Illinois Appellate Lawyer Blog

January 3, 2008

No Appellate Jurisdiction Where Appeal Taken While Contempt Motion Still Pending. Second District Illinois Appellate Court Overrules 2-Month Old Opinion

This appeal arises from Nancy Knoerr’s post-dissolution petitions to increase child support and to force her ex-husband, David, to contribute to college expenses of one of their children. David moved for reconsideration after Nancy got a favorable result on her petitions. Nancy then petitioned for a rule to show cause, claiming that David refused to comply with the orders increasing child support and David’s contribution to the college expenses.

The trial court denied David’s motion to reconsider, and continued Nancy’s petition for a rule to show cause. The trial court did not issue Rule 304(a) language (allowing an interlocutory appeal). David appealed the ruling on Nancy’s petitions while the rule to show cause still was pending.

This is another case in which the Second District Illinois Appellate Court assessed its jurisdiction without benefit of a motion contesting jurisdiction. The appellate court dismissed the appeal because the still-pending rule to show cause rendered the action non-final.

December 29, 2007

7th Circuit Requires Accurate Affidavit From Prisoner To Comply With Mailbox Rule

by Steven R. Merican

Malcom Rush was incarcerated in Waupun Correctional Institution in Wisconsin. He appealed after the federal district court denied his petition for a writ of habeas corpus. But Rush’s Notice of Appeal did not get filed within the 30-day deadline.

The issue was whether Rush complied with Federal Rule of Appellate Procedure 4(c), the prisoner mailbox rule. That rule states that the date of filing is the date the prisoner places the mail in the prison mail system. The rule also requires an affidavit by the prisoner that the mail was timely placed in the system and that postage was prepaid.

Rush signed an affidavit that said he placed the document in the mail system timely and that the prison had committed to paying for the postage. But the court ruled that the latter point was not true. Because Rule 4 requires the postage to be paid, the court concluded that Rush’s Notice of Appeal was not timely, thus depriving the court of appellate jurisdiction. “Postage was not prepaid at the time of deposit because Rush did not secure his right to an exemption for a loan from the warden. Therefore the statement in his declaration that Waupun had ‘precommitted’ to paying for the postage as of June 9, 2006, is not true, and does not satisfy the requirements of Rule 4(c)(1).”

December 19, 2007

Daughter Turning 18 Renders Grandparent Visitation Case Moot

by Steven R. Merican

I reported on Felzak v. Hruby, a grandparent visitation case out of the Second District Appellate Court, in December 2006. Then, the important point concerned waiver on appeal of a due process argument. Here is the original post on the case.

Now, on appeal to the Illinois Supreme Court, the pertinent issue for appellate practitioners is mootness. Ralph and Sondra were held in contempt for disobeying an order permitting grandparent visitation. They wanted to purge the contempt order. While the appeal was pending, Katie, Ralph and Sondra’s daughter, turned 18 years old.

The Illinois Supreme Court ruled that “Because Ralph and Sondra can no longer compel Katie to visit Geraldine [grandmother], the rationale for the civil contempt order in this case has been lost. When a situation such as this occurs, the appropriate disposition of the case, and the action we take here, is to vacate the judgments of the lower courts and remand the cause with instructions to dismiss … (‘As a requirement of due process, then, a civil contempt order will be vacated once it is evident that the sanction imposed is no longer fulfilling its original, coercive function’). Vacating the contempt judgments below leaves nothing before us with respect to the contempt order to review. Those issues raised in the contempt proceedings are necessarily moot.”

December 13, 2007

Consumer Wins Credit Card Battle, But Appealable Orders Elude Her

by Steven R. Merican

Resurgent Financial took an assignment of credit card receivables from MBNA. Joan Kelly’s account was included among those assigned to Resurgent, or so Resurgent claimed. Kelly said she didn’t owe anything, and refused to pay Resurgent, so Resurgent sued her.

Kelly served requests for admission on Resurgent, which Resurgent did not answer. After the requests were deemed admitted, Kelly moved for summary judgment. That motion was denied. Resurgent then moved for voluntary dismissal without prejudice. That motion was granted. Kelly in turn moved for attorney fees under the Illinois Credit Card Liability Act. The fee motion was denied.

Kelly appealed the denial of her motions for summary judgment and for attorney fees. The Second District Illinois Appellate Court dismissed Kelly’s appeal, stating that neither order was final and appealable.

December 12, 2007

Fifth District Illinois Appellate Court Without Jurisdiction To Allow Permissive Appeal Of Forum Motion

by Steven R. Merican

Janet Chochorowski rented a power tiller from a Home Depot in Missouri. She claimed she did not want to purchase a damage waiver, but that she was charged for it anyway. She turned her grievance into a class action lawsuit in Illinois.

Janet’s breach of contract and unjust enrichment claims were dismissed. That left her with a single claim under the Missouri Merchandising Practices Act. Home Depot moved to dismiss the complaint on the basis of forum non conveniens. The trial court denied the motion, but on a permissive interlocutory appeal, the appellate court reversed. Chochorowski asked for and was granted a rehearing.

On rehearing, the appellate court considered whether it had jurisdiction to review Home Depot’s forum non conveniens motion made pursuant to Illinois Supreme Court Rule 306(a)(4) (allowing a permissive appeal “from the denial of a motion for transfer of venue to a court within another county in the state.”) The Fifth District Illinois Appellate Court ruled that Home Depot sought to have the case re-filed in Missouri, not transferred to another Illinois county. Thus, the court ruled that it did not have “authority to grant leave to appeal from the nonfinal order disposing of that issue.” That part of Home Depot’s appeal was dismissed.

