Heed the appeal deadline after a rule 304(a) finding
This appeal presents the question of when certain proceedings after entry of a Rule 304(a) finding may require an additional Rule 304(a) finding to permit an appeal. Several procedural dates are key to the question:
– On March 24, 2010, the trial court dismissed the plaintiff’s complaint as to some defendants and included Rule 304(a) language to the dismissal order.
– On April 23, 2010, the plaintiff filed a timely motion to reconsider the dismissal.
– On June 29, 2010, the trial court granted certain defendants leave to file a third-party complaint seeking contribution against certain other defendants.
– On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider.
– On August 25, 2010, the third-party claim was filed.
– After further proceedings with respect to the third-party claim, the plaintiff moved in the trial court for a “renewal” of the March 24, 2010, Rule 304(a) finding on December 28, 2012.
– By order entered on March 20, 2013, the trial court denied plaintiff’s motion to renew the Rule 304(a) finding.
– On May 14, 2013, the trial court dismissed all remaining claims, terminating the action in the trial court.
– On June 5, 2013, the plaintiff filed a notice of appeal relating to the March 24, 2010, dismissal and the March 20, 2013, denial of his motion to renew the March, 2010, Rule 304(a) finding.
The question presented to the court: Was the plaintiff’s appeal timely? The answer: No.
Generally, it is necessary for a party to appeal an order including a Rule 304(a) finding within 30 days after entry of the order or 30 days after the disposition of a motion for reconsideration directed against the order. However, case law from the First District holds that when a third-party claim is interposed (or, in the First District case, resurrected) after a Rule 304(a) finding is entered, but before the time to appeal runs, a new Rule 304(a) finding may be required because the court must reassess whether justice requires that the judgment be appealable without a resolution of the third-party claim or whether both claims should be disposed of before the first judgment could be appealed.
Although the Second District did not disagree with the First District’s reasoning, it distinguished the pending case on its facts. In the First District case, the third party claim was resurrected before the judgment became final and appealable and the appeal period had run. However, in the instant case, the defendants obtained leave to file their contribution claim (on June 29) before resolution of the plaintiff’s motion to reconsider (on July 7). However, the new claim was not actually filed until more than 30 days after the trial court resolved plaintiff’s motion to reconsider (on August 25).
In sum, the Second District held that “the better rule is the simpler one: merely obtaining leave to file a claim does not trigger the need for a new Rule 304(a) finding.” Accordingly, the Rule 304(a) finding in the dismissal order of March 24, 2010, was operative and the notice of appeal had to be filed within 30 days after the disposition of the motion to reconsider that order. Because it was not, the appellate court was without jurisdiction to review the dismissal.
For practitioners, the best rule is the simplest, as well: If there is the slightest doubt, file the notice of appeal without awaiting intervening events, particularly if the occurrence and timing of those events is outside of your control.
Zamora v. Montiel, 2013 IL App (2d) 130579.