March 27, 2011

Fee Request More Than 30 Days After Final Order Doomed For Lack Of Jurisdiction

This posting is not strictly about appellate practice, but it’s worthwhile to read here because it answers the question of how long you have after a final order is entered to ask the trial court for attorney fees. And how long do you have to request fees after the trial court allows an interlocutory appeal? These are questions trial attorneys ask me a lot.

Timothy and Michael Herlehy felt they were shortchanged in their great-aunt’s trust. When she died, the Herlehys sued the trustee, First National Bank of LaGrange, and five charities that were residuary beneficiaries of the trust. The claim against LaGrange Bank was for breach of fiduciary duty in administering the trust. The Herlehys felt the charities received more money than they were entitled to, so the claim against the charities was for unjust enrichment.

The trial court dismissed the complaint against LaGrange Bank because it did not have a duty to change the trust in keeping with the Herlehys’ wishes. After it won, the bank asked for an award of its attorney fees, but the trial court denied that request because, it said, it did not have jurisdiction to consider the question.

The bank appealed the trial court’s ruling that it did not have jurisdiction to consider the bank’s request for its attorney fees. But the First District Illinois Appellate Court affirmed the ruling, agreeing that the fee request came too late. It was too late because it was filed more than 30 days after the dismissal became final and appealable.

The appellate court ruled that LaGrange’s fee request was not a post-trial motion, and was not collateral or incidental to the judgment, any one of which could be made more than 30 days after a final order. The appellate court ruled the bank’s judgment became final when the trial court made a finding under Illinois Supreme Court Rule 304(a) [allowing an appeal before all claims against all parties are determined]. So the fee request should have been made within 30 days of the Rule 304(a) finding.

In any event, the bank’s and the charities’ judgments were affirmed. Click here to read the whole case, Herlehy v. Marie V. Bistersky Trust, Nos. 1-09-0038, 1-09-1892, 1-09-3295, 1-09-3431, 1-10-0070, 1-10-0071 (12/23/10).

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March 23, 2011

Illinois Supreme Court Moots Commitment Appeal Because No “Conflict Or Disarray” In Law

A trial court ruled Benjamin Hernandez was a sexually violent person. Before he could be released from prison, the Illinois Sexually Violent Commitment Act required an outpatient facility to write a conditional release plan. The court ordered the plan to be written, but two years later, it still had not been prepared.

The trial court then ordered that Hernandez “is to be placed on conditional release.” The court also ordered a conditional release plan to be filed within three months.

The State appealed, but filed its notice of appeal before the conditional release plan was filed and before the trial court made a written order of releasing Hernandez. The plan later was accepted by the trial court and Hernandez was released from custody.

But about 20 months later, before the case was considered by the Illinois Supreme Court, Hernandez was returned to the State’s custody for violation of the conditional release plan. He actually was back in custody when the appellate court considered the case, but no one informed the court in briefs or oral argument. So the first question in the supreme court was whether the State’s appeal was moot.

Both parties agreed the appeal was moot because the State had gotten what it wanted: Hernandez’s return to custody. The legal question was whether the public interest exception to the mootness doctrine applied. The supreme court ruled that the exception did not apply in this case because there was no “conflict or disarray” in the law that governs when an appeal from a conditional release under the Sexually violent Commitment Act may be taken.

The supreme court gave two reasons for why there was no “conflict or disarray.”

1. Because the appellate court ruled after Hernandez was back in the State’s custody, the appellate court’s ruling also was moot. And because it was moot, the supreme court vacated the appellate court’s ruling. There was no “conflict or disarray” because there really was no appellate court ruling at all.

2. In addition, the supreme court ruled that the question of the correct time to appeal a ruling under the Act was a question of first impression. A question of first impression, the supreme court said, could not be the basis for “conflict or disarray.”

The State also argued that dismissing its appeal would leave the State not knowing the right time to appeal from a conditional release order under the Act – when the trial court states it will release the offender, or only after a conditional release plan is accepted by the trial court. The supreme court rejected that argument because the State had the option of filing more than one notice of appeal. “… [A]ny time a party is genuinely confused about which of a court’s orders is the final order, it may always protect itself by filing multiple notices of appeal.”

