November 20, 2007

Trial Court Oversteps Authority In Directing Notice Of Appeal To Be Filed For Defendant

Walter Lofton pleaded guilty to charges of aggravated battery and criminal damage to government-supported property. He was sentenced to four years imprisonment on the battery count, and three concurrent years on the damage to property count.

After sentencing, Lofton was admonished about his right to appeal. When told of his right to appeal, he immediately expressed his desire to do so. About a week later, based upon Lofton’s stated desire to appeal, the trial court directed the clerk to file a notice of appeal on Lofton’s behalf, which the clerk did. However, Illinois Supreme Court Rule 604(d) requires that (1) a motion to reconsider the sentence or (2) a motion to withdraw the guilty plea and to vacate the judgment be filed in the trial court as a condition to appealing. Lofton filed neither.

The Fourth District Illinois Appellate Court remanded the case with directions to strike the notice of appeal and to confirm whether Lofton wanted to file a post-trial motion. The court ruled that “… the trial court acted without authority by directing the clerk to file a notice of appeal. Although defendant had initially expressed a desire to appeal, he did not indicate that he wanted to appeal after he had received the appeal admonitions. Defendant was deprived of approximately three weeks’ time in which to determine whether to file a posttrial motion.”

The whole case, People v. Lofton, No. 4-06-0382 (10/11/07), is available by clicking here.

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November 15, 2007

7th Circuit Has Jurisdiction Of Dispute Over Non-Compete Clause In Patent License

County Materials Corporation signed a licensing agreement that allowed it to manufacture and sell Allan Block’s patented concrete block. The license also contained a non-compete clause that prohibited County Materials from selling a competing product for 18 months after the license was terminated.

After Allan Block terminated the license, County Materials developed its own concrete block that competed with Allan Block’s product. Allan Block threatened to sue to prevent County Materials from selling its new concrete block. But County Materials won the race to the courthouse, and brought an action to have the license declared void because the non-compete clause constituted patent misuse. The district court ruled that there was no patent misuse, and granted summary judgment in favor of Allan Block.

County Materials appealed. Allan Block moved to dismiss the appeal, pointing to U.S. Supreme Court precedent that grants exclusive jurisdiction to the Federal Circuit Court of Appeals of cases in which “federal patent law created the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”

The 7th Circuit Court of Appeals ruled that it did have jurisdiction. “… [I]t is apparent that federal patent law does not create the cause of action here. It is instead a claim about the enforceability of a contract or license agreement. Resolution of this appeal does not ‘necessarily require[] resolution of substantial question of federal patent law.’”

The 7th Circuit affirmed the district court’s summary judgment for Allan Block. Get the whole opinion, County Materials Corp. v. Allan Block Corp., No. 06-2857 (9/18/07), by clicking here.

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November 14, 2007

Off Topic, But Not Entirely: New Venture Needs Great Writer With Reporting Skills In Chicago Area

I am formulating plans for a new online venture that will require writers who have an understanding or interest in the judicial process. The individuals I am seeking should have competent reporting skills and be terrific, entertaining writers. This enterprise will begin its efforts in Chicago, so your proximity to the area is necessary. This is a ground-floor opportunity to publish in a unique and an important area of journalism.

Contact me via email through the “Contact” button at the top of this page. Leave a short message and a phone number so I can call you.

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November 12, 2007

Sovereign Immunity Doesn’t Deprive Appellate Court Of Jurisdiction In Veterinary Malpractice Case

Loman and Dodd owned a horse that required surgery. They entrusted the surgery to Freeman, who taught veterinary medicine at the University of Illinois. Freeman did the surgery as part of the training he provided for students at the University. Loman and Dodd alleged that Freeman performed an unauthorized procedure that ruined the horse for racing purposes. They sued Freeman for negligence and conversion. The trial court granted Freeman’s motion to dismiss.

Loman and Dodd appealed. Freeman moved to dismiss the appeal for lack of jurisdiction. He argued he was entitled to sovereign immunity because of his teaching position with the state university. The Fourth District Illinois Appellate Court denied the motion to dismiss the appeal.

The appellate court ruled that sovereign immunity did not apply because Freeman’s duty to Loman and Dodd derived from the common law, which was not dependent on Freeman’s employment by Illinois. In addition, the state was not subject to liability as a result of the lawsuit against Freeman. “‘[T]he decision of [the university] to indemnify its employees does not deprive the circuit courts of subject-matter jurisdiction over claims otherwise properly brought in the circuit court.’"

Ultimately, the appellate court reversed the dismissal of the complaint, holding that the Moorman doctrine did not preclude the tort actions against Freeman. You can read the whole opinion, Loman v. Freeman, No. 4-06-0330 (12/15/06), by clicking here.

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November 11, 2007

Illinois Appellate Lawyers Association Announces November Luncheon And Candidate Forum

The Illinois Appellate Lawyers Association will hold a luncheon featuring a forum for candidates running for election to the Illinois First District Appellate Court. Lunch at 12:00 p.m. on November 29, 2007. Location: The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois. Cost: Members, $35.00; Non-Members, $40.00.

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November 10, 2007

Fourth District Appellate Court Pieces Together Inadequate Record

Katherine Adams claimed that defendants negligently removed her gallbladder, so she sued them. She got a jury verdict for more than $560,000. After their motions for a new trial were denied, defendants appealed. They claimed it was an abuse of discretion for the trial court to refuse to allow certain parts of expert’s testimony.

