McCarthy v. Denkovski

THIRD DIVISION
September 30, 1998

Nos. 1--96--2344, 1--96--3712 (Cons.)

EILEEN McCARTHY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
TITO DENKOVSKI and )
HELINA DENKOVSKI, d/b/a )
T&H CONSTRUCTION, INC., ) Honorable
) Rene Goier,
Defendants-Appellees. ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:
Plaintiff Eileen McCarthy appeals from two orders of the
circuit court granting summary judgment in favor of defendants Tito
and Helina Denkovski, d/b/a T&H Construction, Inc., in her contract
action against defendants pursuant to the Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS
505/1 et seq. (West 1994)), and the trial court's directed finding
for defendants on her common law fraud claim. Defendants cross-
appeal the trial court's denial of a directed verdict in their
favor on plaintiff's breach of contract claim, and the court's
denial of their post-trial motion for judgment notwithstanding the
verdict, or in the alternative, a new trial on their counterclaim.
For the reasons set forth below, we dismiss plaintiff's appeal for
lack of jurisdiction, and dismiss defendants' cross-appeal based
upon their failure to comply with Supreme Court Rule 343(b)(i) (155
Ill. 2d R. 343(b)(i)).
Plaintiff initially filed a pro se small claims complaint on
February 9, 1995, alleging defendants breached an oral contract to
remodel her home. On June 29, 1995, plaintiff amended her
complaint to add counts of common law fraud and violations of the
Consumer Fraud Act as a result of her discovery of allegedly more
serious structural defects. Defendants filed a counterclaim
alleging that plaintiff owed them money in payment for work they
had completed on her house. On May 28, 1996, before a jury trial
on plaintiff's amended complaint, the trial court granted
defendants' motion for summary judgment on plaintiff's Consumer
Fraud Act count, but denied defendants' summary judgment motion as
to the breach of contract and common law fraud counts.
At trial, on June 3, 1996, after plaintiff's presentation of
her case-in-chief, the trial court granted defendants' motion for
a directed verdict on plaintiff's common law fraud count, but
denied defendants' motion for a directed verdict on plaintiff's
breach of contract count. A copy of the written motion does not
appear of record, but there is argument on the motion that does
appear of record. Thereafter, on the same day, the jury returned
a verdict in favor of plaintiff on her breach of contract claim and
awarded her damages in the amount of $30,000. The jury also found
for plaintiff on defendants' counterclaim. On July 1, 1996,
plaintiff filed a notice of appeal seeking review of the trial
court's June 3, 1996, order entering a judgment on the jury's
verdict in her favor on her breach of contract count, granting
defendants' motion for a directed verdict on plaintiff's common law
fraud claim, and the court's May 28, 1996, order granting
defendants' motion for summary judgment on plaintiff's Consumer
Fraud Act claim.
On July 3, 1996, defendants filed a post-trial motion
attacking the judgments in plaintiff's favor on her breach of
contract claim and on defendants' counterclaim. Defendants sought
a judgment notwithstanding the verdict or, in the alternative, a
new trial on their counterclaim. On August 23, 1996, the trial
court ordered defendants' post-trial motion "off call." The order
contained in the record originally stated that the motion was
denied, but prior to its entry, the word "denied" was crossed out
and replaced with "off call." On September 20, 1996, defendants
filed a "Notice of Appeal/Cross-Appeal," appealing from the trial
court's denial of their motion for a directed verdict on
plaintiff's breach of contract claim, and the order denying their
post-trial motion. On November 22, 1996, plaintiff filed an
amended notice of appeal, removing the $30,000 judgment from her
appeal and only appealing the grant of summary judgment and the
directed verdict.
In her opening brief, plaintiff states that this court's
jurisdiction is based upon the timely appeal from two final orders
entered by the trial court pursuant to Supreme Court Rule 301.
Defendants do not challenge plaintiff's jurisdictional statement.
However, this court must initially determine sua sponte whether we
have jurisdiction to decide the issues presented. Beale v.
Edgemark Financial Corp., 279 Ill. App. 3d 242, 244, 664 N.E.2d 302
(1996). As this court has stated many times, "[j]urisdiction is
conferred upon this court only through the timely filing of a
notice of appeal. Thus, the requirement that the appellant file a
notice of appeal within the prescribed time is both jurisdictional
and mandatory." Foster v. Plant, 252 Ill. App. 3d 692, 697, 625 N.E.2d 198 (1993). Supreme Court Rule 303 governs the filing of
a notice of appeal, and provides,
"(1) Except as provided in paragraph (b)
below, the notice of appeal must be filed with
the clerk of the circuit court within 30 days
after the entry of the final judgment appealed
from, or, if a timely post-trial motion
directed against the judgment is filed,
whether in a jury or nonjury case, within 30
days after the entry of the order disposing of
the last pending post-judgment motion.
(2) When a timely post-judgment motion
has been filed by any party, whether in a jury
case or nonjury case, a notice of appeal filed
before entry of the order disposing of the
last pending post-judgment motion shall have
no effect and shall be withdrawn by the party
who filed it, by moving for dismissal pursuant
to Rule 309. This is so whether the timely
post-judgment motion was filed before or after
the date on which the notice of appeal was
filed. A new notice of appeal must be filed
within the prescribed time measured from the
entry of the order disposing of the post-
judgment motion, as provided in subparagraph
(a)(1) of this rule." 155 Ill. 2d R. 303.
By Rule 303's express language, if a notice of appeal is filed
before the disposition of a timely post-trial motion, that notice
is of no effect. It does not matter whether the notice was filed
before or after the post-trial motion.
In the present case, in order for defendants' post-trial
motion of July 3, 1996, to qualify as a "post-trial motion"
pursuant to Rule 303, it must be "directed against the judgment."
If defendants' post-trial motion was directed against the judgment,
then plaintiff's first notice of appeal, filed on July 1, 1996, was
premature and of no effect, and her amended notice of appeal, filed
on November 6, 1996, was untimely filed in excess of 30 days from
the disposition of defendants' post-trial motion and does not vest
this court with jurisdiction. If the post-trial motion is not
"directed against the judgment," then plaintiff's first notice of
appeal was timely and the amended notice was proper.
Whether a post-trial motion is one "directed against the
judgment" is determined by looking at the motion and determining if
it attacks the original judgment, or involves an independent
determination, "entirely distinct from [the] judgment previously
entered. Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458,
462, 563 N.E.2d 459 (1990). In Marsh, our supreme court held that
a section 2--611 request for attorney fees was not a motion to
modify the judgment or directed against the judgment (Marsh, 138
Ill. 2d at 462) because the motion did not seek a modification of
the original judgment that related to alleged zoning violations by
a church. See also, Servio v. Paul Roberts Auto Sales, Inc., 211
Ill. App. 3d 751, 757-58, 570 N.E.2d 662 (1991); Knapp v. City of
Decatur, 160 Ill. App. 3d 498, 503, 513 N.E.2d 534 (1987).
In the present case, defendants' motion sought a judgment
notwithstanding the verdict in favor of plaintiff for $30,000 or,
in the alternative, a new trial on their counterclaim seeking their
alleged contract damages from plaintiff's failure to pay the full
contract price of defendants' work. The trial court's granting of
defendants' motion regarding either plaintiff's claim or
defendants' counterclaim obviously would have resulted in modifying
its original judgment and, therefore, it is clear that defendants'
motion was "directed against the verdict." This is not a
situation, as in Marsh, where the trial court's decision on the
issue of attorney fees would have no bearing on the force or effect
of the original judgment related to zoning. Additionally, in
plaintiff's first notice of appeal here, plaintiff appealed from
not only the grant of summary judgment and the trial court's
directed verdict on her fraud counts, she also appealed the verdict
in her favor on her breach of contract count. Therefore,
defendants' post-trial motion directly challenged the judgment that
was also the basis for part of plaintiff's first notice of appeal.
We further note the present situation clearly illustrates the
rationale underlying Rule 303, requiring the parties to wait to
file an appeal until the disposition of all post-trial motions.
For example, had the trial court granted defendants' motion, then
plaintiff, pursuant to section 2--1202 of the Code of Civil
Procedure, would have had an additional 30 days to file her own
post-trial motion challenging the grant of defendants' post-trial
motion. See 735 ILCS 5/2--1202 (West 1996). This contingency is
exactly what Rule 303 is meant to prevent, i.e., a notice of appeal
is not timely until all motions are disposed of in a timely fashion
by the trial court. We therefore hold that plaintiff's notice of
appeal filed on July 1, 1996, was untimely and of no effect.
We next determine whether we have jurisdiction to consider
plaintiff's amended notice of appeal which she filed on November 6,
1996. On August 23, 1996, the trial court ruled that defendants'
post-trial motion for a judgment notwithstanding the verdict or, in
the alternative, a new trial, was "off call," thereby disposing of
the motions before it. Any appeal from the trial court's judgment
was required to be filed within 30 days of August 23, 1996, to
satisfy Rule 303. Since plaintiff's amended notice of appeal was
not filed until 75 days after the entry of the order disposing of
defendants' post-trial motion, the amended notice of appeal was
untimely and we lack jurisdiction to consider it.
We also find that the trial court's August 23, 1996, order
which merely ordered defendants' post-trial motion "off call"
without disposing of the motion on the merits, has no effect on the
timeliness of plaintiff's first notice of appeal. Rule 303 merely
provides that a valid post-judgment motion be filed. 155 Ill. 2d
R. 303. Once the motion is filed, any prior filing of a notice of
appeal is of no effect. For all practical purposes, it is as if
the notice of appeal never existed. 155 Ill. 2d R. 303. Rule 303
specifically mandates that "a notice of appeal filed before the
entry of the order disposing of the last pending post-judgment
motion shall have no effect and shall be withdrawn by the party who
filed it, by moving for dismissal pursuant to Rule 309." (Emphasis
added.) 155 Ill. 2d R. 303(a)(2). The rule does not require that
the order disposing of the last pending post-trial motion be
disposed of on its merits, and it requires that the prior notice of
appeal be withdrawn. The operative time for purposes of divesting
this court of jurisdiction, when a notice of appeal has previously
been filed, here July 1, 1996, is the filing of a post-trial
motion, here July 3, 1996. Once the post-trial motion was filed,
plaintiff's prior notice of appeal became ineffective.
Lastly, we consider defendants' notice of cross-appeal filed
on September 20, 1996. The last day to file an appeal was
September 23, 1996, which was 30 days from the entry of the trial
court's order taking defendants' post-trial motion off the call.
As such, even though defendants' are cross-appealing, the basis of
the appeal is independent of the basis of the plaintiff's flawed
appeal, and was timely filed. Defendants appeal from three orders
of the trial court. Defendants state that the first order was
entered May 30, 1996, denying their motion for a directed verdict.
However, a review of the record reveals no such motion on May 30,
1996, and the trial court's half sheets show no such motion on that
date. The second order, entered on June 3, 1996, denied
defendants' motion for a directed verdict as to plaintiff's breach
of contract count. The third, entered on August 23, 1996, ordered
defendants' post-trial motion off-call.
Supreme Court Rule 343(b)(i) (155 Ill. 2d R. 343(b)(i))
states, in relevant part, that "[a] cross appellant shall file a
single brief as appellee and cross appellant at the time his brief
as appellee is due." Supreme Court Rule 341 requires an appellant,
or in this case a cross-appellant, to provide citations to relevant
authority supporting arguments advanced on appeal. Weidner v.
Szostek, 245 Ill. App. 3d 487, 494, 614 N.E.2d 879 (1993). In the
present case, defendants' brief only contains arguments in response
to plaintiff's brief; defendants' failed to make any argument, or,
consequently, cite to authority regarding the issues raised in
their cross-appeal relative to the three orders set forth in their
notice of appeal. "A reviewing court is entitled to have issues
clearly defined with pertinent authority cited and coherent
arguments presented; arguments inadequately presented on appeal are
waived." Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991). We
therefore dismiss defendants' cross-appeal based on their failure
to comply with Supreme Court Rules 341 and 343. See People v.
Kraft, 277 Il. App. 3d 221, 660 N.E.2d 114 (1995).
For the reasons stated, we dismiss plaintiff's appeal for lack
of jurisdiction, and defendants' cross-appeal for failure to comply
with Supreme Court Rules.
Appeal No. 1--96--2344, dismissed.
Appeal No. 1--96--3712, dismissed.
CAHILL, P.J., and LEAVITT, J., concur.