June 27, 2009

No Discretion For Bank’s Post-Trial Appeal Over Dishonored Cashier’s Check

MidAmerica Bank sued Charter One Bank for failing to honor a $50,000 cashier’s check purchased at Charter. The check was payable to Essential Technologies of Illinois. David Hernandez was president of Essential. Mary Christelle, David’s mother, purchased the cashier’s check with money from her account at Charter.

Essential deposited the check into its account at MidAmerica. Four days later, Mary instructed Charter to stop payment on the check. Charter issued a stop-payment order, and refused to honor the check when MidAmerica presented it for payment. When the check was returned to MidAmerica with a “stop payment” stamp, MidAmerica sent it back to Essential and deducted $50,000 from MidAmerica’s account.

The opinion does not state what happened between MidAmerica and Essential, except that the bank did not discover a fraudulent scheme involving Essential. But MidAmerica sued Charter for $50,000 plus attorney fees and interest for dishonoring the check.

The banking issue was whether Charter had the right to stop payment on a cashier’s check. After a bench trial, the trial court said “No,” but did not award fees or interest. The appellate court disagreed and ruled that Charter could stop payment.

MidAmerica appealed to the Illinois Supreme Court. The first issue for the supreme court was the proper standard of review. Even though the case went through a bench trial, the trial court’s decision got no discretion. The dispute was reviewed de novo by the supreme court because “the issue on appeal is limited to application of the law to the undisputed facts …”

In the end, the Illinois Supreme Court ruled that Charter wrongfully dishonored the cashier’s check. Read the whole opinion, MidAmerica Bank v. Charter One Bank, No. 106804 (3/19/09), by clicking here.

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June 21, 2009

Public Defender Cannot Appeal Partial Dismissal But Wins Certified Interlocutory Appeal

Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender’s Office to be laid off and imposed unpaid furlough days on other employees in the office. Burnette claimed he was not consulted in the process.

Relying on the Illinois Public Defender Act [actually Sections 3-4000 through 3-4011 of the Counties Code, 55 ILCS 5/3-4008.1 – 4011], Burnette’s lawsuit contested Stroger’s authority to take those actions. Stroger in turn asked the trial court to dismiss the case. He argued he acted within his authority and Burnette did not have standing to sue. Stroger’s request was granted and denied in part.

Burnette did two things: (1) He sought to amend his complaint to work around the aspects the trial court dismissed; (2) He asked for an interlocutory appeal. [Illinois Supreme Court Rule 308(a) allows interlocutory appeals when “the trial court … finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation … The Appellate Court may thereupon in its discretion allow an appeal from the order.”]

The trial court certified four questions for the appellate court, all concerning whether Burnette had standing to sue in the first place. Burnette also appealed from the order that dismissed part of his lawsuit.

The First District Illinois Appellate Court accepted the four certified questions for review, but declined to rule on whether the order granting dismissal was proper. Here’s why: “First, the parties in their appellate briefs did not brief the propriety of the trial judge's order. Second, plaintiffs are seeking to amend their complaint to eliminate the parts that were dismissed by the trial court.”

In the end, the appellate court ruled that Burnette did have standing to sue, and that Stroger did not have authority to designate individuals for layoff or furlough. Read the whole case, Burnette v. Stroger, No. 1-08-2908 (3/30/09), by clicking here.

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June 20, 2009

Chiropractor Waives Unjust Enrichment Claim For Failure To File Cross-Appeal

Richard Martis, a chiropractor, treated Water Management Corp.’s employee for an on-the-job injury. Water Management’s worker compensation insurer was Grinnell Mutual Reinsurance Company. Martis was not in Grinnell’s preferred provider network. He submitted his bill to Grinnell for the treating the employee. Grinnell discounted the bill and paid Martis as if he had preferred provider agreement with Grinnell.

Apparently angered for being shorted, Martis sued Grinnell. He alleged actions for conspiracy, unjust enrichment, violation of the Illinois Consumer Fraud Act, and breach of contract, and asked the trial court to certify the case as a class action. The trial court dismissed everything except the contract action, and also certified class action status.

Grinnell appealed, aguing that the class should not have been certified because Martis’s breach of contract claim did not state a proper cause of action. The Third District Illinois Appellate Court ruled that Martis was not a third-party beneficiary of Water Management’s worker compensation insurance policy with Grinnell, so Martis could not sue for breach of that contract.

