Illinois Appellate Lawyer Blog

August 8, 2008

Homeowners Forfeit Argument In Illinois Supreme Court That Wasn’t Raised In Petition For Leave To Appeal

MD Electrical Contractors subcontracted to do work at defendants’ home. The homeowners did not pay for the work, so MD sued for the money. Because there was not a written contract, MD’s complaint used a theory of quantum meruit (that MD should be paid for the value of the work it performed). The homeowners moved to dismiss MD’s complaint, claiming that MD did not comply with the Illinois Home Repair and Remodeling Act. The trial court agreed with the homeowners and dismissed the case. But the appellate court reversed, ruling that the Repair and Remodeling Act applied only to contractors, not subcontractors.

The homeowners took the case to the Illinois Supreme Court, which agreed with MD that the Act did not apply to subcontractors. The Act, the court ruled, could not be used as a defense to a quantum meruit suit by the electrical subcontractor.

In their petition for leave to appeal to the Illinois Supreme Court, the homeowners raised only one issue, the applicability of the Repair and Remodeling Act. But in their brief to the court, the homeowners also argued that the Illinois Mechanics Lien Act restricted MD’s claim for compensation, and that MD’s request for quantum meruit damages went beyond the Mechanics Lien Act. MD in turn argued that the homeowners forfeited their Mechanics Lien argument because it was not raised in the petition for leave to appeal, as required by Illinois Supreme Court Rule 315.

August 3, 2008

Argument Raised For First Time On Motion For Reconsideration Waived For Appeal

by Steven R. Merican

Unhappy with the treatment she received from her dentist, Jill Caywood sued him for malpractice. The dentist moved to dismiss Jill’s complaint for lack of compliance with the statute of limitations. The trial court granted the dentist’s motion, and Jill moved for reconsideration. In her reconsideration motion, Jill argued for the first time “that she suffered from mental incapacitation and was unable to appreciate that she had been injured by defendants’ wrongful treatment.” The trial court disregarded the argument and denied the motion.

On appeal, Jill claimed it was reversible error for the trial court not to address the argument. The First District Illinois Appellate Court affirmed the dismissal for two reasons: (1) the evidence of Jill’s incapacitation existed, and should have been raised, in defense to the motion to dismiss; (2) “arguments raised for the first time in a motion for reconsideration in the circuit court are waived on appeal.”

Get the whole case, Caywood v. Gossett, No. 1-06-2458 (4/11/08), by clicking here.

July 31, 2008

Chicago School Board’s Failure To Comply With Court Monitor’s Rule Limiting Disabled Student Population Not Justiciable

by Steven R. Merican

About 16 years ago, a group of disabled students sued the Illinois State Board of Education. Among other things, the students claimed the Chicago Public School System, for which the State Board allegedly was responsible, improperly assigned disabled students to schools and classrooms solely according to their disability classification. That practice, the students argued, violated the Individuals with Disabilities Education Act.

The State Board of Education signed a consent decree with the students. The decree (1) provided for appointment of a Monitor to oversee implementation of the order; (2) extended the Federal District Court’s jurisdiction to oversee the consent order.

The Monitor ruled that no Chicago public school could have more than 20 percent students with disabilities. But when the deadline for the Monitor’s rule arrived, there were 96 schools that did not meet the requirement. The Chicago School Board asked for a waiver of the rule, but supplied no information supporting the request. Nor had the Monitor set criteria for a waiver.

July 24, 2008

Illinois Constitutional Convention Debate Broadcasting Live And Available On Podcast

by Steven R. Merican

At the November 2008 election, Illinois voters will get a once every 20 years chance to vote on whether they want to have a state constitutional convention. The question will be debated by pundit Bruno Behrend (proponent) and lawyer Al Salvi (opponent) on July 29,2008 at 6:00 p.m. Central Time. The debate will be broadcast live on WKRS 1220-AM. If you’re in the area, and you’d rather be there for it, the debate will be held at Austin’s Saloon & Eatery, 481 Peterson Rd., Libertyville, Illinois. The debate also will stream live at www.wkrs.com, and will be podcast later. Call-ins (847-336-1220) will be welcomed.

A most interesting appellate law blogger’s opinion piece that ran in the Chicago Daily Observer for why Illinois voters should vote in favor of a constitutional convention is available right here. And for historical perspective, listen to our podcast interview of Ann Lousin, a researcher at the 1968 constitutional convention, available here.

July 24, 2008

Misunderstanding Filing Deadline Rule Not Excusable Neglect

by Steven R. Merican

Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review.

Janet then filed a complaint in federal district court against the Commissioner of Social Security . After the district court affirmed the denial of benefits, Janet appealed. She filed her notice of appeal 63 days after the district court ruled, but Federal Rule of Appellate Procedure 4(a)(1)(b) required her to file the notice within 60 days of the judgment.

To cure the late filing, Janet asked the district court judge to extend the time to file the notice of appeal by three days. To justify the extension, her lawyer stated that he understood the local administrative policies and procedures manual to give him three extra days to file. The district court granted Janet’s motion for the three days.

July 23, 2008

Reconsideration Motion That Presented New Evidence Reviewed For Abuse Of Discretion

by Steven R. Merican

Ricky Compton’s insurer, Country Mutual, had a lien on settlement proceeds Ricky received from the negligent party in an automobile accident. The lien was filed with Founders Insurance, the negligent party’s insurer. Ricky filed a class action complaint against Country Mutual, arguing that the lien filed on Founders was a breach of contract and a violation of the Illinois Consumer Fraud Act.

After the trial court dismissed his complaint, Ricky asked the court to vacate the dismissal or for reconsideration. The trial court denied that request, so Ricky appealed. He claimed that the correct standard of review was “de novo,” and that the appellate court should give his arguments a fresh look. But the First District Illinois Court of Appeals found that Ricky’s reconsideration request was based on evidence that had not been given to the trial court before. The appellate court ruled that the correct standard of review therefore was “abuse of discretion,” not “de novo.” Here’s what the appellate court stated:

The plaintiff [Ricky] asserts that the standard of review applicable to the denial of the motion to vacate or reconsider is de novo … However, where the denial of a motion to reconsider is based on new matters, such as additional facts or new arguments or legal theories that were not presented during the course of the proceedings leading to the issuance of the order being challenged, the abuse of discretion standard applies … In his motion to reconsider, the plaintiff alleged that he could plead facts establishing that the Founders’ settlement check exceeded the amount of Country Mutual’s lien. Since the motion for reconsideration rested on new factual allegations, the applicable standard of review is abuse of discretion.

July 14, 2008

Appeal Of Involuntary Admission To Mental Health Facility Dismissed As Moot

by Steven R. Merican

In re Alfred H.H. involved a patient who was involuntarily admitted to the McFarland Mental Health Center in Illinois. Alfred appealed the trial court’s ruling that subjected him to the involuntary admission.

The trial court’s judgment was limited to a 90-day involuntary admission. That time had passed before the case reached the appellate court. So Alfred never got a hearing on appeal because the Fourth District Illinois Court of Appeals dismissed the appeal as moot.

The court ruled that Alfred’s appeal did not raise any of the exceptions to the mootness doctrine:

July 13, 2008

Candidate Who Owed Village Money Booted From Ballot; Illinois Supreme Court Defines “Mixed Question Of Law And Fact”

by Steven R. Merican

John Cinkus intended to run for village trustee in the Village of Stickney, Illinois in April 2007. But in April 2006, he was cited under the Stickney Municipal Code for disorderly conduct. After a contested hearing, Cinkus was found guilty and ordered to pay a $100 fine. When Cinkus did not appear for a continued hearing, a judgment was entered for the $100 fine. Cinkus was given notice of the judgment in November 2006.

Cinkus tried to pay the fine in February 2007, a few days before he filed his nomination petition. But by then, under the Illinois Municipal Code, the Village could not accept the payment without a hearing.

Cinkus filed his nomination petition to appear on the election ballot. The petition was met with an objection. The objection was based in the Illinois Municipal Code, which states that a person who is in arrears on a debt owed to the municipality is not eligible for elected municipal office. The local election board ruled that Cinkus owed the $100 at the time he filed his nomination petition, and was ineligible for municipal office.

July 9, 2008

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

by Steven R. Merican

Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages. The trial court did not make a finding under Illinois Supreme Court Rule 304(a) (no reason to delay enforcement or appeal of the order).

After Berry put in her case at trial, Chade moved for a directed verdict and to vacate the summary judgment ruling. The trial court granted Chade’s motions. Then Berry asked for reconsideration of the ruling that vacated her summary judgment, arguing that Chade’s motion was too late, having come more than 30 days after the judgment was entered. The trial court granted Berry’s reconsideration motion, reinstated the summary judgment, and awarded Berry $1,000, the minimum award under the Act.

Both parties appealed. Chade argued that its motion to vacate was timely because the partial summary judgment was not a final and appealable order. The First District Illinois Appellate Court agreed, and stated there was nothing in the summary judgment ruling to indicate it was final and appealable (no Rule 304(a) language or the like), so it was no more than a typical non-final interlocutory order.

July 8, 2008

7th Circuit Court of Appeals Dismisses Petition For Panel Rehearing That Only Argued New Issue

by Steven R. Merican

After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U.S. Supreme Court; or (2) that the appeal involves a question of “exceptional importance.”

Ms. Easley’s petition did neither, so the court considered it as a petition for rehearing by the original panel. But the motion only raised an issue that was not argued in the original appellate proceeding. Nor did it otherwise comply with Federal Rule of Appellate Procedure 40, which governs panel rehearings. FRAP 40 requires a petition for rehearing to “state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.”

The appellate court denied the petition for panel rehearing because: “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it. Panel rehearing is not a vehicle for presenting new arguments, and, absent extraordinary