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.

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 Null, The Brief (February 8, 2014), http://applawyers-thebrief.blogspot.com/2014/02/personal-jurisdiction-exists-when.html.

An important aspect of appellate advocacy is providing trial counsel with proactive advice. Doing so can make a litigation team more effective and, ultimately, more successful. On January 30, 2014, the Association sponsored a brown bag luncheon at Baker & McKenzie LLP in Chicago, which featured a distinguished panel of experienced appellate practitioners sharing their insights on how appellate lawyers can provide advice to trial attorneys.

Michael A. Pollard, past Association president and partner at Baker & McKenzie LLP, began the panel discussion by offering an oversight on how appellate practitioners can advise trial attorneys during the course of litigation. Pollard emphasized that appellate practitioners were in a unique position to offer "immediate proactive advice" and should strive to provide trial counsel with flexible options. Pollard encouraged appellate practitioners to think of themselves as an "appellate resource" that could be a valuable asset to a litigation team.

Thereafter, the panel covered a broad range of substantive topics about which trial attorneys were likely to seek counsel. ALA Treasurer Joanne R. Driscoll of Forde Law Offices LLP, discussed evidentiary issues. Driscoll emphasized that, when a party seeks to introduce evidence which the trial court excludes, the party must make an offer of proof to preserve that evidence. If, however, a party seeks to exclude testimonial evidence that is allowed, the party should object and move to strike that testimony as soon as possible. Driscoll further discussed Rule 304(a) (eff. Feb. 26, 2010). Driscoll noted that, in an action involving multiple parties or claims, a final judgment as to one party or claim is not immediately appealable absent a Rule 304(a) finding.

Association past president Karen Kies DeGrand of Donohue Brown Mathewson & Smyth LLC focused on jury instructions. DeGrand advised the audience to urge trial counsel to consider a client's big-picture interests when asking for a specific instruction, cautioning "be careful what you ask for." DeGrand emphasized the importance of reminding trial counsel to create a clear record during a jury instructions conference and to specifically refer to each instruction by name. DeGrand also discussed various issues related to post trial motions. Pollard addressed appeal bonds and stays, and discussed the significant distinctions between federal law and state law.

The ALA thanks Baker & McKenzie for its generous hospitality in hosting the brown bag luncheon and the panel members for their thoughtful comments.

On January 15, 2014, in a unanimous opinion, the United States Supreme Court significantly clarified when a judgment is final for purposes of 28 U.S.C. §1291. InRay Haluch Gravel Co. v. Central Pension Fund of Int’l Union of Operating Engineers & Participating Employers, 571 U.S. ___, the Supreme Court opted for a bright-line rule that should provide clarity and predictability to appellate practitioners.

It is well established that a judgment can be “final” and appealable for purposes of 28 U.S.C. §1291 even if a claim for attorney's fees remains pending. The precise issue in Ray Haluch Gravel Co. was, in the words of Justice Kennedy, “whether a different result obtains if the unresolved claim for attorney’s fees is based on a contract rather than, or in addition to, a statute.” Ray Haluch Gravel Co.,  No.12-992, slip op. at 1. The answer was no. “Whether the claim for attorney’s fees is based on a statute, a contract, or both,” Justice Kennedy explained, “the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Id.

In the case sub judice, pension funds sued Ray Haluch Gravel Co., a landscape supply company, for failing to make required contributions to the funds. Among other relief, the Funds sought attorney’s fees, auditor’s fees, and costs under ERISA and a collective bargaining agreement (CBA). Id. at 2.

On June 17, 2011, the district court issued an order finding that the Funds “were entitled to certain unpaid contributions, though less than had been requested.” Id. at 3. On the same day, the district court awarded a total of $26,897.41 to the Funds. In a separate order issued approximately a month later, on July 25, 2011, the district court awarded the Funds a total of $34,688.15 in attorney’s fees and costs. Id. at 3-4. The Funds appealed from both orders on August 15, 2011.

