January 30, 2009

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers’ was granted; Secura’s was denied.

Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed. Normally that’s okay. Illinois Supreme Court Rule 373 in effect says that mailing is filing. But the rule also states that the mailing has to be supported by an affidavit or certificate as required by Illinois Supreme Court Rule 12(b). Secura’s notice of appeal was not accompanied by either.

Farmers asked the appellate court to dismiss the appeal. Farmers argued that the lack of an affidavit or certificate stating when the notice of appeal was mailed made it impossible to tell whether Secura really complied with the 30-day deadline. The appellate court denied Farmers’ motion, ruling that “the failure to comply with the rules was ‘harmless error’ and there was no showing of prejudice to Farmers.” The appellate court then ruled in favor of Secura on the insurance coverage dispute.

Farmers appealed to the Illinois Supreme Court. The supreme court reversed the appellate court on Farmers’ appellate jurisdiction motion. The supreme court ruled there was no appellate jurisdiction because Secura did not file the Rule 129b) affidavit or certificate when it mailed the notice of appeal. Here’s what the Illinois Supreme Court said:

… [W]hile Rule 373 relaxes the requirement of timely filing where a party takes advantage of the convenience of mailing a document, a party can only take advantage of Rule 373 if it files proper proof of mailing as required by Rule 12(b)(3) … The reason for such a requirement is elementary. If there is no proof of mailing on file, there is nothing in the record to establish the date the document was timely mailed to confer jurisdiction on the appellate court.

The supreme court rejected Secura’s arguments that its letter to the clerk and its notice of filing to opposing counsel were adequate in lieu of the Rule 12(b) affidavit. The court ruled that neither the letter nor the notice were sufficient evidence to show when the notice of appeal was mailed.

Get the whole case, Secura Insurance Co. v. Farmers Insurance Co., No. 105991 (1/23/09), by clicking here.

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January 28, 2009

Filing Notice of Appeal In Appellate Court Does Not Confer Appellate Jurisdiction

Gerald Swinkle was denied a job with the Illinois Liquor Control Commission. He filed a claim against the liquor commission in the Illinois Civil Service Commission. He charged that the liquor commission’s hiring practice violated a veteran’s preference provision in the Illinois Administrative Code. The Civil Service Commission ruled that Swinkle did not prove his case, and that Swinkle was not entitled to an evidentiary hearing. The trial court affirmed the Civil Service Commission.

Swinkle still wanted an evidentiary hearing, so he appealed to the Fourth District Illinois Appellate Court. He filed a notice of appeal within the required 30 days. But he filed the notice in the appellate court, not the trial court as required by the Illinois Supreme Court rules. By the time Swinkle’s notice of appeal was filed with the trial court, it was 44 days late.

The appellate ruled that filing in the wrong court doomed Swinkle’s appeal. The court did not have jurisdiction to hear the appeal because Swinkle did not file a notice of appeal in the trial court, a requirement to establish appellate jurisdiction.

The language of Rule 303(a)(1) unambiguously required petitioner [Swinkle] to file a notice of appeal in the circuit court no later than 30 days following the entry of the circuit court’s final judgment. Petitioner did not do so.

An appellate court’s power attached only upon compliance with the supreme court rules governing appeals … and we are without the authority to excuse petitioner’s failure to comply with the filing requirements of Rule 303 … Because compliance with Rule 303 is mandatory and jurisdictional, we dismiss petitioner’s appeal for lack of jurisdiction.

Read the whole case, Swinkle v Illinois Civil Service Commission, 4-08-0314 (1/15/09), by clicking here.

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January 23, 2009

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

David Naleway and his minor daughter sued the girl’s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners.

During the trial, Naleway tried to introduce a complaint Agnich made about the trial judge to the Judicial Inquiry Board. But the trial judge would not allow the complaint to the JIB into evidence, saying it was a privileged communication.

Naleway appealed that ruling. But the complaint to the JIB was not made a part of the record in Naleway’s defamation case. Agnich argued that the appellate court should not consider the matter because “the transcript of the hearing at which the trial court disallowed plaintiffs' evidence does not specifically identify the document plaintiffs sought to introduce, and … plaintiffs never tendered any document as evidence for the record.”

