Illinois Law_Supreme Court-Foreclosure

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COOK COUNTY NEW JUDGES PROGRAM ILLINOIS SUPREME COURT RULES April 24, 2003 Hon. Stephen A. Schiller These materials do not give comprehensive treatment to the Rules. Their intention is to describe the general purpose of the Rules, and to treat a number of issues which frequently arise before trial judges.

I - The Role Of Rules SCR 1 provides: General rules apply to both civil and criminal proceedings. The rules on proceedings in the trial court, together with the Civil Practice Law [735 ILCS 5/2-101 et seq.] and the Code of Criminal Procedure [725 ILCS 5/100-1 et seq.], shall govern all proceedings in the trial court, except to the extent that the procedure in a particular kind of action is regulated by a statute other than the Civil Practice Law [735 ILCS 5/2-101 et seq.]. The rules on appeals shall govern all appeals. The purpose of our Supreme Court rules is to facilitate the orderly disposition of the business of courts and to expedite the prompt administration of justice. (See Gibellina v. Handley (1989), 127 Ill. 2d 122, 134). II - Conflict Between Supreme Court Rules And Legislation Under our constitutional form of government, the judicial branch will ultimately determine conflicts which may arise between the constitution and the activities of branches of government, and those which arise between branches of government concerning their respective powers under the constitution. Marbury v. Madison (1803), 5 U.S. 137. In speaking to the applicability of these principles, the Illinois Supreme Court has held that pursuant to the separation of powers clause of the Constitution of the State of Illinois (Ill. Const. 1970, art. II, Sec. 1), the legislature has the power to enact laws concerning judicial practice which "do not unduly infringe upon the inherent powers of the judiciary." The court has

further determined that where enacted laws directly and irreconcilably conflict with a rule of the Supreme Court on a matter within the court's authority, the rule will prevail. Examples where such conflicts have been found are illustrated in: People v. Cox (1980), 82 Ill.2d 268, where the court struck down a legislatively enacted process for the review of sentences because of its conflict with the scope of review of sentences defined by SCR 615(b)(4). O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, which held that the Civil Practice Act (Section 2-1009), to the extent that it granted plaintiffs' counsel an unrestricted right to non-suit a case and refile it, without regard to the status of the statute of limitations at the time, conflicted with SCR 103(b), and thus violated the judiciary's constitutional prerogative to effectively manage the courts' business. Burger v. Lutheran General Hospital, 324 Ill. App.3d 743 (1st Dist. 2001), held that a statute's impact on patient privacy and on the courts' control of discovery of certain sections of the Hospital Licensing Act do not violate principles of separation of powers. The majority's opinion in Burger explains its distinction from the Court's holdings in Kunkel v. Walton, (1997) 179 Ill.2d 519 and Best v. Taylor Machine Works, (1997) 179 Ill.2d 367. Those cases had held, however, that certain provisions of the Civil Justice Act had overstepped the constitution's grant of power to the legislature. In those cases the legislation had imposed discovery rules which the courts were responsible for administering which would have affected matters neither material or relevant to pending claims. III - Rules Of Construction SCR 2 provides that the rules of construction used to interpret enacted statutes and codes apply to the construction and application of Supreme Court Rules; i.e. consideration should be given, not only to the literal meaning of a rule, but its purpose as well. See discussion People v. Fitzgibbon (1998), 184 Ill.2d 320, 325. In applying or construing a Rule, it must be emphasized that a judge does not have greater discretion than he/she would have in dealing with legislative enactments. The Illinois Supreme Court has continuously stressed that it expect the Rules to be complied with: The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumptions must be that they will be obeyed and enforced as written. Robidoux v. Oliphant, 201 Ill.2d 324, 332 (2002), citing Bright v. Dicke, 166 Ill.2d 204, 210 (1995) IV - Conflict Between A Statute And Rules Or General Constitutional Principles Should Not Be Examined By The Trial Judge Unless Necessary To The Adjudication Of A Dispute -

In Hearne v. Illinois State Board of Education (1999), 185 Ill.2d 443, the circuit court had granted relief to an a petitioner in an administrative review proceeding both on the ground that the record did not support the administrative decision and that the code provisions under which the proceedings took place were constitutionally defective. the Supreme Court, citing Trent v. Winningham (1996), 172 Ill.2d 420, vacated the portion of the circuit court's judgment concerning the constitutionality of the School Code, reasoning that: Circuit courts, however, should not compromise (the stability of the legal system) ... by declaring legislation unconstitutional when the particular case does not require it. ... Indeed, it is well established that questions regarding the constitutionality of statutes should be considered only when essential to the disposition of a case, i.e., where the case cannot be determined on other grounds. (Citing Bonaguro v. County Officers Electoral Board (1994), 158 Ill.2d 391, 396) An additional rationale for the court's decision was reflected in its observation that to hold otherwise would invite more direct appeals to the Supreme Court under SCR 302 in instances where the normal appellate process would suffice. V - Proceedings In The Trial Court in Civil Cases A. PROCESS AND NOTICE 1. SCR 103(b) - Dismissal Of An Action For Failure to Exercise Diligence In Obtaining Timely Service Of A Defendant The rationale for Rule 103(b) is explained in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, where the Illinois Supreme Court stated: Nothing is more critical to the judicial function than the administration of justice without delay. [citations omitted] Central to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it. [Citations.] Rule 103(b) was adopted by this court to effectuate its historical and constitutional mandate to render justice fairly and promptly. Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit.

The rule does not establish a specific time frame within which service must be accomplished. Rather a party's diligence is to be measured against objective factors. Cases discussing the significance of the passage of time and relevant factors to be used in addressing motions under the Rule include: Womick v. Jackson (1990), 137 Ill.2d 371; and Segal v. Sacco (1990), 136 Ill.2d 282. Dismissal under the rule can raise substantial statute of limitation consequences affecting the right to refile under 735 ILCS 5/13-217. Rule 103(b) Prior to its 1997 Amendment provided that: (b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion. This rule was amended during 1997 to read: (b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion. The amendment gives the trial court the power to dismiss the case as to the tardily served defendant only, whereas the original text gave the court the power to dismiss the action "as a whole or as to any unserved defendant". The language of the amendment may obscure the possibility of a subtle change in meaning. The right to refile, under the amended rule, is as against defendants for whom the statute of limitations has not run, presumably as of the time of refiling. The original text absolutely precluded refiling only where statute of limitations ran before the plaintiffs failure to exercise reasonable diligence to obtain service. Under the 1997 amendment, reasonable diligence is determined by looking at the plaintiff's efforts to obtain service from the time of the filing of the complaint to the time service is obtained. The issue as when the statute of limitations may have run relates only to the question of whether the plaintiff may refile in the event of a dismissal. (See Rice v. Ford Motor Company, (1st Dist. 2000) 316 Ill.App.3d 547. Therefore, under the amended rule, the right to refile is more limited. However, where the statute of limitations has not run, at the time of the dismissal, the dismissal must be without prejudice. Paige Myatt v. Mount Sinai Hospital (1st Dist. 2000), 313 Ill.App.3d 482.

But, n.b., SCR 103(b) will not affect the tolling of a statute of limitations as to a minor. See Parker v. Piksur (3rd Dist 1994), 258 Ill. App. 3d 344. B. PLEADINGS AND OTHER PAPERS 1. - S.C.R. 137 - Signing of Pleadings, Motions and Other Papers - Sanctions This rule requires that any pleading or motion filed in a proceeding be signed by an attorney of record, or, in a pro se situation, by the filing party. Under the rule the signature constitutes: a certificate by (the signor) that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a goodfaith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. An unsigned certificate is subject to being stricken upon motion by a party, or by the court sua sponte. Any filed paper signed in violation of the order exposes the signing attorney, and/or the party on whose behalf it is filed, to the sanction of paying the reasonable costs of burdened parties incurred because of the filing. Costs include reasonable attorney's fees. NOTE: Proceedings under Rule 137 are a part of the underlying action. The disposition of the underlying action does not become final and appealable while a petition for Rule 137 sanctions is still pending; except where there is a specific finding by the trial court under SCR 304(a) See: Phillips v. Brown, 197 Ill.2d 337 (2001); Evangelical Covenant Church (1990), 138 Ill. 2d 458; SJS Invs., Ltd. v. La Salle Nat'l Bank (1st Dist. 1991), 210 Ill. App. 3d 228; Cashmore v. Builder's Square, Inc. (2d Dist. 1990), 207 Ill. App. 3d 267. During April of 1998, a majority of the Supreme Court determined that where a the trial judge entered a 304(a) finding in a case where the language was, at the time entered, unnecessary, it was none-the-less sufficient to preserve a party's right to appeal even though a Rule 137 petition was filed after the notice of appeal. In Niccum v. Botti (1998), 182 Ill.2d 6, Justice Heiple wrote that the doctrine of judicial economy justifies viewing the 304(a) language as looking forward to the possibility of the filing of a subsequent Rule 137 petition. Justice Miller dissented. He argued that the majority's view reduces the sense that Rule 304(a) language reflects a considered judgment on the part of the trial court that a disposition of less than all of a case should be appealable. However, in Phillips v. Brown, 197 Ill.2d 337 (2001), the Court emphasized that while, in most cases, it is desirable that appeals involving Rule 137 issues be combined with the appeal of the underlying case, the trial judge should have the discretion, through the use of Rule 304(a), to permit the separation of those questions on appeal.

The rule has been held to apply to lies contained in oral representations to a trial court by counsel seeking to justify a motion for a continuance. Modern Mailing Sys. v. McDaniels (4th Dist. 1989), 191 Ill. App. 3d 347. In addition, a successor attorney may be held accountable for filings made by his/her predecessor, if it is learned that a previously filed pleading or document was not well founded in fact. In Nissenson v. Bradley (1st Dist. 2000), 316 Ill.App.3d 1035, successor counsel, shortly after substituting in as plaintiff's counsel in a medical malpractice case, learned that the doctor who had been named in the Section 2-622 certificate that had been filed with the complaint, denied that he had ever stated that the defendant's conduct failed to meet the applicable standard of care, and denied the content of the certificate that had been attributed to him. The lawyer failed to make any timely disclosure to either the court or the opposing lawyer. When these facts were subsequently learned, the trial judge imposed a sanction pursuant to SCR 137. In affirming the application of the sanction, the appeals court quoted the court in Walsh v. Capital Engineering & Manufacturing Co., 312 Ill.App.3d 910 (2000): Counsel cannot simply remain silent when faced with ... newly discovered information, file additional papers with the court that do not reveal the more recent discovery and by such silence allow court and opposing counsel to draw erroneous conclusions or proceed on improper assumptions. Instead, once it appears that the prior factual allegation is in error, this must be brought forthrightly to the attention of court and opposing counsel, at least in the next available court filing. While the imposition or denial of sanctions under the rule is within the discretion of the trial judge and will not be reversed barring abuse. (see Peterson v. Randhava (1st Dist. 2000), 313 Ill.App.3d 1; Estate of Smith v. Smith (3rd Dist. 1990), 201 Ill. App. 3d 1005) However, where there is a failure to fully appreciate a violation of the rule through the application of sanctions, appellate courts will remand a Rule 137 claim for further proceedings. E.g. Pitulla v. Novoselsky (1st Dist 1990); 202 Ill. App. 3d 103. (Also see Pritzker v. Drake Towers (1st Dist. 1996), 283 Ill. App3d 587, holding that a party signing an affidavit must take responsibility for any false statement knowingly or recklessly made, even if the affidavit was signed on the direction or advice of counsel). When Sanctions are imposed, a judge must: ... set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order. Failure to make sufficient findings will likely result in a remand to the trial court. Airolen Capital Ventures, Inc. v. Petri (2d Dist. 1994), 265 Ill. App. 3d 80.