Ray Haluch Gravel Co. argued in the appellate court that the Funds had failed to timely appeal from the district court’s order of June 17, and thus lost their opportunity to challenge the district court’s resolution of their substantive claims. Id. at 4. The United States Court of Appeals for the First Circuit disagreed on the basis that the Funds’ claim for attorney’s fees was based (at least in part) on the CBA. The First Circuit reasoned that the CBA required “the payment of attorneys’ fees as an element of damages in the event of a breach,” and therefore found that the June 17 order was not final. Id. The Supreme Court granted certiorari “to resolve a conflict in the Courts of Appeals over whether and when an unresolved issue of attorney’s fees based on a contract prevents a judgment on the merits from being final.” Id. at 4-5. The Supreme Court reversed the First Circuit and, incidentally, agreed with the Seventh Circuit’s approach to this issue. See Continental Bank, N.A. v. Everett, 964 F.2d 701, 702-03 (7th Cir. 1992) (“An open issue about legal fees, contractual or otherwise, does not affect our jurisdiction to resolve the appeal” on the underlying claims.).

As early as Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Supreme Court had decided that a judgment was “final” for purposes of 28 U.S.C. §1291 notwithstanding a pending claim for attorney’s fees pursuant to a statute. In Ray Haluch Gravel Co., the Funds argued that pending claims for attorney’s fees pursuant to a contract were different because contractual attorney’s fees provisions, unlike statutory attorney’s fees provisions, are “liquidated-damages provisions intended to remedy the injury giving rise to the action.” Ray Haluch Gravel Co., No.12-992, slip op. at 7. That argument failed. First, the Court noted that contractual attorney’s fees provisions often entitle prevailing defendants to fees. Second, the holding of Budinich did not recognize the distinction on which the Funds relied. Justice Kennedy went as far as to suggest that the Funds were attempting “to relitigate an issue already decided in Budinich.” Id. at 8.

The Court also noted that the rule suggested by the Funds posed at least two serious practical problems. First, “[o]perational consistency is not promoted by providing for different jurisdictional effect to district court decisions that leave unresolved otherwise identical fee claims based solely on whether the asserted right to fees is based on a contract or a statute.” Id. Second, and potentially more important, the Funds’ proposed rule “does not promote predictability,” because while “it may be clear whether and to what extent a fee claim is contractual rather than statutory in nature, that is not always so.” Id. Indeed, in the case at hand, the Funds’ request for fees was based on both ERISA and the CBA. Accordingly, while the Funds raised the specter of piecemeal litigation, that concern was “counterbalanced by the interest in determining with promptness and clarity whether the ruling on the merits will be appealed.” Id. at 9. Finally, the Court found it immaterial that the Funds’ request for fees included some fees that were incurred before the litigation began. Id. at 12.

Certainly with respect to the timing of filing a notice of appeal, predictability and certainty are worthy goals. On that measure, Ray Haluch Gravel Co. merits the appreciation of the appellate bar.

Recommended Citation: John M. Fitzgerald, Ray Haluch Gravel Co. Clarifies When Judgments Are Final, The Brief, (January 31, 2014), http://applawyers-thebrief.blogspot.com/2014/01/ray-haluch-gravel-co-clarifies-when.html.

Illinois Supreme Court Rule 313 (eff. Feb. 1, 1994) governs the applicable filing fees in the reviewing court. On January 23, 2014, the Illinois Supreme Court amended the rule to increase the filing fee for appellants and petitioners from $25.00 to $50.00; and from $15.00 to $30.00 for all other parties who enter an appearance or file any paper. This increase will not become effective until January 1, 2015.

Recommended Citation: Charlie Ingrassia, Supreme Court Rule 313: Increased Filing Fees in the Reviewing Court, The Brief, (January 29, 2014), http://applawyers-thebrief.blogspot.com/2014/01/supreme-court-rule-313-increased-filing.html.

In A.J. Smith Federal Savings Bank v. Sabuco, 2013 IL App (3d) 120578, the Illinois Appellate Court held that a court order denying a debtor relief from a judgment underlying a wage deduction proceeding was merely interlocutory and not appealable. Id. ¶ 13. The holding in Sabuco serves as a helpful reminder that an order remains interlocutory unless it disposes of the parties’ rights in the entire controversy or a separate part thereof. Absent an applicable exception, interlocutory orders are not appealable.

In Sabuco, the plaintiff bank made a loan to the defendant, which was secured by a mortgage on a commercial office building. Id. ¶ 2. The defendant executed an assignment of rents from any lessee of the office building in favor of the plaintiff. Id. When the defendant failed to make payments on the mortgage loan, the plaintiff filed a complaint for mortgage foreclosure and a petition for possession of the property. Id. ¶ 3.

The trial court entered an order granting the plaintiff possession of the property and a judgment of foreclosure and a deficiency judgment against the defendant. Id. ¶ 6. The plaintiff then served an affidavit for a wage deduction order, a wage deduction notice, and a wage deduction summons in an attempt to satisfy the deficiency judgment. Id. Prior to the wage deduction hearing, the defendant filed a motion for entry of release and satisfaction of judgment, claiming that the rental payments the plaintiff received as a result of the assignment of rents could satisfy the deficiency judgment. Id. ¶ 7. The trial court denied the motion and scheduled a wage deduction hearing. Id. ¶ 8. The defendant appealed from the denial of his motion for release and satisfaction prior to the trial court conducting a wage deduction hearing. Id.

The reviewing court noted that it only had jurisdiction to review orders that were final and appealable, which were orders that terminated the litigation between the parties on the merits or disposed of the rights of the parties, either on the entire controversy or a separate part thereof. Id. ¶ 14. “When a debtor files a motion contesting the validity of the judgment underlying a wage deduction proceeding prior to a wage deduction hearing, a trial court’s denial of such a motion is not final and appealable because ‘the same attack could later be made at the wage reduction hearing.’ ” Id. ¶ 13 (quoting Felton v. Shead, 6 Ill. App. 3d 123, 126 (1972)). The order denying the debtor relief was merely interlocutory and not appealable because the issue of the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Sabuco, 2013 IL App (3d) 120578, ¶ 13. Thus, the trial court’s judgment would not be final and appealable until after the wage deduction hearing. Id. 

The application of the above principles to the facts in Sabuco was simple and straightforward. The defendant filed a motion for release and satisfaction from the deficiency judgment, which the trial court denied. Id. ¶ 15. The defendant appealed the trial court’s order before the wage deduction hearing. Id. The defendant’s motion was an attack on the judgment underlying the wage deduction proceeding, which could have also been made at the wage deduction hearing. Id. Thus, the trial court’s order was merely interlocutory and not appealable because the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Id. Accordingly, the reviewing court dismissed the appeal because it lacked jurisdiction to consider the trial court’s order denying the defendant’s motion for entry of release and satisfaction. Id. ¶ 16.

Recommended Citation: Shannon R. Burke, Order Denying Motion for Release and Satisfaction of Judgment in Wage Deduction Proceeding Not Final and Appealable, The Brief, (January 26, 2014), http://applawyers-thebrief.blogspot.com/2014/01/order-denying-motion-for-release-and.html.

In CE Design, Ltd. v. Cy’s Crab House North, Inc., 731 F.3d 725 (7th Cir. 2013), the United States Court of Appeals for the Seventh Circuit dismissed the appeal because, although the putative intervenor filed a timely notice of appeal from the trial court’s order denying its motion to intervene, then notice was untimely with respect to the final judgment. And because the judgment could no longer be challenged, the Seventh Circuit could not grant any meaningful relief to the putative intervenor even had it reversed the order denying intervention. In dismissing for lack of jurisdiction, the Seventh Circuit provided a useful overview of the options potential intervenors have to preserve the right of appeal, or as the reviewing court remarked, to “keep the window from closing.” Importantly, the Seventh Circuit emphasized that merely moving to intervene within the time to appeal a judgment is not sufficient.

CE Design, a frequent class-action plaintiff, sued the defendants Cy’s Crab House North and Cy’s Crabhouse and Seafood Grill, Inc. on behalf of a class of junk-fax recipients. CE Design, 731 F.3d at 726. Truck Insurance Exchange was the defendants’ liability insurance carrier, and it provided a defense under a reservation of rights. Id. During trial, and without consulting their insurer, the defendants settled the case with the class. Id. at 726-27. After state-court coverage litigation, the district court approved the settlement and entered final judgment on October 27, 2011. Id. at 727.

The Seventh Circuit subsequently issued an opinion in another case, which cast serious doubt on the conduct of class counsel. Id. On November 23, 2011, the day after that opinion was released, Truck Insurance Exchange moved to intervene in CE Design’s case to reopen the judgment, challenge the settlement, and decertify the class based on the misconduct of class counsel pursuant to that new decision. Id. The motion to intervene also sought a 14-day extension of time to file a notice of appeal. Id. The trial court heard the motion on November 28, 2011, the last day to appeal from the final judgment. Id. The court requested further briefing and rescheduled the hearing for December 1, 2011. Id. The trial court then discussed the time limit for filing an appeal from the final judgment, and noted that it could extend the time to do so on motion of a party within 30 days of the expiration of the time to appeal. Id. Truck Insurance Exchange’s counsel noted that Truck Insurance Exchange was not yet a party, and the trial court responded that if it granted the motion to intervene, “that relates back to the day that you filed the motion to intervene.” Id. With regard to the deadline for appealing the judgment, the trial court stated: “I will extend it. If I conclude that you’re entitled to intervene or entitled to an extension, you’re not going to have a problem here.” Id. On December 1, 2011, the trial court denied the motion to intervene, without mentioning any extension of the deadline to appeal. Id.

Truck Insurance Exchange filed a notice of appeal on December 2, 2011, stating that it was appealing from the December 1, 2011 order denying intervention as well as the October 27, 2011 final judgment. Id. CE Design filed a motion to dismiss the appeal for lack of jurisdiction, which the Seventh Circuit took with the case. Id.

The Seventh Circuit held that the notice of appeal was untimely with respect to the final judgment because it was filed 36 days after entry of that judgment and no extension had been granted. Id. The reviewing court rejected Truck Insurance Exchange’s argument that the trial court had orally extended the time to appeal, stating that the trial court had merely expressed a “willingness to grant a retroactive extension in the future.” Id. at 728. Moreover, the December 1, 2011 order did not mention extending the time for an appeal. Id. The reviewing court also rejected Truck Insurance Exchange’s argument that the appeal from the order denying intervention rendered timely the appeal from the final judgment, explaining that those were “distinct and separate appealable orders.” Id.

The Seventh Circuit further explained, addressing Truck Insurance Exchange’s reliance on Roe v. Town of Highland, 909 F.2d 1097 (7th Cir. 1990), that under Roe, a putative intervenor “must take some action” when the trial court has not ruled on the motion to intervene but the deadline to appeal the underlying judgment is “imminent,” to “keep the window from closing.” CE Design, 731 F.3d at 728-29. In particular, the putative intervenor must obtain a ruling on intervention, obtain an extension of time to file a notice of appeal, or file a “protective, ‘springing’ notice of appeal before the time expires.” Id. at 729. More succinctly, the reviewing court summarized Roe as making “clear” that “it is not enough to merely move to intervene within the time to appeal the judgment; something more is required.” Id. Truck Insurance Exchange did not do any of this before the appeal period expired. Id.

The Seventh Circuit next clarified its decision in In re Synthroid Marketing Litigation, 264 F.3d 712 (7th Cir. 2001), stating that it “require[d] some elaboration.” CE Design, 731 F.3d at 729. In Synthroid, the district court denied a motion to intervene, and the putative intervenor filed a notice of appeal from that order within the time to appeal from the final judgment, but did not appeal the final judgment until almost a year later. Id. The Synthroid court held – analogizing to Fed. R. App. P. 4(a)(2), under which a premature notice of appeal filed after the district court rules but before entry of judgment becomes effective upon entry of judgment – that its decision allowing intervention caused the late notice of appeal of the judgment to “spring into effect.” CE Design, 731 F.3d at 729 (citing Synthroid, 264 F.3d at 716). Although the reviewing court in CE Design questioned the continuing validity of Synthroid in light of subsequent United States Supreme Court authority, it explained that Synthroid could be read to stand for a sort of “relation-back rule,” that when a putative intervenor is granted the right to intervene on appeal, a “contingent appeal of the judgment” relates back to some previous date. CE Design, 731 F.3d at 729. But Truck Insurance Exchange could not benefit from any such relation-back rule. Id. Unlike the putative intervenor in Synthroid, Truck Insurance Exchange had not filed a notice of appeal from the denial of intervention before the time to file an appeal from the final judgment expired (id. at 729-30, 731), but had merely moved to intervene during that time. Because Truck Insurance Exchange did not timely appeal the final judgment, the Seventh Circuit lacked jurisdiction to review that judgment. Id. at 730.

Although the Seventh Circuit went on to hold that Truck Insurance Exchange had timely appealed the denial of intervention, it concluded that it nevertheless lacked jurisdiction over the appeal. Id. Noting that the United States Supreme Court had reemphasized that the time limit to appeal is jurisdictional, and because Truck Insurance Exchange had not timely appealed the final judgment, that judgment was “set in stone.” Id. Thus, even reversing the intervention order could not result in any meaningful relief for Truck Insurance Exchange. Id. For “completeness,” the reviewing court added that another recent decision foreclosed Truck Insurance Exchange’s argument on the merits of intervention, so appellate review of the denial of intervention would be “doubly pointless.” Id. at 731.

Recommended Citation: Myriam Z. Kasper, Keeping the Window Open: Potential Intervenors and Preserving their Right of Appeal, The Brief, (January 22, 2014), http://applawyers-thebrief.blogspot.com/2014/01/keeping-window-open-potential.html.

In Zamora v. Montiel, 2013 IL App (2d) 130579, the Illinois Appellate Court held that a notice of appeal must be filed within 30 days of the trial court’s resolution of a motion to reconsider, following a dismissal order with a finding pursuant to Illinois Supreme Court Rule 304(a), even though the trial court had already granted the defendants leave to file a third-party action. The reviewing court emphasized that the third-party claim, though allowed to be filed at the time of reconsideration, had not been filed until more than 30 days had passed after the trial court's denial of the motion to reconsider.

The case involved a complex procedural history. On August 31, 2009, the plaintiff filed a complaint sounding in negligence against certain defendants, including the “Payne defendants.” Id. ¶ 3. On March 24, 2010, the trial court dismissed the plaintiff’s complaint with respect to the Payne defendants, while including a finding of finality and appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Zamora, 2013 Il App (2d) 130579, ¶ 3. On April 23, 2010, the plaintiff filed a timely motion to reconsider the March 24, 2010, dismissal order. However, on June 29, 2010, and while the plaintiff's motion to reconsider was still pending, the trial court granted the defendants leave to file a third-party complaint for contribution. Id.

On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider. Id. Although the trial court had granted the defendants leave, no third-party complaint had yet been filed. On August 25, 2010, more than 30 days since the trial court denied the plaintiff's motion to reconsider, the defendants filed their third-party claim. Id. On July 11, 2012, the trial court dismissed the third-party contribution claim. Also on that date, the plaintiff requested a “new” Rule 304(a) finding with respect to the trial court's earlier March 24, 2010, dismissal order. The trial court entered that finding. Id.

On July 24, 2012, the plaintiff filed a notice of appeal from the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider. However, on December 12, 2012, the Appellate Court dismissed the plaintiff’s initial appeal for lack of jurisdiction. Id.

On December 28, 2012, the plaintiff returned to the trial court and sought a “renewal” of the March 24, 2010, Rule 304(a) finding, but on March 20, 2013, the trial court denied that motion. Id. On May 14, 2013, the trial court dismissed all remaining causes of action directed against all defendants. On June 5, 2013, the plaintiff filed a notice of appeal seeking reversal of both the March 24, 2010, dismissal order, and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding. Id.

The defendants moved to dismiss the appeal. The defendants contended that, after the trial court entered its July 7, 2010, order denying the plaintiff's motion to reconsider, the plaintiff had 30 days to appeal from the trial court's March 24, 2010, dismissal order that contained a Rule 304(a) finding. Id. ¶ 5. The plaintiff countered that on June 29, 2010, when the trial court granted the defendants leave to file their third-party complaint, “the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of the plaintiff’s claim against the defendants, was rendered ineffective.” Id.

The court in Zamora first undertook a discussion of appealability pursuant to Rule 304(a), concluding that, once a court has made a Rule 304(a) finding, it is unnecessary for the court to make another such finding when it denies a timely motion to reconsider. Id. ¶ 6 (citing McCorry v. Gooneratne, 332 Ill. App. 3d 935, 941 (2002)). This is because, the Zamora court noted, the denial of a motion to reconsider is not a judgment and is not appealable in itself. Zamora, 2013 IL App (2d) 130579, ¶ 6.

Citing Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the Zamora court was “reluctant to attach jurisdictional significance to the fact the Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion to reconsider.” Zamora, 2013 IL App (2d) 130579, ¶12. Any other determination, the court reasoned, would result in a “cumbersome rule of procedure indeed,” and the reviewing court asked a series of hypothetical questions to highlight the ambiguity such a ruling could create. Id. ¶ 13.

The court in Zamora thus decided to adhere to a simple rule: merely obtaining leave to file a claim did not trigger the need for a new Rule 304(a) finding. Id. Relying on the plain language of Rule 304(a) that " 'an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims,' " the court held the Rule contemplated additional claims must actually be pending at the time of the finding. (Emphasis in original.) Id. (quoting Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).

In closing, the reviewing court recognized that, "on some rare occasions," allowing a party to proceed with an appeal after another party seeks leave to add a claim might itself result in a piecemeal appeal being taken. Zamora, 2013 IL App (2d) 130579, ¶15. Nonetheless, the court in Zamora noted, "it is equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a) finding with every change in circumstances." Id.

Recommended Citation: Robert G. Black, A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding, The Brief, (January 17, 2014), http://applawyers-thebrief.blogspot.com/2014/01/a-simple-rule-merely-obtaining-leave-to.html.

In BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, the Illinois Appellate Court, in reversing a summary judgment order in favor of the defendants, clarified the rule that a dismissal for want of prosecution does not constitute a final order or an adjudication on the merits because a plaintiff has the absolute right to refile the action against the same party and to reallege the same causes of action pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2008)). In Tandon, the plaintiff mortgagee’s successor by merger filed a five-count complaint against the defendants, the mortgagor and guarantor of a promissory note. Tandon, 2013 IL App (1st) 113152, ¶ 1. Plaintiff subsequently voluntarily dismissed count I (the mortgage foreclosure claim) without prejudice in 2006. Id. ¶ 5. Because the remainder of the case was essentially a breach of contract action, the case was transferred to the Law Division. Id. In February 2008, the trial court entered its fourth order dismissing the remaining counts for want of prosecution (the “DWP Order”). Id. ¶ 6. Unlike the previous orders, the fourth DWP order was never vacated. Id.

Within one year of the DWP Order, plaintiff filed a new action as permitted by section 13-217, which repeated two of the previously dismissed counts verbatim except for the interest amounts. Id. ¶ 7. Plaintiff did not refile the foreclosure claim (count I of the original action). Id. ¶ 7. Defendants moved for summary judgment on the grounds that res judicata barred the second lawsuit. Id. ¶ 8. The trial court granted the motion, holding as a matter of law that the order voluntarily dismissing count I without prejudice in the first action became final and appealable when the DWP order was not vacated within 30 days, even though plaintiff timely refiled the action under section 13-217. Id. ¶ 10. Therefore, the DWP order was a final judgment as to count I sufficient to bar the second action under res judicata and the rule against claim-splitting as articulated in the oft-cited Illinois Supreme Court decisions of Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).

