On Monday, September 22, 2014, the ALA will kick off the bar year with a luncheon at the Union League Club in Chicago featuring University of Chicago Law Professor Geoffrey Stone. Attendees will have the unique opportunity to hear Professor Stone discuss his recent service on President Obama's Review Group concerning the National Security Agency, data collection, and privacy. 

In a case that could easily compete with Jarndyce v. Jarndyce for longevity and complexity, the Seventh Circuit held that the U.S. District Court for the Northern District of Illinois erred by failing to adhere to an earlier ruling in the same case by the Second Circuit. If that sounds unusual, welcome to the long-running Parmalat litigation. As Judge Posner noted in his preface to a summary of the case’s procedural history, “The litigation is highly complex; we’ll simplify ruthlessly.” Parmalat Capital Finance Ltd. v. Grant Thornton Int’l, 756 F.3d 549, 550 (7th Cir. 2014) (decided June 25, 2014).

Parmalat, a food company, entered the Italian bankruptcy system. Parmalat’s “extraordinary commissioner” (which, Judge Posner noted, was the “Italian equivalent of a bankruptcy trustee”) filed two lawsuits. First, he filed a proceeding in the bankruptcy court of the Southern District of New York to enjoin litigation against Parmalat with respect to property involved in the Italian bankruptcy proceedings. Second, he filed a tort suit in the Circuit Court of Cook County, Illinois, against Grant Thornton, an accounting firm that, the commissioner alleged, had performed fraudulent audits of Parmalat. 

Grant Thornton removed the Cook County lawsuit to the U.S. District Court for the Northern District of Illinois under 28 U.S.C. § 1334(b). That provision, Judge Posner explained, “confers original though not exclusive federal jurisdiction” over civil suits that are related to bankruptcy cases, and the commissioner’s Cook County lawsuit related to the bankruptcy proceeding. Once removed to the U.S. District Court for the Northern District of Illinois, the commissioner’s suit against Grant Thornton was then transferred by the Judicial Panel on Multidistrict Litigation to the U.S. District Court for the Southern District of New York.

Once the Grant Thornton lawsuit was transferred to the Southern District of New York, the commissioner asked the federal district court judge there to abstain from deciding the case pursuant to 28 U.S.C. § 1334(c)(2). Section 1334(c)(2) provides:

“Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.”

The commissioner argued that the tort suit against Grant Thornton could be “timely adjudicated” in an Illinois state court and met section 1334(c)(2)’s other requirements for federal abstention. 

The federal judge in New York disagreed and awarded summary judgment to Grant Thornton on Illinois tort law grounds. (The substantive basis for that ruling is beyond the scope of this contribution to The Brief, but it is discussed in my law partner John J. Barber’s excellent Law & Accounting column in the August 6th edition of the Chicago Daily Law Bulletin.) On appeal, the U.S. Court of Appeals for the Second Circuit held that the federal district court in the Southern District of New York should have abstained pursuant to 28 U.S.C. § 1334(c)(2), remanded the case, and directed that the case be transferred to the U.S. District Court for the Northern District of Illinois so that it “can be remanded to Illinois state court.” 

Once the case returned to the U.S. District Court for the Northern District of Illinois, however, it took another detour. Despite the Second Circuit’s holding that the tort claims should be decided by an Illinois state court pursuant to section 1334(c)(2), the federal judge in the Northern District of Illinois to whom the case was transferred decided not to remand the case to the Circuit Court of Cook County. “These cases have remained unresolved for nearly ten years, and it is unlikely that a remand back to state court will result in more timely dispositions of the cases,” the Illinois federal district court judge reasoned. Finding that the earlier award of summary judgment to Grant Thornton “should be respected” under the law of the case doctrine, the federal district court judge in Illinois awarded summary judgment to Grant Thornton.

