INTERLOCUTORY APPEALS BY PERMISSION AND AS OF RIGHT Appellate Practice Seminar Sponsored by the Appellate Lawyers Association April 22,

2009, Chicago Bar Association Presenter: William P. Hardy Hinshaw & Culbertson LLP 400 S. 9th Street, Suite 200 Springfield, Illinois 62704

I.

INTRODUCTION

In Illinois, interlocutory appeals are governed by Supreme Court Rules 306, 307 and 308. Rule 306 addresses interlocutory appeals by permission, Rule 307 governs interlocutory appeals as of right, and Rule 308 permits discretionary appeals from orders involving questions of law which have been certified by the trial court. All of these rules are designed, to a substantial degree, to facilitate judicial economy by permitting early appeals of certain threshold issues to either avoid the possibility of trying a case more than once or to resolve the case without the necessity of a trial. Under the federal system, interlocutory appeals are governed by 28 U.S.C. 1292(a) (appeals as a matter of right), and 28 U.S.C. 1292(b) (appeals by permission). The full text of the applicable state and federal rules are appended to the end of this article. II. DISCRETIONARY APPEALS OF ORDERS GRANTING A NEW TRIAL, VENUE ORDERS, AND VARIOUS OTHER INTERLOCUTORY ORDERS A. Orders Appealable

Supreme Court Rule 306 permits a party to petition the appellate court for leave to appeal from certain interlocutory orders, including: an order granting a new trial, orders involving venue (forum non conveniens or improper venue); an order denying a motion to dismiss for lack of personal jurisdiction; custody orders; an order from a circuit court remanding to an administrative agency for a hearing de novo; an order disqualifying the attorney for any party; and, orders denying or granting class certification. B. Time Requirements and Procedure

With the exception of interlocutory appeals involving custody orders, the procedure under Rule 306 requires the party appealing to file a petition in the appellate court within 30 days of the entry of the order appealed from. The 30-day time period may be extended for good cause supported by affidavit, but the motion must be filed in the appellate court before the expiration of the original or extended time for appeal. S.Ct. Rule 306(f). The motion for an extension must be accompanied by an affidavit showing good cause for the delay in petitioning for leave to appeal. Id. The petition must include a statement of facts, supported by reference to a supporting record, and contain the grounds for the appeal. S. Ct. Rule 306(c). An original and three copies of the petition (or original and five copies in workers' compensation cases), must be filed in the appellate court, along with a supporting record conforming to Supreme Court Rule 328. Because of the limited time available to prepare the record, the rule permits the attorney filing the petition to assemble the record and verify its accuracy through the attorney s affidavit. Id. An appendix to the petition is required, and must include a copy of the order appealed from, any opinion, memorandum, or findings of fact entered by the trial judge, and a table of contents of the record on appeal in the form provided in Rule 342(a). S. Ct. Rule 306(e).

The party opposing the petition may, but is not required to, file an answer within 21 days of the filing of the petition. S. Ct. Rule 306(d). Any portions of the record not included by the petitioner may be added in a supplemental record, verified by the attorney by affidavit pursuant to Rule 328. Id. If the petition is granted, the proceedings in the trial court are automatically stayed, although the appellate court or a judge thereof may require the petitioner to file an appropriate bond. S. Ct. Rule 306(g). If the petition is denied, the petitioner may seek leave to appeal pursuant to Supreme Court Rule 315. Although the supreme court rarely grants leave to appeal in such cases (where the appellate court has not heard the appeal), in this writer s experience the Court frequently will enter a supervisory order requiring the appellate court to grant the petition and hear the case on the merits. In the event the petition is denied, it is permissible to raise the issue at the conclusion of the case. See Adkins v Chicago R. I. and P. R. Co., 54 Ill. 2d 511, 301 N.E.2d 729 (1973). As a practical matter, however, prevailing on some of these issues at the conclusion of the case is problematic. For example, once a trial is held and completed, it is difficult to convince an appellate court that the case should have been transferred for the convenience of the parties forum non conveniens as a new trial would then be required. On the other hand, if the case is reversed on other grounds (e.g., errors at trial), a transfer may well serve the interests of justice and be more convenient to the parties on retrial. Although a party may elect to allow his or her petition or answer to stand as his or her brief, most practitioners file a formal brief if the petition is granted. All briefing is governed by Rules 341 and 344, meaning that appellant s brief is due within 35 days of the granting of the petition, appellees brief is due 35 days thereafter, and the reply is due 14 days later. S. Ct. Rule 306(i). C. Other Considerations 1. Motions to reconsider do not toll the 30 day period for appealing

