August 22, 2010

Grandparents’ Appeal Of Dismissal Of Adoption Petition And Severance Order Lacks Jurisdiction. Appeal From Order Striking Response To Foster Parents’ Adoption Petition Allowed

After SG’s parents lost their parental rights, the Hixsons (grandparents) petitioned to adopt the child. Five days later, in a separate case, the Bakers (foster parents) also petitioned to adopt SG. The Bakers also asked the trial court to consolidate the two cases. Over objection by the Hixsons, the cases were consolidated.

Two weeks later, the Illinois Department of Children and Family Services entered the consolidated case and consented to the Bakers attempt to adopt SG. DCFS also asked the trial court to dismiss the Hixsons’ adoption petition. The trial court did so in late September 2009.

The Hixsons wanted to appeal the dismissal of their adoption petition. In early November 2009 the trial court issued a Rule 304(a) finding (no just reason to delay enforcement or appeal of an order that disposes of fewer than all parties and all issues). The Bakers also asked to sever the two cases they previously asked to consolidate.

On December 1st, the trial court entered a judgment severing the two adoption cases and striking the Hixsons’ response to the Bakers’ adoption petition. The judgment also contained a Rule 304(a) finding.

The next day, the Hixsons appealed: (1) the September dismissal of their adoption petition; (2) the December ruling that severed the adoption petitions and struck their response to the Bakers’ petition. The initial fight on appeal was whether the appellate court had jurisdiction. The Hixsons argued they could appeal under Illinois Supreme Court Rule 304(a). The Bakers and DCFS said Rule 304(a) was irrelevant.

Appeal of the September dismissal order.

The Hixsons appealed within 30 days of the Rule 304(a) finding, but more than 30 days after the actual dismissal. So if the dismissal required the Rule 304(a) finding to be appealable, then their appeal was timely. If the September dismissal order was appealable without the 304(a) finding, then the appeal was late and the appellate court did not have jurisdiction.

The answer depended upon whether the two adoption petitions had separate identities despite having been consolidated. The Fourth District Illinois Appellate Court ruled that the petitions had separate identities, meaning the September order was final and immediately (within 30 days) appealable. Here’s what the court said:

The record suggests that, even after consolidation, the two cases continued to have separate identities in the trial court. Besides the filing of all documents in one case, the record contains little evidence the trial court treated the two cases as one single suit …Thus, a Rule 304(a) finding was not required, and the Hixsons had to file their notice of appeal by October 29, 2009. Since they did not, we must dismiss that portion of the appeal for lack of jurisdiction.

Appeal of the December orders severing the petitions and striking the Hixsons’ response.

The Hixsons’ appeal of the order severing the adoption petitions was made under Rule 304(a). But the appellate court dismissed this appeal too because the order severing the petitions was not a final judgment. “The trial court's ruling on the motion to sever did not fix the rights of any parties or terminate any part of the litigation. The granting of the motion to sever was an interlocutory order that did not become final and appealable by the court's Rule 304(a) finding. Thus, we dismiss the appeal as to the trial court's ruling on the motion to sever.”

The appellate court ruled that it had jurisdiction over order striking the Hixsons’ response to the Bakers’ petition. The court said the response to the Bakers’ petition was similar to a petition to intervene in the Bakers’ case, so striking the response was a final order, and thus appealable with the Rule 304(a) finding.

Read the whole case, In re the Adoption of SG, No. 4-09-0912 (5/3/10), by clicking here.

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August 18, 2010

De Novo Review For Appeals Under Illinois Foreclosure Law

The standard of review of an appeal under the Illinois Foreclosure Law is de novo. But “it is foreseeable that in a case in which a trial court has held a full evidentiary hearing on a motion to appoint a receiver, this court could find that an abuse of discretion standard or a manifest weight of the evidence standard would be appropriate to review the lower court’s judgmental decision.”

Bank of America v. 108 N. Retail, No. 1-09-3523 (1st Dist. Illinois Appellate 3/31/10).

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August 17, 2010

$2 Million Punitive Damages Award In Defamation Case Reduced To $81,600 On Appeal

Jerry Slovinski sued James Elliot, the CEO of Slovinski’s former employer, for defamation. Slovinski claimed that disparaging and untrue remarks were made about him by Elliot to one of the company’s suppliers.

A jury awarded Slovinski $81,600 for compensatory damages, and $2 million for punitive damages. The trial court thought the punitive damages verdict was too high, so it remitted it to $1 million. Slovinski appealed the remittitur, but the appellate court lowered the punitive damages verdict even more, to $81,600.

Slovinski appealed to the Illinois Supreme Court. He argued that the original $2 million verdict should stand because neither the trial court nor the appellate court stated specific reasons for lowering the verdict.

But the Illinois Supreme Court disagreed, and affirmed the lowered punitive damages verdict of $81,600. The supreme court ruled that neither the trial court nor the appellate court were required to give specific reasons for lowering the verdict. All that mattered was that the trial court record supported the remittitur. Here’s what the supreme court said: “For purposes of our review, it is irrelevant whether the appellate court articulated with sufficient clarity the reasons it had for reaching its decision. The issue for this court is simply whether the appellate court erred in holding that the circuit court should have reduced the jury's award further.”

In the end, the Illinois Supreme Court ruled that the trial court abused its discretion by lowering the punitive damages verdict to $1 million because there was “no material evidence to support it.” Read the whole opinion, Slovinski v. Elliot, No. 107146 (4/15/10), by clicking here.

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