Illinois Appellate Lawyer Blog

January 12, 2009

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs’s notice of appeal was filed timely, but it stated only that he was appealing. It did not state that he was appealing on behalf of the class he represented.

Under Federal Rule 3(c), as interpreted by the Seventh Circuit Court of Appeals, “the notice of appeal must indicate that the class representative is appealing in his representative capacity.” Marrs had to fix his notice of appeal, or else the appellate court would not have jurisdiction to consider an appeal by the class. But the time for filing the notice of appeal had passed. So to fix the notice, Marrs asked the appellate court to allow him to file a corrected version that specifically said the appeal was for the entire class.

The Seventh Circuit Court of Appeals denied Marrs’s motion. The opinion does not state why, but presumably the court adopted the rationale argued by Motorola – i.e., that Marrs’s motion really was asking for extra time to file a notice of appeal for the class, and that he did not meet the conditions for allowing extra time.

January 8, 2009

City’s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

by Steven R. Merican

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

January 6, 2009

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant’s Due Process Claim

by Steven R. Merican

When she was still a teenager living in Guatemala, Aura Chavez-Vasquez’s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant.

Aura was living in Missouri with her two children when her illegal residency status was discovered. She was turned over to the Department of Homeland Security, which initiated a removal proceeding against her.

At the administrative hearing, Aura asked for her removal to be canceled. But the Immigration Judge ruled that she carried the day on only three of four required elements. She did not, the IJ ruled, prove that her removal would cause her American-born children “‘exceptional and extremely unusual hardship.’” So her request to cancel the removal was denied.

January 3, 2009

Estate Can’t Avoid Judgment Notwithstanding The Verdict By Changing Theory Of Liability On Appeal

by Steven R. Merican

Gul Nageen Ahmed, at age 7, was riding her bicycle near a retention pond. She lost control of the bike, slid down an embankment into the pond, and drowned.

Wasim Ahmed, as administrator of Gul’s estate, sued the homeowner association that owned the retention pond and the association’s property manager. A jury gave the estate a $100,000 judgment.

The estate’s theory at trial was that other debris in the pond caused Gul to get entangled with her bicycle, entrapping her in the water. The jury was given a special interrogatory, to which the estate did not object, asking, “Did the rusted bicycle proximately cause Gul Ahmed’s death?” The jury answered, “No.” The homeowner association then asked, and the trial judge agreed, to vacate the judgment as being irreconcilable with the jury’s answer to the question.

January 2, 2009

Pending Disqualification Motion Renders Custody Appeal Premature

by Steven R. Merican

Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal. Jeffrey argued that the appellate court did not have jurisdiction because the motion to disqualify had not been decided by the trial court.

The Second District Illinois Appellate Court agreed with Jeffrey and ruled that Neringa’s appeal was premature. Because the motion to disqualify presented a separate claim, it had to be resolved before the appellate court could take jurisdiction of Neringa’s appeal of the custody order.

The appellate court described the procedure Neringa should follow in order to perfect her appeal: “Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter … and then supplement the record with the appropriate order or orders.”

December 23, 2008

Old Documents Not Preserved For Evidence Not A Basis To Uphold Summary Judgment For American National Bank

by Steven R. Merican

More than $1.3 million was embezzled from General Automation, Inc. General’s payroll deposit checks were made payable to its bank, American National Bank and Trust. General’s accountant got the checks before they were deposited with the bank, and deposited them in his personal account.

General Automation settled its claims against the accounting firms with which its embezzler-accountant was associated. General then assigned its claims against American National Bank to Continental Casualty Company, which was the insurer of one of the accounting firms. As assignee, Continental sued American National Bank for breach of contract and violation of the Illinois Fiduciary Obligations Act.

American National asked for and received summary judgment from the trial court. Continental appealed.

December 21, 2008

Tyco Denied Damages Retrial Because Liability And Damages “Not So Distinct”

by Steven R. Merican

Tyco Electronics was unhappy with surge protection equipment it purchased for inclusion in a product it sold to a customer. So Tyco sued Illinois Tool Works, the manufacturer of the equipment. A jury trial ended in a $2 million judgment for Tyco. Tyco still wasn’t pleased, so it asked the trial court for a retrial on damages only. When the trial court denied that motion, Tyco appealed.

The First District Illinois Appellate Court sided with ITW and affirmed the denial of a damages retrial. The appellate court agreed that a damages-only trial would not be fair to Tyco because “liability and damages are not so distinct.”

If the plaintiff seeks a new trial limited to the issue of damages and this court determines that a limited issue trial is not appropriate, in the absence of an alternative motion for a retrial on all issues, the jury’s verdict will be affirmed even if it is found to be inadequate … We conclude that Tyco was not denied a fair trial on the issue of damages, the jury’s verdict was not contrary to the manifest weight of the evidence, and even if the evidence failed to support the jury’s verdict, a new trial which would be limited to the issue of damages would be inappropriate because of the linkage between the liability and damage issues presented.

December 17, 2008

Hip Hip . . . . It’s A Number

by Steven R. Merican

The entry below is the 250th in this blog. I feel like I should celebrate, but, you know, as my good friend Howie says, “It’s a number.”

December 17, 2008

“Necessary Step” Exception Overcomes Deficient Notice Of Appeal

by Steven R. Merican

Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment. But their motion raised events that were not alleged in their complaint, and some that involved a patient who was not a plaintiff in the case. The Center filed its own motion for summary judgment, and also asked the trial court to strike the parts of the residents’ motion that raised the new allegations.

The trial court granted summary judgment to the Center, and granted the Center’s motion to strike the allegations that were raised for the first time in the residents’ motion for summary judgment. The court also denied the residents’ summary judgment request.

The residents appealed. But their notice of appeal did not state they were appealing the order granting the Center’s motion to strike the new allegations in the residents’ summary judgment motion. So the First District Illinois Appellate Court initially considered whether it had jurisdiction to hear an appeal of that order.

December 14, 2008

New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

by Steven R. Merican

Jennifer Keener’s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed.

Jennifer sued the City of Herrin for wrongful death. Herrin moved to dismiss Jennifer’s complaint. Several weeks later, the trial court granted the motion to dismiss. But despite directing the order of dismissal to be mailed to the parties’ attorneys, they were not

notified.