Illinois Appellate Lawyer Blog

Marsha Dienstag sued her doctor, Lawrence Margolies, for medical malpractice. She claimed that Margolies did not timely diagnose her cancer. A jury agreed, and gave her a verdict for more than$5.9 million.

Margolies had an “assignment and forbearance” contract with Dienstag. Dienstag agreed not to seek payment of the judgment in excess of Margolies’s malpractice policy limits directly from Margolies. In return, Margolies assigned his claim against his malpractice insurer for “bad faith refusal to settle” within Margolies’s policy limits to Dienstag.

Margolies appealed the judgment. Dienstag pointed to the “forbearance and assignment” agreement and asked the court to dismiss the appeal. She argued that the agreement “renders the instant appeal moot because there is no longer a ‘live controversy’ between the parties.”

The First District Illinois Appellate Court disagreed with Dienstag. The court ruled that Margolies still could be liable to his insurer for an amount in excess of his policy limits, so his appeal was not moot. Here is what the court said:

… [I]t is in Dr. Margolies' interest to seek reversal or reduction of the judgment. Although the terms of the assignment and forbearance agreement would preclude the Dienstags from seeking payment of the excess judgment from Dr. Margolies, he could face financial liability from his insurance carrier if it is required to pay the entire judgment. Moreover, there is nothing contained in the assignment and forbearance agreement that requires Dr. Margolies to drop this appeal. Therefore, we conclude that the present appeal is not moot.

The appellate court ultimately affirmed Dienstag’s judgment. The whole case, Dienstag v. Margolies, No. 1-06-1558 (9/30/09), is available by clicking here.

Clyde Engle was locked in a battle over payment of attorney fees to Foley and Lardner. Foley represented Engle in federal court litigation involving an insurance liquidation. Engle’s unpaid bill was for more than $1.8 million.

Engle agreed to pay Foley over time, and pledged his interest in bank stock as security. Foley thus took possession of some of the stock. Then Engle sued Foley and asked for a preliminary injunction preventing Foley from selling the stock. The trial court first denied Engle’s request. About two weeks later, the trial court issued a temporary restraining order prohibiting Foley from selling the stock for seven days. The court stated it would issue a preliminary injunction to that end if Engle would post a bond for the amount he owed as surety. That same day, Engle appealed the original denial of a preliminary injunction.

But Engle did not post the bond. Foley argued, and the First District Illinois Appellate Court agreed, that Engle’s appeal was moot because the trial court gave him the opportunity to get what he asked for − an injunction preventing Foley from selling the bank stock. “Having secured what they [Engle and his wife] basically sought, their appeal must be dismissed.”

Engle argued that the trial court lost jurisdiction before entering the second order because he filed his notice of appeal first. But the appellate court rejected that argument because the order was not time-stamped, and Engle could not prove he filed before the trial court ruled. “It is quite conceivable that the court entered this order before Engle and Siobhan [wife] filed their notices of appeal. Engle never cited to anything in the record, such as a transcript or other material that would prove up his claim; thus, without more, we cannot accept it.”

Read the whole opinion, Engle v. Foley and Lardner, Nos. 1-08-2761, 1-08-2762 (7/10/09), by clicking here.

A trial court committed Alfred H.H. to the McFarland Mental Health Center in Illinois. Alfred appealed the commitment order. But he was discharged from McFarland while the appeal was pending, so the Illinois Appellate Court dismissed the appeal because it was moot.

Alfred appealed the dismissal to the Illinois Supreme Court. The supreme court rejected all five of Alfred’s arguments, and agreed the appeal was moot and was properly dismissed. Here is how the Illinois Supreme Court assessed the mootness arguments.

1. Alfred argued that the Illinois Mental Health Code gave him a right to appeal. But the court ruled that the Code only gave Alfred the right to appeal the commitment order “in the same manner as in other civil cases.” Alfred’s appeal, just like any other, was subject to the rules of mootness. “…[M]ootness is a factor that the courts will consider in determining whether it is appropriate to decide a given case.” The supreme court also ruled that there was not a case law exception to the mootness doctrine for commitment cases.

