February 26, 2007

The Proof Is In The Reading

What you think you’ve written is not always the way it reads. That’s why the best way to proofread any writing, legal brief or quick email, is to read it out loud. Can’t be bothered? James Michener did it, and his novels are longer than a tall drink of water.

Well, maybe you have a sore throat or you just don’t have it in you to read your 50-page brief after you’ve worked on it for a month or more. Save your mellifluous tones and let Ultra Hal Text-to Speech Reader do the work. I learned about Ultra Hal from Eric Waltmire’s Blog. Ultra Hal TTS Reader reads your text out loud. You’ll be able to hear if what you wrote is what you meant to say. Ultra Hal TTS Reader is free. It’s very cool, and it does improve the proofing process. I used it for this error-free entry.

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February 26, 2007

Good Times In Elgin, Illinois

The Illinois Appellate Lawyers Association announces its annual roundtable luncheon honoring the justices of the Second District Illinois Appellate Court. Date: 3/6/07. Time: 11:30 a.m. reception; 12:15 lunch. Place: The Centre of Elgin (Heritage Ballroom), 100 Symphony Way, Elgin, Illinois. Cost: $25.00 members; $30.00 non-members. Call 312-554-2090 to make a reservation.

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February 25, 2007

Appeal Stands Despite Litany Of Deficiencies In Brief

Plaintiff bought a car that he claimed had an “unremediated defect.” He appealed after his case was dismissed at trial. The appellate opinion contains a list of horribles in plaintiff’s brief and the record -- misleading Points and Authorities and Issues sections, lack of citation to the record, an incomplete record, to name a few. Despite the numerous transgressions from the Illinois Supreme Court Rules, the court considered the appeal, stating:

Given the deficient brief and record, it would be within our discretion to affirm the sanction [dismissal] order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.

The entire case, Gonzalez v. Nissan North America, No. 1-05-3539 (1st Dist. 12/4/06), is available by clicking here.

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February 24, 2007

Nunc Pro Tunc Order Does Not Benefit From Illinois Rule 304(a) Language In Original Order

Two defendants had nearly identical names. One was Town of Fort Sheridan Company (TFSC); the other was Town of Fort Sheridan Operating Company (TFSOC). Plaintiff originally sued TFSC only. Later, but without leave of court, plaintiff filed an amended complaint that additionally named TFSOC.

TFSOC moved to dismiss on the basis that the amended complaint was a nullity because leave to file it had not been granted. The trial court granted the motion, but the order mistakenly identified TFSC as the dismissed party. This order did contain Illinois Supreme Court Rule 304(a) language, giving the parties 30 days to appeal the interlocutory order.

At TSFOC’s request, an order later was entered to correctly identify TSFOC as the dismissed party. That order was nunc pro tunc to the original dismissal order. It did not contain Illinois Supreme Court Rule 304(a) language.

Plaintiff did not appeal the dismissal in favor of TSFOC within 30 days of the original dismissal order. Instead, he litigated the case to conclusion against the original defendants. Then he appealed the dismissal of TSFOC within 30 days of the final judgment.

TSFOC moved to dismiss the appeal, arguing that plaintiff had to appeal within 30 days of the original order. TSFOC asserted that the later, corrected order, because it was nunc pro tunc, got the benefit of the Rule 304(a) language in the earlier, incorrect order. Plaintiff argued that the later order was an ordinary interlocutory order that could not be appealed until all claims against all parties were resolved.

The court ruled that it had jurisdiction to hear plaintiff's appeal from the dismissal of TSFOC. The Rule 304(a) language in the first dismissal order could not be imputed to the later, corrected order, even though it was nunc pro tunc. To become immediately appealable, the second order required its own Rule 304(a) language.

See the whole analysis in Pestka v. Town of Fort Sheridan Company, 1-04-2674 (1/22/07), by clicking here.

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February 23, 2007

Second District Illinois Appellate Rules Plain Error Doctrine Overcomes Waiver Of Patient’s Right To Psychiatric Evaluation

The use of psychotropic drugs again was at issue. The patient was admitted to the Elgin Mental Health Center after she was found to be unfit to stand trial for unauthorized use of a credit card. The patient was treated by Dr. Rosanova, who diagnosed schizophrenia and recommended use of phychotropic drugs.

The patient received an independent evaluation from a clinical psychologist, not a medical doctor. A chief preliminary issue was whether the patient timely demanded an independent evaluation by a physician. The court ruled that the patient’s actions in the trial court sufficiently defeated a waiver argument.

