Illinois Appellate Lawyer Blog

October 22, 2007

7th Circuit Dismisses Appeal Of Remand After District Court Denies Immunity Request

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

by Steven R. Merican

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

October 15, 2007

Medical Malpractice Case Illustrates Tension In Review Of Judgment Notwithstanding Verdict

by Steven R. Merican

Katherine Bergman’s baby died during child birth. She sued the doctor and the hospital for medical malpractice. Katherine got a verdict for more than $1.5 million. The doctor appealed, and among other things, claimed he was entitled to judgment notwithstanding the verdict (jnov). The First District Illinois Appellate Court affirmed the judgment.

This opinion points to an important inconsistency in appeals from jury verdicts. The court identified the standard of review of a denial of a motion jnov: de novo review.

On his motion jnov, the doctor asserted “that there was no basis for plaintiff’s theory that the standard of care required Dr. Kelsey [defendant doctor] to give plaintiff antibiotics upon admission to the hospital.” There was conflicting expert testimony on this issue. Affirming the jury verdict, the appellate court stated: “This conflicting evidence regarding the standard of care for administering antibiotics was properly submitted to the jury, and this court will not usurp the function of the jury and substitute its judgment for that of the jury.”

October 8, 2007

First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

by Steven R. Merican

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the addition of that language did not alter the fact that the court’s orders were not final as to any claim or party and were, thus, not subject to Rule 304(a).”

October 7, 2007

No Cause Of Action? No Matter. First District Illinois Appellate Rules Argument Waived On Appeal

by Steven R. Merican

This case involved a dispute between a buyer and a seller of a 3-flat building. The buyer claimed the seller knew about and hid structural defects in the building. He sued for breach of contract and fraud. After a bench trial, the buyer received a favorable judgment on the contract claim, and seller got a favorable ruling on the fraud claim.

The seller argued that Count I of the buyer’s Second Amended Complaint should have been dismissed for failure to state a cause of action. That count asked for damages for seller’s breach of good faith and fair dealing. But that is not a recognized cause of action in Illinois.

However, the seller did not move to dismiss that part of the buyer’s complaint in the trial court. He relied on a summary judgment motion, which was denied, as laying the foundation for appeal.

October 2, 2007

7th Circuit Appellate Court Rules Dismissal Without Prejudice Nonfinal Where District Court Wasn’t Through With Case

by Steven R. Merican

A pro se plaintiff filed four lawsuits, which were assigned to different judges, in which she complained that her children had been taken from her custody in violation of the law. Although the cases generally complained about the same subject matter, they never were consolidated.

The first three lawsuits ultimately were dismissed. But before those dismissals were entered, the fourth-filed case was dismissed without prejudice. Plaintiff appealed only from the dismissal in the fourth case. At the same time, she also moved to consolidate the four cases.

The district judge wrote a letter to plaintiff in response her two filings. With respect to the Notice of Appeal, the judge asked plaintiff for clarification of her position on the question of whether the complaint was duplicative of the first three lawsuits. The 7th Circuit Appellate Court chastised the district judge for writing the letter, explaining that it could confuse the parties about how to respond and about the true procedural posture of the case.

September 25, 2007

Plain Error “Exceedingly Rare” In Civil Appeals

by Steven R. Merican

In this trip and fall case, a customer, Matthews, sustained injuries when he tripped over a piece of metal that was jutting out of a fuel pump island at a gas station. The First District Illinois Appellate Court ruled on a few appellate issues. The two most significant have to do with the “plain error doctrine” and the requirement that each issue in an appeal must have its own statement of the standard of review.

After he was zeroed at trial, Matthews appealed. One of his arguments on appeal relied on the “plain error doctrine.” Matthews claimed that the trial judge made faulty and misleading statements to the jury. However, his attorney did not object when the statements were made. So on appeal, Matthews argued that the court’s statements were grounds for reversal because they constituted “plain error.”

The First District Appellate Court disagreed. The court stated that the use of the “plain error doctrine” in civil cases was “exceedingly rare.” “This doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.”

September 19, 2007

Permanency Order Not Final So GAL’s Appeal Not Moot

by Steven R. Merican

The State petitioned for a finding of parental unfitness because, it argued, (1) the mother’s repeated incarceration prevented her from performing her parental responsibilities and (2) the father failed to make reasonable progress toward reunification with the child.

After the trial court denied the State’s petition, the child’s guardian ad litem took an interlocutory appeal, claiming that the trial court’s ruling was against the manifest weight of the evidence. The First District Illinois Appellate Court reversed the order as to the mother, but affirmed as to the father.

After that decision by the appellate court, the trial court issued a new permanency order, which changed the child’s permanency goal from termination of parental rights to private guardianship. On a petition for rehearing, the mother argued that the changed permanency goal rendered the GAL’s appeal moot.

September 17, 2007

Reallege It Or Waive It

by Steven R. Merican

A bank claimed defendants wrongfully sold a portfolio of loans. The bank sued the defendants under several equity theories. The complaint and an amended complaint were dismissed. When the bank filed a second amended complaint, it did not reallege or incorporate the dismissed legal theories from the first two complaints.

The second amended complaint was dismissed with prejudice. The bank’s appeal sought review of the orders that dismissed the first two complaints. The appellate court ruled that the bank had waived appeal of all issues except those raised in the second amended complaint.

“A plaintiff desiring to preserve for appeal the previous dismissal of claims either must stand on the dismissed counts and challenge the ruling at the appellate level or reallege or incorporate the dismissed counts in subsequent complaints.” … A party who files an amended complaint waives any objection to the trial court’s ruling on the former complaint … Where an amended pleading is complete and does not refer to or adopt the prior complaint, the earlier complaint ceases to be a part of the record, being in effect abandoned and withdrawn … Once an amended pleading has been filed, allegations of error in dismissing a prior pleading are waived.…

September 12, 2007

Second Second District Illinois Appellate Panel Dismisses Appeal

by Steven R. Merican

This dispute grew from the Waddicks’ divorce. Several months after trial, in September 2005, the trial court issued a written decision that ruled on the contested matters. The court did not order a dissolution judgment to be prepared, but it did state that a joint custody order “will be entered by the Court.”

Dawn filed a motion to reconsider the September ruling. After a continuance, the court entered a judgment of dissolution in late November 2005. There was no ruling on Dawn’s motion to reconsider until March 2006, when it was denied. Dawn filed her notice of appeal later that month.

Before the briefs were filed, David moved to dismiss the appeal for lack of jurisdiction. The motion panel denied David’s motion. The appeal was reassigned for full disposition. The new panel stated it had “an independent duty to determine whether we have jurisdiction …” (The opinion does not state whether David renewed his motion to dismiss or if the panel looked at the question on its own.)