Illinois Appellate Lawyer Blog

MidAmerica Bank sued Charter One Bank for failing to honor a $50,000 cashier’s check purchased at Charter. The check was payable to Essential Technologies of Illinois. David Hernandez was president of Essential. Mary Christelle, David’s mother, purchased the cashier’s check with money from her account at Charter.

Essential deposited the check into its account at MidAmerica. Four days later, Mary instructed Charter to stop payment on the check. Charter issued a stop-payment order, and refused to honor the check when MidAmerica presented it for payment. When the check was returned to MidAmerica with a “stop payment” stamp, MidAmerica sent it back to Essential and deducted $50,000 from MidAmerica’s account.

The opinion does not state what happened between MidAmerica and Essential, except that the bank did not discover a fraudulent scheme involving Essential. But MidAmerica sued Charter for $50,000 plus attorney fees and interest for dishonoring the check.

The banking issue was whether Charter had the right to stop payment on a cashier’s check. After a bench trial, the trial court said “No,” but did not award fees or interest. The appellate court disagreed and ruled that Charter could stop payment.

MidAmerica appealed to the Illinois Supreme Court. The first issue for the supreme court was the proper standard of review. Even though the case went through a bench trial, the trial court’s decision got no discretion. The dispute was reviewed de novo by the supreme court because “the issue on appeal is limited to application of the law to the undisputed facts …”

In the end, the Illinois Supreme Court ruled that Charter wrongfully dishonored the cashier’s check. Read the whole opinion, MidAmerica Bank v. Charter One Bank, No. 106804 (3/19/09), by clicking here.

Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender’s Office to be laid off and imposed unpaid furlough days on other employees in the office. Burnette claimed he was not consulted in the process.

Relying on the Illinois Public Defender Act [actually Sections 3-4000 through 3-4011 of the Counties Code, 55 ILCS 5/3-4008.1 – 4011], Burnette’s lawsuit contested Stroger’s authority to take those actions. Stroger in turn asked the trial court to dismiss the case. He argued he acted within his authority and Burnette did not have standing to sue. Stroger’s request was granted and denied in part.

Burnette did two things: (1) He sought to amend his complaint to work around the aspects the trial court dismissed; (2) He asked for an interlocutory appeal. [Illinois Supreme Court Rule 308(a) allows interlocutory appeals when “the trial court … finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation … The Appellate Court may thereupon in its discretion allow an appeal from the order.”]

The trial court certified four questions for the appellate court, all concerning whether Burnette had standing to sue in the first place. Burnette also appealed from the order that dismissed part of his lawsuit.

The First District Illinois Appellate Court accepted the four certified questions for review, but declined to rule on whether the order granting dismissal was proper. Here’s why: “First, the parties in their appellate briefs did not brief the propriety of the trial judge's order. Second, plaintiffs are seeking to amend their complaint to eliminate the parts that were dismissed by the trial court.”

In the end, the appellate court ruled that Burnette did have standing to sue, and that Stroger did not have authority to designate individuals for layoff or furlough. Read the whole case, Burnette v. Stroger, No. 1-08-2908 (3/30/09), by clicking here.

Richard Martis, a chiropractor, treated Water Management Corp.’s employee for an on-the-job injury. Water Management’s worker compensation insurer was Grinnell Mutual Reinsurance Company. Martis was not in Grinnell’s preferred provider network. He submitted his bill to Grinnell for the treating the employee. Grinnell discounted the bill and paid Martis as if he had preferred provider agreement with Grinnell.

Apparently angered for being shorted, Martis sued Grinnell. He alleged actions for conspiracy, unjust enrichment, violation of the Illinois Consumer Fraud Act, and breach of contract, and asked the trial court to certify the case as a class action. The trial court dismissed everything except the contract action, and also certified class action status.

Grinnell appealed, aguing that the class should not have been certified because Martis’s breach of contract claim did not state a proper cause of action. The Third District Illinois Appellate Court ruled that Martis was not a third-party beneficiary of Water Management’s worker compensation insurance policy with Grinnell, so Martis could not sue for breach of that contract.

With nothing left of his lawsuit, Martis asked the appellate court to review the trial court’s dismissal of his unjust enrichment claim. But Martis had not filed a cross-appeal asking for review of the dismissal, so the appellate court refused to consider the subject. Here’s the appellate court’s analysis:

Appellees [Martis] may not argue alleged errors unless they timely file a cross-appeal … In the absence of a cross-appeal, an appellee will not be permitted to challenge or ask the reviewing court to modify a portion of the trial court's order … When an appellee does not file a cross-appeal, the reviewing court is confined to the issues presented by the appellant … Because plaintiff did not file a cross-appeal, we may not address his argument that the trial court improperly dismissed his unjust enrichment claim.

Read the whole opinion, Martis v. Grinnell Mutual Reinsurance Co., No. 3-08-0004, by clicking here.

Christine Siwek had an accident when she was driving Jerrold Erickson’s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.
American told the Department that Christine’s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

American Access raised affirmative defenses, claiming essentially that Christine hadn’t paid for the policy. Christine asked the court to dismiss American’s defenses, which it did four times.

When American filed its fourth amended affirmative defenses, Christine made a motion to dismiss the defenses. She also asked the trial court for summary judgment and for an award of attorney fees under Section 155 of the Illinois Insurance Code.

On the day of the hearing on Christine’s requests, American Access presented a letter conceding that Christine’s policy was in effect at the time of the accident. The trial court then entered judgment against American Access, and awarded Christine her attorney fees.

American Access appealed. The company claimed the trial court should not have dismissed the affirmative defenses, should not have awarded summary judgment, and should not have awarded attorney fees to Christine.

Pointing to the doctrine of “invited error,” the First District Illinois Appellate Court ruled that American waived its arguments concerning its affirmative defenses and Christine’s summary judgment. So the appellate court refused to consider them. Here is the court’s analysis:

[T]he doctrine of invited error prohibits any party from complaining of an error on appeal "'which that party induced the court to make or to which that party consented.'"

It is quite clear that American made the strategic decision not to appeal from the dismissal of its affirmative defense, not to further challenge the plaintiffs' contention that they were entitled to insurance coverage for Siwek's accident, and to affirmatively certify to the Secretary of State that such insurance was indeed in effect. It was only after American took these actions that the trial court granted the plaintiffs' summary judgment motion, and only then did the plaintiffs and the Secretary of State seek an agreed order from the trial court dismissing the remaining count of the complaint. Under such circumstances, we refuse to further consider American's assertions that the trial court committed any error in dismissing its affirmative defenses or in ultimately granting summary judgment to the plaintiffs.

Read the whole opinion, Siwek v. White, No. 1-07-2600 (2/27/09), by clicking here.

An inmate in a supermax prison sued prison officials in a mandamus action. The inmate sought an order preventing controlled feeding and requiring a nurse to attend to the inmate’s self-inflicted wounds outside of his cell.

The prison officials asked for, and in July 2006 received, a dismissal of the complaint. Before that dismissal order was entered, and apparently unknown to the trial court judge, the inmate had filed a motion asking for a substitution of the trial court judge.

The court clerk did not send the parties the dismissal order for several months. In November 2006, the inmate asked the trial court, which by that time had substituted another judge, to vacate the order dismissing the case. The inmate argued that his request to substitute the original trial judge was made before the dismissal order had been entered. The inmate’s request to vacate finally was considered in September 2007. The trial court denied the request to vacate the dismissal order. The inmate appealed the denial of his motion to vacate.

The prison officials asserted the appellate court did not have jurisdiction to consider the appeal, so they asked that it be dismissed. They argued that the appeal had been filed 15 months after the order that dismissed the case, too long to invoke the jurisdiction of the appellate court.

The Fifth District Illinois Appellate Court ruled that it did have jurisdiction to hear the case. Coming after the motion to substitute judges had been filed, the order dismissing the case was void. And because a void order can be attacked any time, the inmate’s motion to vacate the dismissal was timely. And because the inmate appealed from the order denying his motion to vacate the dismissal, appellate jurisdiction was proper. Here is how the court explained it:

“Civil litigants in Illinois are entitled to one substitution of judge without cause as a matter of right." … "Orders entered after a motion for substitution of judge has been improperly denied are void." … The Illinois Supreme Court has held that void orders may be attacked at any time or in any court, either directly or collaterally … Based on these principles, we find that the plaintiff's motion to vacate was timely because … it was a … motion to collaterally attack a void judgment. Thus, the plaintiff's motion to vacate was a timely motion directed toward that judgment. Because the plaintiff filed a notice of appeal within 30 days after the entry of the order denying his motion to vacate, we have jurisdiction to consider whether the dismissal order was void.

Walsh Construction Company and II In One Contractors formed a joint venture to bid on a contract being offered by the Metropolitan Water Reclamation District of Greater Chicago. The Walsh joint venture bid on the contract, but did not sign the required D-3 sheet. Although Walsh’s bid was about $10 million less than any other bid, the contract was awarded to a joint venture led by F. H. Paschen.

Walsh sued, and asked for a preliminary injunction to prevent the contract award to Paschen. After a two-day trial, the trial court denied Walsh’s request for an injunction and granted Pashen’s and the Water District’s request for a directed finding.

Walsh appealed, and the parties argued about the proper standard of review. Walsh asserted the trial court’s decision entailed legal issues only, so the proper review standard was de novo, which gives the trial court decision no deference. Paschen and Water District argued for “a manifest weight of the evidence” standard, noting that the [trial] court indeed considered the weight of the testimony and evidence presented in making its decision and did not, as Walsh insists, simply deny the request for preliminary injunction as a matter of law.”

The First District Illinois Appellate Court agreed with Paschen and the Water District. The appellate court acknowledged that a de novo standard would apply had the trial court ruled that the party asking for the injunction failed to offer at “least some evidence on the essential elements of its cause of action.”

But in this case, “contrary to its [Walsh’s] assertions, it is evident that the court made credibility findings and, in particular, weighed the quality of the evidence … [The trial court] made this decision [granting the directed finding for Paschen and the Water District] as a fact finder after considering the totality and quality of the evidence presented and drawing reasonable inferences therefrom, thus meriting deferential [manifest weight of the evidence] review.”

Get the whole case, Walsh/II In One Joint Venture III v. Metropolitan Water Reclamation District of Greater Chicago, No. 1-08-3167 (3/20/09), by clicking here.

James S. appealed from a trial court order that allowed psychotropic drugs to be administered to James against his wishes.

A basis of James’s appeal was that the order should be reversed because the circuit court did not state findings of fact to support emergency administration of psychotropic drugs, and therefore did not comply with the statutory requirement. “The respondent [James] argues that the circuit court's error here is particularly problematic because the evidence does not obviously reveal nor did the circuit court clarify under what provision of section 2-107.1(a-5)(4)(B) of the Code (405 ILCS 5/2-107.1(a-5)(4)(B) (West 2006)) the circuit court authorized the involuntary administration of psychotropic medication, i.e., whether the respondent exhibited deterioration in ability to function, suffering, or threatening behavior.”

The State argued that James waived the argument because he did not raise it in his motion for reconsideration.

The Fifth District Illinois Appellate Court ruled that waiver did not apply. The court invoked the plain error doctrine and considered James’s argument because it raised a fundamental liberty interest. Here is the appellate court’s ruling:

The respondent failed to raise this issue in his posttrial motion. An issue is waived on review if it is not raised both at the trial and in a posttrial motion … However, pursuant to the plain error doctrine, this court may address a waived issue if the evidence is closely balanced or the error affects substantial rights … The involuntary administration of medication for mental health purposes involves fundamental liberty interests. … Further, the waiver rule is a limitation on parties and not on reviewing courts …. Accordingly, we will consider this issue on the merits.

The appellate court reversed the order permitting involuntary administration of psychotropic drugs. Read the whole opinion, In re James S., No. 5-07-0567 (3/13/09), by clicking here.

Jeffrey Covinsky was CEO of Hannah Marine Corporation. He sued the company after it refused to pay him pursuant to a “golden parachute” clause in his employment contract. In turn, Hannah counterclaimed against Covinsky for breach of fiduciary duty. The trial court gave Covinsky summary judgment on his claim. Hannah appealed.