But the appellate court did not stop there. The court also ruled that the plain error doctrine — not often invoked in civil cases — overcame waiver. Here’s what the court said:

The plain-error doctrine allows a reviewing court to address a waived or forfeited issue in two circumstances: (1) where the evidence is so closely balanced that the outcome may have resulted from the error rather than the evidence; or (2) where the error is so serious that the respondent was denied a substantial right, and thus a fair trial . . . In this case, petitioner glaringly overlooks the second circumstance in which the plain-error doctrine may apply. As stated, the Illinois Supreme Court has described the involuntary administration of psychotropic drugs as an act that involves a " ' "massive curtailment of liberty" ' " . . . and an act that is a " 'particularly severe' interference with a person's liberty . . . Therefore, even if respondent waived her right to an independent psychiatric evaluation, the second prong of the plain-error doctrine applies
.

Get the whole case, In re Dru G., 02-05-1214 (12/20/06), by clicking here.

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February 22, 2007

Update On Illinois SB 0222, The Illinois Judicial Campaign Regulation Bill

Since I last reported on SB 0222 on February 14, the bill has picked up three additional sponsors: Sen. Jacqueline Collins (D-16th), a Chief Co-Sponsor; Sen. Susan Garrett (D-29th), a Chief Co-Sponsor; and Sen. William Delgado (D-2nd).

Yesterday the bill was referred to the Senate Local Government Committee, which has scheduled a hearing on the bill on February 28, 2007 at 1:00 p.m. at the Capitol Building in Springfield, Illinois.

See my explanation of the bill, and how it ignores and thus makes election of independent and minor party candidates much harder, at the February 14, 2007 entry just below.

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February 19, 2007

No Federal Appellate Jurisdiction Where District Court Decides Who Gets The Money But Not How Much

Richard Magley gave security interests to secure a number of loans. The Small Business Administration was guarantor of some of the loans, including two advanced by Cadleway Properties and Ossian Bank. The SBA removed the entire dispute to federal court. Cadleway and Ossian both claimed to be the beneficiary of a guaranty of a loan on a certain property. On summary judgment, the federal district court ruled that the bank was the beneficiary. The district court did not rule how much money, if anything, Ossian was entitled to receive.

The appellate court ruled that the dispute between Cadleway and Ossian was not “sufficiently discrete” to create an appealable interlocutory order. Here’s the court’s explanation:

. . . [T]he district judge has not specified who is entitled to what relief. Cadleway did not begin this litigation in quest of a declaratory judgment about ownership; it wants money from Magley. So does the Bank. Does Magley owe any money on this guaranty? The district court has not decided. It has held so far that whatever Magley owes goes to the Bank rather than Cadleway, but it has not decided whether Magley owes even 1¢; for all we can tell, the lenders may collect in full from other sources and never draw on the guaranty . . . If Magley does owe something, the amount may be disputed and another appeal will be required. That’s why a decision that resolves a dispute about liability while leaving relief to be determined cannot be appealed under Rule 54(b).

The appeal was dismissed for lack of jurisdiction. The opinion also contains discussion about the propriety of continuing district court jurisdiction in view of SBA settlements, thus eliminating a federal question. Click here for the opinion, Cadleway Properties v. Ossian State Bank, No. 06-2033 (2/15/07).

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February 15, 2007

First District Illinois Appellate Rules Waiver Of Argument Raised For First Time On Motion For Reconsideration

In a fight between insurers over how to pay an underlying personal injury claimant, Tokio Marine and Fire fought with U.S. Fire Insurance about exhaustion of primary and excess policies. The trial court ordered Tokio to reimburse U.S. Fire for its full $1 million policy limits. Tokio asserted that the trial court should have conducted a hearing on proportionate liability before entering an order to reimburse.

Tokio raised this argument for the first time on a motion for reconsideration in the trial court. U.S. Fire argued to the appellate court that Tokio waived the argument. The appellate court agreed with U.S. Fire and ruled the argument waived. The appellate court was persuaded because the evidence raised by Tokio on reconsideration was available at the time the parties briefed the original motion. “Trial courts should not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.”

The entire case, North River Ins. Co. v. Grinnell Mutual Reinsurance, No. 1-05-0606 (12/8/06), is available here.

