Illinois Appellate Lawyer Blog

Edward Dus, an ambulance driver, injured his knee when he was moving a patient at the emergency room at Provena St. Mary’s Hospital. He claimed he was injured by a laundry cart being pushed by a Provena employee. Dus sued Provena. A jury awarded Dus $300,000, which was cut in half because he also was found to be 50 percent at fault for the accident.

Within 30 days, Dus asked the trial court for a judgment notwithstanding the verdict on the question of his contributory negligence. But when his lawyer did not appear for the hearing, the trial court denied Dus’s request. Two days later, Dus asked the trial court to reconsider the denial. The trial court allowed Dus to refile the original request for judgment notwithstanding the verdict. Dus refiled, but three months later the trial court denied Dus’s request.

Dus appealed. Provena asked the appellate court to dismiss the appeal because, the hospital argued, Dus filed the appeal too late, more than 30 days after the first time the trial court denied his original motion for judgment notwithstanding the verdict. Dus argued the time to file was tolled until 30 days after the trial court ruled on his request for reconsideration, which would have made his appeal timely.

The Third District Illinois Appellate Court agreed with Provena. Here is the court’s rationale:

… [I]f Dus wished to appeal the trial court’s judgment, he was required to file a notice of appeal within 30 days of the trial court’s initial ruling on his judgment n.o.v. [notwithstanding the verdict] motion.

* * *

The [trial] court stated from the bench that the motion was “denied” “due to non-appearance of movant [Dus],” and the [trial] court’s written docket entry confirmed that the motion had been “denied.” Moreover, two days after the court denied Dus’s judgment n.o.v. motion, Dus filed a “Motion for Reconsideration of Plaintiff’s Previously Filed Post-Trial Motion, which asked the court to “reconsider the ruling” the trial court had issued regarding his posttrial motion on September 22. By filing this motion, Dus acknowledgeld that the [trial] court had denied his motion on September 22 … [A] motion to reconsider a trial court’s denial of a posttrial motion does not extend the deadline for filing an appeal under [Illinois Supreme Court] Rule 303(a)(2).

The appellate court dismissed Dus’s appeal for lack of jurisdiction. Read the whole opinion, Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 0901064, by clicking here.

While their divorce case was pending, Robert and Cindy Andrews signed a listing agreement to sell their house. The real estate broker, VC&M, found a buyer. But the Andrewses rejected the offer, which was for less than their asking price. Instead, Cindy decided to stay in the house, so she agreed to purchase Robert’s half. As part of their marital settlement agreement, Robert transferred his interest to Cindy.

VC&M wanted a commission for introducing the prospective buyer, but the Andrewses refused to pay. So VC&M sued for breach of contract. The Andrewses asked the trial court to dismiss the complaint. VC&M filed an opposition memorandum electronically. Before VC&M’s e-filing, the parties had not stipulated to allow e-filings.

The trial court agreed that VC&M did not state a claim, so the complaint was dismissed. Thirty days later, in another electronic filing, VC&M asked the trial court to reconsider the dismissal. Another month later, VC&M filed a paper copy of its reconsideration request. Another month after that, VC&M e-filed a notice of appeal.

The Andrewses asked the appellate court to dismiss the appeal for lack of jurisdiction. They argued that the court could not consider the appeal because VC&M had not complied with the local appellate rules for e-filing. The Second District Illinois Appellate Court agreed, and dismissed VC&M’s appeal. This is how the appellate court explained it:

The trial court dismissed with prejudice the amended complaint on February 23, 2011. The record shows that plaintiff [VC&M] e-filed a motion to reconsider the dismissal 30 days later on March 25, 2011. However, as the case was not properly designated an e-filing case, the e-filing of the motion to reconsider violated Local Rule 5.03 and was a nullity. Pursuant to [Illinois Supreme Court] Rule 303, the time to file a postjudgment motion or a notice of appeal elapsed on March 25, 2011 … The hard copy of the motion to reconsider did not extend the deadline for filing a notice of appeal. Because the action was not properly designated for e-filing from the beginning, the e-filed postjudgment motion was meaningless and the hard-copy postjudgment motion was filed late.

