Illinois Appellate Lawyer Blog

November 15, 2007

7th Circuit Has Jurisdiction Of Dispute Over Non-Compete Clause In Patent License

County Materials Corporation signed a licensing agreement that allowed it to manufacture and sell Allan Block’s patented concrete block. The license also contained a non-compete clause that prohibited County Materials from selling a competing product for 18 months after the license was terminated.

After Allan Block terminated the license, County Materials developed its own concrete block that competed with Allan Block’s product. Allan Block threatened to sue to prevent County Materials from selling its new concrete block. But County Materials won the race to the courthouse, and brought an action to have the license declared void because the non-compete clause constituted patent misuse. The district court ruled that there was no patent misuse, and granted summary judgment in favor of Allan Block.

County Materials appealed. Allan Block moved to dismiss the appeal, pointing to U.S. Supreme Court precedent that grants exclusive jurisdiction to the Federal Circuit Court of Appeals of cases in which “federal patent law created the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”

November 14, 2007

Off Topic, But Not Entirely: New Venture Needs Great Writer With Reporting Skills In Chicago Area

by Steven R. Merican

I am formulating plans for a new online venture that will require writers who have an understanding or interest in the judicial process. The individuals I am seeking should have competent reporting skills and be terrific, entertaining writers. This enterprise will begin its efforts in Chicago, so your proximity to the area is necessary. This is a ground-floor opportunity to publish in a unique and an important area of journalism.

Contact me via email through the “Contact” button at the top of this page. Leave a short message and a phone number so I can call you.

November 12, 2007

Sovereign Immunity Doesn’t Deprive Appellate Court Of Jurisdiction In Veterinary Malpractice Case

by Steven R. Merican

Loman and Dodd owned a horse that required surgery. They entrusted the surgery to Freeman, who taught veterinary medicine at the University of Illinois. Freeman did the surgery as part of the training he provided for students at the University. Loman and Dodd alleged that Freeman performed an unauthorized procedure that ruined the horse for racing purposes. They sued Freeman for negligence and conversion. The trial court granted Freeman’s motion to dismiss.

Loman and Dodd appealed. Freeman moved to dismiss the appeal for lack of jurisdiction. He argued he was entitled to sovereign immunity because of his teaching position with the state university. The Fourth District Illinois Appellate Court denied the motion to dismiss the appeal.

The appellate court ruled that sovereign immunity did not apply because Freeman’s duty to Loman and Dodd derived from the common law, which was not dependent on Freeman’s employment by Illinois. In addition, the state was not subject to liability as a result of the lawsuit against Freeman. “‘[T]he decision of [the university] to indemnify its employees does not deprive the circuit courts of subject-matter jurisdiction over claims otherwise properly brought in the circuit court.’”

November 11, 2007

Illinois Appellate Lawyers Association Announces November Luncheon And Candidate Forum

by Steven R. Merican

The Illinois Appellate Lawyers Association will hold a luncheon featuring a forum for candidates running for election to the Illinois First District Appellate Court. Lunch at 12:00 p.m. on November 29, 2007. Location: The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois. Cost: Members, $35.00; Non-Members, $40.00.

November 10, 2007

Fourth District Appellate Court Pieces Together Inadequate Record

by Steven R. Merican

Katherine Adams claimed that defendants negligently removed her gallbladder, so she sued them. She got a jury verdict for more than $560,000. After their motions for a new trial were denied, defendants appealed. They claimed it was an abuse of discretion for the trial court to refuse to allow certain parts of expert’s testimony.

The entire, unedited video evidence deposition of the expert was in the record. But the trial court struck portions of the evidence deposition, and a final, edited videotape that was presented to the jury was not in the record. Nor was there a reported transcript of the testimony.

The appellate record contained defendants’ dvd of the stricken parts of the expert testimony. But the appellate court did not have the hardware capable of viewing the dvd. A final complication was that defendants did not cite to the unedited videotape for the expert testimony that was presented at trial.

November 8, 2007

No Waiver Of Argument Raised For First Time In Illinois Supreme Court

by Steven R. Merican

James Gallagher injured his back in a truck collision. James settled his workers’ compensation claim with his employer, Terminal. He also sued the driver of the other truck and that driver’s employer. After the lawsuit settled, Terminal attempted to enforce its workers’ compensation lien against the settlement proceeds. The trial court ruled that Terminal had waived its lien when it settled the comp claim with James.

Terminal appealed the trial court’s ruling. The court of appeals reversed the trial court, and held that Terminal had not waived the lien. James then appealed to the Illinois Supreme Court, which affirmed the appellate court.

As part of the worker’s comp settlement, James signed a resignation agreement. Terminal argued that James forfeited an argument that relied on the resignation agreement. James had not raised that argument either in the trial or appellate courts.

November 6, 2007

Illinois First District Appellate Court Reiterates Rule To Preserve Evidentiary Objection For Appeal

by Steven R. Merican

I wrote about this case, Bergman v. Kelsey, on October 15, 2007, and pointed out an inconsistency between the stated standard of review (de novo) and the court’s actual analysis (deferential review of a jury verdict). The case is instructive for another reason: reiterating the rule on how to preserve an order barring evidence for appellate review.

Katherine Bergman filed a medical malpractice case against the doctor and the hospital after her newborn son died from a streptococcus infection. Katherine got a verdict for more than $1.5 million. Defendants appealed, asking for a judgment notwithstanding the verdict or for a new trial.

One of the evidentiary issues on appeal bears repeating because so many trial lawyers overlook it: If your evidence is barred at trial, to preserve a prejudice argument on appeal, you must make an offer of proof.

November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

by Steven R. Merican

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

by Steven R. Merican

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

by Steven R. Merican

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.