February 12, 2014

Second Order Allowing Interlocutory Appeal Fails To Save Appellate Jurisdiction

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.

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April 7, 2013

Appellate Court Refuses Jurisdiction Over Order Quashing Lis Pendens

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.

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March 16, 2013

No Appellate Jurisdiction For Homeowner’s Appeal Of Summary Judgment Foreclosure

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.

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January 15, 2013

Summary Judgment For Illinois Hospital On Actual Agency In Medical Malpratice Case Not A Final Order

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.

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July 30, 2012

Continuing Confusion About Appellate Jurisdiction In Illinois Post-Dissolution Divorce Proceedings

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.

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July 21, 2012

Refusal To Modify Divorce Judgment Not Appealable Because Of Other Pending Issues

Arthur and Shirley Susman got divorced. The divorce judgment incorporated a marital settlement agreement, which reserved two subjects to be resolved later: (1) certain tax liabilities, and (2) allocation of certain personal property.

A few months later, Arthur asked the trial court to modify the judgment. He claimed there had been a mutual mistake of fact regarding a different tax liability. The trial court denied Arthur’s request.

Arthur appealed under Illinois Supreme Court Rule 301, which allows appeals from final judgments. But the First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Arthur’s appeal. The appellate court ruled that Arthur’s appeal of the order denying his request to modify the judgment was not appealable because other questions had been reserved by the trial court. Here’s how the appellate court explained it:

Here, the trial court did not resolve the allocation of the parties' personal property and pre-2008 tax liabilities. Because the parties could not fully agree what they would divide and how they would divide it, the court reserved the issues for further consideration, and the order was not enforceable in that specific regard …The court thus entered what is known as a bifurcated judgment pursuant to section 401(b) of the Illinois Marriage and Dissolution of Marriage Act … which authorizes a court to reserve issues in a dissolution judgment for further consideration … Although the court's actions might have been statutorily authorized, they did not result in a final, appealable order for the purposes of conferring jurisdiction on this court … This lack of finality regarding the dissolution action is evident from the record inasmuch as the parties continued to litigate the division of personal property.
Because the dissolution judgment was not final and appealable, the order disposing of Arthur's motion to modify the judgment therefore cannot be considered "final." … Arthur cannot seek to appeal an issue arising from the dissolution proceedings when others remain pending, and we must dismiss this appeal for lack of jurisdiction. The policy against avoiding piecemeal appeals compels the result in this case.

In passing, the appellate said Arthur could have appealed the “propriety of the [trial court’s original] bifurcated judgment.” But Arthur did not appeal that question, so the whole appeal was dismissed. Read the opinion, IRMO Susman, 2012 IL App (1st) 112068, by clicking here.

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July 15, 2012

Injured Party’s Appeal Dismissed For Violations Of Appellate Brief-Writing Rules

Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.

Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”

These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.

The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”

Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.

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April 20, 2012

Real Estate Broker’s Appeal Dismissed For Lack Of Compliance With Local E-Filing Rules

While their divorce case was pending, Robert and Cindy Andrews signed a listing agreement to sell their house. The real estate broker, VC&M, found a buyer. But the Andrewses rejected the offer, which was for less than their asking price. Instead, Cindy decided to stay in the house, so she agreed to purchase Robert’s half. As part of their marital settlement agreement, Robert transferred his interest to Cindy.

VC&M wanted a commission for introducing the prospective buyer, but the Andrewses refused to pay. So VC&M sued for breach of contract. The Andrewses asked the trial court to dismiss the complaint. VC&M filed an opposition memorandum electronically. Before VC&M’s e-filing, the parties had not stipulated to allow e-filings.

The trial court agreed that VC&M did not state a claim, so the complaint was dismissed. Thirty days later, in another electronic filing, VC&M asked the trial court to reconsider the dismissal. Another month later, VC&M filed a paper copy of its reconsideration request. Another month after that, VC&M e-filed a notice of appeal.

The Andrewses asked the appellate court to dismiss the appeal for lack of jurisdiction. They argued that the court could not consider the appeal because VC&M had not complied with the local appellate rules for e-filing. The Second District Illinois Appellate Court agreed, and dismissed VC&M’s appeal. This is how the appellate court explained it:

The trial court dismissed with prejudice the amended complaint on February 23, 2011. The record shows that plaintiff [VC&M] e-filed a motion to reconsider the dismissal 30 days later on March 25, 2011. However, as the case was not properly designated an e-filing case, the e-filing of the motion to reconsider violated Local Rule 5.03 and was a nullity. Pursuant to [Illinois Supreme Court] Rule 303, the time to file a postjudgment motion or a notice of appeal elapsed on March 25, 2011 … The hard copy of the motion to reconsider did not extend the deadline for filing a notice of appeal. Because the action was not properly designated for e-filing from the beginning, the e-filed postjudgment motion was meaningless and the hard-copy postjudgment motion was filed late.

LocalRule 5.03(d) further dictates that, even in a case properly designated for e-filing, all appellate documents shall be filed in the “conventional manner.” … The conventional manner of filing in the circuit court is in the form of paper documents submitted to the clerk of the court as is done in cases that are not e-filing cases …

Despite Local Rule 5.03’s express prohibition of e-filing appellate documents, plaintiff e-filed the notice of appeal. Plaintiff never filed a paper copy of the notice of appeal. Several months have elapsed since the trial court dismissed the amended complaint and denied the motion to reconsider, the appeal must be dismissed because the e-filed notice of appeal violated Local Rule 5.03 and was also untimely under Rule 303.

This court considered a notice of appeal as an appellate document that has to be filed in the “conventional” manner. A notice of appeal is filed in the trial court. So why not allow it to be filed it electronically? (For that matter, what is the justification for not allowing “post-judgment enforcement proceeding documents and notices” to be e-filed?) The rules should make it easier, and thus less costly to litigants, to file papers with the court. The extra layers of regulation in these local e-filing rules serve just the opposite purpose.

Read the whole opinion, VC&M, Ltd. v. Andrews, 2012 IL App (2d) 110523 (4/16/12), by clicking here.

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November 10, 2011

Texas Painting Buyers Allowed To Argue Lack Of Personal Jurisdiction In Illinois Court

Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.

The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.

The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.

Patricia appealed. She argued that Anna’s affidavit should not be considered by the appellate court because the affidavit could have been presented in the Roughtons’s original request for dismissal.

But the Second District Illinois Appellate Court disagreed. The appellate court ruled that Patricia forfeited the argument because she raised it only in her reply brief, not her original appellate brief. Plus, Patricia did not submit a transcript of the reconsideration hearing into the appellate record, so the appellate court assumed there was sufficient basis to accept Anna’s affidavit. This is how the appellate court explained it:

In her reply brief, Patricia contends for the first time that we should not consider Anna's affidavit, because there was no showing that it could not have been provided as an exhibit with the Roughtons' original motion. However, points not argued in the appellant's brief are forfeited. … Here, without a transcript of the hearing on the motion to reconsider or a substitute, we assume that Patricia did not object, that the affidavit was accepted at the hearing as newly discovered evidence, or that the trial court otherwise had ample grounds to support its determination about the affidavit. This is particularly appropriate when the motion for reconsideration was based in part on the court's indications that it would be open to learning of additional facts that arose, and when new case law arose during the pendency of the proceedings. Accordingly, we consider Anna's affidavit.

In the end, the appellate court ruled the Roughtons did not have the minimum contacts required for an Illinois court to exercise personal jurisdiction. Read the whole case, Wiggen v. Wiggen, 2011 IL App (2d) 10098, by clicking here.

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September 23, 2011

Insured’s Second Appeal Dismissed For Lack Of Jurisdiction

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.

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September 15, 2011

Naming Wrong Party In Notice Of Appeal Does Not Defeat Appeal By Estate’s Executor And Lawyer

David Hammer was executor of Ronald Weeks’s estate. Hammer hired Thomas Brucker as an attorney to assist in the administration of the estate. Hammer ($120,000) and Brucker ($170,000) paid themselves based on a percentage of the estate’s value.

Weeks left one-fourth of his estate to a New York-based charity. The charity disputed whether Hammer and Brucker could properly take a percentage of the estate for their fees. The Illinois Attorney General intervened in the case, and disputed Hammer’s and Brucker’s fees. The trial court agreed with the Attorney General, drastically lowered the fees, and ordered Hammer and Brucker to return the excess to the estate.

Hammer and Brucker appealed. But their notice of appeal stated that the Estate of Weeks was the party appealing, not Hammer and not Brucker. The Attorney General argued that the appellate court did not have jurisdiction to consider the appeal because the wrong party was identified as the appellant. The Fourth District Illinois Appellate Court ruled that the mistake on the notice of appeal was technical, and did not defeat appellate jurisdiction. Here’s how the appellate court explained the ruling.

Jurisdiction in this court is conferred by a notice of appeal … Illinois Supreme Court Rule 303 … sets forth specific formatting and filing requirements of the notice of appeal. Among other things, a notice of appeal must name the parties and designate them "in the same manner as in the circuit court and add[ ] the further designation 'appellant' or 'appellee' " … and must "contain the signature and address of each appellant or appellant's attorney" … However, "Illinois courts have repeatedly refused to dismiss an appeal because of a technical deficiency in the notice of appeal so long as the notice fulfills its basic purpose of informing the victorious party that the loser desires a review of the matter by a higher court." Petitioners' failure to name themselves as appellants in the notice of appeal, while technically deficient, did not deprive intervenor of the notice to which she was entitled. Intervenor [Attorney General] does not allege she was prejudiced in any way by petitioners' naming the estate rather than themselves as appellants.

Hammer and Brucker won the jurisdiction battle, but lost the war. The appellate court affirmed the ruling requiring Hammer and Brucker to give back the excessive part of their fees. Read the whole opinion, In re Estate of Weeks, No. 4-10-0338 (5/20/11), by clicking here.

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August 26, 2011

Denial Of Medical Clinic’s Request To Talk To Non-Defendant Employees A Proper Interlocutory Appeal

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.

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July 2, 2011

Illinois Adopts New Public-Domain Citation Method

Illinois has adopted public-domain citation for all cases filed on or after July 1, 2011. The Illinois Supreme Court has amended its Rule 6, which now also requires pinpoint citation to an assigned paragraph number. Your memorandum or brief may contain a citation to West’s North Eastern Reporter or Illinois Decisions, but those citations will be neither required nor alone sufficient. The official reporter — which we’re accustomed to citing as “Ill. 2d” or “Ill. App. 3d” — is going extinct for cases filed after July 1st.

So what’s a Westlaw researcher to do? A Westlaw telephone researcher reported the company is working on paginating in accord with the public domain versions. No word yet on when the new pagination will be available on Westlaw.

According to the revised Rule 6 comments, here’s how the new supreme court cite should look: People v. Doe, 2011 IL 10234. A pinpoint cite to an appellate court opinion should look like this: People v. Doe, 2011 IL App (1st) 101234, ¶ 15. The “1st” parenthetical refers to the First District Appellate Court, so newly filed appellate opinions will require reference to one of the five appellate court districts. (I wonder why. The Illinois appellate courts are a unified system. Each opinion, no matter which district issues it, should have equal precedential value.)

Here’s a link to Amended Rule 6.

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June 2, 2011

Illinois Changes Official Case Citation System

Changes to the official method of case citation in Illinois go into effect next month. The Illinois Supreme Court Rules will require the court docket number to be cited, and does away with citation to an official printed reporter. Official Illinois supreme court and appellate court opinions will be on the courts’ website. Here is the supreme court’s press release on the changes.

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May 29, 2011

Condo Owner’s Interlocutory Appeal Dismissed For Incomplete Rule 304(a) Finding

Marc and Mary Simon bought a condominium from Palmolive Tower Condominium before Palmolive finished constructing the building. The Simons were unhappy with Palmolive’s performance, and refused to release the money being held in escrow for Palmolive. So Palmolive sued the Simons, and the Simons counterclaimed for breach of contract and fraud.

Palmolive asked the trial court for judgment on the pleadings on its own multi-count complaint, and to dismiss the Simons’s counterclaim. The trial court dismissed the counterclaims, and stated its order was “a final and appealable order there being no just reason to delay enforcement or appeal.” Later the trial court gave judgment on the pleadings in favor of Palmolive on the first of several counts of its complaint. The remaining counts of Palmolive’s complaint were left standing. The court’s judgment said it was “final and appealable.”

The Simons appealed from both orders. The parties agreed the appellate court had jurisdiction over the order giving Palmolive judgment on the pleadings. But the court thought otherwise and dismissed that part of the Simons’s appeal. Here’s why.

Here, the defendants seek to appeal an order that resolved only one count of the plaintiff’s multi-count complaint and therefore unquestionably resolved fewer than all of the claims between the parties. Accordingly, under [Illinois Supreme Court] Rule 304(a) the order was not appealable unless it was accompanied by the circuit court’s express written finding that there was "no just reason for delaying either enforcement or appeal or both." For their stance that the circuit court’s April 10 order [giving Palmolive judgment on the pleadings on one of its claims] is appealable, the parties cite the court’s statement that the order was "final and appealable." That order, however, contains no reference either to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal.

