Petersen Bros. Plastics, Inc. v. Ullo

• Decision Date: 18 January 1978
• Docket Number: No. 76-1462,76-1462
• Citation: 373 N.E.2d 416,57 Ill.App.3d 625,15 Ill.Dec. 70
• Parties: , 15 Ill.Dec. 70 PETERSEN BROS. PLASTICS, INC., an Illinois Corporation, Plaintiff-Appellant, v. Tom ULLO, Defendant and Third-Party Plaintiff-Appellee, v. BEGINNINGS, INC., an Illinois Corporation.
• Court: United States Appellate Court of Illinois

Page 416

373 N.E.2d 416

57 Ill.App.3d 625, 15 Ill.Dec. 70

PETERSEN BROS. PLASTICS, INC., an Illinois Corporation, Plaintiff-Appellant, v. Tom ULLO, Defendant and Third-Party Plaintiff-Appellee, v. BEGINNINGS, INC., an Illinois Corporation.

No. 76-1462.

Appellate Court of Illinois, First District, Third Division.

Jan. 18, 1978.

Supplemental Opinion On Denial of Rehearing March 15, 1978.

Kwiatt & Silverman, Ltd., Chicago (Michael Silverman, Chicago, of counsel,) for plaintiff-appellant.

Gentile & De Palma, Barrington (Jerome A. De Palma, Barrington, of counsel,) for defendant and third-party plaintiff-appellee.

SIMON, Justice.

Plaintiff Petersen Bros. Plastics, Inc. (Petersen) recovered a judgment against the defendant Tom Ullo (Ullo) which was vacated 5 months later. Petersen appeals from a denial of its motion seeking reinstatement of that judgment. Petersen contends that the circuit court had no jurisdiction to vacate the judgment after it had been in existence for 5 months.

This appeal involves a determination of when, in litigation involving multiple claims or multiple parties, judgments entered as to one or more but fewer than all of the parties or claims are final and appealable and no longer subject to revision by the circuit court. Although neither party to this appeal has discussed Supreme Court Rule 304(a), it is the view of this court that the Rule controls this appeal. (Ill.Rev.Stat.1975, ch. 110A, par. 304(a).) The specific issue is whether this Rule grants a circuit court the authority to vacate and revise all judgments in multi-claim cases after final judgments initially have been entered on all claims and subsequently one of the judgments is properly vacated pursuant to a motion filed within 30 days of its entry under section 68.3 of the Civil Practice Act. (Ill.Rev.Stat.1975, ch. 110, par. 68.3.) As we construe Rule 304(a), it enables the circuit court to maintain its jurisdiction in these circumstances over all judgments in the case. Consequently, for the reasons discussed below the Rule deprives this court of jurisdiction to hear this appeal. Even though the parties to an appeal have not, as in this case, argued that issue, it is necessary for us to view this appeal in the light of Rule 304(a) as it is the duty of an appellate court to determine whether it has jurisdiction to decide an appeal. Hazel v. Hayes (1973), 14 Ill.App.3d 292, 295, 302 N.E.2d 458; E. M. S. Co. v. Brandt (1968), 103 Ill.App.2d 445, 448, 243 N.E.2d 695.

This chronological summary of a lengthy series of pleadings, motions and orders is helpful to an understanding of the reasons for the dismissal of this appeal.

July, 1975 Petersen filed its complaint against Ullo, seeking payment for goods sold and delivered to Ullo.

October, 1975 Ullo answered by denying Petersen's claim and filed a third-party complaint against Beginnings, Inc. (Beginnings), alleging Ullo agreed to furnish services for Beginnings. Ullo claimed this agreement required it to purchase goods from Petersen for which Beginnings was obligated to pay.

March 2, 1976 Judgment entered in favor of Petersen and against Ullo. Also, a default judgment for the same amount entered in favor of Ullo and against Beginnings.

March 29, 1976 Beginnings served notice of and filed motion to vacate March 2, 1976 default judgment.

April 5, 1976 The March 2, 1976 judgment in favor of Ullo and against Beginnings was vacated; Beginnings given leave to appear and defend, and trial set for August 13, 1976.

April 28, 1976 Ullo served notice on Petersen and on Beginnings of and filed two motions to be presented on May 17, 1976; one was to vacate judgment entered March 2, 1976 in favor of Petersen and against Ullo, alleging in support of its motions that goods and workmanship furnished by Petersen were defective and that this defense was unknown to Ullo's attorney when the judgment in favor of Petersen was entered; the second motion was to set aside order of April 5, 1976 vacating March 2, 1976 judgment in favor of Ullo against Beginnings.

