Appellate Law

Request To Modify Language Of Judgment Does Not Extend Time To File Appeal

By Steven R. Merican

Cheryl Heiden claimed Craig Ottinger was her daughter?s father. So Cheryl sued Craig under the Illinois Parentage Act, and asked for support payments from Craig. A DNA test of Craig?s blood excluded him as father. But Cheryl claimed Craig?s vial of blood was mishandled, so she sued the DNA Diagnostics Center, the company that agreed to do the test.

DNA Diagnostics asked for, and received, summary judgment on Cheryl?s complaint. Within the 30-day deadline, Cheryl filed a ?Motion to Reconsider Court Order of April 13, 2007, and For Clarification of said Order.? The trial court denied the motion, and Cheryl appealed within 30 days of that order.

But Diagnostics asserted that Cheryl?s appeal should be dismissed because it was filed more than 30 days after the summary judgment was entered by the trial court. Cheryl?s Motion to Reconsider, Diagnostics argued, was not a valid post-judgment motion, so it did not extend the time for her to file the appeal.

The Second District Illinois Appellate Court agreed with Diagnostics. The court ruled that Cheryl?s motion only asked for modification of the language of the judgment, but not an actual modification of the judgment. That kind of motion did not extend the time for Cheryl to file her appeal. Here?s how the court explained it:

Plaintiffs? appeal was untimely because they did not file a postjudgment motion that extended the time for filing their notice of appeal under Rule 303(a)(1). A postjudgment motion extends the time for filing a notice of appeal under Rule 303(a)(1) only when it seeks rehearing, retrial, modification or vacation of the judgment, or other similar relief ? For purposes of Rule 303(a)(1), a motion for modification of the judgment must challenge the judgment, not simply request modification of the language of the judgment ? Plaintiffs? motion did not request a rehearing or substantive reconsideration regarding the summary judgment and did not provide any basis for reconsideration of the summary judgment, and it did not extend the time for appeal under Rule 303(a)(1), Plaintiffs? appeal was thus untimely, and we must dismiss it.

This was a split decision. Read the whole opinion, Heiden v. DNA Diagnostics Center, No. 2-07-0620 (11/9/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 25, 2009 (boomark / email).