The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

When “Undisputed” Evidence Is Not “Conclusive” Evidence

By on Posted in Texas

The Texas Supreme Court’s opinion in Natural Gas Pipeline Company of America v. Justiss highlights a subtle but important point regarding the way appellate courts treat undisputed facts. The case concerned claims by neighboring landowners that a natural gas plant created offensive odors, thus constituting a permanent nuisance. The statute of limitations for permanent nuisance is two years. It was undisputed that the defendant began receiving odor complaints well before two years prior to suit. Nevertheless, the jury selected a date for the accrual of the cause of action that was within the limitations period.

The defendant contended on appeal that the undisputed evidence of prior complaints conclusively demonstrated that any cause of action for permanent nuisance accrued beyond the limitations period. The Supreme Court, however, disagreed. While the jury was not free to disregard the fact that some complaints had been made, it was not forced to draw the conclusion that a cause of action existed at that time. The jury could have determined that the earlier complaints were from hypersensitive persons and that a reasonable person would not have been offended by the odors until less than two years prior to suit. This possible conclusion was bolstered by evidence that the odor conditions had worsened over time.

The Justiss case highlights the need to distinguish between facts concerning discrete events (a complaint occurring on a particular date) and factual conclusions (a reasonable person would have had cause to complain on a particular date). Only when an undisputed fact can lead to a simple valid conclusion is it “conclusive” in a legal sense. In arguing the effect of undisputed facts, the advocate must take the next step and show how only one conclusion may be drawn from it.

Texas Supreme Court Applies Daubert-Type Standards to Lay Testimony

By on Posted in Texas

Texas has long adhered to the “Property Owner Rule,” permitting property owners to testify as to the value of their property. Recent cases have emphasized that the testimony must relate to market value, rather than intrinsic or other value.

In Natural Gas Pipeline Co. of America v. Justiss, the Texas Supreme Court clarified that the Property Owner Rule only serves to relieve the property owner of the need to retain a qualified expert. In effect, each owner is deemed a qualified expert as to his or her own property. Critically, however, all other requirements of admissibility of opinion testimony remain in effect. The property owner must show that the testimony is grounded in the facts of the market and is not speculative or conclusory.

The Supreme Court held that the property owners before it—who were bringing a permanent nuisance suit against a malodorous gas plant—did not adequately explain the factual basis of their testimony regarding reduction in value. Rather than render judgment for the defendant, the Supreme Court remanded the action to the trial court, explaining that its prior case may have misled the property owners into believing their testimony was sufficient.

Many Texas practitioners have assumed that the valuation testimony of a property owner is per se admissible. The Justiss case provides a pointed reminder that even a property owner must show some kind of appropriate methodology to testify about the value of property.

Illinois Supreme Court to Consider If Mailbox Rule Applies to Administrative Appeal From Workers Comp Commission

By Kirk Jenkins on Posted in Illinois

Our preview of the civil cases to be heard by the Illinois Supreme Court during the upcoming January term concludes with Gruszeczka v. The Illinois Workers’ Compensation Commission [pdf]. Gruszeczka poses an important question: does the mailbox rule apply to initiating judicial review of decisions of the Workers’ Compensation Commission?

The claimant in Gruszeczka filed an application for adjustment of claim with the Commission, seeking workers’ comp benefits in connection with an injury he allegedly sustained on the job in 2004. The arbitrator denied the claim, and the Commission unanimously affirmed. The claimant’s attorney received a copy of the Commission’s decision on April 20, 2009.

The claimant sought judicial review, which is initiated in Illinois workers’ comp practice by filing a request for the issuance of summons and an attorney’s affidavit of payment of the probable cost of the record with the Circuit Court clerk. The claimant’s request and affidavit were file stamped by the clerk on May 14, 2009 — twenty-four days after receiving the decision.

The employer moved to dismiss, arguing that the action was filed more than 20 days after counsel received the decision. The claimant responded with an affidavit of his attorney’s office clerk, who testified that she had mailed the request and counsel affidavit on May 4, fourteen days after receiving the decision. The Circuit Court denied the motion to dismiss, but affirmed the Commission’s decision on the merits.

