                                  Illinois Official Reports

                                          Appellate Court



                             Harreld v. Butler, 2014 IL App (2d) 131065



Appellate Court              MARK HARRELD and JUDITH HARRELD, Plaintiffs, v. LOU
Caption                      BUTLER, Defendant and Cross-Defendant (Community Contracts,
                             Inc., Defendant; DVBC, Inc., Defendant and Cross-Plaintiff and
                             Third-Party Plaintiff-Appellant; The City of Elgin, ABC Roofing and
                             Siding of Illinois, Inc., and Anytime Roofing and Siding of Illinois,
                             Inc., Third-Party Defendants-Appellees).


District & No.               Second District
                             Docket No. 2-13-1065


Filed                        December 2, 2014


Held                         In an action arising from the injuries suffered by plaintiff, an
(Note: This syllabus         employee of a potential roofing subcontractor, when he fell through
constitutes no part of the   defendants’ roof while evaluating it in connection with preparing a bid
opinion of the court but     to repair the roof pursuant to a residential rehabilitation program
has been prepared by the     administered by third-party defendant city, the appellate court lacked
Reporter of Decisions        jurisdiction to consider the third-party defendant contractor’s appeal
for the convenience of       from the dismissal of its complaint seeking contribution from the city
the reader.)                 if the contractor was found liable to plaintiff, since no proper finding
                             was made under Supreme Court Rule 304 (a) that would permit an
                             appeal from the dismissal while other claims were pending and no
                             timely notice of appeal was filed, and rather than requesting a finding
                             under Rule 304(a) as to the dismissal order, which could be sought at
                             any time, the contractor requested the trial court to correct the
                             dismissal order nunc pro tunc by adding the missing finding
                             nunc pro tunc, which would be allowed only in the event of a clerical
                             error, but in the instant case, there was no indication of any clerical
                             errors in the record; therefore, the appellate court lacked jurisdiction.


Decision Under               Appeal from the Circuit Court of Kane County, No. 11-L-668; the
Review                       Hon. F. Keith Brown, Judge, presiding.
     Judgment                Appeal dismissed.



     Counsel on              Timothy J. Young, Leena Soni, and Elizabeth D. Winiarski, all of
     Appeal                  Lewis Brisbois Bisgaard & Smith, LLP, of Chicago, for appellant.

                             James L. DeAno, of DeAno & Scarry, LLC, of Chicago, for appellees.



     Panel                   JUSTICE HUTCHINSON delivered the judgment of the court, with
                             opinion.
                             Justice Birkett concurred in the judgment and opinion.
                             Justice Zenoff specially concurred, with opinion.



                                              OPINION

¶1         On September 16, 2013, the trial court entered an order granting the motion of third-party
       defendant City of Elgin (the city) to dismiss the complaint of third-party plaintiff, DVBC,
       Inc. (DVBC). The order did not contain a finding pursuant to Illinois Supreme Court Rule
       304(a) (eff. Feb. 26, 2010). On October 10, 2013, while other claims remained pending,
       DVBC filed a notice of appeal. On November 21, 2013, the trial court entered an “agreed
       order correcting the court’s order of September 16, 2013, nunc pro tunc.” The agreed order
       provided that the September 16, 2013, order “nunc pro tunc, is a final and appealable order
       and there is no just reason to delay either enforcement or appeal, or both.” DVBC did not file
       an amended notice of appeal. As explained below, we dismiss for lack of jurisdiction.

¶2                                          I. BACKGROUND
¶3         This matter stems from injuries allegedly sustained by Mark Harreld after he fell through
       the roof at Lou Butler’s residence. Butler sought to have repair work performed at his
       residence through a residential rehabilitation program administered by the city. Butler
       contacted DVBC, a contractor, to submit a bid to perform the repair work. After DVBC
       evaluated the property, it contacted a roofing company as a potential subcontractor. Harreld,
       who worked for the roofing subcontractor, visited Butler’s residence to conduct an
       evaluation. During that visit, he fell through Butler’s roof and allegedly suffered injuries.
¶4         On November 29, 2011, Harreld and his wife filed a complaint against Butler, DVBC,
       and Community Contracts, Inc. Harreld alleged that DVBC was negligent for failing to warn
       him that Butler’s roof was in an unsafe condition. DVBC denied liability.
¶5         Thereafter, DVBC filed a third-party complaint for contribution against the city. As
       amended, DVBC’s complaint alleged that, if it is found liable to Harreld, DVBC should be

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       entitled to contribution from the city because the city was negligent in acting as a general
       contractor on the repair project. On April 26, 2013, the city filed a motion to dismiss
       DVBC’s complaint pursuant to section 2-619.1 of the Code of Civil Procedure (the Code)
       (735 ILCS 5/2-619.1 (West 2012)).
¶6         On September 16, 2013, after hearing arguments, the trial court granted the city’s motion
       and dismissed DVBC’s third-party complaint with prejudice. The trial court’s dismissal order
       did not contain a finding pursuant to Rule 304(a). On October 10, 2013, DVBC filed its
       notice of appeal, seeking to appeal the trial court’s dismissal order.
¶7         On November 15, 2013, DVBC filed an “agreed motion to correct the court’s order of
       September 16, 2013, nunc pro tunc.” The motion acknowledged that the dismissal order did
       not contain a Rule 304(a) finding, but argued that nonetheless the dismissal order was final as
       to DVBC and the city and that “[a] review by the [a]ppellate [c]ourt at this time would clarify
       the issues in this matter and promote the most fair outcome for all parties.” The motion
       argued that the function of a nunc pro tunc order is to correct the record of judgment, and
       concluded:
               “[t]o ensure the [dismissal order] conforms to the judgment actually rendered, and
               that it is consistent with what was said at the various court hearings, both DVBC and
               the [city] request that the [dismissal order] be corrected, nunc pro tunc, to include the
               304(a) language that ‘there is no just reason for delaying either enforcement or appeal
               or both.’ ”
       The motion noted that correcting the dismissal order nunc pro tunc to include a Rule 304(a)
       finding “would preserve the current filing dates.”
¶8         On November 21, 2013, the trial court entered an agreed order “correcting” the dismissal
       order nunc pro tunc. DVBC did not file an amended notice of appeal.

¶9                                             II. ANALYSIS
¶ 10       On appeal, DVBC contends that the trial court erred in dismissing its third-party
       complaint. However, we cannot reach the merits, because we lack jurisdiction.
¶ 11       A reviewing court must ascertain its jurisdiction before proceeding in a cause of action,
       and this duty exists regardless of whether either party has raised the issue. Secura Insurance
       Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009). Subject to certain
       exceptions, an appeal may be taken only after the trial court has resolved all claims against
       all parties. State Farm Fire & Casualty Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill. App.
       3d 548, 556 (2009). However, Rule 304(a) provides that, in matters involving multiple
       parties or claims, an appeal may be taken when the trial court has entered a final order to one
       or more parties or claims, but fewer than all, if the trial court makes an express finding that
       there is no just reason to delay enforcement or appeal or both. AT&T v. Lyons & Pinner
       Electric Co., 2014 IL App (2d) 130577, ¶ 19. “Without the Rule 304(a) finding, a final order
       disposing of fewer than all *** claims is not an appealable order and does not become
       appealable until all of the claims have been resolved.” Marsh v. Evangelical Covenant
       Church, 138 Ill. 2d 458, 464 (1990).
¶ 12       In this case, the trial court’s dismissal order did not originally contain a finding pursuant
       to Rule 304(a). Thus, our jurisdiction depends on whether the dismissal order was properly
       corrected nunc pro tunc to include a Rule 304(a) finding.

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¶ 13        “A nunc pro tunc order is an entry now for something previously done, made to make the
       record speak now for what was actually done then.” (Emphasis added.) Kooyenga v. Hertz
       Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055 (1979). Because a nunc pro tunc
       amendment may reflect only what was actually done by the court but was omitted due to
       clerical error, a nunc pro tunc amendment must be based on some note, memorandum, or
       other memorial in the court record. Pagano v. Rand Materials Handling Equipment Co., 249
       Ill. App. 3d 995, 998-99 (1993). A nunc pro tunc order may not be used to cure a
       jurisdictional defect, supply omitted judicial actions, or correct a judicial error under the
       pretense of correcting a clerical error. In re Marriage of Takata, 304 Ill. App. 3d 85, 92
       (1999).
¶ 14        Here, DVBC attempted to “correct” the dismissal order nunc pro tunc to cure a
       jurisdictional defect by supplying an omitted judicial action, i.e., a Rule 304(a) finding. The
       record is devoid of any indication that the trial court had actually made a finding pursuant to
       Rule 304(a) or that the order lacked such a finding due to a clerical error. On the contrary, the
       order made no reference to Rule 304(a) and the record does not contain a transcript of the
       hearing on the motion to dismiss. (The bystander’s report reflects only that the trial court
       heard oral arguments on June 27, 2013, and that it granted the motion in the written order.)
       The record thus indicates that the failure to include a Rule 304(a) finding in the order was not
       a clerical error but instead was an omitted judicial action. Therefore, adding a Rule 304(a)
       finding is outside the power of a nunc pro tunc order. See id. at 93 (holding that correcting a
       judicial error, as opposed to correcting a clerical error, was outside the power of a
       nunc pro tunc order).
¶ 15        We find support for our determination in Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995).
       In Shanklin, the trial court entered an order dismissing the respondents in discovery on April
       19, 1993. Id. at 98. On May 17, 1993, the plaintiff filed a motion to reconsider, which the
       trial court denied, and the plaintiff appealed. Id. at 99. Thereafter, the parties filed an
       “ ‘Emergency Joint Motion to Amend Order Nunc Pro Tunc.’ ” Id. The motion noted that the
       April 19, 1993, order did not contain a finding pursuant to Rule 304(a) but argued that the
       absence was due to “an oversight by both parties.” (Internal quotation marks omitted.) Id. On
       May 26, 1994, the trial court granted the motion. Id.
¶ 16        The reviewing court dismissed the appeal for lack of jurisdiction. The court distinguished
       People ex rel. Willet Motor Coach Co. v. Board of Education, 171 Ill. App. 3d 166 (1988),
       where the appellate court concluded that “ ‘pursuant to Illinois Supreme Court Rule 329 and
       under the facts of [that] case,’ the trial court could amend the order nunc pro tunc to include
       a Rule 304(a) finding pursuant to Rule 329.” (Emphasis in original.) Shanklin, 277 Ill. App.
       3d at 100 (quoting Willet Motor Coach Co., 171 Ill. App. 3d at 172). The court in Shanklin
       noted that, in the case before it, the trial court did not amend its order pursuant to Rule 329.
       Id. at 101. Further, the plaintiff did not seek to amend her notice of appeal or file a second
       notice of appeal. Id.
¶ 17        We find the holding in Shanklin instructive in this case. We note that a party may request
       at any time that the trial court enter a Rule 304(a) finding as to a final order. John G. Phillips
       & Associates v. Brown, 197 Ill. 2d 337, 344 (2001). Here, instead of requesting that the trial
       court enter a Rule 304(a) finding as to its dismissal order, DVBC sought to correct the order
       nunc pro tunc, despite the record being devoid of any indication that the absence of a Rule
       304(a) finding in that order resulted from a clerical error. Thus, as in Shanklin, there was no

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       proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack
       jurisdiction. See Shanklin, 277 Ill. App. 3d at 101.
¶ 18        In closing, we briefly comment on the special concurrence’s analysis on the contours of
       Rule 304(a) in connection with Illinois Supreme Court Rule 303(a)(2) (eff. June 4, 2008).
       We agree with the special concurrence’s hypothetical that, pursuant to Rule 303(a)(2), “if a
       litigant files a notice of appeal from a final judgment as to fewer than all of the parties or
       claims, and the trial court subsequently enters a Rule 304(a) finding as to that judgment, then
       the notice of appeal becomes effective when the finding is entered.” Infra ¶ 28. However, in
       this case, as in Shanklin, the record is devoid of any indication that the parties sought and the
       trial court granted a proper Rule 304(a) finding. Thus, absent a proper Rule 304(a) finding,
       any discussion of how Rule 303(a)(2)’s saving provisions interact with Rule 304(a) is
       premature.

¶ 19                                     III. CONCLUSION
¶ 20      For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

¶ 21      Appeal dismissed.

¶ 22        JUSTICE ZENOFF, specially concurring.
¶ 23        I agree that the parties and the trial court improperly used a nunc pro tunc order to “add”
       a Rule 304(a) finding to the dismissal order. I believe that their error highlights a widespread
       misunderstanding of Illinois Supreme Court Rules 304(a) (eff. Feb. 26, 2010) and 303(a)(2)
       (eff. June 4, 2008). I write separately because I believe that an explanation of the interplay
       between these rules is needed to prevent litigants from repeating the mistake made in this
       case.
¶ 24        The majority relies on Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995), which was decided
       prior to the 2007 amendments to Rule 303(a)(2). Therefore, Shanklin paints a
       less-than-complete picture of how the supreme court rules apply in this case. Under the
       amended version of Rule 303(a)(2), when a party prematurely files a notice of appeal from a
       final judgment that neither resolves all pending claims nor contains a Rule 304(a) finding, all
       is not lost. The party can “save” the notice of appeal, as I explain below. However, as the
       majority correctly concludes, it cannot save the notice of appeal by obtaining an improper
       nunc pro tunc “amendment” of the order being appealed.
¶ 25        In 2007, Rule 303(a)(2) was amended to include a saving provision, which “protects the
       rights of an appellant who has filed a ‘premature’ notice of appeal.” Ill. S. Ct. R. 303,
       Committee Comments (adopted Mar. 16, 2007). The rule’s saving provision applies in two
       scenarios: (1) when a notice of appeal is filed before the last pending postjudgment motion is
       resolved, or (2) when a notice of appeal is filed when other claims remain pending. The
       saving provision provides that a prematurely filed notice of appeal “becomes effective” in the
       first scenario when an order disposing of the last pending postjudgment motion is entered. Ill.
       S. Ct. R. 303(a)(2) (eff. June 4, 2008). It provides that a prematurely filed notice of appeal
       “becomes effective” in the second scenario when a final judgment as to all pending claims is
       entered. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008).


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¶ 26       Application of Rule 303(a)(2)’s saving provision in the second scenario is concerned with
       jurisdiction pursuant to Rule 304(a). Generally, Rule 304(a) provides that this court lacks
       jurisdiction if a party appeals from “a final judgment as to one or more but fewer than all of
       the parties or claims,” unless the trial court has made “an express written finding that there is
       no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff.
       Feb. 26, 2010). However, if a litigant files a notice of appeal from a final judgment that
       neither resolves all pending claims nor contains a Rule 304(a) finding, then Rule 303(a)(2)
       steps in to “save” the notice of appeal by making it effective when a final judgment is entered
       as to all remaining claims. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008).
¶ 27       In In re Marriage of Valkiunas, 389 Ill. App. 3d 965 (2008), this court interpreted the
       saving provision in Rule 303(a)(2). We said that a prematurely filed notice of appeal
       “ ‘becomes’ effective on the date the impediment to our jurisdiction is removed.” Valkiunas,
       389 Ill. App. 3d at 968. We explained that, in second-scenario cases, there are two ways to
       remove the impediment. Valkiunas, 389 Ill. App. 3d at 969. As we just said, one way is for
       the trial court to enter a final judgment as to all remaining claims. Valkiunas, 389 Ill. App. 3d
       at 969. The notice of appeal becomes effective once the final judgment is entered. Valkiunas,
       389 Ill. App. 3d at 969.
¶ 28       The second way to remove the impediment is to obtain a Rule 304(a) finding. Valkiunas,
       389 Ill. App. 3d at 969. In other words, if a litigant files a notice of appeal from a final
       judgment as to fewer than all of the parties or claims, and the trial court subsequently enters a
       Rule 304(a) finding as to that judgment, then the notice of appeal becomes effective when the
       finding is entered. Valkiunas, 389 Ill. App. 3d at 969. This interpretation is consistent with
       the language of Rule 304(a), which provides that “the entry of the required finding shall be
       treated as the date of the entry of final judgment.” Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).
¶ 29       This brings us to the present case. The September 16, 2013, order dismissing DVBC’s
       third-party complaint with prejudice was final as to fewer than all of the parties or claims,
       and it did not contain a Rule 304(a) finding. On October 10, 2013, DVBC filed a premature
       notice of appeal from the order, making this a second-scenario situation under Rule
       303(a)(2).
¶ 30       What DVBC should have done at this point was to file a motion for a Rule 304(a)
       finding. In its motion, it should have explained why a Rule 304(a) finding was warranted in
       light of the factors outlined in Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372 (1992):
                “ ‘(1) the relationship between the adjudicated and unadjudicated claims; (2) the
                possibility that the need for review might or might not be mooted by future
                developments in the [trial] court; (3) the possibility that the reviewing court might be
                obliged to consider the same issue a second time; (4) the presence or absence of a
                claim or counterclaim which could result in set-off against the judgment sought to be
                made final; [and] (5) miscellaneous factors such as delay, economic and solvency
                considerations, shortening the time of trial, frivolity of competing claims, expense,
                and the like.’ ” Geier, 226 Ill. App. 3d at 383 (quoting Allis-Chalmers Corp. v.
                Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975)).
       In ruling on that motion, the trial court would have needed to pay particular attention to the
       mootness factor, because “the possibility of mootness due to the contingent nature of [a]
       third-party claim typically weighs heavily in the exercise of discretion in deciding whether to
       certify the dismissal of a third-party claim for appeal.” Geier, 226 Ill. App. 3d at 386.

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¶ 31       Had DVBC filed a motion for a Rule 304(a) finding in light of the Geier factors, and had
       the trial court granted it, then DVBC’s premature notice of appeal would have become
       effective on the date the trial court made the finding. See Ill. S. Ct. R. 303(a)(2) (eff. June 4,
       2008); Valkiunas, 389 Ill. App. 3d at 969. Instead, DVBC filed an “agreed motion” for the
       entry of an improper nunc pro tunc order, which, for the reasons the majority explains, was
       granted erroneously.
¶ 32       One final matter deserves mention. We presume that DVBC can timely file a new notice
       of appeal once the trial court either enters a final judgment resolving all pending claims or
       enters a proper Rule 304(a) finding. In re Marriage of Knoerr, 377 Ill. App. 3d 1042, 1050
       (2007). However, if during the pendency of this appeal the trial court has resolved all
       pending claims or entered a proper Rule 304(a) finding, and the time for filing a new notice
       of appeal has expired, then DVBC can file a petition for rehearing and to supplement the
       record, thereby establishing the effectiveness of the present notice of appeal. Knoerr, 377 Ill.
       App. 3d at 1050.




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