February 24, 2014

Aldermen’s Appeal Of Victorious Referendum Moot

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

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

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

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

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

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February 12, 2014

Second Order Allowing Interlocutory Appeal Fails To Save Appellate Jurisdiction

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

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

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

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

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

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

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

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February 6, 2014

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

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

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

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

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

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

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

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January 29, 2014

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

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

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

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

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

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

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

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

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January 6, 2014

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

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

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

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

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

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

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

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

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

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

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

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January 2, 2014

Ninth Circuit Appellate Practice Guide Posted

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

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

Get the whole guide by clicking here.

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December 30, 2013

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

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

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

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

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

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

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

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

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

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June 10, 2013

Fax Filing Of Reconsideration Request Insufficient To Toll Time To Appeal

Myqerem Shatku sued Wal-Mart Stores for negligence. The trial court granted her motion to voluntarily dismiss the case in October 2010. A little more than a year later, Myqerem asked the trial court for permission to re-file her complaint.Wal-Mart responded by asking the court to dismiss Myqerem’s request. The trial court granted Wal-Mart’s request.

Myqerem asked the trial court to reconsider the order that dismissed her request to re-file the case. She served her motion to reconsider on Wal-Mart by fax. But her notice of service did not say anything about when she filed her request in court. The court’s records showed her written request was stamped received after the 30-day deadline.

Even though the request to reconsider was filed after the deadline, Wal-Mart opposed the request on the merits, and did not argue that Myqerem’s request was too late. The trial court denied Myqerem’s reconsideration request, and also did not address the untimeliness of her request.

So Myqerem appealed. Wal-Mart argued Myqerem’s appeal was too late because: (1st) her request to reconsider was filed after the 30-day deadline, and (2nd) because it was late, the reconsideration request did not toll the time to appeal, and (3rd) the appeal was too late to give the appellate court jurisdiction becasuse it was filed long after the case had been dismissed. Myqerem argued that her request should be considered filed on the day she served it by fax on Wal-Mart, which would have put her just under the deadline and made her reconsideration request, and thus her appeal, timely.

But the Second District Illinois Appellate Court agreed with Wal-Mart. Here is how the appellate court explained it:

Plaintiff [Myqerem] asserts that she filed the motion by fax on January 23, 2011. At least three things are wrong with that assertion. First, plaintiff provides no support for her implication that the clerk may accept documents for filing by fax. We find nothing in state or local rules to support that claim; Illinois Supreme Court Rules 11 and 12 … provide for service by fax, but not for filing. Second, Rule 12 further provides that service by fax is effective the day after transmission, so that, even if the rule applied to filing, the filing would have been a day late …Third, and in any event, the transmission sheet on which plaintiff relies is not part of the record, and so we must discount it.

Myqerem also argued that the trial court was revested with jurisdiction because Wal-Mart opposed the reconsideration request on its merits and did not raise the lateness of the request in the trial court. The appellate court rejected that argument, too. “[W]hen a party opposes a motion to reconsider, a simple failure to note the untimeliness of the motion is not inconsistent with the merits of the judgment and does not cause jurisdiction to revest in the trial court.”

Finally, Myqerem argued that if her reconsideration request were late, the trial court should have considered it to be a petition under rules that allow a party to re-open a judmgment that is more than 30 days old. But the appellate court also rejected that position because Myqerem had neither requested the court to do so nor demonstrated that her request fell within the boundaries of a request to re-open a judgment.

Read the whole case, Shatku v. Wal-Mart Stores, 2013 IL App (2d) 120412 (5/10/13), by clicking here.

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April 7, 2013

Appellate Court Refuses Jurisdiction Over Order Quashing Lis Pendens

The Westin North Shore is a hotel in the northern suburbs of Chicago. The hotel was used as collateral for a multimillion dollar loan to the hotel owner. Five Mile Capital Westin had a subordinate interest in the loan. After the owner defaulted on his payments, Berkadia National Mortgage was named as special servicer of the hotel.

Berkadia got an offer to buy the hotel. But because the market for hotel properties fell, the offer did not cover the amount of the loan. If Berkadia accepted the offer, Five Mile Capital would be left with big losses.

So Five Mile Capital sued Berkadia, and asked the trial court for an injunction to stop the sale. Five Mile also recorded a lis pendens [formal notice that property title is disputed] on the property. Berkadia asked the trial court to dismiss the complaint and to lift the lis pendens. The trial court refused to dismiss the complaint, but did quash the lis pendens. The trial court also treated plaintiff’s position as a request for a preliminary injunction against the sale of the property. Then the trial court denied the preliminary injunction.

Five Mile appealed the denial of the preliminary injunction and the order quashing the lis pendens. Five Mile went to the appellate court under the rule allowing appeals of preliminary injunctions even before there is a ruling on the entire case. [Illinois Supreme Court Rule 307 allows appeals of certain interlocutory orders, including denials of preliminary injunctions.] So the first question was: Did the appellate court have jurisdiction to review the order that quashed the lis pendens? It would, if the order to quash were a preliminary injunction; it would not if the order to quash were a more typical interlocutory order.

The First District Illinois Appellate Court ruled it did not have jurisdiction to review the order to quash before the entire case was final because quashing a lis pendens is not a preliminary injunction. Here’s how the appellate court explained it.

As with an order quashing a discovery subpoena, an order quashing a lis pendens is simply an administrative order that deals with how the case proceeds before the court, and it can be issued by any court without resorting to its equitable powers. It then follows that, similarly to a discovery order, an order quashing a lis pendens is not an interlocutory order that is appealable under Rule 307(a)(1). We accordingly lack jurisdiction over that portion of the circuit court's order.

In the end, the trial court’s ruling denying the preliminary injunction [not preventing the sale] was affirmed. Read the whole opinion, Five Mile Capital Westin v. Bekadia Commercial Mortgage, 2012 IL App (1st) 122812 (12/24/12), by clicking here.

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March 16, 2013

No Appellate Jurisdiction For Homeowner’s Appeal Of Summary Judgment Foreclosure

Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.

On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].

Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.

Reason I. The orders denying the reconsideration request, and denying the Rule 2-1401 request to vacate the foreclosure judgment were not final and appealable because the trial court had not approved the sale of the property nor directed distribution of it. Here’s what the Illinois Supreme Court said:

It is well settled that a judgment ordering the foreclosure of mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution … The reason such a judgment is not final and appealable is because it does not dispose of all issues between the parties and it does not terminate the litigation … Specifically, although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution … Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a foreclosure case.

Reason 2. “A second problem with Kemp's appeal lies with the fact that, while a judgment of foreclosure is a final order, without Rule 304(a) language added to it, the judgment is not appealable … Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).”

Kemp argued that the orders denying her request for reconsideration of the summary judgment and her emergency request to vacate the judgment of foreclosure were appealable because the trial court included Rule 304(a) language in those orders. But the Illinois Supreme Court rejected that argument because “the inclusion of a special finding [Rule 304(a) language] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.”

Finally, Kemp argued in favor of appellate jurisdiction because the orders she attacked were, she said, void. The Illinois Supreme Court called that argument “meritless.” “This legal proposition [void order rule] … does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent … Rather, the rule allows a party the ability to always raise the issue of whether an order is void in an appeal where appellate jurisdiction exists and the case is properly before the court of review … As we have pointed out, there is no supreme court rule that permits the appeal of the nonfinal orders that Kemp has appealed in this case.”

Read the whole opinion, EMC Mortgage Corp. v. Kemp, 2012 IL 11341 (12/28/12), by clicking here.

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January 15, 2013

Summary Judgment For Illinois Hospital On Actual Agency In Medical Malpratice Case Not A Final Order

Brandon Wilson required surgery for a fractured femur. He had a heart attack during surgery, which resulted in brain injury from lack of oxygen. Brandon sued Edward Hospital, where the surgery was done, and the doctors who treated him there.

To win against the hospital, Brandon had to show that the doctors were the hosptal’s actual or apparent agents. The hospital argued that the doctors were neither, and asked for summary judgment. The trial court gave the hospital judgment on the actual agent theory, but, ruling a question of fact existed, denied the hospital’s request on the apparent agency theory. Brandon then voluntarily dismissed his complaint.

One year later, Brandon re-filed, alleging the apparent agency theory against the hospital. The hospital asked the trial court to dismiss the re-filed complaint, arguing that it was barred by res judicata [second lawsuit alleging the same cause of action against the same parties not allowed]. The trial court refused to dismiss the re-filed complaint. But the court certified a question for immediate appeal – i.e., whether the re-filed complaint was a violation of the rule against claim-splittting and should be barred by res judicata.

The Second District Illinois Appellate Court felt the re-filed complaint was improper claim-splitting, so it reversed the trial court. Brandon then appealed to to the Illinois Supreme Court. The supreme court agreed that plaintiff could legitimately re-file the apparent agency theory. The re-filed complaint did not improperly split a claim because “actual agency” and “apparent agency” were not separate claims. There was only one claim, negligence. “Actual agency” and “apparent agency” were different elements of liability that could go toward proof of the single claim of negligence.

This case is important for the appellate practitioner because the supreme court ruled that the trial court order giving summary judgment to the hospital on “actual agency” was not a final order. If not final, then it would not be appealable even under Illinois Supreme Court Rule 304(a). [Allowing instant appeal of certain final judgments before the whole case is finished.]

Read the whole opinion, Wilson v. Edward Hospital, 2012 IL 112898 (12/13/12), by clicking here.

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September 15, 2012

Death Of Fireman’s Widow Does Not Moot Her Appeal Of Retroactive Annuity Benefits

Michael Hooker suffered a debilitating injury while working for the Chicago Fire Department. After he died two years later, his widow, Elaine, applied to the Retirement Board of the Firemen's Annuity and Benefit Fund for widow’s benefits. She was awarded a minimum annuity, but she felt the Board did not include all of the money she was entitled to when calculating the amount of the annuity.

The original case went to the appellate court and then back to the trial court. Elaine filed an amended complaint that asked for recalculation of the annuity based upon an Illinois statute that became law after she filed the first complaint. She argued she was entitled to certain retroactive benefits.

The trial court gave summary judgment to the Board on its method of calculating the annuity. Elaine appealed. She died after the appeal was filed, but her estate carried on the appeal.

The First District Illinois Appellate Court assessed whether it had jurisdiction over the appeal in light of Elaine’s death – i.e., whether Elaine’s death abated the right to retroactive benefits. The Board argued against appellate jurisdiction because the question hadn’t been put to the trial court. But the court disagreed, and ruled that appellate jurisdiction existed because the court could “render effective relief.” This is how the appellate court explained it:

This court lacks jurisdiction to decide an appeal if the parties no longer face an actual controversy, as when events make it impossible for this court to render effective relief to the appealing party … This court has jurisdiction to consider whether Elaine's death makes her appeal moot. However, neither party has suggested that her death moots the appeal, and we see no reason to believe that her death would make her appeal moot. We will not extend our review of our jurisdiction to review an issue that the trial court never addressed, where the issue does not appear to moot the appeal, and where neither party argues that the issue moots the appeal. If the Board fails to pay Elaine's estate the benefits it withheld from Elaine while she lived, the statutory process for challenging the Board's refusal to pay benefits it owes should suffice.

In the end, Elaine’s method of calculating the anniuity prevailed too. Read the whole opinion, Hooker v. Retirement Board of the Firemen’s Annuity Benefit Fund of Chicago, 2012 IL App (1st) 111625 (7/18/12).

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September 7, 2012

One Notice Of Appeal Gives Appellate Jurisdiction Over 32 Plaintiff Appeals in Truck-Train Collision Case

A proliferation of lawsuits was filed after a collision between a truck carrying a load of metal rebar and an Amtrak passenger train. A number of passengers were injured, and some died in the accident. Cases by 32 passengers or their representatives were filed in Illinois state court. Debra Dowe’s lawsuit was among them. Dowe sued a number of parties, including Birmingham Steel, the rebar manufacturer that allegedly loaded the truck that was in the accident. Dowe’s lawsuit was consolidated with the others for purposes of pretrial discovery and motions.

Birmingham asked for, and received, summary judgment against Dowe and the other 31 parties. Dowe then appealed the summary judgment given to Birmingham. Her Notice of Appeal was filed for her own case and the 31 other plaintiffs whose cases were consolidated.

But Birmingham argued that the 31 others had to file their own appeals. Birmingham claimed that each of the non-Dowe lawsuits retained their own identity despite the consolidation for pre-trial purposes. Because the 31 non-Dowe plaintiffs had not filed their own notices of appeal, Birmingham argued, the appellate court did not have jurisdiction to consider their appeals.

The First District Illinois Court of Appeals disagreed. The appellate court ruled that Dowe’s single Notice of Appeal was sufficient to confer appellate jurisdiction over all of the plaintiffs because the appeal was from a single summary judgment that applied to all plaintiffs. The appellate court’s discussion of consolidation for purposes of appeal is instructive:

Actions pending in the same court may be consolidated “as an aid to convenience, whenever it can be done without prejudice to a substantial right.” … Our courts have recognized three different forms of consolidation: (1) where several cases are pending involving substantially the same subject matter, the court may stay the proceedings in all but one and then see whether the disposition of the one case may settle the others, thereby avoiding multiple trials on the same issues; (2) where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identities, and be disposed of in one suit.
Our review of the record indicates that even though the original stated purposes for the consolidation w[ere] to conduct discovery and motion practice as it related to liability, the consolidation was much broader and actually comes within the third category. To determine whether a particular consolidation was for disposition, the test is whether the cases might have been the subject of a single proceeding or could have been brought as one action.
Here, the circuit court consolidated the 32 separate bodily injury lawsuits for disposition by summary judgment. The circuit court's order granting summary judgment in favor of Birmingham Steel and against … the [32] Dowe plaintiffs applied to all of the consolidated cases and it gave rise to only one judgment to be appealed from.
If we accepted Birmingham Steel's position, this would go against the stated purpose of consolidation, which is to expedite the resolution of lawsuits, conserve time, and avoid duplicating efforts and unnecessary expenses … We find that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was sufficient to confer appellate jurisdiction over the 31 other Dowe plaintiffs.

Although Birmingham lost the appellate jurisdiction dispute, the appellate court affirmed the summary judgment. The whole opinion, Dowe v. Birmingham Steel, 2011 IL App (1st) 091997, is available by clicking here.

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July 30, 2012

Continuing Confusion About Appellate Jurisdiction In Illinois Post-Dissolution Divorce Proceedings

Elizabeth Demaret got a better job in New Jersey, so she wanted to move there from Illinois with her children. She had sole custody of her four children. James, her ex-husband, had parenting time in accord with a parenting agreement that an Illinois trial court incorporated into the divorce judgment.

Elizabeth asked the trial court for permission to move the children to New Jersey. James fought the request because he felt his time with the children would suffer and diminish. He asked the trial court to award him attorney fees he would incur fighting Elizabeth’s removal request.

The trial court denied Elizabeth’s request to move the children to New Jersey. Elizabeth appealed, but James’s fee request still was pending in the trial court. James argued that was enough to deprive the appellate court of jurisdiction to consider the appeal ― that is, (1) no appellate jurisdiction because (2) the order denying Elizabeth’s request to move the children was not final and appealable because (3) James’s fee petition still was pending in the trial court.

The appellate court acknowledged a split among the Illinois courts on whether a post-dissolution petition was:
• “a new claim within the original dissolution proceedings,” which would preclude appellate jurisdiction, or
• “a separate action from the original dissolution proceeding,” in which case appellate court jurisdiction exists upon a final resolution of that [the removal] petition under Illinois Supreme Court Rule 301 … regardless of the pendency of an unrelated petition.

The First District Illinois Appellate Court concluded “that postdissolution proceedings are generally new actions.” But that did not end the discussion. The court also ruled that James’s pending request for attorney fees was “wholly unrelated to the issues presented in [Elizabeth’s] removal petition.” So the appellate accepted jurisdiction over the case.

According to this appellate court, a split remains over whether a postdissolution petition presents a new action from the original divorce action or a new claim in an existing divorce case. In this case, Elizabeth won the battle over appellate jurisdiction. But she lost the war. The appellate court accepted jurisdiction over her appeal, then affirmed the trial court’s ruling that prevented her from moving with her children to New Jersey.

Read the whole opinion, IRMO Demaret, 2012 IL App (1st) 111916, which reviews the split of authority, by clicking here.

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July 21, 2012

Refusal To Modify Divorce Judgment Not Appealable Because Of Other Pending Issues

Arthur and Shirley Susman got divorced. The divorce judgment incorporated a marital settlement agreement, which reserved two subjects to be resolved later: (1) certain tax liabilities, and (2) allocation of certain personal property.

A few months later, Arthur asked the trial court to modify the judgment. He claimed there had been a mutual mistake of fact regarding a different tax liability. The trial court denied Arthur’s request.

Arthur appealed under Illinois Supreme Court Rule 301, which allows appeals from final judgments. But the First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Arthur’s appeal. The appellate court ruled that Arthur’s appeal of the order denying his request to modify the judgment was not appealable because other questions had been reserved by the trial court. Here’s how the appellate court explained it:

Here, the trial court did not resolve the allocation of the parties' personal property and pre-2008 tax liabilities. Because the parties could not fully agree what they would divide and how they would divide it, the court reserved the issues for further consideration, and the order was not enforceable in that specific regard …The court thus entered what is known as a bifurcated judgment pursuant to section 401(b) of the Illinois Marriage and Dissolution of Marriage Act … which authorizes a court to reserve issues in a dissolution judgment for further consideration … Although the court's actions might have been statutorily authorized, they did not result in a final, appealable order for the purposes of conferring jurisdiction on this court … This lack of finality regarding the dissolution action is evident from the record inasmuch as the parties continued to litigate the division of personal property.
Because the dissolution judgment was not final and appealable, the order disposing of Arthur's motion to modify the judgment therefore cannot be considered "final." … Arthur cannot seek to appeal an issue arising from the dissolution proceedings when others remain pending, and we must dismiss this appeal for lack of jurisdiction. The policy against avoiding piecemeal appeals compels the result in this case.

In passing, the appellate said Arthur could have appealed the “propriety of the [trial court’s original] bifurcated judgment.” But Arthur did not appeal that question, so the whole appeal was dismissed. Read the opinion, IRMO Susman, 2012 IL App (1st) 112068, by clicking here.

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July 15, 2012

Injured Party’s Appeal Dismissed For Violations Of Appellate Brief-Writing Rules

Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.

Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”

These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.

The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”

Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.

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June 3, 2012

Appeal Dismissed In Whistle Blower Case Against Illinois University

Robert Van Der Hooning, formerly an assistant dean at the University of Illinois, sued the university’s board of trustees and four officials of the university for violations of the Illinois State Officials and Employees Ethics Act. Van Der Hooning’s lawsuit originally was filed in the Illinois Court of Claims. When he first filed the lawsuit, the Ethics Act gave jurisdiction only to the Court of Claims. But about two years later the Ethics Act was changed to allow Illinois circuit [trial] courts to take cases under the Act.

After that happened, Van Der Hooning filed a second lawsuit in the Illinois circuit court. The university officials then asked the Court of Claims to dismiss Van Der Hooning’s case because another one involving the same claim against the same parties was pending in the circuit court. That request was denied, but the court put the case on abeyance while Van Der Hooning pursued his case in the circuit court.

Defendants then asked the circuit court to dismiss Van Der Hooning’s second case because it already was pending in the Court of Claims. The circuit court denied that request, and defendants appealed the circuit court’s ruling.

The first question was whether the appellate court had jurisdiction to consider the appeal. Van Der Hooning argued there was no appellate jurisdiction because the order denying the request to dismiss was a typical interlocutory order, non-final and non-appealable. The university officials argued the appellate court had jurisdiction under Illinois Supreme Court Rule 307(a), claiming the denial of its request to dismiss was really an injunction, which is appealable even though it is not a final order.

The First District Illinois Appellate Court agreed with Van Der Hooning and dismissed the appeal. This was a pretty easy one for the appellate court. The court refused jurisdiction because there was no statutory authority for the appellate court to accept the case. Here is how the appellate court explained it:

The trial court also had denied the officials’ request to stay the case while it proceeded in the Court of Claims. The university officials appealed that too. There was no argument about appellate jurisdiction over that interlocutory order. It was appealable under Illinois Supreme Court Rule 307 because it was considered an injunction. But ultimately the appellate court affirmed the denial of the request to stay.

Read the whole case, Van Der Hooning v. Board of Trustees of the University of Illinois, 2011 IL App (1st) 111531 (5/8/12), by clicking here.

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May 20, 2012

Father Successfully Appeals Termination Of Parental Rights

Ralph L’s baby, Haley, was born with a cocaine addiction. When Haley was released from the hospital, the State of Illinois took her into protective custody and placed her with foster parents. The State also filed a lawsuit asking that Haley be made a ward of the court. The State did not at that time ask the trial court to terminate Ralph’s parental rights.

