In this tax dispute, the bank’s brief in the court of appeals contained a 4½-page “Nature of the Case” section. That was “excessive,” according to the Second District Illinois Appellate Court. But the bank’s excessiveness did not interfere with review of the case, so the court declined to strike that section of the brief.
The whole case, County Treasurer v. Lake Carroll Association, No. 2-05-1209 (6/5/07), is available by clicking here.
In this complicated dispute among business partners, a counterclaimant asserted arguments of equitable estoppel and of the mend the hold doctrine. However, those arguments were posed for the first time in a motion for reconsideration of a summary judgment. The First District Illinois Appellate Court ruled that the arguments had been waived because “they failed to raise them prior to filing their motion for reconsideration.”
The lesson is: an argument raised for the first time in the trial court on a motion for reconsideration is waived for appeal. Get the whole case, Trossman v. Philipsborn, No. 1-04-0588 (6/8/07), by clicking here.
Teresa De Bouse brought a class action case against Bayer AG, claiming that Bayer misrepresented Baycol, a pharmaceutical that Bayer marketed to consumers. Teresa’s class certification motion was granted in the trial court. But the trial court clerk neglected to mail the order to the parties. Bayer’s lawyers did not learn about the order granting certification until long past the 30-day deadline to petition for appeal of class certification rulings in Illinois Supreme Court Rule 306(a)(8).
To give Bayer the opportunity to appeal the certification ruling, the trial court vacated its original order nunc pro tunc and reentered it. That action by the trial court came more than 30 days after the original ruling.
Bayer appealed the certification order. The Fifth District Illinois Appellate Court dismissed the appeal of the class certification ruling, and rejected each of Bayer’s arguments:
Carl Brdar, a truck driver, was injured when he tried to tie down an automobile to a cargo trailer. He sued Cottrel, Inc., the trailer manufacturer. Cottrell filed a third-party complaint against Vulcan Chain Corp., a distributor of metal tie-down chains. Vulcan’s motion to dismiss based on the statute of limitations was granted. The case was tried, and Carl got a judgment in excess of $1.4 million against Cottrell.
About two and a half weeks after the judgment, Cottrell filed a motion for an extension of time to file a post-trial motion. Cottrell served the motion on plaintiff, but not on Vulcan. That motion was granted, as were successive motions by Cottrell for more time. Cottrell eventually filed a post-trial motion.
About a month after the judgment, Carl filed a motion for costs incurred in calling a rebuttal expert witness. The motion argued that Carl was required to call the rebuttal expert when Cottrell’s expert gave surprise testimony.
Defendant Mortgage Exchange allegedly sent unauthorized faxes to solicit business. Plaintiff CE Design, apparently annoyed at receiving the faxes, sued under the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. CE attempted to make the case a class action, but its motion to certify a class was denied.
CE moved for reconsideration of the order denying class certification within 30 days. That motion was denied more than three months later. CE then petitioned for leave to appeal pursuant to Illinois Supreme Court Rule 306, which allows discretionary interlocutory appeals of denials of class certification motions.
Mortgage Exchange moved to dismiss the petition, arguing that the petition was filed more than 30 days after the order denying class certification, thus depriving the appellate court of jurisdiction. CE argued that its motion for reconsideration tolled the time to petition for an appeal.
Plaintiff Affordable Housing Preservation Foundation got a permanent injunction against Smith Wiiams in connection with business transactions he took in Affordable’s name. Within 30 days, Wiiams moved to vacate the injunction. But Wiiams’ motion did not detail why the injunction was infirm. The trial court ruled on the motion about seven months later. Wiiams’ notice of appeal was met with a motion to dismiss. Affordable Housing asserted that the bare motion to vacate was not sufficient to toll the time to appeal. Coming more than 30 days after the judgment was entered, Affordable argued, the appeal was not timely, thus depriving the appellate court of jurisdiction.
The appellate court disagreed and denied the motion to dismiss. Because the judgment was rendered by the judge, not a jury, the bare motion to vacate was sufficient to toll the time to appeal. “… [W]e conclude that, despite the fact that defendant’s motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 [of the Illinois Code of Civil Procedure] and was a valid postjudgment motion.”
