                                  2013 IL App (2d) 130579
                                       No. 02-13-0579
                                Opinion filed August 19, 2013
                     Modified upon denial of rehearing November 18, 2013


                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                                      SECOND DISTRICT


JUAN ZAMORA,                                     )   Appeal from the Circuit Court
                                                 )   of Du Page County.
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   No. 09-L-987
                                                 )
RICARDO MONTIEL, NEWSBOY                         )
DELIVERY SYSTEMS, INC., and                      )
UNIQUE DISTRIBUTION SERVICES,                    )
INC.,                                            )
                                                 )
       Defendants-Appellees                      )   Honorable
                                                 )   Dorothy French Mallen,
(Cherie Payne and Paul Payne, Defendants).       )   Judge, Presiding.


       JUSTICE HUDSON delivered the judgment of the court, with opinion.
       Justices Hutchinson and Schostok concurred in the judgment and opinion

                                           OPINION

¶1                                    I. INTRODUCTION

¶2     Defendants, Ricardo Montiel, Newsboy Delivery Systems, Inc., and Unique Distribution

Services, Inc., move to dismiss this appeal, which was filed by plaintiff, Juan Zamora. Defendants

contend that we lack jurisdiction. For the reasons that follow, we agree with defendants, and

accordingly we grant their motion and dismiss this appeal.
2013 IL App (2d) 130579


¶3     On August 31, 2009, plaintiff filed a complaint sounding in negligence against defendants

and also against Cherie and Paul Payne (the Payne defendants). The following procedural history

of the case is relevant to determining whether we have jurisdiction over this appeal:

               (1) March 24, 2010: the trial court dismissed plaintiff’s complaint as it pertained to

       defendants, finding that it was barred by the exclusivity provisions of the Illinois Workers’

       Compensation Act (820 ILCS 305/5(a) (West 2008)), and the court included an Illinois

       Supreme Court Rule 304(a) (eff. Jan. 1, 2006) finding in this order;

               (2) April 23, 2010: plaintiff filed a motion to reconsider the dismissal;

               (3) June 29, 2010: the trial court granted the Payne defendants leave to file a third-

       party complaint seeking contribution against defendants;

               (4) July 7, 2010: the trial court denied plaintiff’s motion to reconsider:

               (5) August 25, 2010: the Payne defendants filed their third-party claim;

               (6) July 11, 2012: the trial court dismissed the Payne defendants’ contribution claim;

       also on this date, plaintiff requested that the trial court make a new Rule 304(a) finding with

       respect to the March 24, 2010, dismissal order and the trial court made such a finding;

               (7) July 24, 2012: plaintiff filed a notice of appeal regarding the March 24, 2010,

       dismissal order and the subsequent denial of his motion to reconsider;

               (8) December 12, 2012: this court dismissed plaintiff’s initial appeal for lack of

       jurisdiction (Payne v. Zamora, 2012 IL App (2d) 120804-U);

               (9) December 28, 2012: plaintiff moved in the trial court for a “renewal” of the March

       24, 2010, Rule 304(a) finding;

               (10) March 20, 2013: the trial court denied plaintiff’s motion to renew the March



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        2010 Rule 304(a) finding;

                (11) May 14, 2013: the trial court dismissed all remaining causes of action directed

        against the Payne defendants;

                (12) June 5, 2013: plaintiff filed the notice of appeal initiating the current appeal

        seeking reversal of the March 24, 2010, dismissal and the March 20, 2013, denial of his

        motion to renew the March 2010 Rule 304(a) finding.

Defendants filed a motion to dismiss this appeal for lack of jurisdiction.

¶4                                         II. ANALYSIS

¶5      Defendants assert that plaintiff had by August 6, 2010, to appeal the March 24, 2010,

dismissal—which contained a Rule 304(a) finding—of his action against defendants (i.e., 30 days

after the trial court denied his motion to reconsider that dismissal). Plaintiff counters that, when, on

June 29, 2010, the trial court granted the Payne defendants leave to file their third-party complaint,

the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of

plaintiff’s claims against defendants, was rendered ineffective. Plaintiff contends that a new Rule

304(a) finding was necessary to make the March 24, 2010, dismissal order appealable after the

addition of the third-party claim.

¶6      Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) allows for the appeal of a final

judgment in a case involving multiple claims or parties where the judgment concerns “one or more

but fewer than all of the parties or claims.” To make such a judgment appealable, the trial court must

make a finding that “there is no just reason for delaying either enforcement or appeal or both.” Ill.

