Wrong Court, Late Filing, Bad Service Deprive Appellate Court Of Jurisdiction Over TRO Appeal

Nadeem Nizamuddin was expelled from school. He asked for and received a temporary restraining order against Community Education in Excellence, the operator of the private school, staying the expulsion at least until after a preliminary injunction hearing.

Excellence appealed the restraining order. But its appeal was dismissed for failure to comply with Illinois Supreme Court Rule 307(d), which states the requirements for establishing appellate jurisdiction over an appeal of a temporary restraining order.

Here is what the Second District Illinois Appellate Court said Excellence did wrong.

• Filed its petition and its Notice of Appeal in the wrong court. Excellence filed in the circuit court, which in a typical case is correct. But appeals from TROs have an expedited schedule, so Rule 307 requires the petition and the Notice of Appeal to be filed in the appellate court.

• Mailed the petition and the Notice of Appeal to the appellate court on the filing deadline. Ordinarily that’s okay; the “mailbox rule” governs typical appeals and makes the date of filing the same as the date of mailing. But the “mailbox rule” did not apply to this appeal from a TRO, and the appellate court did not receive the documents until after the filing deadline. So the appellate court said Excellence’s documents were too late to establish appellate jurisdiction.

• Served Nadeem by regular mail. But Rule 307 says service on the opposing party has to be by personal delivery or fax. So Excellence’s proof of service, which showed service by mail, was insufficient.

• Prejudiced Nadeem’s lawyer because he had only one day to file a response to Excellence’s petition. Had he been served personally or by fax, he would have had double the time to prepare a response.

Click here for the whole opinion, Nizamuddin v. Community Education In Excellence, 2013 IL App (2d) 131230 (12/23/13).