Tag Archives: Final Order

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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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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