The rationale underlying Rule 304(a) is that it allows appeals to be taken before the final disposition of a case where the circuit court considers an immediate appeal to be appropriate … Thus, Rule 304(a) allows a circuit court to limit piecemeal appeals yet still allow early appeals when, in its discretion, doing so "would have the effect of expediting the resolution of the controversy, would be fair to the parties, and would conserve judicial resources." … A circuit court’s declaration that an order is "final and appealable," without reference to the justness of delay, or even reference to immediate appealability, evinces no application of the discretion Rule 304(a) contemplates … Instead, absent some other indication from the record that the court intended to invoke Rule 304(a) … a circuit court’s declaration that an order is "final and appealable" amounts to nothing more than a non-binding interpretation.

The First District Illinois Appellate Court acknowledged that a Rule 304(a) finding does not have to exactly mirror the rule, but the circumstances do have to reflect the desirability of an interlocutory appeal. The lesson is: To assure your interlocutory order is appealable, and to avoid being a test case, make sure the Rule 304(a) finding states there is no just reason for delaying enforcement or appeal” of the order. Read the whole case, Palmolive Tower Condominiums v. Simon, Nos. 1-10-0427, 1348 (5/16/11).

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March 27, 2011

Fee Request More Than 30 Days After Final Order Doomed For Lack Of Jurisdiction

This posting is not strictly about appellate practice, but it’s worthwhile to read here because it answers the question of how long you have after a final order is entered to ask the trial court for attorney fees. And how long do you have to request fees after the trial court allows an interlocutory appeal? These are questions trial attorneys ask me a lot.

Timothy and Michael Herlehy felt they were shortchanged in their great-aunt’s trust. When she died, the Herlehys sued the trustee, First National Bank of LaGrange, and five charities that were residuary beneficiaries of the trust. The claim against LaGrange Bank was for breach of fiduciary duty in administering the trust. The Herlehys felt the charities received more money than they were entitled to, so the claim against the charities was for unjust enrichment.

The trial court dismissed the complaint against LaGrange Bank because it did not have a duty to change the trust in keeping with the Herlehys’ wishes. After it won, the bank asked for an award of its attorney fees, but the trial court denied that request because, it said, it did not have jurisdiction to consider the question.

The bank appealed the trial court’s ruling that it did not have jurisdiction to consider the bank’s request for its attorney fees. But the First District Illinois Appellate Court affirmed the ruling, agreeing that the fee request came too late. It was too late because it was filed more than 30 days after the dismissal became final and appealable.

The appellate court ruled that LaGrange’s fee request was not a post-trial motion, and was not collateral or incidental to the judgment, any one of which could be made more than 30 days after a final order. The appellate court ruled the bank’s judgment became final when the trial court made a finding under Illinois Supreme Court Rule 304(a) [allowing an appeal before all claims against all parties are determined]. So the fee request should have been made within 30 days of the Rule 304(a) finding.

In any event, the bank’s and the charities’ judgments were affirmed. Click here to read the whole case, Herlehy v. Marie V. Bistersky Trust, Nos. 1-09-0038, 1-09-1892, 1-09-3295, 1-09-3431, 1-10-0070, 1-10-0071 (12/23/10).

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February 24, 2011

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

David and Rojean Molloy were battling for custody of their two children.
The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David’s lawyer from attending the social worker’s evaluation session with David. The trial court agreed and barred David’s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

But the public guardian asked the appellate court to dismiss David’s appeal. The guardian argued there was no Rule 307 injunction because the order “merely set conditions for the petitioner’s [David] … evaluation.”

The First District Illinois Appellate Court agreed with the guardian and dismissed David’s appeal for lack of appellate jurisdiction. The court ruled that the order preventing David’s lawyer from attending the evaluation was ministerial, and therefore not an injunction that can be appealed before the end of the case. Here is the appellate court’s thinking:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not do a particular thing.” … Court orders that are ministerial or administrative cannot be the subject of an interlocutory appeal … An order is deemed ministerial or administrative if it regulates only procedural details of the litigation before the court … Such an order “do[es] not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief."

Here … we find the aim of the circuit [trial] court’s order to be ministerial; the order places a “condition” of the custody evaluation of the petitioner [David] as provided under section 604(b) of the [Marriage Dissolution] Act … [T]he order is not the equivalent of a preliminary injunction whose function is “to preserve the status quo resolution of the merits of the case."

Read the whole opinion, In re Marriage of Molloy, 1-10-1224 (2/10/11), by clicking here.

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February 14, 2011

Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

The trial court granted David’s request to disqualify Komie. Komie asked the appellate court for leave to appeal on behalf of Markrack, as next friend of I.M. David asked the appellate court to dismiss the appeal for lack of jurisdiction. The Second District Illinois Appellate Court allowed Markrack to appeal, and denied David’s request to dismiss.

In his brief to the appellate court, David again asked for dismissal. David argued that the Illinois Supreme Court Rules only allowed a “party” to request leave to appeal. Because I.M. was not a “party” to Elizabeth’s petition for a protective order, David asserted, she could not appeal the trial court’s ruling that disqualified Komie.

The court of appeals disagreed again, and ruled that it had jurisdiction to consider I.M.’s appeal. “Party,” under the Illinois Supreme Court Rules, was not limited to the petitioner (Elizabeth) or the respondent (David). This is how the appellate court explained it:

Respondent contends … that I.M. is not a "party" within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so restrictively. The rule does not designate that a "party" must be a plaintiff, defendant, or third party to the action in order to petition for leave to appeal. Rather, the rule simply provides that a "party" may petition for leave to appeal from an order granting a motion to disqualify "the attorney for any party." … I.M., as a protected person under an order of protection, is a "party" to that proceeding. I.M. is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction under [Illinois Supreme Court] Rule 306(a)(7).

In the end, the appellate court reversed Komie’s disqualification. Read the whole case, Macknin v. Macknin, No. 2-10-0221 (9/23/10), by clicking here.

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December 19, 2010

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

So the initial question was whether the appellate court could or should consider that basic question, which neither insurer briefed or argued. Relying on the general powers the appellate court has under Illinois Supreme Court Rule 366, the appellate court ruled that it could consider the question to reach a fair result. This is how the court explained it:

Although the parties did not address this threshold issue of coverage in the trial court and both parties proceed before us under the assumption that the two policies provided overlapping insurance coverage, it is within our discretion to address this possibly dispositive issue …

While generally issues not raised at the circuit court level are considered waived, "a reviewing court does not lack authority to address unbriefed issues and may do so * * * when a clear and obvious error exists in the trial court proceedings."… " '[U]nder [Illinois Supreme Court] Rule 366 … a reviewing court may, in the exercise of its responsibility for a just result, ignore consideration of waiver and decide a case on grounds not properly raised or not raised at all by the parties.' " … In choosing to address an unbriefed issue, we recognize that as a reviewing court, we must refrain from doing so if the effect would be to transform us from jurist to advocate … That is not our intention here.

In the end, the appellate court ruled that Mid-Century’s policy did not insure the Chevy, so Founder’s summary judgment was reversed, and Mid-Century did not owe anything toward Berry’s settlement with Villareal. Read the whole opinion, Mid-Century Insurance v. Founders Insurance, No. 1-09-1858 (9/24/10), by clicking here.

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November 28, 2010

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov’s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein’s libel case. Among other things, Krislov asserted immunity from Stein’s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov’s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov’s appeal. The appellate court stated (1) the denial of Krislov’s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

This is how the appellate court explained it:

Defendants {Krislov] contend this court has jurisdiction to review this appeal as an interlocutory appeal based on Rule 307(a)(1) and the language of section 20(a) of the Act.

When determining whether a trial court’s action constitutes an appealable injunctive order, the substance of the action, not the form, is relevant.

We recognize that the meaning of “injunction” should be construed broadly … however, the motion to dismiss in this case does not constitute an injunction. Defendants were not required to do anything or forced to refrain from anything as a result of the trial court’s order denying their motion to dismiss. Defendants were not restrained in their speech where the trial court issued no directive regarding defendants’ ability to speak about the case. In its order, the trial court simply concluded that the Act did not apply to the case at bar because of the newly created immunity could not be applied retroactively. Defendants retain the ability to defend Krislov’s actions in the underlying lawsuit where they can assert the same arguments in defense of Krislov’s letter despite the lack of immunity from the Act.”


The appellate court also rejected Krislov’s argument that the Act itself provided appellate jurisdiction.

We previously determined that the denial of the motion to dismiss in this case was not a final judgment and not injunctive in nature. Though we recognize that statutes are presumed constitutional, if the legislature was attempting to provide appellate jurisdiction from a nonfinal order not falling within the dictates of Rule 307, a constitutional conflict would exist … “If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal … Thus, a statute that claims to give the right to an interlocutory appeal not covered by supreme court rules or to give the appellate court jurisdiction over that appeal would violate article VI, section 6, of the constitution. Such a statute also would violate the separation-of-powers clause of the article II, section 1, of the constitution … Appellate jurisdiction is, therefore, not conferred by section 20(a) of the Act.”

Read the whole case, Stein v. Krislov, 1-09-3478 (11/8/10), by clicking here.

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November 23, 2010

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer’s Sanctions Request

Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident. The Yunkers felt they were entitled to coverage under the insurance policy, so they sued Pekin.

The trial court agreed with Pekin, and gave the insurer summary judgment, Four days later, the Yunkers appealed the trial court’s ruling.

About two and one-half weeks after that, Pekin filed a request for sanctions against the Yunkers in the trial court. The trial court denied Pekin’s sanctions request a few weeks later. Pekin appealed that ruling. Pekin also asked the appellate court to dismiss the Yunker’s appeal. Pekin argued that its request for sanctions rendered the Yunker’s appeal of the summary judgment premature, resulting in no jurisdiction for the appellate court over the Yunker’s appeal.

The Third District Illinois Appellate Court rejected Pekin’s argument and ruled that it had jurisdiction to hear the Yunker’s appeal. Under Illinois Supreme Court Rule 303, an appeal that becomes premature because of a post-judgment motion filed in the trial court becomes effective again after the trial court rules on the post-judgment motion. Here’s how the appellate court explained it:

Under the circumstances at bar, although the Yunkers' May 22, 2009, notice of appeal was premature due to Pekin's June 9, 2007, motion for sanctions, pursuant to [Illinois Supreme Court] Rule 303(a)(2), the notice is deemed effective on June 17, 2009, when the trial court denied the motion. Because the Yunkers were not appealing the results of the June 17 [sanctions] ruling, they were not required to file an amended notice of appeal. Because the Yunkers' notice of appeal was timely, we hold that this court has jurisdiction.

In the end, the appellate court ruled that Pekin was not responsible for Maggie’s medical expenses. Read the whole opinion, Yunker v. Farmers Automobile Management, Nos. 3-09-0417, 3-09-0521 (9/9/10), by clicking here.

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October 20, 2010

No Appellate Jurisdiction Over Landlord Not Explicitly Identified On Notice Of Appeal

Andrea Coleman sued Christina Udoh and her husband, Nsikak Akpakpan, for violating the Chicago Residential Landlords and Tenants Ordinance. The case was arbitrated, and Coleman was awarded $20,600. The trial court barred Udoh and Akpakpan from rejecting the arbitration award, so they appealed.

Representing herself, Udoh filed her own notice of appeal. She did not write Akpakpan’s name on the notice. Nor did he file his own notice of appeal. Coleman claimed there was no appellate jurisdiction to hear Akpakpan’s appeal. The First District Illinois Appellate Court agreed. Here’s the appellate court’s explanation:

Where the notice of appeal clearly names only one party as appellant, the court considers the appeal to be taken only by the named party … In the absence of a separate notice of appeal filed by Mr. Mr. Akpakpan and the failure of the notice of appeal filed by Ms. Udoh to name him as an appellant and to include his signature or the signature and address of his attorney [required by Illinois Supreme Court Rule 303(b)(4)], Mr. Akpakpan is not a party to this appeal. We will consider this appeal only as to Ms. Udoh, and the judgment against Mr. Akpakpan will not be affected by its outcome.

In the end, the judgment was affirmed, so the lack of jurisdiction over Akpakpan’s appeal did not matter. But in any event, the lesson is: Always identify by name the parties who are appealing. And if you’re filing your notice of appeal without a lawyer, make sure that all parties who are appealing sign the notice, or file their own. The whole case, Coleman v. Akpakpan, No. 1-09-2629 (6/30/10), is available by clicking here.

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October 10, 2010

Trial Court’s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein. Unhappy with the result in the trial court, Bernstein appealed. Grazian filed a counter appeal.

