Illinois Appellate Lawyer Blog

This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment.

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

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

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

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

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

I reported on Felzak v. Hruby, a grandparent visitation case out of the Second District Appellate Court, in December 2006. Then, the important point concerned waiver on appeal of a due process argument. Here is the original post on the case.

Now, on appeal to the Illinois Supreme Court, the pertinent issue for appellate practitioners is mootness. Ralph and Sondra were held in contempt for disobeying an order permitting grandparent visitation. They wanted to purge the contempt order. While the appeal was pending, Katie, Ralph and Sondra’s daughter, turned 18 years old.

The Illinois Supreme Court ruled that “Because Ralph and Sondra can no longer compel Katie to visit Geraldine [grandmother], the rationale for the civil contempt order in this case has been lost. When a situation such as this occurs, the appropriate disposition of the case, and the action we take here, is to vacate the judgments of the lower courts and remand the cause with instructions to dismiss … (‘As a requirement of due process, then, a civil contempt order will be vacated once it is evident that the sanction imposed is no longer fulfilling its original, coercive function’). Vacating the contempt judgments below leaves nothing before us with respect to the contempt order to review. Those issues raised in the contempt proceedings are necessarily moot.”

Read the whole case, Felzak v. Hruby, No. 103755 (9/20/07), by clicking here.

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.

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.

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.