Articles Posted in Appellate Procedure

The U.S. Court of Appeals for the 7th Circuit in Chicago has found an Illinois resident did not establish the minimum state contacts for a case to be heard in the U.S. District Court for the Northern District of Illinois in Chicago.

William Kipp purchased a ski ticket at Devil’s Head Ski Resort in Merrimac, Wis., on Jan. 6, 2012. As Kipp was attempting to board the ski lift, the speed of the lift caused him to be thrown from the chair. He suffered a left clavicle, collar bone fracture.

Kipp sued Ski Enterprise, the lift operator, claiming that the lift’s operating speed was the too fast and that the operator was negligent, causing his injuries.

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It has long been law in Illinois that, “a judgment against two or more defendants, whether in contract or tort, was indivisible, and could neither be vacated by a trial court or reversed by a reviewing court as to one defendant alone, even though it was not erroneous as to the others, “ Chmielewski v. Marich, 2 Ill.2d 568 (1954).

In this wrongful death case, Carolina Casualty Insurance Co. (CCIC) argued it was justified in dropping the estate of Joseph Sperl and Thomas Sanders as defendants in a Will County interpleader case.

CCIC covered $1 million in liability coverage to Dragon Fly Express and DeAn Henry, who were claimed to have caused the car crash that killed Sperl and Sanders, seriously injured William Taluc and injured several others. There was also a significant amount of property damage as a result of this collision.

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A federal judge has denied Wisconsin Supreme Court Justice Shirley Abrahamson an injunction that would have restored her to the chief justice post she lost after a referendum in April 2015.

U.S. District Judge James Peterson ruled that there was no irreparable harm in keeping Justice Patience Roggensack in the chief justice post while Abrahamson’s legal challenge in federal court continues. He added that he sees no signs of Roggensack making any wholesale changes to the court’s functions as chief justice.

Abrahamson had requested a temporary restraining order that would have blocked a constitutional amendment leading to her demotion.

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Cynthia DeCornmier suffered serious injuries when she fell from her motorcycle on a motorcycle training course. Before the beginning of the training course, DeCornmier signed a release of all claims that may have resulted from or arising out of her participation in the training course. The release document stated in bold letters that it covered all claims she may have, including without limitation, all claims resulting from the negligence of those involved in the course.

In spite of the release that was signed in advance of the motorcycle training course, she filed a lawsuit against Harley-Davidson and Gateway Harvey-Davidson alleging that they were negligent and reckless by directing her to perform motorcycle maneuvers on a range that was icy and slippery. In the lawsuit, DeCornmier maintained that the liability release document that she signed in advance was unenforceable against claims of gross negligence or recklessness.

The defendants Harley Davidson and Gateway Harley-Davidson, filed motions for summary judgment, which the trial judge granted dismissing DeCornmier’s case.

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The Illinois Supreme Court has reversed the Illinois Appellate Court in a case centering on an application for legal malpractice insurance. In this case, one of the partners of the law firm of Tuzzolino and Terpinas (T&T) filled out a renewal form for legal malpractice with ISBA Mutual for himself and for the firm. In the application, he was asked whether there were any circumstances that would give rise to an unreported legal malpractice claim. The attorney who filled out the form answered “no.” In fact, a legal malpractice claim had already been brought against one of the firm’s attorneys, Mr. Tuzzolino, but was not yet reported to the firm’s

insurer.

The attorney who filled out the form, Mr. Terpinas, did not sign his name to the form. He claimed to have become aware of the claim against Mr. Tuzzolino about a month later and then reported the claim to ISBA Mutual.

As ISBA was then on notice of the claim and the errant application form, it filed a lawsuit for rescission of the insurance policy in March 2009. There were cross-motions for summary judgment filed and the trial court granted ISBA’s motion for summary judgment. The trial judge found that ISBA was entitled to rescission of the policy in its entirety and that it had no duty to defend Terpinas or the law firm because of the errantly completed form.

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In 1986, Nina Willoughby operated a small business in which she sold retail clothes in a rented store. That year, she and Louis Fideli took out a $315,000 loan and purchased the store with other properties. The store property was kept solely in Fideli’s name. However, in 2003, Willoughby missed several mortgage payments; in 2004, the bank sued and foreclosed on her shop.

