January 31, 2007

More Good Times In Chicago

The Illinois Appellate Lawyers Association is sponsoring a talk entitled “Abraham Lincoln’s Rhetoric” at its February luncheon. David Zarefsky, Owen L. Coon Professor of Argumentation and Debate at Northwestern University, will present.

The event will be on February 8, 2007 at noon at the Chicago Athletic Association, 12 S. Michigan Avenue, Chicago. Call 312-554-2090 for a reservation.

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January 31, 2007

7th Circuit Says No Jurisdiction Of Appeal By Alien Who Failed To Ask BIA To Re-Open Case

Luis Padilla was a lawful permanent resident. He pleaded guilty to charges of criminal sexual abuse and obstruction of justice in Illinois. He left the U.S., and when he attempted to return in May 2000 the federal government began removal proceedings because of his criminal record. Those proceedings concluded in February 2004 when the Bureau of Immigration Appeals ordered Padilla’s removal to Mexico.

After an unsuccessful appeal of that order, Padilla was ordered to report for removal in May 2005. But just before that time, Padilla got the Illinois criminal convictions vacated. He then petitioned the federal district court for a writ of habeas corpus and asked that he be declared admissible to the United States. Padilla did not ask the BIA to reconsider its order of removal.

The district court denied Padilla’s habeas petition, and he was removed to Mexico. He appealed the denial of the petition. Meanwhile, Congress passed the REAL ID Act, which stripped federal district courts of jurisdiction to review final orders of removal by the BIA. The Seventh Circuit thus declared the district court proceedings a nullity, and took Padilla's appeal as a petition for review of the BIA’s removal order.

The statute requires a party to exhaust all legal remedies as a condition to a petition for review of the BIA’s order. The 90-day limit to re-open a case in the BIA passed in May 2004 (90 days after the February 2004 BIA removal order). Even though Padilla’s criminal convictions were not vacated until a year later in May 2005, the Seventh Circuit dismissed Padilla’s petition because he did not seek to re-open his case in front of the BIA.

The appellate court pointed to the statue that allows the BIA to re-open a case sua sponte at any time. The court ruled that Padilla had not exhausted his administrative remedies, depriving the court of jurisdiction to review the order.

The entire case, Padilla v. Gonzales, No. 05-2697 (12/7/06), in available by clicking here.

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January 29, 2007

Lack of Notice of Cross Appeal Does Not Deprive Illinois First District Appellate Of Jurisdiction

A condominium association sued the condo developer for an accounting of expenses incurred before turnover to the board. The trial court granted summary judgment to the developer and denied the association’s cross-motion for summary judgment. The association appealed from the summary judgment given to the developer, but did not file a Notice of Appeal from the denial of its own summary judgment motion. Nonetheless, the association asked the appellate court to reverse the developer’s summary judgment and to order that judgment be entered for the association.

The developer argued that the association’s failure to file a Notice of Appeal from the denial of its own summary judgment motion “precludes us [appellate court] from granting the relief requested by the Association in its briefs.” Rejecting the developer’s argument, the court stated:

The notice of appeal in the instant case identifies the order appealed from, specifying that it granted summary judgment in favor of Metro. We recognize that the notice does not specify that the order appealed from also denied the Association's motion for summary judgment. Furthermore, we recognize that the notice does not expressly seek reversal of that denial. Despite these omissions, we find that the notice fairly and adequately advised Metro of the nature of the appeal. The parties' cross-motions for summary judgment clearly addressed the same legal issues, and thus, appealing the grant of one of the motions was essentially the same thing as appealing the denial of the other. Metro does not assert that it was prejudiced by the Association's notice of appeal, and we find no basis for concluding that Metro's ability to defend itself on appeal was in any way compromised or prejudiced by the formal, nonsubstantive defects in the Association's notice of appeal.

This surprising result focuses on whether the developer was “fairly and adequately advised” of the nature of the appeal, and whether there was prejudice to the developer. The question of jurisdiction — i.e., whether the power of the appellate court was properly invoked — was relegated to secondary significance. It’s hard to imagine a defect in a Notice of Appeal more substantive than the complete omission in this case. It's also hard to imagine greater prejudice to the appellee/developer than being forced to defend an appeal in which the power of the court was not properly invoked.

Get the whole case, Metropolitan Condominium Association v. Crescent Heights, No. 1-06-0340 (11/22/06) by clicking here.

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January 28, 2007

Grand Re-Opening

Did you ever see those big signs draped over the front of a store proclaiming a Grand Re-Opening? I picture a short, bald shopkeeper, slightly bent at the waist from years of standing over the store counters, wearing a crisp white shirt, light gray-brown slacks, and suspenders, pushing metal security rails away from the front windows and doors. When the rails clear, the shopkeeper looks up at a sign over the door, wide grin commanding his face. He points with open hand to the sign, as if he wants to give it to you. The sign, of course, yells “Grand Re-Opening.”

Hey, wait a minute. That shopkeeper is me. (Except I’m much better looking, although I am pretty bald.) I always wanted to own one of those stores.

Anyway, I need a Re-Opening. I had a Grand Opening for this blog a few weeks ago. But now the design is greatly improved, and I’ve been submitted to the search engines. (Thanks to my pals at Justia, especially Tim Stanley and Stacy Stern, justia.com and onward.justia.com.) And I am just beginning to learn the utility and power of a blog. (Thanks to my friend, Mazyar Hedayat, who among other things, publishes a most excellent blog about law practice management at www.dcbalpm.wordpress.com, website at www.mha-law.com.)

I intend to focus this blog on questions and issues and caselaw that concern the practice of appellate law in Illinois. The Illinois appellate courts and the 7th Circuit provide lots of appellate-practice opinions, so the cases will be the take-off point. Right now, the blog is mostly case summaries with a bit of commentary by the shopkeeper. But soon the shop will carry new lines that will inform and amuse customers. So stay tuned and email me whenever you have something appellate on your mind.

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January 25, 2007

First District Illinois Appellate Orders Remittitur Of $25mm Loss Of Society Verdict.

In a wrongful death case, plaintiff was awarded $2 million for loss of support and $25 million for loss of society. While the evidence showed a close family relationship, the verdict still shocked the judicial conscience and was ruled to be excessive.

The appellate court decided that remittitur was preferable to a new trial on damages because there were no trial errors and loss of consortium was warranted by the evidence. Rather than reach the new damage figure, the appellate court remanded to the trial court to revise the loss of consortium award. The appellate court gave minimal guidance to the trial court, stating, “[W]e would find it difficult to deem reasonable a loss of society award of more than seven figures in this case and would certainly find unreasonable an award of any more than one-half of the loss of society award settled upon by the jury.”

This opinion contains interesting discussion about the consumer expectations and risk utility tests, and the propriety of various jury instructions. Get the whole opinion, Mikolajczyk v. Ford Motor Co., No. 1-05-3133 (11/22/06), by clicking here.

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January 23, 2007

Appellate Court Lacks Jurisdiction To Review Late Filed Asylum Application.

Ikama-Obambi, the daughter of an activist in an opposition party in the Republic of Congo, filed an application for asylum. But the application was filed more than one year after she entered the United States, thus violating the filing deadline. There are exceptions to the one-year rule for changed or extraordinary circumstances, but “Only the Attorney General … may decide whether an asylum application is timely or whether any exception to the deadline applies, and we [appellate court] lack jurisdiction to review these determinations.”

Ikama-Obambi’s petition for review was granted on other grounds. The court stated the immigration judge and the board of appeals “failed to make an explicit credibility finding, or even indicate why her testimony fails to carry her burden of proof …” The demand for corroborating evidence thus was improper.

See the whole case, Ikama-Obambi v. Gonzales, No. 06-1402 (12/11/06), right here (free account required).http://caselaw.lp.findlaw.com/data2/circs/7th/061402p.pdf

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January 22, 2007

7th Circuit Rules No Asylum For Alien Whose House And Business Are Burned Down.

The Bocis’ request for political asylum was denied by an immigration judge. The Board of Immigration Appeals affirmed. The 7th Circuit Court of Appeals denied a request for review.

There was evidence that the Boci home and business in Albania were burned down because of the Bocis' political affiliation. But the 7th Circuit said that did not “satisfy a heavy evidentiary burden. Indeed, our standard of review is ‘difficult to meet without powerful and moving evidence.’” Nor did fear of future persecution, which the court termed as "subjective," lay a basis for asylum.

