Page 18 - John Hundley 2014

Judgment Doesn’t Bar Fee Claim for Collection Efforts

Illinois law does not merge a contractual right to attorneys’ fees into a judgment when the fees are
ancillary to the primary cause of action, the Court of Appeals for the Seventh Circuit has held.

In Centerpoint Energy Services, Inc. v. Halim, 743 F.3d 503 (7th Cir. 2014), plaintiff had sued one of
defendants’ entities for energy it had provided and recovered a $1.7 million judgment. Finding that that
entity no longer had any assets, plaintiff then successfully brought claims under Illinois’ version of the
Uniform Fraudulent Transfer Act (740 ILCS 160). The Court of Appeals held that an attorney fee claim in
the second case was not barred by the judgment in the first case. “Merger would encourage the kind of
contumacy displayed by the Halims in this case, because by voiding the attorneys’ fees provision in the
gas contract it would reduce the cost to them of unlawfully resisting efforts to collect a judgment awarded
against them,” the court said.

Unpublished Decision Has “No Precedential Value”

A “trial court’s reliance on an opinion that lacks precedential value undermines its own holding,” a
panel in the Appellate Court in Chicago has said.

The panel in Kaufman v. Barbiero, 2013 IL App (1st) 132068, rebuked the trial court for relying on an
officially unpublished federal district court opinion that was available on Westlaw and Lexis. Noting the
policies on unpublished opinions set forth in Seventh Circuit Rule 32.1(d) and Illinois Supreme Court Rule
23, the panel said the 1991 case at issue “has no precedential value”.

Draft Affidavits Protected As Work Product

Draft affidavits and communications with non-party affiants may be protected by the work product
doctrine under an approach adopted by a federal court in California recently.

In Schoenmann v. FDIC, __ F.Supp.2d __, 2014 WL 46620 (N.D. Cal. 2014), the court ruled that the
doctrine provided protection both to draft declarations and email communications between the trustee and
an affiant and between the trustee’s counsel and the affiant. It quoted Wright & Miller’s Federal Practice
and Procedure treatise as stating that that view was the position of most recent cases. It rejected a claim
that the attorney-client privilege protected those documents, however.

Court Errs In Basing Reconsideration On Available Evidence

A trial court erred in basing its grant of reconsideration on evidence that was available when the
original decision was made, a panel in the Appellate Court’s Third District has held.

The opinion in Hajicek v. Nauvoo Restoration, Inc., 2014 IL App (3d) 121013, appears to limit
discretion in an area where most observers thought trial courts could do pretty much what they wanted.

The decision also says that a trial court may not base its ruling on theories that were not pled and
were not raised until reconsideration.

- John T. Hundley, jhundley@lotsharp.com, 618-242-0246
Brenda\SharpThinking\#115.pdf

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