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05/02/97 GREG FERGUSON AND DONNA FERGUSON v. SHELL

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT


May 2, 1997

GREG FERGUSON AND DONNA FERGUSON, PLAINTIFFS-APPELLANTS,
v.
SHELL OIL COMPANY, LLOYD DUTY, AND CHARLES W. ARESON, D/B/A ENVIRONMENTAL SANITATION, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES, V. J. J. WUELLNER & SON, INC., THIRD-PARTY DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Madison County. No. 92-L-69. Honorable Phillip J. Kardis, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Chapman and Maag, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Greg Ferguson and Donna Ferguson, appeal from an order of the circuit court of Madison County finding that the court did not have jurisdiction to hear plaintiffs' motion for extension of time to file a posttrial motion, even though said motion was filed within 30 days of the entry of judgment, because the motion was not ruled upon by the trial court within 30 days after judgment was entered. On appeal, plaintiffs contend that (1) the trial court had jurisdiction to rule on the motion for extension of time because the motion was filed within 30 days after the entry of judgment and (2) the "Special Appearance Requesting Clarification And Correction Of Court's Order" filed by defendants, Charles W. Areson, doing business as Environmental Sanitation, Shell Oil Company, and Lloyd Duty, was actually a general appearance vesting jurisdiction in the trial court to rule upon plaintiff's motion for extension of time to file a posttrial motion. We reverse and remand.

FACTS

Plaintiffs filed suit against defendants, Shell Oil Company, Lloyd Duty, and Charles W. Areson, doing business as Environmental Sanitation. These defendants then filed a third-party complaint against defendant, J.J. Wuellner & Son, Inc. For purposes of this appeal, we will refer to this entire group as defendants. On November 16, 1995, the jury returned a verdict in favor of defendants and against plaintiffs. On November 17, 1995, judgment was entered on the verdict.

On December 14, 1995, 27 days after judgment was entered, plaintiffs filed a motion for extension of time to file a posttrial motion. The motion was set for January 4, 1996. On that date, defendants filed a special appearance objecting to jurisdiction. On January 12, 1996, the trial court denied plaintiffs' motion for extension of time. The trial court noted that the motion for extension of time was well taken and would normally have been granted; however, the court stated, "This court does not have jurisdiction and, therefore, refuses to grant Plaintiffs' Motion for Extension of Time in which to file a post[-]trial motion."

Defendants filed a "Special Appearance Requesting Clarification And Correction Of Court's Order," seeking modifications of the trial court's findings contained in the January 12, 1996, order. Based on defendants' new pleadings, plaintiffs renewed their motion for extension of time, asserting that this "Special Appearance was actually a general appearance conferring jurisdiction on the court.

On January 16, 1996, plaintiffs filed a motion for leave to file a late notice of appeal with this court. Defendants objected. We denied the motion and dismissed the appeal. Ferguson v. Shell Oil Co., No. 5-96-0037 (February 1, 1996). On January 17, 1996, the trial court granted some of defendants' requested modifications by interlineation but once again refused to grant plaintiffs' motion for extension of time to file a posttrial motion. Plaintiffs now appeal.

ANALYSIS

Plaintiffs contend that the trial court had jurisdiction to grant plaintiffs' motion for extension of time to file a posttrial motion because this motion was filed within 30 days after judgment was entered. Plaintiffs urge that such motions need not be ruled upon by the trial judge within 30 days, so long as they are filed within 30 days. Plaintiffs contend that to rule otherwise would force a party to dash around within a particular time limit trying to find a judge to hear his or her motion and rule upon it, no matter how such efforts might interfere with trials, hearings, or the general and efficient operation of the courts. Plaintiffs point out that such efforts could involve an ex parte interruption of court proceedings to deal with matters more reasonably considered in the fullness of time with all parties notified, present, and ready to argue. Defendants respond that the failure of plaintiffs to obtain an extension of time within which to file their posttrial motion within 30 days after the entry of judgment deprived the trial court of jurisdiction or, stated differently, the trial court was correct in finding that it did not have jurisdiction to grant plaintiffs' motion for extension of time to file a posttrial motion once 30 days expired from the date of judgment. Defendants insist that in the interest of certainty and finality of judgments we must affirm the trial court's determination. We agree with plaintiffs and hold that motions for extension of time in which to file a posttrial motion need not be ruled upon by a trial court within 30 days after the entry of judgment, so long as they are filed within 30 days after the entry of judgment.

Section 2-1202(c) of the Code of Civil Procedure (the Code) provides, in pertinent part:

"(c) Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof." 735 ILCS 5/2-1202(c) (West 1994).

The above statute makes no exceptions to the 30-day requirement for filing either a posttrial motion or a motion for extension of time to file a posttrial motion. Putz v. Schulte, 104 Ill. App. 3d 128, 132, 432 N.E.2d 1070, 1073, 60 Ill. Dec. 171 (1982); Stauffer v. Held, 16 Ill. App. 3d 750, 751, 306 N.E.2d 877, 878 (1974). However, we agree with plaintiffs that the statute is open to interpretation as to whether a motion for extension of time to file a posttrial motion must be ruled upon within 30 days after the entry of judgment or whether it is enough that the motion for extension was filed within 30 days, in order for the trial court to retain jurisdiction.

Defendants cite Stauffer v. Held, 16 Ill. App. 3d 750, 306 N.E.2d 877 (1974), in support of their contention that a motion for extension of time must be ruled upon within 30 days after the entry of judgment; however, Stauffer is clearly distinguishable from the case at bar. In Stauffer, neither party moved for an extension of time within 30 days after judgment was entered. Instead, it was not until 33 days after the final judgment was entered that the plaintiff filed a motion for extension of time. Accordingly, the Stauffer court found that it was without jurisdiction to extend the time for filing a posttrial motion since the plaintiff failed to file a motion for extension of time within the 30 days prescribed by the statute in effect at that time. In the instant case, however, plaintiffs filed their motion for extension of time 27 days after judgment was entered, well within the 30-day time limit. See 735 ILCS 5/2-1202(c) (West 1994). Most other cases relied upon by defendants are also factually distinguishable from the instant case. One case, however, relied upon by defendants does offer support for defendants' position.

In Kwak v. St. Anthony Depadua Hospital, 54 Ill. App. 3d 719, 369 N.E.2d 1346, 12 Ill. Dec. 332 (1977), our colleagues on the First District Appellate Court, relying on the language which is now section 2-1202(c), held that a posttrial motion was not timely filed, even though a motion for extension of time was timely filed in the case, because the motion for extension of time was not granted until after 30 days from the entry of final judgment. Kwak was a medical malpractice case in which the trial court entered summary judgment in favor of the defendant hospital on January 26, 1976, and thereafter directed a verdict in favor of a second defendant, a doctor, on January 29, 1976. Kwak, 54 Ill. App. 3d at 723, 369 N.E.2d at 1349. Both judgments became final on these days. The Kwak court specifically stated:

"As the judgments of January 26 and 29 were at all times final, the jurisdiction of the trial court could be extended beyond February 25 and 28 only if prior to these dates a post-trial motion had been filed or the trial court had allowed an extension of time within which to file such motion. Plaintiff having accomplished neither prior to February 25 or 28, the trial court was without jurisdiction to entertain her motion on March 10." Kwak, 54 Ill. App. 3d at 724, 369 N.E.2d at 1350.

The underlying issue is the same in both Kwak and the instant case, namely, whether it is enough to file a motion for extension of time to file a posttrial motion within 30 days after the entry of judgment or whether such motion must actually be granted within 30 days following the entry of judgment in order for the trial court to retain jurisdiction. While the Kwak court held that filing was not enough, we disagree and hold contrary to Kwak. We find support for our determination in Supreme Court Rule 184, as well as Supreme Court Rule 183, neither of which was considered by the Kwak court. See 134 Ill. 2d Rs. 183, 184.

