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Illinois Appellate Lawyer Blog

Covers Appellate Advocacy, Constitutional Analysis, Cross-Appeal, Federal Appellate Rules, Illinois Supreme Court Rules, Interlocutory Appeals, and Podcasts.
By Steven R. Merican

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Last Entry: November 15, 2009 at 19:41:48

De Novo Standard Of Review For Petition To Vacate Dismissal When Trial Court Does Not Take Testimony

Posted on November 15, 2009
Christopher Mills sued Ryan McDuffa. Mills claimed he was injured when his car was rear ended by McDuffa. Two of Mills?s attorneys withdrew, and when Mills did not appear for a court hearing his case was dismissed for want of prosecution. About four months later, a new lawyer for Mills filed a petition under Illinois Rule of Civil Procedure 2-1401 (relief from judgments more than 30 days old) to vacate the dismissal order...

Unfounded Motion To Reconsider Judgment Extends Time To File Appeal

Posted on November 12, 2009
James Bertell was involuntarily committed to the Rockford Memorial Hospital. James sued the hospital, claiming its petition for involuntary commitment was late. The circuit court disagreed and dismissed James?s complaint. After the trial court denied James?s motion for reconsideration of the dismissal, James appealed within the 30-day deadline...

Permanent Disgorgement And Removal From Company Board Not Appealable Interlocutory Orders

Posted on November 09, 2009
Rick Santella fought with family members over control of Food Groupie, Inc., a closely held family corporation. Santella, and Mary and William Kolton were co-owners of the company. Santella sued the Koltons after they gave themselves bonuses and commissions, and stated their intention to close Food Groupie and to open a similar business in which Santella would not be involved...

Conditional Order Renders Appeal In Attorney Fee Dispute Moot

Posted on November 03, 2009
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...

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Appellate Jurisdiction Okay Over Judge Substitution Motion Not Identified In Notice Of Appeal

Posted on November 01, 2009
The O?Briens were involved in a divorce case. John O?Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John?s request was heard by a second judge, who denied it because of a lack of evidence of prejudice...

Appeal Before Ruling On Right To Tax Deed Premature

Posted on October 25, 2009
Dennis Ballinger owned a communications tower that was erected on property in Hancock County, Illinois. He filed a petition to obtain a tax deed for the property. Pettit Land, LLC. disputed Ballinger?s petition. Pettit claimed it owned the land, but not the tower, and that it properly paid taxes for the land...

Reconsideration Motion Untimely So Illinois Supreme Court Dismisses Appeal

Posted on October 23, 2009
The Illinois Supreme Court recently reversed the appellate court and dismissed Jennifer Keener?s appeal. Jennifer sued the City of Herrin on behalf of Chelsea Keener?s estate. Chelsea had been taken into custody by Herrin police for unlawful consumption of alcohol...

End-Of-Paragraph Fact Cites Comply With Illinois Supreme Court Rules

Posted on October 08, 2009
Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city. The record citations in the fact section of the city?s appellate brief were placed at the end of each paragraph, rather than after each sentence...

No Deference For Trial Court In Review Of Insurer?s Declaratory Judgment Case

Posted on October 05, 2009
Pekin Insurance Company and Hallmark Homes disputed insurance coverage for a personal injury lawsuit filed by Bremer, the employee of another contractor at a construction site. Bremer sued Hallmark and MC Builders. Hallmark was named as an additional insured on MC?s insurance policy with Pekin...

Missing Trial Court Order Sinks Parent?s Appeal Of Parental Termination Ruling

Posted on October 03, 2009
Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child...

Premature Notice Of Appeal Deprives Court Of Jurisdiction To Review Conditional Release Of Sexually Violent Person

Posted on September 27, 2009
Benjamin Hernandez, adjudicated to be a sexually violent person under the Illinois Sexually Violent Persons Commitment Act, was placed on conditional release. The State appealed, but filed its notice of appeal before the trial court approved the conditional release plan...

Interlocutory Order Not Identified In Notice Still Appealable

Posted on September 24, 2009
Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O?Neil, another of her doctors, as a respondent in discovery...

Dismissal Of Original Complaint A Final Judgment That Must Be Appealed Upon Voluntary Dismissal of Amended Complaint

Posted on September 22, 2009
This case is more about res judicata appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue...

Trial Court Retains Jurisdiction After Appellate Remand To Firemen?s Board

Posted on September 11, 2009
Patricia Jelinek and Jamie O?Callaghan, both widowed spouses of firemen, disputed whether the Firemen?s Retirement Board awarded them the proper benefit. Their husbands died while they were receiving duty-related benefits for injuries they suffered as firemen...

Forum Non Conveniens Dismissal Not A Final Order; Appealable By Petition, Not Notice Of Appeal

Posted on September 07, 2009
Dennis and Kimberly Quaids? newborn twins were hospitalized at Cedars-Sanai Hospital in Los Angeles, California for a staph infection. The babies were given Heparin instead of Hep-Lock, as was prescribed by the physician. The Quaids settled a claim against the hospital before a lawsuit was filed...

Involuntary Commitment To Mental Health Center Moot; Illinois Supreme Court Reviews Mootness Exceptions

Posted on September 05, 2009
A trial court committed Alfred H.H. to the McFarland Mental Health Center in Illinois. Alfred appealed the commitment order. But he was discharged from McFarland while the appeal was pending, so the Illinois Appellate Court dismissed the appeal because it was moot...

First District Illinois Appellate Court States Levels Of Appellate Review Of Punitive Damages Verdict

Posted on August 23, 2009
A group of townhome owners sued Carriageway Builders, the company that built the townhouse, and Carriageway?s owner, Wayne Johnson. Unfortunately, the foundation of the townhouse settled up to 10 inches, causing all sorts of damage to the building. A jury awarded the owners more than $1...

Pending Review Of Mother?s Finances Deprives Appellate Court Of Jurisdiction In Divorce Battle

Posted on August 18, 2009
Rosemary Mackin was unhappy with the trial court?s division of property and the denial of maintenance in her divorce case, so she appealed. The last order by the trial court disallowed child support, but set it ?for review after the expiration of 180 days for examination of the financial circumstances of [mother] and a determination by the Court at that time as to an appropriate amount of child support to be paid from that date forward by [mother] to [father] for the support of the parties' two minor children...

Pending Motion To Disqualify Attorney Deprives Appellate Court Of Jurisdiction To Consider Custody Order

Posted on August 16, 2009
Neringa Valkiunas and Jeffrey Olsen were in a protracted custody battle. Neringa first appealed from a custody modification order that made Jeffrey residential custodian. That first appeal was dismissed by the Second District Illinois Appellate Court because, when the appeal was filed, two civil contempt petitions were pending in the trial court...

Insurer?s Failure To Supplement Deficient Damages Evidence Not Invited Error

Posted on August 15, 2009
Michael Carey and James Fann owned a mixed-use building (residential and dental office) in Chicago, Illinois. The building was substantially damaged in a fire. Carey and Fann made a claim to their insurer, American Family Insurance, but the company denied coverage...

Summary Judgment On One Of Two Counts Final And Appealable As To Entire Complaint

Posted on August 13, 2009
When George Smith was a police officer in Chicago, he contributed to the Police Pension Fund. When Smith resigned from the police force, the Police Pension Fund refunded his $18,000 contribution. A few years later, Smith became a state court judge in the Circuit Court of Cook County, Illinois...

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

Posted on August 09, 2009
Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters...

Order On Partial Fee Petition Not Appealable. Merits Panel Dismissal Trumps Motion Panel.

Posted on August 04, 2009
Michael Gagliardo died in a racing-car accident. Paulette (sister) and Margaret (wife) administered Michael?s estate. They hired Quinlan & Carroll to investigate whether the estate could sue for wrongful death. Paulette later hired Duane Morris, another law firm, to open an estate in court...

Trial Court Lacks Power To Allow Intervention After Appeal Is Filed

Posted on July 25, 2009
Leonard Kulisek went to Walgreen pharmacy intending to purchase allopurinol for his gout. The pharmacist gave Leonard a bottle marked ?allopurinol,? but it really contained glipizide, a diabetes medication that lowers blood sugar. Thinking he was taking allopurinol, Leonard ingested the glipizide...

Pending Appeal Deprives Trial Court Of Power To Reinstate Dismissed Case

Posted on July 22, 2009
Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it...

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

Posted on July 18, 2009
Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael?s widow, Terry, as administrator of Michael?s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor...

No Appellate Jurisdiction In Environmental Clean-Up Case When Trial Court Still Must Decide Who Gets Insurance Proceeds

Posted on July 04, 2009
Kerr-McGee Chemical and Lefton Iron & Metal were fighting out a 15-year dispute over the cost of cleaning up an environmentally contaminated industrial site. The first time the case was in the Seventh Circuit Court of Appeals, the court ruled that Kerr-McGee was entitled to the clean-up costs from Lefton...

No Discretion For Bank?s Post-Trial Appeal Over Dishonored Cashier?s Check

Posted on June 27, 2009
MidAmerica Bank sued Charter One Bank for failing to honor a $50,000 cashier?s check purchased at Charter. The check was payable to Essential Technologies of Illinois. David Hernandez was president of Essential. Mary Christelle, David?s mother, purchased the cashier?s check with money from her account at Charter...

Chiropractor Waives Unjust Enrichment Claim For Failure To File Cross-Appeal

Posted on June 21, 2009
Richard Martis, a chiropractor, treated Water Management Corp.?s employee for an on-the-job injury. Water Management?s worker compensation insurer was Grinnell Mutual Reinsurance Company. Martis was not in Grinnell?s preferred provider network. He submitted his bill to Grinnell for the treating the employee...

Public Defender Cannot Appeal Partial Dismissal But Wins Certified Interlocutory Appeal

Posted on June 21, 2009
Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender?s Office to be laid off and imposed unpaid furlough days on other employees in the office...

American Access Casualty Appeal Waived By Invited Error

Posted on June 15, 2009
Christine Siwek had an accident when she was driving Jerrold Erickson?s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer. American told the Department that Christine?s policy had been canceled...

Inmate?s Motion Attacking Void Judgment Tolls Time To Appeal

Posted on June 14, 2009
An inmate in a supermax prison sued prison officials in a mandamus action. The inmate sought an order preventing controlled feeding and requiring a nurse to attend to the inmate?s self-inflicted wounds outside of his cell. The prison officials asked for, and in July 2006 received, a dismissal of the complaint...

Paschen and Chicago Water Reclamation District Get Deferential Standard Of Review In Walsh?s Try To Prevent Bid Award

Posted on June 08, 2009
Walsh Construction Company and II In One Contractors formed a joint venture to bid on a contract being offered by the Metropolitan Water Reclamation District of Greater Chicago. The Walsh joint venture bid on the contract, but did not sign the required D-3 sheet...

Plain Error Doctrine Prevents Waiver Of Appellate Argument Against Involuntary Administration Of Psychotropic Drugs

Posted on June 06, 2009
James S. appealed from a trial court order that allowed psychotropic drugs to be administered to James against his wishes. A basis of James?s appeal was that the order should be reversed because the circuit court did not state findings of fact to support emergency administration of psychotropic drugs, and therefore did not comply with the statutory requirement...

De Novo Standard Of Review For Judgment Based On Contract Construction

Posted on May 21, 2009
Jeffrey Covinsky was CEO of Hannah Marine Corporation. He sued the company after it refused to pay him pursuant to a ?golden parachute? clause in his employment contract. In turn, Hannah counterclaimed against Covinsky for breach of fiduciary duty. The trial court gave Covinsky summary judgment on his claim...

Re-Opening Estate Decided Under Manifest Weight Standard

Posted on May 15, 2009
Kathleen Savio?s death in 2003 first was ruled by the coroner to be an accident. But after her body was exhumed and additional autopsies conducted in 2007, the coroner ruled that Kathleen?s death likely was a homicide. Kathleen?s father and siblings then asked the court to reopen Kathleen?s estate, to have the executor removed, and to name the father and one of the siblings as new executors...

