Illinois Appellate Lawyer Blog

March 20, 2007

Illinois Supreme Court Rules Law Of The Case Doesn’t Apply. Court Decides No Remand In Favor Of Its Own Review.

Plaintiff’s vacation to Africa was ruined by rain storms. He sued the travel agent, claiming the agent had a fiduciary responsibility to disclose his financial interest in assuring plaintiff did not postpone the trip. The case took two trips to the appellate courts.

The first time on appeal, the appellate court (1) reversed a summary judgment that had been entered in defendant’s favor and (2) ruled that defendant must show plaintiff acted in bad faith as a prerequisite to obtaining attorney fees under the Consumer Fraud and Deceptive Businesses Act.

On remand, after a bench trial, the trial court entered judgment for defendant, but granted plaintiff’s motion to strike defendant’s fee petition. Both parties appealed. The appellate court affirmed.

March 16, 2007

Illinois Supreme Court Amends Appellate Rules

by Steven R. Merican

The Illinois Supreme Court ordered rule amendments today that affect the sticky question of the timely filing of a notice of appeal. That’s important because a notice of appeal must be filed timely to gain appellate jurisdiction. The court amended Illinois Supreme Court Rule 303, which sets out the general scheme for filing a Notice of Appeal after a final judgment. The amendments, effective May 1, 2007, add protection for a party who appeals prematurely in certain circumstances. Here are the major points:

• “A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Before this rule change, that same notice of appeal filed before entry of the judgment would be premature and would not invoke appellate jurisdiction.

• If an appeal is filed before a ruling on a timely filed postjudgment motion, “or before the final disposition of any separate claim, [the notice of appeal] becomes effective when the order disposing of said motion or claim is entered . . .” Before this change, that same notice of appeal would be premature and would not invoke appellate jurisdiction. The rule required that the premature appeal be withdrawn. A party could invoke appellate jurisdiction only with a new, timely notice of appeal.

March 15, 2007

De Novo Review For Jurisdictional Motion Made On The Papers Says Second District Illinois Appellate

by Steven R. Merican

An Illinois resident, unhappy with the boat he purchased, sued the Florida boat manufacturer for breach of contract. The manufacturer moved to dismiss based on lack of jurisdiction by the Illinois trial court. That motion, decided solely on the papers, was granted. On appeal, the Second District Illinois Appellate Court ruled that in cases in which “the trial court decides the issue of personal jurisdiction based solely on documentary evidence, our review is de novo.”

In this case, even after viewing the conflicting documentary evidence in favor of plaintiff, the appellate court agreed that the Florida manufacturer did not have minimum contacts sufficient for jurisdiction in Illinois.

The whole case, Bolger v. Nautica International, No. 2-06-0578 (1/11/07), is available by clicking here.

March 12, 2007

First District Illinois Appellate Sets “Abuse Of Discretion” Standard For Section 155 Fee Claim

by Steven R. Merican

The trial court ruled in favor of the insured on cross-motions for summary judgment in an insurance coverage dispute. The insured then moved for costs and attorney fees under Section 155 of the Illinois Insurance Code. The trial court denied that motion.

Both parties appealed. The insured argued that the standard of review for the denial of its fee motion was “de novo,” just like for the review of its summary judgment motion. But the appellate court ruled that the proper standard of review was “abuse of discretion” because the Section 155 sanctions motion “did not involve purely legal issues and was presented to the trial court after the court ruled on the parties” summary judgment motions.”

The whole case, Baxter International v. American Guarantee and Liability Ins. Co., No. 1-05-3231 (12/26/06), is available right here. http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/December/1053231.pdf

March 9, 2007

Illinois Supreme Court Establishes Manifest Weight Of The Evidence As Standard Of Review In Spousal Abuse Case

by Steven R. Merican

The Illinois Supreme Court has ruled that the standard of review for a finding of abuse under the Illinois Domestic Violence Act is the “manifest weight of the evidence.”

In this case, the trial court found abuse by the preponderance of the evidence. The appellate court affirmed, but used an “abuse of discretion” standard of review. The supreme court acknowledged that the “abuse of discretion” standard was commonly used in the appellate courts. “However, the ‘mere repetition of a purported rule of law does not establish its validity.’”

The whole case, Best v. Best, No. 101135 (9/21/06), is available by clicking here.

March 7, 2007

Oral Arguments On The Decline, Except In The Second District Illinois Appellate Court

by Steven R. Merican

The big news from the Illinois Appellate Lawyers Association luncheon to honor the Second District justices yesterday came when Presiding Justice R. Peter Grometer announced the court would definitely increase the number of cases receiving oral argument in the coming year. For as long as I can remember, the Second District Illinois court has been known for not allowing oral argument. No reason for the change in philosophy was given.

Increasing the number of oral arguments bucks the trend we’re seeing in many appellate courts. I wrote some about this in my recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” And while catching up on my reading, I read Susan Larsen’s comments, in a January 18, 2007 discussion in D. Todd Smith’s very fine Texas Appellate Law Blog. Larsen, formerly a justice on the Texas Court of Appeals, posits that oral argument forces judges to focus on the real people in a dispute and not “just theorize with briefs and transcripts and law books and computer research.”

Most lawyers routinely request oral argument. But most appellate judges I’ve spoken to say that oral argument rarely changes the way judges view a case. Many judges stick by the old saw that you can’t win a case at oral argument but you can lose one. So if the benefits of oral argument are minimal, and you’re more likely to hurt yourself than you are to help, then maybe we shouldn’t be so fast to prop up our egos with routine requests for oral argument.

March 6, 2007

Second Try Results In Dismissal Of Appeal. Wrong Court Doesn’t Matter. That’s Just Venue.

by Steven R. Merican

Strategic Energy asked the Illinois Commerce Commission for authority to act as an alternative retail electrical supplier (ARES). The electrical workers union opposed Strategic, and over Strategic’s objection was allowed to intervene. The Commission ultimately granted Strategic’s application to operate as an ARES. All parties appealed, and moved to dismiss the others’ appeals.

Unhappy with the ruling allowing the union to intervene, Strategic filed a petition for direct review in the Second District Court of Appeals. The union and the Commission moved to dismiss that appeal on the basis that Strategic did not exhaust its administrative remedies. The first time the Second District ruled, it denied the motions to dismiss.

The union and the Commission filed their appeal of the ruling granting Strategic’s application. They filed their appeal in the Fifth District Court of Appeals. The Fifth District clerk transferred those appeals to the Second District, where they were consolidated with Strategic’s appeal. Strategic moved to dismiss them as a nullity, having been filed in the wrong appellate district.

March 1, 2007

Illinois Campaign Regulation Bill Advances

by Steven R. Merican

Illinois Senate Bill 0222, which would give public money to primary winners for their campaigns for appellate and supreme court seats, advanced out of committee to the full Senate today. The Chicago Daily Law Bulletin reports (subscription required) that the bill was unanimously passed by the Senate Local Government Committee. The General Assembly web site shows the bill will receive a second reading tomorrow.

Since I reported on the bill on February 22, the bill has picked up five additional sponsers: Sen. John Cullerton (D-6th), Sen. David Koehler (D-46th), Sen. Dan Kotowski (D-33rd), Sen. Martin Sandoval (D-12th), and Sen. Pamela Althoff (R-32nd). There now are 11 sponsors.

For my earlier reports on this bill, see my February 7, 14, and 22 entries listed under Politics? The bill would give each primary winner $750,000 of public money to run for a supreme court seat, and $250,000 for an appellate court seat contest. The bill does not make a provision for independent or third (minor) party candidates.

March 1, 2007

Illinois Supreme Court Identifies Standard Of Review For Class Certification Dispute

by Steven R. Merican

Plaintiff sought class certification for persons who were exposed to toxic chemicals when a train derailed. The trial court certified the class, and was affirmed by the appellate court. The Illinois Supreme Court reversed on the basis that common issues of proximate cause and damages did not predominate. The supreme court’s opinion states the standard of review for decisions concerning class certification. “Decisions regarding class certification are within the discretion of the trial court and will not be disturbed on appeal unless the trial court abused its discretion or applied impermissible legal criteria . . . However, ” ‘[a] trial court’s discretion in deciding whether to certify a class action is not unlimited and is bounded by and must be exercised within the framework of the civil procedure rule governing class actions.’ ”

The entire case, Smith v. Illinois Central R.R., No. 102060 (11/30/06), is available by clicking here.

February 26, 2007

The Proof Is In The Reading

by Steven R. Merican

What you think you’ve written is not always the way it reads. That’s why the best way to proofread any writing, legal brief or quick email, is to read it out loud. Can’t be bothered? James Michener did it, and his novels are longer than a tall drink of water.

Well, maybe you have a sore throat or you just don’t have it in you to read your 50-page brief after you’ve worked on it for a month or more. Save your mellifluous tones and let Ultra Hal Text-to Speech Reader do the work. I learned about Ultra Hal from Eric Waltmire’s Blog. Ultra Hal TTS Reader reads your text out loud. You’ll be able to hear if what you wrote is what you meant to say. Ultra Hal TTS Reader is free. It’s very cool, and it does improve the proofing process. I used it for this error-free entry.