Hilgart v. 210 Mittel Drive P'ship

• Decision Date: 17 October 2012
• Docket Number: No. 2–11–0943.,2–11–0943.
• Citation: Hilgart v. 210 Mittel Drive P'ship, 2012 IL App (2d) 110943, 978 N.E.2d 710, 365 Ill.Dec. 455 (Ill. App. 2012)
• Parties: Carolyn HILGART, Plaintiff–Appellant, v. 210 MITTEL DRIVE PARTNERSHIP; Steven Leturno, Individually and d/b/a 210 Mittel Drive Partnership; and Daniel Lisowski, Individually and d/b/a 210 Mittel Drive Partnership, Defendants–Appellees (The Brickman Group, Ltd., Defendant and Third–Party Plaintiff, and AIT Worldwide Logistics, Inc., Third–Party Defendant).
• Court: Appellate Court of Illinois

2012 IL App (2d) 110943

978 N.E.2d 710

365 Ill.Dec. 455

Carolyn HILGART, Plaintiff–Appellant,

v.210 MITTEL DRIVE PARTNERSHIP; Steven Leturno, Individually and d/b/a 210 Mittel Drive Partnership; and Daniel Lisowski, Individually and d/b/a 210 Mittel Drive Partnership, Defendants–Appellees (The Brickman Group, Ltd., Defendant and Third–Party Plaintiff, and AIT Worldwide Logistics, Inc., Third–Party Defendant).

No. 2–11–0943.

Appellate Court of Illinois, Second District.

Oct. 17, 2012.

Steven A. Berman and Michael J. Ray, Anesi, Ozman, Rodin, Novak & Kohen, Ltd, Chicago, IL, for Appellant.

Christopher J. Dallavo and Christopher T. Buckley, Schueler, Dallavo & Casieri, Chicago, IL, for Appellee.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

[365 Ill.Dec. 457]¶ 1 Plaintiff, Carolyn Hilgart, appeals from an order granting summary judgment to defendants, 210 Mittel Drive Partnership (Mittel); Steven Leturno; and Daniel Lisowski, in this negligence action for injuries Hilgart sustained when she fell on stairs while leaving work. On appeal, Hilgart argues that the trial court erred in granting summary judgment, because there are genuine issues of material fact regarding whether: (1) Mittel, Leturno, and Lisowski had notice of the dangerous condition; and (2) Leturno and Lisowski can be held liable pursuant to the dual capacity doctrine. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On the morning of January 31, 2007, Hilgart was injured when she fell on the outdoor stairs leading to a parking lot while leaving the building of her place of employment, AIT Worldwide Logistics, Inc. (AIT). The stairs were installed by The Brickman Group, Ltd. (Brickman), in 1997.

¶ 4 On December 16, 2008, Hilgart filed an amended complaint seeking monetary damages for injuries incurred from her fall on the stairs. Hilgart sought judgment against: (1) Mittel, the partnership that owned the building; and (2) Leturno and Lisowski, Mittel's individual partners. Hilgart alleged that Mittel, Leturno, and Lisowski, and/or their agents, employees, or servants, negligently: (1) operated, managed, maintained, and controlled the premises; (2) “[a]llowed pieces of stone to protrude from the steps posing a tripping hazard”; (3) failed to properly inspect the stairs when they should have known that inspection was necessary; (4) failed to warn Hilgart of the dangerous stairs when they knew or should have known a warning was necessary; (5) failed to provide a handrail; (6) allowed the tread of the stairs to exist in a dangerous condition; and (7) allowed the risers of the stairs to exist in a dangerous condition.

¶ 5 Hilgart also sought damages against Brickman. Hilgart alleged that Brickman negligently constructed, designed, supervised, or planned the construction of the stairs. On April 9, 2009, Brickman filed against AIT a third-party complaint for contribution.

¶ 6 At the time of the incident, Mittel owned AIT. Leturno and Lisowski were individual partners of Mittel, shareholders of AIT, and president and vice president of AIT, respectively. Mittel acquired the building in 1997. Shortly thereafter, AIT leased the building for its freight logistics business. A lease, dated January 21, 1997, and in effect on the day of Hilgart's fall, was entered into between AIT, as “Lessee,” and Mittel, as “Lessor.” Paragraph two of the lease, entitled “Condition and Upkeep of Premises,” provided:

“Lessee has examined and knows the conditions of the Premises and has received the same in good working order and repair, and acknowledges that no representations as to the condition and repair thereof have been made by Lessor, or his agent, prior to or at the execution of this lease that are not herein expressed; Lessee will keep the Premises including all appurtenances, in good working repair.”

The lease was signed by Leturno on behalf of AIT and by both Leturno and Lisowski on behalf of Mittel.

¶ 7 Mittel, Leturno, and Lisowski filed a motion for summary judgment, arguing that: (1) Mittel, as the lessor of the premises, was immune from Hilgart's negligence suit because the premises were in the possession and control of Hilgart's employer, AIT; (2) Leturno and Lisowski, as agents of AIT, were immune from Hilgart's negligence suit, pursuant to section 5(a) of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2006)) ¹; and (3) in the alternative, Mittel, Leturno, and Lisowski did not have actual or constructive notice of any defect in the stairs.

¶ 8 Hilgart filed a response, arguing that: (1) Mittel was not entitled to lessor immunity because the lease applied only to the interior space of the AIT office; (2) Mittel was not entitled to immunity under the Act, because Mittel and AIT were separate legal entities; and (3) Mittel, Leturno, and Lisowski each had constructive notice of a defect in the stairs, which were not constructed in compliance with code requirements.

¶ 9 On June 7, 2011, the trial court granted summary judgment in favor of Mittel, Leturno, and Lisowski. The entire order states:

“1) The motion for summary judgment filed by 210 Mittel Drive Partnership, Steven Leturno and Daniel Lisowski is granted for the reasons stated on the record by Judge Kenneth Popejoy, and judgment is hereby entered in favor of 210 Mittel Drive Partnership, Daniel Lisowski and Steven Leturno and against Plaintiff, Carolyn Hilgart.

2) There is no just reason to delay enforcement or appeal of this order pursuant to Illinois Supreme Court Rule 304(a).”

The transcript of the hearing and of the trial court's oral ruling indicates that the trial court granted summary judgment in favor of Mittel based on lack of actual or constructive notice. The trial court granted summary judgment in favor of Leturno and Lisowski based on their immunity pursuant to the Act, citing Guerino v. Depot Place Partnership, 273 Ill.App.3d 27, 209 Ill.Dec. 870, 652 N.E.2d 410 (1995). The same day the trial court granted summary judgment, Hilgart filed a motion to reconsider. On September 1, 2011, the trial court denied Hilgart's motion to reconsider.

¶ 10 The trial court entered a second order on June 7, 2011, granting summary judgment in favor of Brickman on Hilgart's complaint. The trial court also dismissed with prejudice Brickman's third-party complaint against AIT, “in light of the above entered summary judgment.” The order also stated, “This is a final order and there is no just cause to delay the enforcement or appeal of this order pursuant to [R]ule 304(a).”

¶ 11 On September 22, 2011, Hilgart filed a notice of appeal from the June 7, 2011, order granting summary judgment in favor of Mittel, Leturno, and Lisowski, and from the September 1, 2011, order denying Hilgart's motion to reconsider.

¶ 12 II. ANALYSIS

¶ 13 A. Jurisdiction

¶ 14 Leturno and Lisowski contest this court's jurisdiction to hear the appeal of the trial court's grant of summary judgment in their favor. Specifically, Leturno and Lisowski argue that, because Hilgart's motion to reconsider failed to provide any basis to reconsider the judgment entered in their favor, it did not extend the time Hilgart had to file her notice of appeal as to them. Hilgart failed to file the notice of appeal within 30 days of the order granting summary judgment; rather, she waited until her motion to reconsider was denied. Thus, according to Leturno and Lisowski, Hilgart's notice of appeal was untimely as to the grant of summary judgment in their favor and we have no jurisdiction to review the judgment as to them. We disagree.

¶ 15 In its first order entered on June 7, 2011, the trial court granted summary judgment as to fewer than all the parties and, therefore, the order was not appealable without a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). The trial court included language pursuant to Rule 304(a), which provides that the time for filing a notice of appeal shall be as provided in Illinois Supreme Court Rule 303 (eff. May 30, 2008). Rule 303(a)(1) provides that a notice of appeal must be filed within 30 days after the entry of the final judgment. However, the rule states that a timely filed motion directed against the judgment tolls the time for appeal until the order disposing of the motion is entered.

¶ 16 Here, Mittel, Leturno, and Lisowski moved for summary judgment by filing a single motion. The trial court granted the motion in a single order and in a single paragraph. The order included Rule 304(a) language and is unambiguous. The order did not sever the parties. Counsel for Mittel, Leturno, and Lisowski drafted the order that he now argues is actually two separate orders. “Defense counsel cannot argue that it means something other than what it says.” Hemminger v. Nehring, 399 Ill.App.3d 1118, 1122, 339 Ill.Dec. 692, 927 N.E.2d 233 (2010). Hilgart timely filed a single motion to reconsider a single order granting summary judgment. See id. Thus, Hilgart's motion to reconsider tolled the time for filing a notice of appeal with respect to the order as to Leturno and Lisowski, as well as Mittel.

¶ 17 In addition, although Hilgart's motion to reconsider did not include a basis to attack the judgment in favor of Leturno and Lisowski, it was sufficient. According to the Illinois Supreme Court in Kingbrook, Inc. v. Pupurs, 202 Ill.2d 24, 269 Ill.Dec. 13, 779 N.E.2d 867 (2002), a postjudgment motion in a nonjury case is sufficient even if it consists merely of a single sentence. Id. at 26–27, 33, 269 Ill.Dec. 13, 779 N.E.2d 867. In Kingbrook, the court held that a single sentence moving the court to reconsider its decision was proper. Id. In this case, Hilgart's motion to reconsider was more specific than the motion in Kingbrook. Hilgart's motion included both Leturno and Lisowski. Her motion provided:

“Plaintiff seeks reconsideration of the Court Order entered in this case on June 7, 2011, in which this Honorable Court granted Defendants' Motion for Summary Judgment and dismissed ...