Benet Realty Corp., Inc. v. Lisle Sav. and Loan Ass'n

• Decision Date: 15 September 1988
• Docket Number: No. 2-87-1175,2-87-1175
• Citation: 175 Ill.App.3d 227,529 N.E.2d 718
• Court: United States Appellate Court of Illinois
• Parties: , 124 Ill.Dec. 737 BENET REALTY CORPORATION, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. LISLE SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant and Cross-Appellee.

Page 718

529 N.E.2d 718

175 Ill.App.3d 227, 124 Ill.Dec. 737

BENET REALTY CORPORATION, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. LISLE SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant and Cross-Appellee.

No. 2-87-1175.

Appellate Court of Illinois Second District.

Sept. 15, 1988.

Rehearing Denied Nov. 3, 1988.

Altheimer & Gray, David O. Toolan, Chicago, Schenk, Duffy, Quinn, McNamara, Phelan, Carey & Ford, Joseph E. Duffy, Joliet, for Lisle Sav. & Loan Assoc.

Donovan & Roberts, P.C., Keith E. Roberts, Sr., Robert R. Verchota, Rodney W. Equi, Wheaton, for Benet Realty Corp., Inc., and Frank Blanek.

Presiding Justice LINDBERG delivered the opinion of the court:

On September 25, 1987, after a bench trial, the circuit court of Du Page County entered judgment on both plaintiffs' and defendant's claims which arose out of the disputed performance of a construction loan agreement. On October 19, 1987, defendant, Lisle Savings and Loan Association, presented a post-judgment motion which was denied by the trial court on the same day. On October 22, 1987, defendant filed another post-judgment motion which was denied on November 9, 1987. Defendant filed its notice of appeal on December 8, 1987, and plaintiffs filed their notice of cross-appeal on December 18, 1987.

Before we address the merits of the appeal and cross-appeal, we must first address the question of whether we have jurisdiction to hear the appeals. (107 Ill.2d R. 303; Cronin v. Altman (1981), 101 Ill.App.3d 432, 57 Ill.Dec. 36, 428 N.E.2d 586 (filing of timely notice of appeal is jurisdictional and appellant's failure to timely file requires dismissal of appeal for lack of jurisdiction); Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 83 Ill.Dec. 332, 470 N.E.2d 290 (appellate court has a duty to consider its jurisdiction and to dismiss the appeal if it determines that jurisdiction is wanting).) Plaintiffs have filed a motion in this court arguing that defendant's notice of appeal is untimely and must be dismissed. Plaintiffs' motion presents the following issue: Where a post-judgment motion attacking the final judgment of the trial court is heard and denied within 30 days of the trial court's final judgment, does a second post-judgment motion, attacking the final judgment, filed within 30 days of the trial court's final judgment, but after denial of the first post-judgment motion, toll the time requirements for filing a notice of appeal?

It is well established that a post-judgment motion under section 2-1203 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1203) is a post-trial motion "directed against the judgment" and that such a motion if timely filed will toll the time for filing a notice of appeal pursuant to Supreme Court Rule 303(a)(1) (107 Ill.2d R. 303(a)(1)). (See Fultz v. Haugan (1971), 49 Ill.2d 131, 135, 305 N.E.2d 873, 876.) Further, it also is well established that the filing of a "successive" post-trial motion (motion which merely repeats what was set forth or could have been set forth in the preceding motion) under section 2-1203, filed within 30 days of the denial of the previous motion, does not extend the time in which to file a notice of appeal under Rule 303 (107 Ill.2d R. 303). (Sears v. Sears (1981), 85 Ill.2d 253, 52 Ill.Dec. 608, 422 N.E.2d 610; Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900 (reaffirmed in Sears ).) Under such circumstances, a party wishing to appeal the trial court's final judgment must file a notice of appeal within 30 days of the denial of the first post-trial motion attacking the judgment. (107 Ill.2d R. 303; Sears v. Sears (1981), 85 Ill.2d 253, 52 Ill.Dec. 608, 422 N.E.2d 610.) However, a close reading of the court's decision in Sears clearly shows that the court did not specifically address the situation presented in the instant case. In Sears, as in all but one of the cases which has applied the rule announced in Sears, the second post-trial motion attacking the final judgment was filed within 30 days of the denial of the prior post-trial motion but more than 30 days after entry of the final judgment being attacked by the post-trial motion. Under that fact situation the court in Sears stated:

"A second post-judgment motion (at least if filed more than 30 days after judgment ) is not authorized by either the Civil Practice Act or the rules of this court and must be denied". (Emphasis added.) (Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 610, 422 N.E.2d 610, 612.)

The court in Sears reaffirmed its prior holding in Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900, that such a motion was not "timely" as that word is used in Rule 303(a) (107 Ill.2d R. 303(a)) and, therefore, did not extend the time for appeal. (Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 610, 422 N.E.2d 610, 612.) The court's statement in Sears, tending to limit its holding to a second post-trial motion filed after 30 days from the final judgment, must have been made in reference to the 30-day time limit on motions after judgments in nonjury cases. (See Ill.Rev.Stat.1987, ch. 110, par. 2-1203 (formerly Ill.Rev.Stat.1979, ch. 110, par. 68.3).) Section 2-1203 of the Code of Civil Procedure provides in relevant part:

"(a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 110, par. 2-1203.)

The instant case presents the question of whether a second section 2-1203 motion filed within 30 days of the final judgment is "timely" as that word is used in Supreme Court Rule 303(a). To answer this question, we must look to the rationale of the court's decision in Sears.

The Sears court based its holding on the interests of finality of litigation at the trial court level and certainty and ease of administration in determining when the time for appeal begins to run. (Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 611, 422 N.E.2d 610, 613.) The court in Sears stated:

"There is no provision in the Civil Practice Act or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit--at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts--and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on a judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing next month." (Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 610-11, 422 N.E.2d 610, 612-13.)

We believe that the rationale of Sears would be served by applying the rule in Sears to the facts of the instant case. Therefore, we hold that the filing of a second post-judgment motion, attacking the final judgment, filed after denial of the first post-judgment motion but within 30 days of the final judgment, which only repeats arguments or raises arguments that could have been raised in the first motion, is not a "timely" post-trial motion as that word is used in Rule 303(a). The second post-judgment motion by the same party cannot serve to extend the time for filing a notice of appeal.

We have found one case which has applied the holding in Sears with facts similar to those of the instant case. (See Cronin v. Altman (1981), 101 Ill.App.3d 432, 57 Ill.Dec. 36, 428 N.E.2d 586.) In Cronin, the trial court on January 23, 1980, dismissed the plaintiffs' complaint with prejudice pursuant to Supreme Court Rule 219(c) (107 Ill.2d R. 219(c)) for failure to answer interrogatories and entered a finding of no just reason to delay enforcement or appeal. On February 4, 1980, plaintiffs filed a motion to vacate the dismissal stating that their attorney entered the wrong date on his calendar and missed the hearing and, further, that they had a meritorious cause of action. This motion was denied, and on February 22, 1980, the plaintiffs filed a second motion to vacate their dismissal stating that they were unable to locate two of their witnesses so as to prepare answers to the interrogatories and that plaintiffs had a meritorious cause of action. This second motion to vacate was filed within 30 days of the judgment dismissing the complaint with prejudice but after denial of plaintiffs' first motion to vacate. The court in Cronin held that section 2-1203 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1203) "envisions the filing of only a single post-trial motion," and that "[u]nless the second motion filed after the denial of the initial motion conforms to the requirements of section 72 [now Ill.Rev.Stat.1987, ch. 110, par. 2-1401] and presents new matters that render the judgment improper (which matters could not have been included in the initial motion), the second motion is a nullity and has no effect on the notice of appeal deadline." (Emphasis in original.) (Cronin v. Altman (1981), 101 Ill.App.3d 432, 434, 57 Ill.Dec. 36, 38, 428 N.E.2d 586, 588.) The court in Cronin dismissed the appeal for lack of jurisdiction since plaintiffs failed to appeal within 30 days of the trial court's denial of their first motion to vacate. Cronin v. Altman (1981), 101 Ill.App.3d 432, 57 Ill.Dec. 36, 428 N.E.2d 586. But see Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill.App.3d 888, 41 Ill.Dec. 885, 408 N.E.2d 307 (...