A divided six-Justice panel of the Workers’ Compensation Commission Division of the Appellate Court reversed in part, finding that the Circuit Court lacked jurisdiction over the administrative appeal. The governing provision of the Act provides that a proceeding for judicial review must be "commenced" within 20 days of receipt of notice of the decision. 820 ILCS 305/19(f)(1). The Court acknowledged that the Supreme Court had applied the mailbox rule to the filing of a notice of appeal from the circuit court to the Appellate Court in Harrisburg-Raleigh Airport Authority v. Dept. of Revenue. However, the majority read Harrisburg-Raleigh as a material change — rather than a construction — of a judicial rule. But the jurisdiction of the Circuit Court wasn’t governed by judicial rule, it was governed by a statute — one that the Court had no authority to modify in order to align it with the drift of modern practice. The legislature "certainly knows how to provide" for application of the mailbox rule when it chose to do so, the majority wrote, and the legislature had not done so in Section 19(f)(1).

Justice Bruce D. Stewart dissented. Justice Stewart pointed out that the mailbox rule applied to the final step in a workers’ comp appeal — the filing of a notice of appeal from the Circuit to the Appellate Court — under Harrisburg-Raleigh, and to appeals from the arbitrator to the Commission under Norris v. Industrial Commission. According to Justice Stewart, the majority’s attempt to distinguish Harrisburg-Raleigh was unavailing because the distinction between a statute and Court rule was without a difference, since Court rules are interpreted in Illinois pursuant to the same standards that govern statutes.

Justice William E. Holdridge — the author of Norris — both joined in Justice Stewart’s dissent and filed his own separate dissent. Justice Holdridge concluded that how an action was "commenced" within the meaning of Section 19(f)(1) was ambiguous, and the term should have been interpreted consistently with the mailbox rule set forth in Harrisburg-Raleigh and Norris, as well as other contexts.

Gruszeczka will be argued during the 9:00 a.m. session of the Court on Thursday, January 24th.

Illinois Supreme Court to Consider The Potential Perils of E-Filing a Notice of Appeal

By Kirk Jenkins on Posted in Illinois

We continue our previews of the civil cases scheduled for oral argument during the Illinois Supreme Court’s January term with VC&M, Ltd. v. Andrews.

VC&M arises from a real estate dispute. The defendants were in the process of getting a divorce. They signed a contract with the plaintiff to list their residence. Plaintiff found a buyer, who put in a bid for less than the asking price. Defendants rejected the offer and declined to make a counter offer. Not long after, the wife allegedly informed one of the realtors that the defendants weren’t selling the home after all; the wife would buy out the husband’s interest and continue living there.   A few months after the listing agreement expired, the Circuit Court entered a judgment of divorce with respect to the defendants which incorporated a property settlement. The settlement agreement valued the marital home at $5 more than the rejected offer from the prospective buyer. 

The plaintiff then sued the defendants for breach of contract and account stated. The defendants moved to dismiss the complaint for failure to state a claim, and the Court dismissed.

But VC&M isn’t about real estate or contract law. Rather, it’s about a major issue facing Illinois courts, like cash-strapped judiciary systems around the country: e-filing of pleadings. Courts are turning to e-filing in part in order to eliminate the enormous costs of storing paper pleadings. For example, according to Chief Justice Thomas L. Kilbride, Cook County spent nearly $16 million in 2011 just for storage of Circuit Court documents. The Supreme Court announced statewide e-filing standards for trial courts in October 2012, and five counties have been approved to operate pilot projects.

One of those five counties is DuPage, where VC&M arose. Thirty days after the complaint was dismissed, the plaintiff e-filed a motion for reconsideration. The motion was denied the following month, and thirty days after the denial, the plaintiff e-filed a notice of appeal.

The case was technically eligible to be designated as an e-filing case, but the plaintiff hadn’t taken any of the steps necessary to designate it as an e-filing case before e-filing the all-important motion for reconsideration and notice of appeal. Neither the complaint, amended complaint or answer had been e-filed, and the parties hadn’t stipulated to e-filing. And the Local Rules appeared to bar e-filing appellate documents outright.

