PRELIMINARY MATTERS
By Alyssa Campbell
Williams Montgomery & John Ltd.
I.
Can You Appeal?
A.
Is it a traditional, final judgment?
1.
Rule 301
Article VI, section 6, of the Illinois Constitution of 1970 (appeals as of
right from final judgments of the circuit court)

2.
A final judgment is “a determination by the court on the issues presented
by the pleadings which ascertains and fixes absolutely and finally the
rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill.2d 108, 112
(1982). A judgment is final “if it determines the litigation on the merits so
that, if affirmed, the only thing remaining is to proceed with the execution
of the judgment.” Id.
Rule 304(a)
Judgment as to fewer than all parties or claims
B.

Need “express written finding” with language of Rule 304(a) that “there is
no just reason for delaying either enforcement or appeal or both.”

Can make the 304(a) finding at the time of entry of the judgment or
thereafter on the court’s own motion or on motion of any party
Does it fall into a special category of final orders?
Examples:
1.
Contempt orders
see e.g. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002) (“When
an individual appeals from a contempt sanction imposed for violating, or
threatening to violate, a discovery order, the contempt finding is final and
appealable and presents to the reviewing court the propriety of that
discovery order.”).
2.
Certain administrative orders
Rule 335 – statutory direct review of orders of an administrative agency
3.
Orders dealing with Parental Notification of Abortion Act
Rule 303A
C.
Is it an interlocutory order that may be appealable either by permission or by
right?
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D.
Is it an unappealable, non-final order?
Examples:
1.
Order dismissing or entering judgment for fewer than all parties or all
claims with no 304(a) language
2.
Contempt order with no penalty
See e.g. Vowell v. Pedersen, 315 Ill. App. 3d 665 (2d
Dist. 2000) (dismissing appeal from order finding
attorney in contempt for discovery violation but imposing
no sanction)
3.
Order dismissing complaint without prejudice or with leave to amend
See e.g. J. Eck & Sons, Inc. v. Reuben H. Donnelly Corp.,
188 Ill. App. 3d 1090 (1st Dist. 1989) (dismissing appeal
from order dismissing final count of complaint without
prejudice)
4.
Order of default without a default judgment
See e.g. Burton v. Autumn Grain Transport, Inc., 222 Ill.
App. 3d 755 (1st Dist. 1991)
E.
Is there a timely rule 137 claim pending?
“A judgment or order is not final and appealable while a Rule 137 claim remains
pending unless the court enters a finding pursuant to Rule 304(a).” (Rule
303(a)(1))
F.
Does the right to appeal depend upon who is seeking to appeal?
Example:
Voluntary dismissals
II.

Are final and appealable as to the defendant. See e.g. Dillie v. Bisby, 106
Ill.2d 487 (1985).

Are not final and appealable as to the plaintiff, who requested it. See e.g.
Kahle v. John Deere Co., 104 Ill.2d 302 (1984).
Notice of Appeal
A.
Timing
1.
Generally must be filed within 30 days after the entry of the final
judgment appealed from or entry of the order disposing of the last pending (timely filed)
postjudgment motion directed against that judgment (Rule 303(a)(1))

See 2007 amendment to Rule 303(a) regarding premature notices of
appeal

Extension of time to file (Rule 303(d))
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must show “reasonable excuse for failure to file a notice of appeal on
time”
must file in the reviewing court within 30 days after expiration of the
time for filing a notice of appeal

Is the postjudgment motion timely?
was it filed within 30 days of the judgment?
if the time was extended, did the court enter an order granting the
extension before the 30-day period expired?
2.
10 days after service of timely notice of appeal or within 30 days from the entry
of the judgment, whichever is later, for additional appeals (Rule 303(a)(3))
B.
Contents
See Supreme Court Rule 303(b)
1.
Caption
Pursuant to Rule 303(b), the Notice of Appeal shall be captioned as follows:
(i)
At the top shall appear the statement
“Appeal to the
Court,” naming the
court to which the appeal is taken, and below this shall be
the statement “From the Circuit Court of
,” naming the court from which the appeal is taken.
(ii)
It shall bear the title of the case, naming and
designating the parties in the same manner as in the circuit
court and adding the further designation “appellant” or
“appellee,” e.g., “Plaintiff-Appellee.”
(iii) It shall be designated “Notice of Appeal,”
“Joining Prior Appeal,” “Separate Appeal,” or “CrossAppeal,” as appropriate.
2.
Who is appealing

