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Pempek v. Silliker Laboratories

November 12, 1999

LAWRENCE R. PEMPEK AND SUSAN PEMPEK, PLAINTIFFS-APPELLEES,
V.
SILLIKER LABORATORIES, INC., DEFENDANT-APPELLEE.
SILLIKER LABORATORIES, INC., THIRD-PARTY PLAINTIFF-APPELLEE,
V.
RMC, INC., THIRD-PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County.

Honorable Irwin J. Solganick, Judge Presiding.

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiffs, Lawrence and Suzanne Pempek, brought various claims relating to a fall Lawrence had from a ladder while working on the roof of defendant, Silliker Laboratories, Inc. At the time, Lawrence was a heating and air conditioning technician employed by third-party defendant RMC, Inc. Plaintiffs brought their actions against Silliker, and Silliker thereafter sought contribution from RMC.

After negotiation, plaintiffs and Silliker settled their claims, agreeing that plaintiffs should receive $442,500.94 for their injuries. The trial court found this settlement to have been made in good faith, leaving only the contribution action remaining between Silliker and RMC. The trial court thereafter held a jury trial on the single question of what percentage of fault, if any, was attributable to RMC. The jury returned a verdict on February 4, 1998 finding RMC was 60% liable for the Pempeks' injuries and that Silliker was liable for the remaining 40%. On that same day, the court entered judgment and set a date for a hearing to determine the limit of RMC's liability under the Workers Compensation Act (820 ILCS 305/1 et seq. (West 1996)). The hearing was necessary because, in Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 585 N.E.2d 1023 (1991), our supreme court determined that where an injured employee sues a third party who then brings a contribution action against the plaintiff's employer, the employer may be liable only to the extent of the employer's liability to the employee under the Workers' Compensation Act.

On March 3, 1998, the court held the Kotecki hearing but did not enter final judgment until March 25, 1998. On that day the court determined that RMC's "Kotecki limit" was $43,656.86.

On April 23, 1998, RMC filed a post-trial motion attacking the jury's verdict. RMC did not raise any claims regarding the Kotecki hearing. The court denied this motion on June 9, 1998.

On July 9, 1998, RMC filed its notice of appeal, citing Supreme Court Rules 301 and 303 as the basis of appellate jurisdiction (155 Ill.2d Rs. 301, 303).

Although RMC has raised several issues attacking the jury's verdict in the proceedings below, we must first address the question of whether we have proper jurisdiction over the appeal. Hwang v. Tyler, 253 Ill. App. 3d 43, 45, 625 N.E.2d 243 (1993). In this case, the issue dispositive.

Supreme Court Rule 303(a)(1) provides that 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." 155 Ill. 2d R. 303(a)(1). The timely filing of a notice of appeal is a jurisdictional requirement. See J.D. Marshall International, Inc. v. First National Bank of Chicago, 272 Ill. App. 3d 883, 888, 651 N.E.2d 518 (1995).

The timing of a post-trial motion following a jury trial is governed by section 2-1202 of the Code of Civil Procedure. It provides in relevant part:

"[p]ost-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 of any extensions thereof." 735 ILCS 5/2-1202 (West 1998).

Here, since the court entered "judgment" on the jury's verdict on February 4, 1998, section 2-1202 clearly requires that any post-trial motions attacking that judgment be filed on or before March 6, 1998, unless the court decided to extend the deadline prior to that date.

Despite the fact that the trial court entered "judgment" on the jury's verdict, RMC argues that the order entered February 4, 1998 did not trigger the timing provisions of section 2-1202. In support of its position, RMC correctly observes that the rules are generally designed to avoid inefficient and piecemeal appeals. RMC argues that if it had filed a post-trial motion on or before March 6, 1998, and if the court had denied that motion promptly, it would have been forced to take an appeal within 30 days under Rule 301 and 303, even though the results of the Kotecki hearing might not yet be known.

We agree with plaintiffs that RMC was required to file its post-trial motion, if at all, on or before March 6, 1998. RMC's argument that filing such a motion could lead to multiple appeals is faulty in its premise. Under Supreme Court Rules 303 (and under Rule 304 as well), an appeal may be taken only from a "final judgment." The fact that the court might enter "judgment" on a jury verdict and subsequently deny a timely-filed post-trial motion does not necessarily mean that the court has rendered a final judgment in the case. The procedural posture of this case illustrates the point. In Illinois, a judgment is considered final only if it "finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof." Tyler v. Tyler, 230 Ill. App. 3d 1009, 1011, 596 N.E.2d 119 (1992). A ...


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