Articles Posted in Appellate Jurisdiction

Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O’Neil, another of her doctors, as a respondent in discovery.

O’Neil proved difficult to serve. Eventually though, the trial court gave Lisa a certificate of merit, concluding Lisa had a meritorious case against O’Neil. A few weeks later, the trial court granted Lisa’s request to file an amended complaint. That complaint named O’Neil as a defendant in Lisa’s medical malpractice case.

O’Neil then asked the trial court (1) to vacate the order that allowed Lisa to file an amended complaint and name O’Neil as a defendant, and (2) to dismiss the claims against him in the amended complaint. O’Neil claimed the order was improper because he had not been served properly, depriving the trial court of personal jurisdiction. The trial court agreed and granted O’Neil’s requests.

This case is more about res judicata than appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue. First, after the successful treatment, Jane and John requested that the residual embryos be ethically destroyed. They claimed in their lawsuit that the embryos were not disposed of properly. Second, the clinic’s president, Norbert Gleicher, allegedly mentioned Jane’s real name during a television interview without her permission.

Jane and John sued Gleicher and the clinic, and filed a nine-count amended complaint against them for invasion of their privacy and breach of contract. Gleicher and the clinic asked the trial court to dismiss the amended complaint. The court dismissed six of the counts, allowed Jane and John to amend the remaining three counts, and denied their request for Rule 304(a) language (which would have allowed an immediate appeal).

About five weeks later, Jane and John filed a second amended complaint “alleging breach of contract, medical malpractice, conversion of the embryos and related medical records, and invasion of privacy by public disclosure of private facts. They did not reallege any of the dismissed claims.” Then about two years later they voluntarily dismissed the case.

Rosemary Mackin was unhappy with the trial court’s division of property and the denial of maintenance in her divorce case, so she appealed. The last order by the trial court disallowed child support, but set it “for review after the expiration of 180 days for examination of the financial circumstances of [mother] and a determination by the Court at that time as to an appropriate amount of child support to be paid from that date forward by [mother] to [father] for the support of the parties’ two minor children.” Rosemary filed her appeal after this order, but before the 180-day re-examination of her finances.

Rosemary and Thomas, her ex-husband, agreed that the appellate court had jurisdiction. But the Fifth District Illinois Appellate Court reviewed jurisdiction anyway and decided otherwise. Because the issue of child support was still under consideration in the trial court, a final order from which Rosemary could appeal had not been entered. The appellate court explained:

The court decided to wait 180 days to examine the financial circumstances of mother, at which time the court would then make a determination on an appropriate amount of child support to be paid by mother from that date forward for the support of the parties’ children. Clearly the court did not resolve the issue of child support and therefore did not resolve the entire dissolution claim. Accordingly, the December 19, 2007, order [denying Rosemary’s post-trial motion disputing maintenance and division of property] was not final, and we lack jurisdiction over mother’s appeal.

When George Smith was a police officer in Chicago, he contributed to the Police Pension Fund. When Smith resigned from the police force, the Police Pension Fund refunded his $18,000 contribution. A few years later, Smith became a state court judge in the Circuit Court of Cook County, Illinois. He made salary contributions to the Judicial Pension Fund during the seven years he was on the bench.

After he retired as a judge, Smith returned the $18,000 to the Police Fund and asked for the money to be transferred to the Judicial Pension Fund. He also asked for his police service credits to be applied to his judicial pension. The Police Fund complied, but the Judicial Fund refused the money and to apply the police service credits. The Judicial Fund stated it was prohibited from complying with Smith’s request because he was not an “active member,” as defined in the governing statute.

Smith sued both pension funds. His complaint had two counts: C0unt I against the Police Fund alleged denial of due process; Count II against the Judicial Fund asked for an order requiring the Judicial Pension Fund to accept the money. Smith argued that he was an “active member” because he had not withdrawn his money from the Judicial Fund.

Leonard Kulisek went to Walgreen pharmacy intending to purchase allopurinol for his gout. The pharmacist gave Leonard a bottle marked “allopurinol,” but it really contained glipizide, a diabetes medication that lowers blood sugar. Thinking he was taking allopurinol, Leonard ingested the glipizide. Leonard suffered severe kidney and brain problems that ultimately caused his death.

Leonard’s estate sued Walgreen. After trial, a jury awarded the estate a multi-million dollar verdict, including punitive damages. Walgreen appealed. Ten days later, Mia Crickman and Charles Kulisek, Loenard’s family members, asked the trial court for an order allowing them to intervene in the case. They apparently were unhappy with the distribution of the punitive damage award, and wanted to contest it in the appellate court. The trial court allowed Mia and Charles to intervene, after which they cross-appealed.

The estate contended that the Mia-Charles appeal should be dismissed. Because they asked to come into the case after Walgreens appealed, the estate argued, the trial court did not have the power to allow Mia and Charles to intervene in the lawsuit.

Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it. Then the procedural fun began.

Two status conferences were set for different times on the same day. Magdalena missed the first, so the trial court dismissed the case for want of prosecution. Her lawyer appeared for the second status, at which a discovery extension was ordered.

When the trial court judge realized competing orders were entered, she ordered the parties to return about a week later. But Magdalena missed that status conference, too. The trial court then vacated the discovery extension and let the order that dismissed the case stand.

Kerr-McGee Chemical and Lefton Iron & Metal were fighting out a 15-year dispute over the cost of cleaning up an environmentally contaminated industrial site. The first time the case was in the Seventh Circuit Court of Appeals, the court ruled that Kerr-McGee was entitled to the clean-up costs from Lefton.

After the case was remanded, the trial court ruled that Kerr-McGee should receive $9.5 million. Lefton was ordered to be liquidated to satisfy the judgment. Lefton disputed the amount because: (1) Kerr-McGee had not proven its expenses were reasonable, and (2) amounts paid to Kerr-McGee by its insurers should be deducted from the judgment. The trial court ruled that if Lefton wanted to fight about whether the insurance payments should be deducted, it should do so in a separate motion in Kerr-McGee’s proceedings to execute the judgment.

But instead of filing the motion, Lefton appealed. The first — and as it turned out, only — question for the appellate court was whether there was a final order from which to appeal. The appellate court ruled there was not a final order because the trial judge still had to decide whether the insurance payments should be deducted from Kerr-McGee’s judgment. This is how the court explained it:

An inmate in a supermax prison sued prison officials in a mandamus action. The inmate sought an order preventing controlled feeding and requiring a nurse to attend to the inmate’s self-inflicted wounds outside of his cell.

The prison officials asked for, and in July 2006 received, a dismissal of the complaint. Before that dismissal order was entered, and apparently unknown to the trial court judge, the inmate had filed a motion asking for a substitution of the trial court judge.

The court clerk did not send the parties the dismissal order for several months. In November 2006, the inmate asked the trial court, which by that time had substituted another judge, to vacate the order dismissing the case. The inmate argued that his request to substitute the original trial judge was made before the dismissal order had been entered. The inmate’s request to vacate finally was considered in September 2007. The trial court denied the request to vacate the dismissal order. The inmate appealed the denial of his motion to vacate.