The opinion describes the difference between motions against the judgment brought in jury and non-jury cases, and attempts to clear up precedent that made the distinction ambiguous.
After a bench trial in absentia, Patricia Wakenight was convicted of possession of a controlled substance with intent to deliver. The arrest was made in April 2000, but Patricia changed lawyers a number of times, and backed out of a plea agreement, so the trial was not completed until July 2005.
During the trial in July 2000, Patricia snuck out of the courthouse. The trial proceeded in her absence, and ended with the conviction. Four months later, Patricia was sentenced to 10 years imprisonment. After her post-trial motion was denied, and remaining a fugitive, Patricia appealed. She complained to the Second District Appellate Court (1) that she had not been properly admonished about the possibility that the trial could proceed in her absence, and (2) that she had not been given proper notice of her sentencing hearing.
The initial question was whether the appellate court should exercise its discretion to hear Patricia’s appeal. The appellate court “has the discretionary power to refuse to hear a fugitive’s appeal unless and until the fugitive returns to the jurisdiction.” But in this case, the appellate court refused to dismiss the appeal “because the only substantive issues defendant raises are whether she was properly admonished about the possibility of a trial in absentia and whether she was entitled to a separate notice of the sentencing hearing … Thus, the substantive issues are intertwined with the issue of whether we should hear the appeal in the first place.”
Kenneth Stark and Vesta Stark, both elderly, were married. Vesta suffered from Alzheimers disease. Kenneth died and left substantial money to the Southern Illinois University Foundation and the Shriner’s Hospital for Children. The will left nothing to Vesta, but did contain a statement that “adequate and suitable” provisions were made for Vesta from resources outside of the assets identified in the will. And the facts did show that Vesta was well taken care of.
Vesta gave power of attorney to her son, Mark. On Vesta’s behalf, Mark filed a renunciation of Kenneth’s will. By renouncing the will, Vesta stood to take a one-half share of Kenneth’s estate, more than $2.3 million.
SIU and Shriner’s petitioned to vacate the renunciation. The parties moved for partial summary judgment. SIU and Shriner’s argued that Mark did not act “for the benefit of” Vesta in renouncing the will, as is required by the Illinois Power of Attorney Act. Mark argued the opposite.
Shane Kolody was traveling on Amtrak with $280,000 in small bills. The government seized the money, then sued to keep it pursuant to the Illinois Drug Forfeiture Act. Kolody’s motion to dismiss the State’s amended complaint was denied. But his motion for reconsideration, based on misapplication of the forfeiture law, was granted.
The State appealed from the order granting reconsideration and dismissing the complaint. Kolody and the State agreed that the standard of review was “abuse of discretion.” But the appellate court disagreed, and applied the less deferential “de novo” standard. “When reviewing a motion to reconsider that was based only on the trial court’s application (or purported misapplication) of existing law, as opposed to a motion to reconsider that is based on new facts or legal theories not presented in the prior proceedings, our standard of review is de novo … ‘Where a party’s motion for reconsideration merely asks the trial court to reexamine its earlier application of existing law,’ this court’s review is de novo …”
The whole case, People v. $280,020 United States Currency, 1-04-3633 (4/20/07), is available by clicking here.
Steve Townsend injured himself when he fell through a hole in the floor of a building he was painting. Much of the pretrial proceedings focused on Townsend’s employment status with the defendants and his worker’s compensation issues. The case was tried to a jury, which returned a verdict of more than $1.9 million to Townsend.
On appeal, defendants argued that testimony concerning suspension of Townsend’s worker’s compensation benefits was unduly prejudicial. The appellate court ruled that defendants waived the argument, even though defense counsel did object at trial to testimony about a conversation concerning the suspension of benefits.
However, the objection was made “only on the ground that defendants were not parties to the conversation. Moreover, defense counsel then expressly asked the court for a limiting instruction telling the jury that defendants were not bound by that conversation. Defendants’ specific objection to the admission of evidence waives their current argument … Further, because defense counsel asked for a limiting instruction, he cannot argue that the instruction was inadequate to cure the error.”
