Articles Posted in Appellate Jurisdiction

Illinoisappellatelawyerblog was born to worry. And opinions like Estate of York feed that congenital behavior.

The First District Illinois Appellate Court woke us to attention with its first words. “The case before us serves as a cautionary tale to litigants to adhere to Illinois Supreme Court Rule appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.”

Dread always follows that kind of lead. Here’s what happened.

York and Mulryan were law firm partners. York loaned Mulryan $60,000. Mulryan made a few repayments, but stopped when York died. Mulryan claimed the loan converted to a gift when York died. Mulryan also took $5,000 out of the law firm.

York’s estate wanted the money back, and eventually filed a citation to recover assets against Mulryan. Mulryan asked the trial court to dismiss the citation. The trial court dismissed four of the claims with prejudice (can’t re-plead them) and three of the claims without prejudice (can fix and re-plead them).

The Estate appealed, and filed a supporting brief. But Mulryan did not respond. Two weeks after the appellate court ruled it would consider the Estate’s appeal without a response, Mulryan asked the appellate court for an extension of time to file and to allow her to ask for dismissal of the appeal for lack of jurisdiction.

Mulryan filed her request to dismiss the appeal for lack of jurisdiction, but the appellate court denied it. The trial court’s dismissal of four claims with prejudice tipped the analysis in the Estate’s favor. “The dismissal was with prejudice, and so it was a final determination of the estate’s right to the money in question, based on either fiduciary duty or fraud. Thus, the facts of this case and the dismissal order are squarely within Rule 304(b)(1) [Allowing immediate appeal of a final order in a probate case, even before the entire case is finished] as an immediately appealable order.”

Mulryan’s predicament worsened. The Estate asked the appellate court not to consider Mulryan’s principal brief because it was filed late, without good cause. The appellate court agreed, and rejected Mulryan’s argument that she didn’t need to file a brief because the lack of jurisdiction for the Estate’s appeal was “clear.”

Here’s how the court disposed of that position. “We agree with the executor’s argument that Mulryan has caused unnecessary delay in the disposition of this case on appeal and so we deny her motion for extension of time. Given Mulryan’s failure to file any response to the executor’s appellate brief and disregard for mandated appellate deadlines, we abide by our prior order and proceed based on the executor’s brief only.”

But the Estate had even bigger problems. The Estate’s Notice of Appeal was deficient, and did not invoke the court’s jurisdiction. The Notice of Appeal asked for reversal of the trial court’s dismissal of Count II, but the Estate’s brief argued for reversal of Count I. The mistake was fatal. Count I was most important to the Estate, but the appellate court would not consider reversing the trial court because Count I was omitted from the Notice of Appeal.

The appellate court also refused to consider reversing the dismissal of Count II. The Notice of Appeal gave notice of an appeal from the dismissal of Count II, but the Estate only briefed the Count I dismissal.

Mulryan submitted an affidavit to the trial court to support her request to dismiss the Estate’s complaint. The Estate asked the trial court to dismiss the affidavit because, it argued, the affidavit did not comply with Illinois rules.

Half of the Estate’s brief was devoted to reversing the trial court’s affidavit-ruling. But the appellate court refused to consider it because:

  • the Estate did not reference it in the Notice of Appeal, and
  • the trial court’s ruling was not a step in the procedural progression toward the dismissal; “The ruling on the motion to strike Mulryan’s affidavit could not have been a step in the procedural progression leading to the section 2-615 dismissal of count II, because  consideration of affidavits is not allowed in ruling on section 2-615 dismissals.”

So let’s review what happened in this case. First, Mulryan’s request to file a late brief was denied because she did not follow the rules, and her observation that appellate jurisdiction “clearly” was lacking fell on deaf ears.

But Mulryan won the war because the Estate did not draft a proper Notice of Appeal. The appellate court not consider the Estate’s most important issues because the deficient Notice Of Appeal did not provide fair notice that those things were being appealed.

Read the whole opinion, In re Estate of York, 2015 IL App (1st) 132830, by clicking here.

The Eckersalls’ divorce included a fight over custody of their children. The couple agreed on a visitation schedule, but not on the terms and conditions of visitation. So the trial court entered a standard “Custody/Visitation Injunction Order” that in essence prevented either spouse from addressing the divorce case with the children.

