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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

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...

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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...

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