Witvoet v. Fireman's Fund Insurance , 317 Ill. App. 3d 915 ( 2000 )

JUSTICE BRESLIN,

specially concurring:

Because I believe that we should dismiss Witvoet’s appeal on the basis that this court lacks jurisdiction, I concur in the judgment only.

In Deckard v. Joiner, 44 Ill. 2d 412, 255 N.E.2d 900 (1970), the Illinois Supreme Court held that a second posttrial motion by the same party attacking the same judgment does not extend the time for filing an appeal. Specifically, the court stated:

“To hold to the contrary would not only violate the spirit of our rule, which contemplates the prompt and orderly prosecution of an appeal, but would render it a nullity. As occurred in this case, any party could defeat the rule and delay appeal merely by filing successive and repetitious motions to vacate. *** [The posttrial motions] were merely attempts to have the trial court review its own orders after thirty days, which it cannot do. Such motions or petitions may not be utilized to toll the time for appeal. [Citation.]” Deckard, 44 Ill. 2d at 418-19.

The majority interprets Fultz v. Haugan, 49 Ill. 2d 131, 305 N.E.2d 873 (1971), as providing authority for it to determine the propriety of the trial court’s rulings upon motions made by the parties after a final and appealable order was entered on May 5, 1999. Fultz was decided one year after Deckard. Dissimilar to the majority’s interpretation of Fultz, the supreme court has extrapolated from Fultz the rule established in Deckard, that a motion for leave to amend a complaint, after dismissal with prejudice, does not extend the time for appeal or the time for filing other motions. See Andersen v. Resource Economic Corp., 133 Ill. 2d 342, 549 N.E.2d 1262 (1990).

Other appellate courts have disregarded Fultz in favor of a finding that Deckard properly sets forth the law in this state. See In re Marriage of Viehman, 91 Ill. App. 3d 315, 414 N.E.2d 853 (1980); Drafz v. Parke, Davis & Co., 80 Ill. App. 3d 540, 400 N.E.2d 515 (1980); Handing v. Power Ford, Inc., 67 Ill. App. 3d 466, 385 N.E.2d 95 (1978).

The factual scenario in Andersen, a case more recently decided by the supreme court than Fultz, is quite similar to that in the case at bar. The plaintiff in Andersen filed a complaint which was ultimately dismissed for failure to state a cause of action and plaintiff was given leave to file an amended complaint. Andersen, 133 Ill. 2d at 343, 549 N.E.2d at 1263. Plaintiffs first amended complaint was also dismissed for failure to state a cause of action and plaintiff was again given leave to amend. Eventually, plaintiff’s second amended complaint was dismissed for failure to state a cause of action. Plaintiff filed an appeal, which he later moved to dismiss, and simultaneously filed a motion for leave to file a third amended complaint, claiming that such motion was in the nature of a posttrial motion. Andersen, 133 Ill. 2d at 344, 549 N.E.2d at 1263.

The issue before the appellate court was whether plaintiffs motion to file a third amended complaint could be considered a valid posttrial motion extending the time in which plaintiff had to file a notice of appeal. The appellate court held that it was, but the supreme court reversed, holding that a motion for leave to amend a complaint, after dismissal with prejudice, does not extend the time for appeal or the time for filing other motions because such a motion is not “directed against the judgment” within the meaning of Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1)). Andersen, 133 Ill. 3d at 347, 549 N.E.2d at 1264.

Here, the trial court’s May 5, 1999, order denying Witvoet’s motion for leave to file a second amended complaint was a final and appealable order though the order was silent as to whether it was entered with or without prejudice. See Schuster Equipment Co. v. Design Electric Services, Inc., 197 Ill. App. 3d 566, 554 N.E.2d 1097 (1990) (If a complaint is dismissed because it is legally insufficient to state a cause of action, as opposed to being technically deficient, the order is final and appealable. Moreover, if no right to amend is stated in the order, the dismissal order is final and appealable even though it fails to include the words “with prejudice”). Rather than timely file an appeal, Witvoet filed a motion for leave to file a third amended complaint. Witvoet’s motion for leave to amend was not a valid postjudgment motion cognizable by the trial court or capable of extending the time for filing a notice of appeal under Rule 303(a) (107 Ill. 2d R. 303(a)(1)). See Andersen, 133 Ill. 2d at 346, 549 N.E.2d at 1264.

The majority believes that because Witvoet appeals the trial court’s orders entered on June 28, 1999, September 3, 1999, and September 30, 1999, rather than the court’s order entered May 5, 1999, it has jurisdiction over this appeal. What the majority fails to consider is the long-standing rule in Illinois that a trial court loses jurisdiction over an action when 30 days have passed following the entry of a final and appealable order concerning that action and when, during that time, neither party has taken any legally proper action to delay the 30-day period. See Bowers v. Village of Palatine, 204 Ill. App. 3d 135, 561 N.E.2d 1154 (1990).

As noted above, Witvoet’s motion for leave to file a third amended complaint on June 4, 1999, cannot be considered a proper legal action which would delay the 30-day period in which he had to appeal the trial court’s May 5, 1999, order. Accordingly, the trial court was without jurisdiction to rule on the merits of that motion and any subsequent motions filed by Witvoet. This court is without jurisdiction because Witvoet failed to file a timely appeal after the trial court rendered a final and appealable order on May 5, 1999.

Andersen properly sets forth the law in this state as determined by the supreme court in Deckard. Because Andersen was written 19 years after Fultz by the same court, I suggest that the majority errs in interpreting Fultz as granting it authority to decide this case on the merits. This court was without jurisdiction to hear Witvoet’s appeal and, accordingly, I would affirm on that basis.