On October 1, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Professor David Strauss of the University of Chicago Law School. Professor Strauss, who has argued 18 cases before the United States Supreme Court and is co-editor of the Supreme Court Review, will share his insight on the High Court's upcoming term, which begins in October. 

The ALA welcomes all to join Professor Strauss for an informative and engaging luncheon. For more information and to register, please click here. 

Under the “collateral order” doctrine, a non-final district court order may be appealable despite the “final order” requirement of 28 U.S.C. § 1291, if certain criteria are met. In general, the order must be conclusive; it must resolve an important issue apart from the merits; and it must be effectively unreviewable on an appeal in the underlying action. 

In United States of America v. Sinovel Wind Group Co., Ltd.,  2015 U.S. App. LEXIS 12694 (7th Cir. July 23, 2015), the Seventh Circuit Court of Appeals rejected application of the collateral order doctrine and found that an appeal by a partially owned Chinese corporation lacked jurisdiction. The court also rejected use of a mandamus to obtain appellate review.

In June of 2013, the United States Department of Justice attempted to serve Sinovel Wind Group Company (“Sinovel”), a Chinese corporation with 18% government ownership, with a criminal summons, by serving its wholly owned U.S. subsidiary, Sinovel USA, in Texas. The summons revealed that Sinovel had been indicted in the Western District of Wisconsin for criminal copyright infringement and trade secret theft involving computer software. 

Sinovel specially appeared in district court to file a motion to quash service of the summons, complaint and indictment for lack of personal jurisdiction under applicable federal criminal rules. It contended that service on Sinovel USA was not the equivalent to service on Sinovel itself.  Id. at *4. The district court found that Sinovel USA was the alter ego of Sinovel and denied the motion. Id. Sinovel filed a notice of appeal in September of 2014. It also filed a petition for writ of mandamus directly with the Seventh Circuit. 

In an opinion authored by Chief Judge Diane P. Wood, the Seventh Circuit dismissed the appeal and denied the writ of mandamus. She first addressed appealability, noting that the order appealed from was not “final” for purposes of 28 U.S.C. § 1291. After outlining the parameters of the collateral order doctrine, she turned to Sinovel’s arguments for why the district court order should be treated as a collateral order.

Sinovel basically argued the importance of the district court ruling based upon the Chinese government’s partial ownership. It further contended that the order was practically unreviewable, at least until conclusion of the criminal proceeding, and that prosecution of the case could imperil foreign relations.

Chief Judge Wood pointed out, however, that litigants routinely raise personal-jurisdiction objections that are not reviewable until after the merits of the litigation have been resolved. She further noted that special rights for foreign-government-owned corporations are not triggered under the Foreign Sovereign Immunities Act unless the foreign government owns a majority interest.In addition, she observed that the fact that the Executive Branch, through the U.S. Department of Justice, had made the decision to prosecute the case constituted adequate consideration of the impact on foreign relations.

Ultimately, Chief Judge Wood found that the district court’s jurisdiction decision was not unreviewable after final judgment, and that the appeal therefore lacked jurisdiction. 

Some of these considerations overlapped with Wood’s evaluation of the petition for the writ of mandamus. She noted, for example, that such writs do not issue unless the petitioner has no other adequate remedy and has demonstrated a “clear and indisputable” right to the relief sought. Wood ultimately found that no compelling reason for immediate action existed here and that Sinovel would have an adequate remedy in an appeal after final judgment.

Accordingly, the court dismissed the appeal and denied the petition for a writ of mandamus.

Recommended Citation: Don R. Sampen, Mere Involvement of a Foreign Government Does Not Fulfill the “Collateral Order” Criteria for an Interlocutory Appeal, The Brief (September 5, 2015), http://applawyers-thebrief.blogspot.com/2015/09/mere-involvement-of-foreign-government.html#more.

On September 25, 2015, the Seventh Circuit Bar Association will sponsor a program offering insight on how to successfully practice before the United States Court of Appeals for the Seventh Circuit. The all-day seminar will feature judges from the Seventh Circuit - including Chief Judge Diane P. Wood and Judges William J. Bauer, Richard A. Posner, Frank H. Easterbrook, and Michael S. Kanne - as well as appellate practitioners who regularly appear before the court. The program will offer presentations and panel discussions on a variety of topics related to appellate practice and procedure, including electronic case filing, motions practice at the Seventh Circuit, and the importance of standards of review, among others.

