March 30, 2007

Even More Good Times In Chicago

The Illinois Appellate Lawyers Association will present “The 10 Habits of Highly Effective Appellate Lawyers That Make Clerks Smile.” Speakers will be Steven Ravid, Robert Mangan, Gist Fleshman, and Louis Costa, respectively the Clerks of the Court for the First, Second, Third, and Fifth Districts in Illinois.

The luncheon event will be held on April 20, 2007 at the Union League Club, 65 W. Jackson Blvd., Chicago. Cocktails at noon; lunch at 12:30 p.m. Cost: $25 for members; $30 for non-members. CLE credit available. Phone 312-554-2090 for a reservation.

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March 28, 2007

Tax Dispute Evokes Clearly Erroneous Standard

Mead Corporation’s tax dispute with the Illinois Department of Revenue led to this appeal in the Illinois First District. Although there was substantial testimonial and documentary evidence, the chief facts were not disputed. The issue in this appeal concerned an application of those facts to the Illinois Income Tax Act, resulting in an intermediate standard of review.

. . . [W]here the fact finder examines the legal effect of a given set of facts, it decides a mixed question of law and fact which is subject to an intermediate standard of review . . . Under such circumstances, the decision is based on fact-finding that is inseparable from the application of law to fact and is reviewed under a clearly erroneous standard . . .. This standard is largely deferential to the decision maker.

Under the clearly erroneous standard, a finding of the lower court may be reversed only if, after careful review of the entire record in light of the applicable rule of law, the reviewing court is left with the " 'definite and firm conviction' " that the finding is in error.

How to discern a mixed question of law and fact is a continuing problem. Very few appeals involve pure questions of law. We’re always applying law to facts. You just as easily could say that fact-finding is inseparable from the application of law to fact in almost every summary judgment case. But summary judgments generally are reviewed de novo. This question requires clearer definition from the court.

Get the whole opinion in Mead Corp. v. Dept. of Revenue, No. 1-03-1164 (1/12/07), by clicking here.

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March 27, 2007

Illinois Supreme Court Asked To Review After-Hours Electronic Filing

If you’re filing electronically, and it’s after 4:30 p.m., what is the official date of the filing? Is it the actual date, albeit after the clerk’s office is closed, or is it the next day? The answer can make a big difference. Either you’re late or you’re on time. Either you invoke jurisdiction or you don’t. Maybe the court reads your filing or it doesn’t.

The Chicago Daily Law Bulletin (subscription required) yesterday reported that the Illinois Supreme Court has been asked to review this question in City of Chicago v. Illinois Commerce Commission, et al., No. 104361. The question in that case was whether an electronic filing for rehearing of the the ICC's decision preserved jurisdiction.

In the Northern District of Illinois, the federal court allows electronic filings till midnight to count on the day filed. In the Circuit Court of DuPage County, Illinois, where e-filing still is voluntary, an after-hours filing is considered filed the following day. The idea there is that parties who do not have access to e-filing should not be placed at a disadvantage.

The DuPage rule is deference to an age when there were no options to physically filing paper in the clerk’s office. Non-e-filers are not at a disadvantage. They simply have to recognize that the office closes at 4:30 p.m., and act accordingly – the same as always.

The only people who may have some trouble e-filing are non-lawyers who have small claims cases. Some mechanism can be worked out to give these folks an option to file paper.

But virtually all lawyers have access to a broadband connection, and thus to e-filing. Any lawyer who doesn’t have that option should get it immediately. It’s the cost — hopefully a declining one — of doing business.

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March 26, 2007

Mandate After Dismissal Of One Defendant Does Not Affect Appeal Against Other Defendant. No Laches or Estoppel Two Years After Appellate Briefs Are Filed.

A senatorial candidate sued a columnist and a newspaper for libel. The trial court dismissed the case, and the candidate appealed. After the appeal was filed, the candidate voluntarily dismissed the columnist, but maintained the appeal against the newspaper. A mandate was issued with respect to the dismissal of the columnist.

Two years passed after the briefs were filed, but there still was no decision from the appellate court. In response to the candidate’s motion to set the case for oral argument, the newspaper asserted that the issuance of the mandate deprived the appellate court of jurisdiction. The appellate court would have none of it, and ruled that the mandate as to the columnist did not deny the court of jurisdiction to consider the appeal against the newspaper.

Pointing to the two-year period after briefing was completed, the newspaper also argued that laches and estoppel, and the candidate’s lack of diligence, prevented the court from considering the appeal. The appellate court rejected that argument. The court admitted that the case improperly had been removed from the active docket, resulting in the delay. “The plaintiff is not to blame for the delay in the disposition of this appeal. We will not avoid consideration of the merits of this appeal predicated upon delay caused by this court.”

This seems fair. But now I’m wondering about those times when a clerk fails to mail a ruling to the parties. The courts have said that the administrative error there does not toll the deadline to seek rehearing or appeal. Shouldn’t the court use this same rationale and not punish a party because of an administrative goof-up by the court?

See the whole case, Seith v. Chicago Sun-Times, No. 1-03-1307 (1/12/07), by clicking here.

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March 23, 2007

No Brief Doesn’t Matter. First District Illinois Appellate Still Affirms Judgment For Appellee.

This case presents a messy insurance dispute over who would pay a judgment arising from an auto accident. The judgment, and thus the amount in dispute, was for $8,400. Plaintiff insurance company brought a garnishment action against the defendant insurance company. Plaintiff’s summary judgment motion was denied, and defendant was discharged from the garnishment proceeding.

Plaintiff insurer appealed. But the defendant did not file a response brief. That didn’t stop the appellate court, which decided to rule without benefit of the brief.

Although a reviewing court is not compelled to serve as an advocate for an appellee, it may sustain the judgment of the trial court based on its review of the record as justice may require . . . In other cases, if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed . . . Where the record is simple and the claimed error is such that the court can easily decide it without the aid of an appellee's brief, a reviewing court will decide the merits of the appeal . . . Here, because the record is simple, we will decide the merits of the appeal without the benefit of the appellees' briefs.

The discharge order was affirmed. Get the whole case, Selective Ins. Co. v. Urbina, No. 1-06-0298 (1/16/07), by clicking here.

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March 20, 2007

Illinois Supreme Court Rules Law Of The Case Doesn’t Apply. Court Decides No Remand In Favor Of Its Own Review.

Plaintiff’s vacation to Africa was ruined by rain storms. He sued the travel agent, claiming the agent had a fiduciary responsibility to disclose his financial interest in assuring plaintiff did not postpone the trip. The case took two trips to the appellate courts.

The first time on appeal, the appellate court (1) reversed a summary judgment that had been entered in defendant’s favor and (2) ruled that defendant must show plaintiff acted in bad faith as a prerequisite to obtaining attorney fees under the Consumer Fraud and Deceptive Businesses Act.

On remand, after a bench trial, the trial court entered judgment for defendant, but granted plaintiff’s motion to strike defendant’s fee petition. Both parties appealed. The appellate court affirmed.

The agent then appealed to the Illinois Supreme Court. He argued it was error to require him to show bad faith by plaintiff as a condition to obtaining attorney fees under the Consumer Fraud Act. Plaintiff argued that the appellate court already ruled on that question the first time the case was appealed. Because defendant did not appeal to the Supreme Court at that time, plaintiff asserted, the law of the case doctrine prevented defendant from raising the question on this second trip to through the appellate courts.

The Illinois Supreme Court rejected the idea that the law of the case doctrine precluded it from considering defendant’s position “. . . [T]he law of the case doctrine is inapplicable to this court in reviewing the decision of the appellate court . . . Rather, ‘since this is the first time this case has been before us, we may review all matters which were properly raised and passed on in the court of the litigation.’”

After defining “bad faith” for purposes of defendant’s fee petition, the Supreme Court declined to remand the case to consider the petition. Instead, the court chose to conduct its own review. An evidentiary hearing was “unnecessary,” the court concluded, because all of the allegations upon which defendant relied were in the record.

The opinion is important also for its discussion of what constitutes bad faith by a plaintiff in bringing a Consumer Fraud Act claim. Read the whole opinion, Krautsack v. Anderson, No. 101718 (12/21/06), by clicking here.

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March 16, 2007

Illinois Supreme Court Amends Appellate Rules

The Illinois Supreme Court ordered rule amendments today that affect the sticky question of the timely filing of a notice of appeal. That’s important because a notice of appeal must be filed timely to gain appellate jurisdiction. The court amended Illinois Supreme Court Rule 303, which sets out the general scheme for filing a Notice of Appeal after a final judgment. The amendments, effective May 1, 2007, add protection for a party who appeals prematurely in certain circumstances. Here are the major points:

• “A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Before this rule change, that same notice of appeal filed before entry of the judgment would be premature and would not invoke appellate jurisdiction.

• If an appeal is filed before a ruling on a timely filed postjudgment motion, “or before the final disposition of any separate claim, [the notice of appeal] becomes effective when the order disposing of said motion or claim is entered . . .” Before this change, that same notice of appeal would be premature and would not invoke appellate jurisdiction. The rule required that the premature appeal be withdrawn. A party could invoke appellate jurisdiction only with a new, timely notice of appeal.

