May 30, 2007

Trial Court Must Grant Extension Within 30 Days Of Judgment To Preserve Additional Time For Reconsideration Motion

The Singels were divorced in April 2006. Thirty days later, Thomas’s new lawyer filed a motion requesting an extension of time to file a motion to reconsider the dissolution judgment. That motion was denied in August. The trial court ruled that it did not have jurisdiction because neither a motion to reconsider had been filed nor an extension granted within 30 days of the dissolution judgment.

Thomas appealed that ruling in September, but Mary Beth fought appellate jurisdiction on the basis that the Notice of Appeal had not been filed within 30 days of the judgment. The appellate court agreed with Mary Beth and dismissed the appeal.

The Notice of Appeal clearly was filed more than 30 days after the judgment. So the disputed issue was whether Thomas’s motion for an extension of time to file the motion for reconsideration, which he filed within 30 days of the judgment, but was not ruled on until three months later, tolled the time to file a Notice of Appeal. The court ruled that Thomas’s motion did not extend the time to file; it had to be granted within that time.

Contrary to what respondent [Thomas] contends, it does not matter that he filed his motion or an extension of time within 30 days after the entry of the judgment. Under section 2-1203(a) [of the Illinois Code of Civil Procedure], an initial extension beyond the 30-day limit must be granted within that 30-day period.

See the whole case, IRMO Singel, No. 2-06-0897 (5/16/07), by clicking here.

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May 29, 2007

May 07 Rulings On Motions For Rehearing

The Illinois Supreme Court denied five motions for rehearing in May 2007 and granted none. That makes it Denials 10, Grants 0 since March 2007.

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May 28, 2007

Judicial Campaign Regulation Bill Advances To Illinois House

Earlier this month, SB 0222, the bill to regulate judicial campaigns by institutionalizing public funding for appellate and supreme court seats and limiting contributions to all candidates passed in the Illinois Senate. The vote was 46 to 12. Click here to see the vote.

The bill is pending in the House Executive Committee and has an action deadline of May 31, 2007. The House bill has a 22 sponsors .

The bill would provide funding for candidates of major parties who are running for the Illinois Appellate Court ($250,000) and the Illinois Supreme Court ($750,000). The bill also allots money to primary candidates who meet certain baseline support criteria. It also caps contributions by individuals to a judicial candidate (circuit court included) to $2,000 per election period.

The public funding component of the bill provides money in general elections only to winners of primaries. There is no allowance of funds for independent or third-party candidates, making this bill a clear attempt to assure that judicial power remains in the hands of the two existing major parties. Click here to see the bill.

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May 25, 2007

Whether An Individual Is A “Political Committee” A Mixed Question Of Law And Fact

The Illinois State Board of Elections found that Victor Santana violated the state Election Code in connection with his financial support of a judicial candidate in a primary election. Santana did not file appropriate organizational or disclosure statements even though he paid in excess of $3,000 for a campaign mailing.

On direct appeal to the appellate court, Santana disputed that he was required to file the reports. The appellate court identified the standard of review of the Elections Board decision and attempted to define the contours of the standard:

This court reviews the decision of an administrative body as a "mixed question of law and fact," on a "clearly erroneous" standard . . . A mixed question of law and fact involves an analysis of the application of the rule of law to the established facts; the ultimate determination is whether the rule of law is violated . . . The "clearly erroneous" standard is "significantly deferential" to administrative decisions and requires that an agency's determination will be reversed "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed' . . . The decision of an election board is subject to such deference . . .

In this case, the appellate court affirmed the ruling of the Board, finding no clear error.

I continue to have an intellectual problem with the concept of “mixed question of law and fact.” We are always applying facts to law and law to facts. Every case requires it. Pretending that a mixed question of law and fact requires a different standard of review is a convenience, without a logical rationale, that allows courts to invoke the “clearly erroneous” standard of review. Maybe “clearly erroneous” is the best standard to use in review of an administrative decision. If so, then the court should just say so and tell us why. But using the pervasive notion of a mixed question of law and fact as a reason to invoke a “significantly deferential” standard of review brings a true analysis to a screeching halt.

You can see the whole case, Santana v. State Board of Elections, 1-05-1950 (3/15/07), by clicking here.

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May 24, 2007

Seventh Circuit Rules Attorney Lacks Standing To Appeal Negative Remarks

The parties reached a settlement of a Fair Housing Act claim that was filed in federal court in Illinois. But then the parties could not agree on the terms of the agreement, so cross motions to enforce an agreement were filed. The district court granted defendant’s motion, denied plaintiff’s motion, and criticized plaintiff and her attorney for not being honest about the settlement.

When the settlement was brought to the Surrogate Court in New York for a determination that plaintiff’s children were fairly represented, plaintiff said that none of the settlement was attributable to her children. That was contrary to the original settlement agreement.

Back in Illinois, the federal district court concluded that plaintiff and her attorneys made improper representations to the defendants and to the Surrogate Court. The district court then entered a new settlement agreement, which attributed part of the money to plaintiff’s children.

Plaintiff’s attorney’s fee was a percentage of the settlement attributable to plaintiff, but not plaintiff’s children. So plaintiff’s attorney, on her own behalf, by way of a Rule 72 objection, contested the agreement. After the Rule 72 motion was denied, plaintiff’s attorney filed her own appeal. The appeal sought to overturn the settlement agreement and the orders that were critical of her conduct.

The Seventh Circuit dismissed the appeal because the district court “has not imposed a monetary sanction on Ms. Matlaw [plaintiff’s attorney] in this case and therefore she cannot base her appeal on the alleged damage to her professional reputation regardless of how harmful Judge Cole’s comments might have been.” The appellate court ruled that where there is no monetary sanction, the attorney does not have standing to appeal. The court acknowledged a split of authority among the federal circuits, but stated: The limitation on our jurisdiction is based on the realization that allowing appeals by those allegedly harmed by a judge’s comments, including ‘[l]awyers, witnesses, victorious parties, victims, [and] bystanders,’ would result in a ‘breathtaking expansion in appellate jurisdiction.’”

The entire case, Seymour v. Hug, No. 06-2502 (5/3/07), is available through Findlaw (free subscription). You also can access it through Westlaw, 2007 WL 1287513 (subscription required).

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May 23, 2007

Illinois Supreme Court Refuses To Consider Argument That Is Not Fully Briefed

A student suffered a spinal cord injury when he used a mini-trampoline during a school extracurricular tumbling program. The student sued the board of education, the youth center, and the center’s instructor. The trial court granted summary judgment to defendants. The appellate court affirmed. The Illinois Supreme Court affirmed the first time it considered the case. But on rehearing, the supreme court reversed.

The student’s amended Complaint alleged a “failure to guard or warn of a dangerous condition” exception to the immunity defense. But the appellate court did not expressly address the propriety of the exception. The supreme court declined to address the question because “this issue was not fully briefed and argued . . .”

See the whole case, Murray v. Chicago Youth Center, No. 99457 (2/16/07), by clicking here.

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May 22, 2007

Appellate Jurisdiction Doesn’t Necessarily Depend On Final Assessment Of Financial Award

In this appeal of a workers’ compensation award, the Fifth District Illinois Appellate Court considered its jurisdiction on its own prerogative. The jurisdictional question arose because the arbitrator did not assign an amount for temporary total disability. Usually, when the amount of an award is not set, there is no appellate jurisdiction. However, “If ascertaining the proper amount of the award involves a simple mathematical process, we do not lack jurisdiction . . . “

The arbitrator in this case neglected to set the amount of the award in his order. But he did determine the employee’s average weekly wage, his marital status, and the number of children he had. “Given the findings, determining the proper amount of the award for temporary total disability on remand is a simple mathematical process. Accordingly . . . we do not lack jurisdiction over this appeal.”

