2014 IL App (2d) 131065
Ill. App. Ct.2015Background
- Mark Harreld (roofing subcontractor employee) fell through Lou Butler’s roof while evaluating it for repair work under a city-administered residential rehabilitation program; Harreld sued Butler, DVBC (contractor), and others.
- DVBC filed a third-party complaint for contribution against the City of Elgin, alleging the city was negligent as general contractor if DVBC were held liable.
- The city moved to dismiss DVBC’s third-party complaint under section 2-619.1; on September 16, 2013 the trial court granted the motion and dismissed DVBC’s complaint with prejudice.
- The September 16 order did not include an Illinois Supreme Court Rule 304(a) finding that there was “no just reason to delay either enforcement or appeal.” DVBC filed a notice of appeal on October 10, 2013 while other claims remained pending.
- On November 21, 2013 the parties obtained an agreed nunc pro tunc order purporting to add a Rule 304(a) finding to the September 16 order; DVBC did not file an amended notice of appeal.
- The appellate court dismissed the appeal for lack of jurisdiction, concluding the nunc pro tunc amendment could not be used to add an omitted judicial action (a Rule 304(a) finding) where the record showed no clerical error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate court has jurisdiction to hear DVBC’s appeal of the dismissal where the original order lacked a Rule 304(a) finding but parties later obtained a nunc pro tunc order adding such a finding | DVBC argued the nunc pro tunc order corrected the record to reflect the court’s actual intent and made the dismissal final and appealable | City argued the lack of a Rule 304(a) finding meant the order was not appealable and a nunc pro tunc order cannot supply an omitted judicial action when there is no clerical error | Held: No jurisdiction. Nunc pro tunc may only correct clerical omissions; here the record lacked any indication a Rule 304(a) finding had been made and omitted due to clerical error, so adding the finding was improper and could not cure the jurisdictional defect |
| Whether DVBC’s premature notice of appeal could be saved under Rule 303(a)(2) so that the appeal became effective once the impediment to jurisdiction was removed | DVBC implicitly relied on preserving its appeal via the nunc pro tunc correction | City relied on the separate requirement that a proper Rule 304(a) finding be entered or all claims be resolved to remove the jurisdictional bar | Held: The court noted Rule 303(a)(2) can “save” a premature notice of appeal if a proper Rule 304(a) finding is later entered (or all claims resolved), but here no proper Rule 304(a) finding was entered; therefore the saving provision does not help and the appeal must be dismissed |
Key Cases Cited
- Secura Ins. Co. v. Illinois Farmers Ins. Co., 232 Ill. 2d 209 (court must ascertain jurisdiction before proceeding)
- Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458 (final order disposing of fewer than all claims is not appealable without Rule 304(a) finding)
- Kooyenga v. Hertz Equip. Rentals, Inc., 79 Ill. App. 3d 1051 (nunc pro tunc entry may only reflect what was actually done and omitted by clerical error)
- Pagano v. Rand Materials Handling Equipment Co., 249 Ill. App. 3d 995 (nunc pro tunc must be based on memorial in the court record)
- In re Marriage of Takata, 304 Ill. App. 3d 85 (nunc pro tunc cannot cure jurisdictional defects or supply omitted judicial actions)
- Shanklin v. Hutzler, 277 Ill. App. 3d 94 (appeal dismissed where parties used nunc pro tunc to add Rule 304(a) finding absent clerical error)
- People ex rel. Willet Motor Coach Co. v. Board of Educ., 171 Ill. App. 3d 166 (discussed in relation to Rule 329 and nunc pro tunc practice)
- John G. Phillips & Assocs. v. Brown, 197 Ill. 2d 337 (party may request a Rule 304(a) finding at any time)
- Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372 (factors trial court should consider in deciding whether to enter Rule 304(a) finding)
- In re Marriage of Valkiunas, 389 Ill. App. 3d 965 (Rule 303(a)(2) saving provision makes premature notice effective when impediment to jurisdiction is removed)
- In re Marriage of Knoerr, 377 Ill. App. 3d 1042 (if time to appeal expires after a later proper Rule 304(a) finding, appellant may seek relief to establish effectiveness of earlier notice)