Illinois Appellate Lawyer Blog

February 9, 2008

Good Times With Appellate Lawyers In Chicago

The Illinois Appellate Lawyers Association will present Brooks Davis speaking about Abraham Lincoln and Stephen A. Douglas. Here is the Association’s description of the event:

The lifelong rivalry between these Illinois lawyers extended from Mary Todd’s parlor to the floor of the Illinois House of Representatives, across the bench of the Illinois Supreme Court, to the campaigns for U.S. Senator and President. Yet Douglas held Lincoln’s hat at his Inauguration, and Lincoln wept when Douglas died. Come and hear fascinating insights into this complex relationship, with special emphasis on how Lincoln’s and Douglas’s legal training and skills shaped the face of the Nation.

Brooks Davis is a nationally acclaimed expert on both Abraham Lincoln and Stephen A. Douglas. He is past president of the Chicago Civil War Round Table and recipient of its prestigious Nevins Freeman Award for lifetime achievement in the field of Civil War studies, chairman of the Stephen A. Douglas Association, and member of the Advisory Committee of the United States Abraham Lincoln Bicentennial Committee.

February 8, 2008

First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

by Steven R. Merican

Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified. Later, the Illinois court entered a provisional order certifying a national class.

Blockbuster moved to decertify the Illinois class based on new case law authority. The Illinois trial court denied the motion, but certified its order for appeal under Illinois Supreme Court Rule 308 (allowing interlocutory appeal of an order that involves “a question of law as to which there is substantial ground for difference of opinion and [when] … an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

This case is interesting because of the confused standard of review analysis. The First District Illinois Court of Appeals stated that the standard of review for a Rule 308 appeal is de novo. But then the appellate court identified the issue as: “[W]hether it was an abuse of discretion for the trial court to apply judicial estoppel to bar Blockbuster from challenging the propriety of certifying a national litigation class due to its previous position in a similar class action in which it agreed to class certification for settlement purposes.” So is it “de novo” or “abuse of discretion”?

February 3, 2008

Temporary Removal Of Guardian Not Reviewable

by Steven R. Merican

Glen Dresher’s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son’s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son’s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. “… [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court’s own motion, Glen was ‘temporarily removed’ from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court’s orders did not ‘finally determine, fix and dispose of the parties’ rights’”

January 29, 2008

Slightly Defective Certificate Of Service Does Not Deprive Illinois Appellate Court Of Jurisdiction

by Steven R. Merican

In an insurance coverage dispute, Illinois Farmers moved to dismiss Secura Insurance’s appeal for lack of jurisdiction. Farmers argued that Secura’s Notice of Appeal, mailed to the court the 30th day after the judgment, was deficient because the certificate of service did not state the time of mailing, a requirement of Illinois Supreme Court Rule 12(b)(3). Farmers argued that Secura’s failure to strictly comply with the Supreme Court’s rules doomed the Notice of Filing, thus depriving the appellate court of jurisdiction.

The Second District Illinois Appellate Court rejected Farmers’ position and ruled that jurisdiction was proper. The court ruled that the failure to state the time of service was a very slight defect that did not interfere with or preclude review. Adding “the fact that Farmers does not allege prejudice, we conclude that the defect here amounts to harmless error.”

Get the whole case, Secura Ins. Co. v. Illinois Farmers Ins. Co., No. 2-06-0614 (11/7/07), by clicking here.

January 23, 2008

Law-Of-The-Case Doctrine Does Not Bar First District Illinois Appellate Court From Considering Existence Of Contract

by Steven R. Merican

John Miller sued a real estate broker and the seller of a residential property over a dispute that arose when Miller thought he had bought a house. Miller claimed the seller breached a contract. He claimed that the brokerage was guilty of interference with prospective business advantage.

The trial court had entered summary judgment for the seller on the basis that there was no enforceable contract. Miller appealed that ruling. But he settled with the seller before the appellate court considered the contract question.

The trial court also entered summary judgment for the brokerage on Miller’s claim for interference with prospective business advantage. In the appellate court, the brokerage argued that the claim failed because the law-of-the-case doctrine established that there was no contract, which the brokerage asserted was an essential element of Miller’s action.

