September 25, 2007

Plain Error “Exceedingly Rare” In Civil Appeals

In this trip and fall case, a customer, Matthews, sustained injuries when he tripped over a piece of metal that was jutting out of a fuel pump island at a gas station. The First District Illinois Appellate Court ruled on a few appellate issues. The two most significant have to do with the “plain error doctrine” and the requirement that each issue in an appeal must have its own statement of the standard of review.

After he was zeroed at trial, Matthews appealed. One of his arguments on appeal relied on the “plain error doctrine.” Matthews claimed that the trial judge made faulty and misleading statements to the jury. However, his attorney did not object when the statements were made. So on appeal, Matthews argued that the court’s statements were grounds for reversal because they constituted “plain error.”

The First District Appellate Court disagreed. The court stated that the use of the “plain error doctrine” in civil cases was “exceedingly rare.” “This doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.”

The appellate court also reiterated the rule that each of Matthews’s claims required a statement of the standard of review. “A standard of review applies to an individual issue, not to an entire appeal.” The court tweaked the parties a bit because neither discussed the standard of review for Matthews’s first argument, which concerned a claim that the verdict was inconsistent with the jury’s answer to a special interrogatory. (De novo review.)

Get the whole case, Matthews v. Avalon Petroleum Co., No. 1-05-2606 (6/29/07), by clicking here.

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September 19, 2007

Permanency Order Not Final So GAL’s Appeal Not Moot

The State petitioned for a finding of parental unfitness because, it argued, (1) the mother’s repeated incarceration prevented her from performing her parental responsibilities and (2) the father failed to make reasonable progress toward reunification with the child.

After the trial court denied the State’s petition, the child’s guardian ad litem took an interlocutory appeal, claiming that the trial court’s ruling was against the manifest weight of the evidence. The First District Illinois Appellate Court reversed the order as to the mother, but affirmed as to the father.

After that decision by the appellate court, the trial court issued a new permanency order, which changed the child’s permanency goal from termination of parental rights to private guardianship. On a petition for rehearing, the mother argued that the changed permanency goal rendered the GAL’s appeal moot.

The appellate court ruled that the matter was not moot because a permanency goal is a nonfinal order that is subject to review and change. Here is the court’s thinking:

"An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party."

However, the supreme court has made clear that a permanency goal is not a final determination on the merits but, rather, is an intermediate procedural step taken for the protection and best interests of the child … Instead, the permanency goal looks to the future status of the child … In fact, section 2-28(2) of the [Adoption] Act further provides that the permanency order must be reviewed and reevaluated at a minimum of every six months until the court determines that the goal has been achieved … Thus, all of the rights and obligations set forth in the permanency order remain open for reexamination and possible revision until the permanency goal is achieved.

Here, the circuit court's January 25, 2007 order clearly indicates that the permanency goal of private guardianship has not been attained. Therefore, it is subject to change. As a result, it is not impossible for this court to grant the GAL the relief it seeks and the appeal is not moot.

Get the whole case, In re Reiny S., No. 1-06-2155 (6/29/07), by clicking here.

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September 17, 2007

Reallege It Or Waive It

A bank claimed defendants wrongfully sold a portfolio of loans. The bank sued the defendants under several equity theories. The complaint and an amended complaint were dismissed. When the bank filed a second amended complaint, it did not reallege or incorporate the dismissed legal theories from the first two complaints.

The second amended complaint was dismissed with prejudice. The bank’s appeal sought review of the orders that dismissed the first two complaints. The appellate court ruled that the bank had waived appeal of all issues except those raised in the second amended complaint.

“A plaintiff desiring to preserve for appeal the previous dismissal of claims either must stand on the dismissed counts and challenge the ruling at the appellate level or reallege or incorporate the dismissed counts in subsequent complaints." … A party who files an amended complaint waives any objection to the trial court's ruling on the former complaint … Where an amended pleading is complete and does not refer to or adopt the prior complaint, the earlier complaint ceases to be a part of the record, being in effect abandoned and withdrawn … Once an amended pleading has been filed, allegations of error in dismissing a prior pleading are waived.…

The bank argued for a rule like that observed in the 7th Circuit Court of Appeals, which does not require a plaintiff to replead a dismissed cause of action to preserve it for appeal. But the Second District Illinois Appellate Court rejected the argument and deferred to Illinois precedent that requires repleading.

Get the whole case, Ottawa Savings Bank v. JDI Loans, No. 2-06-0671 (6/25/07), by clicking here.

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September 12, 2007

Second Second District Illinois Appellate Panel Dismisses Appeal

This dispute grew from the Waddicks’ divorce. Several months after trial, in September 2005, the trial court issued a written decision that ruled on the contested matters. The court did not order a dissolution judgment to be prepared, but it did state that a joint custody order “will be entered by the Court.”

Dawn filed a motion to reconsider the September ruling. After a continuance, the court entered a judgment of dissolution in late November 2005. There was no ruling on Dawn’s motion to reconsider until March 2006, when it was denied. Dawn filed her notice of appeal later that month.

Before the briefs were filed, David moved to dismiss the appeal for lack of jurisdiction. The motion panel denied David’s motion. The appeal was reassigned for full disposition. The new panel stated it had “an independent duty to determine whether we have jurisdiction …” (The opinion does not state whether David renewed his motion to dismiss or if the panel looked at the question on its own.)

The question then became whether Dawn’s motion to reconsider tolled the time to appeal under Illinois Supreme Court Rule 303(a) (allows for tolling the time to appeal until after disposition of a timely motion directed against the judgment).

The Second District Illinois Appellate Court ruled that the September 2005 order — the one that Dawn asked to be reconsidered — was not a final and appealable order. That order, the appellate court stated, left open numerous issues that a joint parenting judgment is required to include. Rather, the final judgment had been entered in November 2005.

The appellate court did not have jurisdiction because (1) Dawn’s motion to reconsider the nonfinal order did not toll the time to appeal; (2) Dawn’s notice of appeal, filed well more than 30 days after the November judgment of dissolution, was too late to confer appellate jurisdiction.

The most distressing thing about this decision is the second panel’s willingness to revisit the motion to dismiss the appeal. From a practitioner’s point of view, the lesson is never give up on a jurisdiction motion. If another panel will review it independently, then you have nothing to lose by renewing a dismissal motion. There is nothing to say that the second panel’s decision is any better or more thorough than the first panel’s decision. It’s just a matter of how the last panel to look at the question sees it. All of which raises the question of whether it may even be malpractice not to continue pressing a jurisdiction motion until the end of the appellate process.

You can read the whole opinion, IRMO Waddick, 2-06-0363 (6/5/07), by clicking here.

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September 9, 2007

Excessive “Nature Of The Case” Does Not Warrant Striking

In this tax dispute, the bank’s brief in the court of appeals contained a 4½-page “Nature of the Case” section. That was “excessive,” according to the Second District Illinois Appellate Court. But the bank’s excessiveness did not interfere with review of the case, so the court declined to strike that section of the brief.

The whole case, County Treasurer v. Lake Carroll Association, No. 2-05-1209 (6/5/07), is available by clicking here.

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September 9, 2007

Arguments First Raised On Motion For Reconsideration In Trial Court Waived For Appeal

In this complicated dispute among business partners, a counterclaimant asserted arguments of equitable estoppel and of the mend the hold doctrine. However, those arguments were posed for the first time in a motion for reconsideration of a summary judgment. The First District Illinois Appellate Court ruled that the arguments had been waived because “they failed to raise them prior to filing their motion for reconsideration.”

The lesson is: an argument raised for the first time in the trial court on a motion for reconsideration is waived for appeal. Get the whole case, Trossman v. Philipsborn, No. 1-04-0588 (6/8/07), by clicking here.

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September 4, 2007

Failure By Trial Court Clerk To Mail Order Does Not Relieve 30-Day Deadline To Appeal

Teresa De Bouse brought a class action case against Bayer AG, claiming that Bayer misrepresented Baycol, a pharmaceutical that Bayer marketed to consumers. Teresa’s class certification motion was granted in the trial court. But the trial court clerk neglected to mail the order to the parties. Bayer’s lawyers did not learn about the order granting certification until long past the 30-day deadline to petition for appeal of class certification rulings in Illinois Supreme Court Rule 306(a)(8).

To give Bayer the opportunity to appeal the certification ruling, the trial court vacated its original order nunc pro tunc and reentered it. That action by the trial court came more than 30 days after the original ruling.

Bayer appealed the certification order. The Fifth District Illinois Appellate Court dismissed the appeal of the class certification ruling, and rejected each of Bayer’s arguments:

• Coming more than 30 days after its original ruling, the “… trial court lacked authority to vacate and reenter the same order … in order to excuse compliance with the filing requirements of Rule 306.”
• The appellate court also ruled that the nunc pro tunc order was improper because it was not entered to “conform the order to the ruling actually rendered … Its only purpose was to restart the 30-day appeals clock.”
• The trial court clerk’s neglect in mailing the certification order to Bayer, despite a local rule requiring the clerk to do so, did not provide the trial court with authority to allow additional time to seek an appeal. “… [L]ocal rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois Supreme Court rules and the existing laws of Illinois.”
• The appellate court did not believe Bayer’s claims of detrimental reliance on the trial court clerk. The court stated that Bayer had “ample opportunities” to inspect the court record and to inquire about the status of the certification motion.

The daunting lesson here is: You are responsible for learning when rulings are issued. The failure of the court clerk to mail a ruling to you does not give you a basis to extend a deadline to appeal, a friendly and sympathetic judge notwithstanding. Read the whole case, De Bouse v. Bayer AG, No. 5-06-0077 (6/13/07), by clicking here.

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