The Illinois Appellate Lawyers Association announces its annual roundtable luncheon honoring the justices of the Second District Illinois Appellate Court. Date: 3/6/07. Time: 11:30 a.m. reception; 12:15 lunch. Place: The Centre of Elgin (Heritage Ballroom), 100 Symphony Way, Elgin, Illinois. Cost: $25.00 members; $30.00 non-members. Call 312-554-2090 to make a reservation.
Appeal Stands Despite Litany Of Deficiencies In Brief
Plaintiff bought a car that he claimed had an “unremediated defect.” He appealed after his case was dismissed at trial. The appellate opinion contains a list of horribles in plaintiff’s brief and the record — misleading Points and Authorities and Issues sections, lack of citation to the record, an incomplete record, to name a few. Despite the numerous transgressions from the Illinois Supreme Court Rules, the court considered the appeal, stating:
Given the deficient brief and record, it would be within our discretion to affirm the sanction [dismissal] order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.
The entire case, Gonzalez v. Nissan North America, No. 1-05-3539 (1st Dist. 12/4/06), is available by clicking here.
Nunc Pro Tunc Order Does Not Benefit From Illinois Rule 304(a) Language In Original Order
Two defendants had nearly identical names. One was Town of Fort Sheridan Company (TFSC); the other was Town of Fort Sheridan Operating Company (TFSOC). Plaintiff originally sued TFSC only. Later, but without leave of court, plaintiff filed an amended complaint that additionally named TFSOC.
TFSOC moved to dismiss on the basis that the amended complaint was a nullity because leave to file it had not been granted. The trial court granted the motion, but the order mistakenly identified TFSC as the dismissed party. This order did contain Illinois Supreme Court Rule 304(a) language, giving the parties 30 days to appeal the interlocutory order.
At TSFOC’s request, an order later was entered to correctly identify TSFOC as the dismissed party. That order was nunc pro tunc to the original dismissal order. It did not contain Illinois Supreme Court Rule 304(a) language.
Second District Illinois Appellate Rules Plain Error Doctrine Overcomes Waiver Of Patient’s Right To Psychiatric Evaluation
The use of psychotropic drugs again was at issue. The patient was admitted to the Elgin Mental Health Center after she was found to be unfit to stand trial for unauthorized use of a credit card. The patient was treated by Dr. Rosanova, who diagnosed schizophrenia and recommended use of phychotropic drugs.
The patient received an independent evaluation from a clinical psychologist, not a medical doctor. A chief preliminary issue was whether the patient timely demanded an independent evaluation by a physician. The court ruled that the patient’s actions in the trial court sufficiently defeated a waiver argument.
But the appellate court did not stop there. The court also ruled that the plain error doctrine — not often invoked in civil cases — overcame waiver. Here’s what the court said:
Update On Illinois SB 0222, The Illinois Judicial Campaign Regulation Bill
Since I last reported on SB 0222 on February 14, the bill has picked up three additional sponsors: Sen. Jacqueline Collins (D-16th), a Chief Co-Sponsor; Sen. Susan Garrett (D-29th), a Chief Co-Sponsor; and Sen. William Delgado (D-2nd).
Yesterday the bill was referred to the Senate Local Government Committee, which has scheduled a hearing on the bill on February 28, 2007 at 1:00 p.m. at the Capitol Building in Springfield, Illinois.
See my explanation of the bill, and how it ignores and thus makes election of independent and minor party candidates much harder, at the February 14, 2007 entry just below.
No Federal Appellate Jurisdiction Where District Court Decides Who Gets The Money But Not How Much
Richard Magley gave security interests to secure a number of loans. The Small Business Administration was guarantor of some of the loans, including two advanced by Cadleway Properties and Ossian Bank. The SBA removed the entire dispute to federal court. Cadleway and Ossian both claimed to be the beneficiary of a guaranty of a loan on a certain property. On summary judgment, the federal district court ruled that the bank was the beneficiary. The district court did not rule how much money, if anything, Ossian was entitled to receive.
