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"The Brief" - The ALA Blog

  • May 02, 2022 6:13 AM | Carson Griffis (Administrator)

    By:  Linda Sackey

    Even the most conscientious lawyer can make a mistake. Unfortunately, as the United States Court of Appeals for the Seventh Circuit recently observed in In re Cook Med., Inc., 27 F.4th 539 (7th Cir. 2022), some mistakes cannot be remedied and will doom the clients’ claims.

    The attorney at issue here helped several clients file short-form complaints in the in the multidistrict litigation In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, where plaintiffs alleged that they were injured by defendants’ medical device. The district court’s case management order advised plaintiffs to submit a profile form with general personal and medical background information, along with details about their device and alleged injuries. If a plaintiff did not complete a profile form within the specified time frame, defendants could move to dismiss the plaintiff’s claim.

    In May 2019, defendants informed the attorney that four of his clients had not submitted the required forms. Several weeks later, when the forms still had not been filed, defendants moved to dismiss. The attorney never responded to the motion. The district court dismissed the cases on July 19, 2019.

    More than one year later, one of the clients told the attorney about the dismissal. On August 18, 2020, the attorney moved for reconsideration and reinstatement of the cases. According to the attorney, he did not receive notice of defendants’ motion to dismiss, and he delayed in moving for reconsideration because new filters on his inbox caused the dismissal order to be sent to his junk folder. The attorney sought relief under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6).

    The district court denied the attorney’s motion, finding it both untimely and meritless. In general, Rule 60(b) motions must be made within a “reasonable time.” And Rule 60(b)(1) in particular requires requests for reconsideration based on excusable neglect to be raised within one year of entry of judgment. In this case, the district court noted, plaintiffs sought reconsideration nearly 13 months after the order dismissing their cases. Thus, the court concluded that the motion was not brought within a reasonable time.

    The district court also noted that “inexcusable attorney negligence is not an exceptional circumstance justifying relief” under either Rule 60(b)(1) or 60(b)(6). After determining that the attorney’s conduct fell within that category, the court denied the plaintiffs’ motion for reconsideration of the dismissal.

    The Seventh Circuit ruled that the district court had acted within its discretion, and it affirmed the decision. The appellate court observed that the only stated ground for relief in plaintiffs’ Rule 60(b) motion was the attorney’s “neglect—his mishandling of the submission of his clients’ profile forms and, even more, his inattentive monitoring of both the docket and the email notifications from the district court.” The court determined that there was no showing of extraordinary circumstances that would warrant relief under Rule 60(b).

  • March 16, 2022 9:15 PM | Carson Griffis (Administrator)

    By:  Kimberly Glasford

    The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2018)) contemplates the filing of one petition. Successive petitions may only be filed with leave of court after satisfying the cause-and-prejudice test. Defendants, however, are entitled to one complete opportunity to demonstrate constitutional violations.

    In People v. Taylor, 2022 IL App (2d) 190951, the Second District of the Appellate Court considered the interplay of these rules as well as the impact of the mootness doctrine.

    Defendant Johnny Taylor filed a petition under the Act, asserting that appellate counsel’s ineffectiveness led the appellate court to dismiss his direct appeal. When the appellate court recalled the mandate in Taylor’s direct appeal, the trial court dismissed his postconviction petition as moot. Taylor later filed a second postconviction petition, which the trial court treated as successive. Because Taylor had not obtained leave of court, the court denied him relief.

    On appeal, the reviewing court first determined whether the petition before it was successive, which in turn depended on the characterization of Taylor’s first postconviction proceedings.

    The reviewing court recognized that a trial court may summarily dismiss an initial postconviction petition that is frivolous or patently without merit but found no case law associating mootness with that standard. The court found that while it was well-settled that res judicata, forfeiture or a lack of standing renders a petition frivolous and patently without merit, untimeliness does not.

    The reviewing court found that mootness was akin to untimeliness in that it did not speak to whether a petition raised a constitutional violation or to an inherent element required to file a postconviction petition. The court also found that a petition need not establish that an actual controversy exists. Moreover, mootness, unlike res judicata, did not involve a judgment on the merits. 

