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Recent Standard of Review Decisions RECENT STANDARD OF REVIEW DECISIONS Hugh C. Griffin Hall Prangle & Schoonveld, LLC 200 S. Wacker Drive, Suite 3300 Chicago, Illinois 60606 Phone: (312) 267-6234 Fax: (312) 345-9608 Email: [email protected] Frye Motion Review – De Novo Plus. In In re Commitment of Simons, 213 Ill. 2d 523, 531 (2004), the court adopted a de novo “plus” standard of review for motions made under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), seeking to bar an expert’s opinion because it is not based on a generally accepted methodology or recognized scientific principles in the particular field in which the expert purports to testify. The trial court’s ruling on the Frye motion is reviewed de novo and the reviewing court may consider not only the trial court record, but also, where appropriate, sources outside the record including legal and scientific articles and court opinions from other jurisdictions. The decision as to whether the expert witness is qualified to testify remains reviewable under an abuse of discretion standard. Evidentiary And Instruction Rulings May Be Subject To De Novo Review While the trial court’s decision to admit or refuse to admit evidence or to give or refuse to give an instruction is normally reviewed under the abuse of discretion standard, the standard of review is de novo if the lower court’s ruling is based on a principle of law or case decisions. See Nolan v. Weil-McLain, 233 Ill. 2d 416, 429 (2009): “Because the lower courts’ exclusion of evidence of decedent’s other exposures to asbestos was based upon their interpretation of existing case law, the question presented is one of law. Accordingly, our review is de novo.” Normally Discretionary Decisions May Be Reviewed De Novo When The Ruling Is Based On A “Cold Record” And No Exercise Of Discretion Is Involved. In McWilliams v. Dettore, 387 Ill. App. 3d 833, 843-844(1st Dist. 2009), the court held that while the familiarity element of the foundation required to establish a medical expert’s qualifications to render opinions is normally reviewed under an abuse of discretion standard, the issue would be reviewed de novo where the trial court’s ruling was based on its review of the expert’s deposition and thus did not involve an exercise of discretion. Personal Jurisdiction. In Madison Miracle Productions, LLC v. MGM Distribution Co., 2012 IL App (1st) 112334, ¶¶33-40, the court similarly held that where the trial court’s decision on an issue of personal jurisdiction was based solely on documentary evidence, review is de novo. However, if there is an evidentiary conflict and an evidentiary hearing at which the trial court makes findings of fact on the jurisdiction issue, the appellate court reviews those findings under the manifest weight of the evidence standard. To the extent the trial court’s personal jurisdiction determination is based on legal issues and legal principles, those determinations are reviewed de novo. The Madison Miracle court noted that it was not following a Second District decision, Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 177 (2d Dist. 2004), holding that where a court conducts an evidentiary hearing and then applies legal principles to its factual findings on the jurisdictional issue, review is 2 under the “clearly erroneous” standard. The Madison Miracle court noted that the “clearly erroneous” standard is normally applied only in administrative review cases. Motions For Reconsideration. To the extent a trial court reconsiders and changes its prior ruling after an evidentiary hearing based upon its re-evaluation of the evidence, the reconsideration decision is reviewed under the manifest weight of the evidence standard. To the extent reconsideration is granted on the basis of legal principles, review is de novo. Shulte v. Flowers, 2013 IL App (4th) 120132, ¶16-20. Judicial Estoppel. In Smeilis v. Lipkis, 2012 IL App (1st) 103385, ¶22-23, the court applied a de novo standard of review to trial judge’s ruling on judicial estoppel, even though the doctrine of judicial estoppel typically falls within the sound discretion of the circuit court, because the trial court ruled on “cold record,” i.e., a transcript of the prior proceedings. Punitive Damages. In Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129, 1137-1147 (2d Dist. 2004), the court undertook a rather exhaustive analysis of the appropriate standard review of a punitive damage award, ultimately concluding that review is under the manifest weight of the evidence standard, although a constitutional challenge to a punitive award would be reviewed de novo. Insurance Coverage. In Addison Ins. Co. v. Fay, 232 Ill. 2d 446, 451-453 (2009), the Supreme Court reviewed de novo the trial court’s determination that there were two separate occurrences for insurance coverage purposes because the trial court’s ruling was made on the basis of 3 depositions, transcripts and other documentary evidence; thus “the trial court was in no superior position than any reviewing court to make findings, and so a more deferential standard of review is not warranted.” Void Orders – Invalid Service Of Process. The issue of whether defendant was properly served with process service and subject to the jurisdiction of the court is reviewed de novo. In re Dar C., 2011 IL 111083, ¶60. Statutory Interpretations. The interpretation of a statute and its application to undisputed facts is a question of law that is reviewed de novo. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 236 (2005). Also, whether a statute has been violated is a question of law subject to de novo review. Vine Street Clinic v. Healthlink, 222 Ill. 2d 276, 278 (2006). 2-1301(e) Motions. While the trial court has discretion to set aside default judgments under 2-1301(e), on review “[t]he overriding consideration is simply whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances to compel the other party to go to trial on the merits.” In re Haley D., 2011 IL 110886, ¶57. 2-1401 Petitions. In reviewing denials of 2-1401 petitions, the issue of meritorious defense is reviewed de novo, while the issue of due diligence is reviewed under the abuse of discretion standard. Calvary Portfolio Services v. Rocha, 2012 IL App (1st) 111690, ¶10. However, the trial court’s denial of 2-1401 relief can be vacated even in the absence of 4 diligence where the defendant has a meritorious defense and actively seeks to vacate the judgment. Id. at ¶18. Where The Standard Of Review Is Disputed, Be Sure To Make Arguments Under Both Standards. An appellant who fails to acknowledge the correct standard of review, and then makes no arguments concerning that standard of review in its brief, forfeits or waives all issues governed by that standard of review on appeal. Addis v. Exelon Generation Co., 378 Ill. App. 3d 781, 786-87 (1st Dist. 2007); Buckner v. Causey, 311 Ill. App. 3d 139, 142 (1st Dist. 1999). Accord In re Avery S., 2012 IL App (5th) 100565, ¶26 Post-Trial Voir Dire Of Juror. The trial court’s failure to conduct a post-trial voir dire of a juror who did Internet research on an issue directly relevant to the case was reviewed under an abuse of discretion standard and that discretion was found to have been abused. McGee v. City of Chicago, 2012 IL App (1st) 111084, ¶¶31-33. Attorney Removal Reviewed De Novo. A trial judge has the discretion to remove a defense attorney in a criminal case for incompetence, but where the removal is done repeatedly for no stated reason, the issue of whether the court has usurped its judicial power will be reviewed de novo. Burnette v. Terrell, 232 Ill. 2d 522, 532 (2009). Court Jurisdiction A lower court’s ruling that it had no jurisdiction over a case is reviewed de novo. In re Marriage of Rodriguez, 359 Ill. App. 3d 307, 311 (3d Dist. 2005). 5 .
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