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Requirements and the Supreme Court Changes Citation Formats Illinois Association of Defense Trial Counsel Springfield, Illinois | www.iadtc.org | 800-232-0169 IDC Quarterly | Volume 21, Number 3 (21.3.32) Appellate Practice Corner By: Brad A. Elward Heyl, Royster, Voelker & Allen, P.C., Peoria The First District Revisits Rule 304(a) Requirements and the Supreme Court Changes Citation Formats While decisions reporting on appellate issues seem to be rare, we have one for this issue. In Palmolive Tower Condominiums, LLC v. Simon, the appellate court dismissed a party’s appeal for want of a final and appealable order, specifically finding that the circuit court’s statement, “[t]his order is final and appealable,” was incomplete and, therefore, failed to confer appellate jurisdiction under Rule 304(a). Rule 304(a) says, in part: If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. … In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties. Supreme Court Rule 304(a). Also, as of June 1, 2011, the Illinois Supreme Court amended Rules 6 and 23 concerning proper citation form for all Illinois court filings. Beginning July 1, 2011, a new citation format will apply to all appellate and supreme court decisions, published or unpublished. Rather than being confined by various reporters, the new citation system is based on a unique “public-domain case designator number” assigned to each case. The new public domain citation system makes Illinois one of more than a dozen states that currently utilize this so- called neutral citation system. The complete list includes: Illinois, Louisiana, Maine, Mississippi, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming. For the most accurate and up-to-date listing, see THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 96-97, Rule 10.3.3 (19th ed. 2010). This article will discuss the Palmolive Tower Condominiums case and provide an overview of the amended Rule 6, with examples for your practice. Page 1 of 5 Rule 304(a) In Palmolive Tower Condominiums, LLC v. Simon, Nos. 1-10-0427 and 1-10-1348, 2011 WL 1886504 (1st Dist. May 16, 2011), the Illinois Appellate Court First District dismissed a portion of the defendants’ appeal on the ground that the underlying order was not final or appealable in compliance with Supreme Court Rule 304(a). The plaintiff had filed a multi-count complaint, to which the defendants had filed an answer and counterclaim. The plaintiff filed a motion to dismiss the counterclaims and further asked for judgment on the pleadings. The circuit court granted the plaintiff’s motion to dismiss in January 2010, and the defendants filed a notice of appeal from that order. The January order stated that, “[t]his is a final and appealable order there being no just reason to delay enforcement or appeal.” Palmolive Tower, 2011 WL 1886504, at *3. In April 2010, the circuit court granted the plaintiff’s motion for judgment on the pleadings relating to count I of the plaintiff’s complaint. The April order further stated that, “[t]his order is final and appealable.” The defendants filed a notice of appeal from the April order and the two appeals were consolidated. On its own motion, the appellate court reviewed its jurisdiction and found it lacking with respect to the appeal from the April 2010 order. According to the appellate court, the April order contained no reference to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal. Noting the Supreme Court decision in In re Application of Du Page County Collector, 152 Ill. 2d 545, 605 N.E.2d 567 (1992), the appellate court acknowledged that Rule 304(a) did not require that a circuit court “parrot Rule 304(a) exactly in order to invoke it.” Id. Nevertheless, the court read DuPage County Collector as requiring at least some reference to enforceability or appealability. Although it created some leeway for the language that may be used to invoke Rule 304(a), the supreme court in Du Page County Collector stopped short of indicating that Rule 304(a) does not require some reference to immediate enforcement or appealability or the justness of delaying enforcement or appealability. Palmolive Tower, 2011 WL 1886504, at *4. Based on Du Page County Collector, the Palmolive Tower court held that “a circuit court order accompanied by language indicating that it is ‘final and appealable,’ but not referencing immediate appeal, the justness of delay, or Rule 304(a), does not trigger the rule.” Palmolive Tower, 2011 WL 1886504, at *4. In reaching this conclusion, the appellate court recognized its departure from Com-Co Ins. Agency, Inc. v. Service Ins. Agency, Inc., 321 Ill. App. 3d 816, 748 N.E.2d 298 (1st Dist. 2001), where a different division of the same appellate court held that an order granting partial summary judgment on a claim for breach of a restrictive covenant was final and appealable based on the circuit court’s statement in the order that the order was, in fact, final and appealable. The Palmolive Tower court observed that the circuit court in Com-Co Insurance Agency had been “confronted with what appears to have been the same circuit court language we encounter here.” Palmolive Tower, 2011 WL 1886504, at *5. Rejecting the reasoning of Com-Co, the Palmolive Tower court said as follows: First, the reasoning [of Com-Co], which begins with a statement that a circuit court declaration of appealability is not controlling, but ends by saying that a reference to appealability is sufficient, is internally contradictory. Second, the reasoning oversimplifies, and thus misstates, the holding from Du Page County Collector, which, as explained above, held that a circuit court’s reference to appealability, without a reference to enforceability, could invoke Rule 304(a), but did not hold that the reference to appealability could invoke Rule 304(a) without any reference to immediacy or the justness of delaying the appeal. Third, the reasoning relies on what it terms a circuit court’s “implicit holding” that Rule 304(a) applied; the language of Rule 304(a), however, calls emphatically for “an express” finding. Page 2 of 5 Palmolive Tower, 2011 WL 1886504, at *5. For these reasons, the Palmolive Tower court departed from Com–Co Insurance Agency and instead held to its own interpretation of Rule 304(a) as requiring something more than a circuit court declaration that an order is “final and appealable.” According to the appellate court, because the April 2010 order stated only that it was final and appealable, it was not appealable under Rule 304(a). Id. Palmolive Tower should provide some peace of mind for those confronted with a circuit court order stating only that it is “final and appealable” and should further reiterate to counsel preparing a proposed order that any language added to an order seeking to confer appellate jurisdiction must be in full compliance with Rule 304(a). Amendments to Supreme Court Rules 6 and 23 On June 1, 2011, the Supreme Court announced that it has changed the approved citation format for the state, effective July 1, 2011. Illinois represents the most recent addition to the roughly dozen states that already use some form of the neutral citation system pioneered by Wisconsin in the mid-1990s. While Illinois decisions decided and published prior to the July 1 date will still use the traditional case reporter citation formats (i.e., “_ Ill. 2d _” and “_ Ill. App. 3d _”), citations to decisions published after July 1 must use the neutral format based on a public-domain case designator number to be assigned to each decision by the issuing court. The amended Rule gives the option of providing a parallel citation to a regional reporter. The new citation system ends reliance on official written volumes, which were first published in Illinois in 1831. Prompted by a recognition that increasingly more counsel and courts are relying on Internet access to their decisions and a recognition of the costs associated with continued use of the printed decisions, the court amended Illinois Supreme Court Rules 6 and 23 to authorize the new format for case citations. In a May 31, 2011, press release, Illinois Supreme Court Chief justice Thomas L. Kilbride said of the new system, “the changes are reflective of the way we all live and the way the practice of law is changing. So much legal research is now done online through references and sources available on the Internet and even on smartphones that it makes the publication and purchase of official printed volumes unnecessary and a waste of money and resources.”1 Kilbride explained, “The official body of Illinois court opinions will now reside on the website of the Illinois Supreme Court, readily available to lawyers, judges and law clerks for official citation and to any member of the public who wishes to read them.” The press release noted that the citation changes are “part of a movement by the [Illinois] Supreme Court under the tenure of Chief Justice Kilbride and his predecessors to integrate electronic technology with a goal of achieving greater court transparency and efficiency.” All state courts now have court web-pages.
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