For decades, defendants in civil actions faced a dilemma if they wished to appear in a case for the first time after judgment to contest the court’s prior personal jurisdiction over them--for want of proper service of process on them--to seek to vacate the judgment, to submit to the jurisdiction of the court, and to defend on the merits. The dilemma was that such an appearance and submission of the defendant to the jurisdiction of the court could "serve to validate retroactively a judgment [that was] void when entered." J.C. Penney Co., Inc. v. West, 114 Ill. App. 3d 644, 646 (1983) (finding against retroactivity but recognizing the existence of conflicting decisions). The alternative was to first seek to vacate the judgment only, and not to immediately submit to the jurisdiction of the court, and not seek to immediately defend on the merits.

This dilemma was made acute by the reality that seeking only to vacate the judgment for improper service was unattractive for practical reasons: the court is more likely to vacate the prior judgment if the defendant submits to its jurisdiction. Seeking to vacate the judgment for improper service, without also submitting to the court's jurisdiction, might seem overly technical to the court, reducing the likelihood of success of a request only to vacate the judgment.

In BAC Home Loans Services, LP v. Mitchell, 2014 IL 116311, our supreme court has eliminated that persistent dilemma. BAC involved a mortgage foreclosure. The return of the summons indicated service on the defendant, Kim E. Mitchell, resulting from substitute service on Michelle Foreman by leaving the summons with Foreman at Mitchell’s residence. Mitchell did not respond to the summons within 30 days, and in 2010 BAC obtained a judgment of foreclosure and sale from the court based on the substitute service. Also in 2010, a judicial sale occurred pursuant to the judgment of foreclosure and sale. The court confirmed the sale in 2011. In a mortgage foreclosure action, an order confirming the sale is the final judgment of the court.

Within 30 days after the trial court entered the final order confirming the sale, Mitchell filed an appearance and a motion to vacate the order confirming the sale. The motion was withdrawn and refiled as a motion to quash, and a petition for relief from, the order confirming the sale. BAC responded to the motion as re-filed, alleging that substitute service on Foreman at the residence was proper and that Foreman was Mitchell’s daughter. Mitchell replied, under oath, that she had no daughters, only a son, and did not know anyone named Michelle Foreman. Mitchell’s motion was denied, and the appellate court affirmed, holding that Mitchell’s actions in the trial court "worked prospectively and retroactively" to validate the orders of the court entered before Mitchell first appeared and moved to vacate the order confirming the sale.


The supreme court reversed, holding that Mitchell’s actions did not retroactively validate the orders entered prior to Mitchell’s appearance, overruling the decisions from the appellate court permitting retroactive validation of orders entered without personal jurisdiction. In doing so, the court reaffirmed "the longstanding rule that 'a party who submits to the court’s jurisdiction does so only prospectively and the appearance does not retroactively validate orders entered prior to that date.' " BAC Home Loans Services, 2014 IL 116311, ¶ 43 (quoting In re Marriage of Verduna, 126 Ill. 2d 542, 547 (1989)). As a result, the supreme court held that Mitchell had submitted to the trial court's jurisdiction and waived any objection to personal jurisdiction, prospectively only. The court vacated as void all orders entered before Mitchell submitted to the court's jurisdiction and remanded for further proceedings, where Mitchell will have the opportunity to defend the merits of the lawsuit.


Recommended Citation: Lawrence A. Stein, No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final Judgment, The Brief, (May 16, 2014), http://applawyers-thebrief.blogspot.com/2014/05/no-risk-of-retroactively-validating.html.

The United States Court of Appeals for the Seventh Circuit has published an updated edition of its Practitioner's Handbook for Appeals. The May 2014 edition can be found here.

On Friday, June 13, 2014, the ALA will gather at the Union League Club in Chicago for the Installation Luncheon of Steven F. Pflaum as the Association's Forty-Seventh President. Justice Michael B. Hyman of the Illinois Appellate Court, First District, will administer the oath of office. 

The Association’s Nominating Committee will also present the following slate of Officers and Directors for election at the meeting:

Officers (2014-2015)
Vice-President: Michael A. Scodro
Secretary: Joanne R. Driscoll
Treasurer: Evan Siegel 

Directors (2014-2016) 
Director (1st Dist.): Matthew D. Elster
Director (1st Dist.): John M. Fitzgerald
Director (3rd Dist.): Natalie D. Thompson
Director (1st Dist.): E. King Poor

Click here for information on how to register for the event. 

ALA Secretary and former Illinois Solicitor General Mike Scodro recently appeared in a panel discussion on "Chicago Tonight" to discuss the United States Supreme Court's recent opinion in Town of Greece v. Galloway (slip opinion). Video of the discussion can be found here. 