The First District Illinois Appellate Court analyzed the proper standard of review of a summary judgment in a contract action. The appellate court acknowledged the usual review standard for summary judgments is de novo (circuit court ruling gets no deference). However, “Whether a breach of contract has occurred generally is not a legal question subject to de novo review, but rather a question of fact which will not be disturbed unless the finding is against the manifest weight of the evidence.”

In this case, the trial court’s ruling was based only on an interpretation of the contract, and no question of fact was involved. So the appellate court chose the de novo standard. Here’s the court’s explanation:

“[W]here only the construction of a contract is at issue, the legal effect and interpretation of the contract is a question of law, and summary judgment is proper." … The parties disputed whether Covinsky resigned or was involuntarily terminated but, given the court's decision that paragraph 7(g) applied regardless of whether Covinsky voluntarily resigned or was involuntarily terminated, the court determined that it did not need to make this factual determination and resolved the case by construing the parties' employment contract. We review the court's grant of summary judgment de novo.

Read the whole opinion, Covinsky v. Hannah Marine Corp., No. 1-08-0695 (2/17/09), by clicking here.

Kathleen Savio’s death in 2003 first was ruled by the coroner to be an accident. But after her body was exhumed and additional autopsies conducted in 2007, the coroner ruled that Kathleen’s death likely was a homicide. Kathleen’s father and siblings then asked the court to reopen Kathleen’s estate, to have the executor removed, and to name the father and one of the siblings as new executors. The trial court granted that request.

Kathleen’s former husband, Drew Peterson, and the executor, James Carroll, appealed. The parties argued over the proper standard of appellate review. Peterson and Carroll asserted that the trial court’s ruling should get no deference on appeal.

But the Third District Illinois Appellate Court sided with the father and sibling, and ruled that the proper standard of review of an order to reopen an estate is “the manifest weight of the evidence.” Here’s the court’s analysis:

Peterson and Carrol argue that a de novo standard of review should be applied because this issue involves a question of statutory interpretation … and because the trial court's ruling was not the result of an evidentiary hearing. Savio's father and siblings, on the other hand, argue that a manifest weight of the evidence standard is appropriate and cite general case law regarding the removal of an executor to support that conclusion … Although we have reviewed the case law in this area, we have found no clear statement of the standard of review that should be applied to a trial court's decision on a petition to reopen a decedent's estate. We note, however, that contrary to the argument of Peterson and Carrol, the issue before this court in the present case does not involve an interpretation of the probate law in Illinois. Rather, the issue involves the application of that law to the facts of the present case and a factual determination of whether the possible wrongful death claim is a newly discovered asset … Therefore, we will apply a manifest weight of the evidence standard of review to this issue and will not reverse the trial court's decision on this issue unless it is against the manifest weight of the evidence. A trial court's ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary and not based on evidence, or when the opposite conclusion is clearly evident from the record …

In the end, the trial court’s ruling was affirmed. Read the whole opinion, In re Estate of Savio, No. 3-08-0294 (2/4/09), by clicking here.

For a statistical comparison among the federal appellate courts of sanctions orders against attorneys, take a peek at the Fall 2008 edition of the Seventh Circuit Review. The analysis concludes: “The Seventh Circuit issued the fourth-most sanctions overall and issued the most serious sanctions. In the end, the data suggests that the Seventh Circuit may be ‘nitpicking’ to a certain degree, but that there are other circuits that are nearly as critical of attorneys.”

Here’s the whole article by Patrick Austermuehle, “Just a Bunch of Fusspots and Nitpickers? That Pretty Much Sums It Up,” 4 Seventh Cir. Rev. 34.

Two important rulings arise from this landlord-tenant dispute.

After remand from the appellate court — which did not include instructions for how to proceed — the tenant asked the trial court for leave to amend its complaint to add a new item of damages. The trial court denied the tenant’s request because, it said, it did not have jurisdiction to do so.

