June 27, 2007

In Case Of First Impression, First District Illinois Appellate Asserts Jurisdiction Over Appeal Filed 78 Days After Judgment

Rogers Auto Service was sued by a lender, Bell Leasing Brokerage, for wrongfully towing an automobile in which Bell had a perfected security interest. The trial court entered judgment for Bell. Rogers appealed, but Bell contested appellate jurisdiction because, Bell contended, the Notice of Appeal was late.

On the day the judgment was entered, Rogers filed a motion to reconsider. About three weeks later, the trial court granted Rogers additional time to file a supporting memorandum of law. Instead of filing the memo, Rogers moved to withdraw the reconsideration motion. That motion was granted, and Rogers appealed the next day, which was 78 days after the judgment was entered.

Illinois Supreme Court Rule 303(a)(1) permits a Notice of Appeal to be filed “within 30 days after the entry of the order disposing of the last pending postjudgment motion.” Bell argued that the order allowing withdrawal of a reconsideration motion was not an order disposing of a pending postjudgment motion, so the time to appeal was not tolled.

The First District Illinois Appellate Court acknowledged there was no controlling precedent directly on point. Relying on Pokora v. Warehouse Direct, Inc., 322 Ill.App.3d 870 (2001), which presented a similar fact pattern but did not address the jurisdictional question, the appellate court here denied Bell’s motion to dismiss and stated only that it chose to address the merits of the appeal.

The whole case, Bell Leasing Brokerage v. Roger Auto Service, No. 1-05-2313 (3/30/07), is available by clicking here.

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June 21, 2007

Summary Judgment In Declaratory Judgment Action Final Despite Pending Questions

Universal Insurance Co. sued Judge & James for legal malpractice. Universal claimed that J&J did not file a timely notice of appeal after a summary judgment against Universal was entered in a declaratory judgment action.

J&J had represented Universal in the declaratory judgment case brought by Heflin, an auto accident victim, to determine underinsured insurance coverage. In a summary judgment proceeding, the court declared that Universal owed insurance coverage. J&J’s motion to reconsider that ruling was denied. Instead of appealing the summary judgment, J&J filed certain discovery motions. The trial court ruled that its order on the motion to reconsider was final. Because that final order was more than 30 days old, the court also ruled that it did not have jurisdiction to rule on J&J’s discovery motions.

Universal and Heflin were ordered to arbitrate the insurance claim. That ended in an award of more than $2.9 million, which Universal was ordered to pay.

Universal then sued J&J for malpractice, raising, among other things, the failure to perfect the appeal from the summary judgment that declared insurance coverage existed. In this malpractice lawsuit, J&J prevailed on summary judgment. But Universal appealed, and the First District Appellate Court reversed.

The parties disputed whether the trial court’s declaration of coverage in Hefin’s underlying case was a final order that ought to have been appealed within 30 days. J&J argued that the coverage declaration was not final because it did not award money damages, did not state the precise nature of the coverage, and did not order the parties to arbitrate.

The appellate court rejected those arguments, stating, “. . . [A] declaratory judgment has the force of a final judgment with respect to the rights of the parties to that judgment . . . Finality attaches to a declaratory judgment on the date judgment is entered.” Heflin’s underlying complaint asked only for a declaration of coverage – not damages, or an order to arbitrate, or anything else. “Accordingly, the court’s July 31, 1995 order granted Heflin all of the relief she sought in her declaratory judgment action. The order fixed absolutely the rights of the parties on the issues raised in Heflin’s complaint concerning the issue of coverage and left no issues remaining. Therefore, the judgment was final and appealable as of the date of its entry.

See the whole opinion, Universal Underwriters Insurance Co.v. Judge & James, Ltd., No. 1-05-4138 (3/30/07), by clicking here.

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June 20, 2007

Post-Judgment Motion For Sanctions Tolls Time To Appeal

A class action against the manufacturer of a defective bicycle lock was settled. But certain class members, who had their own class action cases in other states, were unhappy with the settlement. They attempted to intervene to prevent the settlement. Their intervention motion was denied.

The trial court entered a final judgment pursuant to the settlement. Class counsel then timely moved for sanctions against the class members who tried to upset the settlement. That motion was withdrawn, and the angry class members filed their notice of appeal within 30 days of the withdrawal, but well more than 30 days after the final judgment.

The class representative who had settled the case moved to dismiss the appeal. He argued: (1) the sanctions motion, made after the final judgment was entered, did not toll the time to file the appeal; (2) the notice of appeal was late because it was filed more than 30 days after the final judgment was entered. He concluded there was no appellate jurisdiction.

The Illinois First District Appellate Court disagreed and denied the motion to dismiss. The reasoning was thin, relying on precedent that involved a notice of appeal that was filed before a timely sanctions motion. In that instance, the notice of appeal was ruled to be premature because the later-filed sanctions motion deprived the appellate court of jurisdiction. Thus, in this case, the First District concluded: “. . . [A]pellants’ notice of appeal, filed within 30 days of class counsel’s withdrawal of the motion for sanctions, was timely filed and vests this court with jurisdiction.”

