This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in June, 2006
Parts One and Two in this series of articles discussed some basic considerations in deciding whether to appeal a ruling of the circuit court. Part Three addresses the requirements for filing motions for reconsideration from interlocutory orders and post-judgment motions in civil cases.
MOTIONS FOR RECONSIDERATION OF INTERLOCUTORY ORDERS & POST-JUDGMENT MOTIONS IN CIVIL CASES
The trial court must enter an appealable order before the case is ripe for an appeal. A lengthy pamphlet, if not an entire book, could be written on determining the appealability of various orders. In keeping with my usual approach to these articles, I will not delve into the minutiae of this subject. Instead, I will concentrate on some general principles concerning the appealability of orders.
The term "appealable" is sometimes confused with the word "final" in the appeals context. However, a final order is not necessarily appealable. The most obvious instances are cases in which all issues pertaining to one plaintiff or one defendant have been resolved in a multi-party case, but other legal questions remain concerning claims against other parties. As an example, the trial court enters an order dismissing the case against one defendant, which "finally" resolves the tort or contract liability of that person or entity. However, this final order cannot be appealed absent a Rule 304(a) finding, because the claims against the remaining defendants have not been resolved or because counter-claims are still pending.
In general, an order is not appealable until all issues have been resolved as to all parties to the litigation.1 In some circumstances, orders may be appealed only by the plaintiff or only by the defendant. For example, the voluntary dismissal of a case is not appealable by the movant, but may be appealed by his or her opponent.2 Timely motions filed pursuant to Supreme Court Rule 137 that seek sanctions for the filing of a groundless lawsuit prevent the judgment from being appealable until the motion is resolved,3 even though all other issues have been "finally" adjudicated. Moreover, Illinois case law sometimes arrives at contradictory results concerning the appealability of certain orders. For example, the decisions differ on whether the denial of a motion to intervene is appealable.4
Therefore, it is crucial for the practitioner contemplating filing an appeal to research whether the last court order is appealable.
B. APPEAL OF PRE-TRIAL JUDGMENTS & INTERLOCUTORY ORDERS
Civil lawsuits may be resolved by any one of a number of motions. Examples include dismissals due to (1) the expiration of the statute of limitations or other defenses specified in section 2-619 of the Code of Civil Procedure;5 (2) the filing of a complaint that is legally insufficient in law;6 or (3) the entry of summary judgment,7 to name just a few. Does Illinois law require the filing of a motion challenging the entry of such orders in order to preserve a challenge to a dismissal for appellate review?
Supreme Court Rule 366(b)(3)(ii) indicates that the scope of appellate review of a non-jury case is not affected either by the filing or by the failure to file a post-judgment motion.8 In Mohn v. Posegate, 184 Ill.2d 540 (1998), the Supreme Court invoked this rule when it decided that the failure to file a post-judgment motion following the conclusion of a jury trial did not limit the scope of review of a pre-trial order granting partial summary judgment. The Court reasoned that the decision of the trial judge granting partial summary judgment removed those issues from the purview of the jury, so that the party adversely affected by the pre-trial order was not required to file a motion challenging the bench ruling.
My only legal hesitation in advising you that post-judgment motions are not required in order to challenge pre-trial rulings is the final comment of the high court in the Mohn decision. The opinion noted that a motion to reconsider the summary judgment ruling had been presented to the trial court as another reason that the litigant was not required to file a second motion following the jury trial. Moreover, Mohn did not specifically overrule or even mention some of the previous case law holding to the contrary or creating various exceptions to the rule excusing a post-judgment filing in a bench case.9
A cautious appellate advocate would advise you to file a motion to reconsider any of the rulings noted above to avoid even the most remote possibility of a waiver argument by the appellee. Perhaps even more importantly, I believe that the mental discipline required to file the motion will serve you well in anticipation of presenting the same arguments on appeal.
