February 24, 2014

Aldermen’s Appeal Of Victorious Referendum Moot

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

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February 12, 2014

Second Order Allowing Interlocutory Appeal Fails To Save Appellate Jurisdiction

After he was injured in an accident, Juan Zamora sued his employer, Newsboy Delivery Systems, and two individuals, Cherie and Richard Payne. Zamora claimed their negligence caused the accident.

The trial court dismissed Newsboy because Zamora’s claim against his employer was barred by the Illinois Worker’s Compensation Act. The dismissal order included a finding under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of the order]. Zamora asked the court to reconsider the dismissal. That request for reconsideration extended the time he had to appeal [30 days from the ruling on the reconsideration request]. Zamora’s request for reconsideration was denied.

The Paynes filed a third-party complaint for contribution against Newsboy. About two years later that complaint was dismissed. Zamora got a second Rule 304(a) finding, and after the rest of the claims were dismissed, Zamora appealed the two year-old order that dismissed his claim against Newsboy.

The Second District Illinois Appellate Court dismissed Zamora’s appeal for lack of appellate jurisdiction because:

Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider … This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself.

So Zamora had to appeal within 30 days of the denial of his reconsideration request. He blew that deadline, and the second Rule 304(a) finding was irrelevant.

Read the whole case, Zamora v Montiel, 2013 IL App (2d) 130579, by clicking here.

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February 6, 2014

Trucker’s Failure To Raise Commerce Clause Defense Dooms Tax Appeal

Witte Brothers is an intersate trucking company. After an audit, under protest, Witte paid Illinois for “pass-through” miles [distance driven in Illinois without picking up or delivering goods].

Witte sued Illinois for reimbursement of the taxes. The trial court ruled that the Illinois Income Tax Act did not allow the State to tax truckers pass-through miles. So Illinois appealed.

Among other things, Witte argued in the appellate court that taxing pass-through miles violated the Commerce Clause of the U.S. Constitution. But Witte did not raise this argument in the trial court, nor allege it as a separate count in its complaint. So the First District Illinois Appellate Court refused to consider the argument.

No need to worry if you’re concerned the State got beat out of tax revenue. The appellate court reversed, and ruled that pass-through miles are taxable. [“pass-through miles establish a physical and economic presence in Illinois which must be taxed …”]

This is the sort of ruling that annoys illinoisappellatelawyerblog.com. The appellate court would review the Commerce Clause argument de novo [no deference to the trial court]. If what the trial court says is inconsequential anyway, then the appellate court should not be allowed to avoid the issue because it was not raised in the trial court. So now we have precedent that blesses a tax that may violate the United States Constitution.

Read the whole case, Witte Brothers Exchange v. Department of Revenue, 2013 IL App (1st) 120850.

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February 6, 2014

Let Dona Oxford Schoolya

Suffering from writer's block? Low energy day?

Shake up your axons and dendrites. This video is better than caffeine.

Write your appellate briefs like Dona Oxford boogies.

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January 29, 2014

Unsuccessful Candidate’s Reconsideration Request Under Wrong Statute Tolls Time To Appeal Defamation Dismissal

John Garrido lost an election to the Chicago City Council to John Arena. Garrido claimed he was defamed because Arena distributed campaign literature and advertisements that had “outright lies” about Garrido.

Garrido sued Arena, but the trial court dismissed the case based on the Illinois Citizen Participation Act. (The Act bars meritless lawsuits filed against citizens for their actions while exercising their First Amendment speech rights.) Within the next 30 days, Garrido asked the trial court to reconsider the dimissal. But Garrido’s request was brought under Illinois Code of Civil Procedure Section 2-1401, which is the section that applies to requests for reinstatement of cases dismissed more than 30 days before.

Garrido’s case had been dismissed for more than 30 days when he asked to amend his 2-1401 request to show it was intended to be brought under Section 2-1203, the correct statute, which does toll the time to appeal. The trial court allowed Garrido’s request to amend, but denied the request to reconsider the dismissal.

