The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Argument Report: Can Lack of Testamentary Capacity Be Proven From the Will Alone?

By Kirk Jenkins on Posted in Illinois

A relatively quiet Illinois Supreme Court gave little indication of its leanings last week during oral argument in DeHart v. DeHart. Our preview of DeHart is here.

DeHart is a will contest. According to the complaint, the decedent had held plaintiff out for some sixty years as his son. This continued until 2000, when the plaintiff requested a certified copy of his birth certificate in connection with a passport application. The certified copy listed an entirely different person as the plaintiff’s natural father. The decedent told the plaintiff that he had "secretly" adopted the plaintiff two years after his birth. In the years that followed, the decedent continued to hold out the plaintiff as his son. But in the final years of his life, the decedent married the defendant. Only a year later, he signed a will stating that he had no children and never mentioning the plaintiff. Three months later, the decedent died. The plaintiff challenged the will for lack of testamentary capacity, undue influence, and a claim for "equitable adoption." The Circuit Court dismissed, but the Appellate Court reversed. The Appellate Court held that the plaintiff could go forward on his lack of capacity claim based solely on the will’s statement that decedent had no children, and became the first Illinois court to adopt the theory of equitable adoption.

Counsel for the defendant began with the issue of equitable adoption, heavily emphasizing what he saw as the policy reasons not to adopt the cause of action. Counsel pointed out that equitable adoption has always required pleading a contract to adopt, and since no such contract had been pled, the Court could reject the plaintiff’s claim without ever reaching the issue of whether Illinois recognized the cause of action. Turning to the issue of the will contest, counsel argued that the representations of the witnesses to the will that the decedent appeared to be of sound mind had become a judicial admission on the plaintiff’s part when the plaintiff attached the will to his complaint without impeaching the witnesses’ views. Justice Thomas wondered how a will contest could ever proceed if such representations were conclusive. Counsel argued that the plaintiff was obligated to somehow impeach the witnesses through affirmative factual allegations. Justice Thomas suggested that the Court was required to accept the plaintiff’s mere allegations of unsoundness on a 2-615 motion to dismiss. Counsel responded that the plaintiff’s conclusory allegations weren’t enough without supporting facts. The only basis for a finding of unsoundness was the statement in the will, and yet the complaint also alleged that the plaintiff and decedent had a loving relationship at the time the will was signed; according to counsel, since the complaint was internally contradictory, the complaint failed as a matter of law to allege lack of capacity. Turning to undue influence, counsel argued that the complaint was deficient for lack of specific factual allegations suggesting that the decedent’s free will had been overcome.

Counsel for the plaintiff began his argument by showing the Court that plaintiff had actually had two birth certificates: one that he had used for most of his life, showing decedent’s name as father, and the second certified certificate which had only come to light in 2000. Counsel argued that there had been a concerted effort to create plaintiff’s first birth certificate, and even the decedent’s obituary — after the will was signed — had said that the decedent had a son, grandson and great-grandchildren. Justice Burke asked whether, when there is a legal adoption, the birth certificate reflecting the name of the birth mother was destroyed. Counsel responded that he had learned in depositions that it was forwarded to Springfield. Justice Theis pointed out that the Court’s earlier cases had referred to contracts to adopt, and asked what the elements of the contract were in this case. Counsel responded that under the unique circumstances – the social attitude towards unwed pregnancy at the time of plaintiff’s birth – keeping the adoption a secret was sufficient consideration. The case presented unique circumstances, counsel argued; there was no need to establish a sweeping rule to govern a broad spectrum of cases.

On rebuttal, counsel for the defendant insisted that the law was clear in many jurisdictions that there could be no equitable adoption without an underlying contract. Plaintiff had never alleged that secrecy was the consideration for any agreement to adopt, according to counsel. Counsel closed by returning to the issue of public policy, arguing that it was very important that the Court not upset settled expectations by abruptly holding that merely "holding out" someone was sufficient to establish equitable adoption. Counsel predicted that adopting the plaintiff’s theory would open up a Pandora’s Box of problems as further cases tried to push the boundaries of the new claim.

DeHart should be decided within three to five months.

Argument Report: The Perils of E-Filing a Notice of Appeal

By Kirk Jenkins on Posted in Illinois

Based upon questioning during last week’s oral argument, the Illinois Supreme Court seemed unlikely to forgive plaintiff’s counsel for filing a notice of appeal electronically in apparent violation of the Circuit Court’s local rules. Our preview of VC&M, Ltd. v. Andrews is here.

VC&M arises from a real estate dispute. The defendants, a husband and wife, signed a contract with the plaintiff to list their residence for sale. Plaintiff found a buyer, who put in a bid for less than the asking price. The wife made what she described in emails as an "offer" to buy out her soon-to-be ex-husband for $5 more than the third party’s offer; the wife said if the third party raised, she would too. Ultimately the defendants rejected the third party’s offer, making no counter offer. The defendants signed a deed and held what they called a "closing" to finalize the sale of the husband’s interest in the house to the wife. A few months after the listing agreement expired, the Circuit Court entered a judgment of divorce incorporating a property settlement which included as a line item real estate commissions due and owing. The agreement valued the marital home at $5 more than the rejected offer.

When the plaintiff sued for breach of contract, the defendant successfully moved to dismiss. The plaintiff e-filed a motion for reconsideration which was denied, and the plaintiff then e-filed a notice of appeal. The Second District held that because the case hadn’t been properly designated for e-filing, the e-filed motion for reconsideration was ineffective. Since the motion for reconsideration was ineffective, the notice of appeal was untimely. And even if the notice of appeal had been timely, since the local rules barred e-filing "appellate" documents, the filing was void anyway, meaning that the Appellate Court lacked jurisdiction over the appeal.

The Court peppered the appellant’s counsel with more than a dozen questions during his initial presentation. Justice Garman asked counsel whether he contested that his e-filings violated the court’s local rules. Counsel responded that the local rules defined neither filings intended to enforce the judgment — one class of filings which couldn’t be e-filed — nor "appellate" filings, so it was far from clear that his motion for reconsideration and notice of appeal were improperly filed. Counsel emphasized that the Supreme Court’s authorization of e-filing didn’t contain any such prohibitions as those found in the local rules. Justice Thomas asked whether the initial complaint had to be e-filed to make a case eligible for e-filing, and counsel responded that no such prohibition was found in the Supreme Court’s authorization either. According to counsel, since a notice of appeal is not filed in the Appellate Court, it is not an appellate document; and since his motion to reconsider was not an attempt to enforce the judgment, neither of his filings violated the local rules. Counsel argued that the Circuit Court’s authority in relation to e-filing was limited to complying with the mandates of the Supreme Court; any additional burdens placed on litigants were impermissible. Justice Thomas asked counsel whether the "burden" he was complaining of wasn’t the burden of following the local rules, but once again, counsel argued that the Circuit Court’s limitations on e-filing were beyond the Supreme Court’s mandate. Justice Thomas suggested that the Supreme Court’s earlier precedent seemed to require a showing of good cause to excuse a violation of the local rules. Counsel pointed out that the clerk had accepted the response for filing, giving him no chance to correct any deficiency. Justice Garman asked counsel whether the defendant had raised any objection to his e-filing the motion to reconsider, and counsel conceded that he had mentioned it in passing. In light of that, Justice Garman responded, why had counsel e-filed the notice of appeal? Counsel responded that his e-filing was appropriate. Justice Burke asked whether the clerk had accepted and docketed other e-filed notices of appeal, and counsel responded that he had heard anecdotally that the clerk had done so routinely. Counsel emphasized that the defendant had suffered no prejudice from the e-filing. Justice Garman asked counsel whether his position encouraged attorneys to violate local rules, and counsel responded that in fact, the local rules had been changed since the events at issue to authorizing e-filing notices of appeal.

