Greer v. Yellow Cab Co.

• Decision Date: 08 November 1991
• Docket Number: No. 1-89-1548,1-89-1548
• Citation: 582 N.E.2d 1292,164 Ill.Dec. 348,221 Ill.App.3d 908
• Parties: , 164 Ill.Dec. 348 Arnett GREER, Administrator of the Estate of Henry Greer, Deceased, Plaintiff-Appellee, v. YELLOW CAB COMPANY, a foreign corporation, and Ronald Bracey, Defendants (Kimberly Hatley and Kevin Hatley, minors, by their mother and next friend, Jo Anne Hatley, Intervening Petitioners-Appellants).
• Court: United States Appellate Court of Illinois

Page 1292

582 N.E.2d 1292

221 Ill.App.3d 908, 164 Ill.Dec. 348

Arnett GREER, Administrator of the Estate of Henry Greer Deceased, Plaintiff-Appellee, v. YELLOW CAB COMPANY, a foreign corporation, and Ronald Bracey, Defendants (Kimberly Hatley and Kevin Hatley minors, by their mother and next friend, Jo Anne Hatley Intervening Petitioners-Appellants).

No. 1-89-1548.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 8, 1991.

[164 Ill.Dec. 349] [221 Ill.App.3d 910] Corboy & Demetrio, P.C., Chicago (Philip Hartnett Corboy, Jr., of counsel), for plaintiff-appellee.

Heller & Richmond, Ltd., Chicago (Jay A. Heller & Bruce A. Slivnick, Nina Puglia, of counsel), for intervening petitioners-appellants.

Justice GORDON delivered the opinion of the court:

Petitioners, Kimberly Hatley and Kevin Hatley, by their mother and next friend, Jo Anne Hatley ("Hatley"), appeal from a trial court order denying their petition to intervene in a wrongful death action filed by plaintiff Arnett Greer (decedent's adult child), administrator of the estate of Henry Greer, decedent, against defendants, Yellow Cab Company and its driver Ronald Bracey.

The trial court denied the petition to intervene, noting that Hatley, who had lived with decedent for seven years just prior to his death, and who had two children (the petitioners here) with decedent, had not yet proved paternity of the children. The court entered an order pursuant to Illinois Supreme Court Rule 304(a). (134 Ill.2d R. 304(a).) Petitioner filed a motion for reconsideration, which the court refused to hear, stating that once a trial court enters a Rule 304(a) finding, it loses jurisdiction to hear any further motions in the case.

On appeal, petitioners contend that the trial court erred in denying their petition to intervene as a matter of right (Ill.Rev.Stat.1989, ch. 110, par. 2-408(a)), or their alternative request for permissive intervention (ch. 110, par. 2-408(b)); and that the trial court erred in ruling that it lacked jurisdiction to hear the motion for reconsideration.

We conclude that while the trial court erred in its belief that a Rule 304(a) finding divested the court of jurisdiction, the appeal On March 10, 1988, the decedent died intestate in Chicago when he was struck by a cab owned by defendant Yellow Cab and being driven by Bracey. At the time of his death, decedent had been living with Hatley for seven years. Kimberly was eight years old, and Kevin was two years old. Decedent had six other children from other relationships or marriages, including Brian Taylor, a minor; Henry Wilburn, a minor; Arnett Greer, Cassandra Greer, Katrina Greer and Freddie Pittman, all of whom are adults.

[164 Ill.Dec. 350] must be dismissed because the requisite 304(a) language was not included in the trial court order.

On April 4, 1988, the circuit court granted Hatley's petition to appoint her as special administrator of decedent's estate. On the same day, Hatley filed a wrongful death action against defendants Yellow Cab and Bracey. (Hatley v. Yellow Cab et al., No. 88 L 6104.) On April 29, 1988, the circuit court granted Brian Taylor's petition to intervene in No. 88 L 6104.

On July 12, 1988, the court entered an ex parte order dismissing Hatley as administrator. (On September 14, 1988, this order was vacated, and a new order dismissing Hatley was entered.)

On August 4, 1988, plaintiff Arnett Greer petitioned the circuit court seeking an appointment as administrator of decedent's estate. Her petition was granted. Plaintiff also filed an Order of Heirship which listed petitioners as heirs of decedent.

On September 2, 1988, plaintiff filed a wrongful death action against defendants. (Greer v. Yellow Cab, et al., No. 88 L 16139.)

On September 14, 1988, plaintiff filed a motion seeking to vacate the order appointing Hatley as special administrator of decedent's estate. Hatley then filed a motion seeking to vacate plaintiff's appointment as administrator, or in the alternative seeking the right to intervene in plaintiff's lawsuit.

On September 14, 1988, the probate division of the circuit court granted plaintiff's motion to vacate Hatley's appointment as special administrator; and denied Hatley's request to vacate plaintiff's motion as special administrator. On September 28, 1988, Hatley's petition to intervene was transferred back to the law division.

