Tuesday, February 25, 2014

The Lack of a Written Order does not Affect Finality

By Rosa M. Tumialán
Member, Dykema

The plaintiff in Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901, filed suit against BNSF under the Federal Employer’s Liability Act. Id. ¶ 1. BNSF in turn filed a third-party complaint for contribution and contractual indemnity. Id. The case proceeded to a jury trial, at the conclusion of which the jury awarded plaintiff damages in excess of $2.6 million. Id. The jury also returned a verdict in favor of the third-party defendant. Id. BNSF appealed, but the Illinois Appellate Court did not reach the merits. Instead, the reviewing court concluded that it lacked jurisdiction because BNSF failed to file its notice of appeal within 30 days of the oral ruling denying BNSF’s posttrial motions. As illustrated below, this case serves as an important reminder that, unless the trial court expressly requires a written order or a local circuit court rule requires a prevailing party to submit a draft order, the judgment is entered "at the time it is entered of record" (Id. ¶ 25), and the time period to file a notice of appeal will begin.

Before addressing the jurisdictional question, the reviewing court noted that another reviewing court panel denied an earlier motion to dismiss for lack of jurisdiction shortly after the appeal was filed. Id. ¶ 4. BNSF claimed that this ruling should prevent revisiting the jurisdictional issue. The court disagreed, stating that it has a continuing obligation to verify its jurisdiction. Id. ¶ 5. The court observed that the posttrial procedural history was complex and required a more in-depth consideration of the record than was feasible before the record on appeal was filed with the court. Id.

The reviewing court then turned to the jurisdictional question. BNSF filed a timely posttrial motion following the jury verdict. Id. ¶ 7. The motion raised 46 issues in total, 45 of which would have resulted in a new trial or modified judgment. Id. The last issue, however, dealt with a setoff which, if allowed, would have partially satisfied the judgment. Id. ¶ 8.

On April 18, 2012, after conducting a hearing, the trial court orally denied the posttrial motion as to all issues except the setoff claim, which it took under advisement. Id. ¶ 9. No written order reflecting denial of the posttrial motion was entered. Id. On May 31, 2012, more than 30 days later, BNSF filed a motion for leave to cite supplemental authority relative to one of the 45 issues that was rejected in the oral ruling issued on April 18, 2012. Id. ¶ 10. Counsel advised the trial court at the hearing on that motion that he wanted to submit the new authority before the trial court entered a final and appealable order. Id. ¶ 11. The trial court reminded BNSF counsel it denied the posttrial motion on April 18, 2012 and that the only remaining issue was the setoff question, which was still under advisement. Id. ¶ 11.

Thereafter, the trial court conducted a hearing on June 6, 2012, where it distinguished BNSF’s new authority, reiterated its denial of that motion, and denied BNSF’s request for a setoff. Id. ¶ 14. The parties could not agree on the language of the written order. Id. ¶¶ 16-17. BNSF wanted the order to state that it was final and appealable regarding the jury verdict. Id. ¶ 18. The trial court disagreed and it omitted any reference to the jury verdict. Id. BNSF filed its notice of appeal within 30 days of the entry of the June 6 order. Id. ¶ 19.

The reviewing court found that the notice of appeal was untimely because BNSF did not file that notice within 30 days of the trial court's April 18, 2012, denial of the posttrial motion, and the unresolved setoff question did not otherwise toll the time to appeal. Id. ¶ 20.

The reviewing court noted that, because a setoff only operates to satisfy a judgment, it does not qualify as a posttrial motion under section 2-1202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1202 (West 2012)), which is limited to motions that will impact the judgment as opposed to satisfying it. Williams, 2013 IL App (1st) 121901, ¶¶ 21-22. The time to appeal therefore began to run on April 18, when the trial court orally denied the part of BNSF’s posttrial motion, which, if granted, would have resulted in a new trial or modified judgment. Id. ¶ 22. The court also rejected BNSF’s contention that, because the trial court considered the supplemental authority that related to one of the issues in the motion that was directed at the judgment at the June 6 hearing, its section 2-1202 motion was not fully resolved before entry of the written order. Id. ¶ 24. The court observed that BNSF’s motion to cite the supplemental authority was filed more than 30 days after denial of the posttrial motion, meaning that the trial court no longer had jurisdiction over the issues that were raised in that motion. Id. ¶ 24.

Finally, the reviewing court dispensed with the notion that the lack of a written order denying the posttrial motion on April 18 did not render that ruling any less final because Supreme Court Rule 272 (eff. Nov. 1, 1990) expressly provides that a judgment is final when a written order is entered only if the trial court expressly requires a written order. Williams, 2013 IL App (1st) 121901, ¶ 25. But if the trial court did not require a written order, the judgment is final when it is entered. Id.

The record established that the posttrial motion was denied on April 18, 2012, and that only the setoff question was taken under advisement. There was also no reference to a written order, and the trial court did not instruct the parties to prepare one. As such, the judgment became final on the date the posttrial motion was denied, and BNSF’s notice of appeal was due within 30 days of the April 18, 2012, ruling. Id. ¶¶ 26-28.

Recommended Citation: Rosa M. Tumialán, The Lack of a Written Order Does Not Affect FinalityThe Brief, (February 25, 2014), http://applawyers-thebrief.blogspot.com/2014/02/the-lack-of-written-order-does-not.html.

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