Illinois Supreme Court Rules

April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

March 29, 2009

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

by Steven R. Merican

WW Westwood Center sued Canel & Associates for legal malpractice. Canel tendered the defense of the lawsuit to it malpractice insurer, TIG Insurance Company. The tender inspired cross-claims by TIG and Canel for a declaratory judgment – TIG asked for a ruling that it did not have to defend or indemnify Canel; Canel asserted just the opposite.

TIG brought Westwood into the lawsuit, and proceeded to serve discovery on Westwood. Westwood responded by asking the trial court to stay the declaratory judgment lawsuits pending a determination of its malpractice case against Canel.

Canel opposed Westwood’s request for a stay. Because TIG was not paying Canel’s defense costs in the malpractice case, Canel wanted the trial court to rule quickly (and in Canel’s favor) in the declaratory judgment case.

March 9, 2009

Default Order Not Final And Appealable

by Steven R. Merican

In this multi-count business dispute, Fidelity National Title Insurance sued a number of parties. The trial court granted summary judgment to defendants on all but one count of the complaint. A breach of contract claim still remained against Old Intercounty.

About three weeks later, the trial court ruled that Old Intercounty was in default on that contract claim. But the court did not enter a default judgment at that time. Nor did the court issue language under Illinois Supreme Court Rule 304(a) that would have permitted an appeal before a final judgment as to all issues against all parties. At Fidelity’s request, the trial court issued Rule 304(a) language as to the summary judgments a week and a half later.

Fidelity National appealed the summary judgments within 30 days of the time the trial court issued Rule 304(a) language. But Fidelity’s Notice of Appeal was filed more than 30 days after the trial court granted the summary judgments.

January 30, 2009

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

by Steven R. Merican

Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers’ was granted; Secura’s was denied.

Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed. Normally that’s okay. Illinois Supreme Court Rule 373 in effect says that mailing is filing. But the rule also states that the mailing has to be supported by an affidavit or certificate as required by Illinois Supreme Court Rule 12(b). Secura’s notice of appeal was not accompanied by either.

Farmers asked the appellate court to dismiss the appeal. Farmers argued that the lack of an affidavit or certificate stating when the notice of appeal was mailed made it impossible to tell whether Secura really complied with the 30-day deadline. The appellate court denied Farmers’ motion, ruling that “the failure to comply with the rules was ‘harmless error’ and there was no showing of prejudice to Farmers.” The appellate court then ruled in favor of Secura on the insurance coverage dispute.

December 17, 2008

“Necessary Step” Exception Overcomes Deficient Notice Of Appeal

by Steven R. Merican

Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment. But their motion raised events that were not alleged in their complaint, and some that involved a patient who was not a plaintiff in the case. The Center filed its own motion for summary judgment, and also asked the trial court to strike the parts of the residents’ motion that raised the new allegations.

The trial court granted summary judgment to the Center, and granted the Center’s motion to strike the allegations that were raised for the first time in the residents’ motion for summary judgment. The court also denied the residents’ summary judgment request.

The residents appealed. But their notice of appeal did not state they were appealing the order granting the Center’s motion to strike the new allegations in the residents’ summary judgment motion. So the First District Illinois Appellate Court initially considered whether it had jurisdiction to hear an appeal of that order.

November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

by Steven R. Merican

A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed.

The developer sued the city. The developer claimed its expenditures for the property gave it a vested right to the previous zoning classification. The developer’s complaint had two theories. The first asked for a writ of mandamus – i.e., an order that the city issue the building permits. The second demanded a declaration that the developer was entitled to the building permits. After trial, the court ordered the city to issue permits so the apartments could be built. The trial court’s judgment granted the mandamus action, but was silent on the declaratory judgment request. The city appealed.

Because the trial court did not explicitly resolve the request for a declaratory judgment, there was a question of whether the order was final and appealable. If not, the appellate court would not have jurisdiction to hear the city’s appeal.

September 24, 2008

Denial Of Food Company’s Federal Preemption Defense Not An Appealable Interlocutory Order

by Steven R. Merican

Tyson Foods moved for summary judgment in a class-action lawsuit. Tyson argued that the claims against it were preempted by federal law. The summary judgment motion was denied, and Tyson appealed.

Ordinarily, the denial of a summary judgment motion is not appealable because it is not a final judgment. But Tyson argued that the order denying its preemption defense was appealable under Illinois Supreme Court Rule 307. Rule 307 allows appeals of certain interlocutory orders, including those “granting, modifying, refusing, dissolving, or refusing to dissolve or

modify an injunction.” Tyson argued that the denial of the preemption defense “is subject to interlocutory appeal under Illinois Supreme Court Rule 307(a) … because the ‘preemption argument brings into issue the authority of the trial court to enter the order appealed from.’”

August 27, 2008

Certified Question Improper Under Illinois Supreme Court Rule 308, But Appellate Court Takes Interlocutory Appeal Anyway

by Steven R. Merican

Jerry Walker suffered a personal injury when she fell while cruising on a Carnival Cruise Line ship. She sued Carnival in Illinois, but her ticket stated that disputes must be litigated in Miami, Florida. Carnival sought dismissal of Jerry’s lawsuit, arguing that Illinois was not the proper forum. The Illinois trial court ruled that the forum-selection provision on Jerry’s ticket was unenforceable, and denied Carnival’s motion.

Because an order denying a motion to dismiss is not final and appealable, Carnival asked for permission to appeal. The trial court allowed the interlocutory appeal, and, pursuant to Illinois Supreme Court Rule 308, certified the following question for the appellate court to answer: “Whether the trial court erred in its application of law pertaining to its denial of Carnival’s … motion to dismiss …”

Rule 308 interlocutory appeals are allowed when the trial court certifies “a question of law as to which there is substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The First District Illinois Appellate Court ruled that the question certified by the trial court was not a proper Rule 308 question.

August 24, 2008

Constructive Re-filing Of Reconsideration Motion Provides Appellate Jurisdiction Over Insurer’s Appeal Of Coverage Dispute

by Steven R. Merican

Stoneridge Development Company built a townhouse for John and Marie Walski. The Walskis claimed the house suffered from structural defects caused by Stoneridge building on soil that was not compacted appropriately. After the Walskis sued Stoneridge, Stoneridge sued Essex Insurance Company, its general liability insurer, for insurance coverage for the Walskis lawsuit.

The trial court ruled that Essex had an undisclosed conflict of interest, was therefore prevented from denying coverage, and entered summary judgment for Stoneridge. Essex appealed, but Stoneridge asked the appeal to be dismissed for lack of appellate jurisdiction.

The trial court had written an opinion letter in July stating how it intended to rule and directing the parties to draft an order granting the summary judgment. Essex filed a motion to reconsider after that opinion letter was written, but before the judgment was entered. When the judgment in Stoneridge’s favor was entered, the trial court also entered and continued Essex’s motion to reconsider.

August 8, 2008

Homeowners Forfeit Argument In Illinois Supreme Court That Wasn’t Raised In Petition For Leave To Appeal

by Steven R. Merican

MD Electrical Contractors subcontracted to do work at defendants’ home. The homeowners did not pay for the work, so MD sued for the money. Because there was not a written contract, MD’s complaint used a theory of quantum meruit (that MD should be paid for the value of the work it performed). The homeowners moved to dismiss MD’s complaint, claiming that MD did not comply with the Illinois Home Repair and Remodeling Act. The trial court agreed with the homeowners and dismissed the case. But the appellate court reversed, ruling that the Repair and Remodeling Act applied only to contractors, not subcontractors.

The homeowners took the case to the Illinois Supreme Court, which agreed with MD that the Act did not apply to subcontractors. The Act, the court ruled, could not be used as a defense to a quantum meruit suit by the electrical subcontractor.

In their petition for leave to appeal to the Illinois Supreme Court, the homeowners raised only one issue, the applicability of the Repair and Remodeling Act. But in their brief to the court, the homeowners also argued that the Illinois Mechanics Lien Act restricted MD’s claim for compensation, and that MD’s request for quantum meruit damages went beyond the Mechanics Lien Act. MD in turn argued that the homeowners forfeited their Mechanics Lien argument because it was not raised in the petition for leave to appeal, as required by Illinois Supreme Court Rule 315.