The trial court soon made Haley a ward of the court. A goal was set to return Haley to Ralph in 12 months, if Ralph were able to meet certain conditions. Ralph did not meet two of the conditions: submission to random drug testing and completion of domestic violence and mental health assessments.

So the trial court allowed the State to file a petition to terminate Ralph’s parental rights. Four months later the State did so. But Ralph had not been given personal service of the State’s petition. The trial court proceeded with the termination hearing anyway, even though Ralph was not there and service had been accomplished only by publication. The State asked for, and received, an order of default against Ralph.

Ralph and a new lawyer appeared at the next hearing. Ralph was given leave to file a request to set aside the default. He did so under Illinois Civil Procedure Code section 2-1301. Later, Ralph filed another request to vacate the default, that one under code section 2-1401. The trial court ultimately denied Ralph’s request to vacate the default because he had insufficient evidence of a meritorious defense and of due diligence in pursing a defense. Ralph’s parental rights vis-à-vis Haley were terminated.

Ralph appealed, and the case worked its way to the Illinois Supreme Court. The supreme court ruled that 2-1301was the proper rule to use to vacate the default against Ralph, and that 2-1301 did not require a showing of a meritorious defense or of due diligence. So it was reversible error to require Ralph to show those conditions.

The Illinois Supreme Court explained the difference between an attempt to vacate an order of default under 2-1301 and a default judgment under 2-1401. Here is how the supreme court explained it:

The substantive standards applicable to these two statutes are different. Where a litigant seeks to set aside a default under section 2–1301(e), which governs before final judgment has been entered or within 30 days thereafter, the litigant need not necessarily show the existence of a meritorious defense and a reasonable excuse for not having timely asserted such defense … Rather, the overriding consideration is simply whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits …


By contrast, where a litigant seeks relief from a final order or judgment more than 30 days after its entry pursuant to section 2–1401(a), the burden he or she faces is substantially greater. A party seeking to set aside a final order or judgment under section 2–1401(a) is required to show by a preponderance of the evidence not only the existence of a meritorious claim or defense in the original action, but also due diligence in pursuing the claim or defense in the circuit court as well as due diligence in presenting the petition for relief under section 2–1401(a) … The only time a meritorious claim or defense or due diligence need not be established in a proceeding under section 2–1401(a) is when the order or judgment at issue is attacked as void …


When Ralph sought to set aside the finding of default in this case, he initially framed his request as a motion brought pursuant to section 2–1301(e) … He subsequently recast the request in the form of a petition under section 2–1401(a) … in response to the State's contention that Ralph's original motion was untimely and that the circuit court no longer had jurisdiction to consider. The assumption that section 2–1301(e) was no longer available and that section 2–1401(a) was the only procedural mechanism left to Ralph for challenging the entry of default against him subsequently took hold. It was accepted uncritically by both the circuit and appellate courts in this case and served as the predicate for the rulings which followed.


In fact, the State and the lower courts had things reversed. As a matter of law, the only statutory provision which could have been properly invoked by Ralph under the circumstances present here was the one he did invoke in his initial motion, section 2–1301(e). Relief under section 2–1401(a) was premature.


The reason for this is clear, though it went unrecognized in the proceedings below: the circuit court's April 14, 2009, ruling that Ralph had defaulted on the petition to terminate was not a final judgment or order. To be final, an order or judgment must terminate the litigation between the parties on the merits or dispose of the rights of the parties, either on the entire controversy or a separate part thereof … The April 14 order did not meet this test [because “orders terminating parental righs are nonfinal and interlocutory."]

The lesson for appellate practitioner is: 2-1301s are interlocutory and cannot be appealed immediately; 2-1401 judgments are final and appealable. In this case, the supreme court concluded that Ralph’s 2-1301 request to vacate the order of default should have been allowed. Read the whole case, In re Haley D., 2011 IL 110886, by clicking here.

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April 30, 2012

Emergency Worker’s Late Appeal Against Hospital Dismissed

Edward Dus, an ambulance driver, injured his knee when he was moving a patient at the emergency room at Provena St. Mary’s Hospital. He claimed he was injured by a laundry cart being pushed by a Provena employee. Dus sued Provena. A jury awarded Dus $300,000, which was cut in half because he also was found to be 50 percent at fault for the accident.

Within 30 days, Dus asked the trial court for a judgment notwithstanding the verdict on the question of his contributory negligence. But when his lawyer did not appear for the hearing, the trial court denied Dus’s request. Two days later, Dus asked the trial court to reconsider the denial. The trial court allowed Dus to refile the original request for judgment notwithstanding the verdict. Dus refiled, but three months later the trial court denied Dus’s request.

Dus appealed. Provena asked the appellate court to dismiss the appeal because, the hospital argued, Dus filed the appeal too late, more than 30 days after the first time the trial court denied his original motion for judgment notwithstanding the verdict. Dus argued the time to file was tolled until 30 days after the trial court ruled on his request for reconsideration, which would have made his appeal timely.

The Third District Illinois Appellate Court agreed with Provena. Here is the court’s rationale:

… [I]f Dus wished to appeal the trial court’s judgment, he was required to file a notice of appeal within 30 days of the trial court’s initial ruling on his judgment n.o.v. [notwithstanding the verdict] motion.

* * *

The [trial] court stated from the bench that the motion was “denied” “due to non-appearance of movant [Dus],” and the [trial] court’s written docket entry confirmed that the motion had been “denied.” Moreover, two days after the court denied Dus’s judgment n.o.v. motion, Dus filed a “Motion for Reconsideration of Plaintiff’s Previously Filed Post-Trial Motion, which asked the court to “reconsider the ruling” the trial court had issued regarding his posttrial motion on September 22. By filing this motion, Dus acknowledgeld that the [trial] court had denied his motion on September 22 … [A] motion to reconsider a trial court’s denial of a posttrial motion does not extend the deadline for filing an appeal under [Illinois Supreme Court] Rule 303(a)(2).

The appellate court dismissed Dus’s appeal for lack of jurisdiction. Read the whole opinion, Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 0901064, by clicking here.

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April 20, 2012

Real Estate Broker’s Appeal Dismissed For Lack Of Compliance With Local E-Filing Rules

While their divorce case was pending, Robert and Cindy Andrews signed a listing agreement to sell their house. The real estate broker, VC&M, found a buyer. But the Andrewses rejected the offer, which was for less than their asking price. Instead, Cindy decided to stay in the house, so she agreed to purchase Robert’s half. As part of their marital settlement agreement, Robert transferred his interest to Cindy.

VC&M wanted a commission for introducing the prospective buyer, but the Andrewses refused to pay. So VC&M sued for breach of contract. The Andrewses asked the trial court to dismiss the complaint. VC&M filed an opposition memorandum electronically. Before VC&M’s e-filing, the parties had not stipulated to allow e-filings.

The trial court agreed that VC&M did not state a claim, so the complaint was dismissed. Thirty days later, in another electronic filing, VC&M asked the trial court to reconsider the dismissal. Another month later, VC&M filed a paper copy of its reconsideration request. Another month after that, VC&M e-filed a notice of appeal.

The Andrewses asked the appellate court to dismiss the appeal for lack of jurisdiction. They argued that the court could not consider the appeal because VC&M had not complied with the local appellate rules for e-filing. The Second District Illinois Appellate Court agreed, and dismissed VC&M’s appeal. This is how the appellate court explained it:

The trial court dismissed with prejudice the amended complaint on February 23, 2011. The record shows that plaintiff [VC&M] e-filed a motion to reconsider the dismissal 30 days later on March 25, 2011. However, as the case was not properly designated an e-filing case, the e-filing of the motion to reconsider violated Local Rule 5.03 and was a nullity. Pursuant to [Illinois Supreme Court] Rule 303, the time to file a postjudgment motion or a notice of appeal elapsed on March 25, 2011 … The hard copy of the motion to reconsider did not extend the deadline for filing a notice of appeal. Because the action was not properly designated for e-filing from the beginning, the e-filed postjudgment motion was meaningless and the hard-copy postjudgment motion was filed late.

LocalRule 5.03(d) further dictates that, even in a case properly designated for e-filing, all appellate documents shall be filed in the “conventional manner.” … The conventional manner of filing in the circuit court is in the form of paper documents submitted to the clerk of the court as is done in cases that are not e-filing cases …

Despite Local Rule 5.03’s express prohibition of e-filing appellate documents, plaintiff e-filed the notice of appeal. Plaintiff never filed a paper copy of the notice of appeal. Several months have elapsed since the trial court dismissed the amended complaint and denied the motion to reconsider, the appeal must be dismissed because the e-filed notice of appeal violated Local Rule 5.03 and was also untimely under Rule 303.

This court considered a notice of appeal as an appellate document that has to be filed in the “conventional” manner. A notice of appeal is filed in the trial court. So why not allow it to be filed it electronically? (For that matter, what is the justification for not allowing “post-judgment enforcement proceeding documents and notices” to be e-filed?) The rules should make it easier, and thus less costly to litigants, to file papers with the court. The extra layers of regulation in these local e-filing rules serve just the opposite purpose.

Read the whole opinion, VC&M, Ltd. v. Andrews, 2012 IL App (2d) 110523 (4/16/12), by clicking here.

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April 7, 2012

Appellate Jurisdiction Okay Despite Incomplete Notice Of Appeal

Diane Borchers was the food service director at Mayslake Village, a senior citizen housing facility. Borchers used the company email system to communicate with vendors and other Mayslake employees. While she was on disability leave, two Mayslake employees accessed some of Borchers’s personal emails. The emails were in Borchers’s personal email account, which was available on her company computer at the company’s office.

Borchers sued Mayslake for violation of the federal Electronic Communications Privacy Act and the state commonlaw tort of intrusion upon seclusion. Later she sued the two Mayslake employees who got the emails.

Mayslake asked for summary judgment, which the trial court granted. The trial court ruled that Borchers did not have enough evidence that Mayslake acted intentionally in accessing the private emails to proceed with the lawsuit.

The two Mayslake defendant employees asked for dismissal of the complaint against them, which the trial court granted. The trial court agreed that the statute of limitations expired before Borchers brought the employees into the lawsuit. The summary judgment and the dismissal were included in one court order.

Borchers appealed. But her notice of appeal stated only that “she was appealing from the order entered ‘on November, 17, 2010 granting Defendants’ Motion for Summary Judgment.’” The two Mayslake employees asked the appellate court to dismiss the appeal against them because the order of dismissal was not referenced in the notice of appeal, depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court disagreed with the Mayslake employees, and denied their request to dismiss the appeal. The appellate court concluded that the notice of appeal should be construed liberally, and that it did not prejudice the employees. Here is how the court explained it:

[W]e must begin by considering the notice of appeal as a whole. In addition to identifying the order being appealed from as the order entered “on November 17, 2010 granting Defendants' Motion for Summary Judgment,” the notice of appeal also stated that the appeal was “premised upon manifest errors by the trial court in the rendering of said Order and all underlying orders thereto,” and the relief sought was “that the aforementioned Order be reversed and/or vacated by the Appellate Court, and, if necessary, that this cause be remanded to the trial court with directives consistent with such disposition.” Construing the notice liberally, as we must … we find that this language fairly apprised the defendants that the plaintiff was seeking review (and reversal) of the entire order entered on the specified date. We also note that we must consider whether the defendants would be prejudiced by construing the notice in this manner … Here … the defendants do not assert that they would suffer any prejudice from our consideration of the motion to dismiss … In fact, they did not raise the jurisdictional objection until they filed their responsive brief in the appeal, in which they also argued at length the merits of the dismissal's correctness. We therefore find that the notice of appeal in this case was sufficient to confer jurisdiction over all matters addressed in the trial court's order of November 17, 2010, including its dismissal of Frigo and Maxwell [Mayslake employees] from the case.

In the end, the appellate court reversed Mayslake’s summary judgment and affirmed the employees’ dismissal. Click here for the whole opinion, Borchers v. Franciscan Tertiary Province of the Sacred Heart, 2011 IL App (2d) 101257.

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March 31, 2012

Pending Appeal Of Judgment Not A Bar To Adjudication Of Attorney’s Lien; Insufficient Record Dooms Appeal

Richard Moenning was injured when he got off a passenger railroad car. He sued Union Pacifc Railroad Company, the operator of the train, for negligence and for willful and wanton misconduct. Union Pacific got a directed verdict on the willful and wanton claim. But a jury gave Moenning a favorable verdict on the negligence claim -- $250,000, which was reduced to $125,000 because Moenning was 50 percent at fault for his injury.

Moenning then asked for a new trial and for sanctions against Union Pacific for having denied it was negligent. The trial court denied both requests. Unhappy with the result, Moenning appealed the verdict and the denial of his post-trial requests.

Moenning’s lawyer in the trial court was Norman Lerum. Lerum had served an attorney’s lien for one-third of a settlement or judgment payable to Moenning. While Moenning’s appeal was pending, Lerum petitioned the trial court to adjudicate and enforce his lien.

Moenning objected to the lien. But the trial court granted Lerum’s petition. Moenning asked for reconsideration, but he did not ask for a hearing within the 90-day period required by the local rules. So the trial court denied Moenning’s request.

Moenning then appealed the trial court order that enforced Lerum’s lien. Each of his arguments was rejcted by the First District Illinois Appellate Court.

First, the trial court could adjudicate Lerum’s lien even though Moenning’s appeal from the judgment still was pending. The appellate court found the attorney’s lien was collateral to the judgment, so the trial court did not lose power to consider the lien despite the pending appeal from the judgment. Here’s how the appellate court analyzed the issue:

In this case, plaintiff [Moenning] had filed a notice of appeal from the judgment entered in his personal injury suit and the denial of his posttrial and sanctions motions. In his brief, plaintiff argued error as to the jury’s finding that he was 50% at fault and the directed verdict as to his wilful and wanton claim. The petition to adjudicate the attorney’s lien did not address these issues or challenge the judgment, which was subject to the earlier notice of appeal. The circuit court’s orders granting the petition to adjudicate the attorney’s lien and denying the motion to reconsider did not affect or alter the issues that were then on appeal.

Second, Moenning argued that the trial court did not have subject-matter jurisdiction to enforce Lerum’s lien because it had not been properly perfected. But Moenning did not file a transcript of the hearing in the trial court or a bystander’s report of the proceeding. So the appellate court rejected Moenning’s argument because it was his responsibility to provide a sufficient record on appeal. The appellate court explained:

We do not have a record of the issues that were addressed or the arguments and evidence that were presented or considered by the trial court in granting the petition to adjudicate the lien and in making its finding that the lien was properly perfected. Under these circumstances, and based on the record on appeal, we cannot conclude that the trial court’s December 2, 2009 order [enforcing the lien] was in error.

Read the whole case, Moenning v. Union Pacific Railroad Co., 2012 IL App (1st) 101866, by clicking here.

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March 11, 2012

City’s Appeal Of Nixed Land Deal With Religious School Untimely And Moot

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.

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January 17, 2012

Hospital’s Summary Judgment Denial Considered By Illinois Supreme Court

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

When the case reached the Illinois Supreme Court, Children’s Memorial appealed the trial court’s decision to deny the summary judgment while the first amended complaint was pending. But the Clarks argued that the denial of a summary judgment request, generally neither final nor appealable, was not properly before the court. The Illinois Supreme Court disagreed because (1) the dismissal of the third amended complaint was a final order, and (2) Children’s had preserved the issue at each step of the litigation. Here’s how the supreme court explained it:

Ordinarily, the denial of summary judgment is not appealable, because such an order is interlocutory in nature. However, we have recognized an exception to this rule in certain circumstances, as when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied. Because the order disposes of all issues in the case, review of the denial of summary judgment may be had … Our appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted …


Here, the circuit court's order dismissing plaintiffs' third amended complaint with prejudice was final and appealable. Because the circuit court's order disposed of all issues in the case, and because defendants have properly preserved the issue at each stage of this litigation, we reject plaintiffs' argument that defendants' statute of limitations defense is not properly before us and, in the interest of judicial economy, we review the issue. For the reasons that follow, we hold that the circuit court correctly found that there existed a question of material fact that precluded entry of summary judgment.

The Clarks lost the battle over whether the trial court’s summary judgment denial could be heard in the supreme court. But they won on the substance; the court ruled it was correct to deny the hospital summary judgment. The Clarks also prevailed on the other substantive questions: they were allowed to pursue claims for negligent infliction of emotional distress, and they were allowed to recover expenses for Timothy’s postmajority care.

Read the whole opinion, Clark v. Children’s Memorial Hospital, 2011 IL 10865, by clicking here.

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November 10, 2011

Texas Painting Buyers Allowed To Argue Lack Of Personal Jurisdiction In Illinois Court

Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.

The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.

The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.

Patricia appealed. She argued that Anna’s affidavit should not be considered by the appellate court because the affidavit could have been presented in the Roughtons’s original request for dismissal.

But the Second District Illinois Appellate Court disagreed. The appellate court ruled that Patricia forfeited the argument because she raised it only in her reply brief, not her original appellate brief. Plus, Patricia did not submit a transcript of the reconsideration hearing into the appellate record, so the appellate court assumed there was sufficient basis to accept Anna’s affidavit. This is how the appellate court explained it:

In her reply brief, Patricia contends for the first time that we should not consider Anna's affidavit, because there was no showing that it could not have been provided as an exhibit with the Roughtons' original motion. However, points not argued in the appellant's brief are forfeited. … Here, without a transcript of the hearing on the motion to reconsider or a substitute, we assume that Patricia did not object, that the affidavit was accepted at the hearing as newly discovered evidence, or that the trial court otherwise had ample grounds to support its determination about the affidavit. This is particularly appropriate when the motion for reconsideration was based in part on the court's indications that it would be open to learning of additional facts that arose, and when new case law arose during the pendency of the proceedings. Accordingly, we consider Anna's affidavit.

In the end, the appellate court ruled the Roughtons did not have the minimum contacts required for an Illinois court to exercise personal jurisdiction. Read the whole case, Wiggen v. Wiggen, 2011 IL App (2d) 10098, by clicking here.

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October 13, 2011

Village Has Jurisdiction To Appeal Abandonment Of Eminent Domain Case

The Village of Bellwood, Illinois thought it wanted seven private properties for its own. Bellwood condemned the properties and brought an eminent domain case against the property owners. All of the parties agreed to an amount the property owners would be paid by Bellwood for the properties. The trial court ordered (1) Bellwood would take title upon payment to the property owners, (2) each party waived their right to appeal, and (3) the settlement order was final.

Bellwood reneged on the deal before it paid the property owners. Bellwood claimed the eminent domain statute allowed it to back out of the agreement and to abandon its eminent domain case any time before it took ownership of properties. But the trial court denied Bellwood’s request to abandon the case because “you can't just go out and make agreements and then all of a sudden back out on them.”

Bellwood appealed, but the property owners contested appellate jurisdiction. They argued (1) the appeal waiver in the trial court’s order prevented Bellwood from appealing, and (2) the order denying Bellwood’s request to abandon the lawsuit was not final and appealable.

The First District Illinois Appellate Court disagreed with the property owners and ruled there was appellate jurisdiction. The appeal waiver in the trial court’s order did not preclude Bellwood’s appeal because Bellwood contested the order disallowing its abandonment of the case, not the actual settlement order. And the order was final and appealable, the appellate court ruled, because it disposed of the issues between the parties. This is how the appellate court explained it:

Here, we find that the order denying Bellwood's motion to abandon is a final and appealable order because it disposed of the rights of the parties and terminated the litigation. The circuit court's order denied Bellwood's motion to abandon the eminent domain proceedings and set the parties' rights and obligations in accordance with the agreed orders. All that was left for the court to do was to execute the judgment on the agreed orders.

Further, we cannot construe the parties' waiver of the right to appeal in the agreed orders as a waiver of Bellwood's right to appeal from the denial of its motion to abandon. Bellwood is not attacking or contesting the agreed orders; rather, Bellwood is contesting only the denial of its motion to abandon, an order separate and distinct from the agreed orders. Therefore, the parties' waiver of the right to appeal as provided for in the agreed orders does not affect Bellwood's right to appeal the denial of its motion to abandon.

In the end, the appellate court ruled that Bellwood could abandon the eminent domain case. Read the whole case, Village of Bellwood v. American National Bank & Trust Co. of Chicago, 2011 IL App (1st) 09311, by clicking here.

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September 23, 2011

Insured’s Second Appeal Dismissed For Lack Of Jurisdiction

This case involved John Crane, Inc.’s claim for insurance coverage, and the insurers’ counterclaim against Crane. The insurers persuaded the trial court to dismiss Crane’s complaint. Two days later, Crane appealed the dismissal.

Then CNA, one of the insurers, asked the trial court to vacate or modify the dismissal order and for leave to amend its counterclaim against Crane. The trial court ruled (1) against CNA and would not allow the judgment to be vacated or modified, (2) for CNA and allowed amendment of the counterclaim against Crane.

Two weeks later, the trial court entered a final judgment on all of the remaining claims except CNA’s counterclaim.

About two weeks after that, the appellate court dismissed Crane’s appeal for want of prosecution because the company did not file the record on appeal within the time allowed by the rules. Rather than file a petition for rehearing of the dismissal of the appeal, Crane filed a whole new appeal. Crane’s second appeal asked for the same relief as the first one.

Allianz Underwriters, another of Crane’s insurers, asked the appellate court to dismiss the second appeal. Allianz argued the appellate court had jurisdiction when it dismissed the first appeal; because Crane did not ask for a rehearing, that dismissal ended the proceeding. Crane argued the second appeal was proper because CNA’s motion to modify the judgment meant the “first appeal never became effective,” and there never was appellate jurisdiction over that appeal.

The First District Illinois Appellate Court agreed with Allianz. Crane’s first appeal became effective, the appellate court said, after the trial court ruled against CNA’s request to modify the judgment. Then the dismissal of the first appeal rendered the appellate court without jurisdiction to consider Crane’s second appeal. Here is how the appellate court explained the ruling:

John Crane’s first appeal was the effective appeal from both the November 13, 2009 [final judgment], and the March 10, 2009 [dismissal of Crane’s complaint] … and this court had jurisdiction when we dismissed its [Crane’s] first appeal … for want of prosecution … John Crane did not file a petition for rehearing within 21 days. When an appeal of a final order is dismissed for want to prosecution and no petition for rehearing is filed within 21 days, the dismissal becomes final and the appellate court loses jurisdiction to consider additional arguments stemming from the initial order.

The whole opinion, John Crane, Inc. v. Admiral Insurance, 2011 IL App (1st) 093240 (August 30, 2011), is available by clicking here.

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September 15, 2011

Naming Wrong Party In Notice Of Appeal Does Not Defeat Appeal By Estate’s Executor And Lawyer

David Hammer was executor of Ronald Weeks’s estate. Hammer hired Thomas Brucker as an attorney to assist in the administration of the estate. Hammer ($120,000) and Brucker ($170,000) paid themselves based on a percentage of the estate’s value.

Weeks left one-fourth of his estate to a New York-based charity. The charity disputed whether Hammer and Brucker could properly take a percentage of the estate for their fees. The Illinois Attorney General intervened in the case, and disputed Hammer’s and Brucker’s fees. The trial court agreed with the Attorney General, drastically lowered the fees, and ordered Hammer and Brucker to return the excess to the estate.

Hammer and Brucker appealed. But their notice of appeal stated that the Estate of Weeks was the party appealing, not Hammer and not Brucker. The Attorney General argued that the appellate court did not have jurisdiction to consider the appeal because the wrong party was identified as the appellant. The Fourth District Illinois Appellate Court ruled that the mistake on the notice of appeal was technical, and did not defeat appellate jurisdiction. Here’s how the appellate court explained the ruling.

Jurisdiction in this court is conferred by a notice of appeal … Illinois Supreme Court Rule 303 … sets forth specific formatting and filing requirements of the notice of appeal. Among other things, a notice of appeal must name the parties and designate them "in the same manner as in the circuit court and add[ ] the further designation 'appellant' or 'appellee' " … and must "contain the signature and address of each appellant or appellant's attorney" … However, "Illinois courts have repeatedly refused to dismiss an appeal because of a technical deficiency in the notice of appeal so long as the notice fulfills its basic purpose of informing the victorious party that the loser desires a review of the matter by a higher court." Petitioners' failure to name themselves as appellants in the notice of appeal, while technically deficient, did not deprive intervenor of the notice to which she was entitled. Intervenor [Attorney General] does not allege she was prejudiced in any way by petitioners' naming the estate rather than themselves as appellants.

Hammer and Brucker won the jurisdiction battle, but lost the war. The appellate court affirmed the ruling requiring Hammer and Brucker to give back the excessive part of their fees. Read the whole opinion, In re Estate of Weeks, No. 4-10-0338 (5/20/11), by clicking here.

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August 26, 2011

Denial Of Medical Clinic’s Request To Talk To Non-Defendant Employees A Proper Interlocutory Appeal

Leon Aylward claimed his doctor, Michael Settecase, and the medical clinic that employed him, failed to timely diagnose Aylward’s lung cancer. After Aylward sued them for malpractice, the clinic asked the trial court for permission to talk to other clinic employees who had been involved with Aylward’s treatment, but had not been sued. The clinic argued it should be allowed to have private conversations with the employees because Aylward could sue them later, and as defendants the clinic’s lawyers could talk to them privately.

The trial court denied the request, but certified the question to allow an immediate appeal. The appellate court accepted the immediate appeal, but Aylward asked for it to be dismissed. He argued that it was not a proper interlocutory appeal because it called for an advisory opinion to a hypothetical question – i.e., it was hypothetical that the employees would be sued.

The First District Illinois Appellate Court disagreed because, “Answering this question will have an immediate effect upon the discovery process by determining whether MPG [clinic] is permitted to represent the MPG employees, and thus, its resolution may materially advance the ultimate termination of the litigation.”

In the end, the appellate court ruled the clinic was not permitted to have private conversations with the employees. Read the whole opinion, Aylward v. Settecase, No. 1-10-1939 (4/29/11), by clicking here.

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August 24, 2011

Interest On Taxpayers’ Property Valuation Judgment Appealable After Earlier-Filed Notice Of Appeal

Three corporate taxpayers disputed the amount of property taxes they owed Cook County, Illinois. So they sued the county collector for refunds plus interest. The taxpayers settled the property valuation part of their disputes, but left the interest issues (power to award, rate, and period the interest accumulated) for the trial court to decide. The trial court awarded the taxpayers interest at a favorable rate and period.

The Collector appealed before the trial court decided the interest rate to be applied to two of the property valuation judgments. The first question was whether the trial court had jurisdiction to award interest even though the Collector already appealed.

The general rule is that a trial court loses jurisdiction over a case as soon as a notice of appeal is filed. The chief exception to the rule is that a trial court still can issue orders that are collateral to the judgment. In this case, the Illinois Supreme Court ruled that the interest awards were collateral to the valuation judgments, so the trial court kept jurisdiction to award interest. Here’s how the supreme court explained it:

This award of judgment interest was not part of the judgment itself, but incidental thereto, and imposed on a specific sum contained in the underlying orders with a rate of interest set forth in the Code of Civil Procedure. Interest on the fixed judgment amounts simply allowed for the preservation of the economic value of the awards while the matter was stayed pending appeal. The judgment interest resulted from the stay requested by the collector, and like the stay order, it did not affect or alter the issue from which the collector filed her notices of appeal on August 13, 2007. Accordingly, we find the circuit court retained jurisdiction to enter the judgment interest awards on behalf of SBC and Newcastle [two of the taxpayers] after the notices of appeal were filed.

Having filed her notice of appeal before two of the interest awards were made, there also was a question of whether the appellate court had jurisdiction to consider those awards. The Collector had not filed a second notice of appeal nor amended her existing notice to include those awards. The Collector argued there still was appellate jurisdiction because she identified the questions in her docketing statement, the issues were fully briefed, and the taxpayers were not prejudiced.

No matter. The Illinois Supreme Court ruled there was no appellate jurisdiction for the later awards because the notice of appeal referred only to the earlier award, “an entirely different matter” than the interest awards that were made later.

Nor did it did matter, the supreme court ruled, that the questions were identified in the Collector’s docketing statement because “a docketing statement does not confer jurisdiction on the appellate court …”

The supreme court also addressed whether the Collector forfeited her right to dispute the earlier interest award because she had not objected to the award in the trial court. That “would generally result in forfeiture of the issue on appeal.” But the supreme court was most interested in resolving a conflict in the appellate courts over the proper measure of interest. So the court invoked its power to “overlook any forfeiture in order to provide a unified body of case law.”

Read the whole case, General Motors v. Pappas, No. 108893 (5/19/11), by clicking here.

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August 11, 2011

For-Cause Substitution Request Appealable Despite Omission From Notice Of Appeal

John O’Brien sued his wife for divorce. The case was transferred to a second trial judge. About one year after that transfer, John claimed the trial judge was biased. So John asked for a substitution of judge. The request for another judge was denied.

John appealed from the trial court’s maintenance award and the denial of his request for substitution of judge. But his notice of appeal did not state that he was appealing from the denial of his substitution request. Nonetheless, the Second District Illinois Appellate Court considered the question.

The case went to the Illinois Supreme Court on a certificate of importance. The supreme court first considered whether the Court of Appeals had jurisdiction to consider the substitution question. John’s wife argued there was no appellate jurisdiction because John’s notice of appeal “did not specify or indicate that John was seeking to appeal from the order denying the substitution …”

But the Illinois Supreme Court agreed with the court of appeals, and ruled there was appellate jurisdiction because, “The denial of John's petition to substitute was a step in the procedural progression leading to the final judgment specified in John's notice of appeal.”

Unfortunately, the supreme court opinion does not define its view of “step in the procedural progression.” We reported on this case when it was decided by the Second District Illinois Appellate Court. You can read that posting by clicking here.

In the end, the Illinois Supreme Court reiterated the Illinois rule that a for-cause substitution of judge “may be granted only where the party can establish actual prejudice.” The court also added a constitutional dimension to the substitution analysis, stating that “a judge reviewing a for-cause challenge against another judge should assess the constitutional due process implications raised whenever substitution is sought and guard against the ‘risk of actual bias’ …”

Read the whole case, IRMO O’Brien, No. 109039 (8/4/11), by clicking here.

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July 30, 2011

Order Dismissing Post-Dissolution Custody Petition Immediately Appealable

Michael and Rose A’Hearn divorced in 2006. But their lawsuit did not end there. About two years later, Michael filed for two rules to show cause, complaining that Rose was interfering with Michael’s visitation and that she was engaging in immoral behavior. After mediation, Michael and Rose agreed on communication with and visitation of the child, but not on custody.

A month later, Michael filed a petition to modify custody. But the trial court later barred Michael’s witnesses because he had not disclosed them timely. Without witnesses, Michael’s custody petition was dismissed. Rose then filed a petition to extend maintenance and family support. Rose’s petitions were pending when Michael appealed the dismissal of his custody petition.

The first question was whether the appellate court had jurisdiction to consider Michael’s appeal, even though Rose’s petitions still were pending. The Third District Illinois Appellate Court ruled that it had jurisdiction because Michael’s custody petition was a new action, making its dismissal final and appealable.

The appellate court was concerned that the best interests of the child would not be served by delaying the custody appeal pending resolution of Rose’s other disputes. Here is how the court viewed the problem:

Postdissolution proceedings may well continue a decade or more after the divorce decree is entered … Overall, it does not serve the interests of justice where one party can defeat appellate jurisdiction, especially on issues of child custody, simply by filing a separate, completely unrelated petition. The case sub judice is a perfect example. Rose, having won at the trial level on a custody issue, could simply defeat appellate jurisdiction by filing her petition to extend maintenance which, on its face, has nothing to do with a modification of child custody.
This case continues the debate over whether individual post-dissolution petitions are appealable when they are decided, or whether all pending post-dissolution matters must be decided before any of them are appealable. Read the entire case, including the court’s analysis of the split among Illinois appellate districts, IRMO A’Hearn, No. 3-20-0831 (3/21/11), by clicking here.

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July 24, 2011

Order Denying Homicide Witnesses’ Request To Postpone Grand Jury Subpoena Not Final And Appealable

Sheila and Marissa Brown were witnesses to a homicide. In mid-December 2009 they were subpoenaed to testify to a grand jury just six days later. But the Browns said they did not have time to effectively communicate with a lawyer before the grand jury proceeding, and that they had previously made plans to travel out of town. So two days before they were scheduled to testify they asked the trial court to postpone their appearances until after the new year.

The trial court denied the Browns’ request because they did not present “an urgent matter.” The Browns appealed the next day. When they did not appear for their testimony to the grand jury, the State filed a petition to hold the Browns in contempt. The Browns asked the trial court to stay State’s contempt request while the appeal was pending. The trial court refused.

The Second District Illinois Appellate Court dismissed the Browns’ appeal for lack of jurisdiction. The court ruled that “An order denying a motion to continue is not a final and appealable order.” The existence of the contempt proceedings did not matter, the appellate court ruled, because the Browns appealed before an appealable contempt order was entered.

Read the whole case, In re John Doe Investigation, 2011 IL App (2d) 091355 (7/11/11), by clicking here.

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May 29, 2011

Condo Owner’s Interlocutory Appeal Dismissed For Incomplete Rule 304(a) Finding

Marc and Mary Simon bought a condominium from Palmolive Tower Condominium before Palmolive finished constructing the building. The Simons were unhappy with Palmolive’s performance, and refused to release the money being held in escrow for Palmolive. So Palmolive sued the Simons, and the Simons counterclaimed for breach of contract and fraud.

Palmolive asked the trial court for judgment on the pleadings on its own multi-count complaint, and to dismiss the Simons’s counterclaim. The trial court dismissed the counterclaims, and stated its order was “a final and appealable order there being no just reason to delay enforcement or appeal.” Later the trial court gave judgment on the pleadings in favor of Palmolive on the first of several counts of its complaint. The remaining counts of Palmolive’s complaint were left standing. The court’s judgment said it was “final and appealable.”

The Simons appealed from both orders. The parties agreed the appellate court had jurisdiction over the order giving Palmolive judgment on the pleadings. But the court thought otherwise and dismissed that part of the Simons’s appeal. Here’s why.

Here, the defendants seek to appeal an order that resolved only one count of the plaintiff’s multi-count complaint and therefore unquestionably resolved fewer than all of the claims between the parties. Accordingly, under [Illinois Supreme Court] Rule 304(a) the order was not appealable unless it was accompanied by the circuit court’s express written finding that there was "no just reason for delaying either enforcement or appeal or both." For their stance that the circuit court’s April 10 order [giving Palmolive judgment on the pleadings on one of its claims] is appealable, the parties cite the court’s statement that the order was "final and appealable." That order, however, contains no reference either to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal.

The rationale underlying Rule 304(a) is that it allows appeals to be taken before the final disposition of a case where the circuit court considers an immediate appeal to be appropriate … Thus, Rule 304(a) allows a circuit court to limit piecemeal appeals yet still allow early appeals when, in its discretion, doing so "would have the effect of expediting the resolution of the controversy, would be fair to the parties, and would conserve judicial resources." … A circuit court’s declaration that an order is "final and appealable," without reference to the justness of delay, or even reference to immediate appealability, evinces no application of the discretion Rule 304(a) contemplates … Instead, absent some other indication from the record that the court intended to invoke Rule 304(a) … a circuit court’s declaration that an order is "final and appealable" amounts to nothing more than a non-binding interpretation.

The First District Illinois Appellate Court acknowledged that a Rule 304(a) finding does not have to exactly mirror the rule, but the circumstances do have to reflect the desirability of an interlocutory appeal. The lesson is: To assure your interlocutory order is appealable, and to avoid being a test case, make sure the Rule 304(a) finding states there is no just reason for delaying enforcement or appeal” of the order. Read the whole case, Palmolive Tower Condominiums v. Simon, Nos. 1-10-0427, 1348 (5/16/11).

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April 16, 2011

Trial Court’s Late Order Extending Time For Posttrial Motion Deprives Appellate Jurisdiction

David Wilson was in custody on a warrant for two felonies. A police detective shot Wilson while he was in an interview room at the Chicago police headquarters. Wilson sued the city and the detective. After trial, a jury ruled in favor of the city and the detective.

Within 30 days of the judgment, under section 2-1202 of the Illinois civil procedure code, Wilson asked for and received and extension of time to file a posttrial motion. Before the new deadline arrived, Wilson asked for another extension. The trial court allowed a second extension, but did not rule until after the first extension deadline passed. Wilson asked for another extension, which the trial court allowed. Then Wilson made his request for a new trial, but the court denied it. So Wilson appealed.

But the First District Illinois Appellate Court dismissed the appeal because, the court said, it did not have jurisdiction. The trial court lost the power to give the second extension when the first extended deadline passed. So the second extension, coming just a day after the first extension lapsed, was null and void, as were the third extension and Wilson’s notice of appeal. This is how the appellate court explained it:

“… [A]fter the 30-day period has expired, or the extended period of time has expired, without the entry of a new order setting a new deadline, the trial court loses jurisdiction of the case.” … And, once the trial court loses jurisdiction, any subsequent orders entered, including a notice of appeal which would vest jurisdiction with our [appellate] court, are not viable.

The lesson is that requesting an extension of time to make a posttrial motion within the 30-days after the judgment, or within a court-ordered deadline, will not alone be sufficient. For trial court jurisdiction to continue, the court also must order a new deadline before the prior deadline expires. Otherwise the time to file a notice of appeal, and thus invoke the jurisdiction of the appellate court, runs from the expiration of last legitimate extension.

Read the whole case, Manning v. City of Chicago, No. 1-09-1561 (2/25/11), by clicking here.

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April 2, 2011

Illinois Supreme Court Dismisses And Remands Medical Malpractice Appeal Taken Under Voided Statute

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

The Illinois Supreme Court took Price’s appeal. While the case was pending, the supreme court ruled that the statute containing the 90-day restriction was unconstitutional. The ruling of unconstitutionality had nothing to do with 90-day requirement.

When an amended statute is declared unconstitutional, “The effect … is to revert to the statute as it existed before the amendment.” In this case, because the pertinent statute had been voided as unconstitutional, the Illinois Supreme Court ruled that “the reasons upon which this court relied in granting leave to appeal no longer exist.” So the supreme court “decline[d] to address the merits of the substantive issue raised … and dismiss[ed] this appeal.”

The supreme court sent the case back to the trial court to “determine whether plaintiff’s [Cookson] pleadings meet the current requirements of [the statute].” Read the whole case, Cookson v. Price, No. 109321 (12/23/10), by clicking here.

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March 19, 2011

Injured Officer’s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

Pritza then appealed from the dismissal of his original declaratory judgment case and from the summary judgment in favor of IMLRMA on the amended complaint. IMLRMA argued that the appellate court did not have jurisdiction to consider the dismissal of Pritza’s first complaint for uninsured coverage. The First District Illinois Appellate Court agreed for two reasons:

1. Pritza waived the uninsured motorist claim by not realleging it in his amended complaint. “Allegations in a former complaint, not incorporated in the final amended complaint, are deemed waived. Thus, when a party files such an amended complaint, he thereby waives any objection to the trial court's ruling on the former complaint.”

2. Pritza’s appeal of the uninsured motorist claim was too late because a denial of a declaratory judgment must be filed within 30 days.
“… [H]ere the court's judgment order of October 2, 2008, fixed absolutely the rights of plaintiff and defendants on plaintiff's claim for declaratory judgment for uninsured motorist coverage. Consequently, if plaintiff wished to appeal that judgment, he was required to do so within 30 days … The fact that plaintiff was allowed leave and amended his complaint, and that there was further briefing on another claim for declaratory judgment based on underinsured motorist coverage, avails plaintiff nothing.”

In the end, the appellate court agreed that IMLRMA did not have to provide underinsured coverage. The lesson here for practitioners is: Unless you intend to waive it, your amended complaint must reallege the dismissed cause action, or at least refer to it. And you cannot wait until the end of your case to appeal from a dismissal of a declaratory judgment action.

Read the whole case, Pritza v. Village of Lansing, 1-10-0100 (11/24/10), by clicking here.

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February 24, 2011

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

David and Rojean Molloy were battling for custody of their two children.
The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David’s lawyer from attending the social worker’s evaluation session with David. The trial court agreed and barred David’s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

But the public guardian asked the appellate court to dismiss David’s appeal. The guardian argued there was no Rule 307 injunction because the order “merely set conditions for the petitioner’s [David] … evaluation.”

The First District Illinois Appellate Court agreed with the guardian and dismissed David’s appeal for lack of appellate jurisdiction. The court ruled that the order preventing David’s lawyer from attending the evaluation was ministerial, and therefore not an injunction that can be appealed before the end of the case. Here is the appellate court’s thinking:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not do a particular thing.” … Court orders that are ministerial or administrative cannot be the subject of an interlocutory appeal … An order is deemed ministerial or administrative if it regulates only procedural details of the litigation before the court … Such an order “do[es] not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief."

Here … we find the aim of the circuit [trial] court’s order to be ministerial; the order places a “condition” of the custody evaluation of the petitioner [David] as provided under section 604(b) of the [Marriage Dissolution] Act … [T]he order is not the equivalent of a preliminary injunction whose function is “to preserve the status quo resolution of the merits of the case."

Read the whole opinion, In re Marriage of Molloy, 1-10-1224 (2/10/11), by clicking here.

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February 14, 2011

Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

The trial court granted David’s request to disqualify Komie. Komie asked the appellate court for leave to appeal on behalf of Markrack, as next friend of I.M. David asked the appellate court to dismiss the appeal for lack of jurisdiction. The Second District Illinois Appellate Court allowed Markrack to appeal, and denied David’s request to dismiss.

In his brief to the appellate court, David again asked for dismissal. David argued that the Illinois Supreme Court Rules only allowed a “party” to request leave to appeal. Because I.M. was not a “party” to Elizabeth’s petition for a protective order, David asserted, she could not appeal the trial court’s ruling that disqualified Komie.

The court of appeals disagreed again, and ruled that it had jurisdiction to consider I.M.’s appeal. “Party,” under the Illinois Supreme Court Rules, was not limited to the petitioner (Elizabeth) or the respondent (David). This is how the appellate court explained it:

Respondent contends … that I.M. is not a "party" within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so restrictively. The rule does not designate that a "party" must be a plaintiff, defendant, or third party to the action in order to petition for leave to appeal. Rather, the rule simply provides that a "party" may petition for leave to appeal from an order granting a motion to disqualify "the attorney for any party." … I.M., as a protected person under an order of protection, is a "party" to that proceeding. I.M. is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction under [Illinois Supreme Court] Rule 306(a)(7).

In the end, the appellate court reversed Komie’s disqualification. Read the whole case, Macknin v. Macknin, No. 2-10-0221 (9/23/10), by clicking here.

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January 27, 2011

Victory On Petition Before Labor Board Dooms Union’s Appeal Of Board’s Rationale

A police labor union wanted to be the exclusive representative of “all aviation security sergeants employed by the City of Chicago.” Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union’s petition. But the union was not completely satisfied because the Board ruled that the sergeants were not “peace officers,” a legal designation under the Illinois Labor Relations Act that affects the sergeants’ bargaining status.

Both Chicago and the union appealed ― Chicago to get the “exclusive representation” ruling reversed; the union to get the sergeants-are-not-peace-officers ruling reversed.

The First District Illinois Appellate Court affirmed the “exclusive representation” ruling, but dismissed the union’s “peace officer” appeal. The appellate court ruled that the union could not appeal because it won the right to be the exclusive representative, which is what it asked for in its petition. The union’s disagreement with some of the Board’s peripheral rulings was not a basis to appeal. Here is how the appellate court explained it:

Only “any person aggrieved” by a final order of the Board may petition for review of a Board decision … A party who has obtained all that has been asked for in the underlying proceeding has no standing to appeal … Although ICOP [union] may not agree with the Board’s “peace officer” finding, ICOP did receive the relief it requested from the Bard: certification of a stand-alone bargaining unit for the sergeants. We have affirmed this decision. Accordingly, ICOP’s “win” before the Board stands. Because ICOP received the relief it requested, its appeal must be dismissed … We note that, although we may generally affirm on any basis in the record, a defendant need not file a cross-appeal to urge an alternative reason for affirming … And, because we do affirm the Board, we need not review the alternate basis for relief ICOP resented to the Board.

The lesson is: If the issue is important enough to appeal, make sure to include it in your request for relief in the lower court or agency. Read the whole opinion, Illinois Council of Police v. Illinois Labor Relations Board, Nos. 1-09-1859, 1860 (9/30/10), by clicking here.

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December 19, 2010

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

So the initial question was whether the appellate court could or should consider that basic question, which neither insurer briefed or argued. Relying on the general powers the appellate court has under Illinois Supreme Court Rule 366, the appellate court ruled that it could consider the question to reach a fair result. This is how the court explained it:

Although the parties did not address this threshold issue of coverage in the trial court and both parties proceed before us under the assumption that the two policies provided overlapping insurance coverage, it is within our discretion to address this possibly dispositive issue …

While generally issues not raised at the circuit court level are considered waived, "a reviewing court does not lack authority to address unbriefed issues and may do so * * * when a clear and obvious error exists in the trial court proceedings."… " '[U]nder [Illinois Supreme Court] Rule 366 … a reviewing court may, in the exercise of its responsibility for a just result, ignore consideration of waiver and decide a case on grounds not properly raised or not raised at all by the parties.' " … In choosing to address an unbriefed issue, we recognize that as a reviewing court, we must refrain from doing so if the effect would be to transform us from jurist to advocate … That is not our intention here.

In the end, the appellate court ruled that Mid-Century’s policy did not insure the Chevy, so Founder’s summary judgment was reversed, and Mid-Century did not owe anything toward Berry’s settlement with Villareal. Read the whole opinion, Mid-Century Insurance v. Founders Insurance, No. 1-09-1858 (9/24/10), by clicking here.

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November 28, 2010

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov’s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein’s libel case. Among other things, Krislov asserted immunity from Stein’s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov’s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov’s appeal. The appellate court stated (1) the denial of Krislov’s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

This is how the appellate court explained it:

Defendants {Krislov] contend this court has jurisdiction to review this appeal as an interlocutory appeal based on Rule 307(a)(1) and the language of section 20(a) of the Act.

When determining whether a trial court’s action constitutes an appealable injunctive order, the substance of the action, not the form, is relevant.

We recognize that the meaning of “injunction” should be construed broadly … however, the motion to dismiss in this case does not constitute an injunction. Defendants were not required to do anything or forced to refrain from anything as a result of the trial court’s order denying their motion to dismiss. Defendants were not restrained in their speech where the trial court issued no directive regarding defendants’ ability to speak about the case. In its order, the trial court simply concluded that the Act did not apply to the case at bar because of the newly created immunity could not be applied retroactively. Defendants retain the ability to defend Krislov’s actions in the underlying lawsuit where they can assert the same arguments in defense of Krislov’s letter despite the lack of immunity from the Act.”


The appellate court also rejected Krislov’s argument that the Act itself provided appellate jurisdiction.

We previously determined that the denial of the motion to dismiss in this case was not a final judgment and not injunctive in nature. Though we recognize that statutes are presumed constitutional, if the legislature was attempting to provide appellate jurisdiction from a nonfinal order not falling within the dictates of Rule 307, a constitutional conflict would exist … “If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal … Thus, a statute that claims to give the 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 of the article II, section 1, of the constitution … Appellate jurisdiction is, therefore, not conferred by section 20(a) of the Act.”

Read the whole case, Stein v. Krislov, 1-09-3478 (11/8/10), by clicking here.

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November 23, 2010

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer’s Sanctions Request

Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident. The Yunkers felt they were entitled to coverage under the insurance policy, so they sued Pekin.

The trial court agreed with Pekin, and gave the insurer summary judgment, Four days later, the Yunkers appealed the trial court’s ruling.

About two and one-half weeks after that, Pekin filed a request for sanctions against the Yunkers in the trial court. The trial court denied Pekin’s sanctions request a few weeks later. Pekin appealed that ruling. Pekin also asked the appellate court to dismiss the Yunker’s appeal. Pekin argued that its request for sanctions rendered the Yunker’s appeal of the summary judgment premature, resulting in no jurisdiction for the appellate court over the Yunker’s appeal.

The Third District Illinois Appellate Court rejected Pekin’s argument and ruled that it had jurisdiction to hear the Yunker’s appeal. Under Illinois Supreme Court Rule 303, an appeal that becomes premature because of a post-judgment motion filed in the trial court becomes effective again after the trial court rules on the post-judgment motion. Here’s how the appellate court explained it:

Under the circumstances at bar, although the Yunkers' May 22, 2009, notice of appeal was premature due to Pekin's June 9, 2007, motion for sanctions, pursuant to [Illinois Supreme Court] Rule 303(a)(2), the notice is deemed effective on June 17, 2009, when the trial court denied the motion. Because the Yunkers were not appealing the results of the June 17 [sanctions] ruling, they were not required to file an amended notice of appeal. Because the Yunkers' notice of appeal was timely, we hold that this court has jurisdiction.

In the end, the appellate court ruled that Pekin was not responsible for Maggie’s medical expenses. Read the whole opinion, Yunker v. Farmers Automobile Management, Nos. 3-09-0417, 3-09-0521 (9/9/10), by clicking here.

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October 28, 2010

State May Appeal No-Probable-Cause Order In Sexually Violent Person Commitment Action

Tommy Hardin had been convicted of aggravated sexual crimes three times. Just before his mandatory supervised release period, the State petitioned for Hardin’s civil commitment under the Illinois Sexually Violent Persons Commitment Act.

After an evidentiary hearing, the trial court ruled there was no probable cause to believe Hardin was a sexually violent person who was likely to re- offend. So a trial on the State’s commitment petition was not held, and the court ordered Hardin to be released and placed on supervision.

The State appealed the finding of no probable cause. Hardin asked the appellate court to dismiss the appeal for lack of jurisdiction. He argued alternative reasons: (1) the Sexually Violent Persons Commitment Act does not authorize the State to appeal a finding of no probable cause; (2) the order in this case was not final and appealable. The Second District Illinois Appellate Court denied Hardin’s request to dismiss, and reversed the trial court’s finding of no probable cause.

Hardin then appealed to the Illinois Supreme Court, which affirmed the appellate court’s decision. The supreme court agreed there was jurisdiction to consider the State’s appeal. The court rejected Hardin’s argument that the no-probable-cause finding could not be appealed because the Act did not specifically authorize it.

[T]he primary error in respondent’s [Hardin’s] argument is his reliance on the statute’s purported silence. His argument overlooks express statutory language affirmatively stating that “[t]he proceedings under this Act shall be civil in nature … Thus, the Act is not silent about the applicable rules, as respondent claims, but rather directs us to consider the applicable civil provisions.

The Illinois Supreme Court also rejected Hardin’s argument that the no-probable-cause finding was not appealable because it was not a final order. “First, his [Hardin’s] analogy to adverse rulings in criminal probable cause hearings fails because it ignores the statute’s plain directive to apply civil law …” Second, the court ruled, the no-probable-cause finding was final because “the State’s petition [for commitment] had to be dismissed … effectively terminating the litigation and defining both parties’ rights, leaving only enforcement of the judgment.”

In the end, a unanimous supreme court ruled there was sufficient evidence that probable cause existed, so the case was sent back to the trial court for trial on the State’s commitment petition. Read the whole opinion, In re Detention of Hardin, No. 108615 (6/24/10), by clicking here.

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October 20, 2010

No Appellate Jurisdiction Over Landlord Not Explicitly Identified On Notice Of Appeal

Andrea Coleman sued Christina Udoh and her husband, Nsikak Akpakpan, for violating the Chicago Residential Landlords and Tenants Ordinance. The case was arbitrated, and Coleman was awarded $20,600. The trial court barred Udoh and Akpakpan from rejecting the arbitration award, so they appealed.

Representing herself, Udoh filed her own notice of appeal. She did not write Akpakpan’s name on the notice. Nor did he file his own notice of appeal. Coleman claimed there was no appellate jurisdiction to hear Akpakpan’s appeal. The First District Illinois Appellate Court agreed. Here’s the appellate court’s explanation:

Where the notice of appeal clearly names only one party as appellant, the court considers the appeal to be taken only by the named party … In the absence of a separate notice of appeal filed by Mr. Mr. Akpakpan and the failure of the notice of appeal filed by Ms. Udoh to name him as an appellant and to include his signature or the signature and address of his attorney [required by Illinois Supreme Court Rule 303(b)(4)], Mr. Akpakpan is not a party to this appeal. We will consider this appeal only as to Ms. Udoh, and the judgment against Mr. Akpakpan will not be affected by its outcome.

In the end, the judgment was affirmed, so the lack of jurisdiction over Akpakpan’s appeal did not matter. But in any event, the lesson is: Always identify by name the parties who are appealing. And if you’re filing your notice of appeal without a lawyer, make sure that all parties who are appealing sign the notice, or file their own. The whole case, Coleman v. Akpakpan, No. 1-09-2629 (6/30/10), is available by clicking here.

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October 10, 2010

Trial Court’s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein. Unhappy with the result in the trial court, Bernstein appealed. Grazian filed a counter appeal.

Under Illinois Supreme Court Rule 309, Bernstein asked the trial court to dismiss his appeal. The trial court obliged, but Bernstein told the appellate court his request to dismiss his appeal was a mistake. He asked the appellate court to reinstate his appeal. A single judge of the appellate court obliged that request . But Grazian asserted the earlier dismissal by the trial court deprived the appellate court of jurisdiction to reinstate the appeal.

The First District Illinois Appellate Court agreed with Grazian. Here is the court’s rationale:

Once the trial court properly dismissed Bernstein’s appeal pursuant to Rule 309 upon his own motion, it was as if Bernstein had never filed a notice of appeal in our court. Instead … jurisdiction revested with the trial court. The only recourse for Bernstein, then, to move jurisdiction to our court was to petition the trial court to vacate its dismissal or … file another notice of appeal from the original judgment in the cause – some similar action taken within 30 days of the trial court’s final and appealable order dismissing his appeal.

The lesson is: The appellate court cannot regain jurisdiction after the trial court has legitimately dismissed a notice of appeal under authority given by Illinois Supreme Court Rule 309. Read the whole opinion, which includes a host of other jurisdictional arguments, Bernstein and Grazian v. Grazian and Volpe, No. 1-09-0149 (6/25/10), by clicking here.

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September 12, 2010

Notice Of Appeal Fails To Confer Appellate Jurisdiction In Legal Malpractice Case

The beneficiaries of the Victoria R. Fitch Trust sued McDermott Will and Emery, the law firm that drafted Victoria’s estate plan, and Dietrich and Dietrich, the accounting firm that advised Victoria. The beneficiaries alleged a variety of legal claims for mishandling the estate plan.

The first count of the Complaint was against Dietrich only. The second count was against Dietrich and McDermott. The third was against McDermott only. The trial court dismissed all three counts because they were not filed before the statute of limitations expired.

The beneficiaries appealed. But their Notice of Appeal stated only that they were appealing the dismissals of Counts I and II against Dietrich. The Notice of Appeal did not mention Counts II and III against McDermott.

McDermott asked the appellate court to dismiss the appeal because, the firm argued, the Notice of Appeal was deficient. The Second District Illinois Appellate Court agreed that the Notice of Appeal did not invoke the court’s jurisdiction to hear the appeal against McDermott. Here is how the appellate court explained its ruling.

… [When] an appeal is taken from a specified judgment, the appellate court acquires no jurisdiction to review other judgments or parts of judgments that are not specified in or inferred from the notice of appeal … The exception to this rule is when a nonspecified judgment can be said to have been a “step in the procedural progression leading” to the judgment specified in the notice of appeal … The purpose of the notice of appeal is to inform the prevailing party in the trial court that his opponent seeks review by a higher court …

In their notice of appeal, plaintiffs [beneficiaries] sought review of the September 18, 2007, order only insofar as it dismissed with prejudice counts I and II in favor of the Dietrich defendants … Even construing this notice of appeal liberally, we cannot say that McDermott was fairly and accurately advised that plaintiffs sought relief against the portion of the September 18, 2007, order that pertained to it. Thus, we find that our jurisdiction extends only to counts I and II of the original complaint and only as to the Dietrich defendants.

Click here for the whole opinion, Fitch v. McDermott, Will and Emery, No. 2-09-0029 (4/28/10).

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August 22, 2010

Grandparents’ Appeal Of Dismissal Of Adoption Petition And Severance Order Lacks Jurisdiction. Appeal From Order Striking Response To Foster Parents’ Adoption Petition Allowed

After SG’s parents lost their parental rights, the Hixsons (grandparents) petitioned to adopt the child. Five days later, in a separate case, the Bakers (foster parents) also petitioned to adopt SG. The Bakers also asked the trial court to consolidate the two cases. Over objection by the Hixsons, the cases were consolidated.

Two weeks later, the Illinois Department of Children and Family Services entered the consolidated case and consented to the Bakers attempt to adopt SG. DCFS also asked the trial court to dismiss the Hixsons’ adoption petition. The trial court did so in late September 2009.

The Hixsons wanted to appeal the dismissal of their adoption petition. In early November 2009 the trial court issued a Rule 304(a) finding (no just reason to delay enforcement or appeal of an order that disposes of fewer than all parties and all issues). The Bakers also asked to sever the two cases they previously asked to consolidate.

On December 1st, the trial court entered a judgment severing the two adoption cases and striking the Hixsons’ response to the Bakers’ adoption petition. The judgment also contained a Rule 304(a) finding.

The next day, the Hixsons appealed: (1) the September dismissal of their adoption petition; (2) the December ruling that severed the adoption petitions and struck their response to the Bakers’ petition. The initial fight on appeal was whether the appellate court had jurisdiction. The Hixsons argued they could appeal under Illinois Supreme Court Rule 304(a). The Bakers and DCFS said Rule 304(a) was irrelevant.

Appeal of the September dismissal order.

The Hixsons appealed within 30 days of the Rule 304(a) finding, but more than 30 days after the actual dismissal. So if the dismissal required the Rule 304(a) finding to be appealable, then their appeal was timely. If the September dismissal order was appealable without the 304(a) finding, then the appeal was late and the appellate court did not have jurisdiction.

The answer depended upon whether the two adoption petitions had separate identities despite having been consolidated. The Fourth District Illinois Appellate Court ruled that the petitions had separate identities, meaning the September order was final and immediately (within 30 days) appealable. Here’s what the court said:

The record suggests that, even after consolidation, the two cases continued to have separate identities in the trial court. Besides the filing of all documents in one case, the record contains little evidence the trial court treated the two cases as one single suit …Thus, a Rule 304(a) finding was not required, and the Hixsons had to file their notice of appeal by October 29, 2009. Since they did not, we must dismiss that portion of the appeal for lack of jurisdiction.

Appeal of the December orders severing the petitions and striking the Hixsons’ response.

The Hixsons’ appeal of the order severing the adoption petitions was made under Rule 304(a). But the appellate court dismissed this appeal too because the order severing the petitions was not a final judgment. “The trial court's ruling on the motion to sever did not fix the rights of any parties or terminate any part of the litigation. The granting of the motion to sever was an interlocutory order that did not become final and appealable by the court's Rule 304(a) finding. Thus, we dismiss the appeal as to the trial court's ruling on the motion to sever.”

The appellate court ruled that it had jurisdiction over order striking the Hixsons’ response to the Bakers’ petition. The court said the response to the Bakers’ petition was similar to a petition to intervene in the Bakers’ case, so striking the response was a final order, and thus appealable with the Rule 304(a) finding.

Read the whole case, In re the Adoption of SG, No. 4-09-0912 (5/3/10), by clicking here.

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July 27, 2010

“Sellers Exception” Dismissal In Airplane Crash Product Liability Case Not Final And Appealable

Illinois law allows the seller of a product to get out of a product liability lawsuit after identifying the manufacturer of the product. But even if the dismissal is with prejudice, the dismissal order is not final and immediately appealable. The First District Illinois Appellate Court recently said it did not have jurisdiction to consider the injured parties’ appeal from a dismissal of a seller of an aircraft that had identified the manufacturer.

Section 2-621 directs the dismissal of the seller, unless the seller had knowledge of the product defect or participated in the design of the product. But it also allows for the seller to be brought back into the case if an action against the manufacturer would be, as the court stated, “impossible or unavailing.”

Because the seller was subject to being reinstated, the dismissal order did not dispose of the rights of the parties. The order therefore was not final, and not appealable at that time. “Until plaintiff files and the [trial] court rules on a motion for vacation of the order dismissing plaintiff's strict liability claims against Air 1st [product seller] and reinstatement of those claims pursuant to section 2-621, we have no jurisdiction to consider the court's dismissal of those claims.”

Read the whole case, South Side Trust and Savings Bank of Peoria v. Mitsubishi Heavy Industries, No. 1-09-0148 (3/31/10), by clicking here.

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May 19, 2010

Incorrectly Coded Notice Of Appeal Sufficient To Give Federal Appellate Court Jurisdiction

Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court’s mandatory electronic filing system, Vince’s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed. Vince’s lawyer identified the notice of appeal with the wrong code.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

The federal appellate court accepted the first notice of appeal because the coding mistake “was an error of form.” The filing was not “so riddled with errors that it cannot fairly be considered a notice of appeal.”

Read the whole case, Vince v. Rock County, Wisconsin, No. 10-1659 (5/3/10), by clicking here.

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May 12, 2010

Dismissal For Want Of Prosecution Appealable After Time For Refiling Expires

The First District Illinois Appellate Court recently stated the rule for when a dismissal for want of prosecution becomes final and appealable.

Our supreme court has recognized that if a plaintiff's action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater … A DWP becomes a final order only when the section 13-217 period for refiling the action expires … Accordingly, a DWP remains an unappealable interlocutory order until plaintiff's option to refile expires.

The whole case, Jackson v. Hooker, No. 1-08-3042, (1/29/10), is here for the clicking.

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May 5, 2010

Voidness Of Judgment Considered Despite Late Appeal

American Access Casualty Company insured Aaron Hersey. GEICO won a negligence case against Hersey. Trying to satisfy its judgment, GEICO brought a supplemental proceeding to discover the assets of American Access Casualty Company.

The trial court entered a judgment for GEICO against AACC for the amount GEICO won against Hersey. About five months later AACC asked the trial court to vacate the judgment. But the trial court refused. AACC asked again a month later, arguing that GEICO’s judgment was void because (1) AACC’s lawyer was not given notice of the hearing at which the judgment was entered and (2) the judgment was based on a misrepresentati0n. The trial court again refused to vacate the judgment.

AACC appealed, but GEICO asked the appellate court to dismiss it for lack of appellate jurisdiction. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider the merits of AACC’s appeal because neither the request to vacate the judgment nor the appeal were filed within the required 30 days of the judgment.

But the appellate court said it could consider whether the judgment was void. “A void judgment is one that is entered by a court without jurisdiction over the parties or the subject matter or by a court that lacks the inherent power to make or enter the order,” and “… it is well settled that a void order can be attacked at any time.”

So the appellate court took jurisdiction over an appeal that was filed well after the jurisdictional deadline. But even though a void order can be attacked at any time, shouldn’t the court have jurisdiction to do so? In this case, the appellate court ruled that it was okay to file a late appeal to contest the voidness of the judgment. Normally, a late appeal would preclude jurisdiction.

Ultimately, the appellate court affirmed GEICO’s judgment because it was not void. So maybe this is a case of no-blood-no-foul. Read the whole case, Government Employees Insurance Company v. Hersey, No. 1-09-0232 (1/12/10), by clicking here.

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January 16, 2010

Jurisdiction Okay Despite Candidate’s Appeal Under Wrong Rule

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.

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December 20, 2009

No Appellate Jurisdiction Over Trustee’s Appeal Filed Before Final Distribution Of Assets

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 …


The appellate court also ruled that Illinois Supreme Court Rule 304(b)(1) did not apply to this case because the trial court’s “limited activity falls well short of the type of oversight involved in comprehensive proceedings like estate or guardianship proceedings.” Read the whole case, In re The Living Trusts of George C. Miller and Eleanor Miller, 2-07-0773 (12/14/09), by clicking here.

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December 12, 2009

Notice Of Appeal More Than 30 Days After 304(a) Finding Still Vests Appellate Jurisdiction

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.

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December 7, 2009

Failure To Designate Amount Of Attorney Fee Award Deprives Appellate Jurisdiction For Interlocutory Appeal

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.

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November 28, 2009

Appeal of Home Foreclosure Late When Filed At Conclusion Of Divorce Case

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.

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November 25, 2009

Request To Modify Language Of Judgment Does Not Extend Time To File Appeal

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.

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November 21, 2009

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

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.

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November 11, 2009

Unfounded Motion To Reconsider Judgment Extends Time To File Appeal

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.

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November 9, 2009

Permanent Disgorgement And Removal From Company Board Not Appealable Interlocutory Orders

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.

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November 1, 2009

Appellate Jurisdiction Okay Over Judge Substitution Motion Not Identified In Notice Of Appeal

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.

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October 25, 2009

Appeal Before Ruling On Right To Tax Deed Premature

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.

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October 23, 2009

Reconsideration Motion Untimely So Illinois Supreme Court Dismisses Appeal

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.

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September 27, 2009

Premature Notice Of Appeal Deprives Court Of Jurisdiction To Review Conditional Release Of Sexually Violent Person

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.

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September 23, 2009

Interlocutory Order Not Identified In Notice Still Appealable

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.

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September 22, 2009

Dismissal Of Original Complaint A Final Judgment That Must Be Appealed Upon Voluntary Dismissal of Amended Complaint

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.

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August 18, 2009

Pending Review Of Mother’s Finances Deprives Appellate Court Of Jurisdiction In Divorce Battle

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.

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August 16, 2009

Pending Motion To Disqualify Attorney Deprives Appellate Court Of Jurisdiction To Consider Custody Order

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.

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August 12, 2009

Summary Judgment On One Of Two Counts Final And Appealable As To Entire Complaint

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.

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August 4, 2009

Order On Partial Fee Petition Not Appealable. Merits Panel Dismissal Trumps Motion Panel.

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.

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July 25, 2009

Trial Court Lacks Power To Allow Intervention After Appeal Is Filed

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.

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July 22, 2009

Pending Appeal Deprives Trial Court Of Power To Reinstate Dismissed Case

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.

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July 4, 2009

No Appellate Jurisdiction In Environmental Clean-Up Case When Trial Court Still Must Decide Who Gets Insurance Proceeds

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.

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June 13, 2009

Inmate’s Motion Attacking Void Judgment Tolls Time To Appeal

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.
Get the whole case, Gay v. Frey, No. 5-07-0561 (3/13/09), by clicking here.

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May 5, 2009

Rules After Remand; Jurisdiction Over Fee Petition After Appeal Notice Is Filed

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.

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April 21, 2009

Illinois Election Board Tie Vote Dismissal Of Republican Party Complaints Reviewable By Appellate Court

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

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March 29, 2009

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

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.

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March 22, 2009

Non-Intervening Account Holders May Appeal Receiver’s Plan To Distribute Assets

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 …
The district court, and thus the receiver’s plan, ultimately was affirmed. Read the whole case, Securities and Exchange Commission v. Enterprise Trust Co., Nos. 08-3798, 08-3852 (3/18/09), by clicking here.

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March 21, 2009

Seventh Circuit Has Jurisdiction Over Goldblatt’s Bankruptcy Remand

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.

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March 9, 2009

Default Order Not Final And Appealable

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.

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February 21, 2009

Trial Court’s “Final And Appealable” Order Not Necessarily So

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.

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January 30, 2009

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

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.

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January 28, 2009

Filing Notice of Appeal In Appellate Court Does Not Confer Appellate Jurisdiction

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.

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January 12, 2009

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

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.

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January 8, 2009

City’s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

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.

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January 6, 2009

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant’s Due Process Claim

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.

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January 2, 2009

Pending Disqualification Motion Renders Custody Appeal Premature

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.

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December 17, 2008

“Necessary Step” Exception Overcomes Deficient Notice Of Appeal

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.

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December 14, 2008

New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

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.

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December 10, 2008

Bank’s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

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.

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November 28, 2008

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

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

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November 23, 2008

Pending Contempt Petition Renders Other Substantive Rulings Non-Final And Not Appealable

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).

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November 21, 2008

Illinois Supreme Court Considers Appellate Jurisdiction In IRMO Gutman. Appellate Court Panel’s Attempt To Overrule Sister Panel Rejected By Illinois Supreme Court

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.

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November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

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.

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October 5, 2008

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

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.

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September 24, 2008

Denial Of Food Company’s Federal Preemption Defense Not An Appealable Interlocutory Order

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.

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September 22, 2008

Remand To Bankruptcy Court Deprives Seventh Circuit Of Jurisdiction

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.

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August 29, 2008

Seventh Circuit Dismisses Government Appeal Of Qualified Immunity Defense

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.

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August 27, 2008

Certified Question Improper Under Illinois Supreme Court Rule 308, But Appellate Court Takes Interlocutory Appeal Anyway

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.)

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August 24, 2008

Constructive Re-filing Of Reconsideration Motion Provides Appellate Jurisdiction Over Insurer’s Appeal Of Coverage Dispute

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.)

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August 9, 2008

Order Postponing Insurer’s Motion To Stay Pending Arbitration “Incident To An Orderly Process” And Not Appealable

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.

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July 24, 2008

Misunderstanding Filing Deadline Rule Not Excusable Neglect

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.

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July 9, 2008

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

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.

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June 26, 2008

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer’s Appeal

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.

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June 24, 2008

Appeal Of Expired Commitment Order Not Moot

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.

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May 30, 2008

No Jurisdiction To Hear Appeal Of Denial Of Motion To Dismiss

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.
The appellate court’s ruling is inconsistent. It states that the Village did not appeal the final order timely, but then states that the denial of the Village’s motion to dismiss was not a final order. In any event, there was no appellate jurisdiction here. Read the whole opinion, Nicor Gas Co. v. Village of Wilmette, No. 1-07-1041 (2/29/08), by clicking here.

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May 17, 2008

Illinois Supreme Court Rules Premarital Agreement A Separate Claim From Divorce

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.

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May 9, 2008

Judgment Creditors Can’t Toll Time To Appeal By Asking For An Interlocutory Appeal

The D’Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D’Agostinos’s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch.

After all of that was resolved, the D’Agostinos issued citations to Murphy and Bryan Cave, respectively a lawyer and a law firm who had represented Lynch. Their theory was that Lynch, to avoid paying the D’Agostinos, had given the lawyers money. Their motion to compel Murphy and Bryan Cave to turn over the money was denied on November 7, 2007.

Within 30 days, the D’Agostinos filed a “Motion to Amend Memorandum and Judgment.” That motion asked for a finding under Illinois Supreme Court Rule 304(a) (permitting an immediate interlocutory appeal). That motion was granted on December 12, 2007. And within 30 days, the D’Agostinos appealed the denial of the original turnover motion.

Murphy and Bryan Cave moved to dismiss the appeal. They argued that the November 7 order was final in “a section 2-1402 proceeding [citation proceeding by a judgment creditor] and that, therefore, under Rule 304(b)(4), it was immediately appealable without a special finding [under Rule 304(a)]” Because the appeal was filed more than 30 days after the November 7 order, the lawyers argued, the appellate court did not have jurisdiction over the case.

The First District Illinois Appellate Court agreed. “Here, the order in question foreclosed the D’Agostinos from collecting the funds in question from Murphy and Bryan Cave. Therefore, it was final and immediately appealable under Rule 304(b)(4). Because the D’Agostinos failed to file a notice of appeal from the November 7, 2007 order within 30 days, this court is without jurisdiction to review the order.”

The D’Agostinos argued that their motion to amend was a proper attack on the judgment, and thus extended the time to file their appeal. But the appellate court disagreed.

In order for a postjudgment motion to have the effect of tolling the time in which to appeal the judgment, that motion must be “directed against the judgment.” … A motion is said to be directed against the judgment when it attacks the judgment in one of the statutorily authorized ways, which include by requesting rehearing, retrial, modification, or vacation of the judgment … The party may also request “other relief” so long as that motion requests a change in the reasons underlying the judgment along the lines of the enumerated forms of relief … Here, the D’Agostino’s “Motion to Amend Memorandum Decision and Judgment” does not attack the judgment or its underlying rationale but, rather, accepts it and requests a Rule 304(a) finding. However, a Rule 304(a) finding was not necessary because of Rule 304(b)(4). … Therefore, it did not have the effect of tolling the time in which to appeal.

Read the whole case, D’Agostino v. Lymch, No. 1-08-0140 (5/7/08), by clicking here.

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May 7, 2008

Pending Contempt Proceeding Renders Post Dissolution Judgment Nonfinal. Second District Illinois Appellate Court Still Split.

IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending.

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

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

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

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

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

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

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

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

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May 6, 2008

Fourth District Illinois Appellate Court Reviews Jurisdiction Issue Despite Trial Court Failure To Do So

Lee Isringhausen, an Illinois resident, contracted with APM Custom Homes, a Florida corporation, to build a home in Marco Island, Florida. Lee died before the house was built. APM returned most of the $100,000 deposit to Lee’s estate, but kept $42,500 of it as a construction-management fee.

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

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

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

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

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April 23, 2008

Illinois Supreme Court Rule 365 Doesn’t Save Notice Of Appeal Improperly Filed In Appellate Court

Here’s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303. Nor did Rule 365 save the appeal. So the appeal was dismissed.

The Second District Illinois Appellate Court explained:

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

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

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March 29, 2008

Accident Victim Can Appeal Her Lawyer’s “Good Cause” To Widthdraw

Victoria McGill hired Friedman & Solmor to represent her in her auto accident case. The law firm represented Victoria on a contingent fee arrangement until about one month before trial was scheduled. The firm withdrew as a result of a dispute with Victoria over whether to accept a settlement offer.

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

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

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

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

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February 14, 2008

Special Representative Gets Bonus Time To Appeal

LeRoy Voga sued his son, Lyle, to collect on a defaulted promissory note. After LeRoy got a judgment, Lyle’s former wife, Teresa, , intervened to quiet title to real property she had been awarded in her divorce proceeding with Lyle, seeking to prevent LeRoy from levyng on the property.

Teresa was granted summary judgment. Soon after, LeRoy died. Before a special representative for the estate was named, LeRoy’s attorney moved to vacate the summary judgment. After a special representative was appointed, the trial court denied the motion to vacate.

The special representative, Larry, appealed the summary judgment. Teresa moved to dismiss the appeal. She asserted that the motion to vacate the summary judgment was a nullity and therefore did not toll the time to file the Notice of Appeal. Without the tolling period, Teresa argued, the Notice of Appeal was late and did not confer appellate jurisdiction.

Teresa’s nullity argument was based on the fact that the motion to vacate was made before a special representative was appointed. With no representative, Teresa concluded, there was no plaintiff, so the motion to vacate was made without authority.

The Illinois Second District Appellate Court rejected Teresa’s position. The court ruled that the period after LeRoy’s death and before Larry’s appointment — a time the trial court is without jurisdiction over the case — could not be counted toward the time to appeal. Larry had been appointed special representative on January 9, 2007, and he participated in the hearing on the motion to vacate the next day. “Thus, by any reasonable calculation, on January 10, 2007 there was a timely oral postjudgment motion before the trial court. The court denied the motion, and Larry appealed within 30 days of the denial. Therefore, we have jurisdiction to consider the merits of Larry’s appeal.”

Get the whole case, Voga v. Voga, No. 2-07-0176 (12/4/07), by clicking here.

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February 11, 2008

Illinois Supreme Court To Review IRMO Gutman. Is Civil Contempt Petition A Separate Claim From Underlying Divorce Case?

I mentioned IRMO Gutman in my January 3, 2008 entry regarding IRMO Knoerr. In IRMO Knoerr, the Second District Illinois Appellate Court overruled IRMO Gutman, which was only two months old at the time. On January 30, 2008, the Illinois Supreme Court announced it will review IRMO Gutman.

In IRMO Gutman, the Second District ruled that a pending civil contempt petition was a “separate claim” from the underlying divorce lawsuit. As a result, the divorce matters could be appealed while the contempt proceeding was pending without benefit of a Rule 304(a) order (trial court may allow appeal of final order of fewer than all claims). In IRMO Knoerr, another panel of the Second District ruled just the opposite and overruled IRMO Gutman.

Here’s to hoping the Illinois Supreme Court will settle the matter. I’ll keep you informed.

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February 3, 2008

Temporary Removal Of Guardian Not Reviewable

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court's own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court's orders did not 'finally determine, fix and dispose of the parties' rights'”

Glen also tried to invoke jurisdiction through Illinois Supreme Court Rule 304, which permits appeal of an otherwise nonfinal order when the trial court rules there is "no just cause or reason to delay enforcement or appeal."

In this case, the trial court did make a Rule 304 finding. But the appellate court rejected the trial court’s finding, stating, “… [T]he addition of that language did not alter the fact that the court's orders were not final as to any claim or party and were, thus, not subject to Rule 304(a). Such a finding by a trial court is not effective to transform a disposition that is not final in its own right into a final judgment.”

Glen was hardly a sympathetic appellant, but what if was right about the trial court not having authority to temporarily remove guardianship rights? This appellate opinion in effect says the trial court’s action cannot be contested on appeal.

Read the whole opinion, In re Guardianship of J.D., No. 1-06-3069 (9/28/07), by clicking here.

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January 29, 2008

Slightly Defective Certificate Of Service Does Not Deprive Illinois Appellate Court Of Jurisdiction

In an insurance coverage dispute, Illinois Farmers moved to dismiss Secura Insurance’s appeal for lack of jurisdiction. Farmers argued that Secura’s Notice of Appeal, mailed to the court the 30th day after the judgment, was deficient because the certificate of service did not state the time of mailing, a requirement of Illinois Supreme Court Rule 12(b)(3). Farmers argued that Secura’s failure to strictly comply with the Supreme Court’s rules doomed the Notice of Filing, thus depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court rejected Farmers’ position and ruled that jurisdiction was proper. The court ruled that the failure to state the time of service was a very slight defect that did not interfere with or preclude review. Adding “the fact that Farmers does not allege prejudice, we conclude that the defect here amounts to harmless error.”

Get the whole case, Secura Ins. Co. v. Illinois Farmers Ins. Co., No. 2-06-0614 (11/7/07), by clicking here.

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January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

No matter. The Illinois Supreme Court ruled that Almon’s appeal still was proper. “Although plaintiff did not file a separate petition for leave to appeal, none was required. Plaintiff is entitled to raise the additional issue under [Illinois Supreme Court] Rule 318(a), which provides that in all appeals ‘any appellee, respondent, or coparty may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal or notice of cross-appeal or separate appeal.’ … This court has invoked Rule 318(a) in finding that allowance of one party's petition for leave to appeal brings before this court the other party's requests for cross-relief.”

Be careful here: Illinois Supreme Court Rule 318 applies only to appeals from the appellate court to the Supreme Court. It does not apply to appeals from the circuit court to the court of appeals.

The whole opinion, Heastie v. Roberts, No. 102428 (11/1/07), is available by clicking here.

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January 9, 2008

Interesting Stuff From Other Places. Premature Notice Of Appeal Becomes Effective In First Circuit

The Appellate Law and Practice Blog reports on Malloy v. WM Specialty Mortgage, No. 07-1026, a First Circuit opinion that the blog calls “the height of appellate nerdery.” The court ruled that a premature notice of appeal became effective, and bestowed appellate jurisdiction, after the district court denied a motion to vacate what sounds like a conditional dismissal order.

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January 3, 2008

No Appellate Jurisdiction Where Appeal Taken While Contempt Motion Still Pending. Second District Illinois Appellate Court Overrules 2-Month Old Opinion

This appeal arises from Nancy Knoerr’s post-dissolution petitions to increase child support and to force her ex-husband, David, to contribute to college expenses of one of their children. David moved for reconsideration after Nancy got a favorable result on her petitions. Nancy then petitioned for a rule to show cause, claiming that David refused to comply with the orders increasing child support and David’s contribution to the college expenses.

The trial court denied David’s motion to reconsider, and continued Nancy’s petition for a rule to show cause. The trial court did not issue Rule 304(a) language (allowing an interlocutory appeal). David appealed the ruling on Nancy’s petitions while the rule to show cause still was pending.

This is another case in which the Second District Illinois Appellate Court assessed its jurisdiction without benefit of a motion contesting jurisdiction. The appellate court dismissed the appeal because the still-pending rule to show cause rendered the action non-final.

The appellate court overruled another Second District opinion, Marriage of Gutman, 376 Ill. App. 3d 378, No. 2-06-0213 (2007). Gutman, which was decided on October 16, 2007, ruled exactly opposite of Knoerr. (“… [T]he Gutman court held that civil contempt petitions initiate separate proceedings and not ‘claims’ within the action, thereby excepting them from Rule 304(a). However, we believe that Gutman’s conclusion, that pending or denied civil contempt petitions are not subject to Rule 304(a), is based on a flawed analysis, and we overrule it.”

The panels were different in the two cases. Gutman was written by Justice Grometer, Callum and Gilleran Johnson concurring. Knoerr was written by Justice Bowman, McLaren and Zenoff concurring. It’s interesting to see the court overrule an opinion that was just two months old and written by a different panel.

The whole opinion, IRMO Knoerr, No. 2-06-1060 (12/21/07), is available by clicking here.

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December 29, 2007

7th Circuit Requires Accurate Affidavit From Prisoner To Comply With Mailbox Rule

Malcom Rush was incarcerated in Waupun Correctional Institution in Wisconsin. He appealed after the federal district court denied his petition for a writ of habeas corpus. But Rush’s Notice of Appeal did not get filed within the 30-day deadline.

The issue was whether Rush complied with Federal Rule of Appellate Procedure 4(c), the prisoner mailbox rule. That rule states that the date of filing is the date the prisoner places the mail in the prison mail system. The rule also requires an affidavit by the prisoner that the mail was timely placed in the system and that postage was prepaid.

Rush signed an affidavit that said he placed the document in the mail system timely and that the prison had committed to paying for the postage. But the court ruled that the latter point was not true. Because Rule 4 requires the postage to be paid, the court concluded that Rush’s Notice of Appeal was not timely, thus depriving the court of appellate jurisdiction. “Postage was not prepaid at the time of deposit because Rush did not secure his right to an exemption for a loan from the warden. Therefore the statement in his declaration that Waupun had ‘precommitted’ to paying for the postage as of June 9, 2006, is not true, and does not satisfy the requirements of Rule 4(c)(1).”

Read the whole opinion, Ingram v. Jones, Nos. 06-2766, 06-2879 (12/7/07), by clicking here. (Unameded September 07 opinion.)

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December 13, 2007

Consumer Wins Credit Card Battle, But Appealable Orders Elude Her

Resurgent Financial took an assignment of credit card receivables from MBNA. Joan Kelly’s account was included among those assigned to Resurgent, or so Resurgent claimed. Kelly said she didn’t owe anything, and refused to pay Resurgent, so Resurgent sued her.

