Catching up on reading. If you missed it too, here is Judge Posner in the American Bar Association's Litigation News on writing an effective appellate brief.
The Westin North Shore is a hotel in the northern suburbs of Chicago. The hotel was used as collateral for a multimillion dollar loan to the hotel owner. Five Mile Capital Westin had a subordinate interest in the loan. After the owner defaulted on his payments, Berkadia National Mortgage was named as special servicer of the hotel.
Berkadia got an offer to buy the hotel. But because the market for hotel properties fell, the offer did not cover the amount of the loan. If Berkadia accepted the offer, Five Mile Capital would be left with big losses.
So Five Mile Capital sued Berkadia, and asked the trial court for an injunction to stop the sale. Five Mile also recorded a lis pendens [formal notice that property title is disputed] on the property. Berkadia asked the trial court to dismiss the complaint and to lift the lis pendens. The trial court refused to dismiss the complaint, but did quash the lis pendens. The trial court also treated plaintiff’s position as a request for a preliminary injunction against the sale of the property. Then the trial court denied the preliminary injunction.
Five Mile appealed the denial of the preliminary injunction and the order quashing the lis pendens. Five Mile went to the appellate court under the rule allowing appeals of preliminary injunctions even before there is a ruling on the entire case. [Illinois Supreme Court Rule 307 allows appeals of certain interlocutory orders, including denials of preliminary injunctions.] So the first question was: Did the appellate court have jurisdiction to review the order that quashed the lis pendens? It would, if the order to quash were a preliminary injunction; it would not if the order to quash were a more typical interlocutory order.
The First District Illinois Appellate Court ruled it did not have jurisdiction to review the order to quash before the entire case was final because quashing a lis pendens is not a preliminary injunction. Here’s how the appellate court explained it.
As with an order quashing a discovery subpoena, an order quashing a lis pendens is simply an administrative order that deals with how the case proceeds before the court, and it can be issued by any court without resorting to its equitable powers. It then follows that, similarly to a discovery order, an order quashing a lis pendens is not an interlocutory order that is appealable under Rule 307(a)(1). We accordingly lack jurisdiction over that portion of the circuit court's order.
In the end, the trial court’s ruling denying the preliminary injunction [not preventing the sale] was affirmed. Read the whole opinion, Five Mile Capital Westin v. Bekadia Commercial Mortgage, 2012 IL App (1st) 122812 (12/24/12), by clicking here.
Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.
On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].
Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.
Reason I. The orders denying the reconsideration request, and denying the Rule 2-1401 request to vacate the foreclosure judgment were not final and appealable because the trial court had not approved the sale of the property nor directed distribution of it. Here’s what the Illinois Supreme Court said:
It is well settled that a judgment ordering the foreclosure of mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution … The reason such a judgment is not final and appealable is because it does not dispose of all issues between the parties and it does not terminate the litigation … Specifically, although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution … Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a foreclosure case.
Reason 2. “A second problem with Kemp's appeal lies with the fact that, while a judgment of foreclosure is a final order, without Rule 304(a) language added to it, the judgment is not appealable … Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).”
Kemp argued that the orders denying her request for reconsideration of the summary judgment and her emergency request to vacate the judgment of foreclosure were appealable because the trial court included Rule 304(a) language in those orders. But the Illinois Supreme Court rejected that argument because “the inclusion of a special finding [Rule 304(a) language] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.”
Finally, Kemp argued in favor of appellate jurisdiction because the orders she attacked were, she said, void. The Illinois Supreme Court called that argument “meritless.” “This legal proposition [void order rule] … does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent … Rather, the rule allows a party the ability to always raise the issue of whether an order is void in an appeal where appellate jurisdiction exists and the case is properly before the court of review … As we have pointed out, there is no supreme court rule that permits the appeal of the nonfinal orders that Kemp has appealed in this case.”
Read the whole opinion, EMC Mortgage Corp. v. Kemp, 2012 IL 11341 (12/28/12), by clicking here.
Melissa Ramskugler had passed Wisconsin’s requirements to qualify as a police officer, but was still in the probationary period required by the Milwaukee Board of Fire & Police Commissioners. Knee injuries prevented her from finishing probation. She was fired because her medical condition prevented her from getting through probation.