2. The supreme court ruled this case did not fall within the public interest exception to the mootness doctrine. The court agreed that “mental health cases do have the potential to deprive respondents of significant liberties … [but] that does nothing to examine the public nature of the issue presented within this appeal.” Alfred’s case, according to the court, involved the sufficiency of the evidence to commit him, and “[s]ufficiency of the evidence claims are inherently case-specific reviews that do not present the kinds of broad public interest issues” that satisfy this exception to the mootness doctrine.

3. Nor did this case fall within the exception of “capable of repetition yet evading review.” Alfred’s case was fact-specific, not a constitutional or statutory challenge. The court said there was “no clear indication of how a resolution of this [Alfred’s] issue could be of use to respondent [Alfred] in future litigation.”

4. The supreme court also stated that Alfred’s case did not invoke the collateral consequences exception. The court acknowledged that the collateral consequences exception can apply in mental health cases. But in Alfred’s case, the exception did not apply because “there is no collateral consequence that can be identified that could stem solely from the present adjudication. Every collateral consequence that can be identified already existed as a result of respondent’s previous adjudications and felony conviction.”

5. Alfred also argued the court should consider his appeal based on general policy considerations. Alfred claimed a right to appeal “because it is ‘therapeutic to provide procedural justice to mental health respondents.’” The supreme court rejected that argument, stating, “It is not appropriate for this court to create a new exception [to the mootness doctrine] simply because we believe that it may have tangential benefits to respondents in mental health cases.”

The whole opinion, In re Alfred H.H., No. 106616 (5/21/09), is available by clicking here.

Taren Coupland neglected to appear for her trial, so in her absence she was found guilty of possession of drug paraphernalia. A few days later, Taren was sentenced to 24 months of court supervision. Taren also was required to have a drug/alcohol assessment within 30 days, and to complete a remedial program within six months.

A status hearing was set for about a month later, but Taren neglected that hearing, too. When she did appear for a hearing some 90 days later, Taren told the court she had not completed the drug/alcohol assessment. The trial court ruled that Taren was in contempt of court and that she was to be jailed until she completed the evaluation. Taren could purge the contempt order by completing the drug/alcohol evaluation.

Taren asked the court to reconsider the contempt ruling. She argued that the contempt hearing, coming without notice, was a violation of her due process rights. But by the time the trial court heard her request for reconsideration, Taren had completed the evaluation and was not in custody. The trial court thus denied her request for reconsideration because, the court said, it was moot.

Taren appealed. The State argued that the appeal was moot for the same reasons the trial court found the reconsideration request to be moot. But the Third District Illinois Appellate Court disagreed. Even though the actual controversy was moot, the court took the case because it fell into the “public interest exception” to the mootness doctrine. Here is what the appellate court stated:

Even though an issue is moot at the time of the appeal, some reviewing courts will exercise their jurisdiction to controversies under the public interest exception to the mootness doctrine. This public interest exception applies when the issue is public in nature, requires authoritative guidance from the reviewing court, and is likely to recur …

"Public nature" questions include issues affecting a large number of the general public or issues of public importance … First, the issue at hand involves the enforcement of a criminal sentencing order of supervision in Warren County. Potentially, the court may be called upon to enforce similar conditions in other court orders affecting offenders in a multitude of cases. Second, contempt proceedings invoke a potential contemnor's due process rights requiring authoritative intervention to guide future proceedings to enforce the circuit court orders in Warren *453 County … Third, the likelihood of recurrence is great and is not limited to the complaining party in this appeal. The public interest exception considers potential recurrences to any person … We conclude the requirements of the public interest exception exist, and accordingly, we shall decide defendant's appeal.

In the end, the appellate court ruled that Taren’s due process rights had been violated. Get the whole case, People v. Coupland, No. 3-07-0338 (12/20/08), by clicking here.

Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor’s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose. The trial court ruled that the case presented a political question, not a question of law that the court could legitimately decide. So the trial court dismissed the case.

Caro appealed, but before the appellate court considered the case, the Director awarded more than $9 million in grants for stem cell research. Caro wanted the appeal heard anyway, “to work out the appropriate corrective remedy.” The Director wanted the appeal dismissed. He argued that the case was moot because the money already had been disbursed.

