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"The Brief" - The ALA Blog

  • February 23, 2014 9:41 AM | Anonymous member (Administrator)

    On February 25, 2014, the ALA and the Chicago Bar Association will host a forum featuring the candidates seeking election to the Illinois Appellate Court, First District, in the March 2014 Primary Election. Each candidate will be allotted time to discuss his or her qualifications and will participate in a moderated question and answer session. All candidates have been invited; acceptances pending.

    The event will be held from 12 p.m. to 1:30 p.m., and is free and open to the public. Click here for more information and to RSVP.

  • February 18, 2014 6:41 PM | Anonymous member (Administrator)

    Over the past two decades, the “mailbox rule” has enjoyed expanded applicability and precedential support in Illinois courts, easing the burden on the bar, their staffs and vehicles, and the environment that sacrifices its trees so we can file papers. The mailbox rule stems from Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009), which permits the mailing of documents for filing in Illinois reviewing courts on the day they are due, instead of having to physically transport the documents to one of the six reviewing courts spread widely throughout the state, as long as the document is accompanied with the specified proof of mailing--proof that is not difficult to muster. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing” is short enough to quote in full:

    "Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court."
    Decisions of those very reviewing courts have expanded the scope of the rule to include many filings in the trial court, including notices of appeal and post-judgment motions. In this author's opinion, applying the mailbox rule to post-judgment motions required some loose interpretation of the rule, which expressly applies to papers filed in the reviewing courts and notices of appeal filed in the trial court, but does not refer to post-judgment motions.

    Moreover, almost all papers filed in the trial and reviewing courts in Illinois can be mailed for filing on the date they are due; even if the paper is received and filed after the deadline, proper practice renders those papers timely on general principles not expressly tied to Rule 373. The only exceptions were documents initiating an action in the trial court, such as the original complaint, or a petition for relief from a judgment after the trial court lost jurisdiction of the matter, usually after 30 days.

    Now, pursuant to Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230, there is another exception. This new exception limits the application of the mailbox rule to certain rare filings in the appellate court. Under Nizamuddin, papers filed in the appellate court in appeals from orders dealing with requests for temporary restraining orders must arrive at the appellate court on the date they are due, and cannot benefit from the mailbox rule, even though the text of Rule 373 would seem to expressly apply to those filings. The text of Rule 373 refers to filing "records, briefs or other papers required to be filed within a specified time." (Emphasis added.)

    Unlike most civil actions, papers filed in the reviewing court in appeals related to requests for temporary restraining orders have their own special requirements in another Supreme Court Rule and cannot be served by mail, but rather must be served by personal delivery or facsimile transmission. Rule 307(d) (eff. Feb. 26, 2010), entitled "Appeals of Temporary Restraining Orders; Time; Memoranda" provides that these appeals shall be by petition filed in the "appellate court" within two days" of the order being appealed. Id. The Rule further provides:
    "The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought." (Emphasis added.) Id.
    The respondent has two days from the "filing of the petition" to file and serve (personally or by facsimile) its response. Replies are not allowed without court permission. There is to be no oral argument. Id. And the appellate court "shall consider and decide the petition within five days after the respondent's time to respond has expired." But the appellate court "may, if it deems it appropriate, order a different schedule," presumably including a different deadline for the respondent’s response or the court’s decision. Id.

    Thus, the tension between Rules 307(d) and 373 was at issue in Nizamuddin. The trial court entered a temporary restraining order on a Friday. Nizamuddin, 2013 IL App (2d) 131230,  ¶ 1. The petition required by rule 307(d) was mailed to the appellate court on the following Monday. The petition was served by mail on that Monday, too. The appellate court and the respondent received the petition on the next day, Tuesday. Id. ¶ 4.

    The reviewing court noted that the petitioner violated Rule 307 in various ways, including serving the petition by mail, when personal service or facsimile transmission was required. Id. ¶ 13. While the Nizamuddin court dismissed the appeal because the petitioner filed its notice of appeal in the trial court rather than the appellate court (id. ¶ 5), the takeaway is the reviewng court’s refusal to apply the mailbox rule. The court conceded that rule 307(d) does not "point blank" specify that the notice of appeal must be filed in the appellate court as opposed to the trial court, relying on its own interpretations of Rule 307(d). Nizamuddin, 2013 IL App (2d) 131230,  ¶ 6. Indeed, the reviewing court devoted the bulk of its discussion to the issue of the mailbox rule, three pages in the eight-page opinion, in a discussion that boiled down to common sense–appeals related to requests for temporary restraining orders are of a "highly expedited nature," given the two-day deadline and the requirement of personal or facsimile service. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7.

    "Given the highly expedited nature" of appeals under Rule 307(d), "the 'mailbox rule' [in Rule] 373 does not apply," the reviewing court concluded. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7. The court reasoned that "applying the mailbox rule" to these appeals "would lead to the practical evisceration of" the applicable two-day deadlines, "an absurd result," according to the reviewing court. Id. ¶ 9. In declining to apply the mailbox rule, the reviewing court noted the "tight deadlines and extraordinary service requirements" in appeals under Rule 307(d) distinguish them from most other civil appeals. Nizamuddin, 2013 IL App (2d) 131230, ¶ 10. The court also wrote that applying the mailbox rule would improperly subject these appeals "to the vagaries of mail delivery." Id. ¶ 11.

    Ultimately, the court "read the specialized filing deadlines of Rule 307(d) to control over the general mailbox rule of Rule 373." Nizamuddin, 2013 IL App (2d) 131230, ¶ 11. The court held that the more general provisions of Rule 373 must yield to the more specific rules in ruleR307(d). Id.

    Common sense prevailed. The petitioner failed to serve its petition properly. But the text of Rule 373 seemed to permit the petitioner to mail its petition on the date it was due. The appellate court rarely dismisses an appeal for improper service. Thus, Nizamuddin is a remarkable case that could rouse the supreme court into action, either by granting leave to appeal or amending one or both of the applicable rules.

    Recommended Citation: Lawrence A. Stein, Illinois Appellate Court: A New Exception to the Mailbox RuleThe Brief, (February 18, 2014),
  • February 14, 2014 4:24 PM | Anonymous member (Administrator)

    The Appellate Lawyers Association (ALA) is presenting a Seminar and Luncheon from 10:00 AM to 2:45 PM on February 19, 2014 at the Union League Club.

    The morning session from 10:00 AM to 12:00 Noon will cover Judicial Review of Administrative Decisions from Plaintiff, Defense, and Judicial Perspectives. The Presenters will be Carl Draper, Vice-Chair, ISBA Administrative Law Section; Brett Legner, Appellate Division, Illinois Attorney General’s Office; and Justice Robert Gordon, First District Appellate Court.

    The Luncheon from 12:00 Noon to 12:45 will honor the Appellate Justices present, including Justice Gordon and the five Justices assigned to review Workers Compensation Arbitrations: Justice Thomas E. Hoffman, First District; Justice Donald C. Hudson, Second District; Presiding Judge William E. Holdridge, Third District; Justice Thomas M. Harris, Fourth District; and Justice Bruce D. Stewart, Fifth District Appellate Court.

    The afternoon session from 12:45 to 2:45 PM will cover Judicial Review of Workers Compensation Arbitrations. The Presenters will include a Panel of the Justices assigned to hear these appeals. ALA President Brad Elward will also present on Perfecting Judicial Reviews to the Circuit Court and Common Pitfalls.

    4.00 hours of Continuing Legal Education (CLE) credit are available for the Seminar. The full agenda can be viewed at, where you can also register online. The cost is for Lunch and Full Day Seminar (4 MCLE Credit hours) is $90 for ALA Members, $110 for Non-Members, and $60 for Public Sector. The cost for Lunch and 1 Session of Seminar (2 MCLE Credit Hours) is $55 for ALA Public Sector Members, $75 for Non-Members, and $40 for Public Sector.

  • February 08, 2014 4:54 PM | Anonymous member (Administrator)

    In Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, the Illinois Appellate Court held that a party waives any objection to personal jurisdiction if the party has filed a responsive pleading before filing a motion to quash service, even if that pleading had no legal effect because it was filed after the entry of a default judgment. The holding in Kmiecik is important for appellate practitioners because it demonstrates that even a null pleading can result in a party waiving an opportunity to challenge a court's personal jurisdiction, including on appeal.

    Jozef Kmiecik was sued in a mortgage foreclosure action. After Kmiecik initially failed to respond to the complaint, Aurora filed a motion for default judgment. Id. ¶¶ 4-5. On the day the motion was to be heard, Kmiecik appeared before the court pro se and sought an extension of time to respond because he was trying to modify his loan. Id. ¶ 7. The court granted Kmiecik several extensions and ultimately gave Kmiecik a final deadline to respond, with the motion for default being set for a hearing one week after that deadline. Id. ¶ 8. Kmiecik did not appear for the hearing or file any response in advance of the hearing. As a result, the trial court entered a default judgment against him. Id. ¶ 9. Later that same day, Kmiecik filed an untimely general appearance and verified answer, admitting that he was the mortgagor. Id. Nothing further occurred until the property was sold and the trial court entered an order confirming the sale. Id. ¶ 10.

    Nearly 30 days after the trial court entered the order approving the sale, Kmiecik, now represented by counsel, filed a motion to vacate the default judgment and quash service under section 2-1301 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1301 (West 2010)), arguing that service was improper and, therefore, the trial court did not have personal jurisdiction over him. Kmiecik, 2013 IL App (1st) 121700, ¶ 11. The appellate court held that under section 2-301(a-5) of the Code (735 ILCS 5/2-1301(a-5) (West 2010)), Kmiecik waived his objections when he filed his verified answer, even though the answer was untimely. Kmiecik, 2013 IL App (1st) 121700, ¶ 18. Importantly, the trial court specified that Kmiecik did not object to personal jurisdiction in his answer. Id.

    Kmiecik argued that because the untimely answer was being used as a basis for establishing jurisdiction, it must also be grounds for vacating the default judgment. Id. ¶ 16. The appellate court disagreed, holding that the timeliness of his answer and the subsequent default had “no bearing” on whether he submitted to the court’s jurisdiction. Rather, he simply filed a responsive pleading before he filed a motion to quash service under section 2-1301(a), which results in waiver of any personal jurisdiction objections. Id. ¶ 24. Thus, even if Kmiecik had appeared at the hearing on the default and filed his answer at that time, avoiding the default judgment, he still would have submitted to the court’s jurisdiction because he filed a response before objecting to personal jurisdiction. Id.

    Recommended Citation: Gretchen Harris Sperry, The Cart Before the Horse: Personal Jurisdiction Exists When a Pleading is Filed Before Objecting to Jurisdiction, Even if That Pleading was NullThe Brief (February 8, 2014),
  • February 04, 2014 4:47 PM | Anonymous member (Administrator)

    An important aspect of appellate advocacy is providing trial counsel with proactive advice. Doing so can make a litigation team more effective and, ultimately, more successful. On January 30, 2014, the Association sponsored a brown bag luncheon at Baker & McKenzie LLP in Chicago, which featured a distinguished panel of experienced appellate practitioners sharing their insights on how appellate lawyers can provide advice to trial attorneys.

    Michael A. Pollard, past Association president and partner at Baker & McKenzie LLP, began the panel discussion by offering an oversight on how appellate practitioners can advise trial attorneys during the course of litigation. Pollard emphasized that appellate practitioners were in a unique position to offer "immediate proactive advice" and should strive to provide trial counsel with flexible options. Pollard encouraged appellate practitioners to think of themselves as an "appellate resource" that could be a valuable asset to a litigation team.

    Thereafter, the panel covered a broad range of substantive topics about which trial attorneys were likely to seek counsel. ALA Treasurer Joanne R. Driscoll of Forde Law Offices LLP, discussed evidentiary issues. Driscoll emphasized that, when a party seeks to introduce evidence which the trial court excludes, the party must make an offer of proof to preserve that evidence. If, however, a party seeks to exclude testimonial evidence that is allowed, the party should object and move to strike that testimony as soon as possible. Driscoll further discussed Rule 304(a) (eff. Feb. 26, 2010). Driscoll noted that, in an action involving multiple parties or claims, a final judgment as to one party or claim is not immediately appealable absent a Rule 304(a) finding.

    Association past president Karen Kies DeGrand of Donohue Brown Mathewson & Smyth LLC focused on jury instructions. DeGrand advised the audience to urge trial counsel to consider a client's big-picture interests when asking for a specific instruction, cautioning "be careful what you ask for." DeGrand emphasized the importance of reminding trial counsel to create a clear record during a jury instructions conference and to specifically refer to each instruction by name. DeGrand also discussed various issues related to post trial motions. Pollard addressed appeal bonds and stays, and discussed the significant distinctions between federal law and state law.

    The ALA thanks Baker & McKenzie for its generous hospitality in hosting the brown bag luncheon and the panel members for their thoughtful comments.

  • January 31, 2014 3:12 PM | Anonymous member (Administrator)

    On January 15, 2014, in a unanimous opinion, the United States Supreme Court significantly clarified when a judgment is final for purposes of 28 U.S.C. §1291. InRay Haluch Gravel Co. v. Central Pension Fund of Int’l Union of Operating Engineers & Participating Employers, 571 U.S. ___, the Supreme Court opted for a bright-line rule that should provide clarity and predictability to appellate practitioners.

    It is well established that a judgment can be “final” and appealable for purposes of 28 U.S.C. §1291 even if a claim for attorney's fees remains pending. The precise issue in Ray Haluch Gravel Co. was, in the words of Justice Kennedy, “whether a different result obtains if the unresolved claim for attorney’s fees is based on a contract rather than, or in addition to, a statute.” Ray Haluch Gravel Co.,  No.12-992, slip op. at 1. The answer was no. “Whether the claim for attorney’s fees is based on a statute, a contract, or both,” Justice Kennedy explained, “the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Id.

    In the case sub judice, pension funds sued Ray Haluch Gravel Co., a landscape supply company, for failing to make required contributions to the funds. Among other relief, the Funds sought attorney’s fees, auditor’s fees, and costs under ERISA and a collective bargaining agreement (CBA). Id. at 2.

    On June 17, 2011, the district court issued an order finding that the Funds “were entitled to certain unpaid contributions, though less than had been requested.” Id. at 3. On the same day, the district court awarded a total of $26,897.41 to the Funds. In a separate order issued approximately a month later, on July 25, 2011, the district court awarded the Funds a total of $34,688.15 in attorney’s fees and costs. Id. at 3-4. The Funds appealed from both orders on August 15, 2011.

    Ray Haluch Gravel Co. argued in the appellate court that the Funds had failed to timely appeal from the district court’s order of June 17, and thus lost their opportunity to challenge the district court’s resolution of their substantive claims. Id. at 4. The United States Court of Appeals for the First Circuit disagreed on the basis that the Funds’ claim for attorney’s fees was based (at least in part) on the CBA. The First Circuit reasoned that the CBA required “the payment of attorneys’ fees as an element of damages in the event of a breach,” and therefore found that the June 17 order was not final. Id. The Supreme Court granted certiorari “to resolve a conflict in the Courts of Appeals over whether and when an unresolved issue of attorney’s fees based on a contract prevents a judgment on the merits from being final.” Id. at 4-5. The Supreme Court reversed the First Circuit and, incidentally, agreed with the Seventh Circuit’s approach to this issue. See Continental Bank, N.A. v. Everett, 964 F.2d 701, 702-03 (7th Cir. 1992) (“An open issue about legal fees, contractual or otherwise, does not affect our jurisdiction to resolve the appeal” on the underlying claims.).

    As early as Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Supreme Court had decided that a judgment was “final” for purposes of 28 U.S.C. §1291 notwithstanding a pending claim for attorney’s fees pursuant to a statute. In Ray Haluch Gravel Co., the Funds argued that pending claims for attorney’s fees pursuant to a contract were different because contractual attorney’s fees provisions, unlike statutory attorney’s fees provisions, are “liquidated-damages provisions intended to remedy the injury giving rise to the action.” Ray Haluch Gravel Co., No.12-992, slip op. at 7. That argument failed. First, the Court noted that contractual attorney’s fees provisions often entitle prevailing defendants to fees. Second, the holding of Budinich did not recognize the distinction on which the Funds relied. Justice Kennedy went as far as to suggest that the Funds were attempting “to relitigate an issue already decided in Budinich.” Id. at 8.

