Nunc Pro Tunc Order Does Not Benefit From Illinois Rule 304(a) Language In Original Order

Two defendants had nearly identical names. One was Town of Fort Sheridan Company (TFSC); the other was Town of Fort Sheridan Operating Company (TFSOC). Plaintiff originally sued TFSC only. Later, but without leave of court, plaintiff filed an amended complaint that additionally named TFSOC.

TFSOC moved to dismiss on the basis that the amended complaint was a nullity because leave to file it had not been granted. The trial court granted the motion, but the order mistakenly identified TFSC as the dismissed party. This order did contain Illinois Supreme Court Rule 304(a) language, giving the parties 30 days to appeal the interlocutory order.

At TSFOC’s request, an order later was entered to correctly identify TSFOC as the dismissed party. That order was nunc pro tunc to the original dismissal order. It did not contain Illinois Supreme Court Rule 304(a) language.

Plaintiff did not appeal the dismissal in favor of TSFOC within 30 days of the original dismissal order. Instead, he litigated the case to conclusion against the original defendants. Then he appealed the dismissal of TSFOC within 30 days of the final judgment.

TSFOC moved to dismiss the appeal, arguing that plaintiff had to appeal within 30 days of the original order. TSFOC asserted that the later, corrected order, because it was nunc pro tunc, got the benefit of the Rule 304(a) language in the earlier, incorrect order. Plaintiff argued that the later order was an ordinary interlocutory order that could not be appealed until all claims against all parties were resolved.

The court ruled that it had jurisdiction to hear plaintiff’s appeal from the dismissal of TSFOC. The Rule 304(a) language in the first dismissal order could not be imputed to the later, corrected order, even though it was nunc pro tunc. To become immediately appealable, the second order required its own Rule 304(a) language.

See the whole analysis in Pestka v. Town of Fort Sheridan Company, 1-04-2674 (1/22/07), by clicking here.