January 29, 2008

Slightly Defective Certificate Of Service Does Not Deprive Illinois Appellate Court Of Jurisdiction

In an insurance coverage dispute, Illinois Farmers moved to dismiss Secura Insurance’s appeal for lack of jurisdiction. Farmers argued that Secura’s Notice of Appeal, mailed to the court the 30th day after the judgment, was deficient because the certificate of service did not state the time of mailing, a requirement of Illinois Supreme Court Rule 12(b)(3). Farmers argued that Secura’s failure to strictly comply with the Supreme Court’s rules doomed the Notice of Filing, thus depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court rejected Farmers’ position and ruled that jurisdiction was proper. The court ruled that the failure to state the time of service was a very slight defect that did not interfere with or preclude review. Adding “the fact that Farmers does not allege prejudice, we conclude that the defect here amounts to harmless error.”

Get the whole case, Secura Ins. Co. v. Illinois Farmers Ins. Co., No. 2-06-0614 (11/7/07), by clicking here.

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January 23, 2008

Law-Of-The-Case Doctrine Does Not Bar First District Illinois Appellate Court From Considering Existence Of Contract

John Miller sued a real estate broker and the seller of a residential property over a dispute that arose when Miller thought he had bought a house. Miller claimed the seller breached a contract. He claimed that the brokerage was guilty of interference with prospective business advantage.

The trial court had entered summary judgment for the seller on the basis that there was no enforceable contract. Miller appealed that ruling. But he settled with the seller before the appellate court considered the contract question.

The trial court also entered summary judgment for the brokerage on Miller’s claim for interference with prospective business advantage. In the appellate court, the brokerage argued that the claim failed because the law-of-the-case doctrine established that there was no contract, which the brokerage asserted was an essential element of Miller’s action.

The First District Illinois Appellate Court ruled that the law-of-the-case doctrine did not bar the appellate court from considering the contract question. The trial court ruling was not sufficient to establish law-of-the-case. “… Plaintiff and Kariodimedjo [seller] settled prior to any consideration of the issue by this court. Kariodimedjo was subsequently dismissed from the instant action. As is evident here, the law-of-the-case doctrine does not operate in the case at bar, as there was no determination of the issue of whether the contract between plaintiff and Kariodimedjo was enforceable by a reviewing court.”

Get the whole opinion, Miller v. Lockport Realty Group, No. 1-06-3603 (11/19/07), by clicking here.

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January 20, 2008

Illinois Supreme Court Spanks North Chicago Police Pension Board. Doctor’s Evidence Fails Manifest Weight Standard

While assisting an arrest, Police Officer Lawrence Wade got into a scuffle with the prisoner. Wade injured his knee, which required surgery. Ultimately, his doctor declared that Wade could not return to full patrol duty. The Police Department did not have an inside position for him, so Wade’s options were to retire or apply for a disability pension.

Officer Wade applied for the pension. But the City of North Chicago Police Pension Board denied Wade a line-of-duty pension, ruling essentially that one doctor’s opinion [Milgram] that Wade “did not incur a disability from the performance of an act of duty” was more persuasive than the four whose opinions were otherwise.

The circuit court confirmed the board, and the court of appeals affirmed. The first time the Illinois Supreme Court got the case, it issued a supervisory order for the appellate court to reassess in view of recent supreme court rulings. The appellate court again affirmed the denial of the pension, although it did rule that Milgram’s opinion was not credible. The Illinois Supreme Court reversed, and sent the matter back to the pension board to award Officer Wade a pension.

The appellate issue concerned the standard of review of the Milgram testimony and the sufficiency of his evidence. The supreme court reiterated the standards for review of decisions of an administrative board. “Rulings on questions of fact will be reversed only if they are against the manifest weight of the evidence … ‘An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident’ … In contrast, we review questions of law de novo … and a mixed question of law and fact is reviewed under the clearly erroneous standard … That standard [manifest weight] applies here as well.”

The Illinois Supreme Court agreed that Milgram’s opinion was not credible. The court used the occasion to remind the pension board of its responsibility. “We feel compelled at this juncture to remind Board members that, under the Pension Code, a pension board owes a fiduciary duty toward its participants and beneficiaries … Even under the manifest weight standard applicable in this instance, the deference we afford the administrative agency's decision is not boundless. We hold, as did the appellate court, that the Board's decision was against the manifest weight of the evidence.”

Read the whole opinion, Wade v. City of North Chicago Police Pension Board, No. 101265 (11/1/07), by clicking here.