Some practitioners have made the mistake of assuming that a motion to reconsider an interlocutory order tolls the period for filing an appeal (as it does, for example, with a final order). With respect to Rule 306 appeals, however, such a motion does not extend the thirty day period for appealing. See, e.g., Buckland v. Lazar, 145 Ill.App.3d 436, 495 N.E.2d 1254 (1st Dist. 1986); Trophytime, Inc. v. Graham, 73 Ill.App.3d 335, 391 N.E.2d 1074 (4th Dist. 1979). There are cases, however, holding that even if an interlocutory issue has been ruled upon, a new motion which addresses new factual or legal matters not previously decided results in the clock starting again. See McClain v. Illinois Central Gulf R.R., 121 Ill.2d 278, 520 N.E.2d 368 (1988); Kemner v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d 1327 (1986). In Kemner, for example, the trial court twice denied forum non conveniens motions filed by defendant. Citing new cases, decided after the denial of the motions, defendant filed a third such motion and was permitted to appeal pursuant to Rule 306.

2.

Deferential standard of review

abuse of discretion

Interlocutory orders under rule 306 are reviewed under the deferential abuse of discretion standard of review. See, e.g., Peile v. Skelgas, Inc., 163 Ill. 2d 323, 645 N.E.2d 184, 190 (1994) (forum non conveniens); Marotta v. General Motors Corp., 108 Ill.2d 168, 483 N.E.2d 503 (1985) (new trial). Petitioners may have a better chance of prevailing, however, if they can show that the trial court ignored or failed to properly apply the applicable test for the motion at issue. For example, the Illinois Supreme Court has held that trial judges, by failing to consider all relevant forum non conveniens factors or by placing too much emphasis on any one factor, have abused their discretion by failing to transfer cases that have minimal connections to the selected forum. See, e.g., Peile, 645 N.E.2d at 194 (ordering transfer and holding that trial court abused discretion by failing to transfer case to county where accident took place); Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 797 N.E.2d 687, 701 (2003); Cook v. General Electric Co., 146 Ill. 2d 548, 588 N.E.2d 1087, 1092-93 (1992) (same). In cases involving an appeal of an order granting a new trial, assessing whether the trial court abused its discretion primarily involves the reviewing court looking at whether the jury s verdict was supported by the evidence and whether the losing party was denied a fair trial. Marotta, 108 Ill.2d 168, 483 N.E.2d at 506-08. As a result, a petitioner appealing such an order would be well-advised to prepare a detailed statement of facts highlighting the evidence in support of the verdict. 3. Failure to Appeal Waiver? In most cases, failure to appeal a Rule 306 order does not result in a waiver and the issue can be appealed, assuming it is properly preserved and raised in the party s post-trial motion, at the conclusion of the case. There are cases, however, holding that the granting of a new trial must be appealed pursuant to Supreme Court Rule 306(a), or it is waived. Rodrigez v. Chicago Transit Authority, 58 Ill. App. 2d 150, 206 N.E.2d 828 (1st Dist. 1965). In addition, in Robbins v. Professional Construction Co., 72 Ill.2d 215, 380 N.E.2d 786 (1978), the Illinois Supreme Court suggested that even if a Rule 306(a) petition is filed and denied, the issue cannot be relitigated after a verdict has been rendered on retrial. One appellate court has since suggested that Robbins is no longer good law in light of the supreme court s later decision in Kemner v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d 1327 (1986). See Craigmiles v. Egan, 248 Ill.App.3d 911, 618 N.E.2d 1242 (4th Dist. 1993). III. APPEALS AS A MATTER OF RIGHT

Supreme Court Rule 307(a) permits an appeal as a matter of right in cases involving seven separate categories of interlocutory orders. Orders involving injunctions, receiverships, mortgages, escrows, parental rights in adoption cases, and eminent domain are immediately appealable as of right. S. Ct. Rule 307(a). In the federal system, 28 U.S.C. 1292(a) similarly permits an appeal of right from orders relating to injunctions, receivers, and certain admiralty orders. 28 U.S.C. 1292.

