Find Legal Information

PRESIDING JUSTICE REID delivered the opinion of the court:

The defendants, Bruce Crown, Bruce Alan Crown, trustee ofthe Bruce Alan Crown Restated Grantor's Trust dated as of August13, 1992, Graystar Corporation, and American DemolitionCorporation, appeal the trial court's order that granted theplaintiffs, Charlene Holtz and Chicago Title and Trust Company,as trustee under trust agreement dated March 3, 1978, and knownas Trust Number 1071724, leave to file an amended complaint.

On appeal, the certified question that we are faced with iswhether a motion to amend pursuant to section 2-1005(g)(735 ILCS5/2-1005(g) (West 2002)) of the Illinois Code of Civil Procedure(Code) extends the trial court's subject matter jurisdictionbeyond 30 days after the grant of summary judgment which disposedof all the parties and issues. For the following reasons, thecertified question is answered "yes."

BACKGROUND

On July 13, 2001, the plaintiffs filed a three-countverified complaint to quiet title and for declaratory andinjunctive relief against the defendants. The complaint assertedthat the plaintiffs had acquired title by adverse possession to acertain property located between 1665 North Burling Street inChicago, Illinois, which was beneficially owned by Crown and aproperty located at 1701 North Burling Street, which isbeneficially owned by Holtz.

Thereafter, the defendants moved for summary judgment. Thetrial court granted summary judgment in favor of the defendantswith respect to plaintiffs' adverse possession claim on June 23,2003. The sole basis upon which the trial court granted themotion was the court's finding that the plaintiffs had notestablished exclusive possession of the property in dispute.

Also, on June 23, 2003, counsel for plaintiffs orally moved the court to file an amended complaint to include claims for aprescriptive easement and damages. At the request of counsel forthe defense, the trial court directed plaintiffs to make themotion in writing for leave to file an amended complaint.

The plaintiffs filed and served a motion for leave to filean amended complaint pursuant to section 2-1005(g) on July 18,2003. A copy of the five-count amended complaint was attached tothe plaintiffs' motion.

On July 28, 2003, the trial court issued a scheduling order,which was prepared by defendants' attorney. Therein, the trialcourt ordered: (1) the defendants to file a brief in response tothe plaintiffs' motion for leave to file an amended complaint onor before August 11, 2003, and (2) the plaintiffs to file aresponse brief on or before August 25, 2003.

On August 11, 2003, the defendants responded to plaintiffs'motion to file an amended complaint. In their response, thedefendants claimed that plaintiffs' motion was untimely andlegally insufficient. On August 25, 2003, the plaintiffs filed areply memorandum in support of their motion for leave to file anamended complaint.

Counsel for the parties appeared before the trial court fora hearing on plaintiffs' motion for leave to file an amendedcomplaint on September 23, 2003. After hearing arguments, thetrial court entered an order authorizing the parties to submitadditional memoranda regarding the motion. This order wasprepared by counsel to the defendants.

On September 30, 2003, the defendants filed a supplementalresponse to plaintiffs' motion for leave to file an amendedcomplaint where they argued that the trial court lost subjectmatter jurisdiction over the case 30 days after the entry ofsummary judgment and that the filing of plaintiffs' motion forleave to amend did not extend the trial court's jurisdiction. OnOctober 7, 2003, the plaintiffs filed a sur-reply in support oftheir motion for leave to file an amended complaint, wherein theyargued that the trial court retained jurisdiction to decide theirmotion.

After a hearing, on October 14, 2003, the trial courtgranted plaintiffs' motion for leave to file an amendedcomplaint. Thereafter, the defendants filed a motion for anIllinois Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a))statement regarding the trial court's October 14, 2003 order. The trial court granted the defendants' motion on November 10,2003, which stated, inter alia:

"Defendants' motion for Illinois Supreme CourtRule 308(a) statement is granted. The court finds thatthe court's order of October 14, 2003, allowingPlaintiffs' leave to file an amended complaint presentsa question of law to which there is substantial groundfor difference of opinion and an immediate appeal fromthe order will materially advance the ultimatetermination of the litigation. The question of lawinvolved is: Does 735 ILCS 5/2-1005(g) extend the trialcourt's subject[]matter jurisdiction beyond 30 days bythe filing of a motion for leave to amend on the 26thday after the grant of summary judgment but notpresented for hearing until 36 days after the grant ofsummary judgment which disposed of all parties and allissues. Upon the grant of summary judgment, Plaintiffsmade an oral request for leave to file an amendedcomplaint and the court stated that the request must bein writing."

The trial court granted the defendants' motion and includedthe findings in the order as required by Illinois Supreme CourtRule 308. A court reporter also transcribed the proceedings atthe November 10, 2003 hearing.

