The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Appeals from Non-final Orders, A/K/A Interlocutory Appeals, in Civil Matters Prior to Final Judgment
By Justice Robert D. McLaren

This review covers Supreme Court Rules 304, 306, 307 and 308. The following is a synopsis of each rule, along with comment. At the conclusion of this article is a summary of current Illinois Supreme Court and Second District caselaw.


(a) Judgments as to fewer than ALL parties or claims-NECESSITY FOR SPECIAL FINDING.

An appeal may be taken as to one or more but fewer than all of the parties or claims ONLY if the trial court has made an express written finding that there is "no just reason for delaying enforcement or appeal or both." Such a finding may be made at the time of the entry of the judgment OR thereafter, on the courts own motion or on motion of ANY party. The entry of the required finding shall be treated as the date of entry of the "final" order for purposes of computing the time for appealing under Rule 303. In the absence of such a finding, a judgment that fails to dispose of all claims or parties is NOT ENFORCEABLE & APPEALABLE, and is subject to revision at any time prior to final judgment.

COMMENT: Although this is considered an appeal "as a matter of right" because the appellate court has no discretion to refuse the appeal, the trial court MUST enter the special finding to make the semi-final order appealable. Also, if the order does not actually dispose of a party or a claim the appellate court ought to dismiss the appeal for lack of jurisdiction.1 In Kravitskie v. Cramlett,2 the Second District appellate court enlarged the appealability of causes by broadening its interpretation as to when a party or claim has been disposed of. Specifically, when a negligence claim has been dismissed but a willful and wanton claim remains, 304(a) language is effective.

In response to the Illinois Supreme Court case of Eli v. Whittington,3 Rule 304 was amended in 1988 to toll the running of the time to appeal by filing one "post judgment" motion attacking the "semi-final" order. Ten years later, in Niccum v. Botti, Marinaccio,4 the Supreme Court removed a pitfall when it allowed anticipatory 304(a) language to be included in a final and appealable order to preclude loss of jurisdiction with the subsequent filing of a Rule 137 motion for sanctions.

In In re Application of DuPage County Collector,5 the Illinois Supreme Court explained the language required to make an order final and appealable. Although the decision is legally correct, it fails to comprehend the special nature of tax objections wherein enforceability is required if the objector is to obtain a refund of his money. The correct law was applied to an incorrect factual conclusion (i.e. the defendant did not need to enforce the order that was entered when in fact he did).

(b) Judgments and Order Appealable without a Special Finding.

The following are appealable WITHOUT a special finding required in (a) above:

(1) An order entered in the administration of an estate, guardianship or similar proceeding that finally determines a right or status of a party;

(2) An order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceeding which finally determines a right or status of a party which is not appealable under Rule 307(a);

(3) An order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure, 735 !LCS 5/2-1401;

(4) A final order entered in a proceeding under section 2-1402 of the Code of Civil Procedure, 735 ILCS 5/2-1402; and

(5) An order finding a person or entity in contempt which imposes a monetary or other penalty.

COMMENT: Examples under subparagraph (1) include admitting or refusing to admit a will to probate, appointing or removing an executor, and allowing or disallowing a claim. Subparagraph (2) differentiates between non-final interlocutory orders appealable under 307, and semi-final orders covered by this section. Examples include allowing or disallowing a claim or order for the payment of fees. Subparagraph (3) relates to relief from judgments older than 30 days. Failure to appeal from such an order precludes consideration of the merits at any other time (i.e. failure to appeal the improper vacation of a judgment CANNOT be raised after the appeal time has run).6 Subparagraph (4) re1ates to orders entered in supplementary proceedings. Subparagraph (5) relates to contempt proceedings. But, see Almgren v. Rush-Presbyterian St. Lukes Medical Center7 for discussion of jurisdiction to review contempt due to discovery violation.