The Bocis also asked for “withholding of removal” to Albania under the Convention Against Torture. The court denied that request because the Bocis did not demonstrate a clear probability they would face persecution in Albania. “Because the Bocis have provided little, if any, evidence of torture as defined by federal regulations [“severe pain or suffering, whether physical or mental”], the record does not compel granting them relief under CAT.”

The case, Boci v. Gonzales, No. 05-3231 (1/12/07), is available here – free account required.

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January 18, 2007

First District Rules No Jurisdiction On Mother’s Appeal Of Unfitness Finding.

A mother was found to be an unfit parent. In the best interest of her child, the mother’s parental rights were terminated. The mother appealed the unfitness finding. The State argued lack of appellate jurisdiction.

The Illinois First District appellate court agreed it did not have jurisdiction. Here’s the court’s thinking:

In juvenile cases, subject to Supreme Court Rule662(a) … an adjudicatory order is generally not considered a final appealable order … Rather, it is the dispositional order from which an appeal properly lies …

In this case, respondent (mother) never filed a notice of appeal from either the trial court’s adjudicatory order or its dispositional order. We therefore lack appellate jurisdiction over respondent’s appeal of the trial court’s January 13, 2004 adjudicatory order and dismiss that portion of the appeal.

I read this to say that the appeal of parental fitness should be filed within 30 of the dispositional order, and that the adjudicatory order is irrelevant to the question of establishing appellate jurisdiction. Note that only the fitness question was dismissed. The court did consider the propriety of the termination of parental rights -- and affirmed the trial court’s termination. The case, In re Janir T., No. 1-06-0111 (12/12/06), is available here.

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January 16, 2007

ISBA Effective Legal Writing Seminar

Last week the ISBA sponsored a seminar on Effective Legal Writing. I was intrigued by the promo, which promised going beyond the usually drab basic stuff you can get from any decent style book. Greg Colomb, an English professor at the University of Virginia, taught the seminar. He did not disappoint. He was witty and thoughtful as we deciphered and rewrote samples of ineffective and effective writing.

The discussion about writing “flow” was particularly impressive. Greg emphasized two points.

1. Sentences are bundles of information. Readers understand longer, more complex information better when it arrives at the end of a sentence. The “architecture of a clear sentence” suggests placing short bundles of information before long bundles.

2. Clarity and directness depend on the first six words in your sentence. Use the six-word test to assure you are opening with a familiar subject taking important action.

Greg also discussed principles of writing persuasively. The crucial question for the writer is: What creates the mental disposition in my reader to do what I want? Readers have three tendencies the writer should acknowledge in trying to create that mental disposition:

1. Readers always remember details concerning the main character first.

2. Readers tend to hold the main character responsible.

3. Readers tend to judge events through the value system of the main character.

The seminar goes on my recommended list. Experienced writers and writers at the infancy of developing their style should benefit from it. More information about writing technique and style is available at the University of Virginia English Department’s web site, by clicking right here.

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January 15, 2007

No Waiver Of Statute Of Limitations Defense That Wasn’t Raised In Trial Court In Illinois Second District Appellate Indemnity Dispute.

A contractor obtained performance bonds for three construction projects. The surety company required the president and the owner to sign indemnity agreements to obtain the bonds. When the contractor defaulted on the construction contracts, the surety company became liable on the performance bonds. Using the indemnity agreements, the surety then sued the president and the owner to get the money back.

In the trial court, the president and the owner successfully argued for dismissal based on a four-year statute of limitations. The surety company argued that a 10-year statute applied.

Another option, a two-year limitations statute was not raised by the president or the owner in the trial court. But when the case went up on appeal, they claimed that the two-year statute applied. The surety argued waiver. But the court rejected the waiver argument because “the applicable limitations period was before the trial court,” albeit not the two-year statute. The appellate court indicated that waiver could be avoided as long as the factual basis for the argument — but not necessarily the argument itself — was before the trial court.

You can see the whole opinion in Travelers Casualty and Indemnity v. A.G. Carlson, Inc., No. 2-05-1041 (10/30/06), by clicking here.

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January 14, 2007

Appeal Of Jury Instructions And Admission Of Evidence Waived In First District Illinois Retaliatory Discharge Case.

