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Hutton v. Consolidated Grain and Barge Co.

May 23, 2003

ROBERT W. HUTTON, PLAINTIFF-APPELLEE,
v.
CONSOLIDATED GRAIN AND BARGE COMPANY, A CORPORATION; AND CONSOLIDATED GRAIN AND BARGE COMPANY AT NAPLES, A CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Scott County No. 01L2 Honorable Ronald F. Robinson, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

UNPUBLISHED

MODIFIED ON DENIAL OF REHEARING

In July 2001, plaintiff, Robert W. Hutton, filed an action against defendants, Consolidated Grain and Barge Company, a corporation, and Consolidated Grain and Barge Company at Naples, a corporation, seeking relief under the federal Jones Act (46 U.S.C. app. §688 (2000)). Defendants filed a jury demand, plaintiff moved to strike it, and the trial court granted the motion. In April 2002, the trial court made a finding under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that no just reason existed to delay appeal of its order granting plaintiff's motion to strike defendants' demand for a trial by jury but also stated the following question was certified for appeal (see 155 Ill. 2d R. 308(a)): whether defendants, on proper demand, are entitled to a jury trial on a Jones Act case in the Illinois courts. Defendants appeal, arguing (1) their right to trial by jury is governed by Illinois law and guaranteed by the Illinois Constitution, (2) Congress has expressed an intent to extend the right to trial by jury to defendants in Jones Act cases, and (3) the striking of defendants' jury demand violates the equal protection clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2). We answer the trial court's question in the affirmative and remand.

I. BACKGROUND

In July 2001, plaintiff filed a complaint alleging negligence pursuant to the Jones Act and general maritime law and unseaworthiness pursuant to general maritime law and for damages pursuant to the Longshoremen's and Harbor Worker's Compensation Act (33 U.S.C. §905(b) (2000)). The Jones Act was passed to extend to seamen the same rights that had been extended to railroad workers in the Federal Employers' Liability Act (FELA) (45 U.S.C. §§51 through 60 (2000)) (Panama R.R. Co. v. Vasquez, 271 U.S. 557, 559-60, 70 L. Ed. 1085, 1087, 46 S. Ct. 596, 596 (1926)) and expressly incorporates by reference the rights and remedies of FELA. See 46 U.S.C. app. §688(a) (2000) ("in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply"). In August 2001, defendants filed a notice of removal to the United States District Court for the Central District of Illinois. In January 2002, the United States District Court remanded the case to the Illinois circuit court for Scott County. Hutton v. Consolidated Grain & Barge Co., No. 01-3272 (C.D. Ill. January 18, 2002) (remand order). In February 2002, defendants filed their answer to plaintiff's complaint and a demand for a trial by jury. In February 2002, plaintiff filed a motion to strike defendants' jury demand. In April 2002, the trial court granted plaintiff's motion to strike defendants' jury demand and made an express written finding pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)) of no just reason for delaying appeal. This appeal followed.

II. ANALYSIS

A. Jurisdiction

We first address whether this court has jurisdiction. See In re C.B., 322 Ill. App. 3d 1011, 1012, 750 N.E.2d 1271, 1272 (2001) (appeal dismissed for lack of jurisdiction). Defendants failed to include in their brief a statement of jurisdiction as required by Supreme Court Rule 341(e)(4) (188 Ill. 2d R. 341(e)(4)). However, failure to provide a statement of jurisdiction is not fatal because it is not a necessary component of our jurisdiction. Luttrell v. Panozzo, 252 Ill. App. 3d 597, 600, 625 N.E.2d 695, 697 (1993). Defendants apparently bring this appeal pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)), allowing appeals from final judgments as to fewer than all claims if the trial court "has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." The trial court's written finding is insufficient to confer jurisdiction on this court because the court's order denying defendants' motion for jury trial does not terminate the litigation between the parties on the entire controversy or a separate part thereof. "Rule 304(a) requires full resolution of an entire claim *** prior to appeal." Davis v. Loftus, 334 Ill. App. 3d 761, 769, 778 N.E.2d 1144, 1151 (2002).

This appeal could have been brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) permitting interlocutory appeals by permission. Rule 308(a) provides, in pertinent part, as follows:

"When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved." 155 Ill. 2d R. 308(a).

The trial court's April 29, 2002, order stated:

"The issue certified for appeal is whether [d]efendant[]s, upon proper demand, are entitled to a jury trial in a Jones Act case filed in state court."

It appears the court's intent was to make a finding pursuant to Rule 308. We will therefore consider the trial court's Rule 304 order as the statement prescribed by Rule 308. See People v. Kruger, 327 Ill. App. 3d 839, 843, 764 N.E.2d 138, 141 (2002) (effect of trial court's order, not its label, is controlling). Because we find substantial grounds for a difference of opinion on the question of a ...


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