I WANT TO APPEAL NOW! A PRIMER ON INTERLOCUTORY APPEALS

Presented and Prepared by: Craig L. Unrath [email protected] Peoria, Illinois • 309.676.0400

Heyl, Royster, Voelker & Allen PEORIA • CHICAGO • EDWARDSVILLE • ROCKFORD • SPRINGFIELD • URBANA

© 2015 Heyl, Royster, Voelker & Allen G-1 I WANT TO APPEAL NOW! A PRIMER ON INTERLOCUTORY APPEALS

I. AN INTRODUCTION TO INTERLOCUTORY APPEALS UNDER SUPREME COURT RULE 308 ...... G-3

II. FINAL JUDGMENT RULE ...... G-3

III. EXAMPLES OF NON-FINAL ORDERS ...... G-4

IV. PERMISSIVE INTERLOCUTORY APPEALS UNDER SUPREME COURT RULE 308 ...... G-5

A. Substantial Grounds for Difference of Opinion ...... G-6 B. Materially Advance the Ultimate Termination of the Case ...... G-6

V. DRAFTING THE QUESTIONS TO BE CERTIFIED ON APPEAL ...... G-7

The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

G-2 I WANT TO APPEAL NOW! A PRIMER ON INTERLOCUTORY APPEALS

I. AN INTRODUCTION TO INTERLOCUTORY APPEALS UNDER SUPREME COURT RULE 308

Appealing a trial court’s ruling prior to final judgment being entered is known as an interlocutory appeal. Some interlocutory appeals can be taken as a matter of right. Others can only be taken with the appellate court’s permission. This article will focus primarily on permissive appeals under Supreme Court Rule 308. However, an understanding of interlocutory appeals necessarily begins with an overview of the final judgment rule.

II. FINAL JUDGMENT RULE

One of the most fundamental principles of appellate litigation is that, generally, an appeal may only be brought from a final judgment, order, or agency decision. “A final judgment is one that fixes absolutely and finally the rights of the parties in the lawsuit; it 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.” Eclipse Mfg. Co. v. United States Compliance Co., 381 Ill. App. 3d 127, 132 (2d Dist. 2007). “An order is not final if jurisdiction is retained for matters of substantial controversy.” Eclipse Mfg., 381 Ill. App. 3d at 132.

Limiting appeals to final judgments prevents piecemeal litigation, thereby promoting judicial economy and the swift adjudication of a case by consolidating all issues in one court action. As the U.S. Supreme Court noted:

To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, n. 7 (1988). As a general rule, a party must raise all claims of error in a single appeal following final judgment on the merits. This serves a number of salutary purposes. First, “it emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Permitting piecemeal appeals would undermine the independence of the trial court judge. Moreover, the rule promotes the “sensible policy” of avoiding the harassment and cost of a succession of separate appeals from the various rulings which arise in litigation. Firestone, 449 U.S. at 374.

In contrast, "Interlocutory" is defined in Black's Law Dictionary as that "which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause

G-3 on the merits." Pinkerton Security & Investigation Servs. v. Illinois Dep't of Human Rights, 309 Ill. App. 3d 48, 56 (1st Dist. 1999) citing Black's Law Dictionary 815 (6th ed. 1990).

Appeals of final judgments may be taken as a matter of right under Illinois Supreme Court Rule 301 and 303. Interlocutory appeals are permissible only in certain limited situations.

III. EXAMPLES OF NON-FINAL ORDERS

As noted above, ordinarily, a judgment is not final “unless it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 204 (1999). Although the rule is easily applied in most cases, the U.S. Supreme Court noted that the determination of whether a judgment is final will sometimes present a challenge. The Court noted that no “verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). The final judgment rule has been described as “an unacceptable morass,” a “hodgepodge,” and “a kind of crazy quilt of legislative and judicial decisions.” 19 Moore’s Federal Practice, § 202.02 (Mathew Bender, 3d ed.) Nevertheless, the Supreme Court noted that application of the rule in most cases is “plain enough.” Eisen, 417 U.S. at 170 (1974).

Sometimes the best way to understand something is to explain what it is not. Here are a few orders that will always be considered non-final for purposes of appeal.

An order dismissing an action without prejudice is not final. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76 (1992). The language “without prejudice” in a dismissal order “clearly manifests the intent of the court that the order not be considered final and appealable.” Flores v. Dugan, 91 Ill. 2d 108, 114 (1982). An order dismissing a complaint with leave to amend is not final because the trial court retains jurisdiction to permit the filing of an amended complaint beyond the time allotted to amend. County of Knox v. Switzer, 151 Ill. App. 3d 873, 874 (3d Dist. 1987).

“Ordinarily, the denial of summary judgment is not appealable.” In re Estate of Funk, 221 Ill. 2d 30, 85 (2006). However, an exception arises in cases involving cross-motions for summary judgment. When a court grants one party's summary judgment motion as to all issues and denies the other party's summary judgment motion as to the same issues, the resulting order is final and appealable because it entirely disposes of the litigation. Colvin v. Hobart Bros., 156 Ill. 2d 166, 170 (1993).

A dismissal for want of prosecution is not appealable because the complaint may be re-filed within one year under Section 13-217 of the Code of Civil Procedure. 735 ILCS 5/13-217. It is only after the § 5/13-217 limitation period has expired do Illinois courts recognize a case dismissed for want of prosecution as “effectively terminated” and a “final judgment.” S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 502 (1998).

G-4 If, at the time of announcing final judgment, the judge requires the submission of a written judgment order, the ruling remains non-final until that written order is filed. Ill. Sup. Ct. Rule 272.

Other examples of non-final orders include: pre-trial evidentiary rulings, such as the exclusion of an expert witness; discovery orders, a dismissal of some, but not all claims or parties to an action.

IV. PERMISSIVE INTERLOCUTORY APPEALS UNDER SUPREME COURT RULE 308

Supreme Court Rule 308 authorizes appeals of non-final judgments under certain limited circumstances. Illinois courts have held that appeals under Rule 308 should be limited to certain "exceptional" circumstances; the rule should be strictly construed and sparingly exercised. Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 444-446 (1st Dist. 1988). The rule was not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation. Voss, 166 Ill. App. 3d at 445.

An appeal under Supreme Court Rule 308 is a three-step process.

 First, the trial court must agree to certify questions for immediate appeal.

 Second, the appealing party must file an application in the Appellate Court seeking permission to appeal.

 In the event that the Appellate Court grants permission to appeal, the appealing party must then file a brief in the Appellate Court addressing the questions certified for appeal.

Sup. Ct. R. 308(a), (b), & (d).

Assuming the trial court grants the motion to certify a question for immediate appeal, the appellant must then file an application in the Appellate Court within 14 days after entry of the trial court’s order. Sup. Ct. R. 308(b).

The application must contain:

 a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court;

 a statement of the question or questions;

 a statement of the reasons why a substantial basis exists for a difference of opinion on the question, and why an immediate appeal may materially advance the termination of the litigation.

G-5 Sup. Ct. R. 308(c).

The application must also be accompanied by an original supporting record containing the order appealed from and other parts of the trial court record necessary for determination of the application for permission to appeal.

Within 14 days after filing the application, an adverse party may file an answer and opposition. The adverse party may attach a supplementary supporting record containing additional parts of the trial court record that the adverse party wishes the appellate court to consider. No oral argument is allowed.

If the appellate court grants the application for interlocutory appeal, the appellant must file a brief in the appellate court within 35 days of the date review was allowed. The appellee’s brief will come due 35 days later, and the appellant’s reply brief will be due 14 days later. The case will usually be scheduled for oral argument in the next few months.

A. Substantial Grounds for Difference of Opinion

As noted above, a Rule 308 appeal requires a statement of the reasons why a substantial basis exists for a difference of opinion on the question, and why an immediate appeal may materially advance the termination of the litigation. Sup. Ct. R. 308(c).

There are two types of cases that satisfy the requirement of a substantial grounds for difference of opinion: cases of first impression under Illinois law, and cases where a conflict exists among the courts. Nevertheless, the requirement of a substantial ground for difference of opinion often defies precise definition. One court accepted a case for interlocutory review because of “its novelty and the intuitive appeal of defendants' arguments.” In re Estate of Kleine, 2015 IL App (2d) 150063, ¶ 14.

B. Materially Advance the Ultimate Termination of the Case

The most important criteria for a permissive appeal under Rule 308 is the determination that an immediate appeal will advance the ultimate termination of the case. The issue raised on appeal must be one which holds out the possibility that the case could come to an end or at the very least, significantly narrow the issues for trial, sparing both the parties and the courts the cost of a lengthy trial.

In determining whether the resolution of an issue holds the potential for materially advancing the litigation, courts will take into account a number of criteria. For example, the point in time in which the interlocutory appeal is sought can be extremely important. Where the appeal is sought in the early stages of the litigation, it leaves open the possibility of a substantial savings in the cost of litigation while avoiding needless expenditure of judicial resources.

