Illinois Appellate Lawyer Blog

February 11, 2007

Manifest Abuse Of Discretion Required In Illinois To Reverse Order Denying Leave To Amend Complaint

The Third District Illinois Appellate Court reversed a trial court’s order denying leave to amend a complaint. The case is Gurnitz v. Lasits- Rohline Service. The appellate court stated the standard of review: “The decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court . . . Therefore, the trial court’s decision will stand absent a manifest abuse of discretion.” The court left no word on what a “manifest” abuse of discretion is. Is it any different than a plain old abuse of discretion? Any more strict?

The Third District cited the Illinois Supreme Court for the “manifest” abuse of discretion standard. And indeed the supreme court did use that exact language in Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill.2d 263, 273-74, 166 Ill.Dec. 882, 586 N.E.2d 1211, 1216 (1992). No word in Loyola Academy either defining the term.

Loyola Academy lists the factors that determine the propriety of a motion for leave to amend. The first factor is whether the proposed amendment would cure the defect in the original pleading. That sounds like a question of law, which should require de novo review, not abuse of discretion. The analyses in Loyola Academy and in Gurnitz support the idea that this factor is a question of law. Neither opinion mentions the standard of review in discussing this factor.

February 7, 2007

New Bill Would Establish Donation Limits And Public Financing For Illinois Appellate And Supreme Court Races

by Steven R. Merican

A bill pending in the Illinois General Assembly would change financing and spending for candidates for the Illinois Supreme Court and Courts of Appeal. STLtoday.com today reports on a plan to allot $750,000 to supreme court candidates and $250,000 to appellate court candidates from a public trust fund. More details are available on the bill by clicking here.

February 7, 2007

Is It Law Or Is It Fact? 7th Circuit Grapples With Jurisdiction In Qualified Immunity Case

by Steven R. Merican

Andrew Sallenger suffered from mental illness. He resisted an arrest and died during the altercation with police. His estate sued the police under 42 U.S.C. § 1983, including a claim for use of excessive force in violation of the Fourth Amendment. The police officers lost their summary judgment motion that was based on qualified immunity. Then they appealed. The estate moved to dismiss the appeal for lack of appellate jurisdiction. It argued that the appeal sought review of the district court’s findings of fact, impermissible under the collateral order doctrine.

Denials of summary judgment motions based on qualified immunity typically are treated as final judgments and are immediately appealable. This exception to the final judgment rule exists because of “the urgency of denials of qualified immunity.” However, the exception is limited by another rule: “[T]he Court of Appeals may consider only issues of law and may not consider any case which raises a genuine issue of material fact on appeal.”

In Sallenger’s case, district court found that questions of material fact existed about whether excessive force was used, and denied the summary judgment motion. But on appeal, the police officers accepted the district court’s version of the facts for summary judgment purposes. The court thus ruled that it had appellate jurisdiction because it could “decide qualified immunity as a matter of law without review of the district court’s findings of facts.”

February 6, 2007

7th Circuit Requires Insurance Company To Cross-Appeal Effort To Expand Rights

by Steven R. Merican

Pacific Insurance Co. defended an appeal of partial summary judgment. Pacific, as appellee, raised three gripes with the judgment. But Pacific did not file a cross-appeal. Pacific argued that the 7th Circuit could consider the arguments on the theory that the appellate court can affirm the district court on any ground supported by the record. The appellate court refused to consider Pacific’s positions because ruling in Pacific’s favor would have enlarged its rights under the judgment entered by the trial court. To accomplish that, Pacific was required to have filed a cross-appeal.

Get the whole case, Illinois School District Agency v. Pacific Insurance Co., No. 04-4147, 05-1271 (12/5/06), by clicking here.

February 3, 2007

No Gain, No Appeal. 7th Circuit Dismisses Appeal Of Bankrupt Coal Company

by Steven R. Merican

This dispute began 27 years ago when Robert Melvin applied for black lung benefits. After “amazingly protracted proceedings,” the Benefits Review Board upheld an award to Melvin’s widow. However, Melvin’s former employer, Old Ben Coal Company, and its parent company, were liquidated by a bankruptcy court. Although Old Ben and its parent had no assets, Mrs. Melvin’s award was to be paid by the Department of Labor out of the Black Lung Disability Trust Fund.

Old Ben petitioned the appellate court for review of the award. How does a defunct corporation that has been liquidated in bankruptcy do that? And why?

Here’s the explanation Old Ben’s attorneys gave. Horizon Natural Resources owned Old Ben at one time. Standard Oil of Indiana owned Horizon. B-P America bought Standard Oil. St. Paul Travelers Insurance Company issued a surety bond to Standard Oil. Old Ben’s lawyers said that a federal statute may allow the Department of Labor to recover from St. Paul the sums it paid to Mrs. Melvin. So St. Paul and B-P were paying Old Ben’s lawyers to dispute the award to Mrs. Melvin.

February 1, 2007

First District Appellate: Mortgagee Who Did Not File Cross-Appeal Cannot Dispute Fee Award

by Steven R. Merican

This three-way dispute involved the mortgagee, the mortgagor, and the high bidder on the foreclosed property. The mortgagor defaulted, and the subject property was foreclosed and sold. The trial court denied a motion by the high bidder to confirm a judicial sale, but did order the mortgagor to pay the high bidder’s attorney fees.

The high bidder appealed the denial of its motion to confirm. The mortgagor did not cross-appeal the fee award, but did dispute it in its response brief. The First District Illinois Appellate Court refused to hear the argument over the fee award because a cross-appeal had not been filed. The court explained:

We also find it important to note plaintiff’s [mortgagor] contention that the circuit court erred in awarding interest and attorneys’ fees to intervenor [high bidder] at plaintiff’s expense. Plaintiff raised this contention in its response brief but it did not cross-appeal the judgment of the circuit court ordering it to pay these costs to intervenor. Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee . . . However, findings adverse to the appellee require a cross-appeal if the judgment was in part against the appellee . . . Here, the circuit court granted plaintiff’s motion to vacate the sale and dismiss the case with prejudice but it also assessed specified costs against plaintiff based on equitable principles. The circuit court’s judgment was in part against plaintiff. Thus, plaintiff was required to file a cross-appeal to argue this issue on appeal . . . We, therefore, decline to address plaintiff’s argument relative to the circuit court’s judgment that was adverse to plaintiff.

February 1, 2007

Hubert To Receive CBA’s Dickerson Award

by Steven R. Merican

Donald Hubert will be honored posthumously by the Chicago Bar Association. Don will receive the CBA’s 2007 Earl Burrus Dickerson Award on February 21, 2007.

Don passed away recently. He was a past president of the Chicago Bar Association, an excellent lawyer, and among the finest people I’ve ever known.

The CBA is accepting individual memorial letters, which will be placed in a commemorative book for Don’s daughter, Jessica. Submit your original letter to Terrence Murphy, CBA Executive Director, 321 S. Plymouth Ct., Chicago, IL 60604.

January 31, 2007

More Good Times In Chicago

by Steven R. Merican

The Illinois Appellate Lawyers Association is sponsoring a talk entitled “Abraham Lincoln’s Rhetoric” at its February luncheon. David Zarefsky, Owen L. Coon Professor of Argumentation and Debate at Northwestern University, will present.

The event will be on February 8, 2007 at noon at the Chicago Athletic Association, 12 S. Michigan Avenue, Chicago. Call 312-554-2090 for a reservation.

January 31, 2007

7th Circuit Says No Jurisdiction Of Appeal By Alien Who Failed To Ask BIA To Re-Open Case

by Steven R. Merican

Luis Padilla was a lawful permanent resident. He pleaded guilty to charges of criminal sexual abuse and obstruction of justice in Illinois. He left the U.S., and when he attempted to return in May 2000 the federal government began removal proceedings because of his criminal record. Those proceedings concluded in February 2004 when the Bureau of Immigration Appeals ordered Padilla’s removal to Mexico.

After an unsuccessful appeal of that order, Padilla was ordered to report for removal in May 2005. But just before that time, Padilla got the Illinois criminal convictions vacated. He then petitioned the federal district court for a writ of habeas corpus and asked that he be declared admissible to the United States. Padilla did not ask the BIA to reconsider its order of removal.

The district court denied Padilla’s habeas petition, and he was removed to Mexico. He appealed the denial of the petition. Meanwhile, Congress passed the REAL ID Act, which stripped federal district courts of jurisdiction to review final orders of removal by the BIA. The Seventh Circuit thus declared the district court proceedings a nullity, and took Padilla’s appeal as a petition for review of the BIA’s removal order.

January 29, 2007

Lack of Notice of Cross Appeal Does Not Deprive Illinois First District Appellate Of Jurisdiction

by Steven R. Merican

A condominium association sued the condo developer for an accounting of expenses incurred before turnover to the board. The trial court granted summary judgment to the developer and denied the association’s cross-motion for summary judgment. The association appealed from the summary judgment given to the developer, but did not file a Notice of Appeal from the denial of its own summary judgment motion. Nonetheless, the association asked the appellate court to reverse the developer’s summary judgment and to order that judgment be entered for the association.

The developer argued that the association’s failure to file a Notice of Appeal from the denial of its own summary judgment motion “precludes us [appellate court] from granting the relief requested by the Association in its briefs.” Rejecting the developer’s argument, the court stated:

The notice of appeal in the instant case identifies the order appealed from, specifying that it granted summary judgment in favor of Metro. We recognize that the notice does not specify that the order appealed from also denied the Association’s motion for summary judgment. Furthermore, we recognize that the notice does not expressly seek reversal of that denial. Despite these omissions, we find that the notice fairly and adequately advised Metro of the nature of the appeal. The parties’ cross-motions for summary judgment clearly addressed the same legal issues, and thus, appealing the grant of one of the motions was essentially the same thing as appealing the denial of the other. Metro does not assert that it was prejudiced by the Association’s notice of appeal, and we find no basis for concluding that Metro’s ability to defend itself on appeal was in any way compromised or prejudiced by the formal, nonsubstantive defects in the Association’s notice of appeal.