Illinois Official Reports

                                          Appellate Court



        Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230




Appellate Court              NADEEM NIZAMUDDIN, Plaintiff-Appellee, v. COMMUNITY
Caption                      EDUCATION IN EXCELLENCE, INC., Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-13-1230

Filed                        December 23, 2013


Held                         Defendant private school’s appeal from a temporary restraining order
(Note: This syllabus         staying plaintiff’s expulsion pending a hearing on plaintiff’s request
constitutes no part of the   for a preliminary injunction was dismissed due to defendant’s
opinion of the court but     violation of Supreme Court Rule 307(d) governing such appeals, since
has been prepared by the     defendant, on the required filing date, filed a notice of appeal in the
Reporter of Decisions        circuit court, then mailed its notice, petition for review, supporting
for the convenience of       memorandum of law and proof of service by mail to plaintiff and the
the reader.)                 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.


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


Judgment                     Appeal dismissed.
     Counsel on                Ausaf Farooqi, of DuPage Attorneys, LLC, of Oak Brook, for
     Appeal                    appellant.

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


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


                                                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
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     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, 
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
                                                  -3-
       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.
¶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 would lead to the practical evisceration of those deadlines, an absurd result.
¶ 10        As noted, Rule 307(d) sets extremely short filing deadlines for TRO appeals: the initial
       petition and accompanying materials must be filed in the appellate court within two days after
       the entry of the TRO-related order in the circuit court, and any response must be filed within
       two days after that. Ill. S. Ct. R. 307(d)(1), (d)(2) (eff. Feb. 26, 2010). The appellate court must
       then issue its decision within five days after the due date for the response–one week after the
       initial petition was filed. Ill. S. Ct. R. 307(d)(4) (eff. Feb. 26, 2010). Further, to ensure that the
       parties receive timely notice of each other’s filings, the rule requires that the parties serve all
       materials upon each other in an expedited manner, either by personal delivery or by facsimile
       service. Ill. S. Ct. R. 307(d)(1), (d)(2) (eff. Feb. 26, 2010). These tight deadlines and
       extraordinary service requirements, which are unlike those for most civil appeals, are
       necessary in order to achieve the purpose of Rule 307(d), which is “to provide an expedited
       appeal process due to the nature of the temporary restraining order, an emergency remedy
       granted on a summary showing by the movant.” Friedman v. Thorson, 
303 Ill. App. 3d 131
,
       136 (1999).
¶ 11        If the mailbox rule were applied to the filing deadlines under Rule 307(d), the time when
       the notice of interlocutory appeal, the petition, and the response were received by the appellate
       court would be “subject to the vagaries of mail delivery,” which would run counter to the goal
       of Rule 307(d). Gruszeczka, 2013 IL 114212, ¶ 52 (Freeman, J., dissenting, joined by Burke,
       J.). This possibility is shown to be even more absurd when it is compared to Rule 307(d)’s
       insistence that the parties serve all materials upon each other by either personal delivery or
       facsimile service. Interpreting the filing deadlines of Rule 307(d) as subject to the mailbox rule
       could easily result in the parties receiving prompt notice of each other’s filings while the
       appellate court remains unaware even that such an appeal has been filed. Given that delays in
       mail delivery are not uncommon (see, e.g., id. ¶ 10 (majority op.) (documents mailed by
       attorney not received by court clerk until four days later); Holesinger v. Dubuque Feeder Pig
       Co., 
104 Ill. App. 3d 39
, 42 (1982) (notice of appeal mailed by attorney was not received by
       court clerk until one week later)), it is not farfetched to imagine that a TRO appeal could
                                                     -4-
       commence and the reviewing court’s time to issue a decision could begin running before it
       even became aware of the appeal’s existence–when it happened to receive the appellant’s
       materials in the mail. We do not think that, in creating Rules 307(d) and 373, the supreme court
       intended such an absurd result. Rather, we read the specialized filing deadlines of Rule 307(d)
       to control over the general mailbox rule of Rule 373. See People v. Botruff, 
212 Ill. 2d 166
, 175
       (2004) (it is a “fundamental rule of statutory construction” that where there are two statutory
       provisions relating to the same subject, one of which is general and the other is specific, “the
       specific provision controls and should be applied”). Accordingly, we hold that the provisions
       of Rule 373 must yield to the more expedited requirements of Rule 307(d), and thus the
       mailbox rule does not apply to render this appeal timely. Where no timely notice of appeal has
       been filed, we lack jurisdiction and must dismiss the appeal. Baca v. Trejo, 
388 Ill. App. 3d 193
, 199 (2009).
¶ 12       Even if our lack of jurisdiction did not bar this appeal, the defendant’s additional failures to
       comply with Rule 307(d) support the dismissal of the appeal. Apart from the defendant’s
       failure to timely file a notice of interlocutory appeal in this court, it did not file a timely petition
       with us either. As we have held, Rule 373 has no application in the context of a TRO appeal,
       and thus the items mailed to us and received outside of the two-day deadline were not properly
       before us. As we received no timely petition pursuant to Rule 307(d), we could not consider the
       merits of the appeal. In re Estate of Meirink, 
11 Ill. 2d 561
, 564 (1957).
¶ 13       In addition, the defendant failed to include in its submission one of the items required by
       Rule 307(d): a proof of service by personal delivery or facsimile service. Instead, the defendant
       included only a proof of service by regular mail. This is not a method of service permitted in an
       appeal of a TRO under Rule 307(d), and so the proof of service did not meet the requirements
       of the rule. Because it lacked a proper proof of service, the defendant’s submission was
       incomplete, thereby violating Rule 307(d)(1) in a third manner.
¶ 14       Finally, there is evidence that the defendant’s improper service by mail caused prejudice to
       the plaintiff. In his motion to strike the petition, the plaintiff stated that his attorney did not
       receive copies of the defendant’s petition and legal memorandum until about 3:45 p.m. on
       November 26, 2013. The plaintiff was required to file his response to the petition the next day;
       thus, the defendant’s improper service by mail cost the plaintiff one of the two days available
       for drafting his response. An appeal may be dismissed where a delay in notice prejudices the
       opponent. Cf. Kmoch v. Klein, 
214 Ill. App. 3d 185
, 189 (1991) (where appellee was able to file
       responsive brief and did not demonstrate prejudice, reviewing court would not dismiss appeal
       on the basis that appellee was not timely served with notice of appeal or docketing statement).
¶ 15       It is well established that the supreme court rules “have the force of law and are binding on
       the court as well as the litigant, and that where there is a failure to comply with them the appeal
       will not be entertained.” Meirink, 11 Ill. 2d at 564. For all of these reasons, the appeal was
       dismissed.

¶ 16       Appeal dismissed.


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Case Information

Case Name: Nizamuddin v. Community Education in Excellence, Inc.

Citations: 2013 IL App (2d) 131230

Court: illappct

Year: 2014-02-18

This case can be cited as precedent.