dissenting:
To ensure fair and consistent procedures for parties involved in complex litigation, Supreme Court Rules 304(a) and 303(a) and section 2 — 1203 of the Code of Civil Procedure must be read and interpreted together. An analysis of the language and purpose of the Rule 304(a), as well as a" review of both State and Federal case law, compels the conclusion that the 30-day time limit for filing a notice of appeal in a case where an order has been entered under Rule 304(a) (with a finding that there is no reason to delay appeal) must run from the date of resolution of any timely post-judgment motions, and not, as the majority holds, from the date of entry of the Rule 304(a) finding.
Rule 304(a) contains no language specifying a period of time following entry of a final judgment order in which a litigant must file a notice of appeal or be barred. That the time limit for filing a notice of appeal under 304(a) is 30 days, however, is uncontested. This time limit is read into Rule 304 from Rule 303, which provides that “the notice of appeal must be filed *** within 30 days after the entry of the final judgment appealed from.)” 107 Ill. 2d R. 303(a).
Similarly, although there is no language in 304 explicitly providing for tolling of the period for filing a notice of appeal by the filing of post-judgment motions, the provision allowing tolling by post-trial motions in Rule 303(a) must be read into Rule 304. Rule 303(a) states that, “if a timely post-trial motion directed against the judgment is filed, *** [the notice of appeal must be filed] within 30 days after the entry of the order disposing of the last pending post-trial motion.” (107 Ill. 2d R. 303(a).) As noted by Justice McCullough in dissenting from the appellate court decision in this case, “ ‘Clearly, Rule 303(a) controls the time for filing an appeal, even if the appeal is taken pursuant to entry of [a] Rule 304(a) finding.’ [Citation.] Logically, then, the stay provision of Rule 303(a), provided by [the] filing of a timely post-trial motion ***, should also be available for an appeal filed under Rule 304(a).” (149 Ill. App. 3d 307, 314 (McCullough, P.J., dissenting), quoting Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560, 568.) Conversely, if the tolling provisions of Rule 303(a) cannot be read into Rule 304(a), then logically the 30-day time limit in Rule 303(a) also should not be read into Rule 304. Such a mutually exclusive reading of Rules 303 and 304 was obviously not envisioned by the court, however, because if the 30-day time limitation from Rule 303(a) is not read into Rule 304, the time for filing a notice of appeal under Rule 304 is unspecified and unlimited and the Rule 304 language governing notices of appeal becomes unenforceable.
Therefore, in view of the incomplete nature of the rule, the language of Rule 304(a) stating that the “time for filing the notice of appeal shall run from the entry of the required finding” must be viewed as only directory, not mandatory, language, and the tolling provisions of Rule 303(a) should be read into Rule 304(a) along with Rule 303’s 30-day time-limit provision. This conclusion is supported by the fact that Rules 303(a) and 304(a) were adopted at the same time, raising the inference that they should be read together and that the drafters intended the time limits and tolling provisions included in Rule 303(a) to suffice for Rule 304.
Our appellate court has consistently interpreted the time for filing a notice of appeal under Rule 304(a) as being tolled by the timely filing of a post-judgment motion. In Bradford v. Soto (1987), 159 Ill. App. 3d 668, the court specifically rejected the conclusion of the appellate court majority in the present case. In Bradford, the trial court granted defendant’s motion to dismiss and made the requisite Rule 304(a) finding that there was no reason to delay appeal of the order on September 12, 1986. Plaintiff then filed a timely motion for rehearing on the motion to dismiss, which the court denied on September 24, 1986. Plaintiff filed a notice of appeal on October 21, 1986, which defendant contested as untimely because it was not filed within 30 days of the entry of the Rule 304(a) finding on September 12,1986.
The appellate court held that plaintiff’s post-trial motion tolled the period in which plaintiff could file a notice of appeal and therefore that the notice of appeal was timely filed. The court reasoned:
“Rule 304(a) does not state a time period in which a notice of appeal is to be filed. One must, therefore, look elsewhere for the time or Rule 304(a) would become meaningless. The time limit is found in Rule 303(a), which also provides for a tolling period when a post-trial motion is made. There is no reason to believe that the provisions of Rule 303(a) should be bifurcated when Rule 303(a) is being applied to Rule 304(a) findings. Therefore, we hold that, in accordance with Rule 303(a), the time for filing an appeal after a Rule 304(a) finding is tolled by a post-trial motion.” (159 Ill. App. 3d at 672.)
Other appellate court decisions have reached the same conclusion. See Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560, 568 (“the stay provision of Rule 303(a) provided by the filing of a timely post-trial motion should also be available for an appeal filed under Rule 304(a)”); Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 377-78 (where plaintiff had claim as defined by Rule 304(a), the time for filing of a notice of appeal was extended until 30 days after resolution of the last pending post-trial motion), citing In re Marriage of Uphoff (1983), 99 Ill. 2d 90, 95; In re Marriage of Panozzo (1981), 93 Ill. App. 3d 1085, 1087 (assuming that if a timely post-trial motion had been made following entry of a judgment and finding under Rule 304(a), a post-trial motion would have stayed the time for filing a notice of appeal); Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 1136 (holding that a notice of appeal from a judgment entered under Rule 304(a) was timely because post-trial motions had been filed); Farmar v. Crane (1975), 32 Ill. App. 3d 383, 391 (where orders were entered under Rule 304(a) with express findings that there was no reason to delay appeal, “[pjursuant to the time limitations in Supreme court [Rule] 303(a) [citation], plaintiff should have appealed those orders within 30 days after the entry of the court’s finding or within 30 days of the disposition of her post-trial motion relating to those orders” (emphasis added)).
Federal law also supports the conclusion that a timely post-judgment motion tolls the time for filing a notice of appeal. As the majority notes, Rule 304(a) was patterned on Federal Rule of Civil Procedure 54(b), and the Illinois rule “expressly adopts the federal practice.” (See Ill. Ann. Stat., ch. 110A, par. 304(a), Historical and Practice Notes, at 166 (Smith-Hurd 1985).) Under the Federal rule, in both “civil and criminal cases, the running of [the time to file a notice of appeal] is automatically suspended upon the timely filing in the district court of specified types of post-decisional motions ***. Such a motion may variously be styled a motion to reconsider, a motion for rehearing, a motion to reargue, a motion to vacate, or a motion to set aside the judgment.” (16 C. Wright & A. Miller, Federal Practice and Procedure §3950, at 364 & n.7 (1977); see also 9 J. Moore, Federal Practice par. 204.12(a) (1987) (“Any motion that draws into question the correctness of the judgment *** will postpone the time for appeal if the motion was timely made”).) This rule applies to final judgments rendered under Rule 54(b) in multiparty or multiclaim litigation with a finding that there is no reason to delay appeal. (See, e.g., Griggs v. Provident Consumer Discount Co. (1982), 459 U.S. 56, 74 L. Ed. 2d 225, 103 S. Ct. 400 (per curiam) (where a final order of summary judgment had been rendered under Rule 54(b), a notice of appeal was not properly filed until an order disposing of a post-judgment motion to alter or amend the judgment had been entered); Stephenson v. Calpine Conifers II, Ltd. (9th Cir. 1981), 652 F.2d 808, 811 (filing motion for review of summary judgment entered under Rule 54(b) extended the time for filing a notice of appeal to within 30 days after the resolution of the motion for review).) Under current Federal practice, after entry of a finding that a judgment is final and appealable, the timely filing of a post-judgment motion to reconsider — such as the one filed in this case — would toll the running of the time for filing a notice of appeal until the motion to reconsider had been resolved by the trial court. There is no reason why the Illinois rule, which is based on the Federal rule and serves precisely the same function, should be interpreted in a vastly different way.
Moreover, requiring immediate appeal after entry of a Rule 304(a) finding does not substantially further the dual purposes underlying the rule as defined by the majority: to avoid unnecessary appeals while permitting some appeals before final disposition of the case and to enable litigants to determine with certainty when a judgment is appealable. Application of the majority’s interpretation results in no fewer appeals, nor does it somehow weed out more unnecessary appeals. Neither does it make any more certain when a judgment is appealable. The entry of a finding of no reason to delay appeal under Rule 304(a) seals the certainty of a litigant’s right to appeal. Whether that litigant must file a notice of appeal immediately or may wait until after resolution of post-trial motions has absolutely no effect on the certainty of the litigant’s right to appeal.
The majority’s suggestion that allowing post-judgment motions to toll the running of the time for appeal would cause confusion concerning the timing for filing notices of appeal under Rule 304(a) is equally without merit. The courts have had no trouble in determining when the time for filing a notice of appeal begins to run under Rule 303(a). Simply put, in order to preserve the right to appeal a litigant must file a post-judgment motion or a notice of appeal within 30 days of the final judgment. If a post-judgment motion is filed within the first 30 days after entry of the final judgment, the 30 days given for filing a notice of appeal does not begin to run until the date that the post-judgment motion is resolved. Similarly, in cases where a finding under Rule 304(a) had been made by the trial court, a notice of appeal would have to be filed 30 days from the entry of the finding unless a post-judgment motion was filed during those 30 days, in which case the party would have from 30 days from the resolution of the post-judgment motion to file the notice of appeal.
In addition, allowing a notice of appeal to be filed within 30 days after the resolution of a post-judgment motion would not substantially increase the delay in resolution of the issue or claim appealed. Under section 2—1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1203(a)), post-judgment motions must be made within 30 days after entry of judgment. Successive post-trial motions are not allowed and would not extend the time for filing a notice of appeal. (Sears v. Sears (1981), 85 Ill. 2d 253, 259.) Thus, by filing a post-judgment motion after the entry of a finding under Rule 304(a), a litigant would delay the appeal process by 30 days at most. This short delay, plus whatever time is taken by the trial court in ruling on the motion, is a small price to pay for a possible resolution of the controversy without involving the appellate court. This court has frequently emphasized the importance of affording the trial court the opportunity to reconsider its own rulings before involving the appellate court. I see no reason to depart from this policy under the circumstances of this case.
Moreover, the majority’s interpretation of Rule 304(a) leads to undesirable results. Requiring a litigant to file a notice of appeal within 30 days of the entry of a Rule 304(a) order regardless of the status of post-judgment motions will in many cases render the filing of those motions meaningless. For example, under the majority’s interpretation, if a final judgment order is entered on July 1 which includes a finding under 304(a) that there is no ' reason to delay appeal, the litigant must file a notice of appeal by July 31 or forever be barred from appeal on that claim or issue. If the litigant wishes to file post-judgment motions after July 1, he or she may do so, but if the court has not ruled on these motions by July 31, the litigant must proceed with the filing of a notice of appeal or be barred forever from appeal. The filing of the notice of appeal, however, will divest the trial court of jurisdiction over the post-judgment motions,1 thereby rendering them moot. Therefore, the new rule adopted by the majority absolutely limits the time for preparation, filing and resolution of all post-judgment motions in cases where a Rule 304(a) finding has been entered to 30 days. Depending on the size and complexity of the case, this limit could prove a substantial burden for both the litigants and the court. To place this burden on a litigant seems especially unfair where, as here, the litigant never asked for the final judgment ruling under 304(a), but the court rendered the ruling sua sponte.
In addition, the rule adopted by the majority unfairly discriminates against litigants involved in multiparty or multiclaim litigation. There is no reason to place greater time restrictions on these litigants or to limit their rights to make post-judgment motions than litigants involved in less complex matters. It is fundamentally unfair to make litigants in complex litigation pay for the right to an immediate appeal by giving up or severely restricting their right to have the trial court consider post-judgment motions. Again, this is particularly true where, as here, the appellants did not seek the “rare opportunity” of pursuing an immediate appeal under a Rule 304(a) finding, but where such an opportunity was thrust upon them by the court’s sua sponte action.
Finally, the majority’s holding creates a procedural trap for the unwary litigant. In a judicial system it is desirable so far as possible to have uniform times for filing notices of appeal regardless of the type of judgment that is being appealed from. Consistent and uniform application of time restrictions for filing appeals avoids confusion, aids parties in preparing and trying their cases, and promotes the efficient administration of justice. As interpreted by the majority, the time restrictions for filing notices of appeal under Rules 303 and 304 are to be enforced in a widely divergent matter. Therefore, in order to avoid confusion and assure consistency in the application of Rules 303 and 304 we should, at the very least, now amend Rule 304(a) in order to (1) include a 30-day time limitation for filing a notice of appeal and (2) make explicit that post-judgment motions will not toll the running of the 30-day period.
For these reasons, I believe that appellant’s notice of appeal, filed within 30 days of the resolution of their timely post-judgment motion, was also timely, and I therefore respectfully dissent.
The conclusion of the appellate court on the jurisdictional issue— that entry of a final judgment by the trial court which includes a finding under 304(a) that there is no just reason to delay enforcement or appeal divests the trial court of jurisdiction over the cause — is erroneous. Although the 304(a) finding is a necessary precondition for an appeal, it is well-settled that the filing of a timely notice of appeal is the act which divests the trial court of jurisdiction. See Lombard v. Elmore (1986), 112 Ill. 2d 467, 471-72, citing Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538; Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433.