Fifth District dismisses Tyson appeal

By Ann Knef | Sep 22, 2008


The Fifth District Appellate Court has dismissed an appeal by Tyson Foods, which faces a Madison County class action suit for allegedly putting too much water in prepackaged chicken.

Tyson had filed a motion for summary judgment on the basis that federal law preempts plaintiffs' claims. It was denied by Madison County Circuit Judge Ralph Mendelsohn; Tyson appealed.

In an opinion released Sept. 19, Justice Stephen Spomer wrote that Tyson's appeal lacks appellate jurisdiction.

Lead plaintiffs Timothy A. Rogers and Alan Westfall, who propose to represent a class involving 33 states, filed suit in 2001.

"The defendant's jurisdictional statement invokes the jurisdiction of this court to review interlocutory orders granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction," Spomer wrote.

He wrote that the cases cited by Tyson in its appeal dealt with "whether the preemption issue was within the scope of the review of a properly appealable order granting or denying a motion to stay proceedings or a motion for a preliminary injunction."

"The question in all the cases cited by the defendant was whether or not the preemption issue was sufficiently related to the authority of the circuit court to enter the properly appealable order granting or denying the injunction or stay in order to place the preemption issue within the scope of review," Spomer wrote.

"The cited cases do not stand for the proposition that the preemption issue is always appealable as an interlocutory appeal as of right under Illinois Supreme Court Rule 307(a). To hold otherwise would be to ignore the long-standing principle that only final judgments or orders are appealable unless the particular order falls within one of the eight specified exceptions enumerated by Illinois Supreme Court Rule 307."

Justices Bruce Stewart and Richard Goldenhersh concurred with Spomer.

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