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Nizamuddin v. Community Education In Excellence, Inc.

Court of Appeals of Illinois, Second District

December 23, 2013

NADEEM NIZAMUDDIN, Plaintiff-Appellee,

Appeal from the Circuit Court of Du Page County No. 13-CH-3252 Honorable Bonnie M. Wheaton, Judge, Presiding.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.



¶ 1 On November 22, 2013, the circuit court of Du Page County entered a temporary restraining order (TRO) requiring the defendant, Community Education in Excellence, Inc., the operator of a private school, to stay the expulsion of the plaintiff, Nadeem Nizamuddin, a student at the school. The TRO was to remain in effect until a hearing on the plaintiff's request for a preliminary injunction could be held.

¶ 2 Wishing to appeal the trial court's grant of the TRO, on November 25, 2013, the defendant filed a notice of appeal in the circuit court. It then mailed—to both this court and the plaintiff—copies of: (1) the notice of appeal, (2) its petition for review, (3) its memorandum of law in support of its petition, and (4) a proof of service for all of these items, stating that they had been served upon the plaintiff by being placed in the regular United States mail with proper postage prepaid. We dismissed the appeal on December 2, 2013. We now issue this opinion to explain why.

¶ 3 Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010) permits an interlocutory appeal as of right from an order granting a TRO. Such appeals are highly expedited, and are governed by subsection (d) of the rule, which states in pertinent part:

"[R]eview of the granting or denial of a temporary restraining order 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." Ill. S.Ct. R. 307(d)(1) (eff. Feb. 26, 2010).

Any legal memorandum in support of the appellant's petition must be filed at the same time. The appellee then has two days to file a responsive memorandum. Ill. S.Ct. R. 307(d)(2) (eff. Feb. 26, 2010). The reviewing court must decide the appeal within five days of the date on which the response was due. Ill. S.Ct. R. 307(d)(4) (eff. Feb. 26, 2010).

¶ 4 Here, the defendant violated Rule 307(d) in several ways. The rule required the defendant to file, in the appellate court, the notice of interlocutory appeal, petition, and memorandum in support of the petition by Monday, November 25. The defendant filed none of these items with us, however, choosing instead to file the notice of interlocutory appeal with the circuit court on that date and then mail its documents to us via regular mail. We did not receive the defendant's mailed documents until November 26, outside of the two-day window.

¶ 5 We are of the opinion that the defendant's failure to file the notice of appeal in this court within the two-day period deprived us of jurisdiction over the appeal. The filing of a notice of appeal, in the correct court, is what confers jurisdiction over the appeal. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994) (an appeal "is initiated by filing a notice of appeal"; "[n]o other step is jurisdictional"); see also First Bank v. Phillips, 379 Ill.App.3d 186, 188 (2008) (appellate court had no power to hear appeal when the notice of appeal was mistakenly filed in the appellate court instead of the circuit court; Rule 303, under which the appeal was brought, provided that the notice of appeal must be filed in the circuit court).

¶ 6 In this case, Rule 307(d) clearly specifies that review of a TRO is commenced by a "petition filed in the Appellate Court" within two days of the entry of the order being appealed, and that a notice of interlocutory appeal "shall also be filed" within the same time period. (Emphasis added.) Ill. S.Ct. R. 307(d) (eff. Feb. 26, 2010). Although the rule does not state point blank that the notice of interlocutory appeal must be filed in the appellate court, for decades the rule has been interpreted to mean this. See Harper v. Missouri Pacific R.R. Co., 264 Ill.App.3d 238, 244 (1994) (under the rule, an "aggrieved party has two days to file its notice of interlocutory appeal and petition in the appellate court"); see also Bartlow v. Shannon, 399 Ill.App.3d 560, 563 (2010) (to appeal an order granting or denying a TRO, the appellant must file a notice of appeal and a petition with the appellate court within two days). Further, to the extent that the language of the rule could be considered ambiguous, we must construe it to avoid absurd results. In re B.C.P., 2013 IL 113908, ¶ 7 ("the same rules apply to the construction of statutes and supreme court rules"); Solon v. Midwest Medical Records Ass'n, Inc., 236 Ill.2d 433, 440- 41 (2010) (in construing a statute, courts may consider the consequences of various constructions and must presume that absurd, inconvenient, or unjust consequences were not intended). It would make no sense to impose a highly expedited filing deadline that required documents essential to the appeal—the petition and the notice of interlocutory appeal—to be filed, within 48 hours, in two different courts. Accordingly, we read Rule 307(d)(1) as requiring the notice of interlocutory appeal, like the petition, to be filed in the appellate court within the required time. Hence, the defendant's filing of the notice of appeal in the circuit court did not comply with Rule 307(d) and did not create jurisdiction over the appeal.

¶ 7 Nor can the appeal be saved by the fact that the defendant mailed the necessary documents to us for filing, because those documents were not received until after the two-day deadline had passed. Given the highly expedited nature of TRO appeals brought under Rule 307(d), the "mailbox rule" contained in Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009) does not apply to such appeals.

¶ 8 Rule 373 provides that, if received after the due date, "records, briefs or other papers required to be filed within a specified time" will be deemed filed in the reviewing court as of the date when they were either mailed or delivered to a third-party commercial carrier for delivery within three business days. Ill. S.Ct. R. 373 (eff. Dec. 29, 2009). Rule 373 is a general rule, intended to provide a safe harbor making it "unnecessary for counsel to make sure that briefs and other papers mailed before the filing date actually reach the reviewing court within the time limit." Ill. S.Ct. R. 373, Committee Comments (rev. July 1, 1985). Our supreme court has stated that Rule 373 "evinces a general policy of equating mailing and filing dates, particularly with respect to appellate practice" (Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill.2d 326, 341 (1989)), and that "a liberal pro-mailing policy is more equitable" because it allows smaller law firms to file documents in the appellate courts as easily as large firms that have more resources for messengers and the like (id. at 342). The supreme court recently reiterated this pro-mailing position in Gruszeczka v. Illinois Workers' Compensation Comm'n, 2013 IL 114212, ¶ 28.

ΒΆ 9 We are not unmindful of the policy concerns expressed by the supreme court. Nevertheless, we believe that the liberal pro-mailing policy contained in Rule 373 is at odds with the tight deadlines of Rule 307(d). Indeed, applying the mailbox rule in the context of TRO appeals ...

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