Articles Posted in Inter-District Squabbles

Elizabeth Demaret got a better job in New Jersey, so she wanted to move there from Illinois with her children. She had sole custody of her four children. James, her ex-husband, had parenting time in accord with a parenting agreement that an Illinois trial court incorporated into the divorce judgment.

Elizabeth asked the trial court for permission to move the children to New Jersey. James fought the request because he felt his time with the children would suffer and diminish. He asked the trial court to award him attorney fees he would incur fighting Elizabeth’s removal request.

The trial court denied Elizabeth’s request to move the children to New Jersey. Elizabeth appealed, but James’s fee request still was pending in the trial court. James argued that was enough to deprive the appellate court of jurisdiction to consider the appeal ― that is, (1) no appellate jurisdiction because (2) the order denying Elizabeth’s request to move the children was not final and appealable because (3) James’s fee petition still was pending in the trial court.

The appellate court acknowledged a split among the Illinois courts on whether a post-dissolution petition was:
• “a new claim within the original dissolution proceedings,” which would preclude appellate jurisdiction, or
• “a separate action from the original dissolution proceeding,” in which case appellate court jurisdiction exists upon a final resolution of that [the removal] petition under Illinois Supreme Court Rule 301 … regardless of the pendency of an unrelated petition.

The First District Illinois Appellate Court concluded “that postdissolution proceedings are generally new actions.” But that did not end the discussion. The court also ruled that James’s pending request for attorney fees was “wholly unrelated to the issues presented in [Elizabeth’s] removal petition.” So the appellate accepted jurisdiction over the case.

According to this appellate court, a split remains over whether a postdissolution petition presents a new action from the original divorce action or a new claim in an existing divorce case. In this case, Elizabeth won the battle over appellate jurisdiction. But she lost the war. The appellate court accepted jurisdiction over her appeal, then affirmed the trial court’s ruling that prevented her from moving with her children to New Jersey.

Read the whole opinion, IRMO Demaret, 2012 IL App (1st) 111916, which reviews the split of authority, by clicking here.

Neil Ehlers worked as a salesman for Sunbelt Rentals, a seller and renter of industrial equipment. After about five years, Ehlers left Sunbelt and went to work for Midwest Aerials & Equipment, a company that competed with Sunbelt. Sunbelt sued Ehlers and Midwest to enforce restrictive covenants in Sunbelt’s employment agreement with Ehlers. Sunbelt got a preliminary injunction against Ehlers and Midwest, who then appealed.

One of the issues on appeal was whether the trial court properly followed the “legitimate business interest” test when it analyzed the propriety of the restrictive covenants. That test had been used by Illinois appellate courts for more than 30 years.

But the Fourth District Illinois Appellate Court ruled that it didn’t matter because the “legitimate business interest” test had been “spun out of whole cloth” and never had been adopted by the Illinois Supreme Court. The appellate court ruled it was not constrained to abide a standard set by other state appellate courts despite 30 years of acceptance and use. Here’s the court’s rationale:

[E]ven assuming that Ehlers and Midwest are correct that the trial court was bound by appellate court precedent to apply the “legitimate-business-interest” test and failed to do so, we decline to reach the merits of their argument because, unlike the trial court, this court is not required to follow the decisions of its sister districts or, for that matter, our own prior decisions … (“[T]he opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels”.) Thus, having repudiated the validity of the “legitimate-business-interest” test earlier in this decision–assuming it was ever valid–we need not address the argument of Ehlers and Midwest that the trial court was bound by precedent to apply it in this case. Any error by the trial court in this regard simply no longer matters at this stage of proceedings.

This opinion is important to appellate practitioners as a reminder not to take the “long-established black letter law” for granted. Maybe it’s not so established. In this case, the appellate court referred to the “legitimate business interest” test as “nothing more than a judicial gloss incorrectly applied to this area of law by [other] … appellate courts.”

In the end, the appellate court affirmed the preliminary injunction. Read the whole case, Sunbelt Rentals v. Ehlers, No. 4-09-0290 (9/23/09), by clicking here.

The O’Briens were involved in a divorce case. John O’Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John’s request was heard by a second judge, who denied it because of a lack of evidence of prejudice.

The case went back to the first judge, held a trial on the divorce petition. The court ruled that John should make child support and maintenance payments to Lisa. After an unsuccessful reconsideration motion, John appealed.

John wanted to contest the denial of his request for substitution. But John’s notice of appeal only stated he was appealing from the denial of his reconsideration motion “and all prior orders of court culminating therein.” The issue was whether that notice of appeal was sufficient to give the appellate court jurisdiction to consider John’s request for another judge.

The Second District Illinois Appellate Court ruled that John’s notice of appeal gave the court jurisdiction. The court found that the denial of a request for substitution of judge was a step in the “procedural progression” to the ultimate judgment. The court stated: “… [I]f the motion to substitute were improperly denied, then all subsequent orders would be void.”

The court acknowledged a difference with the First District Illinois Appellate Court in the application of the test. Read the whole case, including an explanation of the conflict in applying the rule, IRMO O’Brien, No. 2-07-0264 (7/14/09), by clicking here.

Can the Second District Appellate Court review an order issued by the First District? Sure, if it’s an interlocutory order, not law of the case. Here’s what the Second District said about this:

“There is but one appellate court … Thus, a panel of the Second District of the Appellate Court revisiting, during the course of an ongoing appeal, an issue that a panel of the First District of the same court implicitly addressed in ruling on the motions to transfer is no different from a successor trial judge revisiting the interlocutory decision of the trial judge he succeeded. Consequently, we reject the foregoing arguments by Ameren, ComEd, and the ICC that the law-of-the-case doctrine precludes our dismissal of case Nos. 2–06–0149 and 4–06– 0118.”

The case is Commonwealth Edison Co. v. ICC, 2-06-149 (2006), and you can get it here.