Wisconsin statutes have mandatory procedures for terminating police officers. But the Board, taking the position that Ramskugler was not a “member of the force” because she had not completed probation, did not follow the state statutory procedures when it let Ramskugler go. So she and the Milwaukee Police Association sued the Board for depriving her of property without due process.
The Board asked for, and was given summary judgment by the trial court against Ramskugler. She and the Police Association appealed. While the appeal was pending in the Seventh Circuit Court of Appeals, Ramskugler settled her dispute with the Board. The Police Association wanted to continue the appeal despite the settlement. So the settlement allowed the Police Association to continue the appeal in hopes of getting a declaration that the Board did not have authority to ignore the procedures set out in the Wisconsin statutes.
Before reaching the merits of the Police Association’s claims, the appellate court addressed whether the Association had standing in view of Rumskugler’s settlement. That boiled down to a question of whether the settlement mooted the Association’s lawsuit.
The appellate court ruled that the Police Association’s claims were moot because: “If she [Rumskugler] were to file suit today, she would lack standing because she does not have a redressable claim – her Settlement Agreement waived any sort of relief this court could grant her. Without establishing standing in her own right, Ramskugler cannot be used by the MPA [Association] to satisfy the first requirement of associational standing.”
Nor did this case fall into the mootness exception for “challenges to policies with a ‘continuing and brooding presence.’” This is how the court explained it:
To qualify for that mootness exception, the ongoing policy must “by its continuing and brooding presence, cast … a substantial adverse effect on the interests of the petitioning parties” … Nothing of that sort exists here. As discussed, the MPA has not proffered any other member who is faced with Ramskugler’s predicament. Further still, the MPA has not referenced someone who was in that position previously, which implies that Ramskugler was merely trapped in a sparsely populated limbo. The MPA has not even pled a single injury-in-fact. As such, the MPA has given us no reason to find the continuing policy of a “brooding presence” over it, much less one with a “substantial adverse effect.”
The appellate court dismissed the Association’s appeal as being moot. The opinion contains instructive discussion about the relationship between standing and mootness, and about ripeness and mootness. Read the whole opinion, Milwaukee Police Association v. Board of Fire & Police Commissioners, No. 11-2314 (7th Cir. 2/26/13), by clicking here.
Carolyn Mahoney sued her former husband, Billy J. Cox, and his lawyer, Marc Gummerson, for plotting to kill her. Cox was in jail, so Mahoney served the Illinois Department of Corrections with a subpoena to find out information about the plot. The DOC asked the trial court to quash the subpoena because the documents Mahoney wanted contained the name of a confidential informant. The DOC argued the informant’s safety could be at risk if his identity were disclosed.
Trial court refused quash the subpoena, and instead compelled the DOC to produce the records. The DOC then asked for an immediate appeal of whether the informant’s identity was privileged under an Illinois statute.
The appeal was allowed, and a question about whether the statute made the informant’s identity confidential was certified. The DOC filed its brief, but neither Mahoney, Cox, nor Gummerson responded. So the issue was how the appellate court should treat an appeal that no one opposed.
The Second District Illinois Appellate Court acknowledged the usual methodology when an opposing brief is not filed: the court considers the merits of the appeal “if the issues and record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant [party appealing] if the appellant establishes a prima facie [on its face; at first blush] case for reversal.”
But the appellate court ruled that the typical method would not work in this case because the court had to decide a certified question of law. Here’s how the court explained it:
“[I]n an appeal that considers certified questions … ruling in favor of the appellant who establishes a prima facie case would entail not ordering a case-specific outcome but, rather, articulating a legal proposition that may or may not be correct… [T]he failure to file an appellee’s brief does not establish or corroborate the answer to a certified question. A certified question is a question of law that is not susceptible to either a default or a prima facie showing of error. Therefore, we address certified questions on their merits, regardless of their simplicity. Our review is de novo [no trial court discretion] because we are presented solely with questions of law.”
Read the whole opinion, Mahoney v. Gummerson, 2012 IL App (2d) 120391 (11/20/12), by clicking here.
Urban Sites of Chicago leased property to Crown Castle USA and T-Mobile USA. The parties had a disagreement about the terms of the lease, so Urban sued Crown and T-Mobile. Crown and T-Mobile counter-sued Urban.
