A GUIDE TO ILLINOIS CIVIL APPELLATE PROCEDURE

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A GUIDE TO ILLINOIS CIVIL APPELLATE PROCEDURE

Prepared by the Appellate Lawyers Association First Revision October 1, 1999
Second Revision April 30, 2011

Copyright © 2011, 1999

By Appellate Lawyers Association All rights reserved.

All Rights Reserved

Authorization to reprint items for inclusion in a publication for sales or to photocopy items for educational use may be obtained from the Appellate Lawyers Association by contacting Christine Teed, 1755 Park Street, #260, Naperville, Illinois 60563, (630) 416-1166.

This publication is designed to provide information in regard to the subject matter covered. It is distributed with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent, professional attorney should be sought.

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Preface

This guide to appellate procedure was first prepared by the Appellate Lawyers Association in 1989 to help civil litigants who were handling their own appeals. Such litigants are commonly called pro se litigants; pro se literally means “for oneself.” Prior to the 1999 revision, the guide was titled “A Guide to Illinois Civil Appellate Procedure for the Pro Se Litigant.” Because the Appellate Lawyers Association believes the guide has evolved into a manual that is also useful to lawyers engaged in appellate practice, the title no longer indicates the work is directed to the pro se litigant. Nevertheless, the focus remains on the pro se litigant. The user will find that many of the references to the pro se litigant intentionally remain in the text and in the forms.

The guide is not designed to teach you how to write an effective brief or make a persuasive oral argument. Its only goal is to explain some of the procedural rules you need to know to get your appeal to a decision on the merits. The guide is based on Illinois Supreme Court Rules 301 through 384 in effect on April 30, 2011. These procedural rules are applicable to all civil appeals in Illinois. Appeals in criminal cases are not dealt with in this guide. In some areas the procedural rules in criminal appeals are not the same as the rules for civil appeals. Illinois Supreme Court Rules 601 through 651 contain the rules for criminal appeals.

The Supreme Court amends its rules from time to time, so you should always consult the most recent version. The most current version can be found on the Court’s website at http://www.state.il.us/court, click on “Rules.” Also, a few procedural rules vary among the different appellate and circuit courts. The individual rules of the court with which you are dealing must be followed, and if you have any questions regarding procedures, you must follow the directions given to you by the particular court. The local rules for each appellate court district also can be found at http://www.state.il.us/court, click on “Courts,” then “Appellate,” and then “Appellate Court Local Rules.” Wherever possible, variations are indicated in the guide.

If you are handling your own appeal not by choice but because you cannot afford or cannot find an attorney, you should be aware that there are organizations which may help you. Information may be available through state and local bar associations or at the circuit or appellate court clerks’ offices. Contact information for the appellate court clerks can be found in the Appendix and in the supreme court’s website at http://www.state.il.us/court, click on “Courts,” then “Appellate.”

This guide is available, free of charge, at the Appellate Lawyers Association website, http://www.applawyers.org.

The Appellate Lawyers Association expresses its gratitude to Joanne R. Driscoll, Kevin M. Forde, Ltd., 111 West Washington Street, Chicago, Illinois 60602, with the assistance of Kass A. Plain, Supervisor, Appeals Unit, Juvenile Division, Office of the Cook County Public Guardian, 2245 West Ogden Avenue, Chicago, Illinois 60612, for the work they did in the second revision to this guide.

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TABLE OF CONTENTS

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  1. WHAT THE APPELLATE COURT DOES ………………………………………………………………….. 1 A. THE COMMON LAW RECORD……………………………………………………………………… 1 B. THE REPORT OF PROCEEDINGS ………………………………………………………………… 1 C. THE PARTIES’ BRIEFS ………………………………………………………………………………. 1
  2. WHEN TO APPEAL …………………………………………………………………………………………….. 2
    1. APPEALS FROM FINAL ORDERS ………………………………………………………………… 3
    2. JUDGMENTSASTOFEWERTHANALLPARTIESORALLCLAIMS……………………4
    3. MATTERSOTHERWISEAPPEALABLEASOFRIGHT……………………………………….4
    4. MATTERSOTHERWISEAPPEALABLEBYPERMISSION…………………………………..6

III. STARTING THE APPEAL PROCESS—APPEALS AS OF RIGHT ……………………………………. 7

  1. THE NOTICE OF APPEAL ………………………………………………………………………….. 7
  2. WHERETOFILE………………………………………………………………………………………8
  3. WHATIFYOUMISSTHE30-DAYDEADLINE?……………………………………………….9
  4. STAYOFJUDGMENTPENDINGAPPEAL…………………………………………………….10

1. 2. 3. 4. 5.

Stay of Money Judgments ……………………………………………………………… 10 Stay of Other Judgments……………………………………………………………….. 10 Extension of Time to File Bond ……………………………………………………….. 10 Stays by the Appellate Court ………………………………………………………….. 10 Automatic Stay Pending Appeal of Termination of

Parental Rights ……………………………………………………………………………. 11

Automatic Stay – Permissive Appeals ……………………………………………….. 11 PERMISSION………………………………………………………………………………… 11 A. SUPREME COURT RULE 306 APPEALS ……………………………………………………… 11 B. SUPREME COURT RULE 308 APPEALS ……………………………………………………… 12 V. THE DOCKETING STATEMENT…………………………………………………………………………… 13 VI. PREPARING AND FILING RECORD ON APPEAL …………………………………………………….. 14

6. IV. APPEALS BY

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A. TRANSCRIPTS OF COURT PROCEEDINGS………………………………………………….. 14

1. 2. 3. 4. 5.

Ordering the Transcripts………………………………………………………………… 14 Getting the Transcripts Certified……………………………………………………… 15 Correcting Mistakes ……………………………………………………………………… 16 Filing by Stipulation……………………………………………………………………… 16 Additional Time for Filing the Transcripts …………………………………………. 17

  1. WHAT TO DO IF THERE WAS NO COURT REPORTER—THE
    BYSTANDER’S REPORT OF ORAL PROCEEDINGS ……………………………………….. 17
  2. PREPARATION OF THE RECORD ON APPEAL……………………………………………… 18
    1. Ordering the Record on Appeal ……………………………………………………….. 19
    2. Payment of the Preparation Fee ………………………………………………………. 19
  3. FILINGTHERECORDONAPPEAL……………………………………………………………..19
    1. Sending the Record to the Appellate Court………………………………………… 19
    2. Obtaining the Record for Use in Preparing Your Brief………………………….. 20
    3. Certification in Lieu of Record ………………………………………………………… 20
  4. SUPPLEMENTALRECORD……………………………………………………………………….20
  5. SUPPORTING RECORD …………………………………………………………………………… 21
  6. SPECIAL RULES FOR RECORDS IN CERTAIN CASES…………………………………… 21

VII. CHILD CUSTODY APPEALS ……………………………………………………………………………… 21 A. STARTING THE APPEAL ………………………………………………………………………….. 22 B. FILINGANDSERVICE……………………………………………………………………………..23 C. DOCKETINGSTATEMENT………………………………………………………………………..23 D. MANDATORYEXPEDITEDDISPOSITION…………………………………………………….24

  1. Special Caption…………………………………………………………………………….. 24
  2. Service Upon the Circuit Court………………………………………………………… 24
  3. Status Hearing …………………………………………………………………………….. 24
  4. Record ………………………………………………………………………………………… 24
  5. Local Rules………………………………………………………………………………….. 24

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6. Due Dates for Briefs for Supreme Court Rules 301 and 304(b)(6) Appeals .. 25

7. Due Dates for Briefs for Rule 307(a)(6) Appeals ………………………………….. 25 E. ORALARGUMENT…………………………………………………………………………………..25 F. AFTERTHEAPPELLATECOURTRULES……………………………………………………..25

VIII. APPEALS FROM FINAL ADMINISTRATIVE ORDERS …………………………………………….. 26 A. PETITION FOR REVIEW ………………………………………………………………………….. 26 B. PREPARINGANDFILINGTHERECORDFORREVIEW…………………………………..27

IX. PREPARING AND FILING THE APPELLANT’S BRIEF ……………………………………………….. 28

  1. TIME FOR FILING ………………………………………………………………………………….. 28
  2. FORMATOFTHEBRIEF………………………………………………………………………….28
    1. Technical Matters…………………………………………………………………………. 28
    2. Brief Cover ………………………………………………………………………………….. 29
    3. Points and Authorities…………………………………………………………………… 29
    4. Nature of the Case ……………………………………………………………………….. 29
    5. Jurisdictional Statement ……………………………………………………………….. 29
    6. Issue(s) Presented for Review ………………………………………………………….. 29
    7. Statement of Facts ……………………………………………………………………….. 29
    8. Standard of Review ………………………………………………………………………. 30
    9. Argument……………………………………………………………………………………. 30

    10. Conclusion…………………………………………………………………………………30 11. Certificate of Compliance ………………………………………………………………. 30 12. Appendix……………………………………………………………………………………30

  3. FILINGANDSERVICEOFAPPELLANT’SBRIEF……………………………………………31
  4. REFERENCETOPARTIES………………………………………………………………………..31
  5. RESEARCHINGTHELAWFORYOURBRIEF(forproselitigants)…………………….31
    1. Deciphering Legal Citations ……………………………………………………………. 31
    2. Finding the Law …………………………………………………………………………… 32
  6. EXTENSION OF TIME FOR FILING BRIEFS ………………………………………………… 33

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X. PREPARINGANDFILINGTHEAPPELLEE’SBRIEF………………………………………………….34

  1. APPEARING AS APPELLEE ………………………………………………………………………. 34
  2. CHECKINGTHERECORDFORCOMPLETENESS…………………………………………34
  3. TIMEFORFILING…………………………………………………………………………………..34
  4. FORMATOFTHEBRIEF………………………………………………………………………….35
    1. Technical Matters…………………………………………………………………………. 35
    2. The Cover …………………………………………………………………………………… 35
    3. Points and Authorities…………………………………………………………………… 35
    4. Nature of the Case ……………………………………………………………………….. 35
    5. Jurisdictional Statement ……………………………………………………………….. 35
    6. Statement of the Issues …………………………………………………………………. 35
    7. Statement of Facts ……………………………………………………………………….. 35
    8. Standard of Review ………………………………………………………………………. 35
    9. Argument……………………………………………………………………………………. 35

    10. Conclusion…………………………………………………………………………………35 11. Certificate of Compliance ……………………………………………………………… 36

  5. FILINGANDSERVICEOFAPPELLEE’SBRIEF……………………………………………..36

XI. PREPARINGANDFILINGAPPELLANT’SREPLYBRIEF……………………………………………36

  1. TIME FOR FILING ………………………………………………………………………………….. 36
  2. FORMATOFTHEREPLYBRIEF………………………………………………………………..36
  3. FILINGANDSERVICEOFTHEREPLYBRIEF………………………………………………36

XII. ORALARGUMENT…………………………………………………………………………………………..36

  1. COURTROOM DEMEANOR………………………………………………………………………. 37
  2. THE CONTENT OF YOUR ARGUMENT……………………………………………………….. 37

XIII. AFTER THE APPELLATE COURT ISSUES AN OPINION …………………………………………. 38 A. PETITION FOR REHEARING…………………………………………………………………….. 38 B. PETITIONFORLEAVETOAPPEAL…………………………………………………………….38 1. Format of the Petition……………………………………………………………………. 38

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a. Technical Matters…………………………………………………………………….. 39 b. The Cover……………………………………………………………………………….. 39 c. Prayer for Leave to Appeal………………………………………………………….. 39 d. Statement of Date Upon Which Judgment Was Entered ………………….. 39 e. Points Relied Upon For Review……………………………………………………. 39 f. RemainderofPetition…………………………………………………………………39

  1. Filing and Service of the Petition……………………………………………………… 39
  2. Responding to the Petition……………………………………………………………… 39
  3. If the Petition is Granted ……………………………………………………………….. 40a. Notice of Election……………………………………………………………………… 40 b. Standing on Petition as Appellant’s Brief………………………………………. 40 c. If You File an Appellant’s Brief ……………………………………………………. 40 d. ReplyBrief………………………………………………………………………………40

APPENDIX
Clerks’ Offices – Illinois Supreme and Appellate Courts………………………………………………..A-1 Timelines …………………………………………………………………………………………….. A-2 to 10 Exhibits

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I. WHAT THE APPELLATE COURT DOES

The reasons for the rules of appellate procedure are easier to understand if you have some idea how the appellate court operates and what it can and cannot do for you. The appellate court’s function is to review what has already happened in the circuit court and decide, based on the issues raised, whether any legal errors occurred in those proceedings. In order to decide that, the appellate court can look only at what happened in the circuit court. It does not hear evidence by live witnesses, and it cannot consider anything that was not presented in the circuit court. In addition, it is not the appellate court’s function to search for errors. The appealing party (the party who lost in the trial court is called the appellant) must tell the court what the claimed error is, and why what happened was contrary to the law. When the party is representing himself or herself, he or she is called a pro se litigant.

Because the appellate court’s review is limited to what happened in the circuit court and the claims of error that the appellant raises and argues, almost everything considered by the appellate court is contained in three categories of written documents:

A. THE COMMON LAW RECORD. This includes all the pleadings, motions and other written documents the parties filed in the circuit court during the course of their case (for example, complaints, answers, motions to dismiss or for summary judgment). It also includes all the written orders entered by the circuit court judge.

B. THE REPORT OF PROCEEDINGS. Also referred to as the transcript of proceedings, this is the written record of oral proceedings (for example, trial testimony and oral arguments on motions presented to the circuit court) that is prepared by the court reporter. These, together with the common law record, make up the record on appeal.1

1 Sometimes the appellate court will consider exhibits of a descriptive or documentary nature,

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C. THE PARTIES’ BRIEFS. These are written pleadings filed in the appellate court by the parties to the appeal. They explain to the appellate court: (a) what the case is about; (b) what happened in the circuit court; (c) what the appellant believes was wrong with the circuit court’s decision; (d) the legal reasons why that decision is wrong, supported by appropriate citations to existing law; and (e) why the party on the other side (the appellee) believes the circuit court’s decision was correct.

Most of the rules of appellate procedure deal with getting these documents filed in the appellate court in the proper form and in a timely fashion, so they can be considered by that court.

Once everything is filed, the appellate court judges have basically everything they need to decide an appeal. The court may, but is not required to, allow the parties to present oral arguments about the case (typically 10 to 20 minutes is allowed to each side). Oral argument is rarely granted when one of the parties is pro se, that is, representing himself or herself. If oral arguments are to be heard, the parties’ attorneys are notified when to appear before a panel of three justices who not only listen to what they have to say, but usually ask questions about the case.

After reading the briefs, reviewing the record, considering applicable law, and listening to oral arguments (if the court has decided that oral argument is necessary), the three justices assigned to consider the appeal discuss the case among themselves, reach a decision, and file a written decision (an opinion or an order). All three justices must consider the case. If all are in agreement, one of them writes the decision, and the other two “concur,” that is, they show their agreement by signing their names. If one of the justices does not

such as papers and photographs, if the circuit court considered them and if they are important to the appeal. Oversized exhibits will not be included in the record except upon order of the appellate court entered on the court’s own motion or pursuant to motion of any party.

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agree, he or she will file a written “dissent” explaining the basis for the disagreement. The decision agreed upon by two or more justices is the judgment of the court.

The powers of the appellate court are listed in Supreme Court Rule 366. The rule describes the type of relief the court may grant; for example, reversing a judgment and entering judgment for the other party, or vacating an order and sending the case back to the circuit court for further proceedings. It also limits, to some extent, the issues that can be reviewed. For example, it provides that where there has been a jury trial, the party appealing cannot raise on appeal any claim of error that was not raised in a post-judgment motion before the circuit court.

Filing the record and your briefs on time and in a form the justices will consider is the most important part of your appeal. The Supreme Court Rules tell you when and how to do that, beginning with the filing of your notice of appeal through the filing of your briefs. Those Rules are discussed in this guide.

The Role of the Circuit and Appellate Court Clerks

This is an appropriate place to explain the different roles played by the offices of the circuit and appellate court clerks in the appeal. The office of the circuit court clerk accepts and files your notice of appeal and assembles the record to be transmitted to the appellate court. The office of the appellate court clerk accepts and files the record and the briefs. The appellate court clerk also makes sure that everything is filed in a timely fashion, keeps track of the many cases pending on appeal, records rulings on motions issued in those cases, and provides notice to the parties of the date for oral argument and the date on which a decision will be issued in the case.

You will find the employees of the clerks’ offices most helpful in providing information within the areas of their duties. For example, you can ask an employee of the office of the clerk of the circuit court

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when the fee for preparing the record must be paid and how you will receive notice when the record is ready. Similarly, employees of the offices of the appellate court clerks will answer any questions you might have regarding how many copies of a motion must be filed, whether the justices have ruled on a pending motion, and whether a date has been set for oral argument.

Please bear in mind, though, that while many of the clerks are lawyers, most of the employees that you will deal with in their offices are not. They are all prohibited from giving legal advice. They can tell you what their particular technical procedure is, but they cannot fill out forms for you, prepare notices of appeal for you, draft motions for you, or advise you in any way regarding your appeal.

II. WHEN TO APPEAL

The “when” of an appeal is governed by Supreme Court Rules 301 through 308. The most basic rule, and the one most likely to affect pro se litigants, is that one can appeal (a) from final judgments that end the case (Supreme Court Rule 301); or (b) in cases involving multiple parties or multiple claims, when the circuit court judge enters an order that ends the litigation as to one or more (but fewer than all) parties or claims and expressly finds that the ruling can be either appealed or enforced (or both) immediately (Supreme Court Rule 304(a)). Other types of judgments or orders from which appeals can be taken as of right are set forth in Supreme Court Rules 304(b) and 307. Certain orders can be taken by permission pursuant to Supreme Court Rules 306 and 308. Each of these types of appeal is discussed in greater detail below.

It is very important to know when to file your notice of appeal because the failure to file within the time allowed almost invariably leads to dismissal of your appeal. This is not a matter for the appellate court’s discretion. If your appeal is not filed on time, the appellate court cannot consider it because it has no jurisdiction to do so.

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A. APPEALS FROM FINAL ORDERS

Supreme Court Rule 301 provides a right to appeal from all final judgments of the circuit court in civil cases. A “final judgment” is one that completely disposes of the entire case, for example an order dismissing the whole complaint “with prejudice,” or an order granting summary judgment as to all defendants, or an order entering judgment on a jury verdict (or on the trial judge’s findings in cases tried without a jury). A judgment is final when there is nothing more for the circuit court to do on the case. Your notice of appeal must be filed within 30 days from the date that final judgment is entered. Supreme Court Rule 303(a)(1). If the judge rules orally, but requires that a written order reflecting his or her ruling be prepared and filed, then the 30-day period for filing the appeal runs from the date the written order is entered by the court.

In counting the 30 days, you do not count the date the judgment is entered. For example, if the circuit court grants summary judgment on May 9 (the date on the written order), May 10 is day 1; June 8 is day 30. Saturdays, Sundays, and holidays must be counted. You must file your notice of appeal on or before June 8. You can file your notice of appeal before June 8, but not later, unless the 30th day falls on a Saturday, Sunday or court holiday (e.g., Thanksgiving Day, Christmas Day, July 4th). In that case, your notice of appeal must be filed on the very next day the court is open for business. For example, if June 8 falls on a Sunday, then your notice of appeal would be considered timely if it is filed on Monday, June 9.

The circuit court cannot extend the time to appeal in any circumstance. However, the filing of a post-judgment motion within 30 days of judgment (for example, a motion to reconsider or a motion for a new trial) will toll (that is, delay) the time to appeal. When a timely post-judgment motion is filed, the time for appeal does not begin to run until the circuit court rules on that motion. Supreme Court Rule 303(a)(2). When the circuit court’s judgment is the

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result of a jury verdict, you must file a post- judgment motion in the circuit court to preserve any error for review by the appellate court. With other types of judgments, a post-judgment motion is not usually necessary. After the circuit court rules on the post-judgment motion, your appeal must be filed within 30 days after the ruling and the time is calculated the same as described above. Be careful, though. You cannot put off the time for appeal by filing one motion after another in the circuit court once a final order has been entered. When the circuit court has entered its judgment, you are permitted one, and only one, post-judgment motion asking the court to consider its ruling or overturn the jury’s verdict. Once that is ruled on, you must appeal within 30 days or the case is over.

Some pro se litigants wonder why they have to wait until the end and cannot appeal every adverse ruling of the circuit court at the time it is made. There are two reasons for that rule.

1. Suppose John Doe is injured using a product that he bought at X Hardware Store. He sues the store and the manufacturer of the product, Acme Manufacturing Company, making claims of both negligence and strict product liability. The circuit court grants summary judgment for X Hardware on his strict product liability claims. Doe wants to appeal, but he cannot because the judgment is not “final.” He still has to go through a trial on his two claims against Acme and the one remaining claim against X Hardware. Suppose further that the case is tried, and the jury returns a verdict in Doe’s favor against both Acme and X Hardware and awards him all the damages he asked for. It would not make any sense for Doe to appeal the summary judgment in favor of X Hardware on that one claim, because he has gotten everything he wanted. So reason number one is that, in the long run, the order that seems so important now may not make any difference once the case is over.

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2. You should also keep in mind that many orders are entered during the course of an action in the circuit court—orders about discovery, orders striking or dismissing various counts of a complaint, orders in favor of some but not all defendants. An appeal from just one order can take as long as one year, depending on the backlog in the appellate court and how timely the parties file their briefs. Permitting litigants to appeal from every single order entered in the litigation as soon as it is entered would prolong a case and create an impossible backlog in the courts. Reason number two, then, is that usually it just is not efficient to permit several appeals in a case when any and all claimed errors can be considered at one time in a single appeal.

There are, however, times when the circuit court will decide that there is no good reason to delay appealing from an order, even though it does not completely dispose of all the litigation. Those appeals are considered in Part B.

B. JUDGMENTS AS TO FEWER THAN ALL PARTIES OR ALL CLAIMS

Sometimes where there are multiple parties and/or multiple claims for relief, the circuit court may decide when an order disposing of one party or one claim puts an end to that portion of the case so that there is no good reason to delay the time to appeal the ruling. Those appeals are governed by Supreme Court Rule 304(a). To use the hardware store example again, suppose the circuit court grants summary judgment for X Hardware on both the negligence claim and the strict product liability claim. The case is still pending against Acme, so the order granting summary judgment for X Hardware is not final. Ordinarily, Doe could not appeal even though the litigation is over with regard to X Hardware. The same would be true of an order that granted summary judgment for both X Hardware and Acme on Doe’s strict product liability claim. His negligence claims would still be pending, so

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the order is not final even though there is nothing more to be done with Doe’s strict product liability claim.

In order to make such an order immediately appealable, the circuit court would enter a written finding that there is “no just reason for delaying either enforcement or appeal” of its ruling. Supreme Court Rule 304(a).

That finding could be made in the same order that grants summary judgment or dismisses a count of the complaint “with prejudice” or it could be entered later in a separate order. If you have an order entered against you that contains the finding that there is no just reason to delay enforcement or appeal, the time for filing a notice of appeal begins to run immediately. As with final orders disposing of the case, you may, within 30 days of such an order, file a motion in the circuit court asking the judge to reconsider that ruling, although you are not required to do so. If you do not file a motion to reconsider, then you must file your notice of appeal within 30 days. If you do not file a notice of appeal within 30 days from the date when such an order is entered, you lose your right to appeal that ruling at any later time. If you do file a motion to reconsider and it is denied, then you must file your notice of appeal within 30 days after the date on which the order denying your motion to reconsider was entered.

Just as with the “final” orders discussed in Part A, for purposes of calculating the 30 days for filing your notice of appeal, you would not count the day the order is entered. If the order is dated May 9, then May10isday1andJune8isday30. The same rule also applies when the 30th day falls on a Saturday, Sunday, or court holiday—your notice of appeal must be filed on the very next day the court is open for business, if you did not file it earlier.

C. MATTERS OTHERWISE APPEALABLE AS OF RIGHT

There are some orders that are not “final” because they do not dispose of the

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entire litigation. Nevertheless, they are orders the Supreme Court has decided involve special circumstances and must be immediately appealed in order to prevent undue hardship to the litigants. These types of special appeals are governed by Supreme Court Rule 304(b) and Supreme Court Rule 307.

Supreme Court Rule 304(b)

Supreme Court Rule 304(b) allows for immediate appeal of the following judgments or orders:

1. “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.” This would include an order finding someone to be incompetent and appointing a guardian, or an order approving a final accounting in an estate, or adjudicating who are the heirs.

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).” A pro se litigant would rarely be involved in this kind of proceeding.

3. “A judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure.” A section 2- 1401 petition asks for relief from a final judgment that was entered more than 30 days before the filing of the petition. Examples include cases where a default judgment was entered more than 30 days earlier or where there is newly discovered evidence that could not have been found before the final judgment was entered or within 30 days thereafter.

4. “A final judgment or order entered in a proceeding under section 2-1402 of the Code of Civil Procedure.” An example of such an order would be

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one requiring a party to turn over money or other assets to satisfy a prior judgment.

5. “An order finding a person or entity in contempt of court which imposes a monetary or other penalty.”

6. “A custody judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (730 ILCS 45/14) or a modification of custody entered pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS § 5/610) or section 16 of the Illinois Parentage Act of 1984 (750 ILCS 45/16).”

Just like the appeals from final judgments under Supreme Court Rule 301, your notice of appeal from one of these orders would be due within 30 days after the order is entered or, if a timely post- judgment motion is filed, within 30 days of the order disposing of the motion.

In child custody appeals brought under Supreme Court Rule 304(b)(6), there are special rules expediting the appeal process. They are discussed at Section VII, Part D.

Supreme Court Rule 307

Supreme Court Rule 307(a) allows for immediate appeal of certain other orders before final judgment, including, but not limited to:

  1. An order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;
  2. An order appointing or refusing to appoint a receiver or sequestrator;
  3. An order giving or refusing to give other or further powers or property to a receiver or sequestrator already appointed;

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  1. An order placing or refusing to place a mortgagee in possession of mortgaged premises;
  2. An order appointing or refusing to appoint a receiver, liquidator, rehabilitator or other similar officer;
  3. An order terminating parental rights or granting, denying or revoking temporary commitment in adoption proceedings commenced pursuant to section 5 of the Adoption Act (750 ILCS 50/5);
  4. An order determining issues in eminent domain proceedings under section 20-5-10 of the Eminent Domain Act (735 ILCS 30/20-5-10).

The notice of appeal from one of these orders must be captioned “Notice of Interlocutory Appeal” and, other than its caption, should conform to the notice of appeal filed in other cases. See Section III, Part A. It must be filed with the circuit court within 30 days from the entry of the interlocutory order. A motion for reconsideration does not toll the running of the 30-day deadline. If the order being appealed was entered ex parte (only one party being present), a motion to vacate must be filed in the circuit court before appealing. Supreme Court Rule 307(a).

Like child custody appeals brought under Supreme Court Rule 304(b)(6), appeals brought under Supreme Court Rule 307(a)(6) are subject to special rules expediting the appeal process. They are discussed at Section VII, Part D.

Supreme Court Rule 307(d) also allows for immediate appeal of temporary restraining orders. The notice of appeal must be captioned “Notice of Interlocutory Appeal” and filed with the circuit court within two days of entry or denial of the order from which review is sought. During this same two-day period, a petition (a supporting memorandum is optional) and

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supporting record must be filed in the appellate court. The format for such a petition is similar to a petition filed pursuant to Supreme Court Rule 306 explained in Section IV, Part A.2 It should set forth the relief requested and the grounds for that relief. Supporting Records are discussed in Section VI, Part F.

D. MATTERS OTHERWISE APPEALABLE BY PERMISSION

There are other orders that are not “final” but may be appealed by permission of the appellate court. You are not obligated to immediately appeal from these orders after they are entered and can wait until the entire case is over.

Supreme Court Rule 306

Under Supreme Court Rule 306, a party may petition for leave to appeal to the appellate court from the following orders of the circuit court:

1. An order granting a new trial;

2. An order allowing or denying a motion to dismiss on grounds of forum non conveniens, or from an order of the circuit court allowing or denying a motion to transfer a case to another county within the State on such grounds;

3. An order denying a motion to dismiss on the grounds that the defendant has done nothing that could subject defendant to the jurisdiction of the Illinois courts;

4. An order granting or denying a motion for a transfer of venue;

5. Interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not

2 Unlike petitions discussed in Section IV, a Rule 307(d) petition would be captioned “Petition in Support of Supreme Court Rule 307(d) Appeal” and would ask the court to reverse the order entered by the circuit court. Supreme Court Rule 307(d).

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specifically provided for elsewhere in the Supreme Court Rules;3

6. An order that remands the proceeding for a hearing de novo before an administrative agency;

7. An order granting a motion to disqualify the attorney for a party;

8. An order denying or granting certification of a class action under section 2-802 of the Code of Civil Procedure (735 ILCS 5/2-802); or

9. An order denying a motion to dispose under the Citizen Participation Act (735 ILCS 110/1 et seq.).

Appeals brought pursuant to Supreme Court Rule 306 require the filing of a petition, rather than a notice of appeal, within 30 days of entry of the order. Supreme Court Rule 306(c)(1). The filing of a motion to reconsider an interlocutory order does not stay the time period for filing a petition for leave to appeal. These appeals and filing requirements are further discussed in Section IV, Part A. A petition for leave to appeal from orders affecting the care and custody of unemancipated minors must be brought within 14 days of entry of the order. Supreme Court Rule 306(b)(1); see Section VII, Part A.

Supreme Court Rule 308

Supreme Court Rule 308 provides for another type of permissive appeal from an interlocutory order – the certified question. A party wishing to take an appeal under this rule must obtain permission from the circuit court and the appellate court. The circuit court must first issue an order setting forth the question and making the following requisite findings: that a question of law exists as to which there is substantial ground for difference of opinion and that an immediate appeal may

3 Some examples of interlocutory orders affecting the care and custody of unemancipated minors include permanency planning orders, visitation orders and temporary custody orders.

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materially advance the ultimate termination of the litigation. The requisite findings can be made at the time of entry of the order or at any time on the court’s own motion or on motion of any party. Supreme Court Rule 308(a).

If the circuit court issues an order making the requisite findings, the party must then apply to the appellate court for leave to appeal, asking the court to make the same requisite findings. Supreme Court Rule 308 appeals and their filing requirements are further discussed in Section IV, Part B.

III. STARTING THE APPEAL PROCESS – APPEALS AS OF RIGHT

You now know what orders you can appeal. This section will consider the proper form for a notice of appeal or other document initiating your appeal for appeals brought pursuant to Supreme Court Rules 301, 304, and 307 and where to file it.

A. THE NOTICE OF APPEAL

If you are appealing from a final judgment or order pursuant to Supreme Court Rule 301 or 304, you must give the following information in your notice of appeal: (a) the court you are appealing to (e.g., Appellate Court of Illinois for the Second Judicial District); (b) the court you are appealing from (e.g., the Circuit Court of the 19th Judicial Circuit, Lake County); (c) the name and circuit court number assigned to your case; (d) the designation of the parties, that is, who is filing the appeal (the appellant) and who will be responding to the appeal (the appellee); (e) what orders of the circuit court you are appealing from and the date they were entered; (f) what you want the appellate court to do; and (g) your address and a telephone number where you can be reached during the day.

A notice of appeal for an appeal brought under Supreme Court Rule 307 would

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contain the same information but would be captioned “Notice of Interlocutory Appeal.”4

Again, using the hardware store example, suppose John Doe was hurt using a product that was manufactured by Acme Manufacturing Company and sold by X Hardware Store. He filed suit against both on April 17, 2008, claiming both negligence and strict product liability. The circuit court entered an order dismissing his strict liability claim against X Hardware on September 10, 2009, but did not add the finding of “no just reason for delaying enforcement or appeal,” so John Doe could not appeal that ruling immediately. On May 9, 2010, the circuit court grants summary judgment in favor of both Acme and X Hardware on all remaining counts of the complaint, and the case is then finished in the circuit court. John Doe wants to appeal from both rulings and wants the appellate court to (a) reverse the order dismissing his strict liability claim against X Hardware, (b) reverse the order granting summary judgment, and (c) send the case back to the circuit court for a trial on the merits of all of his claims. The suit was filed in Lake County, so his appeal goes to the Appellate Court for the Second District. (A list of the appellate districts and the counties they serve appears on the Illinois Supreme Court website at http://www.state.il.us/court/circuitcourt/circuit map/map1.asp.) His notice of appeal would look like Exhibit 1 found in the Appendix.

Remember to identify every order you want to appeal from, and you must tell the appellate court exactly what you want it to do about each of those orders. You should also be careful to list in the caption of the notice of appeal all the parties against whom you seek relief. (Note to worker’s compensation appellants: The caption of your notice of appeal should be modified to

4 An appeal from the grant or denial of a temporary restraining order requires the filing of a “Notice of Interlocutory Appeal” and a petition. See Section II, Part C. They are due within two days of entry or denial of the order. Supreme Court Rule 307(d).

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“Appeal to the Appellate Court of Illinois, Second District – Industrial Commission Division”).

It is important to note that the caption of the case does not change even where the defendant is the appellant or where the first-named plaintiff or defendant is not a party to the appeal. For example, using the hardware store example, if John Doe won his case and the defendants appeal, the caption of the case would still be Doe v. X Hardware Store and Acme Manufacturing Company. Doe would be identified as “Plaintiff-Appellee” and the defendants would be identified as “Defendants- Appellants.”

B. WHERE TO FILE

The notice of appeal (or notice of interlocutory appeal) is filed with the clerk of the circuit court where your case was heard. You need to take at least the original and 1 copy to the clerk for filing. You should also take at least 1 extra copy so that you can have a copy stamped with the filing date to keep for your own records. (You should do that with everything you file; pleadings do not often get lost, but when they do, it is much easier to reconstruct the court file if you have kept copies with an original stamp from the court.) In the Circuit Court of Cook County, it is preferable to file the notice of appeal in the Civil Appeals Division located in Room 801 of the Daley Center.

You can also file the notice of appeal by mailing the original and 1 copy to the clerk of the circuit court or delivering the original and 1 copy to a third-party commercial carrier, such as FedEx or UPS, for delivery to the clerk provided delivery is to occur within 3 business days. A notice of appeal is considered timely filed if it is actually mailed or delivered to the third-party commercial carrier on the 30th day after the date of the final order appealed from, even if it is not received and file-stamped by the circuit court clerk until after the 30 days has expired. Supreme Court Rule 373.

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If your court filings are done by mail or by a third-party commercial carrier and you want a file-stamped copy for your records, be sure to include (a) an extra copy (in addition to the original and 1 copy that the clerk must have to process your appeal); (b) a self-addressed, stamped return envelope; and (c) a note to the clerk asking him or her to return a file-stamped copy to you in the enclosed envelope.

Supreme Court Rule 303(c) requires the appellant to file in the appellate court a copy of the notice of appeal (or notice of interlocutory appeal) that was filed in the circuit court and to serve a copy of the notice of filing and notice of appeal on the other parties generally within 7 days of filing the notice of appeal in the circuit court.5 It is better practice to prepare all the documents at the same time and to file and serve them on the same day. A party filing a notice of appeal in a child custody case must also serve copies of the notice of appeal on the trial judge who entered the judgment or order appealed from and the office of the chief judge of the circuit in which the judgment or order on appeal was entered. Supreme Court Rule 311(a)(2). See Section VII, Part D. Service is proved by signing and attaching a “proof of service” or “certificate of service” to the notice of filing. The “certificate of service” is a sworn statement that the appropriate parties have been served. The notice of filing and certificate of service in John Doe’s case would look like Exhibit 2 in the Appendix.

C. WHAT IF YOU MISS THE 30-DAY DEADLINE?

There is rarely a good excuse for it, but it does sometimes happen that, through no

5 The date a document is considered served on another party depends on how service is accomplished. If the document is personally delivered, it is considered served on that day. If the document is mailed, it is considered served 4 days after mailing. If it is delivered to a third- party commercial carrier, such as FedEx or UPS, with instructions to deliver within 3 business days, it is considered served on the third business day after delivery to the carrier. Supreme Court Rule 12.

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fault of his or her own, a litigant does not get an appeal filed within the required 30- day period. If that happens, you have a 30- day grace period in which to file a motion in the appellate court explaining the reason why you missed the original deadline and asking permission to file a late notice of appeal. Supreme Court Rule 303(d). If the appellate court agrees, it may grant you leave to file your appeal. In order to get that relief, you have to file all of the following with the appellate court within 30 days after the date on which your notice of appeal should have been filed:

1. A motion asking for leave to file a notice of appeal. Your motion should fully explain why you were unable to appeal within the 30 days allowed. All facts stated must be supported with an affidavit (a sworn statement notarized by a notary public). If any written documents are important to your explanation, attach those too. Any motion you file in the appellate court must be accompanied by a notice of filing. You must file the original and 3 copies of the motion with the clerk of the appellate court. A sample motion for leave to file a late notice of appeal, affidavit, and notice of filing and certificate of service are provided in the Appendix to this guide at Exhibits 3, 4, and 5.

2. The original and at least 1 copy of the notice of appeal you want to file.

3. The $25 filing fee required of all appellants. Supreme Court Rule 313.

4. A draft order, indicating that the motion is “granted/denied.” An example of this type of order appears at Exhibit 6 in the Appendix.

Whenever you file a motion in the appellate court, you must provide the clerk with the original and 3 copies. Supreme Court Rule 361(b)(3). The original is placed in a permanent file, and the copies are distributed to the 3 justices assigned to your case for their consideration. As with everything you file, it is a good idea to keep

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a file-stamped copy for your records. If you file the motion by mail or by third-party commercial carrier and want a file-stamped copy returned to you, be sure to include a self-addressed, stamped envelope and a note asking the clerk to return a file- stamped copy to you.

Supreme Court Rule 361(b)(3) requires that a proposed order phrased in the alternative (e.g., “allowed” or “denied”) be submitted with each motion. Forms are available in the office of the appellate court clerk, and a sample order appears as Exhibit 6 in the Appendix. Only the original of the proposed order needs to be submitted to the court, but you must send a copy to the opposing parties along with your motion so they may submit any objections to the motion or the wording of the order.

If the appellate court finds your excuse for not filing on time to be sufficient, it will enter the order requested and the appeal can proceed in the manner described in the remaining sections of this guide. The court does not hear oral arguments on motions. Supreme Court Rule 361(b)(2). A copy of the signed order will be sent to you in the mail.

While it is difficult to predict what reasons the court will or will not accept, the following are some examples of what might be considered a good excuse: illness, an honest mistake in calculating when the appeal was to be filed, delay in the mail, severe weather conditions preventing the litigant from getting to court or mailing the notice of appeal, or failure to receive a copy of the final order being appealed until the normal 30-day period for appeal has expired. This list is not exclusive, and if you believe that your excuse is reasonable, submit your motion to the court.

D. STAY OF JUDGMENT PENDING APPEAL

1. Stay of Money Judgments. A “stay” is an order that prevents a party from enforcing a judgment order during an appeal. The enforcement of a money

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judgment is stayed by a trial court only if a timely notice of appeal and an appeal bond are filed by the appellant within the time for filing the notice of appeal or within any extension of time granted. Supreme Court Rule 305(a). The amount of the bond must be sufficient to cover the judgment, interest, and costs. Application for, and approval of, appeal bonds should initially be made in the circuit court. If the circuit court refuses, the party should file a motion in the appellate court to have the bond set. Furthermore, notice of the presentment of the bond must be given to the appellee by the appellant.

2. Stay of Other Judgments. If the judgment you are appealing does not include monetary damages, the trial court may stay the enforcement of the judgment only upon notice and motion. Although not otherwise required, the court may require you to file an appeal bond. Supreme Court Rule 305(b). The amount of this bond will be set by the court.

3. Extension of Time to File Bond. The trial court, appellate court, or one of the appellate court justices has the discretion to extend the time for filing an appeal bond if a party moves for an extension within the time for filing the notice of appeal. However, extensions granted by a trial court may not exceed 45 days unless the parties stipulate otherwise. If such a motion is filed in the appellate court, it must be supported by an affidavit and accompanied by a supporting record (see Supreme Court Rule 328 discussed in Section VI, Part F) if the record on appeal has not been filed yet.

4. Stays by the Appellate Court. Although an application for a stay typically is made to the trial court, a motion for a stay may be made to the appellate court or to one of its justices. A party filing such a motion in the appellate court must explain why application to the trial court is not practical or that the application was filed in the trial court and the trial court denied it. The motion must be accompanied by suggestions supporting the motion and a supporting record (see Supreme Court Rule

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328 discussed in Section VI, Part F), if the record on appeal has not been filed. If the appellate court grants the stay, the appellate court clerk will notify the parties and transmit to the clerk of the circuit court a certified copy of the order granting the stay. Supreme Court Rule 305(d).

5. Automatic Stay Pending Appeal of Termination of Parental Rights. An order terminating parental rights initiated under the Juvenile Court Act is automatically stayed for 60 days. No final judgment order of adoption can be entered for 60 days after the termination order is entered even if no parent contests the termination. Only that portion of the termination order granting an agency or person the right to consent to the child’s adoption is stayed. The rest of the termination order is in effect. If no notice of appeal is filed, the automatic stay expires. If a parent or other party files a notice of appeal, the stay continues until the appeal is completed. No bond is required. A party may file a motion in the appellate court to lift the automatic stay. Supreme Court Rule 305(e).

6. Automatic Stay – Permissive Appeals. When leave to appeal is granted with respect to an appeal taken pursuant to Supreme Court Rule 306 (other than child custody appeals), the proceedings in the circuit court are stayed. The appellate court may, upon good cause shown, require the petitioner to file an appropriate bond. Supreme Court Rule 306(c)(5).

IV. APPEALS BY PERMISSION

A. SUPREME COURT RULE 306 APPEALS

As discussed in Section II, Part D, there are certain types of appeals that can be taken by permission of the appellate court. If the order from which you seek to appeal falls within one of the enumerated categories in Supreme Court Rule 306, you must seek permission or leave of court to appeal by filing a petition rather than a notice of appeal. An original and 3 copies of the petition and supporting record (discussed at Section VI, Part F) must be

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filed in the appellate court within 30 days after entry of the order along with the requisite notice of filing and certificate of service (discussed at Section III, Part B). The filing of a motion to reconsider an interlocutory (non-final) order does not stay the time period for filing the petition for leave to appeal.

The petition should contain a statement of facts necessary to an understanding of the issue before the court and the grounds for appeal. The statement of facts must be supported by reference to a separate supporting record prepared in accordance with Supreme Court Rule 328 (discussed at Section VI, Part F). The petition must include an appendix consisting of a copy of the order appealed from and any opinion, memorandum, or findings of fact entered by the trial judge, and a table of contents to the record. Supreme Court Rule 306(c)(1),(3).

There are shortened time limits and additional requirements for filing petitions related to child custody orders pursuant to Supreme Court Rule 306(a)(5). They are discussed in Section VII, Part A.

A sample petition for leave to appeal and supporting memorandum can be found at Exhibit 7. The sample is double-spaced, with a 11⁄2” left margin and a 1” right margin. This petition seeks leave to appeal pursuant to Supreme Court Rule 306(a)(2) and is based on the following set of facts: Suppose John Doe, a resident of Cook County, entered into a real estate contract to purchase farmland located in Lake County. The owner of the farmland, Sam Smith, is a resident of Los Angeles, California. The contract was negotiated in Cook County in the presence of Michael Morris, the real estate broker, also a Cook County resident. The contract required Doe to provide a $5,000 cashier’s check to Morris by April 15, 2010 to be held in escrow and for Doe to sign a promissory note for the balance and to provide a guaranty signed by his father-in-law, Rick Jones, a business acquaintance of Smith. Doe provided the cashier’s check but Rick Jones had suffered a stroke on May 1, 2010

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and would not be able to sign the guaranty before the closing date of May 21, 2010. Doe told Morris that his own father would sign the guaranty and Morris relayed that information to Smith. Smith told Morris that he would not agree to the substitution and that the deal was over. He also told Morris that he had received a better offer from someone else. After Doe threatened to sue him, Smith filed a declaratory action in Lake County seeking a declaration that he was not obligated to sell the farmland to Doe. Doe moved to transfer the lawsuit to Cook County on the basis that it was the more convenient location, but the circuit court denied the motion, giving preference to Smith’s chosen forum.

The opposing party has 21 days after the filing of the petition to file an answer. Reply briefs are not permitted except by leave of court. Supreme Court Rule 306(c)(2).

The petition and answer must be filed with a notice of filing and a certificate of service (discussed at Section III, Part B).

The appellate court will issue a ruling whether to grant the petition and allow leave to appeal.

If leave to appeal is granted, proceedings in the circuit court are automatically stayed. Within 48 hours after the petition is granted, the clerk of the appellate court will send notice to the clerk of the circuit court. Supreme Court Rule 306(c)(5). The parties may stand on their petition or answer or file further briefs in lieu of or in addition to their petition or answer. In order to stand on his or her petition or answer, the party must notify the clerk of the appellate court by letter. Otherwise, the appellant’s brief will be due 35 days from the date leave to appeal was granted; the appellee’s brief will be due within 35 days of the due date of the appellant’s brief; and the reply brief will be due within 14 days of the due date of the appellee’s brief. Supreme Court Rule 306(c)(7), 343(a). The format for these briefs is discussed in Sections IX, X, and XI.

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Either party may request that additional portions of the record be prepared or the appellate court may order the appellant to file the record within 35 days of the order granting leave to appeal. Supreme Court Rule 306(c)(6). Preparation of the record is discussed in Section VI.

B. SUPREME COURT RULE 308 APPEALS

A party can also seek leave to appeal when the circuit court has certified a legal question. Supreme Court Rule 308(a). The document filed is called an “Application for Leave to Appeal” (similar to the “petition” discussed in Section IV, Part A). An original and 3 copies of the application and supporting record (discussed in Section VI, Part F) must be filed within 14 days after the requisite findings have been made by the circuit court. Supreme Court Rule 308(b). In addition to having a statement of facts supported by a supporting record, the application should set forth the certified question and a statement as to why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation. Supreme Court Rule 308(c).

Within 14 days of the due date of the application, the adverse party may file an original and 3 copies of an answer in opposition together with a supplementary supporting record containing any additional parts of the record. Oral argument is generally not permitted. Supreme Court Rule 308(c).

As with other filings in the appellate court, the application and answer must be filed with a notice of filing and certificate of service. If you mail your filings to the clerk of the appellate court or if you use a third- party commercial carrier such as FedEx or UPS and would like a filed-stamped copy returned to you, be sure to include an extra copy of your petition along with a return envelope with prepaid postage (discussed at Section III, Part B).

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If leave to appeal is granted under Supreme Court Rule 308, the parties will be required to file briefs just as in appeals from final orders. In addition, either party may request that additional portions of the record be prepared or the appellate court may order the appellant to file the record within 35 days of the order granting leave to appeal. The appellant must file a brief within the same 35 days. The remaining due dates are the same as those for appeals from final orders. Supreme Court Rules 308(d), 343(a). The format for briefs is discussed at Sections IX, X, and XI.

V. THE DOCKETING STATEMENT

Within 14 days after filing your notice of appeal in appeals as of right (Supreme Court Rules 301, 304, 307), you must file a docketing statement in the appellate court which serves as notice to the court and the other parties in the appeal that all of the preliminary steps have been taken; that is, that the transcripts and records have been ordered. It also gives the opposing party some idea of the issues you will be raising on appeal and other information that permits the justices of the appellate court to see who the parties and their attorneys are so that they can decline assignment on appeals in which they have some connection to the parties or attorneys that would make their participation inappropriate. At the same time, you must pay a $25 appearance fee (unless previously paid). Supreme Court Rule 312(a).

In the case of discretionary appeals (Supreme Court Rules 306 and 308), the docketing statement is due at the time the appellant files the Rule 306 petition or Rule 308 application. In Rule 307(d) appeals, the docketing statement is due within seven days from the filing of the notice of appeal. Supreme Court Rule 312(a).

The procedures among the appellate court districts vary, with some requiring only that an original docketing statement be filed and others requiring an original plus 1 copy. You should contact the clerk

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of the appellate court and ask how many copies are required.

The information that must be included in the docketing statement is set forth in Supreme Court Rule 312. Some of the appellate court districts have developed their own forms based on that rule, copies of which are available from the district clerks. In the alternative, or if a preprinted form is not available in your district, you may type your own using the form shown in Exhibit 8 in the Appendix. In child custody appeals, the docketing statement must include a special bolded caption at the top of the first page. See Section VII, Part C. If you are filing an appeal in a worker’s compensation matter, be sure to include “Industrial Commission Division” at the top of the docketing statement after the district number.

As with everything else you file, you must serve a copy of the docketing statement on all other parties and attach a proof of service so that the appellate court is aware that you complied with this rule. You can use the sample notice of filing and certificate of service that appears at Exhibit 2 but change the name of the document you are filing and serving to “Docketing Statement.” If you file by mail or third- party commercial carrier, remember to provide an extra copy, in addition to those required by the court, and a return envelope so you will have a file-stamped copy for your records.

In order to find out the number that has been assigned to your appeal (the appellate court assigns a different number than the circuit court), you can call the appellate court clerk’s office 7 to 10 days after you file your notice of appeal. By that time, the clerk should have received your notice of appeal from the circuit court clerk and assigned a number. Be sure you have the name and circuit court number of your case handy when you talk to the clerk so he or she can look up the appellate court number.

It is very important that you provide the court with an address where mail will reach

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you and a phone number where you can be reached during the day. The appellate court does not hear oral argument on motions and does not rule from the bench as do circuit court judges. Everything is submitted in writing, and the appellate court makes its decision and issues a written order. Supreme Court Rule 361(b). A copy of that order will be mailed to you, so the appellate court clerk must have your correct address. The court also mails notice of the oral argument schedule and notice of when its opinion will be issued. If you move while your appeal is pending, be sure to provide the appellate court clerk and all parties with a Notice of Change of Address (see Exhibit 9 in the Appendix).

VI. PREPARING AND FILING RECORD ON APPEAL

When we speak of the “appellate record” or “the record on appeal,” we are actually referring to a combination of documents, some of which must be prepared by a court reporter and others that are contained in the circuit court files. These documents are not automatically prepared and sent to the appellate court when an appeal is filed. You have to ask that they be prepared, and you also have to pay the fee for their preparation before they will be released. This section deals with getting the court reporter’s transcripts prepared and filed (Part A); what to do if there was no court reporter (Part B); requesting preparation of the record on appeal by the circuit court clerk (Part C); and filing the record in the appellate court (Part D). Supporting records submitted in support of appeals taken pursuant to Supreme Court Rules 306, 307(d) and 308 are discussed in Part F of Section VI.

Special rules for preparing and filing the record in child custody appeals are discussed in Section VII, Part D.

A. TRANSCRIPTS OF COURT PROCEEDINGS

Procedures vary widely in the keeping of a record of oral proceedings that take place before the circuit court judge. In some

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courts, a court reporter is almost never present, unless one of the parties requests one. In other circuit courts, the proceedings will be recorded by the court. The recording or reporter’s notes will be kept until one of the parties requests the preparation of the written transcript. The appellate court will need transcripts of the important hearings in order to properly review your case. You may not need to request transcripts of every single hearing that took place. For example, if at one hearing, all the judge did was continue the hearing to another date, that probably will not be important to the appeal unless you plan to raise some particular issue about the continuance. But if a hearing dealt in any way with any of the issues you will be raising in the appellate court and the proceedings were recorded, you must have a transcript.

For example, in John Doe’s case, he wants to appeal from the order of September 10, 2009, dismissing count II of his complaint, and the order of May 9, 2010, granting summary judgment as to the remaining claims. He will need transcripts of every hearing dealing with those rulings. Let us assume that the important proceedings are the hearings on September 10, 2009 and on May 9, 2010. John Doe needs to include those transcripts in the record.

1. Ordering the Transcripts. As the appellant, you are responsible for contacting the court reporter and ordering the transcripts. Within the time for filing the docketing statement (see Section V), the appellant must make a written request to the court reporter to prepare the transcript of proceedings that the appellant wishes to be included in the report of proceedings.

The first step is to talk to the court reporter and find out (a) how much it will cost to have the transcripts prepared and what arrangements must be made for payment; (b) about how long it will take to prepare the transcripts; (c) how the court reporter will notify you when the transcripts are ready; and (d) whether the court reporter will send the original to the judge

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to be certified and filed or whether you have to take care of that detail yourself. If the reporter will be sending you the original, you will need to ask the reporter to send opposing counsel a letter that the transcript has been prepared. Supreme Court Rule 323(b).

When you talk to the reporter, be prepared with pertinent information. He or she will need to know the name and court number of your case; what circuit court judge heard the case; the exact dates of the proceedings you want transcribed; and when the notice of appeal was filed or is to be filed. Remember, court reporters are in court much of the day and also receive a lot of requests for transcripts, so they need plenty of advance notice in order to arrange their schedules to have time to write up your transcripts.

After you talk to the court reporter, confirm the arrangements in writing. See Exhibit 10 in the Appendix.

Supreme Court Rule 312 requires that you notify other parties of what transcripts you have requested. That information is included in the docketing statement the appellant must file in the appellate court and serve on all parties (discussed in Section V). If the opposing party believes other transcripts are necessary, he or she must notify you of that fact in writing within 7 days after service of the notification, specifying what additional transcripts are necessary. If you receive such a notice, you must, within 7 days, ask the court reporter to prepare the additional transcripts requested or, if you think the request is unjustified, file a motion in the circuit court asking the judge to enter an order that the additional portions not be included unless the opposing party pays for their preparation. Supreme Court Rule 323(a).

2. Getting the Transcripts Certified. You are not finished once the report of proceedings is received from the court reporter. The report of proceedings has to be filed in the circuit court within 49 days (7 weeks) after your notice of appeal was

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filed. Supreme Court Rule 323(b). Again, in calculating when the report of proceedings is due, you do not count the first day – if John Doe filed his notice of appeal on June 8, 2010, then June 9, 2010 would be Day 1. Day 49 would be July 27, and the report of proceedings would have to be filed in the circuit court on or before that day.

In some circuit courts, when the transcript of proceedings is completed, the court reporter does not give the original to the parties; rather, he or she gives it directly to the circuit court judge. The judge signs a certification provided by the court reporter certifying that the transcript is accurate, and the transcript is then sent to the circuit court clerk to be included in the record. If the circuit you are in follows this procedure (be sure to ask the court reporter how it is done), then you need not be concerned with the remainder of this Section.

In other circuits of this State, however, the court reporters do not send the transcript to the judge for certification. In those circuits (for example, the Circuit Court of Cook County), the court reporter turns the original transcript over to the party who ordered it, and it is that party’s responsibility to file the transcript in the circuit court for inclusion in the record.

If you are in one of the circuits where filing must be handled by the parties, you cannot just walk in and hand the report of proceedings to the clerk of the circuit court. In those circuits, you must ask the court reporter to send a letter advising all parties, pursuant to Supreme Court Rule 323(b), that the report has been completed and has been turned over to the appellant. Within 14 days after the letter is received, all parties have the right to inspect the report of proceedings at a mutually convenient time and place. If within 14 days, no party has raised any objection (citing alleged inaccuracies involving matters of substance), you may file the report of proceedings in the circuit court without further certification. If the opposing party has not attempted to inspect the report of

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proceedings within the 14 days, you may still file the report of proceedings without further certification. File the report of proceedings in the circuit court with a notice of filing and certificate of service and be sure to attach a copy of the Rule 323(b) letter you received from the court reporter. A copy of the notice of filing report of proceedings can be found in the Appendix at Exhibit 11.

If one of the parties has inspected the report of proceedings and raised an objection to its accuracy with respect to matters of substance and you disagree with the objection, you must have the report of proceedings certified as accurate by the judge who heard your case. The court reporter will include, as the last page of the report of proceedings, a standardized form for the judge to sign, certifying the report’s accuracy. You must then file a motion, give the opposing party or parties notice, and appear before the judge to get his or her signature on that page.

In John Doe’s case, the notice and motion would appear as set forth in Exhibits 12 and 13 of the Appendix. (Many of the circuit courts have standardized notice of motion forms—you may use these forms instead of typing your own.) You must look at the local circuit court rules to determine how much notice must be given to the parties to present the request for certification to the judge.

Once the report of proceedings has been certified, you must take it to the clerk of the circuit court and file it with a notice of filing (Exhibit 11 of the Appendix). The clerk will then include it in the record that will be filed in the appellate court (discussed in Part C of this Section VI).

3. Correcting Mistakes. There probably has never been a report of proceedings prepared that did not include typographical or other minor errors. They are hurriedly prepared, and the court reporter may have misheard a word or had to transcribe two or three people trying to talk at the same time. If the transcript is intelligible and the error does not change

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the sense of what was said, do not worry about it. The appellate court will be able to decipher it. If you come across passages that are unintelligible, however, or where something important has been omitted—as where a passage should have “no” or “not” in it, but the negative has been omitted making it sound as though you were urging the court to dismiss your case or grant summary judgment against you—talk to the court reporter about preparing an “errata sheet” to correct the errors. If that is done, this too should be presented to the judge as part of the record to be certified.

4. Filing by Stipulation. There is an alternative way to get the report of proceedings filed. Supreme Court Rule 323(b) provides that the parties may stipulate to the filing of the report of proceedings without certification by the judge. This saves the time to file a motion and appear in court. In order to file by stipulation, you need to talk to the other parties’ attorneys or to the parties themselves if they do not have attorneys. Inform them that you want to file the report of proceedings by stipulation and make a copy of the report of proceedings available to them for examination.

Some judges require that the parties proceed by way of stipulation and will not certify the record even if you ask them to do so. Most likely, their rationale is that they hear so many proceedings that they cannot possibly remember what happened in each one word for word. The parties, however, are more likely to remember what happened in their particular case and are in a better position to know if the transcript is accurate.

Whether you choose to proceed by way of stipulation or the judge requires you to do so, the method is the same. A sample stipulation can be found at Exhibit 14 in the Appendix. It assumes the parties want to make certain changes to correct errors in the report of proceedings. If there are no errors that require correction (remember, you do not have to worry about harmless typographical errors), just omit the portion dealing with corrections. If the stipulation

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is to be used, all you need to file with the clerk of the circuit court is the original stipulation, signed by all parties (Exhibit 14), and the original copy of the transcript. For purposes of review, it makes absolutely no difference whether the report is filed by stipulation or certified by the judge.

5. Additional Time for Filing the Transcripts. Sometimes the transcript of proceedings cannot be prepared in time for filing within 49 days. A court reporter may be ill or, if the necessary hearing took place years earlier, it may take time to locate the reporter or for some other reporter to decipher the notes and prepare the transcript. In addition, the circuit court judge may be unavailable to certify the report of proceedings within the time period provided (although you can obtain certification from any judge sitting in his or her place). Supreme Court Rule 323(b). You can get additional time, but you must file a motion in the appellate court asking for an extension of time and explaining why the transcript cannot be prepared within the time provided. Any motion for extension of time must be supported by an affidavit (a sworn statement before a notary public) or by verification by certification. Supreme Court Rules 323(e) and 361(f). For example, if you contacted the court reporter and were informed that the reporter was ill or on vacation or simply cannot finish the transcript(s) on time, then you need to explain that to the appellate court. You also need to advise the court as to the date the reporter said the transcript(s) will be completed. A sample motion to extend time appears at Exhibit 15 in the Appendix.

Along with your motion to extend time for filing the transcript of proceedings (Exhibit 15), you must include a draft order, notice of filing and certificate of service. Samples of those forms are at Exhibits 5 and 6 in the Appendix. All you need do is change the description of the motion to “Motion to Extend Time for Filing Transcript of Proceedings.” You will need to add the circuit court clerk to the service list with respect to any motions for extension of

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time that will affect the timing for filing the record. Supreme Court Rule 323(d).

Remember, the appellate court clerk will need the original and 3 copies of your motion. If you want a file-stamped copy for your records, provide an extra copy. If you file by mail or by third-party commercial carrier, don’t forget the self-addressed, stamped envelope for return of your copy.

If your motion is granted, the appellate court will issue an order setting a new date for filing the transcript in the circuit court. You should send a copy of any order extending the time for filing the transcript to the clerk of the circuit court because the time for filing the record on appeal is automatically extended by an order extending the time for filing the report of proceedings. The record on appeal will not be due in the appellate court until 14 days after the due date for the report of proceedings. Supreme Court Rule 326.

B. WHAT TO DO IF THERE WAS NO COURT REPORTER—THE BYSTANDER’S REPORT OF ORAL PROCEEDINGS

If, and only if, there was no court reporter present, you may have to prepare what is called a “bystander’s report” to inform the appellate court what happened during oral proceedings before the circuit court. Supreme Court Rule 323(c). This should be necessary only in the case of hearings at which the judge of the circuit court heard evidence from witnesses under oath. If the proceeding was one at which the judge only heard the arguments of the parties, for example on a motion to dismiss, or only heard arguments about evidence that was submitted in writing and made a part of the written record (for example, affidavits submitted as part of a motion for summary judgment), then you probably do not need to worry about having a transcript.

Where evidence was taken orally, there is a substitute for the reporter’s transcript. Someone who was there and actually heard what was said can write a concise,

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accurate, and factual account of what was said, called a bystander’s report. It could be written by a party or it could be written by the person who actually said it. Such a document would typically consist of a series of short, numbered paragraphs, each one setting out what was said by a particular person.

If you prepare a bystander’s report, a copy of it must be served on all other parties within 28 days after you file your notice of appeal. Within 14 days after service of the report, other parties can serve on you proposed amendments to your report or submit their own proposed bystander’s reports. Within 7 days after receiving the other parties’ amendments or proposed reports (or within 7 days after you should have received them, if none are served by the other parties), you must present the proposed report or reports to the circuit court judge who heard the evidence. You must give proper notice that you will be presenting the bystander’s report to the judge. Use the form captioned “Motion to Certify Report of Proceedings” (Exhibit 11 in the Appendix), but refer instead to “Bystander’s Report” rather than to “Report of Proceedings.” If the parties do not agree on the facts, any conflicts will be resolved by the judge, who will then certify the final form settled upon and order that it be filed as part of the record.

If the parties can agree on what testimony was given at the hearing, then certification is not necessary. They can stipulate to a statement of facts material to the appeal, reduce it to writing, and file it with the clerk of the circuit court within 49 days (7 weeks) after the notice of appeal was filed. Supreme Court Rule 323(d). A sample stipulation appears at Exhibit 16 in the Appendix.

C. PREPARATION OF THE RECORD ON APPEAL

The clerk of the circuit court will arrange the record on appeal in 3 sections: the common law record, the report of proceedings, and the trial exhibits. Supreme Court Rule 324. The common law

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record includes every single motion, pleading, order, or other written document filed in the circuit court during the course of the litigation. Unless otherwise specified, when the clerk of the circuit court receives a request to prepare the record on appeal, he or she will include everything that is in the court’s file. If the parties stipulate in writing that fewer than all documents and orders be made a part of the record or if the circuit court judge on motion of one of the parties orders that only certain documents be included in the record, you must give the stipulation or a copy of the order to the circuit court clerk.

It does not matter if the record on appeal contains pleadings and orders that are irrelevant to the issues; the appellate court will just ignore them. However, you must be sure everything that the appellate court needs to review the case is included in the record. For this reason, the usual method is to have everything included. The only difference may be in the cost of preparing the record. If a record is 100 pages or fewer, the statutory fee for preparing it is $110. If the record is 101- 200 pages, the fee is $185. If the common law record exceeds 200 pages, the clerk imposes an additional charge of .30 cents per page for each additional page. The court may require a deposit when the clerk begins preparing the record. All transcripts of court proceedings will also be subject to these costs. Final payment is due when the record is completed.

If you kept copies of everything filed in the circuit court, you should be able to tell whether the record will be close to 100 or 200 pages, and whether it would be worth it to try to limit the record on appeal. If you do want to limit what is included in the record, the best course would be to try to get a stipulation to that effect from the opposing party’s attorney. The stipulation would look much like the stipulation discussed in connection with filing the transcripts by stipulation in Exhibit 14. In the body, however, you should state:

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IT IS HEREBY STIPULATED AND AGREED by the parties hereto that the record on appeal be limited to the following:

You should then list specifically and in chronological order what pleadings, orders, transcripts and exhibits are to be included in the record.

If a stipulation is not possible, your only other course to limit the record on appeal is to file a motion with the circuit court asking for an order limiting the record to specific pleadings. It would be similar to the motion to certify the report of proceedings (Exhibit 13), but you would move the court for “entry of an order limiting the record on appeal to the following,” and then list the pleadings, orders, transcripts and exhibits to be included in the record. As with all motions, you must give the opposing party notice of the date and time for hearing on the motion and provide the court with certificate of service. Samples of such a notice and certificate of service are shown in Exhibit 12.

1. Ordering the Record on Appeal. You must order the record on appeal within 14 days after filing your notice of appeal. Your request is made to the clerk of the circuit court and procedures vary, so you must ask the clerk in advance what the preferred method is for ordering the record. The request must always be in writing, but some of the clerks have prepared special forms which they prefer be used. A sample of one such form, used by the clerk of the Circuit Court of Cook County, Civil Appeals Division, is included as Exhibit 17 in the Appendix. It is quite similar to forms used by other circuit court clerks. It has spaces for all the information the clerk needs in order to prepare the record on appeal and to get in touch with you when the record is ready. At the time you file your notice of appeal, ask the clerk if there is a special form to use. If not, a simple letter directed to the clerk will do, but be sure you include all of the information asked for in the sample form, especially an address where mail is sure to reach you and a telephone number where you can be contacted during the work day.

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If the clerk prefers a letter, use a form similar to Exhibit 18 in the Appendix.

2. Payment of the Preparation Fee. The circuit courts also have varying rules with regard to when the preparation fee must be paid, but all now require at least a deposit before they start preparing the record. The rule is uniform that the record will not be released until the fee is paid, so when you are notified that the record is ready, pay the fee promptly and in full. Some of the clerks have form letters or memos that they give to litigants, explaining the particular procedures to be followed. Read it carefully, and follow all instructions. If the record must be mailed to the appellate court, as is the case in most circuits, you may be required to pay the postage in addition to the statutory preparation fee, so be sure that you know all costs and come prepared with payment.

D. FILING THE RECORD ON APPEAL

1. Sending the Record to the Appellate Court. The record on appeal typically must be filed in the appellate court within 63 days (9 weeks) after your notice of appeal was filed, although extensions can be obtained pursuant to motion. Supreme Court Rules 326, 361. With respect to interlocutory appeals brought as a matter of right pursuant to Supreme Court Rule 307, the record is due within the same 30- day period that the notice of interlocutory appeal is due. Supreme Court Rule 307(a). Upon payment of the preparation fee and transportation costs, the clerk of the circuit court must transmit the record to the appellant for such transmission. Supreme Court Rule 325.

When you file the record in the appellate court, you must also file and serve a notice of filing record on appeal, along with a certificate of service. The notice should state the number of volumes of the common law record, the report of proceedings (transcripts), and exhibits. A sample can be found at Exhibit 19 in the Appendix.

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2. Obtaining the Record for Use in Preparing your Brief. You will, of course, immediately need the record on appeal to begin preparing your appellant’s brief, which is due to be filed in the appellate court within 35 days (5 weeks) after the record on appeal is filed. The easiest method to begin using the record is to take it to the appellate court, file it, and then immediately ask to check it out. You are then permitted to keep the record until you file your brief. Supreme Court Rule 372. Some districts of the appellate court, however, do not permit you to remove the record once it has been filed. If that is the case, then you will have to travel to the particular appellate court district and use the record in the clerk’s office when you are preparing your brief.

If you have been permitted to remove the record for use in preparing your brief, remember that when you finish your brief, you must immediately return the record. The other parties also need the record to prepare their briefs. The record on appeal is an official court document that, as a matter of courtesy, the court may permit you to take with you for the sole purpose of preparing your brief. But the record belongs to the court and is needed by the court in order to review your case. You may not write in the record on appeal. You may unbind the record for photocopying, but you must return it in its original condition. Supreme Court Rule 372. Return the record to the appellate court promptly when you are finished using it. This rule is strictly enforced, and some districts of the appellate court will not accept your brief for filing if you have not returned the record.

3. Certificate in Lieu of Record. There is a way for you to keep the record while you write the appellant’s brief instead of filing it in the appellate court. This is with a “Certificate in Lieu of Record.” Supreme Court Rule 325. When you are notified that the record is ready, ask the circuit court clerk to deliver to the appellate court a “Certificate in Lieu of Record.” (In Cook County, the circuit court will provide the Certificate in Lieu of Record to you, and you

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must file it with the appellate court.) This certificate will be accepted by the appellate court clerk instead of the record. Make sure, however, that you notify the other side that the certificate has been filed in the appellate court. A notice of filing the certificate would look exactly like the notice of filing the record on appeal that appears at Exhibit 19, but the heading would read “Notice of Filing Certificate in Lieu of Record”.

Of course, in the body of the notice, you would refer to the certificate rather than to the record, and you must attach a certificate of service (see Exhibit 2).

If you file the certificate in lieu of record, you are responsible for filing the actual record on the date that your reply brief is due. Upon request, you must turn the record over to the other side after you have filed your appellant’s brief. Make sure you get a receipt from the other side that contains a description of what you turned over (how many volumes, pages, exhibits, etc.). You should also notify the appellate court clerk and all other parties where the record is. A sample transmission form appears at Exhibit 20 in the Appendix.

E. SUPPLEMENTALRECORD

Occasionally, an important pleading or transcript will be accidentally omitted from the record on appeal. It is not enough to tell the appellate court that something is missing—you must supplement the record with the missing item or the court will not consider it. Supreme Court Rule 329.

Sometimes pleadings get misfiled in the circuit court (some of the clerk’s offices have tens of thousands of active files) or the importance of a transcript is not realized until you begin to prepare your appellate brief. If the missing document is a court order, it may be easier to replace because most orders are microfilmed. Usually, the clerk can find an order if you provide the case number and the date of the order.

If you need to supplement the record, notify the circuit court clerk what

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documents are missing. If the clerk does not have the missing document, you will need to provide the clerk with your file- stamped copy (keeping a copy for yourself, of course). If the missing document of the record is a transcript, you must go through the certification process described at Part A of this Section. The easiest way to provide the missing documents to the clerk is by way of the stipulation procedure described at Part A. A sample stipulation can be found at Exhibit 21 in the Appendix. File the stipulation, with the document(s) attached, with the circuit court clerk. Some clerks have prepared a special form that should accompany the stipulation. A sample of one such form is included as Exhibit 22.

Once the missing documents are received by the circuit court clerk, he or she can prepare a supplemental record on appeal. The charge for preparing it varies, so ask the clerk how much it will be and when the fee is to be paid. When the supplemental record is ready, you must file it in the appellate court along with a motion for leave to file a supplemental record (see Exhibit 23). As with other motions, it must be accompanied by a notice of filing and a certificate of service, a sample of which appears at Exhibit 5. Because this is a pleading that the justices must rule on, the appellate court clerk will need the original and 3 copies of the motion and 1 copy of a draft order (Exhibit 6). Supreme Court Rule 361(b)(3).

F. SUPPORTINGRECORD

Parties bringing interlocutory appeals pursuant to Supreme Court Rules 306, 307(d) and 308 are required to file a supporting record containing enough of the trial court record to show an appealable order or judgment, a timely filed and served notice of appeal (or notice of interlocutory appeal), if one is required, and any other matter necessary to the petition or application. Supreme Court Rule 328. Consult the Supreme Court rule governing the appeal to determine the content for the supporting record. The supporting record must be authenticated by the certificate of

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the clerk of the trial court or by affidavit of the attorney or party filing it. A sample affidavit is provided at Exhibit 24 in the Appendix.

If the supporting record is based on an attorney’s or party’s affidavit, 4 copies of the supporting record must be filed, and a copy must be provided to every other party. If the supporting record has been prepared by the clerk of the circuit court, no additional copies are required for the appellate court or the parties.

G. SPECIAL RULES FOR RECORDS IN CERTAIN CASES

There are special rules and deadlines regarding the preparation of records in child custody appeals (see Section VII, Part D.4) and appeals from administrative agencies (see Section VIII).

VII. CHILD CUSTODY APPEALS

Child custody appeals involve the care and custody of children who are alleged to be abused and neglected or whose custody is at issue in a dissolution of marriage, adoption, paternity, or other proceeding. Some examples of final child custody orders include orders terminating a parent’s parental rights, a dispositional order under the Juvenile Court Act, an order dismissing or closing a case under the Juvenile Court Act, a custody judgment or modification of custody subsequent to dissolution of marriage under Section 610 of the Illinois Marriage and Dissolution of Marriage Act or Section 12 under the Illinois Paternity Act. In most cases, the appeal would be brought under Supreme Court Rule 301, 304(b)(6), 660(b), or 663(a).

In all cases under the Juvenile Court Act, including termination of parental rights cases where a guardian has been appointed to consent to adoption, and under the Adoption Act, the last name of the child shall not be used in the appellate court. The child shall be identified by his first name and last initial or by his initials. The preferred method is by the child’s first name and last initial. Supreme Court

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Rules 341(f), 660(c) and 663(b). If the parent(s) and child share a last name, an initial should be substituted for the parent’s last name.

A. STARTING THE APPEAL

If you are appealing from a circuit court’s permanent determination of child custody brought pursuant to Supreme Court Rule 301, 304(b)(6), 660(b) or 663(a) (see Section II, Part C), you must prepare and file your notice of appeal in the circuit court within 30 days of entry of the order. A sample notice of appeal can be found at Exhibit 1. As discussed below, the notice of appeal must contain the following caption in bold type, at the top of the first page: THIS APPEAL INVOLVES A QUESTION OF CHILD CUSTODY, ADOPTION, TERMINATION OF PARENTAL RIGHTS OR OTHER MATTER AFFECTING THE BEST INTERESTS OF A CHILD. This caption is necessary to alert the appellate court to place this appeal on an accelerated docket.

If you are filing an interlocutory appeal pursuant to an order terminating parental rights or affecting temporary commitment in adoption proceedings pursuant to Supreme Court Rule 307(a)(6) (see Section II, Part B), the notice must be captioned “Notice of Interlocutory Appeal” and must include the same special bolded caption at the top of the page. It, too, is due within 30 days of entry of the child custody order from which you are appealing. A motion for reconsideration does not toll the running of the 30-day deadline.

If you are appealing from an interlocutory order affecting the care and custody of an unemancipated minor pursuant to Supreme Court Rule 306(a)(5), you cannot file a notice of appeal. Examples of interlocutory orders include permanency planning, visitation, and temporary custody orders. Instead, you must obtain the appellate court’s permission to appeal by filing a petition for leave to appeal (discussed in Section II, Part D). Petitions related to child custody orders must be filed within 14 days of issuance of

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the order. A copy of that petition must also be served upon the circuit court judge who entered the custody order. Supreme Court Rule 306(b)(1). The filing of a motion to reconsider an interlocutory (non-final) order does not stay the time period for filing the petition for leave to appeal. Petitions related to child custody appeals (Supreme Court Rule 306(a)(5)) shall state the relief requested and the grounds for that relief. A legal memorandum, not exceeding 15 pages in length, can be filed in support. Supreme Court Rule 306(b)(1), (2). A sample petition for leave to appeal, showing the format, and supporting memorandum can be found at Exhibit 7. Be sure to include the special caption in bold type at the top of the first page.

A supporting record (discussed in Section VI, Part F) must accompany the petition for leave to appeal. It must include the order appealed from, and any supporting documents or matters of record necessary to the issues raised in the appeal. The supporting record must be authenticated by the certificate of the clerk of the trial court or by affidavit of the attorney or party filing it. Supreme Court Rules 306(b)(1), 328. A sample affidavit is provided at Exhibit 24 in the Appendix. As with other filings with respect to child custody appeals, the supporting record must include the special bold caption at the top of the cover page.

If the supporting record is based on an attorney’s or party’s affidavit, 4 copies of the supporting record must be filed, and a copy must be provided to every other party. If the supporting record has been prepared by the clerk of the circuit court, no additional copies are required for the appellate court or the parties.

The opposing party has 5 business days6 following service of the petition and memorandum to file an answer. Supreme Court Rule 306(b)(2). As with other permissive interlocutory appeals, the appellate court will issue a ruling whether

6 Business days exclude weekend days and court holidays.

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to grant the petition and allow leave to appeal. If leave to appeal is granted, the appellant must serve, within 7 days, copies of the order granting leave to appeal upon the opposing parties, the trial judge who entered the judgment or order appealed from, and the office of the chief judge of the circuit in which the judgment or order was entered. Supreme Court Rules 306(b)(5), 311(a).

The parties may stand on their petition or answer or may elect to file new briefs. In order to allow a petition or answer to stand as a brief, the party must notify the clerk of the appellate court by letter on or before the due date of the brief. Supreme Court Rule 306(b)(5).

B. FILING AND SERVICE

As explained in Section III, Part B, the notice of appeal or notice of interlocutory appeal for appeals brought pursuant to Supreme Court Rules 301, 304(b)(6) or 307(a)(6), is filed with the clerk of the circuit court where your case was heard. You need to take at least the original and 1 copy to the clerk for filing. You should also take at least 1 extra copy so that you can have a copy stamped with the filing date to keep for your own records.

You can also file the notice of appeal by mailing the original and 1 copy to the clerk of the circuit court or delivering the original and 1 copy to a third-party commercial carrier, such as FedEx or UPS, for delivery to the clerk, provided delivery is to occur within 3 business days. A notice of appeal is considered timely filed if it is actually mailed or delivered to the third-party commercial carrier on the 30th day after the date of the final order appealed from, even if it is not received and file-stamped by the circuit court clerk until after the 30 days has expired. Supreme Court Rule 373. It is important to have a sworn notice of filing reflecting a timely mailing or delivery to a third-party carrier.

Supreme Court Rules 303(c) and 311(a)(2) require that a copy of the notice of appeal or notice of interlocutory appeal be

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filed in the appellate court within 7 days of the filing in the circuit court and service within that same 7 days upon the other parties and the circuit court judge who entered the judgment or order appealed and the office of the chief judge of the circuit in which the judgment or order was entered. A sample notice of filing and certificate of service can be found at Exhibit 2 in the Appendix. Of course the caption would be different and the notice of filing would include the name of the trial judge and chief judge as well as counsel for the opposing party.

Petitions seeking leave to appeal pursuant to Supreme Court Rule 306(a)(5) are not filed in the circuit court but in the appellate court. You must file an original and 3 copies each of the petition, memorandum, and supporting record with the court along with a notice of filing and certificate of service showing that you served the opposing party. Under Rule 306(b)(1), a copy of the petition for leave to appeal must be served on the trial judge who entered the order from which leave to appeal is sought.

If you file by mail or by a third-party commercial carrier and you want a file- stamped copy for your records, be sure to include (a) an extra copy; (b) a self- addressed, stamped return envelope; and (c) a note to the clerk asking him or her to return a file-stamped copy to you in the enclosed envelope.

C. DOCKETING STATEMENT

Within 14 days after filing your notice of appeal in cases of appeals as of right (Supreme Court Rule 301 or 304(b)(6)), you must file a docketing statement and pay the $25 appearance fee. In cases of appeal under Supreme Court Rule 307(a), the docketing statement is due 7 days after the filing of the notice of interlocutory appeal. Supreme Court Rule 312(a). The format for docketing statements is shown in Exhibit 8 and is discussed in greater detail in Section V.

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In cases of discretionary appeals (Supreme Court Rules 306(a)(5)), the docketing statement is due at the time the appellant files the Rule 306 petition. Supreme Court Rule 312(a). The docketing statement must include the special bold caption at the top of the first page. Supreme Court Rule 311(a)(1).

As with everything else you file, you must serve a copy of the docketing statement on all other parties and attach a certificate of service so that the appellate court is aware that you complied with this rule. You can use the sample notice of filing and certificate of service that appears at Exhibit 2 but change the name of the document you are filing and serving to “Docketing Statement.” Remember to provide an extra copy, in addition to those required by the court, and a return envelope so you have a file-stamped copy for your records. The same applies if you file by mail or pursuant to delivery by a third-party commercial carrier.

D. MANDATORY EXPEDITED DISPOSITION

Supreme Court Rule 311(a) mandates expedited disposition of child custody appeals, requiring the appellate court to issue its decision within 150 days after the notice of appeal is filed or leave to appeal has been granted. Other requirements include the following:

1. Special Caption. The notice of appeal (Exhibit 1) or petition for leave to appeal (Exhibit 7), the docketing statement (Exhibit 8), briefs, and all other notices, motions and pleadings must include the following statement in bold type on the top of the front page: THIS APPEAL INVOLVES A QUESTION OF CHILD CUSTODY, ADOPTION, TERMINATION OF PARENTAL RIGHTS OR OTHER MATTER AFFECTING THE BEST INTERESTS OF A CHILD. Supreme Court Rule 311(a)(1).

2. Service Upon the Circuit Court. As discussed previously, in addition to service upon the opposing party, a party filing a notice of appeal shall also serve the trial

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judge who entered the judgment or order appealed and the office of the chief judge of the circuit in which the judgment or order on appeal was entered. Where leave to appeal has been granted pursuant to Supreme Court Rule 306(a)(5), the appellant shall, within 7 days, serve copies of the order granting leave to appeal upon the trial judge who entered the judgment or order appealed and the office of the chief judge of the circuit in which the judgment or order on appeal was entered. Supreme Court Rule 311(a)(2).

3. Status Hearing. On receipt of the notice of appeal or order granting leave to appeal, the trial judge is required to set a status hearing within 30 days of the date of filing of the notice or order granting leave to determine the status of the case, including payments of required fees to the clerk of the circuit court and court reporting personnel for preparation of the transcript of proceedings (discussed in Section VI), and take any action necessary to expedite preparation of the record on appeal and transcript of proceedings. The trial judge may request the assistance of the chief judge to resolve filing delays. Supreme Court Rule 311(a)(3).

4. Record. The record on appeal and the transcript of proceedings (discussed in Section VI) must be filed no later than 35 days after the filing of the notice of appeal or granting of leave to appeal pursuant to Supreme Court Rule 306(a)(5). Any request for extension of time for filing the record must be accompanied by an affidavit of the court clerk or court-reporting personnel stating the reason for the delay and shall be served on the trial judge and the chief judge of the circuit. Lack of advance payment shall not be a reason for noncompliance with filing deadlines for the record or transcript. Supreme Court Rule 311(a)(4).

5. Local Rules. The appellate court of each district is authorized to adopt mandatory procedures to ensure the issuance of a decision within the 150-day deadline. Supreme Court Rule 311(a)(6). You should check the particular district’s administrative orders and rules, especially

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related to motions for extension of time to file your brief. They are accessible on the Illinois Supreme Court’s website at http://www.state.il.us/court, click on “Courts,” then “Appellate,” and then “Appellate Court Local Rules.” Each district has adopted provisions regarding due dates for the appellate briefs.

The local rules may change at any time, so it is important that you check the Illinois Supreme Court’s website (www.state.il.us/court) to determine the current deadlines, or call the clerk of the particular appellate court (telephone numbers are posted on the website and in the appendix) to verify the due dates.

6. Due Dates for Briefs for Supreme Court Rules 301 and 304(b)(6) Appeals.7 At present, the First District (Local Rule 14) requires that the appellant’s brief be filed within 21 days after the record is filed; the appellee’s brief is due within 21 days of the due date of the appellant’s brief; and the appellant’s reply brief is due within 14 days of the due date of the appellee’s brief.

The Second District (Local Rule 106) requires that the appellant’s brief be filed within 21 days after the record is filed; the appellee’s brief is 21 days after the appellant’s brief is filed; and the appellant’s reply brief is due 7 days after the appellee’s brief is filed.

The Third District (Administrative Order Forty-Seven) requires that the appellant’s brief be filed within 14 days after the record is filed; the appellee’s brief is due within 14 days of the due date of the appellant’s brief; and the appellant’s reply brief is due within 7 days of the due date of the appellee’s brief.

The Fourth District (Local Rule 12) requires that the appellant’s brief be filed within 21 days after the record is due; the appellee’s brief is due within 21 days after the appellant’s brief is filed; and the

7 This briefing schedule also applies if the appellate court grants a Rule 306(a)(5) petition for leave to appeal. Supreme Court Rule 311(a).

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appellant’s reply brief is due within 7 days after the appellee’s brief is filed.

The Fifth District (Administrative Order dated April 1, 2010) requires that the appellant’s brief be filed within 21 days after the record is filed; the appellee’s brief is due within 21 days of the due date of the appellant’s brief; and the appellant’s reply brief is due within 7 days after the due date of the appellee’s brief.

7. Due Dates for Briefs for Rule 307(a)(6) Appeals. Under Supreme Court Rule 307(a)(6), in appeals from an order terminating parental rights or granting, denying or revoking temporary commitment in adoption proceedings under the Adoption Act, the appellant’s notice of interlocutory appeal and the record must be filed within 30 days of entry of the interlocutory order. The appellant’s brief is due within 7 days of the filing of the notice of interlocutory appeal and the record. Within 7 days from the date the appellant’s brief is filed, the appellee’s brief is due. Within 7 days from the date the appellee’s brief is due, the appellant may file a reply brief.

E. ORALARGUMENT

The procedures and guidelines as to oral argument are the same as in any other appeal. They are discussed in Section XII.

F. AFTERTHEAPPELLATECOURT RULES

As in any other appeal, if the appellate court rules against you, your only recourse is to file a petition for rehearing in the appellate court (Supreme Court Rule 367) or to file a petition for leave to appeal in the Illinois Supreme Court (Supreme Court Rule 315). The deadlines and formats for these petitions are discussed in Section XIII.

Just as with respect to any filings in the appellate court, the petition for rehearing and the petition for leave to appeal must have the special caption in bold type on the top of the front page: THIS APPEAL INVOLVES A QUESTION OF CHILD

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CUSTODY, ADOPTION, TERMINATION OF PARENTAL RIGHTS OR OTHER MATTER AFFECTING THE BEST INTERESTS OF A CHILD. Supreme Court Rules 311(a)(1), 315(i).

VIII. APPEALS FROM FINAL ADMINISTRATIVE ORDERS

The Illinois legislature has provided for appeal from final orders of certain State administrative agencies directly to the Illinois Appellate Court. The statutes and regulations governing the proceedings of those agencies will specify where decisions are to be appealed and what constitutes a final order. For example, the agencies whose final orders are directly appealable to the Illinois Appellate Court are: the Pollution Control Board (415 ILCS 5/41), the Illinois State Labor Relations Board (5 ILCS 315/11), the Illinois Educational Labor Relations Board (115 ILCS 5/16), and certain orders of the Illinois Gaming Board (230 ILCS 10/17.1). Additionally, final decisions of the Property Tax Appeal Board where a change in assessed valuation of $300,000 or more was sought (35 ILCS 200/16-195), a decision from the Illinois Human Rights Commission (775 ILCS 5/8-111), and a judgment of the State Board of Elections concerning disclosure of campaign contributions and expenditures may be appealed directly to the appellate court (10 ILCS 5/9-22).

The procedures for these direct appeals are governed by Supreme Court Rule 335. The differences are: (a) you file a petition for administrative review instead of a notice of appeal in the court having jurisdiction; (b) the petition must be filed within 35 days from the receipt of the final administrative decision; and (c) after written request by the petitioner, the record is prepared by the administrative agency. Otherwise, these appeals are subject to the same rules as any other appeal.

A. THE PETITION FOR REVIEW

When you appeal from an agency decision directly to the Illinois Appellate Court, your petition for administrative

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review must be filed in the appellate court, not in the circuit court or the agency’s office. The parties to the administrative review proceeding are the petitioner (the party filing the petition) and the respondents (the agency and all other parties).

For example, suppose John Doe was fired from his job at Acme Manufacturing Company. He believed he was fired because of his race and filed a race discrimination complaint with the Illinois Human Rights Commission. The Commission followed its usual internal review procedures and ultimately issued a final decision and order finding in favor of Acme and against Doe. Doe wants to have the administrative decision judicially reviewed and has determined that the Illinois Appellate Court for the Second District has jurisdiction. Within 35 days of service as defined by the agency statutes and regulations, Doe must file a petition for administrative review in the Illinois Appellate Court, Second District, seeking judicial review of the agency’s decision, and he must also serve copies of that notice on the agency and on Acme. The pleading he files is called a petition for review and serves the same function as the notice of appeal discussed in Section III, Part A. It must identify the party seeking review, the agency, other parties involved (in this case, Acme), and the order to be reviewed. A sample petition and notice and acknowledgement of service of petition for review can be found at Exhibits 25 and 26 in the Appendix.

The petition for administrative review (with the notice of filing and the certificate/proof of service) is filed with the clerk of the appellate court. The petition must be filed within 35 days of service of the final administrative decision. “Service” is defined by each agency’s rules and regulations. Most provide that service is presumed to have occurred 3 business days after the date the agency mails the decision, unless a later actual date is shown. However, there is a split in the appellate courts when the decision is actually received before the 3 business days, with

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the Fourth District holding that the 3-day rule is not applicable if there was earlier, actual receipt before the 3 days, and the First District holding that the 3 days apply notwithstanding actual, earlier receipt. It is good practice to file your petition for administrative review within 35 days from the agency’s mailing of the decision, or, if not possible, then 35 days from 3 business days from the mailing or actual receipt, whichever is earlier. This guarantees that your petition will be timely.

File the petition for administrative review, submitting an original and 8 copies to the clerk of the appellate court by personal delivery, mailing (via U.S. Mail) or delivery to a third-party commercial carrier (e.g., FedEx or UPS) for delivery to the clerk within three business days. You must also pay the docketing fee of $25.00.

If you file by mail or third-party commercial carrier and want a file-stamped copy for your records, be sure to include: (a) an extra copy, with a note to the clerk asking that the extra copy be returned to you; and (b) a self-addressed, stamped envelope.

You must name the agency and all interested parties of record as respondents. Although the agency is named as a respondent, in all likelihood only the party opposing your complaint before the agency will appear in the appellate court and participate in the proceedings. Nevertheless, naming the agency as a respondent and serving it with a copy of the petition for administrative review is mandatory, not only because it is required by statute and Supreme Court rule, but also because it is the agency that must prepare the record on appeal and send it to the appellate court. If the agency is not notified in the proper manner, the record will not be prepared and filed on time.

B. PREPARING AND FILING THE RECORD FOR REVIEW

Supreme Court Rule 335 requires the agency whose order is the subject of the petition for administrative review to prepare

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and file a certified copy of the record for review within 35 days after the petition for administrative review was filed. You must request in writing the agency to prepare the record and indicate your request in the docketing statement (see Section V). The record will consist of any and all papers filed with the agency during the course of its proceedings, any orders or findings made, and any transcripts of oral proceedings before the agency.

Although the agency must assemble and transmit the record, you should not assume that this will be done automatically or that you have no responsibility to ensure that a proper record is prepared. As soon as the petition for administrative review has been filed, write your letter to the agency requesting that it prepare the record, and then contact the agency attorney to tell her/him that a petition for administrative review has been filed and ask to speak to the person who will be responsible for preparing the record. Every agency has its own rules and regulations regarding records and may require that you assist in making sure all relevant pleadings and transcripts are included. You should ask: (1) is there a fee for preparing the record, and, if so, how much and when and where should it be paid; (2) will you have to order transcripts of hearings and pay for them, and if, so, when must they be filed with the agency; (3) does the agency require that you provide a chronological list of all the pleadings, orders, and dates of hearings that are to be included in the record; (4) does the agency have any written instructions for appeals, and, if not, are there rules or regulations published anywhere that you can look at to determine what you have to do to ensure that the record is prepared and filed.

If the agency does not timely prepare and file the record within the 35 days, either file a motion to extend the time to file the record (using format similar to Exhibit 15) (even though this is not your responsibility) and a motion to extend the time to file your brief (see Section IX, Part F and Exhibit 31 (but change caption)) because, if the agency fails to file the

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record, the time you have to file your brief is not automatically extended. Since each appellate court district has its own practices in this regard, good practice is to call the clerk of the particular appellate court and ask what procedure you should follow in these circumstances.

You also have to file a docketing statement in the same manner as in regular appeals, but modifying it to apply to an administrative review.

Once the agency has prepared and filed the record, your appeal will proceed as with any other appeal, and you should look to the rules described in other portions of this guide to determine when and how to file your docketing statement and your briefs.

IX. PREPARING AND FILING THE APPELLANT’S BRIEF

Almost everything you do in the early stages of the appeal involves placing before the appellate court the record of what has gone before. The only new pleadings are three written briefs: (1) the appellant’s brief; (2) the appellee’s brief; and (3) the appellant’s reply brief. This section will concentrate on the appellant’s brief.

A. TIME FOR FILING

The appellant’s brief generally must be filed 35 days (5 weeks) after the record on appeal is filed with the appellate court. (If that day falls on a weekend or court holiday, your brief is due on the very next day that the court is open for business.) Supreme Court Rule 343(a). Please note that briefs in child custody appeals have shorter due dates. See Section VII, Part D. Some districts send written time schedules (referred to as “Docketing Order”) with the exact dates when the three briefs are due. Other districts (in particular, the First District which serves Cook County) do not send any kind of time schedule, but leave it to the parties to determine when their briefs are due. If you want to make sure, you can call the clerk’ s office after you file the record on appeal and ask when the appellant’s brief is due.

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If you receive a docketing order from the court (see Exhibit 27), read it carefully. It contains important information about the court’s particular rules, such as filing a motion for an extension of time to file your brief at least 14 days before the date the brief is due. This is a fairly common requirement among the districts of the appellate court, and you should check with the individual court to determine if there is a time limit for filing a request for an extension to file your brief. Another court might tell you that the statements of facts in your brief should be limited to 15 pages or that your brief will not be accepted until you return the record on appeal. Follow any instructions very carefully.

B. FORMAT OF THE BRIEF

Supreme Court Rule 341 gives very specific directions regarding how the appellant’s brief is to be written, which are set out in the following subsections. In order to simplify, the examples will be based on the following one-issue, slip-and- fall case: assume John Doe never made it into X Hardware to buy that product—he slipped and fell on ice in the parking lot and broke his arm. He sued X Hardware, and summary judgment was granted in its favor on the ground that landowners have no duty to remove natural accumulations of ice or snow from their property (which is the general rule in Illinois). Doe appealed because his theory was that the ice was not a natural accumulation, but, rather, was caused when snow, melted by the traffic of X Hardware’s customers, turned to ice and then formed into ruts and ridges. The following sections will discuss the format of Doe’s appellant’s brief which can be found in the Appendix at Exhibit 28.

1. Technical Matters.

Form of Briefs. The brief must be printed in black ink on white 8 1⁄2 by 11 inch paper and must have page numbers. The text must be double-spaced, but headings can be single-spaced. Margins must be 1 1⁄2 inches on the left, and 1 inch on the other three sides. The font (type

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size) must be 12 point in the text and footnotes. Footnotes, which are discouraged, may be single-spaced. Lengthy quotations are not favored. Briefs must be bound on the left side and the binding cannot obscure the text. If you do not have access to a binding machine, you can use 3 large staples to bind the brief on the left side. Supreme Court Rule 341(a).

Length of Briefs. In civil cases, the appellant’s brief is limited to 50 pages. You cannot lengthen your brief by changing the margins or font size. Supreme Court Rule 341(b)(1).

Certificate of Compliance. You must submit a signed certification that you have complied with these rules. A sample certificate of compliance is included in Exhibit 28. If you do not submit a certificate of compliance, the appellate court may not allow you to file your brief. Supreme Court Rule 341(c).

2. Brief Cover. The cover of the appellant’s brief must be white and contain the following information: the appellate court number; the appellate court district; the name of the case; the circuit court and the circuit court case number; the name of the circuit court judge; the title of the brief; and the author’s name, address, and phone number. Supreme Court Rule 341(d). If you are asking for oral argument (which the court may or may not grant), that request must appear on the front cover of every copy of the brief you file (Supreme Court Rule 352(a)).

3. Points and Authorities. This serves as a table of contents for the argument section of your brief and includes the captions of your argument(s), also known as the “point” or argument heading, followed by a list of the cases and statutes upon which you are relying. The page numbers are listed for each of these. List each “point” or argument heading, all of the cases cited in support of that “point,” and the page numbers. Although it is the first page in your brief, you do not prepare it until your brief is completed. These pages

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do not count toward the 50-page limit. Supreme Court Rule 341(h)(1).

4. Nature of the Case. This section is a short statement of what the case is about, what happened in the circuit court, whether the judgment is based on a jury verdict, and whether any question is raised on the pleadings, and, if so, the nature of that question. Supreme Court Rule 341(h)(2).

When possible, support each statement with a citation to the record, using “R.” for record, and “R.V1” for volume 1 of the record. In Exhibit 27, “R.V1, C2-6” means Record, Volume 1, pages C2 through C6. That is the volume number and page number where the complaint appears in the record.

5. Jurisdictional Statement. This section sets forth the Supreme Court Rule or other law conferring jurisdiction, the facts of the case bringing it within the applicable rule or law, and the date the order being appealed was entered. In the example, the appeal was from a final judgment entered on May 9, 2010, and, thus, the court has jurisdiction under Supreme Court Rule 301.

6. Issue(s) Presented For Review. In this section, the appellant sets out each issue he intends to argue in the brief. Supreme Court Rule 341(h)(3). In the product liability appeal discussed in earlier sections in which the circuit court had dismissed a strict liability count against X Hardware and later granted summary judgment in favor of both X Hardware and Acme, plaintiff John Doe would have two issues. In the slip-and-fall case, there would be only one issue, which might be stated as shown in the “Issue Presented For Review” in Exhibit 28.

7. Statement of Facts. In this section, the appellant sets out, as briefly as possible, the facts that are relevant to the issue raised. Supreme Court Rule 341(h)(6). This is not part of the argument, and the rules specifically provide that the facts must be stated “accurately and fairly

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without argument or comment, and with appropriate reference to the pages of the record on appeal.” Supreme Court Rule 341(e)(6). The requirement that you cite to the record is important for two reasons: (1) it enables the justices to quickly find the relevant evidence; and (2) it forces litigants to stick to the record and not cite “facts” that are not contained anywhere in the record and were never before the circuit court. Remember—you are claiming that error occurred in the circuit court, and you cannot argue that the judge committed an error if he/she did not see or hear the evidence you try to bring before the appellate court.

You must also bear in mind that sarcasm or biting remarks about the other parties, their attorneys, or the circuit court judge do not belong in a legal document. They are distracting and annoying to the court and, if offensive, might result in your brief being stricken.

Of course, the more issues there are and the longer the proceedings, the longer your statement of facts will be. You should be as thorough as possible, but omit facts that really have no relevance to your case. For example, the deposition filed in opposition to the motion for summary judgment in John Doe’s case might state that he had gone into the store to buy a wrench, but that’s not an important fact for purposes of this appeal. And you are telling a story—so while you cannot embellish with facts outside the record, you should put your facts in logical sequence, regardless of where they appear in the record. In John Doe’s case, Doe’s affidavit stating how he fell may have been filed before the affidavit stating that X Hardware owned and maintained the parking lot, but the story has a more logical flow if you first set out that X Hardware owned the parking lot.

8. Standard of Review. The appellant is required to include a precise statement of the applicable standard of review for each issue, with citation to authority, either in the discussion of the issue in the argument section or under a separate heading placed before the argument section. The standard

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of review tells the court how it must judge the issue before it, such as de novo review, which means the court need not given any deference to the circuit court’s ruling, or abuse of discretion, which means the court must affirm unless it feels the circuit court acted arbitrarily or capriciously. Supreme Court Rule 341(h)(3).

9. Argument. In this section, you tell the appellate court why, legally, the circuit court’s ruling was wrong. Supreme Court Rule 341(h)(7). This is, of course, the most difficult part for pro se litigants. Nevertheless, the appellate rules do apply to everyone, and they require citations to cases that support your argument. Supreme Court Rule 341(e)(7). And you must cite the exact page numbers in the case that supports your argument. Supreme Court Rule 6.

10. Conclusion. The conclusion of your brief is a short statement of what relief you want the court to grant. Supreme Court Rule 341(h)(8). In John Doe’s case, he is seeking reversal.

11. Certificate of Compliance. The attorney or pro se litigant submitting the brief must certify that the brief conforms with the form and length requirements of Supreme Court Rule 341(a) and (b). Proposed language is: I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is ___ pages. Supreme Court Rule 341(c).

12. Appendix. At the end of your brief, you must attach an appendix which includes: (1) a table of contents of the appendix; (2) all circuit court orders you are appealing from; (3) any key opinion, memorandum or findings of fact filed or entered by the trial judge; (4) any pleadings or other materials from the record that are the bases of the appeal or are pertinent to it; (5) your notice of appeal; and (6) a table

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of contents of the record on appeal. Supreme Court Rule 342(a). If you are raising issues with regard to pleadings—for example, if you are appealing from an order that dismissed your complaint with prejudice for failure to state a cause of action—the complaint should also be included in the appendix. The pages of the appendix must be numbered consecutively, beginning with the letter “A” preceding the number of each page. For example, A-1, A- 2, etc. If the appendix is lengthy, it should be bound separately and the cover of the separate appendix must be white (the same as the appellant’s brief cover). Supreme Court Rule 341(d). A sample Appendix can be found at Exhibit 29.

The table of contents of the record shall include a description of each document, order, or exhibit (e.g., complaint, judgment order), the date of filing or date of entry (where applicable), and the page number in the record on which it starts. With respect to the report of proceedings, the table of contents should show the name of each witness and the pages on which their direct examination, cross-examination, and redirect examination begins. Supreme Court Rule 342(a). An example of the table of contents of the record on appeal can be found at Exhibit 29.

C. FILING AND SERVING THE APPELLANT’S BRIEF

Supreme Court Rule 341(e) requires that you file 9 copies of the appellant’s brief in the appellate court. (Note: You must file 15 copies in a worker’s compensation appeal seeking review of an order of the Industrial Commission.) If you are filing it by mail, the brief is considered filed on the date it is postmarked by the U.S. Postal Service. Supreme Court Rule 373. If you use a third-party commercial carrier, such as FedEx or UPS, the brief is considered filed at the time you deliver it to the third- party commercial carrier provided it is delivered to the court within 3 days. Supreme Court Rules 12(b)(3) and 373. You must also serve 3 copies of the appellant’s brief on each of the other parties to the appeal. A notarized certificate of

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service must be filed with your brief showing proof of service on the other parties. A sample notice of filing and certificate of service can be found as part of Exhibit 30.

D. REFERENCE TO PARTIES

Parties should be referred to by their actual names. Supreme Court Rule 341(f). However, in juvenile, child protection, and mental health cases, the juvenile or recipient of mental health services shall be referred to by first name and last initial only. If the parents share the child’s last name, they also should be referred to by first name and last initial. Supreme Court Rule 341(f).

E. RESEARCHING THE LAW FOR YOUR BRIEF (for pro se litigants)

The books you will need to do research for your appeal are found in law libraries. All law schools have such libraries, and you should check to see if they are open to the public. Some public libraries have a basic collection, so that is another place you might look. In Chicago, the Cook County Law Library, located in the Richard J. Daley Center on the 29th Floor, is open to the public.

Lawyers spend several years learning the law and where to find it, and this guide cannot begin to compress all of that into the space available. However, here are a few hints that might help you:

1. Deciphering Legal Citations. Most of what will be relevant to your appeal will be cases and statutes. Decisions issued by the Illinois Supreme Court and the Illinois Appellate Court appear in two different volumes of books. The official versions are the Illinois Reports (Supreme Court cases) and the Illinois Appellate Reports (Appellate Court cases). Illinois Reports contains the earlier Supreme Court cases and is abbreviated as “Ill.”; Illinois Reports, Second, contains the more recent cases and is abbreviated as “Ill. 2d.” Illinois Appellate Reports, which contains the oldest appellate court cases, is cited as “Ill. App.”;

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Illinois Appellate Reports, Second, which contains more recent cases, is abbreviated as “Ill. App. 2d”; and Illinois Appellate Reports, Third, which contains the most recent cases, is abbreviated as “Ill. App. 3d.”

When you see a citation, the first number is the volume, the second is the page number within the volume. For example, the citation Hankla v. Burger Chef Systems, Inc., 93 Ill. App. 3d 909 (4th Dist. 1981), tells you that the case is in Volume 93 of the Illinois Appellate Reports, Third, starting on page 909, and that it was decided in 1981 by the Illinois Appellate Court, Fourth District.

There is also a collection of books, called regional reporters, which contain cases for a number of states. Illinois cases—the same cases that appear in the Illinois Reports and Illinois Appellate Reports—also appear in the regional reporter called the Northeast Reporter. Cases that appear there are identical, word for word, with the official reporters. The Northeast Reporter also has a second series of volumes; older cases appear in Northeast Reporter, abbreviated as “N.E.” and more recent cases appear in the Northeast Reporter, Second, abbreviated as “N.E.2d.” The courts require only that you give the official (Ill. and Ill. App.) cite. The required citation for the Hankla case would be: Hankla v. Burger Chef Systems, Inc., 93 Ill. App. 3d 909 (4th Dist. 1981). If you quote or cite to a specific part of the case, you must also include the page number where the quotation or statement occurs, e.g., Hankla v. Berger Chef Systems, Inc., 93 Ill. App. 3d 909, 911 (4th Dist. 1981) (holding that a landowner has no duty to remove natural accumulation in a parking lot). Supreme Court Rule 6.

Illinois statutes (laws enacted by the legislature) are published in several large volumes called Illinois Compiled Statutes (“ILCS”). That set is republished every other year, since the legislature frequently amends or adds to the statutes. The Supreme Court Rules are also published in those books. A citation to a statute would look like this: 735 ILCS 5/1-101. That

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translates as: Title 735, Act 5, Section 1- 101.

2. Finding the Law. There are two publications found in law libraries that are very helpful in finding cases relevant to the issue you want to address. One is West’s Illinois Digest, which is divided and indexed by topic (contracts, product liability, negligence, pretrial procedure, workers’ compensation, etc.). Cases are then categorized according to topic. To use West’s Illinois Digest, find the volume that includes the topic you want to research (say, product liability) and look through that volume’s index to find the issue you are interested in—for example, elements of the cause of action for product liability. The book gives a section number and, listed under that section, a number of Illinois cases that discuss the elements that must be pleaded to state a cause of action for strict product liability in Illinois.

West’s Smith-Hurd Illinois Compiled Statutes Annotated collects cases dealing with Illinois statutes. For example, to find cases about the statute of limitations for product liability actions, telling you how long you have to file suit, look in the volume that contains Title 735, Section 5/13-213. There, divided by topics, you will find most of the cases that have ever been decided involving that statute.

If you have access to the Internet, you can use the Google search engine to find cases. Go to http://scholar.google.com and click the legal opinions button. The case of Hankla v. Burger Chef Systems, Inc. can be found by typing in the citation 93 Ill. App. 3d 909. Please note that cases from Google Scholar do not indicate whether or not they are still good law. It does let you know if the case has been cited in other cases. Although Google Scholar is a useful tool, Google does not warrant that the information is accurate or complete.

