Illinois Appellate Lawyer Blog

March 9, 2009

Default Order Not Final And Appealable

In this multi-count business dispute, Fidelity National Title Insurance sued a number of parties. The trial court granted summary judgment to defendants on all but one count of the complaint. A breach of contract claim still remained against Old Intercounty.

About three weeks later, the trial court ruled that Old Intercounty was in default on that contract claim. But the court did not enter a default judgment at that time. Nor did the court issue language under Illinois Supreme Court Rule 304(a) that would have permitted an appeal before a final judgment as to all issues against all parties. At Fidelity’s request, the trial court issued Rule 304(a) language as to the summary judgments a week and a half later.

Fidelity National appealed the summary judgments within 30 days of the time the trial court issued Rule 304(a) language. But Fidelity’s Notice of Appeal was filed more than 30 days after the trial court granted the summary judgments.

February 25, 2009

Lawsuit To Prevent Spending For Stem Cell Research Moot On Appeal

by Steven R. Merican

Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor’s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose. The trial court ruled that the case presented a political question, not a question of law that the court could legitimately decide. So the trial court dismissed the case.

Caro appealed, but before the appellate court considered the case, the Director awarded more than $9 million in grants for stem cell research. Caro wanted the appeal heard anyway, “to work out the appropriate corrective remedy.” The Director wanted the appeal dismissed. He argued that the case was moot because the money already had been disbursed.

The First District Illinois Appellate Court agreed that the case was moot. The appellate court ruled that it could not give Caro what he wanted. Here’s what the court said:

February 21, 2009

Trial Court’s “Final And Appealable” Order Not Necessarily So

by Steven R. Merican

This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it’s not necessarily so.

GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage. Michele did not timely enter an appearance in the trial court, so a default judgment of foreclosure was entered against her. She asked the court to vacate the default and to quash service of the lawsuit. In turn, GMB asked the court to strike Michele’s motion. The trial court granted GMB’s motion to strike, and stated that its order was “final and appealable.” Later, the trial court confirmed GMB’s sale of the property.

Michele appealed both trial court rulings. Her Notice of Appeal was filed within 30 days of the court’s order that approved the sale of the property, but more than 30 days after the trial court made its “final and appealable” order granting GMB’s request to strike the motion to quash service.

February 15, 2009

Huskie’s Owner Confuses Manifest Weight Standard Of Review With Burden Of Proof At Trial

by Steven R. Merican

Molly, a dachshund, was mauled by Cosmo, a Siberian Huskie. Mark and Mindy Leith, Molly’s owners, sued Andrew Frost, Cosmo’s owner, for tortious damage to property. After a bench trial, a judge awarded nominal damages to Mark and Mindy. They thought they should have been awarded the several thousand dollars they paid a veterinarian who treated Molly. So Mark and Mindy appealed.

The case is important for appellate practitioners because it points out a common mistake in stating the correct standard of review. Andrew argued that “the manifest weight of the evidence did not show that Cosmo was the dog that attacked Molly.” But Andrew’s statement of the standard of review was exactly the opposite of correct one. The party appealing has to show that the court’s conclusion was against the manifest weight of the evidence, not that the winner in the trial court failed to prove his case by the manifest weight. The Fourth District Illinois Appellate Court explained:

This argument [Andrew’s] misstates the standard of review. If we asked whether the manifest weight of the evidence supported the trial court’s factual findings, our standard of review would be de novo. Instead, we are to ask a deferential question: whether the court’s factual findings or conclusions are against the manifest weight of the evidence … A conclusion is against the manifest weight of the evidence if the opposite conclusion is apparent from the record … A finding is against the manifest weight of the evidence if the finding is unreasonable, arbitrary, or not based on evidence … The court concluded that plaintiffs had proved, by a preponderance of the evidence, that Cosmo attacked Molly. The opposite conclusion–that plaintiff failed to so prove–is not apparent from the record. The court found that Cosmo attacked Molly. That finding is not unreasonable, arbitrary, or lacking in any evidentiary basis. Plaintiffs and defendant had been next-door neighbors for three weeks. Mindy Leith testified she had looked over the fence and had seen Cosmo. She testified she stood over Cosmo as Cosmo mauled Molly.

February 11, 2009

Objection To Expert Waived Where “Speculation” Argument Not Asserted During Testimony

by Steven R. Merican

Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler’s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed.

At trial, William and Ramona’s expert testified that Linnea probably approached Gambler’s “kick zone,” an area directly behind the horse that the horse instinctively kicks when surprised. In the appellate court, Linnea argued that the expert’s testimony was inadmissible because it was speculative. William and Ramona asserted that the “speculation” argument had been waived because it was not properly preserved in the trial court.