Under Illinois Supreme Court Rule 309, Bernstein asked the trial court to dismiss his appeal. The trial court obliged, but Bernstein told the appellate court his request to dismiss his appeal was a mistake. He asked the appellate court to reinstate his appeal. A single judge of the appellate court obliged that request . But Grazian asserted the earlier dismissal by the trial court deprived the appellate court of jurisdiction to reinstate the appeal.

The First District Illinois Appellate Court agreed with Grazian. Here is the court’s rationale:

Once the trial court properly dismissed Bernstein’s appeal pursuant to Rule 309 upon his own motion, it was as if Bernstein had never filed a notice of appeal in our court. Instead … jurisdiction revested with the trial court. The only recourse for Bernstein, then, to move jurisdiction to our court was to petition the trial court to vacate its dismissal or … file another notice of appeal from the original judgment in the cause – some similar action taken within 30 days of the trial court’s final and appealable order dismissing his appeal.

The lesson is: The appellate court cannot regain jurisdiction after the trial court has legitimately dismissed a notice of appeal under authority given by Illinois Supreme Court Rule 309. Read the whole opinion, which includes a host of other jurisdictional arguments, Bernstein and Grazian v. Grazian and Volpe, No. 1-09-0149 (6/25/10), by clicking here.

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September 19, 2010

Landowner Ordered To Pay Appellate Attorney Fees In Due Process Dispute

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.

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September 5, 2010

Anonymity of Internet Posters Reviewed De Novo

This is an important Illinois case inasmuch as it has generated one of just a handful of appellate opinions that deal directly with the law as applied to internet use and political speech.

Donald Maxon claimed he was defamed by comments posted by unidentified members of the public on a web version of the Times, a newspaper published by Ottawa Publishing Company. Certain unedited comments, Maxon felt, accused him of bribing city council members in return for a favorable vote on a city ordinance.

Ottawa Publishing knew the identities of the commenters, who wrote anonymously on the internet page. Maxon wanted to sue the commenters. To find out whom they were, Maxon filed a petition under Illinois Supreme Court Rule 224 [allowing pre-trial discovery “for the sole purpose of ascertaining the identity of one who may be responsible in damages …”] demanding Ottawa Publishing to identify the commenters.

The trial court denied Maxon’s petition. It ruled that the petition as a matter of law did not defeat the right of the commenters to speak anonymously on the internet, and that the comments were non-actionable opinions. Maxon appealed.

Maxon and Ottawa fought over the standard of review in the appellate court. Appellate review of most rulings on Rule 224 petitions is by the abuse-of-discretion standard, just like review of a typical discovery ruling. But the Third District Illinois Appellate Court ruled that a de novo standard applied in this case. The appellate court used the heightened review standard because “[w]here a trial court's exercise of discretion relies upon a conclusion of law, our review is de novo.”

In the end, a split appellate court reversed and allowed Maxon’s petition to force disclosure of the commenters’ identities. Read the whole opinion, Maxon v. Ottawa Publishing, No. 3-08-0805 (6/1/10).

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June 8, 2010

Supreme Court Rule Reviewed De Novo

I get this question a lot: What is the standard of review for interpretation of a state supreme court rule?

Here’s the answer: “Because Garlock's argument involves the construction of a supreme court rule, our review is de novo … When interpreting a supreme court rule, a reviewing court should apply the same principles of construction that apply to a statute--that is, the reviewing court should ascertain and give effect to the intent of the supreme court in promulgating the rule … The most reliable indicator of that intent is the specific language used in the rule … When the language of a supreme court rule is clear and unambiguous, a reviewing court should apply the language without reference to other interpretive aids …”

The quote is from White v. Garlock Sealing Technologies, No. 4-09-0036 (2/8/10), available here for the clicking.

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May 6, 2010

Introduction Stricken As Argumentative

The Illinois Supreme Court rules require appellant’s merits brief to have an introductory paragraph. The introduction normally is described as the “Nature of the Action.” I often see appellant merits briefs that have long and argumentative “Nature of the Action” sections. The Second District Illinois Appellate Court recently struck one that was just too much. Here’s why:

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings … Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

The lesson is: Resist the urge to argue in the introductory paragraph. Just because you can throw down the gauntlet at that point doesn’t mean you should. The rules do not instruct you to do so. And most important is that your audience is not looking for your argument in the introduction.

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January 16, 2010

Jurisdiction Okay Despite Candidate’s Appeal Under Wrong Rule

Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo’s appointment went through there was less than 28 months left in Aiello’s term.

Under the Illinois Election Code, a person appointed to fill a vacancy completes the term if less than 28 months remain. If more than 28 months remain in the term, then the person appointed stays in office only until the next election. The next election was in 2008, but the Aiello term did not expire until late 2010. The question was when the clock started ticking – when Aiello passed away or when Biondo was appointed.

The Democratic Party submitted Carolyn Gardner as a candidate to run for the Aiello vacancy in the November 2008 election. Believing Biondo could complete Aiello’s term, and that there should not be an election for the seat until 2010, the Republican Party did not submit a candidate for the office. Nor did Biondo apply to run.

Margie Mullins, the County Clerk, sided with Biondo and refused to place Gardner on the ballot. So Gardner sued for a writ of mandamus to direct Mullins to do so.

The trial court agreed with Gardner and directed Mullins to put Gardner on the ballot. Biondi then entered the lawsuit and asked the trial court to direct that his name be placed on the ballot. But the trial court disagreed with Biondo, who then asked the court to reconsider and for a temporary restraining order to prevent the election for Aiello’s seat. The trial court denied both of Biondo’s requests.

Biondo appealed under Illinois Supreme Court Rule 307 [allowing interlocutory appeals of orders refusing restraining orders as of right]. Gardner asked the appellate court to dismiss the appeal for lack of jurisdiction. One day before the election, the appellate court ruled in favor of Biondo, and stated his name should be on the election ballot. But by then it was too late to change the ballot. The election proceeded with Gardner as the only name of the ballot for the Aiello seat.

Gardner then appealed to the Illinois Supreme Court. Her first argument was that Biondo’s appeal should have been thrown out for lack of jurisdiction. The supreme court agreed that Rule 307 was not the correct rule for Biondo to appeal under. Rule 307 applies only to interlocutory orders. But “Biondo filed a motion for a temporary restraining order after final judgment on the case had been entered [i.e., the order that was entered before Biondo intervened in the case]. Contrary to Biondo's argument, the filing of a motion to reconsider has no effect on the finality of an otherwise final judgment … Because final judgment had been entered, Biondo's appeal under Rule 307 was inappropriate as it was not interlocutory in nature.”

But Biondo’s error was not fatal to the appeal. The judgment Biondo contested, the supreme court stated, was final and appealable, so even though he used the wrong rule, there was appellate jurisdiction. Here’s how the Illinois Supreme Court explained it.


The appellate court has jurisdiction to hear appeals of final judgments … Because this appeal is from a final judgment, Biondo's appeal would have been proper if brought pursuant to Rule 301, as an appeal as of right … Further, instead of filing for a temporary restraining order, Biondo could have properly moved to stay the circuit court's judgment pending appeal pursuant to Rule 305 … Though the appellate court would have been well within its authority to dismiss Biondo's appeal for failing to cite the appropriate rule, his error was not sufficient to divest the appellate court of jurisdiction where the court otherwise had jurisdiction.

So Biondo got his day in court. But to no avail, because the Illinois Supreme Court ruled that the time begins to run when the vacancy occurs, not when it is filled. Read the whole opinion, Gardner v. Mullins, No. 107707 (9/24/09), by clicking here.

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December 20, 2009

No Appellate Jurisdiction Over Trustee’s Appeal Filed Before Final Distribution Of Assets

After Eleanor Miller died, Melodee Miller-Hanson became the successor trustee of Eleanor’s trust. Melodee got into a dispute with the other beneficiaries of the trust, and they ended up suing each other. The beneficiaries wanted Melodee removed as trustee; Melodee wanted the beneficiaries disinherited.

Melodee’s counterclaim was dismissed. And with “a few specific exceptions that were to be assessed against Melodee’s final distribution share,” the trial court ruled against the beneficiaries in their claim against Melodee. Melodee later asked the court to grant her litigation expenses, which the court largely denied.

Under Illinois Supreme Court Rule 304(b)(1) [allowing an interlocutory appeal from a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party], Melodee appealed a number the trial court’s rulings in connection with her requests for fees and costs. But she filed her notice of appeal before the court ruled on a final distribution of the assets of the trust.

Arguing that the appeal was premature, the beneficiaries asked the Second District Illinois Appellate Court to dismiss the appeal. The appellate court agreed that Melodee’s appeal did not invoke appellate jurisdiction: there was no final order from which to appeal because the rights of the parties had not been established. Here is the court’s explanation:

… [T]he rights of the parties to the distribution of the trust assets had not been established by order of the court. While Melodee’s trustee fees had been set by the court, none of the beneficiaries, including Melodee, knew in what proportions the remaining trust assets would be divided … Clearly, no party’s rights regarding the trust were finalized …

To allow Melodee’s appeal at this point is to encourage piecemeal appeals; if we were to address this appeal and affirm the judgment, the execution [of the judgment] would not be the only thing remaining to be done … There was no final judgment from which to appeal, and no provision of Supreme Court Rule 304 applies. Therefore, we grant the plaintiff beneficiaries’ motion to dismiss …


The appellate court also ruled that Illinois Supreme Court Rule 304(b)(1) did not apply to this case because the trial court’s “limited activity falls well short of the type of oversight involved in comprehensive proceedings like estate or guardianship proceedings.” Read the whole case, In re The Living Trusts of George C. Miller and Eleanor Miller, 2-07-0773 (12/14/09), by clicking here.

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December 12, 2009

Notice Of Appeal More Than 30 Days After 304(a) Finding Still Vests Appellate Jurisdiction

This insurance coverage case has a unique twist on when an interlocutory order under Illinois Supreme Court Rule 304(a) may be appealed.

John J. Rickhoff Sheet Metal Co. filed a third-party complaint against Meridian Mutual Insurance Co and the Horton Group, Inc. Meridian and Horton asked the trial court to dismiss Rickhoff’s third-party complaint, which the court did.

Rickhoff then asked the court to reconsider the dismissals. The trial court denied Rickhoff’s request as to Meridian, and entered Rule 304(a) language [no just reason to delay enforcement or appeal] permitting an interlocutory appeal within 30 days. The trial court took the reconsideration request as to the Horton dismissal under advisement. More than 30 days later, the court also denied that request to reconsider, and made a similar Rule 304(a) finding.

Rickhoff appealed both dismissals within 30 days after the trial court denied the Horton reconsideration request. By that time, more than 30 passed from the time the court made its Rule 304(a) finding as to Meridian. So Meridian asked the appellate court to dismiss Rickhoff’s appeal because it was filed too late, depriving the appellate court of jurisdiction.

The First District Illinois Appellate Court disagreed with Meridian. The court said it had jurisdiction because Rickhoff’s whole third-party action was a “single piece of the action,” so it was okay to wait to appeal Meridian’s dismissal until after the ruling on Horton’s. Here’s how the appellate court viewed it:


In determining the effect of Rule 304(a) findings, our supreme court has made clear that its interpretations have been governed by its policy disfavoring piecemeal appeals … Further, our examination of the record in the case at bar discloses that the intent of the court and the parties was to treat the third-party action as a single piece of the action, albeit separate from the primary action commenced by State Farm, as to both third-party defendants. The court resolved both third-party defendants' motions to dismiss in a single order, and Rickhoff filed a single motion to reconsider as to both third-party defendants. Moreover, the allegations regarding the third-party complaint as well as the grounds for its dismissal against both third-party defendants involved the conduct of both third-party defendants. The record thus discloses that the trial court exercised its discretion to determine whether to sever the third-party complaint from the initial complaint filed by State Farm … We therefore find that the Rule 304(a) finding entered by the circuit court on December 14, 2007, should be strictly construed as to apply only to sever the third-party action from the primary action filed by State Farm …

As a result, Rickhoff's notice of appeal, which was filed less than 30 days after the order disposing of the portions of Rickhoff's motion to reconsider that related to Horton, was timely as to both Meridian and Horton. Thus, jurisdiction exists over Rickhoff's appeal of the dismissal of its third-party complaint against Meridian.

This opinion also lists six factors the court should consider in deciding whether to grant an interlocutory appeal. (“a paramount consideration is efficient judicial administration”). The whole thing, State Farm Fire & Casualty v. John J. Rickhoff Sheet Metal, No. 1-08-1933 (8/19/09), is available by clicking here.

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December 7, 2009

Failure To Designate Amount Of Attorney Fee Award Deprives Appellate Jurisdiction For Interlocutory Appeal

The City of West Chicago passed a zoning ordinance that banned certain billboards. Lamar Whiteco Outdoor Corporation sued the city, claiming the ordinance was unconstitutional. Lamar and the city eventually settled: an injunction was entered prohibiting the city from enforcing the ordinance against Lamar, and Lamar withdrew the lawsuit.

