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The costly consequences of mishandling notice of appeal in Illinois
2/12/24
In a case of importance to all Illinois practitioners, the Illinois Supreme Court in Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corporation, 2024 IL 129277 found that the clerk’s rejection of a notice of appeal rendered the appeal untimely.
In that case, plaintiff electronically submitted its notice of appeal on April 1, 2021, the date the notice was due. The clerk rejected the document on April 6, 2021, and counsel re-submitted the notice of appeal on the same day, which was accepted. Thus, the notice of appeal was file-stamped five days too late.
At this point, the plaintiff had two options: it could have filed a motion before the circuit court in accordance with Rule 9(d)(2), which provides that “if a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the court, upon good cause shown.” Ill. S. Ct. R. 9(d)(2) (eff. Feb. 4, 2022). Or, within 30 days of the expiration of the time for filing the notice of appeal, plaintiff could have filed a motion with the appellate court under Rule 303(d), which provides that “the reviewing court may grant leave to appeal [on] motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and filing fee.” Ill. S. Ct. R. 303(d) (eff. July 1, 2017). The plaintiff did neither, opting instead to continue with the appeal using the untimely notice and, not surprisingly, the appellate court dismissed the appeal.
Before the Illinois Supreme Court, the plaintiff argued its appeal was timely since it submitted a notice of appeal electronically on April 1, 2021, and that the clerk erroneously rejected the document. The Court rejected both arguments since the documents supporting plaintiff’s assertions were not in the common law record, but instead only included in the appendix to plaintiff’s brief. Plaintiff included in its appendix the documents it had attempted to file on April 1 and the clerk’s rejection, claiming the documents proved the clerk’s rejection was erroneous. According to the plaintiff, the documents showed the clerk rejected the notice of appeal because plaintiff included the order being appealed from as an attachment to the notice of appeal and the clerk directed the plaintiff to “resubmit with all pages as one lead document.” Plaintiff argued the clerk’s rejection violated the circuit court’s rules, which required litigants to upload documents separately and expressly forbids filers from combining multiple documents into one PDF. The Court noted that if plaintiff’s premise was true, it could be a “compelling case of ‘good cause’ or ‘reasonable excuse’ to allow plaintiff’s appeal to proceed,” but as mentioned the documents were never in the common law record since the plaintiff did not file a motion in either the circuit court or the appellate court seeking leave to file the untimely notice of appeal or challenging the clerk’s rejection. Thus, the Court refused to consider the documents or any facts or inferences flowing from them.
Ultimately, the Court held that the plaintiff’s failure to utilize either of the remedies provided by the rules—Rule 9(d)(2) or Rule 303(d)—seeking recourse for a submission that had been rejected by the clerk was fatal to plaintiff’s claim that the appellate court had jurisdiction. And, since the plaintiff failed to include within the common law record documents critical to its argument, the reviewing courts correctly disregarded the documents and facts found within them. Ill. S. Ct. R. 321 (eff. Oct. 1, 2021). Consequently, since the late filing was not excused, plaintiff was left with a notice of appeal filed five days after the due date and thus the appellate court did not have jurisdiction.
For more information, please contact Michael Sanders at michael.sanders@fmglaw.com or your local FMG attorney.
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