Attorney Sanctions In Seventh Circuit Compared

Posted on May 06, 2009
For a statistical comparison among the federal appellate courts of sanctions orders against attorneys, take a peek at the Fall 2008 edition of the Seventh Circuit Review. The analysis concludes: ?The Seventh Circuit issued the fourth-most sanctions overall and issued the most serious sanctions...

Rules After Remand; Jurisdiction Over Fee Petition After Appeal Notice Is Filed

Posted on May 05, 2009
Two important rulings arise from this landlord-tenant dispute. After remand from the appellate court ? which did not include instructions for how to proceed ? the tenant asked the trial court for leave to amend its complaint to add a new item of damages...

Appeal Of Post-Judgment Motion Not Saved By Rule 303

Posted on May 02, 2009
Bridgette Glickman, owner of a condominium unit, fell on ice in a stairway at the condo building. She sustained multiple fractures to her ankle. Among others, she sued the condominium association for negligent maintenance of the stairway. The trial court dismissed Glickman?s complaint against the association because the accident happened before the association elected its first board of managers...

Illinois Supreme Court: Clear Error Standard For Election Board?s Justifiable Grounds Decision

Posted on April 26, 2009
We pick up today with the second part of the Illinois Supreme Court?s opinion in Republican Party v. Illinois State Board of Elections. (The entry directly below explains the important facts and the court?s ruling that it has power to review tie votes rendered by the Board...

Illinois Election Board Tie Vote Dismissal Of Republican Party Complaints Reviewable By Appellate Court

Posted on April 22, 2009
The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members...

No Appellate Standing For Knox County Employees Being Investigated; Appellate Court Lacks Supervisory Authority To Order A Special Prosecutor On Remand

Posted on April 17, 2009
This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State?s Attorney, John Pepmeyer began an investigation into ?improprieties? by current and former county employees of the county state?s attorney?s and sheriff?s offices...

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Posted on April 16, 2009
Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district?s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district?s educational fund...

Ford Motor Preserves Risk-Utility Jury Instruction Argument For Appeal

Posted on April 14, 2009
In this product liability case, Ford Motor Co. was sued by the estate of a driver who died in a rear-end auto accident. After trial, a jury reached a verdict for the estate. At trial, the parties fought about the correct way to instruct the jury to determine whether Ford was liable under a product liability theory...

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

Posted on March 29, 2009
WW Westwood Center sued Canel & Associates for legal malpractice. Canel tendered the defense of the lawsuit to it malpractice insurer, TIG Insurance Company. The tender inspired cross-claims by TIG and Canel for a declaratory judgment ? TIG asked for a ruling that it did not have to defend or indemnify Canel; Canel asserted just the opposite...

Non-Intervening Account Holders May Appeal Receiver?s Plan To Distribute Assets

Posted on March 22, 2009
In response to a complaint by the Securities and Exchange Commission, the federal district court froze the assets of Enterprise Trust. The SEC claimed that Enterprise deliberately mishandled and lost millions of dollars that it held for investors. The district court appointed a receiver for Enterprise, who devised a plan to distribute the remaining assets to the account holders...

Seventh Circuit Has Jurisdiction Over Goldblatt?s Bankruptcy Remand

Posted on March 21, 2009
LaSalle Bank, the principal creditor in the Goldblatt?s Bargain Stores bankruptcy, claimed Great American Group committed fraud when it purchased inventory from Goldblatt?s stores that were closing. LaSalle had a security interest in the inventory, and was obliged to reimburse Great American for overpayment of the estimated inventory value...

Due Process Violation In Contempt Proceeding Not Moot

Posted on March 18, 2009
Taren Coupland neglected to appear for her trial, so in her absence she was found guilty of possession of drug paraphernalia. A few days later, Taren was sentenced to 24 months of court supervision. Taren also was required to have a drug/alcohol assessment within 30 days, and to complete a remedial program within six months...

Post-Trial Motion Necessary To Preserve Appeal Issue In Directed Verdict Case

Posted on March 11, 2009
Karen Gillespie, as administrator of Kenyudra Gillespie?s estate, sued the University of Chicago Hospitals and a number of doctors for medical malpractice. Karen settled with or dismissed all of the defendants except Dr. Glynis Vashi. The case went to trial, and after Karen put in her evidence, the trial court granted a directed verdict for Dr...

Default Order Not Final And Appealable

Posted on March 09, 2009
In this multi-count business dispute, Fidelity National Title Insurance sued a number of parties. The trial court granted summary judgment to defendants on all but one count of the complaint. A breach of contract claim still remained against Old Intercounty...

Lawsuit To Prevent Spending For Stem Cell Research Moot On Appeal

Posted on February 25, 2009
Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor?s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose...

Trial Court?s ?Final And Appealable? Order Not Necessarily So

Posted on February 21, 2009
This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it?s not necessarily so. GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage...

Huskie?s Owner Confuses Manifest Weight Standard Of Review With Burden Of Proof At Trial

Posted on February 15, 2009
Molly, a dachshund, was mauled by Cosmo, a Siberian Huskie. Mark and Mindy Leith, Molly?s owners, sued Andrew Frost, Cosmo?s owner, for tortious damage to property. After a bench trial, a judge awarded nominal damages to Mark and Mindy. They thought they should have been awarded the several thousand dollars they paid a veterinarian who treated Molly...

Objection To Expert Waived Where ?Speculation? Argument Not Asserted During Testimony

Posted on February 11, 2009
Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler?s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed...

Car Dealership Waives Fraud Argument Because Of Insufficient Record

Posted on February 07, 2009
Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car. Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act...

Fact Findings On Summary Judgment Get No Deference On Appeal

Posted on February 04, 2009
Two children died after they were trapped by a ?quick? condition at an excavation pit. They became stuck in sand and clay at the pit, and died of hypothermia or drowning. The children?s estates sued the owner of the excavation pit, who tendered the claims to his insurer...

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

Posted on January 30, 2009
Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers? was granted; Secura?s was denied. Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed...

Filing Notice of Appeal In Appellate Court Does Not Confer Appellate Jurisdiction

Posted on January 28, 2009
Gerald Swinkle was denied a job with the Illinois Liquor Control Commission. He filed a claim against the liquor commission in the Illinois Civil Service Commission. He charged that the liquor commission?s hiring practice violated a veteran?s preference provision in the Illinois Administrative Code...

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

Posted on January 23, 2009
David Naleway and his minor daughter sued the girl?s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners...

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

Posted on January 13, 2009
Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs?s notice of appeal was filed timely, but it stated only that he was appealing...

City?s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

Posted on January 08, 2009
Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn?t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court...

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant?s Due Process Claim

Posted on January 06, 2009
When she was still a teenager living in Guatemala, Aura Chavez-Vasquez?s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant. Aura was living in Missouri with her two children when her illegal residency status was discovered...

Estate Can?t Avoid Judgment Notwithstanding The Verdict By Changing Theory Of Liability On Appeal

Posted on January 03, 2009
Gul Nageen Ahmed, at age 7, was riding her bicycle near a retention pond. She lost control of the bike, slid down an embankment into the pond, and drowned. Wasim Ahmed, as administrator of Gul?s estate, sued the homeowner association that owned the retention pond and the association?s property manager...

Pending Disqualification Motion Renders Custody Appeal Premature

Posted on January 02, 2009
Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal...

Old Documents Not Preserved For Evidence Not A Basis To Uphold Summary Judgment For American National Bank

Posted on December 23, 2008
More than $1.3 million was embezzled from General Automation, Inc. General?s payroll deposit checks were made payable to its bank, American National Bank and Trust. General?s accountant got the checks before they were deposited with the bank, and deposited them in his personal account...

Tyco Denied Damages Retrial Because Liability And Damages ?Not So Distinct?

Posted on December 21, 2008
Tyco Electronics was unhappy with surge protection equipment it purchased for inclusion in a product it sold to a customer. So Tyco sued Illinois Tool Works, the manufacturer of the equipment. A jury trial ended in a $2 million judgment for Tyco. Tyco still wasn?t pleased, so it asked the trial court for a retrial on damages only...

Hip Hip . . . . It?s A Number

Posted on December 17, 2008
The entry below was the 250th in this blog. I feel like I should celebrate, but, you know, as my good friend Howie says, ?It?s a number.?

?Necessary Step? Exception Overcomes Deficient Notice Of Appeal

Posted on December 17, 2008
Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment...

New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

Posted on December 14, 2008
Jennifer Keener?s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed. Jennifer sued the City of Herrin for wrongful death...

Bank?s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

Posted on December 11, 2008
In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer?s motion to vacate relied on two sections of the Illinois Civil Procedure Code ? � 2-1301(e) (setting aside default judgments); � 2-1401 (relief from judgments)...

Trial Court?s Abuse Of Discretion Not Enough To Reverse Medical Malpractice Judgment

Posted on December 03, 2008
Sandra Downey sued her doctor, Gary Dunnington, for medical malpractice when a mastectomy and reconstruction he performed resulted in permanent disfigurement. After a jury trial, judgment was entered for Dunnington. On appeal, Sandra argued that it was reversible error to admit evidence that Dunnington?s father was a minister and his mother was a stay-at-home-mom...

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

Posted on November 28, 2008
The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion...

Pending Contempt Petition Renders Other Substantive Rulings Non-Final And Not Appealable

Posted on November 23, 2008
In a post-dissolution of marriage case, does a pending contempt petition render other substantive rulings non-final and non-appealable? Does the court have to rule on the contempt petition before the appellate court can exercise its jurisdiction over all of the rulings? The blog entry directly above explains what happened in IRMO Gutman...

Illinois Supreme Court Considers Appellate Jurisdiction In IRMO Gutman. Appellate Court Panel?s Attempt To Overrule Sister Panel Rejected By Illinois Supreme Court

Posted on November 21, 2008
Nearly five years after their divorce, Mary Gutman filed a motion to continue and modify her maintenance award. Two months later, Daniel filed a motion to terminate maintenance. One month after that, Mary filed a petition to hold Daniel in contempt for having stopped the maintenance payments...

Car Buyer?s Compliance With Pre-Suit Dispute Resolution Procedure A Question Of Law

Posted on November 19, 2008
Edmond Jones sued Nissan because, he claimed, the car he bought was a lemon. The purchase agreement required Jones to submit his claim to an automotive complaint resolution program before he was allowed to sue in court. He did that twice, and twice his claim was dismissed...

Appellate Lawyers Pooling Resources?

Posted on November 13, 2008
Lots of appellate practitioners are in solo or small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That?s good for clients, and good for us. I am always thinking about ways to increase the quality of my work product and push down costs...

Medical Studies Act Privilege Assessed By Manifest Weight Of The Evidence

Posted on November 09, 2008
Judy Anderson died while in care of Rush-Copley Medical Center. Her estate sued Rush for medical malpractice. In discovery, Rush refused to turn over two categories of documents: medical journal articles and an Action Plan. Rush claimed the documents were used in connection with a peer review and therefore were privileged under the Illinois Medical Studies Act...

?Invited Error? Prevents Med Mal Plaintiff?s Appeal Of Evidentiary Ruling

Posted on November 06, 2008
David Mount had a cardiac arrest that caused brain damage and other injuries. David?s guardians sued his doctors for medical malpractice. A jury concluded that the doctors were not guilty. David?s guardians appealed to the First District Illinois Appellate Court...

Order Requiring Issuance Of Building Permits Final And Appealable Despite Remaining Claim

Posted on November 05, 2008
A developer bought land in Chicago intending to build apartments on it. The developer had the property for several years and incurred expenses to prepare it for construction. Then the City of Chicago rezoned the property, and the apartments no longer were allowed...

Illinois Supreme Court Considers Limitations Defense Raised For First Time On Appeal

Posted on October 31, 2008
Travelers Casualty & Surety sued the Bowmans for payment on performance bonds. The Bowmans raised statute of limitations defenses, but one of the statutes was not raised in the trial court. Nonetheless, that defense was fully briefed and argued to the appellate court...

Attorney Fees Allowed For Defending Magnuson-Moss Appeal

Posted on October 27, 2008
Courtney McNiff sued Mazda Motor of America under the Magnuson-Moss Warranty Act. After they settled the dispute, Courtney?s lawyers, who had a contingency fee agreement with Courtney, petitioned the court for an award of attorney fees. Based on the lawyers? time reports, the trial court awarded fees that were in excess of the contingency fee...

