Appellate Law

Conditional Order Renders Appeal In Attorney Fee Dispute Moot

By Steven R. Merican

Clyde Engle was locked in a battle over payment of attorney fees to Foley and Lardner. Foley represented Engle in federal court litigation involving an insurance liquidation. Engle?s unpaid bill was for more than $1.8 million.

Engle agreed to pay Foley over time, and pledged his interest in bank stock as security. Foley thus took possession of some of the stock. Then Engle sued Foley and asked for a preliminary injunction preventing Foley from selling the stock. The trial court first denied Engle?s request. About two weeks later, the trial court issued a temporary restraining order prohibiting Foley from selling the stock for seven days. The court stated it would issue a preliminary injunction to that end if Engle would post a bond for the amount he owed as surety. That same day, Engle appealed the original denial of a preliminary injunction.

But Engle did not post the bond. Foley argued, and the First District Illinois Appellate Court agreed, that Engle?s appeal was moot because the trial court gave him the opportunity to get what he asked for ? an injunction preventing Foley from selling the bank stock. ?Having secured what they [Engle and his wife] basically sought, their appeal must be dismissed.?

Engle argued that the trial court lost jurisdiction before entering the second order because he filed his notice of appeal first. But the appellate court rejected that argument because the order was not time-stamped, and Engle could not prove he filed before the trial court ruled. ?It is quite conceivable that the court entered this order before Engle and Siobhan [wife] filed their notices of appeal. Engle never cited to anything in the record, such as a transcript or other material that would prove up his claim; thus, without more, we cannot accept it.?

Read the whole opinion, Engle v. Foley and Lardner, Nos. 1-08-2761, 1-08-2762 (7/10/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 03, 2009 (boomark / email).