Articles Posted in Appellate Jurisdiction

In this complicated dispute among business partners, a counterclaimant asserted arguments of equitable estoppel and of the mend the hold doctrine. However, those arguments were posed for the first time in a motion for reconsideration of a summary judgment. The First District Illinois Appellate Court ruled that the arguments had been waived because “they failed to raise them prior to filing their motion for reconsideration.”

The lesson is: an argument raised for the first time in the trial court on a motion for reconsideration is waived for appeal. Get the whole case, Trossman v. Philipsborn, No. 1-04-0588 (6/8/07), by clicking here.

Carl Brdar, a truck driver, was injured when he tried to tie down an automobile to a cargo trailer. He sued Cottrel, Inc., the trailer manufacturer. Cottrell filed a third-party complaint against Vulcan Chain Corp., a distributor of metal tie-down chains. Vulcan’s motion to dismiss based on the statute of limitations was granted. The case was tried, and Carl got a judgment in excess of $1.4 million against Cottrell.

About two and a half weeks after the judgment, Cottrell filed a motion for an extension of time to file a post-trial motion. Cottrell served the motion on plaintiff, but not on Vulcan. That motion was granted, as were successive motions by Cottrell for more time. Cottrell eventually filed a post-trial motion.

About a month after the judgment, Carl filed a motion for costs incurred in calling a rebuttal expert witness. The motion argued that Carl was required to call the rebuttal expert when Cottrell’s expert gave surprise testimony.

Plaintiff Affordable Housing Preservation Foundation got a permanent injunction against Smith Wiiams in connection with business transactions he took in Affordable’s name. Within 30 days, Wiiams moved to vacate the injunction. But Wiiams’ motion did not detail why the injunction was infirm. The trial court ruled on the motion about seven months later. Wiiams’ notice of appeal was met with a motion to dismiss. Affordable Housing asserted that the bare motion to vacate was not sufficient to toll the time to appeal. Coming more than 30 days after the judgment was entered, Affordable argued, the appeal was not timely, thus depriving the appellate court of jurisdiction.

The appellate court disagreed and denied the motion to dismiss. Because the judgment was rendered by the judge, not a jury, the bare motion to vacate was sufficient to toll the time to appeal. “… [W]e conclude that, despite the fact that defendant’s motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 [of the Illinois Code of Civil Procedure] and was a valid postjudgment motion.”

The opinion describes the difference between motions against the judgment brought in jury and non-jury cases, and attempts to clear up precedent that made the distinction ambiguous.

After a bench trial in absentia, Patricia Wakenight was convicted of possession of a controlled substance with intent to deliver. The arrest was made in April 2000, but Patricia changed lawyers a number of times, and backed out of a plea agreement, so the trial was not completed until July 2005.

During the trial in July 2000, Patricia snuck out of the courthouse. The trial proceeded in her absence, and ended with the conviction. Four months later, Patricia was sentenced to 10 years imprisonment. After her post-trial motion was denied, and remaining a fugitive, Patricia appealed. She complained to the Second District Appellate Court (1) that she had not been properly admonished about the possibility that the trial could proceed in her absence, and (2) that she had not been given proper notice of her sentencing hearing.

The initial question was whether the appellate court should exercise its discretion to hear Patricia’s appeal. The appellate court “has the discretionary power to refuse to hear a fugitive’s appeal unless and until the fugitive returns to the jurisdiction.” But in this case, the appellate court refused to dismiss the appeal “because the only substantive issues defendant raises are whether she was properly admonished about the possibility of a trial in absentia and whether she was entitled to a separate notice of the sentencing hearing … Thus, the substantive issues are intertwined with the issue of whether we should hear the appeal in the first place.”

Rogers Auto Service was sued by a lender, Bell Leasing Brokerage, for wrongfully towing an automobile in which Bell had a perfected security interest. The trial court entered judgment for Bell. Rogers appealed, but Bell contested appellate jurisdiction because, Bell contended, the Notice of Appeal was late.

On the day the judgment was entered, Rogers filed a motion to reconsider. About three weeks later, the trial court granted Rogers additional time to file a supporting memorandum of law. Instead of filing the memo, Rogers moved to withdraw the reconsideration motion. That motion was granted, and Rogers appealed the next day, which was 78 days after the judgment was entered.

Illinois Supreme Court Rule 303(a)(1) permits a Notice of Appeal to be filed “within 30 days after the entry of the order disposing of the last pending postjudgment motion.” Bell argued that the order allowing withdrawal of a reconsideration motion was not an order disposing of a pending postjudgment motion, so the time to appeal was not tolled.

Universal Insurance Co. sued Judge & James for legal malpractice. Universal claimed that J&J did not file a timely notice of appeal after a summary judgment against Universal was entered in a declaratory judgment action.

J&J had represented Universal in the declaratory judgment case brought by Heflin, an auto accident victim, to determine underinsured insurance coverage. In a summary judgment proceeding, the court declared that Universal owed insurance coverage. J&J’s motion to reconsider that ruling was denied. Instead of appealing the summary judgment, J&J filed certain discovery motions. The trial court ruled that its order on the motion to reconsider was final. Because that final order was more than 30 days old, the court also ruled that it did not have jurisdiction to rule on J&J’s discovery motions.

Universal and Heflin were ordered to arbitrate the insurance claim. That ended in an award of more than $2.9 million, which Universal was ordered to pay.

A class action against the manufacturer of a defective bicycle lock was settled. But certain class members, who had their own class action cases in other states, were unhappy with the settlement. They attempted to intervene to prevent the settlement. Their intervention motion was denied.

The trial court entered a final judgment pursuant to the settlement. Class counsel then timely moved for sanctions against the class members who tried to upset the settlement. That motion was withdrawn, and the angry class members filed their notice of appeal within 30 days of the withdrawal, but well more than 30 days after the final judgment.

The class representative who had settled the case moved to dismiss the appeal. He argued: (1) the sanctions motion, made after the final judgment was entered, did not toll the time to file the appeal; (2) the notice of appeal was late because it was filed more than 30 days after the final judgment was entered. He concluded there was no appellate jurisdiction.