Articles Posted in Remand

Lake Environmental was doing asbestos removal at Scott Air Force Base in southern Illinois. The State, claiming that Lake had violated regulations, persuaded the Department of Public Health to revoke Lake’s asbestos removal license. Lake asked the trial court to review the department’s decision. But while that review was still pending, the State filed another complaint in the Department that asked for penalties and an injunction.

The trial court reversed the Department’s decision to revoke the license. Lake then asked the court to sanction the State. The trial court denied the sanction request, but did not say why. So Lake appealed the denial of sanctions to the Illinois Fifth District Court of Appeals.

The appellate court ruled that it had no basis to affirm the denial of sanctions because the trial court’s terse denial did not meet the requirement that a court must provide a reasoned analysis for its sanctions ruling.

This is how the court explained it:

“A reviewing court should not be put in the position of making the trial court’s findings” and “should not be required to speculate as to which of the determinitive facts and legal theories the trial court relied on in deciding” whether to allow or deny sanctions.

The appellate court reversed the no-sanctions decision and sent the case back to the trial court with directions to issue an opinion stating “with specificity” why it denied sanctions.

Click here to read the entire opinion, Lake Environmental v. Arnold, 2014 IL App (5th) 130109 (7/10/2014).

Karen Wilkins was making a left turn on a busy street in Oak Lawn, Illinois when she collided with an ambulance owned by Superior Ambulance Service. The ambulance was transporting a patient at the time, but did not have its siren or flashing lights on. Wilkins, injured in the accident, sued Superior. Her one-count complaint claimed Superior’s negligence caused the accident.

Superior asked the trial court for summary judgment because, Superior asserted, the Illinois Emergency Medical Services Systems Act gave the ambulance company immunity from being sued. The trial court agreed and gave Superior summary judgment.

Wilkins then appealed. The First District Illinois Appellate Court sided with Wilkins, and ruled that the Act did not give immunity when the ambulance was was being driven in an ordinary, non-emergency manner.

So Superior appealed to the Illinois Supreme Court. Worried that the supreme court might agree Superior was immmune from suit, Wilkins argued: if Superior’s immunity defense applied, then the case should be sent back to the trial court to determine whether Superior’s negligence was willful and wanton (which would defeat the immunity).

But the Illinois Supreme Court refused to send the case back for a trial on a willful-and-wanton assertion because “plaintiff [Wilkins] never included a count alleging willful and wanton conduct in her complaint … In addition, at no time did plaintiff seek leave to amend her complaint to add a willful and wanton count.”

Wilkins’s case was hurt by the lack of a willful and wanton negligence count. The Illinois Supreme Court reinstated Superior’s summary judgment, and Wilkins did not have a willful and wanton claim to fall back on. Click here to read the whole case, Wilkins v. Williams, 2013 IL 114310 (6/20/13).

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

The Illinois Supreme Court took Price’s appeal. While the case was pending, the supreme court ruled that the statute containing the 90-day restriction was unconstitutional. The ruling of unconstitutionality had nothing to do with 90-day requirement.

When an amended statute is declared unconstitutional, “The effect … is to revert to the statute as it existed before the amendment.” In this case, because the pertinent statute had been voided as unconstitutional, the Illinois Supreme Court ruled that “the reasons upon which this court relied in granting leave to appeal no longer exist.” So the supreme court “decline[d] to address the merits of the substantive issue raised … and dismiss[ed] this appeal.”

The supreme court sent the case back to the trial court to “determine whether plaintiff’s [Cookson] pleadings meet the current requirements of [the statute].” Read the whole case, Cookson v. Price, No. 109321 (12/23/10), by clicking here.

The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home.

Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers. The Bjorks asked for declaratory judgment that the conservation easement could not be amended. The trial court ruled that two of the amendments were valid.

The Bjorks appealed, and the appellate court ruled (1) the conservation easement could be amended, (2) the two amendments the trial court said were valid in fact were not because they directly conflicted with the easement, and (3) the Drapers’ violations of the easement were not intentional or culpably negligent. The appellate court directed the trial court “to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which if any, may be retained.’”

After another hearing, the trial court ruled that one of the three alterations could be retained. The Bjorks appealed again. The Bjorks arguments included: (1) the trial court should not have balanced the equities to decide which property alterations could remain; (2) the appellate court’s mandate from the first appeal did not require the trial court to accept the appellate ruling that the Drapers were not culpably negligent.

The Second District Illinois Appellate Court rejected both arguments.

Relying on the law-of-the-case doctrine, the appellate court ruled the trial court was obligated to balance the equities. The court stated: “… [T]he law-of-the-case doctrine bars relitigation of an issue previously decided in the same case … Questions of law that are decided on a previous appeal are binding on the trial court on remand as well as on the appellate court in subsequent appeals … The two recognized exceptions to the law-of-the-case doctrine are: (1) when a higher reviewing court makes a contrary ruling on the same issue subsequent to the lower court’s decision, and (2) when a reviewing court finds that its prior decision was palpably erroneous.”

In this case, there was no ruling from a higher court and the appellate court “declined plaintiffs’ [Bjorks’s] invitation” to find its earlier ruling to be erroneous. So the law-of-the-case doctrine required the trial court to apply a balancing test to the Drapers’s property alterations.

The appellate court also ruled that its mandate required the trial court to accept the appellate ruling that the Drapers were not culpably negligent. Here is how the appellate court explained it:

When a judgment of a trial court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions … Generally, the correctness of a trial court’s action on remand is to be determined from our mandate, as opposed to our opinion … This proposition, however, is based upon the assumption that the direction contained in our mandate is precise and unambiguous.

The appellate court ruled the trial court “did not have discretion to reassess whether the defendants’ [Drapers] actions were intentional or culpably negligent” because the appellate court’s earlier mandate already disposed of the question.

In the end, the appellate court affirmed the trial court. Read the whole opinion, Bjork v. Draper, No. 2-09-1345 (9/22/10), by clicking here.

Mark Thompson filed a complaint in the Illinois State Board of Elections against Elizabeth Gorman. Thompson claimed Gorman filed false reports concerning loans and financing of a campaign for elected office.

After a closed preliminary hearing, the Board examiner “recommended that petitioner’s [Thompson] complaint be found not to have been filed upon justifiable grounds and that the matter not proceed to a public hearing.” The Board adopted the examiner’s recommendation and dismissed Thompson’s complaint.

The examiner issued a written report. But the Board did not make findings of fact in support of its ruling. The Board stated only that its ruling was based on a reading of the examiner’s report and the recommendation of the Board’s general counsel. (The general counsel’s report was not in the record on appeal.)

That was not sufficient to dismiss the complaint. The First District Illinois Appellate Court ruled that “[a] decision of an administrative agency must contain findings so as to make judicial review of that decision possible … [T]he Board did not enter any findings from the evidence to support its conclusion that petitioner’s [Thompson] complaint was not filed on justifiable grounds, and we therefore remand the matter to the Board for a statement of reasons as to why it reached that conclusion.”

Read the whole case, Thompson v. Gorman, 1-10-0885 (11/18/10), by clicking here.

Patricia Jelinek and Jamie O’Callaghan, both widowed spouses of firemen, disputed whether the Firemen’s Retirement Board awarded them the proper benefit. Their husbands died while they were receiving duty-related benefits for injuries they suffered as firemen. The Board granted them less than they felt they were entitled to, so, as permitted under the Illinois Administrative Code, they asked the trial court to review the decision.

In 2002, the trial court ruled in favor of the widows. The court sent the case back to the Board with directions to award a proper benefit. The Board appealed that decision to the First District Illinois Appellate Court. In 2005, the appellate court vacated the trial court’s ruling and sent the case back to the Board to determine if the husbands’ duty-related disabilities permanently prevented them from returning to active duty with the fire department.

After the Board unsuccessfully asked the Illinois Supreme Court to hear the case, the appellate court’s mandate was issued to the trial court. Jelinek’s and O’Callaghan’s cases were heard again by the Board, which granted them the greater benefit prospectively only, not dated back to the time their husbands’ died.

Jelinek and O’Callaghan went back to the trial court and asked for retrospective calculation of the award. But on the assumption that the trial court still had jurisdiction over the case, they did not file a new appeal of the Board’s latest decision. That caused the trial court to rule it did not have jurisdiction to decide the widows’ request. Here’s the explanation:

The circuit court stated that plaintiffs needed to timely file new complaints for administrative review of the Board’s remand decisions in order for the circuit court to have jurisdiction to entertain the issue of whether the Board acted outside the appellate court’s mandate by setting an arbitrary date for the payment of benefits. The circuit court concluded that it could not review plaintiffs’ [Jelinek and O’Callaghan] motion to enforce because they failed to file any complaint for administrative review within 35 days of the Board’s decisions …

The widows then appealed that ruling by the trial court. The issue was whether the trial court had jurisdiction to hear the widows’ request that their awards be calculated retrospectively. The answer turned on the effect of the appellate court’s order in 2005 that sent the case back to the Board, not to the trial court, for recalculation of the award. Did that appellate court order deprive the trial court of jurisdiction?