Get the whole case, St Elizabeth’s Hospital v. Workers’ Compensation Comm’n., No. 05-06-0081 WC (2/21/07), by clicking here.

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May 15, 2007

Fifth District Illinois Med Mal Case Addresses Waiver On Appeal

An appellate opinion from the Illinois Fifth District raises two waiver questions that are notable for appellate practitioners. The case grows from Joyce Cretton’s treatment at Memorial Hospital of Belleville. She was admitted already with advanced stage chronic obstructive pulmonary disease. She died about two weeks later. Her estate sued the hospital, alleging that she “had been allowed to fall or was dropped and that as a result Joyce suffered a subdural hematoma that ultimately resulted in her death.”

After trial, a jury (1) awarded the estate just under $1 million on a survival action, and (2) found in favor of defendant on the wrongful death claim. A sanction of nearly $130,000 was entered against the hospital. The hospital appealed the jury award and the sanction. Ultimately, the appellate court affirmed the verdict and the sanction.

The following waiver issues are notable:

• Defendant argued that the $950,000 judgment was excessive. Defendant pointed out that plaintiff asked for only $500,000 in its closing argument. The appellate court ruled the argument was waived because “the defendant does not develop any cogent argument in its opening brief that, assuming an award of damages was permissible, the amount awarded was excessive . . .”

• The court took the hospital to task for its position that plaintiff made prejudicial comments during closing argument requiring a new trial. “. . . [T]he defendant has presented absolutely no evidence or argument regarding any allegedly ‘prejudicial and inappropriate’ comments during the trial and has therefore waived the issue on appeal.” The court was frustrated by the hospital’s failure “to include any of the pages of the report of proceeding cited by the defendant in support of this argument . . .” Nonetheless, the appellate court considered the argument because plaintiffs did not “raise the issue of the missing pages and do not contest the accuracy of the remarks to which the defendant takes exception.”

The whole case, Cretton v. Protestant Memorial Medical Center, No. 5-05-0474 (2/28/07), is right here.

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May 14, 2007

Second District Illinois Appellate Dismisses Appeal By Non-Party Police Department

The Department of State Police denied Daniel Braglia a Firearm Owner’s Identification Card (FOID). Seeking reversal of that decision, pursuant to statute, Braglia sued the county state’s attorney’s office. His complaint did not make the State Police a party. Braglia requested, and received, an order directing the State Police Department to issue the FOID card. The State Police moved to vacate the order. When that motion was denied, the State Police appealed.

The State Police argued the trial court’s order was void because the Police Department was not named in Braglia’s complaint nor served with summons. On the other hand, Braglia claimed that the Police Department had no standing to appeal because it was not party to the original trial court proceeding. So Braglia moved to dismiss the appeal.

The appellate court granted the motion to dismiss. The court ruled that the State Police Department was not a necessary party because its function in issuing the FOID card was merely ministerial. The Department was no better suited than the State’s Attorney’s office to represent the public’s interest in the matter. The court concluded that the State Police Department lacked any interest that is “direct, immediate, and substantial and that would be prejudiced by the judgment or would benefit from reversal.”

Read the whole case, Braglia v. McHenry County State’s Attorney’s Office, No. 2-06-0572 (2/27/07), by clicking here.

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May 9, 2007

Second District Appellate Court Retains Jurisdiction Over Dismissal Order Despite Later Filed Sanctions Motion

In a third amended complaint alleging five causes of action, Time Savers sued LaSalle Bank for breach of contract, fraud, and the like. The trial court granted LaSalle’s motion to dismiss. Although the order disposed of the entire complaint, it nonetheless contained language from Illinois Supreme Court Rule 304(a) that permits appeal of an interlocutory order. (“. . . no just cause to delay enforcement or appeal of this order.”) Time Savers appealed the dismissal. After the Notice of Appeal was filed, LaSalle filed a motion in the trial court for sanctions against Time Savers.

