Zamora v. Ricardo Montiel, Newsboy Delivery Sys., Inc.

Decision Date18 November 2013
Docket NumberNo. 02–13–0579.,02–13–0579.
Citation2013 IL App (2d) 130579,376 Ill.Dec. 553,999 N.E.2d 728
PartiesJuan ZAMORA, Plaintiff–Appellant, v. Ricardo MONTIEL, Newsboy Delivery Systems, Inc., and Unique Distribution Services, Inc., Defendants–Appellees (Cherie Payne and Paul Payne, Defendants).
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal dismissed.

Ryan M. Griffin, Scott M. Duxbury, and Timothy J. Winfield, Goldstein, Bender & Romanoff, Chicago, for appellant.

Jeffrey S. Barger, Esp Kreuzer Cores LLP, Wheaton, for appellees.

OPINION

Justice HUDSON delivered the judgment of the court, with opinion.

¶ 1 I. INTRODUCTION

¶ 2 Defendants, Ricardo Montiel, Newsboy Delivery Systems, Inc., and Unique Distribution Services, Inc., move to dismiss this appeal, which was filed by plaintiff, Juan Zamora. Defendants contend that we lack jurisdiction. For the reasons that follow, we agree with defendants, and accordingly, we grant their motion and dismiss this appeal.

¶ 3 On August 31, 2009, plaintiff filed a complaint sounding in negligence against defendants and also against Cherie and Paul Payne (the Payne defendants). The following procedural history of the case is relevant to determining whether we have jurisdiction over this appeal:

(1) March 24, 2010: the trial court dismissed plaintiff's complaint as it pertained to defendants, finding that it was barred by the exclusivity provisions of the Illinois Workers' Compensation Act (820 ILCS 305/5(a) (West 2008)), and the court included an Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) finding in this order;

(2) April 23, 2010: plaintiff filed a motion to reconsider the dismissal;

(3) June 29, 2010: the trial court granted the Payne defendants leave to file a third-party complaint seeking contribution against defendants;

(4) July 7, 2010: the trial court denied plaintiff's motion to reconsider:

(5) August 25, 2010: the Payne defendants filed their third-party claim;

(6) July 11, 2012: the trial court dismissed the Payne defendants' contribution claim; also on this date, plaintiff requested that the trial court make a new Rule 304(a) finding with respect to the March 24, 2010, dismissal order and the trial court made such a finding;

(7) July 24, 2012: plaintiff filed a notice of appeal regarding the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider;

(8) December 12, 2012: this court dismissed plaintiff's initial appeal for lack of jurisdiction ( Payne v. Zamora, 2012 IL App (2d) 120804–U);

(9) December 28, 2012: plaintiff moved in the trial court for a “renewal” of the March 24, 2010, Rule 304(a) finding;

(10) March 20, 2013: the trial court denied plaintiff's motion to renew the March 2010 Rule 304(a) finding;

(11) May 14, 2013: the trial court dismissed all remaining causes of action directed against the Payne defendants;

(12) June 5, 2013: plaintiff filed the notice of appeal initiating the current appeal seeking reversal of the March 24, 2010, dismissal and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding.

Defendants filed a motion to dismiss this appeal for lack of jurisdiction.

¶ 4 II. ANALYSIS

¶ 5 Defendants assert that plaintiff had by August 6, 2010, to appeal the March 24, 2010, dismissal—which contained a Rule 304(a) finding—of his action against defendants ( i.e., 30 days after the trial court denied his motion to reconsider that dismissal). Plaintiff counters that, when, on June 29, 2010, the trial court granted the Payne defendants leave to file their third-party complaint, the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of plaintiff's claims against defendants, was rendered ineffective. Plaintiff contends that a new Rule 304(a) finding was necessary to make the March 24, 2010, dismissal order appealable after the addition of the third-party claim.