The Second District of the Appellate Court dismissed plaintiffs’ appeal for lack of jurisdiction, holding that plaintiffs’ failure to comply with the Local Rules regulating e-filing was fatal. First, since the case had not been appropriately designated an e-filing case, the e-filed motion for reconsideration – although technically timely – was ineffective. Since there was no timely filed motion for reconsideration, the Notice of Appeal was untimely. And since the Notice of Appeal couldn’t properly be e-filed at all, it would have been ineffective even if it had been technically timely.

VC&M will be an interesting opportunity for the Supreme Court, if it chooses, to give further guidance to the bar and the lower courts about the rules governing e-filing of pleadings. The Supreme Court will hear argument during the 9:00 a.m. session on Thursday, January 24.

Illinois Supreme Court Will Hear Five Civil Cases During January Term

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court has posted its docket for the impending January term, and the Court will hear argument in five civil cases.

The civil portion of the Court’s docket begins during the 9:00 a.m. session on Wednesday, January 16 with McFatridge v. Madigan. McFatridge, which we previewed here,involves a dispute between a former State’s Attorney and the State over liability for the plaintiff’s attorneys fees incurred when he was sued for malicious prosecution. The question turns on the interpretation of the Illinois State Employee Indemnification Act. 5 ILCS 350/2(b)

Russell v. SNFA, which will be argued during the 9:00 a.m. session on Wednesday, January 23, raises questions of general and specific jurisdiction over a French-based manufacturer of custom-made aerospace bearings and helicopter tail-rotor bearings. Our preview of Russell is here. Russell presents the Supreme Court with its first opportunity to squarely apply J. McIntyre Machinery, Ltd. v. Nicastro, the United States Supreme Court’s landmark 2011 decision on the limits to jurisdiction over foreign-based manufacturers.

DeHart v. DeHart, which we previewed here, presents interesting issues of both wills & estates law and adoption law. The plaintiff’s challenge to the testamentary capacity is based upon the decedent’s statement in his will that he had no children. Was that sufficient grounds to take the challenge before a jury? The case also involves issues of when a jury may permissibly infer the existence of an enforceable contract to adopt, and whether Illinois should recognize the theory of adoption by equitable estoppel.

We’ll post our previews of the Court’s remaining two civil cases, VC&M, Ltd. v. Andrews and Gruszeczka v. Illinois Workers’ Compensation Commission, both of which will be argued during the 9:00 a.m. session on Thursday, January 24th, shortly.

Marital Property Valued as of Date of Divorce, Not Date of Property Resolution, Holds Divided Illinois Supreme Court

By Kirk Jenkins on Posted in Illinois

Under Illinois law, courts may under certain circumstances enter a judgment of dissolution in a divorce case and wait until later, as part of a bifurcated proceeding, to enter a property distribution judgment. The problem with that is that sometimes the parties’ sense of urgency to get the proceeding over with dims once the marriage has been dissolved. Even worse, if a business (or the economy) is either growing or contracting quickly, one party or another may assume he or she will do better in the property distribution by waiting.

So in such cases, as of what date should courts value the marital property — the date of dissolution, or the date of the trial on the property issues? On Friday morning, a divided Illinois Supreme Court held in In re Marriage of Mathis [pdf] that property is valued on the date of the grounds trial. Our detailed summary of the facts and lower court holdings in Mathis is here. Our report on the oral argument is here.

In Mathis, the husband filed for divorce in November 2000; the judgment of dissolution was entered four months later. But then, a long series of delays followed, and the trial court ultimately set a valuation date for the marital property of December 31, 2010 — nearly ten years after the judgment of dissolution. On the husband’s motion, the trial court certified a question for interlocutory appeal: when there is a "lengthy delay" in a bifurcated divorce between the dissolution trial and the ancillary issues trial, what date governs valuation? The Appellate Court held that the date of trial for the ancillary issues governs.

With Justice Mary Jane Theis writing for a four-Justice majority, the Supreme Court reversed. As we’ve noted in our earlier posts, the statute isn’t much help. According to Section 503(f) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/503(f), in a bifurcated dissolution period, the valuation date is "the date of trial or some other date as close to the date of trial as is practicable." But it doesn’t say which "trial" is intended when there are two as part of a bifurcated proceeding.

The majority found it significant that since Section 503(f) was enacted, a "long and consistent line of cases" have held that the relevant valuation date is the date of dissolution. The legislature has amended the statute at least ten times during the twenty years it’s been on the books — presumably with knowledge of this line of authority — and has never changed the relevant language. The majority pointed to other provisions of the statute as well, including the language of section 503(b)(1) providing that property acquired by either spouse "after the marriage and before a judgment of dissolution" was presumptively marital property.

The majority also worried that setting the valuation date as the date of the ancillary proceedings created perverse incentives, giving parties a reason to allow the proceedings to drift, hoping that the property would change in value. On the other hand, setting the valuation date as the date of dissolution encouraged the parties to "stop litigating" and "discourages gamesmanship." Therefore, the date of valuation should be the date of dissolution, even in bifurcated divorce proceedings.

The majority acknowledged that although bifurcated proceedings were justified in some cases, courts should be reluctant to allow bifurcation:

[T]he systematic interests in achieving finality, promoting judicial economy, and avoiding piecemeal litigation will typically militate in favor resolving all ancillary issues before entering a judgment of dissolution . . . we encourage the parties and their attorneys, as well as future litigants and their counsel, to remain mindful of the pitfalls associated with bifurcation.

Justice Rita B. Garman dissented, joined by Chief Justice Thomas L. Kilbride and Justice Robert R. Thomas. The dissenters concluded that "the parties marital and nonmarital property should be valued as of the date of the trial on that issue or on a date as near as practicable to that date."

The dissenters analyzed the line of cases relied upon by the majority, arguing that several were decided before Section 503(f) was adopted in 1993, and the remainder were distinguishable. The rule "has never been applied," the dissenters argued, in circumstances where a significant change in value of the marital asset had occurred between dissolution and the ancillary proceedings.

After analyzing the structure of the statute, the dissenters concluded that Section 503 did not speak to situations where bifurcation was the result of the agreement of the parties, or was granted upon motion by one party and a finding of appropriate circumstances. That "gap in the legislative scheme" should be resolved by valuing property under such circumstances as of the date of the ancillary proceedings distributing the parties’ marital property. If the property either increased or decreased significantly in value as the result of the efforts of one party between the dissolution and the ancillary proceedings, that would be taken into account in distributing the property.

Illinois Supreme Court Rejects Forum Shopping in Asbestos Case

By Kirk Jenkins on Posted in Illinois

May a lifelong resident of Mississippi who alleges that he was exposed to asbestos and assorted other allegedly toxic agents while working out of the defendant’s Jackson Mississippi facility nevertheless sue for his alleged injuries in Illinois, even though numerous potential witnesses lived in Mississippi and plaintiff alleged no exposure here? On Friday morning, the Illinois Supreme Court answered "No," reversing the Appellate Court in Fennell v. Illinois Central Railroad Co. [pdf] with instructions that the case be dismissed. Our detailed description of the underlying facts and lower court rulings appears here. Our report on the oral argument is here.

The plaintiff in Fennell worked for the defendant railroad for thirty-seven years. He alleged that during that time, he was exposed to asbestos, diesel exhaust, sand, environmental tobacco smoke and toxic dusts, fumes and gases. Illinois wasn’t the plaintiff’s first choice of forum: he initially filed a putative class action in Pike County, Mississippi. That action was dismissed without prejudice, but rather than refiling in Mississippi, the plaintiff opted to file the action anew in St. Clair County, Illinois. The defendant moved to dismiss based on interstate forum non conveniens, arguing that the action belonged in Mississippi. The Circuit Court denied the motion to dismiss. The defendant appealed, but a divided panel of the Appellate Court affirmed.

