In a decision released December 2, 2014, the Illinois Appellate Court, Second District, held that a nunc pro tuncorder that added Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to a previously entered final, but not appealable, dismissal order, was ineffective to confer appellate jurisdiction to review the original order. As a result, the appellate court concluded it lacked jurisdiction to consider the appeal and dismissed the case. 

In Harreld v. Butler, 2014 IL App (2d) 131065, the trial court entered an order on September 16, 2013, granting the motion of the third-party defendant, the City of Elgin, to dismiss the third-party complaint filed by DVBC, Inc. The September 16 order did not contain a finding pursuant to Rule 304(a), despite other claims pending. On October 10, DVBC filed a notice of appeal. On November 21, on DVBC’s motion, the trial court entered an agreed order correcting the September 16 order nunc pro tunc, and specifically found that the September 16 order was a final and appealable order, and that there was no just reason to delay enforcement or appeal, or both. DVBC did not file an amended notice of appeal.

In addressing sua sponte the question of its jurisdiction, the appellate court ultimately concluded that it lacked jurisdiction to reach the merits. The appellate court noted that the trial court’s September 16 dismissal order did not originally contain a finding pursuant to Rule 304(a). It then concluded that “our jurisdiction depends on whether the dismissal order was properly corrected nunc pro tunc to include a Rule 304(a) finding.” Id. ¶ 12.

In reviewing the law respecting nunc pro tunc orders, the appellate court observed, “[a] nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then.” Id. ¶ 13 (Emphasis in original) (citing Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055 (1979)). The court noted that, because a nunc pro tuncamendment may reflect only what was actually done by the court but was omitted due to clerical error, “a nunc pro tunc amendment must be based on some note, memorandum, or other memorial in the court record.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citingPagano v. Rand Materials Handling Equipment Co., 249 Ill. App. 3d 995, 998-99 (1993)). Moreover, the court noted that a nunc pro tunc order “may not be used to cure a jurisdictional defect, supply omitted judicial actions, or correct a judicial error under the pretense of correcting a clerical error.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citing In re Marriage of Takata, 304 Ill. App. 3d 85, 92 (1999)). 

Against this backdrop, the appellate court pointed out that DVBC had attempted to “correct” the September 16 dismissal order by supplying an omitted judicial action – adding Rule 304(a) language. Yet the record, it was noted, was devoid of any indication that the trial court had actually made such a finding or that the original order lacked a Rule 304(a) finding due to a clerical error. “[T]he order made no reference to Rule 304(a) and the record does not contain a transcript of the hearing on the motion to dismiss.” Harreld, 2014 IL App (2d) 131065, ¶ 14. Given these findings, the court concluded that the failure to include the Rule 304(a) finding in the original order was not a clerical error but instead was an omitted judicial action. As a result, “adding a Rule 304(a) finding is outside the power of a nunc pro tunc order.” Id. 

The court found support for its determination in Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995), from the Illinois Appellate Court, First District, which found that, based on similar facts, a nunc pro tunc order was ineffective to confer a jurisdictionally satisfactory Rule 304(a) finding. 

The Harreld court noted that a party may, at any time, request the circuit court to enter a Rule 304(a) finding as to a final order. Harreld, 2014 IL App (2d) 131065, ¶¶ 16-17. According to the court, “[h]ere, instead of requesting that the trial court enter a Rule 304(a) finding as to its dismissal order, DVBC sought to correct the order nunc pro tunc, despite the record being devoid of any indication that the absence of a Rule 304(a) finding in that order resulted from a clerical error. Thus, as in Shanklin, there was no proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack jurisdiction.” Id. ¶ 17.

Justice Zenoff authored a special concurrence, agreeing that the parties and trial court improperly used a nunc pro tunc order to “add” a Rule 304(a) finding to the original dismissal order. Id. ¶ 23. The special concurrence first questioned the reliance on the Shanklincase, since it had been decided prior to the 2007 amendments to Rule 303(a)(2), which provide a safety valve for prematurely filed notices of appeal. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008). Justice Zenoff observed that Rule 303(a)(2)’s saving provision applied in two scenarios: (1) when a notice of appeal is filed before the last pending post-judgment motion is resolved, or (2) when a notice of appeal is filed when other claims remain pending. Id. ¶ 25. The saving provision provides that a prematurely filed notice of appeal “becomes effective” in the second scenario when a final judgment as to all pending claims is entered. The second scenario, the special concurrence noted, is concerned with jurisdiction pursuant to Rule 304(a), which generally provides that a court lacks jurisdiction where a party appeals from “a final judgment as to one or more but fewer than all of the parties or claims” unless the trial court has made “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a). However, “if a litigant files a notice of appeal from a final judgment that neither resolves all pending claims nor contains a Rule 304(a) finding, then Rule 303(a)(2) steps in to ‘save’ the notice of appeal by making it effective when a final judgment is entered as to all remaining claims.” Harreld, 2014 IL App (2d) 131065, ¶ 26.

