May 19, 2010

Incorrectly Coded Notice Of Appeal Sufficient To Give Federal Appellate Court Jurisdiction

Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court’s mandatory electronic filing system, Vince’s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed. Vince’s lawyer identified the notice of appeal with the wrong code.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

The federal appellate court accepted the first notice of appeal because the coding mistake “was an error of form.” The filing was not “so riddled with errors that it cannot fairly be considered a notice of appeal.”

Read the whole case, Vince v. Rock County, Wisconsin, No. 10-1659 (5/3/10), by clicking here.

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May 12, 2010

Dismissal For Want Of Prosecution Appealable After Time For Refiling Expires

The First District Illinois Appellate Court recently stated the rule for when a dismissal for want of prosecution becomes final and appealable.

Our supreme court has recognized that if a plaintiff's action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater … A DWP becomes a final order only when the section 13-217 period for refiling the action expires … Accordingly, a DWP remains an unappealable interlocutory order until plaintiff's option to refile expires.

The whole case, Jackson v. Hooker, No. 1-08-3042, (1/29/10), is here for the clicking.

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May 6, 2010

Introduction Stricken As Argumentative

The Illinois Supreme Court rules require appellant’s merits brief to have an introductory paragraph. The introduction normally is described as the “Nature of the Action.” I often see appellant merits briefs that have long and argumentative “Nature of the Action” sections. The Second District Illinois Appellate Court recently struck one that was just too much. Here’s why:

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings … Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

The lesson is: Resist the urge to argue in the introductory paragraph. Just because you can throw down the gauntlet at that point doesn’t mean you should. The rules do not instruct you to do so. And most important is that your audience is not looking for your argument in the introduction.

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May 5, 2010

Voidness Of Judgment Considered Despite Late Appeal

American Access Casualty Company insured Aaron Hersey. GEICO won a negligence case against Hersey. Trying to satisfy its judgment, GEICO brought a supplemental proceeding to discover the assets of American Access Casualty Company.

The trial court entered a judgment for GEICO against AACC for the amount GEICO won against Hersey. About five months later AACC asked the trial court to vacate the judgment. But the trial court refused. AACC asked again a month later, arguing that GEICO’s judgment was void because (1) AACC’s lawyer was not given notice of the hearing at which the judgment was entered and (2) the judgment was based on a misrepresentati0n. The trial court again refused to vacate the judgment.

AACC appealed, but GEICO asked the appellate court to dismiss it for lack of appellate jurisdiction. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider the merits of AACC’s appeal because neither the request to vacate the judgment nor the appeal were filed within the required 30 days of the judgment.

But the appellate court said it could consider whether the judgment was void. “A void judgment is one that is entered by a court without jurisdiction over the parties or the subject matter or by a court that lacks the inherent power to make or enter the order,” and “… it is well settled that a void order can be attacked at any time.”

So the appellate court took jurisdiction over an appeal that was filed well after the jurisdictional deadline. But even though a void order can be attacked at any time, shouldn’t the court have jurisdiction to do so? In this case, the appellate court ruled that it was okay to file a late appeal to contest the voidness of the judgment. Normally, a late appeal would preclude jurisdiction.

Ultimately, the appellate court affirmed GEICO’s judgment because it was not void. So maybe this is a case of no-blood-no-foul. Read the whole case, Government Employees Insurance Company v. Hersey, No. 1-09-0232 (1/12/10), by clicking here.

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