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"The Brief" - The ALA Blog

  • March 16, 2014 7:12 AM | Anonymous member (Administrator)

    Failing to properly preserve an issue before the trial court can result in that issue being waived or forfeited on appeal. With respect to preserving a challenge to a jury instruction, the Illinois Supreme Court has held that a party must make a contemporaneous objection and tender an alternative remedial instruction or the challenge will be forfeited. Mikolajcyzk v. Ford Motor Co., 231 Ill. 2d 516, 557 (2008). However, in an instructive opinion for both appellate and trial practitioners, the Illinois Appellate Court recently held that a party had properly preserved a challenge to a trial court's sua sponte comment during jury instructions when the party "expressed concern" despite not making a formal objection or tendering a remedial instruction.

    In Pister v. Matrix Service Industrial Contractors, Inc., 2013 IL App (4th) 120781, plaintiff, a widow, filed a lawsuit on behalf of her deceased husband's estate against defendant, Matrix Service Industrial Contractors, Inc., pursuant to the doctrine of respondeat superior. Id. ¶ 1. Plaintiff's husband had been killed in an auto accident by an employee for defendant who was driving to work. Id. Plaintiff claimed two theories of liability - that defendant's employee was a "traveling employee" and that the employee was on a "special errand" for defendant when the accident occurred. Id. The trial court granted summary judgment in defendant's favor on plaintiff's "traveling employee" theory of liability but denied defendant's motion for summary judgment regarding plaintiff's "special errand" theory of liability. Id. ¶¶ 9, 12.

    The matter proceeded to a jury trial. Following the close of evidence, the parties tendered their recommended jury instructions. Id. ¶ 31. While reading the jury instructions to the jury, the trial court, sua sponte, commented on the relationship between the special interrogatory and general verdict instructions. Id. ¶ 32. As the jury retired, plaintiff brought the statement to the trial court's attention. However, plaintiff requested that no remedial instruction be given out of concern that doing so would draw too much attention to the error; nonetheless, the trial court tendered the remedial instruction. Id. The jury returned a verdict in defendant's favor. Id. ¶ 34. Following a hearing on plaintiff's posttrial motion, the trial court determined that it erred in making its sua sponte statement and by refusing a proposed jury instruction from plaintiff regarding agency law. Id. However, the trial court concluded that a new trial was not necessary because the evidence overwhelmingly favored defendant and plaintiff was, therefore, not prejudiced. Id.

    Plaintiff appealed and the reviewing court initially rejected plaintiff's first two contentions on appeal - that the trial court committed reversible error by partially granting defendant's summary judgment motion, and by admitting and excluding certain evidence.

    The reviewing court then turned to the erroneous jury instructions. Defendant argued that plaintiff had forfeited its contention regarding the trial court's sua sponte statement because plaintiff "expressed concern" as opposed to objecting and plaintiff failed to tender a remedial instruction. Id. ¶¶ 78-79. The reviewing court rejected defendant's forfeiture argument. In doing so, the court opined that "the purpose of an objection is not only to preserve an issue for appeal, but to bring the potential error to the trial court's attention so that it may be contemporaneously addressed." Id. ¶ 78. By expressing "concern" over the potential error, the court noted, plaintiff brought the issue to the court's attention. Id. Therefore, the court concluded that plaintiff's " 'raising concern' adequately brought the issue to the court's attention and preserved the issue for appeal, even without using some form of the word 'objection.' " Id.

    The reviewing court further held that plaintiff was not required to tender a remedial instruction. The reviewing court concluded that, because plaintiff argued that the trial court should not have issued a remedial instruction to avoid bringing undue attention to the error, "it would have been illogical for [plaintiff] to have tendered a remedial instruction." Id. ¶ 78. Therefore, failing to tender the remedial instruction was "not fatal." Id.

    Thereafter, the reviewing court concluded that the trial court's sua sponte comment constituted error, as the trial court had conceded. Id. ¶ 83. However, reciting the well-known maxim that not all error constitutes reversible error, the reviewing court held that, because the evidence "so overwhelmingly favored [defendant,]" plaintiff was not prejudiced by the trial court's error. Id. ¶¶ 84-85. Further, the record was devoid of any indication that the trial court's error misled the jury. Id. ¶ 85. The reviewing court also rejected plaintiff's other arguments regarding the jury instructions.

    Recommended Citation: Charlie Ingrassia, Pitfalls in Preservation: Is "Raising Concern" Over an Improper Jury Instruction, Without a Formal Objection, Enough to Preserve Appellate Review?, The Brief, (March 16, 2014), http://applawyers-thebrief.blogspot.com/2014/03/pitfalls-in-preservation-is-raising.html.

  • March 11, 2014 7:10 AM | Anonymous member (Administrator)

    Due to its growing popularity, and combined with the ALA's commitment to providing legal educational programs throughout the state, the Association once again presented its annual Supreme Court Civil Litigation Year in Review in multiple locations. The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District; past ALA president and current Chicago Bar Association president J. Timothy Eaton of Taft, Stettinius & Hollister LLP; and past ALA president Michael Reagan of the Law Offices of Michael T. Reagan.

    The panel offered their perspectives and keen insights on rule changes and significant decisions rendered by the Illinois Supreme Court during the 2013 term. Justice Jorgensen began the program by discussing new and amended Supreme Court Rules, including Rule 315 (eff. July 1, 2013), which governs petitions for leave to appeal to the Supreme Court and Rule 138 (eff. Jan. 1, 2014), which governs personal identity that may not be filed in court documents. Thereafter, the panel discussed noteworthy decisions covering a broad range of substantive areas. Topics included personal jurisdiction under a stream of commerce theory (Russell v. SNFA, 2013 IL 113090); disgorgement of attorney fees in a marriage dissolution proceeding and the policy of "leveling the playing field" (In re Marriage of Earlywine, 2013 IL 114779); and how the supreme court would weigh federal authority when reviewing an issue that involved a federal statute (State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836).

    The ALA presented the program on February 20, 2014, in Wheaton and on February 27, 2014, in Chicago. The Supreme Court Civil Litigation Year in Review will also be presented on March 13, 2014, in Decatur as part of the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. The ALA thanks the panel for an informative program, the DuPage County Bar Association for co-sponsoring the Wheaton program, and Neal Gerber & Eisenberg for generously hosting the Chicago program.

    The ALA also presented the Supreme Court Year in Review in Decatur during the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District.  The roundtable luncheon was held on March 13, 2014, at the Decatur Club. In addition to the Supreme Court Year in Review program, the luncheon also featured Carla Bender, Clerk of the Court, who provided valuable updates on the court's e-filing initiatives.

  • March 08, 2014 7:17 AM | Anonymous member (Administrator)

    In Brown v. Fifth Third Bank, 730 F.3d 698 (7th Cir. 2013), Judge Richard Posner, as motions judge, in an opinion not binding on the panel hearing the merits of the case, denied a motion by the defendant, Fifth Third Bank, to dismiss the appeal as untimely. The judge denied the motion even though the appellant filed her notice of appeal 113 days after a clerk’s docket entry reciting the district court’s dismissal of her complaint.

    The docket entry in question was captioned “Notification of Docket Entry” and referred to the court’s separate “Memorandum Opinion and Order” dismissing the complaint with prejudice. Id. at 700. The motion to dismiss the appeal turned on whether the clerk’s docket entry satisfied the requirement under Fed. R. Civ. P. 58 that a district court's judgment be set forth in a separate document. Judge Posner observed that, if it did not, then judgment would be deemed to be entered 150 days after the court’s final decision, pursuant to Fed. R. Civ. P. 58(c)(2)(B). Brown, 730 F.3d at 699.


    Judge Posner further noted that the Administrative Office of the United States Courts had drafted a form, called AO 450, which constitutes the preferred vehicle for complying with the “separate document” requirement of Rule 58. The appendix to the civil rules contains two other forms, Forms 70 and 71, that are similar to and even simpler than AO 450, and would also suffice. Id.


    The judge described, however, the “inexplicable failure” by the clerk’s office in the Northern District of Illinois to use these forms. Id. at 699. That failure has been “richly productive of uncertainty,” notwithstanding that the whole purpose of Rule 58 is to produce clarity. Id. at 699-700. The judge cited to several Seventh Circuit cases, moreover, finding that docket entries similar to the one here satisfied the requirement of a separate document. Id. Other federal courts have not endorsed this view, although Judge Posner said the Third Circuit came close on one occasion. Id. at 700-01.


    In Judge Posner’s opinion, the purpose of the docket entry here was to comply with the requirement under Fed. R. Civ. P. 77(d) to provide notice of the entry of an order or judgment. He opined that that notification should not “do service for a Rule 58 judgment” and that cases so allowing “should be overruled.” Brown, 730 F.3d at 701. As partial justification, he noted that, at least when the judgment denies all relief, as in this case, the separate document must be signed by the court clerk, and the entry here was not signed. Id.


    Because the docket entry violated Rule 58, Judge Posner found that the judgment date was 150 days after the district court’s decision, and the notice of appeal therefore was timely and should proceed to briefing on the merits. Id. He further observed, however, that the merits panel was authorized to revisit the issue and, “if it wants” reject his conclusion that the appeal is within the court’s jurisdiction. Id.



    Recommended Citation: Don R. Sampen, A Clerk’s Docket Entry in Federal Court Does Not Ordinarily Satisfy the “Separate Document” Requirement for Final Judgment, Necessary to Commence Time for Appealhe Lack of a Written Order Does Not Affect FinalityThe Brief, (March 8, 2014), http://applawyers-thebrief.blogspot.com/2014/03/a-clerks-docket-entry-in-federal-court.html.
  • March 05, 2014 8:59 AM | Anonymous member (Administrator)

    On February 19, 2014, at the Union League Club in Chicago, ALA President Brad Elward presided over a seminar and luncheon on two appellate specialty topics: judicial review of administrative decisions and worker compensation arbitrations.

    The two-hour morning session was devoted to administrative appeals. Carl Draper of the Springfield law firm of Feldman, Wasser, Draper & Cox addressed the topic from the plaintiff's perspective. He supplemented the comprehensive written materials, which provide an excellent framework for understanding the administrative review process, with a "who, what, when, where" description of the issues that practitioners must consider in protecting the rights of those challenging administrative decisions in the circuit and appellate courts. Brett Legner, Civil Appeals Supervisor for the Appellate Division of the Illinois Attorney General's office, presented the defense perspective. Brett explained that, in seeking to uphold agency decisions, he hopes to defend the rulings without having to reach the merits, given the deferential standards of review that are applicable. Brett also addressed common law administrative review, which proceeds outside the Administrative Review Law, and the process for obtaining stays pending review. Justice Robert Gordon of the Illinois Appellate Court, First District, provided insights from the bench. He gave a candid assessment of the shortcomings on the part of attorneys that Justice Gordon has observed in his 18 years as a circuit judge or appellate justice. Justice Gordon also described the type of information that the court scours the record to find. For example, deference on credibility determinations may not be a foregone conclusion without some explanation by the decision maker below.

    After the the morning session, attendees enjoyed a luncheon honoring the justices of the Illinois Appellate Court, Workers Compensation Division. Following lunch, President Elward moderated a panel featuring the appellate justices assigned to the Workers Compensation Division – Justice Thomas E. Hoffman (First District), Justice Donald C. Hudson (Second District), Justice William E. Holdridge (Third District), and Justice Thomas M. Harris (Fourth District). (Justice Bruce D. Steward of the Fifth District was unable to participate.) Providing sound advice that is applicable to any type of case, the panelists engaged in a lively discussion about presenting and defending workers compensation appeals. The justices commented on good brief writing and the art of responding to questions during oral argument.

    The seminar concluded with President Elward speaking on judicial reviews from the Workers' Compensation Commission to the circuit court. Elward pointed out common pitfalls and offered practical advice on how to handle such cases on appeal.

    The ALA thanks the Justices of the Illinois Appellate Court, Workers Compensation Division, and the other speakers for providing their unique insights during the informative seminar.

  • March 03, 2014 6:56 AM | Anonymous member (Administrator)

    On February 25, 2014, the Appellate Lawyers Association and the Chicago Bar Association co-sponsored a public forum featuring the candidates for the Illinois Appellate Court, First District. The program was moderated by ALA Past President, Tim Eaton, who currently serves as the President of the CBA. Each candidate presented his or her credentials to the audience, and then participated in a moderated question and answer session. Candidates answered questions on an array of topics, including judicial elections vs. merit selection, the use of Rule 23 orders as persuasive authority, and the justices who inspire each candidate’s judicial philosophy.

    Three Appellate Court vacancies will appear on the ballot in the March 18, 2014, Primary Election.

                Candidates to fill the vacancy of Hon. Joseph Gordon

                Hon. Shelly A. Harris

                Hon. Freddrenna M. Lyle

                Hon. Susan Kennedy Sullivan

                Candidates to fill the vacancy of Hon. Michael Murphy

                Mr. David Ellis

                Candidates to fill the vacancy of Hon. John O. Steele

                Hon. Sharon Oden Johnson

                Hon. John B. Simon

    All of the candidates accepted our invitation to participate. However, Judge Freddrenna Lyle fell ill on the morning of the event and did not attend.

    We are grateful to the CBA for hosting this program and recording the event for rebroadcast. You can view the recording here or link to it through our website. It will be available until the primary election.

    This year’s Candidates’ Forum continues the ALA’s tradition of providing this public service to our membership and the public at large. We recognize that publicity regarding judicial elections often pales in comparison to that given contests for federal or statewide offices. However, our goal in sponsoring such programs is to help draw attention to judicial elections and thereby facilitate voters’ ability to make informed decisions regarding those elected to these important public offices. The CBA shares our commitment to this goal, and we look forward to continuing our partnership with the CBA.

  • February 25, 2014 6:13 AM | Anonymous member (Administrator)

    The plaintiff in Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901, filed suit against BNSF under the Federal Employer’s Liability Act. Id. ¶ 1. BNSF in turn filed a third-party complaint for contribution and contractual indemnity. Id. The case proceeded to a jury trial, at the conclusion of which the jury awarded plaintiff damages in excess of $2.6 million. Id. The jury also returned a verdict in favor of the third-party defendant. Id. BNSF appealed, but the Illinois Appellate Court did not reach the merits. Instead, the reviewing court concluded that it lacked jurisdiction because BNSF failed to file its notice of appeal within 30 days of the oral ruling denying BNSF’s posttrial motions. As illustrated below, this case serves as an important reminder that, unless the trial court expressly requires a written order or a local circuit court rule requires a prevailing party to submit a draft order, the judgment is entered "at the time it is entered of record" (Id. ¶ 25), and the time period to file a notice of appeal will begin.

    Before addressing the jurisdictional question, the reviewing court noted that another reviewing court panel denied an earlier motion to dismiss for lack of jurisdiction shortly after the appeal was filed. Id. ¶ 4. BNSF claimed that this ruling should prevent revisiting the jurisdictional issue. The court disagreed, stating that it has a continuing obligation to verify its jurisdiction. Id. ¶ 5. The court observed that the posttrial procedural history was complex and required a more in-depth consideration of the record than was feasible before the record on appeal was filed with the court. Id.

    The reviewing court then turned to the jurisdictional question. BNSF filed a timely posttrial motion following the jury verdict. Id. ¶ 7. The motion raised 46 issues in total, 45 of which would have resulted in a new trial or modified judgment. Id. The last issue, however, dealt with a setoff which, if allowed, would have partially satisfied the judgment. Id. ¶ 8.

    On April 18, 2012, after conducting a hearing, the trial court orally denied the posttrial motion as to all issues except the setoff claim, which it took under advisement. Id. ¶ 9. No written order reflecting denial of the posttrial motion was entered. Id. On May 31, 2012, more than 30 days later, BNSF filed a motion for leave to cite supplemental authority relative to one of the 45 issues that was rejected in the oral ruling issued on April 18, 2012. Id. ¶ 10. Counsel advised the trial court at the hearing on that motion that he wanted to submit the new authority before the trial court entered a final and appealable order. Id. ¶ 11. The trial court reminded BNSF counsel it denied the posttrial motion on April 18, 2012 and that the only remaining issue was the setoff question, which was still under advisement. Id. ¶ 11.

    Thereafter, the trial court conducted a hearing on June 6, 2012, where it distinguished BNSF’s new authority, reiterated its denial of that motion, and denied BNSF’s request for a setoff. Id. ¶ 14. The parties could not agree on the language of the written order. Id. ¶¶ 16-17. BNSF wanted the order to state that it was final and appealable regarding the jury verdict. Id. ¶ 18. The trial court disagreed and it omitted any reference to the jury verdict. Id. BNSF filed its notice of appeal within 30 days of the entry of the June 6 order. Id. ¶ 19.

    The reviewing court found that the notice of appeal was untimely because BNSF did not file that notice within 30 days of the trial court's April 18, 2012, denial of the posttrial motion, and the unresolved setoff question did not otherwise toll the time to appeal. Id. ¶ 20.

    The reviewing court noted that, because a setoff only operates to satisfy a judgment, it does not qualify as a posttrial motion under section 2-1202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1202 (West 2012)), which is limited to motions that will impact the judgment as opposed to satisfying it. Williams, 2013 IL App (1st) 121901, ¶¶ 21-22. The time to appeal therefore began to run on April 18, when the trial court orally denied the part of BNSF’s posttrial motion, which, if granted, would have resulted in a new trial or modified judgment. Id. ¶ 22. The court also rejected BNSF’s contention that, because the trial court considered the supplemental authority that related to one of the issues in the motion that was directed at the judgment at the June 6 hearing, its section 2-1202 motion was not fully resolved before entry of the written order. Id. ¶ 24. The court observed that BNSF’s motion to cite the supplemental authority was filed more than 30 days after denial of the posttrial motion, meaning that the trial court no longer had jurisdiction over the issues that were raised in that motion. Id. ¶ 24.

    Finally, the reviewing court dispensed with the notion that the lack of a written order denying the posttrial motion on April 18 did not render that ruling any less final because Supreme Court Rule 272 (eff. Nov. 1, 1990) expressly provides that a judgment is final when a written order is entered only if the trial court expressly requires a written order. Williams, 2013 IL App (1st) 121901, ¶ 25. But if the trial court did not require a written order, the judgment is final when it is entered. Id.

    The record established that the posttrial motion was denied on April 18, 2012, and that only the setoff question was taken under advisement. There was also no reference to a written order, and the trial court did not instruct the parties to prepare one. As such, the judgment became final on the date the posttrial motion was denied, and BNSF’s notice of appeal was due within 30 days of the April 18, 2012, ruling. Id. ¶¶ 26-28.


    Recommended Citation: Rosa M. Tumialán, The Lack of a Written Order Does Not Affect Finality, The Brief, (February 25, 2014),http://applawyers-thebrief.blogspot.com/2014/02/the-lack-of-written-order-does-not.html.

  • February 23, 2014 9:41 AM | Anonymous member (Administrator)

    On February 25, 2014, the ALA and the Chicago Bar Association will host a forum featuring the candidates seeking election to the Illinois Appellate Court, First District, in the March 2014 Primary Election. Each candidate will be allotted time to discuss his or her qualifications and will participate in a moderated question and answer session. All candidates have been invited; acceptances pending.

    The event will be held from 12 p.m. to 1:30 p.m., and is free and open to the public. Click here for more information and to RSVP.

  • February 18, 2014 6:41 PM | Anonymous member (Administrator)

    Over the past two decades, the “mailbox rule” has enjoyed expanded applicability and precedential support in Illinois courts, easing the burden on the bar, their staffs and vehicles, and the environment that sacrifices its trees so we can file papers. The mailbox rule stems from Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009), which permits the mailing of documents for filing in Illinois reviewing courts on the day they are due, instead of having to physically transport the documents to one of the six reviewing courts spread widely throughout the state, as long as the document is accompanied with the specified proof of mailing--proof that is not difficult to muster. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing” is short enough to quote in full:

    "Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court."
    Decisions of those very reviewing courts have expanded the scope of the rule to include many filings in the trial court, including notices of appeal and post-judgment motions. In this author's opinion, applying the mailbox rule to post-judgment motions required some loose interpretation of the rule, which expressly applies to papers filed in the reviewing courts and notices of appeal filed in the trial court, but does not refer to post-judgment motions.

    Moreover, almost all papers filed in the trial and reviewing courts in Illinois can be mailed for filing on the date they are due; even if the paper is received and filed after the deadline, proper practice renders those papers timely on general principles not expressly tied to Rule 373. The only exceptions were documents initiating an action in the trial court, such as the original complaint, or a petition for relief from a judgment after the trial court lost jurisdiction of the matter, usually after 30 days.

    Now, pursuant to Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230, there is another exception. This new exception limits the application of the mailbox rule to certain rare filings in the appellate court. Under Nizamuddin, papers filed in the appellate court in appeals from orders dealing with requests for temporary restraining orders must arrive at the appellate court on the date they are due, and cannot benefit from the mailbox rule, even though the text of Rule 373 would seem to expressly apply to those filings. The text of Rule 373 refers to filing "records, briefs or other papers required to be filed within a specified time." (Emphasis added.)

    Unlike most civil actions, papers filed in the reviewing court in appeals related to requests for temporary restraining orders have their own special requirements in another Supreme Court Rule and cannot be served by mail, but rather must be served by personal delivery or facsimile transmission. Rule 307(d) (eff. Feb. 26, 2010), entitled "Appeals of Temporary Restraining Orders; Time; Memoranda" provides that these appeals shall be by petition filed in the "appellate court" within two days" of the order being appealed. Id. The Rule further provides:
    "The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought." (Emphasis added.) Id.
    The respondent has two days from the "filing of the petition" to file and serve (personally or by facsimile) its response. Replies are not allowed without court permission. There is to be no oral argument. Id. And the appellate court "shall consider and decide the petition within five days after the respondent's time to respond has expired." But the appellate court "may, if it deems it appropriate, order a different schedule," presumably including a different deadline for the respondent’s response or the court’s decision. Id.

    Thus, the tension between Rules 307(d) and 373 was at issue in Nizamuddin. The trial court entered a temporary restraining order on a Friday. Nizamuddin, 2013 IL App (2d) 131230,  ¶ 1. The petition required by rule 307(d) was mailed to the appellate court on the following Monday. The petition was served by mail on that Monday, too. The appellate court and the respondent received the petition on the next day, Tuesday. Id. ¶ 4.

    The reviewing court noted that the petitioner violated Rule 307 in various ways, including serving the petition by mail, when personal service or facsimile transmission was required. Id. ¶ 13. While the Nizamuddin court dismissed the appeal because the petitioner filed its notice of appeal in the trial court rather than the appellate court (id. ¶ 5), the takeaway is the reviewng court’s refusal to apply the mailbox rule. The court conceded that rule 307(d) does not "point blank" specify that the notice of appeal must be filed in the appellate court as opposed to the trial court, relying on its own interpretations of Rule 307(d). Nizamuddin, 2013 IL App (2d) 131230,  ¶ 6. Indeed, the reviewing court devoted the bulk of its discussion to the issue of the mailbox rule, three pages in the eight-page opinion, in a discussion that boiled down to common sense–appeals related to requests for temporary restraining orders are of a "highly expedited nature," given the two-day deadline and the requirement of personal or facsimile service. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7.

    "Given the highly expedited nature" of appeals under Rule 307(d), "the 'mailbox rule' [in Rule] 373 does not apply," the reviewing court concluded. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7. The court reasoned that "applying the mailbox rule" to these appeals "would lead to the practical evisceration of" the applicable two-day deadlines, "an absurd result," according to the reviewing court. Id. ¶ 9. In declining to apply the mailbox rule, the reviewing court noted the "tight deadlines and extraordinary service requirements" in appeals under Rule 307(d) distinguish them from most other civil appeals. Nizamuddin, 2013 IL App (2d) 131230, ¶ 10. The court also wrote that applying the mailbox rule would improperly subject these appeals "to the vagaries of mail delivery." Id. ¶ 11.

    Ultimately, the court "read the specialized filing deadlines of Rule 307(d) to control over the general mailbox rule of Rule 373." Nizamuddin, 2013 IL App (2d) 131230, ¶ 11. The court held that the more general provisions of Rule 373 must yield to the more specific rules in ruleR307(d). Id.

    Common sense prevailed. The petitioner failed to serve its petition properly. But the text of Rule 373 seemed to permit the petitioner to mail its petition on the date it was due. The appellate court rarely dismisses an appeal for improper service. Thus, Nizamuddin is a remarkable case that could rouse the supreme court into action, either by granting leave to appeal or amending one or both of the applicable rules.

    Recommended Citation: Lawrence A. Stein, Illinois Appellate Court: A New Exception to the Mailbox RuleThe Brief, (February 18, 2014), http://applawyers-thebrief.blogspot.com/2014/02/illinois-appellate-court-new-exception.html.
  • February 14, 2014 4:24 PM | Anonymous member (Administrator)

    The Appellate Lawyers Association (ALA) is presenting a Seminar and Luncheon from 10:00 AM to 2:45 PM on February 19, 2014 at the Union League Club.

    The morning session from 10:00 AM to 12:00 Noon will cover Judicial Review of Administrative Decisions from Plaintiff, Defense, and Judicial Perspectives. The Presenters will be Carl Draper, Vice-Chair, ISBA Administrative Law Section; Brett Legner, Appellate Division, Illinois Attorney General’s Office; and Justice Robert Gordon, First District Appellate Court.