Kelly served requests for admission on Resurgent, which Resurgent did not answer. After the requests were deemed admitted, Kelly moved for summary judgment. That motion was denied. Resurgent then moved for voluntary dismissal without prejudice. That motion was granted. Kelly in turn moved for attorney fees under the Illinois Credit Card Liability Act. The fee motion was denied.

Kelly appealed the denial of her motions for summary judgment and for attorney fees. The Second District Illinois Appellate Court dismissed Kelly’s appeal, stating that neither order was final and appealable.

The appellate court acknowledged that an order allowing a voluntary dismissal is a final order. But that does not make all previous interlocutory orders appealable. “It is true that an appeal from a final judgment draws into issue all previous interlocutory orders that produced the final judgment … But such orders must constitute procedural steps in the progression leading to the entry of the final judgment … The denial of summary judgment is not a procedural step to an order of voluntary dismissal … Thus, the denial here was neither a final judgment nor a procedural step to a final judgment, and it is not appealable.”

Nor was the order denying Kelly’s attorney fee request final. The court stated: “The trial court did not finally determine that Kelly was not entitled to fees. Instead, it ruled that, because there had been no final determination of the merits of the complaint, Kelly's motion was premature … In effect, having dismissed Resurgence's complaint without prejudice, the court denied Kelly's motion for fees without prejudice. Thus, that order also is not appealable.”

You can get the whole opinion, Resurgence Financial v. Kelly, No. 2-06-1120 (9/20/07), by clicking here.

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December 12, 2007

Fifth District Illinois Appellate Court Without Jurisdiction To Allow Permissive Appeal Of Forum Motion

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

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

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

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

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December 4, 2007

Illinois Supreme Court Vacates Appellate Ruling On Interlocutory Order.

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

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

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

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

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

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November 20, 2007

Trial Court Oversteps Authority In Directing Notice Of Appeal To Be Filed For Defendant

Walter Lofton pleaded guilty to charges of aggravated battery and criminal damage to government-supported property. He was sentenced to four years imprisonment on the battery count, and three concurrent years on the damage to property count.

After sentencing, Lofton was admonished about his right to appeal. When told of his right to appeal, he immediately expressed his desire to do so. About a week later, based upon Lofton’s stated desire to appeal, the trial court directed the clerk to file a notice of appeal on Lofton’s behalf, which the clerk did. However, Illinois Supreme Court Rule 604(d) requires that (1) a motion to reconsider the sentence or (2) a motion to withdraw the guilty plea and to vacate the judgment be filed in the trial court as a condition to appealing. Lofton filed neither.

The Fourth District Illinois Appellate Court remanded the case with directions to strike the notice of appeal and to confirm whether Lofton wanted to file a post-trial motion. The court ruled that “… the trial court acted without authority by directing the clerk to file a notice of appeal. Although defendant had initially expressed a desire to appeal, he did not indicate that he wanted to appeal after he had received the appeal admonitions. Defendant was deprived of approximately three weeks’ time in which to determine whether to file a posttrial motion.”

The whole case, People v. Lofton, No. 4-06-0382 (10/11/07), is available by clicking here.

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November 15, 2007

7th Circuit Has Jurisdiction Of Dispute Over Non-Compete Clause In Patent License

County Materials Corporation signed a licensing agreement that allowed it to manufacture and sell Allan Block’s patented concrete block. The license also contained a non-compete clause that prohibited County Materials from selling a competing product for 18 months after the license was terminated.

After Allan Block terminated the license, County Materials developed its own concrete block that competed with Allan Block’s product. Allan Block threatened to sue to prevent County Materials from selling its new concrete block. But County Materials won the race to the courthouse, and brought an action to have the license declared void because the non-compete clause constituted patent misuse. The district court ruled that there was no patent misuse, and granted summary judgment in favor of Allan Block.

County Materials appealed. Allan Block moved to dismiss the appeal, pointing to U.S. Supreme Court precedent that grants exclusive jurisdiction to the Federal Circuit Court of Appeals of cases in which “federal patent law created the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”

The 7th Circuit Court of Appeals ruled that it did have jurisdiction. “… [I]t is apparent that federal patent law does not create the cause of action here. It is instead a claim about the enforceability of a contract or license agreement. Resolution of this appeal does not ‘necessarily require[] resolution of substantial question of federal patent law.’”

The 7th Circuit affirmed the district court’s summary judgment for Allan Block. Get the whole opinion, County Materials Corp. v. Allan Block Corp., No. 06-2857 (9/18/07), by clicking here.

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November 12, 2007

Sovereign Immunity Doesn’t Deprive Appellate Court Of Jurisdiction In Veterinary Malpractice Case

Loman and Dodd owned a horse that required surgery. They entrusted the surgery to Freeman, who taught veterinary medicine at the University of Illinois. Freeman did the surgery as part of the training he provided for students at the University. Loman and Dodd alleged that Freeman performed an unauthorized procedure that ruined the horse for racing purposes. They sued Freeman for negligence and conversion. The trial court granted Freeman’s motion to dismiss.

Loman and Dodd appealed. Freeman moved to dismiss the appeal for lack of jurisdiction. He argued he was entitled to sovereign immunity because of his teaching position with the state university. The Fourth District Illinois Appellate Court denied the motion to dismiss the appeal.

The appellate court ruled that sovereign immunity did not apply because Freeman’s duty to Loman and Dodd derived from the common law, which was not dependent on Freeman’s employment by Illinois. In addition, the state was not subject to liability as a result of the lawsuit against Freeman. “‘[T]he decision of [the university] to indemnify its employees does not deprive the circuit courts of subject-matter jurisdiction over claims otherwise properly brought in the circuit court.’"

Ultimately, the appellate court reversed the dismissal of the complaint, holding that the Moorman doctrine did not preclude the tort actions against Freeman. You can read the whole opinion, Loman v. Freeman, No. 4-06-0330 (12/15/06), by clicking here.

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November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

Without applying the amendment to this case, Darrell’s Notice of Appeal would have been premature and insufficient to establish appellate jurisdiction. The Concurrence stated: “Because the parties had a vested right in the final judgment the amendment to Rule 303 cannot operate retroactively to bestow us with jurisdiction to interfere with that right.”

The Concurrence also argued that Tamara’s petition for increased child support was a separate action, not just a separate claim within the same action, from Darrell’s request for a change in visitation. The Concurrence is immersed in lengthy case law analysis that is difficult to write about concisely in this space. Suffice it to say that the Concurrence reached an opinion 180 degrees different from the majority based on the very same case law.

To read the Concurrence, and the rest of the opinion in IRMO Duggan, No. 2-06-0061 (10/16/07), click here.

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October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

So why did the court engage in so lengthy an analysis of this question, or even decide it at all? After all, Darrell was on the losing side here, but his appeal was saved by the retroactive application of the amendment to Rule 303(a), which allows a prematurely filed Notice of Appeal to establish appellate jurisdiction. (See blog entry for 10/29/07, directly below, for a fuller explanation.) Perhaps the court was not confident the retroactivity ruling would survive Illinois Supreme Court review. So providing an answer to the “one claim or new actions” question would obviate more briefing in the appellate court in the event of a reversal in the Illinois Supreme Court on the retroactivity question.

Next we’ll look at the special concurrence, which takes issue with the majority on the appellate jurisdiction issues. You can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

In December 2005, the trial court ruled on Darrell’s motion to vacate, refusing to vacate the percentage award. The trial court did not make a Rule 304(a) finding. (No just reason to delay enforcement or appeal of the order.) Unhappy with the ruling, Darrell filed a Notice of Appeal within 30 days. When the Notice of Appeal was filed, the trial court still had not ruled on Darrell’s petition to set specific visitation times. That petition was resolved by a court order in May 2006.

The parties initially did not dispute appellate jurisdiction. But the court questioned whether it had the power to consider Darrell’s appeal of the percentage award. The first question was whether Darrell’s second petition −to set visitation times − was a claim within the same cause of action, or a whole new cause of action.

If it was a claim within the same action, then the order on the motion to vacate would require a Rule 304(a) finding in order to be appealable. Because there was not a Rule 304(a) finding, the appellate court would not have jurisdiction of Darrell’s appeal. If the petition to set visitation times constituted a new action, as Darrell argued, then Rule 304(a) language would not be necessary and the appellate court would have jurisdiction.

But the analysis was complicated by an amendment to an Illinois Supreme Court Rule that took effect while the appellate court was deliberating. Rule 303(a) was amended so “when a timely postjudgment motion has been filed, a notice of appeal filed before ‘the final disposition of any separate claim does not become effective until the order disposing of the separate claim is entered.’” This was exactly the situation in the Duggans’ case. So the first question was whether “amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application) or only to those appeals filed after the effective date (prospective application).”

The appellate court concluded that the amendment to Rule 303(a) should apply retroactively. The keys to this decision were: (1) the amendment was procedural, not substantive, and (2) imposition of the amendment did not impair any rights that Tamara had.

The amendment was considered “procedural” because it “relate[d] solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard.” That entails “the method of enforcing rights or obtaining redress.” That is generally what Supreme Court Rules do − prescribe the method for advancing pending litigation.

Nor was retroactive application of amended Rule 303(a) unfair to Tamara − i.e, it did not impair a right she possessed. The court rejected the Concurrence’s position in this regard.

The special concurrence suggests that our ability to hear this appeal under the new Rule 303 (a) impairs Tamaara’s “right” to a dismissal of the appeal for lack of jurisdiction. If this is a “right” at all, however, it is not a right that Tamara ”possessed when she acted,” as she has taken to action in reliance on our initial lack of jurisdiction. Indeed, she did not even raise the issue of our jurisdiction until we required her to do so via supplemental briefing. This fact is not simply an accident of the parties” skill in recognizing jurisdictional defects; it highlights the nature of jurisdiction − it is not a right possessed by the parties, but a prerogative of the court that we assert and determine.

I appreciate the conclusion that Tamara did not have a “right” to dismissal of Darrell’s appeal for lack of appellate jurisdiction. But I do take exception to the conclusion that jurisdiction “is not a right possessed by the parties.” In fact, litigants are granted access to the courts, and thus the courts are given jurisdiction, by the Illinois Constitution. While the court gets to determine the contours of jurisdiction, it is not merely a “prerogative of the court.”

In any event, the court concluded that retroactive application of the Amended Rule 303(a) was appropriate. So Darrell won the first prong of the argument.

We’ll look at other aspects of the case in forthcoming entries. But you can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

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October 22, 2007

7th Circuit Dismisses Appeal Of Remand After District Court Denies Immunity Request

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

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

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

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

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

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October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

The appellate court also ruled that it could take judicial notice of evidence that was not in the record. The court concluded that “the caution against allowing new evidence on appeal via judicial notice is simply a part of the doctrine of waiver,” which is not a limitation on the court’s jurisdiction. The court ruled that “Relaxing the doctrine of waiver here is appropriate because the State did not object to the consideration of the charge and, indeed, incorporated the charge in its own arguments. Further, an ‘argument that an order or judgment is void is not subject to waiver.’”

This opinion also contains good discussion about the legislature’s power to limit trial court jurisdiction in light of Article VI Section 9 of the Illinois Constitution (“Circuit Courts shall have original jurisdiction of all justiciable matters except when the [Illinois] Supreme Court has original and exclusive jurisdiction.”)

You can read the whole opinion, In re Alex T., No. 2-06-0049 (8/15/07), by clicking here.

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October 8, 2007

First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

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

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

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

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

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

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

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

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October 2, 2007

7th Circuit Appellate Court Rules Dismissal Without Prejudice Nonfinal Where District Court Wasn’t Through With Case

A pro se plaintiff filed four lawsuits, which were assigned to different judges, in which she complained that her children had been taken from her custody in violation of the law. Although the cases generally complained about the same subject matter, they never were consolidated.

The first three lawsuits ultimately were dismissed. But before those dismissals were entered, the fourth-filed case was dismissed without prejudice. Plaintiff appealed only from the dismissal in the fourth case. At the same time, she also moved to consolidate the four cases.

The district judge wrote a letter to plaintiff in response her two filings. With respect to the Notice of Appeal, the judge asked plaintiff for clarification of her position on the question of whether the complaint was duplicative of the first three lawsuits. The 7th Circuit Appellate Court chastised the district judge for writing the letter, explaining that it could confuse the parties about how to respond and about the true procedural posture of the case.

The jurisdictional question was whether the dismissal without prejudice was a final and appealable order. The court explained when a dismissal without prejudice is appealable. “A dismissal without prejudice is an appealable final order if it ends the suit so far as the district court is concerned … or if ‘there is no amendment a plaintiff could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations.’ … But a dismissal without prejudice is not appealable if it amounts to merely telling the plaintiff ‘to patch up the complaint, or take some other easily accomplished step’; in that event it ‘is no more reviewable than the resolution of a discovery dispute or equivalent interlocutory ruling.’”

In this case, the appellate court ruled, the dismissal without prejudice was not final. The district court’s letter to plaintiff indicated the dismissal would be rescinded “if the plaintiff explained why her suit wasn’t a duplicate of the other suits … [I]t is clear that the judge doesn’t think she’s through with the case, and therefore the order of dismissal in nonfinal and unappealable.”

The whole case, Holmes v. Office of the Cook County Public Guardian, No. 06-3989 (9/24/07), is available by clicking here.

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September 12, 2007

Second Second District Illinois Appellate Panel Dismisses Appeal

This dispute grew from the Waddicks’ divorce. Several months after trial, in September 2005, the trial court issued a written decision that ruled on the contested matters. The court did not order a dissolution judgment to be prepared, but it did state that a joint custody order “will be entered by the Court.”

Dawn filed a motion to reconsider the September ruling. After a continuance, the court entered a judgment of dissolution in late November 2005. There was no ruling on Dawn’s motion to reconsider until March 2006, when it was denied. Dawn filed her notice of appeal later that month.

Before the briefs were filed, David moved to dismiss the appeal for lack of jurisdiction. The motion panel denied David’s motion. The appeal was reassigned for full disposition. The new panel stated it had “an independent duty to determine whether we have jurisdiction …” (The opinion does not state whether David renewed his motion to dismiss or if the panel looked at the question on its own.)

The question then became whether Dawn’s motion to reconsider tolled the time to appeal under Illinois Supreme Court Rule 303(a) (allows for tolling the time to appeal until after disposition of a timely motion directed against the judgment).

The Second District Illinois Appellate Court ruled that the September 2005 order — the one that Dawn asked to be reconsidered — was not a final and appealable order. That order, the appellate court stated, left open numerous issues that a joint parenting judgment is required to include. Rather, the final judgment had been entered in November 2005.

The appellate court did not have jurisdiction because (1) Dawn’s motion to reconsider the nonfinal order did not toll the time to appeal; (2) Dawn’s notice of appeal, filed well more than 30 days after the November judgment of dissolution, was too late to confer appellate jurisdiction.

The most distressing thing about this decision is the second panel’s willingness to revisit the motion to dismiss the appeal. From a practitioner’s point of view, the lesson is never give up on a jurisdiction motion. If another panel will review it independently, then you have nothing to lose by renewing a dismissal motion. There is nothing to say that the second panel’s decision is any better or more thorough than the first panel’s decision. It’s just a matter of how the last panel to look at the question sees it. All of which raises the question of whether it may even be malpractice not to continue pressing a jurisdiction motion until the end of the appellate process.

You can read the whole opinion, IRMO Waddick, 2-06-0363 (6/5/07), by clicking here.

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September 9, 2007

Arguments First Raised On Motion For Reconsideration In Trial Court Waived For Appeal

In this complicated dispute among business partners, a counterclaimant asserted arguments of equitable estoppel and of the mend the hold doctrine. However, those arguments were posed for the first time in a motion for reconsideration of a summary judgment. The First District Illinois Appellate Court ruled that the arguments had been waived because “they failed to raise them prior to filing their motion for reconsideration.”

The lesson is: an argument raised for the first time in the trial court on a motion for reconsideration is waived for appeal. Get the whole case, Trossman v. Philipsborn, No. 1-04-0588 (6/8/07), by clicking here.

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September 4, 2007

Failure By Trial Court Clerk To Mail Order Does Not Relieve 30-Day Deadline To Appeal

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

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

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

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

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

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August 28, 2007

Fifth District Illinois Appellate Rules Jurisdiction Ruined By Post-Trial Motion For Costs

Carl Brdar, a truck driver, was injured when he tried to tie down an automobile to a cargo trailer. He sued Cottrel, Inc., the trailer manufacturer. Cottrell filed a third-party complaint against Vulcan Chain Corp., a distributor of metal tie-down chains. Vulcan’s motion to dismiss based on the statute of limitations was granted. The case was tried, and Carl got a judgment in excess of $1.4 million against Cottrell.

About two and a half weeks after the judgment, Cottrell filed a motion for an extension of time to file a post-trial motion. Cottrell served the motion on plaintiff, but not on Vulcan. That motion was granted, as were successive motions by Cottrell for more time. Cottrell eventually filed a post-trial motion.

About a month after the judgment, Carl filed a motion for costs incurred in calling a rebuttal expert witness. The motion argued that Carl was required to call the rebuttal expert when Cottrell’s expert gave surprise testimony.

The court later denied Cottrell’s post-trial motion and Carl’s motion for its costs in calling the rebuttal witness. Both appealed.

Vulcan moved to dismiss Cottrell’s appeal. Vulcan argued that because (1st) it did not receive timely notice of Cottrell’s motions for extensions of time to file a post-trial motion, the orders granting extensions “should be voided,” (2nd) voiding the orders that allowed more time would render Cottrell’s post-trial motion untimely, and (3rd) the untimely post-trial motion would not have tolled the 30-day period to file an appeal. Therefore, Vulcan concluded, the appellate court did not have jurisdiction to hear Cottrell’s appeal.

The appellate court ignored the argument and denied the motion to dismiss. The court pointed to Carl’s post-judgment motion for rebuttal expert costs, and concluded: “This timely motion injected into the action a new claim. Thus, the February 6 order [i.e., judgment] could not be appealed by any party until the court either disposed of the claim or entered a finding that there was no just reason to delay the appeal or enforcement of the order (155 Ill.2d R. 304(a) … The court did both on June 30, and Cottrell filed its appeal the same day. Thus, Cottrell's notice of appeal was timely, and we have jurisdiction to consider the appeal.”

The lesson here is that a post-trial motion for costs can “inject a new claim” into the case and destroy the finality of a judgment. Get the whole case, Brdar v. Cottrell, Inc., No. 5-04-0415 (3/27/07), by clicking here.

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August 25, 2007

Motion To Reconsider Does Not Toll 30-Day Deadline To Petition For Interlocutory Appeal

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

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

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

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

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

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August 23, 2007

First District Illinois Appellate Finds Bare Motion To Vacate Sufficient To Toll Time To Appeal

Plaintiff Affordable Housing Preservation Foundation got a permanent injunction against Smith Wiiams in connection with business transactions he took in Affordable’s name. Within 30 days, Wiiams moved to vacate the injunction. But Wiiams’ motion did not detail why the injunction was infirm. The trial court ruled on the motion about seven months later. Wiiams’ notice of appeal was met with a motion to dismiss. Affordable Housing asserted that the bare motion to vacate was not sufficient to toll the time to appeal. Coming more than 30 days after the judgment was entered, Affordable argued, the appeal was not timely, thus depriving the appellate court of jurisdiction.

The appellate court disagreed and denied the motion to dismiss. Because the judgment was rendered by the judge, not a jury, the bare motion to vacate was sufficient to toll the time to appeal. “… [W]e conclude that, despite the fact that defendant’s motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 [of the Illinois Code of Civil Procedure] and was a valid postjudgment motion.”

The opinion describes the difference between motions against the judgment brought in jury and non-jury cases, and attempts to clear up precedent that made the distinction ambiguous.

Get the whole opinion, Affordable Housing Preservation Foundation v. Wiiams, No. 1-05-3744 (7/13/07), by clicking here.

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August 20, 2007

Second District Appellate Court Hears Fugitive’s Appeal After Trial And Sentencing In Absentia

After a bench trial in absentia, Patricia Wakenight was convicted of possession of a controlled substance with intent to deliver. The arrest was made in April 2000, but Patricia changed lawyers a number of times, and backed out of a plea agreement, so the trial was not completed until July 2005.

During the trial in July 2000, Patricia snuck out of the courthouse. The trial proceeded in her absence, and ended with the conviction. Four months later, Patricia was sentenced to 10 years imprisonment. After her post-trial motion was denied, and remaining a fugitive, Patricia appealed. She complained to the Second District Appellate Court (1) that she had not been properly admonished about the possibility that the trial could proceed in her absence, and (2) that she had not been given proper notice of her sentencing hearing.

The initial question was whether the appellate court should exercise its discretion to hear Patricia’s appeal. The appellate court “has the discretionary power to refuse to hear a fugitive’s appeal unless and until the fugitive returns to the jurisdiction.” But in this case, the appellate court refused to dismiss the appeal “because the only substantive issues defendant raises are whether she was properly admonished about the possibility of a trial in absentia and whether she was entitled to a separate notice of the sentencing hearing … Thus, the substantive issues are intertwined with the issue of whether we should hear the appeal in the first place.”

