Law should seek personal liberty. ABA asked: How would you #ChangeTheLawIn5Words?
Warren County Soil is important to Illinois appellate practitioners because it clears the confusion over the standard of review in appeals from orders growing from 2-1401 disputes. (Illinois Civil Procedure Code § 1401 allows relief from judgments that are more than two years old.) This is what the Illinois Supreme Court said:
[W]e hold that when a section 2-1401 petition presents a fact-dependent challenge to a final judgment or order … the petitioner must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense; (2) due diligence in presenting this defense; and (3) due diligence in filing the section 2-1401 petition for relief … The quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the evidence, and the circuit court’s ultimate decision on the petition is reviewed for an abuse of discretion … In addition, when the facts supporting the section 2-1401 petition are challenged by the respondent, a full and fair evidentiary hearing should be held … Relevant to this appeal, the trial court may also consider equitable considerations to relax the applicable due diligence standards under the appropriate limited circumstances …
But when the fight concerns only a question of law — e.g., a claim that the judgment was void — then there is a de novo standard of review (no discretion given to the circuit court).
Warren County Soil and Water Conservation District v. Walters, 2015 IL 11783, is important to understand if you’re dealing with a 2-1401 petition at any level. You can read the whole opinion by clicking here.
Illinoisappellatelawyerblog was born to worry. And opinions like Estate of York feed that congenital behavior.
The First District Illinois Appellate Court woke us to attention with its first words. “The case before us serves as a cautionary tale to litigants to adhere to Illinois Supreme Court Rule appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.”
Dread always follows that kind of lead. Here’s what happened.
York and Mulryan were law firm partners. York loaned Mulryan $60,000. Mulryan made a few repayments, but stopped when York died. Mulryan claimed the loan converted to a gift when York died. Mulryan also took $5,000 out of the law firm.
York’s estate wanted the money back, and eventually filed a citation to recover assets against Mulryan. Mulryan asked the trial court to dismiss the citation. The trial court dismissed four of the claims with prejudice (can’t re-plead them) and three of the claims without prejudice (can fix and re-plead them).
The Estate appealed, and filed a supporting brief. But Mulryan did not respond. Two weeks after the appellate court ruled it would consider the Estate’s appeal without a response, Mulryan asked the appellate court for an extension of time to file and to allow her to ask for dismissal of the appeal for lack of jurisdiction.
Mulryan filed her request to dismiss the appeal for lack of jurisdiction, but the appellate court denied it. The trial court’s dismissal of four claims with prejudice tipped the analysis in the Estate’s favor. “The dismissal was with prejudice, and so it was a final determination of the estate’s right to the money in question, based on either fiduciary duty or fraud. Thus, the facts of this case and the dismissal order are squarely within Rule 304(b)(1) [Allowing immediate appeal of a final order in a probate case, even before the entire case is finished] as an immediately appealable order.”
Mulryan’s predicament worsened. The Estate asked the appellate court not to consider Mulryan’s principal brief because it was filed late, without good cause. The appellate court agreed, and rejected Mulryan’s argument that she didn’t need to file a brief because the lack of jurisdiction for the Estate’s appeal was “clear.”
Here’s how the court disposed of that position. “We agree with the executor’s argument that Mulryan has caused unnecessary delay in the disposition of this case on appeal and so we deny her motion for extension of time. Given Mulryan’s failure to file any response to the executor’s appellate brief and disregard for mandated appellate deadlines, we abide by our prior order and proceed based on the executor’s brief only.”
But the Estate had even bigger problems. The Estate’s Notice of Appeal was deficient, and did not invoke the court’s jurisdiction. The Notice of Appeal asked for reversal of the trial court’s dismissal of Count II, but the Estate’s brief argued for reversal of Count I. The mistake was fatal. Count I was most important to the Estate, but the appellate court would not consider reversing the trial court because Count I was omitted from the Notice of Appeal.
The appellate court also refused to consider reversing the dismissal of Count II. The Notice of Appeal gave notice of an appeal from the dismissal of Count II, but the Estate only briefed the Count I dismissal.
Mulryan submitted an affidavit to the trial court to support her request to dismiss the Estate’s complaint. The Estate asked the trial court to dismiss the affidavit because, it argued, the affidavit did not comply with Illinois rules.
Half of the Estate’s brief was devoted to reversing the trial court’s affidavit-ruling. But the appellate court refused to consider it because:
- the Estate did not reference it in the Notice of Appeal, and
- the trial court’s ruling was not a step in the procedural progression toward the dismissal; “The ruling on the motion to strike Mulryan’s affidavit could not have been a step in the procedural progression leading to the section 2-615 dismissal of count II, because consideration of affidavits is not allowed in ruling on section 2-615 dismissals.”
So let’s review what happened in this case. First, Mulryan’s request to file a late brief was denied because she did not follow the rules, and her observation that appellate jurisdiction “clearly” was lacking fell on deaf ears.
But Mulryan won the war because the Estate did not draft a proper Notice of Appeal. The appellate court not consider the Estate’s most important issues because the deficient Notice Of Appeal did not provide fair notice that those things were being appealed.
Read the whole opinion, In re Estate of York, 2015 IL App (1st) 132830, by clicking here.
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.
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.
Paralyzed by that white screen mocking you? Close your eyes for a few minutes and let this piano massage your brain. Then write your appellate brief like Earl Fatha Hines moseys along the Santa Fe Trail.