                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                    Besic v. Lattof Chevrolet, Inc., 2012 IL App (1st) 103185




Appellate Court            MUJO BESIC, Plaintiff-Appellant, v. LATTOF CHEVROLET,
Caption                    INCORPORATED, and GENERAL MOTORS CORPORATION,
                           Defendants-Appellees.



District & No.             First District, Fifth Division
                           Docket No. 1-10-3185


Rule 23 Order filed        November 4, 2011
Rule 23 Order
withdrawn                  March 13, 2012
Opinion filed              March 16, 2012


Held                       In a small-claims action where plaintiff filed a posttrial motion
(Note: This syllabus       challenging the entry of judgment for defendants without first seeking
constitutes no part of     leave of court to file that motion as required by Supreme Court Rule
the opinion of the court   287(b) and the trial court ruled that it lacked jurisdiction because plaintiff
but has been prepared      did not obtain leave to file the motion, the trial court erred in finding a
by the Reporter of         jurisdictional bar to the motion and the cause was remanded to allow the
Decisions for the          trial court to exercise its discretion in ruling on whether to allow
convenience of the         plaintiff’s motion to be filed.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-M1-153320; the
Review                     Hon. Thomas More Donnelly, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                  Dmitry N. Feofanov, of ChicagoLemonLaw.com PC, of Chicago, for
Appeal                      appellant.

                            Rebecca J. Hanson, of Kopka, Pinkus, Dolin & Eads, LLC, of Chicago,
                            for appellees.


Panel                       JUSTICE HOWSE delivered the judgment of the court, with opinion.
                            Presiding Justice Epstein and Justice McBride concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Plaintiff Mujo Besic brought this small claims action against defendants Lattof
        Chevrolet, Incorporated, and General Motors Corporation. A jury found for defendants and
        on May 5, 2010, the trial court entered judgment for defendants on that verdict. Plaintiff filed
        a posttrial motion challenging the judgment on June 1, 2010, but did not first seek leave of
        court to file that motion, as is required by Illinois Supreme Court Rule 287(b) (eff. Aug. 1,
        1992). Defendants objected to the posttrial motion as a violation of Rule 287(b) and on
        October 7, 2010, the trial court subsequently ruled that it lacked jurisdiction to hear that
        motion because plaintiff had failed to follow the rule by first seeking leave to file the motion.
        Plaintiff brought this appeal.
¶2          We review jurisdictional issues de novo. In re A.H., 207 Ill. 2d 590, 593 (2003). In Ganci
        v. Blauvelt, 294 Ill. App. 3d 508 (1998), a party filed an untimely third-party complaint
        without first obtaining leave of court, as was required by statute. 735 ILCS 5/2-406(b) (West
        1996). For the first time on appeal, the third-party defendant argued that the violation of the
        statute deprived the circuit court of jurisdiction over that complaint and rendered it void. This
        court held:
                 “Neither this court nor the Supreme Court of Illinois has ever held that obtaining
            leave of court to bring an additional party is a necessary requirement for the circuit court
            to have jurisdiction over the proceeding against that additional party. No doubt many
            reasons support the statutory requirement to obtain leave. However, here, any party
            prejudiced by the joinder, including the party joined, could have objected in the trial
            court but did not do so. Placing jurisdictional significance to the leave requirement here
            would merely result in a technical windfall to the third-party defendant who did not
            object to the lack of leave of court until appeal. Moreover, we conclude that treating
            obtaining of leave as an element of jurisdiction is contrary to the most recent theories of
            circuit court jurisdiction.” Ganci, 294 Ill. App. 3d at 516.
        In this case, defendants did object to the plaintiff’s posttrial motion, but instead of exercising

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     its discretion to rule on the motion, the trial court found that it lacked jurisdiction to even
     entertain the motion. Because the court treated the posttrial motion as a nullity, plaintiff’s
     subsequent notice of appeal, filed on October 22, 2010, was not timely and defendants argue
     that we must dismiss this appeal for lack of jurisdiction.
¶3        Similarly to Ganci, we find that the obtaining leave requirement of Supreme Court Rule
     287(b) does not rise to a jurisdictional requirement. The Committee Comments note that the
     purpose of the rule is to “simplify procedures and reduce the cost of litigation.” Ill. S. Ct. R.
     287, Committee Comments. Thus in Bolin v. Sosamon, 181 Ill. App. 3d 442, 445 (1989), also
     a small-claims case, the court found that the filing of a petition for leave to file a posttrial
     motion, when accompanied by that motion, sufficed to toll the 30-day period for filing a
     notice of appeal, even though the petition was not granted within the 30-day period after final
     judgment had been entered. Implicit in that decision is a finding that the requirement that
     leave of court first be obtained was not a jurisdictional requirement. See Cedzidlo v. Marriott
     International, Inc., 404 Ill. App. 3d 578, 581-83 (2010) (failure to obtain leave of court to
     file third-party complaint was not a jurisdictional defect such as would render the complaint
     a nullity).
¶4        Because we find that the trial court did have jurisdiction to rule on plaintiff’s posttrial
     motion, we find that the court erred when it failed to exercise its discretion and instead found
     a jurisdictional bar to the motion. Accordingly, we remand so that the trial court may
     exercise its discretion in ruling on whether to allow plaintiff’s posttrial motion to be filed.

¶5       Reversed and remanded with directions.




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