Catherine Eckersall appealed the order because she felt it interfered with her parenting rights. The First District Illinois Appellate Court dismissed the appeal for lack of appellate jurisdiction. The court ruled that the custody/visitation injunction order was not really an injunction and could not be appealed before the end of the lawsuit. After that appeal was dismissed, the trial court finalized the Eckersalls’ divorce.

But Catherine was still upset about the custody/visitation order. She appealed the appellate court’s dismissal to the Illinois Supreme Court. The supreme court took the case, but in the end ruled that the custody/visitation order was moot because it was superseded by the trial court’s final divorce order.

The supreme court rejected Catherine’s argument that the public interest trumped the mootness doctrine. The supreme court ruled:

  • The issues arising from the form custody/visitation order did not have “sufficient breadth” and did not have “a significant effect on the public as a whole.”
  • Conflicting case opinions did not exist, so there was no “need for an authoritative determination for the future guidance of public officers.”
  • Future recurrence of the question was not likely, especially “as evidenced by the lack of [past] litigation regarding the issue.”

Because Catherine’s appeal was moot, the supreme court also did not have appellate jurisdiction. Catherine’s appeal never was considered by an appellate court.

Click here to read the whole opinion, IRMO Eckersall III, 2015 IL 117922 (3/23/15).

Daewoo International paid American Metals Trading $14.5 million for pig iron. But American Metals didn’t deliver, so Daewoo started an arbitration proceeding. In support of the arbitration, Daewoo got an order of attachment against American from a New York trial court. To support the attachment — i.e., trace where the money went — the New York court allowed Daewoo to obtain discovery and to depose American’s directors and officers, four brothers led by Luis Monteiro.

Daewoo believed it could serve subpoenas on American and Monteiro in Illinois. So Daewoo filed a petition in an Illinois court to ask for the subpoenas.  Forty-eight days after the court allowed the subpoenas, Monteiro asked the court to quash them. He argued that Daewoo did not comply with Illinois Supreme Court Rule 204(b), the rule that permits an Illinois court to allow discovery in a case from another jurisdiction. The Illinois trial court refused, and ordered Monteiro’s deposition to proceed.

Litigation over the validity of the New York and Illinois trial courts’ discovery orders continued. After Monteiro ran out of options, he filed a notice of appeal in Illinois. On appeal, Monteiro continued to argue that Daewoo did not comply with Rule 204(b).

But the First District Illinois Appellate Court dismissed Monteiro’s appeal for lack of appellate jurisdiction. The court ruled:

  • the order allowing the subpoenas to issue was a final judgment
  • Montiero could appeal the judgment within 30 days, or toll the time to appeal by asking the trial court to quash the subpoenas or to reconsider the judgment, also within 30 days
  • But Monteiro’s motion to quash was made 48 days after the judgment, too late to toll the time to appeal
  • Monteiro’s Notice of Appeal was filed long after the 30-day deadline, so there was no appellate jurisdiction and the appellate court did not have the power to rule on Monteiro’s Rule 204(b) argument.

The wrinkle in this case was failing to see the trial court’s discovery order as a final judgment. Normally, a trial court’s discovery order is not a judgment nor immediately appealable. This case was different because Daewoo’s entire case was filed to get the discovery order. This is how the appellate court explained it:

In the case at bar, the [Illinois] circuit court issued an order granting discovery, pursuant to Rule 204(b), on January 29, 2013. … Since the only action in Illinois was the petition filed by Daewoo on January 28, 2013, to obtain discovery from and depose Monteiro and others in Illinois pursuant to Rule 204(b), the January 29, 2013 order was the final judgment in the Illinois proceeding.

Click here to read the whole case, Daewoo International v. Monteiro, 2014 Ill App (1st) 140573 (12/12/14).

Which deadline for filing a Notice of Appeal applies when the supreme court rules differ from the General Assembly’s statute? And what happens to the appeal when the Notice of Appeal meets the General Assembly’s deadline but not the supreme court’s?

The Illinois Supreme Court ruled that the General Assembly’s deadline applies.