The Second District Illinois Appellate Court disagreed. The court ruled that discussion on the record in the trial court about the complaint to the Judicial Inquiry Board was sufficient to allow the appellate court to consider Naleway’s appeal, even in the absence of the document.

The parties also fought about the proper standard of review of Naleway’s challenge to the exclusion of the JIB complaint. The usual standard of review for an evidentiary ruling is whether the trial court abused its discretion. But Naleway argued for a de novo standard in which the trial court gets no discretion.

The appellate court agreed with Naleway, ruling that it was a question of law that required the tougher standard of review.

[W]here the issue on appeal is not whether the trial court properly exercised its discretion to exclude evidence but instead whether the trial court misinterpreted the law in excluding evidence, the question presented on appeal is one of law, and our review is de novo. … Because the basis of the trial court's decision to exclude the JIB complaint was its determination that the complaint was privileged as a matter of law, plaintiffs' challenge to that decision presents a legal question, which we review de novo.

Get the whole case, Naleway v. Agnich, No. 2-06-1275 (10/31/08) by clicking here.

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January 12, 2009

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs’s notice of appeal was filed timely, but it stated only that he was appealing. It did not state that he was appealing on behalf of the class he represented.

Under Federal Rule 3(c), as interpreted by the Seventh Circuit Court of Appeals, “the notice of appeal must indicate that the class representative is appealing in his representative capacity.” Marrs had to fix his notice of appeal, or else the appellate court would not have jurisdiction to consider an appeal by the class. But the time for filing the notice of appeal had passed. So to fix the notice, Marrs asked the appellate court to allow him to file a corrected version that specifically said the appeal was for the entire class.

The Seventh Circuit Court of Appeals denied Marrs’s motion. The opinion does not state why, but presumably the court adopted the rationale argued by Motorola – i.e., that Marrs’s motion really was asking for extra time to file a notice of appeal for the class, and that he did not meet the conditions for allowing extra time.

Marrs argued that permitting him to file a new notice of appeal would not prejudice Motorola, especially because the parties had not yet briefed the merits of the appeal. The Seventh Circuit rejected that argument because “lack of prejudice is not a defense to the application of Rule 3(c).”

Read the whole case, Marrs v. Motorola, Inc, No. 08-2451 (11/7/08), by clicking here.

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January 8, 2009

City’s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

Flying J appealed to the Seventh Circuit Court of Appeals. In its reply brief on appeal, New Haven again asserted the same ripeness argument that it made, and lost, in the district court. Flying J countered that New Haven was not permitted to raise the argument on appeal because the city had not filed a cross-appeal.

The Seventh Circuit rejected Flying J’s argument because the court must consider subject-matter jurisdiction at any point in the litigation. Here is the court’s rationale:

Flying J responds that the district court determined that the ripeness requirements … did not apply and that because New Haven did not cross-appeal the issue they are precluded from bringing it up here. This last assertion is incorrect, however, because ripeness “when it implicates the possibility of this Court issuing an advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement.” … New Haven's argument thus concerns this court's subject matter jurisdiction over the appeal. We are obliged to consider that at any point in the litigation.

In the end, the appellate court ruled it had jurisdiction but that Flying J did not state a cause of action. Read the whole case, Flying J Inc. v. City of New Haven, 549 F. 3d 538, No. 08-2319 (12/5/08), by clicking here.

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January 6, 2009

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant’s Due Process Claim

When she was still a teenager living in Guatemala, Aura Chavez-Vasquez’s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant.

Aura was living in Missouri with her two children when her illegal residency status was discovered. She was turned over to the Department of Homeland Security, which initiated a removal proceeding against her.

At the administrative hearing, Aura asked for her removal to be canceled. But the Immigration Judge ruled that she carried the day on only three of four required elements. She did not, the IJ ruled, prove that her removal would cause her American-born children “‘exceptional and extremely unusual hardship.’” So her request to cancel the removal was denied.

Aura appealed that decision to the Bureau of Immigration Appeals, which upheld the IJ’s decision. Aura then appealed the Bureau’s decision to the Seventh Circuit Court of Appeals. In the Seventh Circuit, Aura argued that her due process rights were violated because (1) the IJ’s decision was not sufficiently thorough and (2) the IJ did not consider her evidence of the conditions in Guatemala.

The Seventh Circuit Court of Appeals ruled that it did not have jurisdiction to hear the first due process argument because it was not raised in the appeal to the Bureau.

As a threshold matter, we lack jurisdiction to resolve this issue because Ms. Chavez-Vasquez did not exhaust her administrative remedies … She did not raise her due process argument before the BIA. We may not hear an unexhausted claim unless it presents an issue that the BIA cannot decide adequately such as a claim involving “fundamental constitutional violations.” … Ms. Chavez-Vasquez's due process claim is “based on procedural failings that the BIA is capable of addressing.” … The BIA was capable of correcting any procedural errors made by the IJ; if warranted, the BIA could have simply remanded the case to the IJ with instructions to hold a longer, more comprehensive hearing … Because Ms. Chavez-Vasquez did not exhaust the due process claim, we cannot review it …

The court disposed of Aura’s second argument by characterizing it as a complaint that the IJ did not give sufficient weight to Aura’s evidence. “Because this argument does not present a question of law, we lack jurisdiction to entertain it.”

Read the whole opinion, Chavez-Vasquez v. Mukasey, No. 08-1652 (12/8/08), by clicking here.

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January 3, 2009

Estate Can’t Avoid Judgment Notwithstanding The Verdict By Changing Theory Of Liability On Appeal

Gul Nageen Ahmed, at age 7, was riding her bicycle near a retention pond. She lost control of the bike, slid down an embankment into the pond, and drowned.

Wasim Ahmed, as administrator of Gul’s estate, sued the homeowner association that owned the retention pond and the association’s property manager. A jury gave the estate a $100,000 judgment.

The estate’s theory at trial was that other debris in the pond caused Gul to get entangled with her bicycle, entrapping her in the water. The jury was given a special interrogatory, to which the estate did not object, asking, "Did the rusted bicycle proximately cause Gul Ahmed's death?" The jury answered, “No.” The homeowner association then asked, and the trial judge agreed, to vacate the judgment as being irreconcilable with the jury’s answer to the question.

The estate appealed. In the appellate court, the estate argued that the jury’s verdict could have been based on a theory other than the bicycle having been the cause of Gul’s death. The First District Illinois Appellate Court rejected the estate’s argument, and ruled that the estate could not change its theory of liability for the first time in the appellate court.

Based on the evidence presented, the only bicycle that plaintiff could be referring to was the rusted bicycle in the pond where they found Gul, which was the same bicycle that was pulled out of the water by police. It is well settled that the theory under which a case is tried in the trial court cannot be changed on review … To allow a party to change his or her trial theory on review would weaken the adversarial process and the system of appellate jurisdiction, and could also prejudice the opposing party, who did not have an opportunity to respond to that theory in the trial court … Accordingly, plaintiff's new hypotheses are inconsistent with the evidence of proximate cause and his theory at trial.

Get the whole case, Ahmed v Pickwick Place Owners’ Association, No. 1-07-2047 (9/30/08), by clicking here.

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January 2, 2009

Pending Disqualification Motion Renders Custody Appeal Premature

Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal. Jeffrey argued that the appellate court did not have jurisdiction because the motion to disqualify had not been decided by the trial court.

The Second District Illinois Appellate Court agreed with Jeffrey and ruled that Neringa’s appeal was premature. Because the motion to disqualify presented a separate claim, it had to be resolved before the appellate court could take jurisdiction of Neringa’s appeal of the custody order.

The appellate court described the procedure Neringa should follow in order to perfect her appeal: “Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter … and then supplement the record with the appropriate order or orders.”

Read the whole case, IRMO Valkiunas, 2-08-0279 (12/18/08), by clicking here.

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