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.

Saturday, August 27, 2016

Another appellant is done in by the rule against successive postjudgment motions

Armstrong v. Louden, 834 F.3d 767 (7th Cir. 2016), is another of many cases in which the appellant cannot obtain review of an order in the reviewing court because he spent too much time trying to get the trial judge to change his mind. On May 1, 2014, the district court granted summary judgment in favor of the defendant on all of the incarcerated plaintiff's claims. The plaintiff did not appeal or request an extension of time to do so. Instead, on January 12, 2015, he asked the district court to reopen the case on the ground that he had not received the motion for summary judgment or the order granting it. The district court denied the motion on January 27, 2015. Once again, the plaintiff did not appeal, but on March 9, 2015, he filed a motion for relief from the January 27 judgment. The court denied that motion on March 13, 2015.

The plaintiff finally appealed, but not until 38 days after the March 13 order was entered. In response to the court of appeals' invitation to explain why the appeal should not be dismissed as untimely, the plaintiff filed a declaration stating that he gave the notice of appeal to the prison law library staff for filing on April 12, 2015. Because that was the proper method of accomplishing filings from that particular correctional institution, and the plaintiff had done all that he could do to file within 30 days, the court found that the appeal was timely under the mailbox rule set forth in Fed. R. App. P. 4(c)(1).

However, the appeal was timely only as to the order of March 13, 2015. The plaintiff had filed multiple postjudgment motions and those successive postjudgment motions did not extend the time to appeal the denial of the initial motion "let alone the original judgment," as the court put it. The court found that the order of March 13, the only order over which it had jurisdiction, "is unexceptionable, because [the plaintiff] did not provide a good reason to upset the order of January 27." The court affirmed the district court’s order.

Friday, August 26, 2016

The Illinois Supreme Court provides a couple of nuggets about Rule 304(a) and its own authority to establish and control binding precedent

In the midst of a decision notable for its substantively interesting content, the Illinois Supreme Court dropped a couple of interesting procedural points in Blumenthal v. Brewer, 2016 IL 118781. For present purposes, we'll stay away from the interesting and controversial substance of the case and address only the appellate procedure aspects.

First, the court found that the appellate court had erred by considering the dismissal of certain counts of the defendant's counterclaim because of lack of appellate jurisdiction. After the trial court dismissed part of the counterclaim, it made a finding under Illinois Supreme Court Rule 304(a), the defendant appealed, and the appellate court decided the appeal. The supreme court repeated the well-known caution (well-known to appellate practitioners, at least) that the "special finding contemplated by [Rule 304(a)] will make a final order appealable, but it can have no effect on a nonfinal order. . . If the order is in fact not final, inclusion of the special finding in the trial court’s order cannot confer appellate jurisdiction." Moreover, "to be considered final and appealable for purposes of Rule 304(a), a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court only has to proceed with execution of the judgment. . . . While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof."

In the pending case, the dismissal of certain counts of the counterclaims did not meet the finality requirement because those claims "were, in effect, different iterations of the very same claim [that the plaintiff asserted in the complaint]. When they were dismissed, the ultimate question . . . remained unresolved. The dismissal served only to narrow the criteria applicable to that decision." Accordingly, the dismissal of some of the defendant's counterclaims was not a final order, it was not appealable, and the appellate court erred in entertaining the appeal.

But that was not the only fault the supreme court found with the lower court's treatment of the case. The supreme court concluded that, substantively, "the appellate court’s conclusion that the circuit court erred in dismissing those counts was predicated on its repudiation of this court's decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court's rejection of Hewitt was tantamount to overruling that decision. However, overruling a decision by the Illinois Supreme Court is an action the appellate court has no authority to take." The supreme court explained that, while "the appellate court was free to question Hewitt and recommend that we revisit our holding in the case, under the judicial system created by the Illinois Constitution, it could not, itself, declare that one of our decisions was no longer controlling authority." Finally to that point, the supreme court observed that "even if the appellate court disagreed with Hewitt, it remained bound by that decision and should have left it to this court to reassess the decision’s validity."