An Illinois First District opinion recently ruled that citation to just one case did not prevent waiver of an argument of unjust enrichment. The court stated there was a failure to discuss the relevancy of the case. The failure to cite relevant authority was a violation of Illinois SCR 341, and the argument therefore was waived. The whole case is here, Fortech LLC v. R.W. Duntemann Co., 852 N.E.2d 541, No. 1-05-1526 (2006).
Second District Appellate Reviews The First District. We’re All One Court.
Can the Second District Appellate Court review an order issued by the First District? Sure, if it’s an interlocutory order, not law of the case. Here’s what the Second District said about this:
“There is but one appellate court … Thus, a panel of the Second District of the Appellate Court revisiting, during the course of an ongoing appeal, an issue that a panel of the First District of the same court implicitly addressed in ruling on the motions to transfer is no different from a successor trial judge revisiting the interlocutory decision of the trial judge he succeeded. Consequently, we reject the foregoing arguments by Ameren, ComEd, and the ICC that the law-of-the-case doctrine precludes our dismissal of case Nos. 2–06–0149 and 4–06– 0118.”
The case is Commonwealth Edison Co. v. ICC, 2-06-149 (2006), and you can get it here.
Illinois Supreme Court Overlooks Waiver; Rule 318 trumps 315
A legal malpractice action spawned a dispute over whether a law firm waived crucial arguments concerning due process and damages. The firm did not include those points in its petition for leave to appeal. The Illinois Supreme Court has already ruled that failure to raise an issue in the PLA may be deemed a waiver of that issue. (Look at Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152, No. 96978 (2004). So the client claiming malpractice moved to dismiss the law firm’s appeal of those questions.
But in this appeal, the client filed a separate PLA. The court resorted to Illinois SCR 318, which allows an appellee to “seek and obtain any relief warranted by the record on appeal without having filed a separate petition …” The Illinois Supreme Court denied the motion to dismiss and said the law firm could rest on Rule 318 to raise the issues it did not include in its own PLA. See the whole case here, Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, Nos. 99584, 99595 (2006).
(Caesura – This is the case that ruled a legal malpractice plaintiff, in its lawsuit against the law firm, cannot obtain punitive damages that may have been available in the underlying case.)
Unconstrained
I am writing a series of articles for the DCBA Brief, the journal for the DuPage County, Illinois Bar Association, that we’re calling “Thoughts Of An Unconstrained Practitioner.” The first article, published in November 2006, is titled, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” This article suggests the steps a lawyer and writer must take to prepare an appellate brief. The article is available on my website, www.illinoislocalcounsel.com, by clicking here.
Next in the series, to be published in January 2007, I think will be titled, “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read.” This article suggests ideas for good writing. It’s not a rehash of the stuff you can get from Strunk and White, and any number of other good writing manuals. It’s Merican’s unconstrained thoughts on good writing for appellate briefs.
Quick, File; No, Wait. Are You Covered? Fourth District Illinois Appellate Weighs In On Post-Dissolution Jurisdiction
Appeal from orders on post-dissolution of marriage petitions raises precarious problems. Suppose the court rules on a post-dis petition to modify maintenance, but leaves the child support-modification petition pending. Must you file your Notice of Appeal within 30 days of the maintenance ruling, or wait for a ruling on the support matter? If a ruling on support takes more than 30 days from the time of the maintenance ruling, will you lose the right to appeal maintenance?
The answer is “perhaps.” It depends on which district you’re in. The 2nd and 4th Districts say wait. But if you’re in the 1st, you better get your Notice of Appeal on file pronto.
IRMO Gaudio out of the 4th District recently broke the tie. Gaudio ruled that “Even if the order dismissing respondent’s petition [for modification of maintenance] constituted a final order, it was not immediately appealable without the required Rule 304(a) finding.”
Fusspots and Nitpickers
Judge Posner wonders whether the 7th Circuit is these for requiring complete jurisdictional statements in a diversity case. He doesn’t think so, because:
. . . the fact that limits on subject matter jurisdiction are not waivable or forfeitable — that federal courts are required to police their jurisdiction — imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.
So don’t short FRAP 28 if you don’t want to be called on the carpet, and maybe ordered to take a class on federal jurisdiction.
It’s a Minefield Out There
Somebody told me that once, referring to appeals. I had raised what I thought and hoped would be an easy question of appellate jurisdiction, and got a long lecture with lots of “but ifs.” And with typical lawyer weaseliness, the conclusion was “perhaps.”
Welcome to illinoisappellatelawyerblog.com. We’ll rassle with the issues that Illinois appellate practitioners care about – standards of review, mootness, waiver, the new rules, the old rules, the brief-writing process, and the biggest bug-a-boo of them all, appellate jurisdiction.
We’ll focus on what the Illinois courts and the 7th Circuit are doing, or not doing. (Did you see what the 7th Circuit said recently about “the carelessness of a number of the lawyers practicing before the court of this circuit with regard to the required contents of jurisdictional statement in diversity cases”? Take a peek at Smoot v. Mazda Motors of America.