    Having determined that mootness does not render a petition frivolous or patently without merit, the reviewing court determined that the trial court erred in treating the defendant’s first petition as an initial postconviction petition. Thus, it followed that his second petition was not successive within the meaning of the Act.

    Moreover, even if mootness could render a petition frivolous and patently without merit, Taylor’s second petition could not be treated as a successive filing, as Taylor had not received his one complete opportunity to show that his constitutional rights were substantially violated. Specifically, the trial court dismissed his first petition after the reviewing court recalled the mandate on direct appeal but before Taylor had the opportunity to withdraw his petition.

    Taylor shows that courts must protect a defendant’s right to a complete opportunity to demonstrate that constitutional violations occurred. Practitioners should be aware, however, that an earlier Second District decision determined that “the mootness doctrine shares with the doctrine of res judicata all of the features that led our supreme court to hold that a trial court could consider res judicata at the first stage of postconviction proceedings.” People v. Angarola, 387 Ill. App. 3d 732, 742 (2009). Thus, the matter of mootness may not be a moot point.

  • March 01, 2022 4:10 PM | Carson Griffis (Administrator)

    By:  Carson R. Griffis*

    In Parker v. Liberty Insurance Underwriters, Inc., 2022 IL App (1st) 200812, the appellate court highlighted the risks that filing successive postjudgment motions, including sanctions motions, may pose to ensuring that an appeal is perfected.

    Jimette Parker and Liberty Insurance Underwriters, Inc., reached an agreement to settle Parker’s lawsuit against Liberty.  The circuit court then dismissed Parker’s action with prejudice, but retained jurisdiction to enforce the settlement’s terms. 

    A few days later, Liberty filed a motion to enforce the agreement claiming that Parker refused to sign some of the documents memorializing their agreement.  In response, Parker moved to vacate the settlement and the dismissal of his action.  The court granted Liberty’s motion to enforce the settlement and rejected Parker’s request to vacate it.  Parker then filed a second motion to vacate the settlement, but withdrew that motion a few weeks later. 

    More than 30 days after the court had denied Parker’s first motion to vacate the settlement, he filed a motion for sanctions under Illinois Supreme Court Rule 137.  The circuit court denied that motion, finding that it lacked jurisdiction.  Three days later, Parker filed a notice of appeal that listed the denials of his first motion to vacate and his sanctions motion as the orders he was appealing.

    The appellate court held that it lacked jurisdiction because Parker’s notice of appeal was untimely.  To begin, the court noted that the dismissal of Parker’s action with prejudice based on the parties’ settlement was a final judgment because it disposed of all of Parker’s claims.  It thus construed the first motion to vacate the settlement as a postjudgment motion.  And once the circuit court denied that motion, Parker had 30 days to either file a notice of appeal or a Rule 137 sanctions motion. 

    Because successive postjudgment motions do not toll the time to file a notice of appeal or a sanctions motion, however, Parker’s decision to file a second motion to vacate the settlement did not stop the clock on his time to appeal.  Parker’s sanctions motion and notice of appeal were thus untimely.

    *Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

  • February 27, 2022 12:24 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court's March Term begins Tuesday, March 15, 2022.  Oral arguments are scheduled for March 15, 16, 17, 22 and 23, 2022.  A total of 13 cases will be heard -- 7 criminal and 6 civil.  The following civil cases are scheduled for argument this Term:

    March 17, 2022

    Prate Roofing Installations LLC v. Liberty Mutual Insurance Corp.

    Midwest Sanitary Service, Inc. v. Sandburg, Phoenix & Von Gontard, P.C.  

    March 22, 2022

    Chicago Title Land Trust Co. v. Village of Bolingbrook

    Holm v. Kodat

    O’Connell v. The County of Cook

    March 23, 2022

    Dawkins v. Fitness International, LLC

    Below is a summary of one of those cases, Dawkins v. Fitness International, LLC.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

    Dawkins v. Fitness International, LLC, No. 127561

    This issue in this appeal is whether the Physical Fitness Facility Medical Emergency Preparedness Act (the “Act”), 210 ILCS 74/1 et seq., or common law imposes a duty on a fitness center to use an automated external defibrillator (“AED”) when it knows that one of its patrons is experiencing a medical emergency.