LocalRule 5.03(d) further dictates that, even in a case properly designated for e-filing, all appellate documents shall be filed in the “conventional manner.” … The conventional manner of filing in the circuit court is in the form of paper documents submitted to the clerk of the court as is done in cases that are not e-filing cases …

Despite Local Rule 5.03’s express prohibition of e-filing appellate documents, plaintiff e-filed the notice of appeal. Plaintiff never filed a paper copy of the notice of appeal. Several months have elapsed since the trial court dismissed the amended complaint and denied the motion to reconsider, the appeal must be dismissed because the e-filed notice of appeal violated Local Rule 5.03 and was also untimely under Rule 303.

This court considered a notice of appeal as an appellate document that has to be filed in the “conventional” manner. A notice of appeal is filed in the trial court. So why not allow it to be filed it electronically? (For that matter, what is the justification for not allowing “post-judgment enforcement proceeding documents and notices” to be e-filed?) The rules should make it easier, and thus less costly to litigants, to file papers with the court. The extra layers of regulation in these local e-filing rules serve just the opposite purpose.

Read the whole opinion, VC&M, Ltd. v. Andrews, 2012 IL App (2d) 110523 (4/16/12), by clicking here.

Diane Borchers was the food service director at Mayslake Village, a senior citizen housing facility. Borchers used the company email system to communicate with vendors and other Mayslake employees. While she was on disability leave, two Mayslake employees accessed some of Borchers’s personal emails. The emails were in Borchers’s personal email account, which was available on her company computer at the company’s office.

Borchers sued Mayslake for violation of the federal Electronic Communications Privacy Act and the state commonlaw tort of intrusion upon seclusion. Later she sued the two Mayslake employees who got the emails.

Mayslake asked for summary judgment, which the trial court granted. The trial court ruled that Borchers did not have enough evidence that Mayslake acted intentionally in accessing the private emails to proceed with the lawsuit.

The two Mayslake defendant employees asked for dismissal of the complaint against them, which the trial court granted. The trial court agreed that the statute of limitations expired before Borchers brought the employees into the lawsuit. The summary judgment and the dismissal were included in one court order.

Borchers appealed. But her notice of appeal stated only that “she was appealing from the order entered ‘on November, 17, 2010 granting Defendants’ Motion for Summary Judgment.’” The two Mayslake employees asked the appellate court to dismiss the appeal against them because the order of dismissal was not referenced in the notice of appeal, depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court disagreed with the Mayslake employees, and denied their request to dismiss the appeal. The appellate court concluded that the notice of appeal should be construed liberally, and that it did not prejudice the employees. Here is how the court explained it:

[W]e must begin by considering the notice of appeal as a whole. In addition to identifying the order being appealed from as the order entered “on November 17, 2010 granting Defendants' Motion for Summary Judgment,” the notice of appeal also stated that the appeal was “premised upon manifest errors by the trial court in the rendering of said Order and all underlying orders thereto,” and the relief sought was “that the aforementioned Order be reversed and/or vacated by the Appellate Court, and, if necessary, that this cause be remanded to the trial court with directives consistent with such disposition.” Construing the notice liberally, as we must … we find that this language fairly apprised the defendants that the plaintiff was seeking review (and reversal) of the entire order entered on the specified date. We also note that we must consider whether the defendants would be prejudiced by construing the notice in this manner … Here … the defendants do not assert that they would suffer any prejudice from our consideration of the motion to dismiss … In fact, they did not raise the jurisdictional objection until they filed their responsive brief in the appeal, in which they also argued at length the merits of the dismissal's correctness. We therefore find that the notice of appeal in this case was sufficient to confer jurisdiction over all matters addressed in the trial court's order of November 17, 2010, including its dismissal of Frigo and Maxwell [Mayslake employees] from the case.

In the end, the appellate court reversed Mayslake’s summary judgment and affirmed the employees’ dismissal. Click here for the whole opinion, Borchers v. Franciscan Tertiary Province of the Sacred Heart, 2011 IL App (2d) 101257.

Richard Moenning was injured when he got off a passenger railroad car. He sued Union Pacifc Railroad Company, the operator of the train, for negligence and for willful and wanton misconduct. Union Pacific got a directed verdict on the willful and wanton claim. But a jury gave Moenning a favorable verdict on the negligence claim -- $250,000, which was reduced to $125,000 because Moenning was 50 percent at fault for his injury.

Moenning then asked for a new trial and for sanctions against Union Pacific for having denied it was negligent. The trial court denied both requests. Unhappy with the result, Moenning appealed the verdict and the denial of his post-trial requests.