Garrido appealed. Arena argued there was no appellate jurisdiction. He asked the appellate court to dismiss the appeal because the only request for reconsideration that was made within 30 days of the dismissal was under section 2-1401, which does not toll the 30-day deadline to appeal. But the First District Illinois Appellate Court denied Arena’s request to dismiss the appeal because:

[Arena] misconstrue[d] both the nature of plaintiff’s [Garrido’s] postjudgment filings and the standard by which the circuit [trial] court must evaluate postjudgment motions … [T]he new [2-1203] motion merely corrected the relevant statutory citations in the first [2-1401] motion. More importantly, even had plaintiff not filed an amended motion, the circuit court would in any event have been required to evaluate plaintiff’s original October 7 [2-1401] motion under the correct statute [2-1203] … The only important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion within 30 days of the judgment, which tolled the time for filing a notice of appeal …

For purposes of tolling the time to appeal, it did not matter that Garrido asked the court to reconsider the dismissal under authority of the wrong statute. So Garrido lost the election, but won the fight over appellate jurisdiction. He also prevailed on the substance of the appeal. The appellate court reversed the dismissal of his lawsuit.

Read the whole case, Garrido v. Arena, 2013 IL App (1st) 120466 (6/18/13), by clicking here.

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January 20, 2014

Mother Has Appellate Standing To Dispute Dismissal Of Acknowledged Father

The State of Illinois filed a petition claiming parents neglected their child, N.C., and asking to have the State bcome N.C.’s guardian. Alfred had acknowledged he was N.C.’s father. But a DNA test proved otherwise, so the State asked the trial court to dismiss Alfred, which it did.

The trial court also found that N.C. was neglected, and that the mother was unfit. The Illinois Department of Children and Family Services was appointed N.C.’s guardian.

The mother appealed the finding of neglect and the ruling that Alfred was not N.C.’s father. The state argued that the mother did not have standing in the appeal to dispute Alfred’s paternity.

The Third District Illinois Appellate Court sided with the mother. She had standing to dispute the ruling against Alfred because she was injured by the trial court’s ruling. Here’s how the appellate court explained it:

Standing requires some injury in fact to a legally recognized interest … "Any party to the case may seek appellate review from a final judgment which is adverse to his interest, and whether the party was actually aggrieved does not determine his right to appeal." … Respondent [mother] and her child have a clear interest in Alfred’s status as the father because of the actual or potential economic and social support owed to the child from the legal father.

N.C.’s mother prevailed in this one; the appellate court reversed in her favor. Read the whole opinion, In re N.C., 2013 IL (3d) 120438, by clicking here.

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January 8, 2014

Explain Yourself In Your Subhead

We are nothing if not current.

An article published in 2003 about effective subheadings, available here for the clicking, was referenced at the top of a “legal writing” Google search I just did. Authors Kara Thompson and Zach Brez for the Writing Center at the Georgetown University Law Center, did a fine job in this short piece explaining the importance of the "point heading." (Except please don’t make subheads all caps; typical sentence style, boldfaced, is better.)

Don't be lazy about drafting the subheadings. Sometimes they will be the most important part of your brief.

Conventional wisdom says to limit your subheadings to one sentence. But that’s not necessarily best practice.

Have you ever encountered a cold court? Sometimes judges don’t have the time or the desire to read your brief thoroughly, or at all, before your case is called. I’ve watched judges leaf through my motion or my brief during oral argument. I want that judge to understand my positions. One-sentence subheadings don’t always accomplish that.

So by all means, make those subheads incisive and argumentative, and a little bold. And don’t be afraid to give the judge more help understanding your positions with a longer subheading.

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January 6, 2014

Railroad’s Time To Appeal Not Tolled By Post-Trial Request For Setoff

Railroad employee Anthony Williams was injured at work. He sued BNSF Railway, his employer, and got a judgment for $2.6 million.

Claiming there were more than 40 errors at the trial, BNSF asked the trial court to decrease or throw out the verdict. The company also asked for a setoff “in the amount of taxes payable as a result of lost wages awarded to Williams.”

The trial court denied BNSF’s request to throw out the verdict, but reserved a ruling on the “tax issue.” A written order order was not issued; nor did the court request one; nor apparently did the parties offer to submit one.

About six weeks later BNSF made an emergency request to the trial court to file additional authority to support the earlier request to decrease [for the amount BNSF paid for Williams’s disability] or to throw out the verdict.

When the parties returned to court about four weeks after that, the trial court denied BNSF’s requests to change or dismiss the verdict, or for a setoff for the taxes payable.

BNSF appealed the denial trial court rulings – the one denying the 40-plus claims of error and the one denying the decrease or setoff. Its Notice of Appeal was filed within 30 days of the trial court’s last order, but more than 70 days after the oral ruling that denied BNSF’s 40-plus-errors request. Williams asked the appellate court to dismiss the entire appeal. Williams argued the appellate court did not have jurisdiction because BNSF appealed too late.