On appeal from that ruling, the Seventh Circuit noted that 28 U.S.C. § 1334(d) expressly provides that “any decision to abstain . . . is not reviewable by appeal or otherwise by the court of appeals . . . or by the Supreme Court of the United States.” Writing for the Seventh Circuit panel, Judge Posner explained: “The statute doesn’t say in so many words that an order to abstain is not reviewable by another district court, but the idea that a district judge has appellate authority denied to the U.S. Supreme Court can’t be taken seriously.” For good measure, Judge Posner added that “[f]ederal district judges have appellate authority over decisions by magistrate judges, bankruptcy judges, and certain administrative law judges (administrative law judges in social security disability cases, for example), but not over decisions by other district judges, let alone by courts of appeals.” 

Moreover, Judge Posner explained, “[n]othing has happened since the Second Circuit’s decision to justify a district court’s reopening and reversing it.” Grant Thornton argued that a recent Seventh Circuit case changed the legal landscape as to its entitlement to summary judgment on the merits, but Judge Posner rejected that argument, since that recent Seventh Circuit case had been brought to the Second Circuit’s attention in a petition for rehearing, which the Second Circuit had denied. That recent Seventh Circuit decision also, in Judge Posner’s estimation, was “not a novel decision.”

Thus, the Seventh Circuit reversed the district court’s “unauthorized . . . exercise of de facto appellate authority” and ordered it to remand the case to the Circuit Court of Cook County. Had the district court done so immediately upon receiving the case from the Second Circuit, Judge Posner noted, “the litigation might well be at an end rather than on the brim of restarting.” And so the Parmalat saga continues!

Recommended Citation: John M. Fitzgerald, Parmalat Capital Finance Ltd. v. Grant Thornton Int’l: Legendarily Complex Litigation Nears Its Conclusion, The Brief, (September 11, 2014), http://applawyers-thebrief.blogspot.com/2014/09/parmalat-capital-finance-ltd-v-grant.html.

In a recent New York Times article, First District Appellate Court Justice Terrence J. Lavin praised the Jackie Robinson West Little League team on their inspiration to the community. To read the article, click here. 

In Central States, Southeast and Southwest Areas Pension Fund v. US Foods, Inc., No. 13-1566 (7th Cir. July 30, 2014), the United States Court of Appeals for the Seventh Circuit held that it lacked jurisdiction over an interlocutory appeal seeking an order that would direct certain action by an arbitrator in a pending arbitration under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA). The case involved arbitration resulting from an employer withdrawing from a multiemployer pension fund under the MPPAA and the Seventh Circuit’s holding provides helpful insight regarding when a party may bring an interlocutory appeal under the Federal Arbitration Act (FAA) from an order denying a petition to order arbitration to proceed.

The Central States Pension Fund (Fund) assessed liability against US Foods in 2008 and 2009 because US Foods withdrew in part from an underfunded multiemployer pension plan. Pursuant to the MPPAA, US Foods could request arbitration within a certain time period, “though unlike normal arbitration[,] it is neither contractual nor consensual.” US Foods made that request within the statutory limit for the 2009 assessment, but did not make a timely request for arbitration with respect to the 2008 assessment. Meanwhile, the Fund sued US Foods to collect the 2008 assessment. US Foods requested that the district court order the arbitrator in the pending arbitration regarding the 2009 assessment to consider the amount owed for 2008 as well, but the district court refused.

US Foods filed an interlocutory appeal, invoking section 16(a)(1)(b) of the FAA, which authorizes an interlocutory appeal from an order “denying a petition under section 4 of this title to order arbitration to proceed.” The Seventh Circuit dismissed the appeal for lack of jurisdiction. In doing so, the reviewing court first explained that section 16(a)(1)(b) of the FAA pertains only to petitions under section 4 of the FAA. Section 4 of the FAA, in turn, authorizes an aggrieved party to petition a district court for an order “directing that . . . arbitration proceed in the manner provided for” in a written agreement for arbitration. US Foods and the Fund, however, had no agreement. Although the reviewing court suggested that perhaps arbitration proceedings under the MPPAA should be treated the same as arbitrations pursuant to a contract, it noted that no court of appeals had addressed that issue or otherwise decided whether the FAA authorizes an interlocutory appeal in a proceeding under the MPPAA. Therefore, the Seventh Circuit refused to do so as well.

Nonetheless, the Seventh Circuit concluded that, regardless whether the FAA authorizes an interlocutory appeal in a proceeding under the MPPAA, jurisdiction in this case would still be lacking. The reviewing court noted that US Foods, in effect, wanted the 2008 assessment “added to the agenda of the arbitrator who is already serving” in the arbitration regarding the 2009 assessment. That was not a request for an order directing arbitration within the meaning of section 4 of the FAA. Nor is a court’s order refusing to interfere with the conduct of an arbitration an order denying a petition to order arbitration to proceed, for purposes of section 16(a)(1)(b). Citing Blue Cross Blue Shield of Massachusetts, Inc. v. BCS Insurance Co., 671 F.3d 635 (7th Cir. 2011), the reviewing court noted that “a party’s request to tell an arbitrator how to act in a pending proceeding is not a request to compel arbitration, no matter what caption the litigant puts on its motion.” The reviewing court further emphasized that “judges must not intervene in pending arbitration to direct arbitrators to resolve an issue one way rather than another. . . . Review comes at the beginning or the end, but not in the middle. Until the arbitration was over, the matter was “in the hands of arbitrator.” (quoting Blue Cross Blue Shield, 671 F.3d at 638).

Recommended Citation: Myriam Z. Kasper, Seventh Circuit Discusses When Party May Bring Interlocutory Appeal From Order Denying a Petition to Order Arbitration to Proceed, The Brief, (August 29, 2014), http://applawyers-thebrief.blogspot.com/2014/08/seventh-circuit-discusses-when-party.html.

Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, involved a challenge to a request for discovery under Illinois Supreme Court Rule 224 (eff. May 30, 2008), which provides a mechanism to identify potential defendants before suit is filed. Here, the plaintiff sought an order directing Comcast Cable Communications, LLC (Comcast) to provide the identity and last known address of the defendant, subscriber Doe, a/k/a “Fuboy,” because the plaintiff wished to pursue a defamation claim against him for statements he anonymously posted about plaintiff on an internet message board.

In his defamation suit, the plaintiff named the defendant as “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown,” and that same day issued a subpoena to Comcast requesting Fuboy’s legal identity. Comcast notified Fuboy, and Fuboy hired an attorney who sought to quash the subpoena. At a hearing five months later, and with both Fuboy’s and plaintiff’s attorneys present, the trial court directed the parties that the subpoena and motion to quash would be better addressed within the Rule 224 context, finding Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, instructive. According to the Hadley court, Stone sets forth the standards for the application of Rule 224 to a defamation case and the plaintiff’s pleading obligations before an individual’s identity is revealed pre-suit. The trial court gave the plaintiff leave to file an amended complaint and a Rule 224 petition. Complying with the trial court’s instructions, the plaintiff filed an amended two-count complaint. Count I was the defamation claim against Fuboy, pleaded in accordance with Stone’s requirements, and Count II was the Rule 224 request seeking Fuboy’s legal identity and naming Comcast as the respondent.

Based, in part, on an evaluation of the sufficiency of the defamation count (Count I) under Stone, the trial court granted the Rule 224 request (Count II) and directed Comcast to release Fuboy’s identity and address. Fuboy then filed a motion to reconsider, which had been brought, in part, “to solidify the basis for [appeal].” After a discussion regarding the immediate appealability of standard Rule 224 orders and the impact of the still-pending defamation claim, the trial court stated that it believed the proper vehicle for appeal was Illinois Supreme Court Rule 303 (eff. June 4, 2008). However, “to ease the parties’ concerns,” the trial court stated that it would enter a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) as an alternative jurisdictional basis for appeal.

