LEFF, KLEIN, and KALFEN, LTD., Plaintiff-Appellant, v. WICZER & ASSOCIATES, LLC, Defendant-Appellee (Elliott Wiczer, Citation-Respondent-Appellee).
No. 2-20-0473
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
June 24, 2021
2021 IL App (2d) 200473-U
JUSTICE BRENNAN
Order filed June 24, 2021. Appeal from the Circuit Court of Lake County. No. 13-AR-1440. Honorable Michael B. Betar, Judge, Presiding.
JUSTICE BRENNAN delivered the judgment of the court.
Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶ 1 Held: The trial court‘s order vacating a judgment was nonfinal and nоnappealable, and its denial of a motion under Rule 308 to certify questions for appеal was likewise nonappealable. Appeal dismissed for lack of jurisdiction.
¶ 2 Plaintiff, Leff, Klеin and Kalfen, Ltd., appeals from the judgments of the circuit court of Lake County (1) granting Elliott Wiczer‘s, citation respondent‘s (respondent), motion to reconsider and vacating a judgment in favor of plaintiff and against respondent, and (2) denying plaintiff‘s motion to certify questions under
I. BACKGROUND
¶ 3 ¶ 4 Plaintiff filed a complaint against defendant, Wiczer & Associates, LLC, alleging that defendant failed to pay plаintiff for its accounting services. On August 3, 2015, the trial court entered judgment in favor of plaintiff for $9566.
¶ 5 On August 24, 2015, plaintiff filed against respondent a citation to discover assets. On March 4, 2019, plaintiff filed, under
¶ 6 On August 16, 2019, respоndent filed a motion to reconsider the July 12, 2019, judgment. On November 22, 2019, the trial court entered a judgment (1) finding that rеspondent‘s motion to reconsider was timely though filed four days beyond the deadline, and (2) granting the motion to reconsider and vacating the “August 23, 2019” judgment (the court misidentified the July 12, 2019, judgment). The court also cоntinued the case to January 12, 2020, for status, and the case was continued for status twice thereаfter.
¶ 7 On March 3, 2020, plaintiff filed, under
¶ 8 On August 21, 2020, plaintiff filed its notice of appeal. The notice identified the two orders appealed from as (1) the Novеmber 22, 2019, order granting the motion to reconsider and vacating
II. ANALYSIS
¶ 9 ¶ 10 On appeal, plaintiff contends that the trial court erred in (1) finding that respondent‘s motion to reconsider was timely filed and (2) granting the motion and vacating the July 12, 2019, judgment.
¶ 11 Respondent filеd a motion to dismiss the appeal for lack of jurisdiction, and plaintiff filed a response. We ordered the motion taken with the case. We first address the jurisdictional issue because we hаve a duty to consider if we have jurisdiction and to dismiss an appeal where jurisdiction is lacking (see Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984)).
¶ 12 Our jurisdiction is confined to reviewing appeals from final orders or judgments, unless the particulаr judgment or order falls into an enumerated category of permitted interlocutory apрeals. In re Marriage of Agustsson, 223 Ill. App. 3d 510, 514 (1992). A final judgment terminates the litigation on the merits and determines the ultimate rights of the parties. Agustsson, 223 Ill. App. 3d at 514. An оrder vacating a judgment is nonfinal and, consequently, unappealable if the case‘s merits аre still pending. Agustsson, 223 Ill. App. 3d at 514.
¶ 13 Here, the November 22, 2019, order vacated the July 12, 2019, judgment. However, it did not terminate the citation proceeding or determine the ultimate rights of the parties. Instead, it returned the citаtion proceeding to its status before the judgment of July 12, 2019. Indeed, after the November 22, 2019, order, the triаl court three times continued the matter for status. Accordingly, the November 22, 2019, order was nonfinal. Because it was nonfinal, it was unappealable.
¶ 14 Nor did the correction of the date of the vacated judgment make the November 22, 2019, order final. At any time, a court may modify its judgment nunc pro tunc to correct a clerical error or matter of form so that the record conforms to the judgmеnt actually rendered by the court. In re Marriage of Takata, 304 Ill. App. 3d 85, 92 (1999). However, a nunc pro tunc order may not be used to alter the actual judgment or curе a jurisdictional defect. Takata, 304 Ill. App. 3d at 92. Here, the trial court merely corrected the date from August 23, 2019, to July 12, 2019, tо reflect the date of the judgment that it had vacated. That correction did not affect thе substance of the November 22, 2019, order. Thus, the November 22, 2019, order remained nonfinal and, thereforе, unappealable.
¶ 15 Plaintiff also identified in its notice of appeal the July 24, 2020, order denying its motion under Rule 308 to certify questions for appeal. A trial court‘s order denying a motion to certify under Rule 308 is not itself appealable. In re Marriage of Nettleton, 348 Ill. App. 3d 961, 969 (2004); Petruchius v. Don Roth Restaurants, Inc., 79 Ill. App. 3d 1071, 1076 (1979).
¶ 16 For the foregoing reasons, we grant the motion to dismiss thе appeal. Because we lack jurisdiction over this appeal, we do not deсide the merits of the two issues raised by plaintiff.
III. CONCLUSION
¶ 17 ¶ 18 For the reasons stated, we dismiss the appeal from the circuit court of Lake County.
¶ 19 Appeal dismissed.