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February 14, 2007

More On Illinois Judicial Campaign Finance Regulation Bill

I first wrote about the pending Illinois Senate bill to provide public financing for appellate and supreme court judicial candidates a few days ago. It’s SB0222, filed by Sen. Kwame Raoul (D-13th) (Chicago), on February 7, 2007. The bill has bi-partisan sponsorship; a chief co-sponsor is Sen. Kirk Dillard (R-24th) (Minority Whip from DuPage County). Another chief co-sponsor is Sen. Don Harmon (D-39th) (Oak Park).

The bill sets up a process by which major party candidates can obtain public financing for their campaigns for appellate and supreme court seats. Under SB0222, candidates do not have to accept public money, but if they do there are strict limits on fundraising and expenditures. If a candidate accepts the public money — $250,000 for appellate court candidates for the general election; $750,000 for supreme court candidates — then private donations to the campaign are limited to $100 per contributor. A candidate may not put more than $10,000 of his or her own money, including money from his or her immediate family, into the campaign, and may not make a loan to the campaign.

The bill contains a detailed regime for fundraising and for institutionalizing the “Illinois Judicial Election Democracy Trust.” The Trust, which would operate under the governance of the State Board of Elections, will dole out the campaign money.

To qualify for public money for the general election, a candidate must win the party primary. Because the bill will provide money only for primary winners, it excludes independent candidates and candidates from third (minor) parties, neither of which are mentioned in the bill. That smacks of unfairness, if not unconstitutionality. So maybe instead of the “Democracy Trust,” it ought to be called the “Trust To Ensure Power Remains With The Two Major Parties.”

The bill also would create a new section to the Illinois Election Code entitled “Judicial Campaign Contribution Limits.” This section includes candidates for the circuit courts. Among other things, the new section would cap contributions by any one person to a judicial candidate at $2,000 per election period.

This cap acts as a double-whammy against independent and third party candidates for appellate and supreme court seats. In the first instance, they are ineligible for public financing. Then they are burdened with these contribution caps. That means an independent candidate must find 375 contributors to give the maximum of $2,000 to meet the $750,000 in public money available to a major party candidate for supreme court. An independent candidate for appellate court must get maximum contributions from 125 people just to get even.

This bill would force taxpayers to subsidize the campaigns of the major party candidates. And it will cost extra if you want to support an independent candidate.

The bill had a first reading and was sent to the Rules Committee. I’ll keep track of it and give you updates. You can read the General Assembly’s status by clicking here. Follow the link on the Status page for the full test, or click right here.

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February 13, 2007

Leave To Supplement Appellate Record Denied By Second District Illinois Appellate; Reply Brief Stricken For Lack Of Service

Steven Sharp was held in contempt for failure to pay maintenance and child support. He appealed the contempt ruling, and also requested review of the underlying support order. The appellate court affirmed.

Steven’s income was primarily from a trust. He argued that it was a spendthrift trust, and that the trustees refused to distribute assets to him for payment of his maintenance and child support obligations. But Steven did not originally make the trust a part of the appellate record, although it was in the trial court record.

After the appeal was fully briefed, Steven moved to supplement the appellate record with the trust. The appellate court denied the motion, ruling that supplementing the record would unduly prejudice his former wife, Laurie. Laurie was “precluded from citing to the trust provisions in her brief because the trust agreement had not been made part of the record on appeal. Therefore, petitioner [Laurie] was precluded from fully briefing any issue regarding the terms of the trust agreement.”

Laurie moved to strike Steven’s reply brief because he never served it on her. That motion was granted because Laurie was prejudiced by not having the opportunity to assess Steven’s arguments. “[P]etitioner has been prejudiced by respondent's failure to serve her with a copy of the reply brief, as she did not have an opportunity to review respondent's argument or contest any inaccuracies or misstatements in the reply brief. Moreover, it would be improper for this court to consider material that has never been presented to or considered by the opposing party.”

The whole case, IRMO Sharp, No. 2-05-1233 (12/14/06), is available here.

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February 12, 2007

Second District Illinois Appellate Rules No Abuse Of Discretion (Or Maybe Manifest Injustice) In Granting Grandmother Visitation

Over Alice’s objection, the trial court granted Cindy’s (paternal grandmother) petition for visitation with Alice’s child. Although the appellate standard of review was not an issue in the dispute, the appellate opinion raises the question of the correct standard.

The court first says: “A trial court's determination regarding visitation is within its sound discretion, and this court will not disturb such a finding absent a showing of manifest injustice.” This opinion does not define “manifest injustice.”