Lamar then filed a petition for its attorney fees. The trial court ruled that Lamar was entitled to the fees. But the court did not state how much money Lamar should get. The city asked the court to reconsider the ruling. The court refused to reconsider, and also ordered under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of final judgments as to one or more but fewer than all of the parties or claims] that its order allowing the attorney fees was a final and appealable interlocutory order.

The city appealed. But Lamar argued the appellate court did not have jurisdiction to hear the appeal. Lamar maintained that Rule 304(a) did not give the appellate court a basis to consider the appeal.

The Second District Illinois Appellate Court agreed with Lamar and dismissed the appeal for lack of jurisdiction. The appellate court ruled that an order is not appealable under Rule 304(a) just because a trial court says so. There still must be a final judgment. This is how the appellate court explained it:

The inclusion of a Rule 304(a) finding in an order does not transform a nonfinal order into a final and appealable order … Rule 304(a) language applies only to cases involving multiple claims, multiple parties, or both, and in those cases, it can be used to sever a final order as to one claim or party from other claims or parties … The trial court’s use of Rule 304(a) language in an order does not affect its finality … Here, the parties settled all claims except the one for attorney fees and costs, and the City does not appeal any matter but the one that remains undetermined. The City does not wish to appeal any final order by severing it from the still pending claim for attorney fees and costs, and therefore, the Rule 304(a) finding is completely superfluous.

The whole opinion, Lamar Whiteco Outdoor Corp. v. City of West Chicago, No 2-08-0020 (10/8/09), is available here.

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November 25, 2009

Request To Modify Language Of Judgment Does Not Extend Time To File Appeal

Cheryl Heiden claimed Craig Ottinger was her daughter’s father. So Cheryl sued Craig under the Illinois Parentage Act, and asked for support payments from Craig. A DNA test of Craig’s blood excluded him as father. But Cheryl claimed Craig’s vial of blood was mishandled, so she sued the DNA Diagnostics Center, the company that agreed to do the test.

DNA Diagnostics asked for, and received, summary judgment on Cheryl’s complaint. Within the 30-day deadline, Cheryl filed a “Motion to Reconsider Court Order of April 13, 2007, and For Clarification of said Order.” The trial court denied the motion, and Cheryl appealed within 30 days of that order.

But Diagnostics asserted that Cheryl’s appeal should be dismissed because it was filed more than 30 days after the summary judgment was entered by the trial court. Cheryl’s Motion to Reconsider, Diagnostics argued, was not a valid post-judgment motion, so it did not extend the time for her to file the appeal.

The Second District Illinois Appellate Court agreed with Diagnostics. The court ruled that Cheryl’s motion only asked for modification of the language of the judgment, but not an actual modification of the judgment. That kind of motion did not extend the time for Cheryl to file her appeal. Here’s how the court explained it:

Plaintiffs’ appeal was untimely because they did not file a postjudgment motion that extended the time for filing their notice of appeal under Rule 303(a)(1). A postjudgment motion extends the time for filing a notice of appeal under Rule 303(a)(1) only when it seeks rehearing, retrial, modification or vacation of the judgment, or other similar relief … For purposes of Rule 303(a)(1), a motion for modification of the judgment must challenge the judgment, not simply request modification of the language of the judgment … Plaintiffs’ motion did not request a rehearing or substantive reconsideration regarding the summary judgment and did not provide any basis for reconsideration of the summary judgment, and it did not extend the time for appeal under Rule 303(a)(1), Plaintiffs’ appeal was thus untimely, and we must dismiss it.

This was a split decision. Read the whole opinion, Heiden v. DNA Diagnostics Center, No. 2-07-0620 (11/9/09), by clicking here.

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November 21, 2009

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that “aims to protect defendants from ‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government.”) The trial court denied the request to dismiss the case, so the Browns and the Furkins appealed.

The Browns and the Furkins argued that the Citizen Participation Act expressly allowed an appeal “from a trial court order denying” a motion to dismiss. But the Fifth District Illinois Appellate Court refused to recognize that part of the statute, and dismissed the appeal for lack of appellate jurisdiction. The appellate court ruled that the legislative attempt to make the order immediately appealable conflicted with the Illinois Constitution in two respects:

• First, the constitution allows only final orders to be appealed, and permits only the Illinois Supreme Court to make rules for appeal of interlocutory orders.
• Second, the legislature violated the separation-of-powers clause of the constitution by attempting to exercise a power reserved to the supreme court.

Here is the court’s explanation:

If … we were to interpret the language of the [Citizen Participation] Act as the defendants request … we would encounter a constitutional conflict. The Illinois Constitution … grants the right to appeal from a final judgment only … However, it gives the right to make rules governing interlocutory appeals exclusively to the supreme court … Thus, a statute that claims to give a right to an interlocutory appeal not covered by supreme court rules or to give the appellate court jurisdiction over that appeal would violate article VI, section 6, of the constitution. Such a statute also would violate the separation-of-powers clause in article II, section 1, of the constitution … [No branch of the government may exercise powers reserved to another branch.]

Read the whole case, Mund v. Brown, No. 5-08-0178 (8/21/09), by clicking here.

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November 11, 2009

Unfounded Motion To Reconsider Judgment Extends Time To File Appeal

James Bertell was involuntarily committed to the Rockford Memorial Hospital. James sued the hospital, claiming its petition for involuntary commitment was late. The circuit court disagreed and dismissed James’s complaint. After the trial court denied James’s motion for reconsideration of the dismissal, James appealed within the 30-day deadline.

Nevertheless, the hospital asked the appellate court to dismiss the appeal for lack of appellate jurisdiction, asserting that James’s notice of appeal was filed too late. The hospital argued that James’s motion for reconsideration did not extend the time to file the appeal because the motion was “invalid and frivolous.” But the Second District Illinois Appellate Court disagreed because the rule that extends the time to file an appeal did not make an exception for unfounded reconsideration motions. Here’s the way the court explained it:

Plaintiff complied with the rule [Illinois Supreme Court Rule 303(a)(1), allowing an appeal to be filed within 30 days after a ruling on a reconsideration motion] and the statute [Illinois Civil Procedure Rule 2-1203(a), applying the extended deadline to reconsideration motions made after a bench trial]. He filed his notice of appeal within 30 days after the entry of the order denying his motion to reconsider. He filed the motion, which was directed and sought relief against the judgment dismissing his complaint, within 30 days after the entry of the judgment. Therefore, given the plain language of Rule 303(a)(1) and section 2-1203(a), we conclude that we have jurisdiction over plaintiff's appeal.

Defendants' request that we ignore plaintiff's postjudgment motion because it was frivolous or brought for an improper purpose finds no support in the rule or the statute. Defendants ask us to create an exception to section 2- 1203(a)'s definition of a postjudgment motion or perhaps to Rule 303(a)(1)'s language extending the time in which to file a notice of appeal. We may not read in such exceptions … Nothing makes our jurisdiction depend on the soundness of a postjudgment motion or the motivation for its filing.

Get the whole opinion, Bertell v. Rockford Memorial Hospital, No. 2-08-0652 (7/22/09), by clicking here.

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November 9, 2009

Permanent Disgorgement And Removal From Company Board Not Appealable Interlocutory Orders

Rick Santella fought with family members over control of Food Groupie, Inc., a closely held family corporation. Santella, and Mary and William Kolton were co-owners of the company. Santella sued the Koltons after they gave themselves bonuses and commissions, and stated their intention to close Food Groupie and to open a similar business in which Santella would not be involved.

Santella’s lawsuit asked for return of the bonus ($ 144,019) to Food Groupie, and removal of the Koltons as directors and officers of the company. After the trial court granted both of Santella’s requests, the Koltons appealed under Illinois Supreme Court Rule 307(a)(1) (interlocutory appeal allowed from a trial court order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”)

Santella asked the First District Illinois Appellate Court to dismiss the appeal. He argued, and the appellate court agreed, that removing the Koltons as directors and officers did not require them to do anything, so those orders were not injunctions that could be appealed under Rule 307(a)(1).

But ordering the Koltons to return the money they took as commissions and bonuses was an injunction because the Koltons were required to do something − give back the money. However, the analysis did not end there. The appellate court ruled that the “give back” order was permanent, not interlocutory. And because Rule 307(a)(1) only governs interlocutory orders, the Koltons’s appeal had to be dismissed. The appellate court identified three reasons the order was permanent:

The court's order requiring defendants to pay $144,019 back to the corporation was a permanent order not subject to review under Rule 307(a)(1). The permanency of the order is evidenced by the fact that it altered the status quo, concluded the rights of the parties, and was not limited in duration.

So in the end, the Koltons’s entire interlocutory appeal was dismissed. The whole opinion, Santella v. Kolton, No. 1-08-1329, 1357, 1847 (7/31/09), is available here.

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October 25, 2009

Appeal Before Ruling On Right To Tax Deed Premature

Dennis Ballinger owned a communications tower that was erected on property in Hancock County, Illinois. He filed a petition to obtain a tax deed for the property. Pettit Land, LLC. disputed Ballinger’s petition. Pettit claimed it owned the land, but not the tower, and that it properly paid taxes for the land.

Pettit asked the court to deny Ballinger’s request for the tax deed. After a hearing on Pettit’s request, the trial court ruled in Pettit’s favor and stated: “…[I]f petitioner [Ballinger] proceeded forward to obtain a tax deed, he would only receive rights in the improvements on the site (the communications tower) and would not receive rights to the underlying ground.”

Ballinger asked the trial court to reconsider the ruling. The court denied Ballinger’s request, and ruled that its original order and the order denying reconsideration were final and appealable. So Ballinger appealed.

The Third District Illinois Appellate Court dismissed the appeal. Because the orders did not conclude the proceeding for a tax deed, they were neither final nor appealable. Here’s the way the appellate court saw it.

In the present case, the issue on appeal involves only the trial court’s ruling on a motion brought during the course of a tax deed proceeding. This appeal does not involve the trial court’s ultimate ruling granting or denying the tax deed or declaring a sale in error … Thus, despite the trial court’s statement to the contrary, the orders in question were not “final judgments,” as specified in [Illinois] Supreme Court Rule 301, which would provide for an appeal as a matter of right.

Read the whole opinion, Ballinger v. Pettit Land, No. 3-09-0134 (10/15/09), by clicking here.

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October 23, 2009

Reconsideration Motion Untimely So Illinois Supreme Court Dismisses Appeal

The Illinois Supreme Court recently reversed the appellate court and dismissed Jennifer Keener’s appeal. Jennifer sued the City of Herrin on behalf of Chelsea Keener’s estate. Chelsea had been taken into custody by Herrin police for unlawful consumption of alcohol. After the police let Chelsea leave, she was struck by an automobile and killed.

Herrin asked for, and received, a dismissal of Jennifer’s amended complaint. But the court clerk did not mail a copy of the dismissal order to Jennifer’s lawyer. Apparently unaware of the dismissal, seven months later, Jennifer’s lawyer filed a response to Herrin’s motion to dismiss.

Four months after that, the case was heard on Herrin’s request for a status conference. At the status conference, the trial court stated its intention to reconsider the dismissal “upon written motion to be submitted” by Jennifer. The trial court ultimately denied Jennifer’s motion to reconsider.

Herrin then objected to the trial court’s jurisdiction even to accept Jennifer’s request for reconsideration. Because Jennifer’s reconsideration request came more than 30 days after the case was dismissed, Herrin argued that the trial court no longer had the power to rule on the matter. But the trial court allowed its ruling to stand. Jennifer appealed within 30 days of the trial court’s ruling on Herrin’s objection.

The ruling in the supreme court turned on whether Jennifer’s request was a “motion for reconsideration” of the judgment (which must be filed within 30 days), or a petition under Illinois Civil Procedure Rule 2-1401 (relief from final orders and judgments after 30 days). The Illinois Supreme Court ruled that Jennifer’s motion was for reconsideration of the judgment. The trial court did not have jurisdiction to rule because the motion was made more than 30 days after the dismissal. And because the reconsideration motion was not timely, it did not extend the time for Jennifer to appeal. She missed the 30-day deadline for filing a notice of appeal, so the supreme court dismissed the appeal.

This opinion reiterates the rule that attorneys have an obligation to monitor their cases. A court clerk’s failure to mail notice of a dismissal does not absolve an attorney from missing a deadline to ask for reconsideration or to appeal. Read our summary of the appellate court opinion, which we reported on last December, by clicking here. Get the whole Illinois Supreme Court opinion, Keener v. City of Herrin, No. 107658 (10/8/09), by clicking here.

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October 8, 2009

End-Of-Paragraph Fact Cites Comply With Illinois Supreme Court Rules

Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city.

The record citations in the fact section of the city’s appellate brief were placed at the end of each paragraph, rather than after each sentence. Charles asked the appellate court to strike the facts in the city’s brief and the arguments that relied on those facts. He argued that the city’s method of record citation violated Illinois Supreme Court Rule 341(h)(6), which requires an accurate and fully cited fact section.

