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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January 22, 2011

Law-Of-The-Case Doctrine And Appellate Mandate Direct Trial Court’s Actions On Remand

The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home.

Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers. The Bjorks asked for declaratory judgment that the conservation easement could not be amended. The trial court ruled that two of the amendments were valid.

The Bjorks appealed, and the appellate court ruled (1) the conservation easement could be amended, (2) the two amendments the trial court said were valid in fact were not because they directly conflicted with the easement, and (3) the Drapers’ violations of the easement were not intentional or culpably negligent. The appellate court directed the trial court “to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which if any, may be retained.’”

After another hearing, the trial court ruled that one of the three alterations could be retained. The Bjorks appealed again. The Bjorks arguments included: (1) the trial court should not have balanced the equities to decide which property alterations could remain; (2) the appellate court’s mandate from the first appeal did not require the trial court to accept the appellate ruling that the Drapers were not culpably negligent.

The Second District Illinois Appellate Court rejected both arguments.

Relying on the law-of-the-case doctrine, the appellate court ruled the trial court was obligated to balance the equities. The court stated: “… [T]he law-of-the-case doctrine bars relitigation of an issue previously decided in the same case … Questions of law that are decided on a previous appeal are binding on the trial court on remand as well as on the appellate court in subsequent appeals … The two recognized exceptions to the law-of-the-case doctrine are: (1) when a higher reviewing court makes a contrary ruling on the same issue subsequent to the lower court’s decision, and (2) when a reviewing court finds that its prior decision was palpably erroneous.”

In this case, there was no ruling from a higher court and the appellate court “declined plaintiffs’ [Bjorks’s] invitation” to find its earlier ruling to be erroneous. So the law-of-the-case doctrine required the trial court to apply a balancing test to the Drapers’s property alterations.

The appellate court also ruled that its mandate required the trial court to accept the appellate ruling that the Drapers were not culpably negligent. Here is how the appellate court explained it:

When a judgment of a trial court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions … Generally, the correctness of a trial court’s action on remand is to be determined from our mandate, as opposed to our opinion … This proposition, however, is based upon the assumption that the direction contained in our mandate is precise and unambiguous.

The appellate court ruled the trial court “did not have discretion to reassess whether the defendants’ [Drapers] actions were intentional or culpably negligent” because the appellate court’s earlier mandate already disposed of the question.

In the end, the appellate court affirmed the trial court. Read the whole opinion, Bjork v. Draper, No. 2-09-1345 (9/22/10), by clicking here.

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