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Berg v. Allied Security Inc.

July 01, 1999

JOAN BERG, APPELLEE,
v.
ALLIED SECURITY, INC., ET AL.,APPELLANTS.



The opinion of the court was delivered by: Justice Harrison

10-March 1999.

At issue in these two consolidated appeals is whether plaintiff's post-judgment motion was sufficient to toll the period for filing her notice of appeal following entry of summary judgment in favor of defendants. For the reasons that follow, we hold that it was. We therefore affirm. Plaintiff, Joan Berg, filed a personal injury action against defendants, Allied Security, Inc., and Podolsky & Associates, Inc. On September 4, 1996, the circuit court of Cook County granted summary judgment in favor of both defendants. 735 ILCS 5/2-1005 (West 1996). Thirty days later, on October 4, plaintiff moved for reconsideration or, in the alternative, for leave to file an amended complaint. In an order filed October 15, the circuit court denied reconsideration and took the request for leave to amend under advisement. On November 21, leave to amend was denied. Five days later, on November 26, plaintiff filed her notice of appeal.

In the appellate court, defendants argued that plaintiff's notice of appeal was untimely. Although it was filed less than a week after the circuit court had disposed of the last matter raised by plaintiff's post-judgment motion, defendants contended that plaintiff's motion was so deficient that it did not qualify as a post-judgment motion under section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1996)) and therefore did not operate to toll the 30-day appeal period under Rule 303(a) (155 Ill. 2d R. 303(a)). Defendants' theory was that because the 30-day period was not tolled by the pendency of the plaintiff's motion, the notice of appeal actually came too late, and the appellate court therefore lacked jurisdiction to entertain plaintiff's appeal.

The appellate court rejected defendants' jurisdictional challenge and addressed plaintiff's appeal on the merits. It held that genuine issues of material fact existed and that summary judgment was therefore improper. Accordingly, it set aside the circuit court's summary judgment in favor of defendants and remanded the cause to the circuit court for further proceedings. 297 Ill. App. 3d 891.

Both defendants petitioned this court for leave to appeal (177 Ill. 2d R. 315). We granted those petitions and consolidated the appeals for hearing and Disposition.

In the proceedings before us, neither defendant takes issue with the appellate court's handling of the substantive issues related to their motions for summary judgment. Defendants' arguments are strictly procedural. They contend, as they did in the appellate court, that plaintiff's notice of appeal simply came too late to confer jurisdiction on the appellate court and that the appellate court therefore had no right to review the circuit court's judgment on the merits. Accordingly, defendants assert that the appellate court's judgment should be vacated for lack of jurisdiction and that plaintiff's appeal should be dismissed.

In addressing defendants' claims, we begin with the familiar proposition that jurisdiction is conferred upon the appellate court only through the timely filing of a notice of appeal. Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984); 155 Ill. 2d R. 301. Under Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)), 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-judgment motion."

Although this rule utilizes language which makes its requirements appear mandatory, our court has recently recognized that the rule's requirements may be relaxed. In an appropriate case, the appellate court may entertain an appeal even where the appellant has failed to comply with Rule 303. In re Marriage of Skahan, 178 Ill. 2d 577 (1998).

There is no dispute that within 30 days of the circuit court's entry of summary judgment in this case, plaintiff did file a post-trial motion directed against the judgment. As previously indicated, the sole issue raised by defendants is the sufficiency of that motion. Because the motion attacked a judgment entered by the court sitting without a jury, it was subject to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1996)) and had to specifically request one or more of the types of relief specified in that provision., i.e., rehearing, retrial, modification of the judgment, vacating the judgment or other similar relief. Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 461 (1990); Fultz v. Haugan, 49 Ill. 2d 131, 135-36 (1971).

Plaintiff's motion here included such a request. It expressly asked the court to reconsider its entry of summary judgment and to reverse that judgment. Although plaintiff did not detail in the motion itself precisely why she thought the judgment was infirm, she was not required to do so under section 2-1203. In contrast to section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202 (West 1996)), which governs post-trial motions in jury cases, section 2-1203 contains no requirement that the motion contain the points on which it is based or that it specify the grounds supporting it. See, e.g., In re Marriage of Jerome, 255 Ill. App. 3d 374, 389 (1994).

The distinction between section 2-1203 and section 2-1202, as the appellate court in this case correctly recognized (297 Ill. App. 3d at 895), reflects the different requirements for preserving error on review in jury and non-jury cases. Section 2-1202 mandates specificity in post-judgment motions in jury cases because in such cases, the post-judgment motion defines the scope of review. In a jury case,"[a] party may not urge as error on review of the ruling on the party's post-trial motion any point, ground, or relief not specified in the motion." 155 Ill. 2d R. 366(b)(2)(iii). If an issue is not raised in the post-trial motion, it is waived for review. See Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 738 (1997).

In non-jury cases, by contrast, post-trial motions are not required at all, and "[n]either the filing of nor the failure to file a post-judgment motion limits the scope of review" (155 Ill. 2d R. 366(b)(3)(ii)). As long as the issue sought to be contested on appeal is presented to the trial court at some point, the issue is not waived on appeal by failure to file post-judgment pleadings. See In re Marriage of Mohr, 260 Ill. App. 3d 98, 101 (1994). Post-judgment pleadings are not necessary to preserve the right to raise issues concerning entry of summary judgment even where the case involves additional matters which subsequently proceed to trial before a jury. Mohn v. Posegate, 184 Ill. 2d 540, 546-47 (1998).

Notwithstanding these considerations, the appellate court has sometimes viewed the requirements for post-trial motions under section 2-1203 more stringently. Based on language this court used in Beck v. Stepp, 144 Ill. 2d 232, 241 (1991), and Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347 (1990), various appellate court decisions have held that motions filed under section 2-1203 are required to specify the grounds warranting the relief requested. See, e.g., J.D. Marshall International, Inc. v. First National Bank, 272 Ill. App. 3d 883, 888 (1995); Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 293 (1994). As the appellate court in this case correctly pointed out, however, the circumstances in Beck and Andersen were qualitatively different from those present here.

In this case, the post-judgment motion was clearly identifiable as such, it was directed at the circuit court's judgment, and it included an explicit request that the judgment be reconsidered and reversed, the type of relief contemplated by section ...


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