However, the Second District Appellate Court affirmed because it could not find an abuse of discretion. “We can find no error in the trial court's finding that Alice's denial of visitation was harmful to E.H.'s mental, physical, or emotional health, and we find no abuse of discretion in the court's order granting visitation.”

So is the right standard of review “manifest injustice” or “abuse of discretion?” In view of the court’s holding, you’d have to go with “abuse of discretion.” But a cautious brief writer has to work the “manifest injustice” idea into the argument as well. (Note -- A dissent found an abuse of discretion, and did not discuss "manifest injustice.")

Get the whole case, Flynn v. Henkel, No. 2-06-0573 (11/27/06), right here.

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February 11, 2007

Manifest Abuse Of Discretion Required In Illinois To Reverse Order Denying Leave To Amend Complaint

The Third District Illinois Appellate Court reversed a trial court’s order denying leave to amend a complaint. The case is Gurnitz v. Lasits- Rohline Service. The appellate court stated the standard of review: “The decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court . . . Therefore, the trial court's decision will stand absent a manifest abuse of discretion.” The court left no word on what a “manifest” abuse of discretion is. Is it any different than a plain old abuse of discretion? Any more strict?

The Third District cited the Illinois Supreme Court for the “manifest” abuse of discretion standard. And indeed the supreme court did use that exact language in Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill.2d 263, 273-74, 166 Ill.Dec. 882, 586 N.E.2d 1211, 1216 (1992). No word in Loyola Academy either defining the term.

Loyola Academy lists the factors that determine the propriety of a motion for leave to amend. The first factor is whether the proposed amendment would cure the defect in the original pleading. That sounds like a question of law, which should require de novo review, not abuse of discretion. The analyses in Loyola Academy and in Gurnitz support the idea that this factor is a question of law. Neither opinion mentions the standard of review in discussing this factor.

So I am puzzled. What is a “manifest” abuse of discretion? Why use that standard for what is clearly a question of law? Stay tuned as your humble editor explores the depth of these mysteries.

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February 7, 2007

New Bill Would Establish Donation Limits And Public Financing For Illinois Appellate And Supreme Court Races

A bill pending in the Illinois General Assembly would change financing and spending for candidates for the Illinois Supreme Court and Courts of Appeal. STLtoday.com today reports on a plan to allot $750,000 to supreme court candidates and $250,000 to appellate court candidates from a public trust fund. More details are available on the bill by clicking here.

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February 7, 2007

Is It Law Or Is It Fact? 7th Circuit Grapples With Jurisdiction In Qualified Immunity Case

Andrew Sallenger suffered from mental illness. He resisted an arrest and died during the altercation with police. His estate sued the police under 42 U.S.C. § 1983, including a claim for use of excessive force in violation of the Fourth Amendment. The police officers lost their summary judgment motion that was based on qualified immunity. Then they appealed. The estate moved to dismiss the appeal for lack of appellate jurisdiction. It argued that the appeal sought review of the district court’s findings of fact, impermissible under the collateral order doctrine.

Denials of summary judgment motions based on qualified immunity typically are treated as final judgments and are immediately appealable. This exception to the final judgment rule exists because of “the urgency of denials of qualified immunity.” However, the exception is limited by another rule: "[T]he Court of Appeals may consider only issues of law and may not consider any case which raises a genuine issue of material fact on appeal.”

In Sallenger's case, district court found that questions of material fact existed about whether excessive force was used, and denied the summary judgment motion. But on appeal, the police officers accepted the district court’s version of the facts for summary judgment purposes. The court thus ruled that it had appellate jurisdiction because it could "decide qualified immunity as a matter of law without review of the district court’s findings of facts.”

The entire case, Sallenger v. Oakes, No. 05-3470 (1/10/07), is available by clicking here.

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February 6, 2007

7th Circuit Requires Insurance Company To Cross-Appeal Effort To Expand Rights

Pacific Insurance Co. defended an appeal of partial summary judgment. Pacific, as appellee, raised three gripes with the judgment. But Pacific did not file a cross-appeal. Pacific argued that the 7th Circuit could consider the arguments on the theory that the appellate court can affirm the district court on any ground supported by the record. The appellate court refused to consider Pacific’s positions because ruling in Pacific’s favor would have enlarged its rights under the judgment entered by the trial court. To accomplish that, Pacific was required to have filed a cross-appeal.