Fuboy appealed the trial court’s order requiring Comcast to provide the information, and at the outset the plaintiff claimed that Fuboy lacked standing to challenge the Rule 224 petition because the subpoena was issued to Comcast. The reviewing court disagreed with the plaintiff’s argument, citing Stone’s holding that a Rule 224 petitioner seeking to discover an individual’s identity before suit has the burden to provide allegations in the proposed defamation case sufficient to overcome a section 2-615 motion to dismiss. Because this standard was created to protect the rights of an unidentified defendant, the reviewing court reasoned, the defendant here had an interest in the proceedings even though he was not required to participate, and therefore, had standing to challenge the Rule 224 request.

After addressing the merits of the defamation claim, the court in Hadley delved into a discussion regarding the interplay between the trial court’s disposition of the plaintiff’s Rule 224 request and appellate jurisdiction under Rules 301 and 304(a). Addressing the dissent’s position that the appellate court lacked jurisdiction to consider the trial court’s order directing Comcast to provide Fuboy’s identity because it was a “nonfinal discovery order,” the reviewing court initially discussed Rule 224 and its counterpart, section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2012)), known as the “respondents in discovery” statute. Section 2-402 could not have been applicable in this case, the majority determined, because that section was “meant to discover the identity of defendants other than the defendant named in the underlying complaint,” and is used after at least one defendant has been named in an existing complaint and the plaintiff seeks the identities of other defendants. Rule 224, by contrast, is the mechanism for discovering the identity of the same initial defendant, as the plaintiff sought to do here with the pseudonym of Fuboy. Thus, the majority determined, the trial court entered a Rule 224 order, not a section 2-402 order. Interestingly, the dissent later disclaimed any notion that it believed that the trial court’s order was a section 2-402 order, stating: “The majority suggests that I must believe that section 402 is the procedural posture under which the trial court entered its order. *** Such is not the case. It is clear to me that the trial court was simply looking for a jurisdictional hook for defendant to have an immediate appeal.” 

The majority noted that Rule 224 orders “have been appealed as final judgments (presumably under Rule 301).” Indeed, as the court in Hadley pointed out, Rule 224 itself states that petitions brought under that rule are “independent [a]ctions.” The “irregularities” presented by the plaintiff’s Rule 224 request in this case, however, made a Rule 304(a) finding necessary because the request was (1) not filed prior to the plaintiff’s suit, and (2) filed as part of a two-count complaint, rather than an independent action, based on specific directives from the trial court following the plaintiff’s issuance of a subpoena to Comcast, “thus removing Rule 301 as a means by which to establish” appellate jurisdiction. The reviewing court noted that, “[a]lthough Rule 224 likely envisioned a one-count action,” the plaintiff’s Rule 224 request was part of a two-count complaint and presented what the court referred to as a “conundrum” when the Rule 224 was entered with the defamation count still pending. Therefore, “although a Rule 224 order is ordinarily a final and appealable order under Rule 301,” a Rule 304(a) finding was necessary in view of the remaining pending claim. Because the trial court had entered a Rule 304(a) finding, the reviewing court determined that appellate jurisdiction existed.

Apparently responding to the dissent’s position that Rule 304(a) jurisdiction did not exist in this case because there was just reason to delay enforcement or appeal (i.e., to avoid piecemeal appeals, prolonged litigation, and expense), the majority - in a footnote - gave a nod to its recent holding in AT&T v. Lyons & Pinner Electric Co., 2014 IL App (2d) 130577. In that case, the Appellate Court found that a Rule 304(a) finding had been improvidently entered where the trial court failed to consider the “Geier factors” (Geier v. Hamer Enterprises, 226 Ill. App. 3d 372 (1992)). However, the majority summarily distinguished AT&T on the grounds that the Hadley trial court’s apparent motivation to “get the case before the appellate court” was based on mootness considerations, which was one of the Geier factors. Specifically, when the trial court stated: “[t]here must be some avenue by which the defendant can seek relief without disclosure from a higher court than this one,” it had considered that the loss of anonymity could not be undone, and thus, that the issue would become moot if the case proceeded against a named defendant.