For legal research, you can also try using http://www.lexisone.com, a free legal search engine from LEXIS/NEXIS®. However, it only searches for cases within the last 10 years. So you would not be able to find the

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Hankla v. Burger case using lexisone.com. If you searched for the Illinois Supreme Court case, In re C.N., 196 Ill. 2d 181 (2001), you could search on lexisone.com in a few ways. You could type in “C.N. and Diane N.” or type in the citation “196 Ill. 2d 181.” You could also type in the search term “termination pre/3 parental pre/2 right!” with a date restriction. Please note that although lexisone.com is free, if you want to ensure that the case is still good law, there is a fee for this service.

It seems pro se litigants are most frequently confronted with dismissals and summary judgments. There are several places you could look to find cases about these two procedures and the grounds for granting them.

Dismissal

You might find helpful cases in West’s Smith-Hurd Illinois Compiled Statutes Annotated under 735 ILCS 5/2-615 (dealing with dismissal for failure to state a cause of action) and 5/2-619 (dealing with dismissal on other grounds, such as the statute of limitations). Another helpful source is West’s Digest, under the topic “Pretrial Procedure,” subheading “involuntary dismissal.”

Summary Judgment

You might find helpful cases in West’s Smith-Hurd Illinois Compiled Statutes Annotated under 735 ILCS 5/2-1005, the statute that deals with summary judgment. In West’s Illinois Digest, you would look under the topic “Judgments,” subheading “summary proceedings.”

In all of these publications, the author gives a one-sentence description of what a case holds. Once you find a case that looks like it might be relevant to your appeal, go and read the actual case; don’t just rely on the description. Frequently you will find that, while the case does contain that statement as a general proposition, the facts of the case don’t help you at all, and may even hurt your case.

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For many of the general propositions of law, you will find 20 or 30 cases cited. For example, many cases say “summary judgment is a drastic remedy which should not be lightly granted.” You do not need to cite all the cases for that proposition. One or, at most, two will suffice. Citing 100 cases in your brief will not help you as much as citing 2 or 3 relevant cases that are similar to yours. See Illinois Supreme Court Rule 341(h)(7).

F. EXTENSIONSOFTIMEFOR FILING BRIEFS

Your initial reaction to all of the above may have been “How can I possibly get all that done in 5 weeks?” The short answer is, start researching as soon as you file your notice of appeal and use those first 9 weeks profitably. It is not impossible if you stick to 1 or 2 good issues. However, it is possible to get an extension of time, provided you ask for it in a timely manner. Supreme Court Rule 343(c). Some districts require that motions asking for more time to prepare your brief be filed no later than 2 weeks before the brief is due. Check each district’s local rules. In the First District, you must file a motion for an extension prior to the due date of the brief and you must ask for an extension of at least 14 days. 1st Dist. Local Rule 4(D). Generally, you would ask for an additional 35 days. In child custody cases, motions for extensions of time to file your brief are disfavored. Supreme Court Rule 311(a)(7).

Your motion should be short but must explain why you cannot complete your brief in the 5 weeks allowed. The motion must be supported by an affidavit or a verification. Supreme Court Rules 343(c), 361(f). It would be appropriate to tell the court that you are a pro se appellant, that you have no experience in the law, and explain your work schedule, and the daily amount of time you can work on your brief. If you or a family member have been ill or you have been out-of-town, that would also constitute a reason why you could not work on the brief. Give the court honest reasons, and, chances are, you will get most, if not all, of the time you requested.

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The motion follows the same rules, i.e., you also need a notice of filing, a certificate of service and a proposed order. A sample motion, with affidavit, notice of filing and certificate of service and proposed order can be found at Exhibit 31. An original and 3 copies are filed with the court. Again, provide the court with an extra copy (and a self-addressed, stamped envelope if you file by mail or by third-party commercial carrier) in order to retain a file-stamped copy for your files.

X. PREPARING AND FILING APPELLEE’S BRIEF

For a pro se litigant, acting as his or her own attorney in responding to an appeal, this section will consider what you must do as an appellee to preserve your right to file a response to the appellant’s brief.

A. APPEARING AS APPELLEE

Shortly after the appellant files the docketing statement in the appellate court, you must enter your appearance and pay a $15 fee as appellee. Supreme Court Rule 313. A simple appearance form is shown at Exhibit 32. If the district you are in does not have a pre-printed form, type your own using the sample as a guide. Check with the appellate court clerk’s office for appearance requirements.

B. CHECKING THE RECORD FOR COMPLETENESS

Once the appellant’s brief has been filed, you will be able to check out the record on appeal for use in preparing your appellee’s brief. If the appellant has returned the record to the appellate court, visit or write to the appellate court clerk and ask to take out the record. Your request must be in writing, and you will be responsible for paying any shipping costs. Some courts may not permit you to remove the record from the clerk’s office, in which case you must visit the clerk’s office and use the record there while preparing your appellee’s brief. You may unbind the record for purposes of photocopying;

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however, you must then restore it to its original condition. Supreme Court Rule 372. Do not write on, tab, underline, or highlight any documents in the record. As soon as your appellee’s brief is completed, the record must be returned to the appellate court. Some appellate court districts will not accept your appellee’s brief until the record is returned. When you return the record, always obtain a receipt.

If the appellant has the record, you may be able to arrange with the appellant for the record to be transmitted directly to you rather than being returned to the appellate court when the appellant’s brief is filed. Check with the appellate court clerk in your district to determine if this is possible. If it is possible, the appellant should, but is not required to, give notice to the appellate court that they have forwarded the record to you (see Section VI, Part D), and that you will be responsible for what happens to it. When you are finished with the record, return it to the appellant for use in preparing the reply brief. You should then notify the appellate court (and all other parties) that you have returned the record to the appellant. When you return the record, obtain a receipt.

Once you have the record, immediately check through it to see that it contains all the important pleadings and exhibits. If anything is missing, you may need to file a supplemental record. Supreme Court Rule 329. See Section VI, Part E above regarding supplementing the record on appeal.

C. TIME FOR FILING

The appellee’s brief must be filed 35 days (5 weeks) after the appellant’s brief is filed. Child custody briefs have much shorter due dates. See Section VII, Part D. As discussed in Section IX, Part A above, some districts send written time schedules with the exact dates when briefs are due. If you get such an order, read it carefully and follow all the special instructions. As with the appellant’s brief, it is possible to obtain an extension of time for filing the appellee’s brief. See Section IX, Part F for the proper procedure for filing a motion in the

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appellate court requesting an extension of time.

D. FORMAT OF THE BRIEF

The only sections that the appellee’s brief must include are the “Points and Authorities,” the argument, a conclusion setting forth the relief that the court should grant, namely, affirming the circuit court, and the Rule 341(c) certificate of compliance. Supreme Court Rules 341(i), 341(c). Otherwise, the appellee may rely on the appellant’s brief to inform the court of the nature of the case, the basis for jurisdiction, the issues presented for review, the standard of review, and the statement of facts. Usually, however, the appellee will want to state those in accordance with his point of view and will want to state additional facts that may have been omitted by the appellant. For this reason, this section will describe an appellee’s brief in detail. A sample appellee’s brief can be found at Exhibit 33.

1. Technical Matters. The technical requirements for the appellee’s brief are identical to those for an appellant’s brief, so you should read Section IX, Part B above.

2. The Cover. The cover of the appellee’s brief must be light blue and contain the same information as on the appellant’s brief cover—the difference being, of course, that you would title yours “Brief and Argument of Defendant-Appellee” (or “Plaintiff-Appellee,” depending on your position in the circuit court). Supreme Court Rule 341(d). If you want the court to grant oral argument (which it may or may not do), you must request it at the bottom of the cover, just as the appellant does. If the appellant has not requested oral argument, you may still do so.

3. Points and Authorities. This is prepared in the same manner as the points and authorities for an appellant’s brief. See Section IX, Part B. You would give a brief one-sentence statement of your argument and list all of the cases or statutes you have cited in support of your argument. Supreme Court Rule 341(h)(1).

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4. Nature of the Case. This section is optional. However, an appellee might want to phrase it in a manner more favorable to his position. See Exhibit 33 to see how the appellee in our John Doe slip-and-fall case might state it. Supreme Court Rule 341(h)(2).

5. Jurisdictional Statement. There is no need to include this in the appellee’s brief unless the appellant’s brief is inaccurate. Supreme Court Rule 341(h)(4)(ii).

6. Statement of the Issues. This section, too, is optional. See Exhibit 32 to see how the appellee in John Doe’s case phrased the issue in a manner favorable to it. Supreme Court Rule 341(h)(3).

7. Statement of Facts. This section, too, may be omitted if the appellant’s statement is accurate and complete. It was not accurate and complete in John Doe’s case, so X Hardware included its own statement of facts in the appellee’s brief. See Exhibit 33. Supreme Court Rule 341(h)(6).

8. Standard of Review. This section describes the applicable standard of review for each issue, with citation to authority. It can be located either in the discussion of the issue in the argument or under a separate heading placed before the discussion in the argument. See Supreme Court Rue 341(h)(3).

9. Argument. The appellee’s brief must contain this section to tell the appellate court why, legally, the circuit court’s ruling was correct and should be affirmed. Where to find that law was discussed above (see Section IX, Part E) and would apply equally to the appellee. In John Doe’s case, the defendant store owner could have discovered a number of favorable cases and written the argument in Exhibit 32. Supreme Court Rule 341(h)(7).

10. Conclusion. The appellee’s brief would also contain a conclusion, similar to that in the appellant’s brief (see Section IX,

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Part B), but asking the appellate court to affirm the ruling of the circuit court. Supreme Court Rule 341(h)(8).

11. Certificate of Compliance. The attorney or pro se litigant submitting the brief must certify that the brief conforms with the form and length requirements of Supreme Court Rule 341(a) and (b). See Section IX, Part B and Exhibit 33.

E. FILING AND SERVICE OF APPELLEE’S BRIEF

The method for filing and serving, and the number of copies required, is identical to that of an appellant: 9 copies filed in the appellate court (15 copies in a worker’s compensation appeal). If your brief is filed by mail, it is considered filed on the postmarked date by the U.S. Postal Service or the date of delivery to a third-party carrier (FedEx or UPS) so long as delivery is to occur within three business days. Don’t forget to include a notice of filing and notarized certificate of service (see Exhibit 30) showing that you served 3 copies on each of the other parties. Supreme Court Rule 341(e).

XI. PREPARING AND FILING APPELLANT’S REPLY BRIEF

The appellant is entitled to file a reply brief, responding to the arguments made by the appellee. Supreme Court Rule 341(j).

A. TIME FOR FILING

The appellant’s reply brief must be filed within 14 days after the appellee’s brief is filed, unless a request for an extension of time is made and granted. Child custody Reply briefs have shorter due dates. See Section VII, Part D.6.

B. FORMAT OF THE REPLY BRIEF

The reply brief is intended solely to give the appellant an opportunity to respond to arguments made by the appellee. You may not raise new matters not contained in your appellant’s brief, and you do not need to re- argue what you have already said in that

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brief. Supreme Court Rule 341(h)(7). Accordingly, the brief is limited to 20 pages. Supreme Court Rule 341(b)(1)).

The same technical rules discussed in Section IX, Part B apply. Your cover must be light yellow (Supreme Court Rule 341(d)) and identical to the appellant’s brief cover (including any request for oral argument), but would be captioned “Reply Brief of Plaintiff-Appellant” (or “Defendant- Appellant”).

Because this is a reply, the only section required is the “Argument” (in which you respond to the appellee’s arguments) and the certificate of compliance. Supreme Court Rule 341(c), (j). A sample reply brief can be found at Exhibit 34.

C. FILING AND SERVICE OF THE REPLY BRIEF

The method for filing and serving and the number of copies required is identical to that for an appellant’s or appellee’s brief: 9 copies filed in the appellate court (15 copies in a worker’s compensation appeal). If you are mailing the brief, it is considered filed on the postmarked date by the U.S. Postal Service. If you are using a third- party commercial carrier (FedEx/UPS), the brief is considered filed on the date of delivery to that carrier, so long as delivery is to occur within three business days. You will need a notice of filing and notarized certificate of service (see Exhibit 30) showing that you served 3 copies on each of the other parties. If you have the record, it must be returned to the appellate court on the date that your reply brief is due, whether or not you file a reply brief. If you forget to return it, you may be required to file a written explanation with the court accounting for your failure to return the record. Obtain a receipt when your return the record.

XII. ORAL ARGUMENT

Oral argument is most difficult to describe because there is no set format for the argument, and the amount of time each argument takes depends very much on how

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the court reacts to the arguments and what questions are asked. Accordingly, this section can only give you very generalized suggestions about conducting an oral argument should the appellate court grant your request for argument, a matter solely within the discretion of the appellate court. If the appellate court does grant oral argument, a notice of the date and time of the argument is sent to the parties.

A. COURTROOMDEMEANOR

When you come forward to present your argument, there will be a podium for you to stand at, with space to put your notes. In front of you will be a microphone and, beyond that, the bench where the three justices will sit. The microphone is to record the argument should the court want to refer to it later while considering the case. The argument also is made available on the website at http://www.state.il.us/court, click on “Courts” then “Appellate” and then “Appellate Court Oral Argument Audio.” The microphone does not amplify your voice for the justices, however, so you must speak clearly and distinctly. When people are nervous, they tend to speak very rapidly. You should try to keep that in mind and speak more slowly. Look up at the justices while you are making your argument and speak directly to them.

After you have finished your initial argument, your opponent will have an opportunity to speak. There will be a table off to the side where you can sit and listen. Making faces, shaking your head, sighing or engaging in other distracting behavior while your opponent is speaking will not impress the justices and is likely to annoy them. Sit quietly and impassively and listen, perhaps making notes of specifics points you want to respond to when you are given an opportunity for a brief rebuttal argument.

Unless the court orders otherwise, each party is allowed up to 20 minutes and the appellant is allowed up to 10 additional minutes to rebut the appellee’s argument. Supreme Court Rule 352(b). Check the

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local rules of each district to see whether they have shorter time allotments.

B. THE CONTENT OF YOUR ARGUMENT

You should assume that the justices have read your briefs. If there is a small group of facts particularly important to the case, summarize them briefly and continue with your argument. You will not have time to cover more than two or three important points, so if you have raised many issues in your brief, carefully consider which ones are your best points and argue those to the court. You might mention at the end of your argument that you will “stand on your brief” with regard to any points not orally argued. Simply rehashing your brief for the court will not be very helpful—if that is all the court wanted, it would not have scheduled oral argument; it would have simply relied on your brief. Also, reading from your brief or the record at length is prohibited. Supreme Court Rule 352(c).

It is usually a big mistake to write out or memorize a speech. The justices may ask questions and you do not want to waste time hunting through your written argument trying to find your place. It is helpful to use an outline of the points you want to make—most attorneys do—and include any record or case citations you want to bring to the court’s attention.

When the justices ask questions, they want a simple, direct answer immediately. Do not put the justices off by saying, “I’m getting to that,” or “I’ll address that problem later.” If you cannot answer the question, say so. If you do not understand the question, tell the justice you do not understand. He or she will usually rephrase it or explain what is wanted.

Do not exceed your allotted time. If you need a moment to conclude, ask the court for permission to do so and be very concise with your conclusion. If you have finished everything you wanted to say within that time, and the justices have no questions, sit down. Do not feel compelled to keep

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talking just because there is more time available.

If you have time left to reply to your opponent’s arguments, use it only to reply to specific points made by the other side. There is no point in going over your basic arguments again. While the other side is speaking, make a note of what you want to reply to and devote only two or three sentences to each of those points. The most effective rebuttal lasts no longer three or four minutes.

When you have finished with all of your arguments, ask the justices if they have any questions for you. If there are none, thank the court and leave the podium.

XIII. AFTER THE APPELLATE COURT ISSUES AN OPINION

Once all the briefs have been filed and oral argument has been held, the justices of the appellate court will issue a written opinion or order within a few months. If their decision is against you, your only recourse is to file a petition for rehearing (Supreme Court Rule 367) or file a petition for leave to appeal to the Illinois Supreme Court (Supreme Court Rule 315). This Section will focus on those pleadings.

A. PETITION FOR REHEARING

If the appellate court has decided against you and you believe the court overlooked some important fact or misunderstood the facts or the law, you may file a petition for rehearing within 21 days after the court’s opinion or order was filed. Supreme Court Rule 367.

The petition is limited to 27 pages, but you should be able to briefly state your point in less than 10 pages. It should contain a statement of your points and authorities. All of the technical requirements are the same as for any other brief (see Section IX, Part B above), including the certificate of compliance. Your cover must be light green and contain the same information as the cover for other briefs, except it would be titled “Petition for

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Rehearing.” Supreme Court Rule 341(d). Do not include a request for oral argument because re-argument is only permitted if the appellate court decides that it is necessary and not upon request of the parties.

The prevailing party may not file a response unless the appellate court issues an order requesting one.

B. PETITION FOR LEAVE TO APPEAL

If you decide you do not want to file a petition for rehearing in the appellate court but would like to ask for leave to appeal to the Illinois Supreme Court, then you must file a petition for leave to appeal (and a $25 filing fee) within 35 days after the appellate court files its opinion or order in your case. Supreme Court Rule 315(b).

If you filed a petition for rehearing and it is denied, you may also petition for leave to appeal to the Illinois Supreme Court.8 In that case, your petition for leave to appeal is due (along with the $25 filing fee) within 35 days after the appellate court denied your petition for rehearing. Supreme Court Rule 315(b).

There is one exception to the 35-day time limit – if the appellate court issued a Rule 23 order rather than an opinion, the party who prevailed can ask the appellate court to reissue the Rule 23 order as a published opinion by filing a motion within 21 days of its issuance. Supreme Court Rule 23(f). If that motion is granted, the nonmoving party has 35 days from the date of the order granting the motion to publish to file a petition for leave to appeal. Supreme Court Rule 315(b)(2).

1. Format of the Petition. There generally is no absolute right to appeal to the Illinois Supreme Court, and very few cases are accepted for review by the court.

8 There are other rules that allow for review by the Illinois Supreme Court, but discretionary review pursuant to Supreme Court Rule 315 is the most common. See, for example, Supreme Court Rules 20, 302, 316, 317.

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That court, in most cases, has discretion in deciding what it will hear on appeal, and your petition must convince the court that your case is one that it should hear, either because it involves a question of general importance in this State, or because the appellate court’s decision is in conflict with a decision of the supreme court, or because there is a conflict among the different districts of the appellate court. Supreme Court Rule 315(a).

If you are appealing from a decision of the Industrial Commission Division, the supreme court further requires that at least two justices of that division issue a statement that the case involves a substantial question that warrants consideration by the supreme court. Supreme Court Rule 315(a). Moreover, any such request must be made to the appellate court within the time to file the petition for rehearing; it cannot be filed after the denial of rehearing.

a. Technical Matters. Follow the same technical procedures as for all other briefs. Supreme Court Rule 315(d). See Section IX, Part B. In addition, you must attach, as an appendix to your petition, a copy of the opinion or order issued by the appellate court. See Exhibit 29. Supreme Court Rule 315(c). The petition cannot exceed 20 pages in length, excluding the appendix. See Exhibit 35 for a sample petition.

b. The Cover. The cover of a petition is white and should contain the same information that appears in the sample petition at Exhibit 35. The party seeking leave is called the “Petitioner” and the party who prevailed is called the “Respondent.”

A petition filed in a child custody case and any notice, motion, or pleading related thereto shall include the following statement in bold type at the top of the front page: THIS APPEAL INVOLVES A QUESTION OF CHILD CUSTODY, ADOPTION, TERMINATION OF PARENTAL RIGHTS OR OTHER MATTER AFFECTING THE BEST INTERESTS OF A CHILD.

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c. Prayer for Leave to Appeal. Your petition should begin with a short request for leave to appeal. See Exhibit 35.

d. Statement of Date Upon Which Judgment Was Entered. You must advise the court of the date of the appellate court opinion or order, whether a petition for rehearing was filed and, if so, when it was filed and when it was denied.

e. Points Relied Upon For Review. This section would tell the supreme court why it should grant leave to appeal. See Exhibit 35.

f. Remainder of the Petition. The rest of your petition should resemble your appellate brief in that it would have a statement of facts, a short argument stating why review is warranted and why the appellate court should be reversed, a conclusion asking the court to grant leave to appeal, and the certificate of compliance.

2. Filing and Service of the Petition. Twenty (20) copies of the petition for leave to appeal must be filed with the Illinois Supreme Court, at its Springfield location, accompanied by a certificate of service showing that you sent 3 copies to all opposing parties. You must include a $25 filing fee. If you would like a file-stamped copy for your files, include an extra copy with a self-addressed, stamped return envelope and a letter asking the clerk to return a file-stamped copy to you. A sample notice of filing and certificate of service can be found at Exhibit 36.

3. Responding to the Petition. If a petition for leave to appeal is filed, the party who prevailed in the appellate court may file an answer to the petition, which is due 14 days after the petition for leave to appeal is filed. Supreme Court Rule 315(f). The answer is limited to 20 pages in length. It should consist of a short argument telling the supreme court why the issues involved do not merit review. The cover of the answer should be light blue. Twenty (20) copies of the answer must be filed, along with a $15 filing fee, with the Illinois Supreme Court, in its Springfield location,

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accompanied by a certificate of service showing that you sent 3 copies to all other parties. If you would like a file-stamped copy for your files, include an extra copy with a self-addressed, stamped return envelope and a letter asking the clerk to return a file-stamped copy to you.

4. If the Petition is Granted. The supreme court will enter an order granting or denying the petition for leave to appeal. In most cases, the order will be entered during the first full week after the court’s term ends (terms begin the second Monday in September, November, January, March and May). If the supreme court grants leave to appeal, the record that was before the appellate court will automatically be transmitted to the supreme court. Supreme Court Rule 315(e). The parties will be permitted to file additional pleadings in the supreme court, and the time schedule for filing them begins to run from the date on which the petition is granted.

a. Notice of Election. Within 14 days after the petition is allowed, the party seeking review (the “appellant”) must file with the supreme court, and serve on opposing parties, a notice of election stating whether he or she elects to allow the petition for leave to appeal to stand as the appellant’s brief or whether he or she will file an appellant’s brief in lieu of or supplemental to the petition. Supreme Court Rule 315(h). A sample notice of election can be found at Exhibit 37.

b. Standing on the Petition as the Appellant’s Brief. If you elect to allow the petition for leave to appeal to stand as your appellant’s brief, you must file, with the notice of election, a complete table of contents (with page references) of the record on appeal and a statement of the applicable standard for review for each issue, with citation to authority, in accordance with Supreme Court Rule 341(h)(3). This is similar to what is required in the appellant’s brief filed in the appellate court. See Section IX, Part B.

The responding party (the “appellee”) must then decide if it wants to stand on its

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answer or if it wants to file an appellee’s brief. The responding party’s notice of election to stand on its answer or to file an appellee’s brief must be filed with the supreme court within 14 days after the due date for the appealing party’s notice of election if that party elects to stand on its petition. If the responding party decides to file an appellee’s brief, that brief is due 35 days from the date that the appealing party’s notice of election is due. Supreme Court Rule 315(h). The appellee’s brief would follow the format for appellee’s briefs filed in the appellate court, discussed in Section X.

c. If an Appellant’s Brief is Filed. If the appealing party elects to file an appellant’s brief, it is due 35 days (5 weeks) after the date of the order granting the petition for leave to appeal. Supreme Court Rule 315(h). Follow the same format for the appellant’s briefs discussed in Section IX.

The responding party has 14 days from the due date of the appellant’s brief to file its notice of election as to whether it intends stand on its answer to the petition as its brief or whether it intends to file an appellee’s brief. The notice would be similar to the notice of election at Exhibit 37. If an appellee’s brief will be filed, it is due within 35 days (5 weeks) after the appellant’s brief is due.

d. Reply Brief. As with an appeal to the appellate court, if the appellee files a brief, the appellant may file a reply within 14 days of the due date of the appellee’s brief. Supreme Court Rule 315(h). The format for a reply brief is discussed in Section XI.

The time for filing a brief in the supreme court may be extended by an order; the manner of requesting an extension is the same as was discussed in Section IX, Part F, except the motion would be filed in the supreme court and would contain the caption that appears in Exhibit 35. The procedures for filing motions in the supreme court are explained in detail in Supreme Court Rule 361 and should be consulted.

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APPENDIX

Clerks’ Offices – Illinois Supreme Court and Appellate Court…………………………………………A-1 Timelines

Appeals from Final Judgments or Orders…………………………………………………………A-2 Interlocutory Appeals By Permission (Rule 306)………………………………………………..A-3 Interlocutory Appeals By Permission (Rule 308)………………………………………………..A-4 Interlocutory Appeals As of Right (Rule 307(a)) ………………………………………………… A-5 Interlocutory Appeals As of Right – Temporary Restraining Orders (Rule 307(d))……..A-6 Appeals from Final Child Custody Judgments or Orders ……………………………………. A-7 Interlocutory Appeals Affecting the Care and Custody of an Unemancipated Minor….A-8 Interlocutory Appeals as of Right under the Adoption Act……………………………………A-9 Petitions for Leave to Appeal – Illinois Supreme Court (Rule 315) ………………………. A-10

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Exhibit No. 1
2
3
4
5
6
7

8

9 10 11 12 13 14

Sample Document

Notice of Appeal

Notice of Filing and Certificate of Service

Motion for Leave to File Late Notice of Appeal

Affidavit

Notice of Filing and Certificate of Service

Draft Order

Petition for Leave to Appeal and Supporting Legal Memorandum Pursuant to Supreme Court Rule 306

Docketing Statement
Notice of Change of Address
Letter to Court Reporter
Notice of Filing Report of Proceedings Notice of Motion and Certificate of Service Motion to Certify Report of Proceedings Stipulation

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  1. 15  Motion to Extend Time to File Transcript of Proceedings with Affidavit
  2. 16  Agreed Statement of Facts
  3. 17  Request for Preparation of Record on Appeal – First District
  4. 18  Letter to Circuit Court to Prepare Record on Appeal
  5. 19  Notice of Filing Record on Appeal
  6. 20  Notice of Transmitting Record on Appeal
  7. 21  Stipulation for Preparation of Supplemental Record
  8. 22  Request to Prepare Supplemental Record – First District
  9. 23  Motion for Leave to File Supplemental Record
  10. 24  Affidavit Regarding Preparation of Supporting Record Pursuant to Supreme Court Rule 328
  11. 25  Petition for Administrative Review of an Order of the Illinois Human Rights Commission Docket No. ______________
  12. 26  Notice of Filing of Petition for Administrative Review
  13. 27  Docketing Order – Second District
  14. 28  Appellant’s Brief
  15. 29  Appendix to Appellant’s Brief
  16. 30  Notice of Filing and Certificate of Service of Appellant’s Brief
  17. 31  Motion to Extend Time for Filing Brief, Affidavit, Notice of Filing/Certificate of Service and Proposed Order
  18. 32  Appellee’s Appearance Form
  19. 33  Appellee’s Brief
  20. 34  Appellant’s Reply Brief
  21. 35  Petition for Leave to Appeal
  22. 36  Notice of Filing and Certificate of Service for Petition for Leave to Appeal
  23. 37  Notice of Election

First revision October 1, 1999 Second revision April 30, 2011

Supreme Court Building 200 East Capitol Springfield, IL 62701 (217) 782-2035

Michael A. Bilandic Building 160 North LaSalle Street Suite 2000
Chicago, IL 60601

(312) 793-1332

First District
160 North LaSalle Street Suite 1400
Chicago, IL 60601
(312) 793-5484

Second District Appellate Court Building 55 Symphony Way Elgin, IL 60120
(847) 695-3750

Third District
1004 Columbus Street Ottawa, IL 61350 (815) 434-5050

The Appellate Court of Illinois

Fourth District
201 West Monroe Street P.O. Box 19206 Springfield, IL 62794-9206 (217) 782-2586

Fifth District
14th & Main Streets Mt. Vernon, IL 62864 (618) 242-3120

Clerks’ Offices
The Supreme Court of Illinois

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A-1

Document to be Filed

Notice of Appeal (filed in circuit court)

Notice of Filing of Notice of Appeal (filed in appellate court)

Docketing Statement (filed in appellate court) Report of Proceedings (filed in circuit court) Record (filed in appellate court)
Appellant’s Brief (filed in appellate court) Appellee’s Brief (filed in appellate court)

Reply Brief (filed in appellate court)

Due Date

Within 30 days from date final judgment is entered or if post-judgment motion filed, 30 days after entry of order disposing of last pending post-judgment motion

Within 7 days after filing Notice of Appeal in circuit court

Within 14 days after filing Notice of Appeal Within 49 days after filing Notice of Appeal Within 63 days after filing Notice of Appeal Within 35 days after filing Record

Within 35 days after due date of Appellant’s Brief

Within 14 days after due date of Appellee’s Brief

TIMELINE1

Appeals from Final Judgments or Orders

(Supreme Court Rules 301, 303 and 304)

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

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A-2

TIMELINE1 Interlocutory Appeals By Permission

(Supreme Court Rule 306)

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Document to be Filed2

Petition for Leave to Appeal (PLA) and Legal Memorandum

Docketing Statement Supporting Record

Answer and Supplementary Supporting Record (if any)

Due Date

Within 30 days of entry of circuit court order

Due at time PLA is filed
Due at time PLA is filed
Within 21 days of the filing of PLA

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If Leave Allowed

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Document to be Filed

Additional Record (if any)

Appellant’s Brief or notification of election to allow PLA to stand as brief

Appellee’s Brief or notification of election to allow Answer to stand as brief

Reply Brief

Due Date

Within 35 days of order granting leave Within 35 days of order granting leave

Within 35 days of due date of Appellant’s Brief or election

Within 14 days of due date of Appellee’s Brief or election

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

2 All referenced filings are in the appellate court. rev. 5/11

A-3

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TIMELINE1 Interlocutory Appeals By Permission

(Supreme Court Rule 308)

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Document to be Filed2

Application for Leave to Appeal

Docketing Statement Supporting Record

Answer in Opposition and Supplementary Supporting Record (if any)

Due Date

Within 14 days of entry of order in the trial court or the making of the prescribed statement by the trial court, whichever is later

Due at time Rule 308 application is filed Due at time Rule 308 application is filed

Within 14 days of the due date of the application

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If Leave Allowed

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Document to be Filed

Additional Record (if any) Appellant’s Brief Appellee’s Brief
Reply Brief

Due Date

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

2 All referenced filings are in the appellate court. rev. 5/11

A-4

Within 35 days of order granting leave
Within 35 days of order granting leave
Within 35 days of due date of Appellant’s Brief Within 14 days of due date of Appellee’s Brief

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Document to be Filed

Notice of Interlocutory Appeal (filed in circuit court)2

Notice of Filing Notice of Interlocutory Appeal (filed in appellate court)

Docketing Statement (filed in appellate court)

Record (filed in appellate court) Appellant’s Brief (filed in appellate court) Appellee’s Brief (filed in appellate court) Reply Brief (filed in appellate court)

Due Date

Within 30 days of entry of interlocutory order

Within 7 days after filing Notice of Interlocutory Appeal in circuit court

Within 7 days after filing Notice of Interlocutory Appeal

Within 30 days of entry of interlocutory order Within 7 days of filing Record
Within 7 days of filing of Appellant’s Brief Within 7 days of filing of Appellee’s Brief

TIMELINE1 Interlocutory Appeals As of Right

(Supreme Court Rule 307(a))

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

2 There are special rules if the interlocutory order is entered ex parte. See Supreme Court Rule 307(b). A-5

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TIMELINE1
Interlocutory Appeals As of Right – Temporary Restraining Orders

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Document to be Filed

Notice of Interlocutory Appeal (filed in circuit court)

Notice of Filing Notice of Interlocutory Appeal (filed in appellate court)

Petition and supporting legal memorandum (if any) (filed in appellate court)

Docketing Statement (filed in appellate court) Supporting Record (filed in appellate court)

Respondent’s Memorandum (filed in appellate court)

Decision

Due Date

Within 2 days of entry or denial of order from which review is being sought

Within 2 days of entry or denial of order from which review is being sought

Within 2 days of entry or denial of order from which review is being sought

Due at time of filing Notice of Interlocutory Appeal and Petition

Due at time of filing Notice of Interlocutory Appeal and Petition

Within 2 days of filing of Petition, any legal memorandum and Supporting Record

Within 5 days after filing of Respondent’s Memorandum

(Supreme Court Rule 307(d))

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

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A-6

TIMELINE1

Appeals from Final Child Custody Judgments or Orders

(Supreme Court Rules 301 and 304(b)(6))

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Document to be Filed

Notice of Appeal (filed in circuit court)

Notice of Filing of Notice of Appeal (filed in the appellate court)

Docketing Statement (filed in the appellate court)

Record including the report of the proceedings (filed in the appellate court)

Appellant Brief (filed in the appellate court) Appellee Brief (filed in the appellate court)

Reply Brief (filed in the appellate court)

Due Date

Within 30 days from date final judgment is entered or if post-judgment motion filed, 30 days after entry of order disposing of last pending post-judgment motion

Within 7 days after filing Notice of Appeal in circuit court

Within 14 days after filing Notice of Appeal Within 35 days after filing Notice of Appeal

Within 21 or 14 days after filing Record depending on appellate court district

Within 21 or 14 days after due date of Appellant Brief depending on appellate court district

Within 7 or 14 days after due date of Appellee Brief depending on appellate court district

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1 Note – The due dates are set forth in the Supreme Court Rules and by the local rules and administrative orders of each appellate court district, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.” Also, check the local rules in your District for due dates of briefs, also accessible at http://www.state.il.us/court, click on “Courts,” then “Appellate,” and the “Appellate Court Local Rules.”

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A-7

TIMELINE1
Interlocutory Appeals Affecting the Care and Custody of an Unemancipated Minor

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Document to be Filed2

Petition for Leave to Appeal (PLA) and Legal Memorandum (if any)

Docketing Statement

Supporting Record
Answer or Responding Memorandum

Document to be Filed

Additional Record

Appellant’s Brief or notification of election to allow PLA to stand as brief

Appellee’s Brief or notification of election to allow Answer to stand as brief

Due Date

Within 14 days of the entry of the interlocutory order

Due at time PLA and Legal Memorandum filed

Due at time PLA and Legal Memorandum filed

Within 5 business days of the filing of the PLA 3

(Supreme Court Rule 306(a)(5))

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If Appeal Allowed

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Due Date

Within 35 days of order allowing PLA

Within 21 or 14 days of filing Record depending on appellate court district

Within 21 or 14 days of filing of Appellant’s Brief or election depending on appellate court district

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1 Note – The due dates are set forth in the Supreme Court Rules and by the local rules and administrative orders issued by each appellate court district, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.” Also, check the local rules in your District for the due dates of briefs, also accessible at http://www.state.il.us/court, click on “Courts,” then “Appellate,” and then “Appellate Court Local Rules.”

2 All referenced filings are in the appellate court.
3 A business day excludes weekends and court holidays.

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A-8

TIMELINE1
Interlocutory Appeals as of Right under the Adoption Act

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Document to be Filed

Notice of Interlocutory Appeal (filed in circuit court)

Notice of Filing Notice of Interlocutory Appeal (filed in appellate court)

Docketing Statement (filed in appellate court)

Record (filed in appellate court) Appellant’s Brief (filed in appellate court) Appellee’s Brief (filed in appellate court) Reply Brief (filed in appellate court)

Due Date

Within 30 days of entry of interlocutory order

Within 7 days after filing Notice of Interlocutory Appeal in circuit court

Within 7 days after filing Notice of Interlocutory Appeal

Within 30 days of entry of interlocutory order Within 7 days of filing Record
Within 7 days of filing of Appellant’s Brief Within 7 days of filing of Appellee’s Brief

(Supreme Court Rule 307(a)(6))

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

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A-9

TIMELINE1
Petitions for Leave to Appeal – Illinois Supreme Court

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Document to be Filed

Petition for Leave to Appeal (PLA)2

Answer (not mandatory)

Document to be Filed

Appellant’s Notice of Election

Appellee’s Notice of Election (if appellant elects to allow PLA to stand as brief of appellant)

Appellant’s Brief (if appellant elects to file brief)

Appellee’s Notice of Election (if appellant elects to file Appellant’s Brief)
Appellee’s Brief (if appellant elects to stand on PLA and appellee elects to file brief)

Appellee’s Brief (if Appellant’s Brief is filed and appellee elects to file an Appellee’s Brief)

Reply Brief (if Appellee’s Brief filed)

Due Date

Within 35 days after entry of judgment by appellate court or if timely petition for rehearing filed in appellate court, within 35 days of order denying petition for rehearing or, if petition for rehearing is granted, within 35 days of entry of judgment on rehearing

Within 14 days after expiration of time for filing PLA

(Supreme Court Rule 315)

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If Petition Allowed

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Due Date

Within 14 days of date PLA allowed

Within 14 days of due date of the Appellant’s Notice of Election

Within 35 days of date PLA allowed

Within 14 days of due date of Appellant’s Brief

Within 35 days of the due date of the Appellant’s Notice of Election

Within 35 days of due date of Appellant’s Brief Within 14 days of due date of Appellee’s Brief

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1 Note – The due dates are set forth in the Supreme Court Rules, which are amended from time to time. Always consult the current version of the Rules which can be found at the Court’s website at http://www.state.il.us/court, click on “Rules.”

2 If the appellate court issued a Rule 23 Order, and the appellant has timely moved to publish, there is a special rule as to the due date for the Petition for Leave to Appeal. See Supreme Court Rule 315(b)(2).

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A-10

EXHIBIT 1

APPEAL TO THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

FROM THE CIRCUIT COURT FOR THE NINETEENTH JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS

JOHN DOE, ) ) Plaintiff-Appellant, ) )

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v.

) Circuit Court No. XXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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a corporation, Defendants-Appellees.

) ) )

NOTICE OF APPEAL

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Plaintiff-Appellant John Doe, pro se, appeals to the Appellate Court of Illinois for the Second District from the following orders entered in this matter in the Circuit Court of Lake County:

  1. The order of September 10, 2009, dismissing with prejudice Count II of his complaint, alleging strict product liability against Defendant-Appellee X Hardware Store; and
  2. The order of May 9, 2010, granting summary judgment in favor of Defendants- Appellees Acme Manufacturing Company and X Hardware Store and against Plaintiff-Appellant John Doe on all remaining claims of the complaint.

By this appeal, Plaintiff-Appelant will ask the Appellate Court to reverse the orders of September 10, 2009 and May 9, 2010, and remand this cause with directions to reinstate all counts of the complaint for trial on the merits as to all claims, or for such other and further relief as the Appellate Court may deem proper.

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(signature)_________________________________ John Doe
Plaintiff-Appellant, pro se

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

EXHIBIT 2

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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NOTICE OF FILING OF NOTICE OF APPEAL1

TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on May 12, 2010, the undersigned filed the NOTICE OF APPEAL of Plaintiff-Appellant John Doe with the Clerk of the Circuit Court of Lake County, Illinois, a copy is hereby served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

CERTIFICATE OF SERVICE BY MAIL

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING OF NOTICE OF APPEAL and NOTICE OF APPEAL upon counsel listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on May 12, 2010.

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Signed and sworn to before me on this 12th day of May, 2010.

___________________________ Notary Public

(signature)_________________________________ John Doe

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1 This Notice of Filing would be used when the document is personally delivered to the court. If the document is filed using the U.S. mail or a third-party commercial carrier, see the Notice of Filing and Certificate of Filing/Service set forth in Exhibit 36.

EXHIBIT 3

NO. [to be inserted by Appellate Court]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

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MOTION FOR LEAVE TO FILE LATE NOTICE OF APPEAL

Plaintiff-Appellant John Doe, pro se, moves this Court pursuant to Supreme Court Rule 303(d) for leave to file a late notice of appeal. In support thereof, John Doe states as follows:

1. The circuit court entered a final order on May 9, 2010, granting summary judgment in favor of Defendants-Appellees Acme Manufacturing Company and X Hardware Store.

  1. Plaintiff’s notice of appeal was due on June 8, 2010.
  2. Plaintiff was unable to file his notice of appeal on June 8, 2010 because [INSERT

REASON].

4. Plaintiff has filed this motion within 30 days of the 30-day period provided by Supreme Court Rule 303(d).

5. Attached to this motion is the affidavit of John Doe in support of this motion and Plaintiff’s proposed Notice of Appeal.

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EXHIBIT 3

WHEREFORE, Plaintiff-Appellant John Doe respectfully prays for entry of an order granting him leave to file his notice of appeal and directing the clerk of this Court to transmit the notice of appeal to the circuit court for filing.

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(signature)_________________________________ John Doe
Plaintiff-Appellant, pro se

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

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STATE OF ILLINOIS )
) SS

COUNTY OF COOK )

3.

4. REASON].

Plaintiff’s notice of appeal was due on June 8, 2010.
Plaintiff was unable to file his notice of appeal on June 8, 2010, because [INSERT

EXHIBIT 4

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AFFIDAVIT

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John Doe, being first duly sworn on oath, deposes and states as follows:
1. I am the Plaintiff-Appellant in this appeal.
2. The circuit court entered a final order on May 9, 2010, granting summary

judgment in favor of Defendants-Appellees Acme Manufacturing Company and X Hardware Store.

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FURTHER AFFIANT SAYETH NAUGHT.

Subscribed and sworn to before me on this _____ day of ______________, 20____.

________________________ Notary Public

__________________________________________ John Doe

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JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

EXHIBIT 5

NO. [to be inserted by Appellate Court]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.NOTICE OF FILING

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TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [INSERT DATE], the undersigned filed with the Clerk of the Appellate Court of Illinois, Second District, MOTION FOR LEAVE TO FILE LATE NOTICE OF APPEAL of Plaintiff-Appellant John Doe, a copy is hereby served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

CERTIFICATE OF SERVICE BY MAIL

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING, MOTION FOR LEAVE TO FILE LATE NOTICE OF APPEAL and PROPOSED ORDER upon counsel listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [INSERT DATE].

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Signed and sworn to before me
on this _____ day of _________, 20__.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 6

NO. [to be inserted by Appellate Court]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a )

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corporation, and X HARDWARE STORE, a corporation,

Defendants-Appellees.

)

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.ORDER

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This matter coming on to be heard on the motion of Plaintiff-Appellant John Doe for leave to file a late notice of appeal, notice having been given and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that the motion of Plaintiff-Appellant for leave to file a late notice of appeal is granted / denied.

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__________________________________________ Justice

__________________________________________ Justice

__________________________________________ Justice

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Prepared by:
John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

SAM SMITH, Plaintiff-Respondent,

v.

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )
  • )  Circuit Court No. XXXXXX )

EXHIBIT 7

No. _______
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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JOHN DOE, ) ) Defendant-Petitioner. )

PETITION FOR LEAVE TO APPEAL AND SUPPORTING LEGAL MEMORANDUM PURSUANT TO SUPREME COURT RULE 306

Defendant-Petitioner, John Doe, petitions this Court for leave to appeal pursuant to Supreme Court Rule 306(a)(2), from the order of the circuit court entered on May 19, 2010, denying Defendant’s motion to transfer this case from Lake County to Cook County, Illinois on the basis of forum non conveniens.

STATEMENT OF FACTS

Plaintiff, Sam Smith, a California resident, is the owner of farmland located in Lake County, Illinois. SR 2. On April 1, 2010, Smith entered into a contract with Defendant John Doe in which Smith agreed to sell and Doe agreed to purchase the farmland at a purchase price of $50,000. SR 15. Doe is a resident of Cook County, Illinois. SR 2. The purchase contract was negotiated in the Cook County office of Michael Mason, the real estate broker. SR 30. Present during the negotiations and signing of the contract were Mason, Smith and Doe. SR 31.

Under the terms of the contract, Doe was required to provide Mason with a cashier’s check in the amount of $5,000 by April 15, 2010 to be held in an escrow

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EXHIBIT 7
account held by Mason. Doe also agreed to sign a promissory note for the balance and to

provide a guaranty signed by his father-in-law, Rick Jones, a business acquaintance of Smith, at the closing. The closing was to occur in Cook County on May 21, 2010. SR 16. Doe made the payment on April 15, 2010, but on May 1, 2010, Rick Jones suffered a stroke and would not be able to sign the guaranty. Doe told Morris that Doe’s father would sign the guaranty and Morris relayed that information to Smith. Smith told Morris that he would not agree to the substitution and that the deal was over. He also told Morris that he had received a better offer from someone else. After Doe threatened to sue, Smith filed a declaratory judgment action in Lake County, Illinois, on May 10, 2010 seeking a declaration that Doe failed to comply with the terms of the contract and, thus, Smith was not obligated to sell the farmland property to him. SR2-16.

On May 17, 2010, Doe moved to transfer venue to the circuit court in Cook County, Illinois, pursuant to the doctrine of forum non conveniens. SR 25. Doe argued that the proper forum should be Cook County, Illinois because that is where the contract was negotiated and the documentary evidence exists. Cook County also is where one of the parties and one of the key witnesses reside. SR 25-30. Doe argued that the testimony of Mason will be key to his defense and that Mason will not be able to travel to Lake County due to a medical condition. SR 28. Doe attached to his motion the affidavits of Mason and Mason’s physician setting forth the details of Mason’s medical condition and his travel limitations. SR 32, SR 34. (In his affidavit, Mason also stated that Smith told him he did not want to go through with the sale to Doe because he had received a better offer from someone else.) Doe further argued that the Plaintiff’s chosen forum should not be given preference because the Plaintiff does not reside there (he resides in

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EXHIBIT 7
California) and the only connection the lawsuit has with Lake County is that the farmland

is located there. SR 29.
Smith responded to the motion to transfer venue on May 26, 2010, arguing that

the plaintiff’s choice of forum outweighs any other facts. In addition, he argued that the location of the farmland should be given weight. SR 36-40. Doe filed a reply (SR 41- 43), and the circuit court heard argument on June 10, 2010. The court denied Doe’s motion to transfer venue. SR 45.

REASONS PETITION FOR LEAVE TO APPEAL SHOULD BE GRANTED

The denial of a motion to transfer based upon the doctrine of forum non conveniens is reviewed on the abuse of discretion standard. E.g., Wagner v. Eagle Food Centers, Inc., 398 Ill. App. 3d 354, 359 (1st Dist. 2010). This Court should grant leave to appeal in this case because the circuit court abused its discretion in denying Defendant’s motion to transfer this case to Cook County from Lake County.

The doctrine of forum non conveniens is an equitable doctrine designed to promote fair play between the litigants. E.g., Torres v. Walsh, 98 Ill. 2d 338, 351 (1983); Golden Rule Ins. Co. v. Manasherov, 200 Ill. App. 3d 961, 966 (5th Dist. 1990). Under this doctrine, “a court may decline to exercise jurisdiction of a case whenever it appears that there is another forum with jurisdiction of the parties in which trial can be more conveniently had.” Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223 (1987).

The decision to grant or deny a forum non conveniens motion involves a balancing of the private interest factors affecting the convenience of the parties and the public interest factors affecting the administration of the courts. Bland, 116 Ill. 2d at 224, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). A further consideration

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EXHIBIT 7
is the plaintiff’s choice of forum. That choice, however, is entitled to less deference

when the plaintiff is not a resident of the chosen forum. E.g., Peile v. Skelgas, Inc., 163 Ill. 2d 323, 337-38 (1994); Bland, 116 Ill. 2d at 227-28.

Here, the circuit court erred in denying Defendant’s motion to transfer. The only relationship that Lake County has with the underlying dispute is that it was the forum choice of a non-resident plaintiff and it is the situs of the property that was the subject of the sale. But Plaintiff’s choice of form is not entitled to significant weight because Plaintiff is not a resident of Lake County and was not a resident of that county at any time relevant to the instant dispute. See, e.g., Peile, 163 Ill. 2d at 337-38; Bland, 116 Ill. 2d at 227-28. Plaintiff resides in California and will have to travel regardless of where the case is litigated in Illinois. Indeed, it would seem that Cook County would be a more convenient forum for Plaintiff because Chicago is a major transportation hub and is likely to be the location where Plaintiff will arrive when traveling to Illinois for the trial.

Transfer to Cook County also is warranted because of other private interest factors. The dispute between the parties centers on their performance of a contract that was negotiated and executed in Cook County, Illinois. Most of the proofs and witnesses hale from Cook County. Mason, the chief witness in the case, would be subject to compulsory process should he refuse to comply with the trial subpoena. While his medical condition would not prohibit him from attending the trial, it would make it quite difficult for him to attend a trial in another county. See Peile, 163 Ill. 2d 323 (reversing denial of motion to transfer on grounds of forum non conveniens where nominal connections to forum chosen by plaintiff and plaintiff was not resident of chosen forum); Bland, 116 Ill. 2d 217 (same).

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EXHIBIT 7
As to the public factors, which are of lesser weight than the private interest factors

(Washington v. Illinois Power Co., 144 Ill. 2d 395, 399 (1991)), Cook County has a greater interest in the controversy. The real estate contract was negotiated and executed there, and Doe performed his contractual payment obligation there. Cook County has an interest in enforcing the contracts of its residents. See Golden Rule, 200 Ill. App. 3d at 967-68 (finding forum has localized interest when product, insurance policy, purchased there). Cook County’s interest is further evidenced by the fact that the $5,000 escrow was held in Cook County and the real estate closing was to occur in Cook County.

The overriding purpose of the doctrine of forum non conveniens is convenience to the parties, the witnesses and the court. See Franklin v. FMC Corp., 150 Ill. App. 3d 343, 349 (1st Dist. 1986). Under the facts of this case, that purpose and the ends of justice are best served by a transfer of this cause to Cook County, Illinois. See Washington, 144 Ill. 2d at 399. The trial court clearly erred in denying Defendant Doe’s motion to transfer and this Court should grant Defendant leave to appeal that denial.

PRAYER FOR LEAVE TO APPEAL

Defendant-Petitioner John Doe pro se, pursuant to Illinois Supreme Court Rule 306(a)(2), respectfully prays that this Court grant leave to appeal from the order of the circuit court entered on June 10, 2010, denying Defendant’s motion to transfer this case from Lake County to Cook County, Illinois on the basis of forum non conveniens.

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Dated: July 9, 2010

John Doe
(address & telephone no.)

Respectfully submitted,

________________________ John Doe, pro se Defendant-Petition

JOHN DOE, Plaintiff-Appellant,

v.

  • )  Appeal from ____________ County
  • )  Circuit No. _____________
  • )  Trial Judge _____________
  • )  Date of Notice of Appeal _________
  • )  Date of Judgment _______________
  • )  Date of Order on Postjudgment

a corporation, Defendants-Appellees.

EXHIBIT 8

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page73image6040

ACMEMANUFACTURINGCOMPANY, a corporation, and X HARDWARE STORE, )

)

) ) )

Motion________________________

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DOCKETING STATEMENT (Civil)

page73image9328

1. Is this a cross-appeal, separate appeal, joining in a prior appeal, or related to another appeal which is currently pending or which has been disposed of by this Court? If so, state the docket number(s) of the other appeal(s): ____________________________________________

_____________________________________________________________________________

2. If any party is a corporation or association, identify any affiliate, subsidiary, or parent group: _______________________________________________________________________ [IF NOT APPLICABLE, STATE “NOT APPLICABLE”]

3. Full name of appellant filing this statement: ___________________________________

Counsel on Appeal or Pro Se Appellant

For appellant filing this statement:

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Name: Address:

Telephone:

___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ________________________; Fax: ______________________________

4. Counsel on Appeal
For appellees (if there are multiple appellees represented by different counsel, identify

separately):

Name: Address: Telephone:

___________________________________________________________ ___________________________________________________________ _________________________; Fax:______________________________

EXHIBIT 8

5. Court reporters (if more space is needed, use other side):

page74image1640

Name: Address: Telephone:

____________________________________________________________
____________________________________________________________
____________________________________________________________

Approximate duration of trial court proceedings to be transcribed: ________________________ Can this appeal be accelerated? ___________________________________________________

6. Briefly state the Supreme Court Rule, or other law, which confers jurisdiction upon the reviewing Court; the facts of the case which bring it within this rule or other law; and the date that the order being appealed was entered and any other facts which are necessary to demonstrate that the appeal is timely:

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7. Nature of case: Administrative Review Contract
Estates

Personal Injury Tort
Juvenile

______ Domestic Relations Child Custody or Support

______ Product Liability
______ Forcible Detainer
______ Other: _______________________ ______

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8. Briefly describe the nature of the case and the result in the trial court, and set forth any reasons for an expedited schedule:

9. State the general issues proposed to be raised:

I, as appellant pro se [or as attorney for the appellant], certify that on [DATE], I made a written request to the Clerk of the Circuit Court to prepare the record, and on [DATE], I made a written request to the court reporter to prepare the transcripts.

___________________________         ____________________________________
_____
_____
_____
_____

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Date

Appellant, pro se (or Attorney for Appellant)
In lieu of a reporter’s signature I have attached the written request to the court reporter to

prepare the transcript.

___________________________         ____________________________________

Date Appellant, pro se (or Attorney for Appellant)

EXHIBIT 9

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page75image1872

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page75image5584

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

page75image7480

NOTICE OF CHANGE OF ADDRESS

PLEASE TAKE NOTICE of the following change of address for John Doe, Plaintiff- Appellant, pro se, in the above-captioned matter.

