dissenting:
Unlike the majority, I do not believe that the order appealed from in this case is final and appealable. See 202 Ill. 2d at 350.1 therefore respectfully dissent.
The law is well established that, unless specifically authorized by the rules of this court, the appellate court has no jurisdiction to review judgments, orders, or decrees that are not final. Department of Central Management, 182 Ill. 2d at 238. An order or judgment is final if, on the issues presented in the pleadings, it “ascertains and fixes absolutely and finally the rights of the parties.” Department of Central Management, 182 Ill. 2d at 238. Where the appellate court considers the merits of a non-final order over which it lacked jurisdiction, we must vacate that court’s judgment and dismiss the appeal. Department of Central Management, 182 Ill. 2d at 238.
The order appealed from in this case is neither final nor appealable. Again, that order simply denies Clemons’ motion to amend his complaint to include an additional count of retaliatory discharge under the Wage Act. Clearly, that order did not terminate the litigation between the parties, as that litigation remains pending in the trial court. Moreover, that order neither ascertains nor fixes absolutely and finally the rights of the parties with respect to Clemons’ request for leave to amend. Indeed, Clemons’ motion was denied without prejudice, and section 2 — 616 specifically provides that, on just and reasonable terms, an amendment “adding new causes of action” may be allowed “at anytime before final judgment” (735 ILCS 5/2 — 616(a) (West 2000)). Thus, Clemons may renew his motion — and the trial court may reconsider its ruling — anytime before final judgment. Of course, whether Clemons in fact renews his motion or the trial court in fact reconsiders its ruling is irrelevant to a determination of finality; the mere fact that both options are available renders the order denying Clemons’ motion for leave to amend nonfinal.
The trial court’s inclusion of a Rule 304(a) finding in no way alters this result. Rule 304(a) provides:
“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” (Emphasis added.) 155 Ill. 2d R 304(a).
Thus, by its own terms, Rule 304(a) applies only to final judgments. As demonstrated above, however, the trial court’s order denying Clemons’ motion for leave to amend is not final. Rule 304(a) therefore has no application in this case, and the trial court’s Rule 304(a) finding “was to no purpose and did not render [that order] appealable.” See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987). More importantly, the trial court’s order is not subject to a Rule 304(a) finding because it does not relate to a claim for relief involved in Clemons’ action. Clemons was denied leave to file his Wage Act claim. How can an order relating to a claim that has never been filed constitute a final judgment as to that claim? Quite clearly, it cannot.1
Moreover, although the trial court’s order denying Clemons’ motion for leave to amend invokes Supreme Court Rule 308 (155 Ill. 2d R. 308(a)), we know both that Clemons did not pursue this appeal under that rule and that the appellate court did not hear this appeal under that rule. Rule 308 provides:
“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. ***
*** The appeal will be sought by filing an application for leave to appeal *** within 14 days after the entry of the order in the trial court or the making of the prescribed statement by the trial court, whichever is later.” 155 Ill. 2d Rs. 308(a), (b).
Here, Clemons did not file “an application for leave to appeal *** within 14 days after the entry of the order in the trial court.” Rather, he filed a notice of appeal 27 days after the entry of that order. This alone precludes a finding of appellate jurisdiction under Rule 308. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984) (the timely filing of a notice of appeal is jurisdictional). However, even if Clemons had filed a timely application under Rule 308(a), the appellate court still would have lacked jurisdiction, as the trial court’s order failed even to identify the “question of law” it purported to certify. 155 Ill. 2d R. 308(a).
Finally, I wish to note that this is not a case of the trial court misconstruing our mandate, a circumstance that conceivably could justify the exercise of this court’s supervisory authority irrespective of the jurisdictional defect. Nowhere in Clemons I did this court order or even suggest that Clemons be allowed to amend his complaint to add an additional count under the Wage Act. Rather, after noting that Clemons specifically disavowed any intention of pursuing a remedy under the Wage Act (Clemons I, 184 Ill. 2d at 335), this court held simply that the trial court erred in admitting evidence of and instructing the jury on defendant’s alleged violation of the Wage Act and that such error was prejudicial to defendant (Clemons I, 184 Ill. 2d at 338). In reaching this result, the court noted that:
“The burden remains on the plaintiff to establish the elements of his cause of action, which here involved the discrete claim that the defendant wrongfully discharged plaintiff in retaliation for seeking recovery under the Workers’ Compensation Act. *** Other remedies may exist for the other violation, but the burden still rests on plaintiff to prove the elements of the action he has pleaded.” (Emphases added.) Clemons I, 184 Ill. 2d at 336-37.
Nothing in this language, or for that matter in all of Clemons I, could possibly be construed as a mandate to the trial court to allow Clemons’ proffered amendment. Consequently, the propriety of the trial court’s interlocutory order denying Clemons’ motion for leave to amend must be reviewed as all such orders are reviewed — at the conclusion of the litigation and only for a manifest abuse of discretion. See Loyola Academy v. S&S Roof Maintenance, Inc. 146 Ill. 2d 263, 273-74 (1992).
In sum, the appellate court in this case considered the merits of a nonfinal order over which it lacked jurisdiction. I therefore would vacate that court’s judgment and dismiss this appeal.
JUSTICES FITZGERALD and GARMAN join in this dissent.
Of course, this is not to say that the order denying Clemons’ motion for leave to amend is not appealable. On the contrary, like any other nonfinal interlocutory order, it is appealable at the termination of the litigation in the trial court. See People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981) (interlocutory orders in a pending case are not directly appealable but instead are reviewable on appeal from the final order).