Appellate Law

Notice Of Appeal Fails To Confer Appellate Jurisdiction In Legal Malpractice Case

By Steven R. Merican

The beneficiaries of the Victoria R. Fitch Trust sued McDermott Will and Emery, the law firm that drafted Victoria?s estate plan, and Dietrich and Dietrich, the accounting firm that advised Victoria. The beneficiaries alleged a variety of legal claims for mishandling the estate plan.

The first count of the Complaint was against Dietrich only. The second count was against Dietrich and McDermott. The third was against McDermott only. The trial court dismissed all three counts because they were not filed before the statute of limitations expired.

The beneficiaries appealed. But their Notice of Appeal stated only that they were appealing the dismissals of Counts I and II against Dietrich. The Notice of Appeal did not mention Counts II and III against McDermott.

McDermott asked the appellate court to dismiss the appeal because, the firm argued, the Notice of Appeal was deficient. The Second District Illinois Appellate Court agreed that the Notice of Appeal did not invoke the court?s jurisdiction to hear the appeal against McDermott. Here is how the appellate court explained its ruling.

? [When] an appeal is taken from a specified judgment, the appellate court acquires no jurisdiction to review other judgments or parts of judgments that are not specified in or inferred from the notice of appeal ? The exception to this rule is when a nonspecified judgment can be said to have been a ?step in the procedural progression leading? to the judgment specified in the notice of appeal ? The purpose of the notice of appeal is to inform the prevailing party in the trial court that his opponent seeks review by a higher court ?

In their notice of appeal, plaintiffs [beneficiaries] sought review of the September 18, 2007, order only insofar as it dismissed with prejudice counts I and II in favor of the Dietrich defendants ? Even construing this notice of appeal liberally, we cannot say that McDermott was fairly and accurately advised that plaintiffs sought relief against the portion of the September 18, 2007, order that pertained to it. Thus, we find that our jurisdiction extends only to counts I and II of the original complaint and only as to the Dietrich defendants.

Click here for the whole opinion, Fitch v. McDermott, Will and Emery, No. 2-09-0029 (4/28/10).

Full post as published by Illinois Appellate Lawyer Blog on September 12, 2010 (boomark / email).