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Appellate Law

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

Post Frequency: 4.1/day

Last Entry: March 27, 2011 at 19:59:51

Fee Request More Than 30 Days After Final Order Doomed For Lack Of Jurisdiction

Posted on March 27, 2011
This posting is not strictly about appellate practice, but it?s worthwhile to read here because it answers the question of how long you have after a final order is entered to ask the trial court for attorney fees. And how long do you have to request fees after the trial court allows an interlocutory appeal? These are questions trial attorneys ask me a lot...

Illinois Supreme Court Moots Commitment Appeal Because No ?Conflict Or Disarray? In Law

Posted on March 23, 2011
A trial court ruled Benjamin Hernandez was a sexually violent person. Before he could be released from prison, the Illinois Sexually Violent Commitment Act required an outpatient facility to write a conditional release plan. The court ordered the plan to be written, but two years later, it still had not been prepared...

Injured Officer?s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

Posted on March 19, 2011
Timothy Cooper stole Terry Williams?s car. When Cooper tried to get away, he ran the car into Nikola Pritza?s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers? Compensation benefits...

Brief Stricken In False Claim Act Appeal Because Of Flagrant Violation Of Word-Count Certification

Posted on March 12, 2011
This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court...

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Failure To File Written Opposition Not A Basis For Waiver

Posted on March 05, 2011
Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic?s lien had priority over Parkway?s mortgage. Parkway asked the trial court for judgment on Beta?s counterclaim...

Condo President?s SLAPP Defense Against Developer Not Moot

Posted on February 27, 2011
John Walsh was the president of his condominium association. Certain members of the association felt the developer committed fraud in connection with the conversion of the apartment building to a condominium. So the association sued the developer. Two companies and two individuals were involved in the condo conversion ? Sixty Thirty LLC; Wright Management LLC; W...

Appellatology Launches From SRMPC Unashamed-Toot-Your-Horn-Marketing Department; Mock Appellate Judges Wanted

Posted on February 27, 2011
Appellate lawyers are belt-and?suspenders types. We read the rules; then re-read the rules; then just to be sure, read them again. We check our cites; re-check our cites; then just to be sure, check them again. We agonize over the legal briefs we write...

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

Posted on February 24, 2011
David and Rojean Molloy were battling for custody of their two children. The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act...

Claimant?s Award In Shell Oil Gasoline Pipeline Class Action Case Reviewed For Abuse Of Discretion

Posted on February 19, 2011
Shell Oil Company?s pipeline leaked thousands of gallons of gasoline onto the Danhausen Farm in Kankakee County, Illinois. The lawsuit against Shell turned into a class action. After Shell and the class reached a settlement, the trial court appointed a former judge as Settlement Administrator to recommend an allocation of the settlement funds among the class members...

Subpoenaed Minor A ?Party? Under Illinois Leave To Appeal Rule

Posted on February 14, 2011
Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth?s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter...

Rootin-Tootin Tootin

Posted on February 05, 2011
A couple of hundred years ago when I was a Big Law associate, a Big Law managing partner told me to ?Toot your own horn, because nobody else will.? I thought of that the other day when I got a memo from the grand poobah of the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department...

De Novo Review For Compliance With Illinois Rule Requiring Health Care Report In Medical Malpractice Case

Posted on January 31, 2011
What is the standard of review for a dismissal with prejudice for failure to file a report from a health care professional within 90 days of filing of the complaint? The Second District Illinois Appellate Court requires de novo review. Although we typically review the dismissal of a complaint with prejudice (as opposed to without prejudice) under an abuse of discretion standard ? we determine that a de novo standard of review applies here, because the trial court's decision was based on whether plaintiff complied with section 2-622 [Illinois Code of Civil Procedure], which involves statutory interpretation ? In this case, the appellate court reversed the dismissal of the case and remanded to the trial court to determine whether the deadline should have been extended for another 90 days...

De Novo Standard Of Review For Attorney Fee Award, Abuse Of Discretion For Reasonableness Of Award

Posted on January 28, 2011
Shoreline Towers Condominium Association sued Debra Gassman, claiming she ?waged a campaign of harassment and intimidation against Shoreline.? Gassman had sued Shoreline, and had filed complaints with government agencies, asserting the association had engaged in religious discrimination...

Victory On Petition Before Labor Board Dooms Union?s Appeal Of Board?s Rationale

Posted on January 27, 2011
A police labor union wanted to be the exclusive representative of ?all aviation security sergeants employed by the City of Chicago.? Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union?s petition...

Law-Of-The-Case Doctrine And Appellate Mandate Direct Trial Court?s Actions On Remand

Posted on January 22, 2011
The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home. Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers...

Collateral Consequences Not A Bar To Mootness Doctrine Where Patient Has History Of Illness

Posted on January 13, 2011
This case involved another dispute about whether an involuntary commitment to a hospital and administration of psychotropic drugs was proper. James H. was diagnosed as schizophrenic. The State?s psychiatrist considered James to be a threat to himself and to the public...

Proposal For New Law School Model Would Improve Students? Employment Prospects, Reduce Student Debt, And Make For Better Equipped Lawyers

Posted on January 10, 2011
Yesterday?s New York Times ran an article questioning the enormous loans many students need to get through law school, and how law schools game the school ratings. That?s news? Here is a letter to the editor I wrote today, suggesting a radical fix: To the Editor: ?Is Law School a Losing Game?? begs the question: what do we do about the foolish amount of debt students must absorb to get through law school? The answer is: change the structure of law school and the requirements one must meet to practice law...

Collateral Consequences Exception To Mootness Doctrine Applies To Involuntary Commitment Dispute

Posted on January 06, 2011
The police took Joseph P. to the hospital because he was acting emotionally unstable. Against Joseph?s wishes, a trial court later allowed the State?s request that Joseph be involuntarily committed to the hospital and that he be given psychotropic drugs...

Citizen Participation Act Defense Can?t Be Raised For The First Time On Appeal.

Posted on January 04, 2011
A.J. Bos got approval from the Department of Agriculture to build a ?megadairy? in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste...

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

Posted on December 19, 2010
While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ?s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge...

Recent Opinions On Standards Of Review In Illinois Appellate Courts: Substantial Compliance With Statute; New Trial; Damages; Mistrial

Posted on December 12, 2010
Writing an appellate brief? Here are some helpful excerpts from recently published opinions regarding standards of review in the Illinois appellate courts. (1) Figueroa v. Deacon, No. 1-09-1844, First District Illinois Appellate Court (8/25/10). Re substantial compliance with a statute: ?Whether there is substantial compliance with a statutory provision is a question of law and our standard of review is de novo...

Dismissal Of Election Law Complaint Remanded To Board For Lack Of Fact Findings

Posted on December 05, 2010
Mark Thompson filed a complaint in the Illinois State Board of Elections against Elizabeth Gorman. Thompson claimed Gorman filed false reports concerning loans and financing of a campaign for elected office. After a closed preliminary hearing, the Board examiner ?recommended that petitioner?s [Thompson] complaint be found not to have been filed upon justifiable grounds and that the matter not proceed to a public hearing...

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

Posted on November 28, 2010
Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov?s letter stated that Stein misrepresented to the court his experience as class counsel...

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer?s Sanctions Request

Posted on November 24, 2010
Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident...

Objections Sufficient To Preserve Evidence Issue For Appeal

Posted on November 16, 2010
The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal? Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery...

Term Limits The Lesson Of Attack On Kilbride?s Retention

Posted on November 10, 2010
Illinois Supreme Court Justice Thomas Kilbride won his retention election last week. About 65 percent of voters in his district voted to retain him. Now he has the option of serving another 10-year term. The Kilbride retention vote caused a lot of hand wringing...

Notice Of Appeal Saves Doctor From Forfeiting Reversal Argument

Posted on October 31, 2010
A baby sustained serious injuries at birth. His parents sued the doctor who performed the delivery for medical malpractice. The parents got a favorable trial verdict, so the doctor appealed. In the appellate court, the doctor claimed he should have been awarded a directed verdict by the trial court ?because there was a total failure of proof on the element of proximate causation...

State May Appeal No-Probable-Cause Order In Sexually Violent Person Commitment Action

Posted on October 29, 2010
Tommy Hardin had been convicted of aggravated sexual crimes three times. Just before his mandatory supervised release period, the State petitioned for Hardin?s civil commitment under the Illinois Sexually Violent Persons Commitment Act. After an evidentiary hearing, the trial court ruled there was no probable cause to believe Hardin was a sexually violent person who was likely to re- offend...

No Appellate Jurisdiction Over Landlord Not Explicitly Identified On Notice Of Appeal

Posted on October 20, 2010
Andrea Coleman sued Christina Udoh and her husband, Nsikak Akpakpan, for violating the Chicago Residential Landlords and Tenants Ordinance. The case was arbitrated, and Coleman was awarded $20,600. The trial court barred Udoh and Akpakpan from rejecting the arbitration award, so they appealed...

Manifest-Weight-Of-The-Evidence Standard For Review Of Denial Of Request To Vacate Judgment

Posted on October 14, 2010
Clarence Domingo sued the builder of his house, Vito Guarino, for breach of contract and violation of the Illinois consumer fraud act. Clarence got a default judgment, which Vito tried to get vacated under Illinois Code of Civil Procedure � 2-1401. The trial court held an evidentiary hearing on Vito?s request, then refused to vacate the judgment...

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