Claims And Issues

MUD IS MUD. DEMOLITION BY MUD IS NOT AN EXPLOSION, EITHER.

A panel of the Tenth Circuit Court of Appeals affirmed a summary judgment entered in favor of an insurance carrier in Paros Prop's, LLC v. Colorado Cas. Ins. Co., ___ F.3d ___, No. 15-1369, 2016 WL 4502286 (10th Cir. August 29, 2016).

The claim to coverage arose out of "torrential rainfall" in Boulder, Colorado and "a violent flow of water, mud, and debris [which] thundered down a hillside" coming to a stop after it wrecked a commercial building.

MUD IS MUD.

The owner's insurance policy excluded damage to the building under a "'Water Exclusion Endorsement,' which excludes from coverage any damage caused by the following water-based sources:

1. Flood, surface water, waves (including tidal wave and tsunami), tides, tidal water, overflow of any body of water, or spray from any of these, all whether or not driven by wind (including storm surge);
2. Mudslide or mudflow; ..."

Paros Prop's, LLC v. Colorado Cas. Ins. Co., ___ F.3d ___, No. 15-1369, 2016 WL 4502286, at *7 (10th Cir. August 29, 2016) (emphasis added).

In support of the claim to insurance coverage here, the owner-policyholder argued that the water which drove the mud in this case was "'diverted by man-made parking lots, roadways, drainpipes, and culverts'."  The Tenth Circuit panel in this case was unmoved, holding:

The Owner does not, and could not, make any argument that the avalanche was not a mudslide. And under the Policy it makes no difference whether any water causing the avalanche had been diverted by manmade features; mudslide damage is excluded whether the mudslide “is caused by an act of nature or is otherwise caused.”

Paros Prop's, LLC v. Colorado Cas. Ins. Co., ___ F.3d ___, No. 15-1369, 2016 WL 4502286, at *8 (10th Cir. August 29, 2016).

DEMOLITION BY MUDSLIDE IS NOT AN EXPLOSION.

Next the owner in this case argued that the building was damaged by an explosion.  The policy at issue exempted damage caused by an explosion caused by water, from this exclusion:

But if any of the above, in Paragraphs 1. through 5., results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage (if sprinkler leakage is a Covered Cause of Loss).

Id. In short, the Policy does not cover damage caused by water, but does cover damage caused by an explosion caused by water.

Paros Prop's, LLC v. Colorado Cas. Ins. Co., ___ F.3d ___, No. 15-1369, 2016 WL 4502286, at *7 (10th Cir. August 29, 2016).  Unfortunately for the owner's chances of insurance coverage, the appellate panel disagreed with the owner and agreed with the District Judge that there was no exempted explosion on the undisputed material facts of this case:  "We disagree that demolition by an external cascade of water, mud, and debris is an explosion under the Policy."   Paros Prop's, LLC v. Colorado Cas. Ins. Co., ___ F.3d ___, No. 15-1369, 2016 WL 4502286, at *8 (10th Cir. August 29, 2016) (emphasis by the Court). 

For these reasons, the Tenth Circuit panel affirmed a summary judgment entered in favor of the insurance carrier in this case.  In order to reach this result, however, the panel had to get beyond the carrier's untimely removal of the case from Colorado State Court in the first place.  The District Court reached the correct result on the merits in the eyes of the appellate judges, and they concluded that the District Court had jurisdiction at the time the lower court ruled, so they affirmed.

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INTERPRETATION OF AN INSURANCE POLICY? ONLY ONE OPINION MATTERS.

In Owens v. Metropolitan Life Ins. Co., ___ F. Supp. 3d ___, No. 2:14-CV-00074-RWS, 2016 WL 5868103 (N.D. Ga. September 27, 2016), the Court was confronted with a motion to exclude the expert witness testimony of a respected law professor named Jeffrey W. Stempel.  The Court in that case side-stepped ruling on the motion to exclude, but instead resolved the parties' competing motions for summary judgment first.  This made it unnecessary to reach the motion to exclude, the District Judge said.

