Appellate Law

Trial Court?s Dismissal Of Appeal Deprives Appellate Court Of Jurisdiction

By Steven R. Merican

Bernstein and Grazian had a falling out, so they folded their law practice. Grazian started his own firm, and took some cases with him from the firm he had with Bernstein. The two lawyers fought over how much each should be paid for those files. Bernstein sued Grazian, who countersued Bernstein. Unhappy with the result in the trial court, Bernstein appealed. Grazian filed a counter appeal.

Under Illinois Supreme Court Rule 309, Bernstein asked the trial court to dismiss his appeal. The trial court obliged, but Bernstein told the appellate court his request to dismiss his appeal was a mistake. He asked the appellate court to reinstate his appeal. A single judge of the appellate court obliged that request . But Grazian asserted the earlier dismissal by the trial court deprived the appellate court of jurisdiction to reinstate the appeal.

The First District Illinois Appellate Court agreed with Grazian. Here is the court?s rationale:

Once the trial court properly dismissed Bernstein?s appeal pursuant to Rule 309 upon his own motion, it was as if Bernstein had never filed a notice of appeal in our court. Instead ? jurisdiction revested with the trial court. The only recourse for Bernstein, then, to move jurisdiction to our court was to petition the trial court to vacate its dismissal or ? file another notice of appeal from the original judgment in the cause ? some similar action taken within 30 days of the trial court?s final and appealable order dismissing his appeal.

The lesson is: The appellate court cannot regain jurisdiction after the trial court has legitimately dismissed a notice of appeal under authority given by Illinois Supreme Court Rule 309. Read the whole opinion, which includes a host of other jurisdictional arguments, Bernstein and Grazian v. Grazan and Volpe, No. 1-09-0149 (6/25/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on October 10, 2010 (boomark / email).