The Fourth District Illinois Appellate Court denied Charles’s request and allowed the city’s brief to stand. The court explained:

The city's brief contains a cite to the record only at the end of each paragraph of the statement of facts and lacks cites entirely in two paragraphs of its argument section. Supreme Court Rule [341] requires a "[s]tatement of [f]acts * * * with appropriate reference to the pages of the record on appeal." … [T]he city provided the cites at the end of each paragraph of facts and these record cites support the facts stated throughout the paragraph and correspond to the information contained on cited page of the record. The rule does not require the brief to contain a cite at the end of each sentence. Moreover, " '[w]here violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted.' … We deny the motion to strike.

Charles lost that battle but won the war. The judgment for the city was reversed, and the case was remanded back to the trial court. Read the whole case, Gaston v. City of Danville, No 4-08-0803 (7/17/09), by clicking here.

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September 27, 2009

Premature Notice Of Appeal Deprives Court Of Jurisdiction To Review Conditional Release Of Sexually Violent Person

Benjamin Hernandez, adjudicated to be a sexually violent person under the Illinois Sexually Violent Persons Commitment Act, was placed on conditional release. The State appealed, but filed its notice of appeal before the trial court approved the conditional release plan. Nor did the State file a new notice of appeal after the conditional release plan was approved.

The Second District Illinois Appellate Court dismissed the appeal because the State’s only notice of appeal was premature. When the trial court entered the order that placed Hernandez on conditional release, it also continued the case “for the presentation of a release plan.” The order for conditional release was not final and appealable, the court ruled, because:

[It] necessitated and contemplated further action by the court to determine the conditions of release. The [trial] court expressly retained jurisdiction over the proceedings for approval of the conditional release plan, as required by statute … We determine that the reservation of jurisdiction for the purpose of entering a conditional release plan shows that not all of the issues in dispute were fully addressed and settled by the July 3 [conditional release] order. Thus, the July 3 order was not final.

This opinion contains a “reluctant” concurrence. While recognizing the necessity of following the rules of appellate jurisdiction, the concurrence wondered whether there was a way to accommodate jurisdiction so an issue of public safety could be reviewed. Here is what the concurrence said:

This is an unfortunate and unconscionable result due to the hazards and intricacies of appellate jurisdiction. Appellate jurisdiction is rather like taking a stroll in a minefield … Here, the State stepped on the landmine of a premature notice of appeal – a problem that persists notwithstanding our supreme court’s effort to eradicate this pitfall by amending [Illinois Supreme Court] Rule 303 … [I]t … remains true that however important jurisdiction may be, it is, at the appellate level, quite arbitrary … For example, why cannot all premature notices of appeal be treated like the select ones covered by the recent amendment to Rule 303? If that were the case, we would have jurisdiction over this very important matter, just as the parties thought, quite persistently, we had.

The whole case, In re Commitment of Hernandez, No. 2-07-0853 (6/15/09), is available by clicking here.

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September 7, 2009

Forum Non Conveniens Dismissal Not A Final Order; Appealable By Petition, Not Notice Of Appeal

Dennis and Kimberly Quaids’ newborn twins were hospitalized at Cedars-Sanai Hospital in Los Angeles, California for a staph infection. The babies were given Heparin instead of Hep-Lock, as was prescribed by the physician. The Quaids settled a claim against the hospital before a lawsuit was filed. They sued Baxter Healthcare Corporation, the manufacturer of both medications. The Quaids’ chief claim was that the labeling for both medications was too much alike for hospital personnel to distinguish between them.

The Quaids, residents of California, filed the lawsuit in Cook County, Illinois. Baxter asked the Cook County trial court to dismiss the case on the basis of forum non conveniens − i.e., that California was a more convenient location for this case.

The Cook County trial court agreed that California was the more convenient forum and dismissed the Illinois case. The Quaids filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(2), which specifically permits a party to do so. But Baxter argued that the trial court’s dismissal was a final order. Thus, the only way the Quaids could have invoked appellate jurisdiction was to have filed a notice of appeal under Illinois Supreme Court Rule 301. [An appeal is initiated by filing a notice of appeal.]

The First District Illinois Appellate Court rejected Baxter’s arguments, mainly for theses reasons:

• The appellate court first pointed to the “plain language” of Rule 306, which allows a party to file a petition for leave to appeal “from an order … allowing or denying a motion to dismiss on the grounds of forum non conveniens …”
• The appellate also stated that the dismissal order was not final, so a Rule 301 appeal would not have been proper. The order was not final because the forum non conveniens statute came with conditions, which if not met would have required the Illinois trial court to reinstate the case.
• The appellate court also ruled that the amendment to Rule 306 in 1993 [expanding the rule to cover orders “allowing or denying” a forum non conveniens motion from only orders denying those motions], together with the plain language of the rule, indicated the Illinois Supreme Court’s intention to establish “that filing a petition for leave to appeal is the proper procedure for seeking review of a forum non conveniens dismissal.”

The appellate court did allow the appeal, but in the end affirmed the dismissal because California was the better jurisdiction for this case. Read the whole case, Quaid v. Baxter Healthcare Corp., No. 1-08-2727 (6/17/09), by clicking here.

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August 16, 2009

Pending Motion To Disqualify Attorney Deprives Appellate Court Of Jurisdiction To Consider Custody Order

Neringa Valkiunas and Jeffrey Olsen were in a protracted custody battle. Neringa first appealed from a custody modification order that made Jeffrey residential custodian. That first appeal was dismissed by the Second District Illinois Appellate Court because, when the appeal was filed, two civil contempt petitions were pending in the trial court. The pending contempt petitions rendered the notice of appeal premature.

Before the dismissal of the appeal, Jeffrey filed a motion in the trial court to disqualify Neringa’s lawyer. After the trial court ruled on the contempt petitions, Neringa moved for rehearing of the dismissal in the appellate court. The request for a rehearing was granted. But unknown to the appellate court at that time, the motion to disqualify still was pending in the trial court.

So the question was: Did Neringa’s notice of appeal give the appellate court jurisdiction, or did the pending motion to disqualify Neringa’s lawyer deprive the appellate court of jurisdiction?

The appellate court ruled that the motion to disqualify was a “pending claim,” so Neringa’s notice of appeal was premature and there was no appellate jurisdiction. Here’s how the court explained it:

"If an order does not resolve every right, liability or matter raised, it must contain an express finding that there is no just reason for delaying an appeal." The June 24, 2008, order disposing of the contempt petitions did not dispose of all the claims, and the February 8, 2008 [making Jeffrey residential custodian], order from which petitioner appealed did not contain Rule 304(a) language; thus, the notice of appeal is still premature and is ineffective to confer jurisdiction on this court.

The dispute was complicated further because Illinois Supreme Court Rule 367 limited a party to one petition for rehearing. As the matter stood, Neringa had used that option and was not entitled to do so again. In apparent deference to the convoluted state of the law in this area, the appellate court vacated “that part of our order of July 28, 2008, granting the petition for rehearing. Thus, the petition for rehearing is still pending. Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter and then supplement the record with the appropriate order or orders. Upon petitioner's demonstrating to this court that we have jurisdiction, we will rule on the petition for rehearing.”

Read the whole opinion, IRMO Valkiunas, No. 2-08-0279(12/18/08), by clicking here.

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August 4, 2009

Order On Partial Fee Petition Not Appealable. Merits Panel Dismissal Trumps Motion Panel.

Michael Gagliardo died in a racing-car accident. Paulette (sister) and Margaret (wife) administered Michael’s estate. They hired Quinlan & Carroll to investigate whether the estate could sue for wrongful death. Paulette later hired Duane Morris, another law firm, to open an estate in court. Duane Morris was on the job only for a few months, after which Paulette hired Mayer Brown Rowe & Maw.

Paulette asked the trial court to determine how much attorney fees were owed to which law firms. Quinlan, an “interested party” to the estate proceeding, asked for a substitution of judge to determine its right to fees. Quinlan’s request was granted.

Duane Morris filed its fee petition covering the entire time it represented the estate. Mayer Brown filed its fee petition for a part of the time it represented the estate. The trial court granted some of the law firms’ claims for fees.

Unhappy with the ruling, Margaret appealed. But Mayer Brown asked the court to dismiss the appeal because the order from which the Margaret appealed was not final and appealable, and the trial court did not rule that the order could be appealed. The First District Illinois Appellate Court agreed with Mayer Brown. Here is the court’s reasoning:

As noted earlier, it is undisputed that Mayer Brown continued to represent the estate after March 21, 2006, the last date on its fee petition. For this reason, the fee petition was interlocutory in part. Mayer Brown would be filing one or more fee petitions in the future. The 2006 order did not contain the language required by Supreme Court Rule 304(a): "[the trial court must make] an express written finding that there is no just reason for delaying either enforcement or appeal or both." … Nor is the order appealable under Rule 304(b)(1) … as a judgment entered in the administration of an estate that does not require the special language. An order entered in an estate administration without Rule 304(a) language is not appealable where, as here, the judgment entered was for fewer than all of the claims for relief sought by the claimant.

Here, although the order was a final disposition of the fees claimed by Duane Morris, it was an interim order for fees claimed by Mayer Brown. An interim order for attorney fees is not a final or appealable order.

Margaret asked for a rehearing. She argued that the appellate could not dismiss the appeal because a previous panel of appellate judges denied the same request by Mayer Brown to dismiss. But the second appellate panel rejected that argument, saying its opinion trumped the original panel’s:

A motion panel's denial of a motion to dismiss before briefing and argument is not final and may be revised at any time before the disposition of the appeal … The panel that hears the appeal has an independent duty to determine whether it has jurisdiction and to dismiss the appeal if it does not … The motion panel's denial of the earlier motion to dismiss has no bearing on our review.

The lesson is: Don’t give up on a motion to dismiss an appeal, even if it was denied by a motion panel. Appellants have to worry about a motion panel’s dismissal of an appeal, but an appellee gets a second bite at the apple by the merits panel. Read the whole opinion, Estate of Gagliardo, No. 1-06-1714 (6/5/09), by clicking here.

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July 18, 2009

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

The Illinois Supreme Court let the forfeiture decision stand. Because the appellate court briefs were not made a part of the record, the supreme court could not determine whether the forfeiture question had been properly decided. Here’s what the supreme court stated:

Before this court, United argues that the appellate court erred by applying the doctrine of procedural default. A review of the appellate court's application of the doctrine would necessarily require that we examine the briefs filed in the appellate court. However, United has failed to utilize Supreme Court Rule 318(c), which provides: "If it is important for the Supreme Court to know the contentions of any party in the Appellate Court, copies of the pertinent Appellate Court briefs certified by the clerk of that court may be filed in the Supreme Court." … Because the briefs filed by the parties in the appellate court are not a part of the record provided to this court, we are unable to review whether the appellate court erred in applying procedural default.

Read the whole case, Ready v. United/Goedecke Services, No. 103474 (3/23/09), by clicking here.

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June 21, 2009

Public Defender Cannot Appeal Partial Dismissal But Wins Certified Interlocutory Appeal

Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender’s Office to be laid off and imposed unpaid furlough days on other employees in the office. Burnette claimed he was not consulted in the process.

Relying on the Illinois Public Defender Act [actually Sections 3-4000 through 3-4011 of the Counties Code, 55 ILCS 5/3-4008.1 – 4011], Burnette’s lawsuit contested Stroger’s authority to take those actions. Stroger in turn asked the trial court to dismiss the case. He argued he acted within his authority and Burnette did not have standing to sue. Stroger’s request was granted and denied in part.

Burnette did two things: (1) He sought to amend his complaint to work around the aspects the trial court dismissed; (2) He asked for an interlocutory appeal. [Illinois Supreme Court Rule 308(a) allows interlocutory appeals when “the trial court … finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation … The Appellate Court may thereupon in its discretion allow an appeal from the order.”]

The trial court certified four questions for the appellate court, all concerning whether Burnette had standing to sue in the first place. Burnette also appealed from the order that dismissed part of his lawsuit.

The First District Illinois Appellate Court accepted the four certified questions for review, but declined to rule on whether the order granting dismissal was proper. Here’s why: “First, the parties in their appellate briefs did not brief the propriety of the trial judge's order. Second, plaintiffs are seeking to amend their complaint to eliminate the parts that were dismissed by the trial court.”

In the end, the appellate court ruled that Burnette did have standing to sue, and that Stroger did not have authority to designate individuals for layoff or furlough. Read the whole case, Burnette v. Stroger, No. 1-08-2908 (3/30/09), by clicking here.

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May 2, 2009

Appeal Of Post-Judgment Motion Not Saved By Rule 303

Bridgette Glickman, owner of a condominium unit, fell on ice in a stairway at the condo building. She sustained multiple fractures to her ankle. Among others, she sued the condominium association for negligent maintenance of the stairway.