Crown and T-Mobile asked for summary judgment, which the trial court granted. They argued that the lease had been modified to their benefit. Urban, arguing there was insufficient consideration to support the modification and relying on a company representative’s affidavit, then asked for reconsideration of the summary judgments, which the trial court denied.
Urban appealed. But the First District Illinois Appellate Court agreed with Crown and T-Mobile. The appellate court refused to even consider Urban’s affidavit because it was “submitted … for the first time in its [Urban’s] motion to reconsider … [and] was not part of the summary judgment process and was Urban Sites’ only attempt to present a basis for its lack of consideration argument. We cannot consider this document because the scope of appellate review of a summary judgment motion is limited to the record as it existed when the circuit court ruled on the summary judgment motion.”
While still married to John, Betsy D’Attomo began developing a bakery. John and Betsy financed the bakery partly with money from a home equity loan. The couple decided to divorce. At the divorce trial, John claimed the money from the home equity loan was a loan to the bakery that must be paid back. Betsy testified that the money was an equity investment. The circuit court sided with Betsy, and ruled that the advance was an investment, not a loan.
John appealed. But other than his own testimony, John did not have any evidence to prove the advance was a loan. He argued that the loan contract was implied in fact. He also argued that the existence of an implied-in-fact contract was a question of law, which the appellate court should review de novo. [No discretion for the trial court decision.]
The First District Illinois Appellate Court disagreed with John on the standard of review. Implied-in-fact contracts are reviewed under a de novo standard if they arise out of a written document. But John did not have a written loan agreement. So the appellate court ruled that the more deferential manifest-weight-of-the-evidence standard applied because “the trial court is in a better position to weigh the testimony adduced at trial.”
In the end, the appellate court went along with the ruling that the home equity money was an investment. Read the whole case, IRMO D’Attomo, 2012 IL App (1st) 111670 (9/26/12), by clicking here.
Summary Judgment For Illinois Hospital On Actual Agency In Medical Malpratice Case Not A Final Order
Brandon Wilson required surgery for a fractured femur. He had a heart attack during surgery, which resulted in brain injury from lack of oxygen. Brandon sued Edward Hospital, where the surgery was done, and the doctors who treated him there.
To win against the hospital, Brandon had to show that the doctors were the hosptal’s actual or apparent agents. The hospital argued that the doctors were neither, and asked for summary judgment. The trial court gave the hospital judgment on the actual agent theory, but, ruling a question of fact existed, denied the hospital’s request on the apparent agency theory. Brandon then voluntarily dismissed his complaint.
One year later, Brandon re-filed, alleging the apparent agency theory against the hospital. The hospital asked the trial court to dismiss the re-filed complaint, arguing that it was barred by res judicata [second lawsuit alleging the same cause of action against the same parties not allowed]. The trial court refused to dismiss the re-filed complaint. But the court certified a question for immediate appeal – i.e., whether the re-filed complaint was a violation of the rule against claim-splittting and should be barred by res judicata.
The Second District Illinois Appellate Court felt the re-filed complaint was improper claim-splitting, so it reversed the trial court. Brandon then appealed to to the Illinois Supreme Court. The supreme court agreed that plaintiff could legitimately re-file the apparent agency theory. The re-filed complaint did not improperly split a claim because “actual agency” and “apparent agency” were not separate claims. There was only one claim, negligence. “Actual agency” and “apparent agency” were different elements of liability that could go toward proof of the single claim of negligence.
This case is important for the appellate practitioner because the supreme court ruled that the trial court order giving summary judgment to the hospital on “actual agency” was not a final order. If not final, then it would not be appealable even under Illinois Supreme Court Rule 304(a). [Allowing instant appeal of certain final judgments before the whole case is finished.]
Read the whole opinion, Wilson v. Edward Hospital, 2012 IL 112898 (12/13/12), by clicking here.
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Michael Hooker suffered a debilitating injury while working for the Chicago Fire Department. After he died two years later, his widow, Elaine, applied to the Retirement Board of the Firemen's Annuity and Benefit Fund for widow’s benefits. She was awarded a minimum annuity, but she felt the Board did not include all of the money she was entitled to when calculating the amount of the annuity.
The original case went to the appellate court and then back to the trial court. Elaine filed an amended complaint that asked for recalculation of the annuity based upon an Illinois statute that became law after she filed the first complaint. She argued she was entitled to certain retroactive benefits.
