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In a third amended complaint alleging five causes of action, Time Savers sued LaSalle Bank for breach of contract, fraud, and the like. The trial court granted LaSalle’s motion to dismiss. Although the order disposed of the entire complaint, it nonetheless contained language from Illinois Supreme Court Rule 304(a) that permits appeal of an interlocutory order. (“. . . no just cause to delay enforcement or appeal of this order.”) Time Savers appealed the dismissal. After the Notice of Appeal was filed, LaSalle filed a motion in the trial court for sanctions against Time Savers.

Despite the pending sanctions motion, the appellate court ruled that it had jurisdiction to hear Time Savers’ appeal of the dismissal order. Oddly, the appellate court pointed to the Rule 304(a) language — which was not necessary to the order of dismissal because that order disposed of the entire case — as saving jurisdiction. “We retain jurisdiction, despite the filing of the motion for sanctions, because the notice of appeal was filed from the January 25, 2006 order [dismissing the third amended complaint], which contained Supreme Court Rule 304(a) language . . . that there is no just reason to delay enforcement or appeal.”

The entire case, Time Savers v. LaSalle Bank, No. 2-06-0198 (2/28/07), is available by clicking here.

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Contrast this case with Goldberg v. Rush University, directly below. In Fuller Family Holdings v. Northern Trust Co., 1-06-1533 (2/13/07), the same First District Court of Appeals (but a different panel) decided to overlook a party’s lack of citation to authority in its spoliation of evidence argument and rejected a waiver argument. The court fell back on the mantra that waiver is “an admonition to the parties and not a limitation on the jurisdiction of this court . . . Therefore, in order to provide a just result and to maintain a sound and uniform body of precedent, a court of review may exercise its discretion to disregard considerations of waiver that stem from the adversarial nature of our system.” Having hung its hat on this language, the court then, without analysis, “declined” to find waiver and stated it “believed” it was appropriate to decide the issue.

The Fuller Family Trust had much better luck than Dr. Goldberg on the same issue in the case I discussed on May 3 (directly below). The two cases illustrate how arbitrary “waiver” is. It’s particularly confounding for the appellate practitioner because most courts do not go beyond the black letter law that supports their conclusion. That’s why a case like Fuller Family Trust is not helpful on this question of waiver. The opinion does not state how overlooking waiver “provide[s] a just result and . . . maintain[s] a sound and uniform body of precedent.” Other than a desire to reach the issue, why is waiver here any different than it was in Goldberg, which came to exactly the opposite conclusion?

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In his dispute with Rush University Medical Center, Dr. Goldberg appealed from an order denying him leave to file an amended complaint. He stated his intention to appeal that order in his Notice of Appeal. But his brief did not contain argument or citation to relevant authorities.

Citing Illinois Supreme Court Rule 341, the appellate court ruled that Dr. Goldberg waived this contention. The court used a two-step analysis: Rule 341 requires a party’s arguments to be supported by citation to authorities. Points not argued are waived. So, the court concluded, the lack of citation necessarily meant the argument was waived.

Read the whole case, Goldberg v. Rush University Medical Center, No. 1-06-1005 (2/20/07), by clicking here.

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Dawn Waddick was unhappy with the trial court’s decision in her divorce action. She moved for reconsideration of the court’s decision. Still unhappy with the result of that motion, she appealed the trial court’s decision.

The Second District Illinois Appellate Court dismissed the appeal on its own motion. The court distinguished between the trial court’s “decision” and the later-entered judgment. “. . . [W]hen a timely postjudgment motion has been filed, the notice of appeal must be filed within 30 days after entry of the order disposing of the postjudgment motion. Here, however, Dawn’s motion to reconsider does not qualify as a timely postjudgment motion . . . Although Dawn’s motion to reconsider was file within 30 days after the trial court’s written decision, it was filed before the entry of the final judgment. Accordingly, the motion could not extend the time for filing the notice of appeal.”

The whole opinion, IRMO Waddick, No. 2-06-0363, is available by clicking here.

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The Carillos had a particularly difficult divorce case. Nine days before a judgment was entered, Carlos filed a motion for a rule to show cause why Anna should not be held in contempt of court. The judgment resolved all issues concerning custody and distribution of marital assets.

The motion for a rule was not resolved until five months later, when the court denied it. Carlos appealed within 30 days of the order on the rule, asking for review of the judgment. Anna moved to dismiss the appeal of the judgment. She argued that the pending motion for a rule did not change Carlos’s obligation to appeal the judgment within 30 days of the time it was entered. Because Carlos waited for the court to rule on the pending motion for a rule, Anna maintained, the appellate court did not have jurisdiction to rule on the appeal of the judgment.

