Mark Harreld brought a personal-injury lawsuit against Lou Butler and DVBC Inc., but on Sept. 16, 2013 a Kane County Circuit Court judge granted the city of Elgin‘s motion to dismiss DVBC’s third-party contribution complaint against the city.
That order did not include the special language, “There is no just reason for delaying the enforcement or appeal of this order” that would have made the order immediately appealable under Illinois Supreme Court Rule 304(a).
Even still, DVBC filed a notice of appeal on Oct. 10, 2013 and eventually noticed its appeal was premature because of the lack of the appeals language in the Sept. 16, 2013 order. However, DVBC used the wrong court procedure for correcting the misstep.
Although the Rule 304(a) authorized the court to issue the “special finding” at any time after the contribution claim was dismissed, DVBC acted as if the judge had actually uttered the magic words on Sept. 16, 2013, even though that order was devoid of such language.
On Nov. 21, 2013, at DVBC’s request, the Kane County judge entered an “agreed order correcting the court’s order of Sept. 16, 2013 nunc pro tunc.” The agreed order said that nunc pro tunc the Sept. 16 order “is a final and appealable order and there is no just reason to delay either enforcement or appeal, or both.”
DVBC mistakenly thought that this maneuver eliminated the need for an amended notice of appeal. Dismissing the appeal for lack of jurisdiction, the Illinois Appellate Court explained that: “A nunc pro tunc order may not be used to cure a jurisdictional defect, supply omitted judicial actions or correct a judicial error under the pretense of correcting a clerical error.”
The Illinois Appellate Court also explained that DVBC’s “error highlights a widespread misunderstanding of Illinois Supreme Court Rules 304(a) and 303(a)(2),” which was amended to save premature appeals.
The majority opinion included this statement: “A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then.” Kooyenga v. Hertz Equipment Rentals, 79 Ill.App.3d 1051 (1979).
A nunc pro tunc order may not be used to cure a jurisdictional defect, supply omitted judicial actions or correct a judicial error under the pretense of correcting a clerical error. In re Marriage of Takata, 304 Ill.App.3d 85 (1999).
Because DVBC attempted to “correct” the dismissal order to cure a jurisdictional defect by supplying the omitted judicial action, that order and the previous order lacked Rule 304(a) language and in fact was not a clerical error, but instead was an omitted judicial action. Therefore adding a Rule 304(a) finding, is outside the power of a nunc pro tunc order.
What was needed by DVBC was to file a motion for a Rule 304(a) finding. In that motion, it should have explained why a Rule 304(a) finding was warranted in light of the factors outlined in the case above; Geier v. Hamer Enterprises, Inc., 226 Ill.App.3d 372 (1992).
Once the court had ruled on that motion (Rule 304(a)), the trial court would have needed to pay particular attention to the mootness because the possibility of “mootness due to the contingent nature of a third-party claim typically weighs heavily in the exercise of discretion in deciding whether to certify the dismissal of a third-party claim for an appeal.” Geier, 226 Ill.App.3d at 386.
Had DVBC filed a motion for a Rule 304(a) finding in light of the Geier factors, and had the trial court granted it, then DVBC’s premature notice of appeal would have become effective on the date the trial court made that finding.
Instead, DVBC filed an “agreed motion” for the entry of an improper nunc pro tunc order, which for the reasons the majority explained, was granted erroneously.
DVBC could timely file a new notice of appeal once the trial court either enters a final judgment resolving all pending claims or enters a proper Rule 304(a) finding. In re Marriage of Knoerr, 377 Ill.App.3d 1042 (1027).
However, if during the pending period of this appeal, the trial court has resolved all pending claims or entered a proper Rule 304(a) finding, and the time for filing a new notice of appeal has expired, then DVBC can file a petition for rehearing and to supplement the record, thereby establishing the effectiveness of the current notice of appeal.
Harreld v. Butler, 2014 IL App (2d) 131065 (Dec. 2, 2014).
Kreisman Law Offices has been handling Illinois appeals, catastrophic injury cases, medical malpractice cases, commercial litigation and nursing home abuse cases for individuals, families and business for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Lansing, Lynwood, Lockport, Lemont, Deerfield, Schaumburg, Schiller Park, Niles, Naperville, Arlington Heights, Wheaton, Aurora, Romeoville, Blue Island, Antioch, St. Charles, Midlothian, Melrose Park, New Lenox, Franklin Park, Hinsdale, Palos Park, Rosemont and Flossmoor, Ill.
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