Justice Zenoff said that, “[w]hat DVBC should have done *** was to file a motion for a Rule 304(a) finding,” and in its motion explain why a Rule 304(a) finding was warranted. Id. ¶ 30. “Had DVBC filed a motion for a Rule 304(a) finding ***, and had the trial court granted it, then DVBC's premature notice of appeal would have become effective on the date the trial court made the finding.” Id. ¶ 31.

Although seemingly placing form over substance, the Harreld decision suggests that in future scenarios, the better course of action is to simply move in the trial court for entry of a Rule 304(a) order, and then either amend the original notice of appeal, or file a new notice of appeal from the order containing the Rule 304(a) language. It is also at least open for thought as to whether an amended notice of appeal would suffice. The court mentions that DVBC failed to do so and then again makes note of this omission when discussing the Shanklin decision. However, the court’s ultimate ruling seems to foreclose this option.

In the Harreld case, it seems the court may have lost sight of the fact that there was, indeed, a Rule 304(a) finding made, regardless of whether it was in a fresh order or part of the original order via the nunc pro tunc order. This author believes that the details of how it came about should be irrelevant. Had the attempt to affect jurisdiction truly affected a party’s right, the given interpretation may well have been warranted. But DVBC will likely simply move to have a new Rule 304(a) finding made, and then file a new notice of appeal, after which the case will return to the appellate court on the merits. Indeed, the special concurrence even notes this likelihood, stating, “[w]e presume that DVBC can timely file a new notice of appeal once the trial court either enters a final judgment resolving all pending claims or enters a proper Rule 304(a) finding.” Id. ¶ 32. Moreover, “if during the pendency of this appeal the trial court has resolved all pending claims or entered a proper Rule 304(a) finding, and the time for filing a new notice of appeal has expired, then DVBC can file a petition for rehearing and to supplement the record, thereby establishing the effectiveness of the present notice of appeal.” Id.

Recommended Citation: Brad Elward, A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language  To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered, (December 7, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/12/a-nunc-pro-tunc-order-cannot-be-used-to.html#more.

How does advancing technology affect the judicial process? How do jurors react when, after having near-constant access to smart phones, being able to frequently check email, and being able to make decisions in a fraction of a second, they are placed in a courtroom, where evidence slowly unfolds and they are required to make decisions based on instructions that a judge provides? In a society where people primarily communicate through technological devices, will jurors' ability to assess a witness's tone and body language decrease? Will judges be able to make credibility determinations as interpersonal communication and interaction decrease? And, important for appellate practitioners, if a reviewing court can be virtually where the trial court was through technological innovation, will that affect the deference trial courts are afforded for factual determinations? 

These are just a few of the thought-provoking questions posed by Judge Daniel Tinder of the United States Court of Appeals for the Seventh Circuit during a recent ALA luncheon. Held on November 19, 2014, at the Union League Club in Chicago, the ALA hosted the luncheon in honor of Judge Tinder's many years of service on the federal bench. Judge Tinder has announced that he will retire early next year. 

The festivities began with Association President Steven F. Pflaum welcoming ALA members and guests, who included judges from the Seventh Circuit, the Illinois Appellate Court, and the Cook County Circuit Court. Thereafter, President Pflaum introduced Judge Tinder, noting that he has dedicated his career "almost exclusively" to public service. Before being appointed to the federal bench by President Reagan, Judge Tinder had served as a public defender and as the United States Attorney for the Southern District of Indiana, among other positions.

