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 these things are counted under Rule 6(a)), Properties filed a motion for reconsideration of the May 24 order. Five days later, on June 18, it followed up with an emergency motion under Rule 60(b) (1) for relief from the May 24 order or for an extension of time to file a notice of appeal under FED. R. APP. P. 4(a) (5). It did so notwithstanding the fact that the 30-day period for appeal provided by Appellate Rule 4(a) (1) was not due to expire until June 27. Apparently, Properties was concerned that the district court would not have enough time to ponder its motion for reconsideration before the time for appeal expired. On June 19, the district court granted the Rule 4(a) (5) motion, extending the time for appeal until July 26, 2002; at the same time, it denied the Rule 60(b) (1) motion as moot. It explained that it was extending the time for appeal to give itself an opportunity to rule on the motion to reconsider.

On July 24, 2002, the district court was still not ready to rule on the merits of the motion to reconsider. At that point, it took the unusual step of ordering that the ruling of May 24 dismissing the case "struck." It made that decision in chambers, and there is no transcript of what was said. In a later order, however, the court stated that "we were convinced that the motion for reconsideration merited careful consideration and, if we were to change our views, it made no sense to burden the Court of Appeals with an unnecessary appeal. Accordingly, at a time when an appeal was still timely, it was our intention to vacate any appealable order and to postpone any appeal until the ruling upon the motion for reconsideration determined whether the dismissal would stand." In the end, the delays did Properties little good. On September 25, 2002, the district court denied its motion to reconsider and its request for leave to amend. That order reads, "We adhere to our original conclusion and deny the motion to reconsider." It said nothing about reinstating the order of May 24, 2002. On October 15, 2002, Properties filed its notice of appeal from the September 25 order.

Cendant contested jurisdiction in this court on the ground that the July 24 order had indeed stricken the May 24 order, but that the July order had done nothing about the judgment entered on the docket on May 28. Properties responded with a new motion under FED. R. CIV. P. 60(b) and FED. R. APP. P...

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