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.

Elena and Michael Sanfratello were in a disputed divorce case. Michael appealed rulings concerning child support and classification, apportionment, and dissipation of marital assets.
Elena cross-appealed (1) whether certain of Michael’s businesses were marital assets and (2) confirmation of a sale to Michael’s parents of the marital home, which was in foreclosure. The foreclosure action, filed by the bank that held the mortgage, was handled in another court by another judge. Elena made Michael’s parents parties to that action, claiming they and Michael were guilty of fraud in the foreclosure and sale. But Elena did not appeal the order within 30 days. The foreclosure matter then was consolidated into the divorce case.

About a year later, after the divorce case was concluded and Michael appealed, Elena filed her cross-appeal, including an appeal of the foreclosure confirmation. Michael’s parents argued that Elena’s cross-appeal should be dismissed for lack of appellate jurisdiction. They claimed that the confirmation order was final and appealable when it was issued, and that Elena’s appeal should have been filed within 30 days of that time.

Elena argued that an appeal of the foreclosure confirmation was not proper until after a final order in the divorce case was entered. She asserted: “… because the December 5, 2005 order [ending the divorce case] addressed both the foreclosure and the dissolution cases, the [earlier foreclosure confirmation] order did not dispose of all the rights and liabilities of all of the parties involved.” Elena concluded the foreclosure confirmation was not appealable until after the divorce case was final.

But the First District Illinois Appellate Court agreed with Michael’s parents, and dismissed Elena’s appeal. The court ruled that the foreclosure action was an independent case, and as an unsuccessful party Elena should have appealed the confirmation order within 30 days. Here’s how the court explained its ruling.

Where, as here, consolidation of two actions is for purposes of convenience and economy only, the causes do not merge into a single suit; rather, they retain their distinct identities. Elena's position fails to take into account that her challenge to the foreclosure sale was independent of any appeal Joseph and Sharon [Michael’s parents] might pursue in the dissolution action. Elena's challenge in the foreclosure sale was not in the nature of a cross-appeal, a notice dependent on the appeal of another party. Elena was not a successful party in the foreclosure action. If she sought to challenge the foreclosure ruling, she was required to file a notice of appeal in the first instance. Accordingly … Elena's appeal in the foreclosure action was untimely where it was filed more than 30 days after the foreclosure order was entered.

Read the whole opinion, IRMO Sanfratello, Nos. 1-07-1438, 1-07-1473 (7/27/09), by clicking 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.

The O’Briens were involved in a divorce case. John O’Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John’s request was heard by a second judge, who denied it because of a lack of evidence of prejudice.

The case went back to the first judge, held a trial on the divorce petition. The court ruled that John should make child support and maintenance payments to Lisa. After an unsuccessful reconsideration motion, John appealed.

John wanted to contest the denial of his request for substitution. But John’s notice of appeal only stated he was appealing from the denial of his reconsideration motion “and all prior orders of court culminating therein.” The issue was whether that notice of appeal was sufficient to give the appellate court jurisdiction to consider John’s request for another judge.

The Second District Illinois Appellate Court ruled that John’s notice of appeal gave the court jurisdiction. The court found that the denial of a request for substitution of judge was a step in the “procedural progression” to the ultimate judgment. The court stated: “… [I]f the motion to substitute were improperly denied, then all subsequent orders would be void.”

The court acknowledged a difference with the First District Illinois Appellate Court in the application of the test. Read the whole case, including an explanation of the conflict in applying the rule, IRMO O’Brien, No. 2-07-0264 (7/14/09), by clicking 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.

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.

Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O’Neil, another of her doctors, as a respondent in discovery.

O’Neil proved difficult to serve. Eventually though, the trial court gave Lisa a certificate of merit, concluding Lisa had a meritorious case against O’Neil. A few weeks later, the trial court granted Lisa’s request to file an amended complaint. That complaint named O’Neil as a defendant in Lisa’s medical malpractice case.

O’Neil then asked the trial court (1) to vacate the order that allowed Lisa to file an amended complaint and name O’Neil as a defendant, and (2) to dismiss the claims against him in the amended complaint. O’Neil claimed the order was improper because he had not been served properly, depriving the trial court of personal jurisdiction. The trial court agreed and granted O’Neil’s requests.

Lisa served O’Neil again. Then she asked the court to reconsider the order it issued in favor of O’Neil. In response, O’Neil asked the trial court to terminate his status as a respondent in discovery. The court ruled in favor of O’Neil, giving him a complete victory: the complaint against him was dismissed, and his status as a respondent in discovery was terminated.

Lisa appealed. O’Neil asserted the appellate court did not have jurisdiction to consider an appeal of the order that vacated the earlier order giving Lisa leave to file the amended complaint. O’Neil claimed that order was not appealable because it was “an interlocutory order that was not specifically challenged in the notice of appeal.”

The First District Illinois Appellate Court disagreed. Here’s the appellate court’s thinking.

Here, the vacatur of the May 9, 2007, order, which had granted the plaintiffs [Lisa] leave to file an amended complaint [and sue O’Neil], was a procedural step in the progression leading to the entry of the final judgment with regard to the O'Neil respondents. Thus, although the April 18, 2008, order [vacating the May 2007 order] was not a final judgment, it is subject to appeal. In addition, [O'Neil] … ha[s] not argued that [he was] … prejudiced by the plaintiffs' failure to comply with the technical requirement that the order of April 18, 2008, be specifically referenced in the notice of appeal. Consequently, we reject the claim that the entry of that order is not subject to review.

In the end, the appellate court ruled that Lisa was not permitted to file an amended complaint against O’Neil. Read the whole case, Knapp v Bulun, No. 1-08-2299 (6/30/09), by clicking here.

This case is more about res judicata than appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue. First, after the successful treatment, Jane and John requested that the residual embryos be ethically destroyed. They claimed in their lawsuit that the embryos were not disposed of properly. Second, the clinic’s president, Norbert Gleicher, allegedly mentioned Jane’s real name during a television interview without her permission.

Jane and John sued Gleicher and the clinic, and filed a nine-count amended complaint against them for invasion of their privacy and breach of contract. Gleicher and the clinic asked the trial court to dismiss the amended complaint. The court dismissed six of the counts, allowed Jane and John to amend the remaining three counts, and denied their request for Rule 304(a) language (which would have allowed an immediate appeal).

About five weeks later, Jane and John filed a second amended complaint “alleging breach of contract, medical malpractice, conversion of the embryos and related medical records, and invasion of privacy by public disclosure of private facts. They did not reallege any of the dismissed claims.” Then about two years later they voluntarily dismissed the case.

One year after that, Jane and John re-filed their case. Gleicher asked the trial court to dismiss it, arguing it was res judicata (bars “subsequent lawsuits between the same parties or their privies involving the same cause of action where there was a final judgment on the merits rendered by a court of competent jurisdiction.”). Gleicher’s request to dismiss was granted, so Jane and John appealed.

Jane and John said that res judicata did not bar the re-filed complaint because there never was a final judgment in the trial court. They argued that: (1) they were allowed leave to amend when the trial court issued its order that dismissed six of nine counts of the amended complaint, (2) they in fact filed a second amended complaint, and (3) then they voluntarily dismissed that complaint [before] … any substantive rulings.”

But the First District Illinois Appellate Court disagreed. The appellate court ruled that the six dismissed claims were final, although not appealable until the case was over. The case was over in July 2006, when Jane and John voluntarily dismissed the entire case. In order to invoke the jurisdiction of the appellate court, Jane and John should have filed their appeal within 30 days of the time they voluntarily dismissed the case in July 2006, which they did not do.

