Illinois Appellate Lawyer Blog

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.

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 …

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.)

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.

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.)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.