The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Too Many Courts, not Enough Judges? A Proposal to Rationalize the Texas Appellate Courts

By on Posted in Texas

Texas has 14 intermediate appellate courts, more than any other state. In a recent Texas Tech Law Review article and in CLE presentations, Jones Day attorney, David Schenck, has questioned whether the state needs so many appellate courts. This large number of courts was created over many years on an ad hoc basis, seemingly due to the sprawling nature of Texas itself and a growing population. Mr. Schenck has reasoned that the large number of courts necessarily increases the odds of the development of circuit conflicts. This is particularly problematic in the Houston area, which is governed by two separate courts of appeal within the same geographical area. A trial court judge could find himself faced with conflicting opinions, both of which would be “controlling.”

Other anomalies exist as well. There is a substantial difference in case loads between the courts of appeals. While transfers for the purpose of docket equalization occur, these transfers can create thorny questions regarding the application of legal rules of the transferor’s court. Finally, a handful of counties have been placed in more than one appellate district. Aside from the possible conflicts problem, this situation has occasionally resulted in a “race to the court of appeal,” as litigants attempt to jockey for a more favorable court.

Continue Reading

The Forgotten Election – Three California Supreme Court Justices Stand For Election Tomorrow

By on Posted in California

With so much press devoted to political candidates and state propositions, there has been little attention to the three California Supreme Court justices who are standing for election tomorrow. Associate Justice Tani Gorre Cantil-Sakauye, currently sitting on the Third District Court of Appeal, is seeking confirmation of her nomination as the new Chief Justice, while Justices Ming W. Chin and Carlos R. Moreno are seeking to retain their existing positions on the Supreme Court. While a terse profile for all three justices is provided in the Voter’s Guide supplied by the Secretary of State, more detailed profiles are available:

California Supreme Court Sets Oral Argument for December 2010

By on Posted in California

The California Supreme Court has scheduled oral argument in three civil cases for hearing in Los Angeles in December 2007.

  • Cortez v. Abich, which will address the extent of the household domestic service exception to Cal-OHSA (Labor Code section 6300 et seq.) in light of the defendant home owner’s remodeling project, which added a new master bedroom, a new master bath, a new garage in place of a carport, and a new roof. For more details about Cortez, see the Employment – Other update page.
  • Sonic-Calabasas A, Inc. v. Moreno, addresses two issues: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee’s statutory wage claim? (2) Was the Labor Commissioner’s jurisdiction over employee’s statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978? For more details about Sonic-Calabasas A, Inc., see the Employment – Other update page.
  • California Farm Bureau Fed. v. California State Water Resources Control Bd., which evaluates Water Code § 1525: (1) Does § 1525, which was amended by the Legislature by majority vote in 2003 to impose annual fees on the persons and entities holding permits and licenses issued by the State Water Resources Control Board, impose an invalid tax or a lawful regulatory fee? (2) If §1525 is valid, may the Water Resources Control Board permissibly collect a fee levied on an entity which has sovereign immunity from a person or entity who has a contract with the immune sovereign? (3) If the statutory scheme is valid, but the regulations implementing it are invalid, did the Court of Appeal err in limiting refunds to only those persons and entities filing petitions for reconsideration before the Water Resources Control Board? For more details about California Farm Bureau Fed., see the Taxation & Assessments update page.

 

Illinois Supreme Court Sets Busy Civil Argument Schedule for November

By Kirk Jenkins on Posted in Illinois

This afternoon, the Illinois Supreme Court published its Call of the Docket for the November term, and the Court will hear oral argument in fifteen civil cases. The cases, with the issue or issues presented in each, are:

November 10:

General Motors Corp. v. Pappas, No. 108893 – (1) Does the 2005 amendment to the Property Tax Code, 35 ILCS 200/23-20, providing for the payment of interest on property tax refunds at the lower of 5% or the percentage increase in the urban CPI for the previous year, apply prospectively only? (2) Did trial court retain jurisdiction to grant judgment interest after the notice of appeal was filed? See Taxation

Illinois Department of Healthcare and Family Servs. v. Wiszowaty, No. 109151 – Did the 1987 amendments to Section 12-109 of the Code of Civil Procedure and Section 505 of the Illinois Marriage and Dissolution of Marriage Act make simple interest mandatory on past-due child support payments? See Civil Procedure.

Cookson v. Price, No. 109321 – Where plaintiff in a health care malpractice action failed to file a complying certificate, signed by a qualifying health care professional within the statutory period, attesting to the merit of the action, may the trial court give leave to file a replacement certification by another professional outside the statutory period?  See Civil Procedure.

November 16 –

Carr v. Gateway, Inc., No. 109485 – Where a commercial arbitration provision specifies a particular forum, which is no longer available when the dispute arises, is the entire arbitration provision rendered unenforceable? See Arbitration.

Ries v. City of Chicago, No. 109541 – (1) Are the defendants entitled to immunity from liability pursuant to Section 106(b) of the Tort Immunity Act for their alleged conduct in failing to terminate pursuit of an escaped prisoner? (2) If so, does the statutory exception allowing liability for willful and wanton behavior , found in Section 202 of the Act, apply to Section 4-106(b) immunity? See Government Law.

Johnston v. Weil, No. 109693 – Whether evaluations, communications, reports and information relating to a mental health professional’s independent evaluation in connection with custody dispute are confidential pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”), 740 ILCS 11/1 et seq.? See Domestic Relations.

In re Application of the County Collector of DuPage County for Judgment for Taxes for the Year 1999, No. 109711 – Does the Pension Code require a Forest Preserve District to pass an appropriation ordinance setting the amount of its mandatory contribution to the Illinois Municipal Retirement Fund before the District may validly enact a tax to pay for that contribution? See Taxation.

Kaufmann v. Jersey Community Hospital, No. 109738 – Where the defendant doctor allegedly committed a "deviant act of sex" upon the plaintiff during an allegedly unnecessary examination, did the patient’s injury "aris[e] out of patient care," meaning that the two-year statute of limitations found in 745 ILCS 10/8-101(b) applied, or did the one-year statute found in Section 101(a) of the statute apply? See Government Law.

Follow me below the jump for the last two days of the Court’s docket.

Continue Reading

Illinois Supreme Court: Settled Defendants Can Be Relevant to Sole Proximate Cause Defense

By Kirk Jenkins on Posted in Illinois

In Illinois, as in many states, a defendant can’t include settled defendants on the verdict form, seeking an apportionment of fault.

So is there a way to make a settled defendant’s conduct admissible?

Last week, the Illinois Supreme Court answered "yes."

Ready v. United/Goedecke Services arose from the death a construction worker in an accident at a power plant. The decedent’s administrator sued the general contractor and the scaffolding subcontractor, and the defendants cross-claimed against the decedent’s employer. The administrator settled with the general contractor and the employer, and went to trial against the subcontractor.

The subcontractor alleged as an affirmative defense that the accident was caused in whole or in part by others.

Plaintiff moved in limine to keep out all evidence of the settling defendants’ conduct. The Appellate Court held that a defendant’s fault should be assessed under 735 ILCS 5/2-1117 compared to all other defendants, including settled defendants, so evidence of their conduct was relevant and admissible. In 2008, the Supreme Court reversed, holding that settling defendants could not be apportioned liability under 735 ILCS 5/2-1117. The Court remanded for consideration of the defendant’s sole proximate cause defense.

On remand, the Appellate Court sent the case back to the trial court, holding that the Circuit Court erred by excluding evidence of the defendants’ conduct, and the Supreme Court once again allowed an appeal.

The Supreme Court reversed. The Court held that the Circuit Court should have permitted evidence of the settled defendants’ conduct with respect to the defendant’s sole proximate cause defense, and instructed the jury on the defense. Nevertheless, the Court declined to order a new trial, finding the error harmless.

The lesson for Illinois defense lawyers: just because your co-defendants have settled out doesn’t mean that an empty chair defense is unavailable.

California Supreme Court To Review the Potential Scope of § 17200 Claims

By on Posted in California

The Supreme Court has granted review in two civil cases:

  • City of Alhambra v. County of Los Angeles, S185457, in which the Court will address whether a county is barred from taking into account money diverted to a city from the county’s Educational Revenue Augmentation Fund when determining that city’s share of costs incurred by the county in assessing and allocating property taxes. For more details about City of Alhambra, see the Taxation and Assessments update page.
     

 

Illinois Supreme Court to File Opinions in Four Civil Cases Thursday

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court announced this afternoon that on the morning of Thursday, October 21, it will file opinions in four civil cases:

  • J. P. Morgan Chase Bank, N.A. v. Earth Foods, Inc., No. 107682 — Does Section 1 of the Sureties Act, 740 ILCS 155/1, also apply to guarantors?
     
  • In re Estate of Wilson, No. 108487 — Does 735 ILCS 5/2-1001(a)(3) of the Code of Civil Procedure permit a judge to make an initial determination of whether a petition to substitute judges for cause makes a threshold showing of prejudice before transferring the matter to another judge for decision?
     
  • Ready v. United/Goedecke Services, Inc., No. 108910 — Where a defendant has denied liability, may defendant introduce evidence regarding the conduct of other defendants who have settled in good faith pre-trial for the purpose of showing that one or more of the settling defendants were the sole proximate cause of plaintiff’s injuries?  
     
  • Wright Development Group, LLC v. Walsh, No. 109463 — (1) Where the Citizens’ Participation Act gives a defendant successfully moving to dismiss an action a right to an award of attorneys’ fees and costs incurred in connection with the motion (735 ILCS 110/25), was defendant’s appeal from denial of his motion to dismiss mooted by the subsequent dismissal of the action on other grounds?  (2) If not, was defendant entitled to dismissal of the defamation action pursuant to the Act?

