Illinois Appellate Lawyer Blog

January 6, 2011

Collateral Consequences Exception To Mootness Doctrine Applies To Involuntary Commitment Dispute

The police took Joseph P. to the hospital because he was acting emotionally unstable. Against Joseph’s wishes, a trial court later allowed the State’s request that Joseph be involuntarily committed to the hospital and that he be given psychotropic drugs. Joseph appealed the order. He claimed a number of statutory requirements were not followed, and that his liberty interests were violated.

The first question was whether the mootness doctrine precluded the appellate court from considering the appeal. Joseph’s appeal was moot: the commitment order was for 90 days, which had passed by the time the case reached the appellate court. But the question was whether the dispute fell under the “collateral consequences” exception to the mootness doctrine.

The “collateral consequences” exception applies if a party could suffer some future adverse repercussion if the trial court’s order were not reviewed. In Joseph’s case, the Fourth District Illinois Appellate Court concluded the exception should apply. Here’s why:

January 3, 2011

Citizen Participation Act Defense Can’t Be Raised For The First Time On Appeal.

by Steven R. Merican

A.J. Bos got approval from the Department of Agriculture to build a “megadairy” in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste. They formed an organization, Helping Others Maintain Environmental Standards, referred to as HOMES, to oppose the dairy.

HOMES sued Bos, and asked the trial court for a preliminary injunction to prevent the dairy from being built. The trial court enjoined Bos from operating a livestock management facility at that location. Bos felt the injunction was improperly entered because HOMES greatly overstated its case and withheld evidence favorable to Bos. Bos asked the trial court to dissolve the injunction, and to award him damages for HOMES’s conduct, but the court denied Bos’s requests. So Bos appealed.

After a full hearing, the trial court refused HOMES’s request for a permanent injunction against Bos’s proposed dairy farm. The court ruled that HOMES had not proven its case by a preponderance of the evidence. So HOMES appealed.

December 19, 2010

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

by Steven R. Merican

While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

December 12, 2010

Recent Opinions On Standards Of Review In Illinois Appellate Courts: Substantial Compliance With Statute; New Trial; Damages; Mistrial

by Steven R. Merican

Writing an appellate brief? Here are some helpful excerpts from recently published opinions regarding standards of review in the Illinois appellate courts.

(1) Figueroa v. Deacon, No. 1-09-1844, First District Illinois Appellate Court (8/25/10). Re substantial compliance with a statute: “Whether there is substantial compliance with a statutory provision is a question of law and our standard of review is de novo.”

(2) Union Planters Bank v. Thompson Coburn, No. 5-08-0497, Fifth District Illinois Appellate Court (6/3/19). Re appeal of an order for a new trial and damages assessed a jury:

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.)

November 28, 2010

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

by Steven R. Merican

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov’s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein’s libel case. Among other things, Krislov asserted immunity from Stein’s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov’s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov’s appeal. The appellate court stated (1) the denial of Krislov’s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

November 23, 2010

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer’s Sanctions Request

by Steven R. Merican

Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident. The Yunkers felt they were entitled to coverage under the insurance policy, so they sued Pekin.

The trial court agreed with Pekin, and gave the insurer summary judgment, Four days later, the Yunkers appealed the trial court’s ruling.

About two and one-half weeks after that, Pekin filed a request for sanctions against the Yunkers in the trial court. The trial court denied Pekin’s sanctions request a few weeks later. Pekin appealed that ruling. Pekin also asked the appellate court to dismiss the Yunker’s appeal. Pekin argued that its request for sanctions rendered the Yunker’s appeal of the summary judgment premature, resulting in no jurisdiction for the appellate court over the Yunker’s appeal.

November 15, 2010

Objections Sufficient To Preserve Evidence Issue For Appeal

by Steven R. Merican

The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you

believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?

Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.

November 10, 2010

Term Limits The Lesson Of Attack On Kilbride’s Retention

by Steven R. Merican

Illinois Supreme Court Justice Thomas Kilbride won his retention election last week. About 65 percent of voters in his district voted to retain him. Now he has the option of serving another 10-year term. The lesson of this retention campaign is: The office of judge should have a term limit so judges can to use their powers to support individuals’ and minorities’ liberty.

The Kilbride retention vote caused a lot of hand wringing. Kilbride’s opponents were bashed for politicizing a process the pro-Kilbriders felt should be free from substantive criticism. Kilbride’s supporters said they didn’t like the way Kilbride was criticized for some of his judicial decisions. They shouted that Kilbride’s critics were besmirching “judicial independence” and “rule of law.”

But Illinois judges are political animals. The Illinois Constitution makes sure of that. Judges in Illinois are elected to the bench in competitive contests. And judges are required to stand before the people, who get to decide whether the judge should be retained. If a judge is not deciding cases the way the people want him to, the people can fire him. All it takes is a vote of 40-percent-plus-one to deny retention in Illinois.

October 31, 2010

Notice Of Appeal Saves Doctor From Forfeiting Reversal Argument

by Steven R. Merican

A baby sustained serious injuries at birth. His parents sued the doctor who performed the delivery for medical malpractice. The parents got a favorable trial verdict, so the doctor appealed.

In the appellate court, the doctor claimed he should have been awarded a directed verdict by the trial court “because there was a total failure of proof on the element of proximate causation.” But the doctor’s brief asked for a new trial, but did not ask the appellate court to reverse based on insufficient evidence.

The Second District Illinois Appellate Court ruled that the doctor forfeited “in [his] brief” the argument that the judgment should be reversed for lack of evidence. The court then reviewed the doctor’s notice of appeal, which did ask to “vacate or reverse the judgment, to enter judgment notwithstanding the verdict in their [parent’s] favor … and to grant any other relief warranted by the applicable law and record on appeal.”