Kawa v. Harnischfeger Corp.
Decision Date | 26 September 1990 |
Docket Number | 1-88-3325,No. 1-88-1841,1-88-1841 |
Citation | 149 Ill.Dec. 483,204 Ill.App.3d 206,561 N.E.2d 1179 |
Court | United States Appellate Court of Illinois |
Parties | , 149 Ill.Dec. 483 Kenneth E. KAWA, Plaintiff-Appellant, v. HARNISCHFEGER CORPORATION, Defendant, Counterdefendant, Counterplaintiff-Appellee (Nabisco, Inc., Defendant, Counterplaintiff, Third-party Plaintiff-Appellee; Wisconsin Bridge & Iron, Co., Third-Party Defendant; St. Onge Ruff Construction Managers, Inc., et al., Third-Party Defendants and Counterdefendants). |
Leahy and Donovan, Chicago (Tom Leahy and Stephen Phalen, of counsel), for plaintiff-appellant.
McKenna, Storer, Rowe, White and Farrug, Chicago (James P. DeNardo, Royce Glenn Rowe, Christine L. Olson, of counsel), for defendant-appellee, Nabisco, Inc.
Johnson, Cusack, & Bell, Ltd., Chicago (Thomas H. Fegan, of counsel), for defendant-appellee, Harnischfeger Corp., Wisconsin Bridge & Iron Co., third-party defendant, and St. Onge Ruff Const. Managers, Inc., St. Onge Ruff Planners-Engineers, Inc., and St. Onge Ruff & Associates Inc., third-party defendants, counter-defendants.
Plaintiff, Kenneth E. Kawa, is appellant in two consolidated appeals from the entry of summary judgment on his negligence count against defendants, Harnischfeger Corporation (Harnischfeger) and Nabisco Brands, Inc. (Nabisco). Harnischfeger moved to dismiss the appeal in which it is appellee on the ground that plaintiff filed his notice of appeal late; the motion has been taken with the case. Nabisco has not moved to dismiss the appeal in which it is appellee, but the issue of this court's jurisdiction over this appeal is also addressed.
Plaintiff filed a complaint alleging Structural Work Act ( ) violations. Defendants' motions for summary judgment on count I of the first amended complaint alleging the statutory violations were granted. The negligence count of plaintiff's first amended complaint remained, and Nabisco and Harnischfeger thereafter filed separate motions for summary judgment on this count.
On October 2, 1986, Harnischfeger filed a motion for summary judgment on the negligence count. Summary judgment was entered in its favor on November 6, 1987. Plaintiff filed a motion to reconsider apparently on December 7, 1987; the motion in the record does not include a date stamp. Plaintiff's motion was denied on May 16, 1988, but the order stated in handwriting: "Non [sic ] Pro Tunc 5/13/88." The order also granted plaintiff's motion for leave to file a second amended complaint; the motion had been filed after the entry of summary judgment. The order also stated: "[I]t is further ordered that the court further finds that its order denying the motion to reconsider final and appealable, and that there is no just reason for delay or enforcement of same."
On June 9, 1988, plaintiff filed a notice of appeal from the November 6, 1987, and May 16, 1988, orders. No notice of filing of this notice of appeal appears in the record. On June 16, 1988, plaintiff filed a second notice of appeal from the same orders; a notice of filing stated that plaintiff had filed a notice of appeal on June 16, 1988. The second notice of appeal appeared to be a xeroxed copy of the first notice of appeal.
In support of its argument that the second notice of appeal was filed late, Harnischfeger contends that the latest date for appeal, even calculating from May 16, 1988 (and thereby ignoring the nunc pro tunc language relating the order back to May 13, 1988), was June 15, 1988, and that according to the notice of filing served on it, the notice of appeal was filed June 16, 1988. Harnischfeger ignores the notice of appeal that was filed June 9, 1988, although it refers to it in its jurisdictional statement.
The first issue raised is whether the timely June 9th notice of appeal was sufficient to vest jurisdiction because no notice of filing the notice of appeal appears in the record.
Supreme Court Rule 303(a) provides that a notice of appeal must be filed within 30 days after the entry of the final judgement appealed from. (107 Ill.2d R. 303(a).) A notice of appeal filed later than 30 days is insufficient to vest the appellate court with jurisdiction. (Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill.App.3d 492, 497, 59 Ill.Dec. 176, 431 N.E.2d 461.) Supreme Court Rule 303(d) provides that the appellant should serve a copy of the notice of appeal and notice of the date of filing upon every other party. (107 Ill.2d R. 303(d).) But the failure to serve a copy of the notice of appeal upon an opposing party does not deprive the appellate court of jurisdiction because the only jurisdictional step in appealing a final judgment is the filing of the notice of appeal. (Echols v. Olsen (1976), 63 Ill.2d 270, 274-75, 347 N.E.2d 720; see Supreme Court Rule 301, 107 Ill.2d R. 301.) An appeal will not be dismissed on the basis that the opposing party was not served with a copy of the notice of appeal if there was no evidence of prejudice to that party. (Echols, 63 Ill.2d at 275, 347 N.E.2d 720.) A party is not prejudiced by the failure to serve on him a copy of the notice of appeal if the party could file appellate briefs and argue orally. Echols, 63 Ill.2d at 275, 347 N.E.2d 720; Lachona v. Industrial Commission (1981), 87 Ill.2d 208, 212, 57 Ill.Dec. 741, 429 N.E.2d 858.
In the instant case, appellee Harnischfeger was not prejudiced by the failure to serve upon it a copy of the June 9th notice of appeal: it received a copy of the second notice of appeal, although it was a nullity (First Finance Co. v. Ross (1965), 64 Ill.App.2d 474, 479, 211 N.E.2d 588); it filed a brief in this appeal; and it would have had an opportunity to orally argue its position if the case had been scheduled for oral argument. Harnischfeger filed a motion to dismiss the case on the basis that the second notice of appeal was late, but it did not argue that the appeal should be dismissed on the basis that it was not served with a copy of the first notice of appeal. In fact, its motion ignored the first notice of appeal. The June 9th notice of appeal was timely and vested this court with jurisdiction.
But another issue raised concerning this court's jurisdiction is whether the order appealed from was final because, although the entry of summary judgment was upheld, plaintiff filed a second amended complaint with the court's permission. Amendment of pleadings in general is governed by section 2-616 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-616), and amendments after summary judgment are authorized by section 2-1005(g) of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-1005(g) ).
The addition of Supreme Court Rule 304(a) language does not render a non-final order final (Zimmerman v. 1660 Condominium Association (1984), 126 Ill.App.3d 71, 73, 81 Ill.Dec. 356, 466 N.E.2d 1158); the rule merely provides that the language permits a party to appeal from an order that finally disposes of one claim or one party when other issues or claims are still pending (124 Ill.2d R. 304(a) ). A final order either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (In re the marriage of Zymali (1981), 94 Ill.App.3d 1145,...
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