Enblom v. Milwaukee Golf Development, 1-90-0713
Decision Date | 20 March 1992 |
Docket Number | No. 1-90-0713,1-90-0713 |
Citation | 227 Ill.App.3d 623,592 N.E.2d 190,169 Ill.Dec. 703 |
Parties | , 169 Ill.Dec. 703 Allan ENBLOM, Plaintiff, v. MILWAUKEE GOLF DEVELOPMENT, Defendant/Third-party Plaintiff-Appellant (Inland Construction Company, Third-party Defendant-Appellee). First District, Fifth Division |
Court | United States Appellate Court of Illinois |
Robert L. Bartolone, Sandra Young, Purcell & Wardrope, Chtd., Chicago, for third-party defendant-appellee, Inland Const. Co.
Charles F. Redden, Pretzel & Stouffer, Chartered, Chicago, for defendant/third-party plaintiff-appellant, Milwaukee Golf Development Co.; Robert Marc Chemers, Andrew G. Witik, of counsel.
Defendant/third-party plaintiff Milwaukee Golf Development (hereinafter "Milwaukee Golf") appeals from the trial court's denial of its motion to vacate the summary judgment entered for third-party defendant Inland Construction Company (hereinafter "Inland") and from the denial of its motion for leave to file an amended third-party complaint against Inland. For the reasons set forth below, we affirm.
On September 10, 1986, plaintiff Allan Enblom filed a complaint against defendant Milwaukee Golf for injuries he suffered when he fell on May 5, 1985, at the Golf Mill Shopping Center owned by Milwaukee Golf. Plaintiff alleged that he was injured when he fell while walking along the public sidewalk in the shopping center in front of the Hermann's Sporting Goods Store. Milwaukee Golf filed its answer to plaintiff's complaint on October 15, 1986, denying negligence.
On March 5, 1987, Milwaukee Golf was granted leave to file a third-party complaint against Inland. This complaint sought contribution from Inland, pursuant to the Contribution Among Joint Tortfeasors Act. (Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.) Milwaukee Golf's third- party complaint alleged that Inland was the general contractor performing work in and around the area of the shopping center where plaintiff fell.
The record does not indicate that Inland has filed an answer to Milwaukee Golf's third-party complaint. In fact, Inland contends that it was never served with the third-party complaint. However, the supplemental record filed by Milwaukee Golf contains a summons and certificate of service indicating that Inland was served in the third-party action on March 19, 1987.
Subsequent to the filing of Milwaukee Golf's third-party complaint, plaintiff amended his complaint to add Inland as a defendant. On July 28, 1987, Inland filed its answer to plaintiff's amended complaint, denying that it was performing construction work in the area where the plaintiff was injured at the time in question.
On July 13, 1988, Inland filed a motion for summary judgment directed at the plaintiff. The motion was accompanied by the affidavit of an executive and senior project manager of Inland, who stated that to his knowledge, Inland did not at any material time perform any construction work in the area where plaintiff was injured. He further stated that he believed that another contractor, Ragnar Benson, was the contractor performing the construction services alleged in plaintiff's amended complaint.
On July 21, 1988, Milwaukee Golf did not appear at a hearing on Inland's motion for summary judgment, and the motion was continued. On July 28, 1988, Milwaukee Golf again did not appear at the hearing, and the motion was again continued. On August 25, 1988, Milwaukee Golf was again absent. At this hearing, plaintiff's counsel asked for an additional 28 days in order to learn from Milwaukee Golf's attorney if Inland was the contractor involved at the site of plaintiff's fall. The judge set the motion for a final status hearing on September 28, 1988.
The record reveals that on August 30, 1988, counsel for Inland wrote to counsel for Milwaukee Golf, informing him that the motion had again been continued, and that a final hearing was to be held on September 28, 1988. The letter also requested that Milwaukee Golf provide any information it had which might contradict the affidavit supporting Inland's summary judgment motion.
On September 22, 1988, counsel for Milwaukee Golf wrote to his client, asking for any information regarding construction work done by Ragnar Benson, the company which Inland said was working in the area when the plaintiff was injured. On September 27, 1988, Milwaukee Golf responded by sending a copy of its contract with Ragnar Benson to its attorneys. By the terms of that contract, Ragnar Benson did not begin work until June 1, 1985, almost a month after plaintiff was injured.
On September 28, 1988, counsel for Milwaukee Golf did not appear at the "final status" hearing on Inland's motion for summary judgment. Inland's motion for summary judgment against the plaintiff was granted. The order stated "all parties having due notice, Melvin Friedman [attorney for plaintiff] being present in court on behalf of the plaintiff * * * that defendant Inland Construction Company is granted summary judgment in its favor and against plaintiff Allan Enblom."
