Appellate Jurisdiction

July 21, 2012

Refusal To Modify Divorce Judgment Not Appealable Because Of Other Pending Issues

Arthur and Shirley Susman got divorced. The divorce judgment incorporated a marital settlement agreement, which reserved two subjects to be resolved later: (1) certain tax liabilities, and (2) allocation of certain personal property.

A few months later, Arthur asked the trial court to modify the judgment. He claimed there had been a mutual mistake of fact regarding a different tax liability. The trial court denied Arthur’s request.

Arthur appealed under Illinois Supreme Court Rule 301, which allows appeals from final judgments. But the First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Arthur’s appeal. The appellate court ruled that Arthur’s appeal of the order denying his request to modify the judgment was not appealable because other questions had been reserved by the trial court. Here’s how the appellate court explained it:

July 15, 2012

Injured Party’s Appeal Dismissed For Violations Of Appellate Brief-Writing Rules

by Steven R. Merican

Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.

Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”

These were Hall’s violations:

May 20, 2012

Father Successfully Appeals Termination Of Parental Rights

by Steven R. Merican

Ralph L’s baby, Haley, was born with a cocaine addiction. When Haley was released from the hospital, the State of Illinois took her into protective custody and placed her with foster parents. The State also filed a lawsuit asking that Haley be made a ward of the court. The State did not at that time ask the trial court to terminate Ralph’s parental rights.

The trial court soon made Haley a ward of the court. A goal was set to return Haley to Ralph in 12 months, if Ralph were able to meet certain conditions. Ralph did not meet two of the conditions: submission to random drug testing and completion of domestic violence and mental health assessments.

So the trial court allowed the State to file a petition to terminate Ralph’s parental rights. Four months later the State did so. But Ralph had not been given personal service of the State’s petition. The trial court proceeded with the termination hearing anyway, even though Ralph was not there and service had been accomplished only by publication. The State asked for, and received, an order of default against Ralph.

April 30, 2012

Emergency Worker’s Late Appeal Against Hospital Dismissed

by Steven R. Merican

Edward Dus, an ambulance driver, injured his knee when he was moving a patient at the emergency room at Provena St. Mary’s Hospital. He claimed he was injured by a laundry cart being pushed by a Provena employee. Dus sued Provena. A jury awarded Dus $300,000, which was cut in half because he also was found to be 50 percent at fault for the accident.

Within 30 days, Dus asked the trial court for a judgment notwithstanding the verdict on the question of his contributory negligence. But when his lawyer did not appear for the hearing, the trial court denied Dus’s request. Two days later, Dus asked the trial court to reconsider the denial. The trial court allowed Dus to refile the original request for judgment notwithstanding the verdict. Dus refiled, but three months later the trial court denied Dus’s request.

Dus appealed. Provena asked the appellate court to dismiss the appeal because, the hospital argued, Dus filed the appeal too late, more than 30 days after the first time the trial court denied his original motion for judgment notwithstanding the verdict. Dus argued the time to file was tolled until 30 days after the trial court ruled on his request for reconsideration, which would have made his appeal timely.

April 20, 2012

Real Estate Broker’s Appeal Dismissed For Lack Of Compliance With Local E-Filing Rules

by Steven R. Merican

While their divorce case was pending, Robert and Cindy Andrews signed a listing agreement to sell their house. The real estate broker, VC&M, found a buyer. But the Andrewses rejected the offer, which was for less than their asking price. Instead, Cindy decided to stay in the house, so she agreed to purchase Robert’s half. As part of their marital settlement agreement, Robert transferred his interest to Cindy.

VC&M wanted a commission for introducing the prospective buyer, but the Andrewses refused to pay. So VC&M sued for breach of contract. The Andrewses asked the trial court to dismiss the complaint. VC&M filed an opposition memorandum electronically. Before VC&M’s e-filing, the parties had not stipulated to allow e-filings.

The trial court agreed that VC&M did not state a claim, so the complaint was dismissed. Thirty days later, in another electronic filing, VC&M asked the trial court to reconsider the dismissal. Another month later, VC&M filed a paper copy of its reconsideration request. Another month after that, VC&M e-filed a notice of appeal.

April 7, 2012

Appellate Jurisdiction Okay Despite Incomplete Notice Of Appeal

by Steven R. Merican

Diane Borchers was the food service director at Mayslake Village, a senior citizen housing facility. Borchers used the company email system to communicate with vendors and other Mayslake employees. While she was on disability leave, two Mayslake employees accessed some of Borchers’s personal emails. The emails were in Borchers’s personal email account, which was available on her company computer at the company’s office.

Borchers sued Mayslake for violation of the federal Electronic Communications Privacy Act and the state commonlaw tort of intrusion upon seclusion. Later she sued the two Mayslake employees who got the emails.

Mayslake asked for summary judgment, which the trial court granted. The trial court ruled that Borchers did not have enough evidence that Mayslake acted intentionally in accessing the private emails to proceed with the lawsuit.

March 31, 2012

Pending Appeal Of Judgment Not A Bar To Adjudication Of Attorney’s Lien; Insufficient Record Dooms Appeal

by Steven R. Merican

Richard Moenning was injured when he got off a passenger railroad car. He sued Union Pacifc Railroad Company, the operator of the train, for negligence and for willful and wanton misconduct. Union Pacific got a directed verdict on the willful and wanton claim. But a jury gave Moenning a favorable verdict on the negligence claim — $250,000, which was reduced to $125,000 because Moenning was 50 percent at fault for his injury.

Moenning then asked for a new trial and for sanctions against Union Pacific for having denied it was negligent. The trial court denied both requests. Unhappy with the result, Moenning appealed the verdict and the denial of his post-trial requests.

Moenning’s lawyer in the trial court was Norman Lerum. Lerum had served an attorney’s lien for one-third of a settlement or judgment payable to Moenning. While Moenning’s appeal was pending, Lerum petitioned the trial court to adjudicate and enforce his lien.

March 11, 2012

City’s Appeal Of Nixed Land Deal With Religious School Untimely And Moot

by Steven R. Merican

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

January 17, 2012

Hospital’s Summary Judgment Denial Considered By Illinois Supreme Court

by Steven R. Merican

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

November 10, 2011

Texas Painting Buyers Allowed To Argue Lack Of Personal Jurisdiction In Illinois Court

by Steven R. Merican

Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.

The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.

The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.