Moenning’s lawyer in the trial court was Norman Lerum. Lerum had served an attorney’s lien for one-third of a settlement or judgment payable to Moenning. While Moenning’s appeal was pending, Lerum petitioned the trial court to adjudicate and enforce his lien.

Moenning objected to the lien. But the trial court granted Lerum’s petition. Moenning asked for reconsideration, but he did not ask for a hearing within the 90-day period required by the local rules. So the trial court denied Moenning’s request.

Moenning then appealed the trial court order that enforced Lerum’s lien. Each of his arguments was rejcted by the First District Illinois Appellate Court.

First, the trial court could adjudicate Lerum’s lien even though Moenning’s appeal from the judgment still was pending. The appellate court found the attorney’s lien was collateral to the judgment, so the trial court did not lose power to consider the lien despite the pending appeal from the judgment. Here’s how the appellate court analyzed the issue:

In this case, plaintiff [Moenning] had filed a notice of appeal from the judgment entered in his personal injury suit and the denial of his posttrial and sanctions motions. In his brief, plaintiff argued error as to the jury’s finding that he was 50% at fault and the directed verdict as to his wilful and wanton claim. The petition to adjudicate the attorney’s lien did not address these issues or challenge the judgment, which was subject to the earlier notice of appeal. The circuit court’s orders granting the petition to adjudicate the attorney’s lien and denying the motion to reconsider did not affect or alter the issues that were then on appeal.

Second, Moenning argued that the trial court did not have subject-matter jurisdiction to enforce Lerum’s lien because it had not been properly perfected. But Moenning did not file a transcript of the hearing in the trial court or a bystander’s report of the proceeding. So the appellate court rejected Moenning’s argument because it was his responsibility to provide a sufficient record on appeal. The appellate court explained:

We do not have a record of the issues that were addressed or the arguments and evidence that were presented or considered by the trial court in granting the petition to adjudicate the lien and in making its finding that the lien was properly perfected. Under these circumstances, and based on the record on appeal, we cannot conclude that the trial court’s December 2, 2009 order [enforcing the lien] was in error.

Read the whole case, Moenning v. Union Pacific Railroad Co., 2012 IL App (1st) 101866, by clicking here.

These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation's Top Advocates. Ross also is an Appellatology panelist. His short bio is here.

These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.

Tip One

Use more enumerated lists, and not just in your introductions and preliminary statements. For example:

The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions exist between regulatory and revenue-raising taxes." … But that is doubly irrelevant. First, there is no analogous doctrine under which Congress treats penalties as taxes . . .

Tip Two

To add speed to your writing and to project confidence, change every "however," "nonetheless," or "nevertheless" to "but" or "yet.” For example:

The modern commerce power is a broad one, as there is little left of the "distinction between what is truly national and what is truly local" under the Court’s present-day notions of "commerce." … But even as the Court has expanded its conception of "commerce," it has not wavered from the notion that the power to "regulate" is the power to prescribe rules for commerce, and it has never suggested that power includes the power to compel the existence of commerce in the first place.

Ross put 140 comments on the Solicitor General's "Obamacare" brief. They’re all right here.

The Peoria Disposal Co. had a permit from the Illinois Environmental Protection Agency to operate a storage and treatment site for hazardous waste. The company asked the Illinois Pollution Control Board to delist (exclude from regulation) electric arc furnace dust. After a public hearing, the Board ordered the furnace dust to be delisted.

The Sierra Club and the Peoria Families Against Toxic Waste asked the Illinois Appellate Court to reverse the Board’s order. The appellate court decided that the Sierra Club and the Peoria Families both had standing to ask for review of the Board’s order, and that the order should be affirmed.

The Sierra Club and the Peoria Families then appealed to the Illinois Supreme Court. But the supreme court did not consider whether the order was correct. Instead, the court dismissed the appeal because neither the Sierra Club nor the Peoria Families had standing to ask for review.

The supreme court’s decision was based chiefly on two reasons:
• The statute that allows appeals of Board orders lists three kinds of parties who are allowed to appeal. Neither the Sierra Club nor the Peoria Families fell into the categories – they were not parties in the Board hearing; they had not filed a complaint to the Board; they had not given public comments to the Board.
• The Board’s order was not a “rule or regulation.” If it were either, the Sierra Club or the Families could have appealed. Peoria Disposal got an “adjusted standard,” not a rule or a regulation. “[T]he adjusted standard is not itself the regulation promulgated by the Board; rather, it is an individualized exception to that regulation.”

So the delisting stood, and there weren't any parties contest it under Illinois law. Read the whole case, Sierra Club v. Illinois Pollution Control Board, 2011 IL 11088,by clicking here.

Here is a nice, concise statement of how the Illinois Appellate Court reviews the personal jurisdiction of the trial court.

When the trial court decides a jurisdictional question solely on the basis of documentary evidence and without an evidentiary hearing, as it did here, then the question is reviewed de novo on appeal. Rosier v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 561, 305 Ill.Dec. 352, 855 N.E.2d 243 (2006). On appeal, any conflicts in the pleadings and affidavits must be resolved in the plaintiff's favor. MacNeil v. Trambert, 401 Ill.App.3d 1077, 1080, 342 Ill.Dec. 314, 932 N.E.2d 441 (2010). “However, well-alleged facts within affidavits presented by the defendant must be taken as true notwithstanding the existence of contrary averments in the plaintiff's pleadings unless the defendant's affidavits are contradicted by affidavits presented by the plaintiff, in which case the facts in the plaintiff's affidavits prevail.” Keller v. Henderson, 359 Ill.App.3d 605, 611, 296 Ill.Dec. 125, 834 N.E.2d 930 (2005). If we determine that plaintiff has made a prima facie case for jurisdiction, we must then determine if there exist any material evidentiary conflicts. Id. If a material evidentiary conflict exists, we must remand the cause for an evidentiary hearing. Id.

Click here for the whole case, Soria v. Chrysler Canada, 2011 IL App (2d) 10123.

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.

Center Partners v. Growth Head grew out of a complex asset purchase agreement. The question in this opinion concerned whether Westfield, one of the parties involved in the agreement, had waived the attorney-client privilege during negotiations and had to produce documents in connection with the waived subject.

The trial court ruled that Westfield had waived the privilege and had to produce some 1,500 documents that otherwise were subject to the attorney-client privilege. Westfield refused to produce the records, so the trial court held Westfield in contempt.

Westfield appealed the contempt order. The first question was the proper standard of review. Contempt orders generally are reviewed for an abuse of discretion. But the First District Illinois Appellate Court applied a de novo standard [trial court decision gets no discretion]. This case was different than the typical contempt appeal “because a trial court lacks the discretion to compel the disclosure of privileged information, [so] we apply a de novo standard of review in determining the applicability of the attorney-client privilege.”

In the end, the court appellate court ruled that the privilege had been waived. Read the whole case, Center Partners v. Growth Head, 2011 IL App (1st) 11038, by clicking here.

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.

We start now.

These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.

Tip One
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.

One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.

Tip Two
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.

In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.

Remember the old saying: Trial courts look for justice. Appellate courts look for error.

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:

According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants' Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.

The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

When the case reached the Illinois Supreme Court, Children’s Memorial appealed the trial court’s decision to deny the summary judgment while the first amended complaint was pending. But the Clarks argued that the denial of a summary judgment request, generally neither final nor appealable, was not properly before the court. The Illinois Supreme Court disagreed because (1) the dismissal of the third amended complaint was a final order, and (2) Children’s had preserved the issue at each step of the litigation. Here’s how the supreme court explained it:

Ordinarily, the denial of summary judgment is not appealable, because such an order is interlocutory in nature. However, we have recognized an exception to this rule in certain circumstances, as when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied. Because the order disposes of all issues in the case, review of the denial of summary judgment may be had … Our appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted …

Here, the circuit court's order dismissing plaintiffs' third amended complaint with prejudice was final and appealable. Because the circuit court's order disposed of all issues in the case, and because defendants have properly preserved the issue at each stage of this litigation, we reject plaintiffs' argument that defendants' statute of limitations defense is not properly before us and, in the interest of judicial economy, we review the issue. For the reasons that follow, we hold that the circuit court correctly found that there existed a question of material fact that precluded entry of summary judgment.

The Clarks lost the battle over whether the trial court’s summary judgment denial could be heard in the supreme court. But they won on the substance; the court ruled it was correct to deny the hospital summary judgment. The Clarks also prevailed on the other substantive questions: they were allowed to pursue claims for negligent infliction of emotional distress, and they were allowed to recover expenses for Timothy’s postmajority care.

Read the whole opinion, Clark v. Children’s Memorial Hospital, 2011 IL 10865, by clicking here.