October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

So why did the court engage in so lengthy an analysis of this question, or even decide it at all? After all, Darrell was on the losing side here, but his appeal was saved by the retroactive application of the amendment to Rule 303(a), which allows a prematurely filed Notice of Appeal to establish appellate jurisdiction. (See blog entry for 10/29/07, directly below, for a fuller explanation.) Perhaps the court was not confident the retroactivity ruling would survive Illinois Supreme Court review. So providing an answer to the “one claim or new actions” question would obviate more briefing in the appellate court in the event of a reversal in the Illinois Supreme Court on the retroactivity question.

Next we’ll look at the special concurrence, which takes issue with the majority on the appellate jurisdiction issues. You can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

In December 2005, the trial court ruled on Darrell’s motion to vacate, refusing to vacate the percentage award. The trial court did not make a Rule 304(a) finding. (No just reason to delay enforcement or appeal of the order.) Unhappy with the ruling, Darrell filed a Notice of Appeal within 30 days. When the Notice of Appeal was filed, the trial court still had not ruled on Darrell’s petition to set specific visitation times. That petition was resolved by a court order in May 2006.

The parties initially did not dispute appellate jurisdiction. But the court questioned whether it had the power to consider Darrell’s appeal of the percentage award. The first question was whether Darrell’s second petition −to set visitation times − was a claim within the same cause of action, or a whole new cause of action.

If it was a claim within the same action, then the order on the motion to vacate would require a Rule 304(a) finding in order to be appealable. Because there was not a Rule 304(a) finding, the appellate court would not have jurisdiction of Darrell’s appeal. If the petition to set visitation times constituted a new action, as Darrell argued, then Rule 304(a) language would not be necessary and the appellate court would have jurisdiction.

But the analysis was complicated by an amendment to an Illinois Supreme Court Rule that took effect while the appellate court was deliberating. Rule 303(a) was amended so “when a timely postjudgment motion has been filed, a notice of appeal filed before ‘the final disposition of any separate claim does not become effective until the order disposing of the separate claim is entered.’” This was exactly the situation in the Duggans’ case. So the first question was whether “amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application) or only to those appeals filed after the effective date (prospective application).”

The appellate court concluded that the amendment to Rule 303(a) should apply retroactively. The keys to this decision were: (1) the amendment was procedural, not substantive, and (2) imposition of the amendment did not impair any rights that Tamara had.

The amendment was considered “procedural” because it “relate[d] solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard.” That entails “the method of enforcing rights or obtaining redress.” That is generally what Supreme Court Rules do − prescribe the method for advancing pending litigation.

Nor was retroactive application of amended Rule 303(a) unfair to Tamara − i.e, it did not impair a right she possessed. The court rejected the Concurrence’s position in this regard.

The special concurrence suggests that our ability to hear this appeal under the new Rule 303 (a) impairs Tamaara’s “right” to a dismissal of the appeal for lack of jurisdiction. If this is a “right” at all, however, it is not a right that Tamara ”possessed when she acted,” as she has taken to action in reliance on our initial lack of jurisdiction. Indeed, she did not even raise the issue of our jurisdiction until we required her to do so via supplemental briefing. This fact is not simply an accident of the parties” skill in recognizing jurisdictional defects; it highlights the nature of jurisdiction − it is not a right possessed by the parties, but a prerogative of the court that we assert and determine.

I appreciate the conclusion that Tamara did not have a “right” to dismissal of Darrell’s appeal for lack of appellate jurisdiction. But I do take exception to the conclusion that jurisdiction “is not a right possessed by the parties.” In fact, litigants are granted access to the courts, and thus the courts are given jurisdiction, by the Illinois Constitution. While the court gets to determine the contours of jurisdiction, it is not merely a “prerogative of the court.”

In any event, the court concluded that retroactive application of the Amended Rule 303(a) was appropriate. So Darrell won the first prong of the argument.

We’ll look at other aspects of the case in forthcoming entries. But you can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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October 22, 2007

7th Circuit Dismisses Appeal Of Remand After District Court Denies Immunity Request

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

The appellate court identified the problems caused by its ruling: “… [A] federal employee [Hill] will now resume defending litigation even though there is a chance that the Westfall Act purports to grant him immunity from suit. If we were permitted to consider that claim of immunity, the question could be settled once and for all. But whether this defendant should be immune from suit is a question that Congress and our circuit precedent prevent us from even considering. Meanwhile, the plaintiff has waited five years for a legal remedy, which today is no closer than it was in 2005 when the case was first removed to the district court.…”

You can read the whole opinion, Foster v. Hill, 497 F.3d 695, No. 06-2651 (8/13/07), by clicking here.