Jane and John argued that the re-filing of the case constituted a “separate filing” that was not subject to res judicata. The First District Appellate Court disagreed again, and pointed out that “… res judicata bars every matter that could have been raised in [the amended complaint].”

The appellate court ultimately concluded that all of the elements of res judicata applied, so the dismissal was affirmed. Read the whole case, Doe v. Gleicher, No. 1-08-2724 (6/30/09), by clicking here.

Rosemary Mackin was unhappy with the trial court’s division of property and the denial of maintenance in her divorce case, so she appealed. The last order by the trial court disallowed child support, but set it “for review after the expiration of 180 days for examination of the financial circumstances of [mother] and a determination by the Court at that time as to an appropriate amount of child support to be paid from that date forward by [mother] to [father] for the support of the parties' two minor children." Rosemary filed her appeal after this order, but before the 180-day re-examination of her finances.

Rosemary and Thomas, her ex-husband, agreed that the appellate court had jurisdiction. But the Fifth District Illinois Appellate Court reviewed jurisdiction anyway and decided otherwise. Because the issue of child support was still under consideration in the trial court, a final order from which Rosemary could appeal had not been entered. The appellate court explained:

The court decided to wait 180 days to examine the financial circumstances of mother, at which time the court would then make a determination on an appropriate amount of child support to be paid by mother from that date forward for the support of the parties' children. Clearly the court did not resolve the issue of child support and therefore did not resolve the entire dissolution claim. Accordingly, the December 19, 2007, order [denying Rosemary’s post-trial motion disputing maintenance and division of property] was not final, and we lack jurisdiction over mother's appeal.

Rosemary and Thomas argued that “child support can be modified at any time pursuant to section 505(a) of the Illinois Marriage and Dissolution of Marriage Act … and that the effect of the court's order setting the matter of child support for review after 180 days is no different from when a parent motions for a modification of child support at some point after the initial order.” But the appellate court disagreed.

Under section 510 of the [Illinois Marriage and Dissolution of Marriage] Act … a modification of child support is warranted only upon a showing of a substantial change in circumstances … This is not the same situation. The court in this instance will set an amount of child support after the expiration of 180 days, whether or not mother's financial situation has changed. Again, we conclude that the court did not resolve the entire dissolution claim and that we lack jurisdiction to hear mother's appeal.

Get the whole case, IRMO Mackin, No. 5-08-0028 (5/28/09), 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.

When George Smith was a police officer in Chicago, he contributed to the Police Pension Fund. When Smith resigned from the police force, the Police Pension Fund refunded his $18,000 contribution. A few years later, Smith became a state court judge in the Circuit Court of Cook County, Illinois. He made salary contributions to the Judicial Pension Fund during the seven years he was on the bench.

After he retired as a judge, Smith returned the $18,000 to the Police Fund and asked for the money to be transferred to the Judicial Pension Fund. He also asked for his police service credits to be applied to his judicial pension. The Police Fund complied, but the Judicial Fund refused the money and to apply the police service credits. The Judicial Fund stated it was prohibited from complying with Smith’s request because he was not an “active member,” as defined in the governing statute.

Smith sued both pension funds. His complaint had two counts: C0unt I against the Police Fund alleged denial of due process; Count II against the Judicial Fund asked for an order requiring the Judicial Pension Fund to accept the money. Smith argued that he was an “active member” because he had not withdrawn his money from the Judicial Fund.

The Judicial Fund asked for and received a summary judgment on Count II because, the trial court ruled, an “active member” can only be a sitting judge. Smith appealed.

The first question was whether the appellate court had jurisdiction to consider the appeal. A judgment is appealable only if it disposes of all claims against all parties. But the summary judgment was granted only to one count in the complaint − so the other count technically had not been resolved.

But the First District Illinois Appellate Court ruled that it had jurisdiction. Although the judgment was only on one count, the appellate court ruled that the disposition of Count II necessarily entailed a judgment on Count I. Here’s how the appellate court explained it:

Once the trial court determined that JRS [Judicial Pension Fund] had no statutory authority to accept the funds being transferred by the [Police] Retirement Board, there was, naturally, no more for the Retirement Board to do except to return the funds to the plaintiff. Therefore, the trial court's August 9, 2007 order was final and appealable because it effectively terminated the litigation between both parties on the merits of the cause and disposed of all pending issues and parties.

Read the whole case, Smith v. Policeman’s Annuity and Benefit Fund, No. 1-07-2421 (5/26/09), 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.

Leonard Kulisek went to Walgreen pharmacy intending to purchase allopurinol for his gout. The pharmacist gave Leonard a bottle marked “allopurinol,” but it really contained glipizide, a diabetes medication that lowers blood sugar. Thinking he was taking allopurinol, Leonard ingested the glipizide. Leonard suffered severe kidney and brain problems that ultimately caused his death.

Leonard’s estate sued Walgreen. After trial, a jury awarded the estate a multi-million dollar verdict, including punitive damages. Walgreen appealed. Ten days later, Mia Crickman and Charles Kulisek, Loenard’s family members, asked the trial court for an order allowing them to intervene in the case. They apparently were unhappy with the distribution of the punitive damage award, and wanted to contest it in the appellate court. The trial court allowed Mia and Charles to intervene, after which they cross-appealed.

The estate contended that the Mia-Charles appeal should be dismissed. Because they asked to come into the case after Walgreens appealed, the estate argued, the trial court did not have the power to allow Mia and Charles to intervene in the lawsuit.

The First District Illinois Appellate Court agreed. Here is the court’s thinking:

When an appeal has been properly filed, jurisdiction attaches to the appellate court and the circuit court retains only very limited powers concerning the case. It may grant a stay … or enter an order which merely explains its prior order without substantively changing it … But allowing Mia and Charles’ motion permitted them to raise issues not raised by Walgreen or plaintiff Marston [executor of Leonard’s estate], the parties who had actually participated in the litigation from its inception. Accordingly, we find that the trial court lacked jurisdiction to allow the motion of Mia and Charles, which substantively altered the nature of the appeal … We therefore dismiss the appeal of Mia and Charles and did not consider their briefs in resolving the legitimate issues raised by the true parties to this appeal.

The appellate court also ruled that the punitive damage verdict did not survive Leonard’s death, so Mia and Charles would not have gotten any of the punitive damages anyway. Get the whole opinion, Marston v. Walgreen Co., 1-07-0209 (3/31/09), by clicking here.

Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it. Then the procedural fun began.

Two status conferences were set for different times on the same day. Magdalena missed the first, so the trial court dismissed the case for want of prosecution. Her lawyer appeared for the second status, at which a discovery extension was ordered.

When the trial court judge realized competing orders were entered, she ordered the parties to return about a week later. But Magdalena missed that status conference, too. The trial court then vacated the discovery extension and let the order that dismissed the case stand.

One month later, Magdalena asked the court to vacate the dismissal. But the trial court denied the motion. Magdalena asked the court to reconsider. Ten months later, the trial court granted Magdalena’s request to reconsider and vacated the dismissal. A month after that, Drs. Gleason and Danczkewycz appealed the order that vacated the dismissal. The circuit court stayed all proceedings pending the appeal.