Reversing the trial court, the appellate court held that the 2006 order in which plaintiff nonsuited count I without prejudice “is not a final order because it does not terminate the litigation between the parties on the merits. Plaintiff voluntarily decided not to further pursue count I … after discovery revealed the cause of action to be ill-founded.” Tandon, 2013 IL App (1st) 113152, ¶3. The order was “not an involuntary dismissal based on an infirmity in plaintiff’s case, but a voluntary dismissal based on section 2-1009 of the Code” and “the intended voluntary act of plaintiff.” Id. ¶¶ 3, 27. Likewise, the DWP Order dismissing the remaining counts “was not a final order because it did not terminate the litigation between the parties on the merits.” Id. ¶¶ 3, 29. The appellate court went on to hold that plaintiff’s proper and timely statutory refiling of the second action under section 13-217 “did not alter the [2006] order’s interlocutory nature,” particularly when the refiled action did not contain the dismissed foreclosure count. Id. ¶¶ 3, 30. Citing to a handful of Supreme Court and appellate court decisions dating back to 1982, the appellate court reiterated the rule that an order dismissing a case for want of prosecution “only becomes a final order after the one-year right to refile expires.” Id. ¶ 30. Therefore, the reviewing court concluded that neither res judicata nor the rule against claim-splitting was implicated.

Recommended Citation: Katherine A. Grosh, Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled, The Brief, (January 14, 2014), http://applawyers-thebrief.blogspot.com/2014/01/dismissal-order-for-want-of-prosecution.html.

Failing to properly preserve an evidentiary objection before a lower court may result in that objection being waived on appeal. Thus, a thorough understanding of the waiver doctrine is essential for trial and appellate practitioners alike. In Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156, the Appellate Court provided a by-the-book application of the waiver doctrine in the context of preserving a challenge to the admissibility of expert testimony.

In Sheth, the reviewing court considered cross appeals brought by the parties to a legal slugfest over a variety of claims, including breach of contract and fraud, arising from the parties' dealings in used machinery. Id. ¶¶ 1-2. Following a trial in which a jury decided certain claims and the court ruled on others, the First District scrutinized the judgment entered on the jury's verdict and a number of the trial court's rulings, including the dismissal of certain counts on the pleadings. All withstood challenge, with the exception of the trial court's denial of the defendants' request for prejudgment interest; the plaintiff's liability for fraudulent misrepresentation entitled the defendants to an interest award. Id. ¶¶ 2-3.

With respect to waiver, the defendants did not succeed in persuading the appellate panel to consider whether the trial court had botched its rulings in admitting the testimony of an expert witness for the plaintiff as to subjects including foreign regulations and the existence of an oral agreement. The defendants contended that these issues were beyond the expertise of the witness and were not properly the subject of opinion testimony. Id. ¶ 109. Although the defense had presented and lost a motion in limine raising these issues, they failed to renew the objections when the expert witness testified. Id. ¶ 112. Instead, the defendants objected at trial only to the foundation of the expert's testimony. Therefore, the evidentiary challenges raised in the defendants' pretrial motion in limine were waived for appellate review. Id. In addition, the defendants' foundation objection raised during trial was also waived because the defendants failed to raise that objection in a posttrial motion. Id. 

The analysis in Sheth is clear: a contemporaneous objection to the foundation of the expert witness's testimony did not preserve evidentiary objections to the testimony raised in a pretrial motion in limine. To preserve the objections, a party should raise the evidentiary objections again at trial and in a posttrial motion. Id. ¶¶ 111-12. Notably, the appellate court shut the door without an alternative analysis on the merits, which frequently follows a waiver ruling.

Recommended Citation: Karen Kies DeGrand, Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony, The Brief, (January 11, 2014), http://applawyers-thebrief.blogspot.com/2014/01/pitfalls-in-preservation-explanation-of.html