Illinois Appellate Lawyer Blog

March 31, 2012

Pending Appeal Of Judgment Not A Bar To Adjudication Of Attorney’s Lien; Insufficient Record Dooms Appeal

Richard Moenning was injured when he got off a passenger railroad car. He sued Union Pacifc Railroad Company, the operator of the train, for negligence and for willful and wanton misconduct. Union Pacific got a directed verdict on the willful and wanton claim. But a jury gave Moenning a favorable verdict on the negligence claim — $250,000, which was reduced to $125,000 because Moenning was 50 percent at fault for his injury.

Moenning then asked for a new trial and for sanctions against Union Pacific for having denied it was negligent. The trial court denied both requests. Unhappy with the result, Moenning appealed the verdict and the denial of his post-trial requests.

Moenning’s lawyer in the trial court was Norman Lerum. Lerum had served an attorney’s lien for one-third of a settlement or judgment payable to Moenning. While Moenning’s appeal was pending, Lerum petitioned the trial court to adjudicate and enforce his lien.

March 23, 2012

Two Tips – Author Guberman Gives Two Brief-Writing Tips And Links To More

by Steven R. Merican

These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation’s Top Advocates. Ross also is an Appellatology panelist. His short bio is here.

These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.

Tip One

March 19, 2012

Sierra Club Appeal Of Delisted Contaminant Dismissed For Lack Of Standing

by Steven R. Merican

The Peoria Disposal Co. had a permit from the Illinois Environmental Protection Agency to operate a storage and treatment site for hazardous waste. The company asked the Illinois Pollution Control Board to delist (exclude from regulation) electric arc furnace dust. After a public hearing, the Board ordered the furnace dust to be delisted.

The Sierra Club and the Peoria Families Against Toxic Waste asked the Illinois Appellate Court to reverse the Board’s order. The appellate court decided that the Sierra Club and the Peoria Families both had standing to ask for review of the Board’s order, and that the order should be affirmed.

The Sierra Club and the Peoria Families then appealed to the Illinois Supreme Court. But the supreme court did not consider whether the order was correct. Instead, the court dismissed the appeal because neither the Sierra Club nor the Peoria Families had standing to ask for review.

March 13, 2012

How The Illinois Appellate Court Reviews Personal Jurisdiction

by Steven R. Merican

Here is a nice, concise statement of how the Illinois Appellate Court reviews the personal jurisdiction of the trial court.

When the trial court decides a jurisdictional question solely on the basis of documentary evidence and without an evidentiary hearing, as it did here, then the question is reviewed de novo on appeal. Rosier v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 561, 305 Ill.Dec. 352, 855 N.E.2d 243 (2006). On appeal, any conflicts in the pleadings and affidavits must be resolved in the plaintiff’s favor. MacNeil v. Trambert, 401 Ill.App.3d 1077, 1080, 342 Ill.Dec. 314, 932 N.E.2d 441 (2010). “However, well-alleged facts within affidavits presented by the defendant must be taken as true notwithstanding the existence of contrary averments in the plaintiff’s pleadings unless the defendant’s affidavits are contradicted by affidavits presented by the plaintiff, in which case the facts in the plaintiff’s affidavits prevail.” Keller v. Henderson, 359 Ill.App.3d 605, 611, 296 Ill.Dec. 125, 834 N.E.2d 930 (2005). If we determine that plaintiff has made a prima facie case for jurisdiction, we must then determine if there exist any material evidentiary conflicts. Id. If a material evidentiary conflict exists, we must remand the cause for an evidentiary hearing. Id.

Click here for the whole case, Soria v. Chrysler Canada, 2011 IL App (2d) 10123.

March 11, 2012

City’s Appeal Of Nixed Land Deal With Religious School Untimely And Moot

by Steven R. Merican

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

February 7, 2012

De Novo Standard Applies To Contempt For Failure To Produce Privileged Documents

by Steven R. Merican

Center Partners v. Growth Head grew out of a complex asset purchase agreement. The question in this opinion concerned whether Westfield, one of the parties involved in the agreement, had waived the attorney-client privilege during negotiations and had to produce documents in connection with the waived subject.

The trial court ruled that Westfield had waived the privilege and had to produce some 1,500 documents that otherwise were subject to the attorney-client privilege. Westfield refused to produce the records, so the trial court held Westfield in contempt.

Westfield appealed the contempt order. The first question was the proper standard of review. Contempt orders generally are reviewed for an abuse of discretion. But the First District Illinois Appellate Court applied a de novo standard [trial court decision gets no discretion]. This case was different than the typical contempt appeal “because a trial court lacks the discretion to compel the disclosure of privileged information, [so] we apply a de novo standard of review in determining the applicability of the attorney-client privilege.”

January 23, 2012

Illinois Appellate Lawyer Blog Launches “Two Tips”

by Steven R. Merican

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

January 21, 2012

Debtors’ Victory Affirmed; Creditor Forfeits Procedural Argument

by Steven R. Merican

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

January 17, 2012

Hospital’s Summary Judgment Denial Considered By Illinois Supreme Court

by Steven R. Merican

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

January 9, 2012

Medical Malpractice Appeal Forfeited For Lack Of Complete Record

by Steven R. Merican

Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.

The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:

An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.