Illinois Appellate Lawyer Blog

July 1, 2007

Filing Amended Complaint Waives Right To Appeal Summary Judgment Against Original

Rhonda Gilley broke her ankle when she slipped on unsecured carpeting in an apartment building. She sued the landlord for negligently maintaining the property. The landlord moved for summary judgment, and prevailed. Rhonda moved for reconsideration and to file an amended complaint. Her reconsideration motion was denied, but she was allowed to file an amended pleading.

Rhonda’s amended complaint did not incorporate or refer to her first complaint. The landlord moved to dismiss the amended complaint. He won, so Rhonda appealed both the summary judgment and the dismissal.

The Second District Appellate Court ruled that the summary judgment in favor of the landlord was not properly before the court. “[T]he issue of the propriety of the trial court’s grant of summary judgment is not properly before this court, for when an amendment is filed that is complete in itself and that does not refer to or adopt by reference the prior pleadings, the earlier pleadings are effectively withdrawn and cease to be a part of the record for most purposes . . . Thus, the filing of an amended pleading waives any objection to the trial court’s ruling on any former complaint . . . Here, by filing an amended complaint, plaintiff was precluded from appealing the order on her original complaint, and we restrict our review to the court’s dismissal of plaintiff’s amended complaint.”

June 27, 2007

In Case Of First Impression, First District Illinois Appellate Asserts Jurisdiction Over Appeal Filed 78 Days After Judgment

by Steven R. Merican

Rogers Auto Service was sued by a lender, Bell Leasing Brokerage, for wrongfully towing an automobile in which Bell had a perfected security interest. The trial court entered judgment for Bell. Rogers appealed, but Bell contested appellate jurisdiction because, Bell contended, the Notice of Appeal was late.

On the day the judgment was entered, Rogers filed a motion to reconsider. About three weeks later, the trial court granted Rogers additional time to file a supporting memorandum of law. Instead of filing the memo, Rogers moved to withdraw the reconsideration motion. That motion was granted, and Rogers appealed the next day, which was 78 days after the judgment was entered.

Illinois Supreme Court Rule 303(a)(1) permits a Notice of Appeal to be filed “within 30 days after the entry of the order disposing of the last pending postjudgment motion.” Bell argued that the order allowing withdrawal of a reconsideration motion was not an order disposing of a pending postjudgment motion, so the time to appeal was not tolled.

June 21, 2007

Summary Judgment In Declaratory Judgment Action Final Despite Pending Questions

by Steven R. Merican

Universal Insurance Co. sued Judge & James for legal malpractice. Universal claimed that J&J did not file a timely notice of appeal after a summary judgment against Universal was entered in a declaratory judgment action.

J&J had represented Universal in the declaratory judgment case brought by Heflin, an auto accident victim, to determine underinsured insurance coverage. In a summary judgment proceeding, the court declared that Universal owed insurance coverage. J&J’s motion to reconsider that ruling was denied. Instead of appealing the summary judgment, J&J filed certain discovery motions. The trial court ruled that its order on the motion to reconsider was final. Because that final order was more than 30 days old, the court also ruled that it did not have jurisdiction to rule on J&J’s discovery motions.

Universal and Heflin were ordered to arbitrate the insurance claim. That ended in an award of more than $2.9 million, which Universal was ordered to pay.

June 20, 2007

Post-Judgment Motion For Sanctions Tolls Time To Appeal

by Steven R. Merican

A class action against the manufacturer of a defective bicycle lock was settled. But certain class members, who had their own class action cases in other states, were unhappy with the settlement. They attempted to intervene to prevent the settlement. Their intervention motion was denied.

The trial court entered a final judgment pursuant to the settlement. Class counsel then timely moved for sanctions against the class members who tried to upset the settlement. That motion was withdrawn, and the angry class members filed their notice of appeal within 30 days of the withdrawal, but well more than 30 days after the final judgment.

The class representative who had settled the case moved to dismiss the appeal. He argued: (1) the sanctions motion, made after the final judgment was entered, did not toll the time to file the appeal; (2) the notice of appeal was late because it was filed more than 30 days after the final judgment was entered. He concluded there was no appellate jurisdiction.

June 19, 2007

Trial Court Without Power After Reversal Without Remand

by Steven R. Merican

In this procedurally complicated case, Draper and Kramer sued Dalan/Jupiter and Trammel Crow for breach of contract. Draper prevailed in a bench trial, but its judgment was reversed, without remand, on appeal.

Nonetheless, back in the trial court, Dalan moved for its attorney fees. The trial court concluded that it did not have jurisdiction to rule because Dalan filed the motion too late. Dalan then filed another lawsuit that requested the same attorney fees it expended defending the original lawsuit. The trial court granted summary judgment in favor of Draper and Kramer in that second lawsuit, ruling that the earlier denial of Dalan’s fee petition precluded the second lawsuit. Dalan appealed from that summary judgment.

The appellate court ruled that the trial court did not have jurisdiction even to consider Dalan’s petition for fees in the first case because the case had not been remanded from the appellate court. Thus, it did not have power to rule that Dalan’s motion was untimely. The appellate court explained:

June 15, 2007

Illinois Judicial Campaign Regulation Bill Dead For Now

by Steven R. Merican

A bill that would establish public funding for campaigns for Illinois appellate and supreme courts stalled at the end of the General Assembly Spring session. I’ve reported occasionally about the status of SB 0222. The bill would give primary winners for the appellate and supreme court seats public money for their campaigns, and also would also set contribution limits for all judicial campaigns. The bill made no provision for funding for independent or third party candidates.

When the General Assembly session ended on May 31, 2007, the bill was re-referred to the Senate Rules Committee. A 60 percent supermajority vote will be required to pass the bill this year. However, the bill can be filed next year, when passage again will require a simple majority vote. We’re safe − for now.

The full text of the bill is right here.

June 15, 2007

Split First District Appellate Court Rules Clearly Erroneous Standard Applies In Election Law Dispute

by Steven R. Merican

In this election law case, the incumbent disputed her challenger’s petition signatures. The incumbent claimed that the challenger sat in her car while others approached voters’ houses and obtained nomination petition signatures. The incumbent signed the petitions as the circulator, who the statute requires to be present when the petition is signed by a voter.

The election board ruled that the challenger satisfied the “presence” requirement. But the circuit court ruled otherwise, and threw out a sufficient number of signatures to disqualify the challenger from being placed on the election ballot. The First District Appellate Court — reviewing the Election Board’s decision, not the circuit court’s, as it is required by statute to do — affirmed the Election Board and restored the challenger to the election ballot.

The appellate court’s majority viewed the dispute as presenting a mixed question of law and fact, prompting a “clearly erroneous” standard of review. The case illustrates the problems courts have defining “mixed question of law and fact.” The court explained that a mixed question of law and fact “asks the legal effect of a given set of facts . . . To resolve a mixed question of law and fact, ‘a reviewing court must determine whether established facts satisfy applicable legal rules.’ . . . Here, we must decide whether the established facts — that Andrade watched from a car while her campaign workers obtained some signatures for her nominating petition —satisfy the presence requirement of section 10-4 of the Code.” The majority stated that the “clearly erroneous” standard applied only to review of administrative agency decisions.

June 14, 2007

Failure To Plead Enough Special Circumstances Dooms Appeal

by Steven R. Merican

Plaintiff, a pedestrian, was injured in a car accident that happened when the police chased a stolen rental car. Plaintiff was hit by the rental car. She sued the rental car company and the security company that had been hired to secure the rental car company’s car lot. The rental company moved for, and was granted, summary judgment. Plaintiff appealed.

Plaintiff was required to plead “special circumstances” because the car was on private property when it was stolen. Plaintiff argued “special circumstances” on appeal. But the issue was whether it was sufficiently preserved in the trial court. The First District Appellate Court ruled that plaintiff’s “special circumstances” argument was waived.

Plaintiff, however, merely alleged that Budget [car rental company] was negligent for failing to restrict access to its vehicles and in its administration of its NRT [nonrevenue transport ticket] process without alleging any special circumstances, i.e., previous vehicular thefts at the O’Hare Budget facility. Although plaintiff referenced special circumstances in her response to Budget’s motion for summary judgment and asserted therein that Budget took security precautions, she made none of the special circumstances arguments in the circuit court that she proffers in her briefs before this court. As such, those arguments are waived.

June 9, 2007

First District Illinois Appellate Rules Appeal From Denial Of Injunction Can Wait Until End Of Case

by Steven R. Merican

This case involved a dispute over the proceeds of a judgment debtor’s property. Certain of the creditors moved to allocate the proceeds of the sale of the property. The trial court denied the allocation motion.

Illinois Supreme Court Rule 307 allows orders granting or denying injunctive relief to be appealed within 30 days, as an interlocutory appeal. But the creditors who lost the allocation motion did not appeal within that deadline. They did timely appeal at the conclusion of the case. The issue was whether the court had jurisdiction to consider the appeal that did not comply with Rule 307.

The appellate court ruled that Rule 307 gave parties the option of appealing right away, but did not mandate an interlocutory appeal. “ . . . [W]hile Rule 307(a)(1) confers on parties the right to appeal certain interlocutory orders before entry of final judgment, the rule does not require that such an interlocutory appeal must be taken . . . Rather, the party has the option of waiting until after final judgment has been entered before seeking review of the interlocutory order . . .”

June 7, 2007

First District Illinois Appellate Prevents Second Bite At The Apple. “Law Of The Case” Prevails.

by Steven R. Merican

This wrongful death action grew out of a private airplane crash. The estates of the four people who died in the crash, sued the municipal owners and operators of the airport, Alberto-Culver, the owner of the plane, and Aon Aviation (a service provider). The municipal defendants moved for, and were granted, summary judgment on the basis of sovereign immunity. But the appellate court reversed, and the Illinois Supreme Court denied leave to appeal.

While the municipal defendants’ appealed, the case went to trial against Alberto-Culver and Aon. One of the estates was awarded a judgment, but there was a mistrial in the pilot’s case. The municipal defendants were brought back into the case, and the pilot’s estate retried the case against the private and municipal defendants. The retrial resulted in a judgment for the estate.

The municipal defendants appealed again, and again argued a sovereign immunity defense. The appellate court did not consider the argument because it was rejected in the first appeal and thus became law of the case. The court defined “law of the case” and its exceptions.