Du Page Aviation Corp. v. Du Page Airport Authority

• Decision Date: 05 June 1992
• Docket Number: 2-91-0386,Nos. 2-91-0112,s. 2-91-0112
• Citation: 594 N.E.2d 1334,229 Ill.App.3d 793
• Parties: , 171 Ill.Dec. 814, 1992-2 Trade Cases P 69,907 DU PAGE AVIATION CORPORATION, Flight Services, Inc., et al., Plaintiffs-Appellants, v. DU PAGE AIRPORT AUTHORITY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1334

594 N.E.2d 1334

229 Ill.App.3d 793, 171 Ill.Dec. 814,

1992-2 Trade Cases P 69,907

DU PAGE AVIATION CORPORATION, Flight Services, Inc., et al Plaintiffs-Appellants, v. DU PAGE AIRPORT AUTHORITY, Defendant-Appellee.

Nos. 2-91-0112, 2-91-0386.

Appellate Court of Illinois Second District.

June 5, 1992.

Clancy & Krippner, Maureen A. Hill and Wendell W. Clancy, argued, St. Charles, for Du Page Aviation Corp., Flight Services Inc., SSPF, Chicago Beechcraft and Joe Boyd.

Bell, Boyd & Lloyd, Lawrence M. Gavin, argued, Chicago, for Du Page Airport Authority.

Presiding Justice INGLIS delivered the opinion of the court:

Du Page Aviation Corporation, Flight Services, Inc., SSPF (a partnership), Chicago Beechcraft (a limited partnership) and Joe Boyd (plaintiffs) appeal after the trial court dismissed with prejudice all counts of their amended complaint and second amended complaint against the Du Page Airport Authority (Authority), defendant. Plaintiffs sued the Authority in February 1989 for damages that allegedly are based on the expiration of plaintiffs' property leases at the airport. Plaintiffs wanted fair-market value compensation for certain improvements they made on the leased property instead of depreciated value compensation that the leases provided, and the Authority allegedly refused to renegotiate the leases. We affirm.

We set forth only the relevant facts to the issues raised. On February 14, 1989, plaintiffs filed a three-count complaint against defendant. Count I was based in estoppel theory, count II alleged a conspiracy, and count III alleged tortious interference with business contracts. Plaintiffs later added count IV, which sought to enjoin the Authority from exercising an option On February 15, 1990, plaintiffs filed a four-count amended complaint: count I was based in estoppel theory, count II alleged a conspiracy to restrain trade, count III alleged tortious interference with business relationships, and count IV alleged violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill.Rev.Stat.1989, ch. 121 1/2, pars. 261 through 272).

[171 Ill.Dec. 816] to terminate plaintiffs' leases. On January 19, 1990, the trial court granted the Authority's section 2-615 motion to dismiss (Ill.Rev.Stat.1989, ch. 110, par. 2-615). The court specifically dismissed counts II, III, and IV, and allowed plaintiffs leave to file an amended complaint which would include count I.

On October 9, 1990, the trial court dismissed count I with prejudice pursuant to section 2-619 (Ill.Rev.Stat.1989, ch. 110, par. 2-619) and dismissed counts II, III and IV with prejudice pursuant to section 2-615 (Ill.Rev.Stat.1989, ch. 110, par. 2-615).

In granting the Authority's motion to dismiss count I, the estoppel count, the court held that the leases were clear and unambiguous and that they provided a formula for compensating the plaintiffs for leasehold improvements when the leases expired. The court further held that plaintiffs' complaint failed to state a cause of action in estoppel since plaintiffs did not allege detrimental reliance or that defendant broke a promise to plaintiffs. The court dismissed count II of the amended complaint, the antitrust count, on the grounds that the Authority was immune from liability under section 5(14) of the Illinois Antitrust Act (Ill.Rev.Stat.1989, ch. 38, par. 60-5(14)) and the State action doctrine (citing Wellwoods Development Co. v. City of Aurora (N.D.Ill.1986), 631 F.Supp. 221, 224-25, aff'd (7th Cir.1987), 822 F.2d 1091). The court dismissed count III of the amended complaint, the tortious interference count, on the ground that the Authority was immune under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1989, ch. 85, par. 1-101 et seq.). The court dismissed count IV of the amended complaint, the Consumer Fraud Act count, because the Authority was not subject to the Act, citing Board of Education v. A, C & S, Inc. (1989), 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580, and also on immunity grounds.

On December 20, 1990, the trial court granted plaintiffs' section 2-1301 motion to vacate (Ill.Rev.Stat.1989, ch. 110, par. 2-1301) in part the October 9 order. The court entered an order which modified the dismissal of count I of the amended complaint to without prejudice and denied the motion to vacate in all other respects. The court also added final and appealable language of Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)) to the earlier dismissal of counts II, III and IV and granted plaintiffs leave to file a second amended complaint instanter. Plaintiffs' second amended complaint consisted of two counts. Count I sounded in estoppel theory. Count II alleged that defendant had violated the Eminent Domain Act (Ill.Rev.Stat.1989, ch. 110, pars. 7-101 through 7-129), thereby depriving plaintiffs of property in violation of section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (1988)). Plaintiffs did not reallege or preserve counts II, III and IV from the amended complaint in their second amended complaint.

On January 22, 1991, plaintiffs filed a timely notice of appeal as to the December 20, 1990, order.

On March 7, 1991, the trial court granted defendant's section 2-619 motion to dismiss (Ill.Rev.Stat.1989, ch. 110, par. 2-619) plaintiffs' second amended complaint. On April 4, 1991, plaintiffs filed a timely notice of appeal as to the March 7, 1991, order. Finally, on April 10, 1991, this court granted plaintiffs' motion to consolidate the two appeals.

Plaintiffs raise seven issues on appeal, all regarding whether the trial court erred in dismissing the various counts in their complaints. Specifically, plaintiffs argue that: (1) count II of the amended complaint sufficiently stated a cause of action under the Illinois Antitrust Act; (2) count III of the amended complaint sufficiently stated a cause of action for tortious interference The Authority responds that this court lacks jurisdiction to consider the October 9, 1990, order dismissing counts II, III and IV of plaintiffs' amended complaint because plaintiffs' notice of appeal referred only to the later December 20, 1990, order. In the alternative, the Authority urges this court to conclude that plaintiffs waived any objection to the dismissal of counts II, III and IV of the amended complaint by filing their second amended complaint. The Authority finally argues that even if this court has jurisdiction to review the issues raised and if we find no waiver, the trial court properly dismissed all counts of plaintiffs' complaints.

[171 Ill.Dec. 817] with prospective advantage; (3) count IV of the amended complaint sufficiently stated a cause of action under the Consumer Fraud Act; (4) the Tort Immunity Act does not immunize the Authority from liability; (5) the amended and second amended complaints comply with the applicable statutes of limitation; (6) count I of the second amended complaint sufficiently stated a cause of action in estoppel theory; and (7) count II of the second amended complaint sufficiently stated a cause of action under section 1983 (42 U.S.C. § 1983 (1988)).

DOES THIS COURT HAVE JURISDICTION TO REVIEW THE OCTOBER 9,

1990, ORDER?

We disagree with the Authority's contention that this court is without jurisdiction to review the October 9 order. 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. (3rd 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. But see Village of Lisle v. Village of Woodridge (1989), 192 Ill.App.3d 568, 572, 139 Ill.Dec. 623, 548 N.E.2d 1337 (appellate court without jurisdiction to consider any issues raised regarding a dismissal order because the notice of appeal referred only to a later summary judgment order and requested relief from that order only).

In the instant case, the trial court's December 20, 1990, order specifically added final and appealable language from Rule 304(a) (134 Ill.2d R. 304(a)) to its earlier order of October 9, 1990, dismissing counts II, III and IV. We conclude that the October 9, 1990, order is a step in the procedural progression leading to the December 20, 1990, order and that therefore the October 9, 1990, order is properly before this court.

DID PLAINTIFFS WAIVE OBJECTION TO THE DISMISSAL OF THE

AMENDED COMPLAINT BY FILING A SECOND AMENDED COMPLAINT?

At issue is whether plaintiffs waived any objection to the dismissal of counts II, III and IV of their amended complaint, even though the trial court made the dismissal final and appealable under Rule 304(a), by later filing a second amended complaint. It is well established in Illinois that "a party who files an amended pleading waives any objection to the ...