The Minefield of Appellate Practice: Notices of Appeal

by Wilson Elser
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The Illinois Appellate Court’s recent opinion in In re Marriage of Micheli, 2014 IL App (2d) 121245 (filed July 31, 2014), illustrates the necessity of retaining appellate specialists to handle all post-trial and appellate filings, including the deceptively simple notice of appeal.

Background
In Micheli, appellant John Micheli sought review of that portion of the trial court’s dissolution of marriage judgment imposing the amount and duration of spousal maintenance he was obligated to pay his ex-wife, appellee Ellen Micheli. In her cross-appeal, Ellen sought review of that portion of the judgment that required her to return to John a diamond in her engagement ring on the ground that the diamond was his non-marital property. Ellen’s notice of cross-appeal stated that she was appealing three separate paragraphs of the judgment pertaining to maintenance, stock options and attorney fees, but none of the identified paragraphs pertained to the diamond.

Analysis
The appellate court found that it had no jurisdiction to consider Ellen’s cross-appeal vis-à-vis the diamond and accordingly dismissed it. Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal “shall” specify the judgment or part thereof sought to be reviewed. Because the filing of a notice of appeal is the jurisdictional step that initiates appellate review, it confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in it. Where a notice of appeal is filed improperly, the appellate court lacks jurisdiction over the matter and is obliged to dismiss the appeal. Applying these principles to Ellen’s notice of cross-appeal, the appellate court concluded that the notice sought reversal only of the three paragraphs identified in it and made no references to any other part of the judgment. The notice of cross-appeal was thus insufficient to vest the appellate court with jurisdiction to decide that part of Ellen’s cross-appeal pertaining to the diamond.

In reaching this conclusion, the appellate court considered – and rejected – Ellen’s three arguments for jurisdiction:

  • First, Ellen advanced the maxim that “a notice of appeal is to be liberally construed and will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal.” The appellate court acknowledged this principle, but found it inapplicable because Ellen’s notice of cross-appeal made no reference to any other portions of the judgment beyond the three specifically identified.
  • Second, Ellen argued that jurisdiction was appropriate based on the final sentence of her notice of cross-appeal, which stated that she “shall seek such other and further relief as she may be entitled to by this appeal.” The appellate court found that, “even liberally construing the notice as a whole, we do not find this general statement fairly and adequately set out the ruling complained of and the relief sought such that John was advised that Ellen wished to challenge the disposition of the diamond.” 
  • Finally, Ellen argued that a notice of appeal will confer jurisdiction over any order not specified in it if the unspecified order was a step in the procedural progression leading to the judgment or order that was specified in the notice of appeal. Again, the appellate court acknowledged that Ellen was correct as to the general principle, but found that the principle did not apply here because “the unspecified judgment must be a preliminary determination necessary to the ultimate relief sought by the appellant.” Here, the trial court’s ruling that the diamond is John’s non-marital property and the disposition awarding that property to him were not preliminary determinations necessary to the court’s judgment on the issues that Ellen specified in her notice of cross-appeal (maintenance, stock options and attorney fees), nor was it “sufficiently closely related” to the specified issues in any way.

Practice Point
This appellate opinion again demonstrates the necessity of retaining appellate specialists for post-trial and appellate work. Ellen’s attorney preserved his client’s right to cross-appeal three parts of the judgment in a notice of cross-appeal that the appellate court described as three pages long and detailed. However, Ellen’s right to review of the fourth part of the judgment – a part of the judgment that was evidently very important to her – was lost because it was not specified in the notice of cross-appeal. Micheli shows that, when it comes to appellate work, the devil is in the detail, and if any detail is missing you may find your appeal dismissed.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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