Appellate Jurisdiction

February 3, 2008

Temporary Removal Of Guardian Not Reviewable

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court’s own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court’s orders did not ‘finally determine, fix and dispose of the parties’ rights’”

January 29, 2008

Slightly Defective Certificate Of Service Does Not Deprive Illinois Appellate Court Of Jurisdiction

by Steven R. Merican

In an insurance coverage dispute, Illinois Farmers moved to dismiss Secura Insurance’s appeal for lack of jurisdiction. Farmers argued that Secura’s Notice of Appeal, mailed to the court the 30th day after the judgment, was deficient because the certificate of service did not state the time of mailing, a requirement of Illinois Supreme Court Rule 12(b)(3). Farmers argued that Secura’s failure to strictly comply with the Supreme Court’s rules doomed the Notice of Filing, thus depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court rejected Farmers’ position and ruled that jurisdiction was proper. The court ruled that the failure to state the time of service was a very slight defect that did not interfere with or preclude review. Adding “the fact that Farmers does not allege prejudice, we conclude that the defect here amounts to harmless error.”

Get the whole case, Secura Ins. Co. v. Illinois Farmers Ins. Co., No. 2-06-0614 (11/7/07), by clicking here.

January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

by Steven R. Merican

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

January 9, 2008

Interesting Stuff From Other Places. Premature Notice Of Appeal Becomes Effective In First Circuit

by Steven R. Merican

The Appellate Law and Practice Blog reports on Malloy v. WM Specialty Mortgage, No. 07-1026, a First Circuit opinion that the blog calls “the height of appellate nerdery.” The court ruled that a premature notice of appeal became effective, and bestowed appellate jurisdiction, after the district court denied a motion to vacate what sounds like a conditional dismissal order.

January 3, 2008

No Appellate Jurisdiction Where Appeal Taken While Contempt Motion Still Pending. Second District Illinois Appellate Court Overrules 2-Month Old Opinion

by Steven R. Merican

This appeal arises from Nancy Knoerr’s post-dissolution petitions to increase child support and to force her ex-husband, David, to contribute to college expenses of one of their children. David moved for reconsideration after Nancy got a favorable result on her petitions. Nancy then petitioned for a rule to show cause, claiming that David refused to comply with the orders increasing child support and David’s contribution to the college expenses.

The trial court denied David’s motion to reconsider, and continued Nancy’s petition for a rule to show cause. The trial court did not issue Rule 304(a) language (allowing an interlocutory appeal). David appealed the ruling on Nancy’s petitions while the rule to show cause still was pending.

This is another case in which the Second District Illinois Appellate Court assessed its jurisdiction without benefit of a motion contesting jurisdiction. The appellate court dismissed the appeal because the still-pending rule to show cause rendered the action non-final.

December 29, 2007

7th Circuit Requires Accurate Affidavit From Prisoner To Comply With Mailbox Rule

by Steven R. Merican

Malcom Rush was incarcerated in Waupun Correctional Institution in Wisconsin. He appealed after the federal district court denied his petition for a writ of habeas corpus. But Rush’s Notice of Appeal did not get filed within the 30-day deadline.

The issue was whether Rush complied with Federal Rule of Appellate Procedure 4(c), the prisoner mailbox rule. That rule states that the date of filing is the date the prisoner places the mail in the prison mail system. The rule also requires an affidavit by the prisoner that the mail was timely placed in the system and that postage was prepaid.

Rush signed an affidavit that said he placed the document in the mail system timely and that the prison had committed to paying for the postage. But the court ruled that the latter point was not true. Because Rule 4 requires the postage to be paid, the court concluded that Rush’s Notice of Appeal was not timely, thus depriving the court of appellate jurisdiction. “Postage was not prepaid at the time of deposit because Rush did not secure his right to an exemption for a loan from the warden. Therefore the statement in his declaration that Waupun had ‘precommitted’ to paying for the postage as of June 9, 2006, is not true, and does not satisfy the requirements of Rule 4(c)(1).”

December 13, 2007

Consumer Wins Credit Card Battle, But Appealable Orders Elude Her

by Steven R. Merican

Resurgent Financial took an assignment of credit card receivables from MBNA. Joan Kelly’s account was included among those assigned to Resurgent, or so Resurgent claimed. Kelly said she didn’t owe anything, and refused to pay Resurgent, so Resurgent sued her.