In the end, the conviction and the sentence were affirmed. You can read the entire opinion, People v. Wakenight, No. 2-05-1090 (7/11/07), by clicking here.

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August 16, 2007

Fourth District Illinois Appellate Rules Abuse Of Discretion To Order Interlocutory Appeal

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

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

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

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

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

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

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

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June 27, 2007

In Case Of First Impression, First District Illinois Appellate Asserts Jurisdiction Over Appeal Filed 78 Days After Judgment

Rogers Auto Service was sued by a lender, Bell Leasing Brokerage, for wrongfully towing an automobile in which Bell had a perfected security interest. The trial court entered judgment for Bell. Rogers appealed, but Bell contested appellate jurisdiction because, Bell contended, the Notice of Appeal was late.

On the day the judgment was entered, Rogers filed a motion to reconsider. About three weeks later, the trial court granted Rogers additional time to file a supporting memorandum of law. Instead of filing the memo, Rogers moved to withdraw the reconsideration motion. That motion was granted, and Rogers appealed the next day, which was 78 days after the judgment was entered.

Illinois Supreme Court Rule 303(a)(1) permits a Notice of Appeal to be filed “within 30 days after the entry of the order disposing of the last pending postjudgment motion.” Bell argued that the order allowing withdrawal of a reconsideration motion was not an order disposing of a pending postjudgment motion, so the time to appeal was not tolled.

The First District Illinois Appellate Court acknowledged there was no controlling precedent directly on point. Relying on Pokora v. Warehouse Direct, Inc., 322 Ill.App.3d 870 (2001), which presented a similar fact pattern but did not address the jurisdictional question, the appellate court here denied Bell’s motion to dismiss and stated only that it chose to address the merits of the appeal.

The whole case, Bell Leasing Brokerage v. Roger Auto Service, No. 1-05-2313 (3/30/07), is available by clicking here.

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June 21, 2007

Summary Judgment In Declaratory Judgment Action Final Despite Pending Questions

Universal Insurance Co. sued Judge & James for legal malpractice. Universal claimed that J&J did not file a timely notice of appeal after a summary judgment against Universal was entered in a declaratory judgment action.

J&J had represented Universal in the declaratory judgment case brought by Heflin, an auto accident victim, to determine underinsured insurance coverage. In a summary judgment proceeding, the court declared that Universal owed insurance coverage. J&J’s motion to reconsider that ruling was denied. Instead of appealing the summary judgment, J&J filed certain discovery motions. The trial court ruled that its order on the motion to reconsider was final. Because that final order was more than 30 days old, the court also ruled that it did not have jurisdiction to rule on J&J’s discovery motions.

Universal and Heflin were ordered to arbitrate the insurance claim. That ended in an award of more than $2.9 million, which Universal was ordered to pay.

Universal then sued J&J for malpractice, raising, among other things, the failure to perfect the appeal from the summary judgment that declared insurance coverage existed. In this malpractice lawsuit, J&J prevailed on summary judgment. But Universal appealed, and the First District Appellate Court reversed.

The parties disputed whether the trial court’s declaration of coverage in Hefin’s underlying case was a final order that ought to have been appealed within 30 days. J&J argued that the coverage declaration was not final because it did not award money damages, did not state the precise nature of the coverage, and did not order the parties to arbitrate.

The appellate court rejected those arguments, stating, “. . . [A] declaratory judgment has the force of a final judgment with respect to the rights of the parties to that judgment . . . Finality attaches to a declaratory judgment on the date judgment is entered.” Heflin’s underlying complaint asked only for a declaration of coverage – not damages, or an order to arbitrate, or anything else. “Accordingly, the court’s July 31, 1995 order granted Heflin all of the relief she sought in her declaratory judgment action. The order fixed absolutely the rights of the parties on the issues raised in Heflin’s complaint concerning the issue of coverage and left no issues remaining. Therefore, the judgment was final and appealable as of the date of its entry.

See the whole opinion, Universal Underwriters Insurance Co.v. Judge & James, Ltd., No. 1-05-4138 (3/30/07), by clicking here.

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June 20, 2007

Post-Judgment Motion For Sanctions Tolls Time To Appeal

A class action against the manufacturer of a defective bicycle lock was settled. But certain class members, who had their own class action cases in other states, were unhappy with the settlement. They attempted to intervene to prevent the settlement. Their intervention motion was denied.

The trial court entered a final judgment pursuant to the settlement. Class counsel then timely moved for sanctions against the class members who tried to upset the settlement. That motion was withdrawn, and the angry class members filed their notice of appeal within 30 days of the withdrawal, but well more than 30 days after the final judgment.

The class representative who had settled the case moved to dismiss the appeal. He argued: (1) the sanctions motion, made after the final judgment was entered, did not toll the time to file the appeal; (2) the notice of appeal was late because it was filed more than 30 days after the final judgment was entered. He concluded there was no appellate jurisdiction.

The Illinois First District Appellate Court disagreed and denied the motion to dismiss. The reasoning was thin, relying on precedent that involved a notice of appeal that was filed before a timely sanctions motion. In that instance, the notice of appeal was ruled to be premature because the later-filed sanctions motion deprived the appellate court of jurisdiction. Thus, in this case, the First District concluded: “. . . [A]pellants’ notice of appeal, filed within 30 days of class counsel’s withdrawal of the motion for sanctions, was timely filed and vests this court with jurisdiction.”

The whole case, Rosen v. Ingersoll-Rand, No. 1-05-3587 (3/30/07), is available by clicking here.

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June 9, 2007

First District Illinois Appellate Rules Appeal From Denial Of Injunction Can Wait Until End Of Case

This case involved a dispute over the proceeds of a judgment debtor’s property. Certain of the creditors moved to allocate the proceeds of the sale of the property. The trial court denied the allocation motion.

Illinois Supreme Court Rule 307 allows orders granting or denying injunctive relief to be appealed within 30 days, as an interlocutory appeal. But the creditors who lost the allocation motion did not appeal within that deadline. They did timely appeal at the conclusion of the case. The issue was whether the court had jurisdiction to consider the appeal that did not comply with Rule 307.

The appellate court ruled that Rule 307 gave parties the option of appealing right away, but did not mandate an interlocutory appeal. “ . . . [W]hile Rule 307(a)(1) confers on parties the right to appeal certain interlocutory orders before entry of final judgment, the rule does not require that such an interlocutory appeal must be taken . . . Rather, the party has the option of waiting until after final judgment has been entered before seeking review of the interlocutory order . . .”

View the whole case, Decaro v. M. Felix, Inc., No. 1-05-2460 3/9/07), by clicking here.

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May 30, 2007

Trial Court Must Grant Extension Within 30 Days Of Judgment To Preserve Additional Time For Reconsideration Motion

The Singels were divorced in April 2006. Thirty days later, Thomas’s new lawyer filed a motion requesting an extension of time to file a motion to reconsider the dissolution judgment. That motion was denied in August. The trial court ruled that it did not have jurisdiction because neither a motion to reconsider had been filed nor an extension granted within 30 days of the dissolution judgment.

Thomas appealed that ruling in September, but Mary Beth fought appellate jurisdiction on the basis that the Notice of Appeal had not been filed within 30 days of the judgment. The appellate court agreed with Mary Beth and dismissed the appeal.

The Notice of Appeal clearly was filed more than 30 days after the judgment. So the disputed issue was whether Thomas’s motion for an extension of time to file the motion for reconsideration, which he filed within 30 days of the judgment, but was not ruled on until three months later, tolled the time to file a Notice of Appeal. The court ruled that Thomas’s motion did not extend the time to file; it had to be granted within that time.

Contrary to what respondent [Thomas] contends, it does not matter that he filed his motion or an extension of time within 30 days after the entry of the judgment. Under section 2-1203(a) [of the Illinois Code of Civil Procedure], an initial extension beyond the 30-day limit must be granted within that 30-day period.

See the whole case, IRMO Singel, No. 2-06-0897 (5/16/07), by clicking here.

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May 22, 2007

Appellate Jurisdiction Doesn’t Necessarily Depend On Final Assessment Of Financial Award

In this appeal of a workers’ compensation award, the Fifth District Illinois Appellate Court considered its jurisdiction on its own prerogative. The jurisdictional question arose because the arbitrator did not assign an amount for temporary total disability. Usually, when the amount of an award is not set, there is no appellate jurisdiction. However, “If ascertaining the proper amount of the award involves a simple mathematical process, we do not lack jurisdiction . . . “

The arbitrator in this case neglected to set the amount of the award in his order. But he did determine the employee’s average weekly wage, his marital status, and the number of children he had. “Given the findings, determining the proper amount of the award for temporary total disability on remand is a simple mathematical process. Accordingly . . . we do not lack jurisdiction over this appeal.”

Get the whole case, St Elizabeth’s Hospital v. Workers’ Compensation Comm’n., No. 05-06-0081 WC (2/21/07), by clicking here.

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May 14, 2007

Second District Illinois Appellate Dismisses Appeal By Non-Party Police Department

The Department of State Police denied Daniel Braglia a Firearm Owner’s Identification Card (FOID). Seeking reversal of that decision, pursuant to statute, Braglia sued the county state’s attorney’s office. His complaint did not make the State Police a party. Braglia requested, and received, an order directing the State Police Department to issue the FOID card. The State Police moved to vacate the order. When that motion was denied, the State Police appealed.

The State Police argued the trial court’s order was void because the Police Department was not named in Braglia’s complaint nor served with summons. On the other hand, Braglia claimed that the Police Department had no standing to appeal because it was not party to the original trial court proceeding. So Braglia moved to dismiss the appeal.

The appellate court granted the motion to dismiss. The court ruled that the State Police Department was not a necessary party because its function in issuing the FOID card was merely ministerial. The Department was no better suited than the State’s Attorney’s office to represent the public’s interest in the matter. The court concluded that the State Police Department lacked any interest that is “direct, immediate, and substantial and that would be prejudiced by the judgment or would benefit from reversal.”

Read the whole case, Braglia v. McHenry County State’s Attorney’s Office, No. 2-06-0572 (2/27/07), by clicking here.

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May 9, 2007

Second District Appellate Court Retains Jurisdiction Over Dismissal Order Despite Later Filed Sanctions Motion

In a third amended complaint alleging five causes of action, Time Savers sued LaSalle Bank for breach of contract, fraud, and the like. The trial court granted LaSalle’s motion to dismiss. Although the order disposed of the entire complaint, it nonetheless contained language from Illinois Supreme Court Rule 304(a) that permits appeal of an interlocutory order. (“. . . no just cause to delay enforcement or appeal of this order.”) Time Savers appealed the dismissal. After the Notice of Appeal was filed, LaSalle filed a motion in the trial court for sanctions against Time Savers.

Despite the pending sanctions motion, the appellate court ruled that it had jurisdiction to hear Time Savers’ appeal of the dismissal order. Oddly, the appellate court pointed to the Rule 304(a) language — which was not necessary to the order of dismissal because that order disposed of the entire case — as saving jurisdiction. “We retain jurisdiction, despite the filing of the motion for sanctions, because the notice of appeal was filed from the January 25, 2006 order [dismissing the third amended complaint], which contained Supreme Court Rule 304(a) language . . . that there is no just reason to delay enforcement or appeal.”

The entire case, Time Savers v. LaSalle Bank, No. 2-06-0198 (2/28/07), is available by clicking here.

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May 1, 2007

Motion To Reconsider Trial Court’s Decision Not A Timely Filed Post-Judgment Motion

Dawn Waddick was unhappy with the trial court’s decision in her divorce action. She moved for reconsideration of the court’s decision. Still unhappy with the result of that motion, she appealed the trial court’s decision.

The Second District Illinois Appellate Court dismissed the appeal on its own motion. The court distinguished between the trial court’s “decision” and the later-entered judgment. “. . . [W]hen a timely postjudgment motion has been filed, the notice of appeal must be filed within 30 days after entry of the order disposing of the postjudgment motion. Here, however, Dawn’s motion to reconsider does not qualify as a timely postjudgment motion . . . Although Dawn’s motion to reconsider was file within 30 days after the trial court’s written decision, it was filed before the entry of the final judgment. Accordingly, the motion could not extend the time for filing the notice of appeal.”

The whole opinion, IRMO Waddick, No. 2-06-0363, is available by clicking here.

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April 30, 2007

Pending Motion For Rule Renders Divorce Judgment Non-Appealable

The Carillos had a particularly difficult divorce case. Nine days before a judgment was entered, Carlos filed a motion for a rule to show cause why Anna should not be held in contempt of court. The judgment resolved all issues concerning custody and distribution of marital assets.

The motion for a rule was not resolved until five months later, when the court denied it. Carlos appealed within 30 days of the order on the rule, asking for review of the judgment. Anna moved to dismiss the appeal of the judgment. She argued that the pending motion for a rule did not change Carlos’s obligation to appeal the judgment within 30 days of the time it was entered. Because Carlos waited for the court to rule on the pending motion for a rule, Anna maintained, the appellate court did not have jurisdiction to rule on the appeal of the judgment.

The First District Appellate Court ruled that it did have jurisdiction to consider the judgment. “Because the order of January 18 [the judgment] lacked language making it immediately appealable, it did not become appealable until the court entered its July 11 order denying the motion for a rule to show cause.”

The case, IRMO Carrillo, No. 1-06-2274 (4/13/07), is available by clicking here.

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April 13, 2007

Order Naming “Special Administrator” Of A Trust Immediately Appealable

Scott and Debra, co-trustees of their late mother’s trust, could not get along. After motions by each to have the other removed, Debra requested that a “special administrator” (more accurately, a “trustee”) be appointed. Her motion was granted on March 10, 2006. The court named Kathleen Ryding the trustee, “until further order of court.”

Unhappy that Kathleen was named trustee, Scott appealed. But he didn’t file a notice of appeal until May 31, 2006, well more than 30 days after Kathleen was appointed. The Second District Illinois Appellate Court dismissed the appeal, ruling that it did not have jurisdiction over the untimely filed notice of appeal.

Two points in the opinion are important.

First, the court ruled that the appointment of the trustee was a final order, not interlocutory. Kathleen’s appointment was “similar to the administration of an estate and so capable of generating orders appealable under [Illinois Supreme Court] Rule 304(b)(1).”

Scott argued that Kathleen’s appointment “until further order of court” made the order non-final and thus not appealable. The court rejected that argument, and stated that the finality of an order does not depend on “how long the order will be in effect.” Setting a potential limit on the duration of the trustee’s appointment “did not mean that it [the court] would revisit the merits of the appointment.”

As of this date, the opinion, In re Estate of Russell, No. 2-06-0636 (3/28/07), has not been release for publication. It is available on Westlaw at 2007 WL 1041254. I'll link to it as soon as the case is officially published.

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April 12, 2007

7th Circuit Identifies Rules On Appealability Of Contempt Orders

The 7th Circuit Court of Appeals recently stated the rules regarding civil contempt orders are appealable interlocutory orders. The court ruled:

• “An order holding a litigant in contempt of court is not appealable while the litigation continues.”
• Resolution [of the contempt order] must await the final decision in the litigation. When the disobeyed order would be independently appealable under an exception to the final-decision rule, then the contempt citation also may be appealable.”
• “We say ‘may be’ rather than ‘is’ because this is an example of pendent appellate jurisdiction and, as Rimsat [v. Hilliard, 98 F.3d 956 (7th Cir. 1996)] recognized, that doctrine is shaky after Swint v. Chambers County Commission,” 514 U.S. 35 (1995).

In this case, the district court entered a permanent injunction, which resolved the case, while the interlocutory appeal over the contempt order was pending. The premature appeal of the contempt order became effective under Federal Rule of Appellate Procedure 4(a)(2).

Review the entire opinion in S.E.C. v. McNamee, No. 06-2150 (3/8/07), by clicking here.

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April 6, 2007

Denial Of Motion For Substitution Of Judge Not A Final Order

Bobby Lee Harrison was awaiting trial on charges of aggravated criminal sexual assault. He was unhappy with the trial judge, so he moved for substitution, claiming the judge was biased against him. The motion was denied, and Harrison appealed.

The First District Appellate Court granted the State’s motion to dismiss. The court ruled that the order denying the substitution motion was not final and appealable. “The denial of a motion for substitution of judge is not a final order . . . Rather, it has been described as ‘a step in the procedural progression leading to’ judgment.”

The whole opinion, People v. Harrison, 1-07-0732 (3/21/07), is available by clicking here.

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March 27, 2007

Illinois Supreme Court Asked To Review After-Hours Electronic Filing

If you’re filing electronically, and it’s after 4:30 p.m., what is the official date of the filing? Is it the actual date, albeit after the clerk’s office is closed, or is it the next day? The answer can make a big difference. Either you’re late or you’re on time. Either you invoke jurisdiction or you don’t. Maybe the court reads your filing or it doesn’t.

The Chicago Daily Law Bulletin (subscription required) yesterday reported that the Illinois Supreme Court has been asked to review this question in City of Chicago v. Illinois Commerce Commission, et al., No. 104361. The question in that case was whether an electronic filing for rehearing of the the ICC's decision preserved jurisdiction.

In the Northern District of Illinois, the federal court allows electronic filings till midnight to count on the day filed. In the Circuit Court of DuPage County, Illinois, where e-filing still is voluntary, an after-hours filing is considered filed the following day. The idea there is that parties who do not have access to e-filing should not be placed at a disadvantage.

The DuPage rule is deference to an age when there were no options to physically filing paper in the clerk’s office. Non-e-filers are not at a disadvantage. They simply have to recognize that the office closes at 4:30 p.m., and act accordingly – the same as always.

The only people who may have some trouble e-filing are non-lawyers who have small claims cases. Some mechanism can be worked out to give these folks an option to file paper.

But virtually all lawyers have access to a broadband connection, and thus to e-filing. Any lawyer who doesn’t have that option should get it immediately. It’s the cost — hopefully a declining one — of doing business.

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March 26, 2007

Mandate After Dismissal Of One Defendant Does Not Affect Appeal Against Other Defendant. No Laches or Estoppel Two Years After Appellate Briefs Are Filed.

A senatorial candidate sued a columnist and a newspaper for libel. The trial court dismissed the case, and the candidate appealed. After the appeal was filed, the candidate voluntarily dismissed the columnist, but maintained the appeal against the newspaper. A mandate was issued with respect to the dismissal of the columnist.

Two years passed after the briefs were filed, but there still was no decision from the appellate court. In response to the candidate’s motion to set the case for oral argument, the newspaper asserted that the issuance of the mandate deprived the appellate court of jurisdiction. The appellate court would have none of it, and ruled that the mandate as to the columnist did not deny the court of jurisdiction to consider the appeal against the newspaper.

Pointing to the two-year period after briefing was completed, the newspaper also argued that laches and estoppel, and the candidate’s lack of diligence, prevented the court from considering the appeal. The appellate court rejected that argument. The court admitted that the case improperly had been removed from the active docket, resulting in the delay. “The plaintiff is not to blame for the delay in the disposition of this appeal. We will not avoid consideration of the merits of this appeal predicated upon delay caused by this court.”

This seems fair. But now I’m wondering about those times when a clerk fails to mail a ruling to the parties. The courts have said that the administrative error there does not toll the deadline to seek rehearing or appeal. Shouldn’t the court use this same rationale and not punish a party because of an administrative goof-up by the court?

See the whole case, Seith v. Chicago Sun-Times, No. 1-03-1307 (1/12/07), by clicking here.

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March 16, 2007

Illinois Supreme Court Amends Appellate Rules

The Illinois Supreme Court ordered rule amendments today that affect the sticky question of the timely filing of a notice of appeal. That’s important because a notice of appeal must be filed timely to gain appellate jurisdiction. The court amended Illinois Supreme Court Rule 303, which sets out the general scheme for filing a Notice of Appeal after a final judgment. The amendments, effective May 1, 2007, add protection for a party who appeals prematurely in certain circumstances. Here are the major points:

• “A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Before this rule change, that same notice of appeal filed before entry of the judgment would be premature and would not invoke appellate jurisdiction.

• If an appeal is filed before a ruling on a timely filed postjudgment motion, “or before the final disposition of any separate claim, [the notice of appeal] becomes effective when the order disposing of said motion or claim is entered . . .” Before this change, that same notice of appeal would be premature and would not invoke appellate jurisdiction. The rule required that the premature appeal be withdrawn. A party could invoke appellate jurisdiction only with a new, timely notice of appeal.

• “. . . [W]here a postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.” Thus, a second notice of appeal, to include the denial of a post-trial motion will not be necessary. However, the amendment requires a second notice of appeal if the postjudgment order changes the original judgment or resolves a separate claim.

The Supreme Court also tidied up Rule 341 on the form of briefs. These amendments, effective immediately, require footnotes to be double-spaced and a minimum 12-point type to be used “throughout the document, including quoted material and any footnotes.”

The amended rules are available by clicking here.

