Cross-Appeal

June 20, 2009

Chiropractor Waives Unjust Enrichment Claim For Failure To File Cross-Appeal

Richard Martis, a chiropractor, treated Water Management Corp.’s employee for an on-the-job injury. Water Management’s worker compensation insurer was Grinnell Mutual Reinsurance Company. Martis was not in Grinnell’s preferred provider network. He submitted his bill to Grinnell for the treating the employee. Grinnell discounted the bill and paid Martis as if he had preferred provider agreement with Grinnell.

Apparently angered for being shorted, Martis sued Grinnell. He alleged actions for conspiracy, unjust enrichment, violation of the Illinois Consumer Fraud Act, and breach of contract, and asked the trial court to certify the case as a class action. The trial court dismissed everything except the contract action, and also certified class action status.

Grinnell appealed, aguing that the class should not have been certified because Martis’s breach of contract claim did not state a proper cause of action. The Third District Illinois Appellate Court ruled that Martis was not a third-party beneficiary of Water Management’s worker compensation insurance policy with Grinnell, so Martis could not sue for breach of that contract.

January 8, 2009

City’s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

by Steven R. Merican

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

by Steven R. Merican

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

February 6, 2007

7th Circuit Requires Insurance Company To Cross-Appeal Effort To Expand Rights

by Steven R. Merican

Pacific Insurance Co. defended an appeal of partial summary judgment. Pacific, as appellee, raised three gripes with the judgment. But Pacific did not file a cross-appeal. Pacific argued that the 7th Circuit could consider the arguments on the theory that the appellate court can affirm the district court on any ground supported by the record. The appellate court refused to consider Pacific’s positions because ruling in Pacific’s favor would have enlarged its rights under the judgment entered by the trial court. To accomplish that, Pacific was required to have filed a cross-appeal.

Get the whole case, Illinois School District Agency v. Pacific Insurance Co., No. 04-4147, 05-1271 (12/5/06), by clicking here.

February 1, 2007

First District Appellate: Mortgagee Who Did Not File Cross-Appeal Cannot Dispute Fee Award

by Steven R. Merican

This three-way dispute involved the mortgagee, the mortgagor, and the high bidder on the foreclosed property. The mortgagor defaulted, and the subject property was foreclosed and sold. The trial court denied a motion by the high bidder to confirm a judicial sale, but did order the mortgagor to pay the high bidder’s attorney fees.

The high bidder appealed the denial of its motion to confirm. The mortgagor did not cross-appeal the fee award, but did dispute it in its response brief. The First District Illinois Appellate Court refused to hear the argument over the fee award because a cross-appeal had not been filed. The court explained:

We also find it important to note plaintiff’s [mortgagor] contention that the circuit court erred in awarding interest and attorneys’ fees to intervenor [high bidder] at plaintiff’s expense. Plaintiff raised this contention in its response brief but it did not cross-appeal the judgment of the circuit court ordering it to pay these costs to intervenor. Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee . . . However, findings adverse to the appellee require a cross-appeal if the judgment was in part against the appellee . . . Here, the circuit court granted plaintiff’s motion to vacate the sale and dismiss the case with prejudice but it also assessed specified costs against plaintiff based on equitable principles. The circuit court’s judgment was in part against plaintiff. Thus, plaintiff was required to file a cross-appeal to argue this issue on appeal . . . We, therefore, decline to address plaintiff’s argument relative to the circuit court’s judgment that was adverse to plaintiff.