Despite the pending sanctions motion, the appellate court ruled that it had jurisdiction to hear Time Savers’ appeal of the dismissal order. Oddly, the appellate court pointed to the Rule 304(a) language — which was not necessary to the order of dismissal because that order disposed of the entire case — as saving jurisdiction. “We retain jurisdiction, despite the filing of the motion for sanctions, because the notice of appeal was filed from the January 25, 2006 order [dismissing the third amended complaint], which contained Supreme Court Rule 304(a) language . . . that there is no just reason to delay enforcement or appeal.”

The entire case, Time Savers v. LaSalle Bank, No. 2-06-0198 (2/28/07), is available by clicking here.

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May 7, 2007

First District Appellate Rules No Waiver Of Spoliation Argument Despite Lack of Citation To Authority

Contrast this case with Goldberg v. Rush University, directly below. In Fuller Family Holdings v. Northern Trust Co., 1-06-1533 (2/13/07), the same First District Court of Appeals (but a different panel) decided to overlook a party’s lack of citation to authority in its spoliation of evidence argument and rejected a waiver argument. The court fell back on the mantra that waiver is “an admonition to the parties and not a limitation on the jurisdiction of this court . . . Therefore, in order to provide a just result and to maintain a sound and uniform body of precedent, a court of review may exercise its discretion to disregard considerations of waiver that stem from the adversarial nature of our system.” Having hung its hat on this language, the court then, without analysis, “declined” to find waiver and stated it “believed” it was appropriate to decide the issue.

The Fuller Family Trust had much better luck than Dr. Goldberg on the same issue in the case I discussed on May 3 (directly below). The two cases illustrate how arbitrary “waiver” is. It’s particularly confounding for the appellate practitioner because most courts do not go beyond the black letter law that supports their conclusion. That’s why a case like Fuller Family Trust is not helpful on this question of waiver. The opinion does not state how overlooking waiver “provide[s] a just result and . . . maintain[s] a sound and uniform body of precedent.” Other than a desire to reach the issue, why is waiver here any different than it was in Goldberg, which came to exactly the opposite conclusion?

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May 3, 2007

First District Illinois Appellate Rules Argument Waived For Lack Of Citations

In his dispute with Rush University Medical Center, Dr. Goldberg appealed from an order denying him leave to file an amended complaint. He stated his intention to appeal that order in his Notice of Appeal. But his brief did not contain argument or citation to relevant authorities.

Citing Illinois Supreme Court Rule 341, the appellate court ruled that Dr. Goldberg waived this contention. The court used a two-step analysis: Rule 341 requires a party’s arguments to be supported by citation to authorities. Points not argued are waived. So, the court concluded, the lack of citation necessarily meant the argument was waived.

Read the whole case, Goldberg v. Rush University Medical Center, No. 1-06-1005 (2/20/07), by clicking here.

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May 1, 2007

Motion To Reconsider Trial Court’s Decision Not A Timely Filed Post-Judgment Motion

Dawn Waddick was unhappy with the trial court’s decision in her divorce action. She moved for reconsideration of the court’s decision. Still unhappy with the result of that motion, she appealed the trial court’s decision.

The Second District Illinois Appellate Court dismissed the appeal on its own motion. The court distinguished between the trial court’s “decision” and the later-entered judgment. “. . . [W]hen a timely postjudgment motion has been filed, the notice of appeal must be filed within 30 days after entry of the order disposing of the postjudgment motion. Here, however, Dawn’s motion to reconsider does not qualify as a timely postjudgment motion . . . Although Dawn’s motion to reconsider was file within 30 days after the trial court’s written decision, it was filed before the entry of the final judgment. Accordingly, the motion could not extend the time for filing the notice of appeal.”

The whole opinion, IRMO Waddick, No. 2-06-0363, is available by clicking here.

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