The trial court dismissed Glickman’s complaint against the association because the accident happened before the association elected its first board of managers. The case proceeded against the other defendants − the developer and the designer of the building. Glickman appealed the dismissal of the association within the mandated 30-day deadline. About four months later, she asked the trial court for permission to file an amended complaint against the association.

The trial court denied Glickman’s request to amend, so she made the denial part of her appeal. The First District Illinois Appellate Court affirmed the ruling that Glickman’s request came too late for the trial court to decide. The filing of Glickman’s notice of appeal did not relieve the trial court of jurisdiction. But her failure to file the request to amend within 30 days did. Here’s what the appellate court stated:

As a general rule, the trial court is divested of jurisdiction over a cause upon the filing of a notice of appeal … However, under the recently amended version of Supreme Court Rule 303(a)(2) … the trial court retains jurisdiction over a timely filed postjudgment motion … Because Glickman's motion involved the party that was dismissed from the lawsuit and since it was not filed within the 30 days allowed under Rule 304(a) … it was not timely filed and the trial court no longer had jurisdiction over the dismissed party. Therefore, the trial court's denial of Glickman's motion for leave to file an amended complaint is affirmed.

Don’t fret, though, if your sympathy is with Ms. Glickman. The dismissal of Glickman’s complaint against the association was reversed. Read the whole case, Glickman v. Teglia, No. 1-08-0392 (2/19/09), by clicking here.

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April 16, 2009

No Appellate Standing For Knox County Employees Being Investigated; Appellate Court Lacks Supervisory Authority To Order A Special Prosecutor On Remand

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.

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April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

The Second District Illinois Appellate Court ruled that it was permitted to take judicial notice of the administrative code, so the taxpayers were allowed to include them in their appendix. However, stating it had no legal basis, the appellate court struck the dictionary excerpt. Here is what the court stated.

We first note that courts are required to take judicial notice of all rules published in the Illinois Administrative Code and the Illinois Register … This court may take judicial notice of rules and regulations even when they are not part of the record on appeal … Thus, while [Illinois] Supreme Court Rule 342(a) [stating the requirements for the appendix] … does not provide for the inclusion in the appendix of such nonrecord material as rules and regulations, we do not find that the inclusion of the Illinois Administrative Code sections is improper, and we deny the motion to strike as it relates to this material. However, the inclusion of the printout of the Internet thesaurus has no legal basis, and it and all references to it are stricken.

Get the whole case, G.I.S. Venture v. Novak, No. 2-07-0934 (2/16/09), by clicking here.

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March 29, 2009

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

WW Westwood Center sued Canel & Associates for legal malpractice. Canel tendered the defense of the lawsuit to it malpractice insurer, TIG Insurance Company. The tender inspired cross-claims by TIG and Canel for a declaratory judgment – TIG asked for a ruling that it did not have to defend or indemnify Canel; Canel asserted just the opposite.

TIG brought Westwood into the lawsuit, and proceeded to serve discovery on Westwood. Westwood responded by asking the trial court to stay the declaratory judgment lawsuits pending a determination of its malpractice case against Canel.

Canel opposed Westwood’s request for a stay. Because TIG was not paying Canel’s defense costs in the malpractice case, Canel wanted the trial court to rule quickly (and in Canel’s favor) in the declaratory judgment case.

But the trial court granted Westwood’s request for the stay of the declaratory judgment actions. Not wanting to wait until final resolution of all the cases, Canel immediately appealed the order granting the stay. The initial question for the First District Illinois Appellate Court was whether it had jurisdiction to hear the appeal.

Canel appealed under Illinois Supreme Court Rule 307(a), which allows interlocutory (immediate) appeals from orders in connection with injunctions. So the question was whether staying the declaratory judgment actions was enough like an injunction order to invoke the appellate court’s jurisdiction.

The appellate court ruled that it did have jurisdiction because the “substance of the order, which prohibited the parties from proceeding with litigation …of TIG’s declaratory judgment action against Canel Associates, was, in effect, injunctive in nature so as to render it reviewable under Rule 307(a)(1).”

The appellate court also affirmed the stay. Read the whole case, TIG Insurance v. Canel, No. 1-08-1251 (3/24/09), by clicking here.

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March 9, 2009

Default Order Not Final And Appealable

In this multi-count business dispute, Fidelity National Title Insurance sued a number of parties. The trial court granted summary judgment to defendants on all but one count of the complaint. A breach of contract claim still remained against Old Intercounty.

About three weeks later, the trial court ruled that Old Intercounty was in default on that contract claim. But the court did not enter a default judgment at that time. Nor did the court issue language under Illinois Supreme Court Rule 304(a) that would have permitted an appeal before a final judgment as to all issues against all parties. At Fidelity’s request, the trial court issued Rule 304(a) language as to the summary judgments a week and a half later.

Fidelity National appealed the summary judgments within 30 days of the time the trial court issued Rule 304(a) language. But Fidelity’s Notice of Appeal was filed more than 30 days after the trial court granted the summary judgments.

The defendants asked the appellate court to dismiss Fidelity’s appeal. They argued that the appellate court did not have jurisdiction to decide the case because Fidelity did not appeal within 30 days of the summary judgments.

The First District Illinois Appellate Court disagreed. The appellate court ruled that Fidelity’s 30-day window began when the trial court issued its 304(a) language, not when the summary judgments were entered. Here’s what the court said:

In this case, the circuit court's order granting summary judgment in favor of defendants did not dispose of the entire controversy between the parties because it left outstanding the breach of contract claim against Old Intercounty. Although the court subsequently declared Old Intercounty in default, it did not enter a default judgment. An order of default is not a final judgment or an interlocutory order appealable as of right because it does not dispose of the case and determine the rights of the parties … Rather, an order of default is simply an interlocutory order that precludes the defaulting party from making any additional defenses to liability but in itself determines no rights or remedies … It is the entry of a default judgment, which the court did not enter in this case, that terminates the litigation and decides the dispute.

Therefore, in this case, without the entry of a judgment against Old Intercounty disposing of count IX of the complaint, all previous orders, including the order granting summary judgment, were interlocutory and could not be appealed without a finding by the court, pursuant to Rule 304(a), that there was no just reason to delay appeal. 210 Ill.2d R. 304(a). … Fidelity's notice of appeal was filed on July 5, 2006, within 30 days of the court's Rule 304(a) finding, and was therefore timely and properly invoked the jurisdiction of this court. According, we have jurisdiction to consider Fidelity's appeal.

Read the whole opinion, Fidelity National Title Ins. Co. v. Westhaven Properties Partnership, No. 1-06-1895 (10/26/07) (only recently posted), by clicking here.

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January 30, 2009

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers’ was granted; Secura’s was denied.

Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed. Normally that’s okay. Illinois Supreme Court Rule 373 in effect says that mailing is filing. But the rule also states that the mailing has to be supported by an affidavit or certificate as required by Illinois Supreme Court Rule 12(b). Secura’s notice of appeal was not accompanied by either.

Farmers asked the appellate court to dismiss the appeal. Farmers argued that the lack of an affidavit or certificate stating when the notice of appeal was mailed made it impossible to tell whether Secura really complied with the 30-day deadline. The appellate court denied Farmers’ motion, ruling that “the failure to comply with the rules was ‘harmless error’ and there was no showing of prejudice to Farmers.” The appellate court then ruled in favor of Secura on the insurance coverage dispute.

Farmers appealed to the Illinois Supreme Court. The supreme court reversed the appellate court on Farmers’ appellate jurisdiction motion. The supreme court ruled there was no appellate jurisdiction because Secura did not file the Rule 129b) affidavit or certificate when it mailed the notice of appeal. Here’s what the Illinois Supreme Court said:

… [W]hile Rule 373 relaxes the requirement of timely filing where a party takes advantage of the convenience of mailing a document, a party can only take advantage of Rule 373 if it files proper proof of mailing as required by Rule 12(b)(3) … The reason for such a requirement is elementary. If there is no proof of mailing on file, there is nothing in the record to establish the date the document was timely mailed to confer jurisdiction on the appellate court.

The supreme court rejected Secura’s arguments that its letter to the clerk and its notice of filing to opposing counsel were adequate in lieu of the Rule 12(b) affidavit. The court ruled that neither the letter nor the notice were sufficient evidence to show when the notice of appeal was mailed.

Get the whole case, Secura Insurance Co. v. Farmers Insurance Co., No. 105991 (1/23/09), by clicking here.

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December 17, 2008

“Necessary Step” Exception Overcomes Deficient Notice Of Appeal

Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment. But their motion raised events that were not alleged in their complaint, and some that involved a patient who was not a plaintiff in the case. The Center filed its own motion for summary judgment, and also asked the trial court to strike the parts of the residents’ motion that raised the new allegations.

The trial court granted summary judgment to the Center, and granted the Center’s motion to strike the allegations that were raised for the first time in the residents’ motion for summary judgment. The court also denied the residents’ summary judgment request.

The residents appealed. But their notice of appeal did not state they were appealing the order granting the Center’s motion to strike the new allegations in the residents’ summary judgment motion. So the First District Illinois Appellate Court initially considered whether it had jurisdiction to hear an appeal of that order.

The appellate court acknowledged the basic proposition in Illinois Supreme Court Rule 303(b)(2) that states “unequivocally that a proper notice of appeal ‘shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.’” An improper notice of appeal would deprive the appellate court of jurisdiction.

But the court ruled there was an “exception for rulings that were necessary steps to the judgment named in the notice.” In this case, the court found that the order striking the new allegations was a “necessary step” in reaching the Center’s summary judgment. So the court accepted jurisdiction over the appeal. Here is the court’s ruling.

The [necessary step] exception applies to this case. In its summary judgment ruling, the trial court held that there was no issue of material fact for trial. Striking some of the issues raised in plaintiffs’ … motion for summary judgment was a necessary step to finding that there was no issue of material fact.

The residents’ victory on jurisdiction was fleeting. The appellate court ultimately ruled that the trial court was correct to strike the new allegations in the residents’ motion. Read the whole opinion, Filiung v. Adams, No. 1-07-2787 (12/1/08), by clicking here.

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November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed.

The developer sued the city. The developer claimed its expenditures for the property gave it a vested right to the previous zoning classification. The developer’s complaint had two theories. The first asked for a writ of mandamus – i.e., an order that the city issue the building permits. The second demanded a declaration that the developer was entitled to the building permits. After trial, the court ordered the city to issue permits so the apartments could be built. The trial court’s judgment granted the mandamus action, but was silent on the declaratory judgment request. The city appealed.

Because the trial court did not explicitly resolve the request for a declaratory judgment, there was a question of whether the order was final and appealable. If not, the appellate court would not have jurisdiction to hear the city’s appeal.

Normally, an order is appealable only if it disposes of all claims as to all parties. But the First District Illinois Appellate Court ruled that it did have jurisdiction over this appeal, despite the trial court not ruling on one of the two claims. Here’s the court’s thinking:

We agree with the City that our jurisdiction is not defeated by the fact that the trial court's order does not formally dispose of plaintiffs' request for declaratory judgment. When the relief sought under different counts is identical, and disposition of the one necessarily entails disposal of the other, then the grant of relief under one count will be deemed, for purposes of appeal, to constitute a resolution of the other count as well … In the instant case, plaintiffs' claims for mandamus and declaratory judgment are both predicated upon the same theory--namely, that they acquired vested rights to construction permits by virtue of their expenditures on reliance on the preexisting zoning classification--so, for purposes of appeal, the resolution of the former obviates the necessity of a formal resolution of the latter.

Ultimately, the appellate court affirmed the trial court’s ruling. You can read the whole opinion, Cribbin v. City of Chicago, No. 1-06-1671 (8/15/08), by clicking here.

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September 24, 2008

Denial Of Food Company’s Federal Preemption Defense Not An Appealable Interlocutory Order

Tyson Foods moved for summary judgment in a class-action lawsuit. Tyson argued that the claims against it were preempted by federal law. The summary judgment motion was denied, and Tyson appealed.

Ordinarily, the denial of a summary judgment motion is not appealable because it is not a final judgment. But Tyson argued that the order denying its preemption defense was appealable under Illinois Supreme Court Rule 307. Rule 307 allows appeals of certain interlocutory orders, including those “granting, modifying, refusing, dissolving, or refusing to dissolve or
modify an injunction.” Tyson argued that the denial of the preemption defense “is subject to interlocutory appeal under Illinois Supreme Court Rule 307(a) … because the ‘preemption argument brings into issue the authority of the trial court to enter the order appealed from.’”

The Fifth District Illinois Appellate Court rejected Tyson’s argument and dismissed the appeal. Tyson’s position “… would be to ignore the long-standing principle that only final judgments or orders are appealable unless the particular order falls within one of the eight specified exceptions enumerated by Illinois Supreme Court Rule 307 … Although there may be compelling public policy reasons for allowing an interlocutory appeal of orders denying motions that establish a complete affirmative defense such as federal preemption, we are powerless to grant such interlocutory review.”

