Appellate Jurisdiction

April 2, 2011

Illinois Supreme Court Dismisses And Remands Medical Malpractice Appeal Taken Under Voided Statute

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

March 19, 2011

Injured Officer’s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

by Steven R. Merican

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

February 24, 2011

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

by Steven R. Merican

David and Rojean Molloy were battling for custody of their two children.

The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David’s lawyer from attending the social worker’s evaluation session with David. The trial court agreed and barred David’s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

February 14, 2011

Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

by Steven R. Merican

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

January 27, 2011

Victory On Petition Before Labor Board Dooms Union’s Appeal Of Board’s Rationale

by Steven R. Merican

A police labor union wanted to be the exclusive representative of “all aviation security sergeants employed by the City of Chicago.” Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union’s petition. But the union was not completely satisfied because the Board ruled that the sergeants were not “peace officers,” a legal designation under the Illinois Labor Relations Act that affects the sergeants’ bargaining status.

Both Chicago and the union appealed ― Chicago to get the “exclusive representation” ruling reversed; the union to get the sergeants-are-not-peace-officers ruling reversed.

The First District Illinois Appellate Court affirmed the “exclusive representation” ruling, but dismissed the union’s “peace officer” appeal. The appellate court ruled that the union could not appeal because it won the right to be the exclusive representative, which is what it asked for in its petition. The union’s disagreement with some of the Board’s peripheral rulings was not a basis to appeal. Here is how the appellate court explained it:

December 19, 2010

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

by Steven R. Merican

While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

November 28, 2010

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

by Steven R. Merican

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov’s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein’s libel case. Among other things, Krislov asserted immunity from Stein’s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov’s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov’s appeal. The appellate court stated (1) the denial of Krislov’s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

November 23, 2010

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer’s Sanctions Request

by Steven R. Merican

Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident. The Yunkers felt they were entitled to coverage under the insurance policy, so they sued Pekin.

The trial court agreed with Pekin, and gave the insurer summary judgment, Four days later, the Yunkers appealed the trial court’s ruling.

About two and one-half weeks after that, Pekin filed a request for sanctions against the Yunkers in the trial court. The trial court denied Pekin’s sanctions request a few weeks later. Pekin appealed that ruling. Pekin also asked the appellate court to dismiss the Yunker’s appeal. Pekin argued that its request for sanctions rendered the Yunker’s appeal of the summary judgment premature, resulting in no jurisdiction for the appellate court over the Yunker’s appeal.

October 28, 2010

State May Appeal No-Probable-Cause Order In Sexually Violent Person Commitment Action

by Steven R. Merican

Tommy Hardin had been convicted of aggravated sexual crimes three times. Just before his mandatory supervised release period, the State petitioned for Hardin’s civil commitment under the Illinois Sexually Violent Persons Commitment Act.

After an evidentiary hearing, the trial court ruled there was no probable cause to believe Hardin was a sexually violent person who was likely to re- offend. So a trial on the State’s commitment petition was not held, and the court ordered Hardin to be released and placed on supervision.

The State appealed the finding of no probable cause. Hardin asked the appellate court to dismiss the appeal for lack of jurisdiction. He argued alternative reasons: (1) the Sexually Violent Persons Commitment Act does not authorize the State to appeal a finding of no probable cause; (2) the order in this case was not final and appealable. The Second District Illinois Appellate Court denied Hardin’s request to dismiss, and reversed the trial court’s finding of no probable cause.

October 20, 2010

No Appellate Jurisdiction Over Landlord Not Explicitly Identified On Notice Of Appeal

by Steven R. Merican

Andrea Coleman sued Christina Udoh and her husband, Nsikak Akpakpan, for violating the Chicago Residential Landlords and Tenants Ordinance. The case was arbitrated, and Coleman was awarded $20,600. The trial court barred Udoh and Akpakpan from rejecting the arbitration award, so they appealed.

Representing herself, Udoh filed her own notice of appeal. She did not write Akpakpan’s name on the notice. Nor did he file his own notice of appeal. Coleman claimed there was no appellate jurisdiction to hear Akpakpan’s appeal. The First District Illinois Appellate Court agreed. Here’s the appellate court’s explanation:

Where the notice of appeal clearly names only one party as appellant, the court considers the appeal to be taken only by the named party … In the absence of a separate notice of appeal filed by Mr. Mr. Akpakpan and the failure of the notice of appeal filed by Ms. Udoh to name him as an appellant and to include his signature or the signature and address of his attorney [required by Illinois Supreme Court Rule 303(b)(4)], Mr. Akpakpan is not a party to this appeal. We will consider this appeal only as to Ms. Udoh, and the judgment against Mr. Akpakpan will not be affected by its outcome.