"The Brief" - The ALA Blog

  • March 03, 2015 3:10 PM | Anonymous member (Administrator)

    On February 18, 2015, the Association gathered at the Union League Club in Chicago for its February luncheon. The luncheon featured Illinois Solicitor General Carolyn E. Shapiro, who, in 2010, was appointed by Attorney General Lisa M. Madigan to serve as the top appellate lawyer in the Attorney General's office. Association President Steven F. Pflaum opened the luncheon by welcoming ALA members and guests, which guests included three of Shapiro's predecessors: Hon. Gary Feinerman of the United States District Court for the Northern District of Illinois, ALA Vice President Michael A. Scodro, and Joel D. Bertocchi. President Pflaum noted the Solicitor General's unique role within the public service sector, quipping that, unlike the Attorney General, Shapiro "actually" practices law and, unlike a United States attorney, she gets to practice in both federal and state courts. 


    Thereafter, Shapiro reflected on her transition from law professor to advocate representing the State in appellate matters. She noted that her office developed approximately 250 briefs during her first year, and given the breadth of matters involved, she has experienced a "tremendous learning curve," but that curve has made the job enjoyable. The wide range of matters can, at times, lead to interesting scenarios where attorneys in her office are representing opposing sides. Shapiro recounted one such situation where her office represented both the State and the Department of Children and Family Services; and to the audience's amusement, noted that her office "won." 


    The Solicitor General also shared insight into her office's structure and organization. She emphasized that her office is an "institutional litigant," and that maintaining credibility with the judiciaries is key and is also in her client's long-term interests. On a practical note, Shapiro shared that she tracks all office cases on a legal pad, and that she personally reviews all briefs filed before the United States Court of Appeals for the Seventh Circuit and the Illinois Supreme Court. 


    The Association thanks Solicitor General Shapiro for her engaging and insightful comments.


  • February 27, 2015 5:12 PM | Anonymous member (Administrator)

    On February 4, 2015, the Association hosted a reception honoring the Justices of the Illinois Appellate Court, First District, at the Union League Club in Chicago. The biennial reception provided an opportunity for members of the bench and bar to socialize over cocktails and hors d'oeuvres in a collegial  setting. 

    The reception honored Justice Thomas E. Hoffman's distinguished service on the First District Appellate Court. ALA President Steven F. Pflaum opened the festivities by welcoming members of the judiciary, who included members of the Illinois Supreme Court, Illinois Appellate Court, and the Cook County Circuit Court, ALA members, and guests. President Pflaum recounted Justice Hoffman's storied career in public service, which included service as a Chicago police officer, trial court judge, and appellate court justice. By Pflaum's count, Justice Hoffman had authored more than 700 opinions, special concurrences, and dissents. Drawing a large laugh from the many practitioners in the audience, Pflaum noted that Justice Hoffman had also authored countless Rule 23 orders, which he was not allowed to reference. 

    Thereafter, Justice Margaret Stanton McBride introduced Justice Hoffman. Justice Stanton spoke of Justice Hoffman's dedication to the judiciary and noted the admiration that she and her colleagues on the court have for him.

    Justice Hoffman's heartfelt remarks expressed gratitude to his many colleagues and friends in attendance. True to his down-to-earth nature, Justice Hoffman candidly queried why he was being honored before noting that the highest professional compliment one can receive is recognition from the people one works with on a daily basis. Justice Hoffman noted the significant efforts of court personnel and his staff, including his dedicated law clerks, and thanked his judicial colleagues for their dedication and hard work.


    The ALA congratulates Justice Hoffman for his well-deserved recognition; and thanks the members of the judiciary, ALA members, and guests for an enjoyable evening. 

  • February 24, 2015 3:55 PM | Anonymous member (Administrator)

    The Rules Committee of the Appellate Lawyers Association, chaired by Garrett L. Boehm, Jr. of Johnson & Bell, Ltd. (photo on left) and John M. Fitzgerald of Tabet DiVito & Rothstein LLC  (photo on right), meets regularly to review recent changes to the Federal Rules of Appellate Procedure and Illinois Supreme Court Rules. The Committee also proposes to the Association amendments to existing rules in an effort to resolve ambiguities and address problems incurred under those rules. 