The First District Appellate Court ruled that it did have jurisdiction to consider the judgment. “Because the order of January 18 [the judgment] lacked language making it immediately appealable, it did not become appealable until the court entered its July 11 order denying the motion for a rule to show cause.”

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Pierre Petrich had tickets to an NSYNC concert. She arrived quite late because, she said, automobile traffic at and near the concert venue was poorly handled. Angry about missing part of the concert, Petrich filed a class action lawsuit against, it seems, almost everyone who had anything to do with the production of the concert. The gist of her complaint was that defendants “breached their contractual duty to ensure her timely arrival to the Route 66 Raceway concert venue.”

After the trial court denied a class certification motion, Petrich appealed. Affirming the order denying class certification, the court stated the difficult standard of review: “Class certification is entirely within the province of the trial court and its determination will not be disturbed absent a clear abuse of discretion or the application of ‘impermissible legal criteria.’”

The whole case, Petrich v. MCY Music World, No. 1-05-1903 (2/8/07), is available by clicking here.

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The City of Chicago and the Chicago Board of Education were denied leave to intervene in a valuation dispute. Reversing the trial court, the First District Appellate Court deviated from the usual standard of review on intervention matters. Here’s the court’s reasoning:

An order denying leave to intervene as of right is generally reviewed for a clear abuse of discretion as to timeliness, inadequacy of representation, and sufficiency of interest . . . In the instant case, however, the trial court did not base its decision upon, nor even address, any of these factors. Rather, the trial court denied the petitions to intervene based upon its decision that the Property Tax Code . . . was a complete and comprehensive statute that enumerates all of the parties who are involved and all of their rights. The trial court concluded that the legislature did not intend to permit taxing bodies to intervene in specific tax objection cases, i.e., cases involving challenges to property assessments (as opposed to rate challenges), because the Property Tax Code does not expressly provide for a right of intervention by taxing bodies in specific tax objection cases. In order to determine whether the trial court applied the correct legal criteria in the exercise of its discretion, we must construe the pertinent statutes. Thus, the issue on appeal involves a question of law and our standard of review is de novo . . .

The case was remanded for a hearing on whether the intervenors met the usual standards. For the whole case, Madison Two Associates v. Pappas, No. 1-04-0911 (2/9/07), click here.

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In Illinois, judges are elected officials. They campaign for office, just like every other politician. Once elected, their actions are subject to political analysis and opinion, including conjecture and speculation, just like every other politician. No politician likes that, but two governing principles allow it: the First Amendment to the United States Constitution and the common law rule of tough. If you’re stepping in the ring, you better be able to take a shot to the kazoo.

In 2003, the Kane County Chronicle, a smallish newspaper with a circulation then of about 12-13,000, ran a series of opinion pieces that suggested Supreme Court Justice Robert Thomas traded his vote in an attorney disciplinary matter for political favor.

This grew out of the Anne Gorecki fiasco. Gorecki, formerly the Kane County State’s Attorney, reportedly put the arm on a job-seeker for a political contribution. She was brought before the Illinois Attorney Registration and Disciplinary Commission for her faux pas. The matter eventually worked its way to the Illinois Supreme Court, which inspired the Chronicle’s series.

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I judged one of the early final rounds of the American Bar Association Law Student Division National Appellate Advocacy Competition a couple of weeks ago. I was told that this is the most prominent moot court competition in the country.

I judged two arguments. Each team split the argument between two teammates. All eight of the contestants I judged did a fine job. Insofar as performance was concerned, the difference among these teams was on the margin. All of the presentations were polished, and one of the defense teams offered an especially good and professionally structured argument.

The teams’ briefs were independently assessed and scored for the competition. The scoring system places heavier emphasis on the oral presentation than the written product. I guess that’s the way all moot court competitions are. That’s a problem that needs to be fixed.

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Scott and Debra, co-trustees of their late mother’s trust, could not get along. After motions by each to have the other removed, Debra requested that a “special administrator” (more accurately, a “trustee”) be appointed. Her motion was granted on March 10, 2006. The court named Kathleen Ryding the trustee, “until further order of court.”

Unhappy that Kathleen was named trustee, Scott appealed. But he didn’t file a notice of appeal until May 31, 2006, well more than 30 days after Kathleen was appointed. The Second District Illinois Appellate Court dismissed the appeal, ruling that it did not have jurisdiction over the untimely filed notice of appeal.

Two points in the opinion are important.

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