Illinois Appellate Lawyer Blog

November 21, 2009

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that “aims to protect defendants from ‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government.”) The trial court denied the request to dismiss the case, so the Browns and the Furkins appealed.

The Browns and the Furkins argued that the Citizen Participation Act expressly allowed an appeal “from a trial court order denying” a motion to dismiss. But the Fifth District Illinois Appellate Court refused to recognize that part of the statute, and dismissed the appeal for lack of appellate jurisdiction. The appellate court ruled that the legislative attempt to make the order immediately appealable conflicted with the Illinois Constitution in two respects:

• First, the constitution allows only final orders to be appealed, and permits only the Illinois Supreme Court to make rules for appeal of interlocutory orders.

November 15, 2009

De Novo Standard Of Review For Petition To Vacate Dismissal When Trial Court Does Not Take Testimony

by Steven R. Merican

Christopher Mills sued Ryan McDuffa. Mills claimed he was injured when his car was rear ended by McDuffa. Two of Mills’s attorneys withdrew, and when Mills did not appear for a court hearing his case was dismissed for want of prosecution.

About four months later, a new lawyer for Mills filed a petition under Illinois Rule of Civil Procedure 2-1401 (relief from judgments more than 30 days old) to vacate the dismissal order. The trial court read the parties’ briefs and heard oral argument, but did not take live testimony from witnesses. The court then granted Mills’s petition.

McDuffa appealed. Their conclusions were opposite, but both McDuffa and Mills suggested that the standard of review was abuse-of-discretion. Nevertheless, the Second District Illinois Appellate Court ruled that the standard of review was de novo. The trial court’s decision to vacate the dismissal received no discretion because “the parties’ filings with the [trial] court were functionally equivalent to cross-motions for summary judgment, and the court’s disposition of Mills’s section 2-1401 petition was functionally equivalent to a grant of summary judgment to Mills. We review grants of summary judgment de novo.”

November 11, 2009

Unfounded Motion To Reconsider Judgment Extends Time To File Appeal

by Steven R. Merican

James Bertell was involuntarily committed to the Rockford Memorial Hospital. James sued the hospital, claiming its petition for involuntary commitment was late. The circuit court disagreed and dismissed James’s complaint. After the trial court denied James’s motion for reconsideration of the dismissal, James appealed within the 30-day deadline.

Nevertheless, the hospital asked the appellate court to dismiss the appeal for lack of appellate jurisdiction, asserting that James’s notice of appeal was filed too late. The hospital argued that James’s motion for reconsideration did not extend the time to file the appeal because the motion was “invalid and frivolous.” But the Second District Illinois Appellate Court disagreed because the rule that extends the time to file an appeal did not make an exception for unfounded reconsideration motions. Here’s the way the court explained it:

Plaintiff complied with the rule [Illinois Supreme Court Rule 303(a)(1), allowing an appeal to be filed within 30 days after a ruling on a reconsideration motion] and the statute [Illinois Civil Procedure Rule 2-1203(a), applying the extended deadline to reconsideration motions made after a bench trial]. He filed his notice of appeal within 30 days after the entry of the order denying his motion to reconsider. He filed the motion, which was directed and sought relief against the judgment dismissing his complaint, within 30 days after the entry of the judgment. Therefore, given the plain language of Rule 303(a)(1) and section 2-1203(a), we conclude that we have jurisdiction over plaintiff’s appeal.

November 9, 2009

Permanent Disgorgement And Removal From Company Board Not Appealable Interlocutory Orders

by Steven R. Merican

Rick Santella fought with family members over control of Food Groupie, Inc., a closely held family corporation. Santella, and Mary and William Kolton were co-owners of the company. Santella sued the Koltons after they gave themselves bonuses and commissions, and stated their intention to close Food Groupie and to open a similar business in which Santella would not be involved.

Santella’s lawsuit asked for return of the bonus ($ 144,019) to Food Groupie, and removal of the Koltons as directors and officers of the company. After the trial court granted both of Santella’s requests, the Koltons appealed under Illinois Supreme Court Rule 307(a)(1) (interlocutory appeal allowed from a trial court order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”)

Santella asked the First District Illinois Appellate Court to dismiss the appeal. He argued, and the appellate court agreed, that removing the Koltons as directors and officers did not require them to do anything, so those orders were not injunctions that could be appealed under Rule 307(a)(1).

November 3, 2009

Conditional Order Renders Appeal In Attorney Fee Dispute Moot

by Steven R. Merican

Clyde Engle was locked in a battle over payment of attorney fees to Foley and Lardner. Foley represented Engle in federal court litigation involving an insurance liquidation. Engle’s unpaid bill was for more than $1.8 million.