De Novo Review For Steel Company?s Appeal Of Pollution Control Board Ruling

Posted on October 25, 2008
The Illinois Environmental Agency awarded a pollution discharge license to U.S. Steel Corporation. American Bottom Conservancy filed an objection to the award to the Illinois Pollution Control Board. American Bottom objected because the Agency did not hold a public hearing concerning the issuance of the license...

?Downright Misleading? Constitutional Convention Referendum Ballot Prevails

Posted on October 21, 2008
The Illinois Constitutional Convention Referendum Case has been resolved ? for the moment. An Illinois appellate court affirmed the trial court?s remedy for the ?downright misleading? and unconstitutional ballot: hand out a flyer to voters telling them to disregard the referendum ?Explanation? and ?Notice? that are printed right on the ballot...

Constitutional Convention Vote Case Looking For A Decision In Illinois Appellate And Supreme Courts

Posted on October 13, 2008
The Illinois constitutional convention referendum is at a legal and electoral crossroad this week. The integrity of the referendum process, which is mandated by the Illinois Constitution, is at stake. Voters need speedy decisions if their constitutional right to a referendum free from underhanded politics is to be respected...

Trial Court Rules Illinois Constitutional Convention Referendum Allowed To Proceed With An Unconstitutional Ballot

Posted on October 10, 2008
Voters in Illinois will have a referendum at the November 2008 election on whether to hold a constitutional convention. The referendum, which comes up automatically every 20 years, is required by the Illinois Constitution. Several days ago, the Illinois Secretary of State published a copy of the referendum ballot that will be presented to voters...

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

Posted on October 06, 2008
Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia...

Limited Liability Company Must Have A Lawyer To Prosecute Appeal

Posted on September 29, 2008
Wabash Environmental Technologies, a limited liability company, was convicted of violating the Clean Water Act. The company was ordered to pay restitution and was placed on probation. After Wabash failed to make payments under the original restitution order, the company agreed to another payment schedule with the government...

Denial Of Food Company?s Federal Preemption Defense Not An Appealable Interlocutory Order

Posted on September 24, 2008
Tyson Foods moved for summary judgment in a class-action lawsuit. Tyson argued that the claims against it were preempted by federal law. The summary judgment motion was denied, and Tyson appealed. Ordinarily, the denial of a summary judgment motion is not appealable because it is not a final judgment...

Remand To Bankruptcy Court Deprives Seventh Circuit Of Jurisdiction

Posted on September 22, 2008
Diana Holland, who owned real property in Florida, filed her Chapter 7 Bankruptcy in Illinois. She asserted that Florida law exempted the Florida property from the bankruptcy. The bankruptcy trustee argued that Illinois law applied, and that it did not exempt the Florida property...

Court?s Application Of Erroneous Legal Criteria To Decertify Class Results In Reversal

Posted on September 15, 2008
Priscilla Rosolowski was the named plaintiff in a class-action lawsuit against Clark Refining and Marketing. The class consisted of residents who lived near Clark?s oil refinery. They claimed the refinery was a nuisance. A first trial judge certified the class...

Appellate Court Can Look Beyond Record To Assess Admissibility Of Novel Scientific Evidence

Posted on September 12, 2008
Tanisha Ruffin, on behalf of her infant daughter Sonya, sued Dr. Leo Boler for malpractice during Sonya?s delivery. Ruffin claimed Boler?s negligence caused Sonya to be born with an injury to her brachial plexus nerve network located at the shoulder area...

More Good Times With Illinois Appellate Lawyers

Posted on September 09, 2008
Illinois Solicitor General Michael Scodro will be the featured speaker at The Illinois Appellate Lawyers Association?s September 2008 lunch meeting. Scodro will talk about amicus briefs. The meeting will be on September 26, 2008 at the Chicago Bar Association, 321 S...

Veterinarian Forfeits Moorman Defense In Illinois Supreme Court

Posted on September 08, 2008
David Loman owned a race horse that he brought to the College of Venterinary Medicine at the University of Illinois for treatment. David Freeman performed surgery on the horse. But Loman said the surgery left the horse unable to race. So Loman sued Freeman...

Dispute Over Expert Testimony Not Waived On Appeal Despite Failure To Make Offer Of Proof In Trial Court

Posted on September 03, 2008
Efrain Torres injured his shoulder when he slipped on property owned by Midwest Development Company. Torres sued Midwest, claiming the company caused an unnatural accumulation of ice on the property. Michael Eiben, Torres?s roofing expert, was barred from testifying at trial, because, the trial court ruled, Eiben had ?no rational basis for his opinions...

Seventh Circuit Dismisses Government Appeal Of Qualified Immunity Defense

Posted on August 29, 2008
Ahmad Khorrami claimed he was wrongfully detained and mistreated by the federal government in an investigation stemming from the 9/11 terrorist attack. Khorrami sued Michael Rolince, an FBI agent on whose affidavit Khorrami allegedly was detained, and the government...

Certified Question Improper Under Illinois Supreme Court Rule 308, But Appellate Court Takes Interlocutory Appeal Anyway

Posted on August 27, 2008
Jerry Walker suffered a personal injury when she fell while cruising on a Carnival Cruise Line ship. She sued Carnival in Illinois, but her ticket stated that disputes must be litigated in Miami, Florida. Carnival sought dismissal of Jerry?s lawsuit, arguing that Illinois was not the proper forum...

Constructive Re-filing Of Reconsideration Motion Provides Appellate Jurisdiction Over Insurer?s Appeal Of Coverage Dispute

Posted on August 25, 2008
Stoneridge Development Company built a townhouse for John and Marie Walski. The Walskis claimed the house suffered from structural defects caused by Stoneridge building on soil that was not compacted appropriately. After the Walskis sued Stoneridge, Stoneridge sued Essex Insurance Company, its general liability insurer, for insurance coverage for the Walskis lawsuit...

