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"The Brief" - The ALA Blog

  • March 31, 2014 7:45 AM | Anonymous member (Administrator)

    In Garrido v. Arena, 2013 IL App (1st) 120466, the Illinois Appellate Court held that a mislabeled postjudgment motion was not untimely. The court emphasized that, because pleadings should be characterized by their contents, not title, a mislabeled postjudgment motion is a “procedural irregularity” that will not necessarily deprive a reviewing court of jurisdiction. 
    In Garrido, the reviewing court noted that, before reaching the merits of the case--which involved a defamation action by John Garrido against several defendants based on ads against his candidacy for alderman--the reviewing court first had to address jurisdiction. Id. ¶ 11. The trial court had entered judgment in defendants’ favor on September 16, 2011. Id.  Thereafter, Garrido filed a motion pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401) (West 2010)) on October 7, 2011, which was less than 30 days after the trial court’s judgment, asking the court to vacate the judgment. Garrido, 2013 IL App (1st) 120466, ¶ 11. Section 2-1401 allows a party to request relief from final orders and judgments after 30 days from the entry of the order or judgment. Garrido, 2013 IL App (1st) 120466, ¶ 1. Realizing his mistake, Garrido sought leave to amend his motion to reflect the correct statute, section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2010)). The trial court granted Garrido’s motion and he filed the amended motion on October 31, 2011. The trial court ultimately denied Garrido’s postjudgment motion. Garrido, 2013 IL App (1st) 120466, ¶ 11.

    On appeal, defendants contended that Garrido’s notice of appeal was untimely because he did not file a proper postjudgment motion. Id. ¶ 12. Specifically, defendants contended that Garrido’s original section 2-1401 motion was untimely because it was not filed more than 30 days after the trial court entered the judgment, and that his section 2-1203 motion was untimely because it was not filed within 30 days of the judgment. Id.

    The reviewing court disagreed. The court noted that Garrido’s amended section 2-1203 motion merely corrected the relevant statutory citations in his first, and timely, postjudgment  motion. Id. ¶ 13. Significantly, the court found that, even if Garrido had not amended the motion to cite the correct statutory provision, the circuit court would nevertheless have been required to evaluate Garrido’s motion because the character of the pleading should be determined from its content, not label. Id. (citing In re Hayley D., 2011 IL 110886, ¶ 67). Accordingly, the Appellate Court found that, although Garrido’s original motion was mislabeled as a section 2-1401 motion, it was substantively a section 2-1203 motion, which was timely filed within 30 days of judgment. 

    While parties should pay close attention to properly labeling motions, an inadvertently mislabeled postjudgment motion is not automatically fatal to bringing an appeal.

    Recommended Citation: April Connley, Don't Judge a Motion by Its Title: Mislabeled Postjudgment Motion Not Untimely, The Brief, (March 31, 2014),
  • March 23, 2014 7:13 AM | Anonymous member (Administrator)

    The Illinois Supreme Court recently amended Rules 361, 381, and 383. The amendments became effective March 14, 2014.

    Rule 361(c) governs motions filed in the Supreme Court while the court is not in session. Subsection (c)(1) provides that, if a motion is brought pursuant to a rule specifying that relief may be provided "by the court or a justice thereof," the motion shall be directed to the justice of the judicial district involved, or in the first district, to the justice designated to hear motions. Pursuant to the amendment, when a motion is filed in the second, third, fourth, or fifth judicial district, a party no longer needs to serve a copy of the motion to the justice's district chambers. Instead, a party must file the original motion, one copy, and importantly, a proposed order in compliance with Rule 361(b)(3) with the clerk in Springfield. A response to the motion shall be directed to the justice, with the original response and one copy being filed with the clerk in Springfield.

    Subsection (c)(2) of Rule 361 governs motions that require action by the full court. If the case arises from the second, third, fourth, or fifth judicial district, the party shall file (and no longer mail) the original motion and eight copies with the clerk in Springfield. The Rule no longer requires parties to mail a copy of the motion to the justices of the court at their district chambers. Responses to the motion shall also be filed with the clerk in Springfield, and include the original and eight copies. A copy of the response no longer needs to be sent to each justice of the court at the justice's district chambers. For cases arising in the first district, parties shall file motions and responses thereto with the clerk's satellite office in Chicago. Parties shall file the original and eight copies of the motion or response, but no longer need to send a copy to the justices from the second, third, fourth, and fifth judicial districts at their respective district chambers.

    Rule 381 governs original actions in the Supreme Court pursuant to article VI, section 4(a) of the Illinois constitution, and subsection (a) governs motions for leave to file such actions. Pursuant to amended subsection (a), if the motion is filed while the court is not in session, the moving party shall file the original motion and eight copies with the clerk in Springfield if the case arises from the second, third, fourth, or fifth judicial district; and if the case arises in the first district, the movant shall file the original and eight copies with the clerk's satellite office in Chicago. In either situation, per the amendment, a copy of the motion no longer needs to be sent to each justice of the court at the justice's district chambers.

    Rule 383 governs motions for supervisory orders. If a motion for a supervisory order is filed while the court is not in session, the moving party shall file the original motion and eight copies with the clerk in Springfield if the case arises from the second, third, fourth, or fifth judicial district; and file the original and eight copies with the clerk's satellite office in Chicago if the case arises from the first district. A copy of the motion no longer needs to be sent to each justice of the court at the justice's district chambers.

    Recommended Citation: Charlie Ingrassia, Supreme Court Rules Governing Filing Motions in Supreme Court, and While Court is not in Session, AmendedThe Brief, (March 23, 2014),

  • March 20, 2014 7:12 AM | Anonymous member (Administrator)

    The Illinois Supreme Court reaffirmed the revestment doctrine in People v. Bailey, 2014 IL 115459. By doing so, the state’s high court clarified the doctrine's scope regarding untimely postjudgment filings. The Court held that, for the revestment doctrine to apply, both parties must (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of the judgment. Bailey, 2014 IL 115459, ¶ 25.

    The revestment doctrine is an exception to the rule that a trial court loses jurisdiction 31 days following a final judgment. In People v. Kaeding, 98 Ill. 2d 237 (1983), the Court held that, for the doctrine to apply, “the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. ” Id. at 240.

    In Bailey, a minor defendant pleaded guilty to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days in the county jail, with credit for time served. Id. ¶ 3. At sentencing, the trial court indicated that there was no requirement regarding sex offender registration. Id. More than three years later, the defendant moved to vacate his plea and sentence, arguing the trial court was required to order him to register. Id. The State filed a written response, arguing only that the trial court’s actions did not render the plea and sentence void. Id. The trial court denied the defendants motion. Id. Thereafter, the defendant appealed to the Illinois Appellate Court, which dismissed his appeal for lack of jurisdiction. Id. ¶ 4. 

    On appeal, the Illinois Supreme Court affirmed the continued validity of the revestment doctrine and rejected the State’s suggestion to abolish it, explaining, “[w]hile the application of the doctrine is undoubtedly in conflict with our otherwise strict jurisdictional standards, an exception is, by its very nature, always in conflict with the underlying rule.” Id. ¶ 10. The Court acknowledged that, although the doctrine had “sometimes been dormant" in its decisional law, it had never expressly rejected it. Id. ¶ 12.


    The State also argued that the Court’s holding in People v. Flowers, 208 Ill. 2d 291 (2003), supported abrogating the revestment doctrine, arguing that the Flowers court noted that “[t]he jurisdiction of trial courts to reconsider and modify their judgments is not indefinite” (id. at 303) and recognized that “[l]ack of subject matter jurisdiction is not subject to waiver and cannot be cured through consent of the parties.” Id. (internal citations omitted). But the Bailey court held the revestment doctrine was not at issue or mentioned in Flowersand, further, that the warnings contained in Flowersregarding general jurisdictional matters were consistent with a narrow application of the revestment doctrine. Bailey, 2014 IL 115459, ¶ 16. 

    Turning to the doctrine’s application in this case, only the third requirement--whether the proceedings were “inconsistent with the merits of the prior judgment”--was at issue. Id. ¶ 17. Importantly, the supreme court held that the State had not acted inconsistently with the merits of the prior judgment by asking that the judgment be upheld. Id. ¶¶ 18-19. The Court held that the revestment doctrine only applied when both parties have sought to modify or overturn the prior judgment (Kaeding, 98 Ill. 2d 237; People v. Bannister, 236 Ill. 2d 1, 11 (2009)), but rejected the doctrines application if one party opposed setting aside the prior judgment (Sears v. Sears, 85 Ill. 2d 253, 260 (1981); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536 (1984)). Bailey, 2014 IL 115459, ¶ 25.

    The holding in Bailey reinforces the intentionally narrow application of the revestment doctrine and prevents defendants from utilizing the doctrine simply because a prosecutor failed to object based on the finality of the prior judgment or the timeliness of the new proceeding. Id. ¶ 25. Defending the merits of the prior judgment is not inconsistent with that judgment.  Id. ¶ 26. The revestment doctrine only applies when both parties are interested in setting aside at least part of the prior judgment and both actively take positions inconsistent with that prior judgment.

    Recommended Citation: Charles E. Harper & Christopher J. Zdarsky, Illinois High Court Clarifies Revestment Doctrine and Clarifies Its ParametersThe Brief, (March 20, 2014),
  • March 16, 2014 7:12 AM | Anonymous member (Administrator)

    Failing to properly preserve an issue before the trial court can result in that issue being waived or forfeited on appeal. With respect to preserving a challenge to a jury instruction, the Illinois Supreme Court has held that a party must make a contemporaneous objection and tender an alternative remedial instruction or the challenge will be forfeited. Mikolajcyzk v. Ford Motor Co., 231 Ill. 2d 516, 557 (2008). However, in an instructive opinion for both appellate and trial practitioners, the Illinois Appellate Court recently held that a party had properly preserved a challenge to a trial court's sua sponte comment during jury instructions when the party "expressed concern" despite not making a formal objection or tendering a remedial instruction.

    In Pister v. Matrix Service Industrial Contractors, Inc., 2013 IL App (4th) 120781, plaintiff, a widow, filed a lawsuit on behalf of her deceased husband's estate against defendant, Matrix Service Industrial Contractors, Inc., pursuant to the doctrine of respondeat superior. Id. ¶ 1. Plaintiff's husband had been killed in an auto accident by an employee for defendant who was driving to work. Id. Plaintiff claimed two theories of liability - that defendant's employee was a "traveling employee" and that the employee was on a "special errand" for defendant when the accident occurred. Id. The trial court granted summary judgment in defendant's favor on plaintiff's "traveling employee" theory of liability but denied defendant's motion for summary judgment regarding plaintiff's "special errand" theory of liability. Id. ¶¶ 9, 12.

    The matter proceeded to a jury trial. Following the close of evidence, the parties tendered their recommended jury instructions. Id. ¶ 31. While reading the jury instructions to the jury, the trial court, sua sponte, commented on the relationship between the special interrogatory and general verdict instructions. Id. ¶ 32. As the jury retired, plaintiff brought the statement to the trial court's attention. However, plaintiff requested that no remedial instruction be given out of concern that doing so would draw too much attention to the error; nonetheless, the trial court tendered the remedial instruction. Id. The jury returned a verdict in defendant's favor. Id. ¶ 34. Following a hearing on plaintiff's posttrial motion, the trial court determined that it erred in making its sua sponte statement and by refusing a proposed jury instruction from plaintiff regarding agency law. Id. However, the trial court concluded that a new trial was not necessary because the evidence overwhelmingly favored defendant and plaintiff was, therefore, not prejudiced. Id.

    Plaintiff appealed and the reviewing court initially rejected plaintiff's first two contentions on appeal - that the trial court committed reversible error by partially granting defendant's summary judgment motion, and by admitting and excluding certain evidence.

    The reviewing court then turned to the erroneous jury instructions. Defendant argued that plaintiff had forfeited its contention regarding the trial court's sua sponte statement because plaintiff "expressed concern" as opposed to objecting and plaintiff failed to tender a remedial instruction. Id. ¶¶ 78-79. The reviewing court rejected defendant's forfeiture argument. In doing so, the court opined that "the purpose of an objection is not only to preserve an issue for appeal, but to bring the potential error to the trial court's attention so that it may be contemporaneously addressed." Id. ¶ 78. By expressing "concern" over the potential error, the court noted, plaintiff brought the issue to the court's attention. Id. Therefore, the court concluded that plaintiff's " 'raising concern' adequately brought the issue to the court's attention and preserved the issue for appeal, even without using some form of the word 'objection.' " Id.

    The reviewing court further held that plaintiff was not required to tender a remedial instruction. The reviewing court concluded that, because plaintiff argued that the trial court should not have issued a remedial instruction to avoid bringing undue attention to the error, "it would have been illogical for [plaintiff] to have tendered a remedial instruction." Id. ¶ 78. Therefore, failing to tender the remedial instruction was "not fatal." Id.

    Thereafter, the reviewing court concluded that the trial court's sua sponte comment constituted error, as the trial court had conceded. Id. ¶ 83. However, reciting the well-known maxim that not all error constitutes reversible error, the reviewing court held that, because the evidence "so overwhelmingly favored [defendant,]" plaintiff was not prejudiced by the trial court's error. Id. ¶¶ 84-85. Further, the record was devoid of any indication that the trial court's error misled the jury. Id. ¶ 85. The reviewing court also rejected plaintiff's other arguments regarding the jury instructions.

    Recommended Citation: Charlie Ingrassia, Pitfalls in Preservation: Is "Raising Concern" Over an Improper Jury Instruction, Without a Formal Objection, Enough to Preserve Appellate Review?, The Brief, (March 16, 2014),

  • March 11, 2014 7:10 AM | Anonymous member (Administrator)

    Due to its growing popularity, and combined with the ALA's commitment to providing legal educational programs throughout the state, the Association once again presented its annual Supreme Court Civil Litigation Year in Review in multiple locations. The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District; past ALA president and current Chicago Bar Association president J. Timothy Eaton of Taft, Stettinius & Hollister LLP; and past ALA president Michael Reagan of the Law Offices of Michael T. Reagan.

    The panel offered their perspectives and keen insights on rule changes and significant decisions rendered by the Illinois Supreme Court during the 2013 term. Justice Jorgensen began the program by discussing new and amended Supreme Court Rules, including Rule 315 (eff. July 1, 2013), which governs petitions for leave to appeal to the Supreme Court and Rule 138 (eff. Jan. 1, 2014), which governs personal identity that may not be filed in court documents. Thereafter, the panel discussed noteworthy decisions covering a broad range of substantive areas. Topics included personal jurisdiction under a stream of commerce theory (Russell v. SNFA, 2013 IL 113090); disgorgement of attorney fees in a marriage dissolution proceeding and the policy of "leveling the playing field" (In re Marriage of Earlywine, 2013 IL 114779); and how the supreme court would weigh federal authority when reviewing an issue that involved a federal statute (State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836).

    The ALA presented the program on February 20, 2014, in Wheaton and on February 27, 2014, in Chicago. The Supreme Court Civil Litigation Year in Review will also be presented on March 13, 2014, in Decatur as part of the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. The ALA thanks the panel for an informative program, the DuPage County Bar Association for co-sponsoring the Wheaton program, and Neal Gerber & Eisenberg for generously hosting the Chicago program.

    The ALA also presented the Supreme Court Year in Review in Decatur during the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District.  The roundtable luncheon was held on March 13, 2014, at the Decatur Club. In addition to the Supreme Court Year in Review program, the luncheon also featured Carla Bender, Clerk of the Court, who provided valuable updates on the court's e-filing initiatives.

  • March 08, 2014 7:17 AM | Anonymous member (Administrator)

    In Brown v. Fifth Third Bank, 730 F.3d 698 (7th Cir. 2013), Judge Richard Posner, as motions judge, in an opinion not binding on the panel hearing the merits of the case, denied a motion by the defendant, Fifth Third Bank, to dismiss the appeal as untimely. The judge denied the motion even though the appellant filed her notice of appeal 113 days after a clerk’s docket entry reciting the district court’s dismissal of her complaint.

    The docket entry in question was captioned “Notification of Docket Entry” and referred to the court’s separate “Memorandum Opinion and Order” dismissing the complaint with prejudice. Id. at 700. The motion to dismiss the appeal turned on whether the clerk’s docket entry satisfied the requirement under Fed. R. Civ. P. 58 that a district court's judgment be set forth in a separate document. Judge Posner observed that, if it did not, then judgment would be deemed to be entered 150 days after the court’s final decision, pursuant to Fed. R. Civ. P. 58(c)(2)(B). Brown, 730 F.3d at 699.

    Judge Posner further noted that the Administrative Office of the United States Courts had drafted a form, called AO 450, which constitutes the preferred vehicle for complying with the “separate document” requirement of Rule 58. The appendix to the civil rules contains two other forms, Forms 70 and 71, that are similar to and even simpler than AO 450, and would also suffice. Id.

    The judge described, however, the “inexplicable failure” by the clerk’s office in the Northern District of Illinois to use these forms. Id. at 699. That failure has been “richly productive of uncertainty,” notwithstanding that the whole purpose of Rule 58 is to produce clarity. Id. at 699-700. The judge cited to several Seventh Circuit cases, moreover, finding that docket entries similar to the one here satisfied the requirement of a separate document. Id. Other federal courts have not endorsed this view, although Judge Posner said the Third Circuit came close on one occasion. Id. at 700-01.

    In Judge Posner’s opinion, the purpose of the docket entry here was to comply with the requirement under Fed. R. Civ. P. 77(d) to provide notice of the entry of an order or judgment. He opined that that notification should not “do service for a Rule 58 judgment” and that cases so allowing “should be overruled.” Brown, 730 F.3d at 701. As partial justification, he noted that, at least when the judgment denies all relief, as in this case, the separate document must be signed by the court clerk, and the entry here was not signed. Id.

    Because the docket entry violated Rule 58, Judge Posner found that the judgment date was 150 days after the district court’s decision, and the notice of appeal therefore was timely and should proceed to briefing on the merits. Id. He further observed, however, that the merits panel was authorized to revisit the issue and, “if it wants” reject his conclusion that the appeal is within the court’s jurisdiction. Id.

    Recommended Citation: Don R. Sampen, A Clerk’s Docket Entry in Federal Court Does Not Ordinarily Satisfy the “Separate Document” Requirement for Final Judgment, Necessary to Commence Time for Appealhe Lack of a Written Order Does Not Affect FinalityThe Brief, (March 8, 2014),
  • March 05, 2014 8:59 AM | Anonymous member (Administrator)

    On February 19, 2014, at the Union League Club in Chicago, ALA President Brad Elward presided over a seminar and luncheon on two appellate specialty topics: judicial review of administrative decisions and worker compensation arbitrations.

    The two-hour morning session was devoted to administrative appeals. Carl Draper of the Springfield law firm of Feldman, Wasser, Draper & Cox addressed the topic from the plaintiff's perspective. He supplemented the comprehensive written materials, which provide an excellent framework for understanding the administrative review process, with a "who, what, when, where" description of the issues that practitioners must consider in protecting the rights of those challenging administrative decisions in the circuit and appellate courts. Brett Legner, Civil Appeals Supervisor for the Appellate Division of the Illinois Attorney General's office, presented the defense perspective. Brett explained that, in seeking to uphold agency decisions, he hopes to defend the rulings without having to reach the merits, given the deferential standards of review that are applicable. Brett also addressed common law administrative review, which proceeds outside the Administrative Review Law, and the process for obtaining stays pending review. Justice Robert Gordon of the Illinois Appellate Court, First District, provided insights from the bench. He gave a candid assessment of the shortcomings on the part of attorneys that Justice Gordon has observed in his 18 years as a circuit judge or appellate justice. Justice Gordon also described the type of information that the court scours the record to find. For example, deference on credibility determinations may not be a foregone conclusion without some explanation by the decision maker below.

    After the the morning session, attendees enjoyed a luncheon honoring the justices of the Illinois Appellate Court, Workers Compensation Division. Following lunch, President Elward moderated a panel featuring the appellate justices assigned to the Workers Compensation Division – Justice Thomas E. Hoffman (First District), Justice Donald C. Hudson (Second District), Justice William E. Holdridge (Third District), and Justice Thomas M. Harris (Fourth District). (Justice Bruce D. Steward of the Fifth District was unable to participate.) Providing sound advice that is applicable to any type of case, the panelists engaged in a lively discussion about presenting and defending workers compensation appeals. The justices commented on good brief writing and the art of responding to questions during oral argument.

    The seminar concluded with President Elward speaking on judicial reviews from the Workers' Compensation Commission to the circuit court. Elward pointed out common pitfalls and offered practical advice on how to handle such cases on appeal.

    The ALA thanks the Justices of the Illinois Appellate Court, Workers Compensation Division, and the other speakers for providing their unique insights during the informative seminar.

  • March 03, 2014 6:56 AM | Anonymous member (Administrator)

    On February 25, 2014, the Appellate Lawyers Association and the Chicago Bar Association co-sponsored a public forum featuring the candidates for the Illinois Appellate Court, First District. The program was moderated by ALA Past President, Tim Eaton, who currently serves as the President of the CBA. Each candidate presented his or her credentials to the audience, and then participated in a moderated question and answer session. Candidates answered questions on an array of topics, including judicial elections vs. merit selection, the use of Rule 23 orders as persuasive authority, and the justices who inspire each candidate’s judicial philosophy.

    Three Appellate Court vacancies will appear on the ballot in the March 18, 2014, Primary Election.

                Candidates to fill the vacancy of Hon. Joseph Gordon

                Hon. Shelly A. Harris

                Hon. Freddrenna M. Lyle

                Hon. Susan Kennedy Sullivan

                Candidates to fill the vacancy of Hon. Michael Murphy

                Mr. David Ellis

                Candidates to fill the vacancy of Hon. John O. Steele

                Hon. Sharon Oden Johnson

                Hon. John B. Simon

    All of the candidates accepted our invitation to participate. However, Judge Freddrenna Lyle fell ill on the morning of the event and did not attend.

    We are grateful to the CBA for hosting this program and recording the event for rebroadcast. You can view the recording here or link to it through our website. It will be available until the primary election.

    This year’s Candidates’ Forum continues the ALA’s tradition of providing this public service to our membership and the public at large. We recognize that publicity regarding judicial elections often pales in comparison to that given contests for federal or statewide offices. However, our goal in sponsoring such programs is to help draw attention to judicial elections and thereby facilitate voters’ ability to make informed decisions regarding those elected to these important public offices. The CBA shares our commitment to this goal, and we look forward to continuing our partnership with the CBA.

  • February 25, 2014 6:13 AM | Anonymous member (Administrator)

    The plaintiff in Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901, filed suit against BNSF under the Federal Employer’s Liability Act. Id. ¶ 1. BNSF in turn filed a third-party complaint for contribution and contractual indemnity. Id. The case proceeded to a jury trial, at the conclusion of which the jury awarded plaintiff damages in excess of $2.6 million. Id. The jury also returned a verdict in favor of the third-party defendant. Id. BNSF appealed, but the Illinois Appellate Court did not reach the merits. Instead, the reviewing court concluded that it lacked jurisdiction because BNSF failed to file its notice of appeal within 30 days of the oral ruling denying BNSF’s posttrial motions. As illustrated below, this case serves as an important reminder that, unless the trial court expressly requires a written order or a local circuit court rule requires a prevailing party to submit a draft order, the judgment is entered "at the time it is entered of record" (Id. ¶ 25), and the time period to file a notice of appeal will begin.

    Before addressing the jurisdictional question, the reviewing court noted that another reviewing court panel denied an earlier motion to dismiss for lack of jurisdiction shortly after the appeal was filed. Id. ¶ 4. BNSF claimed that this ruling should prevent revisiting the jurisdictional issue. The court disagreed, stating that it has a continuing obligation to verify its jurisdiction. Id. ¶ 5. The court observed that the posttrial procedural history was complex and required a more in-depth consideration of the record than was feasible before the record on appeal was filed with the court. Id.

    The reviewing court then turned to the jurisdictional question. BNSF filed a timely posttrial motion following the jury verdict. Id. ¶ 7. The motion raised 46 issues in total, 45 of which would have resulted in a new trial or modified judgment. Id. The last issue, however, dealt with a setoff which, if allowed, would have partially satisfied the judgment. Id. ¶ 8.

    On April 18, 2012, after conducting a hearing, the trial court orally denied the posttrial motion as to all issues except the setoff claim, which it took under advisement. Id. ¶ 9. No written order reflecting denial of the posttrial motion was entered. Id. On May 31, 2012, more than 30 days later, BNSF filed a motion for leave to cite supplemental authority relative to one of the 45 issues that was rejected in the oral ruling issued on April 18, 2012. Id. ¶ 10. Counsel advised the trial court at the hearing on that motion that he wanted to submit the new authority before the trial court entered a final and appealable order. Id. ¶ 11. The trial court reminded BNSF counsel it denied the posttrial motion on April 18, 2012 and that the only remaining issue was the setoff question, which was still under advisement. Id. ¶ 11.

    Thereafter, the trial court conducted a hearing on June 6, 2012, where it distinguished BNSF’s new authority, reiterated its denial of that motion, and denied BNSF’s request for a setoff. Id. ¶ 14. The parties could not agree on the language of the written order. Id. ¶¶ 16-17. BNSF wanted the order to state that it was final and appealable regarding the jury verdict. Id. ¶ 18. The trial court disagreed and it omitted any reference to the jury verdict. Id. BNSF filed its notice of appeal within 30 days of the entry of the June 6 order. Id. ¶ 19.

    The reviewing court found that the notice of appeal was untimely because BNSF did not file that notice within 30 days of the trial court's April 18, 2012, denial of the posttrial motion, and the unresolved setoff question did not otherwise toll the time to appeal. Id. ¶ 20.

    The reviewing court noted that, because a setoff only operates to satisfy a judgment, it does not qualify as a posttrial motion under section 2-1202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1202 (West 2012)), which is limited to motions that will impact the judgment as opposed to satisfying it. Williams, 2013 IL App (1st) 121901, ¶¶ 21-22. The time to appeal therefore began to run on April 18, when the trial court orally denied the part of BNSF’s posttrial motion, which, if granted, would have resulted in a new trial or modified judgment. Id. ¶ 22. The court also rejected BNSF’s contention that, because the trial court considered the supplemental authority that related to one of the issues in the motion that was directed at the judgment at the June 6 hearing, its section 2-1202 motion was not fully resolved before entry of the written order. Id. ¶ 24. The court observed that BNSF’s motion to cite the supplemental authority was filed more than 30 days after denial of the posttrial motion, meaning that the trial court no longer had jurisdiction over the issues that were raised in that motion. Id. ¶ 24.

    Finally, the reviewing court dispensed with the notion that the lack of a written order denying the posttrial motion on April 18 did not render that ruling any less final because Supreme Court Rule 272 (eff. Nov. 1, 1990) expressly provides that a judgment is final when a written order is entered only if the trial court expressly requires a written order. Williams, 2013 IL App (1st) 121901, ¶ 25. But if the trial court did not require a written order, the judgment is final when it is entered. Id.

    The record established that the posttrial motion was denied on April 18, 2012, and that only the setoff question was taken under advisement. There was also no reference to a written order, and the trial court did not instruct the parties to prepare one. As such, the judgment became final on the date the posttrial motion was denied, and BNSF’s notice of appeal was due within 30 days of the April 18, 2012, ruling. Id. ¶¶ 26-28.

    Recommended Citation: Rosa M. Tumialán, The Lack of a Written Order Does Not Affect Finality, The Brief, (February 25, 2014),

  • 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.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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