro forma attorneys affidavit that needed to be filed.  Cases involving 2-622 affidavits usually involve the failure to attach an experts report, not filing the expert’s report and not the corresponding attorneys affidavit.  If the failure to file the affidavit was inadvertent where the attorney simply did not notice that it wasn’t included with the materials filed, it probably would not be a problem, particularly given the appellate court’s analysis in this case that the language contained in the code does not mandate dismissal and gives the court discretion with regards to dismissing with or without prejudice.  However, this attorney took an approach where he argued that he was not required to attach an affidavit because he signed the complaint, which indicates a deliberate action on his part to not include the affidavit.  6-222(a)(1) is pretty clear that a medical malpractice complaint is to include the expert’s report and an attorneys affidavit, so the attorney was mistaken in this belief.  It will be interesting to see what the trial court does with this case on remand.  Hopefully, there will be a “no harm, no foul” approach and the case will be permitted to continue.  The important part of 2-622 is that an expert verify that the complaint has merit.  That was done here so it would be a shame to see this case get dismissed with prejudice solely on the basis that the attorney failed to attach the pro forma attorneys affidavit.

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Filed under Civil Procedure, Medical Malpractice

Hernandez v. Pritkin – Defendant Failed to Prove Application of Res Judicata to Plaintiff’s Claim as a Result of a Failure to Obtain a Definitive Ruling on Prior Motion to Dismiss

Hernandez v. Pritkin, 2012 IL 113054 (Karmeier)

Facts:  Plaintiff developed Parkinson’s disease as a result of his exposure to chemicals at his workplace where he was employed from 1968 to 1995.  He was initially represented by a law firm, Spencer & Lentz, from 1995 to 1996 who brought a social security disability claim on his behalf.  This firm did not discuss with him any potential third party claims for liability for his injuries and did not file any on his behalf.  In 1999, he met with the defendant attorneys, Bernstein & Grazian, who represented him from 1999 to 2002 and filed a workers compensation claim on his behalf alleging that he had “been exposed to chemicals” and that the nature of his injury was “to be proven.”  This firm also did not discuss with him any potential third party claims for liability for his injuries and did not file any on his behalf, nor did they discuss with him the potential that his prior attorneys had failed to file any viable claims for his injuries.  In 2004, he retained new attorneys who filed a third party action against several companies claimed to have been responsible for the manufacture and sale of chemicals contributing to his injury.  Despite plaintiff claiming that he had not discovered the potential third party actions until 2004, the circuit court dismissed the claim as time-barred, resulting in plaintiff brining a legal malpractice claim in 2005 against his former attorneys, Bernstein & Grazian, for failing to advise plaintiff of potential claims against parties other than the employer, failing to file such a claim and failing to advise plaintiff to obtain other counsel to file such a claim.

In the legal malpractice claim, the defendants moved to dismiss on the basis that the statute of limitations for any claim against the manufacturers had already expired prior to their involvement in the claim.  At the hearing on this motion to dismiss, Judge Suriano commented that he believed that statute of limitations had begun to toll no later than 1995 when the plaintiff ended his employment and therefore the defendant’s motion was granted.  Plaintiff’s counsel conceded that based upon the current allegations in the complaint the statute of limitations had expired, but asked Judge Suriano for leave to file an amended complaint to add the allegation that defendants were liable for failing to file a legal malpractice claim against the prior firm for its failure to file against the manufacturers, which Judge Suriano granted.  The amended complaint retained the allegations that the defendants were negligent for failing to advise and file suit against the manufacturers and added an allegation that they were further negligent for not filing suit for legal malpractice against the initial firm and contained numerous details designed to establish that the discovery of the claim for plaintiff was not time barred.  Defendant filed a motion to dismiss asserting that the first 3 basis of negligence had already been time-barred and dismissed by Judge Suriano, and that the fourth basis of negligence should be dismissed because it was time barred by Judge Suriano’s 1995 reference in the prior motion to dismiss and also the initial firm had no duty to file any claims other than the social security claim.  At the hearing on this motion, Judge Budzinski cut off a discussion regarding the application of the 1995 discovery date and instead said that she was focusing solely on the duty argument.  Her written order from that hearing merely stated that: “Defendant’s Motion to Dismiss the Amended Complaint is denied.”  The case then continued and there was no effort by the defendant’s to clarify the written orders of the circuit court.  The defendants answered the plaintiffs amended complaint with a reference to Judge Suriano’s order and language that “to the extent the allegations within this paragraph are deemed to remain despite the dismissal in the aforesaid order, defendant’s deny the allegations contained therein.”  At some point later, the plaintiff voluntarily dismissed the case and then re-filed it within one-year.

Defendant’s moved to dismiss the refiled case on the basis that the entire action was time barred by the doctrine of res judicata and the prohibition against claim splitting espoused by the Supreme Court in Rein v. David A. Noyes, 172 Ill.2d 325 (1996) and Hudson v. City of Chicago, 228 Ill.2d 462 (2008).  At the hearing on this motion, the circuit court, Judge Lawrence, ruled that res judicata and the prohibition against claim splitting applied and dismissed the cause of action.  Plaintiff appealed and the First District reversed and remanded on the basis that the August order entered by Judge Suriano was not a final order because it acted only to bar certain allegations in support of the legal negligence theory and not the entire negligence claim.

Holding:  Defendant’s failed to establish that a final order was entered relating to the motion to dismiss sufficient to apply the doctrine of res judicata to the re-filed complaint.

Filed in Trial Book Under:  Final Order, Interlocutory Order, Res Judicata

Commentary:  The moral of the story here is to obtain a definitive ruling on your motions.  The Supreme Court in this opinion states “where the nature of the ruling may be determinative, a movant has the responsibility to obtain a definitive ruling.”  After the initial motion was granted, but without prejudice and with leave to re-plead, the defendant needed to get a clearer order entered on the second motion to dismiss by Judge Budzinski.  It appears from her comment that she was not going to re-consider Judge Suriano’s ruling that her ruling was only focused upon the fourth bases of liability, but her written order was broad and merely stated that the motion to dismiss was denied.  This left the entire complaint standing, with three ‘zombie counts’ that had been previously dismissed but resurrected in the amended complaint and the new count relating to the failure to file a legal malpractice claim.  It was incumbent upon the defendant at that time to seek a clarification on Judge Budzinski’s order, rather than answer with the hedged qualifications quoted in the opinion.  At the end of the day, the defendants are likely going to prevail on this case based upon the statute of limitations argument, but in order for them to rely upon res judicata there had to be a more definitive order dismissing the prior claims. Another aspect of this opinion that is important and potentially useful is its re-pronouncment of the Balciunas case and the law relating to a judges ability to revisit an interlocutory ruling of their own or a fellow judge.  I think that judges are very reluctant to review or consider a predecessor judge’s rulings, but this opinion reiterates the principal that the judge has a responsibility to protect the record and if something that occurred prior to their involvement is unclear or wrong then they must be willing to the appropriate action.

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