Standard Of Review For Dying Declaration: Palpably Contrary To The Manifest Weight Of The Evidence

Posted on August 12, 2008
Howard Berry sued 40-plus companies for his damages from contracting mesothelioma as a result of exposure to asbestos. He died before his discovery deposition was completed and before his evidence deposition was taken. Howard?s wife, Linnie, continued the lawsuit as representative of Howard?s estate...

Order Postponing Insurer?s Motion To Stay Pending Arbitration ?Incident To An Orderly Process? And Not Appealable

Posted on August 09, 2008
Insurer CNA was involved in a complicated dispute with a claim handling company, Staffing Concepts. Staffing Concepts made claims on the worker compensation policies that it bought from CNA. CNA claimed that Staffing Concepts refused to pay millions of dollars for the deductibles on claims made by its employees...

Homeowners Forfeit Argument In Illinois Supreme Court That Wasn?t Raised In Petition For Leave To Appeal

Posted on August 08, 2008
MD Electrical Contractors subcontracted to do work at defendants? home. The homeowners did not pay for the work, so MD sued for the money. Because there was not a written contract, MD?s complaint used a theory of quantum meruit (that MD should be paid for the value of the work it performed)...

Argument Raised For First Time On Motion For Reconsideration Waived For Appeal

Posted on August 04, 2008
Unhappy with the treat ment she received from her dentist, Jill Caywood sued them for malpractice. The dentist moved to dismiss Jill?s complaint for lack of compliance with the statute of limitations. The trial court granted the dentist?s motion, and Jill moved for reconsideration...

Chicago School Board?s Failure To Comply With Court Monitor?s Rule Limiting Disabled Student Population Not Justiciable

Posted on July 31, 2008
About 16 years ago, a group of disabled students sued the Illinois State Board of Education. Among other things, the students claimed the Chicago Public School System, for which the State Board allegedly was responsible, improperly assigned disabled students to schools and classrooms solely according to their disability classification...

Illinois Constitutional Convention Debate Broadcasting Live And Available On Podcast

Posted on July 25, 2008
At the November 2008 election, Illinois voters will get a once every 20 years chance to vote on whether they want to have a state constitutional convention. The question will be debated by pundit Bruno Behrend (proponent) and lawyer Al Salvi (opponent) on July 29,2008 at 6:00 p...

Misunderstanding Filing Deadline Rule Not Excusable Neglect

Posted on July 24, 2008
Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review...

Reconsideration Motion That Presented New Evidence Reviewed For Abuse Of Discretion

Posted on July 23, 2008
Ricky Compton?s insurer, Country Mutual, had a lien on settlement proceeds Ricky received from the negligent party in an automobile accident. The lien was filed with Founders Insurance, the negligent party?s insurer. Ricky filed a class action complaint against Country Mutual, arguing that the lien filed on Founders was a breach of contract and a violation of the Illinois Consumer Fraud Act...

Candidate Who Owed Village Money Booted From Ballot; Illinois Supreme Court Defines ?Mixed Question Of Law And Fact?

Posted on July 14, 2008
John Cinkus intended to run for village trustee in the Village of Stickney, Illinois in April 2007. But in April 2006, he was cited under the Stickney Municipal Code for disorderly conduct. After a contested hearing, Cinkus was found guilty and ordered to pay a $100 fine...

Appeal Of Involuntary Admission To Mental Health Facility Dismissed As Moot

Posted on July 14, 2008
In re Alfred H.H. involved a patient who was involuntarily admitted to the McFarland Mental Health Center in Illinois. Alfred appealed the trial court?s ruling that subjected him to the involuntary admission. The trial court?s judgment was limited to a 90-day involuntary admission...

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

Posted on July 10, 2008
Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages...

7th Circuit Court of Appeals Dismisses Petition For Panel Rehearing That Only Argued New Issue

Posted on July 08, 2008
After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U...

De Novo Review Of Jury Instruction Favors Insurer

Posted on July 02, 2008
This case is another dispute between an insured and his homeowner?s insurer. After his house burned down, Rodney Barth filed a claim with State Farm. State Farm denied the claim because, it argued, Rodney made material misrepresentations during State Farm?s investigation of the fire...

No Abuse Of Discretion In Finding Law Firm Waived Right To Arbitration

Posted on June 30, 2008
Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case...

Motion To Strike Summary Judgment Affidavit Reviewed De Novo

Posted on June 29, 2008
As representative of Stanley Collins?s estate, Lisa Collins sued St. Paul Mercury Insurance for underinsured motorist coverage of the auto accident that killed Stanley. Lisa appealed after the trial court ruled that St. Paul did not owe insurance coverage and awarded the company summary judgment...

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer?s Appeal

Posted on June 27, 2008
Eclipse Manufacturing apparently was annoyed by receiving unsolicited faxes from United States Compliance. So Eclipse filed a class action case against Compliance. Compliance demanded a defense and indemnification from its insurer, Hartford Insurance...

Appeal Of Expired Commitment Order Not Moot

Posted on June 24, 2008
Kevin S. disputed an involuntary commitment order against him that placed him in the Chester Mental Health Center. The commitment order was entered in November 2006, and was good for 180 days. But the case was before the Fifth District Illinois Appellate Court well after the 180 days expired...

Lack of Hearing Transcripts Makes For Insufficient Record To Reverse Good Faith Of Settlement

Posted on June 18, 2008
A building owned by the Jesuit church collapsed during demolition of the building next door. The church?s insurer paid the church?s insurance claim, and they both sued a number of the contractors involved in the demolition. When the church and the insurer settled with most of the defendants, the non-settling defendants contested the good faith of the settlement...

Children?s Claim For Constructive Trust Get De Novo Review

Posted on June 12, 2008
After his ex-wife died, Edward Trevino got into a dispute with his children over the disposition of a $100,000 life insurance benefit. Edward was the beneficiary on the policy. But his children pointed to a marital settlement agreement that stated they were to be beneficiaries of any ?death benefits...

Pretrial Objections To Parol Evidence Not Enough To Save Issue For Appeal

Posted on June 08, 2008
This case involves a dispute over the sale of land. Wheeler-Dealer asked the court to reform or rescind of the deed. Defendant Roger Christ won after a bench trial. Wheeler-Dealer appealed the verdict. One of Wheeler-Dealer?s arguments to the First District Illinois Appellate Court was that parol evidence improperly was admitted at the trial...