S. Ct. R. 304(a) (eff. Jan. 1, 2006). The rule exists to discourage piecemeal appeals in the absence

of a good reason to proceed in such a fashion and also to remove any uncertainty about the proper



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2013 IL App (2d) 130579


course when a judgment is entered regarding fewer than all matters in controversy. Mares v.

Metzler, 87 Ill. App. 3d 881, 884 (1980). Thus, before an appeal may be taken from a judgment that

leaves other matters in controversy, the trial court must consider whether an immediate appeal is

appropriate and make the appropriate finding. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d

7, 14 (1999). Generally, a party must file a notice of appeal within 30 days of the judgment sought

to be appealed, and, if a motion directed against that judgment is filed, the time to appeal is tolled

until 30 days after that motion is resolved. Greer v. Yellow Cab Co., 221 Ill. App. 3d 908, 913

(1991). Once a court has made a Rule 304(a) finding, it is not necessary for the court to make

another such finding when it denies a motion to reconsider. McCorry v. Gooneratne, 332 Ill. App.

3d 935, 941 (2002). This is because the denial of a motion to reconsider is not a judgment and is not

appealable in itself. Id.

¶7      However, in certain circumstances, a new Rule 304(a) finding might be required. In Peterson

Bros. Plastics, Inc. v. Ullo, 57 Ill. App. 3d 625 (1978), the First District confronted an appeal bearing

a number of similarities to the instant case and concluded that it lacked jurisdiction. In that case, the

trial court entered a judgment on March 2, 1976, in favor of the plaintiff against the defendant and

entered a default judgment in favor of the defendant against a third-party defendant. The third-party

defendant moved to vacate the default judgment on March 29, 1976. The default judgment was

vacated on April 5, 1976. On April 28, 1976, the defendant moved to vacate the judgment in favor

of the plaintiff and to set aside the order vacating the default judgment against the third-party

defendant. On July 12, 1976, the trial court reinstated the default judgment against the third-party

defendant (this order also stated that the defendant’s motion to vacate the judgment in favor of the

plaintiff was moot). On August 2, 1976, the third-party defendant moved to vacate the July 12 order,



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2013 IL App (2d) 130579


asserting that the trial court lacked jurisdiction to vacate the April 5 order. Also on August 2, the

trial court vacated all orders and judgments against the defendant and the third-party defendant. On

August 24, 1976, the plaintiff moved to vacate the August 2 order. The plaintiff’s motion was

denied on September 2, 1976, and the plaintiff appealed.

¶8      The First District began by noting that an order vacating a judgment is generally not

appealable, as it leaves matters pending and therefore is not a final order. Id. at 628. Thus, it

concluded that the plaintiff normally could not appeal such an order, but it stated that the plaintiff

could prevail if the August 2 order was void, as a void order can be attacked at any time. Id. at 629.1

It then observed that the March 2 order had been final and appealable; however, when the third-party

defendant filed its motion to vacate the default judgment, the March 2 order was no longer

appealable until this motion was resolved and the trial court therefore retained jurisdiction over the

entire case. Id. Accordingly, the trial court had jurisdiction on April 5 to vacate the default

judgment. Id. Further, when it vacated the default judgment, it left the claim that had been the

subject of that judgment pending between the defendant and the third-party defendant. Id. Because

this claim remained pending, in accordance with Illinois Supreme Court Rule 304(a)(eff. Jan. 1,

1970) (“In the absence of such a finding, any judgment that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject

to revision at any time before the entry of a judgment adjudicating all the claims, rights, and

liabilities of all the parties.”), the trial court retained jurisdiction over the March 2 judgment in favor



        1
            This proposition is arguably at odds with the supreme court’s later holding that “[i]f a court

lacks jurisdiction, it cannot confer any relief, even from prior judgments that are void.” People v.

Flowers, 208 Ill. 2d 291, 308 (2003)).

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2013 IL App (2d) 130579


of the plaintiff. Peterson Bros., 57 Ill. App. 3d at 628-29. The First District explained that, where

no Rule 304(a) finding is made, “no appeal is permissible, and the circuit court retains jurisdiction

over the entire cause, including the power to revise any or all judgments at any time prior to entry

of a judgment adjudicating all claims.” Id. at 630.

¶9      The First District acknowledged that the March 2 judgments did contain a finding that there

was no just reason to delay enforcement or appeal (which, in that case, was superfluous, as the

March 2 judgments were appealable without such a finding). Id. Nevertheless, despite this finding,

the court held that the judgment in favor of the plaintiff was no longer appealable when the third-

party defendant successfully moved to vacate the default judgment against it (which revived and left

pending the third-party claim). Id. This was because, before the trial court vacated the default

judgment, it could not assess whether the plaintiff’s claim was suitable for appeal independent of the

third-party claim. Id. The third-party claim remained pending until July 12, when the trial court

reinstated the default judgment, which resulted in a final judgment as all claims had then been

resolved. Id. at 630-31. The third-party defendant’s August 2 motion came within 30 days of the

July 12 judgment, so the trial court still had jurisdiction at that time. Id. at 631. As the trial court

had jurisdiction when it entered the August 2 order, the order was not void. Id. The appellate court

concluded that it did not have jurisdiction over the trial court’s August 2 order vacating the earlier

judgments, as the order was not final. Id.

