"The Brief" - The ALA Blog

  • July 23, 2015 5:58 AM | Anonymous member (Administrator)
    In Bell v. Taylor, No. 14-3099 (7th Cir. June 29, 2015), the Court of Appeals for the Seventh Circuit admonished litigants that, rather than embarking on a lengthy appellate process and risking dismissal for lack of appellate jurisdiction, they should bring inadvertent errors in district courts’ final judgment orders first to the attention of a district court judge, so that the errors may be promptly corrected. In Bell, the Seventh Circuit dismissed for lack of appellate jurisdiction an appeal in a copyright infringement case, where the district court’s purported final judgment order failed to address the copyright owner’s outstanding request for declaratory and injunctive relief. Id. at 7-8.



    In Bell, a copyright owner brought an action against three Indiana businesses for the unauthorized use of his photograph, featuring a daytime Indianapolis skyline, on their websites. Id. at 2-3. While recognizing the plaintiff’s legitimate ownership of copyright in the image, the district court nonetheless dismissed, on summary judgment, all claims against the defendants and entered final judgment against the plaintiff. See Bell v. Taylor, No. 13-cv-798, 2014 WL 4250110 (S.D. Ind. Aug. 26, 2014). The court ruled that, with respect to a computer repair company’s website, the plaintiff failed to state a cause of action under Rule 12(b)(6) because he attached the wrong photograph to his complaint, that is, the website used an image of a nighttime Indianapolis skyline, not the daytime skyline. Id. at *3. With respect to an insurance agent’s website, the court ruled that the plaintiff could not establish damages because the website generated no traffic and was swiftly shut down. Id. at *4. Even though the real estate agent’s website displayed the copyrighted image, without permission, between 2009 and 2011, the court ruled that the plaintiff could not establish a causal link between the agent’s gross revenues and the unauthorized use of the image, and thus could not show damages. Id. at *5. The district court then entered a purported “final judgment” order, which Bell appealed to the Seventh Circuit under 28 U.S.C. §1291 governing appeals from all final decisions of the district courts.

    In a unanimous decision, the Seventh Circuit dismissed the appeal for lack of appellate jurisdiction and remanded to the district court. Bell v. Taylor, No. 14-3099 (7th Cir. June 29, 2015). The Seventh Circuit ruled that the district court’s ruling on summary judgment was not final because it did not resolve Bell’s claim for injunctive relief. Id. at 5. The Court pointed out that, because defendants sought summary judgment only on the issue of damages, the district court did not have a chance to decide whether Bell’s claim warranted injunctive relief. Id. Accordingly, Bell’s copyright claim “was still alive” and there was no final judgment for purposes of 28 U.S.C. §1291. Id. at 6.

    Defendants argued that the issue of injunctive relief was moot because they had already removed Bell’s photos from their websites. Id.at 8 fn. 1. The Seventh Circuit, however, declined to address the mootness issue in the absence of a final judgment from the district court. Id.

    The Seventh Circuit pointed out that the case did not have to go through a lengthy appeal process, which lasted almost nine months, to correct the district court’s error. Id. at 7. The Federal Rules of Civil Procedure 60(a) and 60(b) were available to the plaintiff to bring the error to the district court’s attention, as they authorize district courts to correct orders entered by “oversights,” “mistake,” and “inadvertence.” But Bell neglected to bring the error to the district court’s attention, instead opting to address it before the Seventh Circuit. Id.

    Alternatively (and even though not mentioned by the Seventh Circuit), Rule 54(b) was available to the plaintiff to pursue an appeal from a final judgment as to one or more, but fewer than all, claims or parties, upon the district court’s express finding that there was no just reason to delay the appeal. Instead of utilizing various procedural vehicles to either correct the error below or to pursue an appeal from a part of the final judgment order, the plaintiff chose to press with an appeal from a defective order, which resulted in a waste of the parties’ and judicial resources. 

    Recommended Citation: Irina Y. Dmitrieva, Court Warns Litigants to Address Errors in District Court Final Orders Below, The Brief (July **, 2015), http://applawyers-thebrief.blogspot.com.


