Illinois Appellate Lawyer Blog

Illinois Appellate Lawyer Blog Launches “Two Tips”

Mon, 23 Jan 2012 04:03:00 -0600

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.

We start now.

These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.

Tip One
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.

One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.

Tip Two
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.

In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.

Remember the old saying: Trial courts look for justice. Appellate courts look for error.

Debtors’ Victory Affirmed; Creditor Forfeits Procedural Argument

Sat, 21 Jan 2012 17:36:17 -0600

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:

According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants' Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.

The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.

Hospital’s Summary Judgment Denial Considered By Illinois Supreme Court

Tue, 17 Jan 2012 16:59:14 -0600

Timothy Clark suffers from Angelman’s Syndrome, a genetic defect. His parents sued a number of parties, including Children’s Memorial Hospital, for wrongful birth and negligent infliction of emotional distress.

While the Clarks’ first amended complaint was pending, Children’s Memorial asked the trial court for summary judgment. The hospital argued it should be given judgment because the Clarks’ complaint was filed after the two-year statute of limitations passed. The trial court denied the hospital’s request because, the court ruled, there was a question of fact about when the limitations statute began to run.

Eventually, the case came to a close after the hospital prevailed on a request to dismiss the Clarks’ third amended complaint.

When the case reached the Illinois Supreme Court, Children’s Memorial appealed the trial court’s decision to deny the summary judgment while the first amended complaint was pending. But the Clarks argued that the denial of a summary judgment request, generally neither final nor appealable, was not properly before the court. The Illinois Supreme Court disagreed because (1) the dismissal of the third amended complaint was a final order, and (2) Children’s had preserved the issue at each step of the litigation. Here’s how the supreme court explained it:

Ordinarily, the denial of summary judgment is not appealable, because such an order is interlocutory in nature. However, we have recognized an exception to this rule in certain circumstances, as when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied. Because the order disposes of all issues in the case, review of the denial of summary judgment may be had … Our appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted …

Here, the circuit court's order dismissing plaintiffs' third amended complaint with prejudice was final and appealable. Because the circuit court's order disposed of all issues in the case, and because defendants have properly preserved the issue at each stage of this litigation, we reject plaintiffs' argument that defendants' statute of limitations defense is not properly before us and, in the interest of judicial economy, we review the issue. For the reasons that follow, we hold that the circuit court correctly found that there existed a question of material fact that precluded entry of summary judgment.

The Clarks lost the battle over whether the trial court’s summary judgment denial could be heard in the supreme court. But they won on the substance; the court ruled it was correct to deny the hospital summary judgment. The Clarks also prevailed on the other substantive questions: they were allowed to pursue claims for negligent infliction of emotional distress, and they were allowed to recover expenses for Timothy’s postmajority care.

Read the whole opinion, Clark v. Children’s Memorial Hospital, 2011 IL 10865, by clicking here.

Medical Malpractice Appeal Forfeited For Lack Of Complete Record

Mon, 09 Jan 2012 17:01:49 -0600

Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.

The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:

An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.

In any event, the appellate court assessed Gerald’s appeal based on the limited record. The appellate court agreed that Gerald “failed to show that the VA’s conduct was the proximate cause of his injury.” Read the whole case, Morisch v. U.S.A., No. 09-3953 (7/29/11), by clicking here.

Schiess’s Seven Recommendations For Improved Writing

Thu, 29 Dec 2011 04:03:00 -0600

Bravo to Wayne Schiess for his candid and succinct seven suggestions for improving your writing. The title of the series, “Improving Your Writing Throughout Your Career,” speaks to one of the important themes every lawyer and writer should accept. Legal writing is a process, not an event, requiring continual refinement throughout your career.

A writer does not peak in the sense that an athlete might. Good writers know they can always get better, and that the improvement process is a career-long journey.

