Dalen v. Ozite Corp.

• Decision Date: 12 June 1992
• Docket Number: No. 2-91-1018,2-91-1018
• Citation: 171 Ill.Dec. 845,230 Ill.App.3d 18,594 N.E.2d 1365
• Parties: , 171 Ill.Dec. 845 Mark G. DALEN, Plaintiff-Appellee, v. OZITE CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1365

594 N.E.2d 1365

230 Ill.App.3d 18, 171 Ill.Dec. 845

Mark G. DALEN, Plaintiff-Appellee, v. OZITE CORPORATION, Defendant-Appellant.

No. 2-91-1018.

Appellate Court of Illinois Second District.

June 12, 1992.

[230 Ill.App.3d 20] [171 Ill.Dec. 846] Scott E. Tuckman (argued), Kwiatt & Silverman, Ltd., Chicago, for Ozite Corp.

Kenneth T. Kubiesa, Barbara J. Gosselar, Kubiesa & Power, Ltd., Westmont, for Mark G. Dalen.

Presiding Justice INGLIS delivered the opinion of the court:

Ozite Corporation, defendant, appeals after the trial court granted Mark G. Dalen's, plaintiff's, motion for summary judgment. Dalen's complaint sought judgment for payment of principal and interest owed on two 9.25% subordinated notes executed by Ozite Corporation (Ozite) in favor of Dalen. The trial court entered summary judgment in favor of Dalen on June 26, 1992, in the amount of $182,035.54 plus costs of suit.

Ozite raised six errors on appeal, which we consolidate into four issues: (1) whether the trial court erred by not granting Ozite's motion to dismiss filed pursuant to section 2-619(a)(3) of the Civil Practice Law (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(3)) and by later denying Ozite's motion to reconsider; (2) whether the trial court erred by denying Ozite's motion for leave to file a counterclaim and a second affirmative defense; (3) whether the trial court erred by finding that Ozite had waived the attorney-client privilege with respect to a memorandum drafted by Ozite's attorney and ordering that Ozite produce the memorandum to Dalen; and (4) whether the trial court erred by concluding that the terms of the notes unambiguously supported Dalen's claim and subsequently entering summary judgment for Dalen. Dalen urges this court to affirm the trial court and argues that none of the errors alleged by Ozite have merit. Dalen has also submitted a motion with this court to strike parts of Ozite's brief which, along with Ozite's response, we ordered to be taken with the case. We grant Dalen's motion and affirm.

On March 2, 1990, Dalen filed a complaint in Du Page County circuit court seeking judgment for payment of principal and interest owed on two 9.25% subordinated notes executed on February 17, 1987, and April 1, 1987, by Ozite in favor of Dalen. Under the terms of the notes, Dalen was to be paid semiannual interest, and payment of the principal and any unpaid interest was due on each note on March 17, 1989.

Ozite filed a motion to dismiss pursuant to section 2-619(a)(3) of the Civil Practice Law (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(3)) on April 17, 1990. Ozite argued that the instant cause should be dismissed because of a similar consolidated cause pending in Cook County. The trial court denied Ozite's motion to dismiss on June 11, 1990. Ozite also filed a "Motion to Dismiss Complaint for Non-Payment of Note" on July 2, 1990. On August 9, 1990, the trial court denied Ozite's second motion to dismiss and denied Ozite's motion to reconsider.

Ozite filed an "Answer to Complaint and Affirmative Defenses" on August 24, 1990, in which Ozite argued that no payment was due on the notes because of the existence of senior indebtedness, to which Dalen's right to payment was subordinate.

On December 12, 1990, Dalen requested production of certain documents by Ozite. On March 5, 1991, after Ozite had not complied with the request, Dalen filed a motion to compel production. Ozite agreed to produce the requested documents within one week, and the trial court so ordered. Ozite then filed objections to Dalen's requests. On March 13, 1991, the trial court ordered Ozite to produce the requested documents within two weeks. Thereafter on April 15, 1991, Ozite provided Dalen's attorney with the opportunity to review all of its files at Ozite's offices in Libertyville. In the course of doing so, Dalen's attorney was allowed to examine a four-page memorandum dated February 1, 1991, which was written by one of Ozite's attorneys. The memorandum discussed certain litigation in Maryland which was based on notes similar to those at issue in the instant case. Sometime after Dalen's attorney had examined the document, Ozite's attorney objected to his receiving a copy. The memorandum outlined the limitations of Ozite's defenses and the attorney's opinion as to the proper and likely interpretation of the notes. Following a dispute by the parties as to whether the document was privileged and, if so, whether any privilege had been waived, the trial court held on May 9, 1991, that Ozite had waived the attorney-client privilege as to the document and ordered Ozite to produce the memorandum to Dalen's attorney.

On March 13, 1991, Ozite filed a "Motion for Leave to File Counterclaim and Second Affirmative Defense." In that motion, Ozite requested that any amount claimed by Dalen to be owed by Ozite be set off against the amount owed, if any, by Dalen to Ozite. The motion recited the same allegations which Ozite asserted in the Cook County litigation between Ozite and Dalen. On April 25, 1991, the trial court denied Ozite's motion.

On June 26, 1991, the trial court heard argument on Dalen's motion for summary judgment and Ozite's cross-motion for summary judgment. The trial court determined that the provisions of the notes were clear and unambiguous, that it required no extrinsic evidence to construe the intent of the parties, and that the notes required Ozite to pay Dalen unless Ozite was engaged in insolvency proceedings. Judgment in favor of Dalen was entered on June 26, 1991, in the amount of $182,035.54 plus costs of suit. The trial court denied Ozite's cross-motion for summary judgment. Ozite filed this timely appeal.

DALEN'S MOTION TO STRIKE PARTS OF OZITE'S BRIEF

We first address Dalen's motion to strike certain sections of Ozite's brief. Dalen argues that this court lacks jurisdiction to entertain Ozite's appeal from three of the orders entered by the trial court because Ozite's notice of appeal refers only to the June 26, 1991, order which granted summary judgment to Dalen. Dalen urges this court to conclude that we have no jurisdiction to review the June 11, 1990, order which denied Ozite's section 2-619(a)(3) motion to dismiss; the August 9, 1990, order which denied Ozite's motion to reconsider and Ozite's second motion to dismiss; and the April 25, 1991, order which denied Ozite's motion for leave to file a counterclaim and a second affirmative defense. Dalen argues that only two orders are reviewable by this court: the June 26, 1991, order which granted summary judgment to Dalen and denied Ozite's motion for cross-summary judgment and which Ozite specifically noted in its notice of appeal; and the May 9, 1991, order which required Ozite to produce the disputed document to Dalen. Ozite did not note the May 9, 1991, order in its notice of appeal, but Dalen concedes that it is reviewable as a step in the procedural progression leading to the June 26 final judgment.

Ozite responds that an appeal from a final judgment draws into question all prior nonfinal orders which produced the judgment. Ozite also argues that any deficiency in the notice of appeal is one of form and not of substance. Ozite asks this court to allow it to file an amended notice of appeal if we find defects in the original notice of appeal.

We begin by noting that Supreme Court Rule 303(c)(2) states:

"(c) Form and Contents of Notice of Appeal

* * * * * *

(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court." (134 Ill.2d R. 303(c)(2).)

The Illinois Supreme Court held in Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 31 Ill.Dec. 178, 394 N.E.2d 380, that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed. (Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380.) "[T]he unspecified judgment is reviewable if it is 'a step in the procedural progression leading' to the judgment specified in the notice of appeal." (Burtell, 76 Ill.2d at 435, 31 Ill.Dec. 178, 394 N.E.2d 380, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir.1977), 567 F.2d 1252, 1254.) In Burtell, the supreme court held that the notice of appeal at issue was sufficient to confer jurisdiction because the earlier order sought to be reviewed, but which was not mentioned in the notice of appeal, was an order for an accounting. The court noted that the notice of appeal referred to the final judgment, which was based on the accounting. Burtell, 76 Ill.2d at 431-36, 31 Ill.Dec. 178, 394 N.E.2d 380.

In Village of Lisle v. Village of Woodridge (1989), 192 Ill.App.3d 568, 572, 139 Ill.Dec. 623, 548 N.E.2d 1337, this court reviewed Burtell and three similar holdings: Long v. Soderquist (1984), 126 Ill.App.3d 1059, 1062, 82 Ill.Dec. 80, 467 N.E.2d 1153 (where notice of appeal was from a summary judgment order as to certain counts and did not refer to an earlier order dismissing other counts, a reviewing court lacks jurisdiction to consider the earlier dismissal order that was not otherwise timely appealed); Ferguson v. Riverside Medical Center (1985), 111 Ill.2d 436, 442, 96 Ill.Dec. 47, 490 N.E.2d 1252 (pursuant to Rule 303(c)(2), a notice of appeal which referred to the dismissal order as to one defendant but not the earlier dismissal order as to another defendant did not bestow jurisdiction on the reviewing court to consider the separate, earlier dismissal order not mentioned in the notice of appeal); and Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill.2d 56, 61, 34 Ill.Dec. 328, 398 N.E.2d 3 (failure to mention an earlier order dismissing a counterclaim in the notice of appeal seeking review of a summary judgment order deprived the reviewing court of jurisdiction to consider the dismissal order). Based on those holdings, we determined in Village...