In an opinion by Justice Charles E. Freeman, the Supreme Court reversed, remanding the action with instructions that the Circuit Court should dismiss. The Court held that in resolving forum non conveniens motions, Illinois courts apply the public-and-private-factors analytical framework derived from Gulf Oil Corp. v. Gilbert. The court does not balance the factors against one another; rather, the court determines whether the total circumstances of the case strongly favor dismissal (in interstate cases) or transfer (in intrastate cases). The Supreme Court cautioned lower courts to include all of the relevant public and private factors in analyzing such motions.

Although the Court acknowledged that a plaintiff’s choice of forum is typically entitled to deference, the Court strongly condemned forum shopping:

Decent judicial administration cannot tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and should, in all justice be tried there.

Accordingly, when the plaintiff doesn’t reside in the chosen forum and the action didn’t arise there, the plaintiff’s choice of forum is entitled to less deference. This principle applied in Fennell, since the plaintiff was a Mississippian who alleged no exposure in Illinois, and had not even originally filed here.

Turning to the Gulf Oil factors, the Court found that the relative ease of access to testimonial, documentary and other evidence weighed heavily in favor of dismissal, since many witnesses resided in Mississippi and almost none lived in Illinois. The Court rejected the plaintiff’s argument that the residency of witnesses should be accorded little weight since some might not testify, finding that requiring extensive investigation to determine which witnesses are important before bringing a forum non conveniens motion would defeat the purpose of the motion to quickly terminate improperly filed actions. Many documents were apparently located in the Illinois offices of the defendant’s counsel, but the Court found that the physical location of documents, records and photographs was a less significant factor in the modern world of internet, email, fax, copying machines and worldwide delivery services.

The majority also criticized the lower court for disregarding the possibility of the jury viewing the relevant premises. The Court pointed out that this factor is not concerned with whether or not a jury view would be necessary, but whether it would convenient if it turned out to be appropriate. Since plaintiff had never worked in Illinois, the Court concluded that this factor weighed in favor of dismissal as well.

After concluding that the private interest factors weighed heavily in favor of dismissal, the Court turned to the public interest factors. Although the Court placed no weight on the relative congestion of the relevant Illinois and Mississippi court systems, the Court found that other factors weighed heavily towards dismissal. For example, the case had already imposed significant burdens on the Illinois judiciary despite the state having virtually no connection to the dispute. The Court flatly rejected the plaintiff’s contention that the defendant’s doing business in Illinois alone, without more, was sufficient to give Illinois an interest in the litigation. Because both the private and public factors weighed heavily in favor of dismissal, the Court held that the action should be dismissed.

Chief Justice Thomas L. Kilbride dissented.  According to the Chief Justice, since defendant’s offices were more or less equidistant from Mississippi and Illinois, the convenience of the parties didn’t weigh towards dismissal. Many potential witnesses lived in Mississippi, but it was unclear how many would actually testify, the Chief Justice wrote. The plaintiff’s expert witness lived in Chicago, and key defense witnesses were once again equidistant from the two competing forums. Like the Appellate Court, the Chief Justice concluded that it would be more convenient to present documents currently located in Illinois at trial in Illinois that transporting them to Mississippi. The Chief Justice dismissed the significance of a jury view of the premises, writing that it seemed quite unlikely that any premises would still be in the same condition as when the plaintiff worked in them. As for the public interest factors, the Chief Justice wrote that the controversy was not particularly localized, and that Illinois had a sufficient interest in toxic exposures in transportation to justify trial in Illinois. The Chief Justice concluded that the factors were "fairly evenly balanced," so dismissal was not appropriate.

 

Illinois Supreme Court Holds Judgment of Foreclosure Not Immediately Appealable

By Kirk Jenkins on Posted in Illinois

Under Illinois law, a judgment of foreclosure does not end a mortgage foreclosure case; it remains modifiable by the trial court and is strictly interlocutory. After such a judgment is entered, the property is sold once periods for reinstatement and redemption have expired. The person who conducted the sale then reports to the court and, upon motion, the court holds a hearing to confirm the sale, at which  the defendant may challenge the sale (albeit on limited grounds). Only after the sale is confirmed and final judgment is entered may the purchaser obtain a deed.

