Appellate Jurisdiction

November 15, 2007

7th Circuit Has Jurisdiction Of Dispute Over Non-Compete Clause In Patent License

County Materials Corporation signed a licensing agreement that allowed it to manufacture and sell Allan Block’s patented concrete block. The license also contained a non-compete clause that prohibited County Materials from selling a competing product for 18 months after the license was terminated.

After Allan Block terminated the license, County Materials developed its own concrete block that competed with Allan Block’s product. Allan Block threatened to sue to prevent County Materials from selling its new concrete block. But County Materials won the race to the courthouse, and brought an action to have the license declared void because the non-compete clause constituted patent misuse. The district court ruled that there was no patent misuse, and granted summary judgment in favor of Allan Block.

County Materials appealed. Allan Block moved to dismiss the appeal, pointing to U.S. Supreme Court precedent that grants exclusive jurisdiction to the Federal Circuit Court of Appeals of cases in which “federal patent law created the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”

November 12, 2007

Sovereign Immunity Doesn’t Deprive Appellate Court Of Jurisdiction In Veterinary Malpractice Case

by Steven R. Merican

Loman and Dodd owned a horse that required surgery. They entrusted the surgery to Freeman, who taught veterinary medicine at the University of Illinois. Freeman did the surgery as part of the training he provided for students at the University. Loman and Dodd alleged that Freeman performed an unauthorized procedure that ruined the horse for racing purposes. They sued Freeman for negligence and conversion. The trial court granted Freeman’s motion to dismiss.

Loman and Dodd appealed. Freeman moved to dismiss the appeal for lack of jurisdiction. He argued he was entitled to sovereign immunity because of his teaching position with the state university. The Fourth District Illinois Appellate Court denied the motion to dismiss the appeal.

The appellate court ruled that sovereign immunity did not apply because Freeman’s duty to Loman and Dodd derived from the common law, which was not dependent on Freeman’s employment by Illinois. In addition, the state was not subject to liability as a result of the lawsuit against Freeman. “‘[T]he decision of [the university] to indemnify its employees does not deprive the circuit courts of subject-matter jurisdiction over claims otherwise properly brought in the circuit court.’”

November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

by Steven R. Merican

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

by Steven R. Merican

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

by Steven R. Merican

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

October 22, 2007

7th Circuit Dismisses Appeal Of Remand After District Court Denies Immunity Request

by Steven R. Merican

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

by Steven R. Merican

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

October 8, 2007

First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

by Steven R. Merican

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the addition of that language did not alter the fact that the court’s orders were not final as to any claim or party and were, thus, not subject to Rule 304(a).”

October 2, 2007

7th Circuit Appellate Court Rules Dismissal Without Prejudice Nonfinal Where District Court Wasn’t Through With Case

by Steven R. Merican

A pro se plaintiff filed four lawsuits, which were assigned to different judges, in which she complained that her children had been taken from her custody in violation of the law. Although the cases generally complained about the same subject matter, they never were consolidated.

The first three lawsuits ultimately were dismissed. But before those dismissals were entered, the fourth-filed case was dismissed without prejudice. Plaintiff appealed only from the dismissal in the fourth case. At the same time, she also moved to consolidate the four cases.

The district judge wrote a letter to plaintiff in response her two filings. With respect to the Notice of Appeal, the judge asked plaintiff for clarification of her position on the question of whether the complaint was duplicative of the first three lawsuits. The 7th Circuit Appellate Court chastised the district judge for writing the letter, explaining that it could confuse the parties about how to respond and about the true procedural posture of the case.

September 12, 2007

Second Second District Illinois Appellate Panel Dismisses Appeal

by Steven R. Merican

This dispute grew from the Waddicks’ divorce. Several months after trial, in September 2005, the trial court issued a written decision that ruled on the contested matters. The court did not order a dissolution judgment to be prepared, but it did state that a joint custody order “will be entered by the Court.”

Dawn filed a motion to reconsider the September ruling. After a continuance, the court entered a judgment of dissolution in late November 2005. There was no ruling on Dawn’s motion to reconsider until March 2006, when it was denied. Dawn filed her notice of appeal later that month.

Before the briefs were filed, David moved to dismiss the appeal for lack of jurisdiction. The motion panel denied David’s motion. The appeal was reassigned for full disposition. The new panel stated it had “an independent duty to determine whether we have jurisdiction …” (The opinion does not state whether David renewed his motion to dismiss or if the panel looked at the question on its own.)