  • July 18, 2015 8:45 AM | Anonymous member (Administrator)

    On August 1, 2015, Scribes, The American Society of Legal Writers, will host its annual awards luncheon in Chicago during the American Bar Association's annual meeting. The luncheon will be held at the Swissôtel, and Brian A. Garner, editor-in-chief of Black'sLaw Dictionary and author of several books on legal writing, will give thekeynote address. Garner will also present the Scribes Lifetime Achievement Award to Lord Woolf, who was the Lord Chief Justice of England and Wales from 2000 until 2005. Among his many contributions to the art of legal writing, Lord Woolf authored the Woolf Reforms, which has simplified the legal vocabulary in the United Kingdom.


    Also during the luncheon, Justice Michael B. Hyman of the Appellate Court, First District, will be installed as president of the Scribes organization.


    For more information and to register, please click here


  • July 09, 2015 8:40 PM | Anonymous member (Administrator)

    On Wednesday, July 22, 2015, the Illinois Supreme Court will conduct a hearing in Chicago regarding changes to its Rules. This hearing, which is open to the public, will take place at 10 a.m. in Room C-500 of the Michael A. Bilandic Building at 160 N. LaSalle Street. The proposed amendments must be approved by the Illinois Supreme Court before they can take effect. Those rules pertaining to appellate practice include the following: 


    The proposed amendment to Rule 308 seeks to extend the time for filing an application for leave to appeal from 14 days to 30 days after the entry of the certified question in the trial court. 


    The proposed amendment to Rule 324 seeks to require the clerk of the circuit court to accept for inclusion in the record any pleading that carries an original filing stamp of the clerk and that notice of filing be given to all parties of record. 


    The proposed amendment to Rule 335 seeks to provide that a petition for review be filed in the appellate court within 30 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of an administrative agency. 


    The proposed amendment to Rule 341 seeks to limit appellant and appellee briefs to no more than 14,000 words, instead of the current 50-page limit. Briefs from cross-appellants and cross-appellees would be similarly changed from a page limit to a word count. 


    The proposed amendment to Rule 345 seeks to prohibit briefs of amicus curiae submitted in support of petitions for leave to appeal to the Illinois Supreme Court. 


    For more information, please see the official notice of the hearing or visit the Supreme Court's website.


  • July 06, 2015 8:11 PM | Anonymous member (Administrator)

    On June 11, 2015, the Association installed Michael Scodro,  former law clerk for Justice Sandra Day O'Connor of the United States Supreme Court, former Illinois Solicitor General, and current partner at Jenner & Block LLP, as its 48th President. Held at the Union League Club in Chicago, the luncheon was a festive occasion that also celebrated outgoing President Steven F. Pflaum's many accomplishments over the prior bar year; and featured the Installation of Clare J. Quish as the the Association's new Treasurer, and Don. R. Sampen, Elizabeth Butler, Kimberly Jansen, and Beth A. Bauer as Directors.

    Outgoing president Steven F. Pflaum opened the luncheon by welcoming the many distinguished guests in attendance, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Cook County Circuit Court. Also in attendance were eight judges from the Republic of Gabon, including the equivalent of that country's Chief Justice. Finally, Pflaum recognized some very special guests - Michael Scodro's family, including his wife, Tracey, and their children, as well as Scodro's former boss, Illinois Attorney General Lisa Madigan.

    President Pflaum then recapped the many successes over the past year, including unique luncheons that covered a wide-ranging topics germane to appellate advocacy and writing, and the ALA's commitment to improving the administration of justice. Pflaum noted that the Association had established an exploratory committee to help assist pro se parties on appeal in the First Appellate District and that the Association had implemented a program focused on playing a constructive role in reforming how reviewing court jurists in Illinois are selected. In his closing remarks as president, Pflaum noted that Michael Scodro was both incredibly accomplished and down to earth, and that he always brings out the best in people.

    Thereafter, Attorney General Madigan administered the oath of office. In introducing President Scodro, the Attorney General noted that his resume is "triple platinum" and that his talents match his credentials. The Attorney General recalled that President Scodro served as a zealous appellate advocate, and that he argued the most complex cases before the highest courts. Most important, the Attorney General noted, is that, in addition to his many talents, President Scodro is "incredibly down to earth."

    After being sworn in, President Scodro thanked past President Pflaum and the Attorney General, and also thanked his family. In doing so, President Scodro recalled some pithy advice that his son, who was then 7 years old, shared as Scodro prepared for an oral argument before the United States Supreme Court: "Dad, don't screw this up."

    President Scodro shared his vision for the upcoming bar year. Scodro noted that the Association is an intimate bar group with members who are dedicated to the craft of appellate advocacy. The Association and its members continue to strive for creative ways to hone their unique skills and to also improve the system. Toward that end, the Association will continue to host many informative events throughout the state focusing on appellate practice and procedure; continue its commitment to improving the system by reaching out to law students and helping pro se litigants navigate the system; and continue to learn from our colleagues on the bench and 

  • June 19, 2015 5:43 AM | Anonymous member (Administrator)

    In In re Estate of York, 2015 IL App (1st) 132830, the Illinois Appellate Court, First District, cautioned litigants to “adhere to appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.” Id. ¶ 1.  The court ultimately took the case on the appellant’s brief alone, dismissed the appeal for lack of jurisdiction, and remanded for further proceedings. Id. ¶¶ 48-51. 


    The appeal arose out of a proceeding administering an estate. The executor of the estate of Mary York sought through a citation to recover assets to recover the balance of a loan that York had made to Rosemary Mulryan, her former law partner. In re Estate of York, 2015 IL App (1st) 132830, ¶10. Mulryan moved to dismiss the citation (id. ¶ 11), and the circuit court granted the motion “with prejudice” with respect to counts I through IV relating to the loan (id. ¶ 13). The court dismissed all other counts “without prejudice” and with leave to replead.  Id. ¶ 13. The executor filed a notice of appeal. Id. ¶ 14. Mulryan did not file a response brief, so the appellate court entered an order taking the case for consideration on the executor’s brief alone. Id. ¶ 15. After the appellate court entered that order, Mulryan moved for an extension of time and for leave to file a motion to dismiss for lack of jurisdiction, which the court took with the case. Id.

    The appellate court first rejected Mulryan’s argument that the appellate court lacked jurisdiction under Illinois Supreme Court Rule 304(b)(1) (eff. Feb. 26, 2010), which permits an interlocutory appeal as of right without the special finding required for appeals under Rule 304(a), when the appeal is from “a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 18-20. The court explained that Rule 304(b)(1) applies to orders that finally resolve an ultimate right, and held that the dismissal with prejudice of counts I through IV relating to the loan finally determined the estate’s right to that money. Id. ¶¶ 21-24. Thus, that part of the dismissal order was immediately appealable under Rule 304(b)(1). Id. ¶ 25.


    The appellate court then addressed Mulryan’s failure to timely file a response brief or motion for extension of time. In re Estate of York, 2015 IL App (1st) 132830, ¶ 25. Mulryan asserted that she had felt it was unnecessary to file these because the lack of jurisdiction was “obvious” (id. ¶¶ 2, 25), but after the court entered its order taking the case on the executor’s brief alone, Mulryan then moved to dismiss for lack of jurisdiction and sought leave to file a response brief (id. ¶ 25). The court held that Mulryan had caused unnecessary delay in the disposition of the case, denied her motion for extension of time, and followed its prior order to proceed on the executor’s brief alone. Id.


