Second Second District Illinois Appellate Panel Dismisses Appeal

This dispute grew from the Waddicks’ divorce. Several months after trial, in September 2005, the trial court issued a written decision that ruled on the contested matters. The court did not order a dissolution judgment to be prepared, but it did state that a joint custody order “will be entered by the Court.”

Dawn filed a motion to reconsider the September ruling. After a continuance, the court entered a judgment of dissolution in late November 2005. There was no ruling on Dawn’s motion to reconsider until March 2006, when it was denied. Dawn filed her notice of appeal later that month.

Before the briefs were filed, David moved to dismiss the appeal for lack of jurisdiction. The motion panel denied David’s motion. The appeal was reassigned for full disposition. The new panel stated it had “an independent duty to determine whether we have jurisdiction …” (The opinion does not state whether David renewed his motion to dismiss or if the panel looked at the question on its own.)

The question then became whether Dawn’s motion to reconsider tolled the time to appeal under Illinois Supreme Court Rule 303(a) (allows for tolling the time to appeal until after disposition of a timely motion directed against the judgment).

The Second District Illinois Appellate Court ruled that the September 2005 order — the one that Dawn asked to be reconsidered — was not a final and appealable order. That order, the appellate court stated, left open numerous issues that a joint parenting judgment is required to include. Rather, the final judgment had been entered in November 2005.

The appellate court did not have jurisdiction because (1) Dawn’s motion to reconsider the nonfinal order did not toll the time to appeal; (2) Dawn’s notice of appeal, filed well more than 30 days after the November judgment of dissolution, was too late to confer appellate jurisdiction.

The most distressing thing about this decision is the second panel’s willingness to revisit the motion to dismiss the appeal. From a practitioner’s point of view, the lesson is never give up on a jurisdiction motion. If another panel will review it independently, then you have nothing to lose by renewing a dismissal motion. There is nothing to say that the second panel’s decision is any better or more thorough than the first panel’s decision. It’s just a matter of how the last panel to look at the question sees it. All of which raises the question of whether it may even be malpractice not to continue pressing a jurisdiction motion until the end of the appellate process.

You can read the whole opinion, IRMO Waddick, 2-06-0363 (6/5/07), by clicking here.

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