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.

Eugene and Jean Marie were divorced in 1990. The dissolution order required Eugene to split the proceeds with Jean Marie of the sale of real property. Eugene sold the property in 2005, but he did not share the profit. So Jean Marie filed an action for indirect civil contempt. The trial court ordered Eugene to pay $76,903 to Marie. When Eugene didn’t pay, Jean Marie filed another contempt petition. Eugene then appealed the judgment, but Jean Marie’s second contempt petition still was pending.

Eugene appealed under Illinois Supreme Court Rule 304(b)(5) (contempt orders are immediately appealable if they impose a monetary or other penalty). But the appellate court stated that Rule 304(b)(5) did not apply. “Initially, this appeal cannot be one under Rule 304(b)(5) . That rule explicitly states that it applies to an order that imposes a penalty for contempt. The trial court plainly did not impose any penalty here. Yes, it entered a judgment against Eugene, but that judgment was merely the amount it calculated that Eugene owed under the dissolution judgment … To calculate and order payment of what is already due cannot reasonably be understood as a punishment. Thus, the order that Eugene pay $76,903 did not impose a penalty and so was not appealable under Rule 304(b)(5).”

Eugene also argued that the judgment was appealable as a final judgment under Illinois Supreme Court Rule 301. The appellate court also rejected that position. “An order is not final where jurisdiction is retained for matters of substantial controversy … Here, the September 22, 2006, order did not finally resolve the litigation between the parties on the issue of whether Eugene had wilfully and contumaciously refused to comply with the trial court's orders to pay Jean 50% of the proceeds from the sale of the property. Although the trial court entered a $76,903 money judgment, it expressly retained jurisdiction over and continued the proceedings on Jean's second contempt petition. Thus, at the time Eugene filed his notice of appeal, this second contempt petition remained pending and had not been resolved. The pendency of this second contempt petition rendered the September 22, 2006, order nonfinal and rendered the notice of appeal from that order premature.”

This case brought out the disagreement in the Illinois Second District about the appealability of a post dissolution judgment while a contempt petition still is pending. Justice Grometer’s concurring opinion defended IRMO Gutman, 376 Ill. App. 3d 758 (2007), which ruled that a pending contempt petition in a postdissolution matter did not rob the judgment of finality, and thus appealability. Less than two months later, in IRMO Knoerr, 377 Ill. App. 3d 1042 (2007), another panel of the Second District overruled Gutman.

The concurring opinion is good reading, and also discusses the value of stare decisis. Justice Grometer clearly believes IRMO Gutman is correctly decided, and IRMO Knoerr is wrong. But in the end, Justice Grometer deferred to IRMO Knoerr.

So, what to do now? I can dissent here from the majority's reliance on Knoerr, and I can bide my time until I am on a panel with at least one justice who will join me in overruling it. Of course, it would be only a matter of time until that new case was overruled, and then the overruling case was overruled, and so on in perpetuity. Meanwhile, the public would simply throw up its hands, marveling at this court's stubborn refusal to perform its core function, to clearly communicate reliable principles of law.

This is too high a price for my adherence to Gutman. I will do what Knoerr should have done, and I will defer to this court's most recent statement of the law. Thus, in this case, I join the majority in following Knoerr, and, in the interest of our constituents, I would urge my colleagues to do the same.

The Illinois Supreme Court has agreed to review IRMO Gutman, so maybe we’ll get a final word on this soon. You can get the whole case, IRMO Schweiger, No. 2-06-1005 (1/23/08), by clicking here. See my previous reporting on Knoerr and Gutman by clicking here and here.

Susan Isringhausen, executor of Lee’s estate, sued APM for the $42,500, in an Illinois court. The trial court dismissed the case for lack of jurisdiction over APM. Susan appealed, but the Fourth District Illinois Court of Appeals affirmed the dismissal of her case.

The trial court ruled that it did not have “general jurisdiction” over APM because APM did not have continuous and systematic business contacts in Illinois. Susan argued that the trial court had “specific jurisdiction” over APM − i.e. the case arose “from ‘the making or performance’ of a contract that is ‘substantially connected’ to Illinois.”

Even though the trial court did not consider “specific jurisdiction,” the appellate court stated it could review the question. “[W]e must make our determination of jurisdiction based on a de novo review of the documents on record … Therefore, any apparent failure on the part of the trial court to consider the question of specific jurisdiction in its written memorandum of opinion does not mandate a reversal. Rather, we must take it upon ourselves to examine the question of specific jurisdiction.”