More than a year later, while the appeal still was pending, the trial court called a hearing of all parties. The judge told the parties that she had been informed that Magdalena’s lawyer “asked one of the [court clerk] supervisors to make a deletion from the electronic docket of a particular order that would be germane to this case.”

Magdalena’s lawyer denied the charge, but the trial court didn’t buy it. The judge changed her mind about Magdalena’s request to vacate the dismissal, and ruled that Magdalena had not satisfied the elements of a request to vacate a dismissal. The court vacated its order that vacated the dismissal. The effect was to reinstate the dismissal of the case.

Gleason and Danczkewycz then withdrew their appeal. But Magdalena filed her own appeal from the dismissal of her case.

The first question was whether the circuit court had jurisdiction to reinstate the dismissal. The rub came because the trial court’s order reinstating the case was entered while the appeal by Gleason and Danczkewycz was pending.

The general rule is that filing a notice of appeal divests the trial court of jurisdiction “to enter any order involving a matter of substance and thereafter [the trial court] retains jurisdiction only to decide matters independent of and collateral to a judgment.” Magdalena argued the pending appeal by Gleason and Danczkewycz deprived the trial court of the power to reinstate the dismissal, rendering the trial court’s order void.

On the other hand, the doctors argued that the trial court order was valid because (1) Magdalena did not object to the trial court’s jurisdiction and (2) by appealing the order Magdalena acted as if the order were valid. The doctors relied on the doctrine of revestment, which permits trial court “jurisdiction over a case after it has been dismissed if the parties subsequently ignore the dismissal and continue litigating the case.”

The First District Illinois Appellate Court sided with Magdalena. The appellate court reversed the trial court, thus reinstating Magdalena’s lawsuit. The appellate court stated that revestment, “as now urged by defendants [Gleason and Danczkewycz], would be inconsistent with the settled legal principles that a party may challenge a void order at any time and that such a claim may not be waived.” The appellate court also ruled that Magdalena’s conduct did not imply that she “consented” to setting aside the dismissal order “as is required to trigger the effect of the revestment doctrine.”

Read the whole opinion, Wierzbicki v. Gleason, No. 1-06-3756 (3/6/09), by clicking here.

Kerr-McGee Chemical and Lefton Iron & Metal were fighting out a 15-year dispute over the cost of cleaning up an environmentally contaminated industrial site. The first time the case was in the Seventh Circuit Court of Appeals, the court ruled that Kerr-McGee was entitled to the clean-up costs from Lefton.

After the case was remanded, the trial court ruled that Kerr-McGee should receive $9.5 million. Lefton was ordered to be liquidated to satisfy the judgment. Lefton disputed the amount because: (1) Kerr-McGee had not proven its expenses were reasonable, and (2) amounts paid to Kerr-McGee by its insurers should be deducted from the judgment. The trial court ruled that if Lefton wanted to fight about whether the insurance payments should be deducted, it should do so in a separate motion in Kerr-McGee’s proceedings to execute the judgment.

But instead of filing the motion, Lefton appealed. The first — and as it turned out, only — question for the appellate court was whether there was a final order from which to appeal. The appellate court ruled there was not a final order because the trial judge still had to decide whether the insurance payments should be deducted from Kerr-McGee’s judgment. This is how the court explained it:

[T]he district judge recognized that one question affecting damages was unresolved and announced his willingness to tackle it after the Leftons filed an appropriate motion. Thus from the district judge’s perspective the litigation is not over, and the decision is not “final.”

So the appeal was dismissed because there was no appellate jurisdiction. But the court stated it would allow an appeal on the already-filed briefs after a final order from the trial court. Read the whole opinion, Kerr-McGee Chemical Co. v. Lefton Iron & Metal Co., No. 03-2991 (6/30/09), by clicking here.

An inmate in a supermax prison sued prison officials in a mandamus action. The inmate sought an order preventing controlled feeding and requiring a nurse to attend to the inmate’s self-inflicted wounds outside of his cell.

The prison officials asked for, and in July 2006 received, a dismissal of the complaint. Before that dismissal order was entered, and apparently unknown to the trial court judge, the inmate had filed a motion asking for a substitution of the trial court judge.

The court clerk did not send the parties the dismissal order for several months. In November 2006, the inmate asked the trial court, which by that time had substituted another judge, to vacate the order dismissing the case. The inmate argued that his request to substitute the original trial judge was made before the dismissal order had been entered. The inmate’s request to vacate finally was considered in September 2007. The trial court denied the request to vacate the dismissal order. The inmate appealed the denial of his motion to vacate.

The prison officials asserted the appellate court did not have jurisdiction to consider the appeal, so they asked that it be dismissed. They argued that the appeal had been filed 15 months after the order that dismissed the case, too long to invoke the jurisdiction of the appellate court.

The Fifth District Illinois Appellate Court ruled that it did have jurisdiction to hear the case. Coming after the motion to substitute judges had been filed, the order dismissing the case was void. And because a void order can be attacked any time, the inmate’s motion to vacate the dismissal was timely. And because the inmate appealed from the order denying his motion to vacate the dismissal, appellate jurisdiction was proper. Here is how the court explained it:

“Civil litigants in Illinois are entitled to one substitution of judge without cause as a matter of right." … "Orders entered after a motion for substitution of judge has been improperly denied are void." … The Illinois Supreme Court has held that void orders may be attacked at any time or in any court, either directly or collaterally … Based on these principles, we find that the plaintiff's motion to vacate was timely because … it was a … motion to collaterally attack a void judgment. Thus, the plaintiff's motion to vacate was a timely motion directed toward that judgment. Because the plaintiff filed a notice of appeal within 30 days after the entry of the order denying his motion to vacate, we have jurisdiction to consider whether the dismissal order was void.

Two important rulings arise from this landlord-tenant dispute.

After remand from the appellate court — which did not include instructions for how to proceed — the tenant asked the trial court for leave to amend its complaint to add a new item of damages. The trial court denied the tenant’s request because, it said, it did not have jurisdiction to do so.

Must the appellate court give specific directions to the trial court in an order of remand? The First District Illinois Appellate Court said “No.” Then what is the trial court’s authority and obligation after the appellate court sends the case back to the trial court? Here’s how the appellate court answered the question, complete with the standard of review:

Following a remand, the circuit court is obligated to exercise its discretion within the bounds of the remand … Whether it has done so is a question of law, and a reviewing court decides that legal question de novo …

A reviewing court is not required to provide specific directions in an order reversing a judgment and remanding a cause … In such a case, the circuit court is required to examine the reviewing court's decision and to proceed in a manner that conforms with the views expressed therein. … Where a cause has been remanded without particular instructions, the circuit court is not precluded from allowing the plaintiff to amend or supplement his pleadings, as long as the amendment is not inconsistent with the legal principles expressed by the reviewing court …

In this case, our prior decision did not include specific instructions, nor did it indicate that the cause was remanded for the limited purpose of resolving the two identified factual questions. Rather, we held that judgment on count IV could not be granted as a matter of law while those questions remained unanswered … A plaintiff is permitted to amend its pleadings to specifically state a damage claim, provided the amendment was not proscribed by the reviewing court's decision … This court's general remand order did not restrict the court's jurisdiction to allow amendment of the pleadings, and Suburban's proposed amendment seeking recovery of rent was not inconsistent with the our prior ruling. Therefore, we find that the circuit court erred in determining that it lacked jurisdiction to permit Suburban's proposed second amended complaint.

