July 30, 2011

Order Dismissing Post-Dissolution Custody Petition Immediately Appealable

Michael and Rose A’Hearn divorced in 2006. But their lawsuit did not end there. About two years later, Michael filed for two rules to show cause, complaining that Rose was interfering with Michael’s visitation and that she was engaging in immoral behavior. After mediation, Michael and Rose agreed on communication with and visitation of the child, but not on custody.

A month later, Michael filed a petition to modify custody. But the trial court later barred Michael’s witnesses because he had not disclosed them timely. Without witnesses, Michael’s custody petition was dismissed. Rose then filed a petition to extend maintenance and family support. Rose’s petitions were pending when Michael appealed the dismissal of his custody petition.

The first question was whether the appellate court had jurisdiction to consider Michael’s appeal, even though Rose’s petitions still were pending. The Third District Illinois Appellate Court ruled that it had jurisdiction because Michael’s custody petition was a new action, making its dismissal final and appealable.

The appellate court was concerned that the best interests of the child would not be served by delaying the custody appeal pending resolution of Rose’s other disputes. Here is how the court viewed the problem:

Postdissolution proceedings may well continue a decade or more after the divorce decree is entered … Overall, it does not serve the interests of justice where one party can defeat appellate jurisdiction, especially on issues of child custody, simply by filing a separate, completely unrelated petition. The case sub judice is a perfect example. Rose, having won at the trial level on a custody issue, could simply defeat appellate jurisdiction by filing her petition to extend maintenance which, on its face, has nothing to do with a modification of child custody.
This case continues the debate over whether individual post-dissolution petitions are appealable when they are decided, or whether all pending post-dissolution matters must be decided before any of them are appealable. Read the entire case, including the court’s analysis of the split among Illinois appellate districts, IRMO A’Hearn, No. 3-20-0831 (3/21/11), by clicking here.

Bookmark and Share

July 24, 2011

Order Denying Homicide Witnesses’ Request To Postpone Grand Jury Subpoena Not Final And Appealable

Sheila and Marissa Brown were witnesses to a homicide. In mid-December 2009 they were subpoenaed to testify to a grand jury just six days later. But the Browns said they did not have time to effectively communicate with a lawyer before the grand jury proceeding, and that they had previously made plans to travel out of town. So two days before they were scheduled to testify they asked the trial court to postpone their appearances until after the new year.

The trial court denied the Browns’ request because they did not present “an urgent matter.” The Browns appealed the next day. When they did not appear for their testimony to the grand jury, the State filed a petition to hold the Browns in contempt. The Browns asked the trial court to stay State’s contempt request while the appeal was pending. The trial court refused.

The Second District Illinois Appellate Court dismissed the Browns’ appeal for lack of jurisdiction. The court ruled that “An order denying a motion to continue is not a final and appealable order.” The existence of the contempt proceedings did not matter, the appellate court ruled, because the Browns appealed before an appealable contempt order was entered.

Read the whole case, In re John Doe Investigation, 2011 IL App (2d) 091355 (7/11/11), by clicking here.

Bookmark and Share

July 9, 2011

Defamation Plaintiff’s Punitive Damages Verdict Reviewed By Manifest-Weight-Of-The Evidence

Wallace Leyshon was fired from his job for cause by Diehl Controls North America. Leyshon sued Diehl for, among other things, defamation. A jury awarded Leyshon $2 million in compensatory damages and $10 million in punitive damages. Diehl asked the trial court to lower the punitive damages verdict, which it did, to $6 million.

Still unhappy, Diehl appealed. One of Diehl’s positions on appeal was that the punitive damages award was excessive. The question was whether Leyshon had sufficient facts at trial to support the punitive damages verdict. The First District Illinois Appellate Court first considered the standard of review: “As the jury’s determination of the amount of punitive damages is predominately a factual issue, the [appellate] court will not reverse the award unless it is against the manifest weight of the evidence.”

In this case, there was evidence that Diehl’s actions were premeditated. So the appellate court affirmed the punitive damages award. Read the whole case, Leyshon v. Diehl Controls North America, No. 1-09-1848 (12/27/10).

Bookmark and Share

July 2, 2011

Illinois Adopts New Public-Domain Citation Method

Illinois has adopted public-domain citation for all cases filed on or after July 1, 2011. The Illinois Supreme Court has amended its Rule 6, which now also requires pinpoint citation to an assigned paragraph number. Your memorandum or brief may contain a citation to West’s North Eastern Reporter or Illinois Decisions, but those citations will be neither required nor alone sufficient. The official reporter — which we’re accustomed to citing as “Ill. 2d” or “Ill. App. 3d” — is going extinct for cases filed after July 1st.

So what’s a Westlaw researcher to do? A Westlaw telephone researcher reported the company is working on paginating in accord with the public domain versions. No word yet on when the new pagination will be available on Westlaw.

According to the revised Rule 6 comments, here’s how the new supreme court cite should look: People v. Doe, 2011 IL 10234. A pinpoint cite to an appellate court opinion should look like this: People v. Doe, 2011 IL App (1st) 101234, ¶ 15. The “1st” parenthetical refers to the First District Appellate Court, so newly filed appellate opinions will require reference to one of the five appellate court districts. (I wonder why. The Illinois appellate courts are a unified system. Each opinion, no matter which district issues it, should have equal precedential value.)

Here’s a link to Amended Rule 6.

Bookmark and Share