2021 IL App (2d) 200473
Ill. App. Ct.2021Background
- Leff, Klein & Kalfen (plaintiff) obtained an August 3, 2015 judgment against Wiczer & Associates, LLC for unpaid accounting services.
- Plaintiff filed a citation to discover assets (Aug 24, 2015) and later sought a turnover judgment against citation respondent Elliott Wiczer under 735 ILCS 5/2-1402(c)(3); the trial court entered a July 12, 2019 judgment against Wiczer for $15,337.
- Wiczer moved to reconsider (filed Aug 16, 2019); on Nov 22, 2019 the court found the motion timely despite being filed late, granted it, and vacated the July 12, 2019 judgment, returning the case to its pre-judgment status.
- The trial court continued the citation proceeding multiple times after vacatur; it later entered a nunc pro tunc correction (July 24, 2020) to fix the vacated-judgment date.
- Plaintiff moved under Illinois Supreme Court Rule 308 to certify questions for interlocutory appeal; the trial court denied that motion (July 24, 2020).
- Plaintiff appealed the Nov 22, 2019 vacatur order and the July 24, 2020 denial of the Rule 308 motion; defendant moved to dismiss for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in finding Wiczer's motion to reconsider timely | The court should not have treated the motion as timely and thus should not have reconsidered | Motion was timely (court concluded excusable lateness) | Court did not reach merits because appeal dismissed for lack of jurisdiction |
| Whether the order vacating the July 12, 2019 judgment is appealable | Vacatur was erroneous and appealable | Vacatur returned the case to pendency and was nonfinal | Vacatur order was nonfinal and unappealable because proceedings remained pending |
| Whether a nunc pro tunc date correction made the vacatur order final | Correction fixed only a clerical error and should not affect appealability | Nunc pro tunc cannot be used to change substance or cure jurisdictional defects | Nunc pro tunc correction did not alter substance; order remained nonfinal |
| Whether denial of a Rule 308 motion to certify is appealable | Denial should be reviewable to vindicate appeal rights | Such a denial is not itself appealable | Denial of Rule 308 certification is not appealable |
Key Cases Cited
- Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536 (Ill. 1984) (appellate courts must consider their jurisdiction and dismiss appeals where jurisdiction is lacking)
- In re Marriage of Agustsson, 223 Ill. App. 3d 510 (Ill. App. Ct. 1992) (order vacating judgment is nonfinal and unappealable when the case remains pending)
- In re Marriage of Takata, 304 Ill. App. 3d 85 (Ill. App. Ct. 1999) (nunc pro tunc corrections may fix clerical errors but cannot alter substantive judgments or cure jurisdictional defects)
- In re Marriage of Nettleton, 348 Ill. App. 3d 961 (Ill. App. Ct. 2004) (order denying certification for interlocutory appeal under Rule 308 is not itself appealable)
- Petruchius v. Don Roth Restaurants, Inc., 79 Ill. App. 3d 1071 (Ill. App. Ct. 1979) (denial of a motion to certify questions for interlocutory appeal is not appealable)