Andersen v. Resource Economics Corp.

• Decision Date: 17 January 1990
• Docket Number: No. 68113,68113
• Citation: Andersen v. Resource Economics Corp., 549 N.E.2d 1262, 133 Ill.2d 342, 140 Ill.Dec. 390 (Ill. 1990)
• Parties: , 140 Ill.Dec. 390 Robert A. ANDERSEN, Appellee, v. RESOURCE ECONOMICS CORPORATION et al., Appellants.
• Court: Illinois Supreme Court

Page 1262

549 N.E.2d 1262

133 Ill.2d 342, 140 Ill.Dec. 390

Robert A. ANDERSEN, Appellee, v. RESOURCE ECONOMICS CORPORATION et al., Appellants.

No. 68113.

Supreme Court of Illinois.

Jan. 17, 1990.

Greenberg, Keele, Lunn & Aronberg, Chicago (Mitchell S. Goldgehn, Nathan H. Lichtenstein and Halbert O. Crews, of counsel), for appellants.

Robert G. Peterson & Associates, Chicago (Robert G. Peterson and Michael R. Alberts, of counsel), for appellee.

Justice CALVO delivered the opinion of the court:

Plaintiff, Robert Andersen, brought an action against the defendants, Resource Economics Corporation, Thompson Adams and Donald Pollard. Ultimately, the circuit court granted defendants' motion to dismiss plaintiff's second amended complaint and denied plaintiff's motion for leave to file a third amended complaint. Plaintiff sought review in the appellate court and therein obtained a reversal. (177 Ill.App.3d 358, 126 Ill.Dec. 665, 532 N.E.2d 350.) We granted leave to appeal pursuant to our Rule 315 (107 Ill.2d R. 315).

Plaintiff filed a complaint in the circuit court of Cook County on June 17, 1982, alleging common law fraud and seeking compensatory and punitive damages, as well as an accounting and injunctive relief. The cause was ordered dismissed on April 6, 1983, for want of prosecution. On April 19, 1983, plaintiff moved to vacate the dismissal, and, on May 13, 1983, the order of dismissal was vacated. Defendants moved to dismiss plaintiff's complaint for failure to state a cause of action. The motion was granted on December 19, 1983; plaintiff was given leave to file an amended complaint. Plaintiff's first amended complaint was filed January 17, 1984. On February 14, 1984, defendants moved to dismiss for failure to state a cause of action. Prior to a ruling on defendants' motion, the cause was again dismissed for want of prosecution on March 27, 1984. Pursuant to plaintiff's April 12 motion to vacate, the court reinstated the cause as of May 4, 1984. On July 18, 1984, plaintiff's first amended complaint was dismissed for failure to state a cause of action. Plaintiff was given leave to amend within 28 days.

On August 30, 1984, plaintiff moved for leave to file his second amended complaint instanter. The motion was granted on October 10, 1984, over defendants' objection. Defendants, on November 8, 1984, again moved to dismiss for failure to state a cause of action, and, on March 28, 1985, the second amended complaint was dismissed without costs to either party.

At 12:17 p.m. on April 26, 1985, plaintiff filed, in the circuit court, a notice of appeal by which he sought reversal of the circuit court's order of dismissal and reinstatement of his second amended complaint. Subsequently, at 4:23 p.m. that same day, plaintiff filed a motion for leave to file a third amended complaint. In his motion, plaintiff stated his intention to plead "further allegations, new and distinct from the prior allegations," which would "state a theory substantively different from the prior allegations" and "cure any defect in the Second Amended Complaint." The motion alleged that the facts underlying the "new and distinct" allegations were previously "unknown to plaintiff's attorney."

On June 23, 1985, plaintiff moved to dismiss his appeal pursuant to Supreme Court Rules 309 and 303(a)(2) (107 Ill.2d Rules 303(a)(2), 309), claiming that his motion for leave to file a third amended complaint was "in the nature of a post-trial Motion." The circuit court, on July 23, 1985, ordered plaintiff's notice of appeal "withdrawn and dismissed." Noting in its order plaintiff's filing of a "pleading" entitled "Motion for Leave to File Third Amended Complaint" and defendants' objection to treating the pleading as a post-trial motion, the court ordered briefs and set the matter for hearing.

