Pagano v. Rand Materials Handling Equipment Co.

621 N.E.2d 26, 249 Ill. App. 3d 995, 190 Ill. Dec. 157, 1993 Ill. App. LEXIS 443
CourtAppellate Court of Illinois
DecidedMarch 31, 1993
Docket1-92-1803
StatusPublished
Cited by6 cases

This text of 621 N.E.2d 26 (Pagano v. Rand Materials Handling Equipment Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pagano v. Rand Materials Handling Equipment Co., 621 N.E.2d 26, 249 Ill. App. 3d 995, 190 Ill. Dec. 157, 1993 Ill. App. LEXIS 443 (Ill. Ct. App. 1993).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

Plaintiff, Paul T. Pagano, appeals from two orders which were subsequently made appealable under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The first order, entered June 22, 1990, imposed sanctions against plaintiff’s attorney pursuant to section 2— 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The second order, entered July 19, 1991, amended the previous one nunc pro tunc and identified plaintiff’s attorney by the firm’s name. Plaintiff raises three arguments on appeal: (1) the trial court improperly amended its June 22, 1990, order nunc pro tunc; (2) the July 19, 1991, order is void on its face because it named the law firm representing plaintiff as the party sanctioned in the June 22, 1990, order; and (3) the court abused its discretion in imposing sanctions in the first instance. For the following reasons, we dismiss the appeal for lack of jurisdiction.

On December 23, 1987, plaintiff filed suit to recover damages for personal injuries he suffered while using a barrel drum truck, which is also referred to as a dollie or a barrel lift truck. Plaintiff amended his complaint to name Rand Materials Handling Equipment Company, Inc. (Rand), as an additional defendant alleging that Rand “designed, manufactured and sold” the barrel drum truck. Subsequently, the plaintiff filed a second-amended complaint alleging that Rand manufactured dollies for public use. In his third-amended complaint, plaintiff alleged that Rand “was in the business of designing or selling dollies.”

On May 16, 1989, plaintiff voluntarily dismissed Rand as a defendant, and within 30 days, Rand filed a motion for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) On October 24, 1989, the trial court granted Rand’s section 2 — 611 motion and entered an order finding that “there was never a scrap of proof that the barrel lift truck actually came from Rand.” The matter was continued for an evidentiary hearing to determine the amount of reasonable attorney fees and costs incurred by Rand. An evidentiary hearing was held on June 22, 1990. The trial court entered an order denying plaintiff’s motion to reconsider the order of October 24, 1989, and assessed a monetary sanction in favor of Rand against the “attorneys for plaintiff.” On October 10, 1990, the court entered an order under Rule 304(a) expressly finding that there was no just reason to delay enforcement or appeal of the October 24, 1989, and June 22, 1990, orders. Plaintiff did not appeal within 30 days of the October 10,1990, order.

When the sanction was not paid, Rand sought to enforce the orders of the trial court. On July 19, 1991, pursuant to Rand’s motion, the court entered an order amending its June 22, 1990, order nunc pro tunc by identifying “Susan E. Loggans & Associates” as the attorneys for plaintiff. The order also required that the sanction be paid within 15 days and continued Rand’s motion for a rule to show cause and for additional fees. Plaintiff’s motion to vacate the July 19, 1991, order was denied on July 31, 1991.

On April 30, 1992, the trial court entered an order making its orders of July 19, 1991, and July 31, 1991, final and appealable under Rule 304(a). This appeal followed.

Opinion

The first issue before this court is whether the trial court exceeded its authority to issue nunc pro tunc orders when it amended the June 22, 1990, order to identify Susan E. Loggans & Associates as the attorneys for plaintiff.

Nunc pro tunc orders retroactively amend orders previously entered by the court. As the Illinois Supreme Court stated in Beck v. Stepp (1991), 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827:

“The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the court. A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1056.) Judgments may be modified nunc pro tunc only when the correcting order is based upon evidence such as a ‘note, memorandum or memorial paper remaining in the files or upon the records of the court.’ (Fox, 34 Ill. 2d at 360.) The evidence supporting a nunc pro tunc modification must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court. Young, 414 Ill. at 534.”

An examination of the trial court’s order of July 19, 1991, reveals that, by its very terms, it serves three separate and distinct purposes. First, it amends the June 22, 1990, order nunc pro tunc to substitute the phrase “that attorneys for plaintiff, Susan E. Loggans & "Associates, shall pay to the defendant” for the phrase “that attorneys for plaintiff shall pay to the defendant.” All other portions of the June 22, 1990, order are restated exactly. Second, it orders the payment of the sanction within 15 days. And third, it continues Rand’s pending motion for a rule to show cause and for additional fees generally. The only portion of the July 19, 1991, order that was entered nunc pro tunc was that portion which included the name of Susan E. Loggans & Associates in the June 22, 1990, order as the party who was required to pay the sanction. The remaining relief granted in the order of July 19, 1991, was in the nature of an order enforcing the court’s previous orders and continuing pending motions, which did not alter or attempt to alter the June 22, 1990, order.

A nunc pro tunc amendment to an order may only incorporate that which was actually done by the court, but which was omitted due to a clerical error. (Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E.2d 1182.) Additionally, the amendment must be based upon some note, memorandum, or memorial remaining in the files or records of the court. Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271.

In this case, the June 22, 1990, order directed the “attorneys for plaintiff” to pay the sanction. Up to that point in time, every complaint filed on plaintiff’s behalf began with an introductory paragraph which provided in part: “¡pjlaintiff, Paul T. Pagano, by his attorneys, Susan E. Loggans & Associates.” The supplemental brief opposing Rand’s motion for fees, which resulted in the sanction order of June 22, 1990, began with the introductory phrase: “Now comes the plaintiff, Paul T. Pagano, by and through his attorneys, Susan E. Loggans & Associates.” From an examination of the pleadings filed in this case prior to the June 22, 1990, order, it is apparent that the only person or entity that was ever named as “attorneys for plaintiff” was Susan E. Loggans & Associates. There is no doubt from the record that when the trial court entered the June 22, 1990, order, requiring the “attorneys for plaintiff” to pay a money sanction, it was, in fact, entering the order against Susan E. Loggans & Associates.

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Bluebook (online)
621 N.E.2d 26, 249 Ill. App. 3d 995, 190 Ill. Dec. 157, 1993 Ill. App. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pagano-v-rand-materials-handling-equipment-co-illappct-1993.