Bissett v. Gooch

• Decision Date: 29 August 1980
• Docket Number: No. 73-192,No. 79-292,D,73-192,79-292
• Citation: 87 Ill.App.3d 1132,42 Ill.Dec. 900,409 N.E.2d 515
• Parties: , 42 Ill.Dec. 900 Alexander F. BISSETT and Gayle K. Bissett, Plaintiffs-Appellants, v. Thomas W. GOOCH, Eloise L. Gooch, and Wheeling Trust and Savings Bank, as Trustee under Trustefendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 515

409 N.E.2d 515

87 Ill.App.3d 1132, 42 Ill.Dec. 900

Alexander F. BISSETT and Gayle K. Bissett, Plaintiffs-Appellants, v. Thomas W. GOOCH, Eloise L. Gooch, and Wheeling Trust and Savings Bank, as Trustee under Trust No. 73-192 Defendants-Appellees.

No. 79-292.

Appellate Court of Illinois, Second District.

Aug. 29, 1980.

Kearney & Phelan, Ltd., E. William Maloney, Jr., and John P. Kearney, Chicago, for plaintiffs-appellants.

Thomas L. Ruth, Jr., Barrington, for defendants-appellees.

NASH, Justice:

Plaintiffs, Alexander F. Bissett and Gayle K. Bissett, appeal from judgments of the trial court directing verdicts in favor of defendants, Thomas W. Gooch, Eloise L. Gooch and the Wheeling Trust and Savings Bank, as trustee, and also denying plaintiffs' prayer for specific performance.

This action was brought by plaintiffs seeking specific performance and damages for breach of contract against both Thomas Gooch and his mother Eloise Gooch and also damages allegedly caused by his fraudulent representations against Thomas Gooch alone. The bank was joined as legal title holder of the premises which are the subject of the dispute between the parties. At the close of all the evidence the trial court directed verdicts in favor of defendants Eloise Gooch and the trustee bank on all counts of the complaint, in favor of Thomas Gooch as to count for fraud and it also denied specific performance. The issues as they relate to breach of contract by defendant Thomas Gooch were then submitted to the jury which found in favor of plaintiffs and fixed their damages at $61,300.

The trial court subsequently granted Thomas Gooch a new trial of the breach of contract issues because of error in the instructions to the jury. Plaintiffs thereafter sought leave to appeal to this court from that order and it was denied. Plaintiffs now seek to appeal solely from the judgments denying specific performance against all three defendants and the recovery of damages for fraud against defendant Thomas Gooch.

We consider first defendants' motion to dismiss this appeal for failure of plaintiffs to file a timely notice of appeal. The chronology of events relevant to this issue are as follows:

December 7 and 8, 1978 - The trial court directed verdicts in favor of defendants at the close of all the evidence as to the fraud counts of the complaint, denied specific performance and entered judgments to that effect. The remaining issue of damages for breach of contract was submitted to the jury.

December 13, 1978 - Judgment was entered in favor of plaintiffs on the verdict of the jury against defendant Thomas Gooch for breach of contract.

December 19, 1978 - Thomas Gooch filed a posttrial motion for a new trial as to the breach of contract judgment entered against him and on,

January 25, 1979 - Thomas Gooch's motion for a new trial was granted and in its order doing so the trial court found there was no just reason for delaying enforcement or appeal of its orders vacating the judgment in favor of plaintiff for breach of contract and the judgments earlier entered in favor of defendant under the fraud and specific performance counts. (See Ill.Rev.Stat. 1977, ch. 110A, par. 304(a).)

February 20, 1979 - Plaintiffs filed a petition for reconsideration and modification of the order entered January 25, 1979, which had granted defendants a new trial of the breach of contract issue, and requested that the court "modify the order of January 25, 1979, granting a new trial on all issues presented at the original trial."

April 26, 1979 - The trial court entered an order granting plaintiffs' February 20, 1979 petition.

May 8, 1979 - On defendants' petition to clarify or vacate the April 26 order the trial court entered a further order that (1) "* * * plaintiffs' petition for a new trial on the directed verdicts on the fraud count and specific performance count be and the same is hereby denied"; (2) "* * * that plaintiff has leave to appeal all issues in this case, regarding fraud and specific performance" and, (3) "there is no just cause or reason to delay the enforcement or appeal of this order."

