The Eckersalls’ divorce included a fight over custody of their children. The couple agreed on a visitation schedule, but not on the terms and conditions of visitation. So the trial court entered a standard “Custody/Visitation Injunction Order” that in essence prevented either spouse from addressing the divorce case with the children.

Catherine Eckersall appealed the order because she felt it interfered with her parenting rights. The First District Illinois Appellate Court dismissed the appeal for lack of appellate jurisdiction. The court ruled that the custody/visitation injunction order was not really an injunction and could not be appealed before the end of the lawsuit. After that appeal was dismissed, the trial court finalized the Eckersalls’ divorce.

But Catherine was still upset about the custody/visitation order. She appealed the appellate court’s dismissal to the Illinois Supreme Court. The supreme court took the case, but in the end ruled that the custody/visitation order was moot because it was superseded by the trial court’s final divorce order.

The supreme court rejected Catherine’s argument that the public interest trumped the mootness doctrine. The supreme court ruled:

  • The issues arising from the form custody/visitation order did not have “sufficient breadth” and did not have “a significant effect on the public as a whole.”
  • Conflicting case opinions did not exist, so there was no “need for an authoritative determination for the future guidance of public officers.”
  • Future recurrence of the question was not likely, especially “as evidenced by the lack of [past] litigation regarding the issue.”

Because Catherine’s appeal was moot, the supreme court also did not have appellate jurisdiction. Catherine’s appeal never was considered by an appellate court.

Click here to read the whole opinion, IRMO Eckersall III, 2015 IL 117922 (3/23/15).

Daewoo International paid American Metals Trading $14.5 million for pig iron. But American Metals didn’t deliver, so Daewoo started an arbitration proceeding. In support of the arbitration, Daewoo got an order of attachment against American from a New York trial court. To support the attachment — i.e., trace where the money went — the New York court allowed Daewoo to obtain discovery and to depose American’s directors and officers, four brothers led by Luis Monteiro.

Daewoo believed it could serve subpoenas on American and Monteiro in Illinois. So Daewoo filed a petition in an Illinois court to ask for the subpoenas.  Forty-eight days after the court allowed the subpoenas, Monteiro asked the court to quash them. He argued that Daewoo did not comply with Illinois Supreme Court Rule 204(b), the rule that permits an Illinois court to allow discovery in a case from another jurisdiction. The Illinois trial court refused, and ordered Monteiro’s deposition to proceed.

Litigation over the validity of the new York and Illinois trial courts’ discovery orders continued. After Monteiro ran out of options, he filed a notice of appeal in Illinois. On appeal, Monteiro continued to argue that Daewoo did not comply with Rule 204(b).

But the First District Illinois Appellate Court dismissed Monteiro’s appeal for lack of appellate jurisdiction. The court ruled:

  • the order allowing the subpoenas to issue was a final judgment
  • Montiero could appeal the judgment within 30 days, or toll the time to appeal by asking the trial court to quash the subpoenas or to reconsider the judgment, also within 30 days
  • But Monteiro’s motion to quash was made 48 days after the judgment, too late to toll the time to appeal
  • Monteiro’s Notice of Appeal was filed long after the 30-day deadline, so there was no appellate jurisdiction and the appellate court did not have the power to rule on Monteiro’s Rule 204(b) argument.

The wrinkle in this case was failing to see the trial court’s discovery order as a final judgment. Normally, a trial court’s discovery order is not a judgment nor immediately appealable. This case was different because Daewoo’s entire case was filed to get the discovery order. This is how the appellate court explained it:

In the case at bar, the [Illinois] circuit court issued an order granting discovery, pursuant to Rule 204(b), on January 29, 2013. … Since the only action in Illinois was the petition filed by Daewoo on January 28, 2013, to obtain discovery from and depose Monteiro and others in Illinois pursuant to Rule 204(b), the January 29, 2013 order was the final judgment in the Illinois proceeding.

Click here to read the whole case, Daewoo International v. Monteiro, 2014 Ill App (1st) 140573 (12/12/14).

Which deadline for filing a Notice of Appeal applies when the supreme court rules differ from the General Assembly’s statute? And what happens to the appeal when the Notice of Appeal meets the General Assembly’s deadline but not the supreme court’s?

The Illinois Supreme Court ruled that the General Assembly’s deadline applies.

In People v Illinois Commerce Commission, 2014 IL 116642 (11/20/14), the State of Illinois appealed an adverse ruling in a financial reconciliation matter that was filed under the Illinois Public Utilities Act. The Act allows 35 days to file an appeal; the Illinois Supreme Court Rules permits 30 days. The State met the General Assembly’s 35-day deadline, but missed the 30-day deadline.

The Illinois Appellate Court had ruled that the separation of powers doctrine required the courts to embrace the supreme court’s filing deadline. But the supreme court rejected that idea. Here’s what the supreme court said:

It is true our court has concurrent constitutional authority with the General Assembly to promulgate rules concerning direct appellate court review of administrative decisions. It is also the case that the rules of our court control appellate court review of administrative decisions in the absence of an explicit exercise of rulemaking authority by the legislature or in those situations were a rule enacted by the legislature is in direct conflict with a rule promulgated by our court. … We have never suggested, however, that Supreme Court Rule 335 requires courts to give controlling effect to the 30-day appeal period in Supreme Court Rule 303(a) whenever review of administrative orders lies with the appellate court.