¶ 10    For our purposes, the important lesson of Peterson Bros. concerns the Rule 304(a) finding

made in conjunction with the initial judgments in that case entered on March 2, 1976. The First

District held, in essence, that this finding lost its vitality when the third-party claim was resurrected.

Id. at 630. It explained, “Only after [the default judgment] was vacated on April 5 could the circuit



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court determine whether justice required that [the plaintiff’s] judgment be appealable without a

resolution of [the defendant’s] claim or whether both claims should be disposed of before the first

judgment could be appealable.” Id. In this case, plaintiff argues that the Payne defendants’ third-

party claim against defendants had a similar effect.

¶ 11   We disagree. Though we do not necessarily quarrel with the rule announced in Peterson

Bros., we find that case distinguishable. Unlike in Peterson Bros., in this case, no new claim was

added until after the judgment in favor of defendants became final and appealable and the period for

appeal had run. It is true that the Payne defendants obtained leave to file their contribution claim

prior to the resolution of plaintiff’s motion to reconsider. However, this claim was not actually filed

until more than 30 days after the trial court resolved plaintiff’s motion to reconsider.

¶ 12   We decline to equate obtaining leave to file a claim with actually filing that claim under the

circumstances presented in this case. In Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the

Fourth District held as follows:

       “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.”

At issue in Ganci was leave to implead a third party (id.), which is similar to the situation we face

here. Like the Ganci court, we are reluctant to attach jurisdictional significance to the fact that the

Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion

to reconsider.




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2013 IL App (2d) 130579


¶ 13    The result would be a cumbersome rule of procedure indeed. If we were to treat obtaining

leave to file a claim in the same manner as filing the claim itself, what would become of a plaintiff’s

ability to appeal pursuant to Rule 304(a) in the interim period between obtaining leave and filing the

claim? Would the trial court have to make a new Rule 304(a) finding based upon whatever

information was available to it in the motion for leave to file the claim? We note that in this case

the motion simply stated, “Defendants, Cherie C. Payne and Paul B. Payne, by and through the

undersigned counsel, move this Honorable Court for leave to file Third Party Complaint for

Contribution against RICARDO MONTIEL, NEWSBOY DELIVERY SYSTEMS, INC. and

UNIQUE DISTRIBUTION SERVICES, INC.” With this limited information, it would have been

difficult for the trial court to “determine whether justice required that [the] judgment be appealable

without a resolution of [the Payne defendants’] claim or whether both claims should be disposed of

before the first judgment could be appealable.” Peterson Bros., 57 Ill. App. 3d at 630. Moreover,

if the trial court did make such a determination, would it have to revisit that decision when the claim

was actually filed? Further, if the claim were to be amended in the future, would the trial court have

to make yet another Rule 304(a) finding based on whatever new information was contained in the

amendment? Conversely, would the judgment against plaintiff be unappealable and would plaintiff

have to wait an indeterminate amount of time until the third-party claim was filed? We believe 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. We note that the plain language of Rule 304(a) contemplates that

additional claims will actually be pending: “an appeal may be taken from a final judgment as to one

or more but fewer than all of the parties or claims.” (Emphasis added.) Ill. S. Ct. R. 304(a) (eff. Jan.

1, 2006).



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2013 IL App (2d) 130579


¶ 14   We acknowledge that the Third District has held that the filing of a “motion for leave to file

a petition for sanctions and attached petition equated to a pending ‘Rule 137 claim.’ ”

Commonwealth Edison Co. v. Munizzo, 2013 IL App (3d) 120153, ¶ 28. That case is distinguishable

in that the proposed petition for sanctions was attached to the motion for leave to file the petition.

Id. ¶ 22. Thus, the trial court could easily assess the relationship between the judgment sought to

be appealed and the petition for sanctions. We also acknowledge 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 appeal

may be filed. See Bolin v. Sosamon, 181 Ill. App. 3d 442, 445 (1989). However, such cases can be

distinguished on a similar basis. Id. (“[I]t appears the supreme court intended that the filing of the

petition for leave to file a post-trial motion accompanied by the post-trial motion tolls the 30-day

period for filing a notice of appeal.” (Emphasis added.)). Moreover, both of those situations involve

more limited or well-defined subject matters than that which might arise with a claim generally,

simplifying the trial court’s role in assessing their relationship to a judgment sought to be appealed

pursuant to Rule 304(a).

