Illinois Appellate Lawyer Blog

December 10, 2008

Bank’s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer’s motion to vacate relied on two sections of the Illinois Civil Procedure Code − § 2-1301(e) (setting aside default judgments); § 2-1401 (relief from judgments).

The trial court denied Archer’s motion to vacate. Eventually, a final and appealable order distributing the proceeds of the sale of the property was entered. Archer appealed and argued that the default should have been vacated under § 2-1401. In the appellate court, Archer dropped its § 2-1301(e) argument.

Appeals from § 2-1401 petitions are governed by Illinois Supreme Court Rule 304(b). The rule requires an appeal to be filed within 30 days. Although Archer filed an appeal within 30 days of the final distribution order, it came long after the court ruled on the § 2-1401 petition.

December 3, 2008

Trial Court’s Abuse Of Discretion Not Enough To Reverse Medical Malpractice Judgment

by Steven R. Merican

Sandra Downey sued her doctor, Gary Dunnington, for medical malpractice when a mastectomy and reconstruction he performed resulted in permanent disfigurement. After a jury trial, judgment was entered for Dunnington.

On appeal, Sandra argued that it was reversible error to admit evidence that Dunnington’s father was a minister and his mother was a stay-at-home-mom. The Fourth District Illinois Court of Appeals agreed that the evidence was “wholly irrelevant to the issues in this trial, and the use of such evidence constitutes an aberrant practice that should not be tolerated.”

Despite the trial court’s abuse of discretion in allowing the evidence, the appellate court ruled it was not bad enough to reverse the defense judgment.

November 28, 2008

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

by Steven R. Merican

The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion.

The supreme court ruled that the Commission’s regulation that allowed electronic filing was ambiguous because it “contains no indication whether filing requires actual physical acceptance by a human being in the chief clerk’s office.” The court’s decision thus turned on the Commission’s policy of encouraging electronic filing.

“The entirety of the Commission’s enactment seeks to expand, rather than limit, the ability of parties to make use of the e-docket system. Insisting on a deadline of 5 p.m. would have the opposite effect, limiting the use of e-filing. When faced with a tight deadline, a 5 p.m. rule would encourage attorneys to print, and mail, large documents rather than use the efficient and economical method of electronic filing that the Commission’s rules promote.”

November 23, 2008

Pending Contempt Petition Renders Other Substantive Rulings Non-Final And Not Appealable

by Steven R. Merican

In a post-dissolution of marriage case, does a pending contempt petition render other substantive rulings non-final and non-appealable? Does the court have to rule on the contempt petition before the appellate court can exercise its jurisdiction over all of the rulings?

The blog entry directly below explains what happened in IRMO Gutman. Appellate jurisdiction was in question because Mary Gutman appealed rulings concerning maintenance when her contempt petition still was pending.

The appellate court ruled that the contempt petition did not raise a claim for relief in the post-dissolution action. That meant the earlier order that terminated maintenance was final and appealable. Mary’s Notice of Appeal, which was filed more than 30 days after the maintenance order, was not timely and did not invoke the appellate court’s jurisdiction. So the appeal was dismissed.

November 21, 2008

Illinois Supreme Court Considers Appellate Jurisdiction In IRMO Gutman. Appellate Court Panel’s Attempt To Overrule Sister Panel Rejected By Illinois Supreme Court

by Steven R. Merican

Nearly five years after their divorce, Mary Gutman filed a motion to continue and modify her maintenance award. Two months later, Daniel filed a motion to terminate maintenance. One month after that, Mary filed a petition to hold Daniel in contempt for having stopped the maintenance payments.

The trial court twice set a date for hearing on the competing maintenance petitions, but Mary did not attend either time. On the second hearing date, the court granted Daniel’s petition to terminate maintenance, dismissed Mary’s maintenance petition, and did nothing on the contempt petition. The trial court’s order did not contain language under Illinois Supreme Court Rule 304(a) that would have made the maintenance dismissals appealable interlocutory orders.

After her motions to vacate and to reconsider were denied, Mary appealed. But her Notice of Appeal was filed well more than 30 days after the trial court ruled on the maintenance petitions.

November 19, 2008

Car Buyer’s Compliance With Pre-Suit Dispute Resolution Procedure A Question Of Law

by Steven R. Merican

Edmond Jones sued Nissan because, he claimed, the car he bought was a lemon. The purchase agreement required Jones to submit his claim to an automotive complaint resolution program before he was allowed to sue in court. He did that twice, and twice his claim was dismissed. It was dismissed the first time because he missed the scheduled vehicle inspection time. It was dismissed the second time because, it having been repossessed, he no longer owned the car.

Jones then filed a lawsuit against Nissan. Nissan asked the court to dismiss the case because Jones did not comply with Nissan’s the informal dispute settlement procedure. The trial court agreed and dismissed the lawsuit. Jones then appealed.

Jones and Nissan first argued about the proper standard of review in the appellate court. Jones argued for a de novo standard of review, which is typical when an appellate court considers whether a motion to dismiss a complaint was properly granted. Nissan stated that the trial court’s dismissal should get more deference, and argued for an abuse of discretion standard.

November 13, 2008

Appellate Lawyers Pooling Resources?

by Steven R. Merican

Lots of appellate practitioners are solo or in small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That’s good for clients, and good for us.

I am always thinking about ways to increase the quality of my work product and push down costs. Lately I’ve been mulling over the idea of pooling resources with other appellate practitioners – staffing, electronic, digital, old-fashioned brainstorming with colleagues. Geography is not a limitation on the pooling concept; where you toil doesn’t matter. There is nothing insurmountable to prevent us from getting the best product and service, and the best pricing, from around the world to make our practices better and more cost efficient.

I’m interested in your thoughts. Call me (630-579-6460) or email (steve.merican@gmail.com) if you want to discuss this.

November 9, 2008

Medical Studies Act Privilege Assessed By Manifest Weight Of The Evidence

by Steven R. Merican

Judy Anderson died while in care of Rush-Copley Medical Center. Her estate sued Rush for medical malpractice. In discovery, Rush refused to turn over two categories of documents: medical journal articles and an Action Plan. Rush claimed the documents were used in connection with a peer review and therefore were privileged under the Illinois Medical Studies Act.

The Second District Illinois Appellate Court identified the proper standard of review. The court distinguished this case from a typical question of whether a legal privilege applied, and decided that the trial court deserved more deference. “Whether a discovery privilege applies is a matter of law, subject to de novo review … However, whether specific materials are part of an internal quality control or a medical study is a factual determination, which will not be reversed on review unless it is against the manifest weight of the evidence.”

In the end, the appellate court ruled that the articles and the plan were privileged and did not have to be disclosed. Read the whole case, Anderson v. Rush-Copley Medical Center, Nos. 2097-0717, 2-07-1272 (8/14/08), by clicking here.

November 6, 2008

“Invited Error” Prevents Med Mal Plaintiff’s Appeal Of Evidentiary Ruling

by Steven R. Merican

David Mount had a cardiac arrest that caused brain damage and other injuries. David’s guardians sued his doctors for medical malpractice. A jury concluded that the doctors were not guilty. David’s guardians appealed to the First District Illinois Appellate Court. The appellate court affirmed the judgment in favor of the doctors.

On appeal, David’s lawyer argued that the trial court should have allowed certain statements by one of the doctors to be used as substantive evidence. Instead, the trial judge limited the doctor’s statements for impeachment purposes only − i.e., “solely for purposes of assessing the weight to be given to the testimony of the witness in the courtroom.” But David’s lawyer did not object when the trial court placed limits on how the doctor’s testimony could be used.

The appellate court rejected David’s arguments that the doctor’s testimony should have been admitted for their full, substantive value. The court invoked the “invited error doctrine,” which prevents a party from appealing an evidentiary ruling that he procured or invited, or in which he acquiesced. Here’s the court’s rationale:

November 5, 2008

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

by Steven R. Merican

A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed.

The developer sued the city. The developer claimed its expenditures for the property gave it a vested right to the previous zoning classification. The developer’s complaint had two theories. The first asked for a writ of mandamus – i.e., an order that the city issue the building permits. The second demanded a declaration that the developer was entitled to the building permits. After trial, the court ordered the city to issue permits so the apartments could be built. The trial court’s judgment granted the mandamus action, but was silent on the declaratory judgment request. The city appealed.

Because the trial court did not explicitly resolve the request for a declaratory judgment, there was a question of whether the order was final and appealable. If not, the appellate court would not have jurisdiction to hear the city’s appeal.