The Timing Of A Petition For Rule 137 Sanctions: Courts have rejected the argument that a petition may only be brought after judgment is entered. This argument is based on the following language in the Rule: ... Motions brought pursuant to this rule must be filed within 30 days of the entry of final judgment. The appellate court in Peterson v. Randhava (1st Dist. 2000), 313 Ill.App.3d 1, noted that Rule 137 is designed to help expedite the litigation, and not merely to provide sanctions: ... we do not believe a litigant should be required to mount a lengthy, costly defense against a harassing or untrue pleading, if such an expenditure of resources may be avoided (cite omitted). ... if one party to a lawsuit can demonstrate that the opposing party pursued a false or harassing claim, Rule 137 does not require the trial court to defer resolution of the issue until the ultimate disposition of the case. The holding in Randhava does include a caveat. An early application for Rule 137 sanctions, notwithstanding the possibility that a petition may address a material fact alleged in a complaint, does not invite the trial court to, on its own motion, enter summary judgment against an offending party. In speaking of summary judgment pursuant to 735 ILCS 5/2-1005, the court noted: ...nowhere in the statute does it authorize the court to dispose of the case as a matter of law, absent a request by one of the parties. In fact, the statute (735 ILCS 5/2-1005) allows for the opposing party to file counter-affidavits before or at the time of hearing on the motion. These principles demonstrate that a motion for sanctions bears little resemblance to a motion for summary judgment. C. - Appearances and Time for Answers, Replies and Motions 1. SCR 183 - Extensions of Time Rule 183 provides the trial court with the discretion to extend the time for filing any pleading or doing any act which is required to be done under the Rules. Discretion can be exercised only when a request is placed before the court through a motion. The motion can be made either before or after the expiration of the time within which the act in question is to be performed. However the discretion afforded the trial judge is not unlimited. The Rule requires a showing of "good cause" for the requested extension. The Supreme Court has emphasized that substantial compliance with this requirement is necessary. The assertion that a delay will not result in prejudice or inconvenience to an opposing party does not constitute a showing of "good cause". Bright v. Dicke, 166 Ill.2d 204, 209 (1995)

2. SCR 185 - Telephone Conferences Except as may be otherwise provided by rule of the circuit court, the court may, at a party's request, direct argument of any motion or discussion of any other matter by telephone conference without a court appearance. The court may further direct which party shall pay the cost of the telephone calls. In agreeing to such proceedings, it important for the trial judge to fully consider logistical details such as court reporting. 3. Rule 187 - Motions For Change Of Venue On The Ground of Forum Non Conveniens Sub-paragraph (a) requires that such motions be filed within 90 days after the last day allowed for the filing of an answer. Although Supreme Court Rule 181(a) seems to require that, unless otherwise ordered, an answer is required "on or before the last day on which he (a defendant) is required to appear", the Court appears to have held that where the circuit court does not set a date for the filing of an answer, the 90 day period provided for under the rule does not begin to run. See Miller v. Consolidated Rail Corporation (1996), 173 Ill.2d 252. A motion to transfer venue or to dismiss on the ground of forum non-conveniens does not attack the jurisdiction of the court. The motion, therefore, is addressed to the discretion of the trial court, but is subject to review in the event discretion is abused. (See e.g. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112; Schoon v. Hill (1st Dist. 1990), 207 Ill. App. 3d 601). It may relate to both inter- and intra- state issues. In making its decision, the trial court must consider certain private and public factors. The Supreme Court defined applicable factors in Bland v. Norfolk (1987), 116 Ill. 2d 217 and, Boner v. Peabody (1991), 142 Ill. 2d 523: 1) The relative ease of access to sources of proof; 2) The availability of compulsory process for attendance of an unwilling witnesses; 3) The cost of obtaining the attendance of willing witnesses; 4) The accessibility of a scene for possible viewing by a trier of fact; 5) Other problems that would make the trial of a case more difficult, and/or add to its duration and expense; 6) Any obstacles to a fair trial that might exist;

7) Any administrative difficulties which could flow from relative court congestion between competing venues; 8) Any local interest that might exist in having a controversy decided in a particular forum; 9) Interest in conserving finite judicial resources and the weight of the responsibility of jury service presented to an unrelated forum; and 10) In inter-state forum non conveniens situations, the possible application of foreign law to the resolution of the matter. Deference is to be given to the plaintiff's choice of a forum. That deference is to be substantial when the plaintiff chooses a forum within which he/she resides, (McClain v. Illinois Central (1988), 121 Ill. 2d 278). Special note should be taken that motions brought pursuant to Rule 187 do not dispute jurisdiction within the venue that the motion is brought. Therefore, the Supreme Court has determined that in deciding a forum non conveniens question, the trial judge should not consider factors which go to the issue of the court's jurisdiction. For example, in Vinson v. Allstate, (1991), 144 Ill.2d 306, 312, the Supreme Court held that a trial court abused its discretion in considering the fact that the defendant did business in the county where the case was pending in conjunction with other "private interests." Also see Evans v. MD CON, Inc. (1st Dist. 1995), 275 Ill. App.3d 292. Within the same context, see Hulsey v. Scheidt (1994), 258 Ill.App.3d 567, 578, which cited Franklin v. FMC Corp (1986), 150 Ill.App.3d 343, 348. In Evans, the court found that the presence of a registered agent, an office, or a principal place of business are insubstantial links for forum non conveniens analysis; notwithstanding the fact that they go to the issue of jurisdiction.

Where A Forum Non Conveniens Motion Is Granted, The Defendant Is Deemed to Have Waived Any Statute Of Limitations Defenses If The Cause Is Filed In Another Forum Miller v. Consolidated Rail Corporation (1996), 173 Ill. 2d 252, dealt with a situation where the defendant had convinced the trial judge that Madison County was an inconvenient forum. Defendant's motion under Rule 187 focused on Indiana as the appropriate venue. The plaintiff refiled the case in Missouri. After losing a forum non conveniens motion in that court, the defendant filed a statute of limitations defense. Plaintiff returned to Madison County and moved to reinstate the case on the ground that the defendant had violated the condition of that court's dismissal pursuant to Rule 187. Plaintiff argued that under SCR 187(c)(2)(i), the defendant must waive any statute of limitation defense in exchange for requested relief: (2) Dismissal of an action under the doctrine of forum non conveniens shall be upon the following conditions:

... (ii) if the statute of limitations has run in the other forum, the defendant shall waive that defense. The court rejected the defense argument that the waiver language should only apply where a case is timely filed in the first instance and the statute of limitations runs while it is pending in the Illinois forum: Although defendant views the condition in subdivision (c)(2)(i) as prejudicially requiring a waiver of the statute of limitations defense in another forum where it is a viable defense both in that forum and while the lawsuit was previously pending in the Illinois court which granted the dismissal for forum non conveniens. Defendant merely obfuscates the issue. In such instances, a defendant may successfully raise the statute of limitations in the first instance in the Illinois court and have the case dismissed.

D - Motions for Summary Judgments and Evidentiary Affidavits 1. SCR 191 - Proceedings Under Sections 2-1005, 2-619, and 2-301(b) of the Code of Civil Procedure Rule 191(a) Governs The Time Within A Motion For Summary Judgment Can Be Brought Although concerned primarily with rules regarding affidavits, in 1992 the rule was revised to place discretion in the trial court regarding the timing of summary judgment and other dispositive motions. The Civil Practice Act (735 ILCS 21005(a)&(b)) provides that a motion for summary judgment may be brought at "any time." Responding to what was probably observed by the Supreme Court as excessive use of summary judgment as a means for delay, rather than for judicial economy, the court promulgated an amendment to the Rule. Rule 191 now provides, in abrogation of Section 5/21005, that such motions "must be filed before the last date, if any, set by the trial court for the filing of dispositive motions". Rule 191 also governs the form and content of affidavits and other materials that can be considered by a trial court in determining motions which require consideration of evidence, such as summary judgement (735 ILCS 5/2-1005), certain motions under 735 ILCS 5/2-619, and some motions accompanying special and limited appearances attacking the jurisdiction of the court (735 ILCS 5/2-301(b)).

Affidavits considered on summary judgment must contain facts of which the affiant has personal knowledge, and which he/she would be competent to testify to at trial (Consolidated Freightways Corp. v. Peacock Eng'g Co. (1st Dist. 1993), 256 Ill. App. 3d 68). Matters asserted in an affidavit which the affiant would not be competent to testify to must be disregarded (E.g. An affidavit which asserts testimony that would have been barred at trial by the "Dead Man's Act" must be stricken, In re Estate of Levy (1st Dist. 1975), 27 Ill. App. 3d 362). The affidavit may not consist of conclusions Madeo v. Tri-Land Properties, Inc. (2d Dist. 1992), 239 Ill. App. 3d 288). Nor may statements predicated on "information and belief" be considered as evidence for the purposes of Rule 191, Beattie v. Lindelof (1st Dist. 1994), 262 Ill. App. 3d 372). An affidavit predicated on conclusions and information and belief can neither carry nor defeat a motion for summary judgment (Lackey & Lackey v. Prior (5th Dist. 1992), 228 Ill. App. 3d 397). If the content of an affidavit is based on papers, the documents relied upon must be attached in the form of either certified or sworn copies. This would include the opinions of experts which are dependent on the content of reports that practitioners in the witness' field would reasonably rely upon - (FRE 703, Brooks ex rel. Brooks v. Illinois Masonic Hosp. & Medical Ctr. (1st Dist. 1992), 240 Ill. App. 3d 521). Where an affidavit refers to an exhibit, failure to attach the exhibit can be viewed as a technical defect, as long as affiant swears to personal knowledge of the contents (Vavadakis v. Commercial Nat'l Bank (1st Dist. 1988), 178 Ill. App. 3d 278). The holding in Vavadakis is very much in doubt given the Supreme Court's recent decision in Robidoux v. Oliphant, 201 Ill.2d 324. In Robidoux, the Court held that a trial judge had properly stricken an expert's affidavit which had been filed in response to summary judgment. The affidavit referred to various documents the expert had considered in reaching his opinion. However, the documents were not actually submitted with the affidavit: ... this requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself. It is not a mere technical requirement. Were we to relax the attached-papers requirement ..., we would be lowering the bar and allowing the avoidance of summary judgment whenever a party is able to produce an expert to support its position. Robidoux, 201 Ill.2d at 344. The Court in Robidoux further sustained the trial court's denial of the plaintiff's request to file the necessary supplemental materials made after the affidavit was stricken and defendant's motion for summary judgment granted: Robidoux, 201 Ill.2d at 346 quoting Gardner v. Navistar International Transportation Corp., 213 Ill. App.3d 242 at 248-249 (1991)

Rule 191(b) does provide possible relief to a respondent to a motion for summary judgment where evidence necessary to meet the motion is in the hands of the movant or other adverse parties.

