Appellate Jurisdiction

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.

September 23, 2011

Insured’s Second Appeal Dismissed For Lack Of Jurisdiction

by Steven R. Merican

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.

September 15, 2011

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

by Steven R. Merican

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.

August 26, 2011

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

by Steven R. Merican

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.”

August 24, 2011

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

by Steven R. Merican

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:

August 11, 2011

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

by Steven R. Merican

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 …”

July 30, 2011

Order Dismissing Post-Dissolution Custody Petition Immediately Appealable

by Steven R. Merican

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.

July 24, 2011

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

by Steven R. Merican

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.

May 29, 2011

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

by Steven R. Merican

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.

April 16, 2011

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

by Steven R. Merican

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: