Illinois Appellate Lawyer Blog

October 31, 2008

Illinois Supreme Court Considers Limitations Defense Raised For First Time On Appeal

Travelers Casualty & Surety sued the Bowmans for payment on performance bonds. The Bowmans raised statute of limitations defenses, but one of the statutes was not raised in the trial court. Nonetheless, that defense was fully briefed and argued to the appellate court. When the case reached the Illinois Supreme Court, Travelers argued that the Bowmans’ waived the defense of that statute because they hadn’t argued it to the trial court.

The Illinois Supreme Court considered the Bowmans’ defense anyway. The supreme court was persuaded because the argument was fully briefed and argued twice, and the record contained all of the facts necessary for a decision. Here’s what the supreme court said:

We note that defendants did not raise this argument in the trial court. Defendants raised the statute of limitations in section 13-204 for the first time in the appellate court … [A]lthough a defense not raised in the trial court may not be raised for the first time on appeal by an appellant, “the appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court.” Here, defendants were the appellees, urging the appellate court to affirm the circuit court’s decision. Defendants argued section 13-204 as an alternate basis for affirming the circuit court’s dismissal of plaintiff’s cause of action as untimely.

October 27, 2008

Attorney Fees Allowed For Defending Magnuson-Moss Appeal

by Steven R. Merican

Courtney McNiff sued Mazda Motor of America under the Magnuson-Moss Warranty Act. After they settled the dispute, Courtney’s lawyers, who had a contingency fee agreement with Courtney, petitioned the court for an award of attorney fees. Based on the lawyers’ time reports, the trial court awarded fees that were in excess of the contingency fee. Mazda appealed. The appellate court affirmed the award, stating it was within the trial court’s discretion.

Courtney’s lawyers also requested fees for defending Mazda’s appeal. The Fourth District Illinois Appellate Court allowed the appellate fees. “‘Allowing a plaintiff to petition for appellate attorney fees and costs furthers the [Magnuson-Moss] Act’s goal of providing consumers with legal assistance to enable them to pursue a remedy for injury or loss.’ … Accordingly, we grant plaintiff’s request to file a supplemental petition in the trial court for attorney fees and costs incurred in responding to defendant’s direct appeal … The trial court may award any and all fees and costs reasonably incurred in defending this ‘simple’ case on appeal.”

Get the whole opinion, McNiff v. Mazda Motor of America, No. 4-08-0817 (7/18/08), by clicking here.

October 25, 2008

De Novo Review For Steel Company’s Appeal Of Pollution Control Board Ruling

by Steven R. Merican

The Illinois Environmental Agency awarded a pollution discharge license to U.S. Steel Corporation. American Bottom Conservancy filed an objection to the award to the Illinois Pollution Control Board. American Bottom objected because the Agency did not hold a public hearing concerning the issuance of the license.

The Illinois Pollution Control Board agreed with American Bottom, and invalidated the license. U.S. Steel appealed the Board’s decision. The parties argued about the proper standard of review by the appellate court and by the Pollution Control Board. Here’s how the Fifth District Illinois Appellate Court framed the issue: “The issue presented to us for our review is whether the Board applied the correct standard of review in reviewing the Agency’s decision not to hold a public hearing on the proposed permit.”

U.S. Steel argued for de novo review, stating that only a question of law was before the court. But the Pollution Board argued for a more deferential manifest-weight-of-the-evidence standard of review. The appellate court agreed with U.S. Steel. “The only issue before us on appeal is whether the Board erred as a matter of law in applying the incorrect standard of review in deciding that the Agency erred in failing to hold a public hearing. This presents a question of law, which we review de novo.”

October 20, 2008

“Downright Misleading” Constitutional Convention Referendum Ballot Prevails

by Steven R. Merican

The Illinois Constitutional Convention Referendum Case has been resolved – for the moment. An Illinois appellate court affirmed the trial court’s remedy for the “downright misleading” and unconstitutional ballot: hand out a flyer to voters telling them to disregard the referendum “Explanation” and “Notice” that are printed right on the ballot. (The two blog entries directly below give the lawsuit background and the legal problem.)

The bottom line is that citizens will vote on a ballot that a court has ruled is unconstitutional. This is a disaster for the Illinois referendum process. It is shameful testimony that the process for amending and formulating the core document that gives life to the government is not safe in the hands of politicians and their bureaucratic apparatus. It was folly ever to think otherwise.

Here’s what happened in the appellate courts last week.

October 13, 2008

Constitutional Convention Vote Case Looking For A Decision In Illinois Appellate And Supreme Courts

by Steven R. Merican

The Illinois constitutional convention referendum is at a legal and electoral crossroad this week. The integrity of the referendum process, which is mandated by the Illinois Constitution, is at stake. Voters need speedy decisions if their constitutional right to a referendum free from underhanded politics is to be respected. The Illinois government apparatus is opposing the voters. The government essentially says that it’s too late to fix a constitutional problem it caused in the first place. The entry directly below describes the dispute. Here’s what’s happening in the appellate courts now.

The government defendants have until Tuesday October 14 to respond to the motion to expedite a hearing and asking to stay distribution of the illegal ballots. That motion was filed last week by plaintiffs, but there still is no ruling by the appellate court. The First District Illinois Appellate Court will hear argument on the motion on October 15. There’s no guarantee the court will rule at that time.

