Articles Posted in Appellate Jurisdiction

Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main.

The Village moved to dismiss Nicor’s amended complaint, but the motion was denied. When Nicor filed a second amended complaint, the Village’s motion to dismiss was granted. After Nicor’s motion to reconsider was denied, the company appealed. The Village then cross-appealed from the denial of its motion to dismiss the earlier amended complaint.

On appeal, Nicor moved to strike the portions of the Village’s brief related to the cross-appeal. Nicor argued that “its amended complaint was superseded by its second amended complaint and … [therefore] the arguments pertaining to the Village’s section 2-619 motion to dismiss [should] be stricken because they are no longer part of the record and are irrelevant to the current appeal.”

Before they were married, Steven and Angela signed a premarital agreement. When the couple was divorcing, Steven filed a motion for a declaratory judgment, seeking an order on the validity and construction of the premarital agreement. The trial court ruled that the agreement was enforceable. The trial court also granted an interlocutory appeal under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the order).

Angela then moved for reinstatement on Steven’s health insurance policy. That provoked Steven’s motion to strike and dismiss Angela’s motion. He argued that Angela waived all rights to support and insurance in the premarital agreement. The trial court disagreed with Steven, and ordered him to reinstate Angela’s health insurance. When Steven’s motion to vacate that order also was denied, he appealed.

On its own motion, the appellate court reviewed the order that declared the premarital agreement valid. The appellate court reversed that order because, it said, it was improperly entered before entry of the final marriage dissolution order. Steven then appealed to the Illinois Supreme Court and complained that the appellate court was wrong on this point

IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending.

Eugene and Jean Marie were divorced in 1990. The dissolution order required Eugene to split the proceeds with Jean Marie of the sale of real property. Eugene sold the property in 2005, but he did not share the profit. So Jean Marie filed an action for indirect civil contempt. The trial court ordered Eugene to pay $76,903 to Marie. When Eugene didn’t pay, Jean Marie filed another contempt petition. Eugene then appealed the judgment, but Jean Marie’s second contempt petition still was pending.

Eugene appealed under Illinois Supreme Court Rule 304(b)(5) (contempt orders are immediately appealable if they impose a monetary or other penalty). But the appellate court stated that Rule 304(b)(5) did not apply. “Initially, this appeal cannot be one under Rule 304(b)(5) . That rule explicitly states that it applies to an order that imposes a penalty for contempt. The trial court plainly did not impose any penalty here. Yes, it entered a judgment against Eugene, but that judgment was merely the amount it calculated that Eugene owed under the dissolution judgment … To calculate and order payment of what is already due cannot reasonably be understood as a punishment. Thus, the order that Eugene pay $76,903 did not impose a penalty and so was not appealable under Rule 304(b)(5).”

Lee Isringhausen, an Illinois resident, contracted with APM Custom Homes, a Florida corporation, to build a home in Marco Island, Florida. Lee died before the house was built. APM returned most of the $100,000 deposit to Lee’s estate, but kept $42,500 of it as a construction-management fee.

Susan Isringhausen, executor of Lee’s estate, sued APM for the $42,500, in an Illinois court. The trial court dismissed the case for lack of jurisdiction over APM. Susan appealed, but the Fourth District Illinois Court of Appeals affirmed the dismissal of her case.

The trial court ruled that it did not have “general jurisdiction” over APM because APM did not have continuous and systematic business contacts in Illinois. Susan argued that the trial court had “specific jurisdiction” over APM − i.e. the case arose “from ‘the making or performance’ of a contract that is ‘substantially connected’ to Illinois.”

Here’s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303. Nor did Rule 365 save the appeal. So the appeal was dismissed.

The Second District Illinois Appellate Court explained:

As pertinent here, Rule 365 states, “If a case is appealed to either the Supreme Court or the Appellate Court, or the wrong district of the Appellate Court, which should have been appealed to a different court, the case shall be transferred to the proper court.” … That language simply has nothing to do with this case. Had defendants timely filed their notice of appeal in the trial court but wrongly stated that they were seeking review in the supreme court or in a district of the appellate court other than this one, then Rule 365 would have required the transfer of the case to this court. However, defendants did not appeal to the wrong court. They appealed to the proper court but did not file the notice of appeal in the trial court on time. Rule 365 did not excuse defendants from their obligation under Rule 303(a)(1) to file a timely notice of appeal in the trial court.

Victoria McGill hired Friedman & Solmor to represent her in her auto accident case. The law firm represented Victoria on a contingent fee arrangement until about one month before trial was scheduled. The firm withdrew as a result of a dispute with Victoria over whether to accept a settlement offer.

Victoria got new counsel, who went to trial and got a verdict in excess of $180,000. Friedman & Solmar notified Victoria about a lien it had earlier served. Victoria in turn petitioned to adjudicate the lien. Her petition was denied, and F&S was granted a $20,500 quantum meruit judgment. Victoria appealed that judgment.

Victoria’s Notice of Appeal stated she was appealing from the judgment granting fees; it did not identify the order stating F&S had good cause to withdraw. Nonetheless, Victoria asserted that F&S did not have good cause to withdraw. F&S argued that the appellate court lacked jurisdiction to rule on the question of good cause because the order was not listed in Victoria’s notice of appeal.

LeRoy Voga sued his son, Lyle, to collect on a defaulted promissory note. After LeRoy got a judgment, Lyle’s former wife, Teresa, , intervened to quiet title to real property she had been awarded in her divorce proceeding with Lyle, seeking to prevent LeRoy from levyng on the property.

Teresa was granted summary judgment. Soon after, LeRoy died. Before a special representative for the estate was named, LeRoy’s attorney moved to vacate the summary judgment. After a special representative was appointed, the trial court denied the motion to vacate.

The special representative, Larry, appealed the summary judgment. Teresa moved to dismiss the appeal. She asserted that the motion to vacate the summary judgment was a nullity and therefore did not toll the time to file the Notice of Appeal. Without the tolling period, Teresa argued, the Notice of Appeal was late and did not confer appellate jurisdiction.