August 28, 2007

Fifth District Illinois Appellate Rules Jurisdiction Ruined By Post-Trial Motion For Costs

Carl Brdar, a truck driver, was injured when he tried to tie down an automobile to a cargo trailer. He sued Cottrel, Inc., the trailer manufacturer. Cottrell filed a third-party complaint against Vulcan Chain Corp., a distributor of metal tie-down chains. Vulcan’s motion to dismiss based on the statute of limitations was granted. The case was tried, and Carl got a judgment in excess of $1.4 million against Cottrell.

About two and a half weeks after the judgment, Cottrell filed a motion for an extension of time to file a post-trial motion. Cottrell served the motion on plaintiff, but not on Vulcan. That motion was granted, as were successive motions by Cottrell for more time. Cottrell eventually filed a post-trial motion.

About a month after the judgment, Carl filed a motion for costs incurred in calling a rebuttal expert witness. The motion argued that Carl was required to call the rebuttal expert when Cottrell’s expert gave surprise testimony.

The court later denied Cottrell’s post-trial motion and Carl’s motion for its costs in calling the rebuttal witness. Both appealed.

Vulcan moved to dismiss Cottrell’s appeal. Vulcan argued that because (1st) it did not receive timely notice of Cottrell’s motions for extensions of time to file a post-trial motion, the orders granting extensions “should be voided,” (2nd) voiding the orders that allowed more time would render Cottrell’s post-trial motion untimely, and (3rd) the untimely post-trial motion would not have tolled the 30-day period to file an appeal. Therefore, Vulcan concluded, the appellate court did not have jurisdiction to hear Cottrell’s appeal.

The appellate court ignored the argument and denied the motion to dismiss. The court pointed to Carl’s post-judgment motion for rebuttal expert costs, and concluded: “This timely motion injected into the action a new claim. Thus, the February 6 order [i.e., judgment] could not be appealed by any party until the court either disposed of the claim or entered a finding that there was no just reason to delay the appeal or enforcement of the order (155 Ill.2d R. 304(a) … The court did both on June 30, and Cottrell filed its appeal the same day. Thus, Cottrell's notice of appeal was timely, and we have jurisdiction to consider the appeal.”

The lesson here is that a post-trial motion for costs can “inject a new claim” into the case and destroy the finality of a judgment. Get the whole case, Brdar v. Cottrell, Inc., No. 5-04-0415 (3/27/07), by clicking here.

Bookmark and Share

August 25, 2007

Motion To Reconsider Does Not Toll 30-Day Deadline To Petition For Interlocutory Appeal

Defendant Mortgage Exchange allegedly sent unauthorized faxes to solicit business. Plaintiff CE Design, apparently annoyed at receiving the faxes, sued under the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. CE attempted to make the case a class action, but its motion to certify a class was denied.

CE moved for reconsideration of the order denying class certification within 30 days. That motion was denied more than three months later. CE then petitioned for leave to appeal pursuant to Illinois Supreme Court Rule 306, which allows discretionary interlocutory appeals of denials of class certification motions.

Mortgage Exchange moved to dismiss the petition, arguing that the petition was filed more than 30 days after the order denying class certification, thus depriving the appellate court of jurisdiction. CE argued that its motion for reconsideration tolled the time to petition for an appeal.

The Illinois Second District Court of Appeals granted the motion to dismiss. The general rule is: “[M]otions to reconsider that are directed at interlocutory orders identified by certain subsections of Rule 306(a) do not toll the running of the 30-day deadline to petition for leave to appeal those orders.” The appellate court declined to make an exception for orders concerning class certification.

Read the whole case, CE Design v. Mortgage Exchange, No. 2-07-0318 (7/22/07), by clicking here.

Bookmark and Share

August 23, 2007

First District Illinois Appellate Finds Bare Motion To Vacate Sufficient To Toll Time To Appeal

Plaintiff Affordable Housing Preservation Foundation got a permanent injunction against Smith Wiiams in connection with business transactions he took in Affordable’s name. Within 30 days, Wiiams moved to vacate the injunction. But Wiiams’ motion did not detail why the injunction was infirm. The trial court ruled on the motion about seven months later. Wiiams’ notice of appeal was met with a motion to dismiss. Affordable Housing asserted that the bare motion to vacate was not sufficient to toll the time to appeal. Coming more than 30 days after the judgment was entered, Affordable argued, the appeal was not timely, thus depriving the appellate court of jurisdiction.