The Court in that case ruled on "interpretation of the unambiguous language of the Policy" without consulting Professor Stempel's expert report.  Owens v. Metropolitan Life Ins. Co., ___ F. Supp. 3d ___, No. 2:14-CV-00074-RWS, 2016 WL 5868103, at *9 (N.D. Ga. September 27, 2016).

The District Judge added:  "Had, however, reliance on Professor Stempel's report been necessary, the Court finds no basis for his exclusion as an expert."

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UBER and Airbnb INSURANCE ISSUES: PUBLIC RISK, PRIVATE PROFIT?

Reports are increasingly frequent about Uber drivers having car accidents involving massive injuries and damages.  See, e.g.,  "Uber Crash in St. Petersburg Leaves Driver and Passenger With Serious Injuries," written by Times Staff (Tampa Bay Times Online, posted Saturday, October 22, 2016).

Just as frequent, it seems, are reports about Uber or Airbnb spending massive amounts of money to challenge the law.  See, e.g., Katie Benner, "Airbnb Sues Over New Law Regulating New York Rentals" (New York Times Online, posted Friday, October 21, 2016).

Lots of money to challenge the law, but no money to pay claims?  What's the common denominator in this equation common to many businesses in the gig economy it seems?

And who has to pay and who gets to cash in?

Got it.  Check.

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"$150 THOUSAND AND FOUR WEEKS FOR A PRIVILEGE LOG?" Check!

Subtitle:  Even accused predatory lenders have to comply with some laws.  In this case, with case law.

This is an insurance coverage dispute in which the Plaintiffs seek coverage from the defendant insurers for a $212.5 million dollar settlement with DOJ and HUD of a claim of violation of the False Claims Act relating to errors and omissions in underwriting and origination of HUD mortgage loans.

First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *1 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

The many factors mandated by case law for a document-by-document privilege log of documents withheld during discovery were thoroughly applied in this case.

One of those factors calls for a comparison of the amount at issue with the withholding party's best estimate of the cost of producing a document-by-document privilege log, which is usually required but not always depending on such things as hardship.

In this case, the plaintiffs claiming coverage, which are the accused predatory lenders who settled with DOJ and HUD, withheld documents in response to a request for production.  Basically, the requested production was of all communications regarding certain claims arising out of their representations regarding mortgage loan underwriting during a stated period of time.

The plaintiffs withheld many documents but did not provide the usual document-by-document privilege log required by case law.  Rather, their first response to the requested production was to withhold about a mountain of documents with "categorical logs."  They "produced a six-page categorical log that grouped thousands of documents created over the course of five years into one of nine categories."    First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *1 (W.D. Tenn. October 5, 2016).

Then, they also "supplemented" their production and their privilege log addressing certain document-by-document communications including between them and their insurance broker, between them and their auditing firm, between them and their "in-house counsel," and a review of their operations by the HUD Office of Inspector General.  Apparently, they still maintained a "categorical privilege log" for thousands of other documents they withheld under a claim of privilege:

The categorical privilege log provided by First Tennessee contains nine categories of communications which group thousands of documents created over the course of five years dating back to July 2010. The communications include dozens of authors and recipients and lumps together documents concerning many matters into broad categories. The Plaintiffs take the position that their privilege log indexing withheld documents by category is sufficient because preparing a document-by-document privilege log would be an undue burden and the additional information to be gleaned from a more detailed log would not be of no material benefit to the Defendants. The Defendants insist that the Plaintiffs should be required to produce a document-by-document privilege log instead of a categorical log.

Their insurance companies, which had served the requests for production in the first place, filed a motion to compel better production and a better, document-by-document privilege log.  It is not entirely clear from the opinion in this case, but the insurance companies' motion to compel apparently addressed all of the plaintiffs' privilege log.  The insurance companies were particularly interested in compelling a better privilege log "for 5,941 emails withheld as privileged."  First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *4 (W.D. Tenn. October 5, 2016).

The plaintiffs countered that for many reasons the usual law did not apply to them.  They argued that they are not required, like other parties claiming privilege during discovery, to produce a document-by-document privilege log to support the claim.  One of the several things the plaintiffs argued in this case was that it would be "an undue burden."  Producing a line-item privilege log, as it were, would cost $150,000 and take 3 to 4 weeks, they said.  First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *6 (W.D. Tenn. October 5, 2016).

The Court was not impressed with any of the arguments offered to support the plaintiffs' blanket assertion of privilege in this case.  "Given the amount in controversy," which the Court put at $75 Million for insurance coverage here, "the Plaintiffs' estimated cost of production of a document-by-document log does not constitute undue burden."    First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *6 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

In the end, none of the plaintiffs' arguments against compliance with the case law convinced the Court in this case.   The Court granted the defendant insurance companies' motion to compel production of a document-by-document privilege log.  First Horizon Nat'l Corp. v. Houston Cas. Co., NO. 2:15-cv-2235-SHL-dkw, 2016 WL 5867268, at *7 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

The lesson here is that proportionality is relative.  The case law ordinarily requires a party to prepare and produce a document-by-document privilege log if that party makes the choice to withhold discovery under a claim that the documents are privileged.  In a case like this one involving millions of dollars among other things, it is "proportional" to require a document-by-document privilege log that costs $150,000 and 3 to 4 weeks of time.  These numbers for compliance are big but in the context of withholding documents from discovery these numbers not absolute, not to be considered alone or by themselves.  Rather, these numbers are to be considered in the context of the litigation including the amount in controversy.  In short, if "proportionality" is a new rule for discovery then the costs of compliance have to be considered in terms of "proportionality" too.

This case contains an education in discovery particularly in insurance coverage cases.  Other rulings in First Horizon v. Houston Casualty were addressed here on October 12, 2016.

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WE WANT INFORMATION. WANT TO KNOW WHAT WE WANT? CALL!

The headline of this post essentially describes one insurance company's request for "certain underwriting information" to policyholders in Mills v. AAA Northern Cal., Nev. & Utah Ins. Exch., 3 Cal. App. 5th 528, 207 Cal. Rptr. 3d 626 (Cal. 3d DCA 2016).

With one crucial added insert in the envelope, so to speak, that determined the outcome in this case regardless of the words used by the California courts here.

The insurance company offered the policyholders a choice:  Exclude their son from coverage under their automobile insurance policy by filling out and returning the enclosed form, or add him to their policy by calling the carrier.  If the carrier did not get either the filled-out form or a call, the carrier announced in the letter that it would cancel the policy.

The parents-policyholders did not call the carrier.  The carrier cancelled the policy.  Then another child of the policyholders had an auto accident.  She made a claim for Uninsured Motorist benefits.  The auto carrier denied coverage because the policy was not in effect.  The injured daughter continued to claim coverage under the auto policy and sued.

The case dealt with statutory interpretation.  California Regs explain a California Statute which allows for early cancellation of an insurance policy so long as there is "a substantial increase in the hazard insured against."

The Regs classify a non-response by the insured as a substantial increase in the hazard, after 30 days have passed following a "reasonable written request to the insured, [for] information necessary to accurately underwrite or classify the risk."

Four judges in California said that the carrier's letter and enclosure in this case was a "reasonable request" before the carrier cancelled the policy early.  (This was the view of three judges on the DCA and one trial judge.)

The rulings on appeal and in the trial court in this case were so specific to the California Statute and Regs on early cancellation, that they may not affect the outcome of requests for information on an ordinary application for insurance in the first place.  On the other hand, it is not difficult to foresee future insurance applications in California and elsewhere in which the carrier includes a question following the rulings in this case:

We need further information from you in order to process your application. Want to know what we need from you?  Call us and we'll tell you.  Otherwise, we might issue the policy and then deny coverage because you didn't tell us what we want to know.

It can't happen here, right?  Maybe in California.  Maybe not.  But not anywhere else, right?

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JUDGES ALONE DECIDE CONFIDENTIALITY IN INSURANCE COVERAGE CASE.

The decision in First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-cv-2235-SHL-dkv, 2016 WL 5867268 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.) came in the course of ...

...  an insurance coverage dispute in which the Plaintiffs seek coverage from the defendant insurers for a $212.5 million dollar settlement with DOJ and HUD of a claim of violation of the False Claims Act relating to errors and omissions in underwriting and origination of HUD mortgage loans. In defense, the Defendants contend, inter alia, that the claim is “interrelated” to an earlier claim made by First Tennessee and thus barred under a later policy and that First Tennessee failed to timely notify the Defendants of the claim.

First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-cv-2235-SHL-dkv, 2016 WL 5867268, at *1 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

In this decision, the Court dealt with many issues.  One of the more unusual issues illustrates the judicial prerogative over secrecy in litigation.

The plaintiffs, a bank and its parent, withheld many documents on the ground that a federal agency, HUD and specifically the "HUD Office of the Inspector General," placed a "General Confidentiality Restriction" on production of what in the end turned out to be three documents that the plaintiffs withheld on this ground.  "The Plaintiffs do not claim that these documents are privileged and do not dispute the relevancy of these documents."  First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-cv-2235-SHL-dkv, 2016 WL 5867268, at *11 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

The plaintiffs also apparently did not say why HUD supposedly declared the withheld documents to be "confidential," saying only that HUD had done so.

This was not good enough for the Chief U.S. Magistrate Judge here.  "'[C]onfidentiality is not a recognized basis for withholding discovery,' even when such a confidentiality restriction is imposed by a U.S. agency," she ruled.  Further, the Court had already entered a protective order in this case and that ended the matters of what to designate and how to declare it "confidential" in the litigation.  "[A]ny confidentiality concerns are adequately addressed by a protective order, which is already in place in this litigation."  Therefore, ruled the Court, since the documents in question are relevant and not otherwise privileged, "the Plaintiffs must produce these documents."  First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-cv-2235-SHL-dkv, 2016 WL 5867268, at *11 (W.D. Tenn. October 5, 2016) (Vescovo, Chief U.S.M.J.).

The protective order in question is Document No. 129, filed on January 7, 2016.  I found it through PACER.  On the first page, the protective order recites that the parties submitted their own proposed protective order but the Court in this case rewrote it.

On the last page, the protective order entered by the Court recognizes a presumption that is recommended to all other U.S. District Courts and State Courts to recognize as well:

23. As there is a presumption in favor of open and public judicial proceedings in the federal courts, this Order shall be strictly construed in favor of public disclosure and open proceedings wherever possible. The Order is also subject to the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods. To the extent that there is any conflict between the terms of this Order and rules of the Court, the rules of the Court will govern. Nothing in this Protective Order shall be deemed to be a decision by the Court as to how documents and other material will be handled at the trial of this matter. Nothing in this Protective Order shall be construed to prevent this Court from disclosing any facts relied upon by it in making or rendering any finding, ruling, order, judgment, or decree of whatever description.

These rulings expand beyond the insurance coverage case in which they were made, of course.  These rulings conclusively demonstrate that all questions of confidentiality concerning discovery in litigation are always questions which must be resolved by Courts and by no-one and nothing else.

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HOMEOWNER'S EXCLUSIONS TRUMP HOMEOWNER'S ROOF COLLAPSE CLAIM.

In Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689 (10th Cir. 2016), both the Tenth Circuit and the District Court needed only a little evidence to apply standard homeowner's policy exclusions and deny all coverage to the policyholders' roof collapse claim.

The loss.

Eugene and Diane Gallegos owned a home in Colorado.  Their home "suffered a partial roof collapse."  It was not disputed that the roof collapsed after snow and ice accumulated on the roof.   Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 690 (10th Cir. 2016).