In an ex parte order, on December 20, 1988, the court granted plaintiff's motion to dismiss Hatley's wrongful death action (No. 88 L 6104); and denied Hatley's petition to intervene in plaintiff's wrongful death action (No. 88 L 16139). On December 22, 1988, the court vacated the December 20, 1988 order.

On May 3, 1989, petitioners filed a petition to intervene as of right, or alternatively for permissive intervention, in case No. 88 L 16139. Attached to the petition was an affidavit from Hatley stating she believes there is ill will between petitioners, herself and plaintiff. The petition alleges that on May 23, 1988, plaintiff's former counsel, an attorney in Missouri, contacted Hatley's attorney and stated that he was willing to allow Hatley to remain administrator if she would guarantee that the Greer children would receive 50% of the judgment recovered in the wrongful death action. The petition alleges further that plaintiff, unlike petitioners, "had little or no contact with the decedent during the last few years before his death." Thus the "claims of these heirs [petitioners] are qualitatively different and in direct conflict." Petitioners asked that they be permitted to participate in the wrongful death action; that they receive notice of any proceedings in the action; and that no settlement be entered into or release be executed without their approval.

On May 15, 1989, the court denied the petition to intervene on the basis that Hatley had not proved paternity of petitioners. Petitioners asked the court for necessary findings pursuant to Illinois Supreme Court Rule 304(a). The court agreed to grant the request, and the order reads: "[T]his order is final and appealable pursuant to Supreme Court Rule 304(a)."

On May 17, 1989, petitioners filed a motion for reconsideration, attaching a February 10, 1986 and a August 4, 1988 order of the circuit court establishing the paternity On May 23, 1989, the court stated that it could not hear the motion for reconsideration, finding that the inclusion of the Rule 304(a) language in the May 15, 1989 order divested the trial court of jurisdiction. At a second hearing on this motion on June 5, 1989, the court made the same ruling.

[164 Ill.Dec. 351] and heirship of Kevin and Kimberly, respectively.

On June 8, 1989, petitioners filed a notice of appeal from the May 15, May 23, and June 5, 1989 orders. On June 23, 1989, the trial court denied petitioners' motion to stay proceedings. On July 19, 1989, this court granted petitioners' motion for stay pending appeal. That stay remains in effect.

OPINION

The refusal of the trial court, on jurisdictional grounds, to entertain petitioners' motion for reconsideration misconstrues the jurisdictional consequences of a Rule 304(a) finding.

The previous version of Rule 304(a) provided that: "The time for filing a notice of appeal shall run from the entry of the required finding." 107 Ill.2d R. 304(a).

The amended version of Rule 304(a) in effect at the time of the May 15, 1989 order permitted the trial court to consider a motion for reconsideration even after it made a proper 304(a) finding. (134 Ill.2d R. 304(a) (effective January 1, 1989).) The rule states:

"Judgments as to Fewer Than All Parties or Claims--Necessary for Special Finding. * * * [A]n 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 of appeal. * * * The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment." (134 Ill.2d R. 304(a) (emphasis added).)

Rule 303 provides that notice of appeal is due within 30 days of the "order disposing of the last pending post-trial motion." (134 Ill.2d R. 303(a)(1).) The committee comments to the new Rule 304(a) state that the rule was amended in response to the holding in Elg v. Whittington (1987), 119 Ill.2d 344, 116 Ill.Dec. 252, 518 N.E.2d 1232. The committee comments to the amended Rule 304(a) read:

"Rule 304(a) was amended in 1988 to cure the defect that compelled the Supreme Court, in Elg v. Whittington (1987), 119 Ill.2d 344 [116 Ill.Dec. 252, 518 N.E.2d 1232], to hold that the filing of post trial motions in the trial court do not toll the time for filing a notice of appeal under Rule 304, as it does under Rule 303. This amendment clarifies Rule 304 and makes it clear that the time for filing a notice of appeal under Rule 304 is governed by the provisions of Rule 303 and that the date on which the trial court enters its written finding that there is no just reason for delaying enforcement or appeal shall be treated as the date of the entry of final judgment for purposes of calculating when the notice of appeal must be filed. It should be noted that the filing of post trial motions in cases appealed under Rule 304 will have the same effect as spelled out in Rule 303." (Ill.Ann.Stat., ch. 110A, par. 304, committee comments (Smith-Hurd 1991 Supp.).)

See generally, Dienstag, "The Short, Troubled Life of Elg v. Whittington: Amended Supreme Court Rule 304(a)," 77 Ill. Bar J. 420 (April 1989).

The trial court therefore erred in its belief that upon entry of a proper 304(a) finding it would be divested of its jurisdiction to hear the motion for reconsideration. Under the amended version of Rule 304(a), such divestiture would clearly not occur. See ...