Litigation Law Roundup

Sharp Thinking

No. 115     Perspectives on Developments in the Law from The  Sharp Law Firm, P.C.       May  2014

Response Deadline Is 32 Days For Mailed Requests to Admit

       When requests to admit are served by mail, the four-day effectiveness provision of Illinois Supreme Court Rule 12(c) must be taken into account in determining when responses must be served to avoid binding admission of those requests, a panel in the Appellate Court’s First District has held. 

       Ruling in Armagan v. Pesha, 2014 IL App (1st) 121840, the panel effectively said that responses to mailed request are due 32 days after the requests are mailed, as Rule 12(c) adds four days to the 28-day period of Rule 216(c).  See generally Sharp Thinking No. 77 (Nov. 2012). 

       However, responses deposited in the U.S. Mail within that 32-day period are timely – Rule 12(c) does not require mailing four days before the Rule 216 deadline, the court said.

“Mailbox Rule” Does Not Apply to TRO Appeals

       The familiar “mailbox rule” does not apply when a party attempts to appeal the granting of a temporary restraining order under Illinois Supreme Court Rule 307, a panel in the Appellate Court’s Second District has held.  Moreover, it held that the two-day filing requirement of that rule is jurisdictional, requiring dismissal of the appeal where they are not obeyed.

       In Nizamuddin v. Community Education in Excellence, 2013 IL App (2d) 131230, the putative appellant filed its notice of appeal in the Circuit Court and then mailed its papers to the Appellate Court.  They were not received within the two-day period set forth in Rule 307.

       Noting Rule 307 requires filing of the notice of a TRO appeal in the Appellate Court, the panel refused to credit the filing in the Circuit Court.  Moreover, it said that “[g]iven the highly expedited nature of TRO appeals brought under Rule 307(d), the ‘mailbox rule’ contained in Illinois Supreme Court Rule 373 . . . does not apply.”

Courts Have “Limited Discretion” In Attachment Cases

       A lender was entitled to prejudgment attachment when it showed that a borrower in fact had breached a mortgage’s anti-assignment provision when he certified in loan modification documents that he had not, a panel in the Appellate Court’s Third District has held. 

       In U.S. Bank N.A. v. Rose, 2014 IL App (3d) 130356, the trial court had declined to grant prejudgment attachment but the appellate panel reversed and ordered the writ granted.  It said trial courts have only “limited discretion in [their] decision whether to grant attachment” when one of the statutory causes has been shown. 

       In Rose, the defendant, in violation of an anti-assignment provision in a mortgage, transferred property to a limited liability company which in turn transferred it to a Cook Islands trust.  In later seeking a mortgage modification, he averred that he had not breached any covenants in the mortgage.  Noting that “[a]ctual fraud is necessary to establish cause” under 735 ILCS 5/4-101(9), the panel found that test met.

Judgment Doesn’t Bar Fee Claim for Collection Efforts

       Illinois law does not merge a contractual right to attorneys’ fees into a judgment when the fees are ancillary to the primary cause of action, the Court of Appeals for the Seventh Circuit has held.

       In Centerpoint Energy Services, Inc. v. Halim, 743 F.3d 503 (7th Cir. 2014), plaintiff had sued one of defendants’ entities for energy it had provided and recovered a $1.7 million judgment.  Finding that that entity no longer had any assets, plaintiff then successfully brought claims under Illinois’ version of the Uniform Fraudulent Transfer Act (740 ILCS 160).  The Court of Appeals held that an attorney fee claim in the second case was not barred by the judgment in the first case.  “Merger would encourage the kind of contumacy displayed by the Halims in this case, because by voiding the attorneys’ fees provision in the gas contract it would reduce the cost to them of unlawfully resisting efforts to collect a judgment awarded against them,” the court said. 

Unpublished Decision Has “No Precedential Value”

       A “trial court’s reliance on an opinion that lacks precedential value undermines its own holding,” a panel in the Appellate Court in Chicago has said.

       The panel in Kaufman v. Barbiero, 2013 IL App (1st) 132068, rebuked the trial court for relying on an officially unpublished federal district court opinion that was available on Westlaw and Lexis.  Noting the policies on unpublished opinions set forth in Seventh Circuit Rule 32.1(d) and Illinois Supreme Court Rule 23, the panel said the 1991 case at issue “has no precedential value”.

Draft Affidavits Protected As Work Product

      Draft affidavits and communications with non-party affiants may be protected by the work product doctrine under an approach adopted by a federal court in California recently.

       In Schoenmann v. FDIC, __ F.Supp.2d __, 2014 WL 46620 (N.D. Cal. 2014), the court ruled that the doctrine provided protection both to draft declarations and email communications between the trustee and an affiant and between the trustee’s counsel and the affiant.  It quoted Wright & Miller’s Federal Practice and Procedure treatise as stating that that view was the position of most recent cases.  It rejected a claim that the attorney-client privilege protected those documents, however.

Court Errs In Basing Reconsideration On Available Evidence

      A trial court erred in basing its grant of reconsideration on evidence that was available when the original decision was made, a panel in the Appellate Court’s Third District has held.

      The opinion in Hajicek v. Nauvoo Restoration, Inc., 2014 IL App (3d) 121013, appears to limit discretion in an area where most observers thought trial courts could do pretty much what they wanted.

      The decision also says that a trial court may not base its ruling on theories that were not pled and were not raised until reconsideration.

                                               – John T. Hundley,, 618-242-0246

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