April 30, 2012

Emergency Worker’s Late Appeal Against Hospital Dismissed

Edward Dus, an ambulance driver, injured his knee when he was moving a patient at the emergency room at Provena St. Mary’s Hospital. He claimed he was injured by a laundry cart being pushed by a Provena employee. Dus sued Provena. A jury awarded Dus $300,000, which was cut in half because he also was found to be 50 percent at fault for the accident.

Within 30 days, Dus asked the trial court for a judgment notwithstanding the verdict on the question of his contributory negligence. But when his lawyer did not appear for the hearing, the trial court denied Dus’s request. Two days later, Dus asked the trial court to reconsider the denial. The trial court allowed Dus to refile the original request for judgment notwithstanding the verdict. Dus refiled, but three months later the trial court denied Dus’s request.

Dus appealed. Provena asked the appellate court to dismiss the appeal because, the hospital argued, Dus filed the appeal too late, more than 30 days after the first time the trial court denied his original motion for judgment notwithstanding the verdict. Dus argued the time to file was tolled until 30 days after the trial court ruled on his request for reconsideration, which would have made his appeal timely.

The Third District Illinois Appellate Court agreed with Provena. Here is the court’s rationale:

… [I]f Dus wished to appeal the trial court’s judgment, he was required to file a notice of appeal within 30 days of the trial court’s initial ruling on his judgment n.o.v. [notwithstanding the verdict] motion.

* * *

The [trial] court stated from the bench that the motion was “denied” “due to non-appearance of movant [Dus],” and the [trial] court’s written docket entry confirmed that the motion had been “denied.” Moreover, two days after the court denied Dus’s judgment n.o.v. motion, Dus filed a “Motion for Reconsideration of Plaintiff’s Previously Filed Post-Trial Motion, which asked the court to “reconsider the ruling” the trial court had issued regarding his posttrial motion on September 22. By filing this motion, Dus acknowledgeld that the [trial] court had denied his motion on September 22 … [A] motion to reconsider a trial court’s denial of a posttrial motion does not extend the deadline for filing an appeal under [Illinois Supreme Court] Rule 303(a)(2).

The appellate court dismissed Dus’s appeal for lack of jurisdiction. Read the whole opinion, Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 0901064, by clicking here.

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April 20, 2012

Real Estate Broker’s Appeal Dismissed For Lack Of Compliance With Local E-Filing Rules

While their divorce case was pending, Robert and Cindy Andrews signed a listing agreement to sell their house. The real estate broker, VC&M, found a buyer. But the Andrewses rejected the offer, which was for less than their asking price. Instead, Cindy decided to stay in the house, so she agreed to purchase Robert’s half. As part of their marital settlement agreement, Robert transferred his interest to Cindy.

VC&M wanted a commission for introducing the prospective buyer, but the Andrewses refused to pay. So VC&M sued for breach of contract. The Andrewses asked the trial court to dismiss the complaint. VC&M filed an opposition memorandum electronically. Before VC&M’s e-filing, the parties had not stipulated to allow e-filings.

The trial court agreed that VC&M did not state a claim, so the complaint was dismissed. Thirty days later, in another electronic filing, VC&M asked the trial court to reconsider the dismissal. Another month later, VC&M filed a paper copy of its reconsideration request. Another month after that, VC&M e-filed a notice of appeal.

The Andrewses asked the appellate court to dismiss the appeal for lack of jurisdiction. They argued that the court could not consider the appeal because VC&M had not complied with the local appellate rules for e-filing. The Second District Illinois Appellate Court agreed, and dismissed VC&M’s appeal. This is how the appellate court explained it:

The trial court dismissed with prejudice the amended complaint on February 23, 2011. The record shows that plaintiff [VC&M] e-filed a motion to reconsider the dismissal 30 days later on March 25, 2011. However, as the case was not properly designated an e-filing case, the e-filing of the motion to reconsider violated Local Rule 5.03 and was a nullity. Pursuant to [Illinois Supreme Court] Rule 303, the time to file a postjudgment motion or a notice of appeal elapsed on March 25, 2011 … The hard copy of the motion to reconsider did not extend the deadline for filing a notice of appeal. Because the action was not properly designated for e-filing from the beginning, the e-filed postjudgment motion was meaningless and the hard-copy postjudgment motion was filed late.

