Saturday, January 28, 2017

The trial court’s erroneous grant of a Rule 54(b) motion deprives the Seventh Circuit of jurisdiction over the appeal

Judge Sykes’s opinion for the court in King v. Newbold, 845 F.3d 866 (7th Cir. 2017), says it all:
The threshold jurisdictional question is simple: Did the district court abuse its discretion in granting an untimely motion for a Rule 54(b) judgment? Our precedent is clear: An untimely Rule 54(b) motion may be granted only if there is a showing of extreme hardship. Because there was no showing of hardship—let alone extreme hardship—we dismiss the appeal for lack of appellate jurisdiction.
Appeal dismissed for lack of appellate jurisdiction.

Saturday, January 21, 2017

Pro se litigant’s self-inflicted loss on appeal draws two special concurring opinions – one of which is very, very wrong

Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, might have been a garden variety example of a pro se litigant whose appeal went nowhere because she did everything wrong. She did not file a post-trial motion after a jury trial, so she forfeited all issues on appeal. She failed to file reports of proceedings, so the appellate court was required to presume that the trial court judgment was consistent with the law and supported by sufficient facts. She filed an opening brief not only missing most of the required sections, but also lacking in any clear argument or basis for reversal of the judgment on appeal. Not surprisingly, a unanimous court affirmed the judgment in an opinion authored by Justice Neville.

What is surprising, however, is that Justice Hyman filed a special concurrence. While he concurred in the reasoning and result, Justice Hyman wrote separately because he believed that the appellant’s "sincere impression of what happened at the trial deserves closer scrutiny." His expressed concern is that "lawyers must keep their clients informed about what is taking place at every step of a trial. This means communicating with clients in nontechnical terms about strategy and objectives, and the trial process itself, court procedures, Rules of Evidence, and judicial pronouncements and rulings. And it means listening to and understanding the client’s perspective."

Justice Hyman’s commentary is especially surprising because there is no indication in the record that the appellant’s attorney did not do all of those things – as Justice Hyman himself concedes in the special concurrence. More important, it appears that the appellant reported her trial attorney to the ARDC. Although Justice Hyman states that "it is not for us to decide whether his conduct met the standards set forth in the Rules of Professional Conduct," a three and a half page special concurrence on the general topic of the urgent need for lawyers to communicate properly with clients issued within the context of this specific appeal does not sound exactly agnostic on the subject of the trial attorney’s conduct. And, again, all of that came in an appeal with a severely deficient record.

Justice Mason, in her own specially concurring opinion, also concurred with the reasoning and result, but disagreed with Justice Hyman that the case presented the proper time or place to opine on the matters included in his concurrence: "This case is a singularly inappropriate vehicle for these observations and assumptions given the lack of any record supporting them. And using this case as an opportunity to criticize a lawyer for failing to communicate with his client as he is obligated to do . . . does a disservice to trial counsel who is not here to defend himself and against whom Wing has filed a complaint with the" ARDC. Justice Mason is absolutely correct.

None of the opinions mentions the trial attorney, although that information would not be difficult to find in public records. It is especially unfortunate that someone in a position of unique power, such as an appellate court justice, would use his position to malign an attorney by implication, especially an attorney, as Justice Mason points out, "who is not here to defend himself." Justice Hyman even went so far as to point out parenthetically that he "opted not to mention [the appellant’s] complaint [against the trial lawyer] with the Attorney Registration and Disciplinary Commission." Yet, there it is – a mention of the ARDC complaint presented in the guise of not mentioning the ARDC complaint.

Sometimes concurring opinions are useful in guiding the development of the law or illuminating an aspect of the case not fully covered in the majority opinion. But in this appeal, there is at least one concurring opinion too many.

Friday, November 18, 2016

The court of appeals has no jurisdiction under 28 U.S.C. §1292(b) when the district court vacates its certification before the court of appeals grants the petition

In Kenosha Unified School Dist. No. 1 Board of Educ. v. Whitaker, 2016 WL 6677720 (7th Cir. 2016), the district court denied the defendants' motion to dismiss and certified the order for immediate interlocutory appeal under 28 U.S.C. §1292(b). The defendants then filed a petition for permission to appeal. Before the court of appeals issued an order on the defendants' petition, the district court granted the plaintiff's motion for reconsideration and vacated its §1292(b) certification. The court of appeals found that, because it had not entered an order granting the petition, it did not acquire jurisdiction. The district court's withdrawal of certification destroyed the court's jurisdiction to consider the petition under §1292(b). Accordingly, the court dismissed the petition for lack of jurisdiction.

Friday, November 11, 2016

After entry of the judgment, the loser had four choices to preserve the right to appeal, and didn’t take any of them

Citibank, N.A. v. Illinois Dept. of Revenue, 2016 IL App (1st) 133650, involves the review of determinations by the Illinois Department of Revenue on the plaintiffs' claims to refunds of retailers' occupation taxes. But for one of the plaintiffs, review on appeal never happened because of a late notice of appeal.

To summarize the key procedural steps, on March 14, 2014, the circuit court issued its order upholding the Department's denial of the plaintiff’s claim for a tax refund. Eight and a half months later, on November 25, 2014, the plaintiff filed a §2-1401 petition. On December 16, 2014, the circuit court issued an order granting the §2-1401 petition. Then, on March 3, 2015, the circuit court issued a supplemental opinion, which was identical to the March 14, 2014, order, except that it contained a discussion of the ALJ's disregard of the parties' stipulation and a statement that the time for appeal would begin to run from the entry of the supplemental opinion. The plaintiff filed its notice of appeal on March 19, 2015.

The appellate court panel found that the appeal was too late. The March 14, 2014, order fully disposed of the plaintiff’s claim seeking review of the Department's determination that it was not entitled to a refund. Because the court's order resolved all pending claims against all parties in the case, it was a final and appealable order. The court explained that, at that point, the plaintiff had four options: file a timely post-trial motion within 30 days, file a timely notice of appeal within 30 days, do nothing and accept defeat, or file a §2-1401 petition within two years. The plaintiff chose the last option, filing its §2-1401 petition requesting that the circuit court address its argument regarding the ALJ's disregard of the stipulated amount of its claim.

When the circuit court granted the §2-1401 petition on December 16, 2014, that was a final order resolving the §2-1401 petition. The plaintiff should have filed its notice of appeal within 30 days after that date. Instead, the plaintiff waited and relied on the March 3, 2015, supplemental opinion as the date when its time to appeal began to run. The appellate court found that approach unconvincing, stating that, if the plaintiff were correct that the supplemental opinion was not related to the §2-1401 petition, but instead was a modification of the circuit court's March 14, 2014, original opinion, that would mean that the supplemental opinion was entered without authority because it was entered more than 30 days after the March 14, 2014, opinion. That still resulted in a lack of appellate jurisdiction because "[i]f the circuit court lacked jurisdiction to enter the supplemental opinion, then we lack jurisdiction to review it."

The court went on to note that the circuit court's inclusion of a statement that the time for appeal began to run as of the date the supplemental opinion had no effect on the jurisdictional analysis. The supreme court rules determine when and how a timely notice of appeal is taken, and the circuit court lacks authority to extend that time. Moreover, the trial court lacked jurisdiction to modify the March 14, 2014, opinion after 30 days, thus depriving the appellate court of any jurisdiction to review the supplemental opinion. The trial court's statement does not cure the lack of jurisdiction to enter the supplemental opinion and, accordingly, does not cure the appellate court's lack of jurisdiction to review it. That appeal was dismissed for lack of jurisdiction.

Wednesday, November 9, 2016

A little Mencken never hurt anybody

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard."

~ H. L. Mencken, A Little Book in C Major (John Lane Co., 1916)

Monday, October 31, 2016

Updated Illinois Civil Litigation Guide published

The 2016-2017 edition of my book Illinois Civil Litigation Guide has been released by Thomson Reuters and is available for purchase here. The entire publication is also available and searchable on Westlaw. This book of more than 1,100 pages contains the state, federal, and local civil practice rules relevant to Illinois civil procedure in a single reference tool, along with author commentary.

Friday, September 9, 2016

Beware of the time limits in Fed. R. App. 4(a)(5) for extensions of time to appeal

Hamer v. Neighborhood Housing Serv. of Chicago, 835 F.3d 761 (7th Cir. 2016), should serve as a warning to be sure to carefully comply with the rules when seeking a motion for extension of time to appeal in federal court. The district court entered a final and appealable judgment adverse to the plaintiff on September 14, 2015. The deadline to appeal was October 14, 2015. On October 8, 2015, the plaintiff requested that the dsitrict court extend the time to appeal to December 14, 2015. The district court granted the motion and extended the deadline to Deceber 14, 2015.

The plaintiff then filed a notice of appeal on December 11, 2015, within the time permitted by the district court's order, but exceeding the extension allowable under Fed. R. App. P. 4(a)(5)(C), which provides: "No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later."

When the court of appeals questioned its jurisdiction, the plaintiff asserted "that the district court extended the time to file her Notice of Appeal pursuant 28 U.S.C. § 2107(c), which states in relevant part: '[T]he district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause'" The court was not persuaded, finding that "Rule 4(a)(5)(C) is the vehicle by which §2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days. Thus, the district court was in error when it granted . . . an extension that exceeded the Rule 4(a)(5)(C) time period[.]" Because the court of appeals had no authority to excuse the late filing, it found that the notice of appeal was untimely and it dismissed the appeal for lack of jurisdiction.