    Next, the appellate court considered whether the notice of appeal conferred appellate jurisdiction--an issue that the parties did not raise. In re Estate of York, 2015 IL App (1st) 132830, ¶ 27. The court explained that the executor’s notice of appeal specifically stated that the executor appealed only from the dismissal of count II. Id. ¶¶ 31, 36. Because a notice of appeals confers jurisdiction to consider only the judgment or parts of the judgment specified in the notice of appeal, the appellate court had jurisdiction only over the portion of the judgment dismissing count II. Id. ¶¶ 32-37. As the court explained, the notice of appeal was “highly specific,” and sought relief only from the ruling dismissing “count II *** with prejudice, pursuant to section 2-615.” Id. ¶ 27. Yet, the executor presented no argument on appeal with respect to count II; instead, the executor’s brief argued for reversal of the dismissal of count I. Id. ¶¶ 28, 30, 39. The court held that because the notice of appeal was solely from the ruling dismissing count II, it lacked jurisdiction to review the dismissal of count I. Id. ¶ 40.


    The executor’s brief also challenged the circuit court’s ruling with respect to a motion to strike Mulryan’s affidavit in support of her section 2-619 motion. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 28, 42. The appellate court concluded that it lacked jurisdiction to review the ruling on the motion to strike the affidavit as well. Id. ¶¶ 44-46. The court reiterated that the executor appealed only from the section 2-615 dismissal of count II. Id. ¶ 43. The ruling concerning the affidavit therefore could be reviewed only if it was a “step in the procedural progression leading to the dismissal of count II with prejudice.” Id. But it was not, because affidavits are considered only in connection with section 2-619 dismissals, and the circuit court did not consider the affidavit in its dismissal ruling. Id. ¶¶ 44-45. Because the executor raised no issue that the appellate court had jurisdiction to review, the court dismissed the appeal. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 46, 49. The court remanded the case because the circuit court had allowed the executor to replead the other counts. Id. ¶ 50.


    Recommended Citation: Myriam Z. Kasper, First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal, The Brief, (June 19, 2015).


  • June 14, 2015 9:54 PM | Anonymous member (Administrator)

    The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated edition provides information on cases pending before the state's high court through June 5, 2015. Complete access to Cases Pending is complimentary with ALA membership.

    ALA members can access Cases Pending via the Association's website

  • June 06, 2015 9:35 AM | Anonymous member (Administrator)

    On May 28, 2015, the Association gathered at the Union League Club in Chicago to host its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. Many of the judges from the Seventh Circuit were in attendance, as well as a number of special guests, which guests included judges from the Illinois judiciary and Michael Dreeben, Deputy Solicitor General at the United States Department of Justice.

    Association President Steven F. Pflaum began the festivities by offering welcoming remarks, as ALA members and guests enjoyed lunch. Attendees had the unique opportunity to sit at a table with an individual Seventh Circuit judge, and were able to engage in casual conversation as well as inquire about practice pointers. 

    Thereafter, Chief Judge Diane P. Wood along with Judges Diane S. Sykes and David F. Hamilton participated in a panel discussion. President Pflaum moderated the discussion, which addressed how appellate attorneys can focus issues on appeal. Chief Judge Wood noted that this was a "painful part" of appellate practice and urged appellate practitioners to take a careful look at what occurred at the trial court and the standard of review. Judge Sykes reiterated Chief Judge Wood's suggestion to look at the standard of review, which Judge Sykes noted is often decisive, and also encouraged attorneys to consider whether a trial court error was "an error of consequence." Judge Hamiliton offered the helpful reminder that attorneys on appeal should make sure that the any objection was preserved.

    The panel discussed a number of other topics, including how many issues should typically be raised on appeal. The panel agreed that three to five issues should be the "rule of thumb."  Judge Hamilton noted that the district court judges are "usually good" and unlikely to make 10 to 12 errors, and Judge Sykes later quipped, "nine grounds for reversal usually means none." The panel also offered tips for oral argument from both the appellants' and appellee's perspective. Chief Judge Wood noted that, if the district court wrote a sound opinion, "don't overlook this gift."

    The ALA thanks the judges of the Seventh Circuit for an enjoyable and informative luncheon, as well as the many guests who attended.

  • May 31, 2015 2:04 PM | Anonymous member (Administrator)

    In People v. Moore, 2015 IL App (5th) 130125, Sammy Moore was charged with aggravated battery after striking a corrections officer at the Pinckneyville Correctional Center. The trial court held a preliminary hearing 31 days after the charges were filed against Moore. Moore, acting pro se, objected to the timeliness of the hearing, arguing that the incident occurred on March 2,2007; he was arrested and booked on March 2, 2007; but charges were not brought until August 23, 2007; and the September 24, 2007, hearing date was beyond the 30-day statutory period. The court held the preliminary hearing anyway and found probable cause.



