November 28, 2009

Appeal of Home Foreclosure Late When Filed At Conclusion Of Divorce Case

Elena and Michael Sanfratello were in a disputed divorce case. Michael appealed rulings concerning child support and classification, apportionment, and dissipation of marital assets.
Elena cross-appealed (1) whether certain of Michael’s businesses were marital assets and (2) confirmation of a sale to Michael’s parents of the marital home, which was in foreclosure. The foreclosure action, filed by the bank that held the mortgage, was handled in another court by another judge. Elena made Michael’s parents parties to that action, claiming they and Michael were guilty of fraud in the foreclosure and sale. But Elena did not appeal the order within 30 days. The foreclosure matter then was consolidated into the divorce case.

About a year later, after the divorce case was concluded and Michael appealed, Elena filed her cross-appeal, including an appeal of the foreclosure confirmation. Michael’s parents argued that Elena’s cross-appeal should be dismissed for lack of appellate jurisdiction. They claimed that the confirmation order was final and appealable when it was issued, and that Elena’s appeal should have been filed within 30 days of that time.

Elena argued that an appeal of the foreclosure confirmation was not proper until after a final order in the divorce case was entered. She asserted: “… because the December 5, 2005 order [ending the divorce case] addressed both the foreclosure and the dissolution cases, the [earlier foreclosure confirmation] order did not dispose of all the rights and liabilities of all of the parties involved.” Elena concluded the foreclosure confirmation was not appealable until after the divorce case was final.

But the First District Illinois Appellate Court agreed with Michael’s parents, and dismissed Elena’s appeal. The court ruled that the foreclosure action was an independent case, and as an unsuccessful party Elena should have appealed the confirmation order within 30 days. Here’s how the court explained its ruling.

Where, as here, consolidation of two actions is for purposes of convenience and economy only, the causes do not merge into a single suit; rather, they retain their distinct identities. Elena's position fails to take into account that her challenge to the foreclosure sale was independent of any appeal Joseph and Sharon [Michael’s parents] might pursue in the dissolution action. Elena's challenge in the foreclosure sale was not in the nature of a cross-appeal, a notice dependent on the appeal of another party. Elena was not a successful party in the foreclosure action. If she sought to challenge the foreclosure ruling, she was required to file a notice of appeal in the first instance. Accordingly … Elena's appeal in the foreclosure action was untimely where it was filed more than 30 days after the foreclosure order was entered.

Read the whole opinion, IRMO Sanfratello, Nos. 1-07-1438, 1-07-1473 (7/27/09), by clicking here.

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November 25, 2009

State Courts At Tipping Point Of Dysfunction?

The New York Times posted an editorial today agreeing with Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall that “because of budget cuts in tough economic times, state courts across the country stand at “‘the tipping point of dysfunction.’” The piece explains the results of budget cuts in different state courts, and concludes: “[A]t some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.”

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November 25, 2009

Request To Modify Language Of Judgment Does Not Extend Time To File Appeal

Cheryl Heiden claimed Craig Ottinger was her daughter’s father. So Cheryl sued Craig under the Illinois Parentage Act, and asked for support payments from Craig. A DNA test of Craig’s blood excluded him as father. But Cheryl claimed Craig’s vial of blood was mishandled, so she sued the DNA Diagnostics Center, the company that agreed to do the test.

DNA Diagnostics asked for, and received, summary judgment on Cheryl’s complaint. Within the 30-day deadline, Cheryl filed a “Motion to Reconsider Court Order of April 13, 2007, and For Clarification of said Order.” The trial court denied the motion, and Cheryl appealed within 30 days of that order.

But Diagnostics asserted that Cheryl’s appeal should be dismissed because it was filed more than 30 days after the summary judgment was entered by the trial court. Cheryl’s Motion to Reconsider, Diagnostics argued, was not a valid post-judgment motion, so it did not extend the time for her to file the appeal.

The Second District Illinois Appellate Court agreed with Diagnostics. The court ruled that Cheryl’s motion only asked for modification of the language of the judgment, but not an actual modification of the judgment. That kind of motion did not extend the time for Cheryl to file her appeal. Here’s how the court explained it:

Plaintiffs’ appeal was untimely because they did not file a postjudgment motion that extended the time for filing their notice of appeal under Rule 303(a)(1). A postjudgment motion extends the time for filing a notice of appeal under Rule 303(a)(1) only when it seeks rehearing, retrial, modification or vacation of the judgment, or other similar relief … For purposes of Rule 303(a)(1), a motion for modification of the judgment must challenge the judgment, not simply request modification of the language of the judgment … Plaintiffs’ motion did not request a rehearing or substantive reconsideration regarding the summary judgment and did not provide any basis for reconsideration of the summary judgment, and it did not extend the time for appeal under Rule 303(a)(1), Plaintiffs’ appeal was thus untimely, and we must dismiss it.