• “. . . [W]here a postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.” Thus, a second notice of appeal, to include the denial of a post-trial motion will not be necessary. However, the amendment requires a second notice of appeal if the postjudgment order changes the original judgment or resolves a separate claim.

The Supreme Court also tidied up Rule 341 on the form of briefs. These amendments, effective immediately, require footnotes to be double-spaced and a minimum 12-point type to be used “throughout the document, including quoted material and any footnotes.”

The amended rules are available by clicking here.

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March 15, 2007

De Novo Review For Jurisdictional Motion Made On The Papers Says Second District Illinois Appellate

An Illinois resident, unhappy with the boat he purchased, sued the Florida boat manufacturer for breach of contract. The manufacturer moved to dismiss based on lack of jurisdiction by the Illinois trial court. That motion, decided solely on the papers, was granted. On appeal, the Second District Illinois Appellate Court ruled that in cases in which “the trial court decides the issue of personal jurisdiction based solely on documentary evidence, our review is de novo.”

In this case, even after viewing the conflicting documentary evidence in favor of plaintiff, the appellate court agreed that the Florida manufacturer did not have minimum contacts sufficient for jurisdiction in Illinois.

The whole case, Bolger v. Nautica International, No. 2-06-0578 (1/11/07), is available by clicking here.

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March 12, 2007

First District Illinois Appellate Sets “Abuse Of Discretion” Standard For Section 155 Fee Claim

The trial court ruled in favor of the insured on cross-motions for summary judgment in an insurance coverage dispute. The insured then moved for costs and attorney fees under Section 155 of the Illinois Insurance Code. The trial court denied that motion.

Both parties appealed. The insured argued that the standard of review for the denial of its fee motion was “de novo,” just like for the review of its summary judgment motion. But the appellate court ruled that the proper standard of review was “abuse of discretion” because the Section 155 sanctions motion “did not involve purely legal issues and was presented to the trial court after the court ruled on the parties” summary judgment motions.”

The whole case, Baxter International v. American Guarantee and Liability Ins. Co., No. 1-05-3231 (12/26/06), is available right here.

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March 9, 2007

Illinois Supreme Court Establishes Manifest Weight Of The Evidence As Standard Of Review In Spousal Abuse Case

The Illinois Supreme Court has ruled that the standard of review for a finding of abuse under the Illinois Domestic Violence Act is the “manifest weight of the evidence.”

In this case, the trial court found abuse by the preponderance of the evidence. The appellate court affirmed, but used an “abuse of discretion” standard of review. The supreme court acknowledged that the “abuse of discretion” standard was commonly used in the appellate courts. “However, the ‘mere repetition of a purported rule of law does not establish its validity.’”

The whole case, Best v. Best, No. 101135 (9/21/06), is available by clicking here.

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March 7, 2007

Oral Arguments On The Decline, Except In The Second District Illinois Appellate Court

The big news from the Illinois Appellate Lawyers Association luncheon to honor the Second District justices yesterday came when Presiding Justice R. Peter Grometer announced the court would definitely increase the number of cases receiving oral argument in the coming year. For as long as I can remember, the Second District Illinois court has been known for not allowing oral argument. No reason for the change in philosophy was given.

Increasing the number of oral arguments bucks the trend we’re seeing in many appellate courts. I wrote some about this in my recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” And while catching up on my reading, I read Susan Larsen’s comments, in a January 18, 2007 discussion in D. Todd Smith’s very fine Texas Appellate Law Blog. Larsen, formerly a justice on the Texas Court of Appeals, posits that oral argument forces judges to focus on the real people in a dispute and not “just theorize with briefs and transcripts and law books and computer research.”

Most lawyers routinely request oral argument. But most appellate judges I’ve spoken to say that oral argument rarely changes the way judges view a case. Many judges stick by the old saw that you can’t win a case at oral argument but you can lose one. So if the benefits of oral argument are minimal, and you’re more likely to hurt yourself than you are to help, then maybe we shouldn’t be so fast to prop up our egos with routine requests for oral argument.

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March 6, 2007

Second Try Results In Dismissal Of Appeal. Wrong Court Doesn’t Matter. That’s Just Venue.

Strategic Energy asked the Illinois Commerce Commission for authority to act as an alternative retail electrical supplier (ARES). The electrical workers union opposed Strategic, and over Strategic’s objection was allowed to intervene. The Commission ultimately granted Strategic’s application to operate as an ARES. All parties appealed, and moved to dismiss the others’ appeals.

