Articles Posted in Appellate Jurisdiction

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.