Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here. 

Lake Environmental was doing asbestos removal at Scott Air Force Base in southern Illinois. The State, claiming that Lake had violated regulations, persuaded the Department of Public Health to revoke Lake’s asbestos removal license. Lake asked the trial court to review the department’s decision. But while that review was still pending, the State filed another complaint in the Department that asked for penalties and an injunction.

The trial court reversed the Department’s decision to revoke the license. Lake then asked the court to sanction the State. The trial court denied the sanction request, but did not say why. So Lake appealed the denial of sanctions to the Illinois Fifth District Court of Appeals.

The appellate court ruled that it had no basis to affirm the denial of sanctions because the trial court’s terse denial did not meet the requirement that a court must provide a reasoned analysis for its sanctions ruling.

This is how the court explained it:

“A reviewing court should not be put in the position of making the trial court’s findings” and “should not be required to speculate as to which of the determinitive facts and legal theories the trial court relied on in deciding” whether to allow or deny sanctions.

The appellate court reversed the no-sanctions decision and sent the case back to the trial court with directions to issue an opinion stating “with specificity” why it denied sanctions.

Click here to read the entire opinion, Lake Environmental v. Arnold, 2014 IL App (5th) 130109 (7/10/2014).

“Hey, c’mon Sr. illinoisappellatelawyerblog.com. Two months between postings? How do you expect to keep your readers? We’re writing briefs. We need all this stuff you write about. Nobody else does it, at least not like you. What’s your excuse now?”

“No excuses, none that are worth talking about anyway. Stick with me, my friend. I’ll do better.”

General contractor Kiferbaum Construction was sued by a subcontractor’s employee who was injured at the work site. Kiferbaum was represented by Jacobson & Riseborough. Kiferbaum got excess insurance from Evanston Insurance.

Kiferbaum’s insurers, including Evanston, settled with the employee. The insurers were left to fight about the amounts each would pay the employee. Jacobson & Riseborough committed Kiferbaum to participate in the settlement agreement, which required Kiferbaum to reimburse Evanston for $1 million the insurer put into the settlement pot. But Kiferbaum argued it did not give J&R authority to make the commitment. The trial court agreed and gave Kiferbaum summary judgment against Evanston’s claim for the money.

Unhappy about being saddled with the $1 million payment, Evanston sued J&R. Evanston’s first two complaints were dismissed {because they were premature; i.e., Evanston hadn’t been injured yet], but the trial court gave Evanston a chance to file another complaint that would meet legal standards. Evanston filed a second amended complaint, but the trial court, finding the complaint was filed too late under the statute of repose [six years from the offending act], dismisssed that one too. The trial court then denied Evanston’s request for reconsideration.

Inn the Illinois Supreme Court, Evanston argued (1) its second amended complaint “related back” to its original complaint, which was filed timely, and (2) the original complaint was not premature and should not have been dismissed. But Evanston did not make these arguments in its original opposition to J&R’s dismissal request.

So the Illinois Supreme Court ruled Evanston forfeited those arguments, and refused to consider them. Raising the arguments for the first time in a request for reconsideration was not good enough to preserve them for appeal. Here is the supreme court’s reasoning:

The purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence that was not available at the time of the original hearing, changes in existing law, or errors in the court’s application of the law … Arguments raised for the first time in a motion for reconsideration in the circuit [trial] court are forfeited on appeal.

The rule is loud and clear: An argument is forfeited if you wait to raise it on reconsideration. Read the whole case, Evanston Insurance v. Riseborough, 2014 IL 114271 (2/21/2014), by clicking here.

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

After he was injured in an accident, Juan Zamora sued his employer, Newsboy Delivery Systems, and two individuals, Cherie and Richard Payne. Zamora claimed their negligence caused the accident.

The trial court dismissed Newsboy because Zamora’s claim against his employer was barred by the Illinois Worker’s Compensation Act. The dismissal order included a finding under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of the order]. Zamora asked the court to reconsider the dismissal. That request for reconsideration extended the time he had to appeal [30 days from the ruling on the reconsideration request]. Zamora’s request for reconsideration was denied.

The Paynes filed a third-party complaint for contribution against Newsboy. About two years later that complaint was dismissed. Zamora got a second Rule 304(a) finding, and after the rest of the claims were dismissed, Zamora appealed the two year-old order that dismissed his claim against Newsboy.

The Second District Illinois Appellate Court dismissed Zamora’s appeal for lack of appellate jurisdiction because:

Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider … This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself.

So Zamora had to appeal within 30 days of the denial of his reconsideration request. He blew that deadline, and the second Rule 304(a) finding was irrelevant.

Read the whole case, Zamora v Montiel, 2013 IL App (2d) 130579, by clicking here.

Witte Brothers is an intersate trucking company. After an audit, under protest, Witte paid Illinois for “pass-through” miles [distance driven in Illinois without picking up or delivering goods].

Witte sued Illinois for reimbursement of the taxes. The trial court ruled that the Illinois Income Tax Act did not allow the State to tax truckers pass-through miles. So Illinois appealed.

Among other things, Witte argued in the appellate court that taxing pass-through miles violated the Commerce Clause of the U.S. Constitution. But Witte did not raise this argument in the trial court, nor allege it as a separate count in its complaint. So the First District Illinois Appellate Court refused to consider the argument.

No need to worry if you’re concerned the State got beat out of tax revenue. The appellate court reversed, and ruled that pass-through miles are taxable. [“pass-through miles establish a physical and economic presence in Illinois which must be taxed …”]

This is the sort of ruling that annoys illinoisappellatelawyerblog.com. The appellate court would review the Commerce Clause argument de novo [no deference to the trial court]. If what the trial court says is inconsequential anyway, then the appellate court should not be allowed to avoid the issue because it was not raised in the trial court. So now we have precedent that blesses a tax that may violate the United States Constitution.

Read the whole case, Witte Brothers Exchange v. Department of Revenue, 2013 IL App (1st) 120850.

John Garrido lost an election to the Chicago City Council to John Arena. Garrido claimed he was defamed because Arena distributed campaign literature and advertisements that had “outright lies” about Garrido.

Garrido sued Arena, but the trial court dismissed the case based on the Illinois Citizen Participation Act. (The Act bars meritless lawsuits filed against citizens for their actions while exercising their First Amendment speech rights.) Within the next 30 days, Garrido asked the trial court to reconsider the dimissal. But Garrido’s request was brought under Illinois Code of Civil Procedure Section 2-1401, which is the section that applies to requests for reinstatement of cases dismissed more than 30 days before.

Garrido’s case had been dismissed for more than 30 days when he asked to amend his 2-1401 request to show it was intended to be brought under Section 2-1203, the correct statute, which does toll the time to appeal. The trial court allowed Garrido’s request to amend, but denied the request to reconsider the dismissal.

Garrido appealed. Arena argued there was no appellate jurisdiction. He asked the appellate court to dismiss the appeal because the only request for reconsideration that was made within 30 days of the dismissal was under section 2-1401, which does not toll the 30-day deadline to appeal. But the First District Illinois Appellate Court denied Arena’s request to dismiss the appeal because:

[Arena] misconstrue[d] both the nature of plaintiff’s [Garrido’s] postjudgment filings and the standard by which the circuit [trial] court must evaluate postjudgment motions … [T]he new [2-1203] motion merely corrected the relevant statutory citations in the first [2-1401] motion. More importantly, even had plaintiff not filed an amended motion, the circuit court would in any event have been required to evaluate plaintiff’s original October 7 [2-1401] motion under the correct statute [2-1203] … The only important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion within 30 days of the judgment, which tolled the time for filing a notice of appeal …

For purposes of tolling the time to appeal, it did not matter that Garrido asked the court to reconsider the dismissal under authority of the wrong statute. So Garrido lost the election, but won the fight over appellate jurisdiction. He also prevailed on the substance of the appeal. The appellate court reversed the dismissal of his lawsuit.

Read the whole case, Garrido v. Arena, 2013 IL App (1st) 120466 (6/18/13), by clicking here.