With nothing left of his lawsuit, Martis asked the appellate court to review the trial court’s dismissal of his unjust enrichment claim. But Martis had not filed a cross-appeal asking for review of the dismissal, so the appellate court refused to consider the subject. Here’s the appellate court’s analysis:

Appellees [Martis] may not argue alleged errors unless they timely file a cross-appeal … In the absence of a cross-appeal, an appellee will not be permitted to challenge or ask the reviewing court to modify a portion of the trial court's order … When an appellee does not file a cross-appeal, the reviewing court is confined to the issues presented by the appellant … Because plaintiff did not file a cross-appeal, we may not address his argument that the trial court improperly dismissed his unjust enrichment claim.

Read the whole opinion, Martis v. Grinnell Mutual Reinsurance Co., No. 3-08-0004, by clicking here.

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June 15, 2009

American Access Casualty Appeal Waived By Invited Error

Christine Siwek had an accident when she was driving Jerrold Erickson’s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.
American told the Department that Christine’s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

American Access raised affirmative defenses, claiming essentially that Christine hadn’t paid for the policy. Christine asked the court to dismiss American’s defenses, which it did four times.

When American filed its fourth amended affirmative defenses, Christine made a motion to dismiss the defenses. She also asked the trial court for summary judgment and for an award of attorney fees under Section 155 of the Illinois Insurance Code.

On the day of the hearing on Christine’s requests, American Access presented a letter conceding that Christine’s policy was in effect at the time of the accident. The trial court then entered judgment against American Access, and awarded Christine her attorney fees.

American Access appealed. The company claimed the trial court should not have dismissed the affirmative defenses, should not have awarded summary judgment, and should not have awarded attorney fees to Christine.

Pointing to the doctrine of “invited error,” the First District Illinois Appellate Court ruled that American waived its arguments concerning its affirmative defenses and Christine’s summary judgment. So the appellate court refused to consider them. Here is the court’s analysis:

[T]he doctrine of invited error prohibits any party from complaining of an error on appeal "'which that party induced the court to make or to which that party consented.'"

It is quite clear that American made the strategic decision not to appeal from the dismissal of its affirmative defense, not to further challenge the plaintiffs' contention that they were entitled to insurance coverage for Siwek's accident, and to affirmatively certify to the Secretary of State that such insurance was indeed in effect. It was only after American took these actions that the trial court granted the plaintiffs' summary judgment motion, and only then did the plaintiffs and the Secretary of State seek an agreed order from the trial court dismissing the remaining count of the complaint. Under such circumstances, we refuse to further consider American's assertions that the trial court committed any error in dismissing its affirmative defenses or in ultimately granting summary judgment to the plaintiffs.

Read the whole opinion, Siwek v. White, No. 1-07-2600 (2/27/09), by clicking here.

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June 13, 2009

Inmate’s Motion Attacking Void Judgment Tolls Time To Appeal

An inmate in a supermax prison sued prison officials in a mandamus action. The inmate sought an order preventing controlled feeding and requiring a nurse to attend to the inmate’s self-inflicted wounds outside of his cell.

The prison officials asked for, and in July 2006 received, a dismissal of the complaint. Before that dismissal order was entered, and apparently unknown to the trial court judge, the inmate had filed a motion asking for a substitution of the trial court judge.

The court clerk did not send the parties the dismissal order for several months. In November 2006, the inmate asked the trial court, which by that time had substituted another judge, to vacate the order dismissing the case. The inmate argued that his request to substitute the original trial judge was made before the dismissal order had been entered. The inmate’s request to vacate finally was considered in September 2007. The trial court denied the request to vacate the dismissal order. The inmate appealed the denial of his motion to vacate.

The prison officials asserted the appellate court did not have jurisdiction to consider the appeal, so they asked that it be dismissed. They argued that the appeal had been filed 15 months after the order that dismissed the case, too long to invoke the jurisdiction of the appellate court.