An affidavit seeking relief under Rule 191(b) must specifically set forth the identities of persons whose testimony would be necessary to meet a motion, as well as the expected content of such testimony. Relief is available in the form of a continuance, and leave to take depositions or to use interrogatories, the content of which can be eventually considered on determination of a motion. (Also see 735 ILCS 5/2-1005 (c)). A general request for additional discovery is not sufficient to defeat or delay consideration of a motion for summary judgment. An affidavit complying with SCR 191(b) is required (Intercontinental Parts, Inc. v. Caterpillar, Inc. (1st Dist. 1994), 260 Ill. App. 3d 1085. E - Discovery, Requests for Admission, and Pretrial Procedure 1. - SCR 201 - General Discovery Provisions Rule 201 provides an overview of discovery in civil cases. It discusses the substance of concerns that a trial judge must address in taking responsibility for administering discovery and pretrial proceedings under SCR 218. There are two aspects of the Rule that present recurring issues a) SCR 201(e) Sequence of Discovery - The rules do not mandate any particular order or sequence of discovery. In the event of conflicts between the parties, the trial judge may use reasonable discretion in ordering a sequence of discovery; either in a SCR 218 order, or as individual problems are presented through motion practice. b) SCR 201(k) Reasonable Attempt to Resolve Differences Required - The rule requires the parties to make a real effort to resolve discovery disputes. Under the rule, the court need take cognizance of a claim that an irreconcilable dispute exists only upon the representation of "counsel responsible for the trial of the case." 2. - SCR 202 - Purposes for Which A Deposition Can Be Taken The Rule broadly deals with the matter of both evidence and discovery depositions. Of particular note to the trial judge is the language which provides that, barring the agreement of the parties, if an evidence deposition is to be taken within 21 days of trial, a discovery deposition is not permitted. The purpose of this provision is to mitigate against causes for delays because of difficulty in sequencing both discovery and evidence depositions. It is also consistent with the intent of SCR 218(c) that all discovery be completed not less than 60 days before trial. 3. - SCR 206 - Method of Taking Depositions on Oral Examination An innovation of the 1996 amendment of the Rule is the durational limitation of subsection (d):

No discovery deposition of any party or witness shall exceed three hours regardless of the number of parties involved in the case, except by stipulation of all parties or by order upon showing that good cause warrants a lengthier examination. In most instances, where there are disputes regarding the duration of a deposition, a useful approach is to permit the deposing party to begin the deposition with a three hour segment, thus creating a transcript which will give the court a better basis for determining whether the deposing lawyers are using their time effectively. 4. - SCR 207 - Signing and Filing Depositions - The 1996 amendment of the Rule eliminated any right on the part of a deponent to change a transcript, except where the text to be changed is "based on errors in reporting or transcription." 5. -SCR 212 - Use of Depositions - Illinois' Supreme Court Rules draw a sharp dichotomy between depositions taken for the purpose of discovery and those which are taken for evidentiary purposes. Rule 212(a) curtails the use of discovery depositions. The content of such a deposition can be used: (1) for impeachment through the use of prior inconsistent statements; (2) to demonstrate the otherwise admissible admissions of a party; (3) where any content would meet any exception to the hearsay rule; and (4) in lieu of an affidavit of the deponent. In 2001, the Supreme Court added a new subpart (a)(5) to SCR 212. The new subsection opens the door to the use of discovery depositions of witnesses, other than parties and those called to give opinions, for evidentiary purposes. Such use of discovery weapons is subject to the sound discretion of the trial judge when the deponent is unable to "attend or testify because of death or infirmity", no evidence deposition of the witness is available, and the court finds that such use "will do substantial justice between or among the parties. In Re Estate of Rennick (1998), 181 Ill.2d 395, the Supreme Court emphasized the distinction between a discovery deposition being used to place testimony before a trial court, and the use of an admission contained within a deponents discovery deposition testimony. Rennick involved a malpractice trial against a lawyer who had died during its pendency. He had been deposed prior to his death. The Court held that the trial court had erred in not permitting an admission made by the decedent during the course of a deposition. It emphasized that the use of the admission is distinct from the use of any of the content of a discovery deposition as testimony.

6. - SCR 213 - Written Interrogatories to Parties Written interrogatories produce numerous issues for the trial judges attention. Subsections of the rule deal most frequently addressed in motions are: a. Subsection (c) limits the number of interrogatories that may be served on a part to 30, including subparts. Any larger number requires prior approval by the trial judge. Note should be taken of Subsection (j) which provides that the Supreme Court may approve standard forms of interrogatories for different classes of cases. The Court has in fact approved sets of for: (1) Making inquiry of plaintiffs in motor vehicle cases. (2) Making inquiry of defendants in motor vehicle cases. (3) Making inquiry in marriage dissolution cases. (4) Making inquiry of plaintiffs in medical malpractice cases. (5) Making inquiry of defendant doctors in medical malpractice cases. (6) Making inquiry of defendant hospitals in medical malpractice cases. hospitals. b. Subsection (d) provides that interrogatories must be responded to within 28 days of service. It also provides that particular objections can be filed in lieu of an answer to one or more interrogatories. The objections stand as an adequate response until such time as either the interrogating party or the respondent brings them before the court for ruling. c. Subsection (f) - requires, that upon written interrogatory, a party must disclose the identity, location and subject of the testimony of all witnesses who will testify at trial. Effective July 1, 2002, the Rule was amended so that opinion witnesses, formerly addressed under subsection (g) are now covered by subsection (f). The amended rule divides witnesses into three categories: (1) Lay witnesses -

(2) Independent expert witnesses - being a person who will be giving an expert opinion but is neither a party, employee of a party nor retained by a party to give an opinion. A treating physician is an example of an expert who is likely to fall into this category. (3) Controlled expert witnesses - being persons who are either parties, employees of a party or persons who have been retained to give an opinion. With regard to the first two categories of witnesses, a response is sufficient if it gives reasonable notice of the testimony to be offered taking into account limitations (or lack thereof) on the responding parties knowledge. Committee comments urge that the "reasonable notice" requirement be candidly observed and offered the suggestion that a disclosure that an intended witness would be testifying "about the accident" would be an inadequate response where the intended questioning might include "the lighting and weather conditions at the time of the accident". With regard to the third category, "controlled expert witnesses", a response must "identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualification of the witness; and (iv) any reports prepared by the witness about the case. These are the same as the requirements under the prior form of Rule 213(g) with one exception. Where the former 213(g) required that the respondent "provide all reports of the opinion witness" in order to fully comply with the Rule, the new Rule seems to only require the respondent to "identify ... any reports prepared by the witness about the case". It is possible that no change was intended, since the commentary to the amendment does not discuss this modification in language. The appellate court has found that there are circumstances under which a trial judge lacks the discretion to permit a witness to testify, at least with regard to material matters, in the face of a failure to disclose pursuant to SCR 213(f). Even where it is clear that an objecting party had knowledge of the existence of a witness and the nature of the information that he may have, a witness may be excluded where there has been a failure to disclose the intent to call him/her as a witness: Litigants have a right to rely, not only on the plain language of discovery rules, but also on the fact that courts will enforce them. American Service Insurance v. Olszewski, (1st Dist. 2001), 324 Ill. App.3d 743. Historically, permitting a previously undisclosed opinion to be admitted in evidence on a material issue will likely lead to reversal. (E.g. Parker v. Illinois Masonic Warren Barr Pavilion (1st Dist. 1998), 299 Ill. App3d 495). Recently, the Supreme Court avoided ruling directly on the question as to whether an opinion by a party who had been deposed but had not disclosed the opinion in either the deposition or in response to a Rule 213(g) interrogatory could be excluded from testifying. McMath v. Katholi (2000), 191 Ill.2d 251. In McMath, the court held that counsel for plaintiff, by arguing exclusion of the opinion under then repealed SCR 220, waived the right to raise an objection under 213(g) after the trial had been concluded.

In this context, it is important to note, however, that the July 1, 2002 amendment to Rule 213 added a subpart (k) which seems to provide the trial judge with greater discretion: "This rule is to be liberally construed to do substantial justice between or among the parties." The commentary to this portion of the amendment stresses that "the purpose of the rule is to allow for a trial to be decided on the merits". This principle, the commentary advises, should guide the court in determining what course of action to take in the face of a discovery violation being addressed under Rule 219. d. Subsection (g) which formerly addressed discovery relating to both lay and expert opinion witnesses has, effective July 1, 2002, been substantially amended. All of the content related to opinion witness disclosure has been moved to subsection (f). Subsection (g) now addresses "Limitation on Testimony and Freedom to Cross-Examine" The July 1, 2002 amendment to the subsection takes some content from the original subsection (i) of Rule 213. That portion of the rule provides that omission of information from a response to an interrogatory should not limit testimony where the information had been expressed in a deposition. The Rule further provides, that in the event of an objection, the party offering the testimony has the burden of proving that the matters in question have in fact been disclosed. This result is consistent with Illinois case law and the intent that technicalities give way, at least in some respects, to substantial justice between litigants. One court has held that opinions included in the pleadings or deposition testimony of an opposing party do not require disclosure under Rule 213(g). Renshaw v. Black (5th Dist. 1998), 299 Ill. App 3d 412. And the Supreme Court in Schultz v. Northeast Illinois Regional Commuter Railroad Corporation, 201 Ill.2d 260 (2002), held that evidence that an objecting party was otherwise aware of an opinion could be found in arguments made during the course of a pretrial conference. Schultz, 201 Ill.2d at 295-296. The 2002 Amendment removed any constraints on a cross-examining party's eliciting opinions or information from a witness that had not previously been disclosed. The only limitation being, that in a case involving multiple paries, the cross-examining party is precluded from bringing out such undisclosed information, where his/her position is aligned with the party who offered the witness in the first instance. (e) Subsection (i) adds a duty to timely supplement or amend prior answers to interrogatories as new or better information becomes known to a respondent, thus eliminating the need for supplemental interrogatories. (See SCR 213(i))

7. - SCR 214 - Discovery of Documents, Objects and Tangible Things An often complained of discovery abuse is the lumping together of large numbers of documents in response to requests to produce. In many instances documents not called for by the request may be produced as well, leading parties to complain that the intent of the respondent is to make discovery more difficult. The 1996 amendment to the Rule adds the requirement that the responding party: ... produce the requested documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request, and all retrievable information in computer storage in printed form. It is not infrequent for a requesting party and respondent to dispute whether or not given requested materials exist. This kind of controversy can usually be resolved under the rule by permitting a sworn deposition to be taken of the responding party regarding the materials, and or the requirement of an affidavit(s). The 1996 version of SCR 214, like SCR 213(i), places the burden of a responding party to supplement his/her production as additional materials are discovered. 8. - SCR 215 - Physical and Mental Examination of Parties and Other Persons - Prior to January 1, 1996, examinations pursuant to this rule were limited to those which would be conducted by a physician. The Rule has been expanded to include: ... examination by a licensed professional in a discipline related to the physical or mental condition which is involved. 9. - SCR 216 - Admission of Fact or of Genuineness of Documents This Rule is designed to take matters that cannot be seriously controverted out of a trial. If a party served with a request to admit fails to respond within 28 days, the matters set forth in the request, or the genuineness of a document tendered are deemed admitted. A response can come either in the form of an admission, sworn denial, a sworn statement as to why the responding party cannot truthfully make an admission or denial, or objections as to the propriety of the request or specific parts of it. An admission under Rule 216 is a judicial admission. The subject of the admission is virtually incontrovertible. However a party can lose the benefit of such an admission by introducing evidence on issues which would otherwise be controlled by a Rule 216 admission. See Rowe v. State Bank of Lombard (2d Dist. 1993), 247 Ill. App.3d 686.

