Appellate Jurisdiction

October 10, 2010

Trial Court’s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein. Unhappy with the result in the trial court, Bernstein appealed. Grazian filed a counter appeal.

Under Illinois Supreme Court Rule 309, Bernstein asked the trial court to dismiss his appeal. The trial court obliged, but Bernstein told the appellate court his request to dismiss his appeal was a mistake. He asked the appellate court to reinstate his appeal. A single judge of the appellate court obliged that request . But Grazian asserted the earlier dismissal by the trial court deprived the appellate court of jurisdiction to reinstate the appeal.

The First District Illinois Appellate Court agreed with Grazian. Here is the court’s rationale:

September 12, 2010

Notice Of Appeal Fails To Confer Appellate Jurisdiction In Legal Malpractice Case

by Steven R. Merican

The beneficiaries of the Victoria R. Fitch Trust sued McDermott Will and Emery, the law firm that drafted Victoria’s estate plan, and Dietrich and Dietrich, the accounting firm that advised Victoria. The beneficiaries alleged a variety of legal claims for mishandling the estate plan.

The first count of the Complaint was against Dietrich only. The second count was against Dietrich and McDermott. The third was against McDermott only. The trial court dismissed all three counts because they were not filed before the statute of limitations expired.

The beneficiaries appealed. But their Notice of Appeal stated only that they were appealing the dismissals of Counts I and II against Dietrich. The Notice of Appeal did not mention Counts II and III against McDermott.

August 22, 2010

Grandparents’ Appeal Of Dismissal Of Adoption Petition And Severance Order Lacks Jurisdiction. Appeal From Order Striking Response To Foster Parents’ Adoption Petition Allowed

by Steven R. Merican

After SG’s parents lost their parental rights, the Hixsons (grandparents) petitioned to adopt the child. Five days later, in a separate case, the Bakers (foster parents) also petitioned to adopt SG. The Bakers also asked the trial court to consolidate the two cases. Over objection by the Hixsons, the cases were consolidated.

Two weeks later, the Illinois Department of Children and Family Services entered the consolidated case and consented to the Bakers attempt to adopt SG. DCFS also asked the trial court to dismiss the Hixsons’ adoption petition. The trial court did so in late September 2009.

The Hixsons wanted to appeal the dismissal of their adoption petition. In early November 2009 the trial court issued a Rule 304(a) finding (no just reason to delay enforcement or appeal of an order that disposes of fewer than all parties and all issues). The Bakers also asked to sever the two cases they previously asked to consolidate.

July 27, 2010

“Sellers Exception” Dismissal In Airplane Crash Product Liability Case Not Final And Appealable

by Steven R. Merican

Illinois law allows the seller of a product to get out of a product liability lawsuit after identifying the manufacturer of the product. But even if the dismissal is with prejudice, the dismissal order is not final and immediately appealable. The First District Illinois Appellate Court recently said it did not have jurisdiction to consider the injured parties’ appeal from a dismissal of a seller of an aircraft that had identified the manufacturer.

Section 2-621 directs the dismissal of the seller, unless the seller had knowledge of the product defect or participated in the design of the product. But it also allows for the seller to be brought back into the case if an action against the manufacturer would be, as the court stated, “impossible or unavailing.”

Because the seller was subject to being reinstated, the dismissal order did not dispose of the rights of the parties. The order therefore was not final, and not appealable at that time. “Until plaintiff files and the [trial] court rules on a motion for vacation of the order dismissing plaintiff’s strict liability claims against Air 1st [product seller] and reinstatement of those claims pursuant to section 2-621, we have no jurisdiction to consider the court’s dismissal of those claims.”

May 19, 2010

Incorrectly Coded Notice Of Appeal Sufficient To Give Federal Appellate Court Jurisdiction

by Steven R. Merican

Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court’s mandatory electronic filing system, Vince’s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed. Vince’s lawyer identified the notice of appeal with the wrong code.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

May 12, 2010

Dismissal For Want Of Prosecution Appealable After Time For Refiling Expires

by Steven R. Merican

The First District Illinois Appellate Court recently stated the rule for when a dismissal for want of prosecution becomes final and appealable.