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March 6, 2007

Second Try Results In Dismissal Of Appeal. Wrong Court Doesn’t Matter. That’s Just Venue.

Strategic Energy asked the Illinois Commerce Commission for authority to act as an alternative retail electrical supplier (ARES). The electrical workers union opposed Strategic, and over Strategic’s objection was allowed to intervene. The Commission ultimately granted Strategic’s application to operate as an ARES. All parties appealed, and moved to dismiss the others’ appeals.

Unhappy with the ruling allowing the union to intervene, Strategic filed a petition for direct review in the Second District Court of Appeals. The union and the Commission moved to dismiss that appeal on the basis that Strategic did not exhaust its administrative remedies. The first time the Second District ruled, it denied the motions to dismiss.

The union and the Commission filed their appeal of the ruling granting Strategic’s application. They filed their appeal in the Fifth District Court of Appeals. The Fifth District clerk transferred those appeals to the Second District, where they were consolidated with Strategic’s appeal. Strategic moved to dismiss them as a nullity, having been filed in the wrong appellate district.

Whew!

In their appellate briefs, the union and the Commission argued that Strategic’s appeal should be dismissed for failure to exhaust administrative remedies, the same argument the court rejected in the motions to dismiss. Strategic moved to strike the portions of the Union’s and the Commission’s briefs, asserting that the court already decided the question when it denied the motions to dismiss Strategic’s appeal.

The Second District Appellate Court denied Strategic’s motion, stating: “The denial of a motion to dismiss an appeal is not final, and the question of our jurisdiction to hear a case may be revisited at any time before final disposition of the appeal.” So the lesson here is never give up on your motion to dismiss, at least if it’s based on lack of appellate jurisdiction. The court can, and will if it wants to, look at the question more than once.

Strategic took it on the chin again when the court then dismissed its appeal of the ruling that allowed intervention. The Second District agreed with the Commission’s argument that Strategic could not appeal because it prevailed on its application to operate as an ARES. “The appellate forum is not afforded to successful parties who may not agree with the reasons, conclusions, or findings below . . . The union’s intervention did not result in any alteration of the complete relief awarded to Strategic, and we see no reason to depart from this general rule . . .”

Just in case that wasn’t enough, the Second District stated that Strategic’s appeal should be dismissed anyway for failure to exhaust administrative remedies. The court found that Strategic’s failure to file an application for rehearing before the Commission on the issue of intervention was fatal.

There was more for Strategic to endure. Its motion to dismiss the Commission’s and the union’s appeals was denied. Strategic argued that its appeal vested the Second District with appellate jurisdiction, and that the union’s and the Commission’s later appeals filed in the Fifth District therefore were null.

But the Second District rejected Strategic’s argument. The opinion contains a historical review of how the Illinois appellate districts came to comprise “one unitary appellate court.” The court relegated the later appeals in the Fifth District to a venue issue, and stated it was appropriate for the clerk there to transfer to the Second District for consolidation.

This was a tough appeal for Strategic. The court dismissed Strategic’s appeal of the intervention order. Strategic’s separate motion to dismiss the Commission’s and the union’s appeals was denied. And ultimately, the court reversed the Commission’s order that granted Strategic’s application to operate as an alternative electrical supplier. This is a must read for appellate practitioners. You can get the whole opinion, Strategic Energy v. Illinois Commerce Commission, Nos. 2-05-0685, 5-05-0465 (11/29/06), by clicking here.

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February 24, 2007

Nunc Pro Tunc Order Does Not Benefit From Illinois Rule 304(a) Language In Original Order

Two defendants had nearly identical names. One was Town of Fort Sheridan Company (TFSC); the other was Town of Fort Sheridan Operating Company (TFSOC). Plaintiff originally sued TFSC only. Later, but without leave of court, plaintiff filed an amended complaint that additionally named TFSOC.

TFSOC moved to dismiss on the basis that the amended complaint was a nullity because leave to file it had not been granted. The trial court granted the motion, but the order mistakenly identified TFSC as the dismissed party. This order did contain Illinois Supreme Court Rule 304(a) language, giving the parties 30 days to appeal the interlocutory order.

At TSFOC’s request, an order later was entered to correctly identify TSFOC as the dismissed party. That order was nunc pro tunc to the original dismissal order. It did not contain Illinois Supreme Court Rule 304(a) language.

Plaintiff did not appeal the dismissal in favor of TSFOC within 30 days of the original dismissal order. Instead, he litigated the case to conclusion against the original defendants. Then he appealed the dismissal of TSFOC within 30 days of the final judgment.

TSFOC moved to dismiss the appeal, arguing that plaintiff had to appeal within 30 days of the original order. TSFOC asserted that the later, corrected order, because it was nunc pro tunc, got the benefit of the Rule 304(a) language in the earlier, incorrect order. Plaintiff argued that the later order was an ordinary interlocutory order that could not be appealed until all claims against all parties were resolved.

The court ruled that it had jurisdiction to hear plaintiff's appeal from the dismissal of TSFOC. The Rule 304(a) language in the first dismissal order could not be imputed to the later, corrected order, even though it was nunc pro tunc. To become immediately appealable, the second order required its own Rule 304(a) language.

See the whole analysis in Pestka v. Town of Fort Sheridan Company, 1-04-2674 (1/22/07), by clicking here.

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February 19, 2007

No Federal Appellate Jurisdiction Where District Court Decides Who Gets The Money But Not How Much

Richard Magley gave security interests to secure a number of loans. The Small Business Administration was guarantor of some of the loans, including two advanced by Cadleway Properties and Ossian Bank. The SBA removed the entire dispute to federal court. Cadleway and Ossian both claimed to be the beneficiary of a guaranty of a loan on a certain property. On summary judgment, the federal district court ruled that the bank was the beneficiary. The district court did not rule how much money, if anything, Ossian was entitled to receive.

The appellate court ruled that the dispute between Cadleway and Ossian was not “sufficiently discrete” to create an appealable interlocutory order. Here’s the court’s explanation:

. . . [T]he district judge has not specified who is entitled to what relief. Cadleway did not begin this litigation in quest of a declaratory judgment about ownership; it wants money from Magley. So does the Bank. Does Magley owe any money on this guaranty? The district court has not decided. It has held so far that whatever Magley owes goes to the Bank rather than Cadleway, but it has not decided whether Magley owes even 1¢; for all we can tell, the lenders may collect in full from other sources and never draw on the guaranty . . . If Magley does owe something, the amount may be disputed and another appeal will be required. That’s why a decision that resolves a dispute about liability while leaving relief to be determined cannot be appealed under Rule 54(b).

The appeal was dismissed for lack of jurisdiction. The opinion also contains discussion about the propriety of continuing district court jurisdiction in view of SBA settlements, thus eliminating a federal question. Click here for the opinion, Cadleway Properties v. Ossian State Bank, No. 06-2033 (2/15/07).

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February 7, 2007

Is It Law Or Is It Fact? 7th Circuit Grapples With Jurisdiction In Qualified Immunity Case

Andrew Sallenger suffered from mental illness. He resisted an arrest and died during the altercation with police. His estate sued the police under 42 U.S.C. § 1983, including a claim for use of excessive force in violation of the Fourth Amendment. The police officers lost their summary judgment motion that was based on qualified immunity. Then they appealed. The estate moved to dismiss the appeal for lack of appellate jurisdiction. It argued that the appeal sought review of the district court’s findings of fact, impermissible under the collateral order doctrine.

Denials of summary judgment motions based on qualified immunity typically are treated as final judgments and are immediately appealable. This exception to the final judgment rule exists because of “the urgency of denials of qualified immunity.” However, the exception is limited by another rule: "[T]he Court of Appeals may consider only issues of law and may not consider any case which raises a genuine issue of material fact on appeal.”

In Sallenger's case, district court found that questions of material fact existed about whether excessive force was used, and denied the summary judgment motion. But on appeal, the police officers accepted the district court’s version of the facts for summary judgment purposes. The court thus ruled that it had appellate jurisdiction because it could "decide qualified immunity as a matter of law without review of the district court’s findings of facts.”

The entire case, Sallenger v. Oakes, No. 05-3470 (1/10/07), is available by clicking here.

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January 31, 2007

7th Circuit Says No Jurisdiction Of Appeal By Alien Who Failed To Ask BIA To Re-Open Case

Luis Padilla was a lawful permanent resident. He pleaded guilty to charges of criminal sexual abuse and obstruction of justice in Illinois. He left the U.S., and when he attempted to return in May 2000 the federal government began removal proceedings because of his criminal record. Those proceedings concluded in February 2004 when the Bureau of Immigration Appeals ordered Padilla’s removal to Mexico.

After an unsuccessful appeal of that order, Padilla was ordered to report for removal in May 2005. But just before that time, Padilla got the Illinois criminal convictions vacated. He then petitioned the federal district court for a writ of habeas corpus and asked that he be declared admissible to the United States. Padilla did not ask the BIA to reconsider its order of removal.

The district court denied Padilla’s habeas petition, and he was removed to Mexico. He appealed the denial of the petition. Meanwhile, Congress passed the REAL ID Act, which stripped federal district courts of jurisdiction to review final orders of removal by the BIA. The Seventh Circuit thus declared the district court proceedings a nullity, and took Padilla's appeal as a petition for review of the BIA’s removal order.

The statute requires a party to exhaust all legal remedies as a condition to a petition for review of the BIA’s order. The 90-day limit to re-open a case in the BIA passed in May 2004 (90 days after the February 2004 BIA removal order). Even though Padilla’s criminal convictions were not vacated until a year later in May 2005, the Seventh Circuit dismissed Padilla’s petition because he did not seek to re-open his case in front of the BIA.

The appellate court pointed to the statue that allows the BIA to re-open a case sua sponte at any time. The court ruled that Padilla had not exhausted his administrative remedies, depriving the court of jurisdiction to review the order.

The entire case, Padilla v. Gonzales, No. 05-2697 (12/7/06), in available by clicking here.

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January 29, 2007

Lack of Notice of Cross Appeal Does Not Deprive Illinois First District Appellate Of Jurisdiction

A condominium association sued the condo developer for an accounting of expenses incurred before turnover to the board. The trial court granted summary judgment to the developer and denied the association’s cross-motion for summary judgment. The association appealed from the summary judgment given to the developer, but did not file a Notice of Appeal from the denial of its own summary judgment motion. Nonetheless, the association asked the appellate court to reverse the developer’s summary judgment and to order that judgment be entered for the association.

The developer argued that the association’s failure to file a Notice of Appeal from the denial of its own summary judgment motion “precludes us [appellate court] from granting the relief requested by the Association in its briefs.” Rejecting the developer’s argument, the court stated:

The notice of appeal in the instant case identifies the order appealed from, specifying that it granted summary judgment in favor of Metro. We recognize that the notice does not specify that the order appealed from also denied the Association's motion for summary judgment. Furthermore, we recognize that the notice does not expressly seek reversal of that denial. Despite these omissions, we find that the notice fairly and adequately advised Metro of the nature of the appeal. The parties' cross-motions for summary judgment clearly addressed the same legal issues, and thus, appealing the grant of one of the motions was essentially the same thing as appealing the denial of the other. Metro does not assert that it was prejudiced by the Association's notice of appeal, and we find no basis for concluding that Metro's ability to defend itself on appeal was in any way compromised or prejudiced by the formal, nonsubstantive defects in the Association's notice of appeal.

This surprising result focuses on whether the developer was “fairly and adequately advised” of the nature of the appeal, and whether there was prejudice to the developer. The question of jurisdiction — i.e., whether the power of the appellate court was properly invoked — was relegated to secondary significance. It’s hard to imagine a defect in a Notice of Appeal more substantive than the complete omission in this case. It's also hard to imagine greater prejudice to the appellee/developer than being forced to defend an appeal in which the power of the court was not properly invoked.

Get the whole case, Metropolitan Condominium Association v. Crescent Heights, No. 1-06-0340 (11/22/06) by clicking here.

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January 23, 2007

Appellate Court Lacks Jurisdiction To Review Late Filed Asylum Application.

Ikama-Obambi, the daughter of an activist in an opposition party in the Republic of Congo, filed an application for asylum. But the application was filed more than one year after she entered the United States, thus violating the filing deadline. There are exceptions to the one-year rule for changed or extraordinary circumstances, but “Only the Attorney General … may decide whether an asylum application is timely or whether any exception to the deadline applies, and we [appellate court] lack jurisdiction to review these determinations.”

Ikama-Obambi’s petition for review was granted on other grounds. The court stated the immigration judge and the board of appeals “failed to make an explicit credibility finding, or even indicate why her testimony fails to carry her burden of proof …” The demand for corroborating evidence thus was improper.

See the whole case, Ikama-Obambi v. Gonzales, No. 06-1402 (12/11/06), right here (free account required).http://caselaw.lp.findlaw.com/data2/circs/7th/061402p.pdf

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January 18, 2007

First District Rules No Jurisdiction On Mother’s Appeal Of Unfitness Finding.

A mother was found to be an unfit parent. In the best interest of her child, the mother’s parental rights were terminated. The mother appealed the unfitness finding. The State argued lack of appellate jurisdiction.

The Illinois First District appellate court agreed it did not have jurisdiction. Here’s the court’s thinking:

In juvenile cases, subject to Supreme Court Rule662(a) … an adjudicatory order is generally not considered a final appealable order … Rather, it is the dispositional order from which an appeal properly lies …

In this case, respondent (mother) never filed a notice of appeal from either the trial court’s adjudicatory order or its dispositional order. We therefore lack appellate jurisdiction over respondent’s appeal of the trial court’s January 13, 2004 adjudicatory order and dismiss that portion of the appeal.

I read this to say that the appeal of parental fitness should be filed within 30 of the dispositional order, and that the adjudicatory order is irrelevant to the question of establishing appellate jurisdiction. Note that only the fitness question was dismissed. The court did consider the propriety of the termination of parental rights -- and affirmed the trial court’s termination. The case, In re Janir T., No. 1-06-0111 (12/12/06), is available here.

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January 10, 2007

To Reserve Is To Bifurcate -- Sometimes. Second District Dismisses Appeal Of Reserved Judgment.

Dawn Marjetko obtained a default judgment in her divorce case. The trial court entered a judgment of dissolution, divided property, granted custody of the children, set child support, and barred maintenance. At the same time, the trial court “reserved” on child visitation, post-high school education expenses, and maintenance.

Frank Marjetko appealed. Although Dawn did not dispute appellate jurisdiction, the court dismissed the appeal for lack of jurisdiction. The court stated: “Orders resolving individual issues are not appealable … until the court resolves the entire dissolution claim.” The trial court’s “reserves” resulted in a bifurcated judgment, which was not appealable.

The appellate court acknowledged that trial courts often “reserve” on issues they have decided but want to re-visit in divorce cases. “Such a use of the word ‘reserved’ nearly guarantees confusion. The [Illinois Marriage and Dissolution of Marriage] Act uses the word ‘reserves’ specifically for instances where the court is bifurcating judgment.”

The lesson here is: You cannot appeal a bifurcated judgment, and reserving judgment on essential questions renders the judgment nonfinal and not appealable. Don’t use the term “reserve” for questions the trial court decides but intends to revisit. Make sure your judgment states your exact intention.

See the whole case, IRMO Marjetko, by clicking here.

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January 2, 2007

Illinois Third District Appellate Reviews Maryland Jurisdiction

A consulting firm got a default judgment in Maryland against an Illinois law firm. The consulting firm then petitioned to register the judgment in Illinois. The law firm moved to dismiss based on lack of jurisdiction of the Maryland court. The Illinois trial court denied the motion and ruled that the Maryland court did have jurisdiction.

On appeal, the consulting firm argued that the law firm waived the jurisdiction argument because it did not raise it in the Maryland court. The Illinois Third District Court of Appeals ruled there was no waiver. Both the Illinois trial and appellate courts “may inquire into whether a sister state had subject matter and personal jurisdiction in the matter.”

Get the whole opinion in Highway Traffic Safety Associates v. Gomien and Harrop, No 3-05-0786 (11/27/06) here.

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December 26, 2006

Appealability of Immunity Order. Seventh Circuit Invites Re-Evaluation Of Jurisdictional Precedent.

The Seventh Circuit Court of Appeals dismissed an appeal by defendant prison guards for lack of jurisdiction. The guards first moved to dismiss the complaint based on official immunity. That motion was denied. Despite being interlocutory in character, denial of an immunity claim is appealable. But instead of appealing, defendants took discovery and then moved for summary judgment, also based on official immunity.

Defendants did appeal the denial of their summary judgment motion. But that appeal was dismissed because “public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint.”

The court discussed the propriety of Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 1986), disallowing appeal from a summary judgment motion based on immunity that mimicked a prior motion “because the maneuver is nothing but an effort to get around the time limit” to appeal the order denying the earlier motion. The court’s majority questioned the wisdom of Garvin, but declined to decide whether it should be overruled.

The whole opinion and dissent in Fairley v Fermaint, No. 06-2411 (2006), is available here.

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December 18, 2006

It Was Just Criminal

Dismissal of a complaint without prejudice is not appealable. It’s a common nonfinal interlocutory order. “However, the State may appeal an order dismissing an indictment for prosecutorial misconduct … even if the dismissal is without prejudice.” People v. Mattis, 854 N.E.2d 1149, No. 2-05-0586 (2006).

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December 15, 2006

Second District Appellate Reviews The First District. We’re All One Court.

Can the Second District Appellate Court review an order issued by the First District? Sure, if it’s an interlocutory order, not law of the case. Here’s what the Second District said about this:

“There is but one appellate court … Thus, a panel of the Second District of the Appellate Court revisiting, during the course of an ongoing appeal, an issue that a panel of the First District of the same court implicitly addressed in ruling on the motions to transfer is no different from a successor trial judge revisiting the interlocutory decision of the trial judge he succeeded. Consequently, we reject the foregoing arguments by Ameren, ComEd, and the ICC that the law-of-the-case doctrine precludes our dismissal of case Nos. 2--06--0149 and 4--06-- 0118.”

The case is Commonwealth Edison Co. v. ICC, 2-06-149 (2006), and you can get it here.

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December 12, 2006

Quick, File; No, Wait. Are You Covered? Fourth District Illinois Appellate Weighs In On Post-Dissolution Jurisdiction

Appeal from orders on post-dissolution of marriage petitions raises precarious problems. Suppose the court rules on a post-dis petition to modify maintenance, but leaves the child support-modification petition pending. Must you file your Notice of Appeal within 30 days of the maintenance ruling, or wait for a ruling on the support matter? If a ruling on support takes more than 30 days from the time of the maintenance ruling, will you lose the right to appeal maintenance?

The answer is “perhaps.” It depends on which district you’re in. The 2nd and 4th Districts say wait. But if you’re in the 1st, you better get your Notice of Appeal on file pronto.

IRMO Gaudio out of the 4th District recently broke the tie. Gaudio ruled that “Even if the order dismissing respondent’s petition [for modification of maintenance] constituted a final order, it was not immediately appealable without the required Rule 304(a) finding.”

Click here for IRMO Gaudio, No. 4-05-0908 (4th Dist. 2006), which contains good summaries of the two prior competing cases. Click here for IRMO Carr, 323 Ill. App. 3d 481, No. 1-00-0997 (Ist Dist. 2001), and here for IRMO Alyassir, 335 Ill. App. 3d 998, No.2-01-1096 (2nd Dist. 2003).

One more thing about IRMO Gaudio. Susan Gaudio also appealed from the order on child support. She then moved to consolidate the earlier maintenance appeal with the child support appeal. The court denied the motion to consolidate, and continued to deny jurisdiction over the maintenance appeal. Apparently Susan did not include the maintenance order in the later Notice of Appeal.

So if all of this leaves you uneasy — and you’re not human, or a lawyer, anyway, if it doesn’t — then you need to figure out how to protect your client and yourself. Here’s what I suggest: Include the earlier order in the second Notice of Appeal. Then you can move alternatively to consolidate or dismiss the first appeal, and explain to the court that you’ve done it that way because the case law is inconsistent. The worst that could happen is that your motion is denied, and then your opponent moves to dismiss. But at least you’re left with an argument that one of the two Notices of Appeal confers appellate jurisdiction, and they both were filed timely.

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December 11, 2006

Fusspots and Nitpickers

Judge Posner wonders whether the 7th Circuit is these for requiring complete jurisdictional statements in a diversity case. He doesn’t think so, because:

. . . the fact that limits on subject matter jurisdiction are not waivable or forfeitable — that federal courts are required to police their jurisdiction — imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.

So don’t short FRAP 28 if you don’t want to be called on the carpet, and maybe ordered to take a class on federal jurisdiction.

Judge Evans thought the problems with the jurisdictional statements were “low misdemeanors,” not the felonies the majority saw.

See the whole opinion in Smoot v. Mazda Motors of America And here is Howard Bashman’s (How Appealing blogger) opinion piece in Law.Com suggesting that Judges Posner and Easterbrook may well be fussing and nitpicking.

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