Subsequently, defendants filed their petition for leave toappeal under Supreme Court Rule 308, and the plaintiffs filedtheir answer in opposition. Thereafter, this court denieddefendants' petition for leave to appeal. Defendants then fileda petition for leave to appeal to the Illinois Supreme Court. Inresponse, the Illinois Supreme Court denied leave to appeal withdirections to this court to vacate its prior order and to grantdefendants' petition for leave to appeal.

ANALYSIS

The question of law that we must decide is whether a motionto amend pursuant to section 2-1005(g) extends the trial court'ssubject matter jurisdiction beyond 30 days after the grant ofsummary judgment which disposed of all the parties and issues.

"In deciding an appeal under Supreme Court Rule 308, welimit ourselves to answering the certified questions. Sassali v.DeFauw, 297 Ill. App. 3d 50, 51 (1998). Because we decidequestions of law (155 Ill. 2d R. 308(a)), our review is de novo.See In re Lawrence M., 172 Ill. 2d 523, 526 (1996)." People exrel. Levenstein v. Salafsky, 338 Ill. App. 3d 936, 941-42 (2003).

The certified question presented to this court necessarilyrequires a two-part analysis: (1) wether a party preserves thetrial court's subject matter jurisdiction by filing a motion forleave to amend a complaint within 30 days of the entry of summaryjudgment as to all parties and issues; and (2) if yes, whetherthe trial court retains its jurisdiction to rule on that motionbeyond the 30 days from the entry of the final judgment.

At the outset, in answering the first question, weacknowledge that a trial court loses jurisdiction over a matterwhen: (1) 30 days have passed following the entry of a final andappealable order concerning that matter; and (2) during thattime, neither party has taken any legally proper action to delaythe 30-day period. Bowers v. Village of Palatine, 204 Ill. App.3d 135, 137 (1990). Therefore, in this matter, to test thetrial court's jurisdiction, we must consider whether plaintiff'sfiling of a motion for leave to amend the complaint within 30days of the entry of summary judgment was a "legally properaction" that would delay the 30-day period.

Section 2-1005(g) of the Code expressly provides, inpertinent part, that "after the entry of a summary judgment, thecourt shall permit pleadings to be amended upon just andreasonable terms." (Emphasis added.) 735 ILCS 5/2-1005(g)(West2002). The plain language of a statute provides the mostreliable indicator of legislative intent, and we must not departfrom the plain language of a statute by reading into itexceptions, limitations, or conditions that conflict with theexpress legislative intent. Zimmerman v. Village of Skokie, 183Ill. 2d 30, 56 (1998). The statute unequivocally allows theparties a mechanism to amend a pleading even after the entry ofsummary judgment. Thus, the filing of a motion for leave toamend pursuant to section 2-1005(g) must be a "legally properaction" that preserves the trial court's subject matterjurisdiction if filed within the requisite 30-day period. Toconclude otherwise would eviscerate the parties' ability toutilize section 2-1005(g) when the entry of summary judgmentdisposes of all of the parties and issues. The statute does notlimit its application only to those instances where partialsummary judgment has been granted, but extends to any entry ofsummary judgment, including one that renders a final judgment.

Next, we must consider whether the trial court retains itsjurisdiction to rule on a timely filed motion for leave to amendbeyond the requisite 30-day period. As we have previously found,nothing in the Code requires that a hearing date be set or that atrial court rule on a motion within 30 days of the entry of finaljudgments and orders. Yang v. Chen, 283 Ill. App. 3d 80, 84(1996). There is no reason to treat a motion for leave to amenda complaint pursuant to section 2-1005(g) differently. Accordingly, as long as a party files the motion within therequisite 30-day period, the trial court retains jurisdiction torule on the motion beyond the 30 days from the entry of the finaljudgment.

In answering the certified question, we shall examine Bergv. Allied Security, Inc., 193 Ill. 2d 186 (2000). In Berg, thesole issue on appeal was whether the plaintiff had properlyinvoked the appellate court's jurisdiction by timely filing hernotice of appeal pursuant to Supreme Court Rule 303(a), attackingthe entry of a summary judgment order. There, on September 4,1996, the circuit court granted the defendants' motions forsummary judgment on the plaintiff's complaint for personalinjuries. The plaintiff subsequently filed a motion toreconsider, which requested, in the alternative, leave to file asecond amended complaint. On October 15, 1996, the court deniedthe plaintiff's motion for reconsideration and took theplaintiff's request for leave to file a second amended complaintunder advisement. The court ultimately denied the request forleave to amend on November 21, 1996. The plaintiff filed hernotice of appeal from the summary judgment order on November 26,1996. Berg, 193 Ill. 2d at 187; Berg v. Allied Security, Inc.,Chicago, 297 Ill. App. 3d 891, 898 (1998)(clarifying that theorder from which the plaintiff appealed from was the ordergranting summary judgment).