The voter group of plaintiffs’ motion for a direct appeal to the Illinois Supreme Court still is pending in that court. The Illinois Lieutenant Governor and the Chicago Bar Association, the other plaintiffs in this case, have joined the motion. The defendants also have until October 14 to respond. We’ve heard no word yet about whether the government will fight or support the motion for a hearing in the supreme court.

October 9, 2008

Trial Court Rules Illinois Constitutional Convention Referendum Allowed To Proceed With An Unconstitutional Ballot. Case Moves To Appellate Courts

by Steven R. Merican

Voters in Illinois will have a referendum at the November 2008 election on whether to hold a constitutional convention. The referendum, which comes up automatically every 20 years, is required by the Illinois Constitution.

Several days ago, the Illinois Secretary of State published a copy of the referendum ballot that will be presented to voters. Three groups realized there was inaccurate and inappropriate information on the ballot, making it unconstitutional. They sued in the Circuit Court of Cook County, Illinois to have the unconstitutional language removed.

The plaintiffs in the case are: The Chicago Bar Association, Illinois Lt. Governor Patrick Quinn, and a group of Illinois voters. [Full disclosure here: I am one of the lawyers representing the voters in the appellate court proceedings.] The defendants are: Illinois Secretary of State Jesse White; the Illinois State Board of Elections; David Orr, as the Clerk of Cook County, Illinois; and the Chicago Board of Election Commissioners.

October 5, 2008

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

by Steven R. Merican

Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia.

Wartalski sued the construction contractors for negligence, and a jury awarded him $975,700. The contractors appealed. They argued that Wartalski’s expert witnesses should not have been allowed to testify at the trial because their opinions were not generally accepted.

Wartalski countered that the contractors waived their argument because they did not first raise it in a post trial motion. He pointed to Section 2-1202(b) of the Illinois Code of Civil Procedure, which requires a party to make a motion to the trial court for relief following a jury verdict.

September 29, 2008

Limited Liability Company Must Have A Lawyer To Prosecute Appeal

by Steven R. Merican

Wabash Environmental Technologies, a limited liability company, was convicted of violating the Clean Water Act. The company was ordered to pay restitution and was placed on probation. After Wabash failed to make payments under the original restitution order, the company agreed to another payment schedule with the government.

The case then was dismissed, and Wabash appealed. But Wabash was represented in the appeal by one of its members, who was not a lawyer. The issue was whether, like a corporation, Wabash was prohibited from proceeding without a lawyer. The Seventh Circuit Court of Appeals dismissed Wabash’s appeal and ruled that it could not appeal without a lawyer.

There are many small corporations and corporation substitutes such as limited liability companies. But the right to conduct business in a form that confers privileges, such as the limited personal liability of the owners for tort or contract claims against the business, carries with it obligations one of which is to hire a lawyer if you want to sue or defend on behalf of the entity. Pro se litigation is a burden on the judiciary … and the burden is not

September 24, 2008

Denial Of Food Company’s Federal Preemption Defense Not An Appealable Interlocutory Order

by Steven R. Merican

Tyson Foods moved for summary judgment in a class-action lawsuit. Tyson argued that the claims against it were preempted by federal law. The summary judgment motion was denied, and Tyson appealed.

Ordinarily, the denial of a summary judgment motion is not appealable because it is not a final judgment. But Tyson argued that the order denying its preemption defense was appealable under Illinois Supreme Court Rule 307. Rule 307 allows appeals of certain interlocutory orders, including those “granting, modifying, refusing, dissolving, or refusing to dissolve or

modify an injunction.” Tyson argued that the denial of the preemption defense “is subject to interlocutory appeal under Illinois Supreme Court Rule 307(a) … because the ‘preemption argument brings into issue the authority of the trial court to enter the order appealed from.’”

September 22, 2008

Remand To Bankruptcy Court Deprives Seventh Circuit Of Jurisdiction

by Steven R. Merican

Diana Holland, who owned real property in Florida, filed her Chapter 7 Bankruptcy in Illinois. She asserted that Florida law exempted the Florida property from the bankruptcy. The bankruptcy trustee argued that Illinois law applied, and that it did not exempt the Florida property. The bankruptcy court ruled that Illinois law applied, but did not consider whether the property was exempted. On appeal, the district court reversed, ruled that Florida law applied, and remanded the issue of exemption back to the bankruptcy court.

The trustee appealed to the Seventh Circuit Court of Appeals. But the Seventh Circuit dismissed the appeal and ruled it did not have appellate jurisdiction because the district court’s order was not final and appealable. Although the federal circuits are split on the question, for the Seventh Circuit, the district court’s remand order made the difference.

Our circuit precedent accords with the majority view: “[E]ven if the decision of the bankruptcy court is final, a decision by the district court on appeal remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless the further proceedings contemplated are of a purely ministerial character . . . .” What remains to be decided here is hardly ministerial: the bankruptcy court still has to answer the $350,000 question whether Holland is entitled to an exemption under Florida law. … Only then—after the bankruptcy court has made its final ruling, the district court has revisited the case, and a fresh notice of appeal to our court has been filed—can we exercise jurisdiction over the matter.