The Court had almost no questions for the defendant. Counsel explained to the Court that at the hearing on plaintiff’s motion for reconsideration, he had deliberately offered no arguments at all in order to avoid reinvesting the court with jurisdiction. Counsel argued that there was nothing ambiguous about the rules, and counsel had failed to follow them. Justice Garman asked whether there was any prejudice to defendant, and counsel said there was — jurisdiction is the building block of everything that happens in court. Justice Theis wondered why the defective filing rose to the level of a jurisdictional issue, and counsel responded that it was because of the timing of the filing. Justice Theis raised the issue of prejudice again, pointing out that both the court and defendant had the paper filing. Counsel responded that the prejudice arose from subordinating the rights of a party whose lawyer followed the rules to those of a party whose lawyer didn’t. Counsel insisted that plaintiff hadn’t articulated a single viable reason why he didn’t follow the rule. When a rule is wrong or unwise, counsel seeks to change it, not disregard it.

On rebuttal, plaintiff pointed out that the local rule didn’t specifically say that "notices of appeal" couldn’t be e-filed. Justice Karmeier pointed out that the local rule referred to "notices" and asked what the rule referred to if not notices of appeal. Counsel responded that the rule was unclear. Justice Karmeier asked whether the local rules made all e-filings improper where counsel failed to qualify a case for e-filing at the outset, regardless of the notice of appeal issue, and counsel again responded that the e-filing limitation was not a mandate of the Supreme Court. Counsel pointed out that the revised local rule retained the ban on "appellate" documents, but specifically allowed e-filing of notices of appeal, so apparently the Circuit Court saw a distinction between the two. Justice Thomas suggested that rules were of no consequence if a party could defend the violation by arguing lack of prejudice. Counsel responded that if the clerk had promptly rejected the filing, he would have had an opportunity to rectify the problem. Justice Thomas asked whether that was counsel’s answer to the need for good cause to justify the local rules violation, and counsel agreed. Justice Thomas suggested that "good cause" referred to the initial rules violation, not what came later (the failure to reject the filing and give an opportunity for cure). Counsel responded that the rule was unduly vague and inconsistent with the court’s mandate.

VC&M should be decided within three to five months.

Illinois Supreme Court Holds Private Security May Stop and Detain To Enforce Association Rules

By Kirk Jenkins on Posted in Illinois

Can a homeowners’ association private security officer stop and briefly detain a resident who is exceeding the speed limit set for the association’s privately owned roads by the Board of Directors? Can the association enforce a small fine against the homeowner for his alleged violation? On Friday morning, a unanimous Illinois Supreme Court answered "yes" to both these questions in Poris v. Lake Holiday Property Owners Association, reversing in most respects a decision of the Third District of the Appellate Court. Our in-depth review of the facts and lower court rulings in Poris is here.  Our pre-argument preview is here.  Our report on the oral argument is here.

The defendant homeowners association was organized in 1965 in La Salle County. The Association Board of Directors voted to establish a 25 miles per hour speed limit on all private roads owned by the Association, with escalating fines to members depending on how fast the member was going. An accused violator has a right to a due process hearing before the citation committee, with the committee’s decision being appealable to the Board of Directors itself. To enforce the Association’s rules, an Association Security Department was established. The Security Department’s vehicles were equipped with oscillating lights, audio/video recording equipment and radar units. The security officers’ powers were limited. They didn’t enforce the Illinois Vehicle Code, they merely handed out citations for violations of the Association rules. When they stopped a vehicle which was driven by a member of the public — not a resident or a resident’s guest — they had no authority to issue anything; they merely warned the driver that he or she was on private property, and was violating the Association speed limit.

The plaintiff was clocked by radar traveling 34 miles per hour – a potential $50 fine. A security officer activated his oscillating lights and pulled the plaintiff over. The security officer directed the plaintiff to stay in his car, and took the plaintiff’s license back to his own vehicle.  A few minutes later, the officer returned to the plaintiff’s car, told him he was being recorded and was being issued a citation for speeding in violation of the Association’s rules.

A few months later, plaintiff sued the Association, the Board of Directors and the Chief of Security, seeking a declaratory judgment that the Security Department’s practices were illegal. Plaintiff also alleged false imprisonment. The trial court granted summary judgment and tossed the case out of court, but the Appellate Court reversed in several respects.

The Appellate Court analyzed the legality of the stop under 725 ILCS 5/107-3 as an attempted arrest by a private citizen. Holding that the Association’s rules weren’t an "offense" under the statute, the Court held that the stop was illegal. The Court also held that the Association wasn’t a "security company" under Illinois law, making the Security Department’s use of amber oscillating lights on its vehicles illegal. Finally, given its conclusion that the officer lacked probable cause to believe the plaintiff had committed an "offense," the Court held that the plaintiff had established the elements of false imprisonment.

The Supreme Court reversed each of the Appellate Court’s holdings in plaintiff’s favor. Writing for the Court, Justice Robert R. Thomas held that the Appellate Court had gone astray at the outset by analyzing the officer’s actions as those of a private citizen. Officers only stopped and detained vehicles on private property for violation of Association rules – not the Vehicle Code – and only issued citations to members. Given the long-established rule that Illinois courts don’t interfere with private associations’ enforcement of their internal rules absent mistake, fraud, collusion or arbitrariness, the Appellate Court was wrong to interfere with the internal affairs of the Association, according to the Court.

The Court rejected plaintiff’s theory that the Association was illegally exercising police powers. The General Not for Profit Corporation Act (805 ILCS 105/103.10(r)) granted the Association "all powers necessary and convenient" to accomplish its purposes. Besides, the Court pointed out, the Vehicle Code (625 ILCS 5/11-209.1) allows certain property-owning private associations to file a written request with local authorities to enforce the Vehicle Code on their private streets. The statute specifically said that filing such a request – which the plaintiff association had – did not prevent the private authority from adopting additional regulations governing its property, so long as they didn’t conflict with the law.

According to 625 ILCS 5/2-215(b)(13), private vehicles may not carry amber oscillating, rotating or flashing lights. Only security companies, alarm responders and "control agencies" are exempted. The Appellate Court had held that the Association wasn’t a security company according to the dictionary definition, but the Supreme Court pointed out that the Association fit comfortably within the definition of "company" from Black’s Law Dictionary. Concluding that the statute was ambiguous, the Court turned to legislative debates about the statute, and concluded that entities like the homeowners’ association security department were intended to qualify as "security companies," and thus the oscillating lights were legal.  Finally, the Court found that because the security officer had probable cause to believe that the plaintiff had committed a violation of Association rules, plaintiff’s claim for false imprisonment was barred.

Tort Claims for Interfering With Expected Inheritance Generally Not Barred After The Estate Closes

By Kirk Jenkins on Posted in Illinois

Friday morning, a unanimous Illinois Supreme Court held that in most cases, a tort claim for intentional interference with testamentary expectancy is not subject to the six-month statute of limitations on will contests. Reversing Division Three of the First District, the Court held in Bjork v. O’Meara that so long as the plaintiff isn’t passing up a concrete, non-speculative claim on the estate, a tort claim against the beneficiary who allegedly interfered can be brought within five years. Our in-depth review of the facts and lower court rulings in Bjork is here. Our pre-argument preview is here. Our report on the oral argument is here.

Bjork began in the spring of 2005, when the elderly decedent allegedly told the plaintiff that he owned two bank accounts: his checking account, worth about $800,000, and a second account which was not used for expenses and contained about $500,000. Plaintiff alleged that the decedent told her he wanted to name her the pay-on-death beneficiary of the account. The decedent’s personal banker confirmed this to plaintiff twice, and later that year, sent her a Power of Attorney for the account, listing the plaintiff as the beneficiary. A few weeks later, the decedent signed a power of attorney in favor of the defendant, revoking all power previously given to plaintiff; two months after that, he executed a will containing a residuary clause leaving everything to the defendant and his wife. For the next few years, the plaintiff and the decedent stayed in touch. The decedent ultimately died in early 2009.

The plaintiff appeared in the decedent’s estate proceeding, filing a petition for a citation to the trust company for recovery of property, asserting that she was the rightful owner of the bank account, and a petition for a citation for discovery of information. The trust company produced documents, but when the plaintiff petitioned for leave to depose the decedent’s personal banker, the petition was denied. The plaintiff filed a motion to reconsider and clarify, and the Circuit Court held that it lacked the authority to order the deposition. With that, plaintiff’s claim on the decedent’s assets became entirely speculative. The estate was closed in the spring of 2010. When plaintiff filed a separate tort claim against the defendant six months later for intentional interference with testamentary expectancy, but the claim was dismissed as untimely under 755 ILCS 5/8-1, which provides that any petition "to contest the validity of the will" must be filed within six months of the will’s admission to probate.