Fideli made Willoughby co-owner and then sole owner of the property after which she received a loan of $577,000 from the refinancing. John Heffron helped Willoughby with the transaction. Fideli received no compensation for transferring the property to Willoughby. The property was valued at $1.2 million in a loan application.

In June 2006, Fideli filed a lawsuit against Willoughby claiming that she had promised to repay him 50% interest in the property once she had avoided the foreclosure action. He charged her with unjust enrichment.

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The Illinois Appellate Court has affirmed a defense verdict in a multi-vehicle crash on an icy Indiana highway that caused severe injuries to motorists. The big issue in the case was which state’s law should be applied at a Cook County Circuit Court jury trial.

On Dec. 26, 2007, Clifford Ruse, a truck driver for Harvey, Ill.-based Envirite of Illinois Inc. was driving eastbound on Interstate 80/94 in Hammond, Ind., when he was struck by an SUV whose driver had lost control on a patch of black ice.

Ruse swerved his truck to the left and hit the highway’s median wall. On impact, the container of mill dust in tow was detached from his truck and that container crossed into the westbound lanes of the interstate highway. The plaintiff in the case, Daniel Kovera, was one of several drivers injured when the container landed on their cars. In March 2008, Kovera and his wife filed a lawsuit in the Circuit Court of Cook County, Ill.

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Larry Fabian was hired in 2001 by Cantor Fitzgerald to be a broker at the Chicago Mercantile Exchange. In 2007, he was transferred to BGC, which was a spinoff company of Cantor Fitzgerald.

In 2008, Fabian was named as a partner of “Founding Partner No. 69.” According to Fabian, he earned 100,393 “founding partner units” which could later be converted into common stock of the company.

On March 27, 2009, Fabian quit working for BGC to work for another securities firm. Shortly after leaving BGC, Fabian initiated arbitration before the Chicago Mercantile Exchange where he received $121,758 in commissions that he was owed from Cantor Fitzgerald. This did not include any reimbursement for his “founding partner units.”

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In a recent Illinois Appellate Court case, the issue was whether to deduct attorney fees and litigation expenses from the personal-injury settlement amount or judgment before calculating the 40 percent maximum that hospitals and doctors are entitled to receive as their share of lawsuit proceeds under Illinois’ Health Care Services Lien Act.

In a 2012 5th District Appellate Court decision, that court interpreted the health-care lien act as meaning that “the trial court should have begun its calculations of 40 percent for the lienholders after payment of attorney fees and costs necessary in securing the judgment.” Stanton v. Rea, 2012 IL App (5th) 110187.

However, the Illinois Appellate Court for the 1st District has ruled in a consolidated appeal that involved liens asserted by Cook County’s Stroger Hospital that “a circuit court may not subtract attorney fees and costs from a plaintiff’s recovery before calculating health-care services liens from the resulting subtotal; the calculation of the health-care services lien must be made from plaintiff’s total recovery. To that extent, the 5th District in Stanton suggested otherwise. We disagree.” That quote comes directly out of the text of the decision in the Wolf case discussed below. Justice Margaret Stanton McBride wrote the opinion.

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The general rule in Illinois, under Section 2-610(b) of the Illinois Civil Procedure, “every allegation, except allegations of damages, not explicitly denied is admitted.” In this case, the defendant chose not to file an answer before the start of the trial. The question for the appellate court was: “Are the allegations in the complaint automatically considered as having been admitted based on Section 2-610(b)?” The answer to the question by the Illinois Appellate Court for the 5th District was, “No.” The appellate court concluded that “Section 2-610 of the Code is inapplicable in a situation where there has been no answer filed.”

In this case, Crawford County Oil and LaCross Inc. sued Floyd Weger, Michael Worthy, Paula Worthy and Charlene Cornwell in a downstate Illinois municipality 243 miles south of Chicago. First, the defendants moved to dismiss. When that motion was denied, the defendants requested summary judgment.

The Illinois Supreme Court Rule 181(a) says that when a defendant responds to a complaint by filing a motion and the request is denied; “an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion.”

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