Must the appellate court give specific directions to the trial court in an order of remand? The First District Illinois Appellate Court said “No.” Then what is the trial court’s authority and obligation after the appellate court sends the case back to the trial court? Here’s how the appellate court answered the question, complete with the standard of review:

Following a remand, the circuit court is obligated to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law, and a reviewing court decides that legal question de novo …

A reviewing court is not required to provide specific directions in an order reversing a judgment and remanding a cause … In such a case, the circuit court is required to examine the reviewing court's decision and to proceed in a manner that conforms with the views expressed therein. … Where a cause has been remanded without particular instructions, the circuit court is not precluded from allowing the plaintiff to amend or supplement his pleadings, as long as the amendment is not inconsistent with the legal principles expressed by the reviewing court …

In this case, our prior decision did not include specific instructions, nor did it indicate that the cause was remanded for the limited purpose of resolving the two identified factual questions. Rather, we held that judgment on count IV could not be granted as a matter of law while those questions remained unanswered … A plaintiff is permitted to amend its pleadings to specifically state a damage claim, provided the amendment was not proscribed by the reviewing court's decision … This court's general remand order did not restrict the court's jurisdiction to allow amendment of the pleadings, and Suburban's proposed amendment seeking recovery of rent was not inconsistent with the our prior ruling. Therefore, we find that the circuit court erred in determining that it lacked jurisdiction to permit Suburban's proposed second amended complaint.

The second issue was whether the trial court had jurisdiction over a fee petition that was filed within 30 days of the final judgment, but after the notice of appeal was filed. The trial court ruled it did not have jurisdiction to hear the fee petition because the tenant already appealed. But the appellate court disagreed. Here is the appellate court’s thinking:

A circuit court retains jurisdiction for 30 days after its entry of a final order or judgment … A circuit court has jurisdiction to entertain a petition for fees filed within 30 days of the entry of a final judgment without regard to a previously filed notice of appeal … In addition, a circuit court has jurisdiction to address a timely-filed fee petition regardless of whether the fee request is considered to be part of the original action or collateral to the original claim … The filing of a postjudgment petition for fees renders a prior notice of appeal premature …

In this case, Associated's [Landlord] petition for fees was timely filed within 30 days of the entry of summary judgment in its favor. The filing of Associated's fee petition rendered Suburban's [Tenant] December 17, 2007, notice of appeal premature. Therefore, Suburban's first notice of appeal did not deprive the circuit court of jurisdiction to rule on the petition for fees …

Read the whole case, Suburban Rebuilders v. Associated Tile Dealers Warehouse, No. 1-07-3531 (2/10/09), by clicking here.

Bridgette Glickman, owner of a condominium unit, fell on ice in a stairway at the condo building. She sustained multiple fractures to her ankle. Among others, she sued the condominium association for negligent maintenance of the stairway.

The trial court dismissed Glickman’s complaint against the association because the accident happened before the association elected its first board of managers. The case proceeded against the other defendants − the developer and the designer of the building. Glickman appealed the dismissal of the association within the mandated 30-day deadline. About four months later, she asked the trial court for permission to file an amended complaint against the association.

The trial court denied Glickman’s request to amend, so she made the denial part of her appeal. The First District Illinois Appellate Court affirmed the ruling that Glickman’s request came too late for the trial court to decide. The filing of Glickman’s notice of appeal did not relieve the trial court of jurisdiction. But her failure to file the request to amend within 30 days did. Here’s what the appellate court stated:

As a general rule, the trial court is divested of jurisdiction over a cause upon the filing of a notice of appeal … However, under the recently amended version of Supreme Court Rule 303(a)(2) … the trial court retains jurisdiction over a timely filed postjudgment motion … Because Glickman's motion involved the party that was dismissed from the lawsuit and since it was not filed within the 30 days allowed under Rule 304(a) … it was not timely filed and the trial court no longer had jurisdiction over the dismissed party. Therefore, the trial court's denial of Glickman's motion for leave to file an amended complaint is affirmed.

Don’t fret, though, if your sympathy is with Ms. Glickman. The dismissal of Glickman’s complaint against the association was reversed. Read the whole case, Glickman v. Teglia, No. 1-08-0392 (2/19/09), by clicking here.