PRACTICAL APPEALS ADVICE - Part Seven - MORE PERFECTING OF THE APPEAL

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2006

The most recent article in this series discussed the impact of post-judgment motions on appealability and the deadline for filing notices of appeal in civil and criminal cases. This part continues the discussion of the manner of perfecting the appeal.

IV. WHO CAN FILE A NOTICE OF APPEAL?

A. CIVIL CASES

Obviously, an appeal seeks to redress perceived error in the trial court. However, the Appellate Court will not consider an appeal where the cited error has not adversely affected the appellant. Thus, in order to appeal, the party filing the notice must be adversely affected by the judgment. If more than one party seeks redress, then each adversely affected party must file a notice of appeal. (fn. 1)

The same principle governs cross-appeals and separate appeals in multiple party cases. The filing of such appeals is not appropriate unless other appellant(s) or the appellee(s) have been adversely affected by the judgment. If a timely notice of appeal is filed by one party, then any other party may join in the appeal, appeal separately, or file a cross-appeal. These additional notices must be filed either (1) within 30 days of the entry of the judgment, (2) within 30 days of the entry of the order disposing of the last pending post-judgment motion, or (3) within 10 days after service of the initial notice of appeal, whichever is latest. (fn. 2) Where the reviewing court has permitted the original appellant to file a late notice of appeal, subsequent notices may be filed by other parties within 10 days of the entry of the order of the Appellate Court. (fn. 3)

B. CRIMINAL CASES

The defendant is normally the party adversely affected by a judgment in a criminal case. Where the prosecution results in an acquittal, the protection against double jeopardy and the judicial article contained in the Constitution of Illinois prohibit the filing of an appeal by the State. (fn. 4) However, the prosecution has the right to file interlocutory appeals in certain limited circumstances. Those circumstances include appeals from orders dismissing charges or suppressing evidence. (fn. 5)

V. WHAT IF I'M NOT SURE ABOUT APPEALABILITY?

I admit that the issue of appealability is not always clear or free from doubt. In my opinion, the best defense against these uncertainties is the filing of multiple notices of appeal. You simply cannot go wrong if you file more than one notice after resolution of more than one apparently final issue. Even if you file more than one notice in the same case, you can move to consolidate the appeals into one proceeding in the Appellate Court.

VI. WHAT IS A NOTICE OF APPEAL?

The simplest part of an appeal is the preparation of the notice of appeal. The notice is usually a one- or two-page document providing certain basic information concerning the parties, counsel, and the date(s) and order(s) from which the appeal is taken. In a civil case, the notice also specifies the type of relief requested on appeal. Just to make life easier, the rules contain forms to use in preparing the notice. (fn. 6) There is no reason to vary from these forms and it is not considered bad form to adopt the forms.

In civil cases, you need only provide the following information:

  1. a caption;
  2. the designation of "Notice of Appeal";
  3. the order or judgment appealed from (include the date);
  4. the relief sought from the Appellate Court (such as reversal of the judgment); and
  5. a signature with address.

In criminal cases, you need only provide the following information:

  1. a caption;
  2. the designation of "Notice of Appeal";
  3. the district of the Appellate Court (2nd District for Kane County);
  4. the client's name and address;
  5. the date on which sentence was imposed;
  6. names of crimes for which convictions were entered;
  7. the client's sentence; and
  8. a signature.

Note that you are not required to specify the errors to be raised in the brief.

The filing of the notice is the only step in the appeal carrying jurisdictional significance. In other words, though subsequent steps in the appellate process are important, the failure to follow those steps will not deprive the reviewing court of jurisdiction to rule on the appeal. (fn. 7)

VII. CAN I AMEND THE NOTICE OF APPEAL?

Even though the notice is the jurisdictional step in the appeal, you need not panic if you made mistakes in preparing the document. The rules contain provisions for amendment of the notice, either with or without the filing of a motion. The amendment relates back to the time of filing the original notice. (fn. 8) Both the civil and the criminal rules permit amendment of the notice within the original 30-day filing deadline, without any requirement to obtain leave of court to amend. (fn. 9) For this reason, it is good practice to file the notice in advance of the 30-day deadline. When errors come to you in the middle of a good night's sleep, you can correct them within the remainder of the 30-day period without fussing with motions and by preparing only one (or two) more piece(s) of paper. If the error shows up as much as 30 days later, you can file a motion with the Appellate Court requesting leave to amend the notice.

However, motions to amend cannot cure all ills. First, an amended notice will not confer appellate jurisdiction over an order that was entered after the filing of the first notice. (fn. 10) In this situation, a second timely notice must be filed specifying the second order to permit appeal of the later decision. Second, some case law holds that a notice cannot be amended more than 60 days after the entry of final judgment, at least with respect to substantive amendments. (fn. 11)

VIII. WHERE IS THE NOTICE OF APPEAL FILED?

The notice is convenient to file, since it is filed like any other document in your case at the office of the circuit clerk in the county where the case is pending, not the office of the clerk of the Appellate Court. (fn. 12) Instead, you need to follow a docketing process in the Appellate Court within 14 days of the filing of the notice, which places the case on the calendar of the Appellate Court. (fn. 13) The circuit clerk will not charge a fee for filing the notice.

IX. HOW IS THE NOTICE OF APPEAL FILED?

I strongly urge you to file the notice in person prior to the 30th day. You can file the notice by mail by placing it in a mailbox of the U.S. Postal Service on the 30th day, even though it is received in the clerk's office after the deadline expires. (fn. 14) However, I call your attention to the following perils of filing the notice by mail:

1) What if the notice is lost in the mail? Then, you have nothing in hand proving that you actually filed the notice. Though you should have attached a notice of filing, this document is subject to challenge. (fn. 15) If you must mail the notice, don't be cheap! Instead, spend a few dollars for certified or registered mail with a return receipt stamped by hand at post office, not put in a mailbox. Then, you have proof of mailing issued by a third party and the ability to trace the envelope.

2) Also, beware of the use of private mail services, such as UPS or FedEx. In Clark v. TAP Pharmaceutical Products, Inc., 331 Ill.App.3d 628 (5th Dist., 2002), the Appellate Court initially ruled that a notice arriving by private mail carrier on the 31st day was not timely filed, even though it was mailed on the 29th day. The reviewing court based this ruling on the absence of any provision in the Supreme Court Rules for recognizing unofficial, non-U.S. Postal Service delivery. The Supreme Court vacated this ruling in a supervisory order due to the unique facts of the case. (fn. 16) But why tempt fate by using UPS in this unsettling climate, especially since the Postal Service is cheaper?

X. WHAT IF I DON'T WANT TO REPRESENT THE CLIENT ON APPEAL?

Although the attorney-client relationship terminates upon the rendition of a final judgment (fn. 17), this event does not end your professional responsibility to your client. The failure to preserve the client's right to appeal in a civil case may give rise to a legal malpractice claim if the client can prove on appeal that she would have succeeded in the underlying lawsuit. (fn. 18) Likewise, as to criminal cases, no less an authority than the U.S. Supreme Court has determined that the failure to perfect an appeal requested by the client from her trial level representative amounts to ineffective assistance of counsel. (fn. 19)

XI. WHAT IF I USE THE WRONG FORM OF NOTICE OF APPEAL?

The notice of appeal is construed liberally against attacks on its accuracy. As long as you included sufficient information in your document to give your opponent notice of the substance of the appeal, errors in form do not deprive the reviewing court of jurisdiction in the absence of prejudice to the appellee. (fn. 20)

XII. WHAT IF I APPEAL TO THE WRONG COURT?

Supreme Court Rule 365 protects you in the event of this snafu. If you name the wrong district of the Appellate Court in your notice of appeal and send your appellate documents to the wrong location, the case will be transferred to the proper court.

XIII. DETAILS: A QUICK CHECKLIST

When preparing and filing your notice, be sure to check and re-check the following items:

(a) Count the 30-day deadline by excluding the date of the order you are appealing and including the date of filing the notice. (fn. 21)

(b) Pay attention to the circuit court case number, especially if the case was referred to you by another lawyer, who provided you with the caption. Filing the case under the wrong case number could spell disaster.

(c) Make sure the clerk's file stamp bears the correct date, including the year. Also, keep a file-stamped copy of the notice that clearly displays the date.

(d) Check the notice after filing the document and file an amended notice if necessary.

(e) Count the 30-day deadline three more times after filing the notice.

My next article will discuss the steps you need to take to place the appeal on the calendar of the Appellate Court (called "docketing") and to prepare the record on appeal.

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

1. Speck v. Zoning Board of Appeals, 93 Ill.App.3d 460 (1st Dist., 1980)

2. Supreme Court Rule 303(a)(3)

3. Supreme Court Rule 303(d)

4. U.S. Const., Amendment V; Ill. Const., Article I, section 10; Article VI, section 6

5. Supreme Court Rule 604(a)

6. Supreme Court Rules 303(b) & 606(d)

7. Supreme Court Rules 301 & 606(a)

8. Supreme Court Rule 303(b)(4); Supreme Court Rule 606(d)

9. Supreme Court Rules 303(b) and 606(d)

10. Herman v. Hamblet, 81 Ill.App.3d 1050 (1st Dist., 1980)

11. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill.App.3d 681 (1st Dist., 1994); Supreme Court Rule 303(b)(4), (d); Supreme Court Rule 606(d)

12. Supreme Court Rules 303(a)(1) & 606(a)

13. See the next article in this series.

14. Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill.2d 326 (1989); Wilk v. Wilmorite, Inc., 349 Ill.App.3d 880 (2nd Dist., 2004); Supreme Court Rule 373

15. Wilk v. Wilmorite, Inc., 349 Ill.App.3d 880 (2nd Dist., 2004); People v. Barcik, 357 Ill.App.3d 1043 (2nd Dist., 2005)

16. 201 Ill.2d 562 (2002)

17. Marriage of Schmitt, 321 Ill.App.3d 360 (2nd Dist., 2001); Allord v. Municipal Officers, 288 Ill.App.3d 897 (1st Dist., 1997)

18. Governmental Interinsurance Exchange v. Judd, 221 Ill.2d 195 (2006)

19. Roe v. Flores-Ortega, 528 U.S. 470 (2000); also see People v. Hernandez, 283 Ill.App.3d 312 (4th Dist., 1996)

20. Burtell v. First Charter Service Corp., 76 Ill.2d 427 (1979); In re D.R. & T.R., 354 Ill.App.3d 468 (3rd Dist., 2004)

21. Walikonis v. Halsor, 306 Ill.App.3d 811 (2nd Dist., 1999); 5 ILCS 70/1.11