Litigation Law Roundup
No. 205 Perspectives on Developments in the Law from Sharp-Hundley, P.C. February 2022
8:1 Punitive Damages Ratio OK In Egregious Cases
A ratio of punitive to compensatory damages in the high single-digit range is appropriate “when the defendant’s conduct is particularly egregious and the plaintiff’s harm arose from a physical assault or injury,” the Illinois Supreme Court has held.
Ruling in Doe v. Parrillo, 2021 IL 126577, the court reversed an Appellate Court panel which had reduced the punitive award to a 1:1 ratio. It reinstated the jury’s award (an 8:1 ratio) in a case where the defendant had physically assaulted plaintiff on repeated occasions and had raped her.
Citing U.S. Supreme Court guidelines handed down in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), the Illinois high court said that “the first guidepost, reprehensibility, [is] the most important because it relate[s] to ‘the enormity’ of the defendant’s offense.” Stating that “Parrillo’s conduct was egregiously reprehensible,” the court said “some torts are more enormous (or blameworthy) than others – namely, those that involve violence or the threat of it.”
“Based on the facts and circumstances of Parrillo’s egregiously reprehensible conduct that directly resulted in repeated personal, physical, and emotional harm to Doe, we cannot say that $8 million in punitive damages was so unreasonable as to violate due process.”
Appellate Court Strikes Brief, Dismisses Appeal
Many are the cases where panels of the Appellate Court hear motions to strike briefs because of failure to follow appellate briefing rules, acknowledge the brief’s inadequacies, threaten to grant such motions in the future, and then deny the instant motion to strike in an exercise of discretion.
Now a panel in the court’s Third District has taken the threatened step and stricken a pro se appellant’s brief and dismissed his appeal. Litwin v. County of LaSalle, 2021 IL App (3d) 200410.
Litwin says that “the procedural rules governing the content and form of appellate briefs are mandatory and not suggestions” and that “self-represented litigants are not excused from following” those rules. It took the unusual steps of striking the brief and dismissing the appeal after the appellant offered an irrelevant standard of review; cited an inapplicable basis of jurisdiction; failed to set forth the statutes at issue; offered a “statement of facts” that both was deficient and failed to reference pages of the record; and offered “a stream of consciousness” as the brief’s argument section.
Recognizing that “striking a brief is a harsh sanction”, the panel said that relief was appropriate only “where the violations of procedural rules hinder our review” – and it found that test met.
Court Enforces Due Diligence Requirement Under § 2-1401
Relief under § 2-1401 of the Code of Civil Procedure “is available only to those who diligently pursue their legal defenses and remedies in court, not to those who disregard these procedures on the gamble that better results can be obtained through other procedures or at a cheaper cost.”
So said the Appellate Court in Chicago recently in denying a defendant’s motion to vacate a default judgment entered 63 days before § 2-1401 relief was sought. NP SCH MSB, LLC v. Pain Treatment Centers of Ill., LLC, 2021 IL App (1st) 210198.
In Pain Treatment Centers, defendants claimed the judgment was procured by fraud because plaintiff sought and received judgment against a guarantor based on the full amount owed instead of a limited amount set forth in the guaranty. Noting that the guarantor had been mailed the judgment papers in advance and had ignored them, the court said “a party is entitled to relief under section 2-1401 only if it can show it acted reasonably under the circumstances in failing to challenge the judgment.”
Defendants argued that the statute’s diligence requirement should be relaxed in light of the alleged fraud, but the court said that “[w]here defendants could readily have discovered he matter asserted as the basis for the instant petition, there exists no reason to lessen the diligence burden.” “Relaxing the due diligence requirement is justified only under extraordinary circumstances where necessary to prevent an unjust entry of default judgment or where the opposing party engaged in unconscionable conduct.”
Previously Unpublished Order Iterates Multiple Propositions
The Appellate Court in Chicago has published an opinion which originally was issued as a Rule 23 order. Kalmin v. Varan, 2021 IL App (1st) 200755, dealt with citation proceedings which had been on-going for some seven years.
As with many Rule 23 orders, Kalmin disposes of an appeal without the thorough analysis one usually expects in published opinions. However, given that it now is a published decision, it may be cited for a number of propositions:
- A judgment creditor “need not formally seek an extension for citation proceedings to extend, and . . . a court, by continuing to entertain the citation proceedings, may extend the proceedings ‘as justice may require.’”
- In citation proceedings, “a creditor can seek to discover assets on accounts for which the judgment debtor has [mere] signatory authority.”
- “Before a judgment creditor may proceed against a third party who is not the judgment debtor, the record must contain some evidence that the third party possesses the judgment debtor’s assets.”
- A turnover order in a citation proceeding “does not hold [debtor] personally liable for [third party’s] debt, so it does not pierce the corporate veil.”
- “In a civil proceeding, unlike a criminal proceeding, a party is required to testify or suffer the consequences – namely, that a trier of fact may draw adverse inferences if a party refuses to testify.”
All of those significant points were made in a decision that is only 14½ pages long. It’s unfortunate that appellate panels don’t give unpublished orders the same attention and degree of care that they give published opinions. But as long as that dichotomy exists, motions to publish Rule 23 orders should be granted with care. In our view, Kalmin is a case where the motion should not have been granted.