FINAL COMMENT: Rule 304 is an attempt to terminate quantum parts of litigation in a reasonable way so that ripe issues can be severed and finalized. Part (a) requires a special finding by the court that the issue is ripe for enforcement or review; part (b) does not. An appellant initiates the appellate process by filing a Notice of Appeal which must be filed within 30 days after the entry of judgment.


(a) A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court:

(1) Order of the circuit court GRANTING A NEW TRAL;

(2) Order of the circuit court GRANTING OR DENYING A MOTION TO DISMISS OR MOTION TO TRANSFER TO ANOTHER COUNTY based upon forum non conveniens;

(3) Order of the circuit court DENYING A MOTION TO DISMISS A DEFENDANT that has done nothing to subject himself to the jurisdiction of the Illinois courts;

(4) Order of the circuit court GRANTING OR DENYING A TRANSFER OF VENUE based upon the assertion that the defendant is not a resident in the county in which the action is filed, and there is no other basis for venue offered by the plaintiff;

(5) Interlocutory orders affecting the care and custody of unemancipated minors, if not otherwise specifically covered elsewhere;

(6) Orders remanding the proceeding for a hearing de novo before an administrative agency; and

(7) Order granting a motion to disqualify the attorney for any party.

Paragraphs (b) through (h) of Rule 306 set forth how the petition for leave to appeal shall be prepared, the time frame, and the papers which must be prepared and submitted. Specific reference to this section as to how to perfect the appeal is necessary.

COMMENT: Regarding subparagraph (1), grants of a new trial, the petitioner must arguably set forth facts that establish an abuse of discretion on the part of the trial court.8 If the appellate court does not grant leave to appeal, that denial is not res judicata as to an appeal from the second trial.9 Although there is authority indicating that one cannot appeal the merits of the grant of a new trial on older cases, the trend seems to be that if you seek leave to appeal and are denied leave, you may later attack the grant of the new trial by arguing that the courts first judgment should be reinstated during the appeal of the second judgment. This presumes that the appellant from the judgment in the second trial was the successful party in the first trial, and desires that the first judgment rather than the second judgment be sustained. Trial courts don’t often grant new trials, and appellate courts don’t often see petitions that raise the specter of an abuse of discretion. If the issue on review is the weight of the evidence and the credibility of the witnesses, the trial court’s judgment is given greater deference than when the basis of the decision is a question of law.10 If the appeal is allowed, the trial court proceedings are stayed with a provision for bond filed by the petitioner as appropriate.11

In re Marriage of Agustsson.12 is an interesting case wherein the appeal was filed as an appeal of right under Rule 303, but was deemed a Rule 306 appeal. In Agustsson, the court considers the quality of jurisdictions between the trial and the appellate court, the effects of motions to reconsider on both court’s jurisdiction, and the treatment of an appeal improperly brought under Rule 303.

Regarding subparagraph (2), orders relating to forum non conveniens, successive orders may be appealed if there are new facts and circumstances that suggest it is not merely a rehash. Note that Rule 306 does not contain the language contained in Rule 304 allowing a motion to reconsider, as per Rule 303. The time to file is jurisdictional and cannot be extended by a motion to reconsider, and such orders are subject to modification and review until final judgment.13 The simple solution appears to be that one should file a new motion for forum non conveniens if there is any question that the 30 days has run.

Most appeals filed under this rule are based upon forum non conveniens or venue. They are more likely to be accepted than other categories because the other categories usually involve a broader exercise of discretion by the trial court. Forum selection is not forum non conveniens.14

FINAL COMMENT: This rule attempts to give the appellate court the jurisdiction to review interlocutory orders that the supreme court has decided may materially affect the prosecution or defense of a particular cause of action. An appellant initiates the appellate process by filing a Petition Seeking Leave to Appeal rather than a Notice of Appeal, within 30 days after entry of the order.


(a) Orders Appealable; Time. An Appeal may be taken from interlocutory order of court in the following cases:

(1) Granting, modifying, refusing, dissolving, or refusing to dissolve an INJUNCTION;

(2) Appointing or refusing to appoint a RECEIVER or SEQUESTRATOR;

(3) Giving or refusing to give other or further powers or property to a RECEIVER or SEQUESTRATOR already appointed;

(4) Placing or refusing to place a MORTGAGEE in possession of mortgaged premises;

(5) Appointing or refusing to appoint a receiver, liquidator, rehabilitator, or other similar officer for a BANK, SAVINGS & LOAN, CURRENCY EXCHANGE, INSURANCE COMPANY, OR OTHER FINANCIAL INSTITUTION or granting or refusing to grant CUSTODY of the institution, or REQUIRING TURNOVER of any of its assets;


(7) Determining issues raised in proceedings to exercise EMINENT DOMAIN under section 7-104 of the Code of Civil Procedure (735 ILCS 5/7-104), BUT the procedure for appeal and stay shall be as provided IN THAT SECTION (ibid.).

Except as provided in subparagraph (b) relating to ex parte orders, the appeal must be perfected by filing a NOTICE OF INTERLOCUTORY APPEAL within 30 days from the entry of the order. The record must also be filed in the same 30 day time period.

(b) Ex parte orders shall NOT be appealable until the appellant first applies to the trial court to VACATE the order. The matter will be appealable if the motion to vacate is denied, or not acted upon by the trial court in seven days. The time for filing runs from the date of denial or last date for action thereon.

(c) Inter alia, seven days for the filing of briefs.


(l) Petition; service; Record. A PETITION and NOTICE of INTERLOCUTORY Appeal shall both be filed within two days of the grant or denial of the Temporary Restraining Orders, along with a supporting record certified by the circuit clerk or by the affidavit of the attorney or party filing it (see rule for further particulars.)

(2) Legal Memoranda. Memos shall not exceed 15 pages. Respondent shall f1le a response within two days.

(3) Except by order of court, neither replies nor extensions will be allowed.

(4) Time for Decision; Oral Argument. The Appellate Court shall decide the matter within two days from the deadline for the respondent’s response. There will be NO oral argument.

(5) Variations by Order of Court. The Appellate Court may order a different schedule, or order that no memos or other materials be filed.

COMMENT: The purpose of subparagraph (a)(1) is to give immediate review in instances where equitable relief has been given via a NON-FINAL order. The case of In Re T.M.15 supports the proposition that visitation orders in juvenile court proceedings are not injunctive orders appealable under Rule 307, but may be appealable under Rule 306.16

Regarding subparagraph (a)(6), the order is appealable without further proceedings relating to adoption or custody.17 The time to appeal from the entry of an order under this rule is NOT TOLLED by a motion to reconsider, EXCEPT under subparagraph (b) when the order is ex parte.18

The purpose of paragraph (d) is to review orders relating to Temporary Restraining Orders. The time frames and briefing schedules are different to accommodate the relative effects of the relief granted or denied. The standard of review is "abuse of discretion," and relates to the order entered. Ancillary thereto is whether the trial court had jurisdiction (authority) to enter such an order. Inherent in the appellate review, the sufficiency of the complaint may be addressed to determine if there is a likelihood of success on the merits.19 In general, failure to timely appeal an order granting equitable relief will be res judicata.20 Regarding subparagraph (d)(4), the case of Stocker Hinge Mfg. Co. v. Darnel Industries21 is controlling, and the failure to appeal requires a determination that whatever occurred below was proper and becomes the "law of the case."

FINAL COMMENT: This rule was designed to allow review of actions of the trial court that are essentially equitable relief prior to final judgment, except for the termination of parental rights which is about as final as an order can get as far as a parent is concerned. Because of the nature of the appeal, you may be foreclosed from raising issues on appeal if not appealed when required. Thus, more may be lost in the long run if you fail to appeal these orders within 30 days for all orders other than temporary restraining orders, which must be filed within 2 days. The appellate process is begun with the filing of a Notice of Interlocutory Appeal.


(a) Requests. When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of LAW as to which there is SUBSTANTIAL GROUND for difference of opinion, and that an immediate appeal may MATERIALLY ADVANCE the ULTIMATE TERMINATION of the litigation, the court shall so state in writing, IDENTIFYING the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter, sua sponte or by motion of any party. The Appellate Court may, in its discretion, allow an appeal from the order.

(b) How Sought. The appeal will be sought by filing an APPLICATION for Leave to Appeal (and three copies) within 14 days from the date of the entry of the order or the prescribed statement, whichever is later.

(c) Application: Answer. The application shall contain:

[1] A statement of facts;

[2] A statement of the question itself;

[3] A statement as to why a substantial basis of difference of opinion exists;

[4] A statement as to how resolution may materially advance the termination of the litigation; and

[5] A supporting record shall be attached per rule 328 containing the order appealed from and other parts necessary to determine if the appeal shall be allowed.

Within 14 days after the due date of the application, an answer may be filed by an adverse party, with a supplementary record that the adverse party desires to have the court consider.

No Oral Argument unless otherwise ordered.

(d) If the appeal is allowed, ANY party may request that an additional record be prepared as provided in Rule 321. Alternatively, the court can order the appellant file the record within 35 days. In any event, the appellant shall file his brief within 35 days from the date of the allowance of the appeal, otherwise Rules 341 through 344 shall apply. If so ordered, an abstract pursuant to Rule 342 shall be filed.

(e) The proceedings shall not be stayed unless the trial court OR the Appellate Court shall so order.

COMMENT: Most app1ications filed hereunder fail to sufficiently state the basis for a difference of opinion and the advancement of the termination of the litigation. The question of LAW to be propounded occasionally is so contrived, convoluted or complex that it is difficult to see how there could be a difference of opinion except as between the parties. Often the applicant fails to allege how the litigation will be advanced when the question is directed to only one of several independent counts.

Recently, applicants have been successful appealing to the supreme court upon refusal by the appellate court. The supreme court has yet to take an appeal, but has ordered the appellate court to accept the appeal.22 In Seven Bridges,23 the trial court certified the question presented by the respondent rather than the applicant. The supreme court ordered that the appellate court take the question, and the appellate court recast the questions and answered the questions as recast. Justice McLaren admonished the trial court in a special concurrence that close attention should be paid to the question that is certified, lest the request to appeal be denied or worse answered as certified.

The trend of thought regarding the scope of the court’s review is advancing toward the view that once accepted, whatever is necessary to achieve termination of the litigation should be considered. The case of Haves v. Wilson24 refers to Rule 366(a)(5) as support to do whatever is correct and appropriate once the appeal is allowed. Justice Harrison, in his dissent in Faier v. Ambrose & Cushing P.C.25 suggests carte blanche. In Schrock v. Shoemaker,26 the supreme court relates the broad scope of supreme court review in Rule 308 appeals. In Billerbeck v. Caterpillar Tractor Co.,27 the appellate court made clear that it applies the same rationale to the appellate court’s review of Rule 308 appeals as does the supreme court. At a minimum, it would seem that the appellate court will consider or render a decision that reasonably covers a question of law that has not been adequately presented. The inadequate presentation usually is evident in the question(s) propounded or in the dearth of facts underlying the question(s) propounded.

FINAL COMMENT: This rule is the most ambiguous of the four rules reviewed. It is the rule that probably gives the appellate court the most discretion in allowing or refusing an appeal. Unless it will qualify as an opinion, rather than a "Rule 23" or a summary order, allowance of the appeal is doubtful. It would be strategically sound for the appellant to try to control the formulation and the actual wording of the questions to be answered by the appeal. The judge may not be fully aware of the intricacies of the case, and the opponent may try to sabotage the appeal with defective question (s) of law.28

My dissent in Sassali v. DeFauw,29 is a primer on what the proper bases of a Rule 308 appeal should be, and points out that even the appellate court sometimes will not follow the rule.