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John Doe
[NEW ADDRESS]

Prepared by:
John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

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EXHIBIT 10

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Name of Court Reporter Address

Re: John Doe v. Acme Manufacturing Company, et al. Circuit Court No. __________________

Dear __________________:

Confirming our conversation of [INSERT DATE], I have requested preparation of transcripts of proceedings held in the above-referenced matter before Judge James Smith on September 10, 2009, and May 9, 2010, to be included in the record on appeal. [If you will be filing the transcripts with the court, add: Please send a Supreme Court Rule 323(b) letter to opposing counsel, with a copy to me, confirming that the transcript has been prepared. His/her address is: [INSERT NAME AND ADDRESS].]

The appeal was [will be] filed on [by] June 8, 2010.

I understand that a deposit of $_______________ is required, and my check for that amount is enclosed. You indicated that the transcripts would be ready on or about _____________________________, and that you will call me when they are ready. I understand that final payment in full must be made at that time. For your convenience, below is my address and telephone number where I can be reached during the work day.

Very truly yours,

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

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EXHIBIT 11

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page77image2552

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, ) a corporation, ) ) Defendants. )

NOTICE OF FILING OF REPORT OF PROCEEDINGS

TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], the undersigned filed the REPORT OF PROCEEDINGS with the Clerk of the Circuit Court of Lake County, Illinois, pursuant to Supreme Court Rule 323(b), having received no objection to the accuracy of the report from any party within 14 days of receipt of the attached letter from the reporter advising the parties that the report of proceedings was complete.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff, pro se

CERTIFICATE OF SERVICE BY MAIL

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING OF REPORT OF PROCEEDINGS upon counsel listed above by enclosing a copy thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Subscribed and sworn to before me
on this ____ day of ___________, 20____.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 12

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page78image2568

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page78image4704

a corporation, Defendants.

) ) )

NOTICE OF MOTION

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TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], at [TIME], the undersigned shall appear before the Honorable James Smith, Circuit Court of Lake County, Illinois, in the courtroom usually occupied by him and present the MOTION TO CERTIFY REPORT OF PROCEEDINGS, a copy of which is herewith served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff, pro se

CERTIFICATE OF SERVICE BY MAIL

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF MOTION and MOTION TO CERTIFY REPORT OF PROCEEDINGS upon counsel listed above by enclosing a copy thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Subscribed and sworn to before me
on this ____ day of ___________, 20____.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 13

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page79image2512

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, ) a corporation, ) ) Defendants. )

MOTION TO CERTIFY REPORT OF PROCEEDINGS

Plaintiff John Doe, pro se, moves this Court to certify the transcripts of the proceedings in the captioned matter for September 10, 2009, and May 9, 2010.

(signature)_________________________________ John Doe John Doe, Plaintiff, pro se

1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

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EXHIBIT 14

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page80image2544

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page80image4680

a corporation, Defendants.

) ) )

STIPULATION

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IT IS HEREBY STIPULATED AND AGREED by and between the parties or their counsel, pursuant to Supreme Court 323(b), that the transcript of proceedings of September 10, 2009, consisting of 10 pages, and the transcript of proceedings of May 9, 2010, consisting of 25 pages, both before Judge James Smith, may be filed as part of the Record on Appeal without further notice and without certification by the Court.

The parties further stipulate and agree that the following errors be corrected:

Page 7, line 12 of the transcript of proceedings of September 10, 2009, which states “the Court should dismiss this complaint, should be corrected to state as follows: “the Court should not dismiss this complaint.”

[LIST ADDITIONAL CORRECTIONS, INDIVIDUALLY, IF NEEDED] Stipulated and agreed to on [DATE]:

(signature)_______________________________________ John Doe, Plaintiff, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant Acme Manufacturing Company

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant X Hardware Store

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JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

EXHIBIT 15

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page81image3960

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page81image5592

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

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MOTION TO EXTEND TIME TO FILE TRANSCRIPT OF PROCEEDINGS

Plaintiff-Appellant John Doe, pro se, moves this Court for entry of an order extending the time for filing the transcript of proceedings for [NUMBER OF DAYS REQUESTED] days, from [DATE CURRENTLY DUE] to and including [NEW DATE]. In support thereof, John Doe states as follows:

[Set forth the reason(s) for the request simply and directly in separately numbered paragraphs.] (See Exhibit 3.)

An Affidavit is attached.

WHEREFORE, Plaintiff-Appellant John Doe respectfully requests that this Court enter an order extending the time for filing the Transcript of Proceedings to and include [NEW DATE].

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(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

page81image15136

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

EXHIBIT 15

page82image960

STATE OF ILLINOIS )
) SS

COUNTY OF COOK )

AFFIDAVIT

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John Doe, being first duly sworn on oath, deposes and states as follows:

  1. I am the Plaintiff-Appellant in this appeal.
  2. The Report of Proceedings is currently due on [INSERT DATE].
  3. Plaintiff is unable to file the Report of Proceedings because [INSERT REASON].

FURTHER AFFIANT SAYETH NAUGHT.

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__________________________________________ John Doe

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Subscribed and sworn to before me on this _____ day of ______________, 20____.

________________________ Notary Public

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EXHIBIT 16

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page83image2552

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page83image4688

a corporation, Defendants.

) ) )

AGREED STATEMENT OF FACTS

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IT IS HEREBY STIPULATED AND AGREED by and between the parties or their counsel, pursuant to Supreme Court 323(d), that the following facts material to this appeal were testified to in oral proceedings before Judge James Smith on May 9, 2010:

LIST AGREED UPON FACTS IN SEPARATELY NUMBERED PARAGRAPHS; FOR EXAMPLE:

1. On October 18, 2003, John Doe purchased a lawnmower from the X Hardware Store.

2. The lawnmower was designed, manufactured, and sold to X Hardware Store by Acme Manufacturing Company.

3. John Doe testified at the oral proceedings before Judge Smith that on April 9, 2004, while he was mowing the lawn at his home, he struck a small rock or pebble.

4. [CONTINUE WITH AGREED UPON FACTS] (signature)_______________________________________

John Doe, Plaintiff, pro se 1111 Sandy Lane
Lake Forest, IL 60045 (847) 555-5555

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant Acme Manufacturing Company

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant X Hardware Store

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1

page84image256

Clerk of the Circuit Court [ADDRESS]

EXHIBIT 18

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[DATE]

page85image2296

Re: Doe v. Acme Manufacturing Company, et al. Circuit Court No. XXXXXX

Dear __________:

A notice of appeal was filed in the above-referenced matter on [DATE]. I hereby request that you prepare the record on appeal for filing in the appellate court. There will be transcripts of proceedings, which have been ordered from the court reporter and will be filed as soon as they are available. [IF APPLICABLE, INCLUDE WHETHER TRIAL EXHIBITS HAVE YET TO BE FILED AND WHETHER THE EXHIBITS SHOULD BE INCLUDED IN THE RECORD ON APPEAL.] Thank you for your assistance in this matter.

Sincerely,

John Doe, Plaintiff, pro se 1111 Sandy Lane
Lake Forest, IL
(847) 555-5555

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EXHIBIT 19

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

JOHN DOE, ) Appeal from the Circuit Court,
) 19th Judicial Circuit, Lake County,

Plaintiff-Appellant, ) Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a )
corporation, and X HARDWARE STORE, )
a corporation, ) Honorable

) James S. Smith, Defendants-Appellees. ) Judge Presiding.

NOTICE OF FILING RECORD ON APPEAL1

TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], Plaintiff-Appellant John Doe filed in the Appellate Court of Illinois, Second District, 55 Symphony Way, Elgin, Illinois 60120, the RECORD ON APPEAL in the above-captioned matter. The Record consists of the following volumes:

_______ volume(s) of Common Law Record _______ volume(s) of Report of Proceedings _______ volume(s) of Exhibits (if applicable)

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

CERTIFICATE OF SERVICE BY MAIL

I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING RECORD ON APPEAL upon counsel listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Signed and sworn to before me
on this ____ day of _________, 20__. ________________________________ Notary Public

(signature)_________________________________ John Doe

page86image18272

1 This Notice of Filing would be used when the document is personally delivered to the court. If the document is filed using the U.S. mail or a third-party commercial carrier, see the Notice of Filing and Certificate of Filing/Service set forth in Exhibit 36.

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

EXHIBIT 20

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page87image3968

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page87image5600

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

page87image7496

NOTICE OF TRANSMITTING RECORD ON APPEAL

TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], I transmitted the Record on Appeal to [NAME AND ADDRESS OF PARTY RECEIVING RECORD] for use in preparing the Appellee’s Brief in this matter. The Record consists of the following volumes:

_______ volume(s) of Common Law Record _______ volume(s) of Report of Proceedings _______ volume(s) of Exhibits (if applicable)

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

CERTIFICATE OF SERVICE BY MAIL

I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF TRANSMITTING RECORD ON APPEAL upon counsel listed above by enclosing a copy thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Signed and sworn to before me
on this ____ day of _________, 20__.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 21

IN THE CIRCUIT COURT OF LAKE COUNTY, ILLINOIS NINETEENTH JUDICIAL CIRCUIT

JOHN DOE, ) ) Plaintiff, ) )

page88image2528

v.

) Circuit Court No. XXXXXX

) ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, ) a corporation, ) ) Defendants. )

STIPULATION FOR PREPARATION OF SUPPLEMENTAL RECORD

IT IS HEREBY STIPULATED by and between the parties or their counsel, pursuant to Supreme Court 329, that a supplemental record may be prepared by the Clerk of the Circuit Court of Lake County containing the following document(s), a copy of which is attached to this stipulation:

[LIST DOCUMENT(S)] Stipulated and agreed to on [DATE]:

(signature)_______________________________________ John Doe, Plaintiff, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant Acme Manufacturing Company

(signature)_______________________________________ Name/Address/Phone Number
Attorney for Defendant X Hardware Store

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page89image256

EXHIBIT 23

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page90image1864

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page90image5576

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

page90image7472

MOTION FOR LEAVE TO FILE SUPPLEMENTAL RECORD

Plaintiff-Appellant John Doe, pro se, moves this Court for leave to file a supplemental record on appeal. In support thereof, John Doe states as follows:

[Set forth when the original record was filed; that a pleading or transcript necessary for review was omitted; name the pleading or transcript; state that the omission was not discovered until recently; and that pleading or transcript is necessary in order for the Court to have a complete understanding of the case.]

WHEREFORE, Plaintiff-Appellant John Doe respectfully prays for leave to file a supplemental record in this matter instanter.

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

[NOTE: instanter means “right now” and is included because you give the supplemental record to the appellate court clerk when you file the motion. As soon as the motion is granted, the clerk will then automatically file the record.]

[Remember to include a Notice of Filing and Certificate of Service (see Exhibit 5) – just substitute the correct title of the motion in the Notice and Certificate.]

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EXHIBIT 24

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page91image1864

JOHN DOE, Plaintiff-Petitioner,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page91image5576

a corporation, Defendants-Respondents.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

page91image7472

AFFIDAVIT REGARDING PREPARATION OF SUPPORTING RECORD PURSUANT TO SUPREME COURT RULE 328

John Doe, Petitioner, pro se, states as follows:

  1. I am the Petitioner in the above-captioned case.
  2. I am competent to testify to the matters stated in this affidavit based on my own

personal knowledge.
3. I prepared the Petitioner’s Supporting Record pursuant to Supreme Court Rule

328, and, to the best of my knowledge, the documents contained therein are true and correct copies of the documents as they appear in the trial court record.

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Further Affiant Sayeth Not.

Subscribed and sworn to before
me on this ____ day of _______________________, 2010.

_____________________________ Notary Public

__________________________________________ John Doe

page92image496

JOHN DOE, Petitioner,

EXHIBIT 25

IN THE APPELLATE COURT OF ILLINOIS FOR THE SECOND DISTRICT

  • )  Petition for Administrative
  • )  Review of Decision and Order
  • )  of Illinois Human Rights
  • )  Commission

v. )

) Human Rights Commission

STATE OF ILLINOIS HUMAN RIGHTS COMMISSION, ACME MANUFACTURING ) COMPANY, a corporation, )

) Respondents. )

)

Case No. ___________

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PETITION FOR ADMINISTRATIVE REVIEW OF AN ORDER OF THE ILLINOIS HUMAN RIGHTS COMMISSION DOCKET NO. ______

John Doe, pro se, hereby petitions the Court for review of the final order of May 9, 2010, of the Illinois Human Rights Commission finding in favor of Acme Manufacturing Company on his complaint of race discrimination in employment.

Petitioner John Doe resepctfully submits that the decision and order of the Respondent Illinois Human Rights Commission is clearly erroneous and/or against the manifest weight of the evidence for the following reasons:

WHEREFORE, Petitioner respectfully requests that the Court enter an order reversing the final order of May 9, 2010.

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(signature)_________________________________ John Doe, Petitioner, pro se

page92image15176

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

page93image488

JOHN DOE, Petitioner,

EXHIBIT 26

IN THE APPELLATE COURT OF ILLINOIS FOR THE SECOND DISTRICT

  • )  Petition for Administrative
  • )  Review of Decision and Order
  • )  of Illinois Human Rights
  • )  Commission

v. )

) Human Rights Commission

STATE OF ILLINOIS HUMAN RIGHTS COMMISSION, ACME MANUFACTURING ) COMPANY, a corporation, )

) Respondents. )

)

Case No. ___________

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NOTICE OF FILING OF PETITION FOR ADMINISTRATIVE REVIEW

TO: (name and address of Director, Human Rights Commission) (name and address of attorney for Acme)

PLEASE TAKE NOTICE that on [DATE], Petitioner John Doe filed in the Appellate Court of Illinois, Second Judicial District, the PETITION FOR ADMINISTRATIVE REVIEW, a copy of which is hereby served upon you.

(signature)_________________________________ John Doe, Petitioner, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

CERTIFICATE OF SERVICE BY MAIL

I, John Doe, a non-attorney, on oath state that I served the foregoing PETITION FOR ADMINISTRATIVE REVIEW and NOTICE OF FILING AND CERTIFICATE OF SERVICE upon the parties listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Signed and sworn to before me
on this ____ day of _________, 20__.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 27

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

[DATE]

RE: General No. [Appellate Court No.] County of Lake

Doe, John v. Acme Manufacturing Company, et al. CURRENT DOCKETING ORDER – DUE DATES

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Notice of Appeal filed:

Report of Proceedings filed in trial court: (Supreme Court Rule 323)

Record, including Report of Proceedings or Certificate in Lieu of Record, filed: (Supreme Court Rules 325, 326)

Appellant’s Brief, with Appendix due to be filed: (Supreme Court Rules 342, 343)

Appellee’s Brief due to be filed: (Supreme Court Rule 343)

Appellant’s Reply Brief due to be filed: (Supreme Court Rule 343)

*denotes filed

06/08/2010* 07/27/2010*

08/10/2010* 09/14/2010 10/19/2010 11/02/2010

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****************************************************************************** [ANY INSTRUCTIONS FROM THE APPELLATE COURT WOULD APPEAR HERE]

EXHIBIT 28

No. [Appellate Court No.]
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ___________________________________________________________________________

page95image2080

JOHN DOE,

v. X HARDWARE STORE, a corporation,

Plaintiff-Appellant,

Defendants-Appellees.

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___________________________________________________________________________

Appeal from the Circuit Court of Lake County, Illinois Nineteenth Judicial Circuit, No. XXXXXX
The Honorable James M. Smith, Judge Presiding.

                              _______________

BRIEF AND ARGUMENT OF

PLAINTIFF-APPELLANT _______________

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

Plaintiff-Appellant, pro se ORAL ARGUMENT REQUESTED

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EXHIBIT 28 POINTS AND AUTHORITIES

I. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR DEFENDANT WHERE THE AFFIDAVITS AND DEPOSITIONS ON
FILE CREATED A QUESTION OF FACT REGARDING WHETHER THE
ICE AND SNOW ON ITS PREMISES WAS AN UNNATURAL
ACCUMULATION ……………………………………………………………………………………………….6

Davis v. Times Mirror Magazine, Inc., 297 Ill. App. 3d 488 (1st Dist. 1998) …………………………..6 McCann v. Bethesda Hosp., 80 Ill. App. 3d 544 (1st Dist. 1979) ………………………………………..6, 7 Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740 (1st Dist. 2005) ……………………..6, 7 Kileen v. Dunteman Co., 78 Ill. App. 3d 473 (1st Dist. 1979) ………………………………………………..6 Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d 533 (1st Dist. 1988)………………………………….6 Fitzsimons v. Nat’l Tea Co., 29 Ill. App. 2d 306 (2d Dist. 1961) ……………………………………………7 Gilberg v. Toys “R” Us, Inc., 126 Ill. App. 3d 554 (1st Dist. 1984) ………………………………………..7 Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 986 (5th Dist. 1982) ……………………………………..8 Foster v. George C. Cyrus & Co., 2 Ill. App. 3d 272 (1st Dist. 1971) ……………………………………..8 Branson v. R&L Inv., Inc., 196 Ill. App. 3d 1088 (1st Dist. 1990) ………………………………………….8

[DOE WOULD CONTINUE UNTIL ALL CASES CITED ARE LISTED. HE WOULD LIST HIS SECOND “POINT” OR ARGUMENT, IF HE HAD ONE, AND LIST ALL OF THE CASES CITED IN THAT ARGUMENT.]

NATURE OF THE CASE

This appeal involves a personal injury action arising from Plaintiff John Doe’s fall in an ice-covered parking lot owned and maintained by Defendant X Hardware Store. Plaintiff fell and broke his arm on January 8, 2004, and this suit was filed on March 25, 2005, alleging that Defendant was negligent in failing to remove snow and ice from the lot. (R. V1, C2-6). Defendant moved for summary judgment on the ground that the ice in question was a natural accumulation for which it was not liable as a matter of law. (R. V1, C105-10). In response,

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1

EXHIBIT 28

Plaintiff filed portions of his own deposition and that of the store manager that established that the ice in question resulted from several days of customer traffic on the snow covered lot which caused the snow to form icy ridges. (R. V1, C111-125). The circuit court granted summary judgment in favor of Defendant on May 10, 2010 (R. V1, C126; A-5), and this appeal followed. (R. V1, C127-30; A1-4). No questions are raised on the pleadings.

JURISDICTIONAL STATEMENT

This is an appeal under Supreme Court Rule 301 from a final judgment. The circuit court granted summary judgment in favor of the Defendant X Hardware Store on May 10, 2010. (R. V1, C126; A5). This appeal was filed 30 days thereafter, on June 9, 2010. (R. V1, C127-30; A-1-4.).

[OR, IF THIS IS AN APPEAL IN WHICH THE JUDGMENT WAS AS TO ONE BUT NOT ALL PARTIES OR CLAIMS, IT WOULD READ AS FOLLOWS:

This is an appeal pursuant to Supreme Court Rule 304(a) from a judgment in favor of one of two Defendants, X Hardware Store. The circuit court granted summary judgment in favor of X Hardware Store on May 10, 2010, and expressly found in that order that there was no just cause to delay enforcement or appeal. (R. V1, C126; A5). This appeal was filed 30 days thereafter, on June 9, 2010. (R. V1, C127-30l; A-1-4). The cause remains pending in the circuit court against Defendant Acme Manufacturing Company which is not a party to this appeal.]

ISSUE PRESENTED FOR REVIEW

Did the circuit court err in ruling, as a matter of law, that the icy ruts and ridges formed in Defendant’s parking lot by its customers’ cars were not an unnatural accumulation

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that should have been removed to make the premises safe for customers entering and exiting Defendant’s store?

[FOR EACH ISSUE, THE APPELLANT MUST STATE THE APPLICABLE STANDARD OF REVIEW, EITHER IN THE DISCUSSION OF THE ISSUE IN THE ARGUMENT OR UNDER A SEPARATE HEADING PLACED BEFORE A DISCUSSION OF THE ISSUE OF THE ARGUMENT.]

STATEMENT OF FACTS

Defendant X Hardware Store owns and operates a business at 1212 Beech Street in Lake Forest, Illinois (R. V1, C15), including an adjacent parking lot that it maintains for the use of its customers. (R. V1, C112).

On January 8, 2004, Plaintiff John Doe was a business patron of X Hardware. (R. C2). As such, he parked his car in Defendant’s parking lot. (R. V1, C2, 42). At that time, the lot was covered with snow, which had formed icy ruts and grooves as a result of other patrons’ cars which had also used the lot. (R. V1, C2, 45). The lot had not been plowed, scraped, or salted prior to Plaintiff’s fall. (R. V1, C55). The entrance of Defendant’s store, however, had been cleared of snow and ice. (R. V1, C55). As Plaintiff departed the store to return to his car in the parking lot, he slipped on the icy ruts, fell, and broke his arm. (R. V1, C26). Plaintiff filed a complaint against Defendant on March 25, 2005, alleging that the Defendant was negligent in maintaining the lot for its customers’ use. (R. V1, C2-8).

Defendant moved for summary judgment, alleging there was no genuine issue of material fact concerning its duties because the snow that had been churned into icy ruts by customer traffic was a natural accumulation. (R. V1, C105-10). The circuit court granted that motion on May 9, 2010 (R. V1, C126; A-5), and this appeal followed. (R. V1, C127-30; A-1-5).

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STANDARD OF REVIEW

Summary judgment is appropriate when all the pleadings, depositions, admissions and affidavits demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008). “The function of a reviewing court on appeal from a grant of summary judgment is limited to determining whether the trial court correctly concluded that no genuine issue of material fact was raised and, if none was raised, whether judgment as a matter of law was correctly entered.” American Family Mutual Insurance Co. v. Page, 366 Ill. App. 3d 1112, 1115 (2d Dist. 2006). The decision to grant summary judgment presents a question of law, which is reviewed de novo. Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 756 (2d Dist. 2009).

ARGUMENT

THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT WHERE THE AFFIDAVITS AND DEPOSITIONS ON FILE CREATED A QUESTION OF FACT REGARDING WHETHER THE ICE AND SNOW ON ITS PREMISES WAS AN UNNATURAL ACCUMULATION.

The undisputed evidence in this case established that Plaintiff’s fall was caused, not by mere snow that had recently fallen, but by icy grooves and ridges created over several days by traffic that Defendant encouraged by maintaining a parking lot for the use of its customers. (R. V1, C42-55).

It is well-settled that a dismissal at a preliminary stage of a proceeding is a drastic action and, therefore, summary judgments should be granted with caution. McCann v. Bethesda Hosp., 80 Ill. App. 3d 544, 547 (1st Dist. 1979). A summary judgment should be entered in favor of the moving party only where the pleadings, depositions, affidavits, and other documents demonstrate that no genuine issue of fact exists which warrants trying the

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EXHIBIT 28

case, and that the moving party is entitled to judgment as a matter of law. Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 745 (1st Dist. 2005). Additionally, courts construe the record strictly against the moving party and liberally in favor of the opponent of the motion. Kileen v. Dunteman Co., 78 Ill. App. 3d 473, 475 (1st Dist. 1979).

Traditionally, a property owner has not been held liable for injuries sustained by a business invitee who falls as a result of natural accumulations of ice and snow on the owner’s property. Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d 533, 535 (1st Dist. 1988). However, a well-recognized exception exists in those situations where the action, or inaction, of the property owner transforms the natural accumulation into an unnatural state.
Fitzsimons v. Nat’l Tea Co., 29 Ill. App. 2d 306 (2d Dist. 1961). In those instances, the rationale is that the owner has allowed a condition to exist that is tantamount to a defect in his property, and he should be held liable for any resultant damages.

The elements necessary to be affirmatively shown in order to recover are that the accumulation of ice, snow, or water was due to natural causes and that the property owner had actual or constructive knowledge of the condition. Gilberg v. Toys “R” Us, Inc., 126 Ill. App. 3d 554, 557 (1st Dist. 1984). Further, the courts have held that a finding of an unnatural or aggravation of a natural condition must be based on an identifiable cause of ice formation. Gilberg, 126 Ill. App. 3d at 557; McCann, 80 Ill. App. 3d at 550-51 (slope of parking lot); Fitzsimons, 28 Ill. App. 2d at 318 (improper drain placement).

Although the courts have held that a landowner is under no obligation to remove natural accumulations of snow and ice from his property (Tzakis, 356 Ill. App. 3d at 746), they nevertheless have recognized that the owner may be liable when the ice on which the Plaintiff falls accumulates whether as a result of the owner’s aggravating of a natural

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condition or because of his conduct that gives rise to a new, unnatural or artificial condition. McCann, 80 Ill. App. 3d at 551; Fitzsimons, 29 Ill. App. 2d 318-19.

The ruts and ridges in question were caused by vehicular traffic and were not of recent origin. (R. V1, C48). There was no indication that Defendant made any attempt to remove or minimize the icy conditions through the use of sand, salt, or gravel. (R. V1, C55). While no clear route of ingress or egress was provided from the parking lot to the store, Defendant recognized its importance and value to its customers by clearing the area in front of the entranceway to the building. (R. V1, C52).

In Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896 (5th Dist. 1982), Justice Harrison, in his dissent, addressed just such a situation as follows:

The icy ridges and ruts on the parking lot surface were allegedly formed by automobiles driving on the lot after a snowfall. The automobile traffic occurred because of defendant’s implied invitation to enter onto the premises for business purposes. Thus, the character of the initial natural accumulation changed as a result of defendant’s use of the area concerned. Under such circumstances, the icy ridges and ruts in the parking lot would constitute unnatural accumulations, in effect, created by the defendant. 107 Ill. App. 3d at 901 (emphasis added).

The owner of property is under a duty to exercise ordinary care not to create an unsafe condition with customary and regular use of its property. Foster v. George C. Cyrus & Co., 2 Ill. App. 3d 274, 278 (1st Dist. 1971). An owner also has a duty to provide business invitees with a safe means of ingress and egress. Branson v. R&L Inv., Inc., 196 Ill. App. 3d 1088, 1092 (1st Dist. 1990). It is reasonably foreseeable that the automobiles of a property owner’s business invitees are going to form ruts in soft snow which will become icy when frozen. It is equally foreseeable that business invitees will experience extreme difficulty traversing such an area when these conditions are allowed to exist. A reasonable person in

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the owner’s position would take appropriate measures to alleviate this problem by providing a safe pathway to his establishment.

In the case at bar, it is clear that Defendant recognized this situation and the concomitant duties when it cleared the area in front of its entranceway. However, this limited remedial action failed to provide Plaintiff, a business invitee, with a safe route of ingress and egress from the parking lot to the store.

Plaintiff fell as a result of slipping on the ruts and ridges created by the vehicles of Defendant’s customers. But for Defendant’s implied invitation to enter onto the premises for business purposes, these vehicles and the resultant ruts would not be present. Hence, this action of Defendant aggravated a natural condition, transforming its character into an unnatural state. As per the requirement in McCann, this aggravated natural condition is based on an identifiable cause to automobiles of Defendant’s business invitees. Therefore, Defendant failed in its duty to protect Plaintiff from a reasonably foreseeable dangerous condition and should be held responsible.

There still remain questions as to the length of time this condition was allowed to exist and what, if any, contributory negligence existed on the part of Plaintiff. Therefore, the order granting Defendant’s motion for summary judgment was improper and should be vacated.

