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Peggy Lee Hall v. Naper Gold Hospitality LLC

May 14, 2012


Appeal from the Circuit Court of Du Page County. No. 10-L-338 Honorable Dorothy F. French, Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.


¶ 1 On September 21, 2010, plaintiff, Peggy Lee Hall, filed an amended complaint against defendants, Naper Gold Hospitality LLC (Naper) and K.M. Enterprises, Inc. (K.M.), and "unknown others," arising out of a slip and fall on ice in Naper's parking lot in Naperville, Illinois. The amended complaint alleged that plaintiff was an invitee of Naper, a Best Western hotel, on March 10, 2008, and that she slipped on ice after loading her luggage into her car, causing her to suffer pain and injury. The complaint further alleged that K.M., the snowplowing business that had a contract to plow Naper's parking lot at the time of plaintiff's fall, negligently removed snow and ice from the premises. At her deposition, plaintiff testified that she did not see the ice before she fell and that she did not notice the ice until approximately 20 minutes after she regained consciousness, when a lady who was in the parking lot helped plaintiff to her feet. Plaintiff could not describe the ice, and she did not recall whether it was a "patch of ice." Plaintiff testified that she did not know how long the ice had been present or the source of the ice. When asked what caused the ice to form, plaintiff answered, "I have no idea." On July 23, 2010, Naper filed a motion for summary judgment based upon plaintiff's failure to establish that the ice upon which she fell was an unnatural accumulation.

¶ 2 Plaintiff did not file a response to Naper's motion for summary judgment until September 20, 2011. Prior to filing the response, plaintiff deposed Ken Minor, president of K.M. Minor testified that without looking into his records he would not know how many times between August 2007 and March 2008 he had plowed Naper's parking lot but said that it was possible he had plowed more than five times. Then he added, "It may have been five." Minor also testified that his records "most likely" would reveal when he last plowed the lot before the date of plaintiff's fall. Minor agreed that he should have documents showing which of his employees plowed the lot and on what dates. During the deposition, plaintiff's attorney requested that K.M.'s attorney produce K.M.'s records, and K.M.'s attorney agreed to produce "anything relevant." The record does not reflect that the documents were ever produced or that plaintiff's attorney ever followed up with correspondence to K.M.'s attorney or brought a motion to compel the documents' production.

¶ 3 In her response to Naper's motion for summary judgment, plaintiff argued that there were genuine issues of material fact in that Minor had a contract with Naper to plow and salt the parking lot, K.M. had plowed at least five times before plaintiff's injury, K.M. "would back drag" snow out of the area where plaintiff fell, leaving some snow, ice, and water in the area, and Naper had the discretion to have the lot salted or not. The trial court granted Naper's motion, finding that plaintiff offered only speculation as to what formed the ice. With plaintiff's acquiescence, K.M. then orally joined in Naper's motion, and the trial court granted summary judgment in K.M.'s favor.

¶ 4 On October 25, 2011, plaintiff filed a motion to reconsider, alleging that the trial court erred in holding a hearing on the motion for summary judgment before discovery had been completed and citing K.M.'s failure to produce the documents requested at Minor's deposition. On November 11, 2011, the trial court denied the motion to reconsider. Paragraph 4 of the court's written order stated:

"The court finds that the plaintiff did not request a continuance on [sic] the hearing on the motions for summary judgment in order to perform discovery and, thus, there is no basis to grant a motion to reconsider."

Plaintiff filed a timely notice of appeal.

¶ 5 Plaintiff raises two issues: (1) the trial court erred in hearing the motion for summary judgment before discovery was completed, and (2) the trial court erred in granting summary judgment as there was a genuine issue of material fact as to whether the accumulation of ice was natural or unnatural.

¶ 6 We are unable to reach the merits because of the flagrant and, frankly, appalling violations of supreme court and local rules committed by plaintiff's attorney, Paul H. Millewich, and his law firm, Mevorah Law Offices, in the handling of this appeal.

¶ 7 Illinois Supreme Court Rule 341(h) (eff. July 1, 2008) governs the contents of an appellant's brief. "The rules of procedure concerning appellate briefs are rules and not mere suggestions." Niewold v. Fry, 306 Ill. App. 3d 735, 737 (1999). Failure to comply with the rules regarding appellate briefs is not an inconsequential matter. Burmac Metal Finishing Co. v. West Bend Mutual Insurance Co., 356 Ill. App. 3d 471, 478 (2005). The purpose of the rules is to require parties before a reviewing court to present clear and orderly arguments so that the court can properly ascertain and dispose of the issues involved. Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 292 (1991). A brief that lacks any substantial conformity to the pertinent supreme court rules may justifiably be stricken. Tannenbaum v. Lincoln National Bank, 143 Ill. App. 3d 572, 574 (1986).

¶ 8 Rule 341(h)(4) requires a statement of jurisdiction setting forth the supreme court rule or other law that confers jurisdiction upon the reviewing court. Ill. S. Ct. R. 341(h)(4) (eff. July 1, 2008). The purpose of requiring a jurisdictional statement is not merely to tell this court that it has jurisdiction, but to provoke counsel into making an independent review of the right to appeal, before writing the brief. Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 598 (2002). It goes without saying that appellate litigation is a great expense to the parties and that judicial resources should not be squandered. Therefore, an accurate jurisdictional statement is necessary to the orderly administration of justice. In the present case, plaintiff's jurisdictional statement is useless, as it was apparently photocopied, or otherwise lifted, from a brief the Mevorah firm had previously filed in a dissolution-of-marriage case and was then inserted into plaintiff's slip-and-fall case. The "statement of jurisdiction" recites that our jurisdiction is predicated on a series of trial court orders that have nothing whatsoever to do with the instant appeal. For instance, the statement recites that one of the orders appealed from is a denial of a motion to reconsider "[l]oss of [m]onies from [n]ot [h]anding [o]ver [t]itles in a [r]easonable [t]ime." The jurisdictional statement is detailed and 11/2 pages long, so it is not as though a simple paragraph from another brief, used as a template, got transposed. It is unimaginable that this mistake was not caught prior to the filing of plaintiff's brief (or at least when counsel discovered the same error in the statement of facts, discussed below).

¶ 9 Rule 341(h)(6) requires a statement of facts that contains the facts "necessary to an understanding of the case." Ill. S. Ct. R. 341(h)(6) (eff. July 1, 2008). This court may strike a statement of facts when the improprieties hinder our review. John Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693, 698 (2009). This court is also within its rights to dismiss the appeal for failure to provide a complete statement of facts. Burmac, 356 Ill. App. 3d at 478. Plaintiff's brief contains a statement of facts copied from the same dissolution-of-marriage case that counsel referenced in the jurisdictional statement. Obviously, the facts in the dissolution case do not lend themselves to "an understanding" of the instant case. However, counsel discovered the mistake (but somehow still overlooked the faulty jurisdictional statement) and filed an amended statement of facts. There are two problems with the amended statement of facts. First, counsel filed the amended statement of facts without a motion seeking leave of court to make the ...

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