Articles Posted in Appellate Fees/Costs

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.

Get the whole guide by clicking here.

Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit. At the same time, the forest preserve passed an ordinance that stated “the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].”

The owners claimed they could not develop the property for commercial purposes because the ordinance stated the government’s intention to condemn it. So the owners sued the forest preserve and the arboretum under the due process clause of the Fifth Amendment of the U.S. Constitution for engaging in a conspiracy to take the land. The trial court dismissed that lawsuit. The arboretum then asked the trial court to award attorney fees. Meanwhile, the owners appealed the dismissal, but the appellate court affirmed. The owners’ petition for leave to appeal to the Illinois Supreme Court was denied. The arboretum then asked for an award of its attorney fees incurred in defending the owners’ appeal.

The trial court awarded the arboretum its fees under Section 1988 [federal civil rights statute] for defending the appeal, but not for defending the case in the trial court. The owners then appealed the award of attorney fees.

The Second District Illinois Appellate Court agreed that the award of attorney fees under Section 1988 was appropriate. The court stated that the owners’ first appeal was frivolous, and that they should have known it, so it was not an abuse of discretion to award the arboretum’s attorney fees.

The owners then argued that an award of appellate attorney fees was improper because the arboretum did not request the fees in the appellate court under Illinois Supreme Court Rule 375 [allowing sanctions for a frivolous appeal]. But the appellate court ruled the owners forfeited this argument because they raised it for the first time on reconsideration in the trial court. The appellate court also stated, even if there had not been a forfeiture, Rule 375 did not provide an exclusive method for getting a fee award. Here is what the appellate court said:

Even if we had found no forfeiture, plaintiffs’ argument lacks merit. While it is true that Rule 375 does provide a path for the award of attorney fees associated with defending against a frivolous appeal, it is not the only route, and the failure to file a motion under Rule 375 does not preclude a section 1988 motion. Section 1988 provides another mechanism for fee-shifting where a litigation matter is deemed frivolous, and it applies to all phases of litigation, at the trial and appellate levels.

Read the whole case, Stahelin v. Forest Preserve District of DuPage County, No. 2-09-0249 (5/17/10), by clicking here.

Tina Hemminger died from cervical cancer. Her husband, Daniel, sued Tina’s doctors, lab technician, and the hospital where she was treated for medical malpractice in failing to diagnose Tina’s cancer.

Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit.

The trial court gave summary judgment to the three defendants, and made a finding under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the judgment). Within the 30-day deadline, Daniel asked the trial court to reconsider the summary judgment. His reconsideration request raised only the statute of limitations issue, and not the immunity question. The trial court denied Daniel’s request.

Daniel appealed within 30 days of the time the trial court denied the request for reconsideration. The appeal asked for reversal of the immunity and the statute of limitations rulings.

The three defendants asserted that the appellate court did not have jurisdiction to hear the appeal of the immunity issue. They argued that Daniel’s appeal of the immunity ruling was late because (1) he did not address it in his reconsideration request, so the time to appeal it was not tolled, and (2) the appeal was filed more than 30 days after the trial court issued the summary judgment, making it late. The guts of the argument was that the immunity ruling and the statute of limitations ruling were separate orders that required individual notice of appeal, even though both were contained in a single order.

The Third District Illinois Appellate Court disagreed the three defendants. The appellate court ruled that Daniel’s one notice of appeal covering both issues was timely because the reconsideration request applied to the entire summary judgment ruling. Here’s how the appellate court explained it:

[T]he single order granting the motion for summary judgment on both issues says, “This ruling is final and appealable pursuant to Supreme Court Rule 304(a) … The Rule 304(a) language is unambiguous. Defense counsel drafted the order that he argues is really two separate orders. Defense counsel cannot argue that it means something other than what it says. Plaintiff filed a single motion to reconsider a single order granting summary judgment. This tolled the time for filing a notice of appeal with respect to the order … We conclude that this court has jurisdiction to hear plaintiff’s appeal.

The appellate court acknowledged “we would have a different case” had the trial court “entered summary judgment on each issue separately, each with its own Rule 304(a) finding.” Read the whole case, Hemminger v. Nehring, No. 3-08-0751 (4/6/10), by clicking here.

Courtney McNiff sued Mazda Motor of America under the Magnuson-Moss Warranty Act. After they settled the dispute, Courtney’s lawyers, who had a contingency fee agreement with Courtney, petitioned the court for an award of attorney fees. Based on the lawyers’ time reports, the trial court awarded fees that were in excess of the contingency fee. Mazda appealed. The appellate court affirmed the award, stating it was within the trial court’s discretion.

Courtney’s lawyers also requested fees for defending Mazda’s appeal. The Fourth District Illinois Appellate Court allowed the appellate fees. “‘Allowing a plaintiff to petition for appellate attorney fees and costs furthers the [Magnuson-Moss] Act’s goal of providing consumers with legal assistance to enable them to pursue a remedy for injury or loss.’ … Accordingly, we grant plaintiff’s request to file a supplemental petition in the trial court for attorney fees and costs incurred in responding to defendant’s direct appeal … The trial court may award any and all fees and costs reasonably incurred in defending this ‘simple’ case on appeal.”

Get the whole opinion, McNiff v. Mazda Motor of America, No. 4-08-0817 (7/18/08), by clicking here.