Recommended Citation: Katherine A. Grosh, Second District Appellate Court Tackles Jurisdiction and Standing Questions, The Brief, (August 21, 2014), http://applawyers-thebrief.blogspot.com/2014/08/second-district-appellate-court-tackles.html.

Orders remanding a case to state court based on a lack of subject-matter jurisdiction are generally "not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d). An exception exists, though, when the order contains a separate, appealable ruling that happens to be within the same document as the remand order. Unfortunately for the defendant railroad company in Lindner v. Union Pacific Railroad Co., No. 13-1422 (7th Cir. Aug. 11, 2014), the remand order contained no such separate or appealable ruling to save appellate jurisdiction.

In Lindner, a Union Pacific train derailed while on an overpass near Glenview, Illinois, which caused the bridge to collapse. At that time, Illinois residents Burton and Zorine Lindner happened to be driving under the bridge and suffered fatal injuries as a result of the bridge collapse. The Lindners' son filed a wrongful-death action in state court alleging negligence on the part of Union Pacific, a Delaware corporation with its principal place of business in Nebraska.

Union Pacific removed the case to federal court based on diversity jurisdiction, and the case proceeded with discovery. Thereafter Lindner sought leave to amend his complaint to add negligence claims against two Union Pacific workers, who were both Illinois residents, and asked the district court to remand the case back to state court. The district court granted leave to amend, and because the amendment destroyed diversity, the court remanded to case to state court.

Union Pacific appealed, and the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction. Union Pacific recognized that § 1447(d) prevented the Seventh Circuit from reviewing the remand portion, but it argued instead that the court should review only the contemporaneous decision to allow Lindner to amend the complaint and to join the two Illinois defendants. 

The Seventh Circuit rejected Union Pacific's argument because there was no appealable order separate from the order to remand. The Seventh Circuit explained that its jurisdiction extended to "final orders" (28 U.S.C. § 1291), and because an order allowing a plaintiff to amend a complaint does not terminate the dispute or even grant or deny relief on a claim, it is not a final order subject to review. The Seventh Circuit also determined that the district court's decision was not a "collateral order," that is, a nonfinal order that would be effectively unreviewable if it could not be appealed immediately. The Seventh Circuit also rejected Union Pacific's alternative request for a writ of mandamus compelling the district court to deny Lindner's motion to amend the complaint. With no final order to review and no mandamus relief necessary or appropriate, the Seventh Circuit dismissed the appeal.

Recommended Citation: Stacey Mandell, Seventh Circuit: No Appellate Jurisdiction to Consider Nonfinal Orders Within a District Court's Order to Remand to State Court (August 14, 2014), http://applawyers-thebrief.blogspot.com/2014/08/seventh-circuit-no-appellate.html.

In Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, the Illinois Appellate Court, First District, reiterated that Supreme Court Rule 307(a)(1) confers jurisdiction on a reviewing court over interlocutory orders that stay trial court proceedings. 

In Cholipski, the plaintiffs, a husband and wife, filed a complaint against an engineering company, an electrical contractor, and others alleging that the husband suffered an injury while on a construction site that resulted from the defendants' negligence. More than three years after the plaintiffs brought suit, the defendants sought leave to bring a third-party complaint against the husband's pain management physician. The defendants sought contribution, alleging that the doctor mistreated the husband, which caused him to become permanently disabled. 

The trial court initially denied the defendants' request for leave, and the defendants moved to reconsider. While that motion was pending, the trial court set a trial date on the underlying negligence action. Thereafter, the trial court granted the defendants' motion to reconsider and permitted them to file a third-party contribution complaint. However, the trial court granted the plaintiffs' request for severance and a separate trial, and stayed the defendants' contribution complaint until resolution of the plaintiffs' negligence action. The defendants appealed the portion of the trial court's order staying their contribution complaint, and the reviewing court issued an order staying the plaintiffs' negligence trial.  