The appellate court said “No.” The appellate decision in 2005 was not final and did not divest the trial court of its jurisdiction over the case. The widows’ request to enforce retrospective calculation of the award was a continuation of the same case that did not require them to file new complaints in order to invoke jurisdiction. This is how the appellate court explained it:

This court’s 2005 remand order did not constitute a final order because it did not finally dispose of plaintiffs’ rights where it instructed the Board to hold an evidentiary hearing to afford plaintiffs the opportunity to prove that their husbands’ injuries permanently prevented them from returning to active duty with the fire department … Because the issue on remand involved fact finding, this court’s instructions concerning the remand hearing were properly directed to the Board rather then the circuit court. We reject the Board’s assertion that there is some qualitative difference between a reviewing court’s remand order–like the one issued here–that directly instructs the agency to hold an evidentiary hearing versus a reviewing court’s remand order that directs the circuit court to instruct the agency to hold an evidentiary hearing.

Contrary to the Board’s assertion on appeal, our 2005 remand order did not impliedly confer jurisdiction over plaintiffs’ actions in the Board alone. Rather, consistent with the Administrative Review Law and supreme court rules, we instructed the Board to take additional evidence and, on October 28, 2005, issued the mandate that reinstated the case in the circuit court-the court that first acquired jurisdiction of the case and, thus, retains jurisdiction of the action until final disposition … Accordingly, plaintiffs [widows] were not required to file new complaints for administrative review within 35 days of the Board’s 2006 remand decisions because the appeal and remand hearing were a continuation of plaintiffs’ original consolidated complaint for administrative review.

Click here to get the whole opinion, Jelinek v. Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, Nos. 1-07-1141, 1-07-1142 (6/19/09).

Two important rulings arise from this landlord-tenant dispute.

After remand from the appellate court — which did not include instructions for how to proceed — the tenant asked the trial court for leave to amend its complaint to add a new item of damages. The trial court denied the tenant’s request because, it said, it did not have jurisdiction to do so.

Must the appellate court give specific directions to the trial court in an order of remand? The First District Illinois Appellate Court said “No.” Then what is the trial court’s authority and obligation after the appellate court sends the case back to the trial court? Here’s how the appellate court answered the question, complete with the standard of review:

Following a remand, the circuit court is obligated to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law, and a reviewing court decides that legal question de novo …

A reviewing court is not required to provide specific directions in an order reversing a judgment and remanding a cause … In such a case, the circuit court is required to examine the reviewing court’s decision and to proceed in a manner that conforms with the views expressed therein. … Where a cause has been remanded without particular instructions, the circuit court is not precluded from allowing the plaintiff to amend or supplement his pleadings, as long as the amendment is not inconsistent with the legal principles expressed by the reviewing court …

In this case, our prior decision did not include specific instructions, nor did it indicate that the cause was remanded for the limited purpose of resolving the two identified factual questions. Rather, we held that judgment on count IV could not be granted as a matter of law while those questions remained unanswered … A plaintiff is permitted to amend its pleadings to specifically state a damage claim, provided the amendment was not proscribed by the reviewing court’s decision … This court’s general remand order did not restrict the court’s jurisdiction to allow amendment of the pleadings, and Suburban’s proposed amendment seeking recovery of rent was not inconsistent with the our prior ruling. Therefore, we find that the circuit court erred in determining that it lacked jurisdiction to permit Suburban’s proposed second amended complaint.

