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COURT-ANNEXED ADR PROGRAM 18th JUDICIAL CIRCUIT http://www.dupageco.org/circuitcourt FAX (630) 462-3726 FAX (630) 462-3726 Tel. (630) 653-5803 Wheaton, IL 60187 126 S. County Farm Road, Suite 2A 126 S. County Farm Road, Suite 2A ADR Center ADR Center 18TH JUDICIAL CIRCUIT COURT FAX (630) 462-3726 FAX (630) 462-3726 126 S. County Farm Road, Suite 2A 126 S. County Farm Road, Suite 2A ADR Center ADR Center DuPAGE COUNTY, ILLINOIS ANN B. JORGENSEN HOLLIS L. WEBSTER 653- CHIEF JUDGE PRESIDING JUDGE LAW DIVISION KENNETH A. ABRAHAM LORETTA K. GLENNY SUPERVISING JUDGE ADR ADMINISTRATOR ARBITRATION & MEDIATION ___________________________________________________________________________ SPRING 2007 ___________________________________________________________________________ ADR QUARTERLY IN THIS ISSUE: • OPENING STATEMENT • JUDICIAL TIPS • CASE IN POINT • ADR STATISTICS OPENING STATEMENT INDEX OF PAST QUARTERLY EDITIONS Included with this edition is an Index of this and past editions of the ADR Quarterly. The information may also be accessed at www.dupageco.org/courts Select the "Arbitration Center" link, which is located on the left side. The Index can be found at that location as well as all editions going back to Fall 2002. APPLICATION TO BECOME AN ARBITRATOR OR CHAIR The Application for Certification as an Arbitrator and the Application for Chair Certification are also located in the Arbitration Center website. The editions of the ADR QUARTERLY and the QUESTION AND ANSWER BOOK are available through the County Web site, which can be accessed as follows: BUILDING NEWS http://www.dupageco.org/circuitcourt Construction on the two new courtrooms on the fourth floor is Thank you to the many attorneys who have phoned, written and spoken nearing completion. It is expected that Judges Guerin and Kinsella to Judge Abraham and the ADR Center staff. We appreciate your will be moving to Courtrooms 4015 and 4017 within the next opinions and concerns over issues important to the process. Many of sixty- (60) days. your comments and concerns will be addressed and included in future editions. We encourage comments that will not only improve the IN APPRECIATION process but also the result. A special thank you to President Glen Gaffney, President-Elect Fred Spitzzeri and the DCBA Board of Directors for your kind The Mandatory Arbitration Program, 18th Judicial Circuit Court, DuPage County, Illinois, provides the ADR Quarterly as a service to the arbitrators and other interested words and recognition of my service as the Arbitration parties. Any discussion contained in this publication is offered as general information Administrator over the past six years. I have enjoyed working with only and should not be relied upon as a legal opinion regarding any specific matter. the members of the DuPage County Bar Association and look The ADR Quarterly is written and edited by Judge Hollis L. Webster, Judge Kenneth A. forward to being of service to you in the future. Abraham, Loretta K. Glenny and Carol A. Robles. Thanks to Dan Amati, Deputy Court Loretta Glenny Administrator, for running the graphics. -1- JUDICIAL TIPS In Courtroom 2018 it is rare to see plaintiff issuing a summons to adjudicate upon a putative lien holder. Rather, the practice has ATTORNEYS been to serve a notice of motion. This does not give the court jurisdiction; and unless the respondent acquiesces to the BAR- MOTIONS TO BAR-WHAT THE COURT NEEDS TO KNOW jurisdiction of the court, a plaintiff's attorney may find themselves in a bind with their client when a challenge to jurisdiction arises. Motions to bar (or debar) under Rules 91(a), 91(b) or 90(g) often contain little information as to what did or did not happen at the ARBITRATORS arbitration. Rather, they cite the fact that a party did not appear after proper service of a Rule 237 notice or the mere conclusion STIPULATION STIPULATION OF NEGLIGENCE that someone failed to participate in good faith. The response to these motions, likewise, fails to address these issues. The If the defendant stipulates or admits to negligence at the time of the defendant/respondent often answers that the defendant was not hearing, this should be included in the award. Since such a present because they have admitted negligence, without addressing stipulation is a judicial admission, the defendant is bound by that how that relates to the issue of severity of impact vis-à-vis liability. stipulation at trial. In order to avoid a dispute of whether a stipulation was made at the arbitration, the precise nature of the Since there is usually no transcript of the arbitration, it is important stipulation must be made "of record". This is particularly to present to the trial court sufficient facts upon which its decision important if the stipulation relates to liability (as opposed to merely may be based, as well as your argument as to why one party was or negligence). As to any stipulations, make sure the stipulations are was not prejudiced. memorialized in writing. You may require the attorneys to prepare such stipulations for filing. ADJUDICATION OF LIENS FUTURE DAMAGES While the court has jurisdiction over the subject matter to adjudicate liens of health care providers, it does not have Future damages for medical expenses, pain and suffering or any jurisdiction over the lien holders merely because a provider has other element of damages must be supported by proper evidence. filed a lien with counsel for plaintiff or defendant. This principle Lay testimony may support a finding of future pain and suffering applies to a variety of liens, and applies to both the pre-July 1, only when ongoing pain and suffering is readily apparent. Laying 2003 Acts as well as to the post-July 1, 2003 unified Act. testimony that the plaintiff has been experiencing ongoing headaches, neck pain and discomfort during certain activities is not In 1982, the Second District held that the trial court lacks sufficient. Stift v. Lizzadro, 362 Ill.App.3d 1019 (1st 2005) jurisdiction over a lien holder unless they are served with process or if they submit themselves to the jurisdiction of the court. The result of an unwarranted award for future damages is rejection Augsburg v. Frank’s Car Wash, Inc., 103 Ill. App. 3d 329, 2nd of the award by the defendant. The ripple effect is to thwart 1982 settlement and drive the parties to trial. -2- -3- CASE IN POINT In reversing the trial court's order granting defendant's 2-619 motion, the Appellate Court held that the merger doctrine did not ESTATE- REAL ESTATE-MERGER BY DEED apply to this case. In so doing, the First District rejected the contrary holding of the Third District in cases such as Chapman v. Is the seller liable for the difference between the pro-rated amount Anchor Lumber, 355 Ill. App. 3d 435 (2005) which holds that of the actual tax bill and the tax pro-ration credited at closing, or there is no mutual mistake exception, and adopted the holdings of does the doctrine of merger by deed bar the buyer from seeking the Second District, including Batler, Capitel & Schwartz v. that relief? The answer is that it depends, in part, on what Circuit Tapanes (1987) which allows mutual mistake as an exception. Court hears the case. It is important to note that the Appellate Court did not express In Czarobski v. Lata, 862 N. E. 2d 1039, 1st, March 2007, the concern over the fact that buyer could have or should have Appellate Court reviewed the doctrine of merger by deed and its determined that the basis of the pro-ration was a partial assessment exceptions. While, the general rule is that a deed that represents prior to closing. "full execution" of a contract for the sale of real estate merges the provisions of the contract into the deed (resulting in the deed SANCTIONS-RULE 137 SANCTIONS- becoming the only valid agreement), there are exceptions to that rule. Those exceptions include where: If the trial court correctly finds that sanctions under Supreme Court Rule 137 are appropriate as to an attorney, is the sanction properly 1. The contract contains collateral provisions to and entered against the lawyer or the law firm, or both? independent of the deed conveying the interest; and In Medical Alliances llc, et al. v. Health Care Service Corporation, 2. The evidence clearly and convincingly proves a 2007 WL 678471, (2nd March, 2007), defendant filed a motion for misrepresentation or mutual mistake of fact, which sanctions which sought sanctions for filing frivolous pleadings existed when the deed was delivered. against the plaintiff and the law firm which represented the plaintiff. That motion did not seek sanctions against the individual In Czarobski, the underlying contract provided for pro-ration at attorney(s) who prepared the pleadings. closing based upon 105% of the last available tax bill, or if that bill was based upon a partial assessment of unimproved property After reciting that the imposition of sanctions is penal in nature, which was later improved, a pro-ration agreement was to be signed the Second District cited both the United States Supreme Court's at closing. After the Czarobski/Lata closing, a final tax bill was holding in Pavelic & LeFlore v. Marvel Entertainment Group, 493 issued for 2004 (which resulted in the buyer paying more than U.S. 120 (1989), which interpreted Federal Rule 11, and the Third twice the pro-rated amount). Buyer then discovered that the bill District's decision in Levin v. Siegel & Capitel, Ltd., 314 Ill. App. upon which the original pro-ration was based was for a partial 3d 1050 (2000), both of which maintain that sanctions may be assessment. sought only against the offending attorney and not the law firm. In so doing, the court rejected the contrary finding of the First District in Brubakken v. Morrison, 240 Ill. App. 3d 680 (1992) which opined that the liability may be joint and several. -4- -5- Cavaet: Since a sanction may be imposed against an attorney who plaintiff’s witnesses were barred from using those photos as a basis improperly advocates a position regardless of the existence of a of their medical opinion. Not only did the Baraniak court direct written pleading or who prepares a written pleading (See e.g. the trial court to exclude the photos, absent expert testimony Fremarek v. John Hancock, 272 Ill. App. 3d 1067,1st (1995), you establishing the correlation, the court rejected the defendant's must make sure that there is a proper basis to the position you are contention that the photos should be admitted to aide the jury in asked to advance to the court. determining credibility. ADMISSION OF PHOTOGRAPHS A few notes. First, the court had determined that the case would be remanded because of refusal of the trial court to give the jury Consider the following, which often occurs during an auto accident the collateral IPI instruction both during the instruction conference soft-tissue bodily injury case: as well as after the jury sent back two notes which screamed for the instruction. After announcing that the case would be Plaintiff introduces the severity of the impact by testifying that it remanded, the court turned to a discussion of the photos. was a "hard" impact and that there was significant damage to the Therefore, one could suggest that the portion of the case, which vehicle (this really happens). During cross-examination defendant referred to photos was dicta. However, the case remains as a clear attempts to show the pictures of the vehicle to plaintiff. Plaintiff's pronouncement by one Division of the First District that photos are attorney launches out of their chair like a space shuttle off of the disfavored. launch pad and shouts, "I object, the pictures are not relevant". Second, the trial court had determined that the photos were going Defendant then suggests they merely want to show the pictures to into evidence before testimony was taken. That preliminary ruling the plaintiff and have no present plans to ask for their introduction. set the tone for the decision. The First District has expanded the holding of DiCosola v. Third, if the photos are not relevant on the issue of credibility, why Bowman, 342 Ill. App. 3d 530, by stating that, absent expert is the plaintiff's own testimony that the impact was "hard" or that testimony on the correlation between damage to the vehicle and the their vehicle is damaged relevant? plaintiff's injuries, photographs should not be admitted for any purpose. Fourth, the Baraniak decision does not prohibit the defendant from cross-examining the plaintiff as to the severity of impact once In Baraniak v. Kurby, 371 Ill. App. 3d 310 (Feb. 6, 2007), the plaintiff raises that issue. parties were involved in a rear-end accident. Plaintiff testified that the impact was "hard" and that it caused her to "flip backwards" Does Baraniak bar defendant from showing the pictures to plaintiff and strike her head. Defendant testified that her speed at the during direct examination; and then, on direct examination of the moment of impact was about five miles an hour and that the impact defendant likewise showing the pictures to the defendant for the was "light". Prior to commencement of trial, the trial court ruled purpose of eliciting testimony about the severity of the impact all that the photos of the damage to plaintiff’s vehicle would be without either seeking their admission or showing them to the admitted during the defendant’s cross examination even though jury? The case did not explore that issue. -6- -7- ADR STATISTICS ATTORNEYS FEES INCURRED IN COLLECTING ATTORNEYS FEES Can an attorney charge for collection of attorneys fees incurred in The following is a chart showing a comparison between jury trials enforcing an attorney-client agreement, which provides for and arbitration awards for the first quarter of 2007. Please note attorneys fees? that, in some cases, the difference between the award and the verdict in subrogation cases is explained by a finding of In 2000, the First District issued its opinion in Lustig v. Horn, 732 contributory negligence during Arbitration but a jury signing N.E. 2d 613. The decision in that case held that fees on fees were verdict form A thus finding no contributory negligence. an unenforceable provision of the contract. In fact the trial court's decision raised the question of whether the existence of such a While previously reported clerical problem regarding the provision violated the Rules of Professional Conduct, citing Rules underreporting of jury trials due to the creation of the SR call has 1.5 and 1.7. For years, attorneys have tried to differentiate the now been fixed, it remains possible that there are other cases, facts of their case from Lustig. which proceeded to trial during 2007 that are not reported below. On March 16, 2007, the Third District entered the controversy in DATE CASE TYPE COMP. VERDICT AWARD IRMO: Tantiwongse, 863 N.E. 2d 1188. The court, in perhaps the NO. 1/8/07 05 AR 1343 BI STIP 10,292 15,000 broadest pronouncement of law on the point, held that attorneys NEG could not incur legal fees on their own behalf and that any 1/8/07 06 SC 1538 SUBRO 0 979 1,506 provision in the attorney/client agreement to the contrary was 1/23/07 06 SC 1538 SUBRO 0 4,846 4,361 against public policy. Since the courts will not enforce terms of a 2/6/07 05 AR 3702 BI STIP 3,204 16,031 contract that violate public policy, the attorney was limited to the NEG fees actually incurred in representing the lying in the underlying 2/6/07 06 SR 93 SUBRO 0 5,231 2,877 2/7/07 05 AR 4334 BI STIP 7,556 15,067 matter. NEG 02/26/07 06 SR 989 SUBRO N/A 7,152 7,152 The decision in Tantiwogse was limited to lawyers representing 3/13/07 06 SC 2725 SUBRO 35% 901 0 themselves. It did not determine whether fees to collect fees 3/19/07 06 AR 1075 BI 50% 0 0 provisions might be enforced when the plaintiff is represented by a different law firm. Neither did it decide whether interest provisions are enforceable. JUDGE KENNETH A. ABRAHAM SUPERVISING JUDGE ARBITRATION & MEDIATION -8- -9-
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