The requirement that a party served with requests under this rule respond within 28 days is subject to SCR 183. Where a party fails to either move adequately for an extension of time pursuant to that Rule, or serve proper responses within 28 days, the trial judge does not have the discretion to grant relief from the Rule. Further, the requirement that a response be sworn is absolute. Where a party timely files a an unsworn response, the trial judge is without discretion to allow the filing of an affidavit in support of the response absent a showing of good cause. Bright v. Dicke, 166 Ill.2d 204 (1995); Tires'n Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill. App.3d 87 (2nd Dist. 2002). The Purpose of SCR 216 goes beyond discovery and, in the interest of judicial economy, serves to limit issues to be tried by reaching ultimate facts In PRS International Inc. v. Shred Pax (1998), 184 Ill.2d 224, the Supreme Court concluded that requests to admit properly include "any specified relevant fact." It rejected the argument that it does not include "ultimate facts." It emphasized that the purpose of the Rule is not limited to discovery: Although requests to admit are often classified as a discovery device and treated as such in practice, the purpose of admissions is not to discover facts but to establish some of the material facts in a case without the necessity of formal proof at trial. Failure to respond to requests for admission does not concede either the accuracy of asserted statements of the law nor admit broad conclusory statements. 10. - SCR 218 - Pretrial Procedures - This rule, which was substantially revised effective January 1, 1996, places primary responsibility with the trial judge to manage the processing of pending cases. While the Rule permits each circuit to develop more particular rules, unless such rules exist and have been approved by the Supreme Court, SCR 218 provides: ... the court shall hold a case management conference within 35 days after the parties are at issue and in no event more than 182 days following the filing of the complaint. At the conference counsel familiar with the case and authorized to act shall appear and the following shall be considered ... . The rule enumerates matters to be considered at a case management conference. Subsection (c) requires that an order be entered following the case management conference which recites agreements and actions taken by the court. It further contemplates the scheduling of all discovery. An amendment which became effective October 4, 2002 answered the question as to whether rebuttal witnesses need be disclosed. The amendment to subsection (c) requires case management orders to schedule the disclosure of such witnesses.

The same amendment makes clear that the requirement that all witnesses be disclosed no later than 60 days before commencing trial may be waived by agreement of the parties without affecting the trial date. 11. SCR 219 - Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences Rule 219 provides a structure for dealing with failures to comply with orders entered pursuant to SCR 218 as well as failures to respond, or to respond in good faith, to properly promulgated discovery. Subsection (c) sets forth a range of possible sanctions which increase in magnitude to either dismissing a claim brought by, or entering a judgment against an offending party. See Clymore v. Hayden (4th Dist. 1996), 278 Ill. App.3d 862. Recently, however, the Supreme Court emphasized, that the extreme sanction of dismissal or exclusion of material evidence which is likely to determine the outcome of a case is to be imposed only where there is a finding of purposeful and essentially contumacious behavior. Shimanovsky v. General Motors Corporation (1998), 181 Ill.2d 112. In any event, it is important to recognize the need to conduct a complete hearing on the nature of the noncompliance of an offending party and the resulting prejudice to a moving party prior to imposing any sanction. The Supreme Court has also held that Rule 219 can be used to reach pre-filing behavior of a party which has had the effect of destroying evidence which would likely be material in contemplated litigation: ... a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence. This duty is based on the court’s concern that, were it unable to sanction a party for the pre-suit destruction of evidence, a potential litigant could circumvent discovery rules or escape liability simply be destroying the proof prior to filing suit. (Shimanovsky v. General Motors Corporation (1998), 181 Ill.2d 112). The adoption of subsection (e) in 1996 eliminated the possibility that an offending party could escape sanctions by nonsuiting and refiling: A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, opinion witness fees, reproduction costs, travel expenses, postage and phone charges.

Thus the rule adds significantly to the costs that can be considered as a condition for allowing a nonsuit pursuant to 735 ILCS 5/2-1009. It does not, however impair the absolute right of a plaintiff to take a nonsuit, if the requirements of 735 ILCS 5/21009 are otherwise met. The Supreme Court in Morrison v. Wagner, (2000) 191 Ill.2d 162, corrected the appellate court's denial of a plaintiff's motion to nonsuit his complaint on the ground of discovery abuse. It stressed that Rule 219(e) "alters the consequences of taking a voluntary dismissal rather than restricting a party's right to obtain such a dismissal." At least one appellate court has concluded that the power to award costs Rule 219(e) is not intended to unduly burden a plaintiff's right, even for tactical reasons, to take a voluntary nonsuit. In Scattered Corporation v. Midwest Clearing Corporation (1st Dist. 1998), 299 Ill. App.3d 653, the court held that a condition to awarding the additional costs provided for under the rule is a finding that the offending party has, in failing to respond to discovery, acted in a demonstrably deliberate, contumacious or unwarranted manner with disregard for the court’s authority. 12. - SCR 237 - Compelling Appearance of Witnesses at Trial While Rule 237 remains essentially the same in most respects, the 1996 amendments made a significant change in subsection (b). That section deals with notices to parties to be available and/or to produce witnesses under their control at trial. The Rule previously permitted a party to also require the production of documents and tangible things at trial. The amendment to rule limits such requests to "things previously produced during discovery." F - Trials 1. - SCR 231 - Motions for Continuance This rule governs motions for continuance. Although practice tends to be informal, the rule requires that a case reached for trial be heard, "unless a sufficient excuse is shown for the delay" (SCR 231(f)). Generally speaking, a motion for a continuance is addressed to the sound discretion of the trial judge. A movant cannot complain of abuse of discretion in the denial of a continuance in the absence of an adequate presentation which meets the requirements of Rule 231(a). (State Farm Mut. Auto. Ins. Co. v. Haskins (2d Dist. 1991), 215 Ill. App. 3d 242; c.f. Jack v. Pugeda (5th Dist. 1989), 184 Ill. App. 3d 66). A judge's abuse of discretion in denying a continuance may be subject to review. Duran v. Chicago & N.W. Ry. (1st Dist. 1975), 26 Ill. App. 3d 645). Granting a motion for a continuance is not a final and appealable order and will not be reviewed. Reasons for a continuance may include the unavailability of counsel, a party, or a material witness. Rule 231(a) requires that a motion demonstrate due diligence was used, identify the missing quantity, establish the materiality of any presently

unavailable evidence/testimony, and represent that, given a continuance, it is reasonable to believe that the witness/evidence will be available. Obviously, it would be injudicious to grant a continuance if the court is not convinced the witness or evidence in question will be available at some reasonable point in time in the future. A common sanction imposed when a plaintiff is unprepared for trial is the entry of an order of dismissal for want of prosecution (DWP). With regard to causes of action accruing prior to March 9, 1995, a dismissal for want of prosecution has not been generally viewed as a final and appealable order (see Flores v. Dugan (1982), 91 Ill. 2d 108). The rationale for this holding is that under 735 ILCS 5/13-217, an action dismissed for want of prosecution can be refiled within one year of the dismissal; even if the statute of limitations had run during the pendency of the dismissed action, or during the year following dismissal. Of course, where a period of limitation in excess of one year remained for the claim, the plaintiff would be entitled to refile during the greater period. While the authority of Flores was expressly confirmed by the Supreme Court in its recent decision in Vaughn Oil Company v. Caldwell Troutt & Alexander (1998), 181 Ill. 2d 489, the Court went on to hold that a DWP order does in fact become a final and appealable order at the time the right to refile under section 5/13-217 expires. In so holding the Court acknowledged that its decision could produce an additional two years during which plaintiffs could file applications for reconsideration of such a dismissal through the use of Section 5/2-1401 petitions (735 ILCS 5/2-1401). An additional caution should be considered in relation to dismissals for want of prosecution. Although a case which has been "DWPed" is not viewed as being disposed of on its merits under SCR 273, the Court has held that 735 ILCS 5/2-217 permits only one refiling, regardless of whether the applicable statute of limitations is still open. Flessner v. Young Development Co. (1991), 145 Ill.2d 252. Therefore, a dismissal of a second filing is final as between the plaintiff and the named defendants. However, if a subsequent filing, based on the same transaction names new defendants, and the statute of limitations is open, the case may be prosecuted, but only against the previously unnamed defendants. Saffold v. Concept I, Inc. (2000), 316 Ill.App.3d 993. 2. SCR 234 Voir Dire - Examination of Jurors and Cautionary Instructions Effective May 1, 1997, language was added to SCR 234 which appears to extend to counsel a right to address questions directly to potential jurors during voir dire: The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. Questions shall not directly or

indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors. This rule requires the trial court to take full responsibility for the conduct of voir dire examination. While the language of the amendment requires some right to direct inquiry by counsel, the trial judge is given great discretion in exercising reasonable control over such questioning. It should also be noted that Rule 234 also provides that: Questions shall not directly or indirectly concern matters of law or instruction. This language notwithstanding, questions concerning the law or a juror's ability to follow the law may be addressable where it may go to a question of bias. See People v. Stack (1986), 112 Ill.2d 301 (dealing with a juror's ability to consider the insanity defense), and Schneider v. Kirk (1967), 83 Ill. App.2d 170, (dealing with a juror's ability to accept the concept of strict liability in a dram shop case) However, voir dire can't be used as a means to educate and argue, see Limer v. Casassa (4th Dist 1996), 273 Ill. App3d 300, 303 (dealing with effect of publicity regarding tort reform on a juror's thinking). 3. SCR 236. Admission of Business Records This rule, to a large extent, governs the business records exception to the hearsay rule in Illinois. It expressly excludes police accident reports. Such reports may, however be admissible under other exceptions to the hearsay rule (e.g. for impeachment purposes, (People v. Strausberger (2d Dist. 1987), 151 Ill. App. 3d 832). 4. SCR 239 - Jury Instructions Subsection (a) mandates that whenever the IPI contains an instruction that is applicable to a matter before a trial court, it "shall be used" unless the trial judge determines that it mistates the law. Snelson v. Kamm, 2003 Ill. Lexis 456, * 10 (March 20, 2003). However, where opinions of the Appellate or Supreme Courts indicate a need for modification, a trial judge should use an applicable instruction which has been modified in accordance with the caselaw. For example, see discussion in Snelson regarding the proper use in appropriate cases of the term "loss of a normal life" in place of "disability" in damages instructions; consistent with the holding of the Appellate Court in Smith v. City of Evanston, 260 Ill. App.3d 925 (1st Dist. 1994). G - Entry Of Orders And Judgments -

1. SCR 273 - Effect of Involuntary Dismissal Rule 273 provides that unless an order of dismissal or an applicable code provision provides otherwise, any involuntary dismissal for reasons other than jurisdiction or venue, or nonjoinder operates as an adjudication on the merits. The characterization of the dismissal is important because it can effect the right to refile, (see 735 ILCS 5/13-217), or the application of the doctrine of res judicata, both as against the parties to the original litigation as well as those possibly subject to liability based on principles of vicarious responsibility. A narrow issue that frequently arises is whether a dismissal with prejudice of an action against an agent because of a statute of limitation, usually through the application of SCR 103(b), 735 ILCS 5/2-619(5), or on summary judgment constitutes a disposition on the merits so as to bar an existing action against a principle predicated on the doctrine of respondeat superior. The Supreme Court of Illinois partially resolved this issue in Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70. In Downing the court acknowledged that the disposition of a complaint against an agent without an assessment of the substantive claims against him/her should not bar an action against the principle: When a summary judgment is granted because the statute of limitations has run, the merits of the action are never examined. To label such an order as an adjudication on the merits would be the quintessential act of exalting form over substance. Courts cannot ignore the basis on which the summary judgment was granted. If, as in this case, that basis bears no relationship to the actual merits of the case, it would be inappropriate to apply the doctrine of res judicata to another party to the action. By its holding the Court appeared to depart from a long line of cases which had held that the unfavorable disposition of the cases against the agent, regardless of the basis for the disposition, barred actions against the principle. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113). A caveat is in order. The majority opinion in Downing specifically reserved overruling Towns. While both the dispositions in Downing and Towns turned on a determination of a pretrial motion, the dismissal of the action against the agent in Downing was on the basis of a summary judgment predicated on SCR 103(b), while the dismissal in Towns was a discovery sanction under then Rule 219(c). The majority in Downing noted that this distinction is important: Rule 273 applies only to an involuntary dismissal of an action, such as what occurs when a motion to dismiss under section 2615 or section 2-619 of the Code of Civil Procedure is granted. A summary judgment is not an involuntary dismissal. (Downing v. CTA)

Leow v. A&B Freight Line, Inc. (1997), 175 Ill.2d 176, apparently eliminated this distinction as to motions for summary judgment and dispositive motions turning on statutes of limitations under 735 ILCS 5/2-619(5). In Leow, the action against a defendant driver was dismissed through a ruling on a 2-619(5) motion. The driver's employer promptly moved to dismiss the earlier action filed against it on the grounds of res judicata. The Supreme Court overturned the trial court's dismissal of the action against the employer stating: ... the fact that the employee in this case utilized a section 2-619 motion to dismiss rather than a motion for summary judgment, does not warrant a different result from that reached in Downing. ... To adhere to the policy behind Rule 273, an involuntary dismissal as to the employee, like a summary judgment, should not be automatically labeled a judgment on the merits with respect to the employer. But rather, as directed in Downing, the basis on which the judgment was granted should be examined to determine whether the merits of the case were ever considered. A note of confusion is introduced by the fact that while the Court was unanimous as to outcome, it was divided 4-3 on the basis for the result. This controversy turns on the Court's holding in Rein v. David Noyes & Co. (1996), 172 Ill.2d 325. The Leow majority noted that subsequent to the Court's decision in Downing, it held, in Rein, that a dismissal under 2-619(5), was a disposition on the merits for the purpose of SCR 273. It concluded however that its decision in Leow was not inconsistent. The court found a significant distinction between the two cases in the fact that the defendants were different parties in Leow, while the defendants in consecutively filed actions were the same in Rein. Discussing cases decided under the Federal Rules of Civil Procedure (Rule 41(b)), the Court concluded that in a Rein situation, res judicata arises because the same issue has been decided between the same parties, notwithstanding the fact that the particular issue does not go to the merits of the plaintiff's claim(s). The remaining justices were of the opinion that a dismissal on statute of limitations grounds is a determination on the merits under SCR 273. However, they concluded that statute of limitations is a defense that is personal to the pleader. Therefore, such a dismissal is not dispositive of claims against third parties, even where the liability of the third party is predicated on respondeat superior arising from the conduct of the dismissed party. A trial judge, in some instances, can eliminate any issue by, when granting a motion to dismiss predicated on statute of limitations, including a finding in his/her ruling that the dismissal is not on the merits. See Walters v. Yellow Cab (1st Dist. 1994), 265 Ill. App3d 331. The Court has reached a consistent result in a line of cases where, like statute of limitation, the basis for dismissal has not included the merits of the substantive cause of action. In DeLuna v. Triester (1999), 185 Ill.2d 565, the Supreme Court concluded that a dismissal for failure to comply with 735 ILCS 5/2-622 (i.e. provide an opinion of a qualified expert as a part of a filing of a medical malpractice case), is a disposition on the merits:

In this case, Rule 273 fulfilled its intended purpose. Plaintiff knowingly defied a statutory pleading requirement, in order to challenge the constitutionality of the requirement. Plaintiff could have requested leave to satisfy section 2-622, and/or refile his complaint. He chose not to do so. Had Rule 273 not operated in precisely the manner intended, plaintiff could have refiled the action yet again. The rule therefore preempted potentially needless litigation. The Court went on to state, consistent with its holding in Leow, that dismissal of an agent on grounds personal to that party, does not necessarily mandate a dismissal of the an action brought against a principal predicated on respondeat superior. The Court went on to affirm the appellate court's rejection of the argument that the dismissal of the claim against Dr. Triester necessarily required dismissal of a claim against St. Elizabeth Hospital predicated on Dr. Triester's conduct: ... a judgment against a plaintiff based on a defense personal to one defendant does not have a res judicata effect in subsequent litigation against a different defendant who might be vicariously liable. (Citing Restatement (Second) of Judgments @51 (1982). The Court has also specifically found that a dismissal of a complaint for failure to state a cause of action constitutes a disposition on the merits, whether the dismissal was in an Illinois court or another forum. River Park, Inc. v. City of Highland Park (1998), 184 Ill.2d 290. In terms of res judicata, the River Park decision resolved that any further action by the plaintiff in the dismissed action would be barred as to any other claims that would depend on the group of operative facts which gave rise to the dismissed action. River Park marks Illinois rejection of the "same evidence test" and the recognition of the "transactional test" as the sole means for apply the doctrine of res judicata: ... we hold that the same evidence test is not determinative of identity of cause of action. Instead, pursuant to the transactional analysis, separate claims will be considered the same cause of action for the purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief. A possibly recurring issue was addressed in response to a plaintiff's claim that the cause of action dismissed by a federal court constituted a federal claim, and therefore the dismissal should not bar the filing of a state claim. The Court concluded that while the plaintiff could not invoke federal jurisdiction on the state claim alone, that having elected to file a federal claim, the plaintiff risked the loss of related state claims by not attempting to invoke the federal court's supplemental jurisdiction. The Court noted that in the event the federal court disposed of the federal claims, and declined jurisdiction as to the remaining state claims, the plaintiff would have been left with those causes in tact for refiling in a state forum; but not for any additional claims which had not been pleaded in the federal court. This construction of River Park was subsequently confirmed by the court's decision in Nowak v. St. Rita High School (2001), 197 Ill.2d 381. Justice Harrison noted:

By declining jurisdiction over the plaintiff's pendent state claim, dismissing it for lack of jurisdiction, the district court in effect reserved plaintiff's right to pursue the matter in state court. The doctrine of res judicata need not be applied in a manner inconsistent with fundamental fairness.

VI. Civil Appeals Rules A - APPEALS FROM THE CIRCUIT COURT 1. SCR 303 - Appeals from Final Judgments of the Circuit Court in Civil Cases SCR 303(a)(1) governs the time within which a notice of appeal must be filed. The rule requires such a notice to be filed within 30 days after the entry of the final judgment appealed from, or within 30 days after the entry of an order disposing of a timely filed last pending post-judgment motion. Subparagraph (a)(2) further provides that the filing of a timely post-judgment motion stays the period during which a notice of appeal can be filed. However, the rule expressly provides that a motion for reconsideration of a ruling on a post judgment motion will not toll the running of the time within which a notice of appeal must be filed. In a non-jury proceeding, it is clear that an initial motion to reconsider a judgment of the court will toll the period during which a notice of appeal must be filed. It must be emphasized that such a motion must be "directed against the judgment" in order to be effective. A post summary judgment motion to file an amended complaint pursuant to 735 ILCS 5/2-1005, for example would not be sufficient to stay the 30 day filing period. Fultz v. Haugan (1971), 49 Ill.2d 131. The vitality of the holding in Fultz was emphatically confirmed in the majority opinion of a sharply divided Supreme Court in Berg v. Allied Security Inc. (2000), 193 Ill.2d 186. In Berg, the plaintiff filed a timely motion to reconsider a summary judgment entered in defendant's favor, and in the alternative asked for leave to file an amended complaint. The trial court denied the motion to reconsider, but took the motion for leave to file an amended complaint under advisement. Subsequently, 42 days after it had denied the motion to reconsider, it denied the motion to file an amended complaint. The plaintiff filed its notice of appeal four days later. The Supreme Court held that the appellate court lacked jurisdiction to consider the appeal, since the 30 days during which notice of appeal had to filed ran from the denial of the motion to reconsider the previously entered summary judgment. It concluded that the motion for leave to file an amended pleading, under Fultz, did not attack the judgment, therefore its

pendency did not stay the period of time during which a notice had to be filed in order to give jurisdiction to decide the appeal. The majority expressly rejected the argument that since 735 ILCS 5/2-1005(g) permits a court, as an alternative to summary judgment, to allow the filing of an amended pleading, such an action by the court would necessarily defeat summary judgment. Although, not necessarily germane to the consideration of trial judges, it is of interest to note, that a question that further divided the court was whether an appellate court could exercise its discretion to excuse compliance with the timely filing of notice of appeal requirement of Rule 303. The majority held that it could not. 2. SCR 304 - Appeals from Final Judgments that Do Not Dispose of an Entire Proceeding Rule 304(a) affords discretion to a trial judge to a make a disposition which is final, which adjudicates "fewer than all the claims," "or the rights and liabilities of fewer than all the parties", an appealable order. Without such a determination by the trial judge, such dispositions are not ordinarily appealable. Without an express finding by the trial judge, a partial disposition of either claims filed or the rights of fewer than all parties is not appealable. (Ariola v. Nigro (1958), 13 Ill. 2d 200; In re Air Crash Disaster (1st Dist. 1994), 259 Ill. App. 3d 231). No matter how clear the finality of a judgment as to fewer than all parties or all claims, without the clear statement of the trial judge that there is no justice cause for delaying an appeal, the judgment is not appealable. People exrel. Ryan v. Rude Way Enterprises Inc., 326 Ill. App.3d 959 (1st Dist. 2001). However, a trial court cannot use SCR 304(a) to grant a party a right to appeal an order which is not final. For example, in Cabinet Serv. Tile, Inc. v. Shroeder (1st Dist. 1993), 255 Ill. App. 3d 865, the appellate court dismissed an appeal of the trial court's denial of a motion to dismiss a complaint, even though the court had entered a Rule 304(a) finding, (c.f. the power of the trial court to certify a question under SCR 308). It is important to recognize that for the purpose of jurisdiction under the rule, "It is not the court's finding that makes the judgment final, but it is the court's finding that makes ... a final judgment (where fewer than all claims are disposed of) appealable." (See Virre v. Zayre Stores, Inc. (2d Dist. 1991), 212 Ill. App.3d 505). In general, each count of a complaint pleading distinct theories for the same injury may constitute a distinct claim for 304(a) purposes. See Carlson v. Moline Board of Education (3d Dist. 1984), 124 Ill. App.3d 967, where the complaint included three counts for the same injury: structural work act violations, common law negligence and a violation of the school code. Where, however, the counts are not based on distinct theories, but rather on alternative forms of a single theory, (e.g. negligence) stated in separate counts, they do not state separate claims for the purpose of the rule. Rice v. Burnley (1st Dist. 1992), 230 Ill. App.3d 987.