LocalRule 5.03(d) further dictates that, even in a case properly designated for e-filing, all appellate documents shall be filed in the “conventional manner.” … The conventional manner of filing in the circuit court is in the form of paper documents submitted to the clerk of the court as is done in cases that are not e-filing cases …

Despite Local Rule 5.03’s express prohibition of e-filing appellate documents, plaintiff e-filed the notice of appeal. Plaintiff never filed a paper copy of the notice of appeal. Several months have elapsed since the trial court dismissed the amended complaint and denied the motion to reconsider, the appeal must be dismissed because the e-filed notice of appeal violated Local Rule 5.03 and was also untimely under Rule 303.

This court considered a notice of appeal as an appellate document that has to be filed in the “conventional” manner. A notice of appeal is filed in the trial court. So why not allow it to be filed it electronically? (For that matter, what is the justification for not allowing “post-judgment enforcement proceeding documents and notices” to be e-filed?) The rules should make it easier, and thus less costly to litigants, to file papers with the court. The extra layers of regulation in these local e-filing rules serve just the opposite purpose.

Read the whole opinion, VC&M, Ltd. v. Andrews, 2012 IL App (2d) 110523 (4/16/12), by clicking here.

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April 7, 2012

Appellate Jurisdiction Okay Despite Incomplete Notice Of Appeal

Diane Borchers was the food service director at Mayslake Village, a senior citizen housing facility. Borchers used the company email system to communicate with vendors and other Mayslake employees. While she was on disability leave, two Mayslake employees accessed some of Borchers’s personal emails. The emails were in Borchers’s personal email account, which was available on her company computer at the company’s office.

Borchers sued Mayslake for violation of the federal Electronic Communications Privacy Act and the state commonlaw tort of intrusion upon seclusion. Later she sued the two Mayslake employees who got the emails.

Mayslake asked for summary judgment, which the trial court granted. The trial court ruled that Borchers did not have enough evidence that Mayslake acted intentionally in accessing the private emails to proceed with the lawsuit.

The two Mayslake defendant employees asked for dismissal of the complaint against them, which the trial court granted. The trial court agreed that the statute of limitations expired before Borchers brought the employees into the lawsuit. The summary judgment and the dismissal were included in one court order.

Borchers appealed. But her notice of appeal stated only that “she was appealing from the order entered ‘on November, 17, 2010 granting Defendants’ Motion for Summary Judgment.’” The two Mayslake employees asked the appellate court to dismiss the appeal against them because the order of dismissal was not referenced in the notice of appeal, depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court disagreed with the Mayslake employees, and denied their request to dismiss the appeal. The appellate court concluded that the notice of appeal should be construed liberally, and that it did not prejudice the employees. Here is how the court explained it:

[W]e must begin by considering the notice of appeal as a whole. In addition to identifying the order being appealed from as the order entered “on November 17, 2010 granting Defendants' Motion for Summary Judgment,” the notice of appeal also stated that the appeal was “premised upon manifest errors by the trial court in the rendering of said Order and all underlying orders thereto,” and the relief sought was “that the aforementioned Order be reversed and/or vacated by the Appellate Court, and, if necessary, that this cause be remanded to the trial court with directives consistent with such disposition.” Construing the notice liberally, as we must … we find that this language fairly apprised the defendants that the plaintiff was seeking review (and reversal) of the entire order entered on the specified date. We also note that we must consider whether the defendants would be prejudiced by construing the notice in this manner … Here … the defendants do not assert that they would suffer any prejudice from our consideration of the motion to dismiss … In fact, they did not raise the jurisdictional objection until they filed their responsive brief in the appeal, in which they also argued at length the merits of the dismissal's correctness. We therefore find that the notice of appeal in this case was sufficient to confer jurisdiction over all matters addressed in the trial court's order of November 17, 2010, including its dismissal of Frigo and Maxwell [Mayslake employees] from the case.

In the end, the appellate court reversed Mayslake’s summary judgment and affirmed the employees’ dismissal. Click here for the whole opinion, Borchers v. Franciscan Tertiary Province of the Sacred Heart, 2011 IL App (2d) 101257.

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