Appellate Jurisdiction

January 8, 2009

City’s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

January 6, 2009

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant’s Due Process Claim

by Steven R. Merican

When she was still a teenager living in Guatemala, Aura Chavez-Vasquez’s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant.

Aura was living in Missouri with her two children when her illegal residency status was discovered. She was turned over to the Department of Homeland Security, which initiated a removal proceeding against her.

At the administrative hearing, Aura asked for her removal to be canceled. But the Immigration Judge ruled that she carried the day on only three of four required elements. She did not, the IJ ruled, prove that her removal would cause her American-born children “‘exceptional and extremely unusual hardship.’” So her request to cancel the removal was denied.

January 2, 2009

Pending Disqualification Motion Renders Custody Appeal Premature

by Steven R. Merican

Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal. Jeffrey argued that the appellate court did not have jurisdiction because the motion to disqualify had not been decided by the trial court.

The Second District Illinois Appellate Court agreed with Jeffrey and ruled that Neringa’s appeal was premature. Because the motion to disqualify presented a separate claim, it had to be resolved before the appellate court could take jurisdiction of Neringa’s appeal of the custody order.

The appellate court described the procedure Neringa should follow in order to perfect her appeal: “Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter … and then supplement the record with the appropriate order or orders.”

December 17, 2008

“Necessary Step” Exception Overcomes Deficient Notice Of Appeal

by Steven R. Merican

Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment. But their motion raised events that were not alleged in their complaint, and some that involved a patient who was not a plaintiff in the case. The Center filed its own motion for summary judgment, and also asked the trial court to strike the parts of the residents’ motion that raised the new allegations.

The trial court granted summary judgment to the Center, and granted the Center’s motion to strike the allegations that were raised for the first time in the residents’ motion for summary judgment. The court also denied the residents’ summary judgment request.

The residents appealed. But their notice of appeal did not state they were appealing the order granting the Center’s motion to strike the new allegations in the residents’ summary judgment motion. So the First District Illinois Appellate Court initially considered whether it had jurisdiction to hear an appeal of that order.

December 14, 2008

New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

by Steven R. Merican

Jennifer Keener’s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed.

Jennifer sued the City of Herrin for wrongful death. Herrin moved to dismiss Jennifer’s complaint. Several weeks later, the trial court granted the motion to dismiss. But despite directing the order of dismissal to be mailed to the parties’ attorneys, they were not

notified.

December 10, 2008

Bank’s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

by Steven R. Merican

In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer’s motion to vacate relied on two sections of the Illinois Civil Procedure Code − § 2-1301(e) (setting aside default judgments); § 2-1401 (relief from judgments).

The trial court denied Archer’s motion to vacate. Eventually, a final and appealable order distributing the proceeds of the sale of the property was entered. Archer appealed and argued that the default should have been vacated under § 2-1401. In the appellate court, Archer dropped its § 2-1301(e) argument.

Appeals from § 2-1401 petitions are governed by Illinois Supreme Court Rule 304(b). The rule requires an appeal to be filed within 30 days. Although Archer filed an appeal within 30 days of the final distribution order, it came long after the court ruled on the § 2-1401 petition.

November 28, 2008

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

by Steven R. Merican

The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion.

The supreme court ruled that the Commission’s regulation that allowed electronic filing was ambiguous because it “contains no indication whether filing requires actual physical acceptance by a human being in the chief clerk’s office.” The court’s decision thus turned on the Commission’s policy of encouraging electronic filing.

“The entirety of the Commission’s enactment seeks to expand, rather than limit, the ability of parties to make use of the e-docket system. Insisting on a deadline of 5 p.m. would have the opposite effect, limiting the use of e-filing. When faced with a tight deadline, a 5 p.m. rule would encourage attorneys to print, and mail, large documents rather than use the efficient and economical method of electronic filing that the Commission’s rules promote.”

November 23, 2008

Pending Contempt Petition Renders Other Substantive Rulings Non-Final And Not Appealable

by Steven R. Merican

In a post-dissolution of marriage case, does a pending contempt petition render other substantive rulings non-final and non-appealable? Does the court have to rule on the contempt petition before the appellate court can exercise its jurisdiction over all of the rulings?

The blog entry directly below explains what happened in IRMO Gutman. Appellate jurisdiction was in question because Mary Gutman appealed rulings concerning maintenance when her contempt petition still was pending.

The appellate court ruled that the contempt petition did not raise a claim for relief in the post-dissolution action. That meant the earlier order that terminated maintenance was final and appealable. Mary’s Notice of Appeal, which was filed more than 30 days after the maintenance order, was not timely and did not invoke the appellate court’s jurisdiction. So the appeal was dismissed.

November 21, 2008

Illinois Supreme Court Considers Appellate Jurisdiction In IRMO Gutman. Appellate Court Panel’s Attempt To Overrule Sister Panel Rejected By Illinois Supreme Court

by Steven R. Merican

Nearly five years after their divorce, Mary Gutman filed a motion to continue and modify her maintenance award. Two months later, Daniel filed a motion to terminate maintenance. One month after that, Mary filed a petition to hold Daniel in contempt for having stopped the maintenance payments.

The trial court twice set a date for hearing on the competing maintenance petitions, but Mary did not attend either time. On the second hearing date, the court granted Daniel’s petition to terminate maintenance, dismissed Mary’s maintenance petition, and did nothing on the contempt petition. The trial court’s order did not contain language under Illinois Supreme Court Rule 304(a) that would have made the maintenance dismissals appealable interlocutory orders.

After her motions to vacate and to reconsider were denied, Mary appealed. But her Notice of Appeal was filed well more than 30 days after the trial court ruled on the maintenance petitions.

November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

by Steven R. Merican

A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed.

The developer sued the city. The developer claimed its expenditures for the property gave it a vested right to the previous zoning classification. The developer’s complaint had two theories. The first asked for a writ of mandamus – i.e., an order that the city issue the building permits. The second demanded a declaration that the developer was entitled to the building permits. After trial, the court ordered the city to issue permits so the apartments could be built. The trial court’s judgment granted the mandamus action, but was silent on the declaratory judgment request. The city appealed.

Because the trial court did not explicitly resolve the request for a declaratory judgment, there was a question of whether the order was final and appealable. If not, the appellate court would not have jurisdiction to hear the city’s appeal.