Get the whole case, Illinois School District Agency v. Pacific Insurance Co., No. 04-4147, 05-1271 (12/5/06), by clicking here.

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February 3, 2007

No Gain, No Appeal. 7th Circuit Dismisses Appeal Of Bankrupt Coal Company

This dispute began 27 years ago when Robert Melvin applied for black lung benefits. After “amazingly protracted proceedings,” the Benefits Review Board upheld an award to Melvin’s widow. However, Melvin’s former employer, Old Ben Coal Company, and its parent company, were liquidated by a bankruptcy court. Although Old Ben and its parent had no assets, Mrs. Melvin’s award was to be paid by the Department of Labor out of the Black Lung Disability Trust Fund.

Old Ben petitioned the appellate court for review of the award. How does a defunct corporation that has been liquidated in bankruptcy do that? And why?

Here’s the explanation Old Ben’s attorneys gave. Horizon Natural Resources owned Old Ben at one time. Standard Oil of Indiana owned Horizon. B-P America bought Standard Oil. St. Paul Travelers Insurance Company issued a surety bond to Standard Oil. Old Ben’s lawyers said that a federal statute may allow the Department of Labor to recover from St. Paul the sums it paid to Mrs. Melvin. So St. Paul and B-P were paying Old Ben’s lawyers to dispute the award to Mrs. Melvin.

But St. Paul and B-P were not parties to the lawsuit, and never tried to intervene. The 7th Circuit Court of Appeals dismissed the petition because Old Ben was not a real party in interest – being defunct and liquidated out of bankruptcy, Old Ben had nothing to gain or lose from the petition for review. And if B-P or St. Paul had a legal interest to protect, they should have intervened in the case. They “could not protect that interest by directing [their] lawyer to represent a named party that was not a real party in interest.”

Get the whole case, Old Ben Coal Co. v. Office of Workers’ Compensation Insurance, No. 06-2189 (1/25/07), by clicking here.

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February 1, 2007

First District Appellate: Mortgagee Who Did Not File Cross-Appeal Cannot Dispute Fee Award

This three-way dispute involved the mortgagee, the mortgagor, and the high bidder on the foreclosed property. The mortgagor defaulted, and the subject property was foreclosed and sold. The trial court denied a motion by the high bidder to confirm a judicial sale, but did order the mortgagor to pay the high bidder’s attorney fees.

The high bidder appealed the denial of its motion to confirm. The mortgagor did not cross-appeal the fee award, but did dispute it in its response brief. The First District Illinois Appellate Court refused to hear the argument over the fee award because a cross-appeal had not been filed. The court explained:

We also find it important to note plaintiff's [mortgagor] contention that the circuit court erred in awarding interest and attorneys' fees to intervenor [high bidder] at plaintiff's expense. Plaintiff raised this contention in its response brief but it did not cross-appeal the judgment of the circuit court ordering it to pay these costs to intervenor. Findings of the trial court adverse to the appellee do not require the appellee's cross-appeal if the judgment of the trial court was not at least in part against the appellee . . . However, findings adverse to the appellee require a cross-appeal if the judgment was in part against the appellee . . . Here, the circuit court granted plaintiff's motion to vacate the sale and dismiss the case with prejudice but it also assessed specified costs against plaintiff based on equitable principles. The circuit court's judgment was in part against plaintiff. Thus, plaintiff was required to file a cross-appeal to argue this issue on appeal . . . We, therefore, decline to address plaintiff's argument relative to the circuit court's judgment that was adverse to plaintiff.
Get the whole case, Mortgage Electronic Registration Systems v. Thompson, No. 1-05-2720 (11/3/06), by clicking here.

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February 1, 2007

Hubert To Receive CBA’s Dickerson Award

Donald Hubert will be honored posthumously by the Chicago Bar Association. Don will receive the CBA’s 2007 Earl Burrus Dickerson Award on February 21, 2007.

Don passed away recently. He was a past president of the Chicago Bar Association, an excellent lawyer, and among the finest people I’ve ever known.

The CBA is accepting individual memorial letters, which will be placed in a commemorative book for Don’s daughter, Jessica. Submit your original letter to Terrence Murphy, CBA Executive Director, 321 S. Plymouth Ct., Chicago, IL 60604.

The award luncheon will be at the Standard Club, 320 S. Plymouth Ct., Chicago. Call 312-554-2132 for a reservation.

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