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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

Noted Blogger In Drydock

Posted on March 07, 2010
Minimally esteemed author of illinoisappellatelawyerblog.com has been placed on the bloggers? disabled list. He has been on the shelf since mid-February when a momentary lapse in coordination caused his left typing appendage to fail. Underwhelmed News Network was first to learn about the injury...

Declaratory Judgment Sufficient To Establish Appellate Standing

Posted on February 13, 2010
The Dunns sued Lawrence Patterson, their lawyer, claiming estate documents Patterson drafted contained certain provisions that were void because they were against public policy. After the Dunns won a declaratory judgment in the trial court, Patterson appealed...

Doctor?s Appeal Not Moot Despite Assignment And Forbearance Agreement

Posted on February 12, 2010
Marsha Dienstag sued her doctor, Lawrence Margolies, for medical malpractice. She claimed that Margolies did not timely diagnose her cancer. A jury agreed, and gave her a verdict for more than$5.9 million. Margolies had an ?assignment and forbearance? contract with Dienstag...

No Standing To Appeal Order Allowing Estate To Re-Write Will

Posted on February 10, 2010
Richard Henry, then 89 years old, signed a will in 2004 that overrode all of his previous wills and codicils. The 2004 will left a substantial part of Henry?s estate to Peter Wemple and Mick Zawierucha. Henry?s prior will did not. Wemple was named executor of the 2004 will; Zawierucha was Henry?s caretaker...

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Order Upholding Guardian?s Refusal Sell Ward?s House Reviewed For Abuse Of Discretion

Posted on February 09, 2010
Rosa Neal was guardian of a disabled person?s estate. On behalf of her ward, Rosa contracted to sell the ward?s home to Damon Perry. Damon asked for, and received, approval from the probate court of the contract for sale of the property. The contract had a mortgage contingency clause...

Husband?s Directed Finding In Post-Dissolution Fraud Case Reviewed By Manifest Weight Standard

Posted on January 23, 2010
Clara George Minch and Ronald George were divorced in 1982. In 2003, Clara learned that Ronald had sold his interest in a company that owned Florida real estate for more than $950,000. She sued George for fraud, asserting that during the divorce proceedings he misrepresented his interest in the stock...

Jurisdiction Okay Despite Candidate?s Appeal Under Wrong Rule

Posted on January 17, 2010
Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo?s appointment went through there was less than 28 months left in Aiello?s term...

Appellate Court Defines Obiter And Judicial Dictum, And Affirms Auto Insurer?s Summary Judgment

Posted on January 06, 2010
Alex Pajic was injured while driving a truck for his employer. Alex contended that another vehicle caused the accident, but left the scene and never was identified. Alex?s lawsuit against his employer?s insurer, Old Republic Insurance, asked for reformation of the underinsured and the uninsured motorist coverages, and for an award of the limits of those coverages...

Illinois 4th District Appellate Court Refuses 30-Year ?Legitimate Business Interest? Test As Made Of Whole Cloth

Posted on January 02, 2010
Neil Ehlers worked as a salesman for Sunbelt Rentals, a seller and renter of industrial equipment. After about five years, Ehlers left Sunbelt and went to work for Midwest Aerials & Equipment, a company that competed with Sunbelt. Sunbelt sued Ehlers and Midwest to enforce restrictive covenants in Sunbelt?s employment agreement with Ehlers...

Punitive Damages Verdict Against Broadcaster Affirmed; Court Uses Two-Pronged Standard Of Review

Posted on December 24, 2009
Jerri Blount sued Jovon Broadcasting. She claimed the company fired her because she agreed to testify for another employee who alleged racial and sexual discrimination against the company. After a trial, a jury awarded Blount $3,082,350, $2.8 million of which was for punitive damages...

No Appellate Jurisdiction Over Trustee?s Appeal Filed Before Final Distribution Of Assets

Posted on December 20, 2009
After Eleanor Miller died, Melodee Miller-Hanson became the successor trustee of Eleanor?s trust. Melodee got into a dispute with the other beneficiaries of the trust, and they ended up suing each other. The beneficiaries wanted Melodee removed as trustee; Melodee wanted the beneficiaries disinherited...

Failure To Make Offer Of Proof Dooms Appellate Argument Opposing Oral Settlement Agreement

Posted on December 15, 2009
K4 Enterprises sued Grater, Inc. and James Zavacki During the trial, the parties met with the judge, but without attorneys, to discuss settlement of the case. The case was settled, at least everyone thought so at the time. But over the following weeks, the parties could not agree on the terms of a written agreement...

Notice Of Appeal More Than 30 Days After 304(a) Finding Still Vests Appellate Jurisdiction

Posted on December 12, 2009
This insurance coverage case has a unique twist on when an interlocutory order under Illinois Supreme Court Rule 304(a) may be appealed. John J. Rickhoff Sheet Metal Co. filed a third-party complaint against Meridian Mutual Insurance Co and the Horton Group, Inc...

Failure To Designate Amount Of Attorney Fee Award Deprives Appellate Jurisdiction For Interlocutory Appeal

Posted on December 07, 2009
The City of West Chicago passed a zoning ordinance that banned certain billboards. Lamar Whiteco Outdoor Corporation sued the city, claiming the ordinance was unconstitutional. Lamar and the city eventually settled: an injunction was entered prohibiting the city from enforcing the ordinance against Lamar, and Lamar withdrew the lawsuit...

Appeal of Home Foreclosure Late When Filed At Conclusion Of Divorce Case

Posted on November 28, 2009
Elena and Michael Sanfratello were in a disputed divorce case. Michael appealed rulings concerning child support and classification, apportionment, and dissipation of marital assets. Elena cross-appealed (1) whether certain of Michael?s businesses were marital assets and (2) confirmation of a sale to Michael?s parents of the marital home, which was in foreclosure...

State Courts At Tipping Point Of Dysfunction?

Posted on November 25, 2009
The New York Times posted an editorial today agreeing with Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall that ?because of budget cuts in tough economic times, state courts across the country stand at ??the tipping point of dysfunction...

Request To Modify Language Of Judgment Does Not Extend Time To File Appeal

Posted on November 25, 2009
Cheryl Heiden claimed Craig Ottinger was her daughter?s father. So Cheryl sued Craig under the Illinois Parentage Act, and asked for support payments from Craig. A DNA test of Craig?s blood excluded him as father. But Cheryl claimed Craig?s vial of blood was mishandled, so she sued the DNA Diagnostics Center, the company that agreed to do the test...

Unconstitutional For Illinois SLAPPs Act To Grant Appellate Jurisdiction Over Interlocutory Order

Posted on November 21, 2009
Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that ?aims to protect defendants from ?Strategic Lawsuits Against Public Participation? (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government...

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...

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...

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