Writing for the Court, Justice Charles E. Freeman pointed out that a claim for intentional interference with testamentary expectancy was not a challenge to the validity of a will; it was a personal action against the individual tortfeasor. No one disputed that the plaintiff had filed her claim well within the five years allowed under 735 ILCS 5/13-205 for actions to recover possession of personal property or damages for its detention or conversion.

The Supreme Court had dealt with the collision between tort claims over expectancies and traditional will contests twice before. In Robinson v. First State Bank of Monticello, the Court held that the tort claim was not permitted when a will contest was possible and would have provided the claimant with adequate relief. Later in Estate of Ellis, the Court distinguished Robinson on the ground that the plaintiff in Ellis didn’t know about its claim against the estate, which flowed from an earlier will, so it had no way to file a will contest.

Based on Robinson and Ellis, the defendant argued that since the plaintiff not only knew about the probate proceeding, she intervened in it, her tort claim was barred. But mere knowledge wasn’t enough, the Court held; once the probate court erroneously refused to order the deposition of the decedent’s personal banker, the plaintiff was left with no evidence to support a claim against the estate. Since the plaintiff didn’t have the summary citation procedure available to her as the legislature intended, the tort action could go forward. Plaintiff’s action simply didn’t implicate the concerns about the finality of estate proceedings which motivated Robinson and Ellis, the Court found. The plaintiff wasn’t contesting the will or making any claim against the decedent or the estate; she was seeking money damages from a third party.

Two Year-End Retrospectives on the Civil Docket of the Illinois Supreme Court

By Kirk Jenkins on Posted in Illinois

With 2012 over and the January term of the Illinois Supreme Court in full swing, it’s time to look back, both on the highlights of 2012 and the first two years of Chief Justice Kilbride’s Court. For my review of the Court’s major civil decisions of 2012 – a mostly encouraging year before the Court for the defense bar – visit Law 360’s site (subscription required) here. For my statistical look at the first two years of the Kilbride Court, including District-by-District Appellate Court reversal rates and my analysis of the Justices’ voting patterns, see here, also on the Law 360 site.

Illinois Supreme Court Announces Two Civil Opinions to Be Filed Friday

By Kirk Jenkins on Posted in Illinois

This afternoon, the Illinois Supreme Court announced that it will file two new civil opinions on Friday morning:

  • Poris v. Lake Holiday Property Owners Association, No. 113907 – (1) May a property association authorize private security officers to stop and detain persons on its property for speeding on association-owned roads? (2) May such an association place oscillating amber lights on vehicles used by its security department? (3) Where plaintiff was ordered by a security officer to remain in his vehicle while a citation for speeding on association-owned roads was prepared, did the plaintiff adequately plead the elements of false imprisonment? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
     
  • Bjork v. O’Meara, No. 114044 – Does the six-month statute of limitations in the Probate Code, 755 ILCS 5/8-1, apply to a separate tort action for interference with testamentary expectancy which — if successful — would have the practical effect of invalidating the will? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.

En Banc Ninth Circuit Adopts Narrow Construction of Buckman Implied Preemption

By on Posted in Pharmaceuticals

As we last noted here, the expansive interpretation in Stengel v. Medtronic Inc. of implied preemption of state law medical device claims has been under en banc review.  The en banc opinion was released late last week.  It is, to put it mildly, a substantial adjustment from the view of implied preemption laid out by the prior 3-judge panel.  For my take on the opinion, you can visit the Washington Legal Foundation’s Legal Pulse blog, here.

Addressing the “Consolation Prize” – A Dilemma For Appellate Advocates

By on Posted in Texas

One more note on National Gas Pipeline Co. v. Justiss is appropriate. The Texas Supreme Court held that the landowners had failed to present admissible evidence that the permanent nuisance caused by the defendant had diminished the value of their property. Normally, the loss of such a “no-evidence” point leads to the appellate court reversing the judgment and rendering judgment for the defendant. The Texas Supreme Court, however, did not render judgment. It remanded the case for a new trial, reasoning that the prior jurisprudence may have misled the landowners into believing that their damages evidence was sufficient.