Get the whole opinion, Rogers v. Tyson Foods, No. 5-08-0205 (8/11/08), by clicking here.

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August 27, 2008

Certified Question Improper Under Illinois Supreme Court Rule 308, But Appellate Court Takes Interlocutory Appeal Anyway

Jerry Walker suffered a personal injury when she fell while cruising on a Carnival Cruise Line ship. She sued Carnival in Illinois, but her ticket stated that disputes must be litigated in Miami, Florida. Carnival sought dismissal of Jerry’s lawsuit, arguing that Illinois was not the proper forum. The Illinois trial court ruled that the forum-selection provision on Jerry’s ticket was unenforceable, and denied Carnival’s motion.

Because an order denying a motion to dismiss is not final and appealable, Carnival asked for permission to appeal. The trial court allowed the interlocutory appeal, and, pursuant to Illinois Supreme Court Rule 308, certified the following question for the appellate court to answer: “Whether the trial court erred in its application of law pertaining to its denial of Carnival's … motion to dismiss …”

Rule 308 interlocutory appeals are allowed when the trial court certifies “a question of law as to which there is substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The First District Illinois Appellate Court ruled that the question certified by the trial court was not a proper Rule 308 question.

Here, the first certified question, as framed by the circuit court, although properly couched in Rule 308 language, essentially asks this court to review the underlying order, finding the forum-selection clause unenforceable. This request is merely seeking a review of the trial court's application of the law to a given set of facts rather than a properly written certified question which articulates a specific question of law.

Citing the “interest of judicial economy and reaching an equitable result,” the appellate court decided to take the appeal despite the improper certified question. In the end, the court ruled that Carnival’s forum-selection provision was enforceable. Read the whole case, Walker v. Carnival Cruise Lines, No. 1-07-3538 (5/21/08) by clicking here. (Free subscription through Lexis One required.)

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August 24, 2008

Constructive Re-filing Of Reconsideration Motion Provides Appellate Jurisdiction Over Insurer’s Appeal Of Coverage Dispute

Stoneridge Development Company built a townhouse for John and Marie Walski. The Walskis claimed the house suffered from structural defects caused by Stoneridge building on soil that was not compacted appropriately. After the Walskis sued Stoneridge, Stoneridge sued Essex Insurance Company, its general liability insurer, for insurance coverage for the Walskis lawsuit.

The trial court ruled that Essex had an undisclosed conflict of interest, was therefore prevented from denying coverage, and entered summary judgment for Stoneridge. Essex appealed, but Stoneridge asked the appeal to be dismissed for lack of appellate jurisdiction.

The trial court had written an opinion letter in July stating how it intended to rule and directing the parties to draft an order granting the summary judgment. Essex filed a motion to reconsider after that opinion letter was written, but before the judgment was entered. When the judgment in Stoneridge’s favor was entered, the trial court also entered and continued Essex’s motion to reconsider.

A motion to reconsider the judgment ordinarily tolls the time to file an appeal for 30 days from time there is a ruling on the motion. But Stoneridge argued that this reconsideration motion did not toll the time to appeal because it was filed before the judgment was entered. The Second District Illinois Appellate Court disagreed, and ruled that the motion for reconsideration had been constructively re-filed when the trial court entered and continued it, vesting appellate jurisdiction to hear Essex’s appeal. Here’s what the appellate said:

“While Essex filed its motion to reconsider on August 7, 2006, after the trial court's letter opinion but before the filing of the final judgment, the final judgment corresponded to the letter opinion, and Essex's motion therefore also attacked or "was directed against" the substance of the judgment. Immediately after the trial court entered the August 15, 2006, final judgment, it "entered and continued" Essex's motion to reconsider. When a trial court enters and continues a motion, the result is that the motion is left pending … Therefore, the effect of the trial court's action was a constructive refiling of Essex's motion to reconsider on August 15, 2006, within the 30-day period for filing an appeal, tolling the time to file a notice of appeal until the motion to reconsider was resolved.”

Read the whole opinion, Stoneridge Development v. Essex Insurance, No. 2-06-1166 (5/6/08), by clicking here. (Free account required.)

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August 8, 2008

Homeowners Forfeit Argument In Illinois Supreme Court That Wasn’t Raised In Petition For Leave To Appeal

MD Electrical Contractors subcontracted to do work at defendants’ home. The homeowners did not pay for the work, so MD sued for the money. Because there was not a written contract, MD’s complaint used a theory of quantum meruit (that MD should be paid for the value of the work it performed). The homeowners moved to dismiss MD’s complaint, claiming that MD did not comply with the Illinois Home Repair and Remodeling Act. The trial court agreed with the homeowners and dismissed the case. But the appellate court reversed, ruling that the Repair and Remodeling Act applied only to contractors, not subcontractors.

The homeowners took the case to the Illinois Supreme Court, which agreed with MD that the Act did not apply to subcontractors. The Act, the court ruled, could not be used as a defense to a quantum meruit suit by the electrical subcontractor.

In their petition for leave to appeal to the Illinois Supreme Court, the homeowners raised only one issue, the applicability of the Repair and Remodeling Act. But in their brief to the court, the homeowners also argued that the Illinois Mechanics Lien Act restricted MD’s claim for compensation, and that MD’s request for quantum meruit damages went beyond the Mechanics Lien Act. MD in turn argued that the homeowners forfeited their Mechanics Lien argument because it was not raised in the petition for leave to appeal, as required by Illinois Supreme Court Rule 315.

The supreme court agreed that the homeowners forfeited the argument because the “question was not properly presented in the defendants' petition for leave to appeal …” The homeowners argued that forfeiture did not apply because they raised the Mechanics Lien argument in the appellate court. But the supreme court said that was a “red herring.” The relevant question was “whether the issue is properly raised by the trial court record and can now be utilized to support the finding of the trial court.”

The whole case, MD Electrical Contractors v. Abrams, No. 104000 (4/3/08), is available by clicking here.

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June 30, 2008

No Abuse Of Discretion In Finding Law Firm Waived Right To Arbitration

Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case. Woods then sued for malpractice.

In the malpractice case, the law firm raised an affirmative defense that its agreement with Woods required arbitration of “[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services …” But the firm also made two motions to dismiss the case, filed a demand for a bill of particulars, served interrogatories on plaintiff, and issued a subpoena for documents to a third-party.

After all that, the firm asked the court to compel arbitration of the dispute. The trial court ruled that the law firm waived its right to compel arbitration because it participated so heavily in Woods’s lawsuit. The law firm appealed the denial of its attempt to compel the arbitration.

The appeal was pursuant to Illinois Supreme Court Rule 307(a), which permits interlocutory appeals as of right from an order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. The First District Illinois Appellate Court ruled that “a motion to compel arbitration is analogous to a motion for injunctive relief," and that the standard of review is “abuse of discretion.”

The appeal evoked three separate opinions from the three-judge panel. Two of the opinions agreed with the trial court so the waiver ruling was affirmed. One judge dissented.

The primary opinion discussed some of the policy considerations involved in waiver of a claim to arbitrate: “Illinois courts disfavor a finding of waiver … However, the right to compel arbitration of a dispute can be waived as with any other contractual right … Illinois courts will find waiver of a party's right to compel arbitration when a party's conduct is inconsistent with an arbitration clause, thus indicating an abandonment of the right to arbitration … Additionally, a party waives its right to arbitrate by submitting arbitrable issues to a court for decision … Illinois courts also consider the delay in a party's assertion of its right to arbitrate and any prejudice the delay caused the plaintiff …”

This opinion stated that overlooking waiver might result in heavier costs for the parties to resolve the dispute; parties would be motivated to take discovery in the lawsuit, to which they might not be entitled in the arbitration, then demand arbitration. All of that would defeat an important purpose of arbitration – saving the costs of litigation.

The dissent saw the more important policy as encouraging arbitration. The dissent also was concerned that “the plaintiffs are trying to slip out of their contractual duty to arbitrate. We should not let it happen. I believe the trial court abused its discretion when it denied the defendants' motion to compel arbitration.”

Read the whole opinion, Woods v. Patterson Law Firm, No. 1-08-0066 (3/31/08), by clicking here. (The Public Law Library; free account required.)

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June 26, 2008

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer’s Appeal

Eclipse Manufacturing apparently was annoyed by receiving unsolicited faxes from United States Compliance. So Eclipse filed a class action case against Compliance. Compliance demanded a defense and indemnification from its insurer, Hartford Insurance. Hartford declined to defend and denied coverage.

Compliance settled with Eclipse, and gave Eclipse an assignment of the Hartford insurance policy benefit. Eclipse proceeded on a third party citation to collect the Hartford policy limits. The trial court ruled that the Hartford insurance policy covered Eclipse’s claim against Compliance, and ordered Hartford to pay the settlement.

The trial court stated its intention to rule for Eclipse in July 2006, and directed Eclipse and Hartford to draft an order based on the court’s comments. But Eclipse and Hartford could not agree on language for the order. Just before 30 days from when the trial court stated it would rule for Eclipse, but before a written order was entered, Hartford filed its notice of appeal.

Hartford filed its appeal under Illinois Supreme Court Rule 303(a)(1). The rule required an appeal to be filed within 30 days of a final judgment. But the trial court’s statement that it intended to rule for Eclipse was not a final judgment. So Hartford’s notice of appeal was premature, and did not invoke appellate jurisdiction.

But while Hartford’s appeal was pending, Rule 303(a)(1) was amended. The amendment allowed “[a] notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, … [to be] treated as filed on the date of and after the entry of the judgment or order.” So Hartford’s jurisdictional problem would be fixed if the amendment could be applied retroactively to Hartford’s appeal.

That’s exactly what the Second District Illinois Appellate Court did. “In the interest of consistency,” the court relied on its decision in In re Marriage of Duggan, 376 Ill.App.3d 725 (2007), which ruled that a similar amendment should be applied retroactively. Take a look at our report of the Duggan case here, here, and
here. And get the court’s entire opinion in Eclipse Manufacturing v. United States Compliance, Nos. 2-06-0825, 2-06-0889 (11/30/07), by clicking here.

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May 9, 2008

Judgment Creditors Can’t Toll Time To Appeal By Asking For An Interlocutory Appeal

The D’Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D’Agostinos’s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch.

After all of that was resolved, the D’Agostinos issued citations to Murphy and Bryan Cave, respectively a lawyer and a law firm who had represented Lynch. Their theory was that Lynch, to avoid paying the D’Agostinos, had given the lawyers money. Their motion to compel Murphy and Bryan Cave to turn over the money was denied on November 7, 2007.

Within 30 days, the D’Agostinos filed a “Motion to Amend Memorandum and Judgment.” That motion asked for a finding under Illinois Supreme Court Rule 304(a) (permitting an immediate interlocutory appeal). That motion was granted on December 12, 2007. And within 30 days, the D’Agostinos appealed the denial of the original turnover motion.

Murphy and Bryan Cave moved to dismiss the appeal. They argued that the November 7 order was final in “a section 2-1402 proceeding [citation proceeding by a judgment creditor] and that, therefore, under Rule 304(b)(4), it was immediately appealable without a special finding [under Rule 304(a)]” Because the appeal was filed more than 30 days after the November 7 order, the lawyers argued, the appellate court did not have jurisdiction over the case.

The First District Illinois Appellate Court agreed. “Here, the order in question foreclosed the D’Agostinos from collecting the funds in question from Murphy and Bryan Cave. Therefore, it was final and immediately appealable under Rule 304(b)(4). Because the D’Agostinos failed to file a notice of appeal from the November 7, 2007 order within 30 days, this court is without jurisdiction to review the order.”

The D’Agostinos argued that their motion to amend was a proper attack on the judgment, and thus extended the time to file their appeal. But the appellate court disagreed.

In order for a postjudgment motion to have the effect of tolling the time in which to appeal the judgment, that motion must be “directed against the judgment.” … A motion is said to be directed against the judgment when it attacks the judgment in one of the statutorily authorized ways, which include by requesting rehearing, retrial, modification, or vacation of the judgment … The party may also request “other relief” so long as that motion requests a change in the reasons underlying the judgment along the lines of the enumerated forms of relief … Here, the D’Agostino’s “Motion to Amend Memorandum Decision and Judgment” does not attack the judgment or its underlying rationale but, rather, accepts it and requests a Rule 304(a) finding. However, a Rule 304(a) finding was not necessary because of Rule 304(b)(4). … Therefore, it did not have the effect of tolling the time in which to appeal.

Read the whole case, D’Agostino v. Lymch, No. 1-08-0140 (5/7/08), by clicking here.