So at what point in this process may a property owner appeal? That was the question posed in EMC Mortgage Corp. v. Kemp [pdf]. Yesterday, the Illinois Supreme Court held that an appeal lies only from the final judgment confirming the sale, affirming the Appellate Court in a 6-1 decision by Justice Charles E. Freeman. Click here for our detailed history of the facts and underlying holdings in Kemp, and here for our report on the oral argument.

The plaintiff in Kemp originally filed its foreclosure complaint in the summer of 2006. After a complex set of challenges from the defendant, a judgment of foreclosure was finally entered in June 2009, and a judicial sale scheduled. After unsuccessfully moving for reconsideration, the defendant filed for bankruptcy. When the bankruptcy stay was lifted, the defendant challenged plaintiff’s standing, pointing out that the plaintiff appeared to have acquired its interest in the mortgage well after filing the action. The Circuit Court refused to vacate the judgment of foreclosure, but stayed the foreclosure sale for a time. The Court also added Rule 304(a) language to the order, finding that an immediate appeal was appropriate. The defendant moved for reconsideration of the refusal to vacate. The Circuit Court denied this motion as well, although it once again added Rule 304(a) language to its order. The defendant appealed, seeking review of the Court’s order denying her motion to vacate and her subsequent motion for reconsideration.

Before the Appellate Court, the plaintiff argued that Rule 304 language could only make an order which was otherwise appealable final, and the judgment of foreclosure wasn’t appealable. The defendant argued that since her initial motion was one to vacate under Section 2-1401 of the Code of Civil Procedure, 735 ILCS 5/2-1401, she didn’t need the Rule 304 language in the first place — the order was already appealable. The Appellate Court held that a Section 2-1401 motion was improper when the underlying order wasn’t final – which the judgment of foreclosure wasn’t – dismissed the appeal for lack of jurisdiction.

The Supreme Court affirmed. The defendant’s appeal suffered from a series of problems, the Court found. First, since there was no underlying final order or judgment, the Appellate Court was right – relief under Section 2-1401 wasn’t available. Second, although a judgment of foreclosure was final, it wasn’t appealable without Section 304(a) language — and although the defendant had sought and obtained such language for the Section 2-1401 order and the order denying reconsideration of that order, she had not gotten such language on the judgment of foreclosure itself. Third, neither the denial of the improper motion to vacate nor the denial of the motion for reconsideration were final or appealable in themselves. The mere addition of Rule 304(a) language didn’t fix the problem, the Court held, because such language could only make an otherwise final order appealable.

The defendant argued that she was attacking void judgments and orders, which may be done at any time. The Court rejected defendant’s argument, holding that the doctrine of void orders could not confer appellate jurisdiction where it was otherwise absent.

Justice Lloyd A. Karmeier dissented. Justice Karmeier concluded that the aim of defendant’s procedurally flawed motion to vacate the judgment of foreclosure, and her subsequent motion to reconsider the denial of her motion to vacate, was clear – a frontal attack on the foreclosure itself. Therefore, Justice Karmeier argued, the orders at issue could be properly treated as motions to reconsider the judgment of foreclosure. Since Illinois courts have long held that Rule 304(a) language appended to orders on motions for reconsideration suffices to make the underlying judgment or order appealable, the Rule 304(a) language on the defendant’s two orders was sufficient to make the judgment of foreclosure itself appealable.

Justice Karmeier closed by pointing out that the majority’s opinion might ultimately accomplish nothing beyond expending the time and resources of the parties. When the action returned to the Circuit Court, the defendant was free to file a proper motion to reconsider the judgment of foreclosure. Having done so twice before, the Circuit Court would presumably append Rule 304(a) language to the order denying the motion for reconsideration. Once that was done, the procedural issues on which the majority’s opinion turned were eliminated, and the same issues would once again rise to the Appellate Court. Even if the majority were unwilling to muddy the settled rules of appellate review by treating the defendant’s motions as ones for reconsideration, Justice Karmeier suggested yet another road open to the Court to reach what he regarded as a just result while saving time and resources: simply vacate the Appellate Court’s Rule 23 order dismissing the action and order the Court, as an exercise of the Supreme Court’s supervisory authority, to consider the appeal on the merits.