The First District Illinois Appellate Court agreed that the case was moot. The appellate court ruled that it could not give Caro what he wanted. Here’s what the court said:

Here, in our view, it is not possible for this court to grant the plaintiff the relief requested on appeal. We cannot reverse the trial court's dismissal and remand this case for further proceedings on a complaint that sought … to prevent the defendant, Dr. Whitaker [Director], from awarding the research grants. As the defendant states and the plaintiff concedes, the grants were awarded in 2006. Simply put, "[a] court cannot prevent what has already been done."

Caro argued that the case fell under the “public interest” exception to the mootness doctrine. But the appellate court disagreed because "this is not a case where "the magnitude or immediacy of the interests involved warrant[s] action by the court."

Nor was this the kind of case in which “the situation presented … is likely to recur.” The appellate court explained: “There is no indication in this record that the Governor has or intends to use executive orders in the future to create another new agency within the Department for the same purpose as in this case. Therefore, there is little likelihood that the precise circumstances that gave rise to the plaintiff’s instant complaint would recur, requiring us to intervene.”

So the appellate court dismissed Caro’s appeal. Read the whole case, Caro v. Whitaker, No. 1-06-1243 (11/4/08), by clicking here.

In re Alfred H.H. involved a patient who was involuntarily admitted to the McFarland Mental Health Center in Illinois. Alfred appealed the trial court’s ruling that subjected him to the involuntary admission.

The trial court’s judgment was limited to a 90-day involuntary admission. That time had passed before the case reached the appellate court. So Alfred never got a hearing on appeal because the Fourth District Illinois Court of Appeals dismissed the appeal as moot.

The court ruled that Alfred’s appeal did not raise any of the exceptions to the mootness doctrine:

1. No public interest exception: “In this case, respondent challenges only (1) the sufficiency of the evidence presented to warrant his involuntary admission and (2) whether his hospitalization was the least-restrictive treatment alternative. The answer to either challenge in this particular case does not constitute a question of public importance. Nor would either answer provide an authoritative determination to guide public officers in the performance of their duties in mental-health cases. That is because orders involving involuntary admissions of other respondents undoubtedly will be entered and challenged based on the particular facts presented in such cases. In other words, resolving routine sufficiency-of-the-evidence arguments will rarely have precedential value. Accordingly, we conclude that respondent has failed to clearly establish the criteria necessary to satisfy the public-interest exception to the mootness doctrine.”

2. No capable-of-repetition exception: “Although respondent has a history of mental illness and his psychiatrist had previously treated him on several occasions during hospitalizations, nothing in the record shows that his prior hospitalizations were as a result of petitions for involuntary admission. More importantly, even if another petition for involuntary admission were filed as to respondent, he would not be subject to the exact same action. Instead, any future involuntary-admission petition would involve the same party but a different action under different circumstances. In particular, the evidence presented in support of a future petition would be different than the evidence presented in support of the petition in this case. Accordingly, we conclude that respondent has failed to clearly establish the second criterion necessary to satisfy the capable-of-repetition exception to the mootness doctrine.”

The appellate court rejected a standard exception to the mootness doctrine for all cases involving involuntary mental-health admission and involuntary mental-health treatment. The court favored an analysis under the standard rules.

The court also rejected a “collateral consequences” exception to the mootness doctrine. That exception refers to the possibility that “an adjudication could return to plague a respondent in some future proceedings and could affect other aspects of the respondent's life.” The appellate court stated: “We now believe that the collateral-legal-consequences exception to the mootness doctrine has no place in determining whether an issue is moot in a mental-health case. Regardless of whether a previous involuntary-admission order as to a particular respondent is upheld or reversed on appeal, that respondent's history of mental illness and involuntary treatment will continue to exist, and will be a factor that treating medical personnel may consider. It is that history that will possibly follow the respondent, not the fact of an adjudication.”

Compare this case to In re Leslie H., No. 2-05-0648 (1/5/07) (Our post of 1/11/07) and In re Kevin S., No. 5-06-0677 (4/2/08) (Our post of 6/24/08), both ruling that the mootness doctrine did not preclude appeals of involuntary admissions to mental health facilities.

This whole case, In re Alfred H.H., No. 4-07-0491 (4/28/08), is available by clicking here.

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

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

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

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.