by

After SG’s parents lost their parental rights, the Hixsons (grandparents) petitioned to adopt the child. Five days later, in a separate case, the Bakers (foster parents) also petitioned to adopt SG. The Bakers also asked the trial court to consolidate the two cases. Over objection by the Hixsons, the cases were consolidated.

Two weeks later, the Illinois Department of Children and Family Services entered the consolidated case and consented to the Bakers attempt to adopt SG. DCFS also asked the trial court to dismiss the Hixsons’ adoption petition. The trial court did so in late September 2009.

The Hixsons wanted to appeal the dismissal of their adoption petition. In early November 2009 the trial court issued a Rule 304(a) finding (no just reason to delay enforcement or appeal of an order that disposes of fewer than all parties and all issues). The Bakers also asked to sever the two cases they previously asked to consolidate.

Continue reading

by

The standard of review of an appeal under the Illinois Foreclosure Law is de novo. But “it is foreseeable that in a case in which a trial court has held a full evidentiary hearing on a motion to appoint a receiver, this court could find that an abuse of discretion standard or a manifest weight of the evidence standard would be appropriate to review the lower court’s judgmental decision.”

Bank of America v. 108 N. Retail, No. 1-09-3523 (1st Dist. Illinois Appellate 3/31/10).

by

Jerry Slovinski sued James Elliot, the CEO of Slovinski’s former employer, for defamation. Slovinski claimed that disparaging and untrue remarks were made about him by Elliot to one of the company’s suppliers.

A jury awarded Slovinski $81,600 for compensatory damages, and $2 million for punitive damages. The trial court thought the punitive damages verdict was too high, so it remitted it to $1 million. Slovinski appealed the remittitur, but the appellate court lowered the punitive damages verdict even more, to $81,600.

Slovinski appealed to the Illinois Supreme Court. He argued that the original $2 million verdict should stand because neither the trial court nor the appellate court stated specific reasons for lowering the verdict.

Continue reading

by

Discovery orders in Illinois generally are not immediately appealable. But a party can get an immediate appeal by refusing to comply with the order and then being held in contempt of court for doing so. The contempt order is immediately appealable.

The Second District Illinois Appellate Court recently stated this rule and identified the standard of review when a party refuses to comply with discovery based on privilege. “Berkman’s appeal of the contempt order requires us to review the underlying discovery order … On appeal, Berkman challenges the trial court’s determination that neither the attorney-client privilege nor the fifth amendment privilege shielded the requested documents from discovery. Although discovery orders are generally reviewed for abuse of discretion, we review the trial court’s determination of whether a privilege applies de novo …”

The whole case, Mueller Industries v. Berkman, No. 2-09-0134 (3/23/10), is available here.

by

Illinois law allows the seller of a product to get out of a product liability lawsuit after identifying the manufacturer of the product. But even if the dismissal is with prejudice, the dismissal order is not final and immediately appealable. The First District Illinois Appellate Court recently said it did not have jurisdiction to consider the injured parties’ appeal from a dismissal of a seller of an aircraft that had identified the manufacturer.

Section 2-621 directs the dismissal of the seller, unless the seller had knowledge of the product defect or participated in the design of the product. But it also allows for the seller to be brought back into the case if an action against the manufacturer would be, as the court stated, “impossible or unavailing.”

Because the seller was subject to being reinstated, the dismissal order did not dispose of the rights of the parties. The order therefore was not final, and not appealable at that time. “Until plaintiff files and the [trial] court rules on a motion for vacation of the order dismissing plaintiff’s strict liability claims against Air 1st [product seller] and reinstatement of those claims pursuant to section 2-621, we have no jurisdiction to consider the court’s dismissal of those claims.”

Continue reading

by

Tina Hemminger died from cervical cancer. Her husband, Daniel, sued Tina’s doctors, lab technician, and the hospital where she was treated for medical malpractice in failing to diagnose Tina’s cancer.

Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit.

The trial court gave summary judgment to the three defendants, and made a finding under Illinois Supreme Court Rule 304(a) (no just reason to delay enforcement or appeal of the judgment). Within the 30-day deadline, Daniel asked the trial court to reconsider the summary judgment. His reconsideration request raised only the statute of limitations issue, and not the immunity question. The trial court denied Daniel’s request.

Continue reading

by

Jill Hamer was touring Chicago on a Segway, a mechanical device with wheels that transports riders while they stand on the machine. Jill fell and injured herself while riding the Segway up a hill. So she sued City Segway Tours of Chicago for compensation for the injuries.

City Segway asked the trial court for summary judgment based on a release Jill signed before taking the tour. Jill opposed City Segway’s request. She also asked for leave to file an amended complaint to allege willful and wanton conduct by City Segway. But Jill did not attach her proposed amended complaint to her request. The trial court gave City Segway summary judgment and denied Jill’s request to file an amended complaint. So Jill appealed.

The First District Illinois Appellate Court affirmed the order denying Jill’s motion to file an amended complaint. The court explained: “… [B]y failing to include the amended complaint in the record on appeal, Hamer has forfeited her right to have this court review the trial court’s denial of her motion for leave to amend her complaint.”

Continue reading

by

After a collective bargaining agreement expired, a school board decreased health care benefits to teachers who took early retirement under the agreement. The teachers sued the school board for the full benefits. The trial court gave the teachers summary judgment, and the school board appealed.

The school board did not raise a federal preemption defense in the trial or appellate courts. The Second District Illinois Appellate Court ruled that preemption was subject to forfeiture because “this preemption affects only the applicable law, not the appropriate forum or jurisdiction …”

But in this case, the appellate court ignored the forfeiture because “[W]e believe that the interests of justice and the development of a sound body of precedent require the application of federal common law here … We observe with respect the United States Supreme Court’s statements regarding the importance of a uniform body of law in cases involving the interpretation of collective bargaining agreements … Accordingly, throughout this opinion we look to federal law in addressing the substantive issues raised by the parties, although we include citations to Illinois law where the issue is purely procedural or reference to state law may be helpful.”

Continue reading

by

Brad Barnes gave Rose Michalski $27,000. He said the money was a loan and he wanted repayment. She said the money was a gift, and refused to pay.

Brad sued Rose for the money. The case was tried to a judge without a jury. After Brad put on his evidence, Rose asked for a “directed verdict.” The court granted Rose’s request because, it ruled, Brad did not prove the elements of a cause of action for breach of contract. Brad appealed.

The appellate court ruled that a “directed verdict” in this case was “impossible,” because there was no jury. The real motion defendant should have made was “for a judgment in her favor at the close of plaintiff’s case, pursuant to section 2-1110 of the Code of Civil Procedure.” The difference was not “merely quibbling over nomenclature.” The kind of motion determines the kind of analysis the trial and appellate courts make, and the standard of review the appellate court applies.

Continue reading

by

Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?

The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.

… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee’s brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee’s brief, or (3) it may reverse the trial court when the appellant’s brief demonstrates prima facie reversible error that is supported by the record …

Continue reading
Contact Information
Oakbrook Terrace Office
2001 S. Meyers Rd. #315,
Oakbrook Terrace, Illinois 60181
Chicago Office
Chicago Aon Center, 200 E. Randolph,
Suite 5100, Chicago, Illinois 60601
Local: (630) 842-1117
Fax: (630) 579-6461
Skype: steve.merican

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2014 – 2024, Steven R. Merican
JUSTIA Law Firm Blog Design