The trial court gave summary judgment to the Board on its method of calculating the annuity. Elaine appealed. She died after the appeal was filed, but her estate carried on the appeal.
The First District Illinois Appellate Court assessed whether it had jurisdiction over the appeal in light of Elaine’s death – i.e., whether Elaine’s death abated the right to retroactive benefits. The Board argued against appellate jurisdiction because the question hadn’t been put to the trial court. But the court disagreed, and ruled that appellate jurisdiction existed because the court could “render effective relief.” This is how the appellate court explained it:
This court lacks jurisdiction to decide an appeal if the parties no longer face an actual controversy, as when events make it impossible for this court to render effective relief to the appealing party … This court has jurisdiction to consider whether Elaine's death makes her appeal moot. However, neither party has suggested that her death moots the appeal, and we see no reason to believe that her death would make her appeal moot. We will not extend our review of our jurisdiction to review an issue that the trial court never addressed, where the issue does not appear to moot the appeal, and where neither party argues that the issue moots the appeal. If the Board fails to pay Elaine's estate the benefits it withheld from Elaine while she lived, the statutory process for challenging the Board's refusal to pay benefits it owes should suffice.
In the end, Elaine’s method of calculating the anniuity prevailed too. Read the whole opinion, Hooker v. Retirement Board of the Firemen’s Annuity Benefit Fund of Chicago, 2012 IL App (1st) 111625 (7/18/12).
One Notice Of Appeal Gives Appellate Jurisdiction Over 32 Plaintiff Appeals in Truck-Train Collision Case
A proliferation of lawsuits was filed after a collision between a truck carrying a load of metal rebar and an Amtrak passenger train. A number of passengers were injured, and some died in the accident. Cases by 32 passengers or their representatives were filed in Illinois state court. Debra Dowe’s lawsuit was among them. Dowe sued a number of parties, including Birmingham Steel, the rebar manufacturer that allegedly loaded the truck that was in the accident. Dowe’s lawsuit was consolidated with the others for purposes of pretrial discovery and motions.
Birmingham asked for, and received, summary judgment against Dowe and the other 31 parties. Dowe then appealed the summary judgment given to Birmingham. Her Notice of Appeal was filed for her own case and the 31 other plaintiffs whose cases were consolidated.
But Birmingham argued that the 31 others had to file their own appeals. Birmingham claimed that each of the non-Dowe lawsuits retained their own identity despite the consolidation for pre-trial purposes. Because the 31 non-Dowe plaintiffs had not filed their own notices of appeal, Birmingham argued, the appellate court did not have jurisdiction to consider their appeals.
The First District Illinois Court of Appeals disagreed. The appellate court ruled that Dowe’s single Notice of Appeal was sufficient to confer appellate jurisdiction over all of the plaintiffs because the appeal was from a single summary judgment that applied to all plaintiffs. The appellate court’s discussion of consolidation for purposes of appeal is instructive:
Actions pending in the same court may be consolidated “as an aid to convenience, whenever it can be done without prejudice to a substantial right.” … Our courts have recognized three different forms of consolidation: (1) where several cases are pending involving substantially the same subject matter, the court may stay the proceedings in all but one and then see whether the disposition of the one case may settle the others, thereby avoiding multiple trials on the same issues; (2) where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identities, and be disposed of in one suit.
Our review of the record indicates that even though the original stated purposes for the consolidation w[ere] to conduct discovery and motion practice as it related to liability, the consolidation was much broader and actually comes within the third category. To determine whether a particular consolidation was for disposition, the test is whether the cases might have been the subject of a single proceeding or could have been brought as one action.
Here, the circuit court consolidated the 32 separate bodily injury lawsuits for disposition by summary judgment. The circuit court's order granting summary judgment in favor of Birmingham Steel and against … the  Dowe plaintiffs applied to all of the consolidated cases and it gave rise to only one judgment to be appealed from.
If we accepted Birmingham Steel's position, this would go against the stated purpose of consolidation, which is to expedite the resolution of lawsuits, conserve time, and avoid duplicating efforts and unnecessary expenses … We find that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was sufficient to confer appellate jurisdiction over the 31 other Dowe plaintiffs.
Although Birmingham lost the appellate jurisdiction dispute, the appellate court affirmed the summary judgment. The whole opinion, Dowe v. Birmingham Steel, 2011 IL App (1st) 091997, is available by clicking here.