Illinois Appellate Lawyer Blog

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.

Janet Chochorowski rented a power tiller from a Home Depot in Missouri. She claimed she did not want to purchase a damage waiver, but that she was charged for it anyway. She turned her grievance into a class action lawsuit in Illinois.

Janet’s breach of contract and unjust enrichment claims were dismissed. That left her with a single claim under the Missouri Merchandising Practices Act. Home Depot moved to dismiss the complaint on the basis of forum non conveniens. The trial court denied the motion, but on a permissive interlocutory appeal, the appellate court reversed. Chochorowski asked for and was granted a rehearing.

On rehearing, the appellate court considered whether it had jurisdiction to review Home Depot’s forum non conveniens motion made pursuant to Illinois Supreme Court Rule 306(a)(4) (allowing a permissive appeal “from the denial of a motion for transfer of venue to a court within another county in the state.") The Fifth District Illinois Appellate Court ruled that Home Depot sought to have the case re-filed in Missouri, not transferred to another Illinois county. Thus, the court ruled that it did not have “authority to grant leave to appeal from the nonfinal order disposing of that issue.” That part of Home Depot’s appeal was dismissed.

Read the whole case, Chochorowski v. Home Depot U.S.A., No. 5-06-0308 (9/21/07), by clicking here.

In a battle between insurance company titans, State Farm sued Illinois Farmers for a declaration that the “step down” provisions in the Farmers’ automobile policies were unenforceable because they were against public policy. (“Step down” provisions allow the insurer to reduce policy limits when the driver of the insured vehicle is neither a family member nor a listed driver.) Farmers moved to dismiss the complaint, claiming the step down provisions were clear and unambiguous. State Farm moved for partial summary judgment, claiming that the step down provisions were against public policy.

The trial court denied Farmers’ motion to dismiss, and granted State Farm’s motion for partial summary judgment. So the judgment that was entered only concerned the public policy issue. The trial court also entered Rule 304(a) language, allowing an interlocutory appeal.

Farmers appealed the public policy ruling. In its brief, Farmers also advanced its ambiguity argument. The court of appeals reversed, ruling that the step down provisions were not contrary to public policy. Over objection by State Farm, the appellate court ruled that the ambiguity argument was properly before the court. The appellate court ruled that the Farmers policy was not ambiguous.

State Farm then appealed to the Illinois Supreme Court. The Supreme Court affirmed the public policy ruling. But the court vacated the ambiguity ruling because denying a motion to dismiss does not render a final judgment. “It is well established that the jurisdiction of appellate
courts is limited to reviewing appeals from final judgments, subject to
statutory or supreme court rule exceptions … none of which are present in
this case. It is also well settled in this state that a trial court’s denial of
a motion to dismiss is an interlocutory order that is not final and
appealable … Because the appellate court lacked jurisdiction to review the
ambiguity and direct action issues, those portions of the appellate
court’s decision are vacated.”

You can read the whole case, State Farm Mutual Automobile Ins. Co. v. Illinois Farmers Ins. Co., No. 103816 (9/20/07), 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.

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

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

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

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

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

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the 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).”

The appellate court also rejected Glen’s appeal under Rule 306(a)(5) (permitting a party to petition for an interlocutory appeal of from order affecting the care and custody of unemancipated minors). There was no dispute that Glen’s son was of adult age.

But Glen argued that his son should be “considered an ‘unemancipated minor’ because ‘prior to the age of 18 years he became disabled and [was] required to be put in a care facility in Wisconsin where he remains to this date.” Glen concluded that his son never became emancipated. Rejecting this argument as “unsupportable,” the appeallate court stated: “At best, Glen’s contentions involve the definition of the term ‘unemancipated’ but ignore the further requirement of Rule 306(a)(5) that the person who is unemancipated also be a minor.

All of this leaves a party who is “temporarily” relieved of guardianship without recourse in the appellate court. That’s an interesting twist in light of Glen’s substantive argument that the Probate Act does not give the trial court authority to order temporary release of guardianship. By this case, there is no way to test the trial court’s authority.

You can read the whole case, In re Guardianship of J.D., 1-06-3069 (9/28/07), by clicking here.

Teresa De Bouse brought a class action case against Bayer AG, claiming that Bayer misrepresented Baycol, a pharmaceutical that Bayer marketed to consumers. Teresa’s class certification motion was granted in the trial court. But the trial court clerk neglected to mail the order to the parties. Bayer’s lawyers did not learn about the order granting certification until long past the 30-day deadline to petition for appeal of class certification rulings in Illinois Supreme Court Rule 306(a)(8).