    The Act requires fitness facilities to have an AED available, retain staff trained in using it, and schedule at least one trained staff member to be present during business hours.  It also states that, so long as a facility has and maintains its AED, “[a] right of action does not exist in connection with the use or non-use of an automated external defibrillator at a facility governed by this Act, except for willful or wanton misconduct.”  210 ILCS 74/45.

    Dollett Dawkins was exercising at a gym owned by Defendant Fitness International LLC (“Fitness”), when she collapsed, stopped breathing, and lost her pulse.  Although there was an AED present and a staff member trained to use it, eight minutes passed before a Fitness employee applied the AED to Dollett.  During that time, other patrons attempted to administer CPR and called for assistance from Fitness staff.  Dollett, who has a heart condition, was suffering ventricular fibrillation, which caused cardiac arrest and, ultimately, permanent brain damage.  Leo Dawkins, Dollett’s husband, sued Fitness on his own behalf and on Dollett’s, alleging claims for both negligence and willful and wanton misconduct and alleging that Fitness should be held liable for its employees’ failure to use the AED despite knowing that she was experiencing a medical emergency.  Fitness moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure, 735 ILCS 5/2-619(a)(9), arguing that it complied with the Act by having an AED and trained staff present, and it could not be held liable for an alleged failure to use the AED.  The trial court granted the motion to dismiss and dismissed all counts of the complaint with prejudice.

    Plaintiff appealed from the dismissal of his willful and wanton counts only. The Illinois Appellate Court reversed.  The court concluded that, in passing the Act, the General Assembly intended fitness facilities to have AEDs available for use during medical emergencies. Because section 45 of the Act explicitly stated that a fitness facility has immunity except for willful and wanton misconduct, the appellate court reasoned that the Act imposed liability for willful or wanton misconduct.  The appellate court rejected Fitness’s argument that the Act only created liability for willful and wanton misuse, as opposed to non-use, of an AED, noting that the immunity provision expressly referenced “non-use” of an AED.  The appellate court also held that, regardless of the Act, Fitness had a common-law duty to use the AED as part of the business invitor-invitee relationship between it and Dollett.  According to the appellate court, that duty required Fitness employees to administer reasonable first aid to Dollett, which could include the use of an AED.  The Act did not clearly abrogate this common-law duty — in fact, it created a private right of action for willful and wanton failures to use an AED.  Finally, the appellate court held that Leo’s complaint alleged willful and wanton conduct, noting that it alleged that Fitness employees knew that Dollett was suffering a medical emergency but failed to use the AED, which violated Fitness’s own policy on AED use.

    In its petition for leave to appeal, Fitness argued that the appellate court erred in imposing on non-medical personnel an affirmative duty to use an AED and construing the Act as creating a private right of action for non-use of an AED.  Fitness argued that, contrary to the appellate court’s interpretation, the Act imposes no affirmative duty to use AEDs.  Fitness also noted that several other states’ courts, interpreting similar statutes, have held that they do not impose an affirmative duty to use an AED.  Some of those decisions also held that there is no common-law duty to use an AED.

    Appellate Court Decision: 2020 IL App (3d) 170702-U.  Holdridge, J., with Carter, J., and O’Brien, J., concurring

  • February 17, 2022 5:30 PM | Carson Griffis (Administrator)

    By:  Linda Sackey

    In Lewis v. Village of Alsip, 23 F. 4th 772 (7th Cir. 2022), the United States Court of Appeals for the Seventh Circuit reminded the public that “[p]eople must learn about their legal obligations.” Their failure to do so is no defense.

    The Village of Alsip has enacted an ordinance that prohibits parking on any primary snow route at any time within 12 hours after a snowfall of one inch or more. Primary snow routes are streets marked with signs designating them as primary snow routes. The ordinance also bans parking on any secondary snow routes at any time within 24 hours after a snowfall of three inches or more. Secondary snow routes are all streets in the village that are not designated primary snow routes.

    During a snowstorm, Shellie Lewis left her car parked on a public street in the village that, as it turned out, was a secondary snow route. She was fined $50 for violating the ordinance. Most people do not enjoy receiving a parking ticket; however, Lewis apparently was so displeased that she filed a lawsuit in federal court under 42 U.S.C. §1983. She claimed that the village violated the Due Process Clause of the Fourteenth Amendment by failing to mount signs on every street to warn drivers when snow requires them to remove their vehicles.

    The district court dismissed Lewis’s complaint, and the Seventh Circuit affirmed its decision. Citing Texaco, Inc. v. Short, 454 U.S. 516, 532 (1982), the court of appeals explained that “[g]enerally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.”

    The Seventh Circuit rejected Lewis’s claim that traffic regulations were a special constitutional matter. The court found numerous decisions holding that traffic laws were not exceptional. For instance, in Cochran v. Illinois State Toll Highway Authority, 828 F.3d 597, 600 (7th Cir. 2016), the Seventh Circuit ruled that “[d]ue process does not require a state to post signage notifying all those entering of its laws and regulations. Rather, the statute or regulation is adequate notice in and of itself as long as it is clear.”

    In short, this opinion rests on the well-known principle that ignorance of the law is no excuse.

  • February 16, 2022 7:07 AM | Carson Griffis (Administrator)

    Hon. Alan Joel Greiman, former circuit court judge and Chief Justice of the Illinois Appellate Court, has passed away at the age of 90.  As a judge, he instituted a celebrated mediation program and other innovations that resulted in speedier resolutions of cases.

    Justice Greiman also served in the Illinois House of Representatives, where he served as Assistant Majority Leader.  During his tenure in the House, he sponsored the Illinois Domestic Violence Act, as well as legislation granting no-fault divorce and the right to public employee collective bargaining, prohibiting the sale of handguns, banning discrimination on the basis of sexual orientation, protecting newsrooms from unreasonable searches, and was the first in the nation to propose a ban on discrimination based on age. He also was an ardent sponsor of the Equal Rights Amendment.

    On behalf of the Appellate Lawyers Association, ALA President Scott Howie issued the following statement: 

    "Justice Greiman was an exemplary member of the appellate court, an exacting questioner at oral argument and fair and thorough in his written opinions. He was also a great friend and supporter of the Appellate Lawyers Association, and we’ll miss him very much. On behalf of the ALA, I extend our deepest condolences to his family and many friends and colleagues."

    Services will be held at 10 a.m. on Thursday, February 17, 2022, Chicago Jewish Funerals, 8851 Skokie Blvd. (at Niles Center Road) Skokie, IL.  Justice Greiman's obituary, which includes details regarding memorial contributions and a livestream of the services, may be found here.

  • January 31, 2022 7:18 PM | Carson Griffis (Administrator)

    The law firm of Cassiday Schade LLP is accepting applications for an associate position in its Appellate Department.  The Department handles all appellate work for the firm’s offices in the Illinois Appellate Court, the Illinois Supreme Court, the United States Court of Appeals for the Seventh Circuit, and the Wisconsin Court of Appeals.

    The associate would work closely with the head of the Appellate Department in drafting appellate briefs and arguing in the reviewing courts.  The associate would also work closely with trial counsel on post-trial motions and appeals.  The individual should have strong research, writing, and oral advocacy skills.  Resumes may be submitted to the head of Cassiday Schade’s Appellate Department, Julie Teuscher, at

  • January 26, 2022 7:27 PM | Carson Griffis (Administrator)

    The Law Department of the City of Chicago is accepting applications for an Assistant Corporation Counsel position in its Appeals Division.  The Division handles all appellate work for the City of Chicago in the Illinois Appellate Court, the Illinois Supreme Court, the United States Court of Appeals for the Seventh Circuit, and the Supreme Court of the United States.

    The Division is comprised of a Deputy Corporation Counsel, a Chief Assistant Corporation Counsel, a Senior Counsel, and approximately eight Assistant Corporation Counsel.  Typically, each case is assigned to a single Assistant Corporation Counsel (or Senior Counsel).  The Deputy and the Chief work on every case.  The Appeals Division works cooperatively with the lower court attorneys and supervisors in drafting the appellate brief and preparing for oral argument. The Appeals Division files upwards of a hundred briefs every year on a variety of topics.

    More details on how to apply for the position may be found here.

  • January 04, 2022 3:55 PM | Carson Griffis (Administrator)

    By:  Kimberly Glasford

    Recently, in Armstead v. National Freight, Inc., 2021 IL 126730, the Illinois Supreme Court reiterated that the distinction between claims and issues is crucial under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

    Following a vehicular collision in Illinois, the plaintiff brought a workers’ compensation claim against his Pennsylvania-based employer in Pennsylvania. The order adjudicating the plaintiff’s claim incorporated an agreement stating that he had sustained only right knee strain, to the exclusion of other injuries.

    The plaintiff then filed a two-count negligence claim against the other driver and his employer in Illinois. The circuit court granted defendants’ “Motion for Partial Summary Judgment or Summary Determination of a Major Issue” and determined that the plaintiff’s judicial admission in the workers’ compensation agreement prohibited him from raising any injury other than right knee strain. The court also found there was no just reason to delay enforcement or appeal under Rule 304(a).

    The plaintiff appealed.  The circuit court, however, subsequently granted his motion to voluntarily dismiss without prejudice the rest of his action as to injuries pertaining to right knee strain. The plaintiff then filed a second notice of appeal. After consolidating the appeals, the appellate court affirmed on different grounds.

    Justice Overstreet, writing for the majority, found that the court lacked jurisdiction to consider the circuit court’s partial summary judgment ruling.

    Rule 304(a) states, in pertinent part, that “[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Conversely, Rule 304(a) does not authorize the review of orders disposing of mere issues within a claim. Armstead, 2021 IL, 126730, ¶ 24.

    The supreme court found that the circuit court’s order granting the plaintiff’s motion for partial summary judgment disposed of an issue that was ancillary to, rather than separate from, his negligence claims. Id. ¶ 27. Specifically, the order resolved the issue of whether the workers’ compensation agreement contained a judicial admission precluding him from asserting injuries to his shoulder and back. Yet, the order did not resolve either negligence claim. Consequently, the circuit court’s Rule 304(a) language had no effect and jurisdiction remained in that court.

    Moreover, because the plaintiff failed to refile the action within one year (735 ILCS 5/13-217 (West 2016)), his action remained dismissed. Accordingly, the supreme court vacated the appellate court’s decision in its entirety and remanded for the circuit court to dismiss the case.

    Chief Justice Anne M. Burke, joined by Justice Neville, concurred in part and dissented in part. She agreed that the plaintiff’s appeal under Rule 304(a) was improper because it merely resolved an issue. The same reasoning, however, precluded the court from addressing the order on the plaintiff’s motion for voluntary dismissal.

    Specifically, Chief Justice Burke observed that while the majority concluded that the plaintiff dismissed “his action,” he had actually attempted to dismiss his “claim” for right knee strain, a claim which did not exist. Even assuming the plaintiff had dismissed the entire action, the appeal was moot because the plaintiff did not attempt to refile. The appropriate remedy would be to vacate the circuit court’s voluntary dismissal order and return the case to the circuit court with the partial summary judgment ruling intact.

    The distinction between issues and claims appears to plague both litigants and courts alike. Tread carefully.
  • December 13, 2021 7:17 PM | Carson Griffis (Administrator)

    By:  Linda Sackey

    In part, the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, authorizes a reduction of a sentence for a prisoner who is serving a sentence for a covered crack-cocaine offense. Under the First Step Act, the prisoner is entitled to ask a judge to treat him as if the Fair Sentencing Act of 2010 had been in force on the date of his original sentence.

    At issue in United States v. Hible, 13 F.4th 647 (7th Cir. 2021), was whether a motion to reconsider a decision under the First Step Act extends the time to file an appeal. Each prisoner in the consolidated cases before the United States Court of Appeals for the Seventh Circuit sought a shorter sentence and filed, within the time allowed for appeal, a motion asking the district court to reconsider an adverse decision. The judges in each case denied that motion, and the prisoner appealed. Each prisoner filed a notice of appeal within 14 days of the decision on the motion to reconsider but more than 14 days after the original decision.

    Observing that the Supreme Court has held repeatedly that motions to reconsider in criminal cases extend the time for appeal, the Seventh Circuit concluded that a motion to reconsider a decision under the First Step Act suspends the decision’s finality and extends the time to appeal. The court’s ruling was of no help to either prisoner in these cases, as their requests for lower sentences remained denied, but it settles the law in this area going forward.

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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