The supreme court held that the motion for leave to amendthe complaint did not extend the time for filing her notice ofappeal. The court explained that under Supreme Court Rule303(a), she was required to file her notice of appeal within 30days after the entry of the final judgment or within 30 daysafter an order disposing of a timely posttrial motion directedagainst the judgment. Berg, 193 Ill. 2d at 189. The court heldthat a motion for leave to amend was not a motion directedagainst the judgment and therefore did not extend the time underRule 303(a) for appeal. Berg, 193 Ill. 2d at 189, citing Fultzv. Haugan, 49 Ill. 2d 131 (1971).

The key distinction between Berg and this matter is that inBerg, the plaintiff sought to attack the grant of summaryjudgment by filing what she erroneously believed was a posttrialmotion that would extend the time for filing her notice ofappeal. Here, plaintiffs did not seek to attack the grant ofsummary judgment and are not now appealing from the entry ofsummary judgment on their claim of adverse possession. Thus, themotion for leave to amend did not erroneously purport to be aposttrial motion directed against the judgment from whichplaintiffs could no longer appeal. Rather, pursuant to section2-1005(g), plaintiffs sought leave to file an amended complaintalleging a new theory which was properly filed within 30 days ofthe entry of summary judgment. Accordingly, the holding in Bergis distinct from, and therefore not dispositive of, the certifiedquestion before us.

The Fultz case relied on in Berg is instructive on thisdistinction, and indeed supports the recognition that the trialcourt retains jurisdiction to rule on a motion for leave to amendafter the entry of summary judgment. In Fultz, the trial courtentered an order dismissing plaintiff's complaint on March 31,1970. On April 21, the plaintiff filed a motion to vacate theorder of dismissal which was subsequently denied on April 24.

Thereafter, on May 18, the plaintiff filed a motion for leave toamend her complaint, and on July 2, the court denied that motion. Plaintiff then sought to appeal from the March 31 order ofdismissal, the April 24 order denying her motion to vacate, andthe order of July 2, denying her motion for leave to file anamended complaint. Fultz, 49 Ill. 2d at 134-35.

Our supreme court concluded that the motion for leave toamend was not a motion directed against the final judgment asrequired by Rule 303(a) which would extend the 30-day period forfiling an appeal and, therefore, dismissed the plaintiff's appealof the March 31 and April 24 orders, as the plaintiff had failedto file her notice of appeal within 30 days after the court'sApril 24 order, disposing of her pending postjudgment motion. Fultz, 49 Ill. 2d at 136. However, our supreme court determinedthat it did have jurisdiction to consider the orders entered onJuly 2, including the denial of the motion for leave to amend. Fultz, 49 Ill. 2d at 136. Thus, Fultz recognized that the trialcourt retained jurisdiction to entertain the plaintiff's motionfor leave to amend her complaint.

Applying the same rationale and relying on the holding inFultz, the court in Witvoet v. Fireman's Fund Insurance, Inc.,317 Ill. App. 3d 915 (2000), reached the same conclusion. There,the trial court entered an order denying the plaintiff's motionfor leave to amend the complaint on May 5, 1999, therebyadjudicating the plaintiff's claim as to all defendants. Thirtydays later, on June 4, the plaintiff filed a new motion for leaveto file an amended complaint. That motion was denied on June 28. Thereafter, on July 21, the plaintiff filed a motion toreconsider its denial and defendants moved to strike the motion. On September 3, the trial court granted the defendants' motion tostrike and entered a clarifying order on September 24. Theplaintiff filed a notice of appeal on October 1, seeking toappeal the trial court's orders of June 28, September 3, andSeptember 24. Witvoet, 317 Ill. App. 3d at 916-17.

The appellate court rejected the defendants' argument thatthe appellate court lost jurisdiction when the plaintiff failedto file a timely notice of appeal within 30 days of the May 5order or within 30 days of a postjudgment motion directed againstthat order. Rather, the court found that the defendantsmisapprehended the limited scope of the plaintiff's appeal. Witvoet, 317 Ill. App. 3d at 918. Since the plaintiff did notappeal from the May 5 order, the only question before the courtwas whether the plaintiff had successfully preserved appeal ofthe court's orders denying him leave to file an amended complaintand striking his motion for reconsideration. The court held thatunder Fultz, it had jurisdiction to consider the limited issuesthat the plaintiff presented to the court, including the denialof the plaintiff's motion of leave to amend the complaint. Witvoet, 317 Ill. App. 3d at 918-19.

Accordingly, we answer the certified question before thiscourt in the affirmative.

CONCLUSION

For the foregoing reasons, the certified question of whethera motion to amend pursuant to section 2-1005(g) extends the trialcourt's subject matter jurisdiction beyond 30 days after thegrant of summary judgment which disposed of all the parties andissues is answered "yes."

Certified question answered "yes."

Theis, J. and Quinn, J., concur.