The appellate court ruled that the dispute between Cadleway and Ossian was not “sufficiently discrete” to create an appealable interlocutory order. Here’s the court’s explanation:
. . . [T]he district judge has not specified who is entitled to what relief.
First District Illinois Appellate Rules Waiver Of Argument Raised For First Time On Motion For Reconsideration
In a fight between insurers over how to pay an underlying personal injury claimant, Tokio Marine and Fire fought with U.S. Fire Insurance about exhaustion of primary and excess policies. The trial court ordered Tokio to reimburse U.S. Fire for its full $1 million policy limits. Tokio asserted that the trial court should have conducted a hearing on proportionate liability before entering an order to reimburse.
Tokio raised this argument for the first time on a motion for reconsideration in the trial court. U.S. Fire argued to the appellate court that Tokio waived the argument. The appellate court agreed with U.S. Fire and ruled the argument waived. The appellate court was persuaded because the evidence raised by Tokio on reconsideration was available at the time the parties briefed the original motion. “Trial courts should not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.”
The entire case, North River Ins. Co. v. Grinnell Mutual Reinsurance, No. 1-05-0606 (12/8/06), is available here.
More On Illinois Judicial Campaign Finance Regulation Bill
I first wrote about the pending Illinois Senate bill to provide public financing for appellate and supreme court judicial candidates a few days ago. It’s SB0222, filed by Sen. Kwame Raoul (D-13th) (Chicago), on February 7, 2007. The bill has bi-partisan sponsorship; a chief co-sponsor is Sen. Kirk Dillard (R-24th) (Minority Whip from DuPage County). Another chief co-sponsor is Sen. Don Harmon (D-39th) (Oak Park).
The bill sets up a process by which major party candidates can obtain public financing for their campaigns for appellate and supreme court seats. Under SB0222, candidates do not have to accept public money, but if they do there are strict limits on fundraising and expenditures. If a candidate accepts the public money — $250,000 for appellate court candidates for the general election; $750,000 for supreme court candidates — then private donations to the campaign are limited to $100 per contributor. A candidate may not put more than $10,000 of his or her own money, including money from his or her immediate family, into the campaign, and may not make a loan to the campaign.
The bill contains a detailed regime for fundraising and for institutionalizing the “Illinois Judicial Election Democracy Trust.” The Trust, which would operate under the governance of the State Board of Elections, will dole out the campaign money.
Leave To Supplement Appellate Record Denied By Second District Illinois Appellate; Reply Brief Stricken For Lack Of Service
Steven Sharp was held in contempt for failure to pay maintenance and child support. He appealed the contempt ruling, and also requested review of the underlying support order. The appellate court affirmed.
Steven’s income was primarily from a trust. He argued that it was a spendthrift trust, and that the trustees refused to distribute assets to him for payment of his maintenance and child support obligations. But Steven did not originally make the trust a part of the appellate record, although it was in the trial court record.
After the appeal was fully briefed, Steven moved to supplement the appellate record with the trust. The appellate court denied the motion, ruling that supplementing the record would unduly prejudice his former wife, Laurie. Laurie was “precluded from citing to the trust provisions in her brief because the trust agreement had not been made part of the record on appeal. Therefore, petitioner [Laurie] was precluded from fully briefing any issue regarding the terms of the trust agreement.”
Second District Illinois Appellate Rules No Abuse Of Discretion (Or Maybe Manifest Injustice) In Granting Grandmother Visitation
Over Alice’s objection, the trial court granted Cindy’s (paternal grandmother) petition for visitation with Alice’s child. Although the appellate standard of review was not an issue in the dispute, the appellate opinion raises the question of the correct standard.
The court first says: “A trial court’s determination regarding visitation is within its sound discretion, and this court will not disturb such a finding absent a showing of manifest injustice.” This opinion does not define “manifest injustice.”
However, the Second District Appellate Court affirmed because it could not find an abuse of discretion. “We can find no error in the trial court’s finding that Alice’s denial of visitation was harmful to E.H.’s mental, physical, or emotional health, and we find no abuse of discretion in the court’s order granting visitation.”