Supreme Court Rule 335(i)(1) provides simply that certain Supreme Court rules, including Rule 303(a)’s 30-day filing period … apply to administrative review by the appellate court “[i]nsofar as appropriate.” … We have found it appropriate for courts to apply the 30-day deadline set forth in Rule 303(a) when the legislature has failed to explicitly state a time within which administrative review in the appellate court must be commenced. … At the same time, however, we have made clear that if the legislature wished to enact its own time period for seeking appeal of administrative decisions by the appellate court, it had the authority to do so. … We could not conclude otherwise without running afoul of the principles of special statutory jurisdiction.

The State met the General Assembly’s 35-day deadline, so the supreme court reversed the appellate court and ruled there was appellate jurisdiction.

The Illinois Supreme Court’s single-paragraph opinion in Keating v. City of Chicago, 2014 IL 116054 (11/20/14), is remarkable because the court was unable to render a decision.

The case involved the validity of Chicago’s red-light camera program [registered owner ticketed if the vehicle is photographed violating a red-light signal]. The First District Illinois Appellate Court affirmed dismissal of the case (2013 IL App (1st) 112559-U, a Rule 23 non-precedential opinion) deferring to Chicago’s home-rule authority.

Several people who were ticketed and who paid the fines appealed to the Illinois Supreme Court. Two of the seven supreme court judges recused themselves from the case. (We don’t know why because they don’t tell us.)

The Illinois Constitution requires a concurrence of four supreme court judges to decide a case. But the remaining five judges apparently agreed they couldn’t muster four votes together, “so that it is not possible to secure the constitutionally required concurrence of four judges for a decision.”

So what happens when the supreme court can’t decide a case? “The effect of this dismissal is the same as an affirmance by an equally divided court of the decision under review but is of no precedential value.”

William Huber filed a lawsuit to dissolve the American Accounting Association. The Association asked the trial court to dismiss the lawsuit, which it did.

Huber appealed. He mailed his Notice of Appeal to the court, but it arrived two days after the 30-day deadline.

That would have been okay had Huber included an affidavit (required of a non-lawyer) or certificate (required of a lawyer) of mailing with the Notice of Appeal. But Huber did not. He argued that a postmark on the envelope, dated two days before the 30-day deadline expired, was sufficient proof of mailing within the time required.

But the Illinois Supreme Court ruled that Huber’s so-called postmark was not a postmark at all. This is what the supreme court said:

What plaintiff identifies as a “postmark,” appearing in the upper right hand corner of the envelope, is actually a postage label from an Automated Postal Center (APC). An APC is a self-service kiosk, generally located in post office lobbies, that allows customers to mail letters and packages, buy postage, look up ZIP Codes, and access other postal services, such as “USPS Tracking,” and certified mail. …  The postage label at issue here reveals on its face that it was dispensed at an “APC.” An “APC label does not constitute an official U.S. postmark.”

The APC label shows only a “Date of sale” of “04/03/13.” [Two days before the deadline.) The date of sale is not necessarily the date plaintiff placed the envelope in the mail and the post office took custody of it. … Thus … the APC label at best indicates that plaintiff may have mailed his notice of appeal on April 3, 2013. The APC label does not establish that plaintiff, in fact, did so.

The late Notice of Appeal deprived the appellate court of jurisdiction, so the supreme court affirmed dismissal of Huber’s appeal.  Here’s the link to the supreme court’s opinion in Huber v. American Accounting Association, 2014 IL 117293 (11/20/14).

The Illinois Supreme Court did not decide whether a postmark would suffice in lieu of an affidavit or a certificate. But take a look at IRMO Sheth, an appellate court opinion explained three postings below. The Sheth court certainly falls in the camp that a postmark alone does not meet the Illinois Supreme Court Rules.

Chester Bross Construction Company was the low bidder on a number of Illinois Department of Transportation projects. But instead of awarding Bross the work, the Department suspended Bross from competing for any Department contracts for two years. The suspension was based on a dispute over whether Bross complied with a required internship program.

Bross asked the trial court to review the Department’s two-year suspension order. Bross appealed after the trial court sustained the suspension.

The two-year suspension expired while the case still was pending in the appellate court. So the first question the Fourth District Illinois Court of Appeals had to answer was whether Bross’s appeal was moot. [ “An issue is moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief.”]

Bross argued that the appeal fell under two exceptions to the mootness doctrine – (1) the public-interest exception and (2) the collateral-consequences exception. But the appellate court ruled in favor of the Department, concluded the exceptions did not apply and the case was moot, and dismissed Bross’s appeal.

Bross’s appeal did not qualify for the public-interest exception because “the question in this case is based on specific evidence and actions involving only plaintiff,” so the appeal “does not present a question of a public nature.”

Nor did the collateral-consequences exception apply. The appellate court ruled that Bross had:

. . . not demonstrated any specific or concrete legal impact likely to result from the suspension. As a result, we find this case does not fall within the collateral-consequences exception to the mootness doctrine. Any company ever suspended by IDOT, as well as anyone else ever subject to an adverse ruling by a court or administrative body, could make this same argument. If we allowed a moot appeal to go forward under the collateral-consequences exception in cases such as this, the exception would nearly eliminate the mootness doctrine.

So the appellate court threw out Bross’s appeal. Read the whole case, Chester Bross Construction v Department of Transportation, 2014 IL App (4th) 130164 (3/27/14), by clicking here.

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.”