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.