Articles Posted in Appellate Procedure

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If it isn’t hard enough for parolees to manage a new life after serving their time in prison, at least they do not face unlimited searches and reduced expectation of privacy, according to the U.S. Court of Appeals. The court of appeals in Chicago rejected the “astonishing proposition” that parolees who knowingly violate the terms of their release are subject to virtually any and all searches.

The 7th Circuit U.S. Court of Appeals conceded that the parolees have a reduced expectation of privacy. However, that doesn’t mean that searches of parolees “conducted at random and based on no suspicion whatsoever” automatically pass muster under the Constitution’s Fourth Amendment.

“Society is prepared to accept that parolees have an expectation of privacy, even if they are up to no good,” wrote Justice John Daniel Tinder.

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Leona Smith, the mother of Perry Powell, was appointed guardian of her son’s person but not his estate after a judge ruled that Powell was disabled because of severe mental disability. Powell’s father died, allegedly because of medical malpractice. Attorneys were hired by Smith, who then acted as special administrator of the decedent’s estate to litigate a wrongful-death claim for her deceased husband, Powell’s father.

The wrongful-death medical malpractice case was settled, but the lawyers who handled it failed to follow the requirements of Section 2.1 of the Illinois Wrongful Death Act.

Powell would have shared in the settlement proceeds, which exceeded $5,000. According to Section 2.1 of the Illinois Wrongful Death Act, the probate court must be in charge of supervising the administration and distribution of those funds.

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In 2000, Boston attorney Richard Brody took a case that seemed at the time to be an obvious, straight-forward liability case that would most likely settle quickly — maybe without even filing a lawsuit. The case involved serious injuries suffered by another trial lawyer, Odin Anderson.

On Sept. 20, 1998 Anderson was crossing an intersection in a crosswalk after a long lunch in which he drank alcohol, when a bus, turning left, hit him before he reached the middle of the street. Anderson suffered a fractured skull and stopped breathing. Fortunately for him, the bus, owned by Partners Healthcare, was transporting a group of doctors. Several of the doctors acted on Anderson’s injury and administered CPR. Anderson, however, suffered a traumatic brain injury that required rehabilitation to walk, speak and perform daily activities.

Today he still has memory loss, a decreased sense of smell and problems with executive functions and higher-level thinking. He did return to practice law, but he must refer complicated cases to other attorneys. The insurance company for the bus company, American International Group Inc. (AIG) instead of settling this obvious liability case, concocted a new set of facts, suppressed evidence and fought payment of a judgment until it was ordered to honor a jury verdict 8 years later.

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The Illinois Appellate Court has reversed and remanded a decision by a Cook County Circuit Judge relating to a sale agreement for a condominium purchase. In November 2010, the Habitat Co., the Gautreaux Development Manager for the Chicago Housing Authority, signed a purchase and sale agreement with Tera Healy to buy her condominium for $250,000. The contract was contingent on Habitat and Healy getting final approval from the U.S. Department of Housing and Urban Development (HUD) and Healy’s lender approving a short payoff.

These approvals were met, but the 3721-3723 Elston Condominium Association intervened, exercising its right of first refusal and purchased Healy’s condominium. The housing authority filed a lawsuit against the association, charging it with tortious interference of contract and breach of contract, seeking specific performance: the sale of the condominium.

The authority argued that the contract between Habitat and Healy was valid and binding. Moreover, the authority argued that the association did not have the right of first refusal contained in any of its declarations or bylaws, but nonetheless attempted to exercise this right.

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Cheneka Ross, 13, was playing tag at a Chicago Park District Park playground while being chased by another child. She ran to the slide to avoid being tagged by one of her playmates. Cheneka climbed up the slide and as she started to slide down, one of her feet became caught on a piece of plastic near the slide’s bottom. She was not able to see the plastic from the top as the slide was curved. The girl fractured her ankle requiring surgery.

Cheneka’s mother, Artenia Bowman, filed a lawsuit against the Chicago Park District asking for her daughter’s medical expenses as well as damages, claiming that the district had acted willfully and wantonly toward the slide’s users. It was also alleged that the park district had received numerous complaints from the community about the slide’s condition and submitted multiple affidavits showed that the park district had received complaints about the slide’s defect since 2010.

