Articles Posted in Interlocutory Appeals

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.

The Westin North Shore is a hotel in the northern suburbs of Chicago. The hotel was used as collateral for a multimillion dollar loan to the hotel owner. Five Mile Capital Westin had a subordinate interest in the loan. After the owner defaulted on his payments, Berkadia National Mortgage was named as special servicer of the hotel.

Berkadia got an offer to buy the hotel. But because the market for hotel properties fell, the offer did not cover the amount of the loan. If Berkadia accepted the offer, Five Mile Capital would be left with big losses.

So Five Mile Capital sued Berkadia, and asked the trial court for an injunction to stop the sale. Five Mile also recorded a lis pendens [formal notice that property title is disputed] on the property. Berkadia asked the trial court to dismiss the complaint and to lift the lis pendens. The trial court refused to dismiss the complaint, but did quash the lis pendens. The trial court also treated plaintiff’s position as a request for a preliminary injunction against the sale of the property. Then the trial court denied the preliminary injunction.

Five Mile appealed the denial of the preliminary injunction and the order quashing the lis pendens. Five Mile went to the appellate court under the rule allowing appeals of preliminary injunctions even before there is a ruling on the entire case. [Illinois Supreme Court Rule 307 allows appeals of certain interlocutory orders, including denials of preliminary injunctions.] So the first question was: Did the appellate court have jurisdiction to review the order that quashed the lis pendens? It would, if the order to quash were a preliminary injunction; it would not if the order to quash were a more typical interlocutory order.

The First District Illinois Appellate Court ruled it did not have jurisdiction to review the order to quash before the entire case was final because quashing a lis pendens is not a preliminary injunction. Here’s how the appellate court explained it.

As with an order quashing a discovery subpoena, an order quashing a lis pendens is simply an administrative order that deals with how the case proceeds before the court, and it can be issued by any court without resorting to its equitable powers. It then follows that, similarly to a discovery order, an order quashing a lis pendens is not an interlocutory order that is appealable under Rule 307(a)(1). We accordingly lack jurisdiction over that portion of the circuit court’s order.

In the end, the trial court’s ruling denying the preliminary injunction [not preventing the sale] was affirmed. Read the whole opinion, Five Mile Capital Westin v. Bekadia Commercial Mortgage, 2012 IL App (1st) 122812 (12/24/12), by clicking here.

Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.

On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].

Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.

Reason I. The orders denying the reconsideration request, and denying the Rule 2-1401 request to vacate the foreclosure judgment were not final and appealable because the trial court had not approved the sale of the property nor directed distribution of it. Here’s what the Illinois Supreme Court said:

It is well settled that a judgment ordering the foreclosure of mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution … The reason such a judgment is not final and appealable is because it does not dispose of all issues between the parties and it does not terminate the litigation … Specifically, although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution … Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a foreclosure case.

Reason 2. “A second problem with Kemp’s appeal lies with the fact that, while a judgment of foreclosure is a final order, without Rule 304(a) language added to it, the judgment is not appealable … Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).”

Kemp argued that the orders denying her request for reconsideration of the summary judgment and her emergency request to vacate the judgment of foreclosure were appealable because the trial court included Rule 304(a) language in those orders. But the Illinois Supreme Court rejected that argument because “the inclusion of a special finding [Rule 304(a) language] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.”

Finally, Kemp argued in favor of appellate jurisdiction because the orders she attacked were, she said, void. The Illinois Supreme Court called that argument “meritless.” “This legal proposition [void order rule] … does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent … Rather, the rule allows a party the ability to always raise the issue of whether an order is void in an appeal where appellate jurisdiction exists and the case is properly before the court of review … As we have pointed out, there is no supreme court rule that permits the appeal of the nonfinal orders that Kemp has appealed in this case.”

Read the whole opinion, EMC Mortgage Corp. v. Kemp, 2012 IL 11341 (12/28/12), by clicking here.

Carolyn Mahoney sued her former husband, Billy J. Cox, and his lawyer, Marc Gummerson, for plotting to kill her. Cox was in jail, so Mahoney served the Illinois Department of Corrections with a subpoena to find out information about the plot. The DOC asked the trial court to quash the subpoena because the documents Mahoney wanted contained the name of a confidential informant. The DOC argued the informant’s safety could be at risk if his identity were disclosed.

Trial court refused quash the subpoena, and instead compelled the DOC to produce the records. The DOC then asked for an immediate appeal of whether the informant’s identity was privileged under an Illinois statute.

The appeal was allowed, and a question about whether the statute made the informant’s identity confidential was certified. The DOC filed its brief, but neither Mahoney, Cox, nor Gummerson responded. So the issue was how the appellate court should treat an appeal that no one opposed.

The Second District Illinois Appellate Court acknowledged the usual methodology when an opposing brief is not filed: the court considers the merits of the appeal “if the issues and record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant [party appealing] if the appellant establishes a prima facie [on its face; at first blush] case for reversal.”

But the appellate court ruled that the typical method would not work in this case because the court had to decide a certified question of law. Here’s how the court explained it:

“[I]n an appeal that considers certified questions … ruling in favor of the appellant who establishes a prima facie case would entail not ordering a case-specific outcome but, rather, articulating a legal proposition that may or may not be correct… [T]he failure to file an appellee’s brief does not establish or corroborate the answer to a certified question. A certified question is a question of law that is not susceptible to either a default or a prima facie showing of error. Therefore, we address certified questions on their merits, regardless of their simplicity. Our review is de novo [no trial court discretion] because we are presented solely with questions of law.”

Read the whole opinion, Mahoney v. Gummerson, 2012 IL App (2d) 120391 (11/20/12), by clicking here.

Brandon Wilson required surgery for a fractured femur. He had a heart attack during surgery, which resulted in brain injury from lack of oxygen. Brandon sued Edward Hospital, where the surgery was done, and the doctors who treated him there.

To win against the hospital, Brandon had to show that the doctors were the hosptal’s actual or apparent agents. The hospital argued that the doctors were neither, and asked for summary judgment. The trial court gave the hospital judgment on the actual agent theory, but, ruling a question of fact existed, denied the hospital’s request on the apparent agency theory. Brandon then voluntarily dismissed his complaint.

One year later, Brandon re-filed, alleging the apparent agency theory against the hospital. The hospital asked the trial court to dismiss the re-filed complaint, arguing that it was barred by res judicata [second lawsuit alleging the same cause of action against the same parties not allowed]. The trial court refused to dismiss the re-filed complaint. But the court certified a question for immediate appeal – i.e., whether the re-filed complaint was a violation of the rule against claim-splittting and should be barred by res judicata.

The Second District Illinois Appellate Court felt the re-filed complaint was improper claim-splitting, so it reversed the trial court. Brandon then appealed to to the Illinois Supreme Court. The supreme court agreed that plaintiff could legitimately re-file the apparent agency theory. The re-filed complaint did not improperly split a claim because “actual agency” and “apparent agency” were not separate claims. There was only one claim, negligence. “Actual agency” and “apparent agency” were different elements of liability that could go toward proof of the single claim of negligence.

This case is important for the appellate practitioner because the supreme court ruled that the trial court order giving summary judgment to the hospital on “actual agency” was not a final order. If not final, then it would not be appealable even under Illinois Supreme Court Rule 304(a). [Allowing instant appeal of certain final judgments before the whole case is finished.]

Read the whole opinion, Wilson v. Edward Hospital, 2012 IL 112898 (12/13/12), by clicking here.

Ralph L’s baby, Haley, was born with a cocaine addiction. When Haley was released from the hospital, the State of Illinois took her into protective custody and placed her with foster parents. The State also filed a lawsuit asking that Haley be made a ward of the court. The State did not at that time ask the trial court to terminate Ralph’s parental rights.

The trial court soon made Haley a ward of the court. A goal was set to return Haley to Ralph in 12 months, if Ralph were able to meet certain conditions. Ralph did not meet two of the conditions: submission to random drug testing and completion of domestic violence and mental health assessments.

So the trial court allowed the State to file a petition to terminate Ralph’s parental rights. Four months later the State did so. But Ralph had not been given personal service of the State’s petition. The trial court proceeded with the termination hearing anyway, even though Ralph was not there and service had been accomplished only by publication. The State asked for, and received, an order of default against Ralph.

Ralph and a new lawyer appeared at the next hearing. Ralph was given leave to file a request to set aside the default. He did so under Illinois Civil Procedure Code section 2-1301. Later, Ralph filed another request to vacate the default, that one under code section 2-1401. The trial court ultimately denied Ralph’s request to vacate the default because he had insufficient evidence of a meritorious defense and of due diligence in pursing a defense. Ralph’s parental rights vis-à-vis Haley were terminated.

Ralph appealed, and the case worked its way to the Illinois Supreme Court. The supreme court ruled that 2-1301was the proper rule to use to vacate the default against Ralph, and that 2-1301 did not require a showing of a meritorious defense or of due diligence. So it was reversible error to require Ralph to show those conditions.

The Illinois Supreme Court explained the difference between an attempt to vacate an order of default under 2-1301 and a default judgment under 2-1401. Here is how the supreme court explained it:

The substantive standards applicable to these two statutes are different. Where a litigant seeks to set aside a default under section 2–1301(e), which governs before final judgment has been entered or within 30 days thereafter, the litigant need not necessarily show the existence of a meritorious defense and a reasonable excuse for not having timely asserted such defense … Rather, the overriding consideration is simply whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits …

By contrast, where a litigant seeks relief from a final order or judgment more than 30 days after its entry pursuant to section 2–1401(a), the burden he or she faces is substantially greater. A party seeking to set aside a final order or judgment under section 2–1401(a) is required to show by a preponderance of the evidence not only the existence of a meritorious claim or defense in the original action, but also due diligence in pursuing the claim or defense in the circuit court as well as due diligence in presenting the petition for relief under section 2–1401(a) … The only time a meritorious claim or defense or due diligence need not be established in a proceeding under section 2–1401(a) is when the order or judgment at issue is attacked as void …

When Ralph sought to set aside the finding of default in this case, he initially framed his request as a motion brought pursuant to section 2–1301(e) … He subsequently recast the request in the form of a petition under section 2–1401(a) … in response to the State’s contention that Ralph’s original motion was untimely and that the circuit court no longer had jurisdiction to consider. The assumption that section 2–1301(e) was no longer available and that section 2–1401(a) was the only procedural mechanism left to Ralph for challenging the entry of default against him subsequently took hold. It was accepted uncritically by both the circuit and appellate courts in this case and served as the predicate for the rulings which followed.