This was a split decision. Read the whole opinion, Heiden v. DNA Diagnostics Center, No. 2-07-0620 (11/9/09), by clicking here.

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November 21, 2009

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that “aims to protect defendants from ‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government.”) The trial court denied the request to dismiss the case, so the Browns and the Furkins appealed.

The Browns and the Furkins argued that the Citizen Participation Act expressly allowed an appeal “from a trial court order denying” a motion to dismiss. But the Fifth District Illinois Appellate Court refused to recognize that part of the statute, and dismissed the appeal for lack of appellate jurisdiction. The appellate court ruled that the legislative attempt to make the order immediately appealable conflicted with the Illinois Constitution in two respects:

• First, the constitution allows only final orders to be appealed, and permits only the Illinois Supreme Court to make rules for appeal of interlocutory orders.
• Second, the legislature violated the separation-of-powers clause of the constitution by attempting to exercise a power reserved to the supreme court.

Here is the court’s explanation:

If … we were to interpret the language of the [Citizen Participation] Act as the defendants request … we would encounter a constitutional conflict. The Illinois Constitution … grants the right to appeal from a final judgment only … However, it gives the right to make rules governing interlocutory appeals exclusively to the supreme court … Thus, a statute that claims to give a right to an interlocutory appeal not covered by supreme court rules or to give the appellate court jurisdiction over that appeal would violate article VI, section 6, of the constitution. Such a statute also would violate the separation-of-powers clause in article II, section 1, of the constitution … [No branch of the government may exercise powers reserved to another branch.]

Read the whole case, Mund v. Brown, No. 5-08-0178 (8/21/09), by clicking here.

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November 15, 2009

De Novo Standard Of Review For Petition To Vacate Dismissal When Trial Court Does Not Take Testimony

Christopher Mills sued Ryan McDuffa. Mills claimed he was injured when his car was rear ended by McDuffa. Two of Mills’s attorneys withdrew, and when Mills did not appear for a court hearing his case was dismissed for want of prosecution.

About four months later, a new lawyer for Mills filed a petition under Illinois Rule of Civil Procedure 2-1401 (relief from judgments more than 30 days old) to vacate the dismissal order. The trial court read the parties’ briefs and heard oral argument, but did not take live testimony from witnesses. The court then granted Mills’s petition.

McDuffa appealed. Their conclusions were opposite, but both McDuffa and Mills suggested that the standard of review was abuse-of-discretion. Nevertheless, the Second District Illinois Appellate Court ruled that the standard of review was de novo. The trial court’s decision to vacate the dismissal received no discretion because “the parties’ filings with the [trial] court were functionally equivalent to cross-motions for summary judgment, and the court’s disposition of Mills’s section 2-1401 petition was functionally equivalent to a grant of summary judgment to Mills. We review grants of summary judgment de novo.”

In the end, Mills’s order vacating the dismissal was reversed and sent back to the trial court for an evidentiary hearing. The whole case, Mills v McDuffa, No. 2-08-0305 (7/21/09), is available by clicking here.

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November 11, 2009

Unfounded Motion To Reconsider Judgment Extends Time To File Appeal

James Bertell was involuntarily committed to the Rockford Memorial Hospital. James sued the hospital, claiming its petition for involuntary commitment was late. The circuit court disagreed and dismissed James’s complaint. After the trial court denied James’s motion for reconsideration of the dismissal, James appealed within the 30-day deadline.

Nevertheless, the hospital asked the appellate court to dismiss the appeal for lack of appellate jurisdiction, asserting that James’s notice of appeal was filed too late. The hospital argued that James’s motion for reconsideration did not extend the time to file the appeal because the motion was “invalid and frivolous.” But the Second District Illinois Appellate Court disagreed because the rule that extends the time to file an appeal did not make an exception for unfounded reconsideration motions. Here’s the way the court explained it:

Plaintiff complied with the rule [Illinois Supreme Court Rule 303(a)(1), allowing an appeal to be filed within 30 days after a ruling on a reconsideration motion] and the statute [Illinois Civil Procedure Rule 2-1203(a), applying the extended deadline to reconsideration motions made after a bench trial]. He filed his notice of appeal within 30 days after the entry of the order denying his motion to reconsider. He filed the motion, which was directed and sought relief against the judgment dismissing his complaint, within 30 days after the entry of the judgment. Therefore, given the plain language of Rule 303(a)(1) and section 2-1203(a), we conclude that we have jurisdiction over plaintiff's appeal.

Defendants' request that we ignore plaintiff's postjudgment motion because it was frivolous or brought for an improper purpose finds no support in the rule or the statute. Defendants ask us to create an exception to section 2- 1203(a)'s definition of a postjudgment motion or perhaps to Rule 303(a)(1)'s language extending the time in which to file a notice of appeal. We may not read in such exceptions … Nothing makes our jurisdiction depend on the soundness of a postjudgment motion or the motivation for its filing.