Thus, instead of being tossed out of court, plaintiffs were provided a second opportunity—with a roadmap opinion from the Supreme Court–indicating how their damages should be proved up. While the landowners may have preferred a recovery under the first verdict, the chance for a “do‑over” provided an important consolation prize.

This result raises questions for appellate advocates. Should the appellee be prepared to argue for a remand as a fall-back position? This is psychologically difficult. The party has already won the trial and obtained the judgment. Arguing for a remand in the event the appellate court believes the case should be reversed may seem unduly passive or negative. Nevertheless, if the case appears reasonably close and the appellant’s position seeks to change existing law, clarify a substantial ambiguity in the law, or resolve a conflict existing in the lower courts, appellees should consider mentioning remand as an alternative case resolution.

By the same token, appellants seeking a rendition of judgment should consider whether the appellate court may consider a remand and, if so, present arguments to preempt such a remedy. The appellant might wish to emphasize that the underlying law was clear and the appellee was warned in advance that its evidence would be insufficient. Appellants might also point out that the age of the case or the situations of the parties make remand for new trial an unsatisfactory remedy.

Primary Assumption of the Risk – 20 Years Later, Nalwa Confirms the Vitality and Breadth of Knight.

By on Posted in California

Implicitly marking the 20th anniversary of its seminal decision in Knight v. Jewett, which established the doctrine of primary assumption of the risk, the California Supreme Court confirmed both the continuing vitality and breadth of that decision in Nalwa v. Cedar Fair (2012), S195031. In Knight, a plurality of the Supreme Court held that a player in a touch football game had no duty to prevent injuries resulting from the inherent risk of playing this contact sport. In Nalwa, the Court confirmed 6-1 that this doctrine remains the law in California and also that it extends to the operator of bumper cars at an amusement park, and the inherent risks of, well, bumping. In both cases, the Court held that the only duty of operators, sponsors and fellow participants engaged in a recreational activity with inherent risks was not to increase those risks.

Guided by the facts in Knight, and its companion case Ford (which applied this doctrine to noncompetitive waterskiing), the most common application of primary assumption of the risk has involved physical sports, although the courts have sometimes used a broad definition of "sport," including: downhill skiing (Cheong – colliding skiers), baseball (Avila – injury from an inside pitch), motorcycle “off-roading” (Distefano – colliding motorcycles), golf (Shin – getting hit by an errant ball), sport fishing (Mosca – getting hit with a someone else’s fishing line ), rock climbing (Regents – falling to death after anchors gave way), river rafting (Ferrari – rider struck her head on the raft frame), and even a noncompetitive group bicycle ride (Moser – colliding bicycles), and a group motorcycle ride toy drive (Amezcua – against the organizers, after a 3rd party collided with a motorcycle). This doctrine also extends to the training and instruction of athletic activities, so that coaches and trainers have a duty not to increase the inherent risks of training for and learning a given sport (e.g., Kahn – addressing a coach’s instructions to dive into a shallow pool). Sports spectators also assume the risk of being in the vicinity (e.g., Nemarnik – hockey fan hit by a puck).

However, the language in Knight and Ford is broader than just sports or athletics, and more generally addresses recreational activities, repeatedly referring to the inherent risk in "the activity or sport" at issue. Following suit, a recent lower court decision abandoned any pretense that an activity had to be considered a sport and applied primary assumption of the risk to an injury resulting from participation in the closing fire ritual at the annual Burning Man festival, an event which was not, in any way, a sport. In Beninati, the plaintiff tripped and fell into the remains of a substantial bon fire, having deliberately walked through the remaining embers. In essence, the court found that if you play with fire you may well get burned, and no one else has a duty to prevent this.