Wayne’s seventh suggestion is especially near to my heart ― accept critique. That’s a lesson I learned about a hundred years ago as a young associate at Big Firm. Today I run a service called AppellatologySM. We’re devoted to helping lawyers improve their appellate briefs. We do that by offering professional advice on how the persuasiveness and readability of your appellate brief can be improved. Our panel of senior lawyers, legal writing experts, retired judges, and scholars conference your brief online, so you can revise it before you file it. You can read more about AppellatologySM by clicking here.

And you can read Wayne Schiess’s seven suggestions at his most excellent blog, Legalwriting.net, by clicking here.

Appellate Court Considers Alderman-Candidate’s Moot Appeal

Tue, 27 Dec 2011 04:02:00 -0600

Joe Rivera tried to run for an elected position as alderman in Chicago. But the Chicago Electoral Board upheld an objection to Rivera’s petition, preventing him from appearing on the election ballot.

Rivera then filed a petition in the trial court for review of the Board’s decision. Rather than serving the petition on the individual Board members or the Objectors, Rivera served their lawyers. The Objectors and the Board asked the trial court to dismiss Rivera’s petition because, they argued, the Illinois Election Code required Rivera to serve them personally, not through their attorneys.

The trial court agreed, and dismissed Rivera’s petition. Rivera appealed, but the election had passed by the time the appellate court considered the case. So the first question was whether the appeal was moot because it was impossible for the appellate court to reinstate Rivera to the election ballot.

The First District Illinois Appellate Court agreed that Rivera’s appeal was moot. But the court ruled it would consider the appeal anyway because it fell into the public-interest exception to the mootness rule. This is how the court explained its ruling.

… [A] reviewing court may address an otherwise moot issue pursuant to one of several exceptions: the public-interest exception, the capable-of-repetition exception, or the collateral-consequences exception … Regarding the public-interest exception, which is particularly applicable to election cases, mootness will be excused if there is a substantially public nature to the question involved, there is a need for an authoritative determination that will help guide our public officers, and there is a likelihood that the question will recur.

We find that the instant cause meets the public-interest exception to the mootness rules. Clearly, it involves questions of election law, "which inherently is a matter of public concern." … And, the issue is likely to recur in future municipal elections. The sections of the [Illinois Election] Code in question--particularly, section 10-10.1--involve the most basic tenets of the specific legal procedure that must be followed to obtain review from the Board: the time allowed in which to file a petition for judicial review and the steps required to effectuate service. Therefore, an authoritative determination on these issues is desirable to guide public officers. Accordingly, we decline to dismiss the instant appeal as moot.

Rivera ultimately lost the argument over service. He was required to serve the individual Board members and the Objectors, not their attorneys. Read the whole opinion, Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 11028), by clicking here.

♪♪♪ Appellatology Grand Opening ♪♪♪

Tue, 13 Dec 2011 04:03:02 -0600

Guilty as charged. We’re obsessed with good writing and engrossed by lucid argument. Superior writing plus absorbing argument gives us the Ahhhhh of the first cup of morning coffee.

Appellatology is great legal thinkers and writers devoted to helping lawyers write better briefs.

How do we do it? Our panel of mock judges ― senior lawyers, scholars, retired judges, and legal writing experts ― analyzes your draft and confers with you and other mock judges, and tells you how to improve it. We answer your questions, discuss your issues, and give you our independent evaluations. And it’s all done online without the hassle, cost, and expense of leaving your office.

Why should you do it? Because most appeals are decided on the briefs, before you ever set foot in the courtroom. So your brief has to make your case. If your case is worth appealing, or defending on appeal, you should know whether your brief does the job it must ― before you file it.

Click here to learn more about Appellatology and how to improve your chances on appeal.

Contempt Order Against Law Firm Reviewed De Novo

Wed, 07 Dec 2011 04:00:01 -0600

Hadley and David Newton were getting divorced. Grund, an attorney had met with David concerning the divorce, and took notes of the conversation with David. Nonetheless, Grund and Leavitt agreed to represent Hadley in the divorce case.