The First District Illinois Appellate Court agreed with William and Ramona. Although Linnea made a pre-trial objection based on speculation, she did not assert the “speculation” objection during the expert’s testimony at trial. Here’s what the court said:

February 7, 2009

Car Dealership Waives Fraud Argument Because Of Insufficient Record

by Steven R. Merican

Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car.

Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury gave Traci a favorable verdict for the common law fraud action. The court, without the jury, gave Traci a favorable verdict under the Consumer Fraud Act. Rohrman appealed.

One of Rohrman’s issues was that the common law fraud action was against the manifest weight of the evidence. Traci argued that Rohrman waived the argument for appeal because the dealership did not file a motion in the trial court attacking the common law verdict. Rohrman argued that it “clearly attacked the sufficiency of the common law fraud judgment and asked for a judgment not withstanding the verdict on the common law fraud claim” in other pleadings in the trial and appellate courts, including a response to Traci’s motion to strike the appeal.

February 4, 2009

Fact Findings On Summary Judgment Get No Deference On Appeal

by Steven R. Merican

Two children died after they were trapped by a “quick” condition at an excavation pit. They became stuck in sand and clay at the pit, and died of hypothermia or drowning. The children’s estates sued the owner of the excavation pit, who tendered the claims to his insurer. The insurer offered the estates a policy limit settlement, but calculated the policy limit on the basis that there had been only one policy “occurrence.” The estates argued there were two separate “occurrences.” The insurer sued the estates, and asked for a declaration that there had been only one “occurrence.”

The trial court agreed with the estates, and on summary judgment ruled in their favor. The insurance company appealed, and a sympathetic appellate court reversed and ruled in favor of the insurer. The estates then appealed to the Illinois Supreme Court.

The first issue for the Illinois Supreme Court was the proper standard of review in the appellate court. The parties agreed that the construction of “occurrence” was a contract question that was subject to de novo (no deference to the trial court) review.

January 30, 2009

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

by Steven R. Merican

Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers’ was granted; Secura’s was denied.

Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed. Normally that’s okay. Illinois Supreme Court Rule 373 in effect says that mailing is filing. But the rule also states that the mailing has to be supported by an affidavit or certificate as required by Illinois Supreme Court Rule 12(b). Secura’s notice of appeal was not accompanied by either.

Farmers asked the appellate court to dismiss the appeal. Farmers argued that the lack of an affidavit or certificate stating when the notice of appeal was mailed made it impossible to tell whether Secura really complied with the 30-day deadline. The appellate court denied Farmers’ motion, ruling that “the failure to comply with the rules was ‘harmless error’ and there was no showing of prejudice to Farmers.” The appellate court then ruled in favor of Secura on the insurance coverage dispute.

January 28, 2009

Filing Notice of Appeal In Appellate Court Does Not Confer Appellate Jurisdiction

by Steven R. Merican

Gerald Swinkle was denied a job with the Illinois Liquor Control Commission. He filed a claim against the liquor commission in the Illinois Civil Service Commission. He charged that the liquor commission’s hiring practice violated a veteran’s preference provision in the Illinois Administrative Code. The Civil Service Commission ruled that Swinkle did not prove his case, and that Swinkle was not entitled to an evidentiary hearing. The trial court affirmed the Civil Service Commission.

Swinkle still wanted an evidentiary hearing, so he appealed to the Fourth District Illinois Appellate Court. He filed a notice of appeal within the required 30 days. But he filed the notice in the appellate court, not the trial court as required by the Illinois Supreme Court rules. By the time Swinkle’s notice of appeal was filed with the trial court, it was 44 days late.

The appellate ruled that filing in the wrong court doomed Swinkle’s appeal. The court did not have jurisdiction to hear the appeal because Swinkle did not file a notice of appeal in the trial court, a requirement to establish appellate jurisdiction.

January 23, 2009

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

by Steven R. Merican

David Naleway and his minor daughter sued the girl’s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners.

During the trial, Naleway tried to introduce a complaint Agnich made about the trial judge to the Judicial Inquiry Board. But the trial judge would not allow the complaint to the JIB into evidence, saying it was a privileged communication.

Naleway appealed that ruling. But the complaint to the JIB was not made a part of the record in Naleway’s defamation case. Agnich argued that the appellate court should not consider the matter because “the transcript of the hearing at which the trial court disallowed plaintiffs’ evidence does not specifically identify the document plaintiffs sought to introduce, and … plaintiffs never tendered any document as evidence for the record.”