Here are some fundamental lessons for practitioners from a recent First District Illinois retaliatory discharge case: (1) Make sure your post-trial motions are sufficiently detailed and specific enough to give the trial court a chance to correct its errors. (2) If you are challenging jury instructions, you’ll need the transcript of the jury instruction conference. (3) Just making a post-trial motion on the admission of evidence isn’t good enough to preserve your appeal. You must also object to the evidence at trial.

You can read about the employee’s difficulties on appeal in Webber v. Wight & Company, No. 1-04-1622 (11/9/06), by clicking here.

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January 11, 2007

No Mootness, No Waiver, No Rehearing In Psychotropic Drug Case

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.

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January 11, 2007

Wexstten Named To Illinois Fifth District Appellate Court

The Illinois Supreme Court named Judge James Wexstten to the Fifth District Appellate Court today. Here is the full press release.

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January 10, 2007

Guv Breaks Bread With The Supremes

Illinois Governor Rod Blagojevich visited the Illinois Supreme Court today, his first look inside the building. He was given a tour of the building and had breakfast with the members of the court. Read all about it in the Chicago Daily Law Bulletin (subscription required).

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January 10, 2007

To Reserve Is To Bifurcate -- Sometimes. Second District Dismisses Appeal Of Reserved Judgment.

Dawn Marjetko obtained a default judgment in her divorce case. The trial court entered a judgment of dissolution, divided property, granted custody of the children, set child support, and barred maintenance. At the same time, the trial court “reserved” on child visitation, post-high school education expenses, and maintenance.

Frank Marjetko appealed. Although Dawn did not dispute appellate jurisdiction, the court dismissed the appeal for lack of jurisdiction. The court stated: “Orders resolving individual issues are not appealable … until the court resolves the entire dissolution claim.” The trial court’s “reserves” resulted in a bifurcated judgment, which was not appealable.

The appellate court acknowledged that trial courts often “reserve” on issues they have decided but want to re-visit in divorce cases. “Such a use of the word ‘reserved’ nearly guarantees confusion. The [Illinois Marriage and Dissolution of Marriage] Act uses the word ‘reserves’ specifically for instances where the court is bifurcating judgment.”

The lesson here is: You cannot appeal a bifurcated judgment, and reserving judgment on essential questions renders the judgment nonfinal and not appealable. Don’t use the term “reserve” for questions the trial court decides but intends to revisit. Make sure your judgment states your exact intention.

See the whole case, IRMO Marjetko, by clicking here.

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January 7, 2007

They Just Wanted To. Fifth District Appellate Rules On Waiver Of Preemption Defense.

This one falls into the category of “I guess they just wanted to.” It impresses the power of an appellate court to do as it pleases, and for no particular reason.

Jeffrey Hicks brought a class-action lawsuit against Airborne Express, claiming that Airborne did not deliver packages at guaranteed times. On appeal, Airborne claimed that Hicks’s contract claim was preempted by the Airline Deregulation Act. Hicks argued that Airborne waived the argument because it failed to raise the defense in the trial court.

The opinion does not state how Airborne defended the waiver argument. Nor does it provide a reason for overlooking it. After stating the rule that waiver limits the parties but not the jurisdiction of the court, the appellate court stated only, “We choose to address the issue.” No reason was provided.

Caesura. The appellate court ruled the Airline Deregulation Act did not preempt the contract claim, so Hicks won that battle. But he lost the war. The court affirmed summary judgment in favor of Airborne, ruling that Hicks was limited to the exclusive remedy provision in his contract with Airborne (a free shipment), and not to common law damages.

Click here for the whole case, Hicks v. Airborne Express, 367 Ill. App. 3d 1005, No. 5-04-0793 (7/25/06).

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January 6, 2007

Illinois Supreme Court Reiterates Standard Of Review For Motions To Vacate, Identifies An Exception.

On complicated facts involving pension funds and bankruptcy, the Illinois Supreme Court was confronted with the proper standard of review on a Section 2-1401 motion to vacate a judgment. Here are the rules that emerged:

• “… [T]he disposition of a petition seeking relief from judgment under section 2-1401 … will be disturbed on review only if the trial court abused its discretion.”
• When a 2-1401(f) (void judgment) petition to vacate is “dependent on the legal effect of a violation of one of this court’s own rules,” then a de novo standard of review applies.