Get the whole opinion, Bertell v. Rockford Memorial Hospital, No. 2-08-0652 (7/22/09), by clicking here.

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November 9, 2009

Permanent Disgorgement And Removal From Company Board Not Appealable Interlocutory Orders

Rick Santella fought with family members over control of Food Groupie, Inc., a closely held family corporation. Santella, and Mary and William Kolton were co-owners of the company. Santella sued the Koltons after they gave themselves bonuses and commissions, and stated their intention to close Food Groupie and to open a similar business in which Santella would not be involved.

Santella’s lawsuit asked for return of the bonus ($ 144,019) to Food Groupie, and removal of the Koltons as directors and officers of the company. After the trial court granted both of Santella’s requests, the Koltons appealed under Illinois Supreme Court Rule 307(a)(1) (interlocutory appeal allowed from a trial court order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”)

Santella asked the First District Illinois Appellate Court to dismiss the appeal. He argued, and the appellate court agreed, that removing the Koltons as directors and officers did not require them to do anything, so those orders were not injunctions that could be appealed under Rule 307(a)(1).

But ordering the Koltons to return the money they took as commissions and bonuses was an injunction because the Koltons were required to do something − give back the money. However, the analysis did not end there. The appellate court ruled that the “give back” order was permanent, not interlocutory. And because Rule 307(a)(1) only governs interlocutory orders, the Koltons’s appeal had to be dismissed. The appellate court identified three reasons the order was permanent:

The court's order requiring defendants to pay $144,019 back to the corporation was a permanent order not subject to review under Rule 307(a)(1). The permanency of the order is evidenced by the fact that it altered the status quo, concluded the rights of the parties, and was not limited in duration.

So in the end, the Koltons’s entire interlocutory appeal was dismissed. The whole opinion, Santella v. Kolton, No. 1-08-1329, 1357, 1847 (7/31/09), is available here.

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November 3, 2009

Conditional Order Renders Appeal In Attorney Fee Dispute Moot

Clyde Engle was locked in a battle over payment of attorney fees to Foley and Lardner. Foley represented Engle in federal court litigation involving an insurance liquidation. Engle’s unpaid bill was for more than $1.8 million.

Engle agreed to pay Foley over time, and pledged his interest in bank stock as security. Foley thus took possession of some of the stock. Then Engle sued Foley and asked for a preliminary injunction preventing Foley from selling the stock. The trial court first denied Engle’s request. About two weeks later, the trial court issued a temporary restraining order prohibiting Foley from selling the stock for seven days. The court stated it would issue a preliminary injunction to that end if Engle would post a bond for the amount he owed as surety. That same day, Engle appealed the original denial of a preliminary injunction.

But Engle did not post the bond. Foley argued, and the First District Illinois Appellate Court agreed, that Engle’s appeal was moot because the trial court gave him the opportunity to get what he asked for − an injunction preventing Foley from selling the bank stock. “Having secured what they [Engle and his wife] basically sought, their appeal must be dismissed.”

Engle argued that the trial court lost jurisdiction before entering the second order because he filed his notice of appeal first. But the appellate court rejected that argument because the order was not time-stamped, and Engle could not prove he filed before the trial court ruled. “It is quite conceivable that the court entered this order before Engle and Siobhan [wife] filed their notices of appeal. Engle never cited to anything in the record, such as a transcript or other material that would prove up his claim; thus, without more, we cannot accept it.”

Read the whole opinion, Engle v. Foley and Lardner, Nos. 1-08-2761, 1-08-2762 (7/10/09), by clicking here.

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November 1, 2009

Appellate Jurisdiction Okay Over Judge Substitution Motion Not Identified In Notice Of Appeal

The O’Briens were involved in a divorce case. John O’Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John’s request was heard by a second judge, who denied it because of a lack of evidence of prejudice.

The case went back to the first judge, held a trial on the divorce petition. The court ruled that John should make child support and maintenance payments to Lisa. After an unsuccessful reconsideration motion, John appealed.

John wanted to contest the denial of his request for substitution. But John’s notice of appeal only stated he was appealing from the denial of his reconsideration motion “and all prior orders of court culminating therein.” The issue was whether that notice of appeal was sufficient to give the appellate court jurisdiction to consider John’s request for another judge.

The Second District Illinois Appellate Court ruled that John’s notice of appeal gave the court jurisdiction. The court found that the denial of a request for substitution of judge was a step in the “procedural progression” to the ultimate judgment. The court stated: “… [I]f the motion to substitute were improperly denied, then all subsequent orders would be void.”

The court acknowledged a difference with the First District Illinois Appellate Court in the application of the test. Read the whole case, including an explanation of the conflict in applying the rule, IRMO O’Brien, No. 2-07-0264 (7/14/09), by clicking here.

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