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March 5, 2008

Illinois Supreme Court Rules De Novo Standard Of Review Applies To Permissive Review Of Conflict Of Law Question

Michelle Townsend brought a product liability case Sears Roebuck on behalf of her minor son Jacob. Jacob was badly injured when he was run over by a lawn tractor operated in his yard. Sears allegedly designed and manufactured the tractor.

The accident happened in Michigan, where Michelle and Jacob resided. But Sears was domiciled in Illinois and made certain design and marketing decisions in Illinois. The parties fought over whether Illinois or Michigan law applied.

The trial court ruled that Illinois law applied. Pursuant to Illinois Supreme Court Rule 308, the trial court certified the question of the proper choice of law for immediate interlocutory appeal. The appellate court accepted the appeal, and affirmed the decision to apply Illinois law.

Sears appealed to the Illinois Supreme Court, which reversed and ruled that Michigan law should be applied to liability and damages issues.

The parties disputed the proper standard of review. Sears argued for de novo review, the usual standard for certified questions of law. But Michelle claimed that the choice of law issue presented questions of law and fact. She asserted therefore that a more deferential standard of review — manifest weight of the evidence — should be applied to a choice of law determination.

The Illinois Supreme Court agreed with Sears, and applied the de novo standard of review. “The circuit court did not hold an evidentiary hearing, weigh the testimony or assess the credibility of witnesses; the record consists solely of documents. Where the circuit court does not hear testimony and bases its decision on documentary evidence, the rationale underlying a deferential standard of review is inapplicable and review is de novo … In any event, while the methodology of the Second Restatement of Conflict of Laws may raise factual issues, the task of evaluating and balancing the choice-of-law principles embodied in the Second Restatement, as they apply to the facts, is a matter of law rather than fact and one that is more properly left to the judge … Because these issues ‘involve the selection, interpretation, and application of legal precepts,’ review is de novo…”

Read the whole case, Townsend v. Sears, Roebuck and Co., No. 103858 (11/29/07), by clicking here.

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February 19, 2008

Fourth District Illinois Appellate Strikes Brief For Lack Of Citation To Record Or Authority

In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff’s reply brief for lack of appropriate citations.

Rejecting plaintiff’s Joycian stream of consciousness style, the court stated:

The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341 … Rule 341(j) , which authorizes an appellant to file a reply brief, provides as follows: "The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument." 210 Ill.2d R. 341(j). Rule 341(h)(7) requires appellants to give reasons for their contentions "with citation of the authorities and the pages of the record relied on." 210 Ill.2d R. 341(h)(7). This court has stated that "[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." … A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited.

Read the whole case, Crull v. Sriratana, No. 4-06-0952 (10/11/07), by clicking here.

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February 11, 2008

Illinois Supreme Court To Review IRMO Gutman. Is Civil Contempt Petition A Separate Claim From Underlying Divorce Case?

I mentioned IRMO Gutman in my January 3, 2008 entry regarding IRMO Knoerr. In IRMO Knoerr, the Second District Illinois Appellate Court overruled IRMO Gutman, which was only two months old at the time. On January 30, 2008, the Illinois Supreme Court announced it will review IRMO Gutman.

In IRMO Gutman, the Second District ruled that a pending civil contempt petition was a “separate claim” from the underlying divorce lawsuit. As a result, the divorce matters could be appealed while the contempt proceeding was pending without benefit of a Rule 304(a) order (trial court may allow appeal of final order of fewer than all claims). In IRMO Knoerr, another panel of the Second District ruled just the opposite and overruled IRMO Gutman.

Here’s to hoping the Illinois Supreme Court will settle the matter. I’ll keep you informed.

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February 8, 2008

First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified. Later, the Illinois court entered a provisional order certifying a national class.

Blockbuster moved to decertify the Illinois class based on new case law authority. The Illinois trial court denied the motion, but certified its order for appeal under Illinois Supreme Court Rule 308 (allowing interlocutory appeal of an order that involves “a question of law as to which there is substantial ground for difference of opinion and [when] … an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

This case is interesting because of the confused standard of review analysis. The First District Illinois Court of Appeals stated that the standard of review for a Rule 308 appeal is de novo. But then the appellate court identified the issue as: “[W]hether it was an abuse of discretion for the trial court to apply judicial estoppel to bar Blockbuster from challenging the propriety of certifying a national litigation class due to its previous position in a similar class action in which it agreed to class certification for settlement purposes.” So is it “de novo” or “abuse of discretion”?

In this case, anyway, the appellate court stuck with the “abuse of discretion” standard. The court ruled “that the circuit court abused its discretion when it imposed the equitable doctrine of judicial estoppel to bar Blockbuster from challenging certification of a national litigation class in Illinois …”

This time, the difference between the standards of review probably did not matter. Blockbuster appealed, and showed abuse of discretion to the appellate court’s satisfaction. But should Blockbuster have been held to the stricter standard? And what if it’s the other way around next time? Should the consumer have to show abuse of discretion by the trial court? Or should the appellate court review the question de novo – i.e., without giving discretion to the trial court’s ruling.

Read the whole case, Cohen v. Blockbuster Entertainment, 1-06-2863 (9/26/07), by clicking here.

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February 3, 2008

Temporary Removal Of Guardian Not Reviewable

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court's own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court's orders did not 'finally determine, fix and dispose of the parties' rights'”

Glen also tried to invoke jurisdiction through Illinois Supreme Court Rule 304, which permits appeal of an otherwise nonfinal order when the trial court rules there is "no just cause or reason to delay enforcement or appeal."

In this case, the trial court did make a Rule 304 finding. But the appellate court rejected the trial court’s finding, stating, “… [T]he addition of that language did not alter the fact that the court's orders were not final as to any claim or party and were, thus, not subject to Rule 304(a). Such a finding by a trial court is not effective to transform a disposition that is not final in its own right into a final judgment.”

Glen was hardly a sympathetic appellant, but what if was right about the trial court not having authority to temporarily remove guardianship rights? This appellate opinion in effect says the trial court’s action cannot be contested on appeal.

Read the whole opinion, In re Guardianship of J.D., No. 1-06-3069 (9/28/07), by clicking here.

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January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

No matter. The Illinois Supreme Court ruled that Almon’s appeal still was proper. “Although plaintiff did not file a separate petition for leave to appeal, none was required. Plaintiff is entitled to raise the additional issue under [Illinois Supreme Court] Rule 318(a), which provides that in all appeals ‘any appellee, respondent, or coparty may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal or notice of cross-appeal or separate appeal.’ … This court has invoked Rule 318(a) in finding that allowance of one party's petition for leave to appeal brings before this court the other party's requests for cross-relief.”

Be careful here: Illinois Supreme Court Rule 318 applies only to appeals from the appellate court to the Supreme Court. It does not apply to appeals from the circuit court to the court of appeals.

The whole opinion, Heastie v. Roberts, No. 102428 (11/1/07), is available by clicking here.

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December 9, 2007

Illinois Supreme Court To Post Oral Arguments On Web

Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.

Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.

Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.

For more details, the court’s press release is available by clicking here.

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November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

Without applying the amendment to this case, Darrell’s Notice of Appeal would have been premature and insufficient to establish appellate jurisdiction. The Concurrence stated: “Because the parties had a vested right in the final judgment the amendment to Rule 303 cannot operate retroactively to bestow us with jurisdiction to interfere with that right.”

The Concurrence also argued that Tamara’s petition for increased child support was a separate action, not just a separate claim within the same action, from Darrell’s request for a change in visitation. The Concurrence is immersed in lengthy case law analysis that is difficult to write about concisely in this space. Suffice it to say that the Concurrence reached an opinion 180 degrees different from the majority based on the very same case law.

To read the Concurrence, and the rest of the opinion in IRMO Duggan, No. 2-06-0061 (10/16/07), click here.

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October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

So why did the court engage in so lengthy an analysis of this question, or even decide it at all? After all, Darrell was on the losing side here, but his appeal was saved by the retroactive application of the amendment to Rule 303(a), which allows a prematurely filed Notice of Appeal to establish appellate jurisdiction. (See blog entry for 10/29/07, directly below, for a fuller explanation.) Perhaps the court was not confident the retroactivity ruling would survive Illinois Supreme Court review. So providing an answer to the “one claim or new actions” question would obviate more briefing in the appellate court in the event of a reversal in the Illinois Supreme Court on the retroactivity question.

Next we’ll look at the special concurrence, which takes issue with the majority on the appellate jurisdiction issues. You can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

In December 2005, the trial court ruled on Darrell’s motion to vacate, refusing to vacate the percentage award. The trial court did not make a Rule 304(a) finding. (No just reason to delay enforcement or appeal of the order.) Unhappy with the ruling, Darrell filed a Notice of Appeal within 30 days. When the Notice of Appeal was filed, the trial court still had not ruled on Darrell’s petition to set specific visitation times. That petition was resolved by a court order in May 2006.

The parties initially did not dispute appellate jurisdiction. But the court questioned whether it had the power to consider Darrell’s appeal of the percentage award. The first question was whether Darrell’s second petition −to set visitation times − was a claim within the same cause of action, or a whole new cause of action.

If it was a claim within the same action, then the order on the motion to vacate would require a Rule 304(a) finding in order to be appealable. Because there was not a Rule 304(a) finding, the appellate court would not have jurisdiction of Darrell’s appeal. If the petition to set visitation times constituted a new action, as Darrell argued, then Rule 304(a) language would not be necessary and the appellate court would have jurisdiction.

But the analysis was complicated by an amendment to an Illinois Supreme Court Rule that took effect while the appellate court was deliberating. Rule 303(a) was amended so “when a timely postjudgment motion has been filed, a notice of appeal filed before ‘the final disposition of any separate claim does not become effective until the order disposing of the separate claim is entered.’” This was exactly the situation in the Duggans’ case. So the first question was whether “amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application) or only to those appeals filed after the effective date (prospective application).”

The appellate court concluded that the amendment to Rule 303(a) should apply retroactively. The keys to this decision were: (1) the amendment was procedural, not substantive, and (2) imposition of the amendment did not impair any rights that Tamara had.

The amendment was considered “procedural” because it “relate[d] solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard.” That entails “the method of enforcing rights or obtaining redress.” That is generally what Supreme Court Rules do − prescribe the method for advancing pending litigation.

Nor was retroactive application of amended Rule 303(a) unfair to Tamara − i.e, it did not impair a right she possessed. The court rejected the Concurrence’s position in this regard.

The special concurrence suggests that our ability to hear this appeal under the new Rule 303 (a) impairs Tamaara’s “right” to a dismissal of the appeal for lack of jurisdiction. If this is a “right” at all, however, it is not a right that Tamara ”possessed when she acted,” as she has taken to action in reliance on our initial lack of jurisdiction. Indeed, she did not even raise the issue of our jurisdiction until we required her to do so via supplemental briefing. This fact is not simply an accident of the parties” skill in recognizing jurisdictional defects; it highlights the nature of jurisdiction − it is not a right possessed by the parties, but a prerogative of the court that we assert and determine.

I appreciate the conclusion that Tamara did not have a “right” to dismissal of Darrell’s appeal for lack of appellate jurisdiction. But I do take exception to the conclusion that jurisdiction “is not a right possessed by the parties.” In fact, litigants are granted access to the courts, and thus the courts are given jurisdiction, by the Illinois Constitution. While the court gets to determine the contours of jurisdiction, it is not merely a “prerogative of the court.”

In any event, the court concluded that retroactive application of the Amended Rule 303(a) was appropriate. So Darrell won the first prong of the argument.

We’ll look at other aspects of the case in forthcoming entries. But you can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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March 16, 2007

Illinois Supreme Court Amends Appellate Rules

The Illinois Supreme Court ordered rule amendments today that affect the sticky question of the timely filing of a notice of appeal. That’s important because a notice of appeal must be filed timely to gain appellate jurisdiction. The court amended Illinois Supreme Court Rule 303, which sets out the general scheme for filing a Notice of Appeal after a final judgment. The amendments, effective May 1, 2007, add protection for a party who appeals prematurely in certain circumstances. Here are the major points:

• “A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Before this rule change, that same notice of appeal filed before entry of the judgment would be premature and would not invoke appellate jurisdiction.

• If an appeal is filed before a ruling on a timely filed postjudgment motion, “or before the final disposition of any separate claim, [the notice of appeal] becomes effective when the order disposing of said motion or claim is entered . . .” Before this change, that same notice of appeal would be premature and would not invoke appellate jurisdiction. The rule required that the premature appeal be withdrawn. A party could invoke appellate jurisdiction only with a new, timely notice of appeal.

• “. . . [W]here a postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.” Thus, a second notice of appeal, to include the denial of a post-trial motion will not be necessary. However, the amendment requires a second notice of appeal if the postjudgment order changes the original judgment or resolves a separate claim.

The Supreme Court also tidied up Rule 341 on the form of briefs. These amendments, effective immediately, require footnotes to be double-spaced and a minimum 12-point type to be used “throughout the document, including quoted material and any footnotes.”

The amended rules are available by clicking here.

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