    Moore waived his right to a jury trial and agreed to a stipulated bench trial on November 12, 2008. The court informed Moore that, if he was found guilty of aggravated battery, it would sentence him to two years in the Department of Corrections, to run consecutive to the term that he was already serving. The court found Moore guilty and imposed the sentenced that it had indicated.

    The court gave the following admonishment, in pertinent part, to Moore after being sentenced:


                “In order to appeal this sentence you must first file in this trial court within 30 days of today's date a written motion to withdraw your consent to the stipulated bench trial and give me a very good reason for allowing me to do so. If that motion is denied you still have 30 days from the date of that denial to file your written appeal in the Appellate Court in Mt. Vernon. You must first file a notice of appeal in the Office of the Circuit Court here in Perry County…."  
    The defendant stated that he understood the instructions.

    On January 11, 2013, more than four years after he was convicted and sentenced, Moore filed a pro se petition entitled “Petition for Leave to File An Untimely Post Trial Motion And Notice of Appeal,” seeking leave to file an untimely notice of appeal “on the ground that it was not due to his culpable negligence that the documents were not timely filed.” Moore explained in his petition that he had intended to appeal the denial of his pro se motion to dismiss related to the preliminary hearing issue and that he thought that defense counsel had filed a posttrial motion and notice of appeal, but only later learned that defense counsel failed to do so. Moore also filed a motion to dismiss based on the preliminary hearing issue and a notice of appeal seeking to appeal the court’s September 24, 2007, order denying his previously filed motion to dismiss.


    The trial court denied Moore’s petitions, finding that "[d]efendant cannot merely make vague or conclusory assertions but must clearly demonstrate his diligent efforts to uncover matters he now claims entitle him to relief" (citing People v. Gunartt, 327 Ill. App. 3d 550 (2002)). The court held that Moore did not do so and therefore was not entitled to relief. The court dismissed the petition but granted Moore leave to refile it within 30 days, with a showing that the delay in the late filing was not due to his culpable negligence, that is, he "must allege facts showing the delay was not due to his negligent or reckless disregard of the time constraints and other circumstances of filing a timely post-conviction relief petition." Moore, 2015 IL App (5th) 130125, ¶ 13.


    Moore filed a motion to reconsider, arguing that Gunartt applied only to post-conviction petitions. Moore argued that his filings should not have been characterized as a post-conviction petition and that they should have been reviewed under Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). The court denied the motion to reconsider, stating that it had characterized Moore’s filings as a post-conviction petition because the it did not have jurisdiction to consider a posttrial motion filed more than 30 days after the entry of judgment and sentence on November 12, 2008. Moore appealed.


    On appeal, Moore conceded that his petition for leave to file an untimely posttrial motion and notice of appeal was filed well beyond 30 days after judgment was entered, but he argued that the court nonetheless still had jurisdiction to consider his petition because he was not properly advised of his appeal rights. The appellate court disagreed.

    The appellate court began by noting that Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001) sets forth the admonishments regarding the right to appeal that a criminal defendant is to receive after judgment and sentence. Moore, 2015 IL App (5th) 130125, ¶ 21 (citing People v. Henderson, 217 Ill. 2d 449, 455 (2005)). Defendants who have been found guilty following a trial are to be given admonishments pursuant to Rule 605(a), while those who have pleaded guilty should be given admonishments pursuant to Rule 605(b) and (c). Id. If stipulated evidence is introduced and the trial court finds the defendant guilty based on that evidence, the defendant is considered to have been found guilty, rather than pleading guilty, and he should be admonished under Rule 605(a). Moore, 2015 IL App (5th) 130125, ¶ 22 (citing  People v. Horton, 143 Ill. 2d 11, 20-22 (1991)). However, if the defendant stipulates that the evidence presented at the stipulated bench trial is sufficient to convict, the stipulated bench trial is “tantamount to a guilty plea,” and the defendant should be admonished pursuant to Rule 605(b) and (c). Id. 

