May 31, 2008

Invited Error Rule Knocks Out Broker-Dealer Appeal Against Computer Programmers

In this messy lawsuit, a broker-dealer sued its computer programmers and their firm on a theory of civil conspiracy. The programmers moved for summary judgment. The broker-dealer argued that the programmers engaged in tortious acts in furtherance of the conspiracy. But the programmers were granted summary judgment.

The broker-dealer appealed, and argued for the first time that “unlawful,” but not necessarily “tortious,” acts were all it had to show for its civil conspiracy claim. The First District Illinois Appellate Court rejected the broker-dealer’s argument because it violated the “invited error” rule.

The Illinois Supreme Court has held, under “the doctrine of invited error,” that a party “may not request to proceed in one manner and then later contend on appeal that the course of action was in error." … To permit a party to use, as a vehicle for reversal, the exact action which it procured in the trial court “would offend all notions of fair play" and encourage duplicity by litigants … Thus, plaintiffs cannot raise on appeal the question of whether they could show an unlawful, as opposed to a tortious, act in furtherance of the conspiracy.

The whole case, Lozman v. Putnam, No. 1-06-0861 (2/19/08), is available by clicking here.

Bookmark and Share

May 30, 2008

No Jurisdiction To Hear Appeal Of Denial Of Motion To Dismiss

Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main.

The Village moved to dismiss Nicor’s amended complaint, but the motion was denied. When Nicor filed a second amended complaint, the Village’s motion to dismiss was granted. After Nicor’s motion to reconsider was denied, the company appealed. The Village then cross-appealed from the denial of its motion to dismiss the earlier amended complaint.

On appeal, Nicor moved to strike the portions of the Village’s brief related to the cross-appeal. Nicor argued that “its amended complaint was superseded by its second amended complaint and … [therefore] the arguments pertaining to the Village's section 2-619 motion to dismiss [should] be stricken because they are no longer part of the record and are irrelevant to the current appeal.”

The First District Illinois Appellate Court agreed with Nicor, but disposed of the Village’s cross-appeal altogether for lack of appellate jurisdiction.

… [T]he Village's cross-appeal must be dismissed because we lack jurisdiction to consider it. The order from which the Village purports to appeal was entered on October 26, 2005, yet the Village filed its notice of appeal only in April 2007. Thus, the Village's notice of appeal was not timely filed. See 155 Ill.2d R. 303(a)(1) (requiring notice of appeal to be filed within 30 days after entry of final order). Moreover, the denial of the Village's motion was not a final order and, thus, it would not have been appealable in any event. See 155 Ill.2d R. 303(a)(1). Accordingly, because we do not have jurisdiction to hear the Village's cross-appeal, we do not consider the portions of the Village's response brief relating to the appeal of the denial of its section 2-619 motion to dismiss Nicor's amended complaint.
The appellate court’s ruling is inconsistent. It states that the Village did not appeal the final order timely, but then states that the denial of the Village’s motion to dismiss was not a final order. In any event, there was no appellate jurisdiction here. Read the whole opinion, Nicor Gas Co. v. Village of Wilmette, No. 1-07-1041 (2/29/08), by clicking here.

Bookmark and Share

May 17, 2008

Illinois Supreme Court Rules Premarital Agreement A Separate Claim From Divorce

Before they were married, Steven and Angela signed a premarital agreement. When the couple was divorcing, Steven filed a motion for a declaratory judgment, seeking an order on the validity and construction of the premarital agreement. The trial court ruled that the agreement was enforceable. The trial court also granted an interlocutory appeal under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the order).

Angela then moved for reinstatement on Steven’s health insurance policy. That provoked Steven’s motion to strike and dismiss Angela’s motion. He argued that Angela waived all rights to support and insurance in the premarital agreement. The trial court disagreed with Steven, and ordered him to reinstate Angela’s health insurance. When Steven’s motion to vacate that order also was denied, he appealed.

On its own motion, the appellate court reviewed the order that declared the premarital agreement valid. The appellate court reversed that order because, it said, it was improperly entered before entry of the final marriage dissolution order. Steven then appealed to the Illinois Supreme Court and complained that the appellate court was wrong on this point

The Illinois Supreme Court viewed this first as a question of appellate jurisdiction. Because the question of the validity of the premarital agreement was a separate claim from the request for dissolution of the marriage, it could be appealed as an interlocutory order − i.e., even before a ruling on the dissolution of the marriage. The Supreme Court stated:

Steven sought nondeclaratory relief under the Marriage Act, as well as declaratory relief under the declaratory judgment statute … His request for nondeclaratory relief sought dissolution of the parties’ marriage. His declaratory judgment request asked the court to address the validity and construction of the parties’ premarital agreement … [T]he two requests for relief here had distinctly different statutory bases. Moreover, if the statutory requirements were met, Steven’s declaratory judgment could be entered even if the dissolution petition were not granted. In addition … the challenged order did not actually make any award to either party.

What constitutes a “separate claim,” mostly in post-dissolution cases, has been contentious recently. Take a look here for other reporting on this question. You can get this whole case, IRMO Best, No. 104002 (3/20/08), by clicking here.

