Illinois Appellate Lawyer Blog

October 3, 2009

Missing Trial Court Order Sinks Parent’s Appeal Of Parental Termination Ruling

Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child.

The record on appeal contained Hampton’s motion for the independent exam, but not a resulting court order. The Fourth District Illinois Appellate Court rejected Hampton’s argument of error by the trial court because there was no way to establish from the record how, if at all, the trial court ruled. Hampton thus failed her obligation to provide a complete record from which the appellate court could review the trial court’s action. Here’s how the appellate court explained it:

“To determine whether a claimed error occurred, a court of review must have before it a record of the proceedings below.” … “The appellant [Hampton] bears the burden to present a sufficiently complete record, and this court will resolve any doubts that arise from an incomplete record against the appellant.” … Further, “[a] movant [Hampton] has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal.” …

September 27, 2009

Premature Notice Of Appeal Deprives Court Of Jurisdiction To Review Conditional Release Of Sexually Violent Person

by Steven R. Merican

Benjamin Hernandez, adjudicated to be a sexually violent person under the Illinois Sexually Violent Persons Commitment Act, was placed on conditional release. The State appealed, but filed its notice of appeal before the trial court approved the conditional release plan. Nor did the State file a new notice of appeal after the conditional release plan was approved.

The Second District Illinois Appellate Court dismissed the appeal because the State’s only notice of appeal was premature. When the trial court entered the order that placed Hernandez on conditional release, it also continued the case “for the presentation of a release plan.” The order for conditional release was not final and appealable, the court ruled, because:

[It] necessitated and contemplated further action by the court to determine the conditions of release. The [trial] court expressly retained jurisdiction over the proceedings for approval of the conditional release plan, as required by statute … We determine that the reservation of jurisdiction for the purpose of entering a conditional release plan shows that not all of the issues in dispute were fully addressed and settled by the July 3 [conditional release] order. Thus, the July 3 order was not final.

September 23, 2009

Interlocutory Order Not Identified In Notice Still Appealable

by Steven R. Merican

Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O’Neil, another of her doctors, as a respondent in discovery.

O’Neil proved difficult to serve. Eventually though, the trial court gave Lisa a certificate of merit, concluding Lisa had a meritorious case against O’Neil. A few weeks later, the trial court granted Lisa’s request to file an amended complaint. That complaint named O’Neil as a defendant in Lisa’s medical malpractice case.

O’Neil then asked the trial court (1) to vacate the order that allowed Lisa to file an amended complaint and name O’Neil as a defendant, and (2) to dismiss the claims against him in the amended complaint. O’Neil claimed the order was improper because he had not been served properly, depriving the trial court of personal jurisdiction. The trial court agreed and granted O’Neil’s requests.

September 22, 2009

Dismissal Of Original Complaint A Final Judgment That Must Be Appealed Upon Voluntary Dismissal of Amended Complaint

by Steven R. Merican

This case is more about res judicata than appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue. First, after the successful treatment, Jane and John requested that the residual embryos be ethically destroyed. They claimed in their lawsuit that the embryos were not disposed of properly. Second, the clinic’s president, Norbert Gleicher, allegedly mentioned Jane’s real name during a television interview without her permission.

Jane and John sued Gleicher and the clinic, and filed a nine-count amended complaint against them for invasion of their privacy and breach of contract. Gleicher and the clinic asked the trial court to dismiss the amended complaint. The court dismissed six of the counts, allowed Jane and John to amend the remaining three counts, and denied their request for Rule 304(a) language (which would have allowed an immediate appeal).

About five weeks later, Jane and John filed a second amended complaint “alleging breach of contract, medical malpractice, conversion of the embryos and related medical records, and invasion of privacy by public disclosure of private facts. They did not reallege any of the dismissed claims.” Then about two years later they voluntarily dismissed the case.

September 11, 2009

Trial Court Retains Jurisdiction After Appellate Remand To Firemen’s Board

by Steven R. Merican

Patricia Jelinek and Jamie O’Callaghan, both widowed spouses of firemen, disputed whether the Firemen’s Retirement Board awarded them the proper benefit. Their husbands died while they were receiving duty-related benefits for injuries they suffered as firemen. The Board granted them less than they felt they were entitled to, so, as permitted under the Illinois Administrative Code, they asked the trial court to review the decision.

In 2002, the trial court ruled in favor of the widows. The court sent the case back to the Board with directions to award a proper benefit. The Board appealed that decision to the First District Illinois Appellate Court. In 2005, the appellate court vacated the trial court’s ruling and sent the case back to the Board to determine if the husbands’ duty-related disabilities permanently prevented them from returning to active duty with the fire department.

After the Board unsuccessfully asked the Illinois Supreme Court to hear the case, the appellate court’s mandate was issued to the trial court. Jelinek’s and O’Callaghan’s cases were heard again by the Board, which granted them the greater benefit prospectively only, not dated back to the time their husbands’ died.

September 7, 2009

Forum Non Conveniens Dismissal Not A Final Order; Appealable By Petition, Not Notice Of Appeal

by Steven R. Merican

Dennis and Kimberly Quaids’ newborn twins were hospitalized at Cedars-Sanai Hospital in Los Angeles, California for a staph infection. The babies were given Heparin instead of Hep-Lock, as was prescribed by the physician. The Quaids settled a claim against the hospital before a lawsuit was filed. They sued Baxter Healthcare Corporation, the manufacturer of both medications. The Quaids’ chief claim was that the labeling for both medications was too much alike for hospital personnel to distinguish between them.

