July 25, 2009

Trial Court Lacks Power To Allow Intervention After Appeal Is Filed

Leonard Kulisek went to Walgreen pharmacy intending to purchase allopurinol for his gout. The pharmacist gave Leonard a bottle marked “allopurinol,” but it really contained glipizide, a diabetes medication that lowers blood sugar. Thinking he was taking allopurinol, Leonard ingested the glipizide. Leonard suffered severe kidney and brain problems that ultimately caused his death.

Leonard’s estate sued Walgreen. After trial, a jury awarded the estate a multi-million dollar verdict, including punitive damages. Walgreen appealed. Ten days later, Mia Crickman and Charles Kulisek, Loenard’s family members, asked the trial court for an order allowing them to intervene in the case. They apparently were unhappy with the distribution of the punitive damage award, and wanted to contest it in the appellate court. The trial court allowed Mia and Charles to intervene, after which they cross-appealed.

The estate contended that the Mia-Charles appeal should be dismissed. Because they asked to come into the case after Walgreens appealed, the estate argued, the trial court did not have the power to allow Mia and Charles to intervene in the lawsuit.

The First District Illinois Appellate Court agreed. Here is the court’s thinking:

When an appeal has been properly filed, jurisdiction attaches to the appellate court and the circuit court retains only very limited powers concerning the case. It may grant a stay … or enter an order which merely explains its prior order without substantively changing it … But allowing Mia and Charles’ motion permitted them to raise issues not raised by Walgreen or plaintiff Marston [executor of Leonard’s estate], the parties who had actually participated in the litigation from its inception. Accordingly, we find that the trial court lacked jurisdiction to allow the motion of Mia and Charles, which substantively altered the nature of the appeal … We therefore dismiss the appeal of Mia and Charles and did not consider their briefs in resolving the legitimate issues raised by the true parties to this appeal.

The appellate court also ruled that the punitive damage verdict did not survive Leonard’s death, so Mia and Charles would not have gotten any of the punitive damages anyway. Get the whole opinion, Marston v. Walgreen Co., 1-07-0209 (3/31/09), by clicking here.

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July 22, 2009

Pending Appeal Deprives Trial Court Of Power To Reinstate Dismissed Case

Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it. Then the procedural fun began.

Two status conferences were set for different times on the same day. Magdalena missed the first, so the trial court dismissed the case for want of prosecution. Her lawyer appeared for the second status, at which a discovery extension was ordered.

When the trial court judge realized competing orders were entered, she ordered the parties to return about a week later. But Magdalena missed that status conference, too. The trial court then vacated the discovery extension and let the order that dismissed the case stand.

One month later, Magdalena asked the court to vacate the dismissal. But the trial court denied the motion. Magdalena asked the court to reconsider. Ten months later, the trial court granted Magdalena’s request to reconsider and vacated the dismissal. A month after that, Drs. Gleason and Danczkewycz appealed the order that vacated the dismissal. The circuit court stayed all proceedings pending the appeal.

More than a year later, while the appeal still was pending, the trial court called a hearing of all parties. The judge told the parties that she had been informed that Magdalena’s lawyer “asked one of the [court clerk] supervisors to make a deletion from the electronic docket of a particular order that would be germane to this case.”

Magdalena’s lawyer denied the charge, but the trial court didn’t buy it. The judge changed her mind about Magdalena’s request to vacate the dismissal, and ruled that Magdalena had not satisfied the elements of a request to vacate a dismissal. The court vacated its order that vacated the dismissal. The effect was to reinstate the dismissal of the case.

Gleason and Danczkewycz then withdrew their appeal. But Magdalena filed her own appeal from the dismissal of her case.

The first question was whether the circuit court had jurisdiction to reinstate the dismissal. The rub came because the trial court’s order reinstating the case was entered while the appeal by Gleason and Danczkewycz was pending.

