Illinois Governor Rod Blagojevich visited the Illinois Supreme Court today, his first look inside the building. He was given a tour of the building and had breakfast with the members of the court. Read all about it in the Chicago Daily Law Bulletin (subscription required).
To Reserve Is To Bifurcate — Sometimes. Second District Dismisses Appeal Of Reserved Judgment.
Dawn Marjetko obtained a default judgment in her divorce case. The trial court entered a judgment of dissolution, divided property, granted custody of the children, set child support, and barred maintenance. At the same time, the trial court “reserved” on child visitation, post-high school education expenses, and maintenance.
Frank Marjetko appealed. Although Dawn did not dispute appellate jurisdiction, the court dismissed the appeal for lack of jurisdiction. The court stated: “Orders resolving individual issues are not appealable … until the court resolves the entire dissolution claim.” The trial court’s “reserves” resulted in a bifurcated judgment, which was not appealable.
The appellate court acknowledged that trial courts often “reserve” on issues they have decided but want to re-visit in divorce cases. “Such a use of the word ‘reserved’ nearly guarantees confusion. The [Illinois Marriage and Dissolution of Marriage] Act uses the word ‘reserves’ specifically for instances where the court is bifurcating judgment.”
They Just Wanted To. Fifth District Appellate Rules On Waiver Of Preemption Defense.
This one falls into the category of “I guess they just wanted to.” It impresses the power of an appellate court to do as it pleases, and for no particular reason.
Jeffrey Hicks brought a class-action lawsuit against Airborne Express, claiming that Airborne did not deliver packages at guaranteed times. On appeal, Airborne claimed that Hicks’s contract claim was preempted by the Airline Deregulation Act. Hicks argued that Airborne waived the argument because it failed to raise the defense in the trial court.
The opinion does not state how Airborne defended the waiver argument. Nor does it provide a reason for overlooking it. After stating the rule that waiver limits the parties but not the jurisdiction of the court, the appellate court stated only, “We choose to address the issue.” No reason was provided.
Illinois Supreme Court Reiterates Standard Of Review For Motions To Vacate, Identifies An Exception.
On complicated facts involving pension funds and bankruptcy, the Illinois Supreme Court was confronted with the proper standard of review on a Section 2-1401 motion to vacate a judgment. Here are the rules that emerged:
• “… [T]he disposition of a petition seeking relief from judgment under section 2-1401 … will be disturbed on review only if the trial court abused its discretion.”
• When a 2-1401(f) (void judgment) petition to vacate is “dependent on the legal effect of a violation of one of this court’s own rules,” then a de novo standard of review applies.
Illinois Fifth District Appellate Examines Standard Of Review Of Venue Orders. Venue Improper In Vioxx Class Action.
On remand from federal court, plaintiff’s Vioxx class-action complaint landed in St. Clair County, Illinois, a venue known nationwide for big verdicts and class action cases. Defendant moved to transfer venue to Cook County. (Cook is no bargain for defendants, either. That gives you some measure for St. Clair.)
Relying on a 2005 Illinois Supreme Court opinion, the appellate court identified the standard of review for change of venue orders. “[P]roper venue determinations involve separate questions of fact and law … Questions of fact are reviewed for manifest error, and questions of law are reviewed de novo … When there is no dispute concerning the facts relied upon by the court, a de novo standard of review is proper.”
In this case, buying and ingesting the Vioxx in St. Clair County did not overcome the lack of direct dealings between the parties in St. Clair. Venue was not proper in St. Clair County, and the case was transferred to Cook County. See the whole case, Rensing v. Merck and Co., Inc., by clicking here. And here is Corral v. Mervis Industries, the Illinois Supreme Court case Rensing relied on.
First District Appellate Defines Abuse Of Discretion And Says Plaintiff Should Have Been Allowed To Cross Expert On Personal Practices
So what is an abuse of discretion? The definition bears repeating:
A trial court abuses its discretion only if it “act[s] arbitrarily without the employment of conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles of law … or if no reasonable person would take the position adopted by the court.”
In a medical malpractice case, plaintiff wanted to cross-examine the defense expert on his personal practices. The appellate court ruled that it was error for the trial court to preclude that cross-examination. The opinion did not state it was an abuse of discretion, but that’s the upshot. Take a look at Schmitz v. Binette, No. 1-05-2710 (10/13/06).
Illinois Third District Appellate Reviews Maryland Jurisdiction
A consulting firm got a default judgment in Maryland against an Illinois law firm. The consulting firm then petitioned to register the judgment in Illinois. The law firm moved to dismiss based on lack of jurisdiction of the Maryland court. The Illinois trial court denied the motion and ruled that the Maryland court did have jurisdiction.
On appeal, the consulting firm argued that the law firm waived the jurisdiction argument because it did not raise it in the Maryland court. The Illinois Third District Court of Appeals ruled there was no waiver. Both the Illinois trial and appellate courts “may inquire into whether a sister state had subject matter and personal jurisdiction in the matter.”
Get the whole opinion in Highway Traffic Safety Associates v. Gomien and Harrop, No 3-05-0786 (11/27/06) here.
First District Illinois Appellate Decides No Waiver For Insurer That Did Not Raise Issue On First Remand
In a procedurally complicated case running its way through the appellate court a second time, the Illinois First District Court of Appeals ruled that an insurer did not waive an argument that the first appellate ruling was palpably erroneous. After the first appeal and remand, the insurer did not argue to the trial court that the appellate ruling was erroneous. In the second appeal, plaintiff argued that the insurer’s silence was grounds for waiver.
The appellate court rejected that argument and ruled there was no waiver. The trial court was bound to follow the appellate court’s instructions on remand. An argument in the trial court that the appellate court’s ruling was erroneous would have been “futile.” See the whole opinion, which also is chock full of discussion about law of the case, Norris v. National Union Fire Insurance Co., No. 1-05-3132 (2006), by clicking here.
A Moment, Please
Most sincerely, I wish you a happy and healthy 2007.
Seventh Circuit Posts Notice of Proposed Circuit Rule Changes
The Seventh Circuit Court of Appeals has posted notice of circuit rules changes. The proposed changes will add Local Rule 32.1 and rescind Local Rule 53, regarding disposition of appeals by orders and opinions. The changes are designed to conform the local rules to Supreme Court Rule 32.1. The proposed changes are available by clicking here. Comments will be taken by mail or online by March 1, 2007.