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Berg v. Allied Security

July 06, 2000

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


The opinion of the court was delivered by: Justice Rathje

Agenda

17-May 2000.

The issue presented is whether the appellate court possessed jurisdiction over plaintiff's appeal. We hold that it did not.

BACKGROUND

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 1998). Thirty days later, on October 4, plaintiff moved for reconsideration or, in the alternative, for leave to file an amended complaint. On October 15, the circuit court denied reconsideration and took under advisement the request for leave to amend. 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 plaintiff's post-judgment request for leave to amend, 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 1998)) and therefore did not operate to toll the 30-day appeal period under Supreme Court 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 came too late, and the appellate court therefore lacked jurisdiction to hear 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 therefore was 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.

Both defendants petitioned this court for leave to appeal (177 Ill. 2d R. 315). We granted those petitions and consolidated the appeals. Before this court, defendants again argue that plaintiff's post-judgment motion was deficient and therefore did not toll the time for filing a notice of appeal. In addition, defendants argue that, even assuming that plaintiff's post-judgment motion was sufficient to toll the time for filing a notice of appeal, the appellate court still lacked jurisdiction over plaintiff's appeal because plaintiff's notice of appeal was filed more than 30 days after the trial court's denial of plaintiff's motion to reconsider. *fn1

ANALYSIS

We need not decide whether plaintiff's post-judgment motion was sufficient to toll the time for filing a notice of appeal. As defendants correctly point out, even assuming that plaintiff's post-judgment motion was sufficient, plaintiff filed her notice of appeal more than 30 days after the trial court's denial of her motion to reconsider. Accordingly, the appellate court did not have jurisdiction to hear plaintiff's appeal.

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."

A post-judgment motion for leave to amend the complaint is not a motion directed against the judgment and therefore does not extend the time for appeal. Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347 (1990); Fultz v. Haugan, 49 Ill. 2d 131, 135-36 (1971); see also Sears v. Sears, 85 Ill. 2d 253, 258 (1981).

On October 4, 1996, plaintiff filed a motion for reconsideration of the judgment and requested leave to file a second amended complaint. On October 15, the circuit court denied plaintiff's motion for reconsideration and took under advisement her request for leave to file a second amended complaint. Thus, as of October 15, the only matter pending in the trial court was plaintiff's request for leave to file a second amended complaint, a request that was not directed against the judgment and did not extend the time for appeal. See Andersen, 133 Ill. 2d at 347; Fultz, 49 Ill. 2d at 135-36. Nevertheless, plaintiff filed her notice of appeal 42 days later, on November 26. Plaintiff's notice of appeal therefore was untimely, and the appellate court did not possess jurisdiction to hear her appeal.

Plaintiff's invocation of section 2-1005(g) of the Code of Civil Procedure (735 ILCS 5/2-1005(g) (West 1998)) does not change our analysis. Section 2-1005(g) specifically permits the amendment of pleadings before or after the entry of summary judgment. According to plaintiff, a motion requesting such amendment after the entry of summary judgment is necessarily directed against the verdict because, if the trial court grants the requested leave to amend, the entry of summary judgment cannot stand. Thus, every motion for leave to file an amended complaint after the entry of summary judgment implicitly includes a request to vacate the entry the summary judgment.

The problem with plaintiff's argument is that it is wholly incompatible with Fultz. In Fultz, this court held that a motion for leave to file an amended complaint, filed after a dismissal with prejudice, was not directed against the verdict and therefore did not extend the time for filing a notice of appeal under Rule 303(a). Fultz, 49 Ill. 2d at 135-36. Significantly, the motion in Fultz did not request to conform the pleadings to the proofs but rather sought substantive amendments adding both additional parties and additional counts. Fultz, 49 Ill. 2d at 136-37. Thus, just as in the present case, the motion in Fultz included an implicit request to vacate the judgment, as the dismissal with prejudice could not stand if the motion were granted. Nevertheless, this court unambiguously held that "[t]he motion for leave to amend is not a motion directed against the judgment." Fultz, 49 Ill. 2d at 136.

CONCLUSION

For the reasons stated, we hold that plaintiff's notice of appeal was untimely and that the appellate court did not possess jurisdiction to hear her appeal. The appellate court's judgment therefore is vacated, and the appeal is dismissed.

Appellate court judgment vacated; ...


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