Catching up on reading. If you missed it too, here is Judge Posner in the American Bar Association’s Litigation News on writing an effective appellate brief.
Appellate Court Refuses Jurisdiction Over Order Quashing Lis Pendens
The Westin North Shore is a hotel in the northern suburbs of Chicago. The hotel was used as collateral for a multimillion dollar loan to the hotel owner. Five Mile Capital Westin had a subordinate interest in the loan. After the owner defaulted on his payments, Berkadia National Mortgage was named as special servicer of the hotel.
Berkadia got an offer to buy the hotel. But because the market for hotel properties fell, the offer did not cover the amount of the loan. If Berkadia accepted the offer, Five Mile Capital would be left with big losses.
So Five Mile Capital sued Berkadia, and asked the trial court for an injunction to stop the sale. Five Mile also recorded a lis pendens [formal notice that property title is disputed] on the property. Berkadia asked the trial court to dismiss the complaint and to lift the lis pendens. The trial court refused to dismiss the complaint, but did quash the lis pendens. The trial court also treated plaintiff’s position as a request for a preliminary injunction against the sale of the property. Then the trial court denied the preliminary injunction.
Can’t Reverse Hormones — Flirting Appellate Lawyers
Love at first cite. Thanks to FutureLawyer.com and cartoonist Charles Fincher at Lawcomix.blogspot.com.
No Appellate Jurisdiction For Homeowner’s Appeal Of Summary Judgment Foreclosure
Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.
On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].
Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.
Police Union’s Appeal Mooted By Officer’s Settlement
Melissa Ramskugler had passed Wisconsin’s requirements to qualify as a police officer, but was still in the probationary period required by the Milwaukee Board of Fire & Police Commissioners. Knee injuries prevented her from finishing probation. She was fired because her medical condition prevented her from getting through probation.
Wisconsin statutes have mandatory procedures for terminating police officers. But the Board, taking the position that Ramskugler was not a “member of the force” because she had not completed probation, did not follow the state statutory procedures when it let Ramskugler go. So she and the Milwaukee Police Association sued the Board for depriving her of property without due process.
The Board asked for, and was given summary judgment by the trial court against Ramskugler. She and the Police Association appealed. While the appeal was pending in the Seventh Circuit Court of Appeals, Ramskugler settled her dispute with the Board. The Police Association wanted to continue the appeal despite the settlement. So the settlement allowed the Police Association to continue the appeal in hopes of getting a declaration that the Board did not have authority to ignore the procedures set out in the Wisconsin statutes.
Subpoena In Plot-To-Kill-Former-Wife Case Gets Full Appellate Review Despite No Opposing Brief
Carolyn Mahoney sued her former husband, Billy J. Cox, and his lawyer, Marc Gummerson, for plotting to kill her. Cox was in jail, so Mahoney served the Illinois Department of Corrections with a subpoena to find out information about the plot. The DOC asked the trial court to quash the subpoena because the documents Mahoney wanted contained the name of a confidential informant. The DOC argued the informant’s safety could be at risk if his identity were disclosed.
Trial court refused quash the subpoena, and instead compelled the DOC to produce the records. The DOC then asked for an immediate appeal of whether the informant’s identity was privileged under an Illinois statute.
The appeal was allowed, and a question about whether the statute made the informant’s identity confidential was certified. The DOC filed its brief, but neither Mahoney, Cox, nor Gummerson responded. So the issue was how the appellate court should treat an appeal that no one opposed.
Lessor’s Affidavit Supporting Reconsideration Request Ignored By Appellate Court
Urban Sites of Chicago leased property to Crown Castle USA and T-Mobile USA. The parties had a disagreement about the terms of the lease, so Urban sued Crown and T-Mobile. Crown and T-Mobile counter-sued Urban.
Crown and T-Mobile asked for summary judgment, which the trial court granted. They argued that the lease had been modified to their benefit. Urban, arguing there was insufficient consideration to support the modification and relying on a company representative’s affidavit, then asked for reconsideration of the summary judgments, which the trial court denied.
Urban appealed. But the First District Illinois Appellate Court agreed with Crown and T-Mobile. The appellate court refused to even consider Urban’s affidavit because it was “submitted … for the first time in its [Urban’s] motion to reconsider … [and] was not part of the summary judgment process and was Urban Sites’ only attempt to present a basis for its lack of consideration argument. We cannot consider this document because the scope of appellate review of a summary judgment motion is limited to the record as it existed when the circuit court ruled on the summary judgment motion.”
Implied-In-Fact Contract Reviewed By Manifest–Weight-Of-The-Evidence
While still married to John, Betsy D’Attomo began developing a bakery. John and Betsy financed the bakery partly with money from a home equity loan. The couple decided to divorce. At the divorce trial, John claimed the money from the home equity loan was a loan to the bakery that must be paid back. Betsy testified that the money was an equity investment. The circuit court sided with Betsy, and ruled that the advance was an investment, not a loan.
John appealed. But other than his own testimony, John did not have any evidence to prove the advance was a loan. He argued that the loan contract was implied in fact. He also argued that the existence of an implied-in-fact contract was a question of law, which the appellate court should review de novo. [No discretion for the trial court decision.]
The First District Illinois Appellate Court disagreed with John on the standard of review. Implied-in-fact contracts are reviewed under a de novo standard if they arise out of a written document. But John did not have a written loan agreement. So the appellate court ruled that the more deferential manifest-weight-of-the-evidence standard applied because “the trial court is in a better position to weigh the testimony adduced at trial.”
Summary Judgment For Illinois Hospital On Actual Agency In Medical Malpratice Case Not A Final Order
Brandon Wilson required surgery for a fractured femur. He had a heart attack during surgery, which resulted in brain injury from lack of oxygen. Brandon sued Edward Hospital, where the surgery was done, and the doctors who treated him there.
To win against the hospital, Brandon had to show that the doctors were the hosptal’s actual or apparent agents. The hospital argued that the doctors were neither, and asked for summary judgment. The trial court gave the hospital judgment on the actual agent theory, but, ruling a question of fact existed, denied the hospital’s request on the apparent agency theory. Brandon then voluntarily dismissed his complaint.
One year later, Brandon re-filed, alleging the apparent agency theory against the hospital. The hospital asked the trial court to dismiss the re-filed complaint, arguing that it was barred by res judicata [second lawsuit alleging the same cause of action against the same parties not allowed]. The trial court refused to dismiss the re-filed complaint. But the court certified a question for immediate appeal – i.e., whether the re-filed complaint was a violation of the rule against claim-splittting and should be barred by res judicata.
Illinois Appellate Lawyer Blog Is Back To It
– Say hey illinoisappellatelawyerblog. Where have you been? What have you been doing?
– Oh, over there. Picking daisies, chewing tobacco, napping, hiding. You know, getting better.
– Better than what?