November 28, 2008

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion.

The supreme court ruled that the Commission’s regulation that allowed electronic filing was ambiguous because it “contains no indication whether filing requires actual physical acceptance by a human being in the chief clerk’s office.” The court’s decision thus turned on the Commission’s policy of encouraging electronic filing.

“The entirety of the Commission’s enactment seeks to expand, rather than limit, the ability of parties to make use of the e-docket system. Insisting on a deadline of 5 p.m. would have the opposite effect, limiting the use of e-filing. When faced with a tight deadline, a 5 p.m. rule would encourage attorneys to print, and mail, large documents rather than use the efficient and economical method of electronic filing that the Commission’s rules promote.”

Don’t get too excited, though. The case does not make a broad rule that e-filing after usual business hours always will be acceptable. A jurisdiction is free under this opinion to place a business-hours deadline on an e-filing. “Indeed, the extent to which other jurisdictions have enacted business hours deadlines also serves to underscore the Commission’s own decision not to issue an explicit rule.”

Read the whole opinion, People v. Illinois Commerce Commission, No. 105131 (11/20/08), by clicking here

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November 23, 2008

Pending Contempt Petition Renders Other Substantive Rulings Non-Final And Not Appealable

In a post-dissolution of marriage case, does a pending contempt petition render other substantive rulings non-final and non-appealable? Does the court have to rule on the contempt petition before the appellate court can exercise its jurisdiction over all of the rulings?

The blog entry directly below explains what happened in IRMO Gutman. Appellate jurisdiction was in question because Mary Gutman appealed rulings concerning maintenance when her contempt petition still was pending.

The appellate court ruled that the contempt petition did not raise a claim for relief in the post-dissolution action. That meant the earlier order that terminated maintenance was final and appealable. Mary’s Notice of Appeal, which was filed more than 30 days after the maintenance order, was not timely and did not invoke the appellate court’s jurisdiction. So the appeal was dismissed.

The Illinois Supreme Court affirmed, but reached its decision using a rationale exactly opposite of the appellate court’s. The supreme court ruled that the pending contempt petition did raise a claim in the same action as the maintenance petitions.

Accordingly, we hold that the trial court’s order disposing of the parties’ maintenance petitions was not a final appealable order. Because Mary’s contempt petition and the two maintenance petitions raised claims for relief in the same action, the order terminating maintenance was final as to fewer than all claims in the action. Mary’s appeal, filed before the resolution of her contempt petition … was premature … A premature notice of appeal does not confer jurisdiction on the appellate court … Therefore, while we reject the reasoning of the appellate court, we affirm the appellate court’s dismissal of the appeal for lack of jurisdiction.

The Illinois Supreme Court said the appeal was premature, so it dismissed Mary’s appeal. The appellate court said the appeal was late, so it dismissed the appeal. If you missed it, here’s the link to IRMO Gutman, No. 105648 (11/20/08).

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November 21, 2008

Illinois Supreme Court Considers Appellate Jurisdiction In IRMO Gutman. Appellate Court Panel’s Attempt To Overrule Sister Panel Rejected By Illinois Supreme Court

Nearly five years after their divorce, Mary Gutman filed a motion to continue and modify her maintenance award. Two months later, Daniel filed a motion to terminate maintenance. One month after that, Mary filed a petition to hold Daniel in contempt for having stopped the maintenance payments.

The trial court twice set a date for hearing on the competing maintenance petitions, but Mary did not attend either time. On the second hearing date, the court granted Daniel’s petition to terminate maintenance, dismissed Mary’s maintenance petition, and did nothing on the contempt petition. The trial court’s order did not contain language under Illinois Supreme Court Rule 304(a) that would have made the maintenance dismissals appealable interlocutory orders.

After her motions to vacate and to reconsider were denied, Mary appealed. But her Notice of Appeal was filed well more than 30 days after the trial court ruled on the maintenance petitions.

The Second District Illinois Appellate Court dismissed Mary’s appeal for lack of appellate jurisdiction. The appellate court ruled that the pending contempt petition really was a separate claim for relief from the maintenance petitions. Therefore, the appellate court concluded, the order on the maintenance petitions was final and appealable, and should have been appealed within 30 days. Mary’s appeal, coming more than 30 days after the ruling, was late, depriving the appellate court of jurisdiction over the case.

Mary appealed that ruling to the Illinois Supreme Court, which took the case. There are two aspects of the Supreme Court’s opinion that are important to appellate practitioners. One, of course, is whether the appellate court was right to dismiss Mary’s appeal for lack of jurisdiction.

The other issue, which we’ll examine today, arose because another panel of judges from the same court “overruled” this opinion. So the first question for the supreme court was whether the appellate opinion in this case had any legal effect in view of the same court having “overruled” it. (For more on this stunning intra-district squabble, click here and here to read our reports from earlier this year.)

The supreme court ruled that one panel cannot overrule another panel. Nor can one district overrule another. Disagreeing opinions create conflicting authority but one does not overrule the other. Here’s what the supreme court said:

We find, however, that the decision before us has not been overruled. A panel, division, or district of the appellate court has no authority to overrule another panel, division, or district … Thus, despite its statement to the contrary, Knoerr [the second case] did not overrule this case. The Knoerr panel created a conflict of authority by disagreeing with a decision from another panel of a court of equal stature. We conclude, therefore, that the appellate court decision we are reviewing remains in effect.

So the supreme court still had to review the jurisdiction dispute. We’ll look at that part of the opinion next time. (No reason to hold your breath, though. The Illinois Supreme Court affirmed the appellate court’s dismissal, but for reasons quite different than the appellate court used.) If you just can’t wait to read it, click here for the full opinion, IRMO Gutman, No. 105648 (11/20/08). And click here to read our first report of the appellate opinions in IRMO Gutman and IRMO Knoerr.

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November 19, 2008

Car Buyer’s Compliance With Pre-Suit Dispute Resolution Procedure A Question Of Law

Edmond Jones sued Nissan because, he claimed, the car he bought was a lemon. The purchase agreement required Jones to submit his claim to an automotive complaint resolution program before he was allowed to sue in court. He did that twice, and twice his claim was dismissed. It was dismissed the first time because he missed the scheduled vehicle inspection time. It was dismissed the second time because, it having been repossessed, he no longer owned the car.

Jones then filed a lawsuit against Nissan. Nissan asked the court to dismiss the case because Jones did not comply with Nissan’s the informal dispute settlement procedure. The trial court agreed and dismissed the lawsuit. Jones then appealed.

Jones and Nissan first argued about the proper standard of review in the appellate court. Jones argued for a de novo standard of review, which is typical when an appellate court considers whether a motion to dismiss a complaint was properly granted. Nissan stated that the trial court’s dismissal should get more deference, and argued for an abuse of discretion standard.

The Second District Illinois Appellate Court sided with Jones because, it said, it was confronted with a question of law. “… [T]he trial court’s … finding that noncompliance with Auto Line’s eligibility requirements [the informal resolution procedure] can bar plaintiff from filing suit under Magnuson-Moss is a determination of law, not a factual finding. Where the question presented is one of law, our review is de novo.”

In the end, the appellate court reversed the dismissal. Read the whole case, Jones v. Nissan North America, No. 2-07-0448 (9/11/08), by clicking here.

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November 13, 2008

Appellate Lawyers Pooling Resources?

Lots of appellate practitioners are solo or in small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That’s good for clients, and good for us.

I am always thinking about ways to increase the quality of my work product and push down costs. Lately I’ve been mulling over the idea of pooling resources with other appellate practitioners – staffing, electronic, digital, old-fashioned brainstorming with colleagues. Geography is not a limitation on the pooling concept; where you toil doesn’t matter. There is nothing insurmountable to prevent us from getting the best product and service, and the best pricing, from around the world to make our practices better and more cost efficient.

I’m interested in your thoughts. Call me (630-579-6460) or email (steve.merican@gmail.com) if you want to discuss this.

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November 9, 2008

Medical Studies Act Privilege Assessed By Manifest Weight Of The Evidence

Judy Anderson died while in care of Rush-Copley Medical Center. Her estate sued Rush for medical malpractice. In discovery, Rush refused to turn over two categories of documents: medical journal articles and an Action Plan. Rush claimed the documents were used in connection with a peer review and therefore were privileged under the Illinois Medical Studies Act.

The Second District Illinois Appellate Court identified the proper standard of review. The court distinguished this case from a typical question of whether a legal privilege applied, and decided that the trial court deserved more deference. “Whether a discovery privilege applies is a matter of law, subject to de novo review … However, whether specific materials are part of an internal quality control or a medical study is a factual determination, which will not be reversed on review unless it is against the manifest weight of the evidence.”

In the end, the appellate court ruled that the articles and the plan were privileged and did not have to be disclosed. Read the whole case, Anderson v. Rush-Copley Medical Center, Nos. 2097-0717, 2-07-1272 (8/14/08), by clicking here.

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November 6, 2008

“Invited Error” Prevents Med Mal Plaintiff’s Appeal Of Evidentiary Ruling

David Mount had a cardiac arrest that caused brain damage and other injuries. David’s guardians sued his doctors for medical malpractice. A jury concluded that the doctors were not guilty. David’s guardians appealed to the First District Illinois Appellate Court. The appellate court affirmed the judgment in favor of the doctors.

On appeal, David’s lawyer argued that the trial court should have allowed certain statements by one of the doctors to be used as substantive evidence. Instead, the trial judge limited the doctor’s statements for impeachment purposes only − i.e., “solely for purposes of assessing the weight to be given to the testimony of the witness in the courtroom." But David’s lawyer did not object when the trial court placed limits on how the doctor’s testimony could be used.

The appellate court rejected David’s arguments that the doctor’s testimony should have been admitted for their full, substantive value. The court invoked the “invited error doctrine,” which prevents a party from appealing an evidentiary ruling that he procured or invited, or in which he acquiesced. Here’s the court’s rationale:

In the case at bar, plaintiffs invited, or at the very least acquiesced to, the trial court's ruling to admit the two statements for impeachment purposes only. With respect to the first statement, plaintiffs asked the trial court to admit it for impeachment purposes, and the trial court did exactly that. With respect to the second statement, when the trial court ruled it admissible for impeachment purposes only, plaintiffs thanked the court for its ruling. While defense counsel objected to preserve the issue for appeal, plaintiffs stood by and voiced no objection. Plaintiffs' lack of an objection was not surprising since they thought they were "winning." After inviting and acquiescing to the trial court's rulings, plaintiffs cannot now complain about these same rulings on appeal.

Get the whole case, LaSalle Bank v. The Chicago Trust Company, No. 1-06-1859 (8/4/08), by clicking here.

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November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed.

The developer sued the city. The developer claimed its expenditures for the property gave it a vested right to the previous zoning classification. The developer’s complaint had two theories. The first asked for a writ of mandamus – i.e., an order that the city issue the building permits. The second demanded a declaration that the developer was entitled to the building permits. After trial, the court ordered the city to issue permits so the apartments could be built. The trial court’s judgment granted the mandamus action, but was silent on the declaratory judgment request. The city appealed.

Because the trial court did not explicitly resolve the request for a declaratory judgment, there was a question of whether the order was final and appealable. If not, the appellate court would not have jurisdiction to hear the city’s appeal.

Normally, an order is appealable only if it disposes of all claims as to all parties. But the First District Illinois Appellate Court ruled that it did have jurisdiction over this appeal, despite the trial court not ruling on one of the two claims. Here’s the court’s thinking:

We agree with the City that our jurisdiction is not defeated by the fact that the trial court's order does not formally dispose of plaintiffs' request for declaratory judgment. When the relief sought under different counts is identical, and disposition of the one necessarily entails disposal of the other, then the grant of relief under one count will be deemed, for purposes of appeal, to constitute a resolution of the other count as well … In the instant case, plaintiffs' claims for mandamus and declaratory judgment are both predicated upon the same theory--namely, that they acquired vested rights to construction permits by virtue of their expenditures on reliance on the preexisting zoning classification--so, for purposes of appeal, the resolution of the former obviates the necessity of a formal resolution of the latter.

Ultimately, the appellate court affirmed the trial court’s ruling. You can read the whole opinion, Cribbin v. City of Chicago, No. 1-06-1671 (8/15/08), by clicking here.

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