Be careful if you specify certain appellants by name to specifically list all
appellants by name

Might be able to designate “all plaintiffs” or “all defendants”
Examples:
Beneficial Dev. Corp. v. City of Highland Park, 239 Ill. App. 3d
414 (2d Dist. 1992), rev’d in part on other grounds, 161 Ill.2d
321 (1994) (finding that appeal was taken by only Beneficial, one
of plaintiffs below, even though attorney who signed notice of
appeal was attorney of record for all plaintiffs in trial court, where
only one plaintiff was named in body of notice and attorney
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signed notice as “Attorney for Plaintiff-Appellant Beneficial. . .
.”).
Harry W. Kuhn, Inc. v. County of DuPage, 203 Ill. App. 3d 677
(2d Dist. 1990) (all defendants considered appellants where
caption listed all defendants by name, body of notice stated that
appeal was taken by “Defendants-Appellants, County of DuPage,
et al.” and notice was signed by attorney on behalf of
“Defendants-Appellants.”).
But, note, Kuhn found notice sufficient “in the particular
circumstances here.”
3.
What are you appealing from

You must “specify the judgment or part thereof or other orders appealed
from” pursuant to Rule 303(b)(2)
See Burtell v. First Charter Service Corp., 76 Ill. 2d 427
(1979) (appeal from judgment brought up for review other
unspecified orders that were a “step in the procedural
progression leading” to that judgment)
4.
What relief do you want

5.
Rule 303(b)(2) requires the Notice of Appeal to specify “the relief sought
from the reviewing court.”
Which district do you appeal to?

It depends on the county in which the circuit court is located.
1st District: Cook
2nd District: Boone, Carroll, DeKalb, DuPage, Jo Daviess, Kane,
Kendall, Lake, Lee, McHenry, Ogle, Stephenson,
Winnebago
3rd District: Bureau, Fulton, Grundy, Hancock, Henderson, Henry,
Iroquois, Kankakee, Knox, LaSalle, Marshall, McDonough,
Mercer, Peoria, Putnam, Rock Island, Start, Tazewell,
Warren, Whiteside, Will
4th District: Adams, Brown, Calhoun, Cass, Champaign, Clark, Coles,
Cumberland, DeWitt, Douglas, Edgar, Ford, Greene, Jersey,
Livingston, Logan, Macon, Macoupin, Mason, McLean,
Menard, Morgan, Moultrie, Piatt, Pike, Sangamon,
Schuyler, Scott, Vermilion, Woodford
5th District: Alexander, Bond, Christian, Clay, Clinton, Crawford,
Edwards, Effingham, Fayette, Franklin, Gallatin, Hamilton,
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Hardin, Jackson, Jasper, Jefferson, Johnson, Lawrence,
Madison, Marion, Massac, Monroe, Montgomery, Perry,
Pope, Pulaski, Randolph, Richland, St. Clair, Saline,
Shelby, Union, Wabash, Washington, Wayne, White,
Williamson
C.
D.
III.
Mechanics of filing

File with clerk of the circuit court (Rule 303(a)(1))

Within 7 days, file notice of filing with the reviewing court and serve the
notice of appeal on the parties (Rule 303(c))
Amendment

Without leave within the original 30-day period

Thereafter, on motion in the reviewing court pursuant to Rule 303(d)
(Rule 303(b)(5))
Record on Appeal
A.
Request preparation of Record

Generally, Record or certificate in lieu thereof must be filed in the
Appellate Court within 63 days after filing the notice of appeal (Rule 326)

