Sunday, December 7, 2014

A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered

Partner, Heyl, Royster, Voelker & Allen, P.C.

In a decision released December 2, 2014, the Illinois Appellate Court, Second District, held that a nunc pro tunc order that added Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to a previously entered final, but not appealable, dismissal order, was ineffective to confer appellate jurisdiction to review the original order. As a result, the appellate court concluded it lacked jurisdiction to consider the appeal and dismissed the case. 

In Harreld v. Butler, 2014 IL App (2d) 131065, the trial court entered an order on September 16, 2013, granting the motion of the third-party defendant, the City of Elgin, to dismiss the third-party complaint filed by DVBC, Inc. The September 16 order did not contain a finding pursuant to Rule 304(a), despite other claims pending. On October 10, DVBC filed a notice of appeal. On November 21, on DVBC’s motion, the trial court entered an agreed order correcting the September 16 order nunc pro tunc, and specifically found that the September 16 order was a final and appealable order, and that there was no just reason to delay enforcement or appeal, or both. DVBC did not file an amended notice of appeal.

In addressing sua sponte the question of its jurisdiction, the appellate court ultimately concluded that it lacked jurisdiction to reach the merits. The appellate court noted that the trial court’s September 16 dismissal order did not originally contain a finding pursuant to Rule 304(a). It then concluded that “our jurisdiction depends on whether the dismissal order was properly corrected nunc pro tunc to include a Rule 304(a) finding.” Id. ¶ 12.

In reviewing the law respecting nunc pro tunc orders, the appellate court observed, “[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.” Id. ¶ 13 (Emphasis in original) (citing Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055 (1979)). The court noted that, 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.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citing Pagano v. Rand Materials Handling Equipment Co., 249 Ill. App. 3d 995, 998-99 (1993)). Moreover, the court noted that 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.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citing In re Marriage of Takata, 304 Ill. App. 3d 85, 92 (1999)). 

Against this backdrop, the appellate court pointed out that DVBC had attempted to “correct” the September 16 dismissal order by supplying an omitted judicial action – adding Rule 304(a) language. Yet the record, it was noted, was devoid of any indication that the trial court had actually made such a finding or that the original order lacked a Rule 304(a) finding due to a clerical error. “[T]he order made no reference to Rule 304(a) and the record does not contain a transcript of the hearing on the motion to dismiss.” Harreld, 2014 IL App (2d) 131065, ¶ 14. Given these findings, the court concluded that the failure to include the Rule 304(a) finding in the original order was not a clerical error but instead was an omitted judicial action. As a result, “adding a Rule 304(a) finding is outside the power of a nunc pro tunc order.” Id. 

The court found support for its determination in Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995), from the Illinois Appellate Court, First District, which found that, based on similar facts, a nunc pro tunc order was ineffective to confer a jurisdictionally satisfactory Rule 304(a) finding. 

The Harreld court noted that a party may, at any time, request the circuit court to enter a Rule 304(a) finding as to a final order. Harreld, 2014 IL App (2d) 131065, ¶¶ 16-17. According to the court, “[h]ere, 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 proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack jurisdiction.” Id. ¶ 17.

Justice Zenoff authored a special concurrence, agreeing that the parties and trial court improperly used a nunc pro tunc order to “add” a Rule 304(a) finding to the original dismissal order. Id. ¶ 23. The special concurrence first questioned the reliance on the Shanklin case, since it had been decided prior to the 2007 amendments to Rule 303(a)(2), which provide a safety valve for prematurely filed notices of appeal. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008). Justice Zenoff observed that Rule 303(a)(2)’s saving provision applied in two scenarios: (1) when a notice of appeal is filed before the last pending post-judgment motion is resolved, or (2) when a notice of appeal is filed when other claims remain pending. Id. ¶ 25. The saving provision 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. The second scenario, the special concurrence noted, is concerned with jurisdiction pursuant to Rule 304(a), which generally provides that a court lacks jurisdiction where 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). 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.” Harreld, 2014 IL App (2d) 131065, ¶ 26.

Justice Zenoff said that, “[w]hat DVBC should have done *** was to file a motion for a Rule 304(a) finding,” and in its motion explain why a Rule 304(a) finding was warranted. Id. ¶ 30. “Had DVBC filed a motion for a Rule 304(a) finding ***, 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.” Id. ¶ 31.

Although seemingly placing form over substance, the Harreld decision suggests that in future scenarios, the better course of action is to simply move in the trial court for entry of a Rule 304(a) order, and then either amend the original notice of appeal, or file a new notice of appeal from the order containing the Rule 304(a) language. It is also at least open for thought as to whether an amended notice of appeal would suffice. The court mentions that DVBC failed to do so and then again makes note of this omission when discussing the Shanklin decision. However, the court’s ultimate ruling seems to foreclose this option.

In the Harreld case, it seems the court may have lost sight of the fact that there was, indeed, a Rule 304(a) finding made, regardless of whether it was in a fresh order or part of the original order via the nunc pro tunc order. This author believes that the details of how it came about should be irrelevant. Had the attempt to affect jurisdiction truly affected a party’s right, the given interpretation may well have been warranted. But DVBC will likely simply move to have a new Rule 304(a) finding made, and then file a new notice of appeal, after which the case will return to the appellate court on the merits. Indeed, the special concurrence even notes this likelihood, stating, “[w]e 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.” Id. ¶ 32. Moreover, “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.” Id.

Recommended Citation: Brad Elward, A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language  To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered, (December 7, 2014), The Brief

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