January 20, 2008

Illinois Supreme Court Spanks North Chicago Police Pension Board. Doctor’s Evidence Fails Manifest Weight Standard

by Steven R. Merican

While assisting an arrest, Police Officer Lawrence Wade got into a scuffle with the prisoner. Wade injured his knee, which required surgery. Ultimately, his doctor declared that Wade could not return to full patrol duty. The Police Department did not have an inside position for him, so Wade’s options were to retire or apply for a disability pension.

Officer Wade applied for the pension. But the City of North Chicago Police Pension Board denied Wade a line-of-duty pension, ruling essentially that one doctor’s opinion [Milgram] that Wade “did not incur a disability from the performance of an act of duty” was more persuasive than the four whose opinions were otherwise.

The circuit court confirmed the board, and the court of appeals affirmed. The first time the Illinois Supreme Court got the case, it issued a supervisory order for the appellate court to reassess in view of recent supreme court rulings. The appellate court again affirmed the denial of the pension, although it did rule that Milgram’s opinion was not credible. The Illinois Supreme Court reversed, and sent the matter back to the pension board to award Officer Wade a pension.

January 16, 2008

Lack Of Cross Appeal Doesn’t Deprive Illinois Supreme Court Of Jurisdiction

by Steven R. Merican

Almon Heastie was intoxicated, and in need of medical attention. Paramedics brought him to a hospital emergency room. Because he was yelling and abusive, Almon was placed on a cart and in restraints. For lack of space at the hospital, Almon was wheeled into the cast room, where he was left alone.

A fire broke out in the cast room, and Almon suffered severe injuries. He sued the hospital, one of the security guards, and a number of emergency room staffers. A jury returned a verdict for defendants, so Almon appealed. The appellate court (1) ruled that it was proper to preclude Almon’s evidence that the hospital deviated from a standard of care by not searching him for contraband; but (2) reversed and remanded for a new trial, ruling that the trial court improperly dismissed Almon’s res ipsa loquitor cause of action. Defendants then appealed to the Illinois Supreme Court, which agreed that plaintiff should have been allowed to put on a res ipsa case.

Almon also raised an argument in the Supreme Court. He disputed the appellate court’s ruling that affirmed preclusion of the standard of care evidence. However, Almon did not file a petition for leave to appeal that part of the appellate court’s ruling.

January 9, 2008

Interesting Stuff From Other Places. Premature Notice Of Appeal Becomes Effective In First Circuit

by Steven R. Merican

The Appellate Law and Practice Blog reports on Malloy v. WM Specialty Mortgage, No. 07-1026, a First Circuit opinion that the blog calls “the height of appellate nerdery.” The court ruled that a premature notice of appeal became effective, and bestowed appellate jurisdiction, after the district court denied a motion to vacate what sounds like a conditional dismissal order.

January 8, 2008

Good Times With Appellate Lawyers In Chicago

by Steven R. Merican

The Illinois Appellate Lawyers Association has announced that its Annual Reception will be held on January 17, 2008, 5:30 to 7:30 p.m. The event will be at the Hotel Monaco, 225 N. Wabash Ave., Chicago. Recently retired Justice Mary Ann McMorrow will be honored.

Call the Illinois Appellate Lawyers Association, 847-885-2410, for a reservation.

January 8, 2008

7th Circuit Reviews Summary Judgment For Clear Error In Non-Jury Case

by Steven R. Merican

A pension fund sued a partnership under the Multiemployer Pension Plan Amendments Act, an amendment to ERISA, to recover an outstanding liability. The pension fund obtained summary judgment, and the partnership appealed.

The standard of review was brought into question. Typically, summary judgments, including in ERISA cases, are reviewed de novo. But the Seventh Circuit has “held that the clearly erroneous standard of review applies when the only issue before the district court is the characterization of undisputed subsidiary facts and where a party does not have the right to a jury trial.”

In this case, the appellate court ruled that the partnership was not entitled to a jury trial under the MPPAA, so the correct standard of review was the more deferential “clearly erroneous.”