Bookmark and Share

May 9, 2008

Judgment Creditors Can’t Toll Time To Appeal By Asking For An Interlocutory Appeal

The D’Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D’Agostinos’s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch.

After all of that was resolved, the D’Agostinos issued citations to Murphy and Bryan Cave, respectively a lawyer and a law firm who had represented Lynch. Their theory was that Lynch, to avoid paying the D’Agostinos, had given the lawyers money. Their motion to compel Murphy and Bryan Cave to turn over the money was denied on November 7, 2007.

Within 30 days, the D’Agostinos filed a “Motion to Amend Memorandum and Judgment.” That motion asked for a finding under Illinois Supreme Court Rule 304(a) (permitting an immediate interlocutory appeal). That motion was granted on December 12, 2007. And within 30 days, the D’Agostinos appealed the denial of the original turnover motion.

Murphy and Bryan Cave moved to dismiss the appeal. They argued that the November 7 order was final in “a section 2-1402 proceeding [citation proceeding by a judgment creditor] and that, therefore, under Rule 304(b)(4), it was immediately appealable without a special finding [under Rule 304(a)]” Because the appeal was filed more than 30 days after the November 7 order, the lawyers argued, the appellate court did not have jurisdiction over the case.

The First District Illinois Appellate Court agreed. “Here, the order in question foreclosed the D’Agostinos from collecting the funds in question from Murphy and Bryan Cave. Therefore, it was final and immediately appealable under Rule 304(b)(4). Because the D’Agostinos failed to file a notice of appeal from the November 7, 2007 order within 30 days, this court is without jurisdiction to review the order.”

The D’Agostinos argued that their motion to amend was a proper attack on the judgment, and thus extended the time to file their appeal. But the appellate court disagreed.

In order for a postjudgment motion to have the effect of tolling the time in which to appeal the judgment, that motion must be “directed against the judgment.” … A motion is said to be directed against the judgment when it attacks the judgment in one of the statutorily authorized ways, which include by requesting rehearing, retrial, modification, or vacation of the judgment … The party may also request “other relief” so long as that motion requests a change in the reasons underlying the judgment along the lines of the enumerated forms of relief … Here, the D’Agostino’s “Motion to Amend Memorandum Decision and Judgment” does not attack the judgment or its underlying rationale but, rather, accepts it and requests a Rule 304(a) finding. However, a Rule 304(a) finding was not necessary because of Rule 304(b)(4). … Therefore, it did not have the effect of tolling the time in which to appeal.

Read the whole case, D’Agostino v. Lymch, No. 1-08-0140 (5/7/08), by clicking here.

Bookmark and Share

May 7, 2008

Pending Contempt Proceeding Renders Post Dissolution Judgment Nonfinal. Second District Illinois Appellate Court Still Split.

IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending.

Eugene and Jean Marie were divorced in 1990. The dissolution order required Eugene to split the proceeds with Jean Marie of the sale of real property. Eugene sold the property in 2005, but he did not share the profit. So Jean Marie filed an action for indirect civil contempt. The trial court ordered Eugene to pay $76,903 to Marie. When Eugene didn’t pay, Jean Marie filed another contempt petition. Eugene then appealed the judgment, but Jean Marie’s second contempt petition still was pending.

Eugene appealed under Illinois Supreme Court Rule 304(b)(5) (contempt orders are immediately appealable if they impose a monetary or other penalty). But the appellate court stated that Rule 304(b)(5) did not apply. “Initially, this appeal cannot be one under Rule 304(b)(5) . That rule explicitly states that it applies to an order that imposes a penalty for contempt. The trial court plainly did not impose any penalty here. Yes, it entered a judgment against Eugene, but that judgment was merely the amount it calculated that Eugene owed under the dissolution judgment … To calculate and order payment of what is already due cannot reasonably be understood as a punishment. Thus, the order that Eugene pay $76,903 did not impose a penalty and so was not appealable under Rule 304(b)(5).”

Eugene also argued that the judgment was appealable as a final judgment under Illinois Supreme Court Rule 301. The appellate court also rejected that position. “An order is not final where jurisdiction is retained for matters of substantial controversy … Here, the September 22, 2006, order did not finally resolve the litigation between the parties on the issue of whether Eugene had wilfully and contumaciously refused to comply with the trial court's orders to pay Jean 50% of the proceeds from the sale of the property. Although the trial court entered a $76,903 money judgment, it expressly retained jurisdiction over and continued the proceedings on Jean's second contempt petition. Thus, at the time Eugene filed his notice of appeal, this second contempt petition remained pending and had not been resolved. The pendency of this second contempt petition rendered the September 22, 2006, order nonfinal and rendered the notice of appeal from that order premature.”

This case brought out the disagreement in the Illinois Second District about the appealability of a post dissolution judgment while a contempt petition still is pending. Justice Grometer’s concurring opinion defended IRMO Gutman, 376 Ill. App. 3d 758 (2007), which ruled that a pending contempt petition in a postdissolution matter did not rob the judgment of finality, and thus appealability. Less than two months later, in IRMO Knoerr, 377 Ill. App. 3d 1042 (2007), another panel of the Second District overruled Gutman.

The concurring opinion is good reading, and also discusses the value of stare decisis. Justice Grometer clearly believes IRMO Gutman is correctly decided, and IRMO Knoerr is wrong. But in the end, Justice Grometer deferred to IRMO Knoerr.

So, what to do now? I can dissent here from the majority's reliance on Knoerr, and I can bide my time until I am on a panel with at least one justice who will join me in overruling it. Of course, it would be only a matter of time until that new case was overruled, and then the overruling case was overruled, and so on in perpetuity. Meanwhile, the public would simply throw up its hands, marveling at this court's stubborn refusal to perform its core function, to clearly communicate reliable principles of law.

This is too high a price for my adherence to Gutman. I will do what Knoerr should have done, and I will defer to this court's most recent statement of the law. Thus, in this case, I join the majority in following Knoerr, and, in the interest of our constituents, I would urge my colleagues to do the same.

The Illinois Supreme Court has agreed to review IRMO Gutman, so maybe we’ll get a final word on this soon. You can get the whole case, IRMO Schweiger, No. 2-06-1005 (1/23/08), by clicking here. See my previous reporting on Knoerr and Gutman by clicking here and here.

Bookmark and Share

May 6, 2008

Fourth District Illinois Appellate Court Reviews Jurisdiction Issue Despite Trial Court Failure To Do So

Lee Isringhausen, an Illinois resident, contracted with APM Custom Homes, a Florida corporation, to build a home in Marco Island, Florida. Lee died before the house was built. APM returned most of the $100,000 deposit to Lee’s estate, but kept $42,500 of it as a construction-management fee.

Susan Isringhausen, executor of Lee’s estate, sued APM for the $42,500, in an Illinois court. The trial court dismissed the case for lack of jurisdiction over APM. Susan appealed, but the Fourth District Illinois Court of Appeals affirmed the dismissal of her case.

The trial court ruled that it did not have “general jurisdiction” over APM because APM did not have continuous and systematic business contacts in Illinois. Susan argued that the trial court had “specific jurisdiction” over APM − i.e. the case arose “from ‘the making or performance’ of a contract that is ‘substantially connected’ to Illinois.”

Even though the trial court did not consider “specific jurisdiction,” the appellate court stated it could review the question. “[W]e must make our determination of jurisdiction based on a de novo review of the documents on record … Therefore, any apparent failure on the part of the trial court to consider the question of specific jurisdiction in its written memorandum of opinion does not mandate a reversal. Rather, we must take it upon ourselves to examine the question of specific jurisdiction.”

The appellate court sided with APM and ruled that the trial court did not have jurisdiction. Get the whole case, Estate of Isringhausen v. Prime Contractors and Associates, No. 4-07-0345 (1/29/08), by clicking here.

Bookmark and Share

May 3, 2008

Parents Can Appeal Petition To Adjudicate Wardship; Opposing Brief Not Necessary For Court To Rule

Z.L., a minor who had been adopted as an infant, had reactive attachment disorder. The disorder apparently did not manifest until a few years after his adoption, when Z.L. became disruptive in the household.

The State filed a petition to adjudicate wardship, with the intent to place Z.L. in a foster home. Although they were designated as respondents to the the State’s petition, Z.L.’s parents agreed with the State and the petition. Only Z.L.’s Guardian Ad Litem opposed the State’s petition.

The trial court ruled that good cause did not exist to grant the State’s petition. Z.L.’s parents appealed the trial court’s decision. The State did not appeal, although it did file a brief supporting Z.L.’s parents. And while the GAL was named as an appellee, the GAL did not file an opposing brief.

The first question for the appellate court was whether Z.L.’s parents were proper parties to bring the appeal. The Fourth District Illinois Court of Appeals ruled that Z.L.’s parents could appeal, even though technically they were respondents to the petition in the trial court. “While the trial court's ruling meant Jeff and Emily retained their parental rights, the ruling in this case was adverse to their interests insomuch as they were seeking the trial court's permission to voluntarily relinquish those rights. Because the parents were parties to the proceedings in the trial court, had a substantial interest in the outcome of those proceedings, and that outcome was adverse to their interests, they have the right to pursue this appeal.”

The next issue was whether the parents should win by default because the GAL, the only party who opposed placing Z.L. in a foster home, did not file a brief. The Fourth District Appellate Court ruled that the absence of the GAL’s brief did not give Z.L.’s parents an “automatic” win. The court is not “compelled to serve as an advocate for an appellee,” nor “required to search the record for the purpose of sustaining the judgment of the trial court.”

But the court stated that it “may decide the merits of appellant's arguments on appeal where the record is simple, the claimed errors are such that they may be decided based on appellant's brief, and the record supports our finding in favor of appellant.” In this case, “Because respondents' and the State's briefs sufficiently present the issue for review, we will decide the merits of this appeal from the facts and legal arguments before us without the aid of a brief from the GAL.”

Ultimately, the appellate court ruled that Z.L.’s parents had good cause to be relieved of parental responsibilities. The whole case, In re Z.L., No. 4-06-0998 (2/15/08), is available by clicking here.

Bookmark and Share