Can an oral order apparently disposing of all post-trial motions start the appeals clock running when the trial court is still considering a post-trial motion for setoff (and may be planning to enter a written order on the post-trial motions)? That’s the question that the Illinois Supreme Court debated in the closing days of its November term in Williams v. BNSF Railway Company. Our detailed report on the underlying facts and lower court opinions in Williams is here.

Williams arises under the Federal Employers’ Liability Act. Following a jury trial, the plaintiff was awarded judgment. In April 2012, the trial court issued an oral ruling denying all post-trial motions. Although the court suggested that a written order would be forthcoming, none was ever entered. This left only a motion for setoff pending. The defendant filed an emergency motion for leave to file supplemental authority the following month. During a June 1 hearing, the Court again stated that the post-trial motions had already been denied, but ultimately agreed to consider the new authority; a few days later, it reiterated its previous rulings and issued a written order. The order said it was “final and appealable.” The defendant filed its notice of appeal on June 29. The Appellate Court granted the plaintiff’s motion to dismiss defendant’s appeal from the judgment.

Counsel for the defendant began the argument. Counsel argued that Supreme Court Rule 272 exists to remove all doubt as to when the appealable judgment was entered. If the Appellate Court had applied Rule 272 as written, the case wouldn’t be before the Court, counsel argued. Justice Theis asked what the Court should do with the trial judge’s comment in the oral ruling that the court would issue an order in ten days or so. Counsel responded that Rule 272 covers two scenarios. First is when the court indicates that a written signed order will be forthcoming – then the appealable judgment is entered when the signed order is filed. Justice Theis asked whether there was a signed order, and counsel said yes, on June 6. Viewing the record in its entirety, counsel argued, the judge intended the June 6 order to definitively dispose of all post-trial motions. Counsel argued that an oral pronouncement, standing alone, does not start the appeal time running. In this case, that’s all that occurred before the June 6 written order. Therefore, applying Rule 272, the notice of appeal is timely. Counsel argued that appellees insist that Rule 272 only applies to final judgment, not post-trial motions. No case holds that Rule 272 doesn’t apply to post-trial motions, counsel stated, and such a construction would make no sense. Counsel argued that the plaintiff’s entire argument rests on the proposition that Rule 272 only uses the word “judgment,” not “Judgment or order.” The only way to accomplish the purpose of Rule 272 – to eliminate all doubt about the time to appeal – is to apply is across the board to everything. When counsel turned briefly to the plaintiff’s alternative argument that the notice of appeal was premature, Justice Theis noted that there is some discussion of Rule 304(a) – was there a Rule 304(a) finding in the June 6 order? Counsel responded that the June 6 written order disposed of everything left in front of the court. Counsel noted that on June 1, the trial court had directed the parties to return on June 6 and the court would give the parties a record “you can take up.” Counsel closed by noting that if the Court reaches the merits (as opposed to merely disposing of the issue of timeliness of the appeal), defendants ask that the Court reach the interpretation of an indemnity contract. Justice Thomas asked whether there is any reason why the Court shouldn’t ship the substantive issues back to the Appellate Court, if it reverses on timeliness. Counsel answered that judicial economy would dictate disposing of everything. Justice Thomas asked whether plaintiffs believe there are fact disputes involved in the merits issues. Counsel said yes, although the defendants disagree.

Counsel for the plaintiff followed, arguing that the appeal was properly dismissed for lack of jurisdiction. Counsel argued that Rule 272 does not govern the disposal of post-judgment motions given that its plain language refers to “judgments.” Moreover, even if Rule 272 does govern the situation, defendant’s failure to include the docket sheet in the record on appeal prevents the proper application of the rule. The only court action in the case subject to Rule 272, counsel argued, was the judgment entered the same day as the jury verdict. Justice Thomas asked whether the defendant could have appealed the April 18 oral order prior to the written order on June 6, and counsel said yes. The only remaining issue following that order was a collateral issue not impacting the accuracy of the judgment. Counsel argued that it was incumbent on the defendant to appeal from the oral ruling. An oral ruling is entered the moment it is pronounced on the record, according to counsel. Rule 272 modifies that common law rule only for final judgments. Justice Thomas asked whether the plaintiff has any evidence that the oral order was entered of record. Counsel responded that no notation by the clerk was necessary; the common law rule was that the order was entered the moment it was announced. Justice Thomas asked why the plaintiff opposed the defendant’s motion to supplement the record with copies of the law record for the period of the oral order. Counsel answered that it was too little too late. If Rule 272 applies, then it becomes necessary to examine the court’s docket sheet, but defendant failed to include that in the record on appeal. It was well within the Appellate Court’s discretion, counsel argued, to deny a motion to add to the record after the Appellate Court had already decided the case. Justice Thomas asked whether, if the Court disagreed about Rule 272 applying to post-judgment motions, there was any way to avoid the conclusion that the June 6 order was entry of record for purposes of the Rule. Counsel responded that if the defendant was correct that only a written record is sufficient to satisfy the Rule, then the June 6 written order applies to only a couple of orders. Therefore, if the defendant is right, then the appeal still hasn’t been perfected. But plaintiff argues that the defendant’s failure to include the docket sheet in the record precludes application of the Rule. Justice Thomas noted that opposing counsel had seemed to indicate that some strategy was involved in the entry of the orders, and asked whether there was any gamesmanship involved. Counsel answered no – since the oral announcement of the post-trial orders was not subject to Rule 272, it was effective at the moment of announcement.