Judge Tinder began his remarks by sharing with the audience that he told his wife that his plan for retirement was to "drink beer and play golf." His wife responded, "that is a fantasy, not a plan." Judge Tinder also reflected on his talent of interpreting the language of judges, which he characterized as "exotic and nuanced." For example, when a judge says, "counsel, this is a fairly obscure area of law," the judge is really saying, "I have absolutely no clue what you are talking about." When a judge says, "I have read the briefs and I have a good handle on the issue," the judge is really saying, "I have a tee time." 

Turning to a more serious note, Judge Tinder focused his remarks on the judicial process in the Internet era. He noted metaphorically that children today are born with a smart phone in one hand and that increased access to technology and information influences everyone, including judges and jurors. He noted studies showing that the average person checks his or her email 30 times per hour, only 4% of website page views last longer than 10 seconds, and the average attention span in 2013 was 8 seconds (by comparison, Judge Tinder noted, a goldfish has an attention span of 9 seconds). Judge Tinder advised the audience that the next generation of judges will bring these experiences with them to the bench, which could significantly impact how controversies are adjudicated. 

Judge Tinder closed his remarks by reflecting on his retirement plans, which include taking some time off, consulting lawyers, partaking in arbitrations, and speaking out on public policy issues. Drawing a large laugh from his many colleagues in attendance, Judge Tinder advised that he will not be arguing cases before the Seventh Circuit.  

The Association thanks Judge Tinder for his engaging remarks and for his many years of service on the bench, and wishes him the very best during retirement. 

During the first weekend in November, the Association convened in Chicago to host its annual moot court competition. The two-day event draws law students from across the country - from New York to California. The competition provides the students with an opportunity to draft an appellate brief and present oral arguments. ALA members serve as judges during the preliminary rounds, while members of the Illinois judiciary mainly comprised the bench for the semi-final and final rounds.

The competitors were asked to argue a challenging hypothetical involving two issues on appeal. The first issue involved whether the trial court erred in denying a defendant's motion suppress evidence of certain statements the defendant made during a search of his home, which included whether the defendant was "in custody" for the purposes of Miranda, whether the defendant's silence should have been admissible as evidence of guilt, and whether the public safety exception to Miranda applied. The second issue involved whether the trial court erred in concluding that a federal agent's testimony was admissible as opinion testimony under Federal Rule of Evidence 701. The hypothetical was fact intensive and required students to address conflicting case law from the federal circuits. It also required the students to address different standards of review and be able to comprehend the deference a reviewing court must afford the trial court based on the issue presented.

In the final round, a hometown team from Loyola University Chicago comprised of Jon Puskar and Scott Kater, bested a strong team from Western State College of Law, which is based in Fullerton, California. The Western State participants were Kylie Starr, Lynet Shigg, and Alexander Shaaban. The Association also presented awards for the best oral arguments and best briefs.

The ALA thanks our many sponsors, which included Neil, Gerber & Eisenberg LLP (platinum sponsor); Sidley Austin LLP (gold sponsor); Adler Murphy & McQuillen LLP, Donohue Brown Mathewson & Smyth LLC, Forde Law Offices LLP, Hall Prangle and Schoonveld LLC, Law Offices of Michael W. Rathsack, and Quarles & Brady LLP (silver sponsors); and Kavanagh Grumley & Gorbold LLC (bronze sponsor). The Association congratulates all participants for their hard work and the moot court committee on another successful competition. The Association also thanks members of the judiciary, ALA members, and appellate practitioners who served as judges.

Staying apprised of recent developments in the state’s high court is a necessity for both trial and appellate practitioners. By simply becoming an ALA member, you can enjoy complimentary and convenient access to Cases Pending, a must-have resource that compiles and synthesizes data from the Illinois Supreme Court’s docket to provide ALA members with up-to-date information about current civil, criminal and disciplinary matters before the court. Chaired by seasoned appellate practitioners Joanne R. Driscoll and Clare J. Quish, the Cases Pending committee publishes the catalogue five times each year.

To view two excerpts from the recent edition of Cases Pending, please continue reading this post. The excerpts discuss In re Marriage of Eckersall, No 117922, which will address whether a custody and visitation order was injunctive and immediately appealable under Rule 307(a)(1), and  Anthony Williams v. BNSF Railway Co., No. 117444, which addresses whether a notice of appeal was timely filed. Both cases are scheduled for oral argument on Thursday, November 20, 2014.

FAMILY LAW – JURISDICTION

No. 117922
In re Marriage of Eckersall

The issue in this case is whether a trial court’s interlocutory order imposing certain restrictions on the parents when the minor children were with them during the pendency of divorce proceedings constitutes an injunction under Supreme Court Rule 307(a).

