This post was authored by Carson Griffis. Carson is counsel in the Litigation and Investigations group at Croke Fairchild Duarte & Beres, where his practice focuses on complex commercial litigation in both trial and appellate courts.
In the age of e-filing, the Illinois Supreme Court’s recent decision in Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corp., 2024 IL 129277, offers appellate practitioners several crucial lessons. First, it is important to confirm that a notice of appeal is being e-filed in the correct format under the local rules to reduce the likelihood that it will be rejected. Second, practitioners may want to consider submitting a notice of appeal for e-filing with enough time to resubmit the notice of appeal before the deadline in case it is rejected. Finally, if a notice of appeal is rejected after the deadline, practitioners should follow the appropriate procedures to create a record showing good cause or a reasonable excuse for the late filing.
Waukegan Hospitality Group, LLC, initiated an eviction action in the Lake County circuit court. After a bench trial, the circuit court entered judgment in favor of the tenant on March 1, 2021. According to Waukegan Hospitality, it submitted a notice of appeal for e-filing on April 1, 2021, which the clerk rejected on April 6, 2021. Waukegan Hospitality resubmitted the notice of appeal the same day, which the circuit court clerk accepted.
The appellate court dismissed Waukegan Hospitality’s appeal for lack of jurisdiction because its notice of appeal was untimely, and the Illinois Supreme Court affirmed. The Court emphasized that two potential avenues for relief exist if a notice of appeal submitted for e-filing is rejected after the relevant deadline has passed. First, under Illinois Supreme Court Rule 9(d)(2), “[i]f a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the [circuit] court, upon good cause shown.” Second, under Illinois Supreme Court Rule 303(d), a reviewing court “may grant leave to appeal” on “motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in the reviewing court within 30 days after the expiration of the time for filing a notice of appeal.”
Although the Court did not lay out a specific test for what may constitute a “reasonable excuse” or “good cause,” it offered two examples of situations that might satisfy those standards. First, citing Bank of Herrin v. Peoples Bank of Marion, 105 Ill. 2d 305 (1985), the Court stated that it had found a “reasonable excuse” under Rule 303(d) when an attorney recorded the incorrect date of a final judgment and, after discovering the honest mistake, immediately did everything possible to correct the error. Second, the Court stated that the circuit court clerk’s erroneous application of local rules in rejecting a notice of appeal likely would be a “compelling case” of “good cause” or “reasonable excuse.”
In Waukegan Hospitality’s case, however, it did not seek relief under Rules 9(d)(2) or 303(d), so the documents supporting its position were not in the record on appeal. Instead, Waukegan Hospitality simply included them in the appendix to its opening brief. Because they were not in the record, the Court disregarded them under the longstanding principle that materials outside the record may not be placed before a reviewing court in an appendix.
Finally, the Court left open the question of whether Rule 9(d)(2) is a proper method of establishing appellate jurisdiction, noting the split of authority on that issue. Compare O’Gara v. O’Gara, 2022 IL App (1st) 210013, ¶¶ 46-47 (Rule 9(d)(2) may be used establish appellate jurisdiction) with Waukegan Hospitality Grp., LLC v. Stretch’s Sports Bar & Grill Corp., 2022 IL App (2d) 210179, ¶ 15 aff’d 2024 IL 129277 (Rule 9(d)(2) “may not apply to a notice of appeal” because circuit court loses jurisdiction 30 days after final judgment). Because Waukegan Hospitality had not sought relief under Rule 9(d)(2), its applicability to a notice of appeal was not before the Court.
