MOTION FOR CLARIFICATION CLEARLY DOES NOTHING TO DELAY APPEAL DEADLINE

September 2, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Somebody is practicing law in Illinois without reading Trial Notebook. The unappetizing result was that an appeal filed by this uninformed attorney was dismissed.

More than a year ago, this column warned: "Filing a post-trial motion that merely asks a judge to explain the reasons for granting judgment in a bench trial doesn't delay the 30-day period for filing a notice of appeal." (May 21, 2003.)

Six months later, a lawyer repeated this mistake by filing a "motion for clarification," asking a judge to explain the reasoning behind a terse order that fully resolved a case by entering judgment on the pleadings against the plaintiff, R&G Inc.

Failing to recognize that the 30-day period for filing a notice of appeal started running from the date of the order granting judgment on the pleadings, R&G's attorney did not file the notice until after the motion for clarification was denied. Although the notice of appeal was filed one day after the motion for clarification was denied, the notice was not filed within 30 days of when judgment on the pleadings was entered.

Expressing "some sympathy" for the appellant -- and strongly endorsing the healthy practice of requiring trial judges to provide explanations for key rulings -- the Illinois Appellate Court nevertheless overruled a 1987 case and dismissed the appeal for lack of jurisdiction. R&G Inc. v. Midwest Region Foundation for Fair Contracting, 2004 WL 1616225 (4th Dist., July 12).

Here are highlights Justice Robert J. Steigmann's opinion (with various omissions not noted by the quoted text):

"Supreme Court Rule 303(a)(1), which governs appeals from final judgments in civil cases, states, in pertinent part, as follows: '(1) [T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the last pending post- judgment motion.'

"In addition, section 2-1203(a) of the Code [of Civil Procedure], which governs post-judgment motions in non-jury cases, provides as follows: 'In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing or a retrial or modification of the judgment, or to vacate the judgment, or for other relief.'

"Our Supreme Court has held that the 'other relief' referred to in section 2- 1203(a) must be similar in nature to the other forms of relief specified in that section. Marsh v. Evangelical Covenant Church, 138 Ill.2d 458, 461 (1990).

" '[T]he character of a motion should be determined from its content, and a court is not bound by the title of a document given by a party.' Savage v. Mui Pho, 312 Ill.App.3d 553, 559 (2000). Thus, a court should examine the substance of a document to determine how it should treat the document.

"R&G relies on this court's decision in Knapp v. City of Decatur, 160 Ill.App.3d 498, 503 (1987), to support its position that the motion to clarify constituted a post-judgment motion. For the reasons that follow, we overrule Knapp.

"In Knapp, this court concluded that a 'motion for findings' constituted a post-judgment motion under section 2-1203(a) of the code. In that case, the plaintiffs filed a complaint against the defendants for injuries suffered by one of the plaintiffs. The defendants filed motions to dismiss the plaintiffs' complaint.

"In May 1986, the trial court granted the motions and allowed the plaintiffs to file an amended complaint within 21 days. The plaintiffs did not do so but later requested leave to file an amended complaint. The court later granted the plaintiffs leave to file an amended complaint. The defendants filed motions to dismiss the amended complaint for failing to allege a duty.

"On Nov. 7, 1986, the trial court granted the motions to dismiss in a docket entry, which provided as follows: 'Arguments having been heard on motions to dismiss, finding plaintiff has failed to state a cause of action. Plaintiff's complaint dismissed. Cause ordered stricken.'

"The plaintiffs then filed a document entitled 'Motion for Findings,' in which they requested that the trial court indicate whether (1) the court had granted the plaintiffs' motion for leave to file an amended complaint, (2) their first amended complaint had been filed, (3) the court had dismissed the original complaint or amended complaint, and (4) the court dismissed the cause with prejudice.

"Following a hearing on the plaintiffs' motion, the court entered a docket entry, which stated, in pertinent part, as follows: 'Finding leave was granted to file amended complaint and that arguments heard were addressed to that amended complaint. Finding the cause was dismissed with prejudice.'

"On appeal, this court concluded that the plaintiffs' motion for findings, which 'requested certain specific findings not stated by the court in the Nov. 7 ruling,' qualified as a post-judgment motion under section 2-1203 of the Code.

"In so concluding, we reasoned that the motion for findings constituted a motion for 'other relief' similar to a motion to modify judgment because the motion effectively requested a change in the original judgment 'to reflect the actual action taken.'

"Upon further reflection, we conclude that the 'motion for findings' in Knapp was not directed against the trial court's Nov. 7, 1986, judgment and did not seek a modification of that judgment. Instead, it appears the plaintiffs were merely requesting that the court put in writing and make explicit certain 'findings' that were already encompassed by the Nov. 7, 1986, docket entry.

'For instance, the record in Knapp clearly indicated that (1) the trial court had already (a) dismissed the plaintiffs' initial complaint and (b) granted the plaintiffs leave to file an amended complaint; (2) the plaintiffs' amended complaint had been filed; and (3) the defendants' second motions to dismiss addressed the amended complaint.

"In addition, the language of the Nov. 7, 1986, docket entry suggested that the cause was dismissed with prejudice. Thus, no real question existed as to the actual action the court had taken. Accordingly, the plaintiffs' motion for findings did not seek 'other relief' similar to a modification of the judgment.

