II Appealability

• Library: Appeals to the Illinois Supreme and Appellate Courts (2018 Ed.)

II. APPEALABILITY

The first question facing a party who wishes to seek review of an unfavorable ruling, order or judgment of a circuit court or administrative agency is whether the order or judgment is now appealable, and if not, when and how does it become appealable or how can it be made appealable? The answer depends on the type of order or judgment and the stage of the proceedings at which it was entered.

A. Civil Cases: Final Judgments of Circuit Courts

"Every final judgment of a circuit court in a civil case is appealable as of right." Rule 301, based on Ill. Const. Art. 6, ¶ 6. Except as discussed in II.K., infra, this first appeal is taken to the appellate court in the district where the circuit court is located. The term "judgment" includes a "decree, determination, decision, order, or portion thereof." Rule 2(b)(2).

The critical distinction here is between "final" and "interlocutory" orders or judgments. When is it "final" within the meaning of this rule? In general, what controls is the effect of the order, and not the form of its language. Case authority often must be consulted. See, e.g., Civil Appeals (Illinois): State and Federal (I.I.C.L.E. 2015 ed.) chs. 3, 11-14. Ordinarily, the following criteria must be met.

(1) The judgment must terminate the trial court's adjudicatory functions in the case, as to all issues of substance and all parties. The fact that the trial court retains jurisdiction to rule on certain collateral matters does not necessarily render the judgment nonfinal, but the effect of the judgment must be to terminate, for all practical purposes, the controversy or controversies that were the subject matter of the litigation.

(2) The order must be intended to have the effect of a final judgment. For example, an order that merely dismisses the complaint ordinarily is not a final judgment, since the plaintiff could, by leave of court, file an amended complaint. If a complaint is dismissed with leave to amend, the running of the time to amend does not convert the order to a final judgment. Conversely, even though called an "order," an order dismissing the complaint may be a final judgment if it contains language indicating that the trial-court phase of the litigation is concluded. A dismissal "with prejudice" ordinarily is a final judgment. The better practice is to be sure that the order clearly states whether it is intended to be a final judgment.

(3) To be appealable as of right, at that time, the judgment must dispose of all claims by or against all parties (unless the provisions of Rule 304 apply; see II.B., infra).

Note, however, that once such a final judgment is entered, making the case ripe for appeal, the appeal may be taken not only from that final judgment but from all prior judgments, interlocutory orders and rulings not previously final and appealable. A notice of appeal is deemed to include an unspecified interlocutory order if that order was a step in the procedural progression leading to the judgment specified in the notice of appeal. CitiMortgage, Inc. v. Hoeft, 2015 IL App (1st) 150459, ¶ 8.

There may be a question as to whether the trial court's oral pronouncement or its ruling, or docket entry, is the final judgment or whether it was intended that a subsequent written order or entry was to be the judgment. See Rule 272. To avoid this problem, be sure that the record is clear as to whether the judge's ruling is merely a finding, and judgment will be formally entered later, or whether the ruling is itself to be the judgment. If the latter, be certain that it is expressly made final.

A final judgment can be altered, amended, or set aside within 30 days from its entry. 735 ILCS 5/2-1202, 5/2-1203. This does not affect its appealability; a notice of appeal can be filed immediately after entry of a final judgment. But a proper motion directed against the judgment, seeking to alter, amend or set aside the judgment, filed within the 30 days (or any extension of the 30 days allowed by the trial court by motion filed within that 30 days, if extensions are permitted by the applicable rule) tolls the running of the time within which a notice of appeal must be filed. Only one such motion is allowed; successive post-judgment motions are ineffective to toll the running of the appeal time.

Note that in civil cases, a timely motion directed against the judgment, filed after another party has filed a notice of appeal, is effective and stops the running of all appeal times. When the trial court disposes of the last pending post-judgment motion, the premature notice of appeal then becomes effective. Rule 303(a)(2).

If a timely notice of appeal is filed and served by a party, any other party, within 10 days after service on that party, or within 30 days from the entry of the judgment or order being appealed, or within 30 days of the entry of the order disposing of the last pending post-judgment motion, whichever is later, may join in the appeal, appeal separately, or cross-appeal. Rule 303(a)(3).

B. Civil Cases: Multiple Parties and Claims (Rule 304(a))

If a civil case involves more than one plaintiff and one defendant, or more than one claim for relief, then a judgment that does not have the effect of finally disposing of all claims by or against all parties is not a "final" judgment and therefore is not then appealable. Rule 304(a). In fact, the rule expressly provides that such a judgment order is subject to revision at any time after it is entered and until all claims and parties are disposed of.

However, a judgment final as to one or more (but fewer than all) parties or one or more (but fewer than all) claims can be made appealable. In its discretion, the trial court, on its own motion or the motion of any party, may make an express written finding that there is no just reason for delaying enforcement or appeal of the judgment. This finding may be made either at the time the judgment is entered or at any time thereafter. Upon the entry of such a finding, the judgment becomes immediately appealable.

The language of the finding is important. Under the previous version of Rule 304(a), the required finding was that "there is no just reason for delaying enforcement or appeal" of the...