The appellate court disagreed and denied the motion to dismiss. Because the judgment was rendered by the judge, not a jury, the bare motion to vacate was sufficient to toll the time to appeal. “… [W]e conclude that, despite the fact that defendant’s motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 [of the Illinois Code of Civil Procedure] and was a valid postjudgment motion.”

The opinion describes the difference between motions against the judgment brought in jury and non-jury cases, and attempts to clear up precedent that made the distinction ambiguous.

Get the whole opinion, Affordable Housing Preservation Foundation v. Wiiams, No. 1-05-3744 (7/13/07), by clicking here.

Bookmark and Share

August 20, 2007

Second District Appellate Court Hears Fugitive’s Appeal After Trial And Sentencing In Absentia

After a bench trial in absentia, Patricia Wakenight was convicted of possession of a controlled substance with intent to deliver. The arrest was made in April 2000, but Patricia changed lawyers a number of times, and backed out of a plea agreement, so the trial was not completed until July 2005.

During the trial in July 2000, Patricia snuck out of the courthouse. The trial proceeded in her absence, and ended with the conviction. Four months later, Patricia was sentenced to 10 years imprisonment. After her post-trial motion was denied, and remaining a fugitive, Patricia appealed. She complained to the Second District Appellate Court (1) that she had not been properly admonished about the possibility that the trial could proceed in her absence, and (2) that she had not been given proper notice of her sentencing hearing.

The initial question was whether the appellate court should exercise its discretion to hear Patricia’s appeal. The appellate court “has the discretionary power to refuse to hear a fugitive’s appeal unless and until the fugitive returns to the jurisdiction.” But in this case, the appellate court refused to dismiss the appeal “because the only substantive issues defendant raises are whether she was properly admonished about the possibility of a trial in absentia and whether she was entitled to a separate notice of the sentencing hearing … Thus, the substantive issues are intertwined with the issue of whether we should hear the appeal in the first place.”

In the end, the conviction and the sentence were affirmed. You can read the entire opinion, People v. Wakenight, No. 2-05-1090 (7/11/07), by clicking here.

Bookmark and Share

August 16, 2007

Fourth District Illinois Appellate Rules Abuse Of Discretion To Order Interlocutory Appeal

Kenneth Stark and Vesta Stark, both elderly, were married. Vesta suffered from Alzheimers disease. Kenneth died and left substantial money to the Southern Illinois University Foundation and the Shriner’s Hospital for Children. The will left nothing to Vesta, but did contain a statement that “adequate and suitable” provisions were made for Vesta from resources outside of the assets identified in the will. And the facts did show that Vesta was well taken care of.

Vesta gave power of attorney to her son, Mark. On Vesta’s behalf, Mark filed a renunciation of Kenneth’s will. By renouncing the will, Vesta stood to take a one-half share of Kenneth’s estate, more than $2.3 million.

SIU and Shriner’s petitioned to vacate the renunciation. The parties moved for partial summary judgment. SIU and Shriner’s argued that Mark did not act “for the benefit of” Vesta in renouncing the will, as is required by the Illinois Power of Attorney Act. Mark argued the opposite.

Mark’s summary judgment motion was granted “on the assumption that the power of attorney was valid.” The trial court reserved for further proceedings the question of whether Vesta was competent when she gave power of attorney to Mark. The trial court also ruled that there was no just reason to delay enforcement or appeal of the summary judgment rulings, thus allowing for an interlocutory appeal under Illinois Supreme Court Rule 304(a).

The parties did not question appellate jurisdiction, but the appellate court raised the question of the propriety of the interlocutory appeal on its own. The opinion analyzes when there really is “no just reason to delay enforcement or appeal” of an interlocutory order.

In this case, the appellate court stated it was an abuse of discretion for the trial court to allow an interlocutory appeal. The court stated that the will renunciation was conditioned on the existence of a properly executed power of attorney, and the propriety of the power of attorney was conditioned upon Vesta’s competence when she signed. “Were the power of attorney to be held invalid, the question of whether a renunciation would have been for the benefit of Vesta would be moot, making a resolution on the merits of this instant appeal purely advisory.”

You can read the whole opinion, In re Estate of Stark, 4-06-0778 (6/21/07),by clicking here.

Bookmark and Share

August 11, 2007

First District Illinois Appellate Distinguishes Review Standards For Motions To Reconsider

Shane Kolody was traveling on Amtrak with $280,000 in small bills. The government seized the money, then sued to keep it pursuant to the Illinois Drug Forfeiture Act. Kolody’s motion to dismiss the State’s amended complaint was denied. But his motion for reconsideration, based on misapplication of the forfeiture law, was granted.

The State appealed from the order granting reconsideration and dismissing the complaint. Kolody and the State agreed that the standard of review was “abuse of discretion.” But the appellate court disagreed, and applied the less deferential “de novo” standard. “When reviewing a motion to reconsider that was based only on the trial court's application (or purported misapplication) of existing law, as opposed to a motion to reconsider that is based on new facts or legal theories not presented in the prior proceedings, our standard of review is de novo … 'Where a party's motion for reconsideration merely asks the trial court to reexamine its earlier application of existing law,' this court's review is de novo …”

The whole case, People v. $280,020 United States Currency, 1-04-3633 (4/20/07), is available by clicking here.

Bookmark and Share

August 10, 2007

Second District Illinois Appellate Rules That Specific Objection To Evidence Waives All Other Grounds

Steve Townsend injured himself when he fell through a hole in the floor of a building he was painting. Much of the pretrial proceedings focused on Townsend’s employment status with the defendants and his worker’s compensation issues. The case was tried to a jury, which returned a verdict of more than $1.9 million to Townsend.

On appeal, defendants argued that testimony concerning suspension of Townsend’s worker’s compensation benefits was unduly prejudicial. The appellate court ruled that defendants waived the argument, even though defense counsel did object at trial to testimony about a conversation concerning the suspension of benefits.

However, the objection was made “only on the ground that defendants were not parties to the conversation. Moreover, defense counsel then expressly asked the court for a limiting instruction telling the jury that defendants were not bound by that conversation. Defendants’ specific objection to the admission of evidence waives their current argument … Further, because defense counsel asked for a limiting instruction, he cannot argue that the instruction was inadequate to cure the error.”

Get the whole case, Townsend v. Fassbinder, No. 2-06-0226 (3/30/07), by clicking here.

Bookmark and Share

August 2, 2007

Fifth District Illinois Appellate Rules Waiver For Lack Of Post-Trial Motion

Scott Jackson was injured when his car was rear-ended by David Seib. A jury trial resulted in a verdict for Seib. Apparently the jury did not believe that this accident caused Jackson to suffer the injuries he claimed. Jackson appealed, but the Fifth District Illinois Appellate Court affirmed the defense verdict. The case is chock full of evidentiary and appellate questions, but we’ll focus on the lesson arising from Trooper Connor’s testimony.

The defense had Trooper Connor testify about the accident from his accident report. But on cross-examination, he admitted he had no independent recollection of the incident. The appellate court recognized the error in allowing the testimony.

However, Seib claimed — and the appellate court agreed — that plaintiff waived the argument for appeal by his failure to raise it in his post-trial motion. The appellate court reiterated the rule: “In order to properly preserve an issue for an appeal, a party must both make a contemporaneous objection and raise the issue in a posttrial motion … In addition, Supreme Court Rule 366(b)(2)(iii) provides, ‘A party may not urge as error on review of the ruling on the party's post[ ]trial motion any point, ground, or relief not specified in the motion.' 155 Ill.2d R. 366(b)(2)(iii). The failure to raise an issue in a posttrial motion constitutes a waiver of that issue on appeal.”

Read the whole case, Jackson v. Seib, No. 5-05-0545 (4/10/07), by clicking here.

Bookmark and Share