The general rule is that filing a notice of appeal divests the trial court of jurisdiction “to enter any order involving a matter of substance and thereafter [the trial court] retains jurisdiction only to decide matters independent of and collateral to a judgment.” Magdalena argued the pending appeal by Gleason and Danczkewycz deprived the trial court of the power to reinstate the dismissal, rendering the trial court’s order void.

On the other hand, the doctors argued that the trial court order was valid because (1) Magdalena did not object to the trial court’s jurisdiction and (2) by appealing the order Magdalena acted as if the order were valid. The doctors relied on the doctrine of revestment, which permits trial court “jurisdiction over a case after it has been dismissed if the parties subsequently ignore the dismissal and continue litigating the case.”

The First District Illinois Appellate Court sided with Magdalena. The appellate court reversed the trial court, thus reinstating Magdalena’s lawsuit. The appellate court stated that revestment, “as now urged by defendants [Gleason and Danczkewycz], would be inconsistent with the settled legal principles that a party may challenge a void order at any time and that such a claim may not be waived.” The appellate court also ruled that Magdalena’s conduct did not imply that she “consented” to setting aside the dismissal order “as is required to trigger the effect of the revestment doctrine.”

Read the whole opinion, Wierzbicki v. Gleason, No. 1-06-3756 (3/6/09), by clicking here.

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July 18, 2009

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

The Illinois Supreme Court let the forfeiture decision stand. Because the appellate court briefs were not made a part of the record, the supreme court could not determine whether the forfeiture question had been properly decided. Here’s what the supreme court stated:

Before this court, United argues that the appellate court erred by applying the doctrine of procedural default. A review of the appellate court's application of the doctrine would necessarily require that we examine the briefs filed in the appellate court. However, United has failed to utilize Supreme Court Rule 318(c), which provides: "If it is important for the Supreme Court to know the contentions of any party in the Appellate Court, copies of the pertinent Appellate Court briefs certified by the clerk of that court may be filed in the Supreme Court." … Because the briefs filed by the parties in the appellate court are not a part of the record provided to this court, we are unable to review whether the appellate court erred in applying procedural default.

Read the whole case, Ready v. United/Goedecke Services, No. 103474 (3/23/09), by clicking here.

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July 4, 2009

No Appellate Jurisdiction In Environmental Clean-Up Case When Trial Court Still Must Decide Who Gets Insurance Proceeds

Kerr-McGee Chemical and Lefton Iron & Metal were fighting out a 15-year dispute over the cost of cleaning up an environmentally contaminated industrial site. The first time the case was in the Seventh Circuit Court of Appeals, the court ruled that Kerr-McGee was entitled to the clean-up costs from Lefton.

After the case was remanded, the trial court ruled that Kerr-McGee should receive $9.5 million. Lefton was ordered to be liquidated to satisfy the judgment. Lefton disputed the amount because: (1) Kerr-McGee had not proven its expenses were reasonable, and (2) amounts paid to Kerr-McGee by its insurers should be deducted from the judgment. The trial court ruled that if Lefton wanted to fight about whether the insurance payments should be deducted, it should do so in a separate motion in Kerr-McGee’s proceedings to execute the judgment.

But instead of filing the motion, Lefton appealed. The first — and as it turned out, only — question for the appellate court was whether there was a final order from which to appeal. The appellate court ruled there was not a final order because the trial judge still had to decide whether the insurance payments should be deducted from Kerr-McGee’s judgment. This is how the court explained it:

[T]he district judge recognized that one question affecting damages was unresolved and announced his willingness to tackle it after the Leftons filed an appropriate motion. Thus from the district judge’s perspective the litigation is not over, and the decision is not “final.”

So the appeal was dismissed because there was no appellate jurisdiction. But the court stated it would allow an appeal on the already-filed briefs after a final order from the trial court. Read the whole opinion, Kerr-McGee Chemical Co. v. Lefton Iron & Metal Co., No. 03-2991 (6/30/09), by clicking here.

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