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Following the rules

If attorney malpractice insurance rates increase anytime soon, it won't be because of the 8th District.  I'm not a stickler for rules, but it's becoming increasingly clear, based on a couple of decisions last week, that the 8th isn't, either.

First up is Benesch Friedlander v. Action SoftwareBenesch, one of the city's more prestigious law firms, had sued Action for outstanding legal fees, and the parties agreed to arbitration.  That's where things got funky.  In a journal entry, the court specified that the arbitration was to take place on March 27, and there was to be a pretrial conference by phone on April 1 if the case didn't settle.  The case didn't settle, but the results of the arbitration hadn't been announced by April 1, so the judge called off the pretrial.

Two days later, the arbitration panel filed its award, in favor of Benesch to the tune of $52,082.  A little over a month later, after the thirty-day window for appeal of the award had closed, the trial court entered judgment for Benesch in that amount.  Two weeks later, Action filed a motion to vacate the judgment, claiming that it didn't appeal the award because it assumed that the pretrial conference was going to be rescheduled. 

We all know the bromide about what happens when you assume, but the trial court let Action off the hook, granted the motion to vacate, and reinstated the case.  Last week the 8th District affirmed, by a 2-1 vote.

It's a close call; the majority has a valid point in arguing that the judge obviously believed that his entry was confusing, and that relief to Action was warranted.  Plus, the standard of review is abuse of discretion, and that's tough to overcome.

Still, it's hard to dispute the dissent's assertion that Action's counsel could have "clarified" their confusion over the situation simply by doing... well, just about anything.  Let's put it this way:  if I've just had an arb panel award fifty large against my client, and I'm expecting the court to hold a conference about the case, thirty days isn't going to go by without me picking up the phone to call the other lawyer, or call the court, and find out why that isn't happening.  And even if it does happen, I'm still going to appeal that arbitration award, because that's what the rules say you have to do.

If Benesch is questionable, the result in Owens v. Metropolis Night Club is downright puzzling.  The judge had dismissed the plaintiffs' case as a sanction for refusal to provide discovery, and there's some pros and cons as to the wisdom of that call.  It's what happens afterwards that's interesting.   The plaintiffs filed a motion for reconsideration, which was struck because they hadn't served it on the defendants.  The plaintiffs then appealed, but by then were beyond the thirty-day time since the dismissal entry, so the 8th District threw out the appeal for lack of jurisdiction.  The plaintiffs then went back and filed a motion to vacate in the trial court, which was denied, and then returned for another shot at the court of appeals.

I know, you're saying, "Russ, couldn't you paper the walls in your office with cases saying that there's no such thing as a motion for reconsideration?  And couldn't you repaper them with cases saying that a motion to vacate can't be used as a substitute for appeal?  And Benesch reminds us that a judge's decision to grant or deny a motion to vacate is reviewed only for abuse of discretion, which would seem to be a very difficult hurdle in this case."

Well, you may be saying that, but nobody on the Owens panel was.  There's no mention of any of that.  Even worse, the court decides that the plaintiff's alleged ground for vacating the judgment -- 60(B)(3), "misrepresentation or fraud" -- was bogus, there being "no evidence" of that, but then decides that relief under 60(B)(5)'s catchall provision is appropriate.  (That provision allows the judge to vacate a judgment anytime he feels like it  "for any other reason justifying relief.")

Now, it may be that the trial court was wrong to impose the drastic sanction of dismissal for the discovery violations.  There's certainly a preference for deciding cases on their merits, which was the ultimate result in Owens, and to a lesser extent in Benesch.

But the court imposes its rules and laws on people everyday.  There's also a boatload of cases saying that pro se litigants aren't entitled to any slack in compying with the rules.  If some poor rummy in Mansfield Correctional files a habeas petitition, but doesn't include an affidavit stating what lawsuits he's filed in the past five years, the court's going to bounce that without a second thought, or even a chance to amend his petition to include it.  Just about every week the 8th will toss a pro se petition for mandamus because it wasn't properly captioned.

Like I said at the top, I'm not a stickler for rules, but they serve a purpose.  Most of us take the time to learn that a motion for reconsideration is a nullity, or that you have thirty days to appeal from an arbitration award, or that an appellate court loses jurisdiction if you file your appeal from the lower court judgment after more than thirty days.  If you don't know that, well, maybe you should.


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