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No Jurisdiction To Hear Appeal Of Denial Of Motion To Dismiss

By Steven R. Merican

Nicor, a gas utility company, claimed that a ruptured water main caused damage to a gas main and caused a natural gas outage. So Nicor sued the Village of Wilmette, claiming that the Village negligently maintained the water main.

The Village moved to dismiss Nicor?s amended complaint, but the motion was denied. When Nicor filed a second amended complaint, the Village?s motion to dismiss was granted. After Nicor?s motion to reconsider was denied, the company appealed. The Village then cross-appealed from the denial of its motion to dismiss the earlier amended complaint.

On appeal, Nicor moved to strike the portions of the Village?s brief related to the cross-appeal. Nicor argued that ?its amended complaint was superseded by its second amended complaint and ? [therefore] the arguments pertaining to the Village's section 2-619 motion to dismiss [should] be stricken because they are no longer part of the record and are irrelevant to the current appeal.?

The First District Illinois Appellate Court agreed with Nicor, but disposed of the Village?s cross-appeal altogether for lack of appellate jurisdiction.

? [T]he Village's cross-appeal must be dismissed because we lack jurisdiction to consider it. The order from which the Village purports to appeal was entered on October 26, 2005, yet the Village filed its notice of appeal only in April 2007. Thus, the Village's notice of appeal was not timely filed. See 155 Ill.2d R. 303(a)(1) (requiring notice of appeal to be filed within 30 days after entry of final order). Moreover, the denial of the Village's motion was not a final order and, thus, it would not have been appealable in any event. See 155 Ill.2d R. 303(a)(1). Accordingly, because we do not have jurisdiction to hear the Village's cross-appeal, we do not consider the portions of the Village's response brief relating to the appeal of the denial of its section 2-619 motion to dismiss Nicor's amended complaint.

The appellate court?s ruling is inconsistent. It states that the Village did not appeal the final order timely, but then states that the denial of the Village?s motion to dismiss was not a final order. In any event, there was no appellate jurisdiction here. Read the whole opinion, Nicor Gas Co. v. Village of Wilmette, No. 1-07-1041 (2/29/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on May 31, 2008 (boomark / email).