The effect of a trial judge's determination that the dismissal of a count of a complaint should not be appealable under SCR 304(a) cannot be avoided through the nonsuit of remaining counts without risking the loss of the nonsuited counts. The Supreme Court recently decided, in Rein v. David A. Noyes (1996), 172 Ill. 2d 325, that the doctrine of res judicata would preclude the refiling of counts nonsuited under such circumstances. In that case, the plaintiff failed to prevail on his appeal of the dismissal of the counts for which the court had denied a 304(a) finding. The Court emphasized: ..., an interpretation contrary to that reached here would emasculate Rule 304(a) by allowing a plaintiff to circumvent a trial judge's denial of a Rule 304(a) certification by refiling previously dismissed counts following an unsuccessful judgment or appeal on counts not previously appealed. Rein v. David A. Noyes (1996), 172 Ill. 2d 325, 343. The rationale of Rein would be applicable only to counts that would have been barred by the doctrine of res judicata because they could have been decided on their merits if the nonsuited counts had gone to trial. See discussion of Torcasso v. Standard Outdoor Sales, Inc, (1993), 157 Ill. 2d 484 at 172 Ill. 2d 338. However, where an order or finding which would not be appealable absent 304(a) language, becomes a final and appealable order by virtue of a nonsuit of remaining portions of a case, the refiling of the case does not deprive an appeals court of jurisdiction of any appeal which may have been filed in the interim by a defendant. In Dubina v. Mesirow Realty Development, Inc., (1997), 178 Ill.2d 496, following the plaintiff's nonsuit of his case, a nonsettling defendant appealed good faith findings regarding the settlement of other defendants in that case. While the appeal was pending, the plaintiff refiled. The court concluded that the refiling did not deprive the appellate court of jurisdiction to review the good faith findings made in the first action. Overruling the appellate court's opinion in Kleiman v. Northwestern Memorial Hospital (1st Dist. 1993), 253 Ill. App.3d 47, the Court stressed that a refiled action is an entirely new and separate action, and not a reinstatement of the old action. Note, the rule requires that the record clearly indicate a trial judge's determination that a question should be appealable. Language such as dismissal "with prejudice" is not sufficient. What is required is either direct reference to Rule 304(a) or to the court's determination that there is no good cause for delaying appeal of the disposition of the cause of action or party in question. Phillips v. Brown, 107 Ill.2d 381 (2001). Rule 304(b)(5) provides that any contempt order which imposes a penalty of any kind is a final and appealable order. In addition, Rule 304(b)(4) provides that any order granting or denying post judgment relief prayed for in a petition pursuant to 735 ILCS 5/2-1401 is appealable. Recently, a divided (5-2) Illinois Supreme Court ruled that petitions for relief from void judgments on the ground that the trial court lacked jurisdiction brought more than 30 days from the date of judgment are viewed as being brought under Section 5/2-1401. The majority also found that the requirements that petitions for relief be

filed within two years of judgment and that they brought without unreasonable delay set forth a meritorious defense do not apply to petitions attacking the jurisdiction of the court. Justice McMorrow in Sarkissian v. Chicago Board of Education, 201 Ill.2d 95 (2002), a case where a petition for relief was filed by the defendant and granted by the trial court more than seven years after the entry of a default judgment, observed that Section 2-1401 a) eliminates all common law means for attacking a judgment that is more than 30 days old, and at the same time provides in Section 2-1401 f) that: Nothing entailed in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief. Accordingly, she concluded that subsection (f) was intended to preserve attacks on judgments based on jurisdiction in Section 2-1401 without making them subject to the limitations provided on attacks which concede jurisdiction. The consequence of this analysis is that any ruling granting or denying petitions for this kind of relief is appealable under SCR 304(b); even though a favorable ruling on a petition may have reopened the underlying proceedings that the Section 2-1401 motion related to. 3. SCR 305 - Stays of Judgments Pending Appeal SCR 305 deals with the mechanics of stays pending appeal. Under the rule motions for a stay are to be made within the period of time during which a notice of appeal can be filed. Ordinarily such motions must be first presented to the trial court. Application can only be made to a reviewing court in the event a stay is denied in the trial court or upon a showing that an application to the trial court would not be practical. (SCR 305(d)) The filing of a notice of appeal does not, in and of itself, deprive the trial court of jurisdiction to enforce its judgment. A stay of judgment can be the consequence of a statute or rule which is provided for by a legislative act or rule of court; e.g. SCR 306(f). Or a stay can be the result of an order entered by a trial or reviewing court. In the absence of an automatic stay, the failure of a party to seek and obtain a stay, permits proceedings on the judgment to continue, even during the pendency of the appeal. In some instances, the failure to seek a stay may render an appeal moot. For example, where a party appeals a foreclosure or partition which resulted in a sale which was confirmed by the trial court, absent a stay of the trial judge's confirmation of the sale, the interest acquired by the non-party purchaser cannot be attacked, even if the appellant were to prevail on his/her appeal (SCR 305(j). The sole exception to this rule being the instance where the underlying judgment is found to be void for lack of jurisdiction.

As harsh as this rule may seem, it is justified on the ground that there is a need to protect the "integrity and finality of property sales, including judicial sales." See discussion, Steinbrecher et. al. v. Steinbrecher, 197 Ill.2d 514 (2001). The four justice majority in Steinbrecher emphasized: Absent this policy, no person would purchase real property involved in a judicial proceeding, if afterwards he incurred the hazard of losing the property due to facts unknown to him at the time of the sale. A party may avoid the harshness of this rule by complying with the procedural mechanisms available, such as a motion to stay enforcement of the judgment and sale.

4. SCR 306 - Appeals from Orders of the Circuit Court Granting New Trials and Granting or Denying Certain Motions Rule 306 permits litigants to petition the appellate court for leave to appeal certain non-dispositive orders: (1) An order granting a new trial; (2) An order either denying or allowing a dismissal or transfer of a case on the grounds of forum non conveniens; (3) An order denying a motion to dismiss on the grounds of jurisdiction, where the plaintiff's claim of jurisdiction is predicated on Illinois "long arm statute." (4) An order granting or denying a motion for change of venue, where the only basis for claimed venue is defendant's residence. (5) Some interlocutory orders which affect the care and custody of unemancipated minors. (6) An order of the circuit court which remands the proceeding for a hearing de novo before an administrative agency; (7) Effective December 31, 2002, orders either granting or denying class certification may be the basis for a petition for an interlocutory appeal under Rule 306. It is important to note that the granting of a petition by the appellate court under Rule 306 results in an automatic stay of all proceedings in the trial court. (SCR 306(f)) 5. SCR 307 - Interlocutory Appeals as of Right -

Certain interlocutory orders are appealable as of right. These include dispositions on motion or petitions to appoint receivers, to issue or dissolve injunctions, to place a mortgagee in possession, etc. . It also applies to some child custody orders and, since 1992, a denial of a petition for waiver of parental notice of abortion. Case law has further interpreted the Rule to include, within the meaning of appealable orders relating to injunctions, orders either granting or denying arbitration. Notaro v. NorEvan Corp., 98 Ill.2d 268 (1983), Federal Signal Corp. v. SLC Technologies, Inc., 318 Ill. App.3d 1101 (2001). Although an order may mandate an action by a party, it may not be appealable under Rule 307(a)(1), if the trial judge's direction is ministerial or administrative in nature. In People v. Philip Morris, 198 Ill.2d 87 (2001), the Illinois Supreme Court found that a direction by the trial judge to deposit certain contested proceeds in an escrow account subject to further order of court was not subject to interlocutory appeal: Such orders do not affect the relationship of the parties in their everyday activities apart from the litigation and, therefore, are distinguishable from traditional forms of injunctive relief. There are special rules that apply to the perfection of the appeal of an interlocutory order. Specifically, with regard to TROs, it had been held that the provisions of Rule 307(a) which require that appeals of orders "granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction" must be perfected by notice of appeal filed within 30 days of the entry of the subject order, is applicable to TROs. Bohn Aluminum & Brass v. Barker (1973), 55 Ill.2d 177. Subsection (d) was added to Rule 307 in 1989. The added subsection provides specifically that review of orders "granting or deny(ing)" TROs must be perfected by filing a petition in the appellate court, and notice of appeal in the trial court within two days of the order. The Appellate Court for the First District in Friedman v. Thorson (1999), 303 Ill. App3d 131, held that the provisions of 307(d), requiring perfection of appeal within two days, is also applicable to appeals of orders modifying or refusing to modify TROs. It reached this conclusion predicated on its view that the spirit of the 1989 amendment was to carve out expedited appeals rules specifically apropos to TROs. That purpose, the court found, would not be served if orders relating to modification were not subject to expedited review. Failure to pursue interlocutory review does not preclude the review, following a final judgment, of questions which could have been presented in an interlocutory appeal. Supreme Court Rule 307(a) speaks in permissive terms: An appeal may be taken to the Appellate Court from an interlocutory order of court ... . Therefore, the fact that an issue may be reviewable through an interlocutory appeal does not result in a requirement that the issue be appealed immediately or waived. The Supreme Court in Salsitz v. Fritz Kreiss, et al, 198 Ill.2d 1 (2001), held that the plaintiffs failure to perfect an appeal of the disposition of its petition to stay arbitration under Rule 307, did not waive the right to appeal the question of arbitrability following the final disposition of the case.

There are other instances, however, where failure to bring an appeal of an interlocutory ruling which is appealable under SCR 307 can result in a loss of right to appeal questions of law which were treated in the interlocutory ruling. For example, where there is a denial of a motion for a temporary restraining order or for a preliminary injunction on the ground that the underlying complaint does not state a cause of action, failure to appeal the ruling under SCR 307(d) forecloses the right to appeal a subsequent dismissal of the complaint for failure to state a cause of action. In Strata Marketing, Inc. v. Murphy, et al, (1st Dist. 2000) 317 Ill.App.3d 1054, the trial court denied a motion for a temporary restraining order based on a claim that one of the defendants was violating a noncompete clause. In making its ruling, the trial court held that the reason for the denial was that the noncompete clause alleged in the complaint was facially unenforceable. The plaintiff subsequently appealed the dismissal of the complaint on a 735 ILCS 5/2-615 motion to dismiss. The appeals court held that since the earlier ruling on the TRO had not been appealed, under SCR 307(d), the determination that the alleged noncompete clause was unenforceable was the law of the case and was res judicata on that issue for the purpose of the motion to dismiss.

