The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.
You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.
Urban Sites of Chicago leased property to Crown Castle USA and T-Mobile USA. The parties had a disagreement about the terms of the lease, so Urban sued Crown and T-Mobile. Crown and T-Mobile counter-sued Urban.
Crown and T-Mobile asked for summary judgment, which the trial court granted. They argued that the lease had been modified to their benefit. Urban, arguing there was insufficient consideration to support the modification and relying on a company representative’s affidavit, then asked for reconsideration of the summary judgments, which the trial court denied.
Urban appealed. But the First District Illinois Appellate Court agreed with Crown and T-Mobile. The appellate court refused to even consider Urban’s affidavit because it was “submitted … for the first time in its [Urban’s] motion to reconsider … [and] was not part of the summary judgment process and was Urban Sites’ only attempt to present a basis for its lack of consideration argument. We cannot consider this document because the scope of appellate review of a summary judgment motion is limited to the record as it existed when the circuit court ruled on the summary judgment motion.”
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.
Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.
The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:
An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.
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.
Harry Balough was injured in his work maintaining a railroad car. So he sued his employer, the railroad company. A jury awarded him damages of $500,000, but also found he was 40 percent responsible for his injury. So Balough’s award was reduced to $300,000.
Balough then asked the trial court to reinstate the $500,000 verdict. He argued that the statute he sued under did not allow for reduction of a verdict because of his own contributory fault. The trial court agreed, and entered a verdict for the larger amount.
The Railroad appealed, but did not put the facts for the jury’s finding nor for the trial court’s legal ruling into the appellate record. The First District Illinois Appellate Court agreed with trial court’s legal ruling that Balough’s contributory fault could not serve to reduce his full damage award. The appellate court also ruled that presumptions of fact fell in Balough’s favor because it was the Railroad’s burden, as the party appealing, to assure there was an adequate appellate record. Here’s how the appellate court explained it:
This case involved John Crane, Inc.’s claim for insurance coverage, and the insurers’ counterclaim against Crane. The insurers persuaded the trial court to dismiss Crane’s complaint. Two days later, Crane appealed the dismissal.
Then CNA, one of the insurers, asked the trial court to vacate or modify the dismissal order and for leave to amend its counterclaim against Crane. The trial court ruled (1) against CNA and would not allow the judgment to be vacated or modified, (2) for CNA and allowed amendment of the counterclaim against Crane.
Two weeks later, the trial court entered a final judgment on all of the remaining claims except CNA’s counterclaim.
Mark Thompson filed a complaint in the Illinois State Board of Elections against Elizabeth Gorman. Thompson claimed Gorman filed false reports concerning loans and financing of a campaign for elected office.
After a closed preliminary hearing, the Board examiner “recommended that petitioner’s [Thompson] complaint be found not to have been filed upon justifiable grounds and that the matter not proceed to a public hearing.” The Board adopted the examiner’s recommendation and dismissed Thompson’s complaint.
The examiner issued a written report. But the Board did not make findings of fact in support of its ruling. The Board stated only that its ruling was based on a reading of the examiner’s report and the recommendation of the Board’s general counsel. (The general counsel’s report was not in the record on appeal.)
Jerry Slovinski sued James Elliot, the CEO of Slovinski’s former employer, for defamation. Slovinski claimed that disparaging and untrue remarks were made about him by Elliot to one of the company’s suppliers.
A jury awarded Slovinski $81,600 for compensatory damages, and $2 million for punitive damages. The trial court thought the punitive damages verdict was too high, so it remitted it to $1 million. Slovinski appealed the remittitur, but the appellate court lowered the punitive damages verdict even more, to $81,600.
Slovinski appealed to the Illinois Supreme Court. He argued that the original $2 million verdict should stand because neither the trial court nor the appellate court stated specific reasons for lowering the verdict.
Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child.
The record on appeal contained Hampton’s motion for the independent exam, but not a resulting court order. The Fourth District Illinois Appellate Court rejected Hampton’s argument of error by the trial court because there was no way to establish from the record how, if at all, the trial court ruled. Hampton thus failed her obligation to provide a complete record from which the appellate court could review the trial court’s action. Here’s how the appellate court explained it:
“To determine whether a claimed error occurred, a court of review must have before it a record of the proceedings below.” … “The appellant [Hampton] bears the burden to present a sufficiently complete record, and this court will resolve any doubts that arise from an incomplete record against the appellant.” … Further, “[a] movant [Hampton] has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal.” …
Illinois Appellate Lawyer Blog