    Recently, the Association, at the recommendation of the Rules Committee, submitted a letter to the Illinois Supreme Court Rules Committee proposing amendments to Supreme Court Rules 306 and 307. The proposals seek to clarify that, under Rules 306(b), 307(d)(1), and 307(d)(2), documents may be served via email. The ALA's proposals also include amendments to Rule 307(a) to authorize the filing of a supporting record pursuant to Rule 328. Finally, the proposals seek to amend Rule 307(d) to provide that, in interlocutory appeals authorized under that rule, the notice of appeal shall be filed in the circuit court, and further, that Rule 373 (which authorizes the filing of documents via mail or delivery to a third-party commercial carrier) may be utilized in Rule 307(d) appeals.

    To read the letter, please click here.

  • February 23, 2015 1:40 PM | Anonymous member (Administrator)

    In re Marriage of Eckersall, 2015 IL 117922, a Cook County dissolution of marriage proceeding, was finalized in 2014. While the case was pending, the husband sought joint custody of the couple’s three children. When the parties did not meet the circuit court’s deadline for reaching a visitation agreement, the court entered a form order that restricted the parents’ conduct and communications with the children during the proceedings. Among other restrictions, the order prohibited the parents from using corporal punishment in disciplining the children, from discussing the pending litigation with them, and from removing the children from the state without the other parent’s consent or a court order. The wife objected to the order and pursued an interlocutory appeal under Supreme Court Rule 307(a) (eff. Feb. 26, 2010), which allows interlocutory appeals from injunctions. With one justice dissenting, the appellate court found that the order did not constitute an injunction and dismissed the appeal for lack of jurisdiction.


    After accepting the wife’s petition for leave to appeal, the Illinois Supreme Court dismissed the appeal, but for a different reason than the appellate court had stated. By the time the supreme court addressed the substance of the appeal, the circuit court had entered its final dissolution order, which superseded the “form” order to which the wife had objected.  Undisputedly, the form order that was the subject of the appeal was moot. The question for the supreme court, however, was whether the public interest exception to the mootness doctrine called for the court to address the substance of the superseded order.


    The supreme court found that the form order, which was “generally only used” in Cook County dissolution proceedings when the parties could not agree on visitation terms, did not meet the first requirement for the public interest exception: the appeal presents an issue that has widespread effect on the public. The absence of conflicting authorities led the court to conclude that the second requirement, a need for authoritative determination, also was not present. Finally, the third factor, a likelihood of future recurrence, had not been met given the lack of past litigation involving this issue. Distinguishing this case from other cases presenting important issues involving minors, such as a minor’s physical safety or the protection of neglected or abused children, the supreme court found that the narrowly construed public interest exception to the mootness doctrine did not apply. The supreme court concluded “this type of  ‘form’ order has a limited application and does not have a significant effect on the public as a whole.” Therefore, the petition for leave to appeal had been improvidently granted, and the high court dismissed the appeal as moot. 


    Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody DisputeThe Brief(February 23, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-finds-public.html.


  • February 19, 2015 3:05 PM | Anonymous member (Administrator)

    For the third consecutive year, the ALA and the DuPage County Bar Association (DCBA) cosponsored the "Supreme Court Civil Litigation Year in Review" brown bag luncheon seminar. The popular program, which offered attendees 1.5 hours of valuable CLE credit, focused on Supreme Court Rule changes, statistics regarding petitions for leave to appeal, and opinions issued by the Illinois Supreme Court during the 2014 calendar year. The seminar was conveniently presented in both Wheaton and Chicago, and as a membership benefit, ALA and DCBA members could attend either seminar free of charge.


    The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District, along with seasoned appellate practitioners J. Timothy Eaton of Taft Stettinius & Hollister LLP and Michael T. Reagan of Law Offices of Michael T. Reagan. The program began with an overview of Supreme Court Rule changes, many of which are germane to appellate practice and procedure. The panel noted that, for example, the supreme court amended Rules 138, 201, 303, 306, 308, 313, and 367, among others.


    The panel then noted that, in 2014, 1,365 petitions for leave to appeal were filed, a decrease from years' past, and that the percentage of petitions granted slightly increased due to fewer petitions being filed.  The panel noted that 85% of the petitions granted involved issues of statutory construction. Further, approximately 22% of the petitions granted resulted in an affirmance while approximately 78% resulted in a reversal (either in part or outright). Thus, it is reasonable to infer that, if the supreme court grants a petition for leave to appeal in a civil matter, some relief from the reviewing court's disposition is likely. Finally, emphasizing the uniformity of the court, the panel noted that, out of approximately 30 civil opinions, there were 5 dissents and 1 special concurrence.  

    Thereafter, the panel discussed supreme court opinions issued during the 2014 calendar year. The discussion covered a variety of substantive topics, including conflicts of law, forfeiture, mootness, personal jurisdiction, preservation of error, administrative law, pensions, real estate, retaliatory discharge, and tort law, among many others.  

    The ALA thanks the panel members for an information-packed seminar, the DCBA for cosponoring the seminar and hosting the Wheaton presentation, and Neal Gerber & Eisenberg LLP for graciously hosting the Chicago presentation. 


  • February 15, 2015 12:51 PM | Anonymous member (Administrator)

    Subject matter jurisdiction over interpleader actions as well as the constitutional case-or-controversy requirement are at the center of a recent decision from the United States Court of Appeals for the Seventh Circuit. In State Farm Life Insurance Co. v. Jonas, __F.3d__, 2014 WL 7399115 (7th Cir. Dec. 31, 2014), a husband and wife named each other as beneficiaries of their life insurance policies. After they divorced, the policies remained in force and later the wife died. The husband then sought to collect the $1 million proceeds from his ex-wife’s policy. The insurer resisted paying because of its concerns that the couple’s children may have been the rightful beneficiaries under their mother’s policy. 


    But under the Texas law that governed, an insurer that fails to pay within 60 days of receiving a claim may be assessed interest at 18% a year, plus attorney fees. The only way to avoid such interest and fees under Texas law was to bring an interpleader action, and the insurer did so in federal court. And because the couple’s children did not make a competing claim in this action, the district court ordered the insurer to pay the husband. Yet the husband was dissatisfied that the district court did not also award attorney fees and interest and appealed.


    But the Seventh Circuit never reached the merits and dismissed the case for lack of jurisdiction. First, the court pointed out that, though the parties satisfied the “minimal diversity” requirement under the federal interpleader statute (28 U.S.C. § 1335), the insurer failed to meet the requirement that it actually pay the proceeds into the court’s registry. Because the statute requires, in the court’s words, “cash on the barrel-head,” no jurisdiction existed under the interpleader statute.

    The Seventh Circuit next considered whether the interpleader action could, in the alternative, be maintained under the general diversity jurisdiction statute (28 U.S. C. § 1332). The parties met the requirements of complete diversity and the jurisdictional amount. But diversity jurisdiction still failed because there was no actual dispute to meet the case or controversy requirement of Article III of the Constitution. The court first noted that there was no competing claim to the proceeds, and the insurer not being “comfortable” paying the proceeds to the husband was not enough. 


    The husband argued that there was a sufficient controversy because of the fees and interest that arose after he filed suit. That too failed because, “a case or controversy must exist when a suit begins — and on that date there was no live controversy.” The court stated that if disputes over attorney fees and interest “during litigation could create a justiciable controversy, then no case could be dismissed for lack of one,” since every prevailing party is entitled to some costs. Thus, the court concluded that a dispute over fees and interest arising during the litigation could not “retroactively create jurisdiction.”


    Without the paid-in proceeds necessary for the statutory interpleader, and without a live controversy on the date when suit was filed, the Seventh Circuit vacated the district court’s judgment and dismissed the case for lack of subject matter jurisdiction.


    Recommended Citation: E. King Poor, No Cash on the Barrel-head, No Controversy, No Interpleader Jurisdiction, The Brief, (February 15, 2015), http://applawyers-thebrief.blogspot.com/2015/02/no-cash-on-barrel-head-no-controversy.html.


  • February 11, 2015 12:38 PM | Anonymous member (Administrator)

    The Illinois Supreme Court’s opinion in Williams v. BNSF Railway Co., 2015 IL 117444, clarified when an oral judgment is “entered of record” for purposes of Rule 272, thereby triggering the 30-day appeal period.


    The supreme court accepted BNSF’s petition for leave to appeal from the appellate court’s order dismissing the appeal for lack of jurisdiction. Williams, 2015 IL 117444, ¶¶ 2, 24. The appellate court dismissed the appeal, concluding that the oral ruling on April 18, 2012 denying BNSF’s posttrial motion was the final order that triggered BNSF’s time to appeal. Id. ¶¶ 21-22. The appellate court deemed BNSF’s appeal untimely because it was filed within 30 days of the written order entered on June 6, 2012 relating to one posttrial motion issue taken under advisement following the April 18 hearing. Id. ¶¶ 18, 21.

    Before petitioning the supreme court for leave to appeal, BNSF petitioned for rehearing in the appellate court. Williams, 2015 IL 117444, ¶ 23. BNSF explained that the appellate court misapprehended that the April 18, 2012 oral ruling was entered of record on that date and then attempted to supplement the record with a certified copy of the law record, which reflected that the April 18, 2012 oral ruling was entered in the record on June 6, 2012. Id. ¶ 23. The petition for rehearing and motion to supplement the record were denied.Id. ¶ 24. 


    BNSF’s petition for leave to appeal was accompanied by the motion to supplement the record with the law record. Williams, 2015 IL 117444, ¶ 26. The motion and objections thereto were taken with the case. Id. ¶ 28.


    The supreme court rejected the objections to BNSF’s motion to supplement, finding that BNSF was not remiss in seeking leave to include the law record. The supreme court also observed that there was no contention that the proffered law record was inaccurate.Id. ¶¶ 33-34. The court then turned to the merits.


    The supreme court first found that the April 18, 2012 oral ruling was not entered of record until June 6, 2012, as reflected in the law record. Williams, 2015 IL 117444, ¶ 45. The court examined Rule 272 as well as case law construing the phrase “entered of record” to conclude that rendering an oral ruling did not constitute entering the judgment of record for purposes of Rule 272. Id. ¶¶ 35-45.


    The supreme court court next considered when the time to appeal began to run. Id. ¶ 46. The plaintiff claimed that Rule 272 did not apply to posttrial motions but instead only final judgments. Id. The high court disagreed, observing that, since a timely postjudgment motion tolls the time to appeal until disposition of that motion, it was necessary to look to Rule 272 to determine that date. Id. ¶¶ 47-48. The court held that a ruling on a postjudgment motion constitutes a judgment under Rule 272. Id. ¶ 49. The court then found that BNSF’s notice of appeal filed within 30 days of the June 6, 2012 order was timely. Id. ¶¶ 50-52. The court however, declined BNSF’s invitation to consider issues briefed but not decided by the appellate court and instead remanded the case to the appellate court to consider the merits of BNSF’s appeal.

    Recommended Citation: Rosa M. Tumialán, Illinois Supreme Court Clarifies When Oral Judgment is "Entered of Record", The Brief, (February 11, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-clarifies-when.html.


  • February 09, 2015 11:32 AM | Anonymous member (Administrator)

    In Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction the interlocutory appeal of the Diocese from the order denying its motion for summary judgment, holding that the collateral-order doctrine did not apply because the order was not effectively unreviewable on appeal from a final judgment. Id. at 1090-92.


    Herx worked as a teacher for a Catholic school. Herx, 772 F.3d at 1086. She was discharged because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. Id. at 1087. Herx sued, and the Diocese moved for summary judgment. Id. The district court denied summary judgment in part. Id. The Diocese filed an interlocutory appeal, invoking the collateral-order doctrine of appellate jurisdiction, and Herx moved to dismiss the appeal. Id. at 1088. 


    The Seventh Circuit granted Herx’s motion and dismissed the appeal. The reviewing court explained that the collateral-order doctrine “confers finality – and thus immediate appealability -- on a small category” of interlocutory orders. Herx, 772 F.3d at 1088. There are three “stringent” conditions for collateral-order review. Id. at 1089. It requires: “(1) a conclusive decision; (2) on an important issue that is conceptually separate from the merits ... (3) that is effectively unreviewable on an appeal from a final judgment.” Id. In determining whether these requirements are met, the court does not engage in an “individualized jurisdictional inquiry,” but focuses instead “on the entire category to which a claim belongs.” Id. Citing United States Supreme Court precedent, the court emphasized that the doctrine is “narrow” and “modest” in scope. Id. The court explained that the categories of claims to which the doctrine has been applied are those that involve an immunity from trial, such as a public official’s claims of absolute or qualified immunity, a State’s claim of Eleventh Amendment immunity, a foreign government’s claim of sovereign immunity, or an order denying a criminal defendant’s claim of double jeopardy. Id.


    The Seventh Circuit focused on the third condition – whether the challenged order would be effectively unreviewable on appeal after final judgment – and explained that the Supreme Court has held that the “crucial question” is “whether deferring review until final judgment so imperils” the interest at stake “as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Id.at 1090 (citations and internal quotation marks omitted). In cases where collateral-order review has been allowed, the court explained, “some particular value of a high order was marshaled in support of the interest in avoiding trial,” including “honoring the separation of powers, preserving the efficiency of government and the initiative of officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual.” Id. (citations and internal quotation marks omitted). 


    The Seventh Circuit held that the Diocese’s appeal failed to satisfy this third condition. Although the Diocese had asserted important statutory and constitutional rights in defense against Herx’s claims, it could not assert any immunity from the burdens of trial. Herx, 772 F.3d at 1091. The court also rejected the Diocese’s argument that collateral-order review was necessary to avoid an encroachment on its First Amendment interests in religious liberty, explaining that the district court had not ordered a religious question submitted to the jury and would instruct the jury accordingly. Id. Thus, none of the interests the Diocese asserted would be irreparably harmed by enforcing the ordinary rule that appeals may be taken only after final judgment. Id. at 1091-92.


    Because the district court’s decision was not effectively unreviewable after final judgment, the collateral-order doctrine did not apply, and the court dismissed the appeal for lack of jurisdiction. Herx, 772 F.3d at 1092.

    Recommended Citation: Myriam Zreczny Kasper, Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final Judgment, The Brief, (February 9, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-collateral-order.html.


  • February 04, 2015 11:02 AM | Anonymous member (Administrator)

    In Satkar Hospitality, Inc. v. Fox Television Holdings, No. 11-3572, the United States Court of Appeals for the Seventh Circuit underscored – yet again – the importance of timely filing a notice of appeal. Satkar arose from an alleged “pay to play” scenario that sounds all too familiar in Illinois. In 2007, Satkar (which owned and operated a Schaumburg hotel) won a property tax appeal before the Cook County Board of Review (the Board of Review). In 2009, two news outlets reported that an Illinois State Representative had engineered successful property tax appeals in return for campaign contributions. They identified Satkar and its owners as participants in that scheme. The Board of Review reacted by reversing its 2007 ruling.


    Outraged, Satkar and its owners brought suit against the Board of Review, its members, and the media outlets. The plaintiffs brought claims under 42 USC § 1983, and state law claims for defamation and false light. In September 2011, the District Court dismissed the state law claims on the ground that those claims were barred by Illinois’ Anti-SLAPP statute. The state law claims and defenses asserted in the trial court presented interesting legal issues. Ultimately, however, none of those issues were heard by the Seventh Circuit.