    Moore did not stipulate that the evidence given at trial would be sufficient to convict. Therefore, he should have been admonished pursuant to 605(a). Instead, the trial court gave him a modified admonishment under Rule 605(b) and (c) when it “told the defendant that prior to appealing, and within 30 days, he must first file a ‘written motion to withdraw [his] consent to the stipulated bench trial.’ ” Moore, 2015 IL App (5th) 130125, ¶ 25. Moore argued that “the admonition exception adopted by the supreme court in People v. Foster, 171 Ill. 2d 469 (1996), should be applied to appeals from faulty Rule 605(a) admonitions so that the appellate court can reach the merits of an appeal.” Id. ¶ 26.

    The Foster court explained that the admonition exception “allows the appellate court to entertain appeals in cases where the defendant did not comply with Rule 604(d)'s written-motion requirement because the trial court failed to provide Rule 605(b) admonitions.” Foster, 171 Ill. 2d at 473. The “admonition exception allows appellate courts to entertain appeals in those circumstances because if a defendant is not admonished of the necessary steps to appeal from a sentence imposed upon a plea of guilty as required by Rule 605(b), it would violate procedural due process to hold a defendant responsible for noncompliance with the strictures of Rule 604(d).” Id

    Moore conceded that the admonition exception had not previously been extended to incorrect admonishments under Rule 605(a), but he urged the court to do so here, arguing that an incorrect 605(a) admonition provided him with unlimited time to appeal his conviction. The appellate court, however, declined, noting that the “supreme court has made it clear that the admonitions exception does not extend the time allowed for the defendant to perfect an appeal.”
 Moore, 2015 IL App (5th) 130125, ¶ 27.

    The appellate court held the trial court lacked jurisdiction when Moore filed his petition for leave to file an untimely posttrial motion and notice of appeal. Relying on People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34 (2011), the court reasoned that “the admonition exception is for the appellate court to apply when the defendant files a timely notice of appeal, even though he did not comply with any conditions precedent as required by the supreme court rules.” Moore, 2015 IL App (5th) 130125, ¶ 30 (citing Skryd, 241 Ill. 2d at 42). Because there was no timely notice of appeal in Moore’s case, the admonition exception did not apply, even though Moore did not receive proper appeal admonishments. This is because the “admonition exception cannot restore jurisdiction to the circuit court after 30 days from the entry of judgment.” Id. The appellate court affirmed the trial court, concluding that it had properly dismissed Moore's motion for leave to file an untimely posttrial motion and notice of appeal where the admonition exception did not extend its jurisdiction to adjudicate the posttrial pleadings that the defendant had filed four years after judgment became final. 


    Recommended Citation: Nate Nieman, Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal Case, The Brief, (May 31, 2015), http://applawyers-thebrief.blogspot.com.



  • May 16, 2015 8:58 AM | Anonymous member (Administrator)

    In JPMorgan Chase Bank, N.A. v. Ontiveros, 2015 IL App (2d) 140145, the Illinois Appellate Court addressed whether a trial court lacked subject-matter jurisdiction to enter a judgment on a foreclosure and ensuing sale because the plaintiff was an unlicensed debt collector. While the opinion primarily focused on whether the trial court's order was void pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2012)), the reviewing court provided a helpful reminder that successive postjudgment motions do not toll the clock to file a notice of appeal.

    Procedural Background

    In Ontiveros, the plaintiff brought a foreclosure complaint. The defendants appeared pro se, but did not answer. Thereafter, on November 7, 2012, the trial court entered a judgment of foreclosure, which judgment did not contain a finding of immediate appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). 

    One month later, the defendants appeared through counsel, moved to vacate the judgment of foreclosure, and claimed several defenses. The trial court denied the motion to vacate. 

