384 F.3d 917 (7th Cir. 2004), 02-3709, Properties Unlimited, Inc. Realtors v. Cendant Mobility Services

Docket Nº:02-3709, 03-1488.
Citation:384 F.3d 917
Party Name:PROPERTIES UNLIMITED, INC. REALTORS, Plaintiff-Appellant, Cross-Appellee, v. CENDANT MOBILITY SERVICES, et al., Defendants-Appellees, Cross-Appellants.
Case Date:October 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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384 F.3d 917 (7th Cir. 2004)

PROPERTIES UNLIMITED, INC. REALTORS, Plaintiff-Appellant, Cross-Appellee,


CENDANT MOBILITY SERVICES, et al., Defendants-Appellees, Cross-Appellants.

Nos. 02-3709, 03-1488.

United States Court of Appeals, Seventh Circuit

October 7, 2004

Argued Sept. 8, 2003.

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Carmen D. Caruso (argued), Schwartz, Cooper, Greenberger & Krauss, Chicago, IL, for Plaintiff-Appellant.

Paula J. Morency (argued), Neil Lloyd, Schiff, Hardin & Waite, Chicago, IL, for Defendants-Appellees.

Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Properties Unlimited (Properties) is an Illinois real estate brokerage firm that participated for a number of years as a franchisee of Coldwell Banker Real Estate Corporation (Coldwell), a large national firm. Through that connection, Properties was also able to participate in the Coldwell Relocation Plan, which was a lucrative source of referrals from Coldwell itself and from other Coldwell franchisees. This suit arose after Properties renewed its franchise agreement with Coldwell in 1995 for another seven years, expecting more or less the same level of referrals. In 1996, however, a predecessor of Cendant Corporation, one of the defendants here, acquired the franchisor of the Coldwell Banker network and decided to phase out the Coldwell Relocation plan and to replace it with a new plan dubbed the Cendant Mobility Program. In order to do so, Properties alleges, Cendant made certain representations to the Coldwell franchisees, including Properties, essentially promising that these changes would be beneficial overall. When Properties realized that this was not going to be the case, it brought this lawsuit under the diversity jurisdiction, asserting claims based on common law fraud, the Illinois Consumer Fraud and Deceptive Practices Act, and breach of contract.

The proceedings in the district court turned into a procedural snarl, but at the end of the day, Properties was unsuccessful. Properties is now trying to appeal from the district court's orders dismissing all claims, but it must first convince us that this appeal is timely before we can reach the merits. That finding is possible only if we conclude that the district court's efforts to vacate its original judgment and later to re-enter judgment on September 25, 2002, had the effect of postponing the time to appeal. Cendant has cross-appealed from

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a later order of February 19, 2003, purporting to clarify everything. While we realize that matters became quite confused for a time, in the final analysis it is clear that Properties failed to file a timely appeal. We therefore dismiss the principal appeal as untimely; this in turn moots Cendant's timely cross-appeal from the Rule 60(b) order.


Properties, an Illinois corporation with its principal place of business in Illinois, filed this lawsuit against Cendant Mobility Services and Cendant Corporation, both Delaware corporations with their principal places of business outside of Illinois, on October 31, 2001. After preliminary proceedings, the defendants filed a motion to dismiss for failure to state a claim, under Rule 12(b) (6). On May 24, 2002, the district court entered a Minute Order, accompanied by a Memorandum Opinion, granting the defendants' motion and dismissing with prejudice Counts I, II, and III of the complaint. The Order went on to say that "[s]ince plaintiff has voluntarily dismissed Count IV, plaintiff's complaint is dismissed." This order was entered on the court's docket on May 28, 2002. Unfortunately, however, no formal judgment form reflecting this fact was prepared, nor does the docket sheet show a separate entry for the judgment.

On June 13, 2002, more than ten days after the order was docketed (as...

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