    When the district court dismissed the plaintiffs’ state law claims on September 21, 2011, it entered a judgment under Rule 54(b), thus starting the 30-day appellate clock. However, a week later, during a September 27, 2011 status conference on the remaining claims, the district court judge (in an apparent moment of confusion) suggested he had not issued a Rule 54(b) finding, and invited the parties to request such a finding. Ultimately, in November 2011 (i.e., well after the expiration of the time for appealing the September 21 judgment), the plaintiffs sought an extension of time to file a notice of appeal. The plaintiffs claimed their delay in filing was due to confusion stemming from the court’s comments at the September 27 hearing. The district court granted the extension, and the plaintiffs filed a notice of appeal.

    In a September 10, 2014 opinion, the Seventh Circuit dismissed the plaintiffs’ appeal for lack of jurisdiction. The Seventh Circuit began its analysis by reiterating that the timely filing of a notice of appeal is a jurisdictional requirement, and that the “excusable neglect” exception to the 30-day filing requirement is narrowly construed. Id. The Seventh Circuit further noted that the “unique circumstances” exception to the 30-day requirement (which the trial court relied on as a basis for granting the plaintiffs' motion for an extension of time) had been foreclosed by the United States Supreme Court in Bowles v. Russell, 551 U.S. 205 (2007). Thus, the plaintiffs had to live (or die) based on their ability to demonstrate “excusable neglect.”

    The Seventh Circuit held that “excusable neglect” may arise from “misrepresentations by judicial officers” or “plausible misinterpretations of ambiguous rules.” However, the court emphasized that a misunderstanding of an unambiguous order or rule does not rise to the level of excusable neglect. Rather, to establish “excusable neglect” a party must “demonstrate genuine ambiguity or confusion about the scope or application of the rules or some other good reason for missing the deadline.” 


    The Seventh Circuit did not believe that the plaintiffs met that standard. While acknowledging the trial court’s erroneous statements, the Seventh Circuit noted that those statements, when taken in context, did not create ambiguity. The district court’s September 21 judgment (and the entry on the docket) very clearly reflected a Rule 54(b) finding. The plaintiffs also acknowledged they understood the requirement that a notice be filed within 30 days of a Rule 54(b) finding. Finally, the plaintiffs did nothing to clear up any “confusion” at the September 27 hearing or thereafter. In the face of those facts, the Seventh Circuit found that plaintiffs simply could not claim they had been duped or confused by the trial court’s statements. Accordingly, their appeal was dismissed.

    Recommended Citation: Timothy D. Elliott, Seventh Circuit Underscores – Again – The Need to File a Notice of Appeal Within 30 Days of Judgment, The Brief, (February 4, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-underscores-again-need.html.


  • January 30, 2015 11:29 PM | Anonymous member (Administrator)

    In Ghantous v. Ghantous, 2014 IL App (3d) 130792, the Illinois Appellate Court discussed the doctrines of mootness and release of errors in the context of a family dispute. The father, Camille Ghantous, died in 2010. In Camille’s probate case, his wife, Souad, was named administrator of the estate. Id. ¶ 7. As administrator, Souad discovered that she and Camille did not have any ownership interest in the apartment building for which they had given their son, Leo, $1.1 million toward the purchase price. Id. ¶¶ 9, 11.


    Thereafter, Souad filed a breach of fiduciary duty action against Leo, alleging that Leo, a licensed attorney, persuaded her and Camille to personally borrow $1.1 million to contribute toward the purchase price of an apartment building as a family business, and use their own multiple properties as collateral. Id. Souad alleged that she discovered that she and Camille did not have any ownership interest that corresponded to the percentage of funds they had contributed to the purchase price of the apartment building. Id. ¶ 11. Leo then initiated three separate lawsuits of his own involving financial disputes with his siblings in the law division. Id. ¶ 7. 


    On April 8, 2013, Souad sent an offer letter to Leo detailing terms for a proposed global settlement agreement to resolve the family disputes pending in the chancery action, the probate proceeding, and the three pending lawsuits among her children. Id. ¶ 13. 

