Illinois Appellate Lawyer Blog
Carl Brdar, a truck driver, was injured when he tried to tie down an automobile to a cargo trailer. He sued Cottrel, Inc., the trailer manufacturer. Cottrell filed a third-party complaint against Vulcan Chain Corp., a distributor of metal tie-down chains. Vulcan’s motion to dismiss based on the statute of limitations was granted. The case was tried, and Carl got a judgment in excess of $1.4 million against Cottrell.
About two and a half weeks after the judgment, Cottrell filed a motion for an extension of time to file a post-trial motion. Cottrell served the motion on plaintiff, but not on Vulcan. That motion was granted, as were successive motions by Cottrell for more time. Cottrell eventually filed a post-trial motion.
About a month after the judgment, Carl filed a motion for costs incurred in calling a rebuttal expert witness. The motion argued that Carl was required to call the rebuttal expert when Cottrell’s expert gave surprise testimony.
The court later denied Cottrell’s post-trial motion and Carl’s motion for its costs in calling the rebuttal witness. Both appealed.
Vulcan moved to dismiss Cottrell’s appeal. Vulcan argued that because (1st) it did not receive timely notice of Cottrell’s motions for extensions of time to file a post-trial motion, the orders granting extensions “should be voided,” (2nd) voiding the orders that allowed more time would render Cottrell’s post-trial motion untimely, and (3rd) the untimely post-trial motion would not have tolled the 30-day period to file an appeal. Therefore, Vulcan concluded, the appellate court did not have jurisdiction to hear Cottrell’s appeal.
The appellate court ignored the argument and denied the motion to dismiss. The court pointed to Carl’s post-judgment motion for rebuttal expert costs, and concluded: “This timely motion injected into the action a new claim. Thus, the February 6 order [i.e., judgment] could not be appealed by any party until the court either disposed of the claim or entered a finding that there was no just reason to delay the appeal or enforcement of the order (155 Ill.2d R. 304(a) … The court did both on June 30, and Cottrell filed its appeal the same day. Thus, Cottrell’s notice of appeal was timely, and we have jurisdiction to consider the appeal.”
The lesson here is that a post-trial motion for costs can “inject a new claim” into the case and destroy the finality of a judgment. Get the whole case, Brdar v. Cottrell, Inc., No. 5-04-0415 (3/27/07), by clicking here.