August 26, 2011

Denial Of Medical Clinic’s Request To Talk To Non-Defendant Employees A Proper Interlocutory Appeal

Leon Aylward claimed his doctor, Michael Settecase, and the medical clinic that employed him, failed to timely diagnose Aylward’s lung cancer. After Aylward sued them for malpractice, the clinic asked the trial court for permission to talk to other clinic employees who had been involved with Aylward’s treatment, but had not been sued. The clinic argued it should be allowed to have private conversations with the employees because Aylward could sue them later, and as defendants the clinic’s lawyers could talk to them privately.

The trial court denied the request, but certified the question to allow an immediate appeal. The appellate court accepted the immediate appeal, but Aylward asked for it to be dismissed. He argued that it was not a proper interlocutory appeal because it called for an advisory opinion to a hypothetical question – i.e., it was hypothetical that the employees would be sued.

The First District Illinois Appellate Court disagreed because, “Answering this question will have an immediate effect upon the discovery process by determining whether MPG [clinic] is permitted to represent the MPG employees, and thus, its resolution may materially advance the ultimate termination of the litigation.”

In the end, the appellate court ruled the clinic was not permitted to have private conversations with the employees. Read the whole opinion, Aylward v. Settecase, No. 1-10-1939 (4/29/11), by clicking here.

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August 24, 2011

Interest On Taxpayers’ Property Valuation Judgment Appealable After Earlier-Filed Notice Of Appeal

Three corporate taxpayers disputed the amount of property taxes they owed Cook County, Illinois. So they sued the county collector for refunds plus interest. The taxpayers settled the property valuation part of their disputes, but left the interest issues (power to award, rate, and period the interest accumulated) for the trial court to decide. The trial court awarded the taxpayers interest at a favorable rate and period.

The Collector appealed before the trial court decided the interest rate to be applied to two of the property valuation judgments. The first question was whether the trial court had jurisdiction to award interest even though the Collector already appealed.

The general rule is that a trial court loses jurisdiction over a case as soon as a notice of appeal is filed. The chief exception to the rule is that a trial court still can issue orders that are collateral to the judgment. In this case, the Illinois Supreme Court ruled that the interest awards were collateral to the valuation judgments, so the trial court kept jurisdiction to award interest. Here’s how the supreme court explained it:

This award of judgment interest was not part of the judgment itself, but incidental thereto, and imposed on a specific sum contained in the underlying orders with a rate of interest set forth in the Code of Civil Procedure. Interest on the fixed judgment amounts simply allowed for the preservation of the economic value of the awards while the matter was stayed pending appeal. The judgment interest resulted from the stay requested by the collector, and like the stay order, it did not affect or alter the issue from which the collector filed her notices of appeal on August 13, 2007. Accordingly, we find the circuit court retained jurisdiction to enter the judgment interest awards on behalf of SBC and Newcastle [two of the taxpayers] after the notices of appeal were filed.

Having filed her notice of appeal before two of the interest awards were made, there also was a question of whether the appellate court had jurisdiction to consider those awards. The Collector had not filed a second notice of appeal nor amended her existing notice to include those awards. The Collector argued there still was appellate jurisdiction because she identified the questions in her docketing statement, the issues were fully briefed, and the taxpayers were not prejudiced.

No matter. The Illinois Supreme Court ruled there was no appellate jurisdiction for the later awards because the notice of appeal referred only to the earlier award, “an entirely different matter” than the interest awards that were made later.

Nor did it did matter, the supreme court ruled, that the questions were identified in the Collector’s docketing statement because “a docketing statement does not confer jurisdiction on the appellate court …”

The supreme court also addressed whether the Collector forfeited her right to dispute the earlier interest award because she had not objected to the award in the trial court. That “would generally result in forfeiture of the issue on appeal.” But the supreme court was most interested in resolving a conflict in the appellate courts over the proper measure of interest. So the court invoked its power to “overlook any forfeiture in order to provide a unified body of case law.”

Read the whole case, General Motors v. Pappas, No. 108893 (5/19/11), by clicking here.

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August 11, 2011

For-Cause Substitution Request Appealable Despite Omission From Notice Of Appeal

John O’Brien sued his wife for divorce. The case was transferred to a second trial judge. About one year after that transfer, John claimed the trial judge was biased. So John asked for a substitution of judge. The request for another judge was denied.

John appealed from the trial court’s maintenance award and the denial of his request for substitution of judge. But his notice of appeal did not state that he was appealing from the denial of his substitution request. Nonetheless, the Second District Illinois Appellate Court considered the question.

The case went to the Illinois Supreme Court on a certificate of importance. The supreme court first considered whether the Court of Appeals had jurisdiction to consider the substitution question. John’s wife argued there was no appellate jurisdiction because John’s notice of appeal “did not specify or indicate that John was seeking to appeal from the order denying the substitution …”

But the Illinois Supreme Court agreed with the court of appeals, and ruled there was appellate jurisdiction because, “The denial of John's petition to substitute was a step in the procedural progression leading to the final judgment specified in John's notice of appeal.”

Unfortunately, the supreme court opinion does not define its view of “step in the procedural progression.” We reported on this case when it was decided by the Second District Illinois Appellate Court. You can read that posting by clicking here.

In the end, the Illinois Supreme Court reiterated the Illinois rule that a for-cause substitution of judge “may be granted only where the party can establish actual prejudice.” The court also added a constitutional dimension to the substitution analysis, stating that “a judge reviewing a for-cause challenge against another judge should assess the constitutional due process implications raised whenever substitution is sought and guard against the ‘risk of actual bias’ …”

Read the whole case, IRMO O’Brien, No. 109039 (8/4/11), by clicking here.

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