Remand

October 23, 2014

Trial Court Sanctions Ruling Too Terse. Appellate Court Sends It Back For More Specificity

Lake Environmental was doing asbestos removal at Scott Air Force Base in southern Illinois. The State, claiming that Lake had violated regulations, persuaded the Department of Public Health to revoke Lake’s asbestos removal license. Lake asked the trial court to review the department’s decision. But while that review was still pending, the State filed another complaint in the Department that asked for penalties and an injunction.

The trial court reversed the Department’s decision to revoke the license. Lake then asked the court to sanction the State. The trial court denied the sanction request, but did not say why. So Lake appealed the denial of sanctions to the Illinois Fifth District Court of Appeals.

The appellate court ruled that it had no basis to affirm the denial of sanctions because the trial court’s terse denial did not meet the requirement that a court must provide a reasoned analysis for its sanctions ruling.

June 27, 2013

Illinois Supreme Court Refuses To Remand Willful-And-Wanton Assertion Against Ambulance Company

by Steven R. Merican

Karen Wilkins was making a left turn on a busy street in Oak Lawn, Illinois when she collided with an ambulance owned by Superior Ambulance Service. The ambulance was transporting a patient at the time, but did not have its siren or flashing lights on. Wilkins, injured in the accident, sued Superior. Her one-count complaint claimed Superior’s negligence caused the accident.

Superior asked the trial court for summary judgment because, Superior asserted, the Illinois Emergency Medical Services Systems Act gave the ambulance company immunity from being sued. The trial court agreed and gave Superior summary judgment.

Wilkins then appealed. The First District Illinois Appellate Court sided with Wilkins, and ruled that the Act did not give immunity when the ambulance was was being driven in an ordinary, non-emergency manner.

April 2, 2011

Illinois Supreme Court Dismisses And Remands Medical Malpractice Appeal Taken Under Voided Statute

by Steven R. Merican

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

January 22, 2011

Law-Of-The-Case Doctrine And Appellate Mandate Direct Trial Court’s Actions On Remand

by Steven R. Merican

The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home.

Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers. The Bjorks asked for declaratory judgment that the conservation easement could not be amended. The trial court ruled that two of the amendments were valid.

The Bjorks appealed, and the appellate court ruled (1) the conservation easement could be amended, (2) the two amendments the trial court said were valid in fact were not because they directly conflicted with the easement, and (3) the Drapers’ violations of the easement were not intentional or culpably negligent. The appellate court directed the trial court “to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which if any, may be retained.’”

December 5, 2010

Dismissal Of Election Law Complaint Remanded To Board For Lack Of Fact Findings

by Steven R. Merican

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.)

September 11, 2009

Trial Court Retains Jurisdiction After Appellate Remand To Firemen’s Board

by Steven R. Merican

Patricia Jelinek and Jamie O’Callaghan, both widowed spouses of firemen, disputed whether the Firemen’s Retirement Board awarded them the proper benefit. Their husbands died while they were receiving duty-related benefits for injuries they suffered as firemen. The Board granted them less than they felt they were entitled to, so, as permitted under the Illinois Administrative Code, they asked the trial court to review the decision.

In 2002, the trial court ruled in favor of the widows. The court sent the case back to the Board with directions to award a proper benefit. The Board appealed that decision to the First District Illinois Appellate Court. In 2005, the appellate court vacated the trial court’s ruling and sent the case back to the Board to determine if the husbands’ duty-related disabilities permanently prevented them from returning to active duty with the fire department.

After the Board unsuccessfully asked the Illinois Supreme Court to hear the case, the appellate court’s mandate was issued to the trial court. Jelinek’s and O’Callaghan’s cases were heard again by the Board, which granted them the greater benefit prospectively only, not dated back to the time their husbands’ died.

May 5, 2009

Rules After Remand; Jurisdiction Over Fee Petition After Appeal Notice Is Filed

by Steven R. Merican

Two important rulings arise from this landlord-tenant dispute.

After remand from the appellate court — which did not include instructions for how to proceed — the tenant asked the trial court for leave to amend its complaint to add a new item of damages. The trial court denied the tenant’s request because, it said, it did not have jurisdiction to do so.

Must the appellate court give specific directions to the trial court in an order of remand? The First District Illinois Appellate Court said “No.” Then what is the trial court’s authority and obligation after the appellate court sends the case back to the trial court? Here’s how the appellate court answered the question, complete with the standard of review:

April 16, 2009

No Appellate Standing For Knox County Employees Being Investigated; Appellate Court Lacks Supervisory Authority To Order A Special Prosecutor On Remand

by Steven R. Merican

This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.

Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.

The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.

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.

June 19, 2007

Trial Court Without Power After Reversal Without Remand

by Steven R. Merican

In this procedurally complicated case, Draper and Kramer sued Dalan/Jupiter and Trammel Crow for breach of contract. Draper prevailed in a bench trial, but its judgment was reversed, without remand, on appeal.

Nonetheless, back in the trial court, Dalan moved for its attorney fees. The trial court concluded that it did not have jurisdiction to rule because Dalan filed the motion too late. Dalan then filed another lawsuit that requested the same attorney fees it expended defending the original lawsuit. The trial court granted summary judgment in favor of Draper and Kramer in that second lawsuit, ruling that the earlier denial of Dalan’s fee petition precluded the second lawsuit. Dalan appealed from that summary judgment.

The appellate court ruled that the trial court did not have jurisdiction even to consider Dalan’s petition for fees in the first case because the case had not been remanded from the appellate court. Thus, it did not have power to rule that Dalan’s motion was untimely. The appellate court explained: