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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

Trial Court?s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

Posted on October 10, 2010
Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein...

?Two Issue Rule? Saves General Verdict For Doctor In Medical Malpractice Case

Posted on September 24, 2010
Wanda Boone died after her surgeon did not remove a cancerous tumor from her colon during a first surgery. The tumor was removed during a second surgery five days later. Wanda?s estate sued the surgeon, James Boffa, for medical malpractice, claiming Wanda died from the stress of the second surgery...

Landowner Ordered To Pay Appellate Attorney Fees In Due Process Dispute

Posted on September 20, 2010
Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit...

I?m Looking For ?

Posted on September 12, 2010
An honest man? Nah, that?d take too long. But I am looking for a great strategist and brief writer who wants to write criminal law appeals. Call (630-579-6460) or email (steve.merican@gmail.com) if you?re interested.

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Notice Of Appeal Fails To Confer Appellate Jurisdiction In Legal Malpractice Case

Posted on September 12, 2010
The beneficiaries of the Victoria R. Fitch Trust sued McDermott Will and Emery, the law firm that drafted Victoria?s estate plan, and Dietrich and Dietrich, the accounting firm that advised Victoria. The beneficiaries alleged a variety of legal claims for mishandling the estate plan...

Anonymity of Internet Posters Reviewed De Novo

Posted on September 05, 2010
This is an important Illinois case inasmuch as it has generated one of just a handful of appellate opinions that deal directly with the law as applied to internet use and political speech. Donald Maxon claimed he was defamed by comments posted by unidentified members of the public on a web version of the Times, a newspaper published by Ottawa Publishing Company...

Failure To Object At Trial Forfeits Appeal Of Violation Of Favorable Pre-Trial Evidentiary Ruling

Posted on September 03, 2010
This opinion is useful because it reiterates the point that a favorable pre-trial evidentiary ruling may not be sufficient to preserve the issue for appeal if your opposing counsel violates the ruling at trial. You must object at trial when the evidence is offered...

Grandparents? Appeal Of Dismissal Of Adoption Petition And Severance Order Lacks Jurisdiction. Appeal From Order Striking Response To Foster Parents? Adoption Petition Allowed

Posted on August 23, 2010
After SG?s parents lost their parental rights, the Hixsons (grandparents) petitioned to adopt the child. Five days later, in a separate case, the Bakers (foster parents) also petitioned to adopt SG. The Bakers also asked the trial court to consolidate the two cases...

$2 Million Punitive Damages Award In Defamation Case Reduced To $81,600 On Appeal

Posted on August 18, 2010
Jerry Slovinski sued James Elliot, the CEO of Slovinski?s former employer, for defamation. Slovinski claimed that disparaging and untrue remarks were made about him by Elliot to one of the company?s suppliers. A jury awarded Slovinski $81,600 for compensatory damages, and $2 million for punitive damages...

De Novo Review For Appeals Under Illinois Foreclosure Law

Posted on August 18, 2010
The standard of review of an appeal under the Illinois Foreclosure Law is de novo. But ?it is foreseeable that in a case in which a trial court has held a full evidentiary hearing on a motion to appoint a receiver, this court could find that an abuse of discretion standard or a manifest weight of the evidence standard would be appropriate to review the lower court?s judgmental decision...

?Sellers Exception? Dismissal In Airplane Crash Product Liability Case Not Final And Appealable

Posted on July 27, 2010
Illinois law allows the seller of a product to get out of a product liability lawsuit after identifying the manufacturer of the product. But even if the dismissal is with prejudice, the dismissal order is not final and immediately appealable. The First District Illinois Appellate Court recently said it did not have jurisdiction to consider the injured parties? appeal from a dismissal of a seller of an aircraft that had identified the manufacturer...

Claim Of Privilege In Discovery Dispute Reviewed De Novo

Posted on July 27, 2010
Discovery orders in Illinois generally are not immediately appealable. But a party can get an immediate appeal by refusing to comply with the order and then being held in contempt of court for doing so. The contempt order is immediately appealable. The Second District Illinois Appellate Court recently stated this rule and identified the standard of review when a party refuses to comply with discovery based on privilege...

Appeal Notice Timely In Medical Malpractice Case Despite Limited Reconsideration Motion

Posted on July 24, 2010
Tina Hemminger died from cervical cancer. Her husband, Daniel, sued Tina?s doctors, lab technician, and the hospital where she was treated for medical malpractice in failing to diagnose Tina?s cancer. Three of the five defendants asked the trial court for summary judgment based on two arguments: (1) that they were immune from suit because they were municipal entities or government employees, and (2) the statute of limitations barred the lawsuit...

Personal Injury Plaintiff Forfeits Review For Failure To Attach Proposed Amendment

Posted on July 10, 2010
Jill Hamer was touring Chicago on a Segway, a mechanical device with wheels that transports riders while they stand on the machine. Jill fell and injured herself while riding the Segway up a hill. So she sued City Segway Tours of Chicago for compensation for the injuries...

Interests Of Justice Overcomes School Board?s Preemption Forfeiture

Posted on July 08, 2010
After a collective bargaining agreement expired, a school board decreased health care benefits to teachers who took early retirement under the agreement. The teachers sued the school board for the full benefits. The trial court gave the teachers summary judgment, and the school board appealed...

Order Dismissing Personal Loan Dispute After Plaintiff?s Evidence Reviewed By Manifest Weight

Posted on June 27, 2010
Brad Barnes gave Rose Michalski $27,000. He said the money was a loan and he wanted repayment. She said the money was a gift, and refused to pay. Brad sued Rose for the money. The case was tried to a judge without a jury. After Brad put on his evidence, Rose asked for a ?directed verdict...

What Happens If Appellee Does Not File An Opposition Brief?

Posted on June 21, 2010
Here?s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition? The Fourth District Illinois Appellate Court answered the question in Thomas v...

Elgin?s Estoppel Defense To Property Owner?s Disconnection Case Not Forfeited

Posted on June 13, 2010
Falcon Funding owned land in Elgin, Illinois. Elgin agreed to annex the land in 1991. The property never was developed. In 2005, Falcon asked the trial court to order the property disconnected from Elgin. Falcon and Elgin both asked the trial court for a summary judgment...

Railroad?s Summary Judgment, Granted On Reconsideration, Reviewed De Novo

Posted on June 10, 2010
Donald Pence tripped as he walked across the railroad tracks, and fractured his wrist and shoulder. He sued the railroad for poorly maintaining the area. The railroad asked the trial court for summary judgment. The court denied the request, but on reconsideration gave the railroad summary judgment...

Doctor In Malpractice Case Gets De Novo Review In Venue Dispute

Posted on June 08, 2010
In this medical malpractice case, the appellate question is what standard of review applies to an order denying a request to change venue. Margie Kaiser had surgery at St. Joseph?s Hospital in Clinton County, Illinois. She had internal bleeding that did not resolve after the operation...

Supreme Court Rule Reviewed De Novo

Posted on June 08, 2010
I get this question a lot: What is the standard of review for interpretation of a state supreme court rule? Here?s the answer: ?Because Garlock's argument involves the construction of a supreme court rule, our review is de novo ? When interpreting a supreme court rule, a reviewing court should apply the same principles of construction that apply to a statute--that is, the reviewing court should ascertain and give effect to the intent of the supreme court in promulgating the rule ? The most reliable indicator of that intent is the specific language used in the rule ? When the language of a supreme court rule is clear and unambiguous, a reviewing court should apply the language without reference to other interpretive aids ?? The quote is from White v...

?Slick Lawyer? Remark Not Enough To Reverse Doctor?s Malpractice Verdict

Posted on June 07, 2010
Sonya Wilbourn sued her doctor, Mark Cavalenes, for medical malpractice. Wilbourn claimed Cavalenes inserted the wrong size compression plate when he performed surgery on Wilbourn?s fractured femur. The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused...

Incorrectly Coded Notice Of Appeal Sufficient To Give Federal Appellate Court Jurisdiction

Posted on May 20, 2010
Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court?s mandatory electronic filing system, Vince?s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed...

Dismissal For Want Of Prosecution Appealable After Time For Refiling Expires

Posted on May 13, 2010
The First District Illinois Appellate Court recently stated the rule for when a dismissal for want of prosecution becomes final and appealable. Our supreme court has recognized that if a plaintiff's action is dismissed for want of prosecution (DWP), the plaintiff has the option, under section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater ? A DWP becomes a final order only when the section 13-217 period for refiling the action expires ? Accordingly, a DWP remains an unappealable interlocutory order until plaintiff's option to refile expires...

Introduction Stricken As Argumentative

Posted on May 06, 2010
The Illinois Supreme Court rules require appellant?s merits brief to have an introductory paragraph. The introduction normally is described as the ?Nature of the Action.? I often see appellant merits briefs that have long and argumentative ?Nature of the Action? sections...

Voidness Of Judgment Considered Despite Late Appeal

Posted on May 05, 2010
American Access Casualty Company insured Aaron Hersey. GEICO won a negligence case against Hersey. Trying to satisfy its judgment, GEICO brought a supplemental proceeding to discover the assets of American Access Casualty Company. The trial court entered a judgment for GEICO against AACC for the amount GEICO won against Hersey...

Two-Part Standard Of Review For Suppression Of Evidence In Entry And Detainer Case

Posted on April 24, 2010
Michael Head, a resident at a public housing apartment in Chicago, was arrested for possession of marijuana. His apartment lease prohibited him from participating in illegal drug-related activity. The Chicago Housing Authority was allowed to terminate the lease if Head was in violation...

Dead Man?s Act Testimony Reviewed For Abuse Of Discretion

Posted on April 20, 2010
Howard Agins died of cancer. His estate sued his doctor for failure to evaluate, diagnose, and treat the condition. During trial, the circuit court ruled the Estate waived its right to bar certain of the doctor?s testimony under the Illinois Dead Man?s Act, which ordinarily would prohibit the doctor from testifying about conversations he had with Agins...

Contractor?s Statutory Compliance Reviewed De Novo

Posted on April 19, 2010
A construction contractor sued a homeowner for labor and materials used in remodeling work. The homeowner defended by claiming the contractor did not comply with the Illinois Home Repair and Remodeling Act: there was not a signed contract; the contractor did not give the homeowner the required consumer-rights brochure...

De Novo Review Standard For Validity of Trust Document

Posted on April 19, 2010
Back from the DL. Let?s catch up. Answering a question of first impression, the Illinois Supreme Court established the standard of review ?on the question of whether a provision in a trust document or will is void as a matter of public policy.? The court ruled that a de novo standard applied...

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