Engle agreed to pay Foley over time, and pledged his interest in bank stock as security. Foley thus took possession of some of the stock. Then Engle sued Foley and asked for a preliminary injunction preventing Foley from selling the stock. The trial court first denied Engle’s request. About two weeks later, the trial court issued a temporary restraining order prohibiting Foley from selling the stock for seven days. The court stated it would issue a preliminary injunction to that end if Engle would post a bond for the amount he owed as surety. That same day, Engle appealed the original denial of a preliminary injunction.

But Engle did not post the bond. Foley argued, and the First District Illinois Appellate Court agreed, that Engle’s appeal was moot because the trial court gave him the opportunity to get what he asked for − an injunction preventing Foley from selling the bank stock. “Having secured what they [Engle and his wife] basically sought, their appeal must be dismissed.”

November 1, 2009

Appellate Jurisdiction Okay Over Judge Substitution Motion Not Identified In Notice Of Appeal

by Steven R. Merican

The O’Briens were involved in a divorce case. John O’Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John’s request was heard by a second judge, who denied it because of a lack of evidence of prejudice.

The case went back to the first judge, held a trial on the divorce petition. The court ruled that John should make child support and maintenance payments to Lisa. After an unsuccessful reconsideration motion, John appealed.

John wanted to contest the denial of his request for substitution. But John’s notice of appeal only stated he was appealing from the denial of his reconsideration motion “and all prior orders of court culminating therein.” The issue was whether that notice of appeal was sufficient to give the appellate court jurisdiction to consider John’s request for another judge.

October 25, 2009

Appeal Before Ruling On Right To Tax Deed Premature

by Steven R. Merican

Dennis Ballinger owned a communications tower that was erected on property in Hancock County, Illinois. He filed a petition to obtain a tax deed for the property. Pettit Land, LLC. disputed Ballinger’s petition. Pettit claimed it owned the land, but not the tower, and that it properly paid taxes for the land.

Pettit asked the court to deny Ballinger’s request for the tax deed. After a hearing on Pettit’s request, the trial court ruled in Pettit’s favor and stated: “…[I]f petitioner [Ballinger] proceeded forward to obtain a tax deed, he would only receive rights in the improvements on the site (the communications tower) and would not receive rights to the underlying ground.”

Ballinger asked the trial court to reconsider the ruling. The court denied Ballinger’s request, and ruled that its original order and the order denying reconsideration were final and appealable. So Ballinger appealed.

October 23, 2009

Reconsideration Motion Untimely So Illinois Supreme Court Dismisses Appeal

by Steven R. Merican

The Illinois Supreme Court recently reversed the appellate court and dismissed Jennifer Keener’s appeal. Jennifer sued the City of Herrin on behalf of Chelsea Keener’s estate. Chelsea had been taken into custody by Herrin police for unlawful consumption of alcohol. After the police let Chelsea leave, she was struck by an automobile and killed.

Herrin asked for, and received, a dismissal of Jennifer’s amended complaint. But the court clerk did not mail a copy of the dismissal order to Jennifer’s lawyer. Apparently unaware of the dismissal, seven months later, Jennifer’s lawyer filed a response to Herrin’s motion to dismiss.

Four months after that, the case was heard on Herrin’s request for a status conference. At the status conference, the trial court stated its intention to reconsider the dismissal “upon written motion to be submitted” by Jennifer. The trial court ultimately denied Jennifer’s motion to reconsider.

October 8, 2009

End-Of-Paragraph Fact Cites Comply With Illinois Supreme Court Rules

by Steven R. Merican

Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city.

The record citations in the fact section of the city’s appellate brief were placed at the end of each paragraph, rather than after each sentence. Charles asked the appellate court to strike the facts in the city’s brief and the arguments that relied on those facts. He argued that the city’s method of record citation violated Illinois Supreme Court Rule 341(h)(6), which requires an accurate and fully cited fact section.

The Fourth District Illinois Appellate Court denied Charles’s request and allowed the city’s brief to stand. The court explained:

October 5, 2009

No Deference For Trial Court In Review Of Insurer’s Declaratory Judgment Case

by Steven R. Merican

Pekin Insurance Company and Hallmark Homes disputed insurance coverage for a personal injury lawsuit filed by Bremer, the employee of another contractor at a construction site. Bremer sued Hallmark and MC Builders. Hallmark was named as an additional insured on MC’s insurance policy with Pekin.

Hallmark asked Pekin to defend Hallmark in Bremer’s case. Pekin refused, sued Hallmark, and asked the trial court for a judgment declaring that Pekin did not have to defend the case. Hallmark counterclaimed, seeking the opposite conclusion. Pekin asked for summary judgment, but the trial court instead ruled the insurance company had a duty to defend Hallmark in Bremer’s lawsuit. Pekin appealed.

The parties disputed the appellate standard of review. Hallmark argued that an “abuse of discretion” standard applied to rulings on declaratory judgment motions. Pekin asserted that the “law is unclear on this point, with different cases stating that a declaratory judgment received review ranging from the deferential standard of “abuse of discretion” to the nondeferential de novo standard.”