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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

Illinois Constitutional Convention Debate Broadcasting Live And Available On Podcast

Posted on July 25, 2008
At the November 2008 election, Illinois voters will get a once every 20 years chance to vote on whether they want to have a state constitutional convention. The question will be debated by pundit Bruno Behrend (proponent) and lawyer Al Salvi (opponent) on July 29,2008 at 6:00 p...

Misunderstanding Filing Deadline Rule Not Excusable Neglect

Posted on July 24, 2008
Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review...

Reconsideration Motion That Presented New Evidence Reviewed For Abuse Of Discretion

Posted on July 23, 2008
Ricky Compton?s insurer, Country Mutual, had a lien on settlement proceeds Ricky received from the negligent party in an automobile accident. The lien was filed with Founders Insurance, the negligent party?s insurer. Ricky filed a class action complaint against Country Mutual, arguing that the lien filed on Founders was a breach of contract and a violation of the Illinois Consumer Fraud Act...

Candidate Who Owed Village Money Booted From Ballot; Illinois Supreme Court Defines ?Mixed Question Of Law And Fact?

Posted on July 14, 2008
John Cinkus intended to run for village trustee in the Village of Stickney, Illinois in April 2007. But in April 2006, he was cited under the Stickney Municipal Code for disorderly conduct. After a contested hearing, Cinkus was found guilty and ordered to pay a $100 fine...

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Appeal Of Involuntary Admission To Mental Health Facility Dismissed As Moot

Posted on July 14, 2008
In re Alfred H.H. involved a patient who was involuntarily admitted to the McFarland Mental Health Center in Illinois. Alfred appealed the trial court?s ruling that subjected him to the involuntary admission. The trial court?s judgment was limited to a 90-day involuntary admission...

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

Posted on July 10, 2008
Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages...

7th Circuit Court of Appeals Dismisses Petition For Panel Rehearing That Only Argued New Issue

Posted on July 08, 2008
After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U...

De Novo Review Of Jury Instruction Favors Insurer

Posted on July 02, 2008
This case is another dispute between an insured and his homeowner?s insurer. After his house burned down, Rodney Barth filed a claim with State Farm. State Farm denied the claim because, it argued, Rodney made material misrepresentations during State Farm?s investigation of the fire...

No Abuse Of Discretion In Finding Law Firm Waived Right To Arbitration

Posted on June 30, 2008
Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case...

Motion To Strike Summary Judgment Affidavit Reviewed De Novo

Posted on June 29, 2008
As representative of Stanley Collins?s estate, Lisa Collins sued St. Paul Mercury Insurance for underinsured motorist coverage of the auto accident that killed Stanley. Lisa appealed after the trial court ruled that St. Paul did not owe insurance coverage and awarded the company summary judgment...

Retroactive Application Of Illinois Supreme Court Rule Amendment Saves Insurer?s Appeal

Posted on June 27, 2008
Eclipse Manufacturing apparently was annoyed by receiving unsolicited faxes from United States Compliance. So Eclipse filed a class action case against Compliance. Compliance demanded a defense and indemnification from its insurer, Hartford Insurance...

Appeal Of Expired Commitment Order Not Moot

Posted on June 24, 2008
Kevin S. disputed an involuntary commitment order against him that placed him in the Chester Mental Health Center. The commitment order was entered in November 2006, and was good for 180 days. But the case was before the Fifth District Illinois Appellate Court well after the 180 days expired...

Lack of Hearing Transcripts Makes For Insufficient Record To Reverse Good Faith Of Settlement

Posted on June 18, 2008
A building owned by the Jesuit church collapsed during demolition of the building next door. The church?s insurer paid the church?s insurance claim, and they both sued a number of the contractors involved in the demolition. When the church and the insurer settled with most of the defendants, the non-settling defendants contested the good faith of the settlement...

Children?s Claim For Constructive Trust Get De Novo Review

Posted on June 12, 2008
After his ex-wife died, Edward Trevino got into a dispute with his children over the disposition of a $100,000 life insurance benefit. Edward was the beneficiary on the policy. But his children pointed to a marital settlement agreement that stated they were to be beneficiaries of any ?death benefits...

Pretrial Objections To Parol Evidence Not Enough To Save Issue For Appeal

Posted on June 08, 2008
This case involves a dispute over the sale of land. Wheeler-Dealer asked the court to reform or rescind of the deed. Defendant Roger Christ won after a bench trial. Wheeler-Dealer appealed the verdict. One of Wheeler-Dealer?s arguments to the First District Illinois Appellate Court was that parol evidence improperly was admitted at the trial...