The Record is arranged in three sections: common law record (“C___”
followed by consecutively numbered pages), report of proceedings
(consecutively numbered), and trial exhibits. No volume exceeds 250
pages (Rule 324)
B.
Request preparation of transcript(s)

C.
Request should be made within 14 days of filing Notice of Appeal (Rule
323(a)
Monitor preparation

Appellant’s responsibility to obtain extension for clerk, if needed

The motion for extension must be filed in the Appellate Court within the
63 days or within 35 days thereafter on a showing of “reasonable excuse”
for not filing earlier (Rule 326)

Note that rule 326 requires the movant to serve a copy of the motion for
extension on the circuit court clerk preparing the record
D.
File Record with Appellate Court (Rule 326, 327)

Rule 327 requires the clerk to provide notice of filing the Record or the
certificate in lieu to all parties

File a Notice of Filing the Record in the Appellate Court
E.
Supplement Record, if necessary (Rule 329)

Supplementing the Record is usually a three-step process:
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IV.
1.
Either stipulate to additional or corrected portions of the Record or
obtain a trial court order correcting or supplementing Record
2.
Present the stipulation or trial court order to the circuit court clerk
who will prepare and certify a Supplemental Record
3.
Once the circuit court clerk certifies the Supplemental Record,
submit the certified Supplemental Record to the Appellate Court
with a Motion To File Supplemental Record Instanter

See 1st District Rule 19

The motion to supplement and the proposed order shall specify the
number of volumes to be filed
Other Preliminary Matters
A.
Docketing Statement (Rule 312)

Generally, shall be filed within 14 days after filing the notice of appeal
(Rule 312(a))

Due at the time of filing a Rule 306 petition or a Rule 308 application
(Rule 312(a))

Shall be filed within 7 days from filing a Rule 307 notice of appeal (Rule
312(a))

Form is in Rule 312
B.
Notice of Appearance

Note the different filing fees:
1st District:
$100 for Appellant
$50 for Appellee
2d, 3d, 4th and 5th Districts:
(per Rule 313)
V.
$25 for Appellant
$15 for Appellee
Motion Practice (Rule 361)
A.

File the original and three copies in the Appellate Court (Rule 361(b)(3))

The number of copies in the Supreme Court depends on whether the Court
is in session (See Rule 361(b)(3) – one copy) or is not in session (Rule
361(c))

Submit a proposed order phrasing the relief in the alternative

Responses are due within 5 days of personal or facsimile service or within
10 days of mail service (Rule 361(b))

No replies or oral argument are allowed absent court order
Supreme Court vs. Appellate Court
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
B.
Has the Record been filed?

C.
The mechanics of filing a motion in the Supreme Court turn on whether
the Supreme Court is in session (Rule 361(b)) or not in session (Rule
361(c))
If the record has not been filed, the movant must file a Supporting Record,
pursuant to Rule 328, with the motion (Rule 361(a))
Is it an emergency?

Rule 361(g) instructs the districts to each promulgate procedures for
emergency motions. Check local rules for specific requirements for
emergency motions
Example:
1st District Rule 6 requires words “Emergency Motion” to be in title
D.
E.
Does it need to be verified or have an affidavit?

Affidavit required for motions based on facts that do not appear of record
(Rule 361(a)) or for motions for extensions of time (Rule 361(f))

Motions for extension of time can, alternatively, be filed as verified
motions by certification under Code of Civil Procedure Section 1-109

Certification language: “Under penalties as provided by law pursuant to
Section 1-109 of the Code of Civil Procedure, the undersigned certifies
that the statements set forth in this instrument are true and correct, except
as to matters therein stated to be on information and belief and as to such
matters the undersigned certifies as aforesaid that he verily believes the
same to be true.”
Is it unopposed?

F.
Ordinarily, if the motion does not indicate it is unopposed, the court will
not rule before the time for filing responses has expired (Rule 361(d))
Dispositive motions

2006 Amendment encourages Appellate Court to rule “promptly” on a
dispositive motion (Rule 361(h)(1))

See Rule 361(h)(3) for content of dispositive motion
Document #: 801075
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