G-6 Seeking an interlocutory appeal on the eve of trial, particularly where the trial is expected to last only a few days, will likely be denied. And the reason is evident: an interlocutory appeal will likely take nearly a year or more to resolve. In the event that the case is remanded for trial at the conclusion of the appeal, it is easy to envisage yet another appeal addressing alleged errors made at trial. In the interests of judicial economy, the appellate court will deny the application, forcing the parties to obtain a final judgment as to all issues.

The seminal case addressing Rule 308 appeals is Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 446 (1st Dist. 1988). In that case, the court addressed a number of factors that federal courts have utilized in determining whether an issue may materially advance the ultimate termination of the litigation. Relying on Lerner v. Atlantic Richfield Co., 690 F.2d 203 (Temp. Emer. Ct. App. 1982) the court identified four situations where Rule 308 might be appropriate: (1) where liability would require an extensive accounting procedure; (2) where a long trial might be necessary if the defenses raised were rejected; (3) cases involving third-parties essential to the litigation; and (4) cases of appropriate jurisdiction. Lerner, 690 F.2d at 211-212.

The decision in Renshaw v. General Telephone Co., 112 Ill. App. 3d 58 (5th Dist. 1983), is instructive. In that case, one of the defendants filed a third-party action, which the trial court dismissed. The trial court granted the motion to certify the question for interlocutory appeal, but the appellate court turned them away. The appellate court explained that the suit was one for personal injury damages, with few parties and with issues "no more complicated than those of an ordinary personal injury case." Renshaw, 112 Ill. App. 3d at 64. The court noted that the trial would likely be of comparatively short duration, probably no more than two to three days, and the presence of the third-party complaint would neither unduly complicate nor unduly delay the final termination of the case. Id.

Appellate courts are much more likely to accept a case for review where a trial court improperly denies a motion to dismiss. This is particularly true in cases where the trial court’s jurisdiction is called into question. In the event the trial court’s order is reversed on appeal, the litigation is terminated.

V. DRAFTING THE QUESTIONS TO BE CERTIFIED ON APPEAL

A key aspect of appeals under Rule 308 is to draft an appropriate question to be certified on appeal. The question certified by the trial court must be a question of law and not fact. Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). Where a certified question asks the court to assume the existence of certain facts, appellate courts are highly reluctant to grant review.

For example in Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460 (1998), the Illinois Supreme Court noted that:

Count I of the second-amended complaint forms the basis for the certified question, which asks us to assume the existence of certain facts. Although the

G-7 matter is framed as a question of law, we believe that any answer here would be advisory and provisional, for the ultimate disposition of count I will depend on the resolution of a host of factual predicates.

Dowd & Dowd, 181 Ill. 2d at 469. This is not to say, however, that courts will never resolve factual issues in a Rule 308 appeal. For example, in Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill. App. 3d 995 (1st Dist. 1991), the court permitted an interlocutory appeal even though the case involved a mixed question of fact and law.

Care must be taken in drafting the certified question(s) to ensure that they accurately inform the appellate court of the precise issue raised in the appeal. The questions can, and often are, given a certain “spin” reflecting the interests of the moving party. This will almost certainly draw an objection from opposing counsel who may propose a competing version of the certified question, reflecting that party’s particular view of the case. In those cases, the trial court may decide on its own version of the question to be certified for review. Review is limited to the question certified by the circuit court. Barbara's Sales, 227 Ill. 2d at 57-58. However, a court may go beyond the limits of a certified question in the interests of judicial economy. Dowd & Dowd, 181 Ill. 2d at 472 (1998).

G-8 Craig L. Unrath

- Partner

Craig is partner at Heyl Royster and is Chair of the to warn of risk of fire from accidental spill, or firm's Appellate practice group. He is also Vice Chair warn against spreading product after spill. of the Professional Regulation/Licensure practice  Tomic v. Catholic Diocese of Peoria, 442 F.3d group. He began his career with Heyl Royster in 1994 1036 (7th Cir. 2006) - Former music director after serving for two years as law clerk to Justice Carl and organist of religious diocese and church A. Lund of the Illinois Appellate Court, Fourth District. brought action against diocese alleging he was terminated in violation of the Age Craig has extensive experience in the Illinois Appellate Discrimination in Employment Act (ADEA). The Courts, Illinois Supreme Court, and the Seventh Circuit Court of Appeals held that director's position Court of Appeals. He has argued eleven cases before fell within ministerial exception to the ADEA. the Illinois Supreme Court, eight of which were the  Cookson v. Price, 239 Ill. 2d 339 (2010) - A result of successful Petitions for Leave to Appeal. medical malpractice plaintiff may be granted Craig has argued 34 cases before the Seventh Circuit leave to amend a complaint to correct defects Court of Appeals, and filed dozens of briefs in appeals resulting from a failure to comply with statute decided without oral argument. He has also argued requiring a section 2-622 affidavit of merit cases in the United States Courts of Appeals for the where the complaint does not appear to be Eighth Circuit and Federal Circuit. frivolous, even where the new report is substantially different than the original report. He served as President of the Illinois Appellate  General Casualty Ins. Co. v. Lacey, 199 Ill. 2d Lawyers Association from 2007 to 2008. He currently 281 (2002) - The validity of an exhaustion serves as Chair of the Amicus Committee for the clause was governed by the law in effect at the Illinois Association of Defense Trial Counsel (IDC). time of issuance of the policy, not settlement with the liability insurer. Significant Cases  Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006) - Denials of prisoner's requested hernia  Cripe v. Leiter, 184 Ill. 2d 185 (1998) - In a case surgery did not constitute deliberate of first impression, the Illinois Supreme Court indifference to a serious medical condition. held that Consumer Fraud and Deceptive  Roberts v. Northland Ins. Co., 185 Ill. 2d 262 Business Practices Act did not apply to claim (1999) - In a claim against a primary and excess that attorney charged excessive fees. insurer, the court held that the insured was  Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill. entitled to only one setoff for the insured's 2d 11 (2005) - The statement: "If a premium workers' compensation benefits; that the charge does not appear, that coverage is not primary insurer was entitled to take the provided" appearing on an insurance policy workers' compensation setoff first, after which declarations sheet does not address the issue any remainder could be taken by the excess of stacking and cannot reasonably be read as insurer; and that public policy precluded either contradictory to the antistacking clause in the insurer from taking a setoff for the insured's policy. The policy must be construed as a social security disability benefits. whole.  Mwesigwa v. DAP, Inc., 637 F.3d 884 - (8th Cir. Publications 2011) - Successfully defended appeal of order  "Privileges" chapter in Illinois Civil Trial granting motion for summary judgment in Evidence, Illinois Institute for Continuing Legal products liability case. Held: The Federal Education (2015) Hazardous Substances Act preempts state  "The Amicus Committee Report," Illinois cause of action that would impose a labeling Defense Counsel Quarterly (2014) requirement different from the requirements in the FHSA. FHSA did not require manufacturer

G-9 Learn more about our speakers at www.heylroyster.com  "Survey of Amicus Cases," Illinois Association of  Peoria County Bar Association Defense Trial Counsel's 2013 Survey of Law  Illinois State Bar Association (2014)  American Bar Association  "The Amicus Committee Report," Illinois Defense Counsel Quarterly (2014) Court Admissions  State Courts of Illinois Public Speaking  United States District Court, Central, Southern  “Proactive Defense Strategies: Why an Appellate and Northern Districts of Illinois Specialist?”  United States Court of Appeals, Third, Seventh Heyl Royster 29th Annual Claims Handling and Eighth Circuits Seminar (2014)  United States Court of Appeals, Federal Circuit  “What’s on the Horizon? Cases Pending in the  United States Supreme Court Illinois Supreme Court” Heyl Royster 28th Annual Claims Handling Education Seminar (2013)  Juris Doctor, University of Illinois, 1991  “What's on the Horizon? Cases Pending in the  Bachelor of Arts-Humanities, Shimer College, Illinois Supreme Court” 1978 Heyl Royster 27th Annual Claims Handling Seminar (2012)

Professional Recognition  Named to the Illinois Super Lawyers list (2008- 2015). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.  Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers  Chicago Daily Law Bulletin article on successful appeal in Cripe v. Leiter before the Illinois Supreme Court  Recognized as a Top Lawyer in Illinois as published in Crain's Chicago Business (2010- 2011)

Professional Associations  Illinois Appellate Lawyers Association (President 2007-2008)  Defense Research Institute (DRI)  Illinois Association of Defense Trial Counsel (Chairman, Amicus Committee)  Seventh Circuit Bar Association  Eighth Circuit Bar Association

G-10 Learn more about our speakers at www.heylroyster.com