In People v Illinois Commerce Commission, 2014 IL 116642 (11/20/14), the State of Illinois appealed an adverse ruling in a financial reconciliation matter that was filed under the Illinois Public Utilities Act. The Act allows 35 days to file an appeal; the Illinois Supreme Court Rules permits 30 days. The State met the General Assembly’s 35-day deadline, but missed the 30-day deadline.

The Illinois Appellate Court had ruled that the separation of powers doctrine required the courts to embrace the supreme court’s filing deadline. But the supreme court rejected that idea. Here’s what the supreme court said:

It is true our court has concurrent constitutional authority with the General Assembly to promulgate rules concerning direct appellate court review of administrative decisions. It is also the case that the rules of our court control appellate court review of administrative decisions in the absence of an explicit exercise of rulemaking authority by the legislature or in those situations were a rule enacted by the legislature is in direct conflict with a rule promulgated by our court. … We have never suggested, however, that Supreme Court Rule 335 requires courts to give controlling effect to the 30-day appeal period in Supreme Court Rule 303(a) whenever review of administrative orders lies with the appellate court.

Supreme Court Rule 335(i)(1) provides simply that certain Supreme Court rules, including Rule 303(a)’s 30-day filing period … apply to administrative review by the appellate court “[i]nsofar as appropriate.” … We have found it appropriate for courts to apply the 30-day deadline set forth in Rule 303(a) when the legislature has failed to explicitly state a time within which administrative review in the appellate court must be commenced. … At the same time, however, we have made clear that if the legislature wished to enact its own time period for seeking appeal of administrative decisions by the appellate court, it had the authority to do so. … We could not conclude otherwise without running afoul of the principles of special statutory jurisdiction.

The State met the General Assembly’s 35-day deadline, so the supreme court reversed the appellate court and ruled there was appellate jurisdiction.

William Huber filed a lawsuit to dissolve the American Accounting Association. The Association asked the trial court to dismiss the lawsuit, which it did.

Huber appealed. He mailed his Notice of Appeal to the court, but it arrived two days after the 30-day deadline.

That would have been okay had Huber included an affidavit (required of a non-lawyer) or certificate (required of a lawyer) of mailing with the Notice of Appeal. But Huber did not. He argued that a postmark on the envelope, dated two days before the 30-day deadline expired, was sufficient proof of mailing within the time required.

But the Illinois Supreme Court ruled that Huber’s so-called postmark was not a postmark at all. This is what the supreme court said:

What plaintiff identifies as a “postmark,” appearing in the upper right hand corner of the envelope, is actually a postage label from an Automated Postal Center (APC). An APC is a self-service kiosk, generally located in post office lobbies, that allows customers to mail letters and packages, buy postage, look up ZIP Codes, and access other postal services, such as “USPS Tracking,” and certified mail. …  The postage label at issue here reveals on its face that it was dispensed at an “APC.” An “APC label does not constitute an official U.S. postmark.”

The APC label shows only a “Date of sale” of “04/03/13.” [Two days before the deadline.) The date of sale is not necessarily the date plaintiff placed the envelope in the mail and the post office took custody of it. … Thus … the APC label at best indicates that plaintiff may have mailed his notice of appeal on April 3, 2013. The APC label does not establish that plaintiff, in fact, did so.

The late Notice of Appeal deprived the appellate court of jurisdiction, so the supreme court affirmed dismissal of Huber’s appeal.  Here’s the link to the supreme court’s opinion in Huber v. American Accounting Association, 2014 IL 117293 (11/20/14).

The Illinois Supreme Court did not decide whether a postmark would suffice in lieu of an affidavit or a certificate. But take a look at IRMO Sheth, an appellate court opinion explained three postings below. The Sheth court certainly falls in the camp that a postmark alone does not meet the Illinois Supreme Court Rules.

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here. 

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

After he was injured in an accident, Juan Zamora sued his employer, Newsboy Delivery Systems, and two individuals, Cherie and Richard Payne. Zamora claimed their negligence caused the accident.

