Appellate Jurisdiction

October 5, 2008

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia.

Wartalski sued the construction contractors for negligence, and a jury awarded him $975,700. The contractors appealed. They argued that Wartalski’s expert witnesses should not have been allowed to testify at the trial because their opinions were not generally accepted.

Wartalski countered that the contractors waived their argument because they did not first raise it in a post trial motion. He pointed to Section 2-1202(b) of the Illinois Code of Civil Procedure, which requires a party to make a motion to the trial court for relief following a jury verdict.

September 24, 2008

Denial Of Food Company’s Federal Preemption Defense Not An Appealable Interlocutory Order

by Steven R. Merican

Tyson Foods moved for summary judgment in a class-action lawsuit. Tyson argued that the claims against it were preempted by federal law. The summary judgment motion was denied, and Tyson appealed.

Ordinarily, the denial of a summary judgment motion is not appealable because it is not a final judgment. But Tyson argued that the order denying its preemption defense was appealable under Illinois Supreme Court Rule 307. Rule 307 allows appeals of certain interlocutory orders, including those “granting, modifying, refusing, dissolving, or refusing to dissolve or

modify an injunction.” Tyson argued that the denial of the preemption defense “is subject to interlocutory appeal under Illinois Supreme Court Rule 307(a) … because the ‘preemption argument brings into issue the authority of the trial court to enter the order appealed from.’”

September 22, 2008

Remand To Bankruptcy Court Deprives Seventh Circuit Of Jurisdiction

by Steven R. Merican

Diana Holland, who owned real property in Florida, filed her Chapter 7 Bankruptcy in Illinois. She asserted that Florida law exempted the Florida property from the bankruptcy. The bankruptcy trustee argued that Illinois law applied, and that it did not exempt the Florida property. The bankruptcy court ruled that Illinois law applied, but did not consider whether the property was exempted. On appeal, the district court reversed, ruled that Florida law applied, and remanded the issue of exemption back to the bankruptcy court.

The trustee appealed to the Seventh Circuit Court of Appeals. But the Seventh Circuit dismissed the appeal and ruled it did not have appellate jurisdiction because the district court’s order was not final and appealable. Although the federal circuits are split on the question, for the Seventh Circuit, the district court’s remand order made the difference.

Our circuit precedent accords with the majority view: “[E]ven if the decision of the bankruptcy court is final, a decision by the district court on appeal remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless the further proceedings contemplated are of a purely ministerial character . . . .” What remains to be decided here is hardly ministerial: the bankruptcy court still has to answer the $350,000 question whether Holland is entitled to an exemption under Florida law. … Only then—after the bankruptcy court has made its final ruling, the district court has revisited the case, and a fresh notice of appeal to our court has been filed—can we exercise jurisdiction over the matter.

August 29, 2008

Seventh Circuit Dismisses Government Appeal Of Qualified Immunity Defense

by Steven R. Merican

Ahmad Khorrami claimed he was wrongfully detained and mistreated by the federal government in an investigation stemming from the 9/11 terrorist attack. Khorrami sued Michael Rolince, an FBI agent on whose affidavit Khorrami allegedly was detained, and the government. The lawsuit alleged multiple causes of action, including one against Rolince — Khorrami claimed Rolince’s affidavit was false — for violation of Fifth Amendment due process rights.

The government moved to dismiss the complaint (1) for failure to state a claim and (2) arguing that Rolince had qualified immunity for his affidavit. The trial court granted all aspects of the motion, except that it declined to rule on the government’s claim for qualified immunity. The government brought an interlocutory appeal, arguing there was qualified immunity and that the whole case should have been dismissed.

The Seventh Circuit Court of Appeals dismissed the appeal. Because the immunity defense was postponed for later ruling by trial court, and not specifically ruled upon, there was not an order rejecting the immunity defense, which was a requirement for appeal. In addition, this was not a de facto denial of the immunity defense caused by a delay in ruling. The order setting aside the immunity ruling did not have a direct or irreparable impact on the merits of the case.

August 27, 2008

Certified Question Improper Under Illinois Supreme Court Rule 308, But Appellate Court Takes Interlocutory Appeal Anyway

by Steven R. Merican

Jerry Walker suffered a personal injury when she fell while cruising on a Carnival Cruise Line ship. She sued Carnival in Illinois, but her ticket stated that disputes must be litigated in Miami, Florida. Carnival sought dismissal of Jerry’s lawsuit, arguing that Illinois was not the proper forum. The Illinois trial court ruled that the forum-selection provision on Jerry’s ticket was unenforceable, and denied Carnival’s motion.

Because an order denying a motion to dismiss is not final and appealable, Carnival asked for permission to appeal. The trial court allowed the interlocutory appeal, and, pursuant to Illinois Supreme Court Rule 308, certified the following question for the appellate court to answer: “Whether the trial court erred in its application of law pertaining to its denial of Carnival’s … motion to dismiss …”

Rule 308 interlocutory appeals are allowed when the trial court certifies “a question of law as to which there is substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The First District Illinois Appellate Court ruled that the question certified by the trial court was not a proper Rule 308 question.

August 24, 2008

Constructive Re-filing Of Reconsideration Motion Provides Appellate Jurisdiction Over Insurer’s Appeal Of Coverage Dispute

by Steven R. Merican

Stoneridge Development Company built a townhouse for John and Marie Walski. The Walskis claimed the house suffered from structural defects caused by Stoneridge building on soil that was not compacted appropriately. After the Walskis sued Stoneridge, Stoneridge sued Essex Insurance Company, its general liability insurer, for insurance coverage for the Walskis lawsuit.

The trial court ruled that Essex had an undisclosed conflict of interest, was therefore prevented from denying coverage, and entered summary judgment for Stoneridge. Essex appealed, but Stoneridge asked the appeal to be dismissed for lack of appellate jurisdiction.

The trial court had written an opinion letter in July stating how it intended to rule and directing the parties to draft an order granting the summary judgment. Essex filed a motion to reconsider after that opinion letter was written, but before the judgment was entered. When the judgment in Stoneridge’s favor was entered, the trial court also entered and continued Essex’s motion to reconsider.

August 9, 2008

Order Postponing Insurer’s Motion To Stay Pending Arbitration “Incident To An Orderly Process” And Not Appealable

by Steven R. Merican

Insurer CNA was involved in a complicated dispute with a claim handling company, Staffing Concepts. Staffing Concepts made claims on the worker compensation policies that it bought from CNA. CNA claimed that Staffing Concepts refused to pay millions of dollars for the deductibles on claims made by its employees.

There was a related dispute between Staffing Concepts and ClaimPlus, a company that serviced claims made by the Staffing Concepts employees. ClaimPlus asserted that Staffing Concepts did not pay the claim handling fee. So ClaimPlus filed an arbitration claim against Staffing Concepts.

Staffing Concepts then moved to transfer CNA’s case from Illinois to Florida. Some of the Staffing Concepts affiliates, also defendants in the case, moved to dismiss the complaint for lack of personal jurisdiction. CNA in turn asked the court to stay the case, and to put the Staffing Concepts’ motions on hold, pending the outcome of the arbitration between ClaimPlus and Staffing Concepts.

July 24, 2008

Misunderstanding Filing Deadline Rule Not Excusable Neglect

by Steven R. Merican

Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review.

Janet then filed a complaint in federal district court against the Commissioner of Social Security . After the district court affirmed the denial of benefits, Janet appealed. She filed her notice of appeal 63 days after the district court ruled, but Federal Rule of Appellate Procedure 4(a)(1)(b) required her to file the notice within 60 days of the judgment.

To cure the late filing, Janet asked the district court judge to extend the time to file the notice of appeal by three days. To justify the extension, her lawyer stated that he understood the local administrative policies and procedures manual to give him three extra days to file. The district court granted Janet’s motion for the three days.

July 9, 2008

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

by Steven R. Merican

Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages. The trial court did not make a finding under Illinois Supreme Court Rule 304(a) (no reason to delay enforcement or appeal of the order).

After Berry put in her case at trial, Chade moved for a directed verdict and to vacate the summary judgment ruling. The trial court granted Chade’s motions. Then Berry asked for reconsideration of the ruling that vacated her summary judgment, arguing that Chade’s motion was too late, having come more than 30 days after the judgment was entered. The trial court granted Berry’s reconsideration motion, reinstated the summary judgment, and awarded Berry $1,000, the minimum award under the Act.

Both parties appealed. Chade argued that its motion to vacate was timely because the partial summary judgment was not a final and appealable order. The First District Illinois Appellate Court agreed, and stated there was nothing in the summary judgment ruling to indicate it was final and appealable (no Rule 304(a) language or the like), so it was no more than a typical non-final interlocutory order.

June 26, 2008

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer’s Appeal

by Steven R. Merican

Eclipse Manufacturing apparently was annoyed by receiving unsolicited faxes from United States Compliance. So Eclipse filed a class action case against Compliance. Compliance demanded a defense and indemnification from its insurer, Hartford Insurance. Hartford declined to defend and denied coverage.

Compliance settled with Eclipse, and gave Eclipse an assignment of the Hartford insurance policy benefit. Eclipse proceeded on a third party citation to collect the Hartford policy limits. The trial court ruled that the Hartford insurance policy covered Eclipse’s claim against Compliance, and ordered Hartford to pay the settlement.

The trial court stated its intention to rule for Eclipse in July 2006, and directed Eclipse and Hartford to draft an order based on the court’s comments. But Eclipse and Hartford could not agree on language for the order. Just before 30 days from when the trial court stated it would rule for Eclipse, but before a written order was entered, Hartford filed its notice of appeal.