The appellate court sided with APM and ruled that the trial court did not have jurisdiction. Get the whole case, Estate of Isringhausen v. Prime Contractors and Associates, No. 4-07-0345 (1/29/08), by clicking here.

The State filed a petition to adjudicate wardship, with the intent to place Z.L. in a foster home. Although they were designated as respondents to the the State’s petition, Z.L.’s parents agreed with the State and the petition. Only Z.L.’s Guardian Ad Litem opposed the State’s petition.

The trial court ruled that good cause did not exist to grant the State’s petition. Z.L.’s parents appealed the trial court’s decision. The State did not appeal, although it did file a brief supporting Z.L.’s parents. And while the GAL was named as an appellee, the GAL did not file an opposing brief.

The first question for the appellate court was whether Z.L.’s parents were proper parties to bring the appeal. The Fourth District Illinois Court of Appeals ruled that Z.L.’s parents could appeal, even though technically they were respondents to the petition in the trial court. “While the trial court's ruling meant Jeff and Emily retained their parental rights, the ruling in this case was adverse to their interests insomuch as they were seeking the trial court's permission to voluntarily relinquish those rights. Because the parents were parties to the proceedings in the trial court, had a substantial interest in the outcome of those proceedings, and that outcome was adverse to their interests, they have the right to pursue this appeal.”

The next issue was whether the parents should win by default because the GAL, the only party who opposed placing Z.L. in a foster home, did not file a brief. The Fourth District Appellate Court ruled that the absence of the GAL’s brief did not give Z.L.’s parents an “automatic” win. The court is not “compelled to serve as an advocate for an appellee,” nor “required to search the record for the purpose of sustaining the judgment of the trial court.”

But the court stated that it “may decide the merits of appellant's arguments on appeal where the record is simple, the claimed errors are such that they may be decided based on appellant's brief, and the record supports our finding in favor of appellant.” In this case, “Because respondents' and the State's briefs sufficiently present the issue for review, we will decide the merits of this appeal from the facts and legal arguments before us without the aid of a brief from the GAL.”

Ultimately, the appellate court ruled that Z.L.’s parents had good cause to be relieved of parental responsibilities. The whole case, In re Z.L., No. 4-06-0998 (2/15/08), is available by clicking here.

But the appellate court has the last say on what comprises a sufficient record. For example, the First District Illinois Appellate Court ruled that a record was sufficient even though it did not contain a transcript of the trial or a bystander report.

In a dispute over shipping fees, the appellate court stated: "[t]he 'failure to present a report of proceedings does not require automatic dismissal or affirmance where issues can be resolved on the record as it stands.' … We find that dismissal or summary affirmance is not necessary in this case, as the issues on appeal can be resolved on the record as it stands. Included in the record are the parties' stipulations at trial and the trial court's order stating its reasons for finding in favor of defendants and against Marx.”

The whole case, Marx Transport v. Air Express International, No. 1-07-1953 (2/25/08), is available by clicking here.

Appellees often complain that an appellant has left crucial material out of the record. But if that material is important to your defense of an appeal, you had better take action to get into the record – never mind that it was appellant’s obligation to provide a complete record. What is “complete” for an appellant may not be “complete” for the appellee.

The Second District Illinois Appellate Court explained:

As pertinent here, Rule 365 states, "If a case is appealed to either the Supreme Court or the Appellate Court, or the wrong district of the Appellate Court, which should have been appealed to a different court, the case shall be transferred to the proper court." … That language simply has nothing to do with this case. Had defendants timely filed their notice of appeal in the trial court but wrongly stated that they were seeking review in the supreme court or in a district of the appellate court other than this one, then Rule 365 would have required the transfer of the case to this court. However, defendants did not appeal to the wrong court. They appealed to the proper court but did not file the notice of appeal in the trial court on time. Rule 365 did not excuse defendants from their obligation under Rule 303(a)(1) to file a timely notice of appeal in the trial court.

The whole case, First Bank v. Phillips, No. 2-07-0130 (2/8/08), is available by clicking here.

The whole case, Dismuke v. Rand Cook Auto Sales, No. 1-06-3000 (12/26/07), is available by clicking here.

Larry Porter sued his doctor and Decatur Memorial Hospital for malpractice in connection with his treatment for a spinal cord injury. After some discovery, Larry tried to file an amended complaint that added a new count against another doctor at the hospital.

