Section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)) provides relief from final orders and judgments more than 30 days after the trial court enters such an order. In In re Commitment of DeSilvestro, 2013 IL App (3d) 120563, the Illinois Appellate Court clarified that section 2-1401 provides relief only from final judgments and orders, and the statutory provision could not be used to dismiss a complaint or petition.

In DeSilvestro, the respondent, in 2004, negotiated a guilty plea to four counts of aggravated criminal sexual assault in exchange for four concurrent sentences of seven years' imprisonment. In 2009, the respondent was released on mandatory supervised release (MSR). Later that year, the State obtained a warrant for the respondent's arrest after he allegedly violated terms of his MSR. In 2010, with the respondent back in custody, the State filed a petition to detain him pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West 2010)). Following a probable cause hearing, the trial court entered an order finding probable cause for the Department of Human Services to detain the respondent.  

In 2011, nearly a year later, the respondent filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)), claiming that the State lacked personal jurisdiction over him as a result of having failed to properly serve him with process of the commitment proceedings. Four months later, and while his section 2-619 motion to dismiss was still pending, the respondent filed an additional motion to dismiss, claiming that the State lacked subject matter jurisdiction. In July 2011, the trial court denied both motions; and in December 2011, it denied the respondent's motion to reconsider.

In March 2012, the respondent filed a “motion to dismiss pursuant to section 2- 1401(f)” of the Code, which reiterated many of the allegations contained in his motion to dismiss for lack of subject matter jurisdiction. In June 2012, the trial court denied the respondent's 2-1401 motion. The respondent appealed, claiming that the trial court erred in denying that motion.

The Illinois Appellate Court, Third District, dismissed the respondent's appeal for lack of jurisdiction. The reviewing court quoted the statutory language provided in section 2-1401 and concluded that the provision provided relief from final judgments and orders. The court concluded, "[w]e can find no authority to support [the] respondent’s contention that section 2-1401 provides a procedural mechanism to dismiss a petition or a complaint."

The reviewing court, relying on People v. Vincent, 226 Ill. 2d 1, 7 (2007), further emphasized that a petition seeking relief under section 2-1401 must be filed in the same proceeding, even though the petition is not a continuation of the prior proceeding. In this case, the court emphasized, a final order had not been entered because a detention order was not a final order. Rather, the respondent's section 2-1401 motion attacked the sentencing order entered in his prior criminal case, which was a different proceeding. The court emphasized that "the [r]espondent cannot use a section 2-1401 petition filed in this case to seek relief from a final order in another case." Finally, the reviewing court noted that the denial of a motion to dismiss was not a final order, and labeling a motion to dismiss as a section 2-1401 motion "did not convert the motion to a section 2-1401 petition."

Justice Carter specially concurred, noting that this appeal should have been dismissed pursuant to Illinois Supreme Court Rule 304(b) (eff. Feb. 26, 2010) and EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 13, where the state's high court held that the denial of an improperly filed section 2-1401 petition was not appealable under Rule 304(b).

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or Petition, The Brief, (April 16, 2014), http://applawyers-thebrief.blogspot.com/2014/04/illinois-appellate-court-section-2-1401.html.

On April 1, 2014, at The Centre in Elgin, the ALA hosted a roundtable luncheon honoring the justices of the Second District Appellate Court. ALA Past President Bob Black welcomed the guests and thanked the justices, who were all seated at separate tables to encourage interaction with the attorneys.

Following lunch, Stacey Mandell presented welcoming remarks. She took a moment to reflect on the passing of ALA member Greg Slovacek, remembering his involvement and his service to the ALA, including chairing the Third District Pro Bono Committee for several years. On a lighter note, she read a corny-but-heartfelt poem to Justice Hutchinson, who was celebrating her birthday. She then introduced Presiding Justice Michael J. Burke to begin the program.

Presiding Justice Burke introduced the justices, each of whom identified their law clerks in attendance. Justice Kathryn E. Zenoff introduced her law clerks, but also highlighted the retirement of Gail Moreland, a former law clerk, and invited everyone to the reception following the program.

Thereafter, Presiding Justice Burke moderated a panel discussion of the cases that had been reviewed and decided by the Illinois Supreme Court in the past year and which had originated in the Second District. The justices presented the facts, issues, and what the appellate court had held; if there was a dissenting or specially concurring opinion, then that particular justice would provide insight into why he or she had written separately.

Some of the cases discussed included Schultz v. Performance Lighting, Inc.; People v. Hommerson; American Access Casualty Co. v. Reyes; Wells Fargo Bank, N.A. v. McCluskey; People v. Bailey; In re Marriage of Earlywine; VC&M, Ltd. v. Andrews; People v. Cardona; People v. Kennebrew; Julie Q. v. Department of Family Services; Toftoy v. Rosenwinkel; EMC Mortgage Corp. v. Kemp; and People v. Martinez.

The justices also explained what the Illinois Supreme Court had decided and whether and how it differed from what the appellate panel had held. After a pause, the justices realized that their decisions were not always affirmed, which brought about a good laugh from everyone, as well as the justices pointing their fingers at each other. The justices also reflected on what they learned from the supreme court's review of the decision, as well as what the practitioners should take from the case. The justices presented a mix of civil cases and criminal cases, which engaged attorneys who practice primarily civil appeals and those who practice criminal appellate law. There were a few questions, and the justices took them on after each case discussion.

The ALA thanks the Justices of the Second District Appellate Court, who presented an excellent program, with a good mix of camaraderie, appellate practice, and legal education.

 Won v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, illustrates that dire consequences may result from presuming that no order was entered at a clerk's status call. In Won, the Illinois Appellate Court, First District, dismissed an appeal for lack of jurisdiction. The defendant lost the right to challenge an order entering summary judgment against it when it failed to appear for a status call on the defendant's motion to reconsider the ruling and the court entered an order, drafted by the plaintiff's counsel but not served on the defendant's attorney, in which the court struck the motion to reconsider with prejudice.

     The case arose from a breach of a real estate sales contract for the purchase of a condominium. The plaintiff contended that she had exercised her contractual right to terminate the contract because the closing did not proceed by the deadline specified in the contract--a condition precedent. Based on that and other grounds that she contended gave her the right to terminate the deal, plaintiff sued for the return of her earnest money and upgrade fees she had paid for the newly constructed condominium. Discovery and motion practice ensued. Ultimately, the trial court granted plaintiff's motion for summary judgment and denied the defendant's cross motion.

     Seeking reversal of the ruling, the defendant timely filed a motion to reconsider. The trial court entered a briefing schedule on the motion in a written order requiring the defendant to provide copies of the motion, response, and reply at a scheduled clerk status hearing. The written order specified that neither the briefing schedule nor the status date could be altered without leave of court, and that failure to comply could result in an order striking the motion or ruling on it without hearing.

     On April 5, 2012, the date of the clerk status, defense counsel failed to appear. The trial court then entered an order striking the motion to reconsider, with prejudice. Unaware of the April 5 order, the defendant filed its reply brief on April 6, two days after the deadline specified in the briefing schedule. Defense counsel spoke with the judge's clerk, who did not mention the existence of the strike order; according to the defendant, the clerk advised defense counsel to file a motion to set a hearing on the motion to reconsider. Defendant filed such a motion on May 4, within 30 days of the strike order. Contending that the court by then had lost jurisdiction over the case, the plaintiff opposed the motion to set a hearing on the motion to reconsider. The trial court heard the motion to reconsider on the merits and denied it on July 26, 2012. Within 30 days, on August 24, the defendant filed a notice of appeal.

     In a decision authored by Justice Bertina E. Lampkin, the appellate court considered two key issues in concluding that the trial court lost jurisdiction over the case before it ruled on the motion to reconsider. First, it found that the April 5 strike order unambiguously disposed of the motion to reconsider with prejudice. The court rejected the defendant's argument that the order merely was a scheduling order and was not a final ruling on the merits.

     Second, the appellate court determined that the motion requesting a hearing date, which was filed within 30 days of the strike order, could not be considered a de facto request to vacate the strike order. The court observed that defense counsel did not know that the strike order existed when the motion to set the matter for hearing was filed. Thus, while agreeing that the title of the motion did not control characterization of it, the appellate court disagreed with the defendant's argument that limiting defendant to the relief requested in the motion elevated form over substance. The court reasoned that the motion for reconsideration could not be set for hearing when it was no longer pending. The motion had been stricken with prejudice; it had not just been taken off the trial court's call.

     The appellate panel concluded by observing that the defendant essentially sought to refile a stricken postjudgment motion more than 30 days after disposition. Citing the rule against successive postjudgment motions and the need for finality in the judicial system, the court concluded that its dismissal of the appeal served the efficient administration of justice.

     Justice Mary K. Rochford specially concurred. Disagreeing with the characterization of the April 5 order as "unambiguous," Justice Rochford queried whether the applicable rules of construction of the order should lead to a different result. In her view, the record suggested that the trial court did not undertake the important step of considering a postjudgment motion on the merits. Justice Rochford also questioned whether the circumstances indicated that, as the defendant had argued, the April 5 order truly was administrative. She also compared the order to a sanction, which should be accompanied by specific findings. Ultimately, however, Justice Rochford concurred in the majority's conclusion based on the "with prejudice" language of the April 5 order.

Recommended Citation: Karen Kies DeGrand, When the Failure to Appear at a Status Call Leads to a Stricken Motion in the Trial Court and Then a Lack of Jurisdiction in the Appellate Court, The Brief, (April 7, 2014), http://applawyers-thebrief.blogspot.com/2014/04/when-failure-to-appear-at-status-call.html.

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), http://applawyers-thebrief.blogspot.com/2014/03/dont-judge-motion-by-its-title.html.

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, Amended, The Brief, (March 23, 2014), http://applawyers-thebrief.blogspot.com/2014/03/supreme-court-rules-governing-filing.html.

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 defendant’s 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 doctrine’s 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 Parameters, The Brief, (March 20, 2014), http://applawyers-thebrief.blogspot.com/2014/03/ilinois-high-court-affirms-validity-of.html.

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), http://applawyers-thebrief.blogspot.com/2014/03/pitfalls-in-preservation-is-raising.html.

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.

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 Finality, The Brief, (March 8, 2014), http://applawyers-thebrief.blogspot.com/2014/03/a-clerks-docket-entry-in-federal-court.html.

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.