A.

Injunctions

Rule 307 is most commonly used to appeal an order either granting or refusing to grant an injunction. Rule 307(a)(1) permits an appeal as of right from any order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. S. Ct. Rule 307(a)(1). A wide variety of cases fall within the scope of this rule, regardless of whether the trial court labels the order as an injunction. Orders compelling or refusing to compel arbitration, stay orders, protective orders, and various similar orders have been held appealable under Rule 307. The basic rule is that an interlocutory order, injunctive in nature, is appealable under Rule 307. Halvorsen v. Richter, 37 Ill.App.3d 344, 345 N.E.2d 220 at 222 (1976). For example, an order denying a stay of proceedings pending arbitration is appealable as an order denying an injunction. See, e.g., School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 215 N.E.2d 25, 28 (1966); Atkins v. Rustic Woods Partners, 171 Ill.App.3d 373, 525 N.E.2d 551, 555 (1988). Discovery orders, however, are not considered injunctions, even though they order parties to perform particular acts, because they are considered a part of the court s inherent power to control proceedings. JFS v. ABMJ, 120 Ill.App.3d 261, 458 N.E.2d 76 at 78 (1st Dist. 1983). An appeal pursuant to Rule 307 must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated Notice of Interlocutory Appeal conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof. The briefing schedule is accelerated with all briefs due within a total of 21 days from the filing of the record (appellant s brief due seven days from fling of the record, appellee s brief due seven days later, and appellant s reply brief due seven days thereafter). S. Ct. Rule 307(c). B. Temporary Restraining Orders (TROs)

TROs are appealable pursuant to Rule 307(d), but practitioners must act quickly. The rule requires that a notice of interlocutory appeal and petition be filed within 2 days of the order granting or denying the TRO. In addition, within that same 2 day period, the party seeking relief must file an appropriate supporting record which includes the notice of interlocutory appeal, the TRO or proposed TRO, the complaint, and the motion, and any supporting documents necessary for review. S. Ct. Rule 307 (d)(1). Obtaining a ruling is also accelerated by the rule, which requires the Appellate court to consider and decide the petition within five days. . . . S. Ct. Rule 307(d)(4). No oral argument is permitted. Id. C. Other Considerations

A motion to reconsider, as with Rule 306 appeals, does not toll the time for filing an interlocutory appeal pursuant to Rule 307. Trophytime, Inc. v. Graham, 73 Ill.App.3d 335, 391 N.E.2d 1074 (4th Dist. 1979). With the exception of appeals involving TROs (which if not pursued on appeal precludes later review of the propriety of granting or denying such an order), a party s failure to appeal pursuant to Rule 307 does not preclude later review after the entry of final judgment. Salsitz v. Kreiss, 198 Ill.2d 1, 761 N.E.2d 724 (2001).

IV.

APPEALS BY PERMISSION FROM QUESTIONS OF LAW CERTIFIED BY THE TRIAL COURT

Supreme Court Rule 308 permits interlocutory appeals by permission when the trial court finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. S. Ct. Rule 308(a). The trial court must state the question in writing, identifying the question of law involved. Id. The applicable federal rule, 28 U.S.C. 1292(b) contains nearly identical language. 28 U.S.C. 1292(b). A. Procedure

Under the Illinois rule, an application for leave to appeal must be filed with the clerk of the Appellate Court within 14 days after entry of the order (containing the necessary certification pursuant to rule 308). S. Ct. Rule 308(b). The federal rule requires that the application be filed within ten day of the entry of the order (which, under the federal rules, is typically 14 days because intervening Saturday, Sundays and Holidays are excluded when the time for acting is less than 11 days). 28 U.S.C. 1292(b). B. Questions of Law as to Which There is a Substantial Ground for Difference of Opinion.

