## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Zam ora v. Montiel

, 2013 IL App (2d) 130579

Appellate Court Caption J UAN Z AMORA, Plaintiff-Appellant, v. RI CARDO MONTI E L
, N E W S B O Y D E L I V E R Y S Y S T E M S
, IN C

. , a n d U N IQ U E D I ST RIB U T I O N SE RV I CE S, I N C.
, D e f e n d a nt s

- A p p e ll e e s ( Ch e r ie Pa

y n e and Paul Pay

ne, De fenda

nts).

District & N o. Second District Docke t No. 2-13-0579

Opinion filed Modified upon denial
of re hear ing Aug ust 19, 2013

November

18, 2013

Held (Note : Th is syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plai n t i ff’ s failure to file a notice of appea l within 30 day s of the trial court’s order denying his motion to rec onsider the dismiss al of his claims
ag ainst defe ndants deprive d the ap p el late court of jurisdiction over his
appea l, which he filed pursuant to the Supreme Court Rule 304(a) finding in the order
, notwithstanding his contenti on that the trial court’s order
gr a nting defe ndants leave to file a third-par ty complaint rende red th e Ru le 304(a) finding in the order dismiss ing plaintiff’s action ineffe ctive, since

mere ly obtaining leave to file a third-par ty claim did not trig g er the need for a new Rule 304(a ) finding

.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County , No. 09-L -987; the Hon. Dorothy

Fr ench Ma llen, J udg e, pre siding.

J udg ment Appea l dismi ssed.Counsel on

Appea l Ry an M. Griff in, Sc o t t M

. Duxbury
, and Timothy J

. Winfield, all of Goldstein, Be nder & Romanoff, of Chica g o, for a ppellant.

J eff rey S. Ba rg er, of Esp Kre uzer Cores L L P, of Wheaton, for appellee s.

Panel J USTI CE HUDSON deliver ed the judg ment of the c ourt, with opinion.
J ustic e s H utc h in s o n a

n d Sc hostok concur

red in the judgme nt and opinion.

OP INION

¶ 1 I . I NTRODUCTI ON ¶ 2 Def

endants, Ricardo Montiel, Newsboy Deliver y Sy stems, Inc., and Unique Distribution S er v i ces, I nc., move to dismiss this appea l, which was filed by plaintiff, J uan Z amora. Def endants contend that we lack jurisdiction. For the rea sons that follow, we agr ee wi th defe ndants, and a ccor dingly , we g rant their motion and dismiss this appeal. ¶ 3 On Aug ust 31, 200 9
, p l ai n t i ff fi l ed a co m p l ai n t sounding in neg lige nce a g ainst defe ndants and also ag ainst Cherie and Paul Pay ne (the Pay

ne d ef en d an t s). The following
proce dural history

of the case is r eleva

nt to deter

mining whether we have jurisdiction over this appeal: (1) Marc h 24, 2010: the trial court dismiss ed plaintiff’s complaint as it pe rtained to defe nd ants , finding that it was barr ed by the exclusivi ty provisions of the I llinois Workers’ Compensation Ac t (820 I L CS 305/ 5(a) (West 2008) ), and the c ourt included an I llinois Supreme Court Rule 304(a ) (e ff. Jan. 1, 2006) findingin this order; (2) Apr il 23, 2010: plainti ff f iled a motion to reconsider the dismissal; (3) June 29, 2010: the t rial court gr anted the Pay ne def endants lea

ve to file a

thirdparty complaint seeking

contribution ag ainst defe ndants; (4) July 7, 2010: the trial court de nied plaintiff’s motion to rec onsider: (5) August 25, 2010: the Pay ne def endants filed the ir third-par ty claim; (6) J uly 11, 2012: the trial court dismiss ed the Pay ne defe ndants’ contribution claim; also on this date, plaintiff reque sted that the trial court make a new Rule 304(a) finding with respe ct to the March 24, 201 0
, d i smissal order and the trial court made such a finding ; (7) J uly 2 4
, 2 0 1 2 : plaintiff filed a notice of appea l reg arding the Marc h 24, 2010, dismiss al orde r and the subsequent denia l of his motion t o rec onsider; (8) Dec ember 1 2, 2012: this court dismiss ed plaintiff’s initial appea l for lack of jurisdiction (Paynev. Zamora , 2012 I L App (2d) 120804- U);

-2-(9) Dec ember 28
, 2 012: plaintiff moved in the trial court for a “re newa l” of the Marc h 24, 2010, Rule 304(a) finding ; (10) Marc h 20, 2 0 1 3 : t h e trial court denied plaintiff’s motion to rene w the Marc h 2010 Rule 304(a) finding ; (11) May 14, 2013: the trial court dismiss ed all rema ining cause s of action direc ted
ag ainst the Pay

ne def endants; (12) J une 5, 2013: plaintiff filed t h e notice of appea l initiating the curr ent appea l seeking reve rsal of the Marc h 24, 2010, dismiss al and the Marc h 20, 2013, denial of his motion to renew the Ma

rch 2010 Rule 304( a) f

inding.
Def endants filed a

motion to di smiss t his appea l for lac k of jurisdiction.

¶ 4 I I . ANALYSI S ¶ 5 Def

endants asser

t that plaintiff had b y Au gu st 6, 2010, to appea l the Marc h 24, 2010, dismiss al–which c ontained a Rule 304(a) f inding–of his action ag ainst defe ndants ( i.e. , 30 day s afte r t he trial court d en i ed his motion to rec onsider that dismiss al). P laintiff counters that, when, on J une 29, 2010, the trial court g rante d the Pay ne defe ndants leave to file their th ird

- p a r ty c o mp la in

t, the previous Rule 304(a) finding
, which was made contempora neous ly with the dismiss al of plaintiff’s claims ag ainst defe ndants, was rende red ineffe ctive. Plaintiff

co n t ends that a new Rule 304(a) finding was nece ssary to make the Marc h 24, 2 0 1 0
, dismiss al orde r appe alable a fter the addition of the third-pa rty claim. ¶ 6 I llinois Supreme Court Rule 304(a) (ef f. J an. 1, 2006) all o ws fo r t h e ap peal of a fina l judgme nt in a ca se involving multiple claims or pa rties wher e the judgme nt c oncer ns “one

or m ore but few er t h an all of t he parties or claims.” To make such a judgment appealable, the trial court must make a finding that “ther e is no just rea son for delay in g either enfor ceme nt or appea l or both.” I ll. S. Ct. R. 304(a) (ef f. J an

. 1
, 2006). The rule exis ts to discourag e piec emea l appea ls in the absence of a g ood rea son to procee d in such a fa shion and als o t o remove any uncer tainty about the proper course when a judgme nt is enter ed
reg ardingfew er tha

n all matters in c ontroversy

. Mares v. Metzler , 87 I ll. App. 3d 881, 884 (1980). Thus, befor e an appea l may be taken from a judgme nt that leave s other matters in
controve rsy , the trial court must consider whether an immediate appea l is appropr iate and make the appropri at e fi nding. Seef v. Ingalls Mem orial Hospital
, 311 I ll. App. 3d 7, 14 (1999). Gene rally
, a party must file a notice of appea l within 30 day s of the judgme nt soug ht
to be appea led, and, if a motion direc ted ag ainst that judgme nt is filed, the time to appea l is tolled until 30 day s afte r that motion is resolved. Gree r v. Y ellow Cab Co.
, 221 I ll. App. 3d 908, 913 (1 9 9 1). Once a court has made a Rule 304(a) finding
, it is not nece ssary for the
court to make another such findin g wh en it denies a motion to rec onsider. McCorry v. Gooneratne
, 332 I ll. App. 3d 9 3 5
, 9 4 1 (2002). This is beca use the denial of a motion to

rec onsider is not a judg ment and is not appea lable in itself. Id. ¶ 7 Howeve r, in ce rt ai n ci rcumstanc es, a new Rule 304(a) finding might be require d. In Peterse n Bros. Plastics, Inc. v. Ullo
, 57 I ll. App. 3d 625 (1978), the First District confr onted

an appea l bear ing a number of simil arities to the instant case and co n cl uded that it lacke d jurisdiction. I n that case , the trial court enter ed a judgme nt on Marc h 2, 1976, in favor of the

-3-plaintiff aga i n st the defe ndant and enter ed a defa ult judgme nt in favor of the defe ndant
ag ainst a third-par

ty defe ndant. The third-par ty defe ndant moved to vacate the d ef au lt judgme nt on Marc h 29, 1976. The defa ult judgme nt was vacated on April 5, 1976. On April 28, 1976, the defe ndant moved to vacate the judgme nt in favor of the plaintiff an d to set aside the order vaca

ting the defa

ult judgme nt ag ainst the third-par ty defe ndant. On J uly 12, 1976, the trial court reinstated the defa ult judgme nt ag ainst the third-par ty defe ndant (this order also stated that the defe ndant’s motion to vacate the judgme nt in favor of the plaintiff

was moot). On Aug ust 2, 1976, the third-par ty defe ndant moved to vacate the J uly 12 order
, asser ting that the tr ial court lacke d jurisdiction to vacate the April 5 order

. Also on Aug ust 2, the trial court vaca

ted all order s and judgme nts a g ainst the defe ndant and the third-par ty defe n d an t. On Aug ust 24, 1976, the plaintiff moved to vacate the August 2 order

. The plaintiff’s motion was denie d on September 2, 1976, a nd the plaintiff appe aled. ¶ 8 The First District beg an by noting that an order vacating a judgme n t i s generally not appea lable, as it leave s matters pending a nd there fore is not a final orde r. Id. at 628. Thus, it conclude d that the plaintiff normally could not appea l such an order
, but it stated that the plaintiff could preva il if the August 2 order was void, as a void order can be attacke d at any time. Id. at 629. I t then observe d t h at the Marc h 2 order had been final and appea lable; 1 howeve r, when the third-par ty defe ndant filed its motion to vacate the defa ult judgme nt, the March 2 order was no longe r appea lable until this motion was resolved and the trial court there fore reta ined jurisdiction over the entire case

. Id. Acc ording ly
, the trial court had jurisdiction on April 5 to vaca te the defa ult judgme nt. Id. Fur

ther, when it vacated the defa ult judgme nt, it left t he claim that had been t he s u bject of that judgme nt pending betwee n the defe ndant and t h e third-par ty defe ndant. Id. Be cause this claim rema ined pending
, in

acc ordanc e with I llinois Supreme Court Rule 304(a) (ef f. Jan. 1, 1970) (“In the abse nce of

s u ch a finding
, any judgme nt that adjudicate s few er than all the claims or the rig hts and liabiliti es of few er than all the parties is not enfor cea ble o r ap p eala

ble and is subject to revision at any time befor e the entry of a judgme nt adjudicating all the claims, rig ht s , and liabiliti es of all the parties.” ), the trial court reta ined jurisdiction over the Marc h 2 judgme nt in favor of the plaintiff. Peterse n Bros.
, 57 I ll. App. 3d at 628-29. The First District explained that, wher e no Ru l e 304(a) finding is made, “no appea l is permissible, and the circ uit court reta ins jurisdiction over the entire cause , including the power to revise any or all judgme nts at any

time prior to entry

of a judg ment adjudicatingall claims.” Id. at 630. ¶ 9 The First District acknow ledg ed that the Marc h 2 judgme nts did contain a finding that there was no just rea son to delay enfor ceme nt or appea l (which, in that case , was superf luous,

as the Marc h 2 judgme nts wer e appea lable without such a finding ). Id. Neve rtheless, despite this findi n g, t h e court held that the judgme nt in favor of the plaintiff was no longe r appea lable when the third-par ty defe ndant succe ssfully moved to va c a te th e d e f ault judgme nt ag ainst it (which revive d and left pending the third-par ty claim). Id. This was beca use, befor e the trial court vacated the defa ult judgme nt, it could not assess whether the plaintiff’s claim

T his pro pos it ion is ar guably at odds wit h the sup re m e cou rt ’s la te r hol din g tha t “[ i] f a cou rt 1 la cks j uri sdi ct ion
, it can not con fe r any re li ef
, even f r o m pri or j udgm ent s tha t ar e void.” Peop le v. Flo wers , 208 I ll . 2d 291, 308 (2 003)

.
-4-was suitable for appea l indepe n d ent of the third-par ty claim. Id. The third-par ty claim

rema ined pending until J uly 12, when the trial court reinstated the defa ult judgme nt, which resulted in a final judgme nt as all claims had then been resolved. Id. at 630-31. T h e t h i rd

party defe ndant’s Aug ust 2 motion came within 30 day s of the J uly 12 judgme nt, so the trial
court still had jurisdiction at that time. Id. at 631. As the trial court had jurisdiction when it
enter ed the Aug ust 2 order
, the order was not void. Id. The appellate court conclude d that it did not have jurisdiction over the trial court’s August 2 order vacating the ear lier judgme nts, as the orde r wa s not final. Id. ¶ 10 For our purposes, the important lesson of Peters en B r o s

. co n ce rn s t h e Rule 304(a) finding made in conjunction with the initial judgme nts in that case enter ed on Marc h 2, 1976. The First District held, in essenc e, that this finding lost its vitality when the third-par ty claim

was resur rec ted. Id. at 630. I t explained, “Only afte r [t he defa ult judgme nt] was vacated on April 5 co u l d t he circ uit court deter mine whether justice require d that [t he plaintiff’s] judgme nt be appea lable without a resolution of [t he defen d ant’s] claim or whether both claims should be disposed of befor e the first judgme nt could be appea lable.” Id. In this case , plaintiff arg

ues that the Pay

ne defe ndants’ third-par

ty claim ag ainst defe ndants had a simil ar eff ect. ¶ 11 We disag ree

. Thoug h we do not nece ssarily quarr el with the rule announce d in Peterse n Bros.
, we find that case distinguishable. Unlike in Peterse n Bros.
, in this case , no new claim

was added until af

ter the judg ment in f

avor of defe ndants beca

me final and appea lable and the period for appea l had run. I t is true that the Pay ne defe ndants obtained leave to file their contribution claim prior to the resolution of plaintiff’s motion to rec onsider. Howeve r, this claim was not a ctually filed until more than 30 day s afte r the trial court resolved plaintiff’s motion to reconsider. ¶ 12 We decline to equate obtaining leave to file a claim with actua lly filing that claim under the circ umstances prese nted in this case

. In Ganci v. Blauvelt
, 294 I ll. App. 3 d 5 0 8
, 516 (1998), the F ourth District held as f ollows: “Placing jurisdictional signific ance to the leave require ment here would mere ly result in

a technica l w indfall to the third-par ty defe ndant who did not object to the lack of leave of court until appea l. Moreove r, we conclude that treating obtaining of leave as an element of jurisdic t i o n is contra ry to the most rec ent theories of circ uit court jurisdiction.”
At issue in Ganci was leave to implead a third party ( id. ), which is simil ar to the situation we fac e her e. L ike the Gancicourt, we are reluc tant to attach jurisdictional sig nificanc e to the fac t that the Pay

ne defe ndants obtained leave to file their claim befor e the trial court resolved plaintiff’s motion to reconsider

. ¶ 13 The result would be a cumber some rule of proce dure indeed. I f we wer e to trea t obta ining leave to file a claim i n the s ame manner as filing the c laim itself, what would bec ome of a plaintiff’s ability to appea l pursuant to Rule 304(a) in the interim period betwee n obtaining lea ve and filing the claim? Would the trial court have to make a new Rule 304(a) finding based upon whateve r information was available to it in the motion for leave to file the claim? We note that in this case the motion simply stated, “De fenda nts, Cher ie C. Pay

ne and Paul

-5-B. Pay ne, by and throug h the undersig ned counsel, move this Honor able Court f or leave to file Third Party Complaint for Contributi o n ag ainst RI CARDO MONTI EL
, NEWSBOY DEL I VERY SYSTEMS
, I NC. and UNI QUE DI STRI BU TI ON SERVI CES, I NC.” Wit h this limit ed information, it would have been d i fficult for the trial court to “dete rmine whether justice require d that [t he] judgme nt be appea lable without a resolution of [t he Pay ne defe ndants’] claim or whether both claims should be disposed of bef ore the first judg ment could be appea lable.” Peterse n Bros.
, 57 I ll. App. 3d at 630. Moreove r, if the trial court did make such a deter

mination, would it have to revisit that decision when the claim was actua lly filed? Fur ther, if the claim wer e to be amended in the fu t u re , wo u l d the t rial court have to make y et another Rule 304(a) finding based on whateve r new information was contained in the amendment? Conversely
, would the judgme nt ag ainst plaintiff be unappea lable and would plaintiff have to wait an indeterminate amount of time until the third-par ty claim was filed? We believe that the better rule is the simpler one: mere ly obtaining leave to file a claim does not trig g er the need for a new Rule 304(a) finding

. We note that the plain languag e of Rule 304(a) contemplates that additional claims will actua lly be pending : “an appea l may be
t ak en from a final j udg ment as t o one or more but fewer t han all of t he parties or claims

. ” (Emphasis adde d.) I ll. S. C t. R. 304(a) (e ff. Jan. 1, 2006). ¶ 14 We acknow ledg e that the Third District has held that the filing of a “motion for leave to file a petition for sanctions and attached petition equate d to a p en d ing ‘Rule 137 claim.’ ” Commonwealth Edison Co. v. Munizzo
, 2013 I L App (3d) 120153, ¶ 28. T hat case is distinguishable in t h at t he proposed petition for sanctions was attache d to the motion for leave to file the petition. Id. ¶ 22. Thus, the trial court could ea s i l y as s ess the rela tionship betwee n the judgme nt soug ht to b e ap p ealed and the petition for sanctions. We also acknow ledg e case law holding that seeking leave to file a posttrial motion in a small-claims

case tolls the running of the period in which an appea l ma y be filed. See Bolin v. Sosamon
, 181 I ll. App. 3d 442, 445 (1989). Howeve r, s u ch case s can be distinguished on a simil ar basis. Id. (“[I ]t appea

rs the supreme court intended that the filing of the petition for leave to file a post-trial motion accom panied by the post-trial motion tolls the 30-day period for filing

a n otice of appea l.” (Emphasis added.) ). Moreove r, both of those situations involv e m o re limit ed or w ell-def

ined subject matter s than that which mig ht arise with a claim ge nera lly
, simpli fying the trial court’s role in assess i n g t h eir relationship to a judgme nt soug ht to be
appea led pursuant to Rule 304(a ). ¶ 15 Finally
, we wish to provide some context for our holding. Rule 304(a) serve s larg ely to further the g oal o f j u dicial eff iciency

. One of its primary purposes is, in the absenc e of a compelling rea son, to discourag e piece meal appea ls. In re Marriage of Gutman
, 232 I ll. 2d 145, 151 (2008). We r ealize that, on some rar e occa sions, a llowing a party to pr ocee d with
an appe al after another party seeks leave to add a claim might re sult in a pieceme al appe al being taken. Howeve r, it is equally undesirable to require a party to repe atedly return to the trial court to seek a new Rule 304(a) finding with ever y chang e in circ umstances. Moreove r, such a proce dure would place trial co u rt s i n t h e difficult position of having to make such
assessments on the limit ed knowledg e likely to be available when a party seeks leave to add

a claim. I n short, any reduc tion in judicial eff iciency will be minimal and likely offse t by the enhanc ement of e fficie ncy in the trial court.

-6-¶ 16 I n light of the fore g oing, we hold that plaintiff’s failure to f ile a notice of appea l w ithin 30 day s of the trial court’s resolution of his motion to reco n s i d er t h e Marc h 24, 2010, dismiss al of his claims ag ainst defe ndants deprive s this court of jurisdiction over this appea l. Acc ording ly , we dismiss this appeal.

¶ 17 Appea l dismi ssed.

¶ 18 SUPP L EMENTAL OPI NI ON UPON DENIAL

OF REHE ARI

NG ¶ 19 Plaintiff has filed a petition fo r rehearing in this case

. In it, he raises three arguments. First, he conten d s t h at t h i s court never ruled on the salient issue in this case , namely
, “whe ther the motion for leave [t o file a third-par ty contribution claim], and a g rant of leave
to seek contribution is a ‘cla im’ as define d under [Rule 304(a) ].” Second, he claims that we

announce d a new, “her etofore unprec edente d,” policy -base d balanc ing test. Third, plaintiff points out an inaccur acy

in our rec itation of the proce dural history of this case

. ¶ 20 Turning to pla intiff’s first contention, that we never addre ssed whether obtaining le ave to file a claim is the same thing as filing a claim for Rule 304(a) purposes, we call plaintiff’s attention to the followi n g p assage from our initial opinion in this appea l: “We decline to equate obtaining leave to file a claim with actua lly filing that claim under the circ umstances prese nted in this case .” Supra ¶ 12. Our ruling on this point could hardly be clea rer

. In fac t, plaintiff quotes this lang uag e in his petition for rehe aring

. As such, plaintiff’s contention is inacc urate at best. ¶ 21 Plaintiff’s second co n t en t i on, that we announce d a new balanc ing test, is simil arlyillfounded. We disc ussed some of the policy implications of our decision, but our discussion is nothing more than that. We e x pressly pref ace d this discussion with, “F inally
, we wish to provide some con t ex t fo r our holding.” Supra ¶ 15. Plaintiff quotes extensively from our discussion, but h e does not acknow ledg e the pref atory languag e and instead char acte rizes our discussion as our adoption of a new test. To be clea r, there is no new test. We plainly stated the brig ht-line nature of our holding: “mer ely obtaining leave to file a claim does not trig g er the need for a new Rule 304(a) finding .” Supra ¶ 13. Although policy considerations underlie
any rule, t h er e is no place for a trial court to eng ag e in a poli cy -base d analy sis in applying this straig htforwa

rd rule. Ag ain, plaintiff’s argument selec tively ignor es the plain languag e of our e arlier

dispositi on. ¶ 22 Finally
, plaintiff calls our attention to an err or in our rec itation of the proce dural history of this case . We stated: “Jul y 11, 2012: the trial court dismiss ed the Pay ne defe ndants’ contribution claim; also

on this date, plaintiff reque sted that the trial court make a Rule 3 0 4 (a ) finding with
respe ct to the March 24, 2010
, dismiss al order and the trial court made such a finding .” (Emphasis in orig inal.) Supra ¶ 3.
Howeve r, in an ear lier summary order dismiss ing another appea l by plaintiff, we found that this Rule 304(a) finding did not a pply to the Marc h 24, 2010, order . See Zamora v. Payne
, No. 2-12-0804 (2012) (unpublished summary order under Supreme Court Rule 23). Wit hout

-7-explanation as t o how i t could be the case, pl aintiff st ates, “I f t his err or contributed to this

court’s decision to dismiss this appea l, a rehe aring is appropr iate.” Plaintiff knows full well that this err or is not materia l

. In that same ear lier summary order
, we explained, “I f the [March 24, 2010,] Rule 304(a) finding in that order was vali d
, t h e n o tice of appea l is (as previously noted) too late.” Id. at 4. In our opinion here
, we found the Marc h 24, 2010, Rule 304(a) finding valid. As t h e corr ection of this err or could have no bear ing on the out come of this a ppeal, we fail to see how pla intiff could have believed tha t this was a

n appropr iate basis to reque st a rehe aring

. ¶ 23 As plaintif

f’ s p et i t i o n for rehea

ring is based on immaterial facts and dis tortions of our

ear lier opinion in this matter, we find it wholly unpersua sive. Plaintiff’s reque st for rehe aring is denied.

-8-