The second issue was whether the trial court had jurisdiction over a fee petition that was filed within 30 days of the final judgment, but after the notice of appeal was filed. The trial court ruled it did not have jurisdiction to hear the fee petition because the tenant already appealed. But the appellate court disagreed. Here is the appellate court’s thinking:

A circuit court retains jurisdiction for 30 days after its entry of a final order or judgment … A circuit court has jurisdiction to entertain a petition for fees filed within 30 days of the entry of a final judgment without regard to a previously filed notice of appeal … In addition, a circuit court has jurisdiction to address a timely-filed fee petition regardless of whether the fee request is considered to be part of the original action or collateral to the original claim … The filing of a postjudgment petition for fees renders a prior notice of appeal premature …

In this case, Associated's [Landlord] petition for fees was timely filed within 30 days of the entry of summary judgment in its favor. The filing of Associated's fee petition rendered Suburban's [Tenant] December 17, 2007, notice of appeal premature. Therefore, Suburban's first notice of appeal did not deprive the circuit court of jurisdiction to rule on the petition for fees …

Read the whole case, Suburban Rebuilders v. Associated Tile Dealers Warehouse, No. 1-07-3531 (2/10/09), by clicking here.

The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members. The Board tied on each of the complaints, four to four, meaning there was not a majority vote on the question of whether the complaints were filed on justifiable grounds. Each complaint therefore was dismissed.

The Republicans filed a direct appeal to the Illinois Appellate Court, which is allowed by the Illinois Election Code. Because the Board did not state factual findings, the appellate court ruled that it did not have authority to review the question of whether the Republicans’ complaints had justifiable grounds to proceed.

Instead, the appellate court stated that its jurisdiction was limited to the question of whether the Board acted “contrary to law.” In this case, that meant assuring the actual vote count was accurate. The appellate court thus affirmed the Board’s dismissals.

The Republicans appealed to the Illinois Supreme Court. The Democrats asked the court to dismiss the appeal because: (1) it was premised upon reviewing tie votes by the Board; but (2) the Board’s orders did not state they were tie votes, so the supreme court “must presume that the complaints were dismissed based on majority votes.”

The Illinois Supreme Court denied the request to dismiss the appeal. The court acknowledged the Board’s orders did not state whether they were based on tie votes, but:

Despite any shortcomings in the Board's final orders, we are not required to ignore the clear evidence of the tie votes in the hearing transcript … A review of the transcript of the closed preliminary hearing clearly indicates the Board voted four-to-four on each of the complaints. We will not disregard the clear vote shown in the transcript of the hearing absent plain evidence that it did not reflect the Board's true vote. While the final orders should have stated the complaints were dismissed for "failure to determine" that they were filed on justifiable grounds, that error does not conclusively show the complaints were dismissed by majority vote of the Board. Thus, we find the record establishes that these complaints were dismissed on tie votes. Given that finding, we deny the respondents' motion to dismiss the appeal.

The Democrats also argued that the Board’s vote was not reviewable by a court because “the Board’s exercise of judgment and discretion in its investigatory capacity must be ‘absolute, final and non-reviewable.’” The supreme court disagreed, and ruled that it had authority under the Election Code to review the Board’s tie vote. “The Board’s orders state they are ‘final and appealable.’ Hence, the orders are judgments of the Board. The [Republican Party] was adversely affected because the orders resulted in dismissal of its complaints without a public hearing. Those dismissals are, therefore, subject to judicial review under the plain language of section 9-22 [of the Illinois Election Code].”

Next up: The Illinois Supreme Court’s analysis of the standard of review of the Board’s dismissals. But if you can’t wait, click here for Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09

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 response to a complaint by the Securities and Exchange Commission, the federal district court froze the assets of Enterprise Trust. The SEC claimed that Enterprise deliberately mishandled and lost millions of dollars that it held for investors. The district court appointed a receiver for Enterprise, who devised a plan to distribute the remaining assets to the account holders. The plan called for custodial account holders to receive a bigger percentage of their accounts than managed account holders.

Although they were not named parties in the lawsuit, and had not intervened, three of the managed account holders appealed to the Seventh Circuit Court of Appeals. They wanted a ruling that distributions to all Enterprise account holders should be treated equally. The appeal raised the propriety of appellate jurisdiction because, in a previous case, the court ruled that “investors affected by a receiver's plan of distribution can't appeal without intervening and becoming formal parties to the litigation …”

But this time the court ruled that appellate jurisdiction existed. The appellate court overruled its earlier decision, and concluded that a party whose rights were foreclosed by the receiver’s actions may appeal, even if the party has not officially intervened in the lawsuit. Here’s what the Seventh Circuit said:

People whose money was under management at Enterprise Trust Co., like creditors of a debtor in bankruptcy, must accept the distribution that the court believes appropriate. As with an in rem proceeding (where a court divvies up stakes in a fixed asset), they can't file another suit seeking more from the pool of assets administered in the receivership (or the bankruptcy) … [Allowing those investors to appeal the receiver’s plan] eliminates a conflict among the circuits − for other courts permit investors to appeal in receivership proceedings without intervening …

LaSalle Bank, the principal creditor in the Goldblatt’s Bargain Stores bankruptcy, claimed Great American Group committed fraud when it purchased inventory from Goldblatt’s stores that were closing. LaSalle had a security interest in the inventory, and was obliged to reimburse Great American for overpayment of the estimated inventory value. The bankruptcy judge agreed that Great American committed fraud, but ruled that LaSalle had not been damaged by the fraud. The bankruptcy court ruled that LaSalle had to reimburse Great American more than $1 million for the inventory.

LaSalle appealed to the district court. The district court reversed the bankruptcy court because “fraud vitiated the contract and thus excused LaSalle Bank from any obligation to perform.” The district court also remanded the case back to the bankruptcy court “for further proceedings consistent with” its order.

Great American then appealed to the Seventh Circuit Court of Appeals. The first issue was whether the appellate court had jurisdiction to hear the appeal. The sticking point was the district court’s remand to the bankruptcy court, which usually would render the district court’s ruling non-appealable. But the Seventh Circuit Appellate Court took Great American’s appeal because the remand was perfunctory and there was nothing left for the bankruptcy court to do.

[A]s far as we can tell, nothing has actually been remanded in this case. The bankruptcy judge entered a money judgment, which the district judge reversed; there is nothing more for the bankruptcy judge to do. The “remand” in the district judge's opinion seems to have been an inapt entry from a word processor's store of standard phrases. This dispute is over; the decision is final, and we have jurisdiction.

In the end, the Seventh Circuit Appellate Court reversed the district court and reinstated Great American’s judgment. Read the whole case, Leibowitz v. Great American Group, No. 07-3693 (3/18/09), 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.

This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it’s not necessarily so.

GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage. Michele did not timely enter an appearance in the trial court, so a default judgment of foreclosure was entered against her. She asked the court to vacate the default and to quash service of the lawsuit. In turn, GMB asked the court to strike Michele’s motion. The trial court granted GMB’s motion to strike, and stated that its order was “final and appealable.” Later, the trial court confirmed GMB’s sale of the property.

Michele appealed both trial court rulings. Her Notice of Appeal was filed within 30 days of the court’s order that approved the sale of the property, but more than 30 days after the trial court made its “final and appealable” order granting GMB’s request to strike the motion to quash service.

GMB argued that there was no appellate jurisdiction for the court to review the order that struck Michele’s motion. GMB claimed that the order was “final and appealable,” so Michele should have filed her Notice of Appeal within the 30-day deadline to properly secure appellate jurisdiction.

The Second District Illinois Appellate Court disagreed, and ruled that the trial court’s “final and appealable” order wasn’t really final and appealable. Here’s what the appellate court said:

As a preliminary matter, plaintiff argues that we have no jurisdiction over the order granting the motion to strike, because the trial court designated the order as final and appealable yet defendant did not appeal within 30 days of the order … The trial court's characterization of the order as final and appealable did not make it so … By its nature the order did not have the requisite finality. “A judgment ordering the foreclosure of a mortgage is not final and appealable until the court enters orders approving the sale and directing the distribution." … The grant of the motion to strike was an intermediate order in a process that did not culminate for purposes of appeal until the January 9, 2007, order confirming the sale. Defendant appealed well within 30 days of the January 9 order, and therefore we have jurisdiction to review the prior order granting the motion to strike.

In the end, the trial court’s order confirming the sale of the property was affirmed. Read the whole case, GMB Financial Group v. Marzano, No. 2-07-0047 (10/17/08) 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.

Gerald Swinkle was denied a job with the Illinois Liquor Control Commission. He filed a claim against the liquor commission in the Illinois Civil Service Commission. He charged that the liquor commission’s hiring practice violated a veteran’s preference provision in the Illinois Administrative Code. The Civil Service Commission ruled that Swinkle did not prove his case, and that Swinkle was not entitled to an evidentiary hearing. The trial court affirmed the Civil Service Commission.

Swinkle still wanted an evidentiary hearing, so he appealed to the Fourth District Illinois Appellate Court. He filed a notice of appeal within the required 30 days. But he filed the notice in the appellate court, not the trial court as required by the Illinois Supreme Court rules. By the time Swinkle’s notice of appeal was filed with the trial court, it was 44 days late.

The appellate ruled that filing in the wrong court doomed Swinkle’s appeal. The court did not have jurisdiction to hear the appeal because Swinkle did not file a notice of appeal in the trial court, a requirement to establish appellate jurisdiction.

The language of Rule 303(a)(1) unambiguously required petitioner [Swinkle] to file a notice of appeal in the circuit court no later than 30 days following the entry of the circuit court’s final judgment. Petitioner did not do so.

An appellate court’s power attached only upon compliance with the supreme court rules governing appeals … and we are without the authority to excuse petitioner’s failure to comply with the filing requirements of Rule 303 … Because compliance with Rule 303 is mandatory and jurisdictional, we dismiss petitioner’s appeal for lack of jurisdiction.

Read the whole case, Swinkle v Illinois Civil Service Commission, 4-08-0314 (1/15/09), by clicking here.

Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs’s notice of appeal was filed timely, but it stated only that he was appealing. It did not state that he was appealing on behalf of the class he represented.

Under Federal Rule 3(c), as interpreted by the Seventh Circuit Court of Appeals, “the notice of appeal must indicate that the class representative is appealing in his representative capacity.” Marrs had to fix his notice of appeal, or else the appellate court would not have jurisdiction to consider an appeal by the class. But the time for filing the notice of appeal had passed. So to fix the notice, Marrs asked the appellate court to allow him to file a corrected version that specifically said the appeal was for the entire class.

The Seventh Circuit Court of Appeals denied Marrs’s motion. The opinion does not state why, but presumably the court adopted the rationale argued by Motorola – i.e., that Marrs’s motion really was asking for extra time to file a notice of appeal for the class, and that he did not meet the conditions for allowing extra time.

Marrs argued that permitting him to file a new notice of appeal would not prejudice Motorola, especially because the parties had not yet briefed the merits of the appeal. The Seventh Circuit rejected that argument because “lack of prejudice is not a defense to the application of Rule 3(c).”

Read the whole case, Marrs v. Motorola, Inc, No. 08-2451 (11/7/08), by clicking here.

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

Flying J appealed to the Seventh Circuit Court of Appeals. In its reply brief on appeal, New Haven again asserted the same ripeness argument that it made, and lost, in the district court. Flying J countered that New Haven was not permitted to raise the argument on appeal because the city had not filed a cross-appeal.

The Seventh Circuit rejected Flying J’s argument because the court must consider subject-matter jurisdiction at any point in the litigation. Here is the court’s rationale:

Flying J responds that the district court determined that the ripeness requirements … did not apply and that because New Haven did not cross-appeal the issue they are precluded from bringing it up here. This last assertion is incorrect, however, because ripeness “when it implicates the possibility of this Court issuing an advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement.” … New Haven's argument thus concerns this court's subject matter jurisdiction over the appeal. We are obliged to consider that at any point in the litigation.

In the end, the appellate court ruled it had jurisdiction but that Flying J did not state a cause of action. Read the whole case, Flying J Inc. v. City of New Haven, 549 F. 3d 538, No. 08-2319 (12/5/08), by clicking here.

When she was still a teenager living in Guatemala, Aura Chavez-Vasquez’s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant.

Aura was living in Missouri with her two children when her illegal residency status was discovered. She was turned over to the Department of Homeland Security, which initiated a removal proceeding against her.

At the administrative hearing, Aura asked for her removal to be canceled. But the Immigration Judge ruled that she carried the day on only three of four required elements. She did not, the IJ ruled, prove that her removal would cause her American-born children “‘exceptional and extremely unusual hardship.’” So her request to cancel the removal was denied.

Aura appealed that decision to the Bureau of Immigration Appeals, which upheld the IJ’s decision. Aura then appealed the Bureau’s decision to the Seventh Circuit Court of Appeals. In the Seventh Circuit, Aura argued that her due process rights were violated because (1) the IJ’s decision was not sufficiently thorough and (2) the IJ did not consider her evidence of the conditions in Guatemala.

The Seventh Circuit Court of Appeals ruled that it did not have jurisdiction to hear the first due process argument because it was not raised in the appeal to the Bureau.

As a threshold matter, we lack jurisdiction to resolve this issue because Ms. Chavez-Vasquez did not exhaust her administrative remedies … She did not raise her due process argument before the BIA. We may not hear an unexhausted claim unless it presents an issue that the BIA cannot decide adequately such as a claim involving “fundamental constitutional violations.” … Ms. Chavez-Vasquez's due process claim is “based on procedural failings that the BIA is capable of addressing.” … The BIA was capable of correcting any procedural errors made by the IJ; if warranted, the BIA could have simply remanded the case to the IJ with instructions to hold a longer, more comprehensive hearing … Because Ms. Chavez-Vasquez did not exhaust the due process claim, we cannot review it …

The court disposed of Aura’s second argument by characterizing it as a complaint that the IJ did not give sufficient weight to Aura’s evidence. “Because this argument does not present a question of law, we lack jurisdiction to entertain it.”

Read the whole opinion, Chavez-Vasquez v. Mukasey, No. 08-1652 (12/8/08), by clicking here.

Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal. Jeffrey argued that the appellate court did not have jurisdiction because the motion to disqualify had not been decided by the trial court.

The Second District Illinois Appellate Court agreed with Jeffrey and ruled that Neringa’s appeal was premature. Because the motion to disqualify presented a separate claim, it had to be resolved before the appellate court could take jurisdiction of Neringa’s appeal of the custody order.

The appellate court described the procedure Neringa should follow in order to perfect her appeal: “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.”

Read the whole case, IRMO Valkiunas, 2-08-0279 (12/18/08), 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.

Jennifer Keener’s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed.

Jennifer sued the City of Herrin for wrongful death. Herrin moved to dismiss Jennifer’s complaint. Several weeks later, the trial court granted the motion to dismiss. But despite directing the order of dismissal to be mailed to the parties’ attorneys, they were not
notified.

Discovery in the case continued, including a deposition of the officer who arrested Jennifer’s daughter. The attorneys found out about the dismissal when they appeared in court for a status conference, about 11 months after the dismissal order was entered.

Apparently realizing that the time to appeal the dismissal had long passed, Jennifer’s lawyer filed a motion to reconsider the dismissal under § 2-1401 of the Illinois Code of Civil Procedure (relief from judgments more than 30 days old). The motion included testimony from the arresting officer’s deposition, evidence that was not available when the trial court ruled on Herrin’s the motion to dismiss.

Apparently realizing that the blown deadline to appeal was not Jennifer’s lawyer’s fault, the trial court granted the motion to reconsider, then immediately granted another dismissal of Jennifer’s complaint. Jennifer then filed a timely notice of appeal of the trial court’s second dismissal.

Herrin did not move to dismiss the appeal for lack of jurisdiction, but the Fifth District Illinois Appellate Court reviewed its jurisdiction to hear the appeal on its own motion. The issue was whether Jennifer could circumvent the 30-day rule to file an appeal by getting the trial court to vacate the original dismissal on a motion to reconsider, only to immediately dismiss the complaint again.

Herrin argued that the usual rules applied: (1) It was Jennifer’s responsibility to monitor the case, so the clerk’s failure to notify the parties about the original dismissal did not extend the time for Jennifer to appeal; (2) A party cannot get around the 30-day rule by asking for reconsideration under § 2-1401.

The appellate court sided with Jennifer. The usual rules did not apply to Jennifer’s case because she submitted new evidence that was not before the trial court when it made its original decision to dismiss her complaint. Here’s what the court said:

Jennifer's section 2-1401 petition did not simply request the circuit court to reenter the same dismissal order to restart her appeal clock; instead, she presented the circuit court with new evidence (deposition testimony of Officer Laird) of which the court had no knowledge when it entered its first dismissal order. Jennifer was not seeking the reentry of the same order. She was urging the court to deny the defendant's motion to dismiss. A section 2-1401 petition is the proper mechanism for bringing this additional evidence to the circuit court's attention … Jennifer's section 2-1401 petition was not filed merely as a subterfuge to extend the time requirement of Rule 303 (a) [30 days to file appeal].

Read the whole opinion, Keener v. City of Herrin, No. 5-06-0501 (10/6/08), by clicking here.

In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer’s motion to vacate relied on two sections of the Illinois Civil Procedure Code − § 2-1301(e) (setting aside default judgments); § 2-1401 (relief from judgments).

The trial court denied Archer’s motion to vacate. Eventually, a final and appealable order distributing the proceeds of the sale of the property was entered. Archer appealed and argued that the default should have been vacated under § 2-1401. In the appellate court, Archer dropped its § 2-1301(e) argument.

Appeals from § 2-1401 petitions are governed by Illinois Supreme Court Rule 304(b). The rule requires an appeal to be filed within 30 days. Although Archer filed an appeal within 30 days of the final distribution order, it came long after the court ruled on the § 2-1401 petition.

We have no doubt that Archer's notice of appeal gives us jurisdiction to review the outcome of the foreclosure case. But Archer's brief complains only of the trial court's dismissal of Archer's request to vacate the default in that request's aspect as a section 2--1401 petition. Under Supreme Court Rule 304(b)(3) … an order resolving a section 2--1401 petition is immediately appealable. When rule 304(b) makes an order immediately appealable, that appeal is not elective--any claim of error is lost if not raised then … Indeed, because a section 2--1401 petition begins a separate action … the resolution of the petition ends the entire action, so no other time to appeal could exist.

But Archer got another bite at the apple anyway. The appellate court ruled that Archer’s § 2-1301 petition became reviewable after the final distribution order was entered, so Archer’s appeal was timely. And although Archer did not brief its § 2-1301 argument, the Second District Illinois Appellate Court took the case on that basis anyway. In the end, the appellate court sent the case back to the trial court to consider Archer’s § 2-1301 petition.

Read the whole opinion, Washington Mutual Bank v. Archer Bank, No. 2-07-0074 (9/15/08), by clicking here.

The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion.

The supreme court ruled that the Commission’s regulation that allowed electronic filing was ambiguous because it “contains no indication whether filing requires actual physical acceptance by a human being in the chief clerk’s office.” The court’s decision thus turned on the Commission’s policy of encouraging electronic filing.

“The entirety of the Commission’s enactment seeks to expand, rather than limit, the ability of parties to make use of the e-docket system. Insisting on a deadline of 5 p.m. would have the opposite effect, limiting the use of e-filing. When faced with a tight deadline, a 5 p.m. rule would encourage attorneys to print, and mail, large documents rather than use the efficient and economical method of electronic filing that the Commission’s rules promote.”

Don’t get too excited, though. The case does not make a broad rule that e-filing after usual business hours always will be acceptable. A jurisdiction is free under this opinion to place a business-hours deadline on an e-filing. “Indeed, the extent to which other jurisdictions have enacted business hours deadlines also serves to underscore the Commission’s own decision not to issue an explicit rule.”

Read the whole opinion, People v. Illinois Commerce Commission, No. 105131 (11/20/08), by clicking here

In a post-dissolution of marriage case, does a pending contempt petition render other substantive rulings non-final and non-appealable? Does the court have to rule on the contempt petition before the appellate court can exercise its jurisdiction over all of the rulings?

The blog entry directly below explains what happened in IRMO Gutman. Appellate jurisdiction was in question because Mary Gutman appealed rulings concerning maintenance when her contempt petition still was pending.

The appellate court ruled that the contempt petition did not raise a claim for relief in the post-dissolution action. That meant the earlier order that terminated maintenance was final and appealable. Mary’s Notice of Appeal, which was filed more than 30 days after the maintenance order, was not timely and did not invoke the appellate court’s jurisdiction. So the appeal was dismissed.

The Illinois Supreme Court affirmed, but reached its decision using a rationale exactly opposite of the appellate court’s. The supreme court ruled that the pending contempt petition did raise a claim in the same action as the maintenance petitions.

Accordingly, we hold that the trial court’s order disposing of the parties’ maintenance petitions was not a final appealable order. Because Mary’s contempt petition and the two maintenance petitions raised claims for relief in the same action, the order terminating maintenance was final as to fewer than all claims in the action. Mary’s appeal, filed before the resolution of her contempt petition … was premature … A premature notice of appeal does not confer jurisdiction on the appellate court … Therefore, while we reject the reasoning of the appellate court, we affirm the appellate court’s dismissal of the appeal for lack of jurisdiction.

The Illinois Supreme Court said the appeal was premature, so it dismissed Mary’s appeal. The appellate court said the appeal was late, so it dismissed the appeal. If you missed it, here’s the link to IRMO Gutman, No. 105648 (11/20/08).

Nearly five years after their divorce, Mary Gutman filed a motion to continue and modify her maintenance award. Two months later, Daniel filed a motion to terminate maintenance. One month after that, Mary filed a petition to hold Daniel in contempt for having stopped the maintenance payments.

The trial court twice set a date for hearing on the competing maintenance petitions, but Mary did not attend either time. On the second hearing date, the court granted Daniel’s petition to terminate maintenance, dismissed Mary’s maintenance petition, and did nothing on the contempt petition. The trial court’s order did not contain language under Illinois Supreme Court Rule 304(a) that would have made the maintenance dismissals appealable interlocutory orders.