Grund and Leavitt asked the trial court for an award of Hadley’s attorney fees from David, about $250,000. But David asked the trial court to disqualify Grund and Leavitt from representing Hadley because of a conflict of interest from Grund’s representation of David. Before it ruled on the fee request, the trial court disqualified Grund and Leavitt.

A week later the trial court denied the fee request based on the conflict of interest. At the court hearing, the law firm refused to obey the disqualification order, so the trial court found Grund and Leavitt to be in direct contempt of court.

The law firm appealed the contempt order, and the parties fought over the proper standard of review. Grund and Leavitt argued for de novo review (no discretion to the trial court) because, they claimed, the correctness of the contempt order was purely a question of law. David argued for the more lenient abuse-of-discretion standard.

The First District Illinois Appellate Court sided with the law firm. Here is the court’s reason for choosing the abuse-of-discretion standard:

When the facts of a contempt finding are not in dispute, their legal effect may be a question of law, which we review de novo. … "As a general rule, a trial court's decision to award fees is a matter of discretion and will not be disturbed on appeal absent an abuse of discretion." … Here, however, the circuit court indicated its belief that it could not award attorney fees once Grund and Leavitt were disqualified. Meanwhile, Grund and Leavitt argue that, although they were disqualified, they are still entitled to their fees accrued for work performed for Hadley under section 508 of the [Marital Dissolution] Act before the disqualification and assert that nothing in the ethical rules explicitly states that no fees are allowed if an attorney is disqualified. The legal question is thus whether the circuit court properly denied attorney fees from the beginning of Grund's representation of Hadley. Whether a court or administrative agency has the authority to award attorney fees is a question of law that we review de novo. …" Furthermore, whether a party may recover attorney fees and costs pursuant to any specific act is a question of law." … Thus, since the facts of the contempt are not in dispute and since Grund and Leavitt are not appealing the disqualification, we are presented with a question of law and we review this issue de novo.

Grund and Leavitt won the battle over the standard of review, but lost the war. The appellate court affirmed the contempt order, in effect depriving the firm of attorney fees. Read the whole case, IRMO Newton, No. 1-09-0684 (6/30/11), by clicking here.

Texas Painting Buyers Allowed To Argue Lack Of Personal Jurisdiction In Illinois Court

Thu, 10 Nov 2011 04:03:00 -0600

Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.

The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.

The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.

Patricia appealed. She argued that Anna’s affidavit should not be considered by the appellate court because the affidavit could have been presented in the Roughtons’s original request for dismissal.

But the Second District Illinois Appellate Court disagreed. The appellate court ruled that Patricia forfeited the argument because she raised it only in her reply brief, not her original appellate brief. Plus, Patricia did not submit a transcript of the reconsideration hearing into the appellate record, so the appellate court assumed there was sufficient basis to accept Anna’s affidavit. This is how the appellate court explained it:

In her reply brief, Patricia contends for the first time that we should not consider Anna's affidavit, because there was no showing that it could not have been provided as an exhibit with the Roughtons' original motion. However, points not argued in the appellant's brief are forfeited. … Here, without a transcript of the hearing on the motion to reconsider or a substitute, we assume that Patricia did not object, that the affidavit was accepted at the hearing as newly discovered evidence, or that the trial court otherwise had ample grounds to support its determination about the affidavit. This is particularly appropriate when the motion for reconsideration was based in part on the court's indications that it would be open to learning of additional facts that arose, and when new case law arose during the pendency of the proceedings. Accordingly, we consider Anna's affidavit.

In the end, the appellate court ruled the Roughtons did not have the minimum contacts required for an Illinois court to exercise personal jurisdiction. Read the whole case, Wiggen v. Wiggen, 2011 IL App (2d) 10098, by clicking here.