CONCLUSION

WHEREFORE, for the foregoing reasons, Plaintiff-Appellant John Doe respectfully requests that this Court reverse the order of the circuit court granting Defendant’s motion for

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summary judgment and remand this case for completion of discovery and for trial on the merits.

Respectfully submitted,

(signature)______________________________ John Doe
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555 Plaintiff-Appellant, pro se

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CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a) is [insert the number of pages in your brief] pages.

(signature)______________________________

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8

EXHIBIT 29

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APPENDIX

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A-1

EXHIBIT 29

page105image928

[COPY OF ORDER YOU ARE APPEALING]

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A-2

EXHIBIT 29

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[ANY OPINION, MEMORANDUM OR FINDINGS OF FACT ENTERED OR FILED BY TRIAL JUDGE]

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A-3

EXHIBIT 29

page107image928

[ANY PLEADINGS OR OTHER MATERIAL FROM THE RECORD THAT ARE BASES OF APPEAL OR PERTINENT TO IT]

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A-4

EXHIBIT 29

APPEAL TO THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

FROM THE CIRCUIT COURT FOR THE NINETEENTH JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS

JOHN DOE, ) ) Plaintiff-Appellant, )

) Circuit Court No. XXXXX v. )

) ACMEMANUFACTURINGCOMPANY, a )

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corporation, and X HARDWARE STORE, a corporation,

Defendants-Appellees.

)
) Judge Presiding. )
)

Hon. James S. Smith,

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NOTICE OF APPEAL

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Plaintiff-Appellant John Doe, pro se, appeals to the Appellate Court of Illinois for the Second District from the following orders entered in this matter in the Circuit Court of Lake County:

  1. The order of September 10, 2009, dismissing with prejudice Count II of his complaint, alleging strict product liability against Defendant-Appellee X Hardware Store; and
  2. The order of May 9, 2010, granting summary judgment in favor of Defendants- Appellees Acme Manufacturing Company and X Hardware Store and against Plaintiff-Appellant John Doe on all remaining claims of the complaint.

By this appeal, Plaintiff-Appellant will ask the Appellate Court to reverse the orders of September 10, 2009 and May 9, 2010, and remand this cause with directions to reinstate all counts of the complaint for trial on the merits as to all claims, or for such other and further relief as the Appellate Court may deem proper.

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(signature)_________________________________ John Doe
Plaintiff-Appellant, pro se

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

A-5

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

EXHIBIT 29

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page109image5464

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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NOTICE OF FILING OF NOTICE OF APPEAL

TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on May 12, 2010, the undersigned filed the NOTICE OF APPEAL of Plaintiff-Appellant John Doe with the Clerk of the Circuit Court of Lake County, Illinois, a copy is hereby served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

CERTIFICATE OF SERVICE BY MAIL

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING OF NOTICE OF APPEAL upon counsel listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on May 12, 2010.

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Signed and sworn to before me on this 12th day of May, 2010.

___________________________ Notary Public

(signature)_________________________________ John Doe

A-6

Volume I

EXHIBIT 29
TABLE OF CONTENTS OF RECORD ON APPEAL

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Placita………………………………………………………………………………………………………………………….. C1 Complaint filed April 17, 1995………………………………………………………………………………………..C2 Summons and Return filed May 2, 1995 ………………………………………………………………………… C10 Appearance of Defendant filed June 1, 1995……………………………………………………………………C12 Motion to Dismiss filed June 1, 1995 …………………………………………………………………………….. C13 Order of August 12, 1995 ……………………………………………………………………………………………..C19

[CONTINUE UNTIL ALL DOCUMENTS IN VOLUME I HAVE BEEN LISTED]

Circuit Court Certification…………………………………………………………………………………………..C250

Volume II

Transcript of Proceedings of August 12, 1995 ……………………………………………………………….. 2-50

[CONTINUE UNTIL ALL DOCUMENTS IN VOLUME II HAVE BEEN LISTED, INCLUDING ANY EXHIBITS]

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A-7

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.NOTICE OF FILING1

EXHIBIT 30

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page111image6080

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], the undersigned filed the APPELLANT’S BRIEF with the Clerk of the Appellate Court of Illinois, Second Judicial District, a copy of which is herewith served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

CERTIFICATE OF SERVICE

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING OF NOTICE OF APPEAL and NOTICE OF APPEAL upon counsel listed above by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on May 12, 2010.

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Signed and sworn to before me
on this ____ day of ______, 20___. ___________________________ Notary Public

(signature)_________________________________ John Doe

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1 This Notice of Filing would be used when the document is personally delivered to the court. If the document is filed using the U.S. mail or a third-party commercial carrier, see the Notice of Filing and Certificate of Filing/Service set forth in Exhibit 36.

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

EXHIBIT 31

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page112image3960

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.

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MOTION TO EXTEND TIME TO FILE APPELLANT’S BRIEF

Plaintiff-Appellant John Doe, pro se, moves this Court for a 35-day extension of time, from September 12, 2010 to and including October 17, 2010, within which to file his Appellant’s Brief. The affidavit of John Doe in support thereof is attached.

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(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

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EXHIBIT 31

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STATE OF ILLINOIS )
) SS

COUNTY OF COOK )

AFFIDAVIT

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John Doe, being first duly sworn on oath, deposes and states as follows:

  1. I am the Plaintiff-Appellant in this appeal.
  2. Plaintiff’s Appellant’s Brief is currently due on September 12, 2010.
  3. Plaintiff is unable to complete and file his Appellant’s Brief on September 12,

2010, because [INSERT REASON].
FURTHER AFFIANT SAYETH NAUGHT.

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Subscribed and sworn to before me on this _____ day of ______________, 20____.

________________________ Notary Public

__________________________________________ John Doe

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JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

EXHIBIT 31

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page114image3984

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

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a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.NOTICE OF FILING

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TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], the undersigned filed the MOTION TO EXTEND TIME TO FILE APPELLANT’S BRIEF with the Clerk of the Appellate Court of Illinois, Second Judicial District, a copy of which is herewith served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff-Appellant, pro se

CERTIFICATE OF SERVICE

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I, John Doe, a non-attorney, on oath state that I served the foregoing NOTICE OF FILING and MOTION TO EXTEND TIME TO FILE APPELLANT’S BRIEF upon counsel listed above by enclosing a copy thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Subscribed and sworn to before me
on this ____ day of ___________, 20____.

___________________________ Notary Public

(signature)_________________________________ John Doe

EXHIBIT 31

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page115image1872

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a )

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corporation, and X HARDWARE STORE, a corporation,

Defendants-Appellees.

)

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.ORDER

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This matter coming on to be heard on the motion of Plaintiff-Appellant John Doe to extend time to file Appellant’s Brief, notice having been given and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that the motion of Plaintiff-Appellant for leave to extend time to file Appellant’s Brief to and including October 17, 2010, is ALLOWED / DENIED.

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__________________________________________ Justice

__________________________________________ Justice

__________________________________________ Justice

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

EXHIBIT 32

NO. [Appellate Court No.]
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

page116image1864

JOHN DOE, Plaintiff-Appellant,

  • )  Appeal from the Circuit Court,
  • )  19th Judicial Circuit, Lake County,
  • )  Illinois. )

v. )
) Circuit Court No. XXXXX

ACMEMANUFACTURINGCOMPANY, a ) corporation, and X HARDWARE STORE, )

page116image5576

a corporation, Defendants-Appellees.

  • )  Honorable
  • )  James S. Smith,
  • )  Judge Presiding.APPEARANCE

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Defendant-Appellee X Hardware Store hereby enters its appearance pro se in this case. (signature)_________________________________

Name Address Phone

[INCLUDE A NOTICE OF FILING AND CERTIFICATE OF SERVICE (see Exhibit 2) AND SERVE ON ALL OPPOSING COUNSEL OR PARTIES]

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EXHIBIT 33

No. [Appellate Court No.]
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ___________________________________________________________________________

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JOHN DOE,

v. X HARDWARE STORE, a corporation,

Plaintiff-Appellant,

Defendant-Appellee.

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___________________________________________________________________________

Appeal from the Circuit Court of Lake County, Illinois Nineteenth Judicial Circuit, No. XXXXXX
The Honorable James M. Smith, Judge Presiding.

                              _______________

BRIEF AND ARGUMENT OF

DEFENDANT-APPELLEE _______________

Name of Attorney Address

Attorney for Defendant-Appellee ORAL ARGUMENT REQUESTED

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EXHIBIT 33 POINT AND AUTHORITIES

I. DEFENDANT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW
UNDER THE UNDISPUTED EVIDENCE ESTABLISHING THAT
PLAINTIFF’S FALL WAS CAUSED BY THE NATURAL ACCUMULATION
OF ICE AND SNOW ON DEFENDANT’S PREMISES. …………………………………………..5

Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 704 (1st Dist. 2005) …………………………5 Zide v. Jewel Tea Co., 39 Ill. App. 2d 217 (2d Dist. 1963)…………………………………………………5, 6 Erasmus v. Chi. Hous. Auth., 86 Ill. App. 3d 142 (1st Dist. 1980) ………………………………………5, 7 Fitzsimons v. Nat’l Tea Co., 29 Ill. App. 2d 306 (2d Dist. 1961) ……………………………………………5 McCann v. Bethesda Hosp., 80 Ill. App. 3d 544 (1st Dist. 1979) ……………………………………………6 Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896 (5th Dist. 1982) ……………………………………..6

NATURE OF THE CASE

Plaintiff John Doe’s single-count complaint against Defendant X Hardware Store alleged that he slipped and fell as a result of an “unnatural” accumulation of ice and snow in a parking lot owned by Defendant. (R. V1, C1-3). Based on the undisputed evidence establishing that Plaintiff slipped on a natural accumulation of ice in the parking lot, the trial court granted summary judgment in favor of Defendant. (R. V1, C126; A-5). This appeal followed. (R. V1, C127-30; A-1-4). No questions are raised on the pleadings.

ISSUE PRESENTED FOR REVIEW

Was Defendant landowner entitled to judgment as a matter of law when the undisputed evidence established that the ice on which Plaintiff purportedly slipped accumulated naturally and not as a result of any defect in the premises or any conduct on Defendant’s part?

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1

EXHIBIT 33

STATEMENT OF FACTS

On March 25, 2005, Plaintiff John Doe filed a single count complaint alleging in pertinent part that he slipped and fell on ice in a parking lot owned by Defendant X Hardware Store on January 8, 2004, and that Defendant had “allowed and permitted” an “unnatural” accumulation of ice and snow to form. (R. V1, C1-2). The following undisputed facts were established at Plaintiff’s deposition:

1. When Plaintiff entered the parking lot, he noticed it was slippery (R. V1, C42- 43);

  1. The lot had not been plowed, scraped, or salted (R. V1, C45);
  2. Plaintiff noticed that the surface of the ice was uneven because of tire ruts, butit was the slippery surface, not the ruts, that caused him to fall (R. V1, C44);and
  3. In Plaintiff’s opinion, the accumulation in the lot appeared to be “snow thathad been driven through that became ice” (R. V1, C55).

In response to Defendant’s motion for summary judgment, Plaintiff failed to present

any evidence that Defendant had created the icy condition of the parking lot through improper attempts of snow removal, or that the ice had formed as a result of some defect in the parking lot’s design. Instead, he asserted only that his deposition (in which he claimed to have fallen as a result of the slippery surface rather than the ruts or grooves) created a question of fact “as to whether the ruts, bumps, and grooves formed in the slush by the tires and then frozen over is or is not a natural condition.” (R. V1, C37).

After considering the pleadings and the arguments, the circuit court granted summary judgment for Defendant. (R. V1, C126). This appeal followed.

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EXHIBIT 33

STANDARD OF REVIEW

Summary judgment is appropriate when all the pleadings, depositions, admissions and affidavits demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008); Wagemann Oil Co. v. Marathon Oil Co., 306 Ill. App. 3d 562, 566-67 (1st Dist. 1999). Upon a defendant’s motion for summary judgment, “a plaintiff has an affirmative duty to bring forth all facts and evidence that satisfy his burden of proving the existence of a cognizable cause of action.” Holland v. Arthur Andersen & Co., 212 Ill. App. 3d 645, 652-53 (1st Dist. 1991). If a plaintiff cannot establish any element of his cause of action, summary judgment for the defendant is proper. Lawrence & Allen v. Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131, 135 (2d Dist. 1997). The appellate court reviews an orders granting summary judement de novo and without giving any deference to the judgment of the circuit court. E.g., Zahl v. Krupa, 399 Ill. App. 3d 993, 1012 (2d Dist. 2010).

ARGUMENT

DEFENDANT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAWUNDER THE UNDISPUTED EVIDENCE ESTABLISHING THAT PLAINTIFF’S FALL WAS CAUSED BY THE NATURAL ACCUMULATION OF ICE AND SNOW ON DEFENDANT’S PREMISES.

It is well-established that a property owner has no duty to remove ice and snow from its premises. Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 746 (1st Dist. 2005). Therefore, a property owner “is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner.” Zide v. Jewel Tea Co., 39 Ill. App. 2d 217, 222-23 (2d Dist. 1963). Accordingly, in order to withstand a motion for summary judgment, a plaintiff must show by affirmative

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3

EXHIBIT 33

evidence that the snow or ice accumulated either as “the direct result of the landowner’s [snow] cleaning operations” or because of “design deficiencies that promote unnatural accumulations of ice and snow.’ Erasmus v. Chi. Hous. Auth., 86 Ill. App. 3d 142, 145 (1st Dist. 1980).

In the instant case, there was no allegation or evidence that the icy condition of the parking lot was caused by negligent attempts at snow removal. To the contrary, Plaintiff himself testified that the lot had not been plowed, scraped, or salted. (R. V1, C45). Nor was there any allegation, let alone evidence, that there was a design deficiency, such as an improper slant or slope in the lot, which caused ice to accumulate at the spot where Plaintiff fell.

In sum, there simply was no evidence presented from which a jury might find that the snow and ice in Defendant’s parking lot was an “unnatural accumulation” as that term has been interpreted by case law. See, e.g., Fitzsimons v. Nat’l Tea Co., 29 Ill. App. 2d 306, 318-19 (2d Dist. 1961) (store’s improper snow removal caused unnatural accumulation of ice); McCann v. Bethesda Hosp., 80 Ill. App. 3d 544, 549-51 (1st Dist. 1979) (excessive slope of parking lot caused unnatural accumulation). In the absence of such an affirmative showing, there was no question of fact to be resolved by a jury, and Defendant was entitled to judgment as a matter of law.

The gist of Plaintiff’s argument is that the accumulation in question should be considered “unnatural” because traffic caused the snow to turn to ice. However, it is established that changes in the surface of naturally accumulated snow or ice as a result of normal usage do not constitute an “unnatural accumulation”. Thus, in a case where Plaintiff

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4

EXHIBIT 33

actually tripped on a tire rut formed by traffic, summary judgment for Defendant landowner was affirmed as follows:

In the instant case all that the defendant may be said to have done to cause an unnatural accumulation of snow and ice is to suffer its customers to use its parking lot while snow was upon the ground. In view of the fact that only ordinary vehicular traffic caused the ruts of which plaintiff complains in a place intended for use by such vehicles, we do not think that the ruts resulting from such use may be said to have been an unnatural accumulation of snow and ice created by the defendant. Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896, 899 (5th Dist. 1982) (emphasis added).

The Stiles ruling was based on this Court’s opinion in Zide v. Jewel Tea Co., 39 Ill. App. 2d 217 (2d Dist. 1963). There, as here, Plaintiff contended that the unnatural accumulation of ice in a parking lot was established by her testimony, without more, that the ice on which she fell was “ridged”. Nevertheless, this Court reversed a jury verdict for Plaintiff and remanded the cause with directions that judgment be entered for Defendant because there was “absolutely no evidence” that the ice itself was caused to form or aggravated by Defendant’s conduct. 39 Ill. App. 2d at 224.

Similarly, in Erasmus, 86 Ill. App. 3d 142, the plaintiff contended on appeal that summary judgment for the defendant was improper where there was evidence that pedestrian traffic on a sidewalk maintained by the defendant created the ridged, uneven ice on which she fell. The court affirmed the summary judgment, noting:

The plaintiff must show that the exposed stratum of ice was itself an unnatural accumulation, created directly or indirectly by the defendant. (Citation omitted). Here, plaintiff has offered no facts which would allow a jury to find that the ice on the sidewalk was anything other than a natural accumulation. The pedestrian traffic that, presumably, created the rutted and uneven surface cannot be considered ‘unnatural’ on an urban sidewalk…. On the record in this case the trial court could not find, as a matter of law, that the icy sidewalk was the product of a natural accumulation… 86 Ill. App. 3d at 14 (emphasis added).

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5

EXHIBIT 33

Likewise, on the record in this case, the trial court properly found that the evidence established that Plaintiff fell on a natural accumulation, and that the ruts caused by ordinary vehicular traffic did not constitute an unnatural accumulation or otherwise afford a basis for liability. The order granting summary judgment in favor of Defendant was, therefore, properly entered and should be affirmed.

CONCLUSION

WHEREFORE, for the foregoing reasons, Defendant-Appellee X Hardware Store respectfully requests that this Court affirm the order of the circuit court granting Defendant’s motion for summary judgment.

Respectfully submitted,

(signature)______________________________ Attorney for Defendant-Appellee

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CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is [insert the number of pages in your brief] pages.

(signature)___________________________

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6

EXHIBIT 34

No. [Appellate Court No.]
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ___________________________________________________________________________

page124image2080

JOHN DOE,

v. X HARDWARE STORE, a corporation,

Plaintiff-Appellant,

Defendant-Appellee.

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___________________________________________________________________________

Appeal from the Circuit Court of Lake County, Illinois Nineteenth Judicial Circuit, No. XXXXXX
The Honorable James M. Smith, Judge Presiding.

                              _______________

REPLY BRIEF OF PLAINTIFF-APPELLANT _______________

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

Plaintiff-Appellant, pro se ORAL ARGUMENT REQUESTED

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EXHIBIT 34 ARGUMENT

THE ACTION OF THE AUTOMOBILES OF DEFENDANT’S PATRONS TRANSFORMED THE SNOW AND ICE INTO UNNATURAL RUTS AND RIDGES.

Defendant cites the majority opinion in the case of Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896 (5th Dist. 1982), which relied on the rationale in Zide v. Jewel Tea Co., 39 Ill. App. 2d 217 (2d Dist. 1963). An examination of Zide reveals that it can be easily reconciled with the present case. The Zide Court properly set aside the verdict of the jury because Plaintiff failed to introduce any evidence as to the cause of the icy ridge that resulted in the fall. 39 Ill. App. 2d at 225. As the Zide Court correctly noted, some evidence must be introduced that reveals icy ridges were formed and aggravated by a negligent act or omission of Defendant. 39 Ill. App. 2d at 225-28.

Defendant similarly cites the case of Timmons v. Turski, 103 Ill. App. 3d 36 (5th Dist. 1981). In Timmons, the defendant had merely shoveled a sidewalk exposing ice that had naturally formed underneath. The plaintiff failed to introduce any evidence that the exposed ice was unnaturally formed through some act by the defendant. 103 Ill. App. 3d at 38-39.

In the present case, Plaintiff introduced evidence, unrefuted by Defendant, that the ruts and ridges were not a naturally occurring formation but had only been formed by the action of the automobiles of Defendant’s patrons. But for Defendant’s invitation to these patrons to utilize the parking lot provided, no such formation would have been created. The snow and ice did not naturally form into the types of ruts and ridges at issue. Requiring Defendant to assume responsibility for the dangerous conditions created in its own parking lot by the automobiles of its business invitees would not be placing Defendant in the position

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1

EXHIBIT 34

of an absolute insurer of the safety of its patrons. Rather, it is the logical application of the rule that requires Defendant to provide a safe means of ingress and egress to its establishment.

By requesting that the decision of the circuit court be allowed to stand, Defendant is seeking to have this Court permit it to continue to reap the enormous benefit of the customers’ patronage while exculpating it of any responsibility for the harm that may befall its customers as they attempt to traverse the area from its lot to its store. Such would not occur but for the dangerous conditions created in Defendant’s parking lot as a result of Defendant’s invitation to its patrons to utilize the lot.

It is easily foreseeable that hazardous conditions will occur when the automobiles of Defendant’s customers make ruts and ridges that will freeze and therefore become a dangerous obstacle when one attempts to walk from a car parked in the lot to Defendant’s establishment.

To allow such conditions to exist with no responsibility for them is to require the customers to assume an unconscionable risk of injury which, to this point, the courts in Illinois have always resisted.

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2

EXHIBIT 34

CONCLUSION

WHEREFORE, for all of the reasons herein, as well as in his opening brief, Plaintiff- Appellant John Doe respectfully requests that this Court reverse the order of the circuit court granting summary judgment in favor of Defendant and remand this cause for further discovery and trial.

Respectfully submitted,

(signature)______________________________ John Doe
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555 Plaintiff-Appellant, pro se

CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a) is [insert the number of pages in your brief] pages.

(signature)______________________________

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3

EXHIBIT 35

No. [to be provided by Supreme Court] ___________________________________________________________________________

IN THE
SUPREME COURT OF ILLINOIS

___________________________________________________________________________ JOHN DOE,

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v. X HARDWARE STORE, a corporation,

Plaintiff-Petitioner,

Defendant-Respondent.

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___________________________________________________________________________

On Petition for Leave to Appeal from the
Appellate Court of Illinois, Second District, No. X-XX-XXXX There heard on appeal from the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois
No. XXXXX
Honorable James M. Smith, Judge Presiding ____________________

                              _______________

PETITION FOR LEAVE TO APPEAL _______________

John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

Plaintiff-Petitioner, pro se

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EXHIBIT 35

PRAYER FOR LEAVE TO APPEAL

Plaintiff-Petitioner John Doe pro se, pursuant to Illinois Supreme Court Rule 315(a), respectfully petitions this Court for leave to appeal from the judgment of the Appellate Court of Illinois, Second Judicial District.

JUDGMENT BELOW

On August 28, 2001, the appellate court issued a decision affirming an order of the Circuit Court of Lake County, Illinois, granting summary judgment against Petitioner and in favor of Respondent X Hardware Store. The court found that an icy condition of Respondent’s parking lot, which caused Petitioner to fall, was a “natural condition” even though it was created by the automobile traffic of Respondent’s business patrons.

On September 18, 2001, Petitioner filed a Petition for Rehearing in the appellate court which was denied in an order entered on November 19, 2001.

POINTS RELIED UPON FOR REVIEW

This Court should grant leave to appeal in this matter for the following reasons:

1. The appellate court in this case has determined that a business entity, which is otherwise responsible for providing its customers with safe ingress and egress from its premises, nonetheless has no duty to remedy unsafe conditions created by other customers, even when such conditions are known to the business entity. Such a blanket departure from the long-recognized rule that a business entity has a duty to take reasonable measures to protect its business invitees from harm should not become the law of this State without further review by this Court.

2. The appellate court’s decision is contrary to that of the Illinois Appellate Court, First Judicial District, [or of this Court] in [INSERT NAME AND CITE OF CASE]

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EXHIBIT 35

and that conflict should be resolved by this court. [NOTE – YOU CAN ONLY MAKE THIS CLAIM IF, IN FACT, THERE IS ANOTHER DECISION CONTRARY TO THE DECISION IN YOUR CASE.]

STATEMENT OF FACTS

[See Appellants Brief – Exhibit ___]

ARGUMENT

[See Appellants Brief – Exhibit ___]

CONCLUSION

For the foregoing reasons, Plaintiffs-Petitioners respectfully request that the Court grant their petition for leave to appeal.

Respectfully submitted,

(signature)______________________________ John Doe
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555 Plaintiff-Petitioner, pro se

CERTIFICATE OF COMPLIANCE

Pursuant to Illinois Supreme Court Rule 341(c), I certify that this Petition for Leave to Appeal conforms with the requirements of Rules 341(a) and Rule 315(d) and that the length of this Petition, excluding the appendix, is __ pages.

                                    ____________________________________

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JOHN DOE, Plaintiff-Petitioner,

v.

EXHIBIT 36

NO. [Supreme Court No.]
IN THE
SUPREME COURT OF ILLINOIS

) On leave to appeal from the
) Appellate Court of Illinois, Second ) District, No. X-XX-XXXX.
)
) There on appeal from the Circuit
) Court of the Nineteenth Judicial
) Circuit, Lake County, Illinois,
) No. XXXXXXXX.

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X HARDWARE STORE, a corporation, )

Defendant-Respondent.

) Honorable
) James M. Smith, ) Judge Presiding.

NOTICE OF FILING

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TO: (name and address of attorney for Acme) (name and address of attorney for X Hardware)

PLEASE TAKE NOTICE that on [DATE], the undersigned filed the original and 19 copies of the PETITION FOR LEAVE TO APPEAL with the Clerk of the Supreme Court of Illinois, 200 East Capitol Avenue, Springfield, Illinois 62701, copies of which are herewith served upon you.

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John Doe
1111 Sandy Lane Lake Forest, IL 60045 (847) 555-5555

(signature)_________________________________ John Doe, Plaintiff, pro se

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CERTIFICATE OF FILING/SERVICE BY MAIL

I, John Doe, a non-attorney, on oath state that I filed with the Illinois Supreme Court and served upon counsel the foregoing NOTICE OF FILING and PETITION FOR LEAVE TO APPEAL by enclosing copies thereof in envelopes, addressed as shown with First Class postage prepaid, and depositing them in the U.S. Mail Depository at (insert post office or mail box location) on [DATE].

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Subscribed and sworn to before me
on this ____ day of ___________, 20____.

___________________________ Notary Public

(signature)_________________________________ John Doe

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JOHN DOE, Plaintiff-Appellant,

v.

EXHIBIT 37

NO. [Supreme Court No.]
IN THE
SUPREME COURT OF ILLINOIS

) On leave to appeal from the
) Appellate Court of Illinois, Second ) District, No. X-XX-XXXX.
)
) There on appeal from the Circuit
) Court of the Nineteenth Judicial
) Circuit, Lake County, Illinois,
) No. XXXXXXXX.

page132image5232

X HARDWARE STORE, a corporation, )

Defendant-Appellee.

) Honorable
) James M. Smith, ) Judge Presiding.

NOTICE OF ELECTION

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Plaintiff-Appellant John Doe pro se states that he elects to allow his Petition for Leave to Appeal to stand as the Appellant’s Brief [OR he elects to file an Appellant’s Brief in this appeal.].

(signature)_________________________________ John Doe, Appellant, pro se
1111 Sandy Lane
Lake Forest, IL 60045

(847) 555-5555

[THIS NOTICE IS DUE 14 DAYS AFTER THE SUPREME COURT GRANTS LEAVE TO APPEAL. INCLUDE A NOTICE OF FILING AND CERTIFICATE OF FILING/SERVICE AND SERVE ON ALL OPPOSING COUNSEL OR PARTIES]

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