The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

A Quick Look at Interlocutory Appeals By Right and Permission to The Illinois Appellate Court
By Christine Olson McTigue

In litigation, situations arise before the end of a case where a party would like to appeal a ruling.  There are several Supreme Court rules that govern appeals from both final and interlocutory orders.  While a full discussion of the rules and all possible appellate options are far beyond the scope of this article (and would fill a law school textbook), below is a quick guide to some of the rules governing appeals to the Appellate Court.

SUPREME COURT RULE 304. Illinois Supreme Court Rule 304 has two components.  Rule 304(a), the more commonly known of the two, provides for appeals from judgments as to fewer than all parties or claims, but only if the trial court makes an express written finding “that there is no just reason for delaying either enforcement or appeal or both.”[1]  The required written finding is sufficient if it refers to either the judgment’s immediate enforceability or its immediate appealability.[2] 

There are two requirements to keep in mind regarding a Rule 304(a) finding.  The first is that the order must be final, in that the order “disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.”[3]  A 304(a) finding does not transform a non-final order into one that is appealable.[4]  

The second requirement is that it is within the trial court’s discretion to enter the finding[5] (but not discretionary with the Appellate Court to accept the appeal).  Factors to be taken into account are:

(1)   the relation between the adjudicated and unadjudicated claims;

(2)   the possibility that need for review might or might not be mooted by developments in the trial court;

(3)   the possibility that the reviewing court might be obliged to consider the same issue for a second time;

(4)   the presence or absence of a counterclaim that could result in a set-off;

(5)   miscellaneous factors such a delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense; and of paramount importance, efficient judicial administration.[6]

Common situations where a Rule 304(a) finding is entered include disposition of one of multiple counts of a complaint[7] or disposition of a counterclaim.[8]  These are final orders because a claim of a party is finally disposed of.  In addition, a rule 304(a) finding is required to appeal a final order if a motion for sanctions has been filed.[9]  A finding is also required if there remains in the case a defendant who has never been served or has not appeared.[10]

Obviously, not every order entered in the course of a case is appealable under Rule 304(a), due to the fact that a Rule 304(a) finding only applies to final orders.  The following are orders are not considered to be final for purposes of appeal:  a dismissal without prejudice with leave to reinstate,[11] dismissal with leave to replead,[12]a dismissal for want of prosecution (unless the time to refile has expired),[13] and an order quashing service.[14]

Rule 304(b) allows for appeals from the following six types of orders, without the special finding required by Rule 304(a):

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

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

(3)   a judgment or order granting any of the relief prayed in a section 2-1401 petition;

(4)   a final judgment or order entered in a proceeding under section 2-1402 of the Code of Civil Procedure (supplementary proceedings);

(5)   a contempt order which imposes a monetary or other penalty; and

(6)   a custody judgment entered pursuant to the Marriage and Dissolution of Marriage Act or section 14 of the Illinois Parentage Act of 1984, or modification of custody entered pursuant to section 610 of the Marriage and Dissolution of Marriage Act or section 16 of the Illinois Parentage Act of 1984.[15]

To perfect an appeal under Rule 304, the party simply files a notice of appeal.  Under subsection (a), the notice of appeal is due 30 days after the required finding.[16]  Under subsection (b), the time in which to file the notice of appeal is provided for in Rule 303.[17]  Once a notice of appeal is filed, under either subsection, the appeal proceeds under the general timeframe for civil appeals. 

Should your order not fall within the purview of Rule 304, another option may be available.  Read on.

SUPREME COURT RULE 306. Supreme Court Rule 306 provides for interlocutory appeals by permission of the Appellate Court.  No special finding is required from the trial court, but it is within the Appellate Court’s discretion to accept these appeals.  Nine categories of orders fall within Rule 306:

(1)   an order granting a new trial;

(2)   an order allowing a denying a forum non conveniens motion, or an order allowing or denying a motion to transfer a case to another county on such grounds;

(3)   an order denying a motion to dismiss on the grounds that the defendant has done nothing to subject defendant to the jurisdiction of Illinois courts;

(4)   an order granting or denying a motion for transfer of venue based on the assertion that the defendant is not a resident of the county in which the suit was commenced, and no other legitimate basis for venue has been offered by the plaintiff;

(5)   an interlocutory order affecting the care and custody of unemancipated minors, if the appeal is not otherwise specifically provided for in the rules;

(6)   an order which remands the proceeding for a de novo hearing before an administrative agency;

(7)   an order granting a motion to disqualify a party’s attorney;

(8)   an order denying or granting class certification under section 2-802 of the Code of Civil Procedure; and

(9)   an order denying a motion to dispose under the Citizen Participation Act, 735 ILCS 110/1, et seq.[18]

The procedure for an appeal under Rule 306 is different from one under Rule 304.  An appeal under Rule 306 is not initiated by filing a notice of appeal.  Instead, the petitioner (appellant) files a petition with the appellate court.[19]  The petition is similar to a brief, and a supporting record on appeal must also be filed.  In addition, the Rule 312 docketing statement must be filed.[20]  If the petition is granted, the proceedings in the trial court are stayed.[21]

SUPREME COURT RULE 307. Rule 307 provides for interlocutory appeals as of right from seven types of orders.  These are:

(1)   granting, modifying, refusing, dissolving, or refusing to dissolve or modify 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, or other similar officer for a bank, savings and loan association, 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;

(6)   terminating parental rights or granting, denying or revoking temporary commitment in adoption proceedings commended pursuant to section 5 of the Adoption Act (750 ILCS 50/05; and

(7)   determining issues raised in proceedings to exercise the right of eminent domain under section 20-5-10 of the Eminent Domain Act, but the procedure for appeal and stay shall be as provided in that section.[22]

The scope of Rule 307(a)(1) is broader than may be imagined and is not limited to temporary restraining orders and preliminary injunctions.  (A permanent injunction is a final order, appealable under Rules 301 or 304.[23])  The court looks to the substance, not the form of the order, to determine if it is injunctive in nature.[24]  The following orders are appealable under Rule 307(a)(1):

a ruling on a motion to compel arbitration,[25]

a protective order entered on a discovery issue,[26]

an order granting or denying a stay.[27]

Ministerial or administrative orders are not appealable because they regulate only the procedural details of litigation; in addition, matters involving purely discovery are also not appealable under Rule 307(a)(1).[28]  In general, an appeal under Rule 307 cannot be used to decide the merits of the case.[29]

In most instances, an appeal brought under Rule 307 is initiated by filing a notice of appeal within 30 days of the order being appealed.[30]  The notice of appeal is designated “Notice of Interlocutory Appeal.”[31]  Briefing is expedited on a seven-day schedule, the appellant’s brief due seven days after the record on appeal is filed.[32]

Appeals from temporary restraining orders are treated somewhat differently, as provided for in Rule 307(d). 

SUPREME COURT RULE 308. If your order involves a question of law and is not covered by Rules 304, 306 or 307, it may be appealable under Supreme Court Rule 308, which provides for an appeal of a certified question of law as follows:

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 from the order may material 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 of thereafter on the court’s own motion or on motion of any party.  The Appellate Court may thereupon in its discretion allow an appeal from the order.[33]

Appeals under Rule 308 “should be available only in the exceptional case where there are compelling reasons for rendering an early determination of a critical question of law and where a determination of the issue would materially advance the litigation.”[34]

To qualify for an appeal under Rule 308, a certified question must present an issue of law reviewable de novo.[35]  Matters which are primarily discretionary in nature should not be considered.[36]  Rule 308 is not a vehicle to appeal interlocutory orders that only involve an application of law to the facts of a specific case.[37]  Under these criteria, an issue of statutory construction is appropriate for certification,[38] while an interlocutory discovery order is not.[39]

The certified question can be made at the time of the order or thereafter on the court’s motion or the motion of any party.[40]  The appeal is discretionary with the Appellate Court.[41]  There is no time limit in which to request the trial court to certify a question for review.  Once a question is certified, however, the application must be filed in the Appellate Court within 14 days.[42]  The application is not in the form of a brief, but in the form of a motion.  A supporting record on appeal and docketing statement must be filed with the application.[43]  The granting of a Rule 308 application does not automatically stay proceedings in the trial court.[44]

CONCLUSION. A party need not wait until a case is concluded in order to take an appeal from an order. The Illinois Supreme Court rules provide numerous ways for your issue to be decided by the Appellate Court, either by right or by permission.

[1] Illinois Supreme Court Rule 304(a).

[2] Application of DuPage County Collector, 152 Ill.2d 545, 550, 605 N.E.2d 567, 670 (1992).

[3] State Farm Fire & Cas. Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill.App.3d 548, 556, 914 N.E.2d 577, 586 (1st Dist. 2009).  Cases discussing whether an order is “final” for purposes of Rule 304(a) could take up another textbook.

[4] Paul H. Schwendener, Inc. v. Jupiter Electric Co., Inc., 358 Ill.App.3d 65, 73, 829 N.E.2d 818, 827 (1st Dist. 2005).

[5] State Farm Fire & Cas. Co. v. John J. Rickoff Sheet Metal Co., 394 Ill.App.3d at 556, 914 N.E.2d at 586.

[6] State Farm Fire & Cas. Co. v. John J. Rickoff Sheet Metal Co., 394 Ill.App.3d at 556, 914 N.E.2d at 586.  In 25 years of practicing appellate law, the author has never had to engage in an analysis of these factors when requesting a Rule 304(a) finding.

[7] Orr v. Illinois Farmers Ins. Co., 210 Ill.App.3d 1015, 1018, 569 N.E.2d 619, 620-21 (2d Dist. 1991).

[8] Larson v. Buschkamp, 105 Ill.App.3d 965, 966, 435 N.E.2d 221, 222 (2d Dist. 1982).

[9] Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill.2d 458, 468, 563 N.E.2d 459, 464-65 (1990).

[10] Shanklin v. Hutzler, 277 Ill.App.3d 94, 99, 660 N.E.2d 103, 106 (1st Dist. 1995).

[11] Village of Sugar Grove v. Rich, 347 Ill.App.3d 689, 693, 808 N.E.2d 525, 529 (2d Dist. 2004).

[12] Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill.App.3d at 73, 829 N.E.2d at 827.

[13] S.C. Vaughn Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill.2d 489, 501, 693 N.E.2d 338, 344 (1998).

[14] Burton v. Autumn Grain Transport, Inc., 222 Ill.App.3d 755, 756, 584 N.E.2d 377, 378 (1st Dist. 1991).

[15] Illinois Supreme Court Rule 304(b).

[16] Illinois Supreme Court Rule 304(a).

[17] Illinois Supreme Court Rule 304(b).

[18] Illinois Supreme Court Rule 306(a).

[19] The procedure for orders affecting the care and custody of minors, governed by Rule 306(b), is slightly different from petitioning under Rule 306(c), which governs all other orders specified in the rule.

[20] Illinois Supreme Court Rule 312(a).

[21]   Illinois Supreme Court Rule 306(c)(5).

[22] Illinois Supreme Court Rule 307(a)(1-7).

[23] Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 222, 730 N.E.2d 4, 12 (2000).

[24] Skolnick v. Altheimer & Gray, 191 Ill.2d at 221, 730 N.E.2d at 11.

[25] Fosler v. Midwest Care Center II, Inc., 398 Ill.App.3d 563, 566, 928 N.E.2d 1, 6 (2d Dist.2009).

[26] Skolnick v. Altheimer & Gray, 191 Ill.2d at 221-22, 730 N.E.2d at 11.

[27] Aventine Renewable Energy, Inc. v. JP Morgan Securities, Inc., 406 Ill.App.3d 757, 759-60, 940 N.E.2d 257, 259 (3d Dist. 2010); Allianz Ins. Co. v. Guident Corp., 355 Ill.App.3d 721, 729, 839 N.E.2d 113, 118 (2d Dist. 2005).

[28] Allianz Ins. Co. v. Guident Corp., 355 Ill.App.3d at 729, 839 N.E.2d at 118-19.

[29] Illinois Concrete-I.C.I., Inc. v. Storefitters, Inc., 397 Ill.App.3d 798, 800, 922 N.E.2d 542, 545 (2d Dist. 2010).

[30] Illinois Supreme Court Rule 307(a).

[31] Id.

[32] Illinois Supreme Court Rule 307(c).

[33] Illinois Supreme Court Rule 308(a).

[34] Kincaid v. Smith, 252 Ill.App.3d 618, 622, 625 N.E.2d 750, 753 (1st Dist. 1993).

[35] Santiago v. E.W. Bliss Co., 2012 IL 111792, ¶12, 973 N.E.2d 858, 861 (2012); Solon v. Midwest Medical Records Ass’n, Inc., 236 Ill.2d 433, 439, 925 N.E.2d 1113, 1117 (2010).

[36] Kincaid v. Smith, 252 Ill.App.3d at 623, 625 N.E.2d at 754.

[37] Walker v. Carnival Cruise Lines, Inc., 383 Ill.App.3d 129, 133, 889 N.E.2d 687, 693 (1st Dist. 2008).

[38] Solon v. Midwest Medical Records Ass’n, Inc., 236 Ill.2d at 439-40, 925 N.E.2d at 1117.

[39] Thomas v. Page, 361 Ill.App.3d 484, 494, 837 N.E.2d 483, 493 (2d Dist. 2005).

[40] Illinois Supreme Court Rule 308(a).

[41] Illinois Supreme Court Rule 308(a).

[42] Illinois Supreme Court Rule 308(b).

[43] Illinois Supreme Court Rules 308(c), 312(a).

[44] Illinois Supreme Court Rule 308(e).

Christine Olson McTigue is a practitioner in Wheaton who specializes in appellate law.  Bachelor of Arts received 1981, University of Minnesota.  Juris Doctor received 1984, Loyola University of Chicago.

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