Unique Paralegal Position Open

Thu, 13 Oct 2011 23:06:53 -0600

Okay, I have a unique position for a paralegal, not necessarily a position for a unique paralegal, although uniqueness doesn’t disqualify you.

This is a part time position with flexible hours. Most of the work will be done remotely, with just a bit of on-site work necessary at World Headquarters in the west Chicago suburbs.

Call or email for more information.

Village Has Jurisdiction To Appeal Abandonment Of Eminent Domain Case

Thu, 13 Oct 2011 22:24:37 -0600

The Village of Bellwood, Illinois thought it wanted seven private properties for its own. Bellwood condemned the properties and brought an eminent domain case against the property owners. All of the parties agreed to an amount the property owners would be paid by Bellwood for the properties. The trial court ordered (1) Bellwood would take title upon payment to the property owners, (2) each party waived their right to appeal, and (3) the settlement order was final.

Bellwood reneged on the deal before it paid the property owners. Bellwood claimed the eminent domain statute allowed it to back out of the agreement and to abandon its eminent domain case any time before it took ownership of properties. But the trial court denied Bellwood’s request to abandon the case because “you can't just go out and make agreements and then all of a sudden back out on them.”

Bellwood appealed, but the property owners contested appellate jurisdiction. They argued (1) the appeal waiver in the trial court’s order prevented Bellwood from appealing, and (2) the order denying Bellwood’s request to abandon the lawsuit was not final and appealable.

The First District Illinois Appellate Court disagreed with the property owners and ruled there was appellate jurisdiction. The appeal waiver in the trial court’s order did not preclude Bellwood’s appeal because Bellwood contested the order disallowing its abandonment of the case, not the actual settlement order. And the order was final and appealable, the appellate court ruled, because it disposed of the issues between the parties. This is how the appellate court explained it:

Here, we find that the order denying Bellwood's motion to abandon is a final and appealable order because it disposed of the rights of the parties and terminated the litigation. The circuit court's order denied Bellwood's motion to abandon the eminent domain proceedings and set the parties' rights and obligations in accordance with the agreed orders. All that was left for the court to do was to execute the judgment on the agreed orders.
Further, we cannot construe the parties' waiver of the right to appeal in the agreed orders as a waiver of Bellwood's right to appeal from the denial of its motion to abandon. Bellwood is not attacking or contesting the agreed orders; rather, Bellwood is contesting only the denial of its motion to abandon, an order separate and distinct from the agreed orders. Therefore, the parties' waiver of the right to appeal as provided for in the agreed orders does not affect Bellwood's right to appeal the denial of its motion to abandon.

In the end, the appellate court ruled that Bellwood could abandon the eminent domain case. Read the whole case, Village of Bellwood v. American National Bank & Trust Co. of Chicago, 2011 IL App (1st) 09311, by clicking here.

Railroad’s Appeal Doomed For Incomplete Appellate Record

Sun, 09 Oct 2011 15:50:32 -0600

Harry Balough was injured in his work maintaining a railroad car. So he sued his employer, the railroad company. A jury awarded him damages of $500,000, but also found he was 40 percent responsible for his injury. So Balough’s award was reduced to $300,000.

Balough then asked the trial court to reinstate the $500,000 verdict. He argued that the statute he sued under did not allow for reduction of a verdict because of his own contributory fault. The trial court agreed, and entered a verdict for the larger amount.

The Railroad appealed, but did not put the facts for the jury’s finding nor for the trial court’s legal ruling into the appellate record. The First District Illinois Appellate Court agreed with trial court’s legal ruling that Balough’s contributory fault could not serve to reduce his full damage award. The appellate court also ruled that presumptions of fact fell in Balough’s favor because it was the Railroad’s burden, as the party appealing, to assure there was an adequate appellate record. Here’s how the appellate court explained it:

[B]ecause Metra [Railroad] failed to present an adequate record, we must presume the trial court's determination was correct. Metra failed to include in the record the following: the jury instructions on the LIA; instructions regarding the two different general verdict forms; the alternative verdict form A; a transcript or bystander's report of any discussion during the jury conference regarding the special interrogatories; and a transcript or bystander's report of any explanation or discussion by the court regarding the special interrogatories and verdict forms before the jury. In the absence of a more complete record regarding the basis for the court's order denying defendant's motion, we must presume that the court's action "was in conformity with the law and was properly supported by evidence," and that any doubts arising from an incomplete record should be resolved against the appellant …
We note that Metra offers no explanation for its failure to include a report of proceedings of the trial court's reading of the instructions to the jury or of any explanation or discussion of the special interrogatories and verdict forms before the jury." An issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding.

You can read the whole opinion, Balough v. Northeast Illinois Regional Commuter Railroad Corp., No. 1-09-3053 (5/19/11), by clicking here.

Insured’s Second Appeal Dismissed For Lack Of Jurisdiction

Fri, 23 Sep 2011 01:10:15 -0600

This case involved John Crane, Inc.’s claim for insurance coverage, and the insurers’ counterclaim against Crane. The insurers persuaded the trial court to dismiss Crane’s complaint. Two days later, Crane appealed the dismissal.

Then CNA, one of the insurers, asked the trial court to vacate or modify the dismissal order and for leave to amend its counterclaim against Crane. The trial court ruled (1) against CNA and would not allow the judgment to be vacated or modified, (2) for CNA and allowed amendment of the counterclaim against Crane.

Two weeks later, the trial court entered a final judgment on all of the remaining claims except CNA’s counterclaim.

About two weeks after that, the appellate court dismissed Crane’s appeal for want of prosecution because the company did not file the record on appeal within the time allowed by the rules. Rather than file a petition for rehearing of the dismissal of the appeal, Crane filed a whole new appeal. Crane’s second appeal asked for the same relief as the first one.

Allianz Underwriters, another of Crane’s insurers, asked the appellate court to dismiss the second appeal. Allianz argued the appellate court had jurisdiction when it dismissed the first appeal; because Crane did not ask for a rehearing, that dismissal ended the proceeding. Crane argued the second appeal was proper because CNA’s motion to modify the judgment meant the “first appeal never became effective,” and there never was appellate jurisdiction over that appeal.

The First District Illinois Appellate Court agreed with Allianz. Crane’s first appeal became effective, the appellate court said, after the trial court ruled against CNA’s request to modify the judgment. Then the dismissal of the first appeal rendered the appellate court without jurisdiction to consider Crane’s second appeal. Here is how the appellate court explained the ruling:

John Crane’s first appeal was the effective appeal from both the November 13, 2009 [final judgment], and the March 10, 2009 [dismissal of Crane’s complaint] … and this court had jurisdiction when we dismissed its [Crane’s] first appeal … for want of prosecution … John Crane did not file a petition for rehearing within 21 days. When an appeal of a final order is dismissed for want to prosecution and no petition for rehearing is filed within 21 days, the dismissal becomes final and the appellate court loses jurisdiction to consider additional arguments stemming from the initial order.

The whole opinion, John Crane, Inc. v. Admiral Insurance, 2011 IL App (1st) 093240 (August 30, 2011), is available by clicking here.

Naming Wrong Party In Notice Of Appeal Does Not Defeat Appeal By Estate’s Executor And Lawyer

Thu, 15 Sep 2011 21:59:44 -0600

David Hammer was executor of Ronald Weeks’s estate. Hammer hired Thomas Brucker as an attorney to assist in the administration of the estate. Hammer ($120,000) and Brucker ($170,000) paid themselves based on a percentage of the estate’s value.

Weeks left one-fourth of his estate to a New York-based charity. The charity disputed whether Hammer and Brucker could properly take a percentage of the estate for their fees. The Illinois Attorney General intervened in the case, and disputed Hammer’s and Brucker’s fees. The trial court agreed with the Attorney General, drastically lowered the fees, and ordered Hammer and Brucker to return the excess to the estate.