The Gallegoses were not the first owners of the house.  There was evidence in the record that the aged framing system was not strong enough to support the weight of the heavy snow.

This evidence came from the testimony of the Gallegoses' own expert engineer.  See Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 692 (10th Cir. 2016).   The engineer also testified that in his professional opinion the roof was in no condition to support the weight of the snow before the roof collapsed, whether or not Mr. Gallegos 'made modifications' or the pre-existing roof was untouched.  In either case, he testified, "'the wood was very damaged or deteriorated, however you want to put it.'"  The roof would not hold whether the wood was original to the house or not.    See Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 692-93 (10th Cir. 2016).

The relevant exclusions.

The Gallegoses' homeowner's policy contained several standard exclusions "for wear and tear; deterioration; and faulty design, construction, repair, and maintenance."  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693-94 (10th Cir. 2016).

The policy also contained a standard anti-concurrent cause exclusion.  "That provision states that the policy does 'not cover loss caused directly or indirectly by any of [the specifically excluded perils]. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.'”  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693 (10th Cir. 2016).

The anti-concurrent cause exclusion barred all coverage for the roof collapse.

The appellate and trial courts gave great weight in this case to the homeowner's policy's anti-concurrent cause exclusion.  Although there does not appear to have been much if any evidence that the Gallegoses somehow failed to maintain the roof "framing system," there was the opinion testimony of their own engineering expert that "faulty design, construction, repairs and maintenance" so that in the eyes of the Tenth Circuit there was improper maintenance or construction which was excluded, not to mention undisputed evidence of wear and tear, and deterioration.

The Tenth Circuit affirmed a summary judgment of no coverage here on the ground that improper construction or maintenance or both contributed to collapse of the Gallegoses' roof, and thus exclusions in insurance policy combined with the anti-concurrent cause exclusion to preclude the homeowners' recovery in this case.   Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693 (10th Cir. 2016).

The wear and tear exclusion applies to normal wear and tear.

The Gallegoses argued that their homeowner's carrier could not rely on the wear and tear exclusion in the policy because there was no evidence that the wear and tear to the framing system supporting their roof was "abnormal" wear and tear.

The Tenth Circuit ruled that the standard wear and tear exclusion in the homeowner's policy at bar does not require evidence of abnormal wear and tear.  Accordingly, the carrier did not need to prove that wear and tear contributing to homeowners' roof damage was abnormal in order to rely upon the wear and tear exclusion in that case.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 694 (10th Cir. 2016).

The carrier's disclaimer letter raised the relevant exclusions.

Further, the courts held that the homeowner's insurer's disclaimer letter denying all coverage was adequate to the task of raising and reserving each of the relevant exclusions on which the carrier relied to deny the homeowners any coverage.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 695 (10th Cir. 2016).

The letter itself was quoted or summarized at pages 691-92 and in footnote 2 on page 691 of the Tenth Circuit's opinion.  In general terms, the disclaimer letter in this case went well beyond any general reservation of any exclusions which may come to the carrier's attention at any time.  The letter in this case mentioned all the relevant exclusions as grounds for denying all coverage, the main one being the policy's anti-concurrent cause exclusion.

The exclusions could not be waived by the carrier by its conduct here.

Under the applicable law, the insurance carrier could waive a forfeiture of coverage which was otherwise available under the policy (such as in the case of a violation of a policy condition like notice, for example), but it did not waive any exclusions from coverage which did not exist even if its disclaimer letter might not mention them.  This is the rule under Colorado law which applied to this case, wrote the Tenth Circuit.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 695 (10th Cir. 2016).

It is also the prevailing rule in other jurisdictions far from Colorado, including Florida for example.

The lessons to be drawn from this decision are pretty clear, including that the anti-concurrent cause exclusion is a weapon of mass exclusion as it were.  Another lesson to be drawn here is that coverage decisions in one part of the United States often reflect coverage outcomes in other cases in other parts of the United States.