The Quaids, residents of California, filed the lawsuit in Cook County, Illinois. Baxter asked the Cook County trial court to dismiss the case on the basis of forum non conveniens − i.e., that California was a more convenient location for this case.

The Cook County trial court agreed that California was the more convenient forum and dismissed the Illinois case. The Quaids filed a petition for leave to appeal under Illinois Supreme Court Rule 306(a)(2), which specifically permits a party to do so. But Baxter argued that the trial court’s dismissal was a final order. Thus, the only way the Quaids could have invoked appellate jurisdiction was to have filed a notice of appeal under Illinois Supreme Court Rule 301. [An appeal is initiated by filing a notice of appeal.]

September 5, 2009

Involuntary Commitment To Mental Health Center Moot; Illinois Supreme Court Reviews Mootness Exceptions

by Steven R. Merican

A trial court committed Alfred H.H. to the McFarland Mental Health Center in Illinois. Alfred appealed the commitment order. But he was discharged from McFarland while the appeal was pending, so the Illinois Appellate Court dismissed the appeal because it was moot.

Alfred appealed the dismissal to the Illinois Supreme Court. The supreme court rejected all five of Alfred’s arguments, and agreed the appeal was moot and was properly dismissed. Here is how the Illinois Supreme Court assessed the mootness arguments.

1. Alfred argued that the Illinois Mental Health Code gave him a right to appeal. But the court ruled that the Code only gave Alfred the right to appeal the commitment order “in the same manner as in other civil cases.” Alfred’s appeal, just like any other, was subject to the rules of mootness. “…[M]ootness is a factor that the courts will consider in determining whether it is appropriate to decide a given case.” The supreme court also ruled that there was not a case law exception to the mootness doctrine for commitment cases.

August 23, 2009

First District Illinois Appellate Court States Levels Of Appellate Review Of Punitive Damages Verdict

by Steven R. Merican

A group of townhome owners sued Carriageway Builders, the company that built the townhouse, and Carriageway’s owner, Wayne Johnson. Unfortunately, the foundation of the townhouse settled up to 10 inches, causing all sorts of damage to the building. A jury awarded the owners more than $1.3 million. A separate, non-jury hearing was held on a statutory consumer fraud action, and the trial court awarded punitive damages to the owners.

The builder appealed. Among other things, the builder claimed the punitive damages verdict should be reversed. The First District Illinois Appellate Court affirmed the punitive damages verdict. The opinion is notable because it identifies the three levels of appellate review the court used to assess the propriety of the punitive damages award under the consumer fraud act. Here is the analysis:

In reviewing a trial court’s decision to award punitive damages, we take a three-step approach, considering (1) whether punitive damages are available for the particular cause of action, using a de novo standard, (2) whether, under a manifest weight of the evidence standard, the defendants acted fraudulently, maliciously or in a manner that warrants such damages, and (3) whether the trial court abused its discretion in imposing punitive damages.

August 18, 2009

Pending Review Of Mother’s Finances Deprives Appellate Court Of Jurisdiction In Divorce Battle

by Steven R. Merican

Rosemary Mackin was unhappy with the trial court’s division of property and the denial of maintenance in her divorce case, so she appealed. The last order by the trial court disallowed child support, but set it “for review after the expiration of 180 days for examination of the financial circumstances of [mother] and a determination by the Court at that time as to an appropriate amount of child support to be paid from that date forward by [mother] to [father] for the support of the parties’ two minor children.” Rosemary filed her appeal after this order, but before the 180-day re-examination of her finances.

Rosemary and Thomas, her ex-husband, agreed that the appellate court had jurisdiction. But the Fifth District Illinois Appellate Court reviewed jurisdiction anyway and decided otherwise. Because the issue of child support was still under consideration in the trial court, a final order from which Rosemary could appeal had not been entered. The appellate court explained:

The court decided to wait 180 days to examine the financial circumstances of mother, at which time the court would then make a determination on an appropriate amount of child support to be paid by mother from that date forward for the support of the parties’ children. Clearly the court did not resolve the issue of child support and therefore did not resolve the entire dissolution claim. Accordingly, the December 19, 2007, order [denying Rosemary’s post-trial motion disputing maintenance and division of property] was not final, and we lack jurisdiction over mother’s appeal.

August 16, 2009

Pending Motion To Disqualify Attorney Deprives Appellate Court Of Jurisdiction To Consider Custody Order

by Steven R. Merican

Neringa Valkiunas and Jeffrey Olsen were in a protracted custody battle. Neringa first appealed from a custody modification order that made Jeffrey residential custodian. That first appeal was dismissed by the Second District Illinois Appellate Court because, when the appeal was filed, two civil contempt petitions were pending in the trial court. The pending contempt petitions rendered the notice of appeal premature.

Before the dismissal of the appeal, Jeffrey filed a motion in the trial court to disqualify Neringa’s lawyer. After the trial court ruled on the contempt petitions, Neringa moved for rehearing of the dismissal in the appellate court. The request for a rehearing was granted. But unknown to the appellate court at that time, the motion to disqualify still was pending in the trial court.

So the question was: Did Neringa’s notice of appeal give the appellate court jurisdiction, or did the pending motion to disqualify Neringa’s lawyer deprive the appellate court of jurisdiction?