In 2013, Raymond Eckersall filed a petition for the dissolution of his marriage, and his wife, Catherine, filed a counter petition. Raymond moved out of the family home and filed a petition to set up a temporary parenting schedule. At the status hearing, the parties could not reach an agreement, so the court entered an order that prohibited the parents from engaging in certain conduct with their children, including:  interfering with their minor children’s personal liberty; discussing any aspect of the ongoing litigation in the presence of the children; questioning the children about their preference with custody or visitation; and engaging in any kind of electronic surveillance of the children. This order was entered over Catherine’s objection that it infringed upon her right to parent and communicate with her children. Catherine appealed under Supreme Court Rule 307, arguing that the order was an injunction.

The Illinois Appellate Court, First District, dismissed the appeal for lack of jurisdiction, holding that the trial court’s order did not constitute an injunction and thus, jurisdiction was not proper under Rule 307(a). The court explained that what constitutes an appealable injunctive order under Rule 307(a) depends on the substance of the action, not its form. There was no indicia of injunctive relief and no evidence suggesting the minor children’s representative or either party sought an injunction. Rather, the function of the order more closely conformed to appropriate temporary relief set forth in the Illinois Marriage and Dissolution of Marriage Act. The order was intended to place restrictions on the parents during visitation and was not the equivalent of a preliminary injunction. 

Justice Mason dissented, stating that the appellate court had jurisdiction to review the “broad-ranging injunction” entered by the trial court. She explained that the very definition of restraining Catherine or Raymond from engaging in certain behavior constituted an injunction. Further, she concluded that the order was overly broad and defective on both procedural and substantive grounds.

Appellate Court Decision:  2014 IL App (1st) 132223.  Hyman, P.J. with Pucinski, J., concurring.  Mason, J., dissenting. 

PLA Allowed:  07/24/2014

Appellant Counsel:  Benton H. Page, Pamela Hutal, David Friedman, LLP, 135 South LaSalle Street, 36th Floor, Chicago, Illinois 60603, (312) 782-2220. 

Amicus Curiae:  Illinois Chapter of the American Academy of Matrimonial Lawyers.

* * * * * *

APPELLATE JURISDICTION

No. 117444

Williams v. BNSF Railway Co.

The issue in this case is whether the 30-day period for filing the notice of appeal began to run when the circuit court orally denied the defendants’ post-trial motions, leaving open a request for setoff (which was not directed at the judgment), or when the court subsequently entered a written order addressing the setoff issue.

In November 2011, the circuit court entered judgment on the jury’s verdict in favor of the plaintiff, assigning 50% fault to the plaintiff, 37.5% to BNSF and 12.5% to a third-party defendant, Quality Terminal Services, LLC (“QTS”). It also denied BNSF’s separate claim against QTS for contractual indemnity. QTS and BNSF filed post-trial motions. BNSF sought a new trial or judgment notwithstanding the verdict. It also sought a remittitur of the award for lost wages or Railroad Retirement Board (“RRB”) disability payments to Williams and a setoff for the RRB taxes that BNSF would be required to pay on the award of lost wages.

On April 18, 2012, at the hearing on post-trial motions, the circuit court orally denied the post-trial motions with the exception of BNSF’s taxation issue, taking that issue under advisement. No entry was made on the court docket reflecting these rulings. On June 6, the circuit court heard additional argument on the remittitur issue (noting that it had already denied that request) and the taxation issue. A written order was entered on that day stating, in part, “For the reasons stated by the Court, on record, on June 6, 2012, post-trial motions related to disability payments [and] taxes are denied.” The order also stated, “This order is final and appealable.” BNSF filed its notice of appeal on June 29, 2012. Williams moved to dismiss BNSF’s appeal, joined by QTS, arguing that BNSF’s notice was untimely because it was not filed within 30 days of April 18.

The appellate court initially denied the motion to dismiss; but, after merits briefing in which Williams again raised jurisdiction, the appellate court dismissed BNSF’s appeal holding that the April 18 oral ruling was effective on that date and that the 30-day period to appeal began to run from that date.  The court reasoned that the circuit court unequivocally denied the post-trial motions on April 18,  did not refer to or request preparation of a written order, and if there was any question as to finality, it was incumbent on BNSF to seek clarification within 30 days of April 18.  The court also reasoned that BNSF’s pending setoff request did not make the April 18 ruling nonfinal because it was not post-trial relief directed at the judgment and that the circuit court’s reconsideration of BNSF’s remittitur argument on June 6 did not delay finality because the court lacked jurisdiction to consider that issue after 30 days from April 18. 