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January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

No matter. The Illinois Supreme Court ruled that Almon’s appeal still was proper. “Although plaintiff did not file a separate petition for leave to appeal, none was required. Plaintiff is entitled to raise the additional issue under [Illinois Supreme Court] Rule 318(a), which provides that in all appeals ‘any appellee, respondent, or coparty may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal or notice of cross-appeal or separate appeal.’ … This court has invoked Rule 318(a) in finding that allowance of one party's petition for leave to appeal brings before this court the other party's requests for cross-relief.”

Be careful here: Illinois Supreme Court Rule 318 applies only to appeals from the appellate court to the Supreme Court. It does not apply to appeals from the circuit court to the court of appeals.

The whole opinion, Heastie v. Roberts, No. 102428 (11/1/07), is available by clicking here.

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January 9, 2008

Interesting Stuff From Other Places. Premature Notice Of Appeal Becomes Effective In First Circuit

The Appellate Law and Practice Blog reports on Malloy v. WM Specialty Mortgage, No. 07-1026, a First Circuit opinion that the blog calls “the height of appellate nerdery.” The court ruled that a premature notice of appeal became effective, and bestowed appellate jurisdiction, after the district court denied a motion to vacate what sounds like a conditional dismissal order.

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January 8, 2008

Good Times With Appellate Lawyers In Chicago

The Illinois Appellate Lawyers Association has announced that its Annual Reception will be held on January 17, 2008, 5:30 to 7:30 p.m. The event will be at the Hotel Monaco, 225 N. Wabash Ave., Chicago. Recently retired Justice Mary Ann McMorrow will be honored.

Call the Illinois Appellate Lawyers Association, 847-885-2410, for a reservation.

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January 8, 2008

7th Circuit Reviews Summary Judgment For Clear Error In Non-Jury Case

A pension fund sued a partnership under the Multiemployer Pension Plan Amendments Act, an amendment to ERISA, to recover an outstanding liability. The pension fund obtained summary judgment, and the partnership appealed.

The standard of review was brought into question. Typically, summary judgments, including in ERISA cases, are reviewed de novo. But the Seventh Circuit has “held that the clearly erroneous standard of review applies when the only issue before the district court is the characterization of undisputed subsidiary facts and where a party does not have the right to a jury trial.”

In this case, the appellate court ruled that the partnership was not entitled to a jury trial under the MPPAA, so the correct standard of review was the more deferential “clearly erroneous.”

The whole case, McDougall v. Pioneer Ranch Ltd. Partnership, No. 06-3757 (7/12/07), is available by clicking here.

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January 3, 2008

No Appellate Jurisdiction Where Appeal Taken While Contempt Motion Still Pending. Second District Illinois Appellate Court Overrules 2-Month Old Opinion

This appeal arises from Nancy Knoerr’s post-dissolution petitions to increase child support and to force her ex-husband, David, to contribute to college expenses of one of their children. David moved for reconsideration after Nancy got a favorable result on her petitions. Nancy then petitioned for a rule to show cause, claiming that David refused to comply with the orders increasing child support and David’s contribution to the college expenses.

The trial court denied David’s motion to reconsider, and continued Nancy’s petition for a rule to show cause. The trial court did not issue Rule 304(a) language (allowing an interlocutory appeal). David appealed the ruling on Nancy’s petitions while the rule to show cause still was pending.

This is another case in which the Second District Illinois Appellate Court assessed its jurisdiction without benefit of a motion contesting jurisdiction. The appellate court dismissed the appeal because the still-pending rule to show cause rendered the action non-final.

The appellate court overruled another Second District opinion, Marriage of Gutman, 376 Ill. App. 3d 378, No. 2-06-0213 (2007). Gutman, which was decided on October 16, 2007, ruled exactly opposite of Knoerr. (“… [T]he Gutman court held that civil contempt petitions initiate separate proceedings and not ‘claims’ within the action, thereby excepting them from Rule 304(a). However, we believe that Gutman’s conclusion, that pending or denied civil contempt petitions are not subject to Rule 304(a), is based on a flawed analysis, and we overrule it.”

The panels were different in the two cases. Gutman was written by Justice Grometer, Callum and Gilleran Johnson concurring. Knoerr was written by Justice Bowman, McLaren and Zenoff concurring. It’s interesting to see the court overrule an opinion that was just two months old and written by a different panel.

The whole opinion, IRMO Knoerr, No. 2-06-1060 (12/21/07), is available by clicking here.

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