By Jonathan B. Amarilio 
Partner, Taft Stettinius & Hollister LLP

Trial and appellate practitioners are often reminded that the failure of a losing party to immediately appeal once a federal district court enters a Rule 54(b) order can be fatal. The entry of a partial final judgment and order in those circumstances starts the appeal clock running. It is a “use it or lose it” scenario. Less well known is a rule in the Seventh Circuit requiring parties to timely request a Rule 54(b) order from the district court where a partial final judgment has been entered.

In Kingv. Newbold, 845 F.3d 866, the Seventh Circuit recently reminded us of this rule. In this case, Raymond King, an Illinois prisoner, sued a number of defendants claiming the medical treatment he received in prison was an Eighth Amendment violation. The defendants moved for summary judgment, which was granted in part, and later one defendant moved for judgment on the pleadings, which was also granted in part. The combined effect of the orders was to narrow the claims such that only two doctors remained in the suit. More than 30 days after the order granting judgment on the pleadings was entered, and more than a year after partial summary judgment was granted, King moved for entry of a Rule 54(b) judgment. The district court granted the motion and the matter went up on appeal.

Examining its own jurisdiction to consider the matter, the Seventh Circuit stated that “[l]ong ago we added a timeliness requirement as a hedge against dilatory Rule 54(b) motions,” further explaining that “as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates.” The court explained that there may be cases of “extreme hardship where dilatoriness is not occasioned by neglect or carelessness in which application of this general rule might be abrogated in the interest of justice,” but it said those instances are “extremely rare,” and found those circumstances lacking here.

King is a cautionary tale reminding us all of a simple and important lesson: If a district court enters partial final judgment excusing defendants from a lawsuit, file a Rule 54(b) motion immediately or you will risk losing the right to take such an appeal.

By Louis J. Manetti
Attorney, Codilis and Associates, PC
 
An appeal’s dismissal for lack of jurisdiction is usually unremarkable. But in Oruta v. B.E.W., 2016 IL App (1st) 152735, the First District Appellate Court’s dismissal marked the fourth time—in the same case—that it ejected the plaintiff from the Appellate Court because it lacked jurisdiction.
 
The court-characterized “bizarre” litigation began when Larry Oruta filed a lawsuit against several defendants to enforce a workers’ compensation judgment “that never existed.” Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 5. Then, Oruta filed a garnishment against a bank, and the trial court issued an $80,000 turnover order in Oruta’s favor. Id. But when the court learned that no judgment actually existed, it vacated the turnover order and commanded Oruta to give back any money he may have received. Id. Oruta filed the first appeal, seeking review of the order vacating the turnover order. Id. However, the Appellate Court noted that Oruta filed the appeal before the final order in the underlying case had been entered, so the first appeal was dismissed for lack of jurisdiction. Id. ¶ 6.
 
Back in the circuit court, Oruta failed to comply with the court’s mandate that he return any ill-gotten turnover funds. Id. ¶ 9. Eventually, the court found him in civil contempt, and months later it reaffirmed in an order that he would be in civil contempt until he returned the money. Id. Three weeks later, however, the court ordered Oruta’s immediate release from custody. Id. This caused Oruta to file the second appeal, in which he sought review of the order reaffirming the civil contempt and the order mandating his release from custody. Id. ¶ 10. But the Appellate Court found that the appeal from the continued contempt order was untimely because it was not filed within 30 days, and that the incarceration was terminated by the time Oruta appealed, so the second appeal was dismissed. Id.

Then, in the circuit court, Oruta tried to reinstate garnishment proceedings. Id. ¶ 12. He claimed he had obtained a final judgment, and, in support, he produced a “near-illegible” order. Id. ¶ 13. The circuit court found that it never entered the purported order and struck it. Id. Oruta filed the third appeal and sought review of the order striking the purported order. Id. The Appellate Court once again dismissed the appeal because it held that the order did not finally dispose a claim against any party. Id. ¶ 14.
 
Finally, Oruta filed a motion in the circuit court that asked the court to refund a Workers’ Compensation Commission bond. The circuit court denied the motion (id. ¶ 16), and Oruta strung out the same bond argument across various motions. Id. ¶¶ 18-22. Eventually, the circuit court denied the requests for lack of jurisdiction. Id. ¶ 24. Oruta appealed.
 
In its decision, the Appellate Court immediately noted that Oruta’s brief lacked a table of contents and citations to the record, and that it could dismiss the appeal on those grounds alone. Id. ¶¶ 28-36. Turning to the merits of the appeal, the Court found that, while there was evidence that a bond was taken out in 2012, there was no indication that the bond still existed. Id. ¶ 40. Further, the Court noted that it had no more jurisdiction than the circuit court did, and circuit courts only have jurisdiction over workers’ compensation decisions if strict statutory procedures are followed. Id. ¶ 42. The record failed to show that Oruta followed these procedures, so the Court concluded it lacked jurisdiction. Id. ¶ 45.
 
In essence, Oruta is an appellate cautionary tale. From appealing non-final orders, to failing to file a timely notice of appeal, to appealing orders that do not dispose any party’s claim, to the failure to perfect jurisdiction in the lower court and filing non-conforming appellate briefs, Oruta shows the gamut of pitfalls that can lead to an appellant’s case being dismissed. 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On February 23, the ALA will host a special event titled “2017:  Reflections on the Past – Hopes for the Future,” featuring Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court.

Chief Justice Karmeier will share his experiences from being on the state’s high court for the past 12 years. He will discuss the challenges facing the court and what he hopes to achieve during his tenure as Chief Justice.

The event will be held on Thursday, February 23, from noon to 1:30 p.m., at the Union League Club, 65 West Jackson Boulevard in Chicago.

Attendees will receive MCLE credit.

For more information about any of the events and to register, please click here.

By Evan Siegel 
Assistant Attorney General, Illinois Attorney General's Office

The ALA honored the Justices of the Illinois Appellate Court, First District, at its bi-annual reception, held at the Allegro Hotel in Chicago, on the evening of Thursday, January 26. The Association recognized the late Justice Laura Liu and Justice Margaret Stanton McBride for their outstanding contributions to the appellate bar. Justice David Ellis paid tribute to his friend and colleague Justice Liu, and Justice Maureen E. Connors celebrated Justice McBride, her friend and mentor. Justice Liu's husband, attorney Michael J. Kasper, and their daughter, Sophie, were welcomed guests. The Association contributed in Justice Liu's honor to a scholarship fund in the Justice's name at the St. Therese’s Chinese Catholic School in Chinatown. On behalf of Justice McBride, the ALA donated to the Mercy Home for Boys & Girls, a charity located on the Near West Side. Photographs of the event can be accessed here (password is "ala"), courtesy of Jasmin Shah Photography. For reprints, please contact Jasmin here.

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC 
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

Supreme Court Rule 23 is a topic of frequent discussion among Illinois lawyers.  A large number of Illinois Appellate Court decisions are issued not as published opinions, but as unpublished written orders (frequently known as “Rule 23 orders”), which are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.”  See Ill. Sup. Ct. R. 23(e)(1).  Many Illinois lawyers may not be aware that multiple bar associations have proposed a significant change to Rule 23, or that the Illinois Supreme Court has rendered a decision on that proposal.

On January 10, 2014, the presidents of the Appellate Lawyers Association, the Chicago Bar Association and the Illinois State Bar Association wrote a joint letter to then-Chief Justice Rita B. Garman of the Illinois Supreme Court to propose an amendment to Rule 23 that would permit Rule 23 orders to be cited as persuasive authority if they were filed on or after January 1, 2011.  The Supreme Court deferred adoption of the proposal at that time but invited the Associations to undertake a comprehensive review and “consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.”

The bar associations accepted this invitation and formed a Special Committee on Supreme Court Rule 23, chaired by former ALA Presidents J. Timothy Eaton and Michael T. Reagan and consisting of representatives of the ALA, CBA, ISBA and the Executive Committee of the Illinois Judges Association.  The ALA was represented by John M. Fitzgerald and Garrett L. Boehm, Jr., its Rules Committee co-chairs.  In August 2016, the Special Committee submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority.

After seeking input from the Illinois Appellate Court justices, the Supreme Court voted during its November 2016 Term to make no changes to Supreme Court Rule 23 at this time.

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On February 9 and 16, the ALA will host its annual Illinois Supreme Court 2016 Civil Cases Year in Review, featuring a panel discussion about the most significant civil cases decided by the Illinois Supreme Court this past year.

There will be two events: one in Chicago (February 9) and one in Wheaton (February 16). Both events will feature Illinois Appellate Court Justice Ann B. Jorgensen of the Second District, and past ALA presidents J. Timothy Eaton and Michael T. Reagan.

The Chicago event will be held on Thursday, February 9, from noon to 1:45 p.m., at Neal, Gerber & Eisenberg LLP, 2 North LaSalle Street, 17th Floor.

The Wheaton event will be held on Thursday, February 16, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

Attendees at both events should bring their own lunches and will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

The Illinois Attorney General’s Office is looking to fill an Assistant Attorney General position in its Criminal Appeals division in Chicago. The Assistant Attorney General will brief and argue criminal cases in state and federal appellate courts. The ideal candidate will have at least two years of experience as a judicial law clerk, appellate court research attorney or associate in a law firm.

More information about the position can be found here. 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

In Finko v. City of Chicago Department of Administrative Hearings and Department of Revenue, 2016 IL App (1st) 152888, the petitioner, Andrew Finko, had received two parking tickets, one on July 10, 2014, and another 18 days later. Finko contested the tickets by mail. An administrative law judge (ALJ) found that the parking violations had occurred and issued separate orders for each ticket. The City of Chicago Department of Administrative Hearings (DOAH) adopted the ALJ’s decisions.

Finko subsequently filed a pro se complaint in the circuit court for administrative review, listing both ticket numbers and attaching copies of the two DOAH’s orders as exhibits. Two months after Finko filed his complaint, the circuit court issued an order which referenced only the first of his tickets. In response, the City of Chicago filed a complete record of the proceedings to support its position on only the first ticket, including a copy of the ticket and photographs of the street and street signs from the day the ticket was issued. The City did not file such a record for the second ticket.