BNSF contends that the appellate court’s opinion violates Supreme Court Rule 272 and conflicts with Swisher v. Duffy, 117 Ill. 2d 376, 378-80 (1987) and Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App. 3d 971, 983-84 (1st Dist. 1975), in which the courts held that when the trial court does not require the submission of a written judgment order, an oral judgment does not become final until the clerk makes an entry on the official docket. It further argues that the appellate court’s opinion renders the effective date of judgments uncertain whenever the trial court issues an oral ruling.

Appellate Court Decision:  2013 IL App (1st) 121901, 998 N.E.2d 543.

PLA Allowed:  05/28/14

Appellant Counsel:  Raymond H. Groble III, Sean M. Sullivan, Jeffrey J. Scolaro, Daley Mohan Groble P.C., 55 West Monroe Street, Suite 1600, Chicago, Illinois  60603, (312) 422-9999.

In a patent infringement lawsuit, prior to trial on the merits, the federal district court typically conducts a hearing in which the court examines evidence concerning the meaning of the patent’s claims. The court then issues a claim construction opinion that provides the context for trial of the infringement claims.

In BRK Brands, Inc. v. Nest Labs, Inc., No. 13 C 7900, 2014 WL 2854493 (N.D. Ill. June 24, 2014), Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, sitting as a district court judge, issued a claim construction opinion that undermined the basis for much or all of the plaintiffs’ patent infringement claims. Rather than continue to litigate in the district court, the parties entered into a stipulation for the entry of judgment against the plaintiffs. Pursuant to the stipulation, the parties then requested the court to enter judgment, which the plaintiffs intended to appeal to the Federal Circuit.

Posner observed that, unless his claim construction ruling was reversed, the infringement claims were doomed, and that the plaintiffs did not want to spend money continuing to litigate in the district court. He further noted the high rate of reversal of claim construction rulings by the Federal Circuit, and the fact that the Federal Circuit entertained appeals from cases in this procedural posture.

He expressed concern, however, that no basis existed for appealing from a stipulated judgment of non-infringement under the federal civil rules. He referred to such an appeal as a “back-door method of interlocutory appeal.” By contrast, said Posner, a federal criminal rule, Rule 11(a)(2), allows a criminal defendant to enter a conditional plea of guilty, while reserving the right to have an appellate court review an adverse pretrial determination, and then withdraw the guilty plea if successful. No such procedure for appealing a “death knell” interlocutory order applied on the civil side. Allowing the appeal, moreover, could leave the final judgment rule provided in 28 U.S.C. § 1291 “in tatters.”

Here, the parties agreed that the stipulated judgment was equivalent to the grant of summary judgment in favor of the defendant. Posner took that concept a step further and cited authority for the proposition that a court can grant summary judgment even though neither party has moved for it, so long as the party against whom judgment is entered has had an opportunity to be heard.

Ultimately, Posner said that he preferred the summary judgment approach over a stipulated judgment. Since the plaintiffs conceded that they had no basis for opposing summary judgment, he therefore denied the motion for a stipulated judgment and granted summary judgment in favor of the defendants.

Recommended Citation: Don R. Sampen, As a Means to Appeal, District Court Grants Summary Judgment Over Stipulated Judgment,The Brief, (Nov. 13, 2014), http://applawyers-thebrief.blogspot.com/2014/11/as-means-to-appeal-district-court.html#more.

Pat Milhizer is the editor of the Chicago Daily Law Bulletin and Chicago Lawyer magazine. Before becoming editor, his beat was the Daley Center, where he covered the Cook County Circuit Court and Illinois Appellate Court. Teddy Greenstein is a sportswriter for the Chicago Tribune, and his beat covers Chicago sports and Northwestern-Big Ten football and basketball. On October 30 at the Union League Club in Chicago, they discussed a common concern with all of us: writing under pressure. 

Pat Milhizer described deadline pressure at its height--when Rahm Emanuel was thrown off the ballot for mayor. His article's first sentence read that the race for mayor had just gotten more interesting. He thought about his readers: lawyers, including those interested in municipal law. He thought not only about the key facts but also what the appellate court had decided. This was important because it was a 2-1 decision. He wanted to get the important content "high up," present the impact of the court's decision, and then transition to the rest of the article.

Teddy Greenstein similarly explained that our job is to make people wantto read what we write. He encouraged the audience to "go the extra mile" and do something different. He provided an example of an enterprise story in which he followed baseball's Frank Thomas to Las Vegas and turned it into a story. One of the best lessons he has learned is to "show, don't tell," that is, don't tell your reader that a person is generous, explain the conduct of the person so the reader will understand the person's generosity.

Past ALA president Mike Rathsack moderated the discussion and next asked them about overcoming the pressure of writing under time constraints. Pat Milhizer discussed some of the things we can do to put ourselves in a position to succeed, such as limiting distractions, clearing our mind, and prewriting arguments or issues. Next, he talked about "barstooling"--sitting down and telling the story as if we were in a bar talking to someone. Teddy Greenstein told the audience, with respect to word count, to write 1,000 words and revise that to a great 500 words. Keep revising; avoid adjectives, be concise, and use the most important facts. When you're finished writing, edit the work product by checking facts and trimming the unnecessary portions of quotations. Pat cautioned though, to ask for help when writing about unfamiliar topics or issues.

Mike Rathsack asked how to handle the one thing we all encounter: criticism. Pat Milhizer responded that he treats all criticism seriously. If there is an error, then it must be corrected. But when there is a misunderstanding or someone misreads the content, then 

there is not much he can do other than to focus on the reality of the facts. Rather than being defensive, Teddy Greenstein offers an apology and says that he will try harder the following week. But both agree it was necessary to let the person have his or her say. Mike also asked how they dealt with difficult people, and Teddy encouraged the audience to do the research before talking to the personalities; show that you put in the work to learn about them or the issues. In working with lawyers who do not wish to discuss a particular ruling, Pat stressed the need for accuracy in reporting, so his goal is to better understand what the ruling means.

Discussing the division of labor between writing and editing, Pat explained that the Law Bulletin was based on a time schedule. He suggested staggering the deadlines to decrease the pressure. Teddy discussed the various formats, such as his blog, in which he can post something quick but then add more later, such as a video clip.

The Association thanks Pat Milhizer and Teddy Greenstein for sharing their experiences and providing a refreshing viewpoint of writing under various constraints. The Association also thanks Mike Rathsack and Karen DeGrand for their service in organizing the program.

The Association continued its tradition of sponsoring an Appellate Practice Seminar at the Southern Illinois University School of Law in Carbondale. As in years’ past, the October 29, 2014, event coincided with the Illinois Appellate Court, Fifth District, sitting for oral argument at the law school. The seminar featured presentations from experienced appellate practitioners and law professors dealing with writing style and ethics, followed by a judicial panel discussion.

Illinois Supreme Court Justice Lloyd Karmeier, together with Justices Bruce Stewart and S. Gene Schwarm of the Illinois Appellate Court, Fifth District and Fifth District Appellate Court Clerk John Flood participated in a panel discussion moderated by past ALA president Bill Hardy. The panel covered a wide range of topics germane to appellate practice and procedure, and also entertained questions from attendees. 

ALA President Steve Pflaum presented a discussion on ethics. The topics covered included the rules applicable to attorney communications concerning members of the judiciary, responsibility of candor to the tribunal, and duty regarding ethical practice of fellow lawyers. Consistent with the seminar taking place in a law school setting, President Pflaum ’s presentation included challenging hypotheticals that sparked audience participation. 

Professor Cheryl L. Anderson, of the SIU School of Law, presented a writing instruction lecture that encouraged attention to active voice and avoidance of noun nominalization. Titled “Zombie Nouns and Other Impediments to Persuasive Written Advocacy,” Professor Anderson used references and clip art that hinted at a Halloween theme, which added fresh humor to her interactive discussion. 

The Association thanks the SIU School of Law for graciously hosting the seminar and all participants for an instructive and engaging program. 

The Association’s November luncheon will feature Judge John Daniel Tinder of the United States Court of Appeals for the Seventh Circuit. Judge Tinder will present “The Language of Judges,” which will focus on understanding comments from the bench that might help to guide litigation strategy. Judge Tinder will also entertain questions from the audience.