Unhappy with the ruling allowing the union to intervene, Strategic filed a petition for direct review in the Second District Court of Appeals. The union and the Commission moved to dismiss that appeal on the basis that Strategic did not exhaust its administrative remedies. The first time the Second District ruled, it denied the motions to dismiss.

The union and the Commission filed their appeal of the ruling granting Strategic’s application. They filed their appeal in the Fifth District Court of Appeals. The Fifth District clerk transferred those appeals to the Second District, where they were consolidated with Strategic’s appeal. Strategic moved to dismiss them as a nullity, having been filed in the wrong appellate district.


In their appellate briefs, the union and the Commission argued that Strategic’s appeal should be dismissed for failure to exhaust administrative remedies, the same argument the court rejected in the motions to dismiss. Strategic moved to strike the portions of the Union’s and the Commission’s briefs, asserting that the court already decided the question when it denied the motions to dismiss Strategic’s appeal.

The Second District Appellate Court denied Strategic’s motion, stating: “The denial of a motion to dismiss an appeal is not final, and the question of our jurisdiction to hear a case may be revisited at any time before final disposition of the appeal.” So the lesson here is never give up on your motion to dismiss, at least if it’s based on lack of appellate jurisdiction. The court can, and will if it wants to, look at the question more than once.

Strategic took it on the chin again when the court then dismissed its appeal of the ruling that allowed intervention. The Second District agreed with the Commission’s argument that Strategic could not appeal because it prevailed on its application to operate as an ARES. “The appellate forum is not afforded to successful parties who may not agree with the reasons, conclusions, or findings below . . . The union’s intervention did not result in any alteration of the complete relief awarded to Strategic, and we see no reason to depart from this general rule . . .”

Just in case that wasn’t enough, the Second District stated that Strategic’s appeal should be dismissed anyway for failure to exhaust administrative remedies. The court found that Strategic’s failure to file an application for rehearing before the Commission on the issue of intervention was fatal.

There was more for Strategic to endure. Its motion to dismiss the Commission’s and the union’s appeals was denied. Strategic argued that its appeal vested the Second District with appellate jurisdiction, and that the union’s and the Commission’s later appeals filed in the Fifth District therefore were null.

But the Second District rejected Strategic’s argument. The opinion contains a historical review of how the Illinois appellate districts came to comprise “one unitary appellate court.” The court relegated the later appeals in the Fifth District to a venue issue, and stated it was appropriate for the clerk there to transfer to the Second District for consolidation.

This was a tough appeal for Strategic. The court dismissed Strategic’s appeal of the intervention order. Strategic’s separate motion to dismiss the Commission’s and the union’s appeals was denied. And ultimately, the court reversed the Commission’s order that granted Strategic’s application to operate as an alternative electrical supplier. This is a must read for appellate practitioners. You can get the whole opinion, Strategic Energy v. Illinois Commerce Commission, Nos. 2-05-0685, 5-05-0465 (11/29/06), by clicking here.

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March 1, 2007

Illinois Campaign Regulation Bill Advances

Illinois Senate Bill 0222, which would give public money to primary winners for their campaigns for appellate and supreme court seats, advanced out of committee to the full Senate today. The Chicago Daily Law Bulletin reports (subscription required) that the bill was unanimously passed by the Senate Local Government Committee. The General Assembly web site shows the bill will receive a second reading tomorrow.

Since I reported on the bill on February 22, the bill has picked up five additional sponsers: Sen. John Cullerton (D-6th), Sen. David Koehler (D-46th), Sen. Dan Kotowski (D-33rd), Sen. Martin Sandoval (D-12th), and Sen. Pamela Althoff (R-32nd). There now are 11 sponsors.

For my earlier reports on this bill, see my February 7, 14, and 22 entries listed under Politics? The bill would give each primary winner $750,000 of public money to run for a supreme court seat, and $250,000 for an appellate court seat contest. The bill does not make a provision for independent or third (minor) party candidates.

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March 1, 2007

Illinois Supreme Court Identifies Standard Of Review For Class Certification Dispute

Plaintiff sought class certification for persons who were exposed to toxic chemicals when a train derailed. The trial court certified the class, and was affirmed by the appellate court. The Illinois Supreme Court reversed on the basis that common issues of proximate cause and damages did not predominate. The supreme court’s opinion states the standard of review for decisions concerning class certification. “Decisions regarding class certification are within the discretion of the trial court and will not be disturbed on appeal unless the trial court abused its discretion or applied impermissible legal criteria . . . However, " '[a] trial court's discretion in deciding whether to certify a class action is not unlimited and is bounded by and must be exercised within the framework of the civil procedure rule governing class actions.' "

The entire case, Smith v. Illinois Central R.R., No. 102060 (11/30/06), is available by clicking here.

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