Beware of orders that may be appealed on an interlocutory basis by specific Supreme Court rule! For example, Rules 306 through 308 grant appealability status to a wide variety of pre-trial and post-trial orders. These rules contain 2-day, 5-day and 30-day deadlines for filing the appropriate appellate documents, depending on the type of order appealed. In addition, Rule 307(b) contains a special timeline that applies to the filing of notices from interlocutory orders entered on ex parte application. Although these rules do not prohibit the filing of motions to reconsider the rulings of the trial court, the short time permitted to appeal makes reconsideration of trial court rulings impractical. Moreover, the filing of a motion to reconsider in these situations does not extend the time for filing appeals as of right or by permission.10 Therefore, if you fail to obtain a ruling on your motion to reconsider within two, five or 30 days, then you will lose the right to appeal on an interlocutory basis.11 Unless you know the judge will rule within the appropriate time frame, you should forego the motion and file the necessary documents to appeal.
C. APPEAL OF POST-JUDGMENT MOTIONS FOLLOWING BENCH TRIALS
As I just noted, Supreme Court Rule 366(b)(3)(ii) does not require the fling of post-judgment motions in non-jury cases. Logically, the rule should apply to situations involving stipulated bench trials. However, I still recommend the filing of a post-trial motion based on my usual admonition that clear articulation of the grounds for appeal will assist in formulating the arguments in the brief. You should not worry about waiving issues on appeal if you forget to include them in the motion because the language of the rule negates any possibility of waiver.
I acknowledge that strategic considerations may prompt a litigant to avoid filing any motion at all. For instance, the trial court's ruling might display some fundamental misunderstanding of the law or hostility to its fair application. In this scenario, the party may want to forego a challenge to the decision to avoid permitting the court to "clean up" the adverse ruling. I hasten to state that these scenarios represent unusual exceptions to the run-of-the-mill appeal.
D. NECESSITY OF POST-JUDGMENT MOTIONS FOLLOWING JURY TRIALS
A different sub-section of Rule 366 requires that a party appealing from a jury verdict must file a post-trial motion to avoid forfeiture of all claims on appeal.12 In the situation represented by the Mohn case, the losing party in the trial court would still need to file a post-trial motion from the adverse jury verdict to challenge that aspect of the case, even though no motion is required to address the grant of partial summary judgment by the court.
The exceptions to this general rule apply where the court grants a motion for directed verdict or where the appeal seeks review of an order entered after discharge of the jury.13 In those situations, you can (but should not) dispense with the filing of a post-judgment motion.
E. TIMELINESS OF POST-JUDGMENT MOTIONS
In non-jury cases, the post-judgment motion must be filed within 30 days following the entry of judgment.14 The same time limit applies in jury cases where a verdict has been rendered.15 Where no verdict has been reached, the motion must be filed within 30 days of that occurrence.16 In both types of cases, an extension may be granted for the filing of the motion.17 However, the first request for an extension must be ordered within the initial 30-day period. Therefore, if you simply file the motion within 30 days, but do not bring it to hearing within 30 days, you risk losing the extension and the right to appeal. You may obtain multiple extensions, but each subsequent extension must be granted within the time period allowed for filing the motion in the last court order.18
F. SUFFICIENCY OF POST-JUDGMENT MOTIONS
In a previous article, I discussed the relaxation of the rule of specificity as applied to post-judgment motions in non-jury cases.19 As long as the motion requests one of the types of relief specified in the governing statute, such as a new trial, then the document need not include legal or factual argument.20 However, the Kingbrook decision notes that specificity is still required in post-judgment motions filed in jury cases.21 Also, both past case law and an amended Supreme Court rule require that the motion must be "directed against the judgment."22 Thus, motions denominated as "post-trial motions" will be effectively stripped of their titles if they do not seek some relief from an adverse judgment. Examples of motions not deemed "post-trial motions" are those requesting leave to file an amended pleading,23 motions seeking pre-judgment interest,24 and motions seeking to stay enforcement of the judgment.25
G. SUCCESSIVE POST-JUDMGENT MOTIONS
Also beware of the successive post-judgment motion, which includes a motion to reconsider a ruling on an initial post-judgment motion! If the trial court rules on your first post-judgment motion, then you cannot delay the running of the 30-day period to file your notice of appeal by filing another post-judgment motion. Both new Supreme Court Rule 274 and Supreme Court Rule 303(a)(2) explicitly prohibit this practice. If you take this prohibited action and do not file the notice of appeal within 30 days of the ruling on the first motion, then you will deprive the Appellate Court of jurisdiction over your appeal. Rule 274 provides an exception that permits the filing of a second motion where the initial judgment has been modified or a different judgment has been entered that adversely affects the client's interests in the case.
See Part Five to be published in a couple of months.
Part Four will continue this series by addressing equivalent considerations to those discussed above for criminal cases.
1. John G. Phillips & Assoc. v. Brown, 197 Ill.2d 337 (2001)
2. Kahle v. John Deere Co., 104 Ill.2d 302 (1984)
3. Supreme Court Rule 274
4. Board of Trustees v. Timpone, 28 Ill.2d 255 (1963); Estate of Mueller, 275 Ill.App.3d 128 (1st Dist., 1995)
5. 735 ILCS 5/2-619
6. 735 ILCS 5/2-615
7. 735 ILCS 5/2-1005
8. Also see Mt. Zion State Bank & Trust v. Central Illinois Annual Conference, 198 Ill.App.3d 881 (4th Dist., 1990)
9. See, for example, Marriage of Henry, 297 Ill.App.3d 139 (2nd Dist., 1998); Marriage of Harper, 191 Ill.App.3d 245 (4th Dist., 1989); Page v. Estate of Page, 66 Ill.App.3d 214 (5th Dist., 1978); Marriage of Hahin, 266 Ill.App.3d 168 (2nd Dist., 1994); and Bridges v. Neighbors, 32 Ill.App.3d 704 (5th Dist., 1975)
10. Trophytime, Inc. v. Graham, 73 Ill.App.3d 335 (4th Dist., 1979)
11. However, you may have another opportunity to appeal after final judgment. See, for example, Salsitz v. Kreiss, 198 Ill.2d 1 (2001); Anderson v. Financial Matters, Inc., 285 Ill.App.3d 123 (2nd Dist., 1996); and Davis v. Bughdadi, 120 Ill.App.3d 236 (5th Dist., 1983)
12. See Supreme Court Rule 366(b)(2)(iii); also see Johnson v. Transport International Pool, Inc., 345 Ill.App.3d 471 (1st Dist., 2003)
13. Barry Mogul & Assoc, Inc. v. Terrestris Development Co., 267 Ill.App.3d 742 (2nd Dist., 1994)
14. 735 ILCS 5/2-1203(a)
15. 735 ILCS 5/2-1202(c)
16. 735 ILCS 5/2-1202(c)
17. 735 ILCS 5/2-1202(c); 735 ILCS 5/2-1203(a)
18. Trentman v. Kappel, 333 Ill.App.3d 440 (5th Dist., 2002)
19. See "Post-Judgment Motions in Civil Non-Jury Cases: Don't Sweat the Small Stuff Any More?", Bar Briefs, October 2003
20. Kingbrook, Inc. v. Pupurs, 202 Ill.2d 24 (2002); 735 ILCS 5/2-1203(b)
21. 735 ILCS 5/2-1202(b)
22. Berg v. Allied Security, Inc., 193 Ill.2d 186 (2000); Supreme Court Rule 303(a)(1) (amended effective January 1, 2006); also see new Supreme Court Rule 274 (effective October 14, 2005)
23. Andersen v. Resource Economics Corp., 133 Ill.2d 342 (1990)
24. Rago Machine Products, Inc. v. Shields Technologies, Inc., 233 Ill.App.3d 140 (2nd Dist., 1992)
25. Mostardi-Platt Associates, Inc. v. American Toxic Disposal, Inc., 182 Ill.App.3d 17 (1st Dist., 1989)
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: firstname.lastname@example.org. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.