Kelly served requests for admission on Resurgent, which Resurgent did not answer. After the requests were deemed admitted, Kelly moved for summary judgment. That motion was denied. Resurgent then moved for voluntary dismissal without prejudice. That motion was granted. Kelly in turn moved for attorney fees under the Illinois Credit Card Liability Act. The fee motion was denied.

Kelly appealed the denial of her motions for summary judgment and for attorney fees. The Second District Illinois Appellate Court dismissed Kelly’s appeal, stating that neither order was final and appealable.

December 12, 2007

Fifth District Illinois Appellate Court Without Jurisdiction To Allow Permissive Appeal Of Forum Motion

by Steven R. Merican

Janet Chochorowski rented a power tiller from a Home Depot in Missouri. She claimed she did not want to purchase a damage waiver, but that she was charged for it anyway. She turned her grievance into a class action lawsuit in Illinois.

Janet’s breach of contract and unjust enrichment claims were dismissed. That left her with a single claim under the Missouri Merchandising Practices Act. Home Depot moved to dismiss the complaint on the basis of forum non conveniens. The trial court denied the motion, but on a permissive interlocutory appeal, the appellate court reversed. Chochorowski asked for and was granted a rehearing.

On rehearing, the appellate court considered whether it had jurisdiction to review Home Depot’s forum non conveniens motion made pursuant to Illinois Supreme Court Rule 306(a)(4) (allowing a permissive appeal “from the denial of a motion for transfer of venue to a court within another county in the state.”) The Fifth District Illinois Appellate Court ruled that Home Depot sought to have the case re-filed in Missouri, not transferred to another Illinois county. Thus, the court ruled that it did not have “authority to grant leave to appeal from the nonfinal order disposing of that issue.” That part of Home Depot’s appeal was dismissed.

December 4, 2007

Illinois Supreme Court Vacates Appellate Ruling On Interlocutory Order.

by Steven R. Merican

In a battle between insurance company titans, State Farm sued Illinois Farmers for a declaration that the “step down” provisions in the Farmers’ automobile policies were unenforceable because they were against public policy. (“Step down” provisions allow the insurer to reduce policy limits when the driver of the insured vehicle is neither a family member nor a listed driver.) Farmers moved to dismiss the complaint, claiming the step down provisions were clear and unambiguous. State Farm moved for partial summary judgment, claiming that the step down provisions were against public policy.

The trial court denied Farmers’ motion to dismiss, and granted State Farm’s motion for partial summary judgment. So the judgment that was entered only concerned the public policy issue. The trial court also entered Rule 304(a) language, allowing an interlocutory appeal.

Farmers appealed the public policy ruling. In its brief, Farmers also advanced its ambiguity argument. The court of appeals reversed, ruling that the step down provisions were not contrary to public policy. Over objection by State Farm, the appellate court ruled that the ambiguity argument was properly before the court. The appellate court ruled that the Farmers policy was not ambiguous.

November 20, 2007

Trial Court Oversteps Authority In Directing Notice Of Appeal To Be Filed For Defendant

by Steven R. Merican

Walter Lofton pleaded guilty to charges of aggravated battery and criminal damage to government-supported property. He was sentenced to four years imprisonment on the battery count, and three concurrent years on the damage to property count.

After sentencing, Lofton was admonished about his right to appeal. When told of his right to appeal, he immediately expressed his desire to do so. About a week later, based upon Lofton’s stated desire to appeal, the trial court directed the clerk to file a notice of appeal on Lofton’s behalf, which the clerk did. However, Illinois Supreme Court Rule 604(d) requires that (1) a motion to reconsider the sentence or (2) a motion to withdraw the guilty plea and to vacate the judgment be filed in the trial court as a condition to appealing. Lofton filed neither.

The Fourth District Illinois Appellate Court remanded the case with directions to strike the notice of appeal and to confirm whether Lofton wanted to file a post-trial motion. The court ruled that “… the trial court acted without authority by directing the clerk to file a notice of appeal. Although defendant had initially expressed a desire to appeal, he did not indicate that he wanted to appeal after he had received the appeal admonitions. Defendant was deprived of approximately three weeks’ time in which to determine whether to file a posttrial motion.”