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Only one postjudgment motion to a customer, and be careful what you call it

April 25, 2012 by in General

The plaintiff sued to recover for injuries allegedly caused by the defendant’s negligence. The jury found the defendant negligent, but also found the plaintiff 50% negligent and reduced the

damage award by half. The trial court entered judgment on the verdict on August 28, 2009. On September 15, 2009, the plaintiff timely moved for judgment notwithstanding the verdict on the

issue of contributory negligence. When the motion was called for hearing on September 22, the plaintiff’s counsel failed to appear and the trial court sua sponte denied the motion.

On September 24, 2009, the plaintiff filed a motion for reconsideration, asking that the court “reconsider the ruling it issued” on September 22. The court granted the plaintiff leave to re-file the j.n.o.v. motion. The trial court denied the motion on the merits on December 3, 2009. The plaintiff filed a notice of appeal on December 30, 2009.

Under Rule 303, the notice of appeal must be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion. The plaintiff’s motion for judgment n.o.v.

qualified as a postjudgment motion, so that the time to appeal would not begin until the court disposed of the motion. The appellate court concluded that the trial court disposed of the motion on September 22, 2009. The plaintiff had 30 days thereafter to file a notice of appeal. Any further motion to reconsider would not extend the time to appeal.

In the appellate court, the plaintiff argued that the September 22 ruling was not a denial of the j.n.o.v. motion on the merits, but was instead tantamount to striking the motion. The appellate court noted that if that were the situation, the plaintiff should have filed a motion to “reinstate” the j.n.o.v. motion, rather than a motion to reconsider the September 22 ruling.

The appellate court concluded that the trial court denied the plaintiff’s motion on September 22, 2009, so that he had until October 22, 2009, to file a notice of appeal. Because he did not do so until December 3, 2009, the appeal was untimely and it was dismissed for lack of jurisdiction.

Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064.

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