"In this case, R&G's motion to clarify the trial court's Sept. 25, 2003, order was not a 'motion directed against the judgment' under Rule 303(a)(1). The motion obviously did not challenge the court's judgment. Instead, the motion requested only that the court provide the legal basis or bases for its order dismissing R&G's amended complaint.

"In addition, as R&G conceded at oral argument, its motion to clarify did not explicitly request a rehearing, a retrial, or an order vacating the trial court's Sept. 25, 2003, order. Nor did the motion request 'other relief' similar in nature to those forms of relief. R&G's request that the court provide the legal basis or bases for its order dismissing the amended complaint is clearly not similar to a request that the court grant a rehearing or a retrial or that the court vacate its prior judgment.

"Further, R&G's motion to clarify does not constitute a request for modification of the trial court's Sept. 25, 2003, judgment or 'other relief' similar to a request to modify that judgment. To modify an item is to change it.

"R&G's motion did not seek a change in the court's Sept. 25, 2003, order. Instead, as noted above, the motion requested only that the court provide the legal basis or bases for its order dismissing R&G's amended complaint. Simply stated, regardless of the court's decision on R&G's motion to clarify, the court's judgment dismissing the amended complaint would remain unchanged.

"Thus, having examined the content of R&G's motion to clarify, we conclude that it (1) is not directed against the judgment, pursuant to Rule 303(a)(1), and (2) does not constitute a post-judgment motion under section 2- 1203(a) of the code. Accordingly, we must dismiss this appeal for lack of jurisdiction because R&G's Nov. 5, 2003, notice of appeal was not timely filed within 30 days of the entry of the trial court's Sept. 25, 2003, judgment.

"In support of this conclusion, we note that R&G's interpretation of Rule 303(a)(1) would effectively amend that rule by deleting an important phrase -- namely, 'directed against the judgment.'
"Rule 303(a)(1) requires a notice of appeal to be filed within 30 days of the entry of final judgment unless 'a timely post-trial motion directed against the judgment is filed.' R&G's interpretation would render any post-trial motion sufficient to comply with the requirements of Rule 303(a)(1), regardless of whether that motion was 'directed against the judgment.' However, we must accept the Supreme Court Rules as written, and we lack the authority to read out of them -- in the guise of interpretation -- important qualifying phrases.

"We express some sympathy for R&G's position. In that regard, we reaffirm what this court wrote in Sizer v. Lotus Grain & Coal Co., 70 Ill.App.3d 739, 741- 42 (1979): 'Here, the [party's] counsel was faced with a situation where the trial court disposed of the post-trial motion (and the motion for directed verdicts) with a docket entry of less than three full sentences. At that point, counsel was faced with deciding whether or not to undergo the time, effort and expense of appeal, without a scintilla of guidance as to the basis or reasons for the trial court's ruling. If counsel decided to pursue an appeal, he would then be compelled to take shots in the dark -- to speculate on the legal theories or concepts to rely upon before this court.

" 'Only a portion of the vitality of our system of jurisprudence is derived from the competence and ability of our trial courts. The rest comes from the faith and respect of those -- be they attorneys or litigants -- who are involved in our adversarial system. The law as it is applied must be relied upon, and the attorney, much less the common man, cannot do so when the reasons for a trial court's ruling are hidden from inspection by the public or the scrutiny of an appellate court. It is true that trial courts are not required to state the reasons for their rulings, more's the pity. If they were, not only would it dissipate the need for a large number of appeals, but it would also help alleviate any potential skepticism of the judiciary's actions.'

"We note that since Sizer, we have -- in a case in which we had jurisdiction -- vacated a dismissal order where the trial court gave no explanation for its ruling when presented with 10 possible grounds. Muck v. Van Bibber, 223 Ill.App.3d 830, 836 (1992). In Muck, we discussed the difficulty faced by a reviewing court when the trial court provides no rationale for its ruling. A reviewing court must expend its time (and waste limited judicial resources) when forced to consider each potential basis for a trial court's ruling. We thus once again urge trial courts to state with clarity not only what action they are taking but why they are taking it.

"Notwithstanding our sympathy for R&G's plight, we caution parties to be extremely careful in drafting post-judgment motions so as to avoid losing the ability to appeal by filing motions that (1) are not directed against the judgment under Rule 303(a)(1) and (2) do not constitute post-judgment motions under section 2-1203(a) of the code.

"This court has no choice but to dismiss appeals when we lack jurisdiction. However, as discussed above, once we possess jurisdiction, we have the authority to vacate a trial court's order when that court provides no rationale for its ruling. Indeed, had R&G timely filed an appeal from the Sept. 25, 2003, order of dismissal, thereby vesting this court with jurisdiction, we may very well have taken the same action we did in Muck -- namely, vacating the order of dismissal and remanding for an explanation of the basis or bases thereof.

"As a final matter, we recognize that this decision reasonably could be criticized for setting up a situation in which all counsel need do to avoid the jurisdictional hurdle at issue here is to add a tag line to the motion to clarify requesting a rehearing. Nonetheless, we conclude that dismissal of this appeal is required by the plain language of Rule 303(a)(1) and section 2- 1203(a) of the code."

Amending the rules to permit a post-trial motion for clarification is a sensible idea. Meanwhile, Trial Notebook wasn't kidding: Don't make the mistake of thinking that a motion for clarification stops the countdown for filing a notice of appeal.

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