Appellate Law

Trial Court Lacks Power To Allow Intervention After Appeal Is Filed

By Steven R. Merican

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. Leonard suffered severe kidney and brain problems that ultimately caused his death.

Leonard?s estate sued Walgreen. After trial, a jury awarded the estate a multi-million dollar verdict, including punitive damages. Walgreen appealed. Ten days later, Mia Crickman and Charles Kulisek, Loenard?s family members, asked the trial court for an order allowing them to intervene in the case. They apparently were unhappy with the distribution of the punitive damage award, and wanted to contest it in the appellate court. The trial court allowed Mia and Charles to intervene, after which they cross-appealed.

The estate contended that the Mia-Charles appeal should be dismissed. Because they asked to come into the case after Walgreens appealed, the estate argued, the trial court did not have the power to allow Mia and Charles to intervene in the lawsuit.

The First District Illinois Appellate Court agreed. Here is the court?s thinking:

When an appeal has been properly filed, jurisdiction attaches to the appellate court and the circuit court retains only very limited powers concerning the case. It may grant a stay ? or enter an order which merely explains its prior order without substantively changing it ? But allowing Mia and Charles? motion permitted them to raise issues not raised by Walgreen or plaintiff Marston [executor of Leonard?s estate], the parties who had actually participated in the litigation from its inception. Accordingly, we find that the trial court lacked jurisdiction to allow the motion of Mia and Charles, which substantively altered the nature of the appeal ? We therefore dismiss the appeal of Mia and Charles and did not consider their briefs in resolving the legitimate issues raised by the true parties to this appeal.

The appellate court also ruled that the punitive damage verdict did not survive Leonard?s death, so Mia and Charles would not have gotten any of the punitive damages anyway. Get the whole opinion, Marston v. Walgreen Co., 1-07-0209 (3/31/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on July 25, 2009 (boomark / email).