¶ 15    Finally, we wish to provide some context for our holding. Rule 304(a) serves largely to

further the goal of judicial efficiency. One of its primary purposes is, in the absence of a compelling

reason, to discourage piecemeal appeals. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008).

We realize that, on some rare occasions, allowing a party to proceed with an appeal after another

party seeks leave to add a claim might result in a piecemeal appeal being taken. However, it is

equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a)

finding with every change in circumstances. Moreover, such a procedure would place trial courts

in the difficult position of having to make such assessments on the limited knowledge likely to be



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available when a party seeks leave to add a claim. In short, any reduction in judicial efficiency will

be minimal and likely offset by the enhancement of efficiency in the trial court.

¶ 16   In light of the foregoing, we hold that plaintiff’s failure to file a notice of appeal within 30

days of the trial court’s resolution of his motion to reconsider the March 24, 2010, dismissal of his

claims against defendants deprives this court of jurisdiction over this appeal. Accordingly, we

dismiss this appeal.

¶ 17   Appeal dismissed.

¶ 18           SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

¶ 19   Plaintiff has filed a petition for rehearing in this case.                In it, he raises three

arguments. First, he contends that this court never ruled on the salient issue in this case, namely,

“whether the motion for leave [to file a third-party contribution claim], and a grant of leave to seek

contribution is a ‘claim’ as defined under [Rule 304(a)].” Second, he claims that we announced a

new, “heretofore unprecedented,” policy-based balancing test. Third, plaintiff points out an

inaccuracy in our recitation of the procedural history of this case.

¶ 20   Turning to plaintiff’s first contention, that we never addressed whether obtaining leave to file

a claim is the same thing as filing a claim for Rule 304(a) purposes, we call plaintiff’s attention to

the following passage from our initial opinion in this appeal: “We decline to equate obtaining leave

to file a claim with actually filing that claim under the circumstances presented in this case.” Supra

¶ 12. Our ruling on this point could hardly be clearer. In fact, plaintiff quotes this language in his

petition for rehearing. As such, plaintiff’s contention is inaccurate at best.




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2013 IL App (2d) 130579


¶ 21    Plaintiff’s second contention, that we announced a new balancing test, is similarly ill-

founded. We discussed some of the policy implications of our decision, but our discussion is

nothing more than that. We expressly prefaced this discussion with, “Finally, we wish to provide

some context for our holding.” Supra ¶ 15. Plaintiff quotes extensively from our discussion, but

he does not acknowledge the prefatory language and instead characterizes our discussion as our

adoption of a new test. To be clear, there is no new test. We plainly stated the bright-line nature of

our holding: “merely obtaining leave to file a claim does not trigger the need for a new Rule 304(a)

finding.” Supra ¶ 13. Although policy considerations underlie any rule, there is no place for a trial

court to engage in a policy-based analysis in applying this straightforward rule. Again, plaintiff’s

argument selectively ignores the plain language of our earlier disposition.

¶ 22    Finally, plaintiff calls our attention to an error in our recitation of the procedural history of

this case. We stated:

        “July 11, 2012: the trial court dismissed the Payne defendants’ contribution claim; also on

        this date, plaintiff requested that the trial court make a Rule 304(a) finding with respect to

        the March 24, 2010, dismissal order and the trial court made such a finding.” (Emphasis in

        original.) Supra ¶ 3.

However, in an earlier summary order dismissing another appeal by plaintiff, we found that this Rule

304(a) finding did not apply to the March 24, 2010, order. See Zamora v. Payne, No. 2-12-0804

(2012) (unpublished summary order under Supreme Court Rule 23). Without explanation as to how

it could be the case, plaintiff states, “If this error contributed to this court’s decision to dismiss this

appeal, a rehearing is appropriate.” Plaintiff knows full well that this error is not material. In that

same earlier summary order, we explained, “If the [March 24, 2010,] Rule 304(a) finding in that



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2013 IL App (2d) 130579


order was valid, the notice of appeal is (as previously noted) too late.” Id. at 4. In our opinion here,

we found the March 24, 2010, Rule 304(a) finding valid. As the correction of this error could have

no bearing on the outcome of this appeal, we fail to see how plaintiff could have believed that this

was an appropriate basis to request a rehearing.

¶ 23    As plaintiff’s petition for rehearing is based on immaterial facts and distortions of our earlier

opinion in this matter, we find it wholly unpersuasive. Plaintiff’s request for rehearing is denied.




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