In Nalwa, the Supreme Court clarified the scope of primary assumption of the risk as it applies to recreational activities, consistent with Knight and Ford, whether or not the activity might constitute a sport, such as bumper cars. As clarified, the doctrine applies to 1) recreational activities, 2) that involve an inherent risk of injury, 3) to voluntary participants, 4) where the risk cannot be eliminated without altering the fundamental nature of the activity, 5) and in which the participants are actively engaged. The last point was the basis on which Nalwa distinguished bumper cars from roller coasters. Once engaged, bumper cars are individually controlled by each driver, much like players in a sport, and this is an inherent part of the activity. In contrast, participants are only passively engaged in roller coasters, having surrendered all control over the carriage to the operator, who is therefore held to the duty of a common carrier for hire (as held in Gomez). Finally, this doctrine is not barred by the existence of regulations governing the recreational activity, including safety regulations, although such regulations could establish negligence per se, or set the bar on what risks are considered inherent.
 

Illinois Supreme Court Announces Anticipated Filing Dates for January and February

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court has announced its anticipated filing dates for January and February. Opinions are expected on Friday, January 25; Thursday, February 7; and Friday, February 22. Decisions on petitions for rehearing are expected on Monday, January 28th and decisions on petitions for leave to appeal are expected on Wednesday, January 30.

The Court made substantial progress in December with handing down decisions on cases heard during its September term. The remaining cases awaiting decisions from that term are:

Call of the Docket for September 19

  • In re Estate of Boyar, No. 113655 – (1) Is the doctrine of election recognized with respect to trusts? (2) If so, should the doctrine be applied when the property accepted was allegedly nominal in value? For our preview of the case, see here. For our report on the oral argument, see here. 

Call of the Docket for September 20

  • Ferguson v. Patton, No. 112488 — (1) Does Section 2-56-040 of the Chicago Municipal Code authorize the Inspector General of the City of Chicago to hire private counsel to enforce subpoenas? (2) May the Inspector General sue the Corporation Counsel of Chicago to enforce subpoenas? For our preview of the case, see here. For our report on the oral argument, see here.
     
  • The Hope Clinic for Women v. Adams, No. 112673 et seq. — Did the trial court properly dismiss an action challenging the constitutionality of the Illinois Parental Notice of Abortion Act, brought solely under state law, on the grounds that the plaintiffs’ equal protection and due process claims were barred by collateral estoppel, and the plaintiffs’ privacy claim was barred because Federal privacy law would require dismissal, and state privacy protections were interpreted in lockstep with Federal law? For our preview of the case, see here. For our report on the oral argument, see here.

Turning to the November term, the Court has five civil cases which might be decided in either January or February. They are:

Call of the Docket for November 15

  • Griggsville-Perry Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, No. 113721 et seq. – May an arbitrator apply “industrial common law” to find to find that a terminated employee had a right to a statement of specific acts or omissions allegedly justifying termination where the union contract at issue barred the arbitrator from modifying, nullifying, ignoring or adding to the terms of the contract? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.

Call of the Docket for November 20

  • State Bank of Cherry v. CGB Enterprises, Inc., No. 113836 — (1) Does the Federal Food Security Act of 1985, 7 U.S.C. § 1631(e), preempt the state UCC for purposes of security interests on crops? (2) If so, does the Act require strict or substantial compliance in order to effectively attach a security interest when crops are sold? Our pre-argument preview is here. Our report on the oral argument is here.
     
  • Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, No. 113873 — Was a self-insuring employer’s claim for reimbursement for workers compensation benefits paid a claim for workers compensation exempt from the Fund’s $300,000 liability cap under 215 ILCS 5/537.2? (2) Was a self-insuring employer an "insurer" under the Act, meaning that it was obligated to continue paying benefits until it became insolvent, rather than seeking reimbursement from the Fund? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
     
  • Poris v. Lake Holiday Property Owners Association, No. 113907 – (1) May a property association authorize private security officers to stop and detain persons on its property for speeding on association-owned roads? (2) May such an association place oscillating amber lights on vehicles used by its security department? (3) Where plaintiff was ordered by a security officer to remain in his vehicle while a citation for speeding on association-owned roads was prepared, did the plaintiff adequately plead the elements of false imprisonment? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
     
  • Bjork v. O’Meara, No. 114044 – Does the six-month statute of limitations in the Probate Code, 755 ILCS 5/8-1, apply to a separate tort action for interference with testamentary expectancy which — if successful — would have the practical effect of invalidating the will? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
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