The park district’s records system showed that in August 2010 the slide was “boarded up and waiting for repair.” One week prior to the incident with Cheneka, the park district log indicated that the “slide west of park [was] still broken.”

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Mei Pang was a passenger in a car driven by Ingrid Chan in January 2002 when a crash occurred between Chan’s car and another vehicle driven by Donald McGinnis. Pang was injured severely. McGinnis’s insurer paid Pang $100,000 to settle her personal injury lawsuit and claim.

Chan was insured by Farmers Insurance Group. Chan and her husband had a special “umbrella policy.” The umbrella policy covered the named insureds (the Chans themselves), any relatives of the Chans by blood, marriage or adoption or any person under 21 in the care of the named insured.

On Jan. 7, 2010, Pang filed a complaint for underinsured motorist coverage seeking coverage both from Farmers under the Chan umbrella policy and also from Mid-Century Insurance Co., which issued the Chans their primary auto insurance policy.

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The 7th Circuit Court of Appeals in Chicago has reversed a decision of a U.S. district court judge regarding whether a case should be remanded back to an Illinois state court. This case arises out of the bankruptcy of a company known as Parmalat. Parmalat was a large Italian food and dairy company that entered bankruptcy in Italy in 2013. Enrico Bondi was appointed “extraordinary commissioner,” which is the Italian version of a bankruptcy trustee.

In 2004, Bondi initiated in the Southern District of New York Bankruptcy Court, a proceeding under Section 304 of the U.S. Bankruptcy Code to “enjoin the commencement” of a lawsuit against Parmalat with respect to property involved in the Italian bankruptcy.

After filing the lawsuit in the Southern District of New York’s Bankruptcy Court, Bondi filed a separate lawsuit in the Circuit Court of Cook County against Grant Thornton International, an accounting firm. That lawsuit claimed that Grant Thornton was responsible for Parmalat’s collapse through its involvement in fraudulent audits of Parmalat’s books in violation of Illinois law.

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Mary Dicks died on Sept. 25, 2012. Her granddaughter, Jennifer Barber, was her closest living relative and her only heir. Barber claimed that Dicks died intestate and filed a petition to be named administrator of her estate.

However, Allison Ferconio, who was Dicks’s niece, filed a will with the Circuit Court. The will was dated May 23, 2012 naming Ferconio as executor and left Dicks’s estate to six individuals. On that list was Ferconio, but not Barber. The will was signed and witnessed by Richard Tebik and Robert Abraham who signed a standard attestation clause.

The attestation clause indicated that the will was signed in the presence of each of the two witnesses. There was a second attestation clause, claiming that Dicks signed the document as her will and acknowledged her signature in the presence of both witnesses. The court admitted the will and named Ferconio as her executor. Barber filed a request for a formal proof of will seeking the testimony of Tebik and Abraham.

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According to the Illinois Appellate Court, a corporate condominium association that was dissolved is in a legal standing the same as that of a dead natural person such as found in the case of Markus v. Chicago Title & Trust, 373 Ill.557 (1940).

Under Illinois §12.80 of the Business Corporation Act of 1983, a five-year window is open for suing a corporation on any claim that existed or liability that was incurred before the dissolution of the company.

In this particular case, the issue was whether (a) two subcontractors who are dissolved and allegedly botched work on a condominium project and (b) the general contractor who wasn’t sued by the condominium association until more than five years after the subcontractors closed shop. Does §12.80 block the general contractor from filing an indemnification, contribution claim against the defunct contractors, or do “equitable considerations” extend the deadline?

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The federal court rules are different than those in Illinois. Lawyers who may be used to operating under the Illinois Code of Civil Procedure need to be aware of Federal Rule of Civil Procedure 59(a), which says, “A motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment.” Under the Illinois Code of Civil Procedure, 735 ILCS 5/2-1202(c) and 5/2-1203(a), one is allowed 30 days to ask a state court judge to reconsider a judgment.

Unfortunately for Patricia Banks and her lawyer, she may have been following the Illinois Code of Civil Procedure rather than Federal Rule 59 when she asked the federal district court judge to reconsider the summary judgment it entered against her and in favor of the defendants.

Banks sued her former employer, the Chicago Board of Education, and her former supervisor, Florence Gonzalez, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and related violations of federal and state law. The case was filed in the U.S. District Court for the Northern District of Illinois.

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