Beck v. Stepp, 70312

• Court: Supreme Court of Illinois
• Citation: 162 Ill.Dec. 10,144 Ill.2d 232,579 N.E.2d 824
• Docket Number: No. 70312,70312
• Parties: , 162 Ill.Dec. 10 James J. BECK, Appellee, v. Christine A. STEPP et al. (Bob Brockland Pontiac-GMC, Inc., Appellant).
• Decision Date: 19 September 1991

Page 824

579 N.E.2d 824 144 Ill.2d 232, 162 Ill.Dec. 10 James J. BECK, Appellee,
v.
Christine A. STEPP et al. (Bob Brockland Pontiac-GMC, Inc.,
Appellant). No. 70312. Supreme Court of Illinois. Sept. 19, 1991.

Page 825

[144 Ill.2d 234] [162 Ill.Dec. 11] Hinshaw & Culbertson, Bruce L. Carmen, Chicago, for Bob Brockland Pontiac-GMC.

Gregory K. Allsberry, Susman, Schermer, Rimmel & Shifrin, St. Louis, Mo., Dunham, Boman & Leskera, John L. Bitzer, East St. Louis, for James J. Beck.

[144 Ill.2d 235] Chief Justice MILLER delivered the opinion of the court:

The plaintiff, James J. Beck, brought the present action in the circuit court of St.

Page 826

[162 Ill.Dec. 12] Clair County against the defendants, Christine Stepp and Bob Brockland Pontiac-GMC, Inc. The plaintiff sought compensation for property damage and personal injuries he sustained as the result of a collision between his motorcycle and an automobile driven by Stepp and owned by Brockland. Following a hearing, the trial judge granted defendant Brockland's motion for summary judgment. Four months later, the trial judge entered an order purportedly denying the same motion nunc pro tunc. A divided panel of the appellate court ruled that the nunc pro tunc modification was proper and accordingly dismissed Brockland's appeal for lack of a final order. (197 Ill.App.3d 1109 (unpublished order under Supreme Court Rule 23).) We allowed Brockland's petition for leave to appeal (134 Ill.2d R. 315(a)).

Defendant Bob Brockland Pontiac-GMC, Inc., an automobile dealership, allows its sales staff to use demonstration cars for personal purposes. On November 1, 1986, Tom Suarez, a Brockland salesman, used the automobile assigned to him to drive to a party, where he consumed several alcoholic drinks. Later that night, Suarez felt unfit to drive and asked a friend, Christine Stepp, to operate the Brockland automobile. While she was driving the car, Stepp struck the plaintiff's motorcycle from the rear when the plaintiff was stopped at a red light. The accident occurred shortly after 1 o'clock in the morning on November 2, 1986, at an intersection in East St. Louis township, in St. Clair County.

Plaintiff commenced the present action on March 25, 1987, by filing a complaint in the circuit court of St. Clair County. Named as defendants in the action were [144 Ill.2d 236] Brockland and Stepp. Plaintiff alleged that Stepp, as driver of the car, was Brockland's agent. Brockland later filed a motion for summary judgment, contending that the dealership was not vicariously liable for Stepp's conduct because she was not the company's agent. A hearing on the motion was conducted by way of a telephone conference call on April 6, 1988. Following the call, the trial judge entered an order granting Brockland summary judgment. The order stated:

"D BROCKLAND'S MOTION FOR SUMMARY JUDGMENT--ALLOWED. NO JUST CAUSE TO PREVENT APPEAL (APPEA[LA]BLE ORDER)"

At Brockland's request, the trial judge entered an order on April 12, 1988, stating, in the language of Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)), that there was "no just reason for delaying enforcement or appeal of the Court Order entered April 6, 1988 granting Bob Brockland Pontiac-GMC, Inc.'s motion for Summary Judgment." For reasons that are not clear from the record, the trial judge entered a duplicate order two days later, on April 14.

On April 15 the trial judge received a letter from plaintiff's counsel, dated the previous day. Counsel's letter stated:

"On Wednesday, April 6, the Court held a conference call with counsel for the parties pertaining to Brockland's Motion for Summary Judgment. I understood the Court to announce that it was denying the Motion, but the Order states that the Motion was allowed.

Thank you for your attention to this matter."

The plaintiff sent a copy of the letter to counsel for each of the two defendants.

On June 2, 1988, defendant Brockland filed a special and limited appearance contesting the circuit court's jurisdiction over it and asking the trial judge to decline to take any further action with respect to the plaintiff's [144 Ill.2d 237] claim against the dealership. After a conference call on June 7, the trial court reserved ruling on the jurisdictional question and entered an order setting a briefing schedule on the issue. Following a conference call on August 24, 1988, the court entered an order purportedly amending the April 6 order nunc pro tunc. The August 24 order stated:

"AFTER DISCUSSION--ORDER OF APRIL 6, 1988--CHANGED TO READ--Ds [sic ] BROCKLAND'S MOTION FOR SUMMARY JUDGMENT--DENIED INSTEAD OF ALLOWED--(NUNC PRO TUNC) " (Emphasis in original.)

Page 827

[162 Ill.Dec. 13] Defendant Brockland appealed, contending that the August order was void because the trial court lacked jurisdiction to vacate or modify the earlier order allowing its motion for summary judgment. The appellate court, with one justice dissenting, ruled that the nunc pro tunc order was valid and dismissed the appeal. (197 Ill.App.3d 1109 (unpublished order under Supreme Court Rule 23).) The majority reasoned that the later order was merely a correction of the earlier one. Because the denial of a motion for summary judgment is not a final order, the court dismissed Brockland's appeal. The dissenting justice believed that the nunc pro tunc order was improper because it was not supported by any evidence in the record. (197 Ill.App.3d 1109 (unpublished order under Supreme Court Rule 23) (Chapman, J., dissenting).) We allowed Brockland's petition for leave to appeal (134 Ill.2d R. 315(a)).

Brockland asks this court to reinstate the April 1988 order granting its motion for summary judgment by finding the August 1988 nunc pro tunc order improper and, therefore, void. Brockland asserts that the August order is invalid because it does not meet the requirements for entry of nunc pro tunc orders.

[144 Ill.2d 238] In...