An order generally involves a question of law as to which there is substantial ground for difference of opinion where a trial court rules in a manner that appears contrary to the rulings of the appellate courts that have reached the same issue (Longo v. Carlisle De Coppet & Co., 537 F.2d 685 (2d Cir. 1976)), where a question of first impression is presented (Costello v. Governing Bd. of Lee County Special Educ. Ass'n, 252 Ill. App. 3d 547 (2nd Dist 1993)), or where there is a "substantial likelihood that the appellant's position will prevail on appeal" (7-Up Co. v. O-So Grape Co., 179 F. Supp. 167, 172 (S.D. Ill. 1959)). C. Standard for Determining Whether an Immediate Appeal Will Materially Advance the Ultimate Termination of the Litigation

Illinois courts typically examine a number of factors in determining whether an interlocutory appeal may materially advance the ultimate termination of the litigation. Although the precise parameters governing when immediate an appeal is likely to materially advance the ultimate termination of the litigation are not defined, cases where a long trial would [otherwise] be necessary are typically considered to meet this standard for interlocutory appeal. See, e.g., Voss v. Lincoln Mall Mgmt. Co., 166 Ill. App. 3d 442, 447, 519 N.E.2d 1056, 1060 (1st Dist. 1988); Lerner v. Atl. Richfield Co., 690 F.2d 203, 211 (Ct. App. 1982). Similarly. preliminary motions in complex class actions are good candidates for interlocutory appeal under this standard because such appeals can potentially head off years of protracted litigation. See, e.g., Perlman v. First Nat l Bank of Chicago, 15 Ill. App. 3d 784, 790, 305 N.E.2d 236, 241 (1st Dist. 1973) (granting Rule 308 review of denial of motion for judgment on the pleadings in complex class action due to likelihood of materially advancing the termination of the litigation); see also Voss, 166 Ill. App. 3d at 445-50, 519 N.E.2d at 1059-62 (discussing cases that demonstrate that interlocutory appeal is most appropriate in cases that could be expected to be lengthy and expensive).

The Seventh Circuit has taken a similar approach, suggesting that an interlocutory appeal is appropriate in complex class action cases where the issue is likely to lead to difficulties in managing the litigation. In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 288 F.3d 1012, 1018-20 (7th Cir. 2002). Put another way, [t]he general purpose of 1292(b) is to provide interlocutory appeal in exceptional cases in order to avoid protracted and expensive litigation. Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979). Cf. Voss, 166 Ill. App. 3d at 447, 519 N.E.2d at 1060 ( cases where a long trial would [otherwise] be necessary are good candidates for Rule 308 review); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1190, 1244 (E.D. Pa. 1980) (final 1292(b) criterion met because of potential to avoid enormous waste of the resources of the judicial system, as well as the parties, witnesses, lawyers, jury, and everyone else involved in the litigation ). Because the Illinois rule largely tracks the language of 28 U.S.C. 1292(b) (see Ill. S. Ct. R. 308 committee comments), federal authority analyzing the standards for 1292(b) interlocutory review is deemed persuasive in determining the applicability of Rule 308. Voss v. Lincoln Mall Mgmt. Co., 166 Ill. App. 3d 442, 446, 519 N.E.2d 1056, 1059 (1st Dist. 1988) Denials of motions to dismiss and motions for judgment on the pleadings are often accepted for interlocutory appeal under Rule 308 due to the dramatic potential for avoiding lengthy discovery and trial proceedings that otherwise would be forthcoming. See, e.g., Perlman, 15 Ill. App. 3d at 790, 305 N.E.2d at 241; Shelton v. City of Chicago, 42 Ill. 2d 468, 248 N.E.2d 121 (1969); Ewing v. Liberty Mut. Ins. Co., 130 Ill. App. 3d 716, 717, 474 N.E.2d 949, 950 (5th Dist. 1985); Voss, 166 Ill. App. 3d at 446, 519 N.E.2d at 1059 (pointing out that the Ewing court, by accepting interlocutory review and reversing the denial of a motion to dismiss, averted the need for a trial that might examine [various issues] at length and would have required substantially more time than an ordinary personal injury case (citations omitted)). See also In re HealthCare Compare Corp. Sec. Litig., 75 F.3d 276 (7th Cir. 1996) (granting leave to appeal and reversing district court determination that pleadings adequately pled fraud with sufficient particularity). D. Standard of Review is De Novo and Usually Limited to the Question Certified

One advantage to appellants in Rule 308 and Section 1292(b) appeals is the less deferential standard of review. Questions of law certified for interlocutory review are governed by a de novo standard of review; thus, an appellate court should decide such questions independently of the trial court s decision. See, e.g., In re: Lawrence M., 172 Ill. 2d 523, 670 N.E.2d 710, 712 (1996); Thompson v. Gordon, 356 Ill. App. 3d 447, 827 N.E.2d 983, 987 (2005). Litigants must be careful in ensuring that a proper question of law is certified by the trial court, as the appellate court s jurisdiction is limited to the question identified for review. Zimmerman v. Northfield Real Estate, Inc., 156 Ill.App.3d 154, 510 N.E.2d 409 (1st Dist. 1986). Although appellate courts typically decide only the questions certified, [i]n the interests of judicial economy and reaching an equitable result . . . a reviewing court may go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal. Thompson, 827 N.E.2d at 987.