In Re Marriage of King, 208 Ill.2d 332, 802 N.E.2d 1216, 208 Ill.Dec. 695 (2003).

(A non-final order is not made final for purposes of appeal by 304(a) language)

In RE Curtis B., 203 Ill. 2d 53, 784 N.E.2d 219 (2002).

(The statutory right to appeal a permanency planning order is unconstitutional. However, an appeal from a permanency planning order may be brought on a discretionary basis under Rule 306(a))

In Re Marriage of Berto, 344 Ill. App.3d 705, 800 N.E.2d 550 (2003).

(Provides boilerplate language regarding Rule 304(a)).

City of Waukegan v. Illinois EPA, 339 Ill. App. 3d 963, 791 N.E.2d 635 (2003).

(addresses the scope of review in an appeal brought pursuant to Rule 307 – scope is limited to determining whether there was sufficient showing made to the trial court to sustain the order).

People ex rel Levenstein v. Salafsky, 338 Ill.App.3d 936, 798 N.E.2d 844 (2003).

(Reviewing court limits review to the certified question in Rule 308appeals, and review is de novo because reviewing court decides questions of law).

In Re Marriage of Ignatius, 338 Ill.App.3d 652, 788 N.E.2d 794 (2003).

(Generally; the scope of review under Rule __, included the review of any prior error bearing directly upon the question of whether the order on appeal was proper).

Ehzehbacher v: Browning Ferris, 332 Ill.App.3d 1079, 774 N.E.2d 858 (2002).

(Discusses Rule 308 limitations).

In Re Marriage of Jawad and Whalen, 326 Ill.App.3d 141, 759 N.E.2d 1002.

(Discusses Rule 307 in the context of a preliminary injunction in a domestic relations matter).

Law Offices of Jeffrey M. Leving v. Cotting, 645 Ill.App.3d 495, 801 N.E.2d 6 (2003).

(Discusses time limits and scope of Rule 306 appeals).

1 Jaffke v. Anderson, 162 Ill.App.3d 290, 113 Ill.Dec. 536, 515 N.E.2d 345 (1987).

2 Kravitskie v. Cramlett, 301 Ill.App.3d 705, 235 Ill.Dec. 384, 704 N.E.2d 384 (1998).

3 Eli v. Whittington, Ill. 2d 344 (1987).

4 Niccum v. Botti, Marinaccio, 182 Ill.2d 6, 230 Ill.Dec. 593 (1998).

5 In re Application of DuPage County Collector, 152 Ill.2d 545, 605 N.E.2d 567, 178 Ill.Dec. 773 (1992).

6 See In Re Marriage of Parker, 216 Il.App.3d 672, 575 N.E.2d 938, 159 IIl.Dec. 131 (1991); In Re Marriage of Parker 245 I1I.App.3d 870, 615 N.E.2d 361, 185 Ill.Dec. 802 (l993) (here, the failure to appeal vacatur cost a client over $500,000).

7 Almgren v. Rush-Presbyterian St. Lukes Medical Center, 162 I1I.2d 205, 642 N.B.2d 1264, 205 Ill.Dec. 147 (1994).

8 See Keen v. Davis, 108 I11.App.2d 55, 246 N.E.2d 467 (1969).

9 See Craigmiles v. Egan, 248 Ill.App.3d 911 618 N.E.2d 1242, 188 IIl.Dec. 672 (1993). But, see also In Re Marriage of Clarke 232 Ill.App.3d 342, 597 N.E.2d 240, 173 III.Dec. 532 (1992) (Failure to file a petition will be deemed a waiver of defects in the grant of a new trial); Ford v. Narup, 38 Ill.App. 2d 245, 187 N. E. 2d 10 (1962).

