September 27, 2009

Premature Notice Of Appeal Deprives Court Of Jurisdiction To Review Conditional Release Of Sexually Violent Person

Benjamin Hernandez, adjudicated to be a sexually violent person under the Illinois Sexually Violent Persons Commitment Act, was placed on conditional release. The State appealed, but filed its notice of appeal before the trial court approved the conditional release plan. Nor did the State file a new notice of appeal after the conditional release plan was approved.

The Second District Illinois Appellate Court dismissed the appeal because the State’s only notice of appeal was premature. When the trial court entered the order that placed Hernandez on conditional release, it also continued the case “for the presentation of a release plan.” The order for conditional release was not final and appealable, the court ruled, because:

[It] necessitated and contemplated further action by the court to determine the conditions of release. The [trial] court expressly retained jurisdiction over the proceedings for approval of the conditional release plan, as required by statute … We determine that the reservation of jurisdiction for the purpose of entering a conditional release plan shows that not all of the issues in dispute were fully addressed and settled by the July 3 [conditional release] order. Thus, the July 3 order was not final.

This opinion contains a “reluctant” concurrence. While recognizing the necessity of following the rules of appellate jurisdiction, the concurrence wondered whether there was a way to accommodate jurisdiction so an issue of public safety could be reviewed. Here is what the concurrence said:

This is an unfortunate and unconscionable result due to the hazards and intricacies of appellate jurisdiction. Appellate jurisdiction is rather like taking a stroll in a minefield … Here, the State stepped on the landmine of a premature notice of appeal – a problem that persists notwithstanding our supreme court’s effort to eradicate this pitfall by amending [Illinois Supreme Court] Rule 303 … [I]t … remains true that however important jurisdiction may be, it is, at the appellate level, quite arbitrary … For example, why cannot all premature notices of appeal be treated like the select ones covered by the recent amendment to Rule 303? If that were the case, we would have jurisdiction over this very important matter, just as the parties thought, quite persistently, we had.

The whole case, In re Commitment of Hernandez, No. 2-07-0853 (6/15/09), is available by clicking here.

Bookmark and Share

September 23, 2009

Interlocutory Order Not Identified In Notice Still Appealable

Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O’Neil, another of her doctors, as a respondent in discovery.

O’Neil proved difficult to serve. Eventually though, the trial court gave Lisa a certificate of merit, concluding Lisa had a meritorious case against O’Neil. A few weeks later, the trial court granted Lisa’s request to file an amended complaint. That complaint named O’Neil as a defendant in Lisa’s medical malpractice case.

O’Neil then asked the trial court (1) to vacate the order that allowed Lisa to file an amended complaint and name O’Neil as a defendant, and (2) to dismiss the claims against him in the amended complaint. O’Neil claimed the order was improper because he had not been served properly, depriving the trial court of personal jurisdiction. The trial court agreed and granted O’Neil’s requests.

Lisa served O’Neil again. Then she asked the court to reconsider the order it issued in favor of O’Neil. In response, O’Neil asked the trial court to terminate his status as a respondent in discovery. The court ruled in favor of O’Neil, giving him a complete victory: the complaint against him was dismissed, and his status as a respondent in discovery was terminated.

Lisa appealed. O’Neil asserted the appellate court did not have jurisdiction to consider an appeal of the order that vacated the earlier order giving Lisa leave to file the amended complaint. O’Neil claimed that order was not appealable because it was “an interlocutory order that was not specifically challenged in the notice of appeal.”

The First District Illinois Appellate Court disagreed. Here’s the appellate court’s thinking.

Here, the vacatur of the May 9, 2007, order, which had granted the plaintiffs [Lisa] leave to file an amended complaint [and sue O’Neil], was a procedural step in the progression leading to the entry of the final judgment with regard to the O'Neil respondents. Thus, although the April 18, 2008, order [vacating the May 2007 order] was not a final judgment, it is subject to appeal. In addition, [O'Neil] … ha[s] not argued that [he was] … prejudiced by the plaintiffs' failure to comply with the technical requirement that the order of April 18, 2008, be specifically referenced in the notice of appeal. Consequently, we reject the claim that the entry of that order is not subject to review.

