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