APPENDIX (Rules) Illinois Supreme Court Rule 306

Rule 306. Appeals From Orders of the Circuit Court Granting New Trials and Granting or Denying Certain Motions (a) Orders Appealable by Petition. A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court: (1) from an order of the circuit court granting a new trial; (2) from an order of the circuit court allowing or denying a motion to dismiss on the 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 this State on such grounds; (3) from an order of the circuit court denying a motion to dismiss on the grounds that the defendant has done nothing which would subject defendant to the jurisdiction of the Illinois courts; (4) from an order of the circuit court granting or denying a motion for a transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the plaintiff; (5) from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules; (6) from an order of the circuit court which remands the proceeding for a hearing de novo before an administrative agency; or (7) from an order of the circuit court granting a motion to disqualify the attorney for any party; (8) from an order of the circuit court denying or granting certification of a class action under section 2-802 of the Code of Civil Procedure (735 ILCS 5/2-802). If the petition for leave to appeal an order granting a new trial is granted, all rulings of the trial court on the posttrial motions are before the reviewing court without the necessity of a cross-petition. (b) Procedure for Petitions. The procedure for petitions for leave to appeal orders under paragraph (a)(5) shall be as provided in this paragraph (b). The procedure for petitions for leave to appeal other orders under paragraph (a) shall be provided in paragraphs (c) through (i). (1) Petition; Service; Record. Unless another form is ordered by the Appellate Court, review of an order affecting the care and custody of an unemancipated minor as authorized in paragraph (a)(5) shall be by petition filed in the Appellate Court. A notice of interlocutory appeal substantially conforming to the notice of appeal in other cases shall also be filed within the time allowed by this paragraph for filing the petition. The petition shall be in writing and shall state the relief requested and the grounds for the relief requested. An appropriate supporting record shall accompany the petition, which shall include the notice of interlocutory appeal, the order appealed from or the proposed order, and any supporting documents or matters of record necessary to the petition. The supporting record must be authenticated by the certificate of the clerk of the trial court or by the affidavit of the attorney or party filing it. The petition, supporting record and the petitioner's legal memorandum, if any, shall be filed in the Appellate Court within five business days of the entry or denial of the order from which review is being sought, with proof of personal service or facsimile service as provided in Rule 11.