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October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

The appellate court also ruled that it could take judicial notice of evidence that was not in the record. The court concluded that “the caution against allowing new evidence on appeal via judicial notice is simply a part of the doctrine of waiver,” which is not a limitation on the court’s jurisdiction. The court ruled that “Relaxing the doctrine of waiver here is appropriate because the State did not object to the consideration of the charge and, indeed, incorporated the charge in its own arguments. Further, an ‘argument that an order or judgment is void is not subject to waiver.’”

This opinion also contains good discussion about the legislature’s power to limit trial court jurisdiction in light of Article VI Section 9 of the Illinois Constitution (“Circuit Courts shall have original jurisdiction of all justiciable matters except when the [Illinois] Supreme Court has original and exclusive jurisdiction.”)

You can read the whole opinion, In re Alex T., No. 2-06-0049 (8/15/07), by clicking here.

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October 15, 2007

Medical Malpractice Case Illustrates Tension In Review Of Judgment Notwithstanding Verdict

Katherine Bergman’s baby died during child birth. She sued the doctor and the hospital for medical malpractice. Katherine got a verdict for more than $1.5 million. The doctor appealed, and among other things, claimed he was entitled to judgment notwithstanding the verdict (jnov). The First District Illinois Appellate Court affirmed the judgment.

This opinion points to an important inconsistency in appeals from jury verdicts. The court identified the standard of review of a denial of a motion jnov: de novo review.

On his motion jnov, the doctor asserted “that there was no basis for plaintiff’s theory that the standard of care required Dr. Kelsey [defendant doctor] to give plaintiff antibiotics upon admission to the hospital.” There was conflicting expert testimony on this issue. Affirming the jury verdict, the appellate court stated: “This conflicting evidence regarding the standard of care for administering antibiotics was properly submitted to the jury, and this court will not usurp the function of the jury and substitute its judgment for that of the jury.”

So while stating that the standard of review was de novo — requiring the appellate court to make its own assessment of the evidence — the court gave deference to the jury verdict. But de novo review is inconsistent with giving deference to the jury. If you’re deferring to the judgment of the jury, then you’re not doing a fresh assessment − i.e., doing a de novo review.

You can read the whole opinion (which does not consider this problem), in Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.

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October 8, 2007

First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the addition of that language did not alter the fact that the court’s orders were not final as to any claim or party and were, thus, not subject to Rule 304(a).”

The appellate court also rejected Glen’s appeal under Rule 306(a)(5) (permitting a party to petition for an interlocutory appeal of from order affecting the care and custody of unemancipated minors). There was no dispute that Glen’s son was of adult age.

But Glen argued that his son should be “considered an ‘unemancipated minor’ because ‘prior to the age of 18 years he became disabled and [was] required to be put in a care facility in Wisconsin where he remains to this date.” Glen concluded that his son never became emancipated. Rejecting this argument as “unsupportable,” the appeallate court stated: “At best, Glen’s contentions involve the definition of the term ‘unemancipated’ but ignore the further requirement of Rule 306(a)(5) that the person who is unemancipated also be a minor.

All of this leaves a party who is “temporarily” relieved of guardianship without recourse in the appellate court. That’s an interesting twist in light of Glen’s substantive argument that the Probate Act does not give the trial court authority to order temporary release of guardianship. By this case, there is no way to test the trial court’s authority.

You can read the whole case, In re Guardianship of J.D., 1-06-3069 (9/28/07), by clicking here.

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October 7, 2007

No Cause Of Action? No Matter. First District Illinois Appellate Rules Argument Waived On Appeal

This case involved a dispute between a buyer and a seller of a 3-flat building. The buyer claimed the seller knew about and hid structural defects in the building. He sued for breach of contract and fraud. After a bench trial, the buyer received a favorable judgment on the contract claim, and seller got a favorable ruling on the fraud claim.