Our supreme court has recognized that if a plaintiff’s action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater … A DWP becomes a final order only when the section 13-217 period for refiling the action expires … Accordingly, a DWP remains an unappealable interlocutory order until plaintiff’s option to refile expires.

The whole case, Jackson v. Hooker, No. 1-08-3042, (1/29/10), is here for the clicking.

May 5, 2010

Voidness Of Judgment Considered Despite Late Appeal

by Steven R. Merican

American Access Casualty Company insured Aaron Hersey. GEICO won a negligence case against Hersey. Trying to satisfy its judgment, GEICO brought a supplemental proceeding to discover the assets of American Access Casualty Company.

The trial court entered a judgment for GEICO against AACC for the amount GEICO won against Hersey. About five months later AACC asked the trial court to vacate the judgment. But the trial court refused. AACC asked again a month later, arguing that GEICO’s judgment was void because (1) AACC’s lawyer was not given notice of the hearing at which the judgment was entered and (2) the judgment was based on a misrepresentati0n. The trial court again refused to vacate the judgment.

AACC appealed, but GEICO asked the appellate court to dismiss it for lack of appellate jurisdiction. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider the merits of AACC’s appeal because neither the request to vacate the judgment nor the appeal were filed within the required 30 days of the judgment.

January 16, 2010

Jurisdiction Okay Despite Candidate’s Appeal Under Wrong Rule

by Steven R. Merican

Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo’s appointment went through there was less than 28 months left in Aiello’s term.

Under the Illinois Election Code, a person appointed to fill a vacancy completes the term if less than 28 months remain. If more than 28 months remain in the term, then the person appointed stays in office only until the next election. The next election was in 2008, but the Aiello term did not expire until late 2010. The question was when the clock started ticking – when Aiello passed away or when Biondo was appointed.

The Democratic Party submitted Carolyn Gardner as a candidate to run for the Aiello vacancy in the November 2008 election. Believing Biondo could complete Aiello’s term, and that there should not be an election for the seat until 2010, the Republican Party did not submit a candidate for the office. Nor did Biondo apply to run.

December 20, 2009

No Appellate Jurisdiction Over Trustee’s Appeal Filed Before Final Distribution Of Assets

by Steven R. Merican

After Eleanor Miller died, Melodee Miller-Hanson became the successor trustee of Eleanor’s trust. Melodee got into a dispute with the other beneficiaries of the trust, and they ended up suing each other. The beneficiaries wanted Melodee removed as trustee; Melodee wanted the beneficiaries disinherited.

Melodee’s counterclaim was dismissed. And with “a few specific exceptions that were to be assessed against Melodee’s final distribution share,” the trial court ruled against the beneficiaries in their claim against Melodee. Melodee later asked the court to grant her litigation expenses, which the court largely denied.

Under Illinois Supreme Court Rule 304(b)(1) [allowing an interlocutory appeal from a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party], Melodee appealed a number the trial court’s rulings in connection with her requests for fees and costs. But she filed her notice of appeal before the court ruled on a final distribution of the assets of the trust.

December 12, 2009

Notice Of Appeal More Than 30 Days After 304(a) Finding Still Vests Appellate Jurisdiction

by Steven R. Merican

This insurance coverage case has a unique twist on when an interlocutory order under Illinois Supreme Court Rule 304(a) may be appealed.

John J. Rickhoff Sheet Metal Co. filed a third-party complaint against Meridian Mutual Insurance Co and the Horton Group, Inc. Meridian and Horton asked the trial court to dismiss Rickhoff’s third-party complaint, which the court did.

Rickhoff then asked the court to reconsider the dismissals. The trial court denied Rickhoff’s request as to Meridian, and entered Rule 304(a) language [no just reason to delay enforcement or appeal] permitting an interlocutory appeal within 30 days. The trial court took the reconsideration request as to the Horton dismissal under advisement. More than 30 days later, the court also denied that request to reconsider, and made a similar Rule 304(a) finding.