(2) Legal Memoranda. The petitioner may file a memorandum, not exceeding 15 typewritten pages, with the petition. The respondent or any other party or person entitled to be heard in the case may file, with proof of personal service or facsimile service as provided in Rule 11, a responding memorandum within five business days following service of the petition and petitioner's memorandum. A memorandum by the respondent or other party may not exceed 15 typewritten pages. (3) Replies; Extensions of Time. Except by order of court, no replies will be allowed and no extension of time will be allowed. (4) Variations by Order of Court. The Appellate Court may, if it deems it appropriate, order a different schedule, or order that no memoranda be filed, or order that other materials need not be filed. If the petition is allowed, the court may order the filing of such additional material from the trial court and the parties as may be necessary to a full determination of the case. (c) Petition. The petition shall contain a statement of the facts of the case, supported by reference to the supporting record, and of the grounds for the appeal. An original and three copies of the petition (or original and five copies in workers' compensation cases arising under Rule 22(g)) shall be filed in the Appellate Court in accordance with the requirements for briefs within 30 days after the entry of the order. A supporting record conforming to the requirements of Rule 328 shall be filed with the petition. (d) Answer. Any other party may file an original and three copies of an answer (or original and five copies in workers' compensation cases arising under Rule 22(g)) within 21 days of the filing of the petition, together with a supplementary supporting record conforming to Rule 328 consisting of any additional parts of the record the party desires to have considered by the Appellate Court. No reply will be received except by leave of court or a judge thereof. (e) Appendix to Petition; Abstract. The petition shall include, as an appendix, a copy of the order appealed from, and of any opinion, memorandum, or findings of fact entered by the trial judge, and a table of contents of the record on appeal in the form provided in Rule 342(a). If the Appellate Court orders that an abstract of the record be filed, it shall be in the form set forth in Rule 342(b) and shall be filed within the time fixed in the order. (f) Extensions of Time. The above time limits may be extended by the reviewing court or a judge thereof upon notice and motion, accompanied by an affidavit showing good cause, filed before expiration of the original or extended time. (g) Stay; Notice of Allowance of Petition. If the petition is granted, the proceedings in the trial court are stayed. Upon good cause shown, the Appellate Court or a judge thereof may require the petitioner to file an appropriate bond. Within 48 hours after the granting of the petition, the clerk shall send notice thereof to the clerk of the circuit court. (h) Additional Record. If leave to appeal is allowed, any party to the appeal may request that additional portions of the record on appeal be prepared as provided in Rule 321 et seq., or the court may order the appellant to file the record, which shall be filed within 35 days of the date on which such leave was allowed. The filing of an additional record shall not affect the time for filing briefs under this rule. (i) Briefs. A party may allow his or her petition or answer to stand as his or her brief or may file a further brief in lieu of or in addition thereto. If a party elects to allow a petition or answer to stand as a brief, he or she must notify the other parties and the Clerk of the Appellate Court on or before the due date of the brief and supply the court with the requisite number of briefs required by Rule 341(e). If the appellant elects to file a further brief, it must be filed within 35 days from the date on which leave to appeal was granted. The appellant's brief, and other briefs if filed, shall conform to the schedule and requirements as provided in Rules 341 through 343. Oral argument may be requested as provided in Rule 352(a).

Illinois Supreme Court Rule 307

Rule 307. Interlocutory Appeals as of Right (a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; (2) appointing or refusing to appoint a receiver or sequestrator; (3) giving or refusing to give other or further powers or property to a receiver or sequestrator already appointed; (4) placing or refusing to place a mortgagee in possession of mortgaged premises; (5) appointing or refusing to appoint a receiver, liquidator, rehabilitator, or other similar officer for a bank, savings and loan association, currency exchange, insurance company, or other financial institution, or granting or refusing to grant custody of the institution or requiring turnover of any of its assets; (6) terminating parental rights or granting, denying or revoking temporary commitment in adoption cases; (7) determining issues raised in proceedings to exercise the right of eminent domain under section 7-104 of the Code of Civil Procedure, but the procedure for appeal and stay shall be as provided in that section. Except as provided in paragraph (b) and (d), the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated Notice of Interlocutory Appeal conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof. (b) Motion to Vacate. If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order. An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon. (c) Time for Briefs and Abstract if an Abstract Is Required. Unless the Appellate Court orders a different schedule or orders that no briefs be filed, the schedule for filing briefs shall be as follows: The brief of appellant shall be filed in the Appellate Court, with proof of service, within 7 days from the filing of the record on appeal. Within 7 days from the date appellant's brief is filed, the appellee shall file his brief in the Appellate Court with proof of service. Within 7 days from the date appellee's brief is filed, appellant may serve and file a reply brief. The briefs shall otherwise conform to the requirements of Rules 341 through 344. If the Appellate Court so orders, an abstract shall be prepared and filed as provided in Rule 342. (d) Appeals of Temporary Restraining Orders; Time; Memoranda. (1) Petition; Service; Record. Unless another form is ordered by the Appellate Court, review of the granting or denial of a temporary restraining order or an order modifying, dissolving, or refusing to dissolve or modify a temporary restraining order as authorized in paragraph (a) shall be by petition filed in the Appellate Court, but notice of interlocutory appeal as provided in paragraph (a) shall also be filed, within the same time for filing the petition. The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought. An appropriate supporting record shall accompany the petition, which shall include the notice of interlocutory appeal, the temporary restraining order or the proposed temporary restraining order, the complaint, the motion requesting the granting of