    The Court also noted that the rule suggested by the Funds posed at least two serious practical problems. First, “[o]perational consistency is not promoted by providing for different jurisdictional effect to district court decisions that leave unresolved otherwise identical fee claims based solely on whether the asserted right to fees is based on a contract or a statute.” Id. Second, and potentially more important, the Funds’ proposed rule “does not promote predictability,” because while “it may be clear whether and to what extent a fee claim is contractual rather than statutory in nature, that is not always so.” Id. Indeed, in the case at hand, the Funds’ request for fees was based on both ERISA and the CBA. Accordingly, while the Funds raised the specter of piecemeal litigation, that concern was “counterbalanced by the interest in determining with promptness and clarity whether the ruling on the merits will be appealed.” Id. at 9. Finally, the Court found it immaterial that the Funds’ request for fees included some fees that were incurred before the litigation began. Id. at 12.

    Certainly with respect to the timing of filing a notice of appeal, predictability and certainty are worthy goals. On that measure, Ray Haluch Gravel Co. merits the appreciation of the appellate bar.

    Recommended Citation: John M. Fitzgerald, Ray Haluch Gravel Co. Clarifies When Judgments Are Final, The Brief, (January 31, 2014),

  • January 29, 2014 7:16 AM | Anonymous member (Administrator)
    Illinois Supreme Court Rule 313 (eff. Feb. 1, 1994) governs the applicable filing fees in the reviewing court. On January 23, 2014, the Illinois Supreme Court amended the rule to increase the filing fee for appellants and petitioners from $25.00 to $50.00; and from $15.00 to $30.00 for all other parties who enter an appearance or file any paper. This increase will not become effective until January 1, 2015.

    Recommended Citation: Charlie Ingrassia, Supreme Court Rule 313: Increased Filing Fees in the Reviewing Court, The Brief, (January 29, 2014),

  • January 26, 2014 9:23 PM | Anonymous member (Administrator)

    In A.J. Smith Federal Savings Bank v. Sabuco, 2013 IL App (3d) 120578, the Illinois Appellate Court held that a court order denying a debtor relief from a judgment underlying a wage deduction proceeding was merely interlocutory and not appealable. Id. ¶ 13. The holding in Sabuco serves as a helpful reminder that an order remains interlocutory unless it disposes of the parties’ rights in the entire controversy or a separate part thereof. Absent an applicable exception, interlocutory orders are not appealable.

    In Sabuco, the plaintiff bank made a loan to the defendant, which was secured by a mortgage on a commercial office building. Id. ¶ 2. The defendant executed an assignment of rents from any lessee of the office building in favor of the plaintiff. Id. When the defendant failed to make payments on the mortgage loan, the plaintiff filed a complaint for mortgage foreclosure and a petition for possession of the property. Id. ¶ 3.

    The trial court entered an order granting the plaintiff possession of the property and a judgment of foreclosure and a deficiency judgment against the defendant. Id. ¶ 6. The plaintiff then served an affidavit for a wage deduction order, a wage deduction notice, and a wage deduction summons in an attempt to satisfy the deficiency judgment. Id. Prior to the wage deduction hearing, the defendant filed a motion for entry of release and satisfaction of judgment, claiming that the rental payments the plaintiff received as a result of the assignment of rents could satisfy the deficiency judgment. Id. ¶ 7. The trial court denied the motion and scheduled a wage deduction hearing. Id. ¶ 8. The defendant appealed from the denial of his motion for release and satisfaction prior to the trial court conducting a wage deduction hearing. Id.

    The reviewing court noted that it only had jurisdiction to review orders that were final and appealable, which were orders that terminated the litigation between the parties on the merits or disposed of the rights of the parties, either on the entire controversy or a separate part thereof. Id. ¶ 14. “When a debtor files a motion contesting the validity of the judgment underlying a wage deduction proceeding prior to a wage deduction hearing, a trial court’s denial of such a motion is not final and appealable because ‘the same attack could later be made at the wage reduction hearing.’ ” Id. ¶ 13 (quoting Felton v. Shead, 6 Ill. App. 3d 123, 126 (1972)). The order denying the debtor relief was merely interlocutory and not appealable because the issue of the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Sabuco, 2013 IL App (3d) 120578, ¶ 13. Thus, the trial court’s judgment would not be final and appealable until after the wage deduction hearing. Id. 

    The application of the above principles to the facts in Sabuco was simple and straightforward. The defendant filed a motion for release and satisfaction from the deficiency judgment, which the trial court denied. Id. ¶ 15. The defendant appealed the trial court’s order before the wage deduction hearing. Id. The defendant’s motion was an attack on the judgment underlying the wage deduction proceeding, which could have also been made at the wage deduction hearing. Id. Thus, the trial court’s order was merely interlocutory and not appealable because the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Id. Accordingly, the reviewing court dismissed the appeal because it lacked jurisdiction to consider the trial court’s order denying the defendant’s motion for entry of release and satisfaction. Id. ¶ 16.

    Recommended Citation: Shannon R. Burke, Order Denying Motion for Release and Satisfaction of Judgment in Wage Deduction Proceeding Not Final and AppealableThe Brief, (January 26, 2014),
  • January 22, 2014 12:13 AM | Anonymous member (Administrator)

    In CE Design, Ltd. v. Cy’s Crab House North, Inc., 731 F.3d 725 (7th Cir. 2013), the United States Court of Appeals for the Seventh Circuit dismissed the appeal because, although the putative intervenor filed a timely notice of appeal from the trial court’s order denying its motion to intervene, then notice was untimely with respect to the final judgment. And because the judgment could no longer be challenged, the Seventh Circuit could not grant any meaningful relief to the putative intervenor even had it reversed the order denying intervention. In dismissing for lack of jurisdiction, the Seventh Circuit provided a useful overview of the options potential intervenors have to preserve the right of appeal, or as the reviewing court remarked, to “keep the window from closing.” Importantly, the Seventh Circuit emphasized that merely moving to intervene within the time to appeal a judgment is not sufficient.

    CE Design, a frequent class-action plaintiff, sued the defendants Cy’s Crab House North and Cy’s Crabhouse and Seafood Grill, Inc. on behalf of a class of junk-fax recipients. CE Design, 731 F.3d at 726. Truck Insurance Exchange was the defendants’ liability insurance carrier, and it provided a defense under a reservation of rights. Id. During trial, and without consulting their insurer, the defendants settled the case with the class. Id. at 726-27. After state-court coverage litigation, the district court approved the settlement and entered final judgment on October 27, 2011. Id. at 727.

    The Seventh Circuit subsequently issued an opinion in another case, which cast serious doubt on the conduct of class counsel. Id. On November 23, 2011, the day after that opinion was released, Truck Insurance Exchange moved to intervene in CE Design’s case to reopen the judgment, challenge the settlement, and decertify the class based on the misconduct of class counsel pursuant to that new decision. Id. The motion to intervene also sought a 14-day extension of time to file a notice of appeal. Id. The trial court heard the motion on November 28, 2011, the last day to appeal from the final judgment. Id. The court requested further briefing and rescheduled the hearing for December 1, 2011. Id. The trial court then discussed the time limit for filing an appeal from the final judgment, and noted that it could extend the time to do so on motion of a party within 30 days of the expiration of the time to appeal. Id. Truck Insurance Exchange’s counsel noted that Truck Insurance Exchange was not yet a party, and the trial court responded that if it granted the motion to intervene, “that relates back to the day that you filed the motion to intervene.” Id. With regard to the deadline for appealing the judgment, the trial court stated: “I will extend it. If I conclude that you’re entitled to intervene or entitled to an extension, you’re not going to have a problem here.” Id. On December 1, 2011, the trial court denied the motion to intervene, without mentioning any extension of the deadline to appeal. Id.

    Truck Insurance Exchange filed a notice of appeal on December 2, 2011, stating that it was appealing from the December 1, 2011 order denying intervention as well as the October 27, 2011 final judgment. Id. CE Design filed a motion to dismiss the appeal for lack of jurisdiction, which the Seventh Circuit took with the case. Id.

    The Seventh Circuit held that the notice of appeal was untimely with respect to the final judgment because it was filed 36 days after entry of that judgment and no extension had been granted. Id. The reviewing court rejected Truck Insurance Exchange’s argument that the trial court had orally extended the time to appeal, stating that the trial court had merely expressed a “willingness to grant a retroactive extension in the future.” Id. at 728. Moreover, the December 1, 2011 order did not mention extending the time for an appeal. Id. The reviewing court also rejected Truck Insurance Exchange’s argument that the appeal from the order denying intervention rendered timely the appeal from the final judgment, explaining that those were “distinct and separate appealable orders.” Id.

    The Seventh Circuit further explained, addressing Truck Insurance Exchange’s reliance on Roe v. Town of Highland, 909 F.2d 1097 (7th Cir. 1990), that under Roe, a putative intervenor “must take some action” when the trial court has not ruled on the motion to intervene but the deadline to appeal the underlying judgment is “imminent,” to “keep the window from closing.” CE Design, 731 F.3d at 728-29. In particular, the putative intervenor must obtain a ruling on intervention, obtain an extension of time to file a notice of appeal, or file a “protective, ‘springing’ notice of appeal before the time expires.” Id. at 729. More succinctly, the reviewing court summarized Roe as making “clear” that “it is not enough to merely move to intervene within the time to appeal the judgment; something more is required.” Id. Truck Insurance Exchange did not do any of this before the appeal period expired. Id.

    The Seventh Circuit next clarified its decision in In re Synthroid Marketing Litigation, 264 F.3d 712 (7th Cir. 2001), stating that it “require[d] some elaboration.” CE Design, 731 F.3d at 729. In Synthroid, the district court denied a motion to intervene, and the putative intervenor filed a notice of appeal from that order within the time to appeal from the final judgment, but did not appeal the final judgment until almost a year later. Id. The Synthroid court held – analogizing to Fed. R. App. P. 4(a)(2), under which a premature notice of appeal filed after the district court rules but before entry of judgment becomes effective upon entry of judgment – that its decision allowing intervention caused the late notice of appeal of the judgment to “spring into effect.” CE Design, 731 F.3d at 729 (citing Synthroid, 264 F.3d at 716). Although the reviewing court in CE Design questioned the continuing validity of Synthroid in light of subsequent United States Supreme Court authority, it explained that Synthroid could be read to stand for a sort of “relation-back rule,” that when a putative intervenor is granted the right to intervene on appeal, a “contingent appeal of the judgment” relates back to some previous date. CE Design, 731 F.3d at 729. But Truck Insurance Exchange could not benefit from any such relation-back rule. Id. Unlike the putative intervenor in Synthroid, Truck Insurance Exchange had not filed a notice of appeal from the denial of intervention before the time to file an appeal from the final judgment expired (id. at 729-30, 731), but had merely moved to intervene during that time. Because Truck Insurance Exchange did not timely appeal the final judgment, the Seventh Circuit lacked jurisdiction to review that judgment. Id. at 730.

    Although the Seventh Circuit went on to hold that Truck Insurance Exchange had timely appealed the denial of intervention, it concluded that it nevertheless lacked jurisdiction over the appeal. Id. Noting that the United States Supreme Court had reemphasized that the time limit to appeal is jurisdictional, and because Truck Insurance Exchange had not timely appealed the final judgment, that judgment was “set in stone.” Id. Thus, even reversing the intervention order could not result in any meaningful relief for Truck Insurance Exchange. Id. For “completeness,” the reviewing court added that another recent decision foreclosed Truck Insurance Exchange’s argument on the merits of intervention, so appellate review of the denial of intervention would be “doubly pointless.” Id. at 731.

    Recommended Citation: Myriam Z. Kasper, Keeping the Window Open: Potential Intervenors and Preserving their Right of Appeal, The Brief, (January 22, 2014),
  • January 17, 2014 2:24 AM | Anonymous member (Administrator)

    In Zamora v. Montiel, 2013 IL App (2d) 130579, the Illinois Appellate Court held that a notice of appeal must be filed within 30 days of the trial court’s resolution of a motion to reconsider, following a dismissal order with a finding pursuant to Illinois Supreme Court Rule 304(a), even though the trial court had already granted the defendants leave to file a third-party action. The reviewing court emphasized that the third-party claim, though allowed to be filed at the time of reconsideration, had not been filed until more than 30 days had passed after the trial court's denial of the motion to reconsider.