    On February 4, 2013, the trial court approved the confirmation of the sale. The defendants filed a timely postjugment motion seeking to vacate the confirmation. On July 5, 2013, with the motion to vacate still pending, the defendants filed a petition pursuant to section 2-1401, attacking the judgment as void. On July 16, 2013, the trial court "struck" the petition. One week later, on July 24, 2013, the trial court denied the defendants' motion to vacate but gave them leave to renotice their petition pursuant to section 2-1401, which defendants did. 

    On January 29, 2014, the trial court denied the defendants' petition. Within 30 days, the defendants filed a notice of appeal, seeking review of the January 29 order, the July 16 order, and the November 7 order. 

    The Court' s Jurisdictional Analysis

    The reviewing court began its analysis by addressing the defendants' argument that their 2-1401 petition constituted a second postjudgment motion, and therefore, tolled the appeal clock for all orders. The court disagreed. 

    The court noted that "it has long been the case" that a successive postjudgment motion is improper and does not toll the time to file a notice of appeal. In this case, the defendants' motion to vacate, which they timely filed after the trial court approved the confirmation of the sale, was the only motion that tolled the appeal clock. The trial court denied that motion on July 16, 2013, but the defendants did not file their notice of appeal until February 2014. Therefore, the reviewing court did not have jurisdiction to review the trial court's February 4 order confirming the sale. 

    Regarding the November 7 order, the reviewing further noted that a judgment of foreclosure is not final until the trial court enters an order approving the sale and ordering distribution. As a result, absent a Rule 304(a) finding, that order did not become appealable until the trial court approved the confirmation of sale. 

    The reviewing court further noted that, because the defendants filed their 2-1401 petition more than 30 days after the trial court's order confirming the sale and timely appealed after the trial court denied their petition, jurisdiction was proper for that issue. 

    Recommended Citation: Charlie Ingrassia, Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock, The Brief, (May 16, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-offers.html.

  • May 12, 2015 9:05 PM | Anonymous member (Administrator)

    Cases Pending, edited by ALA Secretary Joanne R. Driscoll and Clare J. Quish, has been updated to discuss the Illinois Supreme Court’s May Term that began this week. Oral arguments are scheduled for Tuesday, Wednesday, and Thursday, May 12-14; and next Tuesday, Wednesday, and Thursday, May 19-21, 2015. A total of 24 cases will be heard – 16 civil and 8 criminal. 

    Here are the civil cases with the dates of oral argument (two case excerpts are provided below the page break and Association members can access the full issue at the ALA website):

    Walker v. McGuire, No. 117138 – May 13

    McElwain v. Office of the Secretary of State, No. 117170—May 14

    Matthews v. Chicago Transit Authority, Nos. 117638, 117713, 117728 (cons.) – May 14

    Folta v. Ferro Engineering, No. 118070—May 14

    Price v. Philip Morris, Inc., No. 117687 – May 19

    Nelson v. Enterprise Leasing Co. of Chicago, No. 118058 – May 19

    Lake Environmental, Inc. v. Arnold, No. 118110--- May 19

    Commonwealth Edison Co. v. Illinois Commerce Comm'n, No. 118129—May 19

    The Henderson Square Condominium Ass’n v. LAB Townhomes, L.L.C., No. 118139—May 19

    The Village of Vernon Hills v. Heelan, No. 118170—May 20

    Klaine v. Southern Illinois Hospital Services, No. 118217—May 20

    O’Toole v. The Chicago Zoological Society, No. 118254—May 20

    Gurba v. Community High School District No. 155, Nos. 118332, 118369 (cons.)—May 20

    Seymour v. Collins, No. 118432—May 21

    Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc., No. 118644—May 21

    Stevens v. McGuireWoods L.L.P., No. 118652—May 21 

    The Court will hear several cases of interest this term, including Price v. Philip Morris and a case interpreting the Tort Immunity Act. Below are abbreviated summaries for these two cases.



    PROCEDURE – SECTION 2-1401 PETITIONS


    No. 117687 

    Price v. Philip Morris Inc.

