Author: LegalEase Solutions
- What is the statutory authority (or case law) that decides when the 30 days to appeal a judgment dated August 22, 2013, begins regarding a 1301 motion? Preferably showing that the 30 days to appeal the August judgment starts after the motion to vacate is heard.
Relevant Court Rules
Pursuant to Illinois Supreme Court Rule 303(a)(1), a “notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion directed against that judgment or order irrespective of whether the circuit court had entered a series of final orders that were modified pursuant to post-judgment motions.” Rule 303(a)(1).
Further, Pursuant to Rule 303(a)(2) “when a timely post-judgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending post-judgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or claim is entered.” Rule 303(a)(2).
Additionally, “a party intending to challenge an order disposing of any post-judgment motion or separate claim, or a judgment amended upon such motion, must file a notice of appeal, or an amended notice of appeal within 30 days of the entry of said order or amended judgment, but where a post-judgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the post-judgment motion. No request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed under this rule.” 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 upon him or her, 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 by filing a notice of appeal, indicating which type of appeal is being taken.” Rule 303(a)(3).
Relevant Case Laws
In Baca v. Trejo, 388 Ill.App.3d 193 (2009), the Court of Appeals found that, “only a timely post-judgment motion extends a party’s time for filing a notice of appeal.” Id. at 199. Similarly, in Citibank N.A. v. Farber, 2-09-0132, 2011 WL 10088356 (Ill. App. Feb. 23, 2011), the Court of Appeals noted as in Baca that “only a timely post-judgment motion extends a party’s time for filing a notice of appeal under Supreme Court Rule 303(a)(1).” Id.
Furthermore, in Shatku v. Wal-Mart Stores, Inc., 2013 Ill.App.2d 120412 (2013), the Appellate Court explained:
“Under Illinois Supreme Court Rule 303(a) (1) (eff. June 4, 2008), only a timely motion directed against the judgment extends the time in which to file a notice of appeal. To be timely, absent a proper extension granted by the court, the motion must be filed within 30 days after the entry of the judgment, with the deadline extended to the next business day if the thirtieth day falls on a weekend or court holiday. 5 ILCS 70/1.11, 735 ILCS 5/2–1203(a).”
Id. at 641.
In Berg v. Allied Sec., Inc., 193 Ill.2d 186 (2000), the Illinois Supreme Court, held that, “a post-judgment motion for leave to amend the complaint is not a motion directed against the judgment and therefore does not extend the time for appeal.” Id. at 162. Furthermore, in Archer Daniels Midland Co. v. Barth, 103 Ill.2d 536, 470 N.E.2d 290 (1984), “the Appellate Court dismissed appeal sua sponte on ground that notice of appeal was not timely filed” and the Supreme court held “that motion to reconsider was untimely and did not extend time for filing of notice of appeal.” Id.
From the fore going rules and case laws, it is settled that a timely post-judgment motion extends a party’s time for filing a notice of appeal. As the Defendant has filed a timely post-judgment motion to vacate within 30 days of judgment, it can be concluded that the 30 days to file an appeal for judgment dated August 22, 2013 would start on the date of entry of the order in the post-judgment motion.
- Does Illinois not allow interlocutory appeals on 1301 motions?
In Illinois, Supreme Court Rules 306, 307 and 308 govern interlocutory appeals. Rule 306 deals with interlocutory appeals by permission, Rule 307 deals with interlocutory appeals as of right, and Rule 308 deals with discretionary appeals from orders involving questions of law which have been certified by the trial court.
Rule 306(a) lists 9 orders of the trial court from which a party may file a petition for leave to appeal to the Appellate Court. It is specifically stated that “if an order granting a new order is granted, all rulings of the trial court on the post trial motions are before the reviewing court without the necessity of a cross-petition.” Rule 306(a). This list does not include any order with respect to 1301 motion.
Rule 307(a) lists 7 situations in which an appeal may be taken to the Appellate Court from an interlocutory order of court. Rule 307(b) provides for Motion to Vacate an interlocutory order: “If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order. An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon.”
Relevant Case Laws
In Illinois Bone & Joint Institute v. Kime, 396 Ill.App.3d 881 (2009), the Appellate Court found that, “[t]here is no rule of appellate practice which allows a party to appeal as a matter of right on an interlocutory basis from an order granting a § 2-1301(e) motion.” Id. at 883. Additionally, in Opportunity Center of Southeastern Illinois, Inc. v. Bernardi, 145 Ill.App.3d 899 (1986), the court found that, “Under Rule 307, this court may take an appeal from an interlocutory order of the court granting an injunction. However, the Rule does not allow an interlocutory appeal on an order granting a motion. Thus, this issue is not appealable.” Id. at 768.
From the above research findings it may be concluded that in Illinois interlocutory appeal on an order granting a motion is not allowed. Hence, an interlocutory appeal on 1301 motion to vacate may not be allowed.