First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal

By Myriam Z. Kasper

Chief Assistant Corporation Counsel, Appeals Division, City of Chicago Department of Law

In In re Estate of York, 2015 IL App (1st) 132830, the Illinois Appellate Court, First District, cautioned litigants to “adhere to appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.” Id. ¶ 1.  The court ultimately took the case on the appellant’s brief alone, dismissed the appeal for lack of jurisdiction, and remanded for further proceedings. Id. ¶¶ 48-51. 

The appeal arose out of a proceeding administering an estate. The executor of the estate of Mary York sought through a citation to recover assets to recover the balance of a loan that York had made to Rosemary Mulryan, her former law partner. In re Estate of York, 2015 IL App (1st) 132830, ¶10. Mulryan moved to dismiss the citation (id. ¶ 11), and the circuit court granted the motion “with prejudice” with respect to counts I through IV relating to the loan (id. ¶ 13). The court dismissed all other counts “without prejudice” and with leave to replead.  Id. ¶ 13. The executor filed a notice of appeal. Id. ¶ 14. Mulryan did not file a response brief, so the appellate court entered an order taking the case for consideration on the executor’s brief alone. Id. ¶ 15. After the appellate court entered that order, Mulryan moved for an extension of time and for leave to file a motion to dismiss for lack of jurisdiction, which the court took with the case. Id.

The appellate court first rejected Mulryan’s argument that the appellate court lacked jurisdiction under Illinois Supreme Court Rule 304(b)(1) (eff. Feb. 26, 2010), which permits an interlocutory appeal as of right without the special finding required for appeals under Rule 304(a), when the appeal is from “a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 18-20. The court explained that Rule 304(b)(1) applies to orders that finally resolve an ultimate right, and held that the dismissal with prejudice of counts I through IV relating to the loan finally determined the estate’s right to that money. Id. ¶¶ 21-24. Thus, that part of the dismissal order was immediately appealable under Rule 304(b)(1). Id. ¶ 25.

The appellate court then addressed Mulryan’s failure to timely file a response brief or motion for extension of time. In re Estate of York, 2015 IL App (1st) 132830, ¶ 25. Mulryan asserted that she had felt it was unnecessary to file these because the lack of jurisdiction was “obvious” (id. ¶¶ 2, 25), but after the court entered its order taking the case on the executor’s brief alone, Mulryan then moved to dismiss for lack of jurisdiction and sought leave to file a response brief (id. ¶ 25). The court held that Mulryan had caused unnecessary delay in the disposition of the case, denied her motion for extension of time, and followed its prior order to proceed on the executor’s brief alone. Id.

Next, the appellate court considered whether the notice of appeal conferred appellate jurisdiction--an issue that the parties did not raise. In re Estate of York, 2015 IL App (1st) 132830, ¶ 27. The court explained that the executor’s notice of appeal specifically stated that the executor appealed only from the dismissal of count II. Id. ¶¶ 31, 36. Because a notice of appeals confers jurisdiction to consider only the judgment or parts of the judgment specified in the notice of appeal, the appellate court had jurisdiction only over the portion of the judgment dismissing count II. Id. ¶¶ 32-37. As the court explained, the notice of appeal was “highly specific,” and sought relief only from the ruling dismissing “count II *** with prejudice, pursuant to section 2-615.” Id. ¶ 27. Yet, the executor presented no argument on appeal with respect to count II; instead, the executor’s brief argued for reversal of the dismissal of count I. Id. ¶¶ 28, 30, 39. The court held that because the notice of appeal was solely from the ruling dismissing count II, it lacked jurisdiction to review the dismissal of count I. Id. ¶ 40.

The executor’s brief also challenged the circuit court’s ruling with respect to a motion to strike Mulryan’s affidavit in support of her section 2-619 motion. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 28, 42. The appellate court concluded that it lacked jurisdiction to review the ruling on the motion to strike the affidavit as well. Id. ¶¶ 44-46. The court reiterated that the executor appealed only from the section 2-615 dismissal of count II. Id. ¶ 43. The ruling concerning the affidavit therefore could be reviewed only if it was a “step in the procedural progression leading to the dismissal of count II with prejudice.” Id. But it was not, because affidavits are considered only in connection with section 2-619 dismissals, and the circuit court did not consider the affidavit in its dismissal ruling. Id. ¶¶ 44-45. Because the executor raised no issue that the appellate court had jurisdiction to review, the court dismissed the appeal. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 46, 49. The court remanded the case because the circuit court had allowed the executor to replead the other counts. Id. ¶ 50.

Recommended Citation: Myriam Z. Kasper, First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal, The Brief, (June 19, 2015).

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