    This case presents the issue of what criteria must be considered in determining whether to vacate a final judgment entered in 2006 after remand from a 2005 decision of the Illinois Supreme Court. In its 2005 decision, the Supreme Court reversed a $10.1 billion consumer fraud judgment on grounds of federal implied preemption, namely, that the FTC has authorized the use of “lights” descriptors for cigarettes sold by the defendant. In December 18, 2008, plaintiffs filed a petition for relief from judgment under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401), alleging that new evidence – the United States Supreme Court’s decision in Altria Group Inc. v. Good, 555 U.S. 70 (2008), decided on December 15, 2008, and the FTC’s amicus brief filed in that case, showed that the Illinois Supreme Court’s preemption analysis was flawed. The circuit court dismissed plaintiffs’ petition as untimely, but the Illinois Appellate Court, Fifth District, reversed and remanded the matter for further proceedings. Price v. Philip Morris, Inc., 2011 IL App (5th) 130017-U.

    On remand, plaintiffs amended their petition, relying solely on the FTC’s statements in its amicus brief in Good that the FTC believed that it had never authorized the use of “lights” descriptors. Although the circuit court found that this “new evidence” was meritorious, it denied plaintiffs’ amended petition, finding that they could not show that the outcome likely would have been different. The circuit court predicted that it was likely that the Illinois Supreme Court still would have reversed the $10.1 billion judgment but on other grounds, namely, plaintiffs’ inability to prove damages.

    On appeal, the appellate court found that plaintiffs’ petition was timely, that the FTC’s statements constituted “newly discovered” evidence, that plaintiffs acted diligently to obtain that evidence, and that the Supreme Court would have reached a different conclusion on the preemption issue. The appellate court reversed the circuit court’s judgment and granted the section 2-1401 petition, holding that it exceeded its authority in predicting that the Supreme Court still would have reversed the $10.1 billion judgment. The appellate court then concluded that the effect of granting the section 2-1401 petition and vacating the circuit court’s 2006 dismissal order was to reinstate the verdict.

    Appellate Court Decision: 2014 IL App (5th) 130017, 9 N.E.3d 599. Chapman, J., with Stewart and Schwarm, JJ., concurring. 

    PLA Allowed: 09/24/14

    Oral Argument: 05/19/15

    TORT IMMUNITY ACT – PUBLIC BUSINESS

    No. 118254 

    O’Toole v. The Chicago Zoological Society d/b/a Brookfield Zoo

    The issue in this case is whether the Brookfield Zoo (“Zoo”) is considered a “local public entity” that is entitled to the protections of the Local Government and Governmental Employees Tort Immunity Act (“Act”) (745 ILCS 10/1-206).

    Plaintiff sued the Zoo for negligence after she allegedly tripped and fell on the Zoo’s premises. The Zoo filed a motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619 (a)(5)), asserting that plaintiff’s lawsuit was filed beyond the one-year statute of limitations provided for in section 8-101 of the Act (745 ILCS 10/8-101). The Zoo attached a copy of the agreement between the Chicago Zoological Society and the Forest Preserve District of Cook County (“District”), which established that the Chicago Zoological Society would maintain and operate the Zoo on public land for the public’s benefit. The circuit court granted the Zoo’s motion to dismiss with prejudice.

    The Illinois Appellate Court reversed, holding that the Zoo was not a local public entity under the Act because its operations were not “tightly enmeshed with government” and, therefore, it was not engaged in “public business” that entitled it to the protections of the Act, as is required for non-profit entities under the Act. According to the court, the Zoo was not directly owned by the government, nor did the government have operational control over the business. Under the operating agreement, the District delegated control of daily operations and maintenance of the land and the collections to the Zoo. Furthermore, the Zoo was entitled to appoint its board and managers and provide their salaries, not the District. Moreover, the Zoo was not subject to regulations typical of governmental units. Therefore, the Zoo’s operations were not tightly enmeshed with government.

    Appellate Court Decision: 2014 IL App (1st) 132652, 17 N.E.3d 869. Lavin, J., with Fitzgerald Smith and Epstein, JJ., concurring. 

    PLA Allowed: 11/24/14 

    Oral Argument: 05/20/15

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