The Illinois Supreme Court dismissed the appeal and vacated the appellate court’s ruling. Read the whole case, In re Commitment of Hernandez, No. 108824 (11/18/10), by clicking here.

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March 19, 2011

Injured Officer’s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

Pritza then appealed from the dismissal of his original declaratory judgment case and from the summary judgment in favor of IMLRMA on the amended complaint. IMLRMA argued that the appellate court did not have jurisdiction to consider the dismissal of Pritza’s first complaint for uninsured coverage. The First District Illinois Appellate Court agreed for two reasons:

1. Pritza waived the uninsured motorist claim by not realleging it in his amended complaint. “Allegations in a former complaint, not incorporated in the final amended complaint, are deemed waived. Thus, when a party files such an amended complaint, he thereby waives any objection to the trial court's ruling on the former complaint.”

2. Pritza’s appeal of the uninsured motorist claim was too late because a denial of a declaratory judgment must be filed within 30 days.
“… [H]ere the court's judgment order of October 2, 2008, fixed absolutely the rights of plaintiff and defendants on plaintiff's claim for declaratory judgment for uninsured motorist coverage. Consequently, if plaintiff wished to appeal that judgment, he was required to do so within 30 days … The fact that plaintiff was allowed leave and amended his complaint, and that there was further briefing on another claim for declaratory judgment based on underinsured motorist coverage, avails plaintiff nothing.”

In the end, the appellate court agreed that IMLRMA did not have to provide underinsured coverage. The lesson here for practitioners is: Unless you intend to waive it, your amended complaint must reallege the dismissed cause action, or at least refer to it. And you cannot wait until the end of your case to appeal from a dismissal of a declaratory judgment action.

Read the whole case, Pritza v. Village of Lansing, 1-10-0100 (11/24/10), by clicking here.

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March 12, 2011

Brief Stricken In False Claim Act Appeal Because Of Flagrant Violation Of Word-Count Certification

This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court.

The opinion grew from a summary judgment given to Scott Memorial in a False Claims Act case. Abner appealed the summary judgment. As required by Federal Rule of Appellate Procedure 32, her lawyer signed a certification that her brief was under the 14,000 word limit. In fact, the brief had more than 18,000 words.

In response to the rule to show cause, Abner’s lawyer conceded his brief was too long. He said he inadvertently misread the rule, and did not include everything in the word count that he should have. But the appellate court ruled that Rule 32 is not ambiguous, “hence [there was] no room for misinterpreting the rule.”

After his incorrect affidavit was discovered, Abner’s lawyer asked for leave to file a brief in excess of the word limit. The appellate court rejected that request because it “advance[d] no persuasive grounds for allowing an oversized brief to be filed, and so the brief is stricken.”

The appellate court ruled the appeal was meritless, and summarily affirmed the summary judgment. “To allow time for the appellants [Abner] to file a compliant brief and the appellees [Scott Memorial] to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.”

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March 5, 2011

Failure To File Written Opposition Not A Basis For Waiver

Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic’s lien had priority over Parkway’s mortgage.

Parkway asked the trial court for judgment on Beta’s counterclaim. Beta’s brief in opposition to the motion was late by one day, so the court struck it. The trial court then granted Parkway judgment on the pleadings on Beta’s counterclaim.

Beta appealed, but Parkway argued that Beta waived an objection to Parkway’s request for judgment. Parkway’s theory was that the waiver resulted from Beta’s failure to file a written objection.

The First District Illinois Appellate Court ruled there was no waiver. Beta’s opposition memorandum was stricken from the record, but that did not mean Beta did not preserve its objection to Parkway’s request for judgment. Here is how the court explained it: “[I]t is not the case that Beta failed to object to Parkway's motion. Rather, it did object but its objection was stricken as untimely … [W]e find Beta's failure to file a response within the time allowed for that response served to waive its right to file that response, but not its objection to or right to contest the motion.”

Beta won the waiver argument, but lost the appeal. The appellate court affirmed Parkway’s judgment on the pleadings. Read the whole case, Parkway Bank and Trust v. Meseljevic, 1-09-3396 (12/7/10), by clicking here.

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