Of note, ALA President Michael A. Scodro, former Illinois Solicitor General and currently of Jenner & Block, will speak on legal writing. Current Illinois Solicitor General Carolyn Shapiro will interview Judge Posner; and ALA member Mary Welsh, also of the Illinois Attorney General's office, will speak on the responsibilities of counsel when an adversary appears pro se.

The ALA encourages its members to attend the seminar, which will take place at The John Marshall Law School in Chicago. For more information and to register, please click here.

The Second District considered whether a failure to provide the requisite disclosures under section 22.1 of the Condominium Property Act gives rise to a right of action where the failure to disclose is discovered post-closing. D’Attomo v. Baumbeck, 2015 IL App (2d)140865. The court held that such a right of action does exist for post-closing conduct because to find otherwise would nullify the intended purpose of section 22.1 of the Act.

The plaintiffs in D’Attomo purchased a condominium unit from the defendant in June 2013 which they intended to lease until they retired and sold their existing residence. D’Attomo, 2015 IL App. (2d) 140865, ¶ 4. The plaintiffs made a “22.1 Disclosure” request seeking copies of the condominium declarations, by-laws, budget, financial statements and board meeting minutes. Id. The defendant seller (Baumbeck) provided the plaintiffs with a copy of the 2002 Declarations, which expressly permitted the unit owners to lease their respective units. Id. ¶ 5. The defendant, a member of the association board, did not provide the plaintiffs with notice of a 2010 amendment to the 2002 Declarations that included a Rental Limitations that precluded owners from leasing their individual units. Id.¶ 7. The defendant voted against this amendment in his capacity as a board member and so was aware of the change in the rules. Id.The plaintiffs discovered the 2010 amendment after the sale closed. Id. They were forced to terminate a prospective lease and sell the unit. Id. They then filed suit against the defendant in his capacity as the seller, as a member of the board. The plaintiffs also sued the board and the association. Id. ¶ 8.

The counts against the defendant seller alleged a violation of section 22.1 of the Act, breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent concealment, fraudulent misrepresentation, breach of fiduciary duty and constructive fraud. The latter two counts were directed against the defendant in his capacity as a board member. The plaintiffs alleged breach of fiduciary duty and constructive fraud against the board and the association.  Id. ¶¶ 8-14. 

The board and association filed a section 2-615 motion to dismiss the counts against them arguing that they owed no fiduciary duty to the plaintiffs because they were not owners until after the closing and no fiduciary duty could have existed until that time. D’Attomo, 2015 IL App (2d) 140865, ¶ 15. The trial court granted the motion to dismiss the counts against the board and the association without prejudice and with leave to re-plead on February 27, 2014. Id. ¶ 16.

The defendant seller filed a separate motion to dismiss the counts against him under section 2-619(a)(9). D’Attomo, 2015 IL App (2d) 140865, ¶ 17. The defendant argued there was no cause of action under section 22.1 of the Act for post-closing conduct and that plaintiffs otherwise failed to timely request the documents to be able to trigger application of the Act. He further argued that there was no breach of contract claim absent a timely request for a 22.1 disclosure and there is otherwise no cause of action for breach of the implied warranty of good faith and fair dealing. He next contended that the fraudulent concealment and misrepresentation claims failed as both theories were premised on implied obligations. He also claimed that the fiduciary duty and constructive fraud claims based on his status as a board member failed because no fiduciary duty was owed to the plaintiffs until after the closing, the alleged failure to disclose occurred pre-closing and he was no longer a member of the board at that time. Id. ¶ 18.

The trial court granted the defendant’s motion and dismissed the complaint against him in its entirety with prejudice on April 24, 2014. The order stated that it was final and appealable. A motion to reconsider was denied on August 5, 2015. This order stated that the April 24, 2014 order statement regarding finality was intended to be a Rule 304(a) finding. Id. ¶ 19. The plaintiffs then appealed from both the February 27 and April 24 orders. 

The appellate court first determined that it had no jurisdiction to review the February 27, 2014 order dismissing the complaint as to the board and the association. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 22-28. The court observed that the February 27 dismissal was without prejudice which indicated it was not final. Id. ¶ 24. This much was confirmed by the trial court’s statements to the plaintiffs allowing them leave to re-plead. Id. ¶ 26. Finally, the fact that Rule 304(a) language attached to the April 24 order did not affect the non-appealability and non-finality of the February 27 order because there was no reference to the dismissal of the board or association, parties who were dismissed via a separate motion. Id. ¶ 27. The record also showed that the Rule 304(a) language was invoked because the defendant filed a fee petition. Id. The court then turned to the merits of the plaintiff’s appeal from the order dismissing the counts against defendant seller. Id. ¶ 30.

The court first examined section 22.1 of the Act and noted that its purpose was to fully inform condominium purchasers from buying a unit without being fully informed of the rules, regulations and financial stability of the management. D’Attomo, 2015 IL App (2d) 140865, ¶ 34. Adopting the reasoning set out in Nikolopulos v. Valaudos, 245 Ill. App. 3d 71 (1993), the court concluded that a right of action exists where the requested documents were concealed and the concealment is not revealed until after the closing. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 35-38. The court acknowledged that Nikolopulos considered pre-closing conduct but found that the reasoning in that case applied equally to post-closing conduct. To conclude otherwise would render section 22.1 ineffective. Id. ¶¶ 38-39. In so concluding, the appellate court rejected the defendant’s argument that the Act’s reference only to pre-closing remedies precluded a recognition of a post-closing remedy. Id. ¶¶ 43-44. The court also rejected the defendant’s timeliness argument, finding he waived that objection by formally responding to the plaintiff’s 22.1 disclosure request. Id. ¶ 45.

As for the breach of contract claim, the court found that, because the obligations to provide full disclosure under section 22.1 of the Act were incorporated into the contract to sell the condominium unit as a matter of law, the defendant’s failure to disclose the 2010 amendment and Rental Limitation could support a breach of contract claim. Id. ¶¶ 49-52. The court, however, agreed with the defendant that there was no independent cause of action for the breach of the implied covenant of good faith and fair dealing. Id. ¶ 53.

The court next affirmed dismissal of the fraudulent concealment counts citing the absence of a fiduciary relationship between the defendant and the plaintiffs. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 57-60. The court reasoned that, because the first element of a fraudulent concealment claim requires proof of concealment when there is a duty to speak, a fiduciary or confidential relationship must exist for that duty to speak to arise. Id. ¶ 59. The court observed that, although the plaintiffs alleged that the defendant had a duty to disclose under section 22.1 of the Act, there were no allegations that the defendant was the plaintiff’s fiduciary or in a position of superior influence over them. Id. ¶ 60. To the contrary, the plaintiffs could have discovered the 2010 amendment through their own reasonable inquiry, which was another basis to support a dismissal of this count. Id. The fact that the plaintiffs did not allege that they could not have discovered the 2010 amendment through their own reasonable inquiry also defeated the fraudulent misrepresentation count. Id. ¶ 61. 

Finally, the court affirmed dismissal of the breach of fiduciary duty and constructive fraud counts against the defendant in his capacity as a board member because no fiduciary relationship with the plaintiffs could have existed until after the closing at which time the defendant was no longer a member of the board. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 67-74. While the plaintiffs alleged both pre and post-sale misconduct, the failure to disclose happened pre-sale before a fiduciary duty could have arisen. Id. ¶ 67. Similarly, since constructive fraud “springs” from a breach of fiduciary duty, that claim was also properly dismissed because no such duty existed when the concealment occurred. Id. ¶ 73-74. 

The court reversed the dismissal of the section 22.1 claim and the breach of contract count, affirmed dismissal of the remainder of the complaint as to the defendant seller and remanded for further proceedings. D’Attomo, 2015 IL App (2d) 140865 ¶ 76. The appeal from the order dismissing the board and the association was dismissed.

Recommended Citation: Rosa M. Tumialán, Condominium Property Act Allows a Right of Action for Post-closing Conduct, The Brief, (August 4, 2015), http://applawyers-thebrief.blogspot.com/2015/08/condominium-property-act-allows-right.html#more.

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.

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. 

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.

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 

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).

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.