Seventh Circuit Holds Rule 60(b) Reconsideration Motion Not A Substitute For Appeal

Posted on June 04, 2008
Leo Stoller sued Pure Fishing Incorporated for trademark infringement. Eventually, the federal district court defaulted Stoller and awarded Pure Fishing costs and fees on one of its counterclaims. When Stoller appealed, Pure Fishing moved to require him to post an appeal bond...

Failure To Proffer Proposed Amended Pleading Forfeits Right To Appeal

Posted on June 02, 2008
Members of an insurance pool were sued for failure to pay extraordinary assessments. The pool members in turn brought a third-party complaint against a number of parties alleging breach of contract and numerous torts. The trial court dismissed a significant part of the third-party complaint with prejudice and without leave to file an amended pleading...

No Jurisdiction To Hear Appeal Of Denial Of Motion To Dismiss

Posted on May 31, 2008
Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main. The Village moved to dismiss Nicor?s amended complaint, but the motion was denied...

Invited Error Rule Knocks Out Broker-Dealer Appeal Against Computer Programmers

Posted on May 31, 2008
In this messy lawsuit, a broker-dealer sued its computer programmers and their firm on a theory of civil conspiracy. The programmers moved for summary judgment. The broker-dealer argued that the programmers engaged in tortious acts in furtherance of the conspiracy...

Illinois Supreme Court Rules Premarital Agreement A Separate Claim From Divorce

Posted on May 17, 2008
Before they were married, Steven and Angela signed a premarital agreement. When the couple was divorcing, Steven filed a motion for a declaratory judgment, seeking an order on the validity and construction of the premarital agreement. The trial court ruled that the agreement was enforceable...

Judgment Creditors Can?t Toll Time To Appeal By Asking For An Interlocutory Appeal

Posted on May 09, 2008
The D?Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D?Agostinos?s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch...

Pending Contempt Proceeding Renders Post Dissolution Judgment Nonfinal. Second District Illinois Appellate Court Still Split.

Posted on May 07, 2008
IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending. Eugene and Jean Marie were divorced in 1990...

Fourth District Illinois Appellate Court Reviews Jurisdiction Issue Despite Trial Court Failure To Do So

Posted on May 06, 2008
Lee Isringhausen, an Illinois resident, contracted with APM Custom Homes, a Florida corporation, to build a home in Marco Island, Florida. Lee died before the house was built. APM returned most of the $100,000 deposit to Lee?s estate, but kept $42,500 of it as a construction-management fee...

Parents Can Appeal Petition To Adjudicate Wardship; Opposing Brief Not Necessary For Court To Rule

Posted on May 03, 2008
Z.L., a minor who had been adopted as an infant, had reactive attachment disorder. The disorder apparently did not manifest until a few years after his adoption, when Z.L. became disruptive in the household. The State filed a petition to adjudicate wardship, with the intent to place Z...

Partial Record Sufficient

Posted on April 28, 2008
The party appealing must provide a sufficient record for the appellate court to review, ?and in the absence of such a record, the reviewing court will presume that the trial court?s order was in conformity with established legal principles and had a sufficient factual basis...

Illinois Supreme Court Rule 365 Doesn?t Save Notice Of Appeal Improperly Filed In Appellate Court

Posted on April 23, 2008
Here?s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303...

Dressed Up Abuse Standard For Review Of Sanctions Order

Posted on April 22, 2008
An unhappy customer sued an auto dealership, and the dealership?s incorporator. The incorporator moved to dismiss and for sanctions. The dismissal was granted, but the sanctions motion was denied. In affirming the denial of sanctions, the First District Illinois Appellate Court embellished the typical ?abuse of discretion? standard...

Relation Back Of Amendment A Limitations Issue, So Illinois Supreme Court Rules De Novo Standard Applies

Posted on April 18, 2008
A medical malpractice case raised the question of the correct standard of review of a ruling on whether an amended complaint relates back to the original complaint. In this case, the trial court ruled the amendment did not relate back, and thus was late under the statute of limitations...

Illinois Supreme Court Distinguishes ?Waiver? From ?Forfeiture?

Posted on April 16, 2008
This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal...

Possession Order Not Moot Even Though Tenant Vacated And Apartment Re-Rented

Posted on April 12, 2008
This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment. Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges...

Appellate Court Reviews Trial Court?s Actions On Remand De Novo

Posted on April 11, 2008
This doesn?t come up often, but the rule is good to keep tucked away for when you need it. In this medical malpractice case, the question on appeal involved the trial court?s actions after an earlier remand from the appellate court. The First District Illinois Court of Appeals stated the scope and standard of review...

Procedural Unconscionability Reviewed By Manifest Weight; Substantive Unconscionability Reviewed De Novo

Posted on April 07, 2008
Ozma Tabassum sued Javed Younis were married in Canada and had one child, Azra. They moved to Illinois, where their relationship took a turn for the worse. Ozma took Azra back to her family in Canada. While in Canada, Ozma and Javed negotiated a postmarital agreement...

Accident Victim Can Appeal Her Lawyer?s ?Good Cause? To Widthdraw

Posted on March 30, 2008
Victoria McGill hired Friedman & Solmor to represent her in her auto accident case. The law firm represented Victoria on a contingent fee arrangement until about one month before trial was scheduled. The firm withdrew as a result of a dispute with Victoria over whether to accept a settlement offer...

First District Illinois Appellate Court Says Coadministrator Of Estate Cannot Appeal As An Individual

Posted on March 27, 2008
This wrongful death and survival action was filed on behalf of the estate of Rashidi Walker. Rashidi died during football practice at Northwestern University. His mother, Linda, and his father, George Wheeler, Jr., were coadministrators of Rashidi?s estate...

Summary Judgment Sustained On Argument Trial Court Did Not Consider

Posted on March 24, 2008
Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany?s favor because she ?had probable cause as a matter of law to initiate the underlying civil proceedings against Howard...