How does one decide whether a case is “exceptional”? More to the point, should a reviewing court defer to a trial court’s determination that a particular case was “exceptional”? Those questions lie at the heart of the U.S. Supreme Court’s recent unanimous opinion in Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. ___ (April 29, 2014) (slip opinion). Recognizing that a trial court may be in a superior position to determine whether the facts and circumstances of a particular case merit its designation as “exceptional” – and thus justify an award of attorney fees pursuant to section 285 of the Patent Act – the Court concluded that such decisions should be reviewed under an abuse-of-discretion standard. In reaching its determination, the Court provided a helpful overview of the varying standards of review before federal courts of review. 

Two companies, Highmark and Allcare, were embroiled in patent litigation. Highmark won summary judgment, and its victory was affirmed on appeal. Highmark then moved for its attorney fees in the district court under section 285 of the Patent Act, which authorizes fee awards to prevailing parties in “exceptional cases.” See 35 U.S.C. §285. The district court awarded fees to Highmark. The Federal Circuit then affirmed the district court’s fee award in part and reversed it in part. The Federal Circuit derived the applicable legal standard from Brooks Furniture Mfg., Inc. v. Dutailier Int’l., Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005), which held that a case is “exceptional” for purposes of section 285 if: (i) a party has engaged in “material inappropriate conduct,” or (ii) the case was “brought in subjective bad faith” and also was “objectively baseless.” In Highmark, the Federal Circuit applied a de novo standard of review to the district court’s determination that the case was “objectively baseless.” 

The Supreme Court disagreed. The Court noted that, in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. ___ (April 29, 2014), it rejected the Brooks Furniture test “as unduly rigid and inconsistent with the text of §285.” In place of the Brooks Furniture test, the Court in Octane Fitness held that whether a case is “exceptional” depends upon the totality of the circumstances and the district court’s discretion. 

Consistent with its contemporaneous holding in Octane Fitness, the Court in Highmark held that such decisions should be “reviewed on appeal for abuse of discretion.” Quoting a case that interpreted a similar statutory fee-shift provision, the Court noted that the district court “ ‘is better positioned’ to decide whether a case is exceptional, because it lives with the case over a prolonged period of time” (internal citation omitted). The issue of whether a case is “exceptional” is “not susceptible to ‘useful generalization’ of the sort that de novo review provides, and ‘likely to profit from the experience that an abuse-of-discretion rule will permit to develop’ ” (citation omitted). 

In a footnote, the Court added an important qualifier: “The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error.” The Court also noted that, while “questions of law may in some cases be relevant to the §285 inquiry, that inquiry generally is, at heart, ‘rooted in factual determinations’ ” (citation omitted). Accordingly, the abuse-of-discretion standard was appropriate and governed all components of the inquiry.

Recommended Citation: John M. Fitzgerald and Katherine M. O’Brien, U.S. Supreme Court Sets Deferential Standard of Review for Attorney Fee Awards in Patent Cases, The Brief, (May 7, 2014), http://applawyers-thebrief.blogspot.com/2014/05/us-supreme-court-sets-deferential.html.

In AT&T v. Lyons & Pinner Electric Company, Inc., 2014 IL App (2d) 130577, the Illinois Appellate Court, Second District, tackled a question rarely analyzed by an appellate court: in a case involving a concededly final order that disposed of fewer than all claims, whether the trial court abused its discretion in entering a Rule 304(a) finding without determining that there existed “no just reason for delay of the appeal.” As every appellate practitioner is aware, Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) provides that, if 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 claims if the trial court makes an explicit written finding that no just reason exists for delaying either enforcement or appeal. However, appellate practitioners are equally aware that “Rule 304(a) does not allow for a trial court to confer appellate jurisdiction merely by using the Rule 304(a) language that ‘there is no just reason for delaying enforcement or appeal.’ ” AT&T, 2014 IL App (2d) 130577, ¶ 19 (quoting In re Estate of Stark, 374 Ill. App. 3d 516, 522 (2007)).

A trial court’s decision to grant Rule 304(a) relief is reviewed under an abuse-of-discretion standard. AT&T, 2014 IL App (2d) 130577, ¶ 24 (citing Lozman v. Putnam, 328 Ill. App. 3d 761, 771 (2002)). In AT&T, the reviewing court found that the trial court abused its discretion when it found the dismissal of the defendant/third-party plaintiff Lyons and Pinner Electric Company's (Lyons) contribution claim both final and appealable under Rule 304(a). AT&T’s original claim against Lyons alleged that Lyons was negligent in performing its excavation work when they struck and damaged underground telephone utility facilities owned and operated by AT&T. Lyons filed a two-count third-party complaint against USIC Locating Services, Inc. (USIC), which AT&T had hired to locate and mark the underground facilities before Lyons’s excavation work began. Essentially, Lyons alleged that USIC was negligent in performing its locating services for AT&T, which proximately caused AT&T’s damages. Count I of the third-party complaint against USIC was for contribution for the damages claimed by AT&T, and Count II sought damages for Lyons’s own losses resulting from USIC’s negligence, including for downtime.

