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Pempek v. Silliker Laboratories


November 12, 1999


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 final judgment "decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with the execution."

Clearly, RMC could not have proceeded to execute the judgment entered by the court on February 4, 1998, even if the court had denied a timely-filed post-trial motion that same day. This is because the dollar amount of the judgment could not be calculated until the court had resolved RMC's Kotecki limit. *fn1 In such a circumstance, the correct procedure would have been for RMC to file its post-trial motion promptly after the court entered judgment on the jury trial (i.e., within 30 days) and then, if the motion were denied, wait for the court to enter final judgment after the Kotecki hearing before attempting to bring an appeal challenging the jury verdict; or, if a timely-filed post-judgment motion was filed attacking the Kotecki hearing, within 30 days after the resolution thereof.

We note that the requirement that parties bring their post-trial motions within 30 days of the entry of both final and non-final judgments has the effect of promoting, rather than hindering, judicial economy. For example, if the trial court had found merit in RMC's claim that JNOV should have been entered by the court in RMC's favor following the trial, no Kotecki hearing would have been necessary. Obviously, it would have been better for the court to have made such a determination on the JNOV issue prior to the Kotecki proceeding, rather than waste considerable time and energy conducting the hearing. The record shows the Kotecki hearing involved the testimony of five witnesses and lasted several hours.

Finally, although we recognize that there has been on-going confusion among some members of the bar as to the proper timing of post-trial motions in complex procedural disputes such as this one, we find the better reasoned cases support our interpretation of section 2-1202. In Bizarro v. Ziegler, 254 Ill. App. 3d 626, 627 N.E.2d 122 (1994), for example, the court noted that the entry of "judgment" following a jury trial triggers an obligation of the aggrieved party to file a post-trial motion attacking the decision within 30 days, even though a final judgment has not yet been entered. The court also noted that a party wishing to delay filing a post-trial motion may receive an extension of the deadline from the trial court under section 2-1202, but this extension must be granted within the 30-day period. Bizzaro, 254 Ill. App. 3d at 637. The trial court did not extend the 30-day limitation in either Bizarro or in the case sub judici.

To the extent that the Third District's decision in Morton Buildings, Inc. v. Witvoet, 70 Ill. App. 3d 55, 388 N.E.2d 258 (1979) may be read to be contrary to our holding today, we decline to follow it. That case fails to give proper consideration to the statutes and rules governing appeals in Illinois which make a clear distinction between "judgments" and "final judgments." Cf. 735 ILCS 5/2-1202, 1203 (West 1998) with Supreme Court Rule 303 and 304 (151 Ill. 2d R. 303, 304). Moreover, we note that Morton Buildings proceeds from the faulty premise that all post-trial relief must always be sought in a single post-trial motion. Morton Buildings, 70 Ill. App. 3d at 58. Contrary to the assertions of RMC, our supreme court in Sears v. Sears, 85 Ill. 2d 253, 422 N.E.2d 610 (1981), clearly contemplated the possibility of multiple post-trial motions. That case, however, involved successive post-trial motions brought after final judgment. In such a circumstance, when final judgment has been entered, the court determined simply that all motions brought subsequent to the first motion fail to stay the circuit court's judgment or extend the time for filing the notice of appeal under Supreme Court Rules 303.

In sum, we find we are without jurisdiction under Supreme Court Rule 303 because RMC did not file its notice of appeal within 30 days after final judgment was entered. The post-trial motion that RMC did file following the Kotecki hearing did not toll the time for filing the required notice of appeal because it was not timely in that it attacked the jury's verdict, not the result of the Kotecki hearing. Because there was no timely-filed post-trial motion attacking the Kotecki proceedings on April 24, 1998 - 30 days after final judgment - the time in which RMC was permitted to file a notice of appeal expired.

For the foregoing reasons, dismiss the appeal for want of jurisdiction. For the same reason, all pending motions are dismissed.

Appeal dismissed; pending motions dismissed.

BUCKLEY, J., and QUINN, J., concur.

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