    The Luncheon from 12:00 Noon to 12:45 will honor the Appellate Justices present, including Justice Gordon and the five Justices assigned to review Workers Compensation Arbitrations: Justice Thomas E. Hoffman, First District; Justice Donald C. Hudson, Second District; Presiding Judge William E. Holdridge, Third District; Justice Thomas M. Harris, Fourth District; and Justice Bruce D. Stewart, Fifth District Appellate Court.

    The afternoon session from 12:45 to 2:45 PM will cover Judicial Review of Workers Compensation Arbitrations. The Presenters will include a Panel of the Justices assigned to hear these appeals. ALA President Brad Elward will also present on Perfecting Judicial Reviews to the Circuit Court and Common Pitfalls.

    4.00 hours of Continuing Legal Education (CLE) credit are available for the Seminar. The full agenda can be viewed at www.applawyers.org, where you can also register online. The cost is for Lunch and Full Day Seminar (4 MCLE Credit hours) is $90 for ALA Members, $110 for Non-Members, and $60 for Public Sector. The cost for Lunch and 1 Session of Seminar (2 MCLE Credit Hours) is $55 for ALA Public Sector Members, $75 for Non-Members, and $40 for Public Sector.

  • February 08, 2014 4:54 PM | Anonymous member (Administrator)

    In Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, the Illinois Appellate Court held that a party waives any objection to personal jurisdiction if the party has filed a responsive pleading before filing a motion to quash service, even if that pleading had no legal effect because it was filed after the entry of a default judgment. The holding in Kmiecik is important for appellate practitioners because it demonstrates that even a null pleading can result in a party waiving an opportunity to challenge a court's personal jurisdiction, including on appeal.

    Jozef Kmiecik was sued in a mortgage foreclosure action. After Kmiecik initially failed to respond to the complaint, Aurora filed a motion for default judgment. Id. ¶¶ 4-5. On the day the motion was to be heard, Kmiecik appeared before the court pro se and sought an extension of time to respond because he was trying to modify his loan. Id. ¶ 7. The court granted Kmiecik several extensions and ultimately gave Kmiecik a final deadline to respond, with the motion for default being set for a hearing one week after that deadline. Id. ¶ 8. Kmiecik did not appear for the hearing or file any response in advance of the hearing. As a result, the trial court entered a default judgment against him. Id. ¶ 9. Later that same day, Kmiecik filed an untimely general appearance and verified answer, admitting that he was the mortgagor. Id. Nothing further occurred until the property was sold and the trial court entered an order confirming the sale. Id. ¶ 10.

    Nearly 30 days after the trial court entered the order approving the sale, Kmiecik, now represented by counsel, filed a motion to vacate the default judgment and quash service under section 2-1301 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1301 (West 2010)), arguing that service was improper and, therefore, the trial court did not have personal jurisdiction over him. Kmiecik, 2013 IL App (1st) 121700, ¶ 11. The appellate court held that under section 2-301(a-5) of the Code (735 ILCS 5/2-1301(a-5) (West 2010)), Kmiecik waived his objections when he filed his verified answer, even though the answer was untimely. Kmiecik, 2013 IL App (1st) 121700, ¶ 18. Importantly, the trial court specified that Kmiecik did not object to personal jurisdiction in his answer. Id.

    Kmiecik argued that because the untimely answer was being used as a basis for establishing jurisdiction, it must also be grounds for vacating the default judgment. Id. ¶ 16. The appellate court disagreed, holding that the timeliness of his answer and the subsequent default had “no bearing” on whether he submitted to the court’s jurisdiction. Rather, he simply filed a responsive pleading before he filed a motion to quash service under section 2-1301(a), which results in waiver of any personal jurisdiction objections. Id. ¶ 24. Thus, even if Kmiecik had appeared at the hearing on the default and filed his answer at that time, avoiding the default judgment, he still would have submitted to the court’s jurisdiction because he filed a response before objecting to personal jurisdiction. Id.

    Recommended Citation: Gretchen Harris Sperry, The Cart Before the Horse: Personal Jurisdiction Exists When a Pleading is Filed Before Objecting to Jurisdiction, Even if That Pleading was NullThe Brief (February 8, 2014), http://applawyers-thebrief.blogspot.com/2014/02/personal-jurisdiction-exists-when.html.

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