June 6, 1979 - Plaintiffs filed their notice of appeal from the judgments entered December 7 and 8, 1978, in favor of defendants on the fraud count and which denied specific performance of plaintiffs.

Supreme Court Rule 303(a) (Ill.Rev.Stat. 1977, ch. 110A, par. 303(a)), requires that a notice of appeal be filed within 30 days of the entry of the final judgment from which an appeal is sought to be taken or, if a timely post-motion is filed, within 30 days after the order disposing of the motion. (See also Ill.Rev.Stat. 1977, ch. 110, pars. 68.1(3) and 68.3(1).) Supreme Court Rule 304(a) (Ill.Rev.Stat. 1977, ch. 110A, par. 304(a)) defines what are final judgments in cases such as this where there are multiple parties or claims for relief, as follows:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." Ill.Rev.Stat. 1977, ch. 110A, par. 304(a).

Here judgments were entered on the fraud and specific performance counts of the complaint on December 7 and 8, 1978, leaving the breach of contract issue to be resolved by the jury. As the trial court did not make the finding that there was no just reason to delay enforcement or appeal of those issues they were not yet final and appealable orders. On December 13, 1978, however, the remaining contract issue was resolved by judgment, and the 30-day period within which a notice of appeal must be filed commenced to run. It was interrupted, however, by the motion for a new trial by defendant Thomas Gooch directed to the breach of contract count which had the effect of extending the time for filing a notice of appeal and continuing the jurisdiction of the trial court over the case for 30 days after the entry of the order of January 25, 1979, disposing of that motion. (City of DeKalb v. Anderson (1974), 22 Ill.App.3d 40, 43, 316 N.E.2d 653, 656.) It has been held that a trial court retains jurisdiction over an entire case even when the grant of a new trial involves only one of several parties or claims involved in it, but that such result can be avoided if the trial judge makes a finding there is no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule 304(a) (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill.App.3d 625, 15 Ill.Dec. 70, 373 N.E.2d 416); the trial judge did make that finding in the present case as to the fraud and specific performance issues in its order of January 25.

On February 20th, however, plaintiffs filed a timely post-trial motion directed to the order of January 25, 1979. (Ill.Rev.Stat. 1977, ch. 110, par. 68.1(3)), in which they sought a new trial of all issues in the case rather than a trial limited only to the contract matters. The trial court initially agreed and by its April 5th order granted plaintiffs' motion. It entered a modified order on May 8th, however, in which it denied plaintiffs a new trial of the fraud and specific performance counts and again found "there was no just cause or reason to delay enforcement or appeal of this order." Plaintiffs perfected their appeal of those issues by filing notice thereof on June 6, 1979.

The failure to file a timely post-trial motion deprives a trial court of jurisdiction to entertain it just as failure to file a timely notice of appeal deprives the appellate court of jurisdiction to consider the appeal. (Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill.App.3d 719, 724, 12 Ill.Dec. 332, 335, 369 N.E.2d 1346, 1349.) We conclude in this case, however, that by virtue of the series of post-trial motions by the parties and the orders entered on them that the judgments relating to the fraud and specific performance counts were not final or appealable until May 8, 1979, and this appeal was taken in apt time thereafter. See Morton Buildings, Inc. v. Witvoet (1979), 70 Ill.App.3d 55, 26 Ill.Dec. 634, 388 N.E.2d 258; cf. Jurgens v. Eads (1978), 67 Ill.App.3d 52, 23 Ill.Dec. 132, 383 N.E.2d 1003; Stotlar v. Stotlar (1977), 50 Ill.App.3d 790, 794, 8 Ill.Dec. 711, 365 N.E.2d 1097, 1100.

We then reach the merits of this appeal and consider whether the trial court erred in directing verdicts in favors of defendants which denied recovery of damages for fraud against Thomas Gooch and specific performance of the construction contract against all three defendants.

Plaintiffs and defendant Thomas Gooch entered into a written contract on May 9, 1977, under which plaintiffs agreed to purchase a two-acre tract of land upon which a single-family residence was to be constructed by Gooch for the total price of $128,700. The owner of the land was described in the contract as being Land Trust # 74-192 at Wheeling Bank & Trust Company and Gooch was there described as the sole beneficiary of the trust. In addition, Gooch specifically warranted in the contract that he was the sole beneficiary with power of direction over the trustee which held title to the property. The contract provided that construction was to be completed and closing and possession of the premises by plaintiffs was to occur not later than September 1, 1977. A...