Several weeks later, Finko filed a motion to consolidate and to compel the City to file the record of proceedings for the second ticket. The city responded, arguing that, although Finko was contesting both tickets, he filed only one complaint for administrative review instead of two, which contravened administrative law. The circuit court denied Finko’s motion, in part, because he did not file a complaint specific to the second ticket. The court eventually ruled on Finko’s first ticket, finding that he did not commit a parking violation and reversing the DOAH’s decision.

Finko subsequently appealed the court’s denial of his motion to consolidate and its refusal to consider his challenge to the DOAH’s decision on his second ticket.

The appellate court observed that the issue was governed by section 3-103 of the Illinois Code of Civil Procedure (735 ILCS 5/3-103 (West 2014)), which stated that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint” within 35 days of the decision. The court further found that, based on the plain language of this section, a party must file a complaint for review of “a final administrative decision,” and nothing in the section allowed for the filing of a single complaint for review of multiple final administrative decisions. Section 3-103 thus required Finko to file a complaint for administrative review for each of his tickets, and because he did not, the circuit court had no jurisdiction to review his challenge to his second ticket.

The appellate court also rejected Finko’s contention that substantial compliance with section 3-103 was sufficient. The appellate court accordingly affirmed the circuit court’s judgment. 

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

In Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, the appellate court once again found that a litigant’s failure to comply with procedural rules in the circuit and appellate courts foreclosed meaningful review of her claims.

There, the plaintiff, who was represented by counsel in the circuit court, filed a pro se appeal from the judgment entered against her following a jury trial. In short, she asserted that unfair procedural irregularities occurred below. The defendant responded, however, that it would be improper for the appellate court to review the merits of the plaintiff’s claims due to her own failure to follow procedural rules. The appellate court agreed.

First, the appellate court found that the plaintiff failed to file a posttrial motion and, consequently, failed to preserve the issues raised in this civil appeal pursuant to Illinois Supreme Court Rule 366(b)(2) (eff. Feb. 1, 1994).

Next, the appellate court found it could not review the merits of the appeal because the plaintiff failed to file a report of proceedings, directing the plaintiff to the oft-cited rule set forth in Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). See also Ill. S. Ct. R. 321 (eff. Feb. 1, 1994); Ill. S. Ct. R. 323 (eff. Dec. 13, 2005). The court further noted that while the plaintiff attached documents to her appellate brief, those documents were not included in the record on appeal.

Finally, the appellate court found the plaintiff’s opening brief failed to comply with Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013). Specifically, the brief omitted the requisite statement of the issues, statement of jurisdiction and statement of facts. Additionally, the plaintiff’s argument section did not properly set forth cohesive arguments with citations to authority. Due to these deficiencies, the appellate court affirmed the circuit court’s judgment.

Presiding Justice Hyman and Justice Mason each filed a special concurrence. Justice Hyman essentially added that the plaintiff’s concerns may have reflected her misunderstanding of the trial process and, thus, could be alleviated by explaining that process. In contrast, Justice Mason observed that the appellate court routinely refused to consider matters outside the record and found that the plaintiff’s concerns should not be addressed in this appeal.

While the pro se nature of the plaintiff’s claims in Wing places some doubt on whether a posttrial motion would have had any merit, the case nonetheless reminds trial attorneys intending to pursue an appeal that they must file such a motion, including all potential contentions. Moreover, Wing provides a short checklist of procedural challenges for appellees attempting to secure an affirmance.

 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On January 13 and 31, the ALA will host its annual Illinois Supreme Court 2016 Criminal Cases Year in Review, featuring a panel discussion about the most significant criminal cases decided by the Illinois Supreme Court this past year.

There will be two events, one in Wheaton, co-sponsored by the DuPage County Bar Association (January 13) and one in Chicago, co-sponsored by the Cook County Bar Association (January 31). Both events will be moderated by ALA Treasurer Gretchen Harris Sperry and will feature Illinois Appellate Court Justice Joseph Birkett (Second District), Leah Bendik, Illinois Assistant Attorney General, Criminal Appeals Division and James Chadd, Deputy State Appellate Defender, Office of the State Appellate Defender. The Chicago event will also feature retired Illinois Appellate Court Justice James Epstein. The Wheaton event will also feature retired Illinois Appellate Court Justice Stuart Palmer.

The Wheaton event will be held on Friday, January 13, from noon to 1:30 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

The Chicago event will be held on Tuesday, January 31, from noon to 1:45 p.m., at Hinshaw & Culbertson LLP, 222 North LaSalle St., Suite 300.

Attendees at both events should bring their own lunches and will receive 1.5 hours of MCLE credit.

Additionally, on Thursday, January 26, from 5 to 7 p.m., the ALA will host a reception honoring the justices of the Illinois Appellate Court’s First District. This year’s special honorees will be Justice Margaret Stanton McBride and the late Justice Laura Liu. The event will be held at the Hotel Allegro, 171 West Randolph Street in Chicago.

For more information about any of the events and to register, please click here.