The First District Illinois Appellate Court agreed with Williams. The appeal from the 40-plus-errors order had to be filed within 30 days from the oral ruling. And because BNSF’s request for a setoff did not attack the judgment —“a request for a setoff seeks to satisfy, not modify, the judgment” — it did not toll the time to appeal.

Nor did BNSF’s emergency request make a difference. The trial court lost jurisdiction over the verdict-decrease issue 30 days after the initial oral ruling, and could not give itself jurisdiction again by reiterating its earlier order.

The appellate court also ruled that the lack of a written order following the trial court’s first ruling did not help BNSF. “Given that the trial court never required the submission of a written order regarding the denial of BNSF's posttrial motion, the oral ruling on that motion was therefore final on April 18, 2012,
the date it was entered into the record.”

In the end, the appellate court dismissed the entire appeal. Read the whole opinion, Williams v. BNSF Railway Co., 2013 IL App (1st) 121901 (9/25/13), by clicking here.

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January 2, 2014

Ninth Circuit Appellate Practice Guide Posted

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don't make one of these head-shaking mistakes.

Get the whole guide by clicking here.

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December 30, 2013

Wrong Court, Late Filing, Bad Service Deprive Appellate Court Of Jurisdiction Over TRO Appeal

Nadeem Nizamuddin was expelled from school. He asked for and received a temporary restraining order against Community Education in Excellence, the operator of the private school, staying the expulsion at least until after a preliminary injunction hearing.

Excellence appealed the restraining order. But its appeal was dismissed for failure to comply with Illinois Supreme Court Rule 307(d), which states the requirements for establishing appellate jurisdiction over an appeal of a temporary restraining order.

Here is what the Second District Illinois Appellate Court said Excellence did wrong.

• Filed its petition and its Notice of Appeal in the wrong court. Excellence filed in the circuit court, which in a typical case is correct. But appeals from TROs have an expedited schedule, so Rule 307 requires the petition and the Notice of Appeal to be filed in the appellate court.

• Mailed the petition and the Notice of Appeal to the appellate court on the filing deadline. Ordinarily that’s okay; the “mailbox rule” governs typical appeals and makes the date of filing the same as the date of mailing. But the “mailbox rule” did not apply to this appeal from a TRO, and the appellate court did not receive the documents until after the filing deadline. So the appellate court said Excellence’s documents were too late to establish appellate jurisdiction.

• Served Nadeem by regular mail. But Rule 307 says service on the opposing party has to be by personal delivery or fax. So Excellence’s proof of service, which showed service by mail, was insufficient.

• Prejudiced Nadeem’s lawyer because he had only one day to file a response to Excellence’s petition. Had he been served personally or by fax, he would have had double the time to prepare a response.

Click here for the whole opinion, Nizamuddin v. Community Education In Excellence, 2013 IL App (2d) 131230 (12/23/13).

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June 27, 2013

Illinois Supreme Court Refuses To Remand Willful-And-Wanton Assertion Against Ambulance Company

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

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

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

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

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

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

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June 22, 2013

Appeal Of Class Certification Gets Abuse-Of-Discretion Review

Poolman of Wisconsin services and sells swimming pools, hot tubs, and fireplaces. Through a third-party, the company faxed an unsolicited advertisement to UESCO Industries, a company that manufactures cranes. Angered at Poolman‘s advertising method, UESCO sued Poolman under a federal law that prohibits unsolicited fax advertisements.UESCO asked for class action certification, claiming it could adequately represent all parties that received Poolman’s fax advertisement.

An Illinois trial court granted UESCO’s request for class action status. Poolman appealed.

UESCO and Poolman argued for opposite appellate standards of review. Poolman asserted the appellate court should review the matter de novo (no discretion given to the trial court) “because the issues presented on appeal are ‘purely legal.’” UESCO argued that the trial court should be reversed only if it abused its discretion. The First District Illinois Appellate Court sided with UESCO, and ruled that the trial court gets discretion with one condition.

Here is how the appellate court described it. “Based on our review of the cases cited by defendant and pertinent Illinois authority, our determination here involves whether the circuit [trial] court abused its discretion or applied impermissible legal criteria.”

UESCO won the standard-of-review battle but lost the war. In the end, the appellate court reversed the ruling that allowed class certification. Read the whole opinion, UESCO Industries v. Poolman of Wisconsin, 2013 IL App (1st) 112566 (6/17/13), by clicking here.

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