In the end, the appellate court ruled that Lisa was not permitted to file an amended complaint against O’Neil. Read the whole case, Knapp v Bulun, No. 1-08-2299 (6/30/09), by clicking here.

Bookmark and Share

September 22, 2009

Dismissal Of Original Complaint A Final Judgment That Must Be Appealed Upon Voluntary Dismissal of Amended Complaint

This case is more about res judicata than appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue. First, after the successful treatment, Jane and John requested that the residual embryos be ethically destroyed. They claimed in their lawsuit that the embryos were not disposed of properly. Second, the clinic’s president, Norbert Gleicher, allegedly mentioned Jane’s real name during a television interview without her permission.

Jane and John sued Gleicher and the clinic, and filed a nine-count amended complaint against them for invasion of their privacy and breach of contract. Gleicher and the clinic asked the trial court to dismiss the amended complaint. The court dismissed six of the counts, allowed Jane and John to amend the remaining three counts, and denied their request for Rule 304(a) language (which would have allowed an immediate appeal).

About five weeks later, Jane and John filed a second amended complaint “alleging breach of contract, medical malpractice, conversion of the embryos and related medical records, and invasion of privacy by public disclosure of private facts. They did not reallege any of the dismissed claims.” Then about two years later they voluntarily dismissed the case.

One year after that, Jane and John re-filed their case. Gleicher asked the trial court to dismiss it, arguing it was res judicata (bars “subsequent lawsuits between the same parties or their privies involving the same cause of action where there was a final judgment on the merits rendered by a court of competent jurisdiction.”). Gleicher’s request to dismiss was granted, so Jane and John appealed.

Jane and John said that res judicata did not bar the re-filed complaint because there never was a final judgment in the trial court. They argued that: (1) they were allowed leave to amend when the trial court issued its order that dismissed six of nine counts of the amended complaint, (2) they in fact filed a second amended complaint, and (3) then they voluntarily dismissed that complaint [before] … any substantive rulings.”

But the First District Illinois Appellate Court disagreed. The appellate court ruled that the six dismissed claims were final, although not appealable until the case was over. The case was over in July 2006, when Jane and John voluntarily dismissed the entire case. In order to invoke the jurisdiction of the appellate court, Jane and John should have filed their appeal within 30 days of the time they voluntarily dismissed the case in July 2006, which they did not do.

Jane and John argued that the re-filing of the case constituted a “separate filing” that was not subject to res judicata. The First District Appellate Court disagreed again, and pointed out that “… res judicata bars every matter that could have been raised in [the amended complaint].”

The appellate court ultimately concluded that all of the elements of res judicata applied, so the dismissal was affirmed. Read the whole case, Doe v. Gleicher, No. 1-08-2724 (6/30/09), by clicking here.

Bookmark and Share

September 11, 2009

Trial Court Retains Jurisdiction After Appellate Remand To Firemen’s Board

Patricia Jelinek and Jamie O’Callaghan, both widowed spouses of firemen, disputed whether the Firemen’s Retirement Board awarded them the proper benefit. Their husbands died while they were receiving duty-related benefits for injuries they suffered as firemen. The Board granted them less than they felt they were entitled to, so, as permitted under the Illinois Administrative Code, they asked the trial court to review the decision.

In 2002, the trial court ruled in favor of the widows. The court sent the case back to the Board with directions to award a proper benefit. The Board appealed that decision to the First District Illinois Appellate Court. In 2005, the appellate court vacated the trial court’s ruling and sent the case back to the Board to determine if the husbands’ duty-related disabilities permanently prevented them from returning to active duty with the fire department.

After the Board unsuccessfully asked the Illinois Supreme Court to hear the case, the appellate court’s mandate was issued to the trial court. Jelinek’s and O’Callaghan’s cases were heard again by the Board, which granted them the greater benefit prospectively only, not dated back to the time their husbands’ died.

Jelinek and O’Callaghan went back to the trial court and asked for retrospective calculation of the award. But on the assumption that the trial court still had jurisdiction over the case, they did not file a new appeal of the Board’s latest decision. That caused the trial court to rule it did not have jurisdiction to decide the widows’ request. Here’s the explanation:

The circuit court stated that plaintiffs needed to timely file new complaints for administrative review of the Board's remand decisions in order for the circuit court to have jurisdiction to entertain the issue of whether the Board acted outside the appellate court's mandate by setting an arbitrary date for the payment of benefits. The circuit court concluded that it could not review plaintiffs' [Jelinek and O’Callaghan] motion to enforce because they failed to file any complaint for administrative review within 35 days of the Board's decisions …

The widows then appealed that ruling by the trial court. The issue was whether the trial court had jurisdiction to hear the widows’ request that their awards be calculated retrospectively. The answer turned on the effect of the appellate court’s order in 2005 that sent the case back to the Board, not to the trial court, for recalculation of the award. Did that appellate court order deprive the trial court of jurisdiction?

The appellate court said “No.” The appellate decision in 2005 was not final and did not divest the trial court of its jurisdiction over the case. The widows’ request to enforce retrospective calculation of the award was a continuation of the same case that did not require them to file new complaints in order to invoke jurisdiction. This is how the appellate court explained it:

This court's 2005 remand order did not constitute a final order because it did not finally dispose of plaintiffs' rights where it instructed the Board to hold an evidentiary hearing to afford plaintiffs the opportunity to prove that their husbands' injuries permanently prevented them from returning to active duty with the fire department … Because the issue on remand involved fact finding, this court's instructions concerning the remand hearing were properly directed to the Board rather then the circuit court. We reject the Board's assertion that there is some qualitative difference between a reviewing court's remand order--like the one issued here--that directly instructs the agency to hold an evidentiary hearing versus a reviewing court's remand order that directs the circuit court to instruct the agency to hold an evidentiary hearing.

Contrary to the Board's assertion on appeal, our 2005 remand order did not impliedly confer jurisdiction over plaintiffs' actions in the Board alone. Rather, consistent with the Administrative Review Law and supreme court rules, we instructed the Board to take additional evidence and, on October 28, 2005, issued the mandate that reinstated the case in the circuit court-the court that first acquired jurisdiction of the case and, thus, retains jurisdiction of the action until final disposition … Accordingly, plaintiffs [widows] were not required to file new complaints for administrative review within 35 days of the Board's 2006 remand decisions because the appeal and remand hearing were a continuation of plaintiffs' original consolidated complaint for administrative review.

Click here to get the whole opinion, Jelinek v. Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, Nos. 1-07-1141, 1-07-1142 (6/19/09).

Bookmark and Share

September 7, 2009

Forum Non Conveniens Dismissal Not A Final Order; Appealable By Petition, Not Notice Of Appeal

Dennis and Kimberly Quaids’ newborn twins were hospitalized at Cedars-Sanai Hospital in Los Angeles, California for a staph infection. The babies were given Heparin instead of Hep-Lock, as was prescribed by the physician. The Quaids settled a claim against the hospital before a lawsuit was filed. They sued Baxter Healthcare Corporation, the manufacturer of both medications. The Quaids’ chief claim was that the labeling for both medications was too much alike for hospital personnel to distinguish between them.

The Quaids, residents of California, filed the lawsuit in Cook County, Illinois. Baxter asked the Cook County trial court to dismiss the case on the basis of forum non conveniens − i.e., that California was a more convenient location for this case.

The Cook County trial court agreed that California was the more convenient forum and dismissed the Illinois case. The Quaids filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(2), which specifically permits a party to do so. But Baxter argued that the trial court’s dismissal was a final order. Thus, the only way the Quaids could have invoked appellate jurisdiction was to have filed a notice of appeal under Illinois Supreme Court Rule 301. [An appeal is initiated by filing a notice of appeal.]

The First District Illinois Appellate Court rejected Baxter’s arguments, mainly for theses reasons:

• The appellate court first pointed to the “plain language” of Rule 306, which allows a party to file a petition for leave to appeal “from an order … allowing or denying a motion to dismiss on the grounds of forum non conveniens …”
• The appellate also stated that the dismissal order was not final, so a Rule 301 appeal would not have been proper. The order was not final because the forum non conveniens statute came with conditions, which if not met would have required the Illinois trial court to reinstate the case.
• The appellate court also ruled that the amendment to Rule 306 in 1993 [expanding the rule to cover orders “allowing or denying” a forum non conveniens motion from only orders denying those motions], together with the plain language of the rule, indicated the Illinois Supreme Court’s intention to establish “that filing a petition for leave to appeal is the proper procedure for seeking review of a forum non conveniens dismissal.”

The appellate court did allow the appeal, but in the end affirmed the dismissal because California was the better jurisdiction for this case. Read the whole case, Quaid v. Baxter Healthcare Corp., No. 1-08-2727 (6/17/09), by clicking here.

Bookmark and Share

September 5, 2009

Involuntary Commitment To Mental Health Center Moot; Illinois Supreme Court Reviews Mootness Exceptions

A trial court committed Alfred H.H. to the McFarland Mental Health Center in Illinois. Alfred appealed the commitment order. But he was discharged from McFarland while the appeal was pending, so the Illinois Appellate Court dismissed the appeal because it was moot.

Alfred appealed the dismissal to the Illinois Supreme Court. The supreme court rejected all five of Alfred’s arguments, and agreed the appeal was moot and was properly dismissed. Here is how the Illinois Supreme Court assessed the mootness arguments.

1. Alfred argued that the Illinois Mental Health Code gave him a right to appeal. But the court ruled that the Code only gave Alfred the right to appeal the commitment order “in the same manner as in other civil cases.” Alfred’s appeal, just like any other, was subject to the rules of mootness. “…[M]ootness is a factor that the courts will consider in determining whether it is appropriate to decide a given case.” The supreme court also ruled that there was not a case law exception to the mootness doctrine for commitment cases.

2. The supreme court ruled this case did not fall within the public interest exception to the mootness doctrine. The court agreed that “mental health cases do have the potential to deprive respondents of significant liberties … [but] that does nothing to examine the public nature of the issue presented within this appeal.” Alfred’s case, according to the court, involved the sufficiency of the evidence to commit him, and “[s]ufficiency of the evidence claims are inherently case-specific reviews that do not present the kinds of broad public interest issues” that satisfy this exception to the mootness doctrine.

3. Nor did this case fall within the exception of “capable of repetition yet evading review.” Alfred’s case was fact-specific, not a constitutional or statutory challenge. The court said there was “no clear indication of how a resolution of this [Alfred’s] issue could be of use to respondent [Alfred] in future litigation.”

4. The supreme court also stated that Alfred’s case did not invoke the collateral consequences exception. The court acknowledged that the collateral consequences exception can apply in mental health cases. But in Alfred’s case, the exception did not apply because “there is no collateral consequence that can be identified that could stem solely from the present adjudication. Every collateral consequence that can be identified already existed as a result of respondent’s previous adjudications and felony conviction.”

5. Alfred also argued the court should consider his appeal based on general policy considerations. Alfred claimed a right to appeal “because it is ‘therapeutic to provide procedural justice to mental health respondents.’” The supreme court rejected that argument, stating, “It is not appropriate for this court to create a new exception [to the mootness doctrine] simply because we believe that it may have tangential benefits to respondents in mental health cases.”

The whole opinion, In re Alfred H.H., No. 106616 (5/21/09), is available by clicking here.

Bookmark and Share