On October 6, 1988, attorneys for Milwaukee Golf wrote to Inland, indicating that contrary to the affidavit supporting Inland's motion for summary judgment, Ragnar Benson was not working in the area when plaintiff was injured. Milwaukee Golf also requested a copy of the September 28, 1988, order.
On January 6, 1989, Milwaukee Golf filed a motion to vacate the September 28, 1988, order granting summary judgment to Inland, and requested leave to file an amended third-party complaint. The proposed amended third-party complaint does not appear in the record. Submitted with the motion to vacate was an affidavit from Milwaukee Golf's controller in which he stated that A copy of the contract with Inland was also submitted with Milwaukee Golf's motion. The affidavit also stated that a review of all the contracts maintained by Milwaukee Golf indicated that no other construction was being performed in the area at the time of plaintiff's accident.
A hearing was held on February 15, 1989, to consider Milwaukee Golf's motion to vacate the summary judgment order and for leave to file its amended third-party complaint. The motion was denied because Milwaukee Golf had not indicated why it could not have presented the proffered evidence at the time of the hearing on Inland's motion. The following colloquy occurred:
On February 21, 1989, Milwaukee Golf filed a "motion for clarification and for reconsideration" of the February 15, 1989, ruling. Milwaukee Golf sought clarification as to whether the September 28, 1988, summary judgment applied to Milwaukee Golf as well as to plaintiff. At a hearing held September 25, 1989, this motion was also denied, the court ruling that it had already reconsidered its September 28, 1988, order granting summary judgment at the February 15, 1989, hearing. The court also refused to vacate its February 15, 1989, order denying Milwaukee Golf leave to file its amended third-party complaint.
Milwaukee Golf filed another motion on October 16, 1989, this one seeking to vacate the February 15, 1989, order and seeking leave to file its amended third party complaint. On January 12, 1990, this motion was denied.
Finally, on February 20, 1990, Milwaukee Golf filed a motion to have the January 12, 1990, order made final and appealable. At a hearing on the motion, the court ruled that he would make his February 15, 1989, order denying Milwaukee Golf's motion to vacate the summary judgment and leave to file its amended third-party complaint appealable, and the court inserted the appropriate Rule 304(a) language.
OPINIONAlthough the parties have not raised the question of our jurisdiction to consider this appeal and in their briefs agree that jurisdiction exists under Rule 304(a) (134 Ill.2d R. 304(a)), we must consider it. (Raglin v. HMO Illinois, Inc. (1991), 217 Ill.App.3d 1076, 160 Ill.Dec. 929, 578 N.E.2d 108.) Were this matter before us solely on the question of the propriety of the denial of leave to file an amended third-party complaint, we would be without jurisdiction since such a denial would not constitute a "final judgment as to one or more but fewer than all of the parties or claims" (134 Ill.2d R. 304(a)), notwithstanding the 304(a) language in the order. There is nothing in the record to indicate that the original third-party action has been disposed of. "The fact that an order contains that language does not make an otherwise nonfinal order appealable." (Metzger v. Fitzsimmons (1988), 175 Ill.App.3d 674, 675, 125 Ill.Dec. 103, 529 N.E.2d 1179.) At best, this appeal would be interlocutory only and there would be no showing of...
To continue reading
Request your trial-
Papadakis v. Fitness 19 Il 116, LLC
...of leave to amend certain counts on which (as here) summary judgment was granted. See Enblom v. Milwaukee Golf Development, 227 Ill. App. 3d 623, 628, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992) ("As a result of our determination that we have jurisdiction over the appeal of the denial of the mo......
-
Vroegh v. J & M Forklift
...same wrongful death, there is a right of contribution among them." ANR relies upon three cases: Enblom v. Milwaukee Golf Development (1992), 227 Ill.App.3d 623, 169 Ill.Dec. 703, 592 N.E.2d 190; McCombs v. Dexter (1989), 186 Ill.App.3d 484, 134 Ill.Dec. 738, 542 N.E.2d 1245; and Northrup v.......
-
Paul H. Schwendener v. Jupiter Elec. Co.
...complaint does not constitute a final judgment notwithstanding a court's Rule 304(a) finding. Enblom v. Milwaukee Golf Development, 227 Ill.App.3d 623, 628, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992); Cinch Manufacturing Co. v. Rosewell, 255 Ill.App.3d 37, 42, 194 Ill.Dec. 160, 627 N.E.2d 276 ......
-
EMC Mortg. Corp. v. Kemp
...underlying judgment so as to make that order, which was final but unappealable, appealable ( Enblom v. Milwaukee Golf Development, 227 Ill.App.3d 623, 628, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992)). That a Rule 304(a) finding with respect to a motion to reconsider will suffice to bring the u......