After her motions to vacate and to reconsider were denied, Mary appealed. But her Notice of Appeal was filed well more than 30 days after the trial court ruled on the maintenance petitions.

The Second District Illinois Appellate Court dismissed Mary’s appeal for lack of appellate jurisdiction. The appellate court ruled that the pending contempt petition really was a separate claim for relief from the maintenance petitions. Therefore, the appellate court concluded, the order on the maintenance petitions was final and appealable, and should have been appealed within 30 days. Mary’s appeal, coming more than 30 days after the ruling, was late, depriving the appellate court of jurisdiction over the case.

Mary appealed that ruling to the Illinois Supreme Court, which took the case. There are two aspects of the Supreme Court’s opinion that are important to appellate practitioners. One, of course, is whether the appellate court was right to dismiss Mary’s appeal for lack of jurisdiction.

The other issue, which we’ll examine today, arose because another panel of judges from the same court “overruled” this opinion. So the first question for the supreme court was whether the appellate opinion in this case had any legal effect in view of the same court having “overruled” it. (For more on this stunning intra-district squabble, click here and here to read our reports from earlier this year.)

The supreme court ruled that one panel cannot overrule another panel. Nor can one district overrule another. Disagreeing opinions create conflicting authority but one does not overrule the other. Here’s what the supreme court said:

We find, however, that the decision before us has not been overruled. A panel, division, or district of the appellate court has no authority to overrule another panel, division, or district … Thus, despite its statement to the contrary, Knoerr [the second case] did not overrule this case. The Knoerr panel created a conflict of authority by disagreeing with a decision from another panel of a court of equal stature. We conclude, therefore, that the appellate court decision we are reviewing remains in effect.

So the supreme court still had to review the jurisdiction dispute. We’ll look at that part of the opinion next time. (No reason to hold your breath, though. The Illinois Supreme Court affirmed the appellate court’s dismissal, but for reasons quite different than the appellate court used.) If you just can’t wait to read it, click here for the full opinion, IRMO Gutman, No. 105648 (11/20/08). And click here to read our first report of the appellate opinions in IRMO Gutman and IRMO Knoerr.

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.

Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia.

Wartalski sued the construction contractors for negligence, and a jury awarded him $975,700. The contractors appealed. They argued that Wartalski’s expert witnesses should not have been allowed to testify at the trial because their opinions were not generally accepted.

Wartalski countered that the contractors waived their argument because they did not first raise it in a post trial motion. He pointed to Section 2-1202(b) of the Illinois Code of Civil Procedure, which requires a party to make a motion to the trial court for relief following a jury verdict.

The First District Illinois Appellate Court rejected Wartalski’s argument. The ruling that allowed the expert testimony was made by the judge, not a jury, so the post trial motion was not necessary to preserve the question for appeal or to establish appellate jurisdiction. “Wartalski's reliance on section 2-1202 is in error; section 2-1202 does not apply to nonjury matters such as Frye [expert evidence] rulings, nor does section 2-1202 establish or limit the appellate court's jurisdiction. No postjudgment motion is required to preserve matters determined without a jury for review.”

In the end, the appellate court ruled that the expert evidence was neither new nor novel, so the experts could testify. Wartalski’s judgment was affirmed. Read the whole case, Wartalski v. JSB Construction and Consulting, Nos. 1-07-0954, 1-07-0955 (7/10/08), 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.

Diana Holland, who owned real property in Florida, filed her Chapter 7 Bankruptcy in Illinois. She asserted that Florida law exempted the Florida property from the bankruptcy. The bankruptcy trustee argued that Illinois law applied, and that it did not exempt the Florida property. The bankruptcy court ruled that Illinois law applied, but did not consider whether the property was exempted. On appeal, the district court reversed, ruled that Florida law applied, and remanded the issue of exemption back to the bankruptcy court.

The trustee appealed to the Seventh Circuit Court of Appeals. But the Seventh Circuit dismissed the appeal and ruled it did not have appellate jurisdiction because the district court’s order was not final and appealable. Although the federal circuits are split on the question, for the Seventh Circuit, the district court’s remand order made the difference.

Our circuit precedent accords with the majority view: “[E]ven if the decision of the bankruptcy court is final, a decision by the district court on appeal remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless the further proceedings contemplated are of a purely ministerial character . . . .” What remains to be decided here is hardly ministerial: the bankruptcy court still has to answer the $350,000 question whether Holland is entitled to an exemption under Florida law. … Only then—after the bankruptcy court has made its final ruling, the district court has revisited the case, and a fresh notice of appeal to our court has been filed—can we exercise jurisdiction over the matter.

Read the whole case, In re Holland, No. 07-1949 (8/19/08), by clicking here.

Ahmad Khorrami claimed he was wrongfully detained and mistreated by the federal government in an investigation stemming from the 9/11 terrorist attack. Khorrami sued Michael Rolince, an FBI agent on whose affidavit Khorrami allegedly was detained, and the government. The lawsuit alleged multiple causes of action, including one against Rolince — Khorrami claimed Rolince’s affidavit was false — for violation of Fifth Amendment due process rights.

The government moved to dismiss the complaint (1) for failure to state a claim and (2) arguing that Rolince had qualified immunity for his affidavit. The trial court granted all aspects of the motion, except that it declined to rule on the government’s claim for qualified immunity. The government brought an interlocutory appeal, arguing there was qualified immunity and that the whole case should have been dismissed.

The Seventh Circuit Court of Appeals dismissed the appeal. Because the immunity defense was postponed for later ruling by trial court, and not specifically ruled upon, there was not an order rejecting the immunity defense, which was a requirement for appeal. In addition, this was not a de facto denial of the immunity defense caused by a delay in ruling. The order setting aside the immunity ruling did not have a direct or irreparable impact on the merits of the case.

Get the whole case, Khorrami v. Rolince, No. 07-2755 (8/27/08), 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.)

Insurer CNA was involved in a complicated dispute with a claim handling company, Staffing Concepts. Staffing Concepts made claims on the worker compensation policies that it bought from CNA. CNA claimed that Staffing Concepts refused to pay millions of dollars for the deductibles on claims made by its employees.

There was a related dispute between Staffing Concepts and ClaimPlus, a company that serviced claims made by the Staffing Concepts employees. ClaimPlus asserted that Staffing Concepts did not pay the claim handling fee. So ClaimPlus filed an arbitration claim against Staffing Concepts.

Staffing Concepts then moved to transfer CNA’s case from Illinois to Florida. Some of the Staffing Concepts affiliates, also defendants in the case, moved to dismiss the complaint for lack of personal jurisdiction. CNA in turn asked the court to stay the case, and to put the Staffing Concepts’ motions on hold, pending the outcome of the arbitration between ClaimPlus and Staffing Concepts.

The trial court preferred to rule on Staffing Concepts’ motions first. So it struck CNA’s motion to stay, with leave to refile after the motions to dismiss and change venue were ruled on.

CNA appealed under the Federal Arbitration Act, which permits appeals from orders refusing to stay a case in which arbitration has been demanded or denying a petition to order arbitration to proceed. CNA claimed that the postponement of its motion to stay was the equivalent to denying it.