The whole case, Rosen v. Ingersoll-Rand, No. 1-05-3587 (3/30/07), is available by clicking here.

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June 19, 2007

Trial Court Without Power After Reversal Without Remand

In this procedurally complicated case, Draper and Kramer sued Dalan/Jupiter and Trammel Crow for breach of contract. Draper prevailed in a bench trial, but its judgment was reversed, without remand, on appeal.

Nonetheless, back in the trial court, Dalan moved for its attorney fees. The trial court concluded that it did not have jurisdiction to rule because Dalan filed the motion too late. Dalan then filed another lawsuit that requested the same attorney fees it expended defending the original lawsuit. The trial court granted summary judgment in favor of Draper and Kramer in that second lawsuit, ruling that the earlier denial of Dalan’s fee petition precluded the second lawsuit. Dalan appealed from that summary judgment.

The appellate court ruled that the trial court did not have jurisdiction even to consider Dalan’s petition for fees in the first case because the case had not been remanded from the appellate court. Thus, it did not have power to rule that Dalan’s motion was untimely. The appellate court explained:

[W]here a judgment is reversed with no order remanding the case, "it cannot be reinstated in the court which entered the judgment from which the appeal was taken* * * " (Emphasis added.) . . . In other words, following a reversal without remand, the trial court is not revested with jurisdiction over the case.

The appellate court ruled that Dalan’s lawsuit was precluded, but for reasons different from the trial court dismissal. You can read the whole case, Dalan/Jupiter v. Draper and Kramer, Nos. 1-06-1274, 1-06-2637 (3/30/07), by clicking here.

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June 15, 2007

Illinois Judicial Campaign Regulation Bill Dead For Now

A bill that would establish public funding for campaigns for Illinois appellate and supreme courts stalled at the end of the General Assembly Spring session. I've reported occasionally about the status of SB 0222. The bill would give primary winners for the appellate and supreme court seats public money for their campaigns, and also would also set contribution limits for all judicial campaigns. The bill made no provision for funding for independent or third party candidates.

When the General Assembly session ended on May 31, 2007, the bill was re-referred to the Senate Rules Committee. A 60 percent supermajority vote will be required to pass the bill this year. However, the bill can be filed next year, when passage again will require a simple majority vote. We're safe − for now.

The full text of the bill is right here.

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June 15, 2007

Split First District Appellate Court Rules Clearly Erroneous Standard Applies In Election Law Dispute

In this election law case, the incumbent disputed her challenger’s petition signatures. The incumbent claimed that the challenger sat in her car while others approached voters’ houses and obtained nomination petition signatures. The incumbent signed the petitions as the circulator, who the statute requires to be present when the petition is signed by a voter.

The election board ruled that the challenger satisfied the “presence” requirement. But the circuit court ruled otherwise, and threw out a sufficient number of signatures to disqualify the challenger from being placed on the election ballot. The First District Appellate Court — reviewing the Election Board’s decision, not the circuit court’s, as it is required by statute to do — affirmed the Election Board and restored the challenger to the election ballot.

The appellate court’s majority viewed the dispute as presenting a mixed question of law and fact, prompting a “clearly erroneous” standard of review. The case illustrates the problems courts have defining “mixed question of law and fact.” The court explained that a mixed question of law and fact “asks the legal effect of a given set of facts . . . To resolve a mixed question of law and fact, ‘a reviewing court must determine whether established facts satisfy applicable legal rules.’ . . . Here, we must decide whether the established facts — that Andrade watched from a car while her campaign workers obtained some signatures for her nominating petition —satisfy the presence requirement of section 10-4 of the Code.” The majority stated that the “clearly erroneous” standard applied only to review of administrative agency decisions.

The dissent allowed for no discretion to the Board. It viewed the appellate dispute as a question of law and concluded that a de novo standard of review applied.

The case shows the difficulty courts continue to have with the “mixed question of law and fact” standard of review. And it’s no wonder. In almost every case we are asked the legal effect of a given set of facts. Saying so as if that justifies a lighter standard of review does not advance the analysis. If the courts want to give administrative decisions an added measure of discretion, then they should say so and justify the rule with legal analysis. We could then do away with the unhelpful fiction of “mixed question of law and fact.”

The whole case, Ramirez v. Andrade, No. 1-07-0378 (3/30/07), is available by clicking here.

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June 14, 2007

Failure To Plead Enough Special Circumstances Dooms Appeal

Plaintiff, a pedestrian, was injured in a car accident that happened when the police chased a stolen rental car. Plaintiff was hit by the rental car. She sued the rental car company and the security company that had been hired to secure the rental car company’s car lot. The rental company moved for, and was granted, summary judgment. Plaintiff appealed.

Plaintiff was required to plead “special circumstances” because the car was on private property when it was stolen. Plaintiff argued “special circumstances” on appeal. But the issue was whether it was sufficiently preserved in the trial court. The First District Appellate Court ruled that plaintiff’s “special circumstances” argument was waived.

Plaintiff, however, merely alleged that Budget [car rental company] was negligent for failing to restrict access to its vehicles and in its administration of its NRT [nonrevenue transport ticket] process without alleging any special circumstances, i.e., previous vehicular thefts at the O’Hare Budget facility. Although plaintiff referenced special circumstances in her response to Budget’s motion for summary judgment and asserted therein that Budget took security precautions, she made none of the special circumstances arguments in the circuit court that she proffers in her briefs before this court. As such, those arguments are waived.

Get the whole case, Phillips v. Budget Rent-A-Car Systems, No. 1-05-2950 (2/8/07), by clicking here.

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June 9, 2007

First District Illinois Appellate Rules Appeal From Denial Of Injunction Can Wait Until End Of Case

This case involved a dispute over the proceeds of a judgment debtor’s property. Certain of the creditors moved to allocate the proceeds of the sale of the property. The trial court denied the allocation motion.

Illinois Supreme Court Rule 307 allows orders granting or denying injunctive relief to be appealed within 30 days, as an interlocutory appeal. But the creditors who lost the allocation motion did not appeal within that deadline. They did timely appeal at the conclusion of the case. The issue was whether the court had jurisdiction to consider the appeal that did not comply with Rule 307.

The appellate court ruled that Rule 307 gave parties the option of appealing right away, but did not mandate an interlocutory appeal. “ . . . [W]hile Rule 307(a)(1) confers on parties the right to appeal certain interlocutory orders before entry of final judgment, the rule does not require that such an interlocutory appeal must be taken . . . Rather, the party has the option of waiting until after final judgment has been entered before seeking review of the interlocutory order . . .”

View the whole case, Decaro v. M. Felix, Inc., No. 1-05-2460 3/9/07), by clicking here.

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June 7, 2007

First District Illinois Appellate Prevents Second Bite At The Apple. “Law Of The Case” Prevails.

This wrongful death action grew out of a private airplane crash. The estates of the four people who died in the crash, sued the municipal owners and operators of the airport, Alberto-Culver, the owner of the plane, and Aon Aviation (a service provider). The municipal defendants moved for, and were granted, summary judgment on the basis of sovereign immunity. But the appellate court reversed, and the Illinois Supreme Court denied leave to appeal.

While the municipal defendants’ appealed, the case went to trial against Alberto-Culver and Aon. One of the estates was awarded a judgment, but there was a mistrial in the pilot’s case. The municipal defendants were brought back into the case, and the pilot’s estate retried the case against the private and municipal defendants. The retrial resulted in a judgment for the estate.

The municipal defendants appealed again, and again argued a sovereign immunity defense. The appellate court did not consider the argument because it was rejected in the first appeal and thus became law of the case. The court defined “law of the case” and its exceptions.

. . . [T]he law of the case doctrine provides that “where an issue has been litigated and decided, a court’s unreversed decision on that question of law or fact settles that question ‘for all subsequent stages of the suit” . . . There are two exceptions to this doctrine. The first applies when a higher reviewing court, subsequent to the lower reviewing court’s decision, issues a contrary ruling on the same issue. “The second exception allows the reviewing court to depart from the doctrine of law of the case if the court finds that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial on all issues.”

Actually, there is another exception, although the courts do not view it as a “law of the case” issue. It arises when an appellee moves to dismiss an appeal for lack of jurisdiction. Even when the motion is unsuccessful, appellees may raise the motion again in their response brief. And appellate courts have revisited the entire motion and granted it. In that case, there has been an unreversed decision that does not fall within either of the two exceptions to the law of the case doctrine. Yet the courts are more than happy to reassess the motion. So the law of the case doctrine in reality has another exception.

In any event, you can see the whole airplane crash case, Alwin v. Village of Wheeling, No. 1-04-0154 (3/12/07), by clicking here.

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June 4, 2007

Illinois Supreme Court Interpreting DOC Rule. Is It De Novo Or Is It Abuse Of Discretion?

A prison inmate filed a class action complaint against the Illinois Department of Corrections. He asserted that a co-payment charged to indigent inmates for non-emergency medical and dental services was improper. The issue was whether the DOC’s definition of “indigent” (unable to pay the co-payment for the entire time of incarceration) conflicted with Illinois’ Unified Code of Corrections.

The circuit court dismissed the complaint. But the appellate court reversed. Affirming the appellate court, the Illinois Supreme Court first considered the standard of review. The Supreme Court acknowledged the typical standard of review of a motion to dismiss is de novo. Further, “Whether plaintiff’s complaint was properly dismissed turns on whether plaintiff sufficiently alleged a certain and clearly ascertainable right that needs protection.’”

The standard of review gets clouded in this case because the Supreme Court also stated that the DOC’s interpretation of the Code of Corrections gets a deferential review. “We acknowledge that where, as here, an agency is charged with the administration and enforcement of the statute, courts will give deference to the agency’s interpretation of any statutory ambiguities.”

That’s “abuse of discretion” language. So the appellate court was reviewed de novo, but the Department of Corrections was reviewed for abuse of discretion. Ultimately, the court affirmed because the DOC’s definition of “indigent” cannot be reconciled with the statute [Code of Corrections].”

The whole case, Hadley v. Illinois Department of Corrections, No. 101979 (2/16/07), by clicking here.

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