The trial court dismissed Newsboy because Zamora’s claim against his employer was barred by the Illinois Worker’s Compensation Act. The dismissal order included a finding under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of the order]. Zamora asked the court to reconsider the dismissal. That request for reconsideration extended the time he had to appeal [30 days from the ruling on the reconsideration request]. Zamora’s request for reconsideration was denied.

The Paynes filed a third-party complaint for contribution against Newsboy. About two years later that complaint was dismissed. Zamora got a second Rule 304(a) finding, and after the rest of the claims were dismissed, Zamora appealed the two year-old order that dismissed his claim against Newsboy.

The Second District Illinois Appellate Court dismissed Zamora’s appeal for lack of appellate jurisdiction because:

Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider … This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself.

So Zamora had to appeal within 30 days of the denial of his reconsideration request. He blew that deadline, and the second Rule 304(a) finding was irrelevant.

Read the whole case, Zamora v Montiel, 2013 IL App (2d) 130579, by clicking here.

Witte Brothers is an intersate trucking company. After an audit, under protest, Witte paid Illinois for “pass-through” miles [distance driven in Illinois without picking up or delivering goods].

Witte sued Illinois for reimbursement of the taxes. The trial court ruled that the Illinois Income Tax Act did not allow the State to tax truckers pass-through miles. So Illinois appealed.

Among other things, Witte argued in the appellate court that taxing pass-through miles violated the Commerce Clause of the U.S. Constitution. But Witte did not raise this argument in the trial court, nor allege it as a separate count in its complaint. So the First District Illinois Appellate Court refused to consider the argument.

No need to worry if you’re concerned the State got beat out of tax revenue. The appellate court reversed, and ruled that pass-through miles are taxable. [“pass-through miles establish a physical and economic presence in Illinois which must be taxed …”]

This is the sort of ruling that annoys The appellate court would review the Commerce Clause argument de novo [no deference to the trial court]. If what the trial court says is inconsequential anyway, then the appellate court should not be allowed to avoid the issue because it was not raised in the trial court. So now we have precedent that blesses a tax that may violate the United States Constitution.

Read the whole case, Witte Brothers Exchange v. Department of Revenue, 2013 IL App (1st) 120850.

John Garrido lost an election to the Chicago City Council to John Arena. Garrido claimed he was defamed because Arena distributed campaign literature and advertisements that had “outright lies” about Garrido.

Garrido sued Arena, but the trial court dismissed the case based on the Illinois Citizen Participation Act. (The Act bars meritless lawsuits filed against citizens for their actions while exercising their First Amendment speech rights.) Within the next 30 days, Garrido asked the trial court to reconsider the dimissal. But Garrido’s request was brought under Illinois Code of Civil Procedure Section 2-1401, which is the section that applies to requests for reinstatement of cases dismissed more than 30 days before.

Garrido’s case had been dismissed for more than 30 days when he asked to amend his 2-1401 request to show it was intended to be brought under Section 2-1203, the correct statute, which does toll the time to appeal. The trial court allowed Garrido’s request to amend, but denied the request to reconsider the dismissal.

Garrido appealed. Arena argued there was no appellate jurisdiction. He asked the appellate court to dismiss the appeal because the only request for reconsideration that was made within 30 days of the dismissal was under section 2-1401, which does not toll the 30-day deadline to appeal. But the First District Illinois Appellate Court denied Arena’s request to dismiss the appeal because:

[Arena] misconstrue[d] both the nature of plaintiff’s [Garrido’s] postjudgment filings and the standard by which the circuit [trial] court must evaluate postjudgment motions … [T]he new [2-1203] motion merely corrected the relevant statutory citations in the first [2-1401] motion. More importantly, even had plaintiff not filed an amended motion, the circuit court would in any event have been required to evaluate plaintiff’s original October 7 [2-1401] motion under the correct statute [2-1203] … The only important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion within 30 days of the judgment, which tolled the time for filing a notice of appeal …

For purposes of tolling the time to appeal, it did not matter that Garrido asked the court to reconsider the dismissal under authority of the wrong statute. So Garrido lost the election, but won the fight over appellate jurisdiction. He also prevailed on the substance of the appeal. The appellate court reversed the dismissal of his lawsuit.

Read the whole case, Garrido v. Arena, 2013 IL App (1st) 120466 (6/18/13), by clicking here.