The Fifth District Illinois Appellate Court ruled that it did have jurisdiction to hear the case. Coming after the motion to substitute judges had been filed, the order dismissing the case was void. And because a void order can be attacked any time, the inmate’s motion to vacate the dismissal was timely. And because the inmate appealed from the order denying his motion to vacate the dismissal, appellate jurisdiction was proper. Here is how the court explained it:

“Civil litigants in Illinois are entitled to one substitution of judge without cause as a matter of right." … "Orders entered after a motion for substitution of judge has been improperly denied are void." … The Illinois Supreme Court has held that void orders may be attacked at any time or in any court, either directly or collaterally … Based on these principles, we find that the plaintiff's motion to vacate was timely because … it was a … motion to collaterally attack a void judgment. Thus, the plaintiff's motion to vacate was a timely motion directed toward that judgment. Because the plaintiff filed a notice of appeal within 30 days after the entry of the order denying his motion to vacate, we have jurisdiction to consider whether the dismissal order was void.
Get the whole case, Gay v. Frey, No. 5-07-0561 (3/13/09), by clicking here.

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June 8, 2009

Paschen and Chicago Water Reclamation District Get Deferential Standard Of Review In Walsh’s Try To Prevent Bid Award

Walsh Construction Company and II In One Contractors formed a joint venture to bid on a contract being offered by the Metropolitan Water Reclamation District of Greater Chicago. The Walsh joint venture bid on the contract, but did not sign the required D-3 sheet. Although Walsh’s bid was about $10 million less than any other bid, the contract was awarded to a joint venture led by F. H. Paschen.

Walsh sued, and asked for a preliminary injunction to prevent the contract award to Paschen. After a two-day trial, the trial court denied Walsh’s request for an injunction and granted Pashen’s and the Water District’s request for a directed finding.

Walsh appealed, and the parties argued about the proper standard of review. Walsh asserted the trial court’s decision entailed legal issues only, so the proper review standard was de novo, which gives the trial court decision no deference. Paschen and Water District argued for “a manifest weight of the evidence” standard, noting that the [trial] court indeed considered the weight of the testimony and evidence presented in making its decision and did not, as Walsh insists, simply deny the request for preliminary injunction as a matter of law.”

The First District Illinois Appellate Court agreed with Paschen and the Water District. The appellate court acknowledged that a de novo standard would apply had the trial court ruled that the party asking for the injunction failed to offer at “least some evidence on the essential elements of its cause of action.”

But in this case, “contrary to its [Walsh’s] assertions, it is evident that the court made credibility findings and, in particular, weighed the quality of the evidence … [The trial court] made this decision [granting the directed finding for Paschen and the Water District] as a fact finder after considering the totality and quality of the evidence presented and drawing reasonable inferences therefrom, thus meriting deferential [manifest weight of the evidence] review.”

Get the whole case, Walsh/II In One Joint Venture III v. Metropolitan Water Reclamation District of Greater Chicago, No. 1-08-3167 (3/20/09), by clicking here.

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June 6, 2009

Plain Error Doctrine Prevents Waiver Of Appellate Argument Against Involuntary Administration Of Psychotropic Drugs

James S. appealed from a trial court order that allowed psychotropic drugs to be administered to James against his wishes.

A basis of James’s appeal was that the order should be reversed because the circuit court did not state findings of fact to support emergency administration of psychotropic drugs, and therefore did not comply with the statutory requirement. “The respondent [James] argues that the circuit court's error here is particularly problematic because the evidence does not obviously reveal nor did the circuit court clarify under what provision of section 2-107.1(a-5)(4)(B) of the Code (405 ILCS 5/2-107.1(a-5)(4)(B) (West 2006)) the circuit court authorized the involuntary administration of psychotropic medication, i.e., whether the respondent exhibited deterioration in ability to function, suffering, or threatening behavior.”

The State argued that James waived the argument because he did not raise it in his motion for reconsideration.

The Fifth District Illinois Appellate Court ruled that waiver did not apply. The court invoked the plain error doctrine and considered James’s argument because it raised a fundamental liberty interest. Here is the appellate court’s ruling:

The respondent failed to raise this issue in his posttrial motion. An issue is waived on review if it is not raised both at the trial and in a posttrial motion … However, pursuant to the plain error doctrine, this court may address a waived issue if the evidence is closely balanced or the error affects substantial rights … The involuntary administration of medication for mental health purposes involves fundamental liberty interests. … Further, the waiver rule is a limitation on parties and not on reviewing courts …. Accordingly, we will consider this issue on the merits.

The appellate court reversed the order permitting involuntary administration of psychotropic drugs. Read the whole opinion, In re James S., No. 5-07-0567 (3/13/09), by clicking here.

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