Supreme Court Rule 184 provides:

"Rule 184. Hearings on Motions

No provision in these rules or in the Civil Practice Law prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period." 134 Ill. 2d R. 184.

This rule was specifically applied to posttrial motions in People ex rel. Carey v. Forberg, 33 Ill. App. 3d 161, 337 N.E.2d 369 (1975), which held that there is no requirement that a posttrial motion for a new trial be heard within the period that it was required to be filed. "The [filing of the posttrial] motion had the effect of staying execution of the judgment and suspended its operation. [Citation.] *** Either party could call the motion for disposition before or after expiration of the filing period." Forberg, 33 Ill. App. 3d at 166, 337 N.E.2d at 369. The same logic applies in the instant case. Once a party files a motion for extension of time to file a posttrial motion, said motion tolls the 30-day time period.

Likewise, Supreme Court Rule 183 supports plaintiffs' position. Supreme Court Rule 183 provides:

"Rule 183. Extensions of Time

The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time." 134 Ill. 2d R. 183.

This rule specifically provides that a court may extend the time for filing a motion either before or after the expiration of the time period in question.

We can find nothing which requires us to follow the holding of our colleagues on the First District Appellate Court in Kwak. The plain language of section 2-1202(c) of the Code and of the Supreme Court Rules previously cited establishes that there is no requirement that the motion be heard within the period of filing. Moreover, we agree with plaintiffs that the problem with the Kwak court's interpretation of the statute in question is that while it forces a time limit on both the trial court and the party that files the motion, in actuality that party may have little to no control over ensuring that the motion is heard within 30 days of the entry of judgment. We envision numerous instances in which a party who filed such a motion may not be able to have it heard within the 30-day period. The Kwak case itself presents a worthy example. In that case, the plaintiff claimed that the trial judge was out of town attending the funeral of his brother at the time the motion for extension of time was filed. Kwak, 54 Ill. App. 3d at 724-25, 369 N.E.2d at 1350. We refuse to adopt the interpretation of the Kwak court and instead adopt an interpretation which takes into account the realities of today's crowded court dockets.

As we pointed out in Putz v. Schulte, 104 Ill. App. 3d 128, 432 N.E.2d 1070, 60 Ill. Dec. 171 (1982), courts in this state are loathe to deny an appeal on the basis of a failure to comply with technical requirements. Putz, 104 Ill. App. 3d at 131, 432 N.E.2d at 1073. We refuse to adhere to the rule in Kwak which, if followed here, would deny plaintiffs' appeal on the basis of a merely technical requirement, which we do not believe section 2-1202(c) requires. Incidentally, we note that in Kwak there was a remedial procedure available to the late filer in that she could have filed a late notice of appeal. See Kwak, 54 Ill. App. 3d at 725, 369 N.E.2d at 1350. As plaintiffs in the instant case point out, a remedial measure is not available here in that plaintiffs cannot effectively file a late notice of appeal since no specifications of error were raised in a posttrial motion and any specifications of error are, therefore, waived for purposes of appellate review. Notwithstanding this dissimilarity between Kwak and the instant case, we believe our interpretation is the more sound and realistic approach. We hold that so long as a party files a motion for extension of time to file a posttrial motion within 30 days of the entry of judgment, the filing of said motion tolls the time and the trial court retains jurisdiction to hear that motion even if more than 30 days has elapsed since the time judgment was entered. We are compelled to note, however, the obvious admonitions that any delay in such hearing should not be unduly long and should not be attributable to the party who filed the motion. Because of our determination on this first argument raised by plaintiffs, we need not address their second contention.

For the foregoing reasons, the order of the circuit court of Madison County finding that it did not have jurisdiction to hear plaintiffs' motion for extension of time to file a posttrial motion is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN and MAAG, JJ., concur.

19970502

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