The seller argued that Count I of the buyer’s Second Amended Complaint should have been dismissed for failure to state a cause of action. That count asked for damages for seller’s breach of good faith and fair dealing. But that is not a recognized cause of action in Illinois.

However, the seller did not move to dismiss that part of the buyer’s complaint in the trial court. He relied on a summary judgment motion, which was denied, as laying the foundation for appeal.

The appellate court ruled that the summary judgment motion was an insufficient basis to save the argument for appeal. “In this case, the defendants did not move to dismiss the breach of contract claim asserted in Count I of the second amended complaint. Although the defendants attempted to challenge the sufficiency of Count I in their motion for summary judgment, this was procedurally improper … A summary judgment motion may not be used as a substitute for a section 2-615 motion asserting defects appearing on the face of the pleading … Objections to the sufficiency of the complaint must be made specifically under section 2-615.”

The seller then argued that an exception to the waiver rule — failure to allege a recognized cause of action — defeated the waiver. The First District Appellate Court rejected that argument. Although imperfectly asserted, the court stated there were enough allegations of traditional breach of contract to avoid the exception to the waiver rule.

In applying the waiver rule, Illinois courts have distinguished between a complaint that defectively or imperfectly alleges a good cause of action and a complaint that entirely fails to state a cause of action … Only the former is waived by the failure to object in the trial court … The exception to the waiver rule applies only when a complaint fails to state a recognized cause of action, and it does not apply when the complaint states a recognized cause of action, but contains an incomplete or otherwise insufficient statement of that cause of action …

Here, Count I of the second amended complaint sought recovery for breach of contract, which is a recognized cause of action in Illinois. The defendants have attempted to challenge the sufficiency of Count I by arguing that the underlying allegations on which the breach of contract claim was premised do not state a valid claim upon which relief could be granted. The alleged deficiencies cited by the defendants go to the adequacy of the factual allegations in Count I. Thus, the defendants' argument essentially asserts that the breach of contract claim was defectively pled because the factual allegations in Count I were insufficient to state such a claim. The question of whether Count I adequately pled a breach of contract claim was an issue that should have been raised in a section 2-615 motion in the trial court. The exception to the waiver rule does not apply in this case, and, therefore, the defendants are precluded from challenging the sufficiency of Count I on appeal.

You can read the whole opinion, Fox v. Heimann, Nos. 1-06-0414, 1-06-0697 (7/10/07), by clicking here.

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October 2, 2007

7th Circuit Appellate Court Rules Dismissal Without Prejudice Nonfinal Where District Court Wasn’t Through With Case

A pro se plaintiff filed four lawsuits, which were assigned to different judges, in which she complained that her children had been taken from her custody in violation of the law. Although the cases generally complained about the same subject matter, they never were consolidated.

The first three lawsuits ultimately were dismissed. But before those dismissals were entered, the fourth-filed case was dismissed without prejudice. Plaintiff appealed only from the dismissal in the fourth case. At the same time, she also moved to consolidate the four cases.

The district judge wrote a letter to plaintiff in response her two filings. With respect to the Notice of Appeal, the judge asked plaintiff for clarification of her position on the question of whether the complaint was duplicative of the first three lawsuits. The 7th Circuit Appellate Court chastised the district judge for writing the letter, explaining that it could confuse the parties about how to respond and about the true procedural posture of the case.

The jurisdictional question was whether the dismissal without prejudice was a final and appealable order. The court explained when a dismissal without prejudice is appealable. “A dismissal without prejudice is an appealable final order if it ends the suit so far as the district court is concerned … or if ‘there is no amendment a plaintiff could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations.’ … But a dismissal without prejudice is not appealable if it amounts to merely telling the plaintiff ‘to patch up the complaint, or take some other easily accomplished step’; in that event it ‘is no more reviewable than the resolution of a discovery dispute or equivalent interlocutory ruling.’”

In this case, the appellate court ruled, the dismissal without prejudice was not final. The district court’s letter to plaintiff indicated the dismissal would be rescinded “if the plaintiff explained why her suit wasn’t a duplicate of the other suits … [I]t is clear that the judge doesn’t think she’s through with the case, and therefore the order of dismissal in nonfinal and unappealable.”

The whole case, Holmes v. Office of the Cook County Public Guardian, No. 06-3989 (9/24/07), is available by clicking here.

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