The Seventh Circuit Court of Appeals disagreed with CNA and dismissed the appeal for lack of appellate jurisdiction. The court referred to the postponement of CNA’s motion as a “delay incident to an orderly process.” It was not “ground for appellate jurisdiction unless irreparable damage could be shown. CNA has shown none, and so there is no basis for us to hear its appeal.”

The whole case, Continental Casualty Co. v. Staffing Concepts, Inc., No. 07-2475 (8/6/08), is available by clicking here.

Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review.

Janet then filed a complaint in federal district court against the Commissioner of Social Security . After the district court affirmed the denial of benefits, Janet appealed. She filed her notice of appeal 63 days after the district court ruled, but Federal Rule of Appellate Procedure 4(a)(1)(b) required her to file the notice within 60 days of the judgment.

To cure the late filing, Janet asked the district court judge to extend the time to file the notice of appeal by three days. To justify the extension, her lawyer stated that he understood the local administrative policies and procedures manual to give him three extra days to file. The district court granted Janet’s motion for the three days.

On appeal, the Commissioner argued that the district court improperly granted Janet the three additional days to file the notice of appeal, and that the appeal was untimely, depriving the appellate court of jurisdiction. The Seventh Circuit Court of Appeals agreed with the Commissioner and dismissed Janet’s appeal for lack of jurisdiction.

The analysis turned on whether Janet’s lawyer’s misunderstanding of the filing deadline was excusable neglect, the standard for allowing an extension of time to file a notice of appeal. The court ruled that “A simple case of miscalculating a deadline is not a sufficient reason to extend time, and judges do not have “carte blanche” authority to allow untimely appeals.”

Get the whole opinion, McCarty v. Astrue, No. 07-2104 (6/16/08), by clicking here.

Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages. The trial court did not make a finding under Illinois Supreme Court Rule 304(a) (no reason to delay enforcement or appeal of the order).

After Berry put in her case at trial, Chade moved for a directed verdict and to vacate the summary judgment ruling. The trial court granted Chade’s motions. Then Berry asked for reconsideration of the ruling that vacated her summary judgment, arguing that Chade’s motion was too late, having come more than 30 days after the judgment was entered. The trial court granted Berry’s reconsideration motion, reinstated the summary judgment, and awarded Berry $1,000, the minimum award under the Act.

Both parties appealed. Chade argued that its motion to vacate was timely because the partial summary judgment was not a final and appealable order. The First District Illinois Appellate Court agreed, and stated there was nothing in the summary judgment ruling to indicate it was final and appealable (no Rule 304(a) language or the like), so it was no more than a typical non-final interlocutory order.

As the trial court noted, allowing the partial summary judgment to remain in place even after the plaintiff failed to provide evidence to support her underlying claims yielded an inconsistent and irreconcilable result. If the defendant did not breach the contract or violate the Act, then clearly it could not be liable for damages. Yet, allowing the partial summary judgment to remain in place resulted in the trial court awarding statutory damages of $1,000, although no damages were due.

The appellate court clearly was frustrated with this case. The court found the trial court’s result “flies in the face of established legal principles.” Read the whole opinion, Berry v. Chade Fashions, No. 1-07-0639 (6/30/08), by clicking here.

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.

Kevin S. disputed an involuntary commitment order against him that placed him in the Chester Mental Health Center. The commitment order was entered in November 2006, and was good for 180 days. But the case was before the Fifth District Illinois Appellate Court well after the 180 days expired. So appellate jurisdiction the first question the court addressed. Was the case moot because the commitment order had expired, and the appellate court no longer could give Kevin S. the relief he requested? If so, the appellate court would be without jurisdiction to rule on Kevin’s appeal.

The court ruled that the case fell into an exception to the mootness doctrine, and stated that it did have jurisdiction. “Generally, a court will not consider moot questions or render advisory decisions … Questions raised in an appeal that are capable of repetition, yet might evade review because of the short duration of the order, fall under the exception of the mootness doctrine … Given that respondent [Kevin S] has a long history of civil commitment and that it is likely that the circumstances present here may reoccur without the opportunity for a resolution before the case is rendered moot by the expiration of the order, we will address respondent's contentions.”

Read the whole case, In re Kevin S., No. 5-06-0677 (4/2/08), by clicking here.

Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main.

The Village moved to dismiss Nicor’s amended complaint, but the motion was denied. When Nicor filed a second amended complaint, the Village’s motion to dismiss was granted. After Nicor’s motion to reconsider was denied, the company appealed. The Village then cross-appealed from the denial of its motion to dismiss the earlier amended complaint.

On appeal, Nicor moved to strike the portions of the Village’s brief related to the cross-appeal. Nicor argued that “its amended complaint was superseded by its second amended complaint and … [therefore] the arguments pertaining to the Village's section 2-619 motion to dismiss [should] be stricken because they are no longer part of the record and are irrelevant to the current appeal.”

The First District Illinois Appellate Court agreed with Nicor, but disposed of the Village’s cross-appeal altogether for lack of appellate jurisdiction.

… [T]he Village's cross-appeal must be dismissed because we lack jurisdiction to consider it. The order from which the Village purports to appeal was entered on October 26, 2005, yet the Village filed its notice of appeal only in April 2007. Thus, the Village's notice of appeal was not timely filed. See 155 Ill.2d R. 303(a)(1) (requiring notice of appeal to be filed within 30 days after entry of final order). Moreover, the denial of the Village's motion was not a final order and, thus, it would not have been appealable in any event. See 155 Ill.2d R. 303(a)(1). Accordingly, because we do not have jurisdiction to hear the Village's cross-appeal, we do not consider the portions of the Village's response brief relating to the appeal of the denial of its section 2-619 motion to dismiss Nicor's amended complaint.

Before they were married, Steven and Angela signed a premarital agreement. When the couple was divorcing, Steven filed a motion for a declaratory judgment, seeking an order on the validity and construction of the premarital agreement. The trial court ruled that the agreement was enforceable. The trial court also granted an interlocutory appeal under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the order).

Angela then moved for reinstatement on Steven’s health insurance policy. That provoked Steven’s motion to strike and dismiss Angela’s motion. He argued that Angela waived all rights to support and insurance in the premarital agreement. The trial court disagreed with Steven, and ordered him to reinstate Angela’s health insurance. When Steven’s motion to vacate that order also was denied, he appealed.

On its own motion, the appellate court reviewed the order that declared the premarital agreement valid. The appellate court reversed that order because, it said, it was improperly entered before entry of the final marriage dissolution order. Steven then appealed to the Illinois Supreme Court and complained that the appellate court was wrong on this point

The Illinois Supreme Court viewed this first as a question of appellate jurisdiction. Because the question of the validity of the premarital agreement was a separate claim from the request for dissolution of the marriage, it could be appealed as an interlocutory order − i.e., even before a ruling on the dissolution of the marriage. The Supreme Court stated:

Steven sought nondeclaratory relief under the Marriage Act, as well as declaratory relief under the declaratory judgment statute … His request for nondeclaratory relief sought dissolution of the parties’ marriage. His declaratory judgment request asked the court to address the validity and construction of the parties’ premarital agreement … [T]he two requests for relief here had distinctly different statutory bases. Moreover, if the statutory requirements were met, Steven’s declaratory judgment could be entered even if the dissolution petition were not granted. In addition … the challenged order did not actually make any award to either party.

What constitutes a “separate claim,” mostly in post-dissolution cases, has been contentious recently. Take a look here for other reporting on this question. You can get this whole case, IRMO Best, No. 104002 (3/20/08), 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, m