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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

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Posted on April 16, 2009
Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district?s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district?s educational fund...

Ford Motor Preserves Risk-Utility Jury Instruction Argument For Appeal

Posted on April 14, 2009
In this product liability case, Ford Motor Co. was sued by the estate of a driver who died in a rear-end auto accident. After trial, a jury reached a verdict for the estate. At trial, the parties fought about the correct way to instruct the jury to determine whether Ford was liable under a product liability theory...

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

Posted on March 29, 2009
WW Westwood Center sued Canel & Associates for legal malpractice. Canel tendered the defense of the lawsuit to it malpractice insurer, TIG Insurance Company. The tender inspired cross-claims by TIG and Canel for a declaratory judgment ? TIG asked for a ruling that it did not have to defend or indemnify Canel; Canel asserted just the opposite...

Non-Intervening Account Holders May Appeal Receiver?s Plan To Distribute Assets

Posted on March 22, 2009
In response to a complaint by the Securities and Exchange Commission, the federal district court froze the assets of Enterprise Trust. The SEC claimed that Enterprise deliberately mishandled and lost millions of dollars that it held for investors. The district court appointed a receiver for Enterprise, who devised a plan to distribute the remaining assets to the account holders...

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Seventh Circuit Has Jurisdiction Over Goldblatt?s Bankruptcy Remand

Posted on March 21, 2009
LaSalle Bank, the principal creditor in the Goldblatt?s Bargain Stores bankruptcy, claimed Great American Group committed fraud when it purchased inventory from Goldblatt?s stores that were closing. LaSalle had a security interest in the inventory, and was obliged to reimburse Great American for overpayment of the estimated inventory value...

Due Process Violation In Contempt Proceeding Not Moot

Posted on March 18, 2009
Taren Coupland neglected to appear for her trial, so in her absence she was found guilty of possession of drug paraphernalia. A few days later, Taren was sentenced to 24 months of court supervision. Taren also was required to have a drug/alcohol assessment within 30 days, and to complete a remedial program within six months...

Post-Trial Motion Necessary To Preserve Appeal Issue In Directed Verdict Case

Posted on March 11, 2009
Karen Gillespie, as administrator of Kenyudra Gillespie?s estate, sued the University of Chicago Hospitals and a number of doctors for medical malpractice. Karen settled with or dismissed all of the defendants except Dr. Glynis Vashi. The case went to trial, and after Karen put in her evidence, the trial court granted a directed verdict for Dr...

Default Order Not Final And Appealable

Posted on March 09, 2009
In this multi-count business dispute, Fidelity National Title Insurance sued a number of parties. The trial court granted summary judgment to defendants on all but one count of the complaint. A breach of contract claim still remained against Old Intercounty...

Lawsuit To Prevent Spending For Stem Cell Research Moot On Appeal

Posted on February 25, 2009
Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor?s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose...

Trial Court?s ?Final And Appealable? Order Not Necessarily So

Posted on February 21, 2009
This mortgage foreclosure action reminds us that just because a trial court says its order is final and appealable, it?s not necessarily so. GMB Financial Group held a mortgage on property owned by Michele Marzano. GMB sued to foreclose on the mortgage...

Huskie?s Owner Confuses Manifest Weight Standard Of Review With Burden Of Proof At Trial

Posted on February 15, 2009
Molly, a dachshund, was mauled by Cosmo, a Siberian Huskie. Mark and Mindy Leith, Molly?s owners, sued Andrew Frost, Cosmo?s owner, for tortious damage to property. After a bench trial, a judge awarded nominal damages to Mark and Mindy. They thought they should have been awarded the several thousand dollars they paid a veterinarian who treated Molly...

Objection To Expert Waived Where ?Speculation? Argument Not Asserted During Testimony

Posted on February 11, 2009
Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler?s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed...

Car Dealership Waives Fraud Argument Because Of Insufficient Record

Posted on February 07, 2009
Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car. Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act...

Fact Findings On Summary Judgment Get No Deference On Appeal

Posted on February 04, 2009
Two children died after they were trapped by a ?quick? condition at an excavation pit. They became stuck in sand and clay at the pit, and died of hypothermia or drowning. The children?s estates sued the owner of the excavation pit, who tendered the claims to his insurer...

No Appellate Jurisdiction Where Mailed Notice Of Appeal Unaccompanied By Affidavit

Posted on January 30, 2009
Secura Insurance Company had a coverage dispute with Farmers Insurance Company. Both companies made summary judgment motions. Farmers? was granted; Secura?s was denied. Secura appealed. The company mailed its notice of appeal to the court on the deadline day to appeal, so of course the court did not receive it until after the deadline passed...

Filing Notice of Appeal In Appellate Court Does Not Confer Appellate Jurisdiction

Posted on January 28, 2009
Gerald Swinkle was denied a job with the Illinois Liquor Control Commission. He filed a claim against the liquor commission in the Illinois Civil Service Commission. He charged that the liquor commission?s hiring practice violated a veteran?s preference provision in the Illinois Administrative Code...

Appellate Court Reviews Exclusion Of Judicial Inquiry Board Complaint In Defamation Action

Posted on January 23, 2009
David Naleway and his minor daughter sued the girl?s aunt, Karen Agnich, for defamation after Agnich accused David of sexually abusing the daughter. David and daughter appealed from a jury verdict in favor of Agnich. Two issues are notable for appellate practitioners...

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

Posted on January 13, 2009
Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs?s notice of appeal was filed timely, but it stated only that he was appealing...

City?s Defense On Appeal Raises Subject-Matter Jurisdiction, So Cross Appeal Unnecessary

Posted on January 08, 2009
Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn?t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court...

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant?s Due Process Claim

Posted on January 06, 2009
When she was still a teenager living in Guatemala, Aura Chavez-Vasquez?s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant. Aura was living in Missouri with her two children when her illegal residency status was discovered...

Estate Can?t Avoid Judgment Notwithstanding The Verdict By Changing Theory Of Liability On Appeal

Posted on January 03, 2009
Gul Nageen Ahmed, at age 7, was riding her bicycle near a retention pond. She lost control of the bike, slid down an embankment into the pond, and drowned. Wasim Ahmed, as administrator of Gul?s estate, sued the homeowner association that owned the retention pond and the association?s property manager...

Pending Disqualification Motion Renders Custody Appeal Premature

Posted on January 02, 2009
Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal...

Old Documents Not Preserved For Evidence Not A Basis To Uphold Summary Judgment For American National Bank

Posted on December 23, 2008
More than $1.3 million was embezzled from General Automation, Inc. General?s payroll deposit checks were made payable to its bank, American National Bank and Trust. General?s accountant got the checks before they were deposited with the bank, and deposited them in his personal account...

Tyco Denied Damages Retrial Because Liability And Damages ?Not So Distinct?

Posted on December 21, 2008
Tyco Electronics was unhappy with surge protection equipment it purchased for inclusion in a product it sold to a customer. So Tyco sued Illinois Tool Works, the manufacturer of the equipment. A jury trial ended in a $2 million judgment for Tyco. Tyco still wasn?t pleased, so it asked the trial court for a retrial on damages only...

Hip Hip . . . . It?s A Number

Posted on December 17, 2008
The entry below was the 250th in this blog. I feel like I should celebrate, but, you know, as my good friend Howie says, ?It?s a number.?

?Necessary Step? Exception Overcomes Deficient Notice Of Appeal

Posted on December 17, 2008
Two residents of the Elgin [Illinois] Mental Health Center, both committed to the unit for the criminally insane, challenged certain policies at the Center that limited or prohibited their access to their property and money. The residents asked for summary judgment...

New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

Posted on December 14, 2008
Jennifer Keener?s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed. Jennifer sued the City of Herrin for wrongful death...

Bank?s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

Posted on December 11, 2008
In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer?s motion to vacate relied on two sections of the Illinois Civil Procedure Code ? � 2-1301(e) (setting aside default judgments); � 2-1401 (relief from judgments)...

Trial Court?s Abuse Of Discretion Not Enough To Reverse Medical Malpractice Judgment

Posted on December 03, 2008
Sandra Downey sued her doctor, Gary Dunnington, for medical malpractice when a mastectomy and reconstruction he performed resulted in permanent disfigurement. After a jury trial, judgment was entered for Dunnington. On appeal, Sandra argued that it was reversible error to admit evidence that Dunnington?s father was a minister and his mother was a stay-at-home-mom...

After-Hours Electronic Filing In Illinois Commerce Commission Acceptable

Posted on November 28, 2008
The Illinois Supreme Court ruled that an e-filing in the Illinois Commerce Commission on the final deadline date, but after the close of business, was a timely filing. We first reported on this case when the supreme court agreed to take the appeal from the Fourth District Illinois Appellate Court, which reached an opposite conclusion...

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