Du Page County Collector, Application of
| Decision Date | 22 October 1992 |
| Docket Number | No. 73148,73148 |
| Citation | 152 Ill.2d 545,605 N.E.2d 567,178 Ill.Dec. 773 |
| Parties | , 178 Ill.Dec. 773 In re Application of the DU PAGE COUNTY COLLECTOR, for Judgment and Sale for Taxes Against Real Estate Delinquent for Nonpayment of General Taxes for the Year 1985 (John Lotus Novak, Du Page County Treasurer and Ex-Officio Collector, Appellant; Inland Real Estate Corporation, Appellee). |
| Court | Illinois Supreme Court |
James E. Ryan, State's Atty. and Barbara A. Preiner and Anna B. Harkins, Asst. State's Attys., Wheaton, for appellant.
James A. Geraghty, Wheaton, for appellee.
In this appeal, we consider whether the written finding required by Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), permitting review of final judgments that do not dispose of an entire proceeding, must refer to both enforceability and appealability for appellate jurisdiction to exist.
Taxpayers Application Engineering, Jewel Companies, Inc., and the Inland Real Estate Corporation, owners of real estate in Du Page County, paid real estate taxes in 1986 under protest, separately contending various levies were improper. Relevant here, each of the taxpayers contended that the levy for tort liability insurance was improper because it caused the general corporate levy to exceed the rate permitted by statute. (See Ill.Rev.Stat.1985, ch. 85, par. 9-104.) All three of those objections were sustained in identically worded orders following hearings in the circuit court of Du Page County. Acknowledging that other pending objections were to be disposed of subsequently, each order recited that there was "no just [reason] to delay appeal" of the successful challenges related to the levies for tort liability insurance.
The Du Page County treasurer and ex-officio county collector, through the State's Attorney of Du Page County, timely sought review of the orders pursuant to Supreme Court Rule 304(a). The matters were thereafter consolidated for review. The appellate court, however, dismissed the appeal (Nos. 2-90-1288, 2-90-1289, 2-90-1290 cons. (unpublished order under Supreme Court Rule 23)), concluding that the language of the orders was insufficient to confer appellate jurisdiction under the rule. More specifically, although noting that each order referred to its appealability, the court concluded that the absence of language relating to enforceability was fatal to appellate jurisdiction under the requirements of Rule 304(a). We granted the collector leave to appeal (134 Ill.2d R. 315(a)) and now reverse.
Rule 304(a), supplanting, without change in substance, section 50(2) of the Civil Practice Act, was intended to provide an easy method of determining when orders affecting fewer than all of the parties or claims in an action were appealable. (134 Ill.2d R. 304, Committee Comments, at 245.) Instead, the operative language, contained in the first sentence of the rule, has proven problematic. (134 Ill.2d R. 304, Committee Comments, at 245.) That sentence provides:
"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal." (Emphasis added.) 134 Ill.2d R. 304(a).
Considerable confusion concerning the rule's application has centered on what must be stated in the required written finding for appellate jurisdiction to exist. More specifically, courts have struggled with the question of whether the written finding must employ both the terms "enforcement" and "appeal" or whether reference to only one of those terms is sufficient.
The fourth and fifth divisions of the first district of the appellate court (see Hopkins v. Illinois Masonic Medical Center (1991), 211 Ill.App.3d 652, 156 Ill.Dec. 99, 570 N.E.2d 575; Hamer v. Lentz (1987), 155 Ill.App.3d 692, 108 Ill.Dec. 163, 508 N.E.2d 324) and the second district of the appellate court (see Pettie v. Williams Brothers Construction, Inc. (1991), 216 Ill.App.3d 801, 159 Ill.Dec. 755, 576 N.E.2d 424; Arachnid, Inc. v. Beall (1991), 210 Ill.App.3d 1096, 155 Ill.Dec. 662, 569 N.E.2d 1273) have read the rule to require virtual duplication of the phrase "no just reason for delaying enforcement or appeal." Those courts have construed the words "only if" in the rule to prescribe what words must be contained in the written finding. As a result, "or" in the phrase "enforcement or appeal" is read as the conjunction "and" such that the terms "enforcement" and "appeal" are required to appear in the written finding.
The third division of the first district of the appellate court (see Cwiertnia v. Zaborowski (1989), 192 Ill.App.3d 841, 140 Ill.Dec. 4, 549 N.E.2d 655; Kucharski v. Floro (1989), 191 Ill.App.3d 1032, 139 Ill.Dec. 98, 548 N.E.2d 483) and the third district of the appellate court (see Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill.App.3d 210, 121 Ill.Dec. 848, 525 N.E.2d 1155) have allowed appeals where an intent to invoke the rule is expressed in the written finding even though one of the two terms "enforcement" or "appeal" is missing, reasoning that to rule otherwise would elevate form over substance. Those courts have construed the words "only if" to merely require that a written finding be made. As a result, "or" is read in its common disjunctive usage to indicate a choice between alternatives such that reference to either the term "enforcement" or the term "appeal" satisfies the requirements of the written finding.
In fact, neither of those constructions of the rule is accurate.
Proper reading of the rule depends, first, on understanding that the appealability of a judgment which confers a legal right can be expressed in terms of either its enforceability or its appealability, depending on the perspective of the party affected by the judgment. Further, correct construction of the rule requires the recognition that not every judgment to which the rule is applicable may be logically referred to in terms of both enforceability and appealability.
It is the prevailing party who benefits by the provision in Rule 304(a) that enforcement of a judgment may be sought without delay. The rule's provision allowing immediate appeal of the judgment is of concern to that party only because the nonprevailing party may thereby prevent enjoyment of the benefit conferred. It is precisely the prevailing party's ability to enforce a judgment which gives rise to the nonprevailing party's ability to immediately challenge the judgment on appeal. That point is made evident in understanding the sole purpose of the rule, for, while the written finding may be stated in terms of enforceability, ...
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