May 13 to June 7, 1976 Petersen filed reply to Ullo's motion to vacate judgment, and pending motions continued to July 12, 1976.

July 12, 1976 Order entered reinstating the third-party judgment in favor of Ullo and against Beginnings which had been vacated by order of April 5, 1976 with order reciting that the motion to vacate the judgment in favor of Petersen and against Ullo was withdrawn as moot.

August 2, 1976 Beginnings filed a written motion to vacate order of July 12, 1976 on ground court had no jurisdiction to vacate its April 5, 1976 order.

August 2, 1976 On motion of Beginnings to vacate order of July 12, 1976, court vacated and set aside all prior orders and judgments against Ullo and Beginnings.

August 24, 1976 Petersen given leave to file motion to vacate August 2, 1976 order and motion continued to September 2, 1976.

Thereafter, the attorney for Ullo filed a petition and affidavit stating that he appeared on August 2, 1976, with no court reporter present, and "made an oral motion to vacate any judgment which may have existed against" Ullo. Pursuant to Beginnings' petition and Ullo's oral motion, the court entered the August 2, 1976 order vacating all previous judgments. On September 2, 1976, the circuit court denied Petersen's motion to vacate the August 2, 1976 order. Petersen appeals from the order denying its motion.

A trial court's order vacating a judgment is not appealable because it leaves the merits of the case pending and, therefore, is not a final order. (William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill.App.3d 573, 576, 329 N.E.2d 458; Alexander v. Burke (1972), 6 Ill.App.3d 919, 920, 287 N.E.2d 53.) However, Petersen claims the circuit court lacked jurisdiction on August 2 to vacate the judgment in Petersen's favor. If Petersen is correct, the order vacating the judgment in Petersen's favor would be void and could be challenged in this court because a void order can be directly attacked at any time on appeal. (Underwood v. Yellow Cab Co. (1971), 131 Ill.App.2d 449, 452, 268 N.E.2d 254.) Thus, we must decide whether on August 2, 1976 the circuit court had the authority to vacate the March 2, 1976 judgment in favor of Petersen and against Ullo.

The order entered on March 2, 1976 was final and appealable because it disposed of all claims. However, when Beginnings filed its motion of March 29 to vacate the default judgment against it, the circuit court retained jurisdiction over the entire matter. No appeal could be pursued until this motion was decided. (Ill.Rev.Stat.1975, ch. 110, pars. 50(5), 68.1(3), 68.3; City of DeKalb v. Anderson (1974), 22 Ill.App.3d 40, 43, 316 N.E.2d 653.) The circuit court, therefore, had jurisdiction on April 5 to vacate the default judgment entered on March 2 against Beginnings.

Also, Ullo's April 28 motion to vacate the April 5 order was timely. (See Fultz v. Haugan (1971), 49 Ill.2d 131, 135, 305 N.E.2d 873.) Normally, Ullo's motion attacking the March 2 judgment would have been late, for it was filed more than 30 days after the entry of that judgment and no timely motions to vacate that judgment were pending. (Fultz, at 135, 305 N.E.2d 873; City of DeKalb, 22 Ill.App.3d at 43, 316 N.E.2d 653.) However, Ullo's claim against Beginnings still was pending, by virtue of the April 5 order. Therefore, Rule 304(a) gave the circuit court jurisdiction to review the March 2 judgment in favor of Petersen.

In cases involving multiple claims, Rule 304(a) adds another dimension to the determination of finality and to the power of the circuit court to revise judgments already entered. The Rule provides:

"(a) Judgment As To Fewer Than All Parties or Claims Necessity for Special Finding. 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. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties."

Application of the Rule is limited to multiple claims actions in which a final judgment or decree determines one or more but fewer than all of the rights and liabilities at issue. (Martino v. Barra (1967), 37 Ill.2d 588, 229 N.E.2d 545; Ariola v. Nigro (1958), 13 Ill.2d 200, 148 N.E.2d 787.) In such cases, Rule 304(a) requires an express written finding that there is no just reason for delay in enforcement or appeal of the resolved claims in order for these claims to be appealable. (Ariola; First National Bank of Joliet v. Conness (1975), 29 Ill.App.3d 294, 296, 330 N.E.2d 272.) Unless the circuit court order incorporates the words of the Rule, no appeal is permissible, and the circuit court retains jurisdiction over the entire cause, including the power to revise any or all judgments at any time prior to entry of a judgment adjudicating all claims. Hazel, 14 Ill.App.3d at 295-296, 302 N.E.2d 458; Haley...