In Zamora v. Montiel, 2013 IL App (2d) 130579, the Illinois Appellate Court held that a notice of appeal must be filed within 30 days of the trial court’s resolution of a motion to reconsider, following a dismissal order with a finding pursuant to Illinois Supreme Court Rule 304(a), even though the trial court had already granted the defendants leave to file a third-party action. The reviewing court emphasized that the third-party claim, though allowed to be filed at the time of reconsideration, had not been filed until more than 30 days had passed after the trial court's denial of the motion to reconsider.
The case involved a complex procedural history. On August 31, 2009, the plaintiff filed a complaint sounding in negligence against certain defendants, including the “Payne defendants.” Id. ¶ 3. On March 24, 2010, the trial court dismissed the plaintiff’s complaint with respect to the Payne defendants, while including a finding of finality and appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Zamora, 2013 Il App (2d) 130579, ¶ 3. On April 23, 2010, the plaintiff filed a timely motion to reconsider the March 24, 2010, dismissal order. However, on June 29, 2010, and while the plaintiff's motion to reconsider was still pending, the trial court granted the defendants leave to file a third-party complaint for contribution. Id.
On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider. Id. Although the trial court had granted the defendants leave, no third-party complaint had yet been filed. On August 25, 2010, more than 30 days since the trial court denied the plaintiff's motion to reconsider, the defendants filed their third-party claim. Id. On July 11, 2012, the trial court dismissed the third-party contribution claim. Also on that date, the plaintiff requested a “new” Rule 304(a) finding with respect to the trial court's earlier March 24, 2010, dismissal order. The trial court entered that finding. Id.
On July 24, 2012, the plaintiff filed a notice of appeal from the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider. However, on December 12, 2012, the Appellate Court dismissed the plaintiff’s initial appeal for lack of jurisdiction. Id.
On December 28, 2012, the plaintiff returned to the trial court and sought a “renewal” of the March 24, 2010, Rule 304(a) finding, but on March 20, 2013, the trial court denied that motion. Id. On May 14, 2013, the trial court dismissed all remaining causes of action directed against all defendants. On June 5, 2013, the plaintiff filed a notice of appeal seeking reversal of both the March 24, 2010, dismissal order, and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding. Id.
The defendants moved to dismiss the appeal. The defendants contended that, after the trial court entered its July 7, 2010, order denying the plaintiff's motion to reconsider, the plaintiff had 30 days to appeal from the trial court's March 24, 2010, dismissal order that contained a Rule 304(a) finding. Id. ¶ 5. The plaintiff countered that on June 29, 2010, when the trial court granted the defendants leave to file their third-party complaint, “the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of the plaintiff’s claim against the defendants, was rendered ineffective.” Id.
The court in Zamora first undertook a discussion of appealability pursuant to Rule 304(a), concluding that, once a court has made a Rule 304(a) finding, it is unnecessary for the court to make another such finding when it denies a timely motion to reconsider. Id. ¶ 6 (citing McCorry v. Gooneratne, 332 Ill. App. 3d 935, 941 (2002)). This is because, the Zamora court noted, the denial of a motion to reconsider is not a judgment and is not appealable in itself. Zamora, 2013 IL App (2d) 130579, ¶ 6.
Citing Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the Zamora court was “reluctant to attach jurisdictional significance to the fact the Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion to reconsider.” Zamora, 2013 IL App (2d) 130579, ¶12. Any other determination, the court reasoned, would result in a “cumbersome rule of procedure indeed,” and the reviewing court asked a series of hypothetical questions to highlight the ambiguity such a ruling could create. Id. ¶ 13.
The court in Zamora thus decided to adhere to a simple rule: merely obtaining leave to file a claim did not trigger the need for a new Rule 304(a) finding. Id. Relying on the plain language of Rule 304(a) that " 'an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims,' " the court held the Rule contemplated additional claims must actually be pending at the time of the finding. (Emphasis in original.) Id. (quoting Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).
In closing, the reviewing court recognized that, "on some rare occasions," allowing a party to proceed with an appeal after another party seeks leave to add a claim might itself result in a piecemeal appeal being taken. Zamora, 2013 IL App (2d) 130579, ¶15. Nonetheless, the court in Zamora noted, "it is equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a) finding with every change in circumstances." Id.
Recommended Citation: Robert G. Black, A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding, The Brief, (January 17, 2014), http://applawyers-thebrief.blogspot.com/2014/01/a-simple-rule-merely-obtaining-leave-to.html.