10

the temporary restraining order, and any supporting documents or matters of record necessary to the petition. The supporting record must be authenticated by the certificate of the clerk of the trial court or by the affidavit of the attorney or party filing it. (2) Legal Memoranda. The petitioner may file a memorandum supporting the petition which shall not exceed 15 typewritten pages and which must also be filed within two days of the entry of the order that is being appealed under paragraph 1 of this section. The respondent shall file, with proof of personal service or facsimile service as provided in Rule 11, any responding memorandum within two days following the filing of the petition, supporting record, and any memorandum which must be personally served upon the respondent. The respondent's memorandum may not exceed 15 typewritten pages and must also be personally served upon the petitioner. (3) Replies: Extensions of Time. Except by order of court, no replies will be allowed and no extension of time will be allowed. (4) Time for Decision: Oral Argument. After the petitioner has filed the petition, supporting record, and any memorandum and the time for filing any responding memorandum has expired, the Appellate Court shall consider and decide the petition within five days thereafter. Oral argument on the petition will not be heard. (5) Variations by Order of Court. The Appellate Court may, if it deems it appropriate, order a different schedule, or order that no memoranda be filed, or order the other materials need not be filed.

11

ILLINOIS SUPREME COURT RULE 308

Rule 308. Interlocutory Appeals by Permission (a) Requests. When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court's own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order. (b) How Sought. The appeal will be sought by filing an application for leave to appeal with the clerk of the Appellate Court within 14 days after the entry of the order in the trial court or the making of the prescribed statement by the trial court, whichever is later. An original and three copies of the application shall be filed. (c) Application; Answer. The application shall contain a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court; a statement of the question itself; and a statement of the reasons 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. The application shall be accompanied by an original supporting record (Rule 328), containing the order appealed from and other parts of the trial court record necessary for the determination of the application for permission to appeal. Within 14 days after the due date of the application, an adverse party may file an answer in opposition, with copies in the number required for the application, together with an original of a supplementary supporting record containing any additional parts of the record the adverse party desires to have considered by the Appellate Court. The application and answer shall be submitted without oral argument unless otherwise ordered. (d) Record; Briefs. If leave to appeal is allowed, any party may request that an additional record on appeal be prepared as provided in Rule 321 et seq., or the court may order the appellant to file the record, which shall be filed within 35 days of the date on which such leave was allowed. The appellant shall file a brief in the reviewing court within the same 35 days. Otherwise the schedule and requirements for briefs shall be as provided in Rules 341 through 344. If the reviewing court so orders, an abstract shall be prepared and filed as provided in Rule 342. (e) Stay. The application for permission to appeal or the granting thereof shall not stay proceedings in the trial court unless the trial court or the Appellate Court or a judge thereof shall so order.

12

28 U.S.C. 1292
1292. Interlocutory decisions (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction-(1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting. (d)(1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title, or when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (2) When the chief judge of the United States Court of Federal Claims issues an order under section 798(b) of this title, or when any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Court of Federal Claims, as the case may be, unless a stay is ordered by a judge of

13

the Court of International Trade or of the Court of Federal Claims or by the United States Court of Appeals for the Federal Circuit or a judge of that court. (4)(A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under section 1631 of this title. (B) When a motion to transfer an action to the Court of Federal Claims is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court's grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the district court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedition is reasonably necessary. However, during the period in which proceedings are stayed as provided in this subparagraph, no transfer to the Court of Federal Claims pursuant to the motion shall be carried out. (e) The Supreme Court may prescribe rules, in accordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under subsection (a), (b), (c), or (d). CREDIT(S) (June 25, 1948, c. 646, 62 Stat. 929; Oct. 31, 1951, c. 655, 49, 65 Stat. 726; July 7, 1958, Pub.L. 85-508, 12(e), 72 Stat. 348; Sept. 2, 1958, Pub.L. 85-919, 72 Stat. 1770; Apr. 2, 1982, Pub.L. 97-164, Title I, 125, 96 Stat. 36; Nov. 8, 1984, Pub.L. 98-620, Title IV, 412, 98 Stat. 3362; Nov. 19, 1988, Pub.L. 100-702, Title V, 501, 102 Stat. 4652; Oct. 29, 1992, Pub.L. 102-572, Title I, 101, Title IX, 902(b), 906(c), 106 Stat. 4506, 4516, 4518.) Current through P.L. 111-12 (excluding P.L. 111-5, 111-8, and 111-11) approved 3-30-09 Westlaw. (C) 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

14