    The case involved a complex procedural history. On August 31, 2009, the plaintiff filed a complaint sounding in negligence against certain defendants, including the “Payne defendants.” Id. ¶ 3. On March 24, 2010, the trial court dismissed the plaintiff’s complaint with respect to the Payne defendants, while including a finding of finality and appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Zamora, 2013 Il App (2d) 130579, ¶ 3. On April 23, 2010, the plaintiff filed a timely motion to reconsider the March 24, 2010, dismissal order. However, on June 29, 2010, and while the plaintiff's motion to reconsider was still pending, the trial court granted the defendants leave to file a third-party complaint for contribution. Id.

    On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider. Id. Although the trial court had granted the defendants leave, no third-party complaint had yet been filed. On August 25, 2010, more than 30 days since the trial court denied the plaintiff's motion to reconsider, the defendants filed their third-party claim. Id. On July 11, 2012, the trial court dismissed the third-party contribution claim. Also on that date, the plaintiff requested a “new” Rule 304(a) finding with respect to the trial court's earlier March 24, 2010, dismissal order. The trial court entered that finding. Id.

    On July 24, 2012, the plaintiff filed a notice of appeal from the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider. However, on December 12, 2012, the Appellate Court dismissed the plaintiff’s initial appeal for lack of jurisdiction. Id.

    On December 28, 2012, the plaintiff returned to the trial court and sought a “renewal” of the March 24, 2010, Rule 304(a) finding, but on March 20, 2013, the trial court denied that motion. Id. On May 14, 2013, the trial court dismissed all remaining causes of action directed against all defendants. On June 5, 2013, the plaintiff filed a notice of appeal seeking reversal of both the March 24, 2010, dismissal order, and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding. Id.

    The defendants moved to dismiss the appeal. The defendants contended that, after the trial court entered its July 7, 2010, order denying the plaintiff's motion to reconsider, the plaintiff had 30 days to appeal from the trial court's March 24, 2010, dismissal order that contained a Rule 304(a) finding. Id. ¶ 5. The plaintiff countered that on June 29, 2010, when the trial court granted the defendants leave to file their third-party complaint, “the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of the plaintiff’s claim against the defendants, was rendered ineffective.” Id.

    The court in Zamora first undertook a discussion of appealability pursuant to Rule 304(a), concluding that, once a court has made a Rule 304(a) finding, it is unnecessary for the court to make another such finding when it denies a timely motion to reconsider. Id. ¶ 6 (citing McCorry v. Gooneratne, 332 Ill. App. 3d 935, 941 (2002)). This is because, the Zamora court noted, the denial of a motion to reconsider is not a judgment and is not appealable in itself. Zamora, 2013 IL App (2d) 130579, ¶ 6.

    Citing Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the Zamora court was “reluctant to attach jurisdictional significance to the fact the Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion to reconsider.” Zamora, 2013 IL App (2d) 130579, ¶12. Any other determination, the court reasoned, would result in a “cumbersome rule of procedure indeed,” and the reviewing court asked a series of hypothetical questions to highlight the ambiguity such a ruling could create. Id. ¶ 13.

    The court in Zamora thus decided to adhere to a simple rule: merely obtaining leave to file a claim did not trigger the need for a new Rule 304(a) finding. Id. Relying on the plain language of Rule 304(a) that " 'an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims,' " the court held the Rule contemplated additional claims must actually be pending at the time of the finding. (Emphasis in original.) Id. (quoting Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).

    In closing, the reviewing court recognized that, "on some rare occasions," allowing a party to proceed with an appeal after another party seeks leave to add a claim might itself result in a piecemeal appeal being taken. Zamora, 2013 IL App (2d) 130579, ¶15. Nonetheless, the court in Zamora noted, "it is equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a) finding with every change in circumstances." Id.

    Recommended Citation: Robert G. Black, A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding, The Brief, (January 17, 2014),

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