First Robinson Sav. & Loan v. Ledo Const. Co., Inc.

• Decision Date: 25 March 1991
• Docket Number: No. 5-90-0031,5-90-0031
• Citation: 210 Ill.App.3d 889,569 N.E.2d 304,155 Ill.Dec. 304
• Parties: , 155 Ill.Dec. 304 FIRST ROBINSON SAVINGS & LOAN, an Illinois Corporation, Plaintiff-Appellee, v. LEDO CONSTRUCTION COMPANY, INC., a Corporation; Frank W. Battershell; and Lena Mae Battershell, Defendants and Third-Party Plaintiffs-Appellants, (John Battershell, d/b/a Battershell & Associates Architects, Inc., Third-Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 304

569 N.E.2d 304

210 Ill.App.3d 889, 155 Ill.Dec. 304

FIRST ROBINSON SAVINGS & LOAN, an Illinois Corporation, Plaintiff-Appellee, v. LEDO CONSTRUCTION COMPANY, INC., a Corporation; Frank W.

Battershell; and Lena Mae Battershell, Defendants and

Third-Party Plaintiffs-Appellants, (John Battershell, d/b/a

Battershell & Associates Architects, Inc., Third-Party

Defendant-Appellee).

No. 5-90-0031.

Appellate Court of Illinois,

Fifth District.

March 25, 1991.

Massey, Anderson & Gibson, Paris (Richard L. James, of counsel), for plaintiffs-appellants.

D. Cameron Dobbins of Dobbins, Fraker, Tennant, Joy & Perlstein, P.C., Champaign, for third-party defendant-appellee.

Justice HOWERTON delivered the opinion of the court:

The issue in this case is whether defendant, Ledo Construction Company, Inc., properly filed its "counterclaim" against third-party defendant so that it relates back to a previously filed third-party complaint, thereby avoiding the statute of limitations.

We hold that defendant did not properly file its counterclaim, because it was filed ex parte and without leave of court first having been obtained. Therefore, the counterclaim is a nullity and cannot relate back to the previously filed third-party complaint. Accordingly, defendant's claim against third-party defendant is barred by the statute of limitations. Because we find that defendant improperly filed its pleadings, we do not reach the related question of whether a counterclaim can relate back to a third-party complaint.

Plaintiff, First Robinson Savings & Loan, in a suit for declaratory judgment, asked the circuit court to declare that its construction contract with defendant, Ledo Construction Company, Inc., was not subject to arbitration. Defendant answered and counterclaimed against plaintiff.

Nearly two years later, defendant sought leave of court to add John Battershell, the architect, as a third-party defendant in the declaratory judgment action. The circuit court granted defendant's motion to file a third-party complaint against Battershell. Defendant filed the third-party complaint April 22, 1988, against Battershell, and Battershell moved for dismissal. On August 29, 1988, the circuit court granted Battershell's motion to dismiss, writing on the court minutes, "Counsel for third-party plaintiff to file 'amended third-party complaint' within ten days." The defendant failed to file this amended complaint within that period.

Six months later, on February 22, 1989, the circuit court, in an ex parte order, granted defendant "leave to file a 'late amended third-party complaint' due to the same having been filed previously in 85-L-34, subject to right to object." (Case 85-L-34 was another case between First Robinson Savings & Loan and Ledo Construction Co., Inc. In 85-L-34, defendant filed a counterclaim against John Battershell, again without leave of court.) Thereafter, in the case at bar, the circuit court corrected its docket entry of February 22, set out above, by changing the words "Third-Party Complaint" to "Third Amended Counterclaim," giving counsel ten days to file.

Over one month later, on March 28, 1989, defendant filed his counterclaim, which was substantially the same as his original third-party complaint. In the meantime the statute of limitation expired.

Battershell moved to dismiss the counterclaim. The circuit court held that the counterclaim was unrelated to the original complaint which sought a declaration of whether the contract was subject to arbitration; therefore, the counterclaim did not arise out of the same transaction as originally pleaded between plaintiff and defendant. (See Ill.Rev.Stat.1989, ch. 110, par. 2-608; Zeh v. Wheeler (1986), 111 Ill.2d 266, 95 Ill.Dec. 478, 489 N.E.2d 1342.) We need not consider this issue, because we affirm as to other issues the court considered, which are dispositive of this appeal, namely: (1) whether defendant properly filed the March 28, 1989, counterclaim within the statute of limitations; and (2) whether the March 28, 1989, counterclaim related back to the third-party claim filed on April 22, 1988. These issues are dispositive, because if we find, as we do, that the amended pleading is a nullity, we have no occasion to determine whether the counterclaim arose out of the same transaction originally pleaded under the standards announced in Zeh. The circuit court ruled that the ex parte order of February 22, 1989, which allowed defendant to file a counterclaim, was void, and the counterclaim, therefore, was a nullity. In consequence, the counterclaim could not relate back. Defendant appeals from this order.

At the outset, we note that the case at bar was one of four pending cases consolidated for purposes of discovery, pre-trial motions and trial. The circuit court, however, kept separate docket sheets and case numbers for each pending case.

A court may consolidate actions for its convenience in the absence of prejudice to a substantial right. Where several actions involve a general inquiry into the same event, the actions may be tried together; however, separate docket entries, verdicts, and judgments should be maintained, and the consolidation should be limited to a joint trial. (Vitale v. Dorgan (1975), 25 Ill.App.3d 941, 323 N.E.2d 616.) Here, the cases were consolidated for trial only for convenience and economy, and the consolidation did not merge the causes into a single suit, which would have changed the rights of the parties and made those who were parties in one suit parties in another. (Shannon v. Stookey (1978), 59 Ill.App.3d 573, 16 Ill.Dec. 774, 375 N.E.2d 881, citing Johnson v. Manhattan Ry. Co. (1933), 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331.) Thus, filing of defendant's counterclaim in 85-L-34 does not affect the rights of the parties in this case because this "consolidation" was for convenience rather than a formal act of consolidation which would merge the cases into a single suit.

We now consider whether defendant properly filed its counterclaim.

A party does not have the absolute right to amend pleadings. (Montgomery Ward & Co., Inc. v. Wetzel (1981), 98 Ill.App.3d 243, 53 Ill.Dec. 366, 423 N.E.2d 1170.) Since there is no absolute right to amend, a party first must seek and obtain from the court permission to file a proposed amendment. (Blazina v. Blazina (1976), 42 Ill.App.3d 159, 1 Ill.Dec. 164, 356 N.E.2d 164.) A party is not permitted to amend and add a new claim against a new party without first obtaining leave of court. (Ill.Rev.Stat.1989, ch. 110, par. 2-406(b).) An amended pleading that adds additional parties filed without leave of court is a nullity. (Petrella v. Leisky (1981), 92 Ill.App.3d 880, 48 Ill.Dec. 732, 417 N.E.2d 134; Allen v. Archer-Daniels-Midland Co. (1985), 129 Ill.App.3d 783, 84 Ill.Dec. 921, 473 N.E.2d 137.) Therefore, only an amended pleading that has been filed after leave of court first having been obtained will allow the pleading to "relate back" to the time of the original complaint. Ill.Rev.Stat.1989, ch. 110, par. 2-616(b); Petrella v. Leisky (1981), 92 Ill.App.3d 880, 48 Ill.Dec. 732, 417 N.E.2d 134.

Similarly, application for leave to amend cannot be made ex parte. Instead, a motion for leave to amend a pleading must be in writing, state the reason for the amendment, set forth the amendment that is being proposed, show the materiality and propriety of the proposed amendment, explain why the proposed additional matter was omitted from earlier pleadings,...