Interlocutory Appeals

August 27, 2008

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

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.

June 30, 2008

No Abuse Of Discretion In Finding Law Firm Waived Right To Arbitration

by Steven R. Merican

Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case. Woods then sued for malpractice.

In the malpractice case, the law firm raised an affirmative defense that its agreement with Woods required arbitration of “[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services …” But the firm also made two motions to dismiss the case, filed a demand for a bill of particulars, served interrogatories on plaintiff, and issued a subpoena for documents to a third-party.

After all that, the firm asked the court to compel arbitration of the dispute. The trial court ruled that the law firm waived its right to compel arbitration because it participated so heavily in Woods’s lawsuit. The law firm appealed the denial of its attempt to compel the arbitration.

March 5, 2008

Illinois Supreme Court Rules De Novo Standard Of Review Applies To Permissive Review Of Conflict Of Law Question

by Steven R. Merican

Michelle Townsend brought a product liability case Sears Roebuck on behalf of her minor son Jacob. Jacob was badly injured when he was run over by a lawn tractor operated in his yard. Sears allegedly designed and manufactured the tractor.

The accident happened in Michigan, where Michelle and Jacob resided. But Sears was domiciled in Illinois and made certain design and marketing decisions in Illinois. The parties fought over whether Illinois or Michigan law applied.

The trial court ruled that Illinois law applied. Pursuant to Illinois Supreme Court Rule 308, the trial court certified the question of the proper choice of law for immediate interlocutory appeal. The appellate court accepted the appeal, and affirmed the decision to apply Illinois law.

December 12, 2007

Fifth District Illinois Appellate Court Without Jurisdiction To Allow Permissive Appeal Of Forum Motion

by Steven R. Merican

Janet Chochorowski rented a power tiller from a Home Depot in Missouri. She claimed she did not want to purchase a damage waiver, but that she was charged for it anyway. She turned her grievance into a class action lawsuit in Illinois.

Janet’s breach of contract and unjust enrichment claims were dismissed. That left her with a single claim under the Missouri Merchandising Practices Act. Home Depot moved to dismiss the complaint on the basis of forum non conveniens. The trial court denied the motion, but on a permissive interlocutory appeal, the appellate court reversed. Chochorowski asked for and was granted a rehearing.

On rehearing, the appellate court considered whether it had jurisdiction to review Home Depot’s forum non conveniens motion made pursuant to Illinois Supreme Court Rule 306(a)(4) (allowing a permissive appeal “from the denial of a motion for transfer of venue to a court within another county in the state.”) The Fifth District Illinois Appellate Court ruled that Home Depot sought to have the case re-filed in Missouri, not transferred to another Illinois county. Thus, the court ruled that it did not have “authority to grant leave to appeal from the nonfinal order disposing of that issue.” That part of Home Depot’s appeal was dismissed.

December 4, 2007

Illinois Supreme Court Vacates Appellate Ruling On Interlocutory Order.

by Steven R. Merican

In a battle between insurance company titans, State Farm sued Illinois Farmers for a declaration that the “step down” provisions in the Farmers’ automobile policies were unenforceable because they were against public policy. (“Step down” provisions allow the insurer to reduce policy limits when the driver of the insured vehicle is neither a family member nor a listed driver.) Farmers moved to dismiss the complaint, claiming the step down provisions were clear and unambiguous. State Farm moved for partial summary judgment, claiming that the step down provisions were against public policy.

The trial court denied Farmers’ motion to dismiss, and granted State Farm’s motion for partial summary judgment. So the judgment that was entered only concerned the public policy issue. The trial court also entered Rule 304(a) language, allowing an interlocutory appeal.

Farmers appealed the public policy ruling. In its brief, Farmers also advanced its ambiguity argument. The court of appeals reversed, ruling that the step down provisions were not contrary to public policy. Over objection by State Farm, the appellate court ruled that the ambiguity argument was properly before the court. The appellate court ruled that the Farmers policy was not ambiguous.

November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

by Steven R. Merican

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

by Steven R. Merican

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

October 22, 2007

7th Circuit Dismisses Appeal Of Remand After District Court Denies Immunity Request

by Steven R. Merican

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

October 8, 2007

First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

by Steven R. Merican

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the addition of that language did not alter the fact that the court’s orders were not final as to any claim or party and were, thus, not subject to Rule 304(a).”

September 4, 2007

Failure By Trial Court Clerk To Mail Order Does Not Relieve 30-Day Deadline To Appeal

by Steven R. Merican

Teresa De Bouse brought a class action case against Bayer AG, claiming that Bayer misrepresented Baycol, a pharmaceutical that Bayer marketed to consumers. Teresa’s class certification motion was granted in the trial court. But the trial court clerk neglected to mail the order to the parties. Bayer’s lawyers did not learn about the order granting certification until long past the 30-day deadline to petition for appeal of class certification rulings in Illinois Supreme Court Rule 306(a)(8).

To give Bayer the opportunity to appeal the certification ruling, the trial court vacated its original order nunc pro tunc and reentered it. That action by the trial court came more than 30 days after the original ruling.

Bayer appealed the certification order. The Fifth District Illinois Appellate Court dismissed the appeal of the class certification ruling, and rejected each of Bayer’s arguments: