• Illinois Supreme and Appellate Courts Issue Stern Reminders on Appellate Jurisdiction and Waiver
  • June 19, 2012 | Author: Melissa A. Murphy-Petros
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - New York Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Chicago Office
  • In late spring 2012, the Illinois Supreme Court and two districts of the Appellate Court issued written opinions on appellate jurisdiction and waiver issues. These opinions illustrate well that the highly technical discipline of appellate procedure often presents traps for the unwary litigant or counsel. The best practice? Staff every appeal with a dedicated appellate practitioner and don’t let this happen to you ...

    An electronically filed notice of appeal does not invoke appellate jurisdiction, even if it is timely.
    In VC&M, Ltd. v. Andrews, 2012 IL App (2d) 110523, the Appellate Court - Second District held that plaintiff’s timely filed electronic notice of appeal was insufficient to properly invoke its jurisdiction.

    Andrews is one of the first cases to address the Supreme Court’s recently approved e-filing pilot project, a project in which certain circuit courts may implement e-filing procedures as part of the Supreme Court’s effort to determine if e-filing should be implemented statewide. The Eighteenth Judicial Circuit (DuPage County) is one approved for e-filing, but its Local Rule 5.03(d) states specifically that “all appellate and post-judgment enforcement proceeding documents and notices shall be filed and served in the conventional manner and not by means of e-filing.” In Andrews, plaintiff timely filed her notice of appeal, but she did so electronically and never filed or served an accompanying paper copy. The Appellate Court dismissed plaintiff’s appeal finding that her failure to timely file a paper copy of her notice of appeal was fatal to its jurisdiction. The Appellate Court first rejected plaintiff’s arguments that her e-filing was done correctly and that the circuit court clerk accepted the e-filing:

    ¶ 20 ... Plaintiff argues that this court has jurisdiction to consider the appeal because plaintiff followed the technical procedure for e-filing and served defense counsel with the documents. Plaintiff fails to recognize that filing a document electronically does not render the document eligible for such filing.
    ¶ 21 Plaintiff also points out that the clerk of the court accepted the electronic filings, implying that the clerk would have rejected the documents if anything were amiss. Without citation to authority, plaintiff contends that the clerk possesses the discretion to accept or rejected purported filings. Plaintiff concludes that the clerk’s acceptance of the e-filed ... notice of appeal is proof of [its] validity. Plaintiff’s assertion leads to the absurd inference that a clerk’s acceptance of a defective notice of appeal would confer jurisdiction on this court.

    The Appellate Court then concluded that all rules pertaining to the filing of notices of appeal - local rules and Supreme Court rules alike - must be followed to the letter in order to invoke appellate jurisdiction:

    ¶ 22 We recognize that our supreme court has authorized and circuit courts have implemented e-filing systems to minimize paper use and make the court system more efficient and easier to use. However, these benefits do not justify plaintiff’s blatant disregard of supreme court rules and local rules governing e-filing. The pilot e-filing system in the circuit court might be the future of document management, but plaintiff must adhere to the rules in effect today.

    A motion to reconsider an order denying a post-trial motion does not toll the time for filing a notice of appeal.
    Supreme Court Rule 303(a)(2) provides that a timely filed post-trial motion will toll the time for filing a notice of appeal such that the time to file a notice of appeal does not begin to run until the date on which such motion is ruled upon. In Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064, the Appellate Court - Third District reminds counsel that a motion to reconsider the denial of a post-trial motion does not have the same effect.

    In Dus, plaintiff timely filed a post-trial motion for judgment notwithstanding the verdict (JNOV) on the issue of the jury’s contributory negligence finding. The circuit court denied plaintiff’s motion when his counsel failed to appear at the motion hearing. Plaintiff did not file a notice of appeal within 30 days of this order, and instead filed a motion to reconsider the denial of his post-trial motion. This, too, was denied, and plaintiff filed a notice of appeal within 30 days of this latter order. In dismissing plaintiff’s appeal, the Appellate Court determined that the language of Rule 303(a)(2) is clear and must be applied as written - only a timely filed post-trial motion will toll the time for filing a notice of appeal and no other motion will do so, regardless of when it is filed:

    ¶ 10 The timely filing of a notice of appeal is both mandatory and jurisdictional. Accordingly, our supreme court commands strict compliance with its rules governing the time limits for filing a notice of appeal, and neither a circuit court nor an appellate court has the authority to excuse compliance with the filing requirements mandated by the supreme court’s rules. When an appeal is untimely under a supreme court rule, the appellate court has no discretion to take any action other than dismissing the appeal. (Citations omitted.)
    ¶ 17 One of the purposes of Rule 303 is to promote the finality of trial court judgments. See Sears v. Sears, 85 Ill. 2d 253, 259 (1981) (noting that “[t]here is no provision in the Civil Practice Act or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart,” and ruling that “[t]here must be finality, a time when the case in the trial court is really over and the loser must appeal or give up”). “Successive post-judgment motions interfere with that policy.” Id. Allowing Dus’s motion to reconsider the denial of his posttrial motion to toll the time period for filing a notice of appeal would have the same effect. Moreover, as noted above, it would contravene the plain terms of Rule 303(a)(2).

    An amended pleading must incorporate or adopt the prior pleading, or appellate review of the prior pleading is waived.
    Finally, the Supreme Court has reiterated that the long-standing rule - that an amended pleading must incorporate or adopt all prior pleadings or appellate review of the prior pleadings will be waived - is still the law.

    In Bonhomme v. St. James, 2012 IL 112393, defendant moved pre-answer to dismiss plaintiff’s seven-count second amended complaint for failure to state a cause of action. The circuit court dismissed six counts with prejudice and one count without prejudice and with leave to re-plead. Plaintiff then filed a third amended complaint alleging that single count. Defendant moved to dismiss the third amended complaint for failure to state a cause of action, and that motion was granted with prejudice. On appeal, plaintiff sought review of the order dismissing the six prior counts with prejudice. The Supreme Court determined that plaintiff had waived appellate review of that order because she did not incorporate or adopt the dismissed counts in her third amended complaint:

    ¶ 17 The rules governing the preservation of dismissed claims for purposes of appellate review are clear and well settled. This court has clearly and consistently explained that a party who files an amended pleading waives any objection to the trial court’s ruling on the former complaints, and where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. (Citations omitted.)
    ¶ 19 ... [B]y electing to proceed on fraudulent misrepresentation only, and by filing a third amended complaint that neither referenced nor incorporated any of the previously dismissed counts, plaintiff here effectively abandoned and withdrew those counts and in so doing waived any appellate review of their dismissal. The law could not be clearer on this point.

    The Supreme Court then noted that “[t]he burden for accomplishing” error preservation in these circumstances “is not onerous”: “a simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff is preserving the dismissed portions of the former complaints for appeal is sufficient to avoid” waiver. (¶ 26 at footnote 1)

    Of note, the Supreme Court rejected plaintiff’s argument that the circuit court told her that she did not waive appellate review of the dismissal of the second amended complaint when she filed her third amended complaint, and that she should not be penalized with waiver for relying on the lower court’s assurances: “[E]ven the trial court’s express assurance that the ... objections were in fact preserved for review does not preclude a finding of waiver” because “a party should not be excused from following rules intended to preserve issues for review by relying on a trial court’s erroneous belief that an issue was properly preserved for review.” (¶ 26) (Citations omitted.)