Counsel for the third-party defendant followed. He argued that the Appellate Court was correct in dismissing, both on grounds of untimeliness and for failure to provide a sufficient record. The April oral ruling was a final decision under Rule 272 based on the record the defendant provided, counsel argued. All that the defendant provided in the record was the April transcript, the June written order, and two June transcripts, and there was no basis for finding appellate jurisdiction based on that, according to counsel. Justice Theis asked what impact the trial court’s statement in the April transcript that it would enter a written order later should have. Counsel answered that it had no impact. Justice Theis asked what should have happened next after the trial court indicated it would enter a written order and didn’t? Counsel answered that the Appellate Court, based on the record before it, was entitled to presume that that’s what happened. Justice Thomas asked how the Appellate Court could reasonably assume that an order was entered when in fact it wasn’t. How could the defendant provide proof that something didn’t happen? Counsel answered that the defendant’s obligation was to provide the law record to the Appellate Court. In its absence, the Appellate Court was entitled to presume that the record was complete and correct. Justice Theis asked what the appeal date would have been if the written order had been timely entered. Counsel responded that the record would reflect a written order ten days after the oral announcement. Justice Thomas pointed out that both plaintiff and the third-party defendant had failed to offer evidence that the April oral order was entered of record, and in fact, it wasn’t. Counsel agreed that was correct. Justice Thomas pointed out that the plaintiff and third-party defendant opposed supplementing the record with copies of the law record. So where doe0s fairness enter into this? Counsel answered that it was the defendant’s obligation to get it right. Justice Thomas asked whether there was something wrong with presuming that an order was entered when everyone knows it wasn’t. Counsel answered that the order was entered at the moment it was orally announced. Justice Thomas explained that he meant the written order. Counsel answered that the bottom line was it was the defendant’s obligation to provide a record to show jurisdiction.

Counsel for the defendant argued in rebuttal that the appellees’ arguments were very similar to what led to the creation of Rule 272. Justice Thomas asked counsel to address the argument that defendant failed to provide an adequate record. Counsel responded that the rules provide that the record on appeal consists of the entire common law record. So that’s what the Circuit Court prepared and submitted. The law record is not typically included by the clerk. The appellees initially moved to dismiss in the wake of the filing of the notice of appeal, but that motion was denied; the appeal was ultimately dismissed by the merits panel. Counsel argued that appellees had taken the position before the Appellate Court that Rule 272 applies to both judgments and post-trial orders, and that accordingly the notice of appeal might be premature (since there had never been a written order with respect to a number of post-trial challenges). Justice Thomas pointed out that that argument rested on the fact that there was no written order following the April hearing. Counsel agreed, and argued that the defendant had provided the record of everything that happened. If the plaintiff and third-party defendant choose to rely on the April oral ruling to foreclose the appeal, they were obliged to provide a sufficient record to show that it had been entered in the record, as required by Rule 272. Justice Kilbride asked whether the declarations in the record memorializing the April oral ruling had any consequence. Counsel pointed out that those declarations were made on June 1, less than thirty days before the notice of appeal was filed. Counsel argued that the Court should decline to hold that filing a transcript satisfies Rule 272, since a party would be unable to tell when judgment had been filed from the court docket sheet. But if those declarations triggered Rule 272, then the notice of appeal was timely filed.

We expect Williams to be decided in four to six months.

Image courtesy of Flickr by Alexander Boden (no changes).