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MAKING PEOPLE LIE TO GET MEDICAL TREATMENT: I REFUSED TO SIGN.

Insurance coverage and HIPAA are not necessarily the obstacles to medical treatment that medicalcare providers make them out to be.  I sent the following letter yesterday. 

 

October 4, 2016

Florida Hospital Sports Medicine and Rehab.

601 East Altamonte Drive

Altamonte Springs, FL  32701

     To Florida Hospital Sports Medicine and Rehab:

     I was ready for my initial physical therapy earlier this morning at your office in Oviedo.  I gave the receptionist the required prescription/referral, I signed all paper forms and I provided all requested information on your seven (7) pages of paper forms, and I also handed over my cards to copy for insurance benefits.

     Then, when I was done, the receptionist handed me also a notebook. (I don't know if it was a Kindle, a Nook, or something else.)  What I would call a prompt was in the middle of the screen saying, "I Accept."  I asked to see the document underneath, all in gray, before I hit "I Accept."  That took a moment, but the receptionist and I unlocked the form and made it appear on screen.  There were many screens of what the receptionist told me is a form required by Florida Hospital.  I started reading through it.

     There came a time in the form which required me to say that I had received what I believe was a 'Patient's Bill of Rights,' and a Notice of Patient Privacy Practices.  I told the receptionist that I had not received either form and I could not lie and say that I had.  She told me that as for the Patient's Bill of Rights, I could not have that until I signed that I had already received it.  I told her that's not how this form works.  I had to receive the document before I could truthfully say that I received it.  She handed it to me.

     However, she said that she could not give me a Notice of Patient Privacy Practices because you do not give them to patients.  You only send them to the provider, she said.  And in any case she did not have a Notice of Patient Privacy Practices to give me.  She told me that if I did not sign the notebook saying that I received the Notice which I did not receive, then I could not receive physical therapy.

     I told her that I will not lie in order to receive physical therapy.

     I bring this to your attention for a number of reasons, mainly so that you can stop this bad practice right now.  I have never had a medical office tell me that I had to lie in order to receive medical treatment.  This should never happen to anyone ever again.

     Thank you.

   

cc:  Florida Hospital Group, Inc.

     601 East Altamonte Drive

     Altamonte Springs, FL  32701

 

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ARBITRATION OF INSURANCE COVERAGE?

Many States encourage the use of arbitration provisions in insurance policies.  Arbitrations rarely rely on a record.  They are mostly done in private (or in secret, depending on which moniker you prefer).

There is no transcript.  There is no record of the evidence.  The testimony and the documents are not recorded.

This can make for issues where courts are called upon to supervise the arbitration proceedings.   Whenever one party or another appeals an arbitration award and requests the review of a court, the court is effectively being asked to supervise the arbitration proceeding.

However, when there is no record there can be no review at least on the ground that the evidence was insufficient to support the award.  This is true even in an appeal from a trial to the court or bench trial, where there is no transcript nor any other record of the proceedings that the reviewing court can review.

Such was the ruling in a recent non-insurance-coverage case decided without a jury by a trial court.  Understandably, the appellate court simply could not review evidence when there was no evidence in the record:

Held: Judgment for the plaintiff was affirmed. This court did not reach the merits of the defendant's argument that the evidence was insufficient to establish negligence on its part. There was no transcript of the bench trial, and there was no evidence in the record that a stipulation by the parties' attorneys to the facts and testimony was submitted to the trial court.

Allstate Ins. Co. v. Wally's Auto Repair, 2016 IL App (1st) 142676-U, ¶ 1 at p. *1 (Ill. 1st DCA September 23, 2016) (UNPUBLISHED OPINION. Subject to citation in limited circumstances in Illinois).

The lesson is clear:  If you want any court to review the record in your proceeding, whether the court you ask to review the record is a trial court or an appellate court, make sure that they have a record to review.

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