Illinois Supreme Court Declines to Decide Absolute Immunity Issue in Cooney

By Kirk Jenkins on Posted in Illinois

Cooney v. Rossiter presented two questions: (1) was the plaintiffs’ individual action barred by the dismissal of an earlier putative class action; and (2) is a court-appointed psychological evaluator in a child custody proceeding entitled to absolute immunity from suit by one of the parents in the action. This morning, the Illinois Supreme Court affirmed the Appellate Court with respect to res judicata, but declined to decide the broader absolute immunity issue.

Cooney arose from a contentious divorce. Plaintiff Deborah was awarded custody of her two children.  In 2001, plaintiff’s ex-husband filed for a change of custody.  She sought appointment of a psychological evaluator in order to provide recommendations about the best interests of her children.  The trial court appointed defendant, pursuant to Section 5/605 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/605). The defendant concluded that plaintiff Deborah and her parents (the co-plaintiffs) suffered from Munchausen’s by Proxy Syndrome and parental alienation syndrome. The defendant accordingly opined that Deborah’s treatment of the child Christopher was child abuse.  According to the plaintiffs, the defendant deliberately made false statements to an investigator from the Illinois Department of Children and Family Services, resulting in a finding by the DCFS against plaintiff Deborah for child abuse.

The plaintiffs filed a federal class action civil rights suit against the defendant and 11 other defendants who had played a role in the child custody proceedings. The district court dismissed and the Seventh Circuit affirmed.  Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009).  So the plaintiffs sued the defendant in state court, alleging intentional infliction of emotional distress and false statements.  The state court dismissed based on absolute immunity and res judicata. The Appellate Court affirmed, holding that res judicata barred the plaintiffs’ new suit. In the alternative, the Court found that the defendant was entitled to absolute immunity, relying upon the Seventh Circuit’s decision in the earlier class action.

In an opinion by Chief Justice Thomas L. Kilbride, a unanimous Supreme Court affirmed, finding that all three requirements for application of res judicata were satisfied.

The first factor was satisfied when the federal court entered a final judgment on the plaintiffs’ 1983 action.

The plaintiffs argued that the second factor – an identical cause of action – was not satisfied because the federal civil rights claim and the common law claim for intentional infliction were not the same. The Court pointed out that Illinois follows a "transactional test" for this factor — two actions were the "same cause of action" whenever they arose from a single group of operative facts, which plaintiffs’ Federal and state law claims certainly did. Plaintiffs argued that their intentional infliction of emotional distress claim could not have been brought as part of the class action, but the Court found that plaintiffs could have brought individual claims as part of the 1983 class action. The Court concluded that it would have made no difference even if the Federal court had refused to hear such an individual claim, since the plaintiffs had created the problem by filing an initial Federal class complaint.

The Court further found that the third res judicata factor, identity of parties, was met, since all of the plaintiffs were either parties to the Federal action, or privies to parties. Having found that res judicata justified dismissal of the plaintiffs’ state court action, the Court vacated the Appellate Court’s discussion of the absolute immunity issue as unnecessary to the result.

This last step brought a special concurrence from Justice Anne M. Burke, joined by Justice Charles E. Freeman and Justice Mary Jane Theis. Justice Burke argued that the issue of absolute immunity, not the "fact-specific" issue of res judicata, was the reason why the Court allowed the petition for leave to appeal. Because that issue was one of public importance, Justices Burke, Freeman and Theis concluded that the Court should have resolved it.

Daily Journal Interview with Marston on New California Opinion on Expert Testimony

By Kirk Jenkins on Posted in California

Special Counsel Hall R. Marston recently published an article in the California Daily Journal on Sargon Enterprises v. USC (pdf), a new California Supreme Court opinion setting out Daubert-like standards for admissibility of expert testimony.  Anticipating interest in the article, the paper’s editorial staff arranged a video interview (subscribers only) for Hall to address the practical aspects of how Sargon is likely to impact a typical state court trial.  For more on Hall’s insights on the Sargon opinion, see here.

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