The second issue was whether the trial court had jurisdiction over a fee petition that was filed within 30 days of the final judgment, but after the notice of appeal was filed. The trial court ruled it did not have jurisdiction to hear the fee petition because the tenant already appealed. But the appellate court disagreed. Here is the appellate court’s thinking:

A circuit court retains jurisdiction for 30 days after its entry of a final order or judgment … A circuit court has jurisdiction to entertain a petition for fees filed within 30 days of the entry of a final judgment without regard to a previously filed notice of appeal … In addition, a circuit court has jurisdiction to address a timely-filed fee petition regardless of whether the fee request is considered to be part of the original action or collateral to the original claim … The filing of a postjudgment petition for fees renders a prior notice of appeal premature …

In this case, Associated’s [Landlord] petition for fees was timely filed within 30 days of the entry of summary judgment in its favor. The filing of Associated’s fee petition rendered Suburban’s [Tenant] December 17, 2007, notice of appeal premature. Therefore, Suburban’s first notice of appeal did not deprive the circuit court of jurisdiction to rule on the petition for fees …

Read the whole case, Suburban Rebuilders v. Associated Tile Dealers Warehouse, No. 1-07-3531 (2/10/09), by clicking here.

This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.

Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.

The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.

Pepmeyer appealed. He claimed that Poncin’s powers were too broad and infringed on Pepmeyer’ authority. While the appeal was pending, the Attorney General found there was no basis to investigate Pepmeyer − so the trial court terminated the Attorney General’s appointment.

Further complicating the case, Pepmeyer and Poncin brought the State’s Attorneys Appellate Prosecutor into the act. All three reached an agreement to divide their investigatory powers. Pepmeyer and Poncin then asked the appellate court for a “conditional remand” to direct the trial court to issue an order in accord with the agreement among Pepmeyer, Poncin, and the Appellate Prosecutor.

Stone and Kraycinovich objected to Pepmeyer’s and Poncin’s request. In response, Pepmeyer argued that Stone and Kraycinovich did not have standing in the appellate court to raise an objection or to participate in the appeal. Pepmeyer’s theory was that Stone and Kraycinovich lost standing when the trial court terminated the Attorney General’s appointment to investigate Pepmeyer.

The Third District Illinois Appellate Court ruled that Stone and Kraycinovich did not have standing in the appellate court “because they have failed to show an injury to a legally cognizable interest.” Nor did they have a sufficient “direct, immediate, and substantial interest in the subject matter” to give them standing as non-parties under the Illinois Supreme Court Rules.

The appellate court also denied Pepmeyer’s request for conditional remand “because a remand to the circuit court with directions to enter the proposed order would amount to an exercise of supervisory authority, which the appellate court lacks.”

Read the entire case, In re Appointment of Special Prosecutor, No. 3-07-0553 (1/29/09), by clicking here.

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

The appellate court identified the problems caused by its ruling: “… [A] federal employee [Hill] will now resume defending litigation even though there is a chance that the Westfall Act purports to grant him immunity from suit. If we were permitted to consider that claim of immunity, the question could be settled once and for all. But whether this defendant should be immune from suit is a question that Congress and our circuit precedent prevent us from even considering. Meanwhile, the plaintiff has waited five years for a legal remedy, which today is no closer than it was in 2005 when the case was first removed to the district court.…”

You can read the whole opinion, Foster v. Hill, 497 F.3d 695, No. 06-2651 (8/13/07), by clicking here.

In this procedurally complicated case, Draper and Kramer sued Dalan/Jupiter and Trammel Crow for breach of contract. Draper prevailed in a bench trial, but its judgment was reversed, without remand, on appeal.

Nonetheless, back in the trial court, Dalan moved for its attorney fees. The trial court concluded that it did not have jurisdiction to rule because Dalan filed the motion too late. Dalan then filed another lawsuit that requested the same attorney fees it expended defending the original lawsuit. The trial court granted summary judgment in favor of Draper and Kramer in that second lawsuit, ruling that the earlier denial of Dalan’s fee petition precluded the second lawsuit. Dalan appealed from that summary judgment.

The appellate court ruled that the trial court did not have jurisdiction even to consider Dalan’s petition for fees in the first case because the case had not been remanded from the appellate court. Thus, it did not have power to rule that Dalan’s motion was untimely. The appellate court explained:

[W]here a judgment is reversed with no order remanding the case, “it cannot be reinstated in the court which entered the judgment from which the appeal was taken* * * ” (Emphasis added.) . . . In other words, following a reversal without remand, the trial court is not revested with jurisdiction over the case.

The appellate court ruled that Dalan’s lawsuit was precluded, but for reasons different from the trial court dismissal. You can read the whole case, Dalan/Jupiter v. Draper and Kramer, Nos. 1-06-1274, 1-06-2637 (3/30/07), by clicking here.