Opinion
Rehearing Denied June 14, 1993.
Page 777
[184 Ill.Dec. 460] C.D.M., pro se.
Robert A. Chapski, Law Office of Robert A. Chapski, Ltd., Elgin, Timothy K. Mahoney, McNamee, Mahoney & Nave, Ltd., Dundee, for J.P.C. and D.J.C., S.J.M.
Presiding Justice INGLIS delivered the opinion of the court:
C.D.M., respondent, appeals after the trial court, in separate orders, found him an unfit parent and ordered that his daughter, S.J., be adopted by D.J.C. and J.P.C., S.J.'s natural mother and stepfather. On appeal, respondent, pro se, presents six issues for review, which can be consolidated into two legal issues: whether the finding of unfitness was proved by clear and convincing evidence and whether the judgment for adoption was against the manifest weight of the evidence.
[245 Ill.App.3d 278] Before we address the merits, we will determine whether we have jurisdiction in this cause. The reviewing court has a duty to determine its jurisdiction and dismiss the appeal if jurisdiction is lacking. Cashmore v. Builders Square, Inc. (1990), 207 Ill.App.3d 267, 269, 152 Ill.Dec. 170, 565 N.E.2d 703.
Pursuant to Supreme Court Rule 303(c)(2) (134 Ill.2d R. 303(c)(2)), the notice of appeal should "specify the judgment or part thereof appealed from." The notice of appeal is to be liberally construed, and unless the appellee is prejudiced, the appellant's failure to comply strictly with the form of the notice is not fatal if the deficiency is one of form and not substance. (Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 433-34, 31 Ill.Dec. 178, 394 N.E.2d 380.) An unspecified judgment is reviewable if it is a " 'step in the procedural progression leading' to the judgment specified in the notice of appeal." Burtell, 76 Ill.2d at 435, 31 Ill.Dec. 178, 394 N.E.2d 380, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir.1977), 567 F.2d 1252, 1254.
In respondent's notice of appeal, he requests that we "reverse the [j]udgment entered on February 27, 1992." The only order entered by the trial court on February 27, 1992, was one granting a continuance until March 5, 1992. The order finding respondent an unfit parent was entered on February 20, 1992, and the judgment of adoption was entered on March 5, 1992.
Respondent's failure to comply with the supreme court rules cannot be sidestepped as one of form over substance. Respondent has not appealed from a final judgment of the trial court, the basic requirement under Rule 303 (134 Ill.2d R. 303), but has appealed from an order continuing the matter until a later date. Neither the order of unfitness nor the judgment of adoption was a decision "in the procedural progression" leading up to the order of continuance. [184 Ill.Dec. 461] The appellate court should not be placed in the position to guess which order or orders the appellant truly wishes to appeal.
Moreover, petitioners may indeed be prejudiced if we find that we have jurisdiction in this cause. They have not filed an appellee brief, which may have been a purposeful decision based on the faulty notice of appeal. The supreme court rules are not merely advisory (see People v. Wilk (1988), 124 Ill.2d 93, 103, 124 Ill.Dec. 398, 529 N.E.2d 218) and should be followed when seeking an appeal (see Bieles v. Ables (1992), 234 Ill.App.3d 269, 270, 174 Ill.Dec. 685, 599 N.E.2d 469). Thus, we hold that we lack jurisdiction in this cause because respondent failed to file a notice of appeal in compliance with Supreme Court Rule 303 (134 Ill.2d R. 303).
For the foregoing reasons, respondent's appeal is dismissed for lack of jurisdiction.
[245 Ill.App.3d 279] Appeal dismissed.
GEIGER, J., concurs.
Justice BOWMAN, dissenting:
I respectfully dissent. The judgment order entered on February 20, 1992, provided in pertinent part:
"That [C.D.M.] is [an] unfit father to [S.J.M.], and his parental rights are hereby terminated to [S.J.M.]. Further, a decree of adoption shall be entered herein on February 27, 1992 @ 9:00 a.m. without further notice. This is entered over the objection of [C.D.M.]."
As pointed out by the majority, the only order entered on February 27, 1992, was one granting a continuance until March 5, 1992, on which date the judgment of adoption was entered.
Respondent's notice of appeal states:
"Please take notice that Respondent, [C.D.M.], in this cause, hereby appeals to the Appellate Court of Illinois, Second District from the Judgment entered by JUDGE ROGER EICHMEIER on February 27, 1992, in favor of Petitioners, [J.D.C.] and [D.J.C.], and against the Respondent, [C.D.M.].
By this appeal, the Respondent, C.D.M., will ask the Appellate Court to reverse the judgment entered on February 27, 1992."
The purpose of the notice of appeal is to inform the party prevailing in the trial court that the other party seeks a review of the judgment; to that end, the notice of appeal is to be liberally construed, and defects in form will not deprive the reviewing court of jurisdiction. (McMahon v. McMahon (1981), 97 Ill.App.3d 448, 449-50, 52 Ill.Dec. 941, 422 N.E.2d 1150.) Where a deficiency in the notice of appeal is one of form, rather than substance, and appellee is not prejudiced, the failure to comply strictly with form of notice is not fatal. Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill.App.3d 226, 230, 164 Ill.Dec. 825, 583 N.E.2d 1147.
Nowhere in the majority opinion do I see any attempt to liberally construe the notice of appeal. The notice of appeal refers to a judgment entered in favor of petitioners and against respondent. The only action taken by the court on February 27, 1992, was the entry of an order continuing the case to a later date. Consequently, it seems reasonable to conclude that the notice of appeal refers to the judgment entered on February 20, 1992, and not the order of continuance entered on February 27, 1992. To establish prejudice, [245 Ill.App.3d 280] the majority speculates that petitioners did not file an appearance or brief in the appellate court because respondent was appealing from the order of February 27, 1992. Would any reasonable attorney representing petitioners conclude that an appeal would be filed from an uncontested order which merely continues a case from one day to another for the entry of a decree per a previous judgment? This type of reasoning ignores the doctrine of liberal construction favoring appellant. Taking a liberal construction view of the notice of appeal, I believe the date of February 27, 1992, was a scrivener's error. When viewed in light of the trial court record, the notice of appeal language, "Judgment entered by JUDGE ROGER EICHMEIER on February 27, 1992, in favor of Petitioners, [J.P.C.] and [D.J.C.], and against the Respondent, [C.D.M.] * * * " could logically only apply to the judgment entered on February 20, 1992. I believe the notice of [184 Ill.Dec. 462] appeal, considered as a whole, fairly informs petitioners that the appeal was from the order of February 20, 1992. This form of notice of appeal is not fatal to the jurisdiction of the reviewing court.
The case of In re Estate of Malloy (1981), 96 Ill.App.3d 1020, 52 Ill.Dec. 395, 422 N.E.2d 76, contains somewhat similar facts. The notice of appeal stated that appellant appeals from the orders entered on October 11, 1979, and October 18, 1979. However, the notice of appeal also stated that appellant was contesting the orders finding her a disabled person and appointing a guardian for her person and estate, which orders, the court record showed, were, in fact, entered on October 12, 1979, and October 23, 1979. The reviewing court concluded that appellant sufficiently articulated the substance so that there could be no confusion as to the orders contested. (In re Estate of Malloy, 96 Ill.App.3d at 1024, 52 Ill.Dec. 395, 422 N.E.2d 76.) Similarly, in the case before us, there could be no reasonable confusion that the order appealed was that of February 20, 1992, not February 27, 1992.
Accordingly, I respectfully dissent.