Hammer and Brucker appealed. But their notice of appeal stated that the Estate of Weeks was the party appealing, not Hammer and not Brucker. The Attorney General argued that the appellate court did not have jurisdiction to consider the appeal because the wrong party was identified as the appellant. The Fourth District Illinois Appellate Court ruled that the mistake on the notice of appeal was technical, and did not defeat appellate jurisdiction. Here’s how the appellate court explained the ruling.

Jurisdiction in this court is conferred by a notice of appeal … Illinois Supreme Court Rule 303 … sets forth specific formatting and filing requirements of the notice of appeal. Among other things, a notice of appeal must name the parties and designate them "in the same manner as in the circuit court and add[ ] the further designation 'appellant' or 'appellee' " … and must "contain the signature and address of each appellant or appellant's attorney" … However, "Illinois courts have repeatedly refused to dismiss an appeal because of a technical deficiency in the notice of appeal so long as the notice fulfills its basic purpose of informing the victorious party that the loser desires a review of the matter by a higher court." Petitioners' failure to name themselves as appellants in the notice of appeal, while technically deficient, did not deprive intervenor of the notice to which she was entitled. Intervenor [Attorney General] does not allege she was prejudiced in any way by petitioners' naming the estate rather than themselves as appellants.

Hammer and Brucker won the jurisdiction battle, but lost the war. The appellate court affirmed the ruling requiring Hammer and Brucker to give back the excessive part of their fees. Read the whole opinion, In re Estate of Weeks, No. 4-10-0338 (5/20/11), by clicking here.

De Novo Standard For Judge-Candidate’s Appeal Of Successful Ballot Challenge

Tue, 06 Sep 2011 18:15:23 -0600

Chris Ward wanted to be a judge in the state trial court in Will County, Illinois. Circuit court judges are elected by popular vote in Illinois, so Ward filed a candidacy petition to run in the primary. But when he filed, he did not live in the subcircuit he filed in.

Daniel Goodman, husband of one of Ward’s primary opponents, filed an objection to Ward’s candidacy petition. Goodman argued Ward was ineligible to run for judge in a subcircuit he did not live in when the petition was filed.

The Will County electoral board agreed with Ward and ruled that Ward could appear on the election ballot. Goodman appealed the board’s decision to the circuit (trial level) court, which agreed with him, and precluded Ward from the ballot. Ward then took the case to the Illinois Appellate Court, which also agreed with Goodman.

The Illinois Supreme Court took Ward’s appeal. The standard of review was among the preliminary issues. Did the case present a question of law, a question of fact, or a mixed question of law and fact? Each has a different standard of review. The question in this case, the supreme court ruled, was whether the governing law had been interpreted properly given the undisputed facts. Here’s how the Illinois Supreme Court explained it:

As in other administrative review cases, the standard of review we apply to an election board's decision depends on what is in dispute, the facts, the law, or a mixed question of fact and law … In this case there is no argument about the facts. The issue is whether, given those facts, the Will County officers electoral board correctly concluded that Ward's nominating petitions were sufficient under the controlling law to permit his name to appear on the ballot for the February 2, 2010, primary election as a candidate for the Democratic nomination to fill a subcircuit vacancy.
Our court has held that where the historical facts are admitted or established, the controlling rule of law is undisputed and the issue is whether the facts satisfy the statutory standard, the case presents a mixed question of fact and law for which the standard of review is “clearly erroneous.” … We have also held, however, that where the historical facts are admitted or established, but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a purely legal question for which our review is de novo … The matter before us here falls within the latter category. Our review is therefore de novo, a standard we have characterized as “independent and not deferential.”

In the end, the supreme court ruled that Ward did not belong on the election ballot. Read the whole case, Ward v. Goodman, No. 109796 (3/24/11), by clicking here.