Over objection by the hospital, the trial court first granted Larry’s motion for leave to amend. After it was filed, the hospital moved to dismiss the amended complaint because it was filed after the statute of limitations expired. The hospital argued that the amendment did not relate back to the original complaint. This time, the trial court agreed with the hospital, and granted the motion to dismiss the amendment.

Larry then moved to reconsider the dismissal of the amendment. The trial court denied that motion, and also decided that the original order allowing the amendment to be filed was inconsistent with the order that dismissed the amendment. So the trial court revised its earlier ruling to show a denial of leave to amend.

Larry appealed the orders granting the hospital’s dismissal motion and denying his motion to reconsider. The appellate court affirmed the trial court.

Larry took the case to the Illinois Supreme Court. The first question was the proper standard of review. The appellate court used an “abuse of discretion” standard, “apparently believing that because the trial court revised its earlier ruling that had granted leave to amend to be consistent with its later ruling to grant the section 2-619 [statute of limitations] dismissal, it was not actually reviewing a section 2-619 dismissal, but was instead reviewing a routine denial of a motion for leave to amend.”

The Supreme Court disagreed, and ruled that the trial court’s action should be reviewed de novo, just like any other statute of limitations motion. “The circumstances of the present case, however, indicate that the only question considered by the trial court with respect to either ruling was whether the new claim in count III of the second amended complaint related back under section 2-616(b) [leave to amend] so as to avoid the affirmative matter of the bar of the statute of limitations. In this situation, we believe that the appropriate standard of review is de novo.”

The Illinois Supreme Court viewed this as a dispute over the motion to dismiss, thus requiring a de novo standard of review. But what would have happened if the trial court just initially denied the motion for leave to amend? The issue would have been the same — whether the amendment related back to the original complaint — but the standard of review may then have been “abuse of discretion,” as the court of appeals saw it.

Read the whole opinion, Porter v. Decatur Memorial Hospital, No. 104441 (1/25/08), by clicking here.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party's failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.

Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges. When she missed the first payment, Circle moved for immediate possession of the apartment. The trial court granted Circle’s motion as a sanction for violating the agreed order. The court also stayed the case to give Beverly time to pay the use and occupancy charges and thereby purge the possession order.

Beverly appealed the possession order. But she also moved out of the apartment, and Circle rented it to another party. The first issue was whether the appeal was moot. If so, the appellate court would refuse to decide the case. The First District Illinois Court of Appeals acknowledged the general mootness doctrine. “A case becomes moot where it is impossible to render effective relief to the appealing party.”

But the appellate court decided the case even though Beverly vacated the property and the apartment had been re-rented. The appellate court ruled that this case fell under the “public interest” exception to the mootness rule.

First, the question of whether a trial court may award a landlord possession under the Act as a sanction for the tenant's inability to comply with a use and occupancy order is one of public importance, affecting the rights of countless landlords and tenants in Illinois. Moreover, there is a need for an authoritative determination on this issue. At oral argument, both parties confirmed the accuracy of the statistics cited in the amici curiae brief submitted in this case, which reveal that this particular practice is "prevalent." In addition, the trial court's instruction to Beverly's trial counsel to "take it up to the courts and get us some guidelines" when he challenged this practice indicates a need for an authoritative determination as to the propriety of this practice. Finally, because this current practice is so prevalent, it is likely to continue to recur absent any authority to the contrary.

In the end, the appellate court ruled that it was reversible error to give Circle possession as a sanction against Beverly. Read the whole case, Circle Management v. Olivier, No. 1-07-0621 (12/28/07), by clicking here.

Read the whole case, Garley v. Columbia LaGrange Hospital, No. 1-06-2908 (12/5/07), by clicking here.

Ozma sued for divorce in Illinois. But the trial court ruled that the postmarital agreement was invalid and that the house was marital property. In reversing these rulings, the Second District Illinois Court of Appeals considered the questions of procedural and substantive unconscionability of a postmarital contract, and the proper standards of review in the appellate court.

The appellate court first considered procedural unconscionability. “A contract is procedurally unconscionable if an impropriety in the process of forming the contract deprived a party of a meaningful choice … The trial court found that the postmarital agreement was procedurally unconscionable largely on the basis that petitioner was in Canada with Azra while the parties were negotiating the terms of the postmarital agreement, ‘the implicit threat being that unless agreement was reached she and Azra would remain in Canada, reducing if not eliminating [respondent's] ability to meaningfully parent.’ This statement equates to a finding that respondent was under duress during the negotiation of the agreement. Duress may make an agreement between spouses unconscionable.”