The luncheon will be held on Wednesday, November 19, 2014, at the Union League Club in Chicago. For more information and to register, please click here.

Seasoned appellate practitioners know that an issue needs to be properly preserved in the trial court if a reviewing court is to address it. The basics are simple. Litigants usually cannot raise an issue for the first time on appeal or appeal from the admission of evidence not properly objected to at trial. Most know that a party must also obtain a ruling on the objection.

But sometimes attorneys need to know more than the basics.

To preserve an issue that arises in a jury trial, a timely and proper posttrial motion is mandatory. The precise content of the motion is specified by law. The requirements for that content are enforced strictly. Errors and omissions in posttrial motions after a jury trial can derail the strongest appeals–even appeals that would have been successful absent such an error or omission in the posttrial motion.


Section 12-1202(b) of the Code of Civil Procedure provides:

“Relief desired after trial in jury cases *** must be sought in a single posttrial motion. *** The posttrial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief.” (Emphasis added.) 735 ILCS 5/12-1202(b) (West 2012).

Illinois Supreme Court Rule 366(b)(2)(iii) further provides:

“A party may not urge as error on review of the ruling on the party's post-trial motion any point, ground, or relief not specified in the motion.”  (Emphasis added.)  Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994).

“[A]ny point, ground, or relief.” Each of those words is loaded with meaning. Most importantly, the use of the word “or” expands the requirements. All points, grounds, and forms of relief must be specified. Just specifying the points and grounds is not enough.

Hamilton v. Hastings, 2014 IL App (4th) 131021, involved a negligence action and is a recent example of the stringent requirements regarding posttrial motions. At the close of the evidence in a jury trial, the plaintiff unsuccessfully moved for a directed verdict on the issue of liability. The jury then rendered a verdict for the defendant.

The plaintiff’s posttrial motion raised seven points, but asked for only one form of relief – a new trial. One of the seven points was that “the [c]ourt erred in failing to direct a verdict for the [p]laintiff at the close of evidence.” The trial court denied the motion, noting “the verdict may have been different than I personally would have entered if I was the finder of fact ***.” 

The plaintiff appealed only “from the trial court’s denial of his posttrial motion.” The plaintiff sought “judgment of liability against the defendant *** and a remand for trial on damages only” on appeal. Consistent with the plaintiff appealing from the denial of his posttrial motion, the plaintiff’s brief argued only for a new trial. Apparently, the plaintiff’s brief on appeal did not expressly seek judgment in his favor on the issue of liability. Nonetheless, the reviewing court noted, the plaintiff was “essentially asking this court to enter a judgment” in his favor on the issue of liability, calling it “a judgment n.o.v.”

The reviewing court explained that the plaintiff's failure to request a judgment n.o.v. was not a mere technical failure because the “supreme court has carefully preserved the distinction in the evidentiary standard courts apply to each.” Specifically, on the one hand, a directed verdict (or judgment n.o.v.) is proper when all of the evidence, viewed in the aspect most favorable to the opponent, so overwhelming favors the movant that no contrary verdict based on the evidence could stand. On the other hand, a motion for a new trial is proper when the trial court, after weighing the evidence, concludes that the verdict is contrary to the manifest weight of the evidence. A motion for a new trial, the reviewing court noted, would not implicate the same evidentiary standard for a judgment n.o.v., and therefore, the trial court did not have the opportunity to reconsider its decision to deny the plaintiff's request for a directed verdict. The reviewing court concluded that, because the plaintiff did not request a judgment n.o.v. in his posttrial motion, the plaintiff was “precluded from asking this court to enter judgment on liability.”

Important for both trial and appellate practitioners alike, the reviewing court conceded that the plaintiff wrote in his posttrial motion that the trial court erred in denying his motion for a directed verdict on the issue of liability. But that was not enough; it was a “mere allegation.” The reviewing court concluded that the plaintiff also had to specifically ask for that directed verdict in his posttrial motion.

The plaintiff raised the issue of the judgment he sought in his posttrial motion as a “point” and probably a “ground,” but fatally omitted to specifically request that judgment n.o.v. – the form of the “relief” he sought during the trial when he moved for a directed verdict. Two out of three may not be that bad in love songs, but it will not preserve an issue for appeal in a posttrial motion. See Meat Loaf, “Two Out of Three Ain’t Bad,” Bat Out of Hell (1977).

