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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,

Held [*]

Defendant private school’s appeal from a temporary restraining order staying plaintiff’s expulsion pending a hearing on plaintiff’s request for a preliminary injunction was dismissed due to defendant’s violation of Supreme Court Rule 307(d) governing such appeals, since defendant, on the required filing date, filed a notice of appeal in the circuit court, then mailed its notice, petition for review, supporting memorandum of law and proof of service by mail to plaintiff and the appellate court, but these items were not filed in the appellate court, as required by Rule 307, thereby depriving the appellate court of jurisdiction, and defendant’s filing could not be saved by the “mailbox rule” when the appellate court did not receive anything until after the two-day deadline had passed, especially in view of the special deadlines applicable to TRO appeals; furthermore, defendant failed to provide proof of service by personal delivery or facsimile service and plaintiff’s counsel received the petition and memorandum by mail late on the day before he had to file his response.

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

Ausaf Farooqi, of DuPage Attorneys, LLC, of Oak Brook, for appellant.

Edward X. Clinton, of Clinton Law Firm, of Chicago, for appellee.

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 ...

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