6. SCR 308 - Interlocutory Appeals by PermissionThe permission referred to under this rule, is that of the trial court. However, the trial court's permission notwithstanding, the appellate court has discretion to either allow or deny leave to appeal pursuant to this rule. This rule imposes two criteria to justify an interlocutory appeal: first, there must be a substantial ground for difference of opinion; second, in the conjunctive, an immediate appeal may materially advance the ultimate determination of the litigation. (Eshaghi v. Hanley Dawson Cadillac Co. (1st Dist. 1991), 214 Ill. App. 3d 995). Assuming that the criteria for such an appeal have been met, the trial judge has the responsibility for entering a written order which clearly identifies the question of law that is being "certified." (Mirly v. Basola (5th Dist. 1991), 221 Ill. App. 3d 182). In effect, a refusal of a trial judge to certify a question pursuant to Rule 308, precludes review of interlocutory orders, except with regard to issues which can be raised under Rules 304 or 306. 7. SCR 366 - Powers of Reviewing Court - Scope of Review and Procedure Generally, a party may not urge error on review of any issue not presented in a timely post trial motion. (SCR 366(b)(2)(iii). This rule does not apply to either directed finding, summary judgments, nor, for that matter, the court's judgment after hearing evidence in a non-jury matter. Therefore, where there has been no jury, and where there is no specific provision of

the law or rules which requires a post disposition motion, post trial motions are not required. See Mohn v. Posegate (1998), 184 Ill.2d 540. VII. Rules on Criminal Proceedings in the Trial Court

A - Waivers and Pleas 1. SCR 401 - Waiver of Counsel There is a constitutional imperative that counsel be provided to any defendant in a criminal matter where there exists the possibility of incarceration. (Argersinger v. Hamlin, 407 U.S. 25 (1972)). The Supreme Court's rule responds specifically to the issue of waiver of this right. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) The nature of the charge; (2) The minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and (3) That he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court. The rule also requires that the required advice, and a defendant's responses thereto, be recorded. The procedures mandated by this rule are not required where imprisonment is not in fact imposed. (See Scott v. Illinois, 440 U.S. 367 (1979); and People v. Stahr (2d Dist. 1994), 255 Ill. App. 3d 624). However, it should be noted that imposition of even a suspended prison sentence which could later be imposed upon the violation of a condition or the occurrence of a subsequent event, is sufficient to invoke the requirements of Rule 401. Alabama v. Shelton, 535 U.S. , 122 S.Ct. 1764 (2002) 2. SCR 402 - Pleas of Guilty In May of 1997 the caption and introductory paragraph of SCR 402 were amended to read:

Pleas of Guilty or Stipulations Sufficient to Convict In hearings on pleas of guilty, or in any case in which the defense offers to stipulate that the evidence is sufficient to convict, SCR 402 places responsibility on the trial judge to see that a defendant is fully advised of rights that he/she is giving up by doing so and fully understands the consequences of such actions. (McCarthy v. United States, 394 U.S. 459 (1959)). The rule provides that: (a) ... The court shall not accept a plea of guilty or a stipulation that the evidence is sufficient to convict without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) The nature of the charge; (2) The minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; (3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and (4) That if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him. The Rule embodies earlier holdings of the court. In People v. Horton (1991), 143 Ill. 2d 11, the court held that the same admonitions which are required on a plea of guilty be given in cases in which the defense offers to stipulate to the sufficiency of the evidence to convict at a trial. However, in People v. Smith (1974), 59 Ill. 2d 236, the court stated: ... we adopt the rule uniformly applied by the appellate court that a stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense. A guilty plea waives all nonjurisdictional defenses or defects. Horton recognized the authority of Smith emphasizing that where no defense is reserved, (for example preservation of a right to appeal a motion to suppress, or the right to have the trier determine the sufficiency of the evidence), a stipulated bench trial which includes a stipulation as to the sufficiency of the evidence to convict constitutes the effective equivalent of a plea of guilty.

Generally, a conviction may not stand if required admonitions were inadequate. In considering a post-plea or conviction motion to vacate, the court may look beyond given warnings and review the entire record in order to determine whether the movant was properly advised. People v. Fuller, (Decided February 22, 2002) 2002 Ill. Lexis 287; also see U.S. v. Vonn, 535 U.S. , 122 S.Ct. 1043 (2002) and Bell v. Cone, 535 U.S. 122 S.Ct. 1843. In Fuller, the Illinois Supreme Court found that the trial court's failure to advise a guilty pleading defendant that death was a possible sentence for the two counts of intentional murder he was pleading to was not reversible error given that he was advised of that possibility with regard to the felonymurder count he had pled to at the same time: Where a defendant who is convicted upon a plea of guilty is sentenced to the greatest maximum sentence with respect to a charge upon which he has been properly admonished as to the greatest maximum and minimum sentence and there are no consecutive sentences involved, failure to properly admonish the defendant on other counts does not amount to reversible error. (page 26 of slip sheet opinion). In addition to giving admonitions, it is also the trial judge's responsibility to assure that any waiver of rights by a defendant by pleading guilty is knowing, intelligent and voluntary. (People v. Williams (1983), 97 Ill. 2d 252). It may also be prudent to advise the defendant that in order to appeal a judgment of guilt or a sentence imposed as a consequence of a plea of guilty, a motion to reconsider the sentence and/or vacate the judgment of guilt must be filed in the trial court within 30 days. See discussion of SCR 604(d) supra. 3. SCR 605(b) Advice to Defendant On judgment and Sentence Entered on a Plea of Guilty Following the imposition of a sentence on a plea of guilty the trial judge has the responsibility of advising the defendant of certain rights relating to his/her right to appeal. Effective November 1, 2000, the Supreme Court amended SCR 605 to provide distinctly separate advice for defendants found guilty following a trial and or upon a blind plea, (SCR 605(b)), and those who have been found guilty upon a negotiated plea. The term "negotiated plea" has been clearly defined, for the purpose of the rule, to include only pleas involving a prosecution agreement relating to sentencing recommendations. The Rule's definition specifically excludes from the term, "negotiated plea," those pleas which involve only a concession as to the charge or charges pending. SCR 605(b) requires the following advice on a blind plea: (1) That the defendant has a right to appeal.

(2) That the right to appeal requires a defendant to first exhaust either a motion to reconsider a sentence and/or a motion to withdraw a plea of guilty. (3) If a plea is vacated, a trial date will be set on charges to which the plea was taken. (4) That on a plea being vacated, the State may request the reinstatement of any charges dismissed in consideration of a plea agreement, and those charges will be set for trial. (5) That if indigent, the defendant will be given a transcript of the plea proceedings and sentencing without cost and that counsel will be appointed to represent him/her; and (6) That if a motion to vacate a plea of guilty is denied, any appeal will be limited to the issues raised in the motion to reconsider the sentence or to vacate the judgment. SCR 605(c) deals with the advice to be given upon a "negotiated plea." Its requirements are largely the same as those provided in subpart (b) of the rule. It differs, however, by directing the defendant to the requirement that he cannot appeal a sentence without moving to withdraw his plea, thus possibly giving up any other benefits he may have received on the plea. This expression of the Rule is consistent with the Court's holding in People v. Evans (1996), 174 Ill.2d 320. While the duty to admonish is absolute, remand will not occur unless there is some prejudice to the defendant. For example, where the trial court neglected to advise the defendant in a capital case that he could file a motion to withdraw his guilty plea or to reconsider sentence and that the failure to do so would result in waiver of issues on appeal, remand for further proceedings was not necessitated where lawyers representing the defendant did in fact present such motions in the trial court. People v. Burton (1998), 184 Ill.2d 1. However, in a similar case, where there had been no advise given regarding the necessity of filing a motion preliminary to an appeal, where a post trial motion addressing only the sentence was in fact filed, the Supreme Court remanded the case for proper admonishments regarding the requirements of a motion to withdraw a plea. The court specifically rejected the need for a defendant to demonstrate prejudice where required advice was omitted from the plea proceedings, and no motions were in fact filed. People v. Jamison (1998), 181 Ill.2d 24. 4. SCR 604(d) - Appeal From Sentences Imposed Or Judgment Entered Upon A Plea Of Guilty No plea from a judgment of guilty pursuant to a plea of guilty, nor from a sentence following a plea of guilty may be taken unless the defendant files a motion to modify a sentence or to withdraw a plea in the trial court, within 30 days of the subject judgment.

The motion must set forth the grounds that it is based on, and if it relies on factual matters, it must be supported by adequate affidavits. In the event the defendant is indigent, counsel is to be appointed and provided with a transcript of the plea proceedings. The requirement of a motion to modify a sentence or vacate a plea may be excused where the trial judge failed to advise the defendant of the rule's requirements. See People v. Jackson (2d Dist. 1984), 122 Ill. App. 3d 166. Where a sentence is imposed as a result of a plea agreement, which was accepted by the trial judge, a motion to reconsider the sentence pursuant to SCR 604(d) should not be considered absent a motion to vacate the plea itself. However, where a sentence was imposed following a blind plea, there is no requirement that a motion to reconsider the sentence be accompanied by a motion to withdraw the plea. The distinction in treatment between the two forms of pleas is a consequence of the view that there are contractual aspects to a negotiated plea: ... following the entry of a judgment on a negotiated guilty plea, even if a defendant wants to challenge only his sentence, he must move to withdraw the guilty plea and vacate the judgment so that, in the event the motion is granted, the parties will be returned to the status quo. People v. Evans (1996), 174 Ill.2d 320. In People v. Clark (1998), 183 Ill.2d 261, the Court expanded the holding in Evans to include a plea pursuant to an agreement where the question as to whether a sentence was to be imposed concurrently or consecutively would be decided by the trial judge as a matter of law. The Supreme Court concluded that trial court's determination that the sentence imposed be served consecutive to one received in another state could not be reviewed absent an effort on the part of the defendant to withdraw his plea: (defendant) was required to file a motion to vacate the judgment for a specific sentence, regardless of whether the statute mandated a consecutive sentence. When a motion is made either to reconsider a sentence or to vacate a plea on behalf of a defendant represented by appointed counsel, the rule requires that the motion be accompanied by a certificate prepared by the defendant's attorney stating: that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.

The purpose of the rule is to assure the presence of a full record of any matters that may require consideration by the trial court prior to ruling on the motion. The Supreme Court has determined that the certificate is essential to the proceedings and must be filed prior to or simultaneous with the hearing in the trial court. Failure to comply, even without a showing of prejudice, requires a remand by the appellate court for proceedings in conformity with the rule. People v. Janes (1995), 158 Ill.2d 27. Where, however, there has been a prior remand, and only a technical violation of the rule, in terms of time of filing, where there is no evidence that the motion determined by the court was in any way content deficient, a second remand will not be required. People v. Shirley (1998), 181 Ill.2d 359. In People v. Linder (1999), 186 Ill.2d 67, the Supreme Court expressly extended the Evans doctrine to pleas given in exchange for a promise to recommend a sentencing cap, as opposed to a specific sentence. The court concluded that as long as the court sentences within the "cap," a motion to reconsider the sentence cannot be made without first moving to vacate the underlying plea. The Court, however, stopped short of extending Evans to the case where the plea agreement involved only a reduction or dismissal of some charges against a defendant. In People v. Lumzy (2000), 191 Ill.2d 182, the court held that where a plea involves charging concessions, but no agreement regarding sentence or sentencing recommendations, Evans is not applicable, and a defendant may pursue an appeal of a sentence without seeking to first withdraw the plea. The Court amended SCR 604(d) to comply with Lumzy. The amendment clearly sets forth the sense of the holding in Evans and defines the circumstances under which it applies: No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a negotiated plea of guilty is one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges pending. (SCR 604(d), Effective November 1, 2000). B. Discovery In Criminal Cases Discovery in criminal cases is governed by Supreme Court Rules 411-415. They apply in felony cases only. Discovery is anticipated only after indictment or information. (SCR 411). In 2001 SCR 411 was amended to make discovery available for the purpose of sentencing hearings in capital cases. However, discovery is generally not available in proceedings under the Post Conviction Hearing Act, absent a particularized showing.People v. Coleman, (Decided October 18, 2002), 2002 Ill. Lexis 946. Discovery is not through automatic disclosure, but is invoked by motion brought by each the prosecution (SCR 413), and the accused (SCR 412).