The reviewing court, however, did consider the plaintiff's appeal as framed by the notice of appeal, that is, the trial court's denial of his posttrial motion for a new trial. The court noted that, because the plaintiff did not sufficiently develop his argument regarding the trial court’s denial of his posttrial motion in his brief, it would have been justified in declining to address that issue pursuant to Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). Nonetheless, because the defendant decided to brief the issue as framed by the notice of appeal, he would not be prejudiced if the reviewing court decided that issue. The reviewing court concluded that the trial court did not abuse its discretion in denying the plaintiff's posttrial motion for a new trial. 

Posttrial motions require careful attention. Including the points and grounds is the easy part. Specifically asking for all the particular forms of relief requested–by name–requires more thought. And is required.

Recommended Citation: Lawrence A. Stein, "Any Point, Ground, or Relief" - Posttrial Motions Require Careful Attention, The Brief, (November 2, 2014), http://applawyers-thebrief.blogspot.com/2014/11/any-point-ground-or-relief-posttrial.html#more.

The Seventh Circuit had the opportunity to consider the contours of pendent appellate jurisdiction in Allman v. Smith, 764 F. 3d 682 (7th Cir. 2014). The matter involved a ruling from a motions panel reviewing the district court’s denial of a motion to stay proceedings pending an interlocutory appeal. The case is important for appellate practitioners because it highlights that, although pendent appellate jurisdiction is “an embattled doctrine,” it will be invoked when compelling reasons exist.

In Allman, the plaintiffs, former employees of a city in Indiana, sued both the mayor and the city claiming that they were fired because of their political affiliations. The mayor argued that he violated no constitutional rights; and alternatively, even if the firings violated the employees’ constitutional rights, the doctrine of qualified immunity applied and absolved him from liability. The city, whose liability was derivative, claimed that the mayor’s actions did not constitute a constitutional violation and also moved for summary judgment. The district court granted the mayor’s motion for summary judgment based on qualified immunity as to some plaintiffs, but denied the mayor’s motion for summary judgment as to two of the plaintiffs after finding that an issue of fact existed. The district court further denied the mayor’s motion that the proceedings be stayed pending appeal. The district court denied the city’s summary judgment motion as well as the city’s motion to stay further proceedings against it.



The Seventh Circuit first noted that there was no question that the mayor was entitled to a stay because of the qualified immunity claim. However, the more interesting question for the court was whether the city, who could not rely on qualified immunity, was entitled to a stay under pendent appellate jurisdiction.

The reviewing court observed that pendent appellate jurisdiction is “an embattled doctrine” that is significantly narrow in scope. It requires a compelling practical reason to allow an appeal from a ruling where there is otherwise no independent jurisdictional basis. The court found that the posture of the city’s case represented a compelling practical reason to stay further proceedings relative to the city pending resolution of the mayor’s appeal. The court noted that claims against the city depended on the outcome of the mayor’s appeal—if the merits panel agreed with the mayor’s principle argument that there was no constitutional violation, then the city would also be relieved of liability. Absent a stay, any proceedings against the city would have been for naught. The court also commented that the plaintiffs’ desire to proceed against the city pending the mayor’s appeal could result in two trials involving the same facts and witnesses—an outcome that the court deemed unattractive. Also unattractive was the possibility that there would be conflicting findings on the nature of the mayor’s conduct if the case against the city was to be tried while the mayor’s appeal remained pending. The court then concluded that a stay of proceedings as to the city was warranted due to the city’s claimed status as party “ ‘pendent’ because of its interdependence with the mayor’s appeal.” But the court cautioned that the pendent jurisdiction of the city’s claim was limited to asking for review of the denial of its motion to stay. It emphasized that it lacked jurisdiction over of the city’s appeal from any district court rulings other than the district court’s denial of the city’s motion to stay.

The net result was that the proceedings against both the mayor and the city were stayed pending the mayor’s appeal. The outcome of the mayor’s appeal will then determine whether a trial against the city will be necessary, and if so, the scope of issues to be tried.

Recommended Citation: Rosa M. Tumialán, Seventh Circuit Invokes Pendent Appellate Jurisdiction, the “Embattled Doctrine”, The Brief, (October 29, 2014), http://applawyers-thebrief.blogspot.com/2014/10/seventh-circuit-invokes-pendent.html#more.