Illinois Appellate Lawyer Blog

April 16, 2011

Trial Court’s Late Order Extending Time For Posttrial Motion Deprives Appellate Jurisdiction

David Wilson was in custody on a warrant for two felonies. A police detective shot Wilson while he was in an interview room at the Chicago police headquarters. Wilson sued the city and the detective. After trial, a jury ruled in favor of the city and the detective.

Within 30 days of the judgment, under section 2-1202 of the Illinois civil procedure code, Wilson asked for and received and extension of time to file a posttrial motion. Before the new deadline arrived, Wilson asked for another extension. The trial court allowed a second extension, but did not rule until after the first extension deadline passed. Wilson asked for another extension, which the trial court allowed. Then Wilson made his request for a new trial, but the court denied it. So Wilson appealed.

But the First District Illinois Appellate Court dismissed the appeal because, the court said, it did not have jurisdiction. The trial court lost the power to give the second extension when the first extended deadline passed. So the second extension, coming just a day after the first extension lapsed, was null and void, as were the third extension and Wilson’s notice of appeal. This is how the appellate court explained it:

April 8, 2011

Good Reads: Point Made Foresakes The Lecture To Show Good Writing

by Steven R. Merican

Most good-writing books suffer from a sleep-inducing sameness. Often smug and condescending, they tell you what to do and what not to do ― be concise; avoid verbosity, especially the dreaded legalese; use active verbs; don’t write passive sentences, unless of course you’re smart enough to know when to break the rule; use strong lead sentences to start paragraphs; use strong summary sentences to end paragraphs; and so on.

Author Ross Guberman breaks the die. His entertaining and informative Point Made: How to Write Like the Nation’s Top Advocates takes a smart approach to writing persuasive legal briefs. Rather than lecturing the reader about what to do, Point Made shows you how the headline lawyers do it.

Guberman breaks down the brief into basic elements — theme, facts, argument — and describes how to deliver them. He then shows skillful writing techniques with examples from briefs written by all-star lawyers.

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.

March 27, 2011

Fee Request More Than 30 Days After Final Order Doomed For Lack Of Jurisdiction

by Steven R. Merican

This posting is not strictly about appellate practice, but it’s worthwhile to read here because it answers the question of how long you have after a final order is entered to ask the trial court for attorney fees. And how long do you have to request fees after the trial court allows an interlocutory appeal? These are questions trial attorneys ask me a lot.

Timothy and Michael Herlehy felt they were shortchanged in their great-aunt’s trust. When she died, the Herlehys sued the trustee, First National Bank of LaGrange, and five charities that were residuary beneficiaries of the trust. The claim against LaGrange Bank was for breach of fiduciary duty in administering the trust. The Herlehys felt the charities received more money than they were entitled to, so the claim against the charities was for unjust enrichment.

The trial court dismissed the complaint against LaGrange Bank because it did not have a duty to change the trust in keeping with the Herlehys’ wishes. After it won, the bank asked for an award of its attorney fees, but the trial court denied that request because, it said, it did not have jurisdiction to consider the question.

March 23, 2011

Illinois Supreme Court Moots Commitment Appeal Because No “Conflict Or Disarray” In Law

by Steven R. Merican

A trial court ruled Benjamin Hernandez was a sexually violent person. Before he could be released from prison, the Illinois Sexually Violent Commitment Act required an outpatient facility to write a conditional release plan. The court ordered the plan to be written, but two years later, it still had not been prepared.

The trial court then ordered that Hernandez “is to be placed on conditional release.” The court also ordered a conditional release plan to be filed within three months.

The State appealed, but filed its notice of appeal before the conditional release plan was filed and before the trial court made a written order of releasing Hernandez. The plan later was accepted by the trial court and Hernandez was released from custody.

March 19, 2011

Injured Officer’s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

by Steven R. Merican

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

March 12, 2011

Brief Stricken In False Claim Act Appeal Because Of Flagrant Violation Of Word-Count Certification

by Steven R. Merican

This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court.

The opinion grew from a summary judgment given to Scott Memorial in a False Claims Act case. Abner appealed the summary judgment. As required by Federal Rule of Appellate Procedure 32, her lawyer signed a certification that her brief was under the 14,000 word limit. In fact, the brief had more than 18,000 words.

In response to the rule to show cause, Abner’s lawyer conceded his brief was too long. He said he inadvertently misread the rule, and did not include everything in the word count that he should have. But the appellate court ruled that Rule 32 is not ambiguous, “hence [there was] no room for misinterpreting the rule.”

March 5, 2011

Failure To File Written Opposition Not A Basis For Waiver

by Steven R. Merican

Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic’s lien had priority over Parkway’s mortgage.

Parkway asked the trial court for judgment on Beta’s counterclaim. Beta’s brief in opposition to the motion was late by one day, so the court struck it. The trial court then granted Parkway judgment on the pleadings on Beta’s counterclaim.

Beta appealed, but Parkway argued that Beta waived an objection to Parkway’s request for judgment. Parkway’s theory was that the waiver resulted from Beta’s failure to file a written objection.

February 27, 2011

Appellatology Launches From SRMPC Unashamed-Toot-Your-Horn-Marketing Department; Mock Appellate Judges Wanted

by Steven R. Merican

Appellate lawyers are belt-and–suspenders types. We read the rules; then re-read the rules; then just to be sure, read them again. We check our cites; re-check our cites; then just to be sure, check them again.

We agonize over the legal briefs we write. And for good reason: more than 90 percent of appeals are decided on the briefs. We think our facts tell the story our judges need and want to read. We think our issues and arguments leave no room for doubt.

If there were a way to know if your brief does what you think it does, would you take it? Would your client want you to? If there were a way to know if your brief addresses the facts and the law appellate judges expect, would you take it? Would your client want you to?

February 26, 2011

Condo President’s SLAPP Defense Against Developer Not Moot

by Steven R. Merican

John Walsh was the president of his condominium association. Certain members of the association felt the developer committed fraud in connection with the conversion of the apartment building to a condominium. So the association sued the developer.

Two companies and two individuals were involved in the condo conversion – Sixty Thirty LLC; Wright Management LLC; W. Andrew Wright; and James Wright. Andrew and James were members of Sixty Thirty and Wright Management, and another related company, Wright Development Group LLC. The condo association did not sue Wright Development.

About two months after the association filed its fraud lawsuit, the local alderman held a meeting to give the residents “a public forum to communicate the problems they had experienced with developers and contractors building and renovating condominium buildings in the ward.” Walsh attended the meeting, and spoke about problems at the condo and the fraud lawsuit.