Before addressing the merits, the reviewing court initially rejected the plaintiffs' jurisdictional challenge to the defendants' interlocutory appeal. The court began its analysis by noting that Rule 307(a) provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26, 2010).

The reviewing court opined that, while Rule 307(a) does not specifically use the word "stay," the supreme court has held that the rule provides jurisdiction for appellate courts to review stays of arbitration and administrative orders. Relying on such precedent, "the appellate court has repeatedly held that Rule 307 permits the interlocutory appeal of a stay of court proceedings" because a stay is injunctive in nature, and therefore, fits squarely within Rule 307(a).

After concluding that Rule 307(a) conferred jurisdiction, the reviewing court held that the trial court did not abuse its discretion when it stayed the defendants' contribution complaint. The court also vacated its prior order staying the plaintiffs' negligence trial.  


Recommended Citation: Charlie Ingrassia, Appellate Court Reiterates That Order Staying Trial Court Proceedings is Injunctive and Appealable Pursuant to Rule 307, (August 2, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/08/appellate-court-reiterates-that-order.html.

In U.S. v. Manning, 14-1479 (7th Cir. June 9, 2014), the United States Court of Appeals for the Seventh Circuit addressed the government's motion to dismiss an appeal due to an appeal-waiver provision contained in a criminal defendant's plea agreement. The government filed its motion before the parties filed their merits briefs. Judge Richard A. Posner, sitting as the motions judge, declined to address the government's motion. Instead, he ordered the merits panel to consider the government's motion, and in doing so, opined that "[t]he government’s filing of a separate motion, in advance of full briefing, to dismiss a criminal appeal as frivolous should be, though not forbidden, discouraged."

In declining to rule on the motion, Judge Posner noted that Federal Rule of Appellate Procedure 27 authorizes the government to file a motion to dismiss a criminal appeal in advance of full briefing, "which makes perfectly good sense" when the basis of a motion is lack of jurisdiction. However, an appeal waiver does not necessarily deprive a reviewing court of jurisdiction because the defendant may be able to put forth a non-frivolous argument, such as the waiver not applying to a specific issue or that the defendant did not enter into the plea agreement knowingly and intelligently, among other reasons.

Judge Posner remarked that "the only benefit that I can imagine" to filing a motion to dismiss on grounds of appeal waiver was to accelerate the evaluation of the merits of the appeal. However, an appellant's counsel on appeal - who often times did not serve as trial counsel - is likely to seek and obtain an extension to respond to the government's motion. In such situations, a motion to dismiss before filing the merits briefs is unlikely to accelerate disposition of the appeal.

In closing, Judge Posner noted that the defendant's counsel suggested a "sensible compromise," i.e., that the government file a notice of intent to enforce an appeal waiver. This would give appellate counsel an early warning that the government seeks to enforce the waiver and "will have the same accelerating effect as a motion to dismiss, while requiring less work for both sides and preserving the briefing schedule."

Recommended Citation: Charlie Ingrassia, Judge Posner: In Criminal Appeal, Filing Motion to Dismiss Before Full Briefing "Discouraged", (July 26, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/07/judge-posner-in-criminal-appeal-filing.html.

Scepurek v. Board of Trustees of the Northbrook Firefighters' Pension Fund, 2014 IL App (1st) 131066, involved a judicial review of a pension fund's finding that a firefighter was not entitled to a duty disability pension. While the substantive aspect of the case focused on the Administrative Review Law (735 ILCS 5/3-101 (West 2008)), the Illinois Appellate Court, First District, began its opinion by providing a helpful reminder that parties cannot supplement the record on appeal by attaching documents to a brief or including them in an appendix.

In Scepurek, the pension board, on April 10, 2012, denied the firefighter's request for a duty disability pension. Thereafter, the firefighter sought judicial review of that administrative finding. On March 8, 2013, the trial court affirmed the pension board's finding, with the written order providing that the trial court affirmed "for the reasons stated on the record."

On appeal, the firefighter did not include a transcript or a summary of the trial court's stated reasons as part of the appellate record. The pension board attached a copy of the trial court's remarks as an appendix to its response brief. However, the reviewing court cautioned that parties cannot supplement the record in such a manner and noted that neither party followed court rules.

Nonetheless, the reviewing court cited Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006), which allows parties to "supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court." The court concluded that, although the firefighter had already filed his opening brief when the pension board attached the transcript of the March 8, 2013 hearing to its responsive brief's appendix, the firefighter did not suffer unfair prejudice because he was represented at the hearing. Thus, the reviewing court amended the record on appeal pursuant to Rule 329 to include that transcript. 

Recommended Citation: Charlie Ingrassia, Appellate Court Cautions That Parties Cannot Supplement Record on Appeal by Attaching Documents to Briefs or Including Them in Appendix,  (July 19, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/07/appellate-court-cautions-that-parties.html.

In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.C.C., 2014 IL App (1st) 121111, the Illinois Appellate Court, First District, confronted the question of whether a party appealing a summary judgment order pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), could also, in that same appeal, challenge prior interlocutory orders even though claims against other parties remained pending. The appellate court concluded that the interlocutory orders were appealable with the Rule 304(a) finding so long as each interlocutory order was a procedural step in the progression leading to the summary judgment order. 

The case stemmed from an unpaid loan that two companies and their owner had guaranteed. The lender, Chase, sued all three, later substituting the owner’s estate, who died during the litigation. In multiple interlocutory orders, the trial court struck the estate’s affirmative defenses, dismissed the estate’s counterclaims, and ordered it to pay discovery costs to Chase.

Ultimately, the court granted summary judgment in favor of Chase and against the estate on the one count pending against it. Two other counts remained against other defendants, but the summary judgment order included a finding under Illinois Supreme Court Rule 304(a). A few months later, Chase voluntarily dismissed the remaining counts against the other parties with prejudice, and the trial court entered a final order stating that all pending claims between all parties had been resolved. 

The estate timely filed a notice of appeal following the entry of the summary judgment order containing the Rule 304(a) finding, and in that appeal, appealed all the preceding interlocutory orders. It did not, however, file a second or amended notice of appeal upon the entry of the final judgment. As a result, Chase argued that the reviewing court only had jurisdiction over the summary judgment order, which contained a Rule 304(a) finding, and not the prior interlocutory orders, which could be appealed only after the trial court entered a final judgment. 

In addressing the jurisdictional challenge, the reviewing court noted that Chase did not dispute that the summary judgment order with a Rule 304(a) finding was a final order as to the estate, and further, only claims against other defendants had remained. For that reason, the court concluded that it had jurisdiction over the interlocutory orders relating to the estate. East-West Logistics, 2014 IL App (1st) 121111, ¶¶ 25-26 (citing Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 538 (1999) (noting that an appeal from a final judgment draws into issue all prior interlocutory orders which constituted a procedural step in the progression leading to the entry of the final judgment from which an appeal has been taken). Further, citing Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App.3d 912, 920 (2000), the court held that the orders dismissing the estate’s affirmative defenses and counterclaims, as well as the judgment order awarding discovery costs against the estate, were steps in the progression to the trial court granting summary judgment. Therefore, the reviewing court had jurisdiction to review not only the summary judgment order, but the prior orders as well.

Recommended Citation: Charles E. Harper, Illinois Appellate Court Clarifies Jurisdiction Over Prior Interlocutory Orders in 304(a) Appeals, The Brief, (July 13, 2014), http://applawyers-thebrief.blogspot.com/2014/07/illinois-appellate-court-clarifies.html.