December 11, 2007

No Transcript, No Worry. But Lack Of Exhibits Kills Appeal.

by Steven R. Merican

Midwest Builder Distributing, supplied cabinets and appliances to Lord and Essex, a homebuilder. Midwest sued Lord and Essex for nonpayment of goods delivered. The case was tried, and Midwest got a judgment against Lord and Essex.

Lord and Essex appealed, but there was a big procedural problem in the appellate court. The transcript of testimony for the first day of trial was unavailable. The parties were unable to stipulate to a bystander’s report. Neither party could get certification from the trial judge, who retired after the judgment was rendered. To boot, the related trial exhibits had been discarded.

Relying on the general law that requires appellant to provide a complete record, Midwest argued that the appellate court “lack[ed] the ability to meaningfully assess the merits of the case and therefore [has] no choice but to affirm [Midwest’s judgment].” Lord and Essex argued that the appellate court only needed to decide questions of law, which did not require the testimony or exhibits. The First District Illinois Appellate Court ruled that “to the extent that the decision may be impacted by testimony or documentary exhibits that have not been brought before us, the contents of such omitted portions of the record will be presumed to favor Midwest.”

December 9, 2007

Illinois Supreme Court To Post Oral Arguments On Web

by Steven R. Merican

Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.

Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.

Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.

December 5, 2007

Appeal Doomed For Lack Of Trial Court Transcript

by Steven R. Merican

Fritz Redelmann was a custodian for the Rolling Meadows Park District. He sued the Park District and a number of chemical and product manufacturers, claiming that he sustained neurological problems from exposure to their products while he was on the job.

After Redelmann filed an eighth amended complaint, three of the manufacturers filed a bill of particulars to determine when, where, and how plaintiff was exposed to their products. Redelmann did not respond to two bills of particulars, and his response to the third was inadequate. The manufacturers moved for sanctions. The trial court granted the sanctions motions, and struck certain of the counts and allegations in the eighth amended complaint. Plaintiff’s motion for reconsideration was denied, and the trial court permitted an interlocutory appeal.

The First District Illinois Appellate Court affirmed. One of the procedural issues concerned Redelmann’s failure to submit a sufficient record for the appellate court to assess. “Plaintiff’s failure to provide the reports of proceedings is fatal to the plaintiff’s claim because ‘to support a claim of error, the appellant has the burden to present a sufficiently complete record.’ … ‘Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.’ … ‘Without an adequate record preserving the claimed error, the reviewing court must presume the circuit court had a sufficient factual basis for its holding and that its order conforms with the law.’ … Therefore, ‘[w]here the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding.’ … Accordingly, without the reports of proceedings to review, we are unable to find that the trial court abused its discretion when it exercised its inherent authority and sanctioned the plaintiff, pursuant to Rule 219(c), by dismissing the counts in the eighth amended complaint …”

December 4, 2007

Illinois Supreme Court Vacates Appellate Ruling On Interlocutory Order.

by Steven R. Merican

In a battle between insurance company titans, State Farm sued Illinois Farmers for a declaration that the “step down” provisions in the Farmers’ automobile policies were unenforceable because they were against public policy. (“Step down” provisions allow the insurer to reduce policy limits when the driver of the insured vehicle is neither a family member nor a listed driver.) Farmers moved to dismiss the complaint, claiming the step down provisions were clear and unambiguous. State Farm moved for partial summary judgment, claiming that the step down provisions were against public policy.

The trial court denied Farmers’ motion to dismiss, and granted State Farm’s motion for partial summary judgment. So the judgment that was entered only concerned the public policy issue. The trial court also entered Rule 304(a) language, allowing an interlocutory appeal.

Farmers appealed the public policy ruling. In its brief, Farmers also advanced its ambiguity argument. The court of appeals reversed, ruling that the step down provisions were not contrary to public policy. Over objection by State Farm, the appellate court ruled that the ambiguity argument was properly before the court. The appellate court ruled that the Farmers policy was not ambiguous.

November 20, 2007

Trial Court Oversteps Authority In Directing Notice Of Appeal To Be Filed For Defendant

by Steven R. Merican

Walter Lofton pleaded guilty to charges of aggravated battery and criminal damage to government-supported property. He was sentenced to four years imprisonment on the battery count, and three concurrent years on the damage to property count.

After sentencing, Lofton was admonished about his right to appeal. When told of his right to appeal, he immediately expressed his desire to do so. About a week later, based upon Lofton’s stated desire to appeal, the trial court directed the clerk to file a notice of appeal on Lofton’s behalf, which the clerk did. However, Illinois Supreme Court Rule 604(d) requires that (1) a motion to reconsider the sentence or (2) a motion to withdraw the guilty plea and to vacate the judgment be filed in the trial court as a condition to appealing. Lofton filed neither.

The Fourth District Illinois Appellate Court remanded the case with directions to strike the notice of appeal and to confirm whether Lofton wanted to file a post-trial motion. The court ruled that “… the trial court acted without authority by directing the clerk to file a notice of appeal. Although defendant had initially expressed a desire to appeal, he did not indicate that he wanted to appeal after he had received the appeal admonitions. Defendant was deprived of approximately three weeks’ time in which to determine whether to file a posttrial motion.”