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06/10/94 SHO-DEEN v. JOHN S. MICHEL

June 10, 1994

SHO-DEEN, INC., PLAINTIFF-APPELLEE,
v.
JOHN S. MICHEL, DEFENDANT-APPELLANT AND CROSS-APPELLEE, (FIRST CHICAGO BANK OF ST. CHARLES, INTERVENOR-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 91-L-247. Honorable Pamela K. Jensen, Judge, Presiding.

Released for Publication July 19, 1994.

Doyle, McLAREN, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Sho-Deen, Inc., filed a complaint in forcible entry and detainer in the circuit court of Kane County against defendant, John S. Michel. Following defendant's partial default, which resulted in plaintiff being granted possession of the premises and the trial court setting the matter for trial on the issue of damages, defendant answered and counterclaimed against plaintiff for breach of contract, quantum meruit, unjust enrichment, fraud, intentional infliction of emotional distress, and an accounting. First Chicago Bank of St. Charles (First Chicago), an unsatisfied judgment creditor of defendant, intervened. Following a settlement of the claims between plaintiff and defendant, wherein plaintiff was obligated to pay defendant approximately $24,000, First Chicago moved for a distribution of the settlement proceeds. Finding that defendant's claim to the homestead exemption did not apply, that an unrelated attorney's lien claim did not take priority over First Chicago's claim, and that the assertion of the "wild card" exemption was permissible, the trial court awarded First Chicago an amount equal to approximately one-third of the settlement proceeds. Defendant's "motion for reconsideration" was denied, and he appeals. First Chicago cross-appeals, and plaintiff is not a party to this appeal.

Defendant's sole contention on appeal is that the trial court erred in failing to allow him the homestead exemption against the settlement proceeds. First Chicago responds (1) that this court does not have jurisdiction to hear defendant's appeal; (2) that the trial court properly denied defendant's claim for homestead rights in the settlement proceeds; and (3) that the trial court erred in granting defendant a partial award of the proceeds premised on the personal property exemption. Because First Chicago raises a challenge to this court's jurisdiction to hear the merits of defendant's appeal, we must initially consider that assertion.

In order to appreciate fully First Chicago's jurisdictional challenge, it is necessary to recite the relevant procedural history. On December 7, 1992, the trial court entered its order denying defendant's assertion of the homestead exemption in connection with the distribution of the proceeds from defendant's earlier settlement with plaintiff. The court further ordered First Chicago's attorney to prepare an order consistent with the court's findings and a previousstipulation regarding the distribution of the settlement proceeds. On December 18, 1992, the court entered an order distributing $2,000 to defendant and $7,463.48 to First Chicago. Distribution of the remaining proceeds, consisting of approximately $15,000, was previously determined and no longer in dispute.

On January 6, 1993, defendant filed a motion entitled "Motion for Reconsideration and Other Relief." His motion requested relief from the circuit court's December 7 order, which denied his homestead exemption, and an order that his first amended counterclaim be filed nunc pro tunc October 16. Relative to his homestead claim, defendant's motion set forth a single sentence, which provided as follows:

"The defendant John S. Michel, by and through his undersigned counsel respectfully moves that the court reconsider its order entered on December 7, 1992 denying him homestead."

Thirteen days later, on January 19, the trial court denied defendant's motion. On February 18, defendant filed his notice of appeal.

First Chicago maintains that defendant's notice of appeal was untimely because defendant's motion to reconsider did not constitute a post-trial motion within the meaning of Supreme Court Rule 303(a)(1). (See 134 Ill. 2d R. 303(a)(1).) First Chicago argues that defendant's failure to include any factual or legal basis in his motion rendered it a nullity, and, therefore, his filing of the motion did not toll the time limit for filing a notice of appeal. Accordingly, because defendant filed his notice of appeal more than 30 days after the December 7 order, defendant did not properly invoke the jurisdiction of this court, and his appeal should be dismissed.

It is incumbent upon an appellate court to dismiss an appeal where jurisdiction is lacking. ( Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 96 Ill. Dec. 47, 490 N.E.2d 1252; Hamilton v. Williams (1992), 237 Ill. App. 3d 765, 772, 178 Ill. Dec. 214, 604 N.E.2d 470.) An appeal is perfected when a timely notice of appeal is filed in the circuit court. (134 Ill. 2d R. 301, 303.) No other step is jurisdictional. ( People ex rel. Anders v. Burlington Northern, Inc. (1975), 31 Ill. App. 3d 1001, 1003, 335 N.E.2d 102.) Generally, a notice of appeal must be filed within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, within 30 days after the entry of the order disposing of the last pending post-trial motion. (134 Ill. 2d R. 303.) A motion to reconsider judgment falls within the purview of post-judgment motions which must be filed within 30 days after the challenged judgment is entered. ( Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538, 83 Ill. Dec. 332, 470 N.E.2d 290.) Supreme Court Rules 301 and 303 have beensubsequently amended, effective February 1, 1994. (See (Dec. 22, 1993) Illinois Official Reports Advance Sheet No. 26.) Because this appeal was pending prior to the effective date of the amendment, the earlier version of the rules control. The precise issue we must address is whether defendant's motion to reconsider qualifies as a post-trial motion.

In order to qualify as a post-judgment motion, defendant's motion must (1) request at least one of the forms of relief specified in section 2-1203; (2) specify grounds that would warrant granting the relief requested; and (3) be filed with the court clerk accompanied with proof that copies have been served on all parties. (See Beck v. Stepp (1991), 144 Ill. 2d 232, 240-41, 162 Ill. Dec. 10, 579 N.E.2d 824; see also Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 347-48, 140 Ill. Dec. 390, 549 N.E.2d 1262.) Section 2-1203 of the Illinois Code of Civil Procedure provides:

"ยง 2-1203. Motions after judgment in non-jury cases. (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the ...


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