The trial court granted USIC’s section 2-615 motion to dismiss Count I of the third-party complaint (contribution) with prejudice, but not Count II (negligence). The trial court entered a Rule 304(a) finding over the objection of Lyons. In urging the court to make the Rule 304(a) finding, USIC argued in its motion that the contribution claim and the negligence claim were separate bases for recovery that would turn on different evidence. In response, Lyons argued that a Rule 304(a) finding was inappropriate under the factors set forth in Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372 (1992).

In Geier, the Illinois Appellate Court, First District, held that in determining whether any just reason for delaying an appeal existed, a court must consider the following factors: “ (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the [trial] court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made [appealable]; [and] (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.” Id. at 383. The Geier court noted the United States Supreme Court’s decisions, which emphasized a “pragmatic approach focusing on severability and efficient judicial administration”: “Where the dismissed claims ‘can be decided independently of each other,’ that is, they are not ‘so inherently inseparable from, or closely related to’ the remaining claims, then the trial court does not abuse its discretion in certifying that there exists no just reason for delay of the appeal.” Id. at 385 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)).

In reviewing Geier, the AT&T court also noted that, where significant factual overlap existed between the decided and the retained claims, an appeal must be deferred until the retained claims are resolved because that they were not separate claims. AT&T, 2014 IL App (2d) 130577, ¶ 23 (citing Lozman, 328 Ill. App. 3d at 771).  Calling it a “darn close question,” the trial court in AT&T disagreed with Lyons, reasoning that the dismissal of Lyons’s contribution claim turned on “a purely legal question” involving the application of the Moorman doctrine.

On appeal, Lyons argued, in the alternative to various merits-based arguments, that the trial court abused its discretion in finding the dismissal of the contribution claim final and appealable under Rule 304(a). Declining to reach the merits of the appeal, the reviewing court dismissed the appeal for lack of jurisdiction on the grounds that the trial court entered the Rule 304(a) finding “without regard for whether there was any just reason for delay of the appeal” and solely to “advance the substantive issues” to the appellate court, thereby improperly circumventing the procedure for certifying questions for interlocutory appeal under Rule 308. Id. ¶ 16. The court initially outlined the two-part test used by courts in determining appellate jurisdiction under Rule 304(a) or its “substantially similar” federal counterpart, Rule 54(b): (1) whether the order is “final” and (2) whether there is any just reason for delaying the appeal. Id. ¶ 20 (citing Stark, 374 Ill. App. 3d at 522-23).

The parties did not dispute the finality of the trial court’s dismissal of the contribution claim with prejudice. AT&T, 2014 IL App (2d) 130577, ¶ 21. With regard to the second part of the two-part test, whether there was any just reason for delaying the appeal, the court in AT&T noted that there was no indication that the trial court considered the Geier factors (although it concededly need not expressly articulate its consideration of those factors), and that the trial court’s comments that the dismissal of Lyons’s contribution claim turned on “a purely legal question” indicated that it intended to invoke Rule 308, not 304(a). Id. at ¶¶ 25, 27-28. However, none of the procedures for certifying a question for appellate review under Rule 308 were followed.

A party seeking appellate review under Rule 308 must first file an application for leave to appeal within 14 days after the latter of (i) the entry of the order in the trial court, or (ii) the making of the prescribed statement by the trial court. That application must be accompanied by an original supporting record containing the order appealed from and other parts of the trial court record necessary for the determination of the application; and must also “contain a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court; a statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation.” Id. (citing Ill. S. Ct. R. 308(c)). The court in AT&T cautioned, however, that “Rule 308 is not intended to be a mechanism for expedited review of an order that merely applies the law to the facts of a particular case,” and does not permit an appellate court to review the propriety of the order entered by the trial court. AT&T, 2014 IL App (2d) 130577, ¶ 31. Rather, the appellate court is “limited to answering the specific question certified by the trial court.” Id. After reciting these and other requirements for a Rule 308 appeal, the court expressed no opinion as to whether a properly presented certified question under Rule 308 would be appropriate in that case.

In addition to being a good refresher on Rule 308, the AT&T opinion is instructive because it suggests that a trial court’s Rule 304(a) finding is itself appealable. Although the court in AT&T “express[ed] no opinion as to whether the Geier factors weigh in favor of an immediate appeal under Rule 304(a),” (id. ¶ 32) the case stands for the proposition that dismissal for lack of jurisdiction is appropriate where a Rule 304(a) finding was improperly entered.

Recommended Citation: Katherine A. Grosh, Mere Inclusion of Rule 304(a) Language Does Not Necessarily Confer Jurisdiction in the Appellate Court, The Brief, (April 29, 2014), http://applawyers-thebrief.blogspot.com/2014/04/mere-inclusion-of-rule-304a-language.html.

On March 26, 2014, the Appellate Lawyers Association hosted a special roundtable luncheon honoring the late Justice Patrick J. Quinn, who passed away earlier this year. As in years past, the event was very well attended, with more than 75 ALA members and guests present. Seventeen appellate court justices attended, including Past ALA President and Illinois Supreme Court Justice Mary Jane Theis. During lunch, the justices shared their unique insight on current issues in appellate law and practice with the attendees.

After lunch, Justice Theis delivered heartfelt remarks in remembrance of Justice Quinn, who was a friend and supporter of the ALA. Justice Theis regarded Justice Quinn as a great legal thinker and scholar who was just coming into his own. He loved to think about important ideas and share those ideas with others through passionate—and often provocative—conversation, as well as through teaching. He was a devoted member of the judiciary whose time came too soon.

The ALA thanks all of the justices for attending this year's luncheon, and we are particularly grateful to Justice Theis for sharing her thoughts and memories of Justice Quinn.

In Williams v. Illinois, 737 F.3d 473 (7th Cir. 2013), the United States Court of Appeals for the Seventh Circuit held that Fed. R. Civ. P. 6(d), which extends the time to act when that period runs from the date of service of a notice, does not extend the deadline for motions for reconsideration under Rule 59(e).

Williams filed suit under section 1983 (42 U.S.C. § 1983) and state law against more than a hundred defendants. After the case pended for sixteen months without service on any defendant, the district court dismissed the case for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

Twenty-nine days later, Williams moved to reinstate the case, arguing that he had made diligent attempts to serve the defendants. Because the twenty-eight day deadline to move for reconsideration under Rule 59(e) had passed, the district court construed the motion under Fed. R. Civ. P. 60(b), and denied it because Williams had not demonstrated any of the specific grounds justifying relief under that Rule.

Williams appealed, arguing that the district court erroneously evaluated his motion for reconsideration under Rule 60(b). The Seventh Circuit first reiterated the “bright-line rule” that any motion for reconsideration filed after the twenty-eight day deadline must be construed as a motion to vacate under Rule 60(b). The Seventh Circuit then rejected Williams’ argument that under Rule 6(d) he had three extra days to seek reconsideration because he received the dismissal by mail. The court explained that Rule 6(d) “enlarges the filing time only when the period for acting runs from the service of a notice, not when the time begins after the entry of judgment,” as it does under Rule 59(e). Thus, the court held that “Rule 6(d) *** does not extend the deadline for Rule 59(e) motions.” With this holding, the Seventh Circuit “join[ed] every other circuit that has ruled on this precise issue.” The court therefore concluded that the district court had properly reviewed the motion for reconsideration under Rule 60(b), and then held the denial of that motion was not an abuse of discretion.

Recommended Citation: Myriam Z. Kasper, Seventh Circuit: Fed. R. Civ. P. 6(d) Does Not Extend the Deadline for Filing Motions Under Fed. R. Civ. P. 59(e), The Brief, (April 19, 2014), http://applawyers-thebrief.blogspot.com/2014/04/seventh-circuit-fed-r-civ-p-6d-does-not.html.

Section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)) provides relief from final orders and judgments more than 30 days after the trial court enters such an order. In In re Commitment of DeSilvestro, 2013 IL App (3d) 120563, the Illinois Appellate Court clarified that section 2-1401 provides relief only from final judgments and orders, and the statutory provision could not be used to dismiss a complaint or petition.

In DeSilvestro, the respondent, in 2004, negotiated a guilty plea to four counts of aggravated criminal sexual assault in exchange for four concurrent sentences of seven years' imprisonment. In 2009, the respondent was released on mandatory supervised release (MSR). Later that year, the State obtained a warrant for the respondent's arrest after he allegedly violated terms of his MSR. In 2010, with the respondent back in custody, the State filed a petition to detain him pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West 2010)). Following a probable cause hearing, the trial court entered an order finding probable cause for the Department of Human Services to detain the respondent.  

In 2011, nearly a year later, the respondent filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)), claiming that the State lacked personal jurisdiction over him as a result of having failed to properly serve him with process of the commitment proceedings. Four months later, and while his section 2-619 motion to dismiss was still pending, the respondent filed an additional motion to dismiss, claiming that the State lacked subject matter jurisdiction. In July 2011, the trial court denied both motions; and in December 2011, it denied the respondent's motion to reconsider.

In March 2012, the respondent filed a “motion to dismiss pursuant to section 2- 1401(f)” of the Code, which reiterated many of the allegations contained in his motion to dismiss for lack of subject matter jurisdiction. In June 2012, the trial court denied the respondent's 2-1401 motion. The respondent appealed, claiming that the trial court erred in denying that motion.

The Illinois Appellate Court, Third District, dismissed the respondent's appeal for lack of jurisdiction. The reviewing court quoted the statutory language provided in section 2-1401 and concluded that the provision provided relief from final judgments and orders. The court concluded, "[w]e can find no authority to support [the] respondent’s contention that section 2-1401 provides a procedural mechanism to dismiss a petition or a complaint."

The reviewing court, relying on People v. Vincent, 226 Ill. 2d 1, 7 (2007), further emphasized that a petition seeking relief under section 2-1401 must be filed in the same proceeding, even though the petition is not a continuation of the prior proceeding. In this case, the court emphasized, a final order had not been entered because a detention order was not a final order. Rather, the respondent's section 2-1401 motion attacked the sentencing order entered in his prior criminal case, which was a different proceeding. The court emphasized that "the [r]espondent cannot use a section 2-1401 petition filed in this case to seek relief from a final order in another case." Finally, the reviewing court noted that the denial of a motion to dismiss was not a final order, and labeling a motion to dismiss as a section 2-1401 motion "did not convert the motion to a section 2-1401 petition."

Justice Carter specially concurred, noting that this appeal should have been dismissed pursuant to Illinois Supreme Court Rule 304(b) (eff. Feb. 26, 2010) and EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 13, where the state's high court held that the denial of an improperly filed section 2-1401 petition was not appealable under Rule 304(b).

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or Petition, The Brief, (April 16, 2014), http://applawyers-thebrief.blogspot.com/2014/04/illinois-appellate-court-section-2-1401.html.

On April 1, 2014, at The Centre in Elgin, the ALA hosted a roundtable luncheon honoring the justices of the Second District Appellate Court. ALA Past President Bob Black welcomed the guests and thanked the justices, who were all seated at separate tables to encourage interaction with the attorneys.

Following lunch, Stacey Mandell presented welcoming remarks. She took a moment to reflect on the passing of ALA member Greg Slovacek, remembering his involvement and his service to the ALA, including chairing the Third District Pro Bono Committee for several years. On a lighter note, she read a corny-but-heartfelt poem to Justice Hutchinson, who was celebrating her birthday. She then introduced Presiding Justice Michael J. Burke to begin the program.

Presiding Justice Burke introduced the justices, each of whom identified their law clerks in attendance. Justice Kathryn E. Zenoff introduced her law clerks, but also highlighted the retirement of Gail Moreland, a former law clerk, and invited everyone to the reception following the program.

Thereafter, Presiding Justice Burke moderated a panel discussion of the cases that had been reviewed and decided by the Illinois Supreme Court in the past year and which had originated in the Second District. The justices presented the facts, issues, and what the appellate court had held; if there was a dissenting or specially concurring opinion, then that particular justice would provide insight into why he or she had written separately.

Some of the cases discussed included Schultz v. Performance Lighting, Inc.; People v. Hommerson; American Access Casualty Co. v. Reyes; Wells Fargo Bank, N.A. v. McCluskey; People v. Bailey; In re Marriage of Earlywine; VC&M, Ltd. v. Andrews; People v. Cardona; People v. Kennebrew; Julie Q. v. Department of Family Services; Toftoy v. Rosenwinkel; EMC Mortgage Corp. v. Kemp; and People v. Martinez.

The justices also explained what the Illinois Supreme Court had decided and whether and how it differed from what the appellate panel had held. After a pause, the justices realized that their decisions were not always affirmed, which brought about a good laugh from everyone, as well as the justices pointing their fingers at each other. The justices also reflected on what they learned from the supreme court's review of the decision, as well as what the practitioners should take from the case. The justices presented a mix of civil cases and criminal cases, which engaged attorneys who practice primarily civil appeals and those who practice criminal appellate law. There were a few questions, and the justices took them on after each case discussion.

The ALA thanks the Justices of the Second District Appellate Court, who presented an excellent program, with a good mix of camaraderie, appellate practice, and legal education.