September 15, 2012

Death Of Fireman’s Widow Does Not Moot Her Appeal Of Retroactive Annuity Benefits

Michael Hooker suffered a debilitating injury while working for the Chicago Fire Department. After he died two years later, his widow, Elaine, applied to the Retirement Board of the Firemen's Annuity and Benefit Fund for widow’s benefits. She was awarded a minimum annuity, but she felt the Board did not include all of the money she was entitled to when calculating the amount of the annuity.

The original case went to the appellate court and then back to the trial court. Elaine filed an amended complaint that asked for recalculation of the annuity based upon an Illinois statute that became law after she filed the first complaint. She argued she was entitled to certain retroactive benefits.

The trial court gave summary judgment to the Board on its method of calculating the annuity. Elaine appealed. She died after the appeal was filed, but her estate carried on the appeal.

The First District Illinois Appellate Court assessed whether it had jurisdiction over the appeal in light of Elaine’s death – i.e., whether Elaine’s death abated the right to retroactive benefits. The Board argued against appellate jurisdiction because the question hadn’t been put to the trial court. But the court disagreed, and ruled that appellate jurisdiction existed because the court could “render effective relief.” This is how the appellate court explained it:

This court lacks jurisdiction to decide an appeal if the parties no longer face an actual controversy, as when events make it impossible for this court to render effective relief to the appealing party … This court has jurisdiction to consider whether Elaine's death makes her appeal moot. However, neither party has suggested that her death moots the appeal, and we see no reason to believe that her death would make her appeal moot. We will not extend our review of our jurisdiction to review an issue that the trial court never addressed, where the issue does not appear to moot the appeal, and where neither party argues that the issue moots the appeal. If the Board fails to pay Elaine's estate the benefits it withheld from Elaine while she lived, the statutory process for challenging the Board's refusal to pay benefits it owes should suffice.

In the end, Elaine’s method of calculating the anniuity prevailed too. Read the whole opinion, Hooker v. Retirement Board of the Firemen’s Annuity Benefit Fund of Chicago, 2012 IL App (1st) 111625 (7/18/12).

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September 7, 2012

One Notice Of Appeal Gives Appellate Jurisdiction Over 32 Plaintiff Appeals in Truck-Train Collision Case

A proliferation of lawsuits was filed after a collision between a truck carrying a load of metal rebar and an Amtrak passenger train. A number of passengers were injured, and some died in the accident. Cases by 32 passengers or their representatives were filed in Illinois state court. Debra Dowe’s lawsuit was among them. Dowe sued a number of parties, including Birmingham Steel, the rebar manufacturer that allegedly loaded the truck that was in the accident. Dowe’s lawsuit was consolidated with the others for purposes of pretrial discovery and motions.

Birmingham asked for, and received, summary judgment against Dowe and the other 31 parties. Dowe then appealed the summary judgment given to Birmingham. Her Notice of Appeal was filed for her own case and the 31 other plaintiffs whose cases were consolidated.

But Birmingham argued that the 31 others had to file their own appeals. Birmingham claimed that each of the non-Dowe lawsuits retained their own identity despite the consolidation for pre-trial purposes. Because the 31 non-Dowe plaintiffs had not filed their own notices of appeal, Birmingham argued, the appellate court did not have jurisdiction to consider their appeals.

The First District Illinois Court of Appeals disagreed. The appellate court ruled that Dowe’s single Notice of Appeal was sufficient to confer appellate jurisdiction over all of the plaintiffs because the appeal was from a single summary judgment that applied to all plaintiffs. The appellate court’s discussion of consolidation for purposes of appeal is instructive:

Actions pending in the same court may be consolidated “as an aid to convenience, whenever it can be done without prejudice to a substantial right.” … Our courts have recognized three different forms of consolidation: (1) where several cases are pending involving substantially the same subject matter, the court may stay the proceedings in all but one and then see whether the disposition of the one case may settle the others, thereby avoiding multiple trials on the same issues; (2) where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identities, and be disposed of in one suit.
Our review of the record indicates that even though the original stated purposes for the consolidation w[ere] to conduct discovery and motion practice as it related to liability, the consolidation was much broader and actually comes within the third category. To determine whether a particular consolidation was for disposition, the test is whether the cases might have been the subject of a single proceeding or could have been brought as one action.
Here, the circuit court consolidated the 32 separate bodily injury lawsuits for disposition by summary judgment. The circuit court's order granting summary judgment in favor of Birmingham Steel and against … the [32] Dowe plaintiffs applied to all of the consolidated cases and it gave rise to only one judgment to be appealed from.
If we accepted Birmingham Steel's position, this would go against the stated purpose of consolidation, which is to expedite the resolution of lawsuits, conserve time, and avoid duplicating efforts and unnecessary expenses … We find that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was sufficient to confer appellate jurisdiction over the 31 other Dowe plaintiffs.

Although Birmingham lost the appellate jurisdiction dispute, the appellate court affirmed the summary judgment. The whole opinion, Dowe v. Birmingham Steel, 2011 IL App (1st) 091997, is available by clicking here.

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September 5, 2012

Tax Preparer Waives Choice-Of-Law Argument In NonCompete Clause Appeal

Zabaneh Franchises bought an H&R Block tax preparation franchise. The purchase included “all interest in the employment and noncompetition agreements with H&R Block’s employees.”

Terri Walker had been employed by H&R, but claimed she did not have an employment agreement with Zabaneh. Zabaneh claimed the Terri violated the employment agreement she signed with H&R, and that Zabaneh took over, because within a few months after leaving H&R, Terri (1) started her own tax preparation business; (2) hired H&R employees; (3) solicited H&R customers. So Zabaneh asked the trial court for a preliminary injunction to prevent Terri from doing all those things.

The trial court denied Zabaneh’s request for an injunction against Terri. The trial court refused to enforce the employment contract because it was a “contract of adhesion,” meaning there had not been negotiation of the terms of the contract and the only way Terri could get employment with H&R was to accept the contract as presented. So Zabaneh appealed.

Terri’s employment agreement stated that Missouri law governed the dispute.
But in the trial court, and even in the appeal, Zabaneh primarily argued Illinois law. Nonetheless, in the appeal, Zabaneh claimed that Missouri law governed.

But the Fourth District Illinois Appellate Court disagreed. The appellate court ruled Zabaneh waived its right to argue Missouri law governed because the company “filed a lengthy memorandum of law in support of its motion for a TRO [temporary restraining order] and preliminary injunction in the circuit [trial] court, extensively citing and relying only upon authority from Illinois …” Zabaneh argued that it used Illinois case law only to support “procedural” matters. But the court found just the opposite, and stated Zabaneh used Illinois authority to support “‘substantive issues’ relating to the enforceability of the covenants.” The appellate court disregarded Zabaneh’s Missouri authorities and relied on Illinois law.

So Zabaneh lost the battle over which law governed. But the company won the appeal anyway. The appellate court ruled that the noncompete employment covenants were enforceable. The case was returned to the trial court to determine whether Zabaneh was entitled to an injunction against Terri.

Read the whole opinion, Zabaneh Franchises v. Walker, 2012 IL App (4th) 110215, by clicking here.

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