Footnoting the standard of review, the appellate court ruled, “Where procedural unconscionability is based on contract terms and the disparity of bargaining power between the contract's drafter and the party claiming unconscionability, the issue is reviewed de novo … However, because the procedural unconscionability in this case rests on the issue of duress, we use the manifest weight standard.

The appellate court also ruled that the agreement was not substantively unconscionable. “Substantive unconscionability is based on the fairness and obligations of the contract's terms, and it can be shown by "'contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.'" … We review this issue de novo. … However, to the extent that we consider factual findings in our analysis, we will use a manifest weight of the evidence standard.”

Read the whole opinion, which includes a good discussion of the nature of contractual unconscionability, IRMO Tabassum, No. 2-06-0843 (12/7/08), by clicking here.

Victoria got new counsel, who went to trial and got a verdict in excess of $180,000. Friedman & Solmar notified Victoria about a lien it had earlier served. Victoria in turn petitioned to adjudicate the lien. Her petition was denied, and F&S was granted a $20,500 quantum meruit judgment. Victoria appealed that judgment.

Victoria’s Notice of Appeal stated she was appealing from the judgment granting fees; it did not identify the order stating F&S had good cause to withdraw. Nonetheless, Victoria asserted that F&S did not have good cause to withdraw. F&S argued that the appellate court lacked jurisdiction to rule on the question of good cause because the order was not listed in Victoria’s notice of appeal.

The First District Illinois Court of Appeals sided with Victoria on this question. The court recognized the general rule that it “acquires no jurisdiction to review other judgments or parts of judgments not specified or inferred from the notice of appeal.” But in this case, “the good-cause finding was clearly a step in the procedural progression leading to the granting of the fee petition. Indeed, the good-cause finding was a necessary prerequisite to awarding F & S fees and costs in quantum meruit. Accordingly, this court has jurisdiction to consider the merits of plaintiff's argument.”

F&S lost that battle, but won the war. The judgment for fees was affirmed. Read the whole case, McGill v. Garza, No. 1-06-3027 (12/13/07), by clicking here.

After lengthy litigation, the trial court approved a settlement of $16 million. Linda appealed the settlement approval. Although she sued only as administrator of Rashidi’s estate, she appealed as administrator and individually as an heir of the estate. Northwestern and George Jr. objected to Linda’s standing to appeal as an individual.

The First District Illinois Appellate Court sided with George Jr. and Northwestern. The court ruled that Linda did not have standing to appeal as an individual. Only the administrators of the estate were allowed to sue in the first place. The appellate court stated: “[I]f they [Linda and two other members of Rashidi’s estate who appealed as individuals] in their individual capacities were not parties to the underlying cause, they in their individual capacities cannot be parties to the instant appeal. Therefore, we find that they do not have standing and we dismiss their appeals.”

Northwestern also argued that Linda waived her right to appeal as coadministrator when she asked the trial court, as an alternative to setting aside the settlement, to compel payment of the settlement plus interest. But the appellate court disagreed, and stated that Linda was properly acting on behalf of the estate, and thus could appeal. “In her coadministrative capacity, Linda, through her motion, was exercising her fiduciary duties to insure that Rashidi's estate would be protected pending her attempts at appeal, i.e., that Northwestern would be made to pay the money it owed as agreed in the settlement and as ordered by the court and that interest would accrue thereon for the Estate's beneficiaries were she to be unsuccessful in future challenges to the validity of the settlement.”

The whole case, Will v. Northwestern University, Nos. 1-06-1566, 1-06-1642, 1-06-1643 (12/14/07), is available by clicking here.

A most excellent panel will speak and take questions:

• Judge William J. Bauer, U.S. Court of Appeals for the 7th Circuit, speaking on, “Preserving the Record for Appeal”

• Justice Robert E. Byrne, Second District Illinois Appellate Court, speaking on, “Appellate Jurisdiction in the State Court”

• Kent Streseman, Professor of Law and Director, Ilana Diamond Rovner Program in Appellate Advocacy, Chicago-Kent College of Law, speaking on, “Persuasive Appellate Brief Writing”

• Judge Diane P. Wood, U.S. Court of Appeals for the 7th Circuit, speaking on, “Appellate Advocacy”

Procrastinators beware! Seats are filling fast. Contact Chris Reed at the DCBA, 630-653-7779, for a reservation.

When you arrive, be sure to say hello to the Appellate Law Committee chair, who I am told has a wonderful personality and is particularly handsome.