    On April 15, 2013, Leo’s attorney sent a draft release and settlement agreement incorporating the agreed terms for Souad’s signature. Id. ¶ 14. Souad did not sign and return the proposed release form, so Leo’s attorney filed a motion to enforce on June 12, 2013, in all five pending cases. Souad responded to the motion by alleging that the parties had not reached an agreement because Leo’s proposed release and settlement agreement included language which deviated from Souad’s April 8 offer letter. Id. ¶ 16. 

    The trial court found that Leo’s draft release and settlement agreement set forth all the terms of the global settlement agreement. The court ordered all parties to execute the release and settlement agreement and to comply with its terms. 

    Souad then filed a motion to reconsider in all five cases, attaching a document, drafted by her attorney and listed as Exhibit G, which was a modified release and settlement agreement. Leo agreed that Exhibit G more accurately reflected the agreed terms of the April 8 letter. On September 24, 2013, the court entered an order, which included all five case numbers, denying Souad’s motion to reconsider. The court then directed the parties to execute the release and settlement agreement prepared by Souad (Exhibit G), with some modifications. Id. ¶ 20. The court entered the same order in all five cases. 

    Souad filed a notice of appeal only in the chancery case, arguing that the release and settlement agreement Leo submitted for her signature operated as an acceptance of the terms proposed by Souad in her April 8 offer letter to settle all five cases. Leo contended that the appellate court must decline to exercise its appellate jurisdiction because the doctrines of mootness and release of errors precluded appellate review. Id. ¶ 24. Leo argued that all five cases were functionally consolidated in the trial court and that Souad must comply with the same global release agreement pursuant to the same order entered in all five cases. Souad responded that the five lawsuits were not functionally consolidated. 

    The Appellate Court found that, even assuming that the five cases were not functionally consolidated for settlement purposes, the doctrines of mootness and release of errors applied. Id. ¶ 25. Regarding mootness, the reviewing court noted that an appeal is considered moot where events occur that make it impossible for the appellate court to grant effectual relief or where the issues have ceased to exist. Id. ¶27. Because the trial court entered an order simultaneously enforcing the same global release and settlement agreement in the chancery case and the probate case, it would be impossible for the court to effectuate the relief Souad sought without seeking similar relief in the probate action. Id. The court noted that to date, Souad had not sought to avoid the impact of the release and settlement agreement with respect to the probate action. 

    Accordingly, even if the appellate court had directed the trial court to vacate the order enforcing the global release and settlement agreement in the chancery case, thereby vacating the court order dismissing this lawsuit against Leo, Souad would still be compelled by court order in the probate case to dismiss the chancery lawsuit as part of the global release and settlement agreement that remained viable in the probate matter. Id. ¶ 30. The appellate court found that the issue raised in the appeal was moot since another identical order was binding on Souad in the probate action. Id. 

    Regarding the doctrine of release of errors, the appellate court noted that a litigant was barred or estopped on appeal from attaching a decree or judgment if the same litigant has enjoyed the benefits of that judgment and the opposing party would be placed at a distinct disadvantage upon reversal. Id. ¶ 33. The court found that, in this case, Leo would be at a distinct disadvantage if the court vacated the global release and settlement agreement because that agreement required dismissal of Leo’s three cases against his siblings, which directly impacted the proceedings involving Souad’s husband’s estate. Id. ¶ 36. 

    Further, the appellate court found that the order enforcing the global release and settlement agreement entered by the trial court in the probate division required Leo to abandon his active approach to the probate action, which directly benefited Souad. Accordingly, the appellate court concluded that the doctrine of release of errors estopped Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit since she had accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action. Id. ¶ 39.      


    Recommended Citation: April Oboikowitch, Family Feud: Illinois Appellate Court Applies Mootness and Release of Errors Doctrines in Case Involving Family Estate, The Brief, (January 30, 2015), http://http://applawyers-thebrief.blogspot.com/2015/01/family-feud-illinois-appellate-court.html#more.


DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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