Urgent Reminder! Appellate Law Seminar In DuPage County, Illinois On March 31, 2008

Posted on March 24, 2008
Earn continuing legal education hours and hear a terrific panel of speakers on appellate law and practice by attending ?A Blue Ribbon Panel On Appellate Advocacy.? Sponsored by the DuPage County Bar Association, the seminar will take place at noon on March 31, 2008 at the Attorney Resource Center at the DuPage County, Illinois courthouse...

Violation Of Discovery Rule Deemed A Question Of Law

Posted on March 20, 2008
In Boyd v. City of Chicago, No. 1-06-0358 (12/5/08), the trial court precluded testimony of a fact witness. In Boyd?s appeal of an adverse jury verdict, he claimed the trial court improperly precluded his witness?s testimony as a discovery sanction. The appellate court identified the standard of review: ? Whether a party violated a discovery rule is an issue of law that we review de novo?...

Failure To Claim Prejudice Destroys ?Plain Error? Argument

Posted on March 17, 2008
In this intercontinental visitation battle, Alixio Khazal claimed ?plain error? was grounds for reversal of the trial court?s decision to permit the mother visitation of their child in the United Arab Emirates. The dispute centered on the guardian ad litem?s oral report given at a pretrial conference, which included a recommendation to allow visitation in the UAE...

First District Illinois Appellate Court Defines Standards Of Review For Motion For New Trial And For Judgment Notwithstanding Verdict

Posted on March 11, 2008
Heather Addis sued Exelon for retaliatory discharge. Unhappy with the jury?s defense verdict, Addis moved for judgment notwithstanding the verdict and for a new trial. After those motions were denied, Addis appealed. The First District Illinois Appellate Court ruled that the two issues had different standards of review on appeal...

First District Illinois Appellate Court States Standard Of Review For Class Certification

Posted on March 07, 2008
Affirming certification of a class of plaintiffs who allegedly were overcharged by a moving company, the First District Illinois Court of Appeals stated the standard of review for class certification: ??The trial court has broad discretion to determine whether a proposed class satisfies the requirements for class certification and should err in favor of maintaining class [certifications]...

Illinois Supreme Court Rules De Novo Standard Of Review Applies To Permissive Review Of Conflict Of Law Question

Posted on March 05, 2008
Michelle Townsend brought a product liability case Sears Roebuck on behalf of her minor son Jacob. Jacob was badly injured when he was run over by a lawn tractor operated in his yard. Sears allegedly designed and manufactured the tractor. The accident happened in Michigan, where Michelle and Jacob resided...

For A Really Good Time With Appellate Lawyers In DuPage County, Illinois . . .

Posted on March 04, 2008
Attend the DuPage County Bar Association Appellate Law and Practice Committee Luncheon Seminar on March 31, 2008, Noon to 2:00 p.m. (Full Disclosure: I chair this committee.) The luncheon will feature: A Blue Ribbon Panel On Illinois Appellate Advocacy...

Fifith District Illinois Appellate Court Looks At Waiver, Ex Parte Communication, And Trial Judge Misconduct. First District Appellate Court Reviews Completeness Of Appellate Record

Posted on February 28, 2008
A couple of quick hits today. In a medical malpractice case, the Fifth District Illinois Appellate Court had this to say about the waiver rule: ??It is well established that both an objection at trial and a written post[ ]trial motion raising the issue are necessary to preserve an alleged error for review...

Employer?s Failure To Sufficiently Raise Position In Trial Court Results Waiver On Appeal

Posted on February 24, 2008
In a lawsuit in Missouri, Cambridge Engineering got an injunction against a former employee from engaging in sales-related activity for his new employer, Mercury Partners. Cambridge then sued Mercury in Illinois for tortious interference with contract...

No Forfeiture Of Appeal Where Plaintiff?s Amended Complaint Does Not Include Defendant-Appellees

Posted on February 21, 2008
Plaintiff was arrested for shoplifting at a Wal-Mart. After his arrest by the Forest Park Police, he committed suicide in his jail cell. His estate sued the police department and one of the police officers, as well as Wal-Mart and a number of its employees...

Fourth District Illinois Appellate Strikes Brief For Lack Of Citation To Record Or Authority

Posted on February 19, 2008
In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff?s reply brief for lack of appropriate citations...

Special Representative Gets Bonus Time To Appeal

Posted on February 14, 2008
LeRoy Voga sued his son, Lyle, to collect on a defaulted promissory note. After LeRoy got a judgment, Lyle?s former wife, Teresa, , intervened to quiet title to real property she had been awarded in her divorce proceeding with Lyle, seeking to prevent LeRoy from levyng on the property...

Illinois Supreme Court To Review IRMO Gutman. Is Civil Contempt Petition A Separate Claim From Underlying Divorce Case?

Posted on February 11, 2008
I mentioned IRMO Gutman in my January 3, 2008 entry regarding IRMO Knoerr. In IRMO Knoerr, the Second District Illinois Appellate Court overruled IRMO Gutman, which was only two months old at the time. On January 30, 2008, the Illinois Supreme Court announced it will review IRMO Gutman...

Good Times With Appellate Lawyers In Chicago

Posted on February 09, 2008
The Illinois Appellate Lawyers Association will present Brooks Davis speaking about Abraham Lincoln and Stephen A. Douglas. Here is the Association?s description of the event: The lifelong rivalry between these Illinois lawyers extended from Mary Todd?s parlor to the floor of the Illinois House of Representatives, across the bench of the Illinois Supreme Court, to the campaigns for U...

First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

Posted on February 08, 2008
Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified...

Temporary Removal Of Guardian Not Reviewable

Posted on February 03, 2008
Glen Dresher?s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son?s estate...

Slightly Defective Certificate Of Service Does Not Deprive Illinois Appellate Court Of Jurisdiction

Posted on January 29, 2008
In an insurance coverage dispute, Illinois Farmers moved to dismiss Secura Insurance?s appeal for lack of jurisdiction. Farmers argued that Secura?s Notice of Appeal, mailed to the court the 30th day after the judgment, was deficient because the certificate of service did not state the time of mailing, a requirement of Illinois Supreme Court Rule 12(b)(3)...