1. Discovery Available To The Accused Includes (SCR 412): i) Names and last known addresses of persons whom the state intends to call as witnesses; ii) Written and recorded statements made by potential witnesses, and a list of reports or memoranda summarizing their oral statements; iii) Any written or recorded statements and the substance of any oral statements made by the accused or a codefendant, together with a list of any witnesses to the statements; iv) Grand jury testimony of the accused and the testimony of persons whom the prosecution intends to call as witnesses; v) Results of any experiments or tests made in connection with the case, together with the statements and reports of any experts conducting them, along with the qualifications of the experts; vi) Books, papers, documents, photographs or other tangible objects which were obtained from the accused or which the prosecution intends to use in evidence; vii) Copies of any criminal convictions which could arguably used for the impeachment of any witnesses called by the state; viii) Disclosure of any electronic surveillance of the accused and/or his premises; and ix) Any information known to the prosecution which would negate the accused's guilt, or tend to mitigate punishment. During 2001, the Supreme Court amended SCR 412 by expanding the duty to disclose evidence which would tend to negate guilt. The amendment added the following language to SCR 412(c): The State shall made a good faith effort to specifically identify by description or otherwise any material disclosed pursuant to this section based upon the information available to the State at the time the material is disclosed to the defendant. The intent of SCR 412(c) is to express the responsibility of the prosecution to make available to the defense materials which are required to be disclosed by the due process clause of the Constitution of the United States, Brady v. Maryland, 373 U.S. 83 (1967). This cautionary purpose if further facilitated by SCR 412(f) which charges the prosecution to "ensure a flow of information" from police agencies".

In defining the threshold for the invocation of the state's duties under subparagraph (c), the Illinois Supreme Court used Brady as a frame of reference. The Court concluded that the subparagraph appies only to matters that would likely affect the outcome of a trial: A Brady violation occurs only where the evidence is material to guilt or to punishment. Materiality is shown where a reasonable probability exists that, had the evidence been disclosed, the result of the proceeding would have been different. People v. Coleman, (Decided October 18, 2002), 2002 Ill. Lexis 946, citing to Bagley v. United States, 473 U.S. 667 (1985). 2. Procedures In Capital Cases (SCR 416) On March 1, 2001, the Supreme Court adopted a comprehensive rule (SCR 416) dealing with procedures to be followed in capital cases. The rule provides for: a) Duty to make early disclosure of intent to seek or decline the death penalty. b) Assurance of specially qualified counsel for the defendant. c) The taking and use of discovery depositions. d) A case management conference at which the court is to verify that appropriate discovery and disclosures have taken place. e) Certification of counsel for the defense that he/she have adequately prepared for trial. 3. DNA Evidence (SCR 417) During 2001, the Supreme Court adopted SCR 417, which sets up standards and procedures for the use of DNA evidence in felony cases. It is also applicable post-trial and post-conviction proceedings. It applies to the use of such evidence by both the prosecution and the defense. It provides a detailed check list of the kinds of specific information regarding the test and the tester that must be disclosed. 4. Discovery Available To The Prosecution Includes: (SCR 413) a) The presentation of the defendant, his behavior and physical attributes for view and testing - e.g. 1) To stand in lineups;

2) To be fingerprinted; 3) To be required to speak for identification purposes; 4) To give handwriting samples; 5) To try on articles of clothing; and 6) Give blood, saliva, hair, etc., samples for testing. b) Reports of tests, examinations, and comparisons made by experts on behalf of the accused, together with the identification and qualifications of the experts making them. N.b. - reports containing statements made by the defendant need not be disclosed if the defense does not use the subject reports or testimony to which they are germane at trial. c) Details of any affirmative defenses which the accused intends to use, including: 1) Names and addresses of witnesses which will be called in support of the defenses, 2) Any books, articles, photographs or intangible objects which the accused intends to use at trial; and 3) In the event that the alibi defense is to be used, "specific information" regarding the place he claims to have been at the time of the commission of the crime in question.

Failure of the defense to comply with discovery rules may justify a sanction as severe as preclusion of an affirmative defense, e.g. Taylor v. Illinois, 484 U.S. 400; 108 S.Ct 646 (1988) where the Supreme Court affirmed the trial court's barring the testimony of an alibi witness as a sanction for failure to disclose pursuant to SCR 413. Also see People v. Whalen (1994), 158 Ill.2d 415, 423, where the Illinois Supreme Court affirmed the trial courts decision to exclude the testimony of a defense expert as a sanction for failure to timely disclose her identity and opinions pursuant to the rules. (N.b., in Whalen, as an alternative to exclusion the trial court had offered the possibility of a continuance, if the defendant were to request it, as a means to provide the state with the opportunity to prepare for the expert's testimony. The defendant insisted, however, on immediate trial.) C. Jury Selection In A Criminal Case -

1. SCR 431 Voir Dire Examination Until recent months the selection of jurors in a criminal case was governed by reference to SCR 234 In criminal cases, the voir dire examination of jurors shall be conducted in accordance with Rule 234. Effective May 1, 1997, SCR 431 was amended to provide a discrete rule governing voir dire in criminal cases: (a) The court shall conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate, touching upon their qualifications to serve as jurors in the case at trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges. Questions shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors. (b) If requested by the defendant, the court shall ask each potential juror, individually or in a group, whether the juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects. The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section. Subparagraph (a) essentially mirrors SCR 234. Subparagraph (b) requires, at defendant's option, a specific inquiry into jurors' attitudes regarding certain principles. The right of a defendant to an inquiry of this kind was established by the Court in People v. Zehr (1984), 103 Ill. 2d 472 2. - SCR 432 Unlike procedures mandated by law in civil cases, SCR 432 gives the trial judge discretion as to whether or not to select jurors in panels of four. However, the rule requires that alternate jurors be passed on separately.

VIII - Criminal Proceedings In Appeals Courts A. SCR 603 - Courts To Which Appeals Taken Rule 603 addresses the subject of direct appeals to the Supreme Court. Of special significance to trial judges are direct appeals in criminal cases, ... in which a statute of the United States or of this State has been held invalid ... Given the Court's holding in People v. Truitt, 175 Ill.2d 148 (1997), there existed a question as to whether Rule 603 permitted the state to make a direct appeal to the Court where a statute was found to be unconstitutional in a criminal case. The court has since squarely held that such appeals are permitted under the authority of Rule 603, People v. Miller, (Decided November 11, 2002), 2002 Ill. Lexis 950. During the 1998-99 term, the Court broadened the definition of cases which are subject to direct appeal. In 1992, the Court in Rehg v. Illinois Department of Revenue (1992), 152 Ill.2d 504 held that where the trial court's determination was that a statute was unconstitutional "as applied" to a particular party, direct appeal to the Supreme Court would not be available under SCR 603. In 1997, in re Marriage of Lappe (1997), 176 Ill.2d 414, the Court decided that it would hear direct appeals of trial court findings that particular laws were unconstitutional "as applied to", if the "as applied to" reference addressed a category or group as opposed to an individual. In People v. Fuller (1999), 187 Ill.2d 1, the Supreme Court rejected Rehg's "as applied to" reservation in its entirety, stating: We see no principled reason to deny a direct appeal from the circuit court to this court when the "as applied" ruling affects a single defendant as Rehg would require, but to allow a direct appeal when the "as applied" ruling affects only a small indeterminate number of persons as Lappe permits ... . B. SCR 604(a) - Appeals By The State SCR 604(a)(1) speaks to the states right to appeal, amongst other things, orders suppressing evidence. Until 1980, many appellate court decisions limited that right to orders suppressing illegally seized evidence or involuntary statements on constitutional ground. In People v. Young, 82 Ill.2d 234 (1980), the Supreme Court rejected this limitation and emphasized that the right to appeal under SCR 604(a) extends to an order suppressing evidence, regardless of the basis for suppression. It introduced a requirement, however, that is not specifically delineated in the rule:

We hold, ... that Rule 604(a)(1) allows an interlocutory appeal by the state of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State's ability to prosecute the case. (82 Ill.2d 234, 247.) The requirement of certification, while not jurisdictional, applies to any interlocutory appeal by the state of a suppression order, even if it relates to illegally seized evidence or involuntary statements. People v. Carlton, 98 Ill.2d 187 (1983). Further, the Court in Carlton directed appellate courts to dismiss appeals where there such certificates are not timely filed. (Carlton at 194) The Rule, as interpreted by Young and Carlton, places the definition of which pretrial suppression orders are appealable within the control of prosecutors and relies on "good-faith evaluation" by prosecutorial offices. The purpose of the requirement that the certification be filed in the trial court appears to be to place the trial judge on notice of the possible procedural consequences of suppression rulings. The Rule also permits the State to bring an interlocutory appeal of any order which has the substantive effect of dismissing a charge or arresting judgment because of a defective charge. People v. Garcia (2002), 199 Ill.2d 401. The time during which such state appeals are pending tolls the period under Illinois four-term act during which an accused must be brought to trial. (725 ILCS 5/103-5)
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After a judgment is entered, the policies of finality of judgments and title transfers come into play, especially when theforeclosed home has been resold to a bona fide purchaser. Forexample, in Mortgage Electronic Registration Services v. Barnes , theIllinois Appellate Court rejected a post-judgment challenge to aforeclosure by MERS, despite the apparently undisputed fact that MERS was never the holder or owner of the note. While the courtrecognized that a proper transfer of the note is a precondition to avalid foreclosure, 44 the court reasoned that the Illinois foreclosurestatute authorized an agent of the note holder to foreclose, and thatMERS could easily have amended its Complaint to allege its status as agent rather than as principal holder of the note. 45 The default judgment entered against the homeowner was essentially res judicata as to the plaintiff’s standing to foreclose. 46 To put it another way,standing was treated by the court as a waivable defense, the absence of which does not render a foreclosure judgment subject to later attack as void. 47

41 See In re Alcide, 450 B.R. 526, 536, n.26 (Bankr. E.D. Pa. 2011). 42 See, e.g. , Harvey v. Deutsche Bank Nat’l Trust Co., 69 So.3d 300, 304 (Fla.Dist. App. 2011). 43 Id. ; Bank of New York v. Raftogianis, 13 A.3d 435 (N.J. Super. Ch. Div.2010) (judgment denied because BONY could not prove note had been physically endorsed and delivered to it prior to filing suit). 44 Mortgage Elec. Registration Sys., Inc. v. Barnes, 940 N.E.2d 118 (Ill. App.2010), appeal denied 949 N.E. 2d 659 (Ill. 2011). 45 Id. 46 Id.

White Article (Do Not Delete) 5/4/2012 1:47 PM 478 Loyola Consumer Law Review [Vol. 24:4attack as void. 47

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