In fact, the State and the lower courts had things reversed. As a matter of law, the only statutory provision which could have been properly invoked by Ralph under the circumstances present here was the one he did invoke in his initial motion, section 2–1301(e). Relief under section 2–1401(a) was premature.

The reason for this is clear, though it went unrecognized in the proceedings below: the circuit court’s April 14, 2009, ruling that Ralph had defaulted on the petition to terminate was not a final judgment or order. To be final, an order or judgment must terminate the litigation between the parties on the merits or dispose of the rights of the parties, either on the entire controversy or a separate part thereof … The April 14 order did not meet this test [because “orders terminating parental righs are nonfinal and interlocutory.”]

The lesson for appellate practitioner is: 2-1301s are interlocutory and cannot be appealed immediately; 2-1401 judgments are final and appealable. In this case, the supreme court concluded that Ralph’s 2-1301 request to vacate the order of default should have been allowed. Read the whole case, In re Haley D., 2011 IL 110886, by clicking here.

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.

This case involved John Crane, Inc.’s claim for insurance coverage, and the insurers’ counterclaim against Crane. The insurers persuaded the trial court to dismiss Crane’s complaint. Two days later, Crane appealed the dismissal.

Then CNA, one of the insurers, asked the trial court to vacate or modify the dismissal order and for leave to amend its counterclaim against Crane. The trial court ruled (1) against CNA and would not allow the judgment to be vacated or modified, (2) for CNA and allowed amendment of the counterclaim against Crane.

Two weeks later, the trial court entered a final judgment on all of the remaining claims except CNA’s counterclaim.

About two weeks after that, the appellate court dismissed Crane’s appeal for want of prosecution because the company did not file the record on appeal within the time allowed by the rules. Rather than file a petition for rehearing of the dismissal of the appeal, Crane filed a whole new appeal. Crane’s second appeal asked for the same relief as the first one.

Allianz Underwriters, another of Crane’s insurers, asked the appellate court to dismiss the second appeal. Allianz argued the appellate court had jurisdiction when it dismissed the first appeal; because Crane did not ask for a rehearing, that dismissal ended the proceeding. Crane argued the second appeal was proper because CNA’s motion to modify the judgment meant the “first appeal never became effective,” and there never was appellate jurisdiction over that appeal.

The First District Illinois Appellate Court agreed with Allianz. Crane’s first appeal became effective, the appellate court said, after the trial court ruled against CNA’s request to modify the judgment. Then the dismissal of the first appeal rendered the appellate court without jurisdiction to consider Crane’s second appeal. Here is how the appellate court explained the ruling:

John Crane’s first appeal was the effective appeal from both the November 13, 2009 [final judgment], and the March 10, 2009 [dismissal of Crane’s complaint] … and this court had jurisdiction when we dismissed its [Crane’s] first appeal … for want of prosecution … John Crane did not file a petition for rehearing within 21 days. When an appeal of a final order is dismissed for want to prosecution and no petition for rehearing is filed within 21 days, the dismissal becomes final and the appellate court loses jurisdiction to consider additional arguments stemming from the initial order.

The whole opinion, John Crane, Inc. v. Admiral Insurance, 2011 IL App (1st) 093240 (August 30, 2011), is available by clicking here.

Leon Aylward claimed his doctor, Michael Settecase, and the medical clinic that employed him, failed to timely diagnose Aylward’s lung cancer. After Aylward sued them for malpractice, the clinic asked the trial court for permission to talk to other clinic employees who had been involved with Aylward’s treatment, but had not been sued. The clinic argued it should be allowed to have private conversations with the employees because Aylward could sue them later, and as defendants the clinic’s lawyers could talk to them privately.

The trial court denied the request, but certified the question to allow an immediate appeal. The appellate court accepted the immediate appeal, but Aylward asked for it to be dismissed. He argued that it was not a proper interlocutory appeal because it called for an advisory opinion to a hypothetical question – i.e., it was hypothetical that the employees would be sued.

The First District Illinois Appellate Court disagreed because, “Answering this question will have an immediate effect upon the discovery process by determining whether MPG [clinic] is permitted to represent the MPG employees, and thus, its resolution may materially advance the ultimate termination of the litigation.”

In the end, the appellate court ruled the clinic was not permitted to have private conversations with the employees. Read the whole opinion, Aylward v. Settecase, No. 1-10-1939 (4/29/11), by clicking here.