To give Bayer the opportunity to appeal the certification ruling, the trial court vacated its original order nunc pro tunc and reentered it. That action by the trial court came more than 30 days after the original ruling.

Bayer appealed the certification order. The Fifth District Illinois Appellate Court dismissed the appeal of the class certification ruling, and rejected each of Bayer’s arguments:

• Coming more than 30 days after its original ruling, the “… trial court lacked authority to vacate and reenter the same order … in order to excuse compliance with the filing requirements of Rule 306.”
• The appellate court also ruled that the nunc pro tunc order was improper because it was not entered to “conform the order to the ruling actually rendered … Its only purpose was to restart the 30-day appeals clock.”
• The trial court clerk’s neglect in mailing the certification order to Bayer, despite a local rule requiring the clerk to do so, did not provide the trial court with authority to allow additional time to seek an appeal. “… [L]ocal rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois Supreme Court rules and the existing laws of Illinois.”
• The appellate court did not believe Bayer’s claims of detrimental reliance on the trial court clerk. The court stated that Bayer had “ample opportunities” to inspect the court record and to inquire about the status of the certification motion.

The daunting lesson here is: You are responsible for learning when rulings are issued. The failure of the court clerk to mail a ruling to you does not give you a basis to extend a deadline to appeal, a friendly and sympathetic judge notwithstanding. Read the whole case, De Bouse v. Bayer AG, No. 5-06-0077 (6/13/07), by clicking here.

Defendant Mortgage Exchange allegedly sent unauthorized faxes to solicit business. Plaintiff CE Design, apparently annoyed at receiving the faxes, sued under the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. CE attempted to make the case a class action, but its motion to certify a class was denied.

CE moved for reconsideration of the order denying class certification within 30 days. That motion was denied more than three months later. CE then petitioned for leave to appeal pursuant to Illinois Supreme Court Rule 306, which allows discretionary interlocutory appeals of denials of class certification motions.

Mortgage Exchange moved to dismiss the petition, arguing that the petition was filed more than 30 days after the order denying class certification, thus depriving the appellate court of jurisdiction. CE argued that its motion for reconsideration tolled the time to petition for an appeal.

The Illinois Second District Court of Appeals granted the motion to dismiss. The general rule is: “[M]otions to reconsider that are directed at interlocutory orders identified by certain subsections of Rule 306(a) do not toll the running of the 30-day deadline to petition for leave to appeal those orders.” The appellate court declined to make an exception for orders concerning class certification.

Read the whole case, CE Design v. Mortgage Exchange, No. 2-07-0318 (7/22/07), by clicking here.

Kenneth Stark and Vesta Stark, both elderly, were married. Vesta suffered from Alzheimers disease. Kenneth died and left substantial money to the Southern Illinois University Foundation and the Shriner’s Hospital for Children. The will left nothing to Vesta, but did contain a statement that “adequate and suitable” provisions were made for Vesta from resources outside of the assets identified in the will. And the facts did show that Vesta was well taken care of.

Vesta gave power of attorney to her son, Mark. On Vesta’s behalf, Mark filed a renunciation of Kenneth’s will. By renouncing the will, Vesta stood to take a one-half share of Kenneth’s estate, more than $2.3 million.

SIU and Shriner’s petitioned to vacate the renunciation. The parties moved for partial summary judgment. SIU and Shriner’s argued that Mark did not act “for the benefit of” Vesta in renouncing the will, as is required by the Illinois Power of Attorney Act. Mark argued the opposite.

Mark’s summary judgment motion was granted “on the assumption that the power of attorney was valid.” The trial court reserved for further proceedings the question of whether Vesta was competent when she gave power of attorney to Mark. The trial court also ruled that there was no just reason to delay enforcement or appeal of the summary judgment rulings, thus allowing for an interlocutory appeal under Illinois Supreme Court Rule 304(a).

The parties did not question appellate jurisdiction, but the appellate court raised the question of the propriety of the interlocutory appeal on its own. The opinion analyzes when there really is “no just reason to delay enforcement or appeal” of an interlocutory order.

In this case, the appellate court stated it was an abuse of discretion for the trial court to allow an interlocutory appeal. The court stated that the will renunciation was conditioned on the existence of a properly executed power of attorney, and the propriety of the power of attorney was conditioned upon Vesta’s competence when she signed. “Were the power of attorney to be held invalid, the question of whether a renunciation would have been for the benefit of Vesta would be moot, making a resolution on the merits of this instant appeal purely advisory.”

You can read the whole opinion, In re Estate of Stark, 4-06-0778 (6/21/07),by clicking here.