Seventh Circuit Holds Rule 60(b) Reconsideration Motion Not A Substitute For Appeal

Posted on June 04, 2008
Leo Stoller sued Pure Fishing Incorporated for trademark infringement. Eventually, the federal district court defaulted Stoller and awarded Pure Fishing costs and fees on one of its counterclaims. When Stoller appealed, Pure Fishing moved to require him to post an appeal bond...

Failure To Proffer Proposed Amended Pleading Forfeits Right To Appeal

Posted on June 02, 2008
Members of an insurance pool were sued for failure to pay extraordinary assessments. The pool members in turn brought a third-party complaint against a number of parties alleging breach of contract and numerous torts. The trial court dismissed a significant part of the third-party complaint with prejudice and without leave to file an amended pleading...

No Jurisdiction To Hear Appeal Of Denial Of Motion To Dismiss

Posted on May 31, 2008
Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main. The Village moved to dismiss Nicor?s amended complaint, but the motion was denied...

Invited Error Rule Knocks Out Broker-Dealer Appeal Against Computer Programmers

Posted on May 31, 2008
In this messy lawsuit, a broker-dealer sued its computer programmers and their firm on a theory of civil conspiracy. The programmers moved for summary judgment. The broker-dealer argued that the programmers engaged in tortious acts in furtherance of the conspiracy...

Illinois Supreme Court Rules Premarital Agreement A Separate Claim From Divorce

Posted on May 17, 2008
Before they were married, Steven and Angela signed a premarital agreement. When the couple was divorcing, Steven filed a motion for a declaratory judgment, seeking an order on the validity and construction of the premarital agreement. The trial court ruled that the agreement was enforceable...

Judgment Creditors Can?t Toll Time To Appeal By Asking For An Interlocutory Appeal

Posted on May 09, 2008
The D?Agostinos were embroiled in prolonged litigation with Lynch and his lawyers. After a summary judgment for more than $1.9 million in the D?Agostinos?s favor, they began supplemental proceedings to collect. More litigation ensued, including an appeal, concerning a contempt proceeding against Lynch...

Pending Contempt Proceeding Renders Post Dissolution Judgment Nonfinal. Second District Illinois Appellate Court Still Split.

Posted on May 07, 2008
IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending. Eugene and Jean Marie were divorced in 1990...

Fourth District Illinois Appellate Court Reviews Jurisdiction Issue Despite Trial Court Failure To Do So

Posted on May 06, 2008
Lee Isringhausen, an Illinois resident, contracted with APM Custom Homes, a Florida corporation, to build a home in Marco Island, Florida. Lee died before the house was built. APM returned most of the $100,000 deposit to Lee?s estate, but kept $42,500 of it as a construction-management fee...

Parents Can Appeal Petition To Adjudicate Wardship; Opposing Brief Not Necessary For Court To Rule

Posted on May 03, 2008
Z.L., a minor who had been adopted as an infant, had reactive attachment disorder. The disorder apparently did not manifest until a few years after his adoption, when Z.L. became disruptive in the household. The State filed a petition to adjudicate wardship, with the intent to place Z...

Partial Record Sufficient

Posted on April 28, 2008
The party appealing must provide a sufficient record for the appellate court to review, ?and in the absence of such a record, the reviewing court will presume that the trial court?s order was in conformity with established legal principles and had a sufficient factual basis...

Illinois Supreme Court Rule 365 Doesn?t Save Notice Of Appeal Improperly Filed In Appellate Court

Posted on April 23, 2008
Here?s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303...

Dressed Up Abuse Standard For Review Of Sanctions Order

Posted on April 22, 2008
An unhappy customer sued an auto dealership, and the dealership?s incorporator. The incorporator moved to dismiss and for sanctions. The dismissal was granted, but the sanctions motion was denied. In affirming the denial of sanctions, the First District Illinois Appellate Court embellished the typical ?abuse of discretion? standard...

Relation Back Of Amendment A Limitations Issue, So Illinois Supreme Court Rules De Novo Standard Applies

Posted on April 18, 2008
A medical malpractice case raised the question of the correct standard of review of a ruling on whether an amended complaint relates back to the original complaint. In this case, the trial court ruled the amendment did not relate back, and thus was late under the statute of limitations...

Illinois Supreme Court Distinguishes ?Waiver? From ?Forfeiture?

Posted on April 16, 2008
This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal...

Possession Order Not Moot Even Though Tenant Vacated And Apartment Re-Rented

Posted on April 12, 2008
This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment. Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges...

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