For further details on these four cases, click our Illinois Supreme Court Update, and then Surety, Civil Procedure, Tort, and Civil Procedure, respectively.

State Public Utilities Commission Has Exclusive Jurisdiction Over Claims that Utility Unreasonably Destroyed Crops Beneath Power Lines

By Frederick Baker on Posted in California

A public utility, Pacific Gas and Electric Company, owns easements across rural properties traversed by its electric transmission lines.  The easements typically, as here, authorize PG&E to trim vegetation in the vicinity of its power lines to prevent accidental contacts that can cause fires and related damages.  After such a fire caused massive and widespread destruction and power outages in the Northeast and southern Canada in 2003, PG&E and other utilities across the country began trimming more aggressively to prevent, to the extent possible, accidental contacts.  The California Public Utilities Commission had regulated the vegetation management practices of the state’s utilities, establishing minimum (but not maximum) power line clearances.

Continue Reading

The California Supreme Court Schedules Oral Argument For Four Civil Cases

By on Posted in California

The Court will hear oral argument on four civil cases this November, addressing a variety of issues:

  • Cassel v. Superior Court. (Wasserman, Comden, Casselman & Pearson),S178914: (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evid. Code §§1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evid. Code §§1119(c) and 1122(a)(2)? Oral argument is scheduled for 11/2/10. For more details about Cassell, see the Attorney-Related update page
  • Kwikset Corp. v. Superior Court, S171845: Does a plaintiff’s allegation that he purchased a product in reliance on the product label’s misrepresentation about a characteristic of the product satisfy the requirement for standing under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that the plaintiff allege a loss of money or property, or is such a plaintiff unable to allege the required loss of money or property because he obtained the benefit of his bargain by receiving the product in exchange for the payment? Oral argument is scheduled for 11/3/10. For more details about Kwikset, see the Torts & Products update page.
  • In re Enforcement Against Dana Point Safe Harbor Collective of City of Dana Point City Council Subpoena, S180365: Is an order compelling compliance with a legislative subpoena issued under Gov. Code § 37104 appealable as a final judgment? This issue is raised in several consolidated matters after the Court of Appeal issued a series of unpublished orders that the underlying was not an appealable order and could only be challenged by petition for extraordinary writ. Oral argument is scheduled for 11/2/10. For more details about these consolidated matters, see the Appeals & Writs update page.
  • International Assn. of Firefighters v. Public Employee Relations Bd., S172377: (1) Is the decision by the Public Employee Relations Board not to issue an unfair labor practices complaint under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) subject to judicial review? (2) Is a decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining under the Act? Oral argument is scheduled for 11/3/10. For more details about International Assn. of Firefighters, see the Employment -Other update page.
     

 

Illinois Supreme Court Allows Petitions for Leave to Appeal in Eight New Civil Cases

By Kirk Jenkins on Posted in Constitutional Law, Illinois

Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases. They are:

  • Sheffler v. Commonwealth Edison Co., 399 Ill.App.3d 51 (1st Dist., 2010), which involves the question of whether a complaint seeking injunctive and damages relief in connection with defendant’s alleged failure to give priority, in restoring power after storms, to customers dependent on electric life support system, fell within the exclusive jurisdiction of the Illinois Commerce Commission;
     
  • Genius v. County of Cook, 398 Ill.App.3d 321 (1st Dist 2010), which involves the question of whether the Cook County Employee Appeals Board had jurisdiction to decide disciplinary charges against officer based upon abolished rules;
     
  • Italia Foods, Inc. v. Sun Tours, 399 Ill.App.3d 1038 (2nd Dist., 2010), which involves the question of whether federal Telephone Consumer Protection Act required that Illinois legislature enact enabling legislation before private claims under the TCPA could be heard in state courts;
     
  • Board of Education of Auburn Community Unit School Dist. No. 10 v. Illinois Department of Revenue, 398 Ill.App.3d 629 (4th Dist. 2010), which involves the question of whether the Property Tax Extension Limitation Law applied to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL;
     
  • Vincent v. Alden-Park Strathmoor, Inc., 399 Ill.App.3d 1102 (2nd Dist. 2010), which involves the question of whether a claim for common law punitive damages pursuant to the Nursing Home Care Act survives the death of the patient;
     
  • Palm v. 2800 Lake Shore Drive Condominium Association, 401 Ill.App.3d 868 (1st Dist. 2010), which involves the question of whether provisions of the Chicago Condominium Ordinance requiring production of documents were preempted by purportedly conflicting Illinois state law;
     
  • A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 401 Ill.App.3d 326 (4th Dist. 2010), which involves the question of whether statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violated the takings clause of either the federal or state constitutions; and
     
  • Phoenix Insurance Co. v. Rosen, [Rule 23 Order] (1st Dist. 2010), which involves the question of whether the provision permitting trial de novo following arbitration was void and unenforceable pursuant to public policy.

For further details on all of these cases, click the "Illinois Supreme Court Update" to the right of this page.

LexBlog