October 25, 2009

Appeal Before Ruling On Right To Tax Deed Premature

Dennis Ballinger owned a communications tower that was erected on property in Hancock County, Illinois. He filed a petition to obtain a tax deed for the property. Pettit Land, LLC. disputed Ballinger’s petition. Pettit claimed it owned the land, but not the tower, and that it properly paid taxes for the land.

Pettit asked the court to deny Ballinger’s request for the tax deed. After a hearing on Pettit’s request, the trial court ruled in Pettit’s favor and stated: “…[I]f petitioner [Ballinger] proceeded forward to obtain a tax deed, he would only receive rights in the improvements on the site (the communications tower) and would not receive rights to the underlying ground.”

Ballinger asked the trial court to reconsider the ruling. The court denied Ballinger’s request, and ruled that its original order and the order denying reconsideration were final and appealable. So Ballinger appealed.

The Third District Illinois Appellate Court dismissed the appeal. Because the orders did not conclude the proceeding for a tax deed, they were neither final nor appealable. Here’s the way the appellate court saw it.

In the present case, the issue on appeal involves only the trial court’s ruling on a motion brought during the course of a tax deed proceeding. This appeal does not involve the trial court’s ultimate ruling granting or denying the tax deed or declaring a sale in error … Thus, despite the trial court’s statement to the contrary, the orders in question were not “final judgments,” as specified in [Illinois] Supreme Court Rule 301, which would provide for an appeal as a matter of right.

Read the whole opinion, Ballinger v. Pettit Land, No. 3-09-0134 (10/15/09), by clicking here.

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October 23, 2009

Reconsideration Motion Untimely So Illinois Supreme Court Dismisses Appeal

The Illinois Supreme Court recently reversed the appellate court and dismissed Jennifer Keener’s appeal. Jennifer sued the City of Herrin on behalf of Chelsea Keener’s estate. Chelsea had been taken into custody by Herrin police for unlawful consumption of alcohol. After the police let Chelsea leave, she was struck by an automobile and killed.

Herrin asked for, and received, a dismissal of Jennifer’s amended complaint. But the court clerk did not mail a copy of the dismissal order to Jennifer’s lawyer. Apparently unaware of the dismissal, seven months later, Jennifer’s lawyer filed a response to Herrin’s motion to dismiss.

Four months after that, the case was heard on Herrin’s request for a status conference. At the status conference, the trial court stated its intention to reconsider the dismissal “upon written motion to be submitted” by Jennifer. The trial court ultimately denied Jennifer’s motion to reconsider.

Herrin then objected to the trial court’s jurisdiction even to accept Jennifer’s request for reconsideration. Because Jennifer’s reconsideration request came more than 30 days after the case was dismissed, Herrin argued that the trial court no longer had the power to rule on the matter. But the trial court allowed its ruling to stand. Jennifer appealed within 30 days of the trial court’s ruling on Herrin’s objection.

The ruling in the supreme court turned on whether Jennifer’s request was a “motion for reconsideration” of the judgment (which must be filed within 30 days), or a petition under Illinois Civil Procedure Rule 2-1401 (relief from final orders and judgments after 30 days). The Illinois Supreme Court ruled that Jennifer’s motion was for reconsideration of the judgment. The trial court did not have jurisdiction to rule because the motion was made more than 30 days after the dismissal. And because the reconsideration motion was not timely, it did not extend the time for Jennifer to appeal. She missed the 30-day deadline for filing a notice of appeal, so the supreme court dismissed the appeal.

This opinion reiterates the rule that attorneys have an obligation to monitor their cases. A court clerk’s failure to mail notice of a dismissal does not absolve an attorney from missing a deadline to ask for reconsideration or to appeal. Read our summary of the appellate court opinion, which we reported on last December, by clicking here. Get the whole Illinois Supreme Court opinion, Keener v. City of Herrin, No. 107658 (10/8/09), by clicking here.

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October 8, 2009

End-Of-Paragraph Fact Cites Comply With Illinois Supreme Court Rules

Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city.

The record citations in the fact section of the city’s appellate brief were placed at the end of each paragraph, rather than after each sentence. Charles asked the appellate court to strike the facts in the city’s brief and the arguments that relied on those facts. He argued that the city’s method of record citation violated Illinois Supreme Court Rule 341(h)(6), which requires an accurate and fully cited fact section.

The Fourth District Illinois Appellate Court denied Charles’s request and allowed the city’s brief to stand. The court explained:

The city's brief contains a cite to the record only at the end of each paragraph of the statement of facts and lacks cites entirely in two paragraphs of its argument section. Supreme Court Rule [341] requires a "[s]tatement of [f]acts * * * with appropriate reference to the pages of the record on appeal." … [T]he city provided the cites at the end of each paragraph of facts and these record cites support the facts stated throughout the paragraph and correspond to the information contained on cited page of the record. The rule does not require the brief to contain a cite at the end of each sentence. Moreover, " '[w]here violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted.' … We deny the motion to strike.

Charles lost that battle but won the war. The judgment for the city was reversed, and the case was remanded back to the trial court. Read the whole case, Gaston v. City of Danville, No 4-08-0803 (7/17/09), by clicking here.

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October 5, 2009

No Deference For Trial Court In Review Of Insurer’s Declaratory Judgment Case

Pekin Insurance Company and Hallmark Homes disputed insurance coverage for a personal injury lawsuit filed by Bremer, the employee of another contractor at a construction site. Bremer sued Hallmark and MC Builders. Hallmark was named as an additional insured on MC’s insurance policy with Pekin.

Hallmark asked Pekin to defend Hallmark in Bremer’s case. Pekin refused, sued Hallmark, and asked the trial court for a judgment declaring that Pekin did not have to defend the case. Hallmark counterclaimed, seeking the opposite conclusion. Pekin asked for summary judgment, but the trial court instead ruled the insurance company had a duty to defend Hallmark in Bremer’s lawsuit. Pekin appealed.

The parties disputed the appellate standard of review. Hallmark argued that an “abuse of discretion” standard applied to rulings on declaratory judgment motions. Pekin asserted that the “law is unclear on this point, with different cases stating that a declaratory judgment received review ranging from the deferential standard of “abuse of discretion” to the nondeferential de novo standard.”

The Second District Illinois Appellate Court agreed that “Pekin is correct that the case law regarding the proper standard of review for declaratory judgments is full of contradictory statements and is ‘disturbingly rich in … misapplications of sound precedent.’”

The appellate court acknowledged that trial courts get greater deference on matters that are within their “special competence” — e.g., admissibility of evidence, credibility determinations, and the weighing of conflicting evidence. But the facts concerning the application of the insurance policy to Hallmark were not disputed. The appellate court was left with a question of law, for which the trial court got no deference. Here’s how the appellate court explained it:

Here, the sole basis for the trial court's declaratory judgment was the legal arguments raised by the parties in the course of supporting or responding to Pekin's motion for summary judgment. No factual determinations were involved. Accordingly, we review the trial court's decision de novo.

In the end, the appellate court ruled that Pekin had a duty to defend and affirmed the judgment in favor of Hallmark. Read the whole case, Pekin Insurance Company v. Hallmark Homes, No. 2-08-0380 (6/23/09), by clicking here.

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October 3, 2009

Missing Trial Court Order Sinks Parent’s Appeal Of Parental Termination Ruling

Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child.

The record on appeal contained Hampton’s motion for the independent exam, but not a resulting court order. The Fourth District Illinois Appellate Court rejected Hampton’s argument of error by the trial court because there was no way to establish from the record how, if at all, the trial court ruled. Hampton thus failed her obligation to provide a complete record from which the appellate court could review the trial court’s action. Here’s how the appellate court explained it:

“To determine whether a claimed error occurred, a court of review must have before it a record of the proceedings below." … "The appellant [Hampton] bears the burden to present a sufficiently complete record, and this court will resolve any doubts that arise from an incomplete record against the appellant." … Further, "[a] movant [Hampton] has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal." …

“Here, the record does not contain a ruling by the trial court on respondent's [Hampton] motion. It is unclear whether the record is simply incomplete, in that the court ruled on the motion but the ruling is absent, or whether respondent failed in her duty to bring her motion to the court's attention and no ruling was ever obtained. In either event, we find the court committed no error.”

Get the whole case, In re M.R., No. 4-09-0110 (7/20/09), by clicking here.

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