POST-JUDGMENT MOTIONS IN CIVIL NON-JURY CASES: DON'T SWEAT THE SMALL STUFF ANY MORE?

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2003

Prior to initiating an appeal, litigants in civil non-jury cases sometimes want one more opportunity to convince the trial judge of his or her error following the entry of an adverse judgment. Occasionally, the motivation is simply delay, either because the client wants more time to think about whether to appeal, or more time is needed to find an appellate attorney, or simply out of a desire to prevent enforcement of the judgment until the motion is resolved. (fn. 1)

Case law from the 1990's held that counsel had to mind the p's and q's of post-judgment practice to avoid having the motion being considered a nullity. For example, in Sho-Deen, Inc. v. Michel, 263 Ill.App.3d 288 (2nd Dist., 1994), the Appellate Court ruled that a document called a motion for reconsideration was not really a post-judgment motion due to the failure to state any legal or factual basis for modifying or reversing the judgment. Thus, the filing of the motion for reconsideration did not extend the time for filing a notice of appeal. Since the appellant waited for the court's ruling on the motion before filing the notice of appeal, the notice was not filed within 30 days of the entry of judgment. As a result, the Appellate Court dismissed the appeal for lack of jurisdiction, even though the notice of appeal was filed within 30 days of the resolution of the "post-judgment motion". Thus, the litigant lost the right to appeal because of inattention to the specificity requirement in case law.

Late last year, the Supreme Court overruled this line of authority when interpreting the relevant civil post-judgment statute. (fn. 2) Now, you need not sweat some of the details any more, because the Supreme Court's decision abolished this specificity requirement. Instead, the post-judgment motion need only request at least one of the appropriate types of relief indicated in the statute, namely rehearing, re-trial, modification of the judgment, or vacation of the judgment, or other similar relief.

Despite the ruling in the Kingbrook case, some notes of caution are still in order. First, the ruling only pertains to civil non-jury cases. The Kingbrook Court explicitly noted the different language contained in the statute governing civil jury cases. This latter statute (fn. 3) requires specific allegations as to "the points relied upon, particularly specifying the grounds in support" of the motion. Therefore, in jury cases, the same specificity is required as was previously the case under authorities like Sho-Deen.

Second, even in civil non-jury cases, the reviewing courts have decided that documents called "post-judgment motions" on their face are not really post-judgment motions if they do not request the types of relief set forth in 735 ILCS 5/2-1203(a). For example, motions that request leave to file an amended complaint are not deemed honest-to-goodness post-judgment motions due to their failure to request re-hearing, re-trial, etc. (fn. 4) The filing of such motions does not extend the time for filing a notice of appeal because they do not attack the judgment. Experienced litigators know that the normal course of decision-making in these cases will not result in a ruling on post-judgment matters within 30 days of filing. Therefore, the same danger exists for the appealing party as in the Sho-Deen case by filing an inappropriate motion. The failure to obtain a ruling on the motion and file the notice of appeal within 30 days of the entry of the judgment will result in dismissal of the appeal.

In addition, beware of other motions seeking relief that does not seek re-hearing, re-trial, modification or vacation of the judgment. Even though section 2-1203 of the Code of Civil Procedure refers to seeking "other relief" as a proper basis for a post-judgment motion, this "other relief" must be "similar" to re-hearing, re-trial, modification or vacation of the judgment. (fn. 5) Consequently, the following types of motions are not considered post-judgment motions and do not extend the 30-day time limit for filing a notice of appeal: (1) Motions to supplement the record and for the assessment of costs (fn. 6); (2) Motions seeking pre-judgment interest (fn. 7); (3) Motions seeking to stay enforcement of the judgment#; (4) Successive post-judgment motions filed beyond the deadline for filing an initial post-judgment motion (fn. 8).

Yet another pitfall can occur when a perfectly proper post-judgment motion is combined with a request for other relief that would not independently pass the test to qualify as a post-judgment motion. In Berg v. Allied Security, Inc., 193 Ill.2d 186 (2000), the trial court first denied a motion for reconsideration, but delayed its decision on an alternative request to amend the complaint included in the motion for reconsideration. The Illinois Supreme Court denied appellate review of the case because the notice of appeal was not filed within 30 days of the denial of the motion for reconsideration. The right to appeal was lost because counsel waited for resolution of the alternative request to amend before filing the notice of appeal. (fn. 9)

Kingbrook also ruled that the motivation behind the filing of a post-judgment motion is not relevant in determining its timeliness. Therefore, a plaintiff or a defendant is permitted to slow the wheels of justice deliberately by filing a post-judgment motion in a non-jury case where the motion lacks any substantive allegations. But this desire for delay for its own sake can turn on the litigant if he or she neglects to ask for the appropriate type of relief. Some minimal specificity requirement still lives!

Of course, counsel can avoid all these pitfalls in a civil non-jury case by deciding not to file any post-judgment motion at all. The civil non-jury statute recites that a motion "may" be filed, rather than requiring the filing of the document. Moreover, Supreme Court Rule 366(b)(3)(ii) states that "[n]either the filing of nor the failure to file a post-judgment motion limits the scope of review" in civil non-jury cases. Case law interpreting the Rule upholds this interpretation. (fn. 10) If the record of previous proceedings is complete and the litigant wants to plunge ahead with an appeal as soon as possible, then this is an acceptable approach. However, just make sure that your notice of appeal is filed within 30 days of the entry of the judgment! (fn. 11)

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

Footnotes

fn. 1 The mere act of filing a post-judgment motion in a non-jury case stays enforcement of the judgment, without the need to obtain any other court order. See 735 ILCS 5/2-1203(b)
fn. 2 Kingbrook, Inc. v. Pupurs, 202 Ill.2d 24 (2002); 735 ILCS 5/2-1203(b)
fn. 3 735 ILCS 5/2-1202
fn. 4 Andersen v. Resource Economics Corp., 133 Ill.2d 342 (1990)
fn. 5 Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill.2d 458 (1990)
fn. 6 Mitchell v. Atwood Enterprises, Inc., 253 Ill.App.3d 475 (2nd Dist., 1993)
fn. 7 Rago Machine Products, Inc. v. Shields Technologies, Inc., 233 Ill.App.3d 140 (2nd Dist., 1992)
fn. 8 Mostardi-Platt Associates, Inc. v. American Toxic Disposal, Inc., 182 Ill.App.3d 17 (1st Dist., 1989)
fn. 9 Sears v. Sears, 85 Ill.2d 253 (1981)
fn. 10 Please note that the foregoing list is not exhaustive and that any motion filed after entry of judgment must be directed against that judgment in order to qualify for the title of "post-judgment motion".
fn. 11 Marriage of Mohr, 260 Ill.App.3d 98 (4th Dist., 1994)
fn. 12 I recommend that you take back to your office at least one file-stamped copy of the notice. Recently, the circuit clerk misplaced a notice in one of my appeals and stamped the wrong filing date on the document. I needed to be able to prove the correct date of filing with my copy of the notice or risk losing the right to appeal. (Yes, luckily I kept a copy.)