¶ 6 Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) allows for the appeal of a final judgment in a case involving multiple claims or parties where the judgment concerns “one or more but fewer than all of the parties or claims.” To make such a judgment appealable, the trial court must make a finding that “there is no just reason for delaying either enforcement or appeal or both.” Ill. S.Ct. R. 304(a) (eff. Jan. 1, 2006). The rule exists to discourage piecemeal appeals in the absence of a good reason to proceed in such a fashion and also to remove any uncertainty about the proper course when a judgment is entered regarding fewer than all matters in controversy. Mares v. Metzler, 87 Ill.App.3d 881, 884, 42 Ill.Dec. 832, 409 N.E.2d 447 (1980). Thus, before an appeal may be taken from a judgment that leaves other matters in controversy, the trial court must consider whether an immediate appeal is appropriate and make the appropriate finding. Seef v. Ingalls Memorial Hospital, 311 Ill.App.3d 7, 14, 243 Ill.Dec. 806, 724 N.E.2d 115 (1999). Generally, a party must file a notice of appeal within 30 days of the judgment sought to be appealed, and, if a motion directed against that judgment is filed, the time to appeal is tolled until 30 days after that motion is resolved. Greer v. Yellow Cab Co., 221 Ill.App.3d 908, 913, 164 Ill.Dec. 348, 582 N.E.2d 1292 (1991). Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider. McCorry v. Gooneratne, 332 Ill.App.3d 935, 941, 266 Ill.Dec. 751, 775 N.E.2d 591 (2002). This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself. Id.

¶ 7 However, in certain circumstances, a new Rule 304(a) finding might be required. In Petersen Bros. Plastics, Inc. v. Ullo, 57 Ill.App.3d 625, 15 Ill.Dec. 70, 373 N.E.2d 416 (1978), the First District confronted an appeal bearing a number of similarities to the instant case and concluded that it lacked jurisdiction. In that case, the trial court entered a judgment on March 2, 1976, in favor of the plaintiff against the defendant and entered a default judgment in favor of the defendant against a third-party defendant. The third-party defendant moved to vacate the default judgment on March 29, 1976. The default judgment was vacated on April 5, 1976. On April 28, 1976, the defendant moved to vacate the judgment in favor of the plaintiff and to set aside the order vacating the default judgment against the third-party defendant. On July 12, 1976, the trial court reinstated the default judgment against the third-party defendant (this order also stated that the defendant's motion to vacate the judgment in favor of the plaintiff was moot). On August 2, 1976, the third-party defendant moved to vacate the July 12 order, asserting that the trial court lacked jurisdiction to vacate the April 5 order. Also on August 2, the trial court vacated all orders and judgments against the defendant and the third-party defendant. On August 24, 1976, the plaintiff moved to vacate the August 2 order. The plaintiff's motion was denied on September 2, 1976, and the plaintiff appealed.

¶ 8 The First District began by noting that an order vacating a judgment is generally not appealable, as it leaves matters pending and therefore is not a final order. Id. at 628, 15 Ill.Dec. 70, 373 N.E.2d 416. Thus, it concluded that the plaintiff normally could not appeal such an order, but it stated that the plaintiff could prevail if the August 2 order was void, as a void order can be attacked at any time. Id. at 629, 15 Ill.Dec. 70, 373 N.E.2d 416.1 It then observed that the March 2 order had been final and appealable; however, when the third-party defendant filed its motion to vacate the default judgment, the March 2 order was no longer appealable until this motion was resolved and the trial court therefore retained jurisdiction over the entire case. Id. Accordingly, the trial court had jurisdiction on April 5 to vacate the default judgment. Id. Further, when it vacated the default judgment, it left the claim that had been the subject of that judgment pending between the defendant and the third-party defendant. Id. Because this claim remained pending, in accordance with Illinois Supreme Court Rule 304(a)(eff. Jan. 1, 1970) (“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.”), the trial court retained jurisdiction over the March 2 judgment in favor of the plaintiff. Petersen Bros., 57 Ill.App.3d at 628–29, 15 Ill.Dec. 70, 373 N.E.2d 416. The First District explained that, where no Rule 304(a) finding is made, “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.” Id. at 630, 15 Ill.Dec. 70, 373 N.E.2d 416.

¶ 9 The First District acknowledged that the March 2 judgments did contain a finding that there was no just reason to delay enforcement or appeal (which, in that case, was superfluous, as the March 2 judgments were appealable without such a finding). Id. Nevertheless, despite this finding, the court held that the judgment in favor of the plaintiff was no longer appealable when the third-party defendant successfully moved to vacate the default judgment against it (which revived and left pending the third-party claim). Id. This was because, before the trial court vacated the default judgment, it could not assess whether the plaintiff's claim was suitable for appeal independent of the third-party claim. Id. The third-party claim remained pending until July 12, when the trial court reinstated the default judgment, which resulted in a final judgment as all...

To continue reading

Request your trial
1 cases
  • Zamora v. Montiel
    • United States
    • Illinois Supreme Court
    • March 26, 2014
    ...MontielNO. 117087Supreme Court of IllinoisMARCH TERM, 2014March 26, 2014 OPINION TEXT STARTS HERE Lower Court: 2013 IL App (2d) 130579, 376 Ill.Dec. 553, 999 N.E.2d 728 Disposition: ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT