Illinois Appellate Lawyer Blog

February 24, 2011

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

David and Rojean Molloy were battling for custody of their two children.

The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David’s lawyer from attending the social worker’s evaluation session with David. The trial court agreed and barred David’s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

February 18, 2011

Claimant’s Award In Shell Oil Gasoline Pipeline Class Action Case Reviewed For Abuse Of Discretion

by Steven R. Merican

Shell Oil Company’s pipeline leaked thousands of gallons of gasoline onto the Danhausen Farm in Kankakee County, Illinois. The lawsuit against Shell turned into a class action.

After Shell and the class reached a settlement, the trial court appointed a former judge as Settlement Administrator to recommend an allocation of the settlement funds among the class members.

The Administrator awarded the Danhausen Estate $120,489. But the Estate wanted more than $4.6 million. The Estate objected to the award, the trial court accepted the $120,489 recommendation, so the Estate appealed.

February 14, 2011

Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

by Steven R. Merican

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

February 5, 2011

Rootin-Tootin Tootin

by Steven R. Merican

A couple of hundred years ago when I was a Big Law associate, a Big Law managing partner told me to “Toot your own horn, because nobody else will.” I thought of that the other day when I got a memo from the grand poobah of the Steven R Merican Unashamed-Toot-Your-Horn-Marketing Department. Although I’ve never seen him, so I can’t absolutely confirm this, I’ve been told the memo-writer over there wears particularly green eyeshades and is a resident of Chicago, although he lives elsewhere.

The memo directed all employees to toot whenever possible. “But,” I told Green Eyeshade, “tooting is not in my bones. I would rather talk about the law.” No matter, Green Eyeshade memo’d me. In a law firm the size of SRM, you must do your own tootin’. “So go toot.”

Well I’m a company guy, so here goes. ♪♪♪ The other day when the Chicago Tribune needed to understand the appellate process surrounding the Rahm Emanuel mayoral-candidacy lawsuit, the paper turned to the author of this fine appellate law blog for answers. You can read his nearly prescient observations here. And when KWQC HD television in Davenport, Iowa wanted to explain to its viewers what was going on in the appellate courts on the other side of the Mississippi, the station interviewed that same fellow. Demand for the interview is exceeding all expectations, and a digital version has unexpectedly become temporarily, Green Eyeshade hopes, unavailable. The station is searching the bowels of its archives for the interview. Illinois Appellate Lawyer Blog will post it upon receipt. (YouTube? YouTube? We don’t need no stinkin …)

January 31, 2011

De Novo Review For Compliance With Illinois Rule Requiring Health Care Report In Medical Malpractice Case

by Steven R. Merican

What is the standard of review for a dismissal with prejudice for failure to file a report from a health care professional within 90 days of filing of the complaint? The Second District Illinois Appellate Court requires de novo review.

Although we typically review the dismissal of a complaint with prejudice (as opposed to without prejudice) under an abuse of discretion standard … we determine that a de novo standard of review applies here, because the trial court’s decision was based on whether plaintiff complied with section 2-622 [Illinois Code of Civil Procedure], which involves statutory interpretation …

In this case, the appellate court reversed the dismissal of the case and remanded to the trial court to determine whether the deadline should have been extended for another 90 days. Read it all, Knight v. Van Matre Rehabilitation Center, No. 2-09-1127 (9/29/10), by clicking here.

January 28, 2011

De Novo Standard Of Review For Attorney Fee Award, Abuse Of Discretion For Reasonableness Of Award

by Steven R. Merican

Shoreline Towers Condominium Association sued Debra Gassman, claiming she “waged a campaign of harassment and intimidation against Shoreline.” Gassman had sued Shoreline, and had filed complaints with government agencies, asserting the association had engaged in religious discrimination. The dispute arose when Shoreline removed a mezuzah Gassman placed at the doorpost at the entrance of her apartment.

Gassman asked the trial court to dismiss Shoreline’s case because, she argued, it was prohibited by the Illinois Citizen Participation Act. The trial court agreed in large part, and dismissed most of Shoreline’s case. The court ruled that the Participation Act required Shoreline to pay Gassman’s attorney fees incurred in asking for the dismissal.

The dispute is backdrop for the appellate court’s rulings on the standard of review for an award of attorney fees, which Shoreline appealed. The First District Illinois Appellate Court distinguished between review of the order awarding the fees and of the amount of the award.

January 27, 2011

Victory On Petition Before Labor Board Dooms Union’s Appeal Of Board’s Rationale

by Steven R. Merican

A police labor union wanted to be the exclusive representative of “all aviation security sergeants employed by the City of Chicago.” Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union’s petition. But the union was not completely satisfied because the Board ruled that the sergeants were not “peace officers,” a legal designation under the Illinois Labor Relations Act that affects the sergeants’ bargaining status.

Both Chicago and the union appealed ― Chicago to get the “exclusive representation” ruling reversed; the union to get the sergeants-are-not-peace-officers ruling reversed.

The First District Illinois Appellate Court affirmed the “exclusive representation” ruling, but dismissed the union’s “peace officer” appeal. The appellate court ruled that the union could not appeal because it won the right to be the exclusive representative, which is what it asked for in its petition. The union’s disagreement with some of the Board’s peripheral rulings was not a basis to appeal. Here is how the appellate court explained it:

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.’”

January 13, 2011

Collateral Consequences Not A Bar To Mootness Doctrine Where Patient Has History Of Illness

by Steven R. Merican

This case involved another dispute about whether an involuntary commitment to a hospital and administration of psychotropic drugs was proper. James H. was diagnosed as schizophrenic. The State’s psychiatrist considered James to be a threat to himself and to the public.

James was admitted to a hospital against his wishes for 90 days. He disputed the commitment, but by the time his case was heard in the appellate court, it was moot because the 90-day commitment period lapsed. So the first question for the appellate court, as it is with so many involuntary commitment cases, was whether the mootness doctrine prohibited the court from considering the dispute.

James argued the collateral-consequences exception to the mootness doctrine allowed the appellate court to review his case. “This exception applies where the respondent [James] could be plagued by the adjudication at issue … Respondent argues if faced with civil commitment again, having once been judged mentally ill and in need of commitment, he would now have a history of mental illness which would work against him.” The record showed that James previously had been hospitalized because of mental problems, but it was unclear whether that hospitalization was involuntary.

January 10, 2011

Proposal For New Law School Model Would Improve Students’ Employment Prospects, Reduce Student Debt, And Make For Better Equipped Lawyers

by Steven R. Merican

Yesterday’s New York Times ran an article questioning the enormous loans many students need to get through law school, and how law schools game the school ratings. That’s news? Here is a letter to the editor I wrote today, suggesting a radical fix:

To the Editor:

“Is Law School a Losing Game?” begs the question: what do we do about the foolish amount of debt students must absorb to get through law school? The answer is: change the structure of law school and the requirements one must meet to practice law.