10 Goodman v. Motor Products Corp., 9 Ill.App.2d 57, 132 N.E.2d 356 (1956).

11 Illinois Supreme Court Rule 306(f).

12 In re Marriage of Agustsson, 223 I11.App.3d 510, 585 N.E.2d 207, 165 Ill. Dec. 811 (1992).

13 Evans v. MD Con, Inc., 275 Ill.App.3d 292, 655 N.E,2d 1016, 211 IIl.Dec. 633 (1995) (implies that the time frame to appeal is not jurisdictional despite authority to the contrary). For contrary position, see Kemner v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d 1327, 97 III.Dec. 454 (1986).

14 Ferguson v. Bill Berger Associates, Inc., 302 Ill.App.3d 61, 235 III.Dec. 257 (1999).

15 In Re T.M., et al. 302 Ill.App.3d 33, 236 IIl.Dec. 57 (1998).

16 In Re Marriage of Tetzlaff, 304 Ill.App.3d 1030, 238 III.Dec. 243 (1999) (orders granting interim attorney fees are not injunctions under Rule 307).

17 In re Estate of Griffin, 160 Ill.App.3d 670, 514 N.E.2d 31; 112 IIl.Dec. 635 (1987) (supports proposition that the parent can wait until a final order is entered in the adoption proceeding and distinguishes an adoption proceeding from a juvenile court proceeding which requires an appeal from the finding of determination). See also In re Workman, 56 Ill.App.3d 1007, 373 N.E.2d 39, 14 Ill.Dec. 908 (1978) (regarding juvenile proceeding).

18 See Trophytime, Inc. v. Graham, 73 Ill.App.3d 335, 391 N.E.2d 1074, 29 Ill.Dec. 391 (1979). See also Baird & Warner. Inc. v. Gary Wheaton Bank.

19 Chicago Health Clubs v. Picur, 124 Ill.2d 1, 528 N.B.2d 978, 124 Ill.Dec. 87 (1988).

20 Application of Cook County Collector, 22-6 Ill.App.3d 719, 593N.E.2d 538, 170 Ill.Dec. 649 (1991). See also Baird &: Warner, Inc. v. Gary Wheaton, 122 Ill.App.3d 136, 460 N.E.2d 840, 77 Ill.Dec. 536 (1984). But see Alpine Bank v. Yancy, 274 Ill.App.3d 766, 654 N.E.2d 1088, 211 IlI.Dec. 278 (1995) (providing to the contrary).

21 Stocker Hinge Mfg. Co. v. Darnel Industries, 94 Ill.2d 535, 447 N.E.2d 288 (1983).

22 In Re Consolidated Objections to Tax Levies,– Ill.App.3d – 239 Ill.Dec. 682, 714 N.E.2d 601 (1999).

23 Seven Bridges Courts Association v. Seven Bridges Development, Inc.,– Il.App.3d _ 239 Ill.Dec. 682, 714 N.E.2d 601.

24 Haves v. Wilson, 283 Ill.App.3d 1015, 670 N.E.2d 867, 219 IIl.Dec. 189 (1996).

25 Faier v. Ambrose & Cushing P.C., 154 Ill.2d 384, 590 N.E.2d 315, 182 Ill. Dec 12 (1993).

26 Schrock v. Shoemaker, 159 Ill.2d 533. 203 Ill.Dec. 787, 653 N.E.2d 275 (1994).

27 Billerbeck v. Caterpillar Tractor Co., 292 Ill.App.d 350, 226 Ill.Dec. 563, 685 N.E.2d 1018 (1997).

28 Seven Bridges,– Il.App.3d _ 239 Ill.Dec. 682, 714 N.E.2d 601 (1999).

29 Sassali v. DeFauw, 297 Ill.pp.3d 50, 231 Ill.Dec. 646, 696 N.E.2d 1217 (1998).

Justice Robert D. McLaren

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