The court rejected the idea that the abuse of discretion standard is “rubber-stamping the lower courts’ rulings.” The supreme court ruled that the appellate court “must consider both the legal adequacy of the way the trial court reached its result as well as whether the result is within the bounds of reason.” I read this as a call for greater intellectual honesty by trial courts in the exercise of discretion and of appellate courts reviewing trial courts’ discretionary actions.

Only four justices decided this case -- Thomas, Freeman, and Burke took no part. This case, Paul v. Gerald Adelman & Associates, 223 Ill.2d 85, No. 100383 (10/19/06), also contains interesting discussion about the invited-error doctrine, and you can get all of it here.

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January 4, 2007

Illinois Fifth District Appellate Examines Standard Of Review Of Venue Orders. Venue Improper In Vioxx Class Action.

On remand from federal court, plaintiff’s Vioxx class-action complaint landed in St. Clair County, Illinois, a venue known nationwide for big verdicts and class action cases. Defendant moved to transfer venue to Cook County. (Cook is no bargain for defendants, either. That gives you some measure for St. Clair.)

Relying on a 2005 Illinois Supreme Court opinion, the appellate court identified the standard of review for change of venue orders. “[P]roper venue determinations involve separate questions of fact and law … Questions of fact are reviewed for manifest error, and questions of law are reviewed de novo … When there is no dispute concerning the facts relied upon by the court, a de novo standard of review is proper.”

In this case, buying and ingesting the Vioxx in St. Clair County did not overcome the lack of direct dealings between the parties in St. Clair. Venue was not proper in St. Clair County, and the case was transferred to Cook County. See the whole case, Rensing v. Merck and Co., Inc., by clicking here. And here is Corral v. Mervis Industries, the Illinois Supreme Court case Rensing relied on.

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January 3, 2007

First District Appellate Defines Abuse Of Discretion And Says Plaintiff Should Have Been Allowed To Cross Expert On Personal Practices

So what is an abuse of discretion? The definition bears repeating:

A trial court abuses its discretion only if it “act[s] arbitrarily without the employment of conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles of law … or if no reasonable person would take the position adopted by the court.”

In a medical malpractice case, plaintiff wanted to cross-examine the defense expert on his personal practices. The appellate court ruled that it was error for the trial court to preclude that cross-examination. The opinion did not state it was an abuse of discretion, but that’s the upshot. Take a look at Schmitz v. Binette, No. 1-05-2710 (10/13/06).

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January 2, 2007

Illinois Third District Appellate Reviews Maryland Jurisdiction

A consulting firm got a default judgment in Maryland against an Illinois law firm. The consulting firm then petitioned to register the judgment in Illinois. The law firm moved to dismiss based on lack of jurisdiction of the Maryland court. The Illinois trial court denied the motion and ruled that the Maryland court did have jurisdiction.

On appeal, the consulting firm argued that the law firm waived the jurisdiction argument because it did not raise it in the Maryland court. The Illinois Third District Court of Appeals ruled there was no waiver. Both the Illinois trial and appellate courts “may inquire into whether a sister state had subject matter and personal jurisdiction in the matter.”

Get the whole opinion in Highway Traffic Safety Associates v. Gomien and Harrop, No 3-05-0786 (11/27/06) here.

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January 2, 2007

First District Illinois Appellate Decides No Waiver For Insurer That Did Not Raise Issue On First Remand

In a procedurally complicated case running its way through the appellate court a second time, the Illinois First District Court of Appeals ruled that an insurer did not waive an argument that the first appellate ruling was palpably erroneous. After the first appeal and remand, the insurer did not argue to the trial court that the appellate ruling was erroneous. In the second appeal, plaintiff argued that the insurer's silence was grounds for waiver.

The appellate court rejected that argument and ruled there was no waiver. The trial court was bound to follow the appellate court’s instructions on remand. An argument in the trial court that the appellate court's ruling was erroneous would have been “futile.” See the whole opinion, which also is chock full of discussion about law of the case, Norris v. National Union Fire Insurance Co., No. 1-05-3132 (2006), by clicking here.

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January 1, 2007

A Moment, Please

Most sincerely, I wish you a happy and healthy 2007.

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