Plaintiff's motion was "denied" on October 8, 1985. In announcing its ruling, the court recounted the events of July 23--the day plaintiff's notice of appeal was withdrawn. The court noted that both defense counsel and the court had cautioned plaintiff with regard to his motion to dismiss his appeal and defense counsel had actually advised plaintiff that "such action would effectively end the dispute because no valid post-trial motion" had been filed. Nevertheless, plaintiff insisted upon dismissing his appeal. The circuit court held dismissal of the appeal did indeed terminate the action because plaintiff's motion for leave to file a third amended complaint was not a valid post-trial motion and the court, in any event, was "without jurisdiction to receive such a filing" since "jurisdiction had been vested in the Appellate Court." Furthermore, the court observed that it would have denied plaintiff's motion on the merits even absent the jurisdictional deficiencies because, contrary to plaintiff's representations otherwise, the proposed third amended complaint contained no new facts and did not cure the deficiencies of the prior complaint. Moreover, plaintiff offered no explanation why the "new facts" could not have been discovered and incorporated in any one of the three prior complaints. Plaintiff, on November 6, 1985, filed a notice of appeal, purporting to appeal from the circuit court's March 28 and October 8 orders.

The pivotal issue before the appellate court was whether plaintiff's motion to file a third amended complaint could be considered a valid post-judgment motion. If so, it and plaintiff's November 6 notice of appeal were timely filed and the circuit court had the authority to rule on the merits of plaintiff's motion. If not, plaintiff's appeal had to be dismissed for failure to file a notice of appeal within the time limitations of Rule 303(a)(1) (107 Ill.2d R. 303(a)(1)).

The appellate court concluded that plaintiff's motion for leave to file a third amended complaint qualified as a post-trial motion. (177 Ill.App.3d at 363-64, 126 Ill.Dec. 665, 532 N.E.2d 350.) In its opinion, the appellate court relied heavily upon language in the prayer for relief of plaintiff's motion for leave to amend wherein he requested "relief from [the circuit] court's order of March 28, 1985," and upon plaintiff's characterization of his motion to amend as a "post-trial motion" when he moved to dismiss his first appeal. (177 Ill.App.3d at 360-63, 126 Ill.Dec. 665, 532 N.E.2d 350.) The appellate court held that it had jurisdiction to hear plaintiff's appeal, reversed the circuit court and remanded the cause "for further proceedings consistent with the views expressed" in the opinion. (177 Ill.App.3d at 364, 126 Ill.Dec. 665, 532 N.E.2d 350.) It is not entirely clear what the appellate court expected the circuit court to do on remand. The appellate court stated that "plaintiff's motion for leave to amend should have been liberally construed to permit defects in plaintiff's complaint to be cured" (177 Ill.App.3d at 364, 126 Ill.Dec. 665, 532 N.E.2d 350); however, the circuit court had already afforded plaintiff ample opportunity to state a cause of action and had, in fact, examined the third amended complaint and found it wanting. The appellate court expressed no opinion as to the sufficiency of either plaintiff's second or third amended complaint.

We vacate the judgment of the appellate court. As the circuit court held, plaintiff's motion for leave to amend was not a valid post-judgment motion cognizable by that court or capable of extending the time for filing a notice of appeal under our Rule 303(a)(1) (107 Ill.2d R. 303(a)(1)). Moreover, even if we were to assume, arguendo, the motion was a "post-judgment" motion, the circuit court did not abuse its discretion in denying it where, as here, plaintiff had failed to state a cause of action in three attempts, resulting in dismissal with prejudice, thereafter moved to amend again on April 26, 1985, without attaching the proposed complaint to his motion or demonstrating to the court how he could cure prior defects (see Old Salem Chautauqua...