The entire, unedited video evidence deposition of the expert was in the record. But the trial court struck portions of the evidence deposition, and a final, edited videotape that was presented to the jury was not in the record. Nor was there a reported transcript of the testimony.

The appellate record contained defendants’ dvd of the stricken parts of the expert testimony. But the appellate court did not have the hardware capable of viewing the dvd. A final complication was that defendants did not cite to the unedited videotape for the expert testimony that was presented at trial.

The appellate court pointed out that it was defendants’ (appellants’) obligation to assure there was a record sufficient to inform the court of the pertinent issues. An incomplete record is a violation of Illinois Supreme Court Rule 323, and is grounds for summary affirmance of the verdict.

Despite all of that, the appellate court agreed to address the merits of defendants’ argument concerning this testimony. The court went to the trouble of “piec[ing] together Dr. Stasberg’s [expert] testimony from the line references in the transcript … Since the record contains a reference to the lines of the transcript of Dr. Strasberg’s deposition that were stricken, we can discern Dr. Strasberg’s digitally recorded testimony from the record.”

As it turned out, the appellate court affirmed striking parts of the expert testimony. But defendants were fortunate to have an appellate court that was willing to fight through the unedited deposition transcript to discern what actually was presented at trial. The lesson here: Make sure your appellate record is complete and don’t assume the court has the hardware and software to view the record as you present it. You must go to the trouble of giving the record to the appellate court in a form it can read or watch.

The whole case, Adams v. Sarah Bush Lincoln Center, No. 4-06-0284 (1/23/07), is available by clicking here.

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November 8, 2007

No Waiver Of Argument Raised For First Time In Illinois Supreme Court

James Gallagher injured his back in a truck collision. James settled his workers’ compensation claim with his employer, Terminal. He also sued the driver of the other truck and that driver’s employer. After the lawsuit settled, Terminal attempted to enforce its workers’ compensation lien against the settlement proceeds. The trial court ruled that Terminal had waived its lien when it settled the comp claim with James.

Terminal appealed the trial court’s ruling. The court of appeals reversed the trial court, and held that Terminal had not waived the lien. James then appealed to the Illinois Supreme Court, which affirmed the appellate court.

As part of the worker’s comp settlement, James signed a resignation agreement. Terminal argued that James forfeited an argument that relied on the resignation agreement. James had not raised that argument either in the trial or appellate courts.

The Illinois Supreme Court ruled that James had not waived the argument. Here is the court’s rationale: “It is well established that where the appellate court reverses the judgment of the circuit court, and the appellee in that court brings the case before this court as an appellant, that party may raise any issues properly presented by the record to sustain the judgment of the circuit court, even if the issues were not raised before the appellate court.”

The Illinois Supreme Court also seized the occasion to clear up the distinction between “waive” and “forfeit,” commonly used interchangeably. “As this court has stated, ‘[w]aiver arises from an affirmative act, is consensual, and consists of an intentional relinquishment of a known right.’ … Forfeiture, strictly defined, is different from waiver, as we have noted in the criminal context … Rather than an intentional relinquishment of a known right, forfeiture is the ‘failure to make the timely assertion of the right.’”

Get the whole case, Gallagher v. Lenart, No. 103522 (8/9/07), by clicking here.

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November 6, 2007

Illinois First District Appellate Court Reiterates Rule To Preserve Evidentiary Objection For Appeal

I wrote about this case, Bergman v. Kelsey, on October 15, 2007, and pointed out an inconsistency between the stated standard of review (de novo) and the court’s actual analysis (deferential review of a jury verdict). The case is instructive for another reason: reiterating the rule on how to preserve an order barring evidence for appellate review.

Katherine Bergman filed a medical malpractice case against the doctor and the hospital after her newborn son died from a streptococcus infection. Katherine got a verdict for more than $1.5 million. Defendants appealed, asking for a judgment notwithstanding the verdict or for a new trial.

One of the evidentiary issues on appeal bears repeating because so many trial lawyers overlook it: If your evidence is barred at trial, to preserve a prejudice argument on appeal, you must make an offer of proof.

In this case, defendants claimed they were improperly prohibited from putting on evidence of Katherine’s two subsequent pregnancies. Plaintiff’s motion in limine to preclude the evidence was granted. Defendants did not ask to make an offer of proof, so the First District Illinois Appellate Court ruled that the argument was waived for appeal.

The appellate court spelled out the rule. “‘Whether granted or denied, a motion in limine itself does not preserve the issue for appellate review … Rather, to preserve an error in the exclusion of evidence, the proponent of the evidence must make an adequate offer of proof in the [circuit] court … Failure to make such offer of proof results in waiver of the issue on appeal Here, defendants failed to make a specific offer of proof regarding the testimony at issue and the issue is therefore waived.’”

Get the whole case, Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.

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November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

Without applying the amendment to this case, Darrell’s Notice of Appeal would have been premature and insufficient to establish appellate jurisdiction. The Concurrence stated: “Because the parties had a vested right in the final judgment the amendment to Rule 303 cannot operate retroactively to bestow us with jurisdiction to interfere with that right.”

The Concurrence also argued that Tamara’s petition for increased child support was a separate action, not just a separate claim within the same action, from Darrell’s request for a change in visitation. The Concurrence is immersed in lengthy case law analysis that is